Visa Lawyer Blog

After some procedural stumbling, today the U.S. Congress passed a $600 million immigration enforcement supplemental appropriations package for additional border enforcement funding through the fiscal year 2011. The package was sponsored by a group of senators and representatives who had previously insisted on holding the line for a comprehensive approach to immigration reform. Having taken an enforcement-first step, the leader of that group, Senator Charles Schumer, said "Hopefully colleagues on both sides of the aisle will [now] come together and we can pass comprehensive reform".

Any effective, long-term solution to the immigration problem must: 1) require the undocumented population to come out of the shadows and earn legal status; 2) ensure that American businesses are able to hire the workers they need to help grow our economy while protecting U.S. workers from unfair competition; 3) reduce the unreasonable and counterproductive backlogs in family-based and employment-based immigration by reforming the permanent immigration system; and 4) protect our national security and the rule of law while preserving and restoring fundamental principles of due process and equal protection.

Recently an undated USCIS draft memorandum surfaced. The Memo was offering administrative relief options to promote family unity, foster economic growth, achieve significant process improvements, and reduce the threat of removal for certain individuals present in the United States without authorization. Here is the entire memo for our readers to view:

Shortly after the memo leaked to the public the Immigration service had this to say:

“Internal draft memos do not and should not be equated with official action or policy of the Department. We will not comment on notional, pre-decisional memos. As a matter of good government, U.S. Citizenship and Immigration Services (USCIS) will discuss just about every issue that comes within the purview of the immigration system. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation's immigration challenges.

Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected. Our goal is to implement policies wisely and well to strengthen all aspects of our mission. The choices we have made so far have strengthened both the enforcement and services sides of USCIS – nobody should mistake deliberation and exchange of ideas for final decisions. To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population.”

What can we learn from all this? Comprehensive immigration reform may not happen in the near future, but some sort of a step by step change is likely to occur sooner than later. Even USCIS is eager for this to happen, expect more "leaks" coming up.

The American Immigration Lawyers Association (AILA) has applauded the brainstorm of ideas in a draft memo from the United States Citizenship and Immigration Services (USCIS). The now-public draft, leaked without the permission of USCIS, examines the legal framework of immigration and explores possible solutions. AILA commends this reflection of the pursuit of the rule of law and the willingness of USCIS leadership to take up this thorough examination.

"We have in the past seen many attempts to scour the law to find justification for draconian, and ultimately unhelpful, ways to make immigrants' lives miserable," said AILA president David Leopold. "This draft document tries to think through ways to make the legal immigration system work in support of sensible law enforcement. It respects the law and respects the people who must deal with the law. For that, the administration is to be congratulated, even if none of the proposals is ever carried out." He added that many of these proposals should be carried out. Long-needed regulations to help children and crime victims caught in the system should be published. Men and women fighting for America in the U.S. military should have the comfort of knowing that their families are safe from being deported. Immigration policies that encourage investment in America and creation of jobs should be emphasized and expanded. These are but a few of several excellent proposals in this document.

"We will never effectively address illegal immigration until we develop a legal immigration system that actually works and that offers people a realistic alternative to illegality," added AILA Executive Director Crystal Williams. "Congress has thus far refused to act. Administration officials at least are trying to find ways to help fill this vacuum," Williams stated.

Yesterday we reported on the court blocking parts of the AZ law, today AZ fired back. Arizona asked an appeals court Thursday to lift a judge's order blocking most of the state's immigration law as the city of Phoenix filled with protesters, including about 50 who were arrested for confronting officers in riot gear.

Republican Gov. Jan Brewer called U.S. District Judge Susan Bolton's Wednesday's decision halting the law "a bump in the road," and the state appealed to the 9th U.S. Circuit Court of Appeals in San Francisco on Thursday.

Outside the state Capitol, hundreds of protesters began marching at dawn, gathering in front of the federal courthouse where Bolton issued her ruling on Wednesday. They marched on to the office of Maricopa County Sheriff Joe Arpaio, who has made a crackdown on illegal immigration one of his signature issues.

One way or another this controversial law will not have an easy ride.

The Obama administration's challenge to the controversial Arizona immigration law goes before a federal judge Thursday. The Justice Department's lawsuit, seeking to stop the law from going into effect, is one of two challenges scheduled for a hearing Thursday.

The first challenge by a group of more than 100 individuals and civil rights groups will be heard Thursday morning. In the afternoon, the Justice Department's lawsuit will have a hearing in a Phoenix federal courtroom.

Both cases will be in front of U.S. District Judge Susan Bolton, according to court documents. The law, signed by Arizona Gov. Jan Brewer in April, requires police to question people about their status if they have been detained for another reason and if there's reason to suspect they're in the United States illegally. It also targets those who hire illegal immigrant laborers or knowingly transport them.

I am writing this Blog entry from my conference of the American Immigration Lawyers Association in Washington DC. In this past few days Immigration lawyers from across the nation gathered here in DC to share ideas and discuss our Immigration laws and policy. On Thursday not so far from our conference, the President (maybe he planned it), discussed Immigration reform for the first time in months.

President Obama stepped back into the political minefield of immigration policy Thursday, arguing for big changes in what he called a "broken" immigration system. But he warned that no such changes are possible without some Republican support.

From months now, Latino activists have been pushing the president to make good on his promise to overhaul the nation's immigration system. Thursday, in a speech at American University here in DC, Mr. Obama took up the challenge.

The speech followed meetings earlier in the week with immigration activists and Latino lawmakers.

To those concerned with security along the southern border with Mexico, Mr. Obama said, he's already put more boots on the ground than ever before. But, he argued, border enforcement by itself will not stop the flow of illegal immigrants.

Immigration is back in the spotlight now thanks to a new Arizona law requiring police to question anyone they suspect of being in the country illegally. Mr. Obama says he understands the frustration that led to that law, but he thinks Arizona went too far. His speech helped to lay the groundwork for an expected legal challenge by the Justice Department.

These are exciting times for all of us at the Immigration Bar, and being here in Washington makes you feel like part of the debate. I promise to keep you updated as we hear from USCIS officials and other government representatives on upcoming changes and other issues.

The President was passionate about the need to pass Comprehensive Immigration Reform asserts while speaking to 24 American service members as they became citizens USA in April. Over the years, many have attempted to confront this challenge, but passions are great and disagreements run deep. Yet surely we can all agree that when 11 million people in our country are living here illegally, outside the system, that’s unacceptable. The American people demand and deserve a solution. And they deserve common-sense, comprehensive immigration reform grounded in the principles of responsibility and accountability.

As he explained, and as his record shows, the government has a responsibility to enforce the law. But as he also explained, the only way to truly fix our broken immigration system is with a comprehensive federal approach.

The President will make clear that this is a top priority and call on Congress to tackle it in a major speech at American University at 10:45AM EDT today.

Take a look at this second grader who asked First Lady Michelle Obama whether the President was going to “take away” people who didn’t have “papers”. Apparently, the child’s mother had expressed some fear in the privacy of their home.

Michelle Obama, who is also the nation’s “First Mom” handled the question beautifully, assuring the little girl that the broken immigration law was a problem Congress would “have to fix”. How do you think the first lady handled this question?

U.S. Senate Majority Leader Harry Reid and fellow Democrats on Thursday unveiled a "framework" for a sweeping overhaul of U.S. immigration laws. In wake of the furor over Arizona's crackdown on illegal immigrants, Democrats said the first step toward reform must be bolstered border security.

The REPAIR Proposal, which still needs to be drafted into a formal bill, addresses seven main areas for immigration reform. These include achieving operational control of the nation’s borders to prevent future illegal immigration, finding and removing individuals who are unlawfully present in the United States, halting unauthorized employment using a biometric employment verification system, and maximizing the nation’s economic prosperity through reforms to the legal immigration system.

Among the document’s many recommendations is the proposal to provide an immediate green card to foreign students graduating from a U.S. educational institution with an advanced degree in science, technology, engineering, or mathematics (STEM), who have an offer of employment in a field relevant to their degree. Further, REPAIR would strive to eliminate the family-based immigration backlog over a period of eight years by increasing the per country family immigration quotas from 7 to 10 percent. The REPAIR Proposal would also implement a two-step process to legalize undocumented individuals living in the United States who do not have criminal convictions and who do not pose a threat to national security.

Let us hope that this proposal which contains ideas from both political sides also inspires partnership in Congress to continue to work towards a comprehensive immigration bill in the next 2 years.

More here...

The American Immigration Lawyers Association (AILA) strongly urges Arizona Governor Jan Brewer to veto a bill moving rapidly through the state legislature that would make it a crime to be an undocumented immigrant in the state.

In addition to the absurdity of aligning undocumented status with state trespassing, the law also validates racial profiling as a legitimate law enforcement tool which is precisely the reason why individuals and businesses around the country are beginning to seriously question whether Arizona is a safe place to visit, live, or do business.

The bill also creates a private right of action for any person to sue a city, town, or county for not enforcing immigration laws to the full extent of federal law and it establishes civil penalties for the city, town, or county. This subjects local governments to unreasonable and potentially frivolous litigation by private citizens with an anti-immigrant agenda. Even if a municipality is vindicated in court, it will still have to incur the costs of defense.

The problems with this bill are monumental and the consequences will be devastating to the citizens of Arizona and the state's already fragile economy. At last glance, Arizona was in the throes of a massive budgetary crisis. Arizona's economy simply cannot afford to absorb the costly litigation that this ill-conceived legislation will certainly produce. Moreover it sets a bad example for other states to pass similar bills. Already other states like Ohio and Utah are entertaining similar legislation. Immigration is the domain of the federal government and it is a huge mistake for states to be involved.

Immigration reform legislation is "dead" in the Senate this year, Sen. Lindsey Graham (R-S.C.) said. Graham, who's sought to work with some Democrats on the controversial issues, said that healthcare efforts had "poisoned the well" for bipartisan cooperation going forward.

Graham had partnered with Sen. Chuck Schumer (D-N.Y.) to work on immigration legislation, and the pair had met with President Barack Obama earlier this month on the issue.

But Graham said that winning the support for any legislation was all but impossible in the wake of a divisive healthcare debate that's wrapped up last week in Congress.

The Senator told the President:

If you want to deliver on your unwavering commitment to immigration reform, write a bill," he said. "You write the bill, send it to the House. See what happens, because I don't think you have much of a chance of getting it through the Senate."

More from the Hill....

The House voted Sunday night on the Senate bill for health care reform, passing it 219 to 212. President Obama won a historic victory in the struggle for health care reform Sunday as the House of Representatives passed a sweeping bill overhauling the American medical system. What does this mean for Immigration? Big hope for the future, but a lot of work remains to be done.

Tens of thousands of people turned out on Washington's National Mall on Sunday to support the Obama administration in its next big battle, a renewed effort to overhaul U.S. immigration laws.

Speaking by video to the crowd, President Obama said he would do "everything in my power" to get a bipartisan deal within the year.

"You know as well as I do that this won't be easy, and it won't happen overnight," Obama said. "But if we work together across ethnic, state and party lines, we can build a future worthy of our history as a nation of immigrants and a nation of laws."

Though overshadowed by the historic debate on health care taking place in the nearby halls of Congress, Sunday's rally set the stage for a revival of efforts to reshape U.S. immigration law. The issue has been largely sidelined since a similar push by the Bush administration failed in 2007. We do hope that something will change very soon.

Read the CNN article...

President Barack Obama on Thursday assured immigration advocates frustrated by the wait for a promised overhaul of U.S. immigration laws that he remains committed to fixing a system he has said is broken. What remains unclear is whether Congress will send him a bill this year.
Obama also met separately later in the day with Sens. Chuck Schumer, D-N.Y., and Lindsey Graham, R-S.C., who gave the president an outline of a bill they are drafting. Obama said afterward in a statement that he "looked forward to reviewing their promising framework."

Obama said he told the senators and the advocacy groups that "my commitment to comprehensive immigration reform is unwavering, and that I will continue to be their partner in this important effort."

The immigration issue is an important one for Obama, who has promised to work to solve the problem. Hispanics voted heavily for Obama in the 2008 presidential election, making the difference in key states like Florida, and their votes will be critical in the November midterm elections when Obama and his fellow Democrats will be fighting to maintain control of the House and Senate.

Read more....

I am proud to say that fellow San Diegans are fighting to keep the Immigration debate alive. A group of about 100 people rallied in front of the San Diego downtown offices of California’s U.S. senators Thursday night, calling for renewed attention to immigration reform.

The group gathered at St. Joseph Cathedral on Third Avenue near Beech Street and marched about two miles to a pair of office buildings on B Street near Seventh Avenue, where the offices of Democratic Sens. Barbara Boxer and Dianne Feinstein are located.

There they delivered a message calling on the lawmakers to work on legislation to legalize the millions of illegal immigrants in the country. Their speeches focused on the themes of unity, family and hope. They held signs, in both English and Spanish, with messages like “Don’t destroy more families. Help families” and “God does not separate families. The government does.”

More here...

This is a first posting is a series of discussions about the above referenced Bill. We upload a Section-by-section summary of the Comprehensive Immigration Reform for America's Security and Prosperity (CIR ASAP) Act of 2009, introduced by Rep. Gutierrez (D-IL) on 12/15/09. This document was produced by Rep. Gutierrez’s office. Click here for the Summary Download file

The actual Bill is very detailed, ranging from enforcement to Immigration reform changes. For example, one reform discussed is to recognize family unity principles and facilitate backlog reduction, reclassifies spouses and children of lawful permanent residents as immediate relatives. Today such families must wait years to be united.

The government is given greater discretionary authority to waive unlawful presence bars to reunite families upon a demonstration of hardship for applicant’s U.S. citizen or lawful permanent resident family members. Today such applicants must leave the US, apply for a waiver and risk getting denied.

As we analyze the Bill, more updates to come.

The following immigration-related bills were introduced into the House of Representatives and the Senate in November:
Military Families Act (S. 2757)
Introduced by Sen. Menendez (D-NJ) on 11/09/09
Summary: A bill to authorize the adjustment of status for immediate family members of persons who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts and for other purposes.

Foreign Students Social Security Numbers Reform Act of 2009 (H.R. 4145)
Introduced by Rep. Johnson (R-TX) on 11/19/2009
Summary: To amend title II of the Social Security Act to prohibit the issuance of social security account numbers to non immigrant aliens who are admitted to the United States as students in order to pursue a full course of study or their spouses or minor children unless such aliens are applicants for or recipients of benefits under a program financed by the Federal Government.

Employ America Act (S. 2804)
Introduced by Sen. Sanders (I-VT) on 11/19/2009
Summary: A bill to require employers to certify that they have not and will not lay off a large number of employees before they are allowed to employ foreign workers in the United States, and for other purposes.

Not an easy time to a US employer these days. Between ICE raids and USCIS H1B site visits, the stress level is on the rise. Here is the latest update - U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Notice of Inspections (NOIs) to 1,000 employers across the country associated with critical infrastructure. This follows an earlier initiative on July 1, 2009 when ICE issued 652 NOIs to businesses nationwide. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This is part of a new initiative illustrating ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

"ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces," said ICE Assistant Secretary John Morton. "We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules."
Audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.

Protecting employment opportunities for the nation's lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

At the same time USCIS continues with enforcement efforts. As part of the Department of Homeland Security's stepped-up enforcement efforts that include increased audits of businesses to detect immigration and labor law violations, employers are reporting random, unannounced visits by the Fraud Detection and National Security Division (FDNS) of USCIS. The FDNS division has engaged outside contractors and private investigators to conduct approximately 25,000 site visits to petitioners. In addition to verifying the validity of information contained in H-1B petitions, FDNS investigators are apparently using information collected during worksite visits to assist USCIS with developing a fraud detection database. FDNS investigators collect information to develop profiles of the types of organizations that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that could be a sign of fraud. Many of these random, unannounced site visits are expected to occur after approval of the H-1B petition or extension. In fact, employers in all industries have reported such worksite visits in recent weeks.

How to prepare? Employers must develop and implement strong compliance policies, audit their I-9s and H-1B public access files regularly, and plan in advance how to respond when immigration agents visit the company. HR personnel must be prepared and know what to say and what not to say when USCIS agents visit. Contact your experienced Immigration Attorney immediately.

Continue reading "ICE Announces Another 1,000 I-9 Worksite Audits; USCIS to conduct 25,000 site visits" »

As we move closer to an Immigration reform, even government officials agree that such major change is very necessary. Here are some remarks by Secretary Napolitano on Immigration Reform at the Center for American Progress:

Over the past year, as this Administration has pursued more effective strategies within the current laws, the picture of how exactly those laws need to be changed has become clearer than ever before. In the past ten months, we have made tough choices, and implemented significant reforms within the current legal framework—but they are not enough to create the system that we want or that we need. If we are truly going to fix a broken system, Congress will have to act. When it comes to immigration, I took an oath as Secretary of Homeland Security to secure the nation by enforcing the law and managing legal flows across the border. Let me be clear: to do this job as effectively as possible, DHS needs immigration reform. Reform legislation would provide lasting and dedicated resources at our borders, and provide some critical legal tools that we don’t currently have to combat smuggling organizations. For example, we need tougher anti-smuggling laws in dealing with the aggravated crimes smugglers commit—including assaulting law enforcement officers, endangering children, threatening relatives and abandoning people in the desert— hundreds of whom succumb to death from heat and lack of water. We also need to update current laws that don’t cover some of the new means by which criminals conduct their business. For instance, today’s smugglers and drug traffickers often move cash through “stored value” cards, which aren’t even considered monetary instruments under the current money-smuggling laws.

In addition, we need improvements to the current law when it comes to interior and worksite enforcement. Dishonest businesses often ignore the civil fines for illegal employment now on the books because they’re so low. It’s also very difficult to prosecute these crimes as felonies because of the over-elaborate intent requirements built into the current statutes.

Read more here...

So you all heard by now about Lou Dobb's dramatic departure from CNN. He said on air:

Over the past six months, it's become increasingly clear that strong winds of change have begun buffeting this country and affecting all of us. And some leaders in media, politics and business have been urging me to go beyond the role here at CNN and to engage in constructive problem-solving, as well as to contribute positively to a better understanding of the great issues of our day. And to continue to do so in the most honest and direct language possible.

Whether he felt that the Immigration reform debate will become a major topic in the next year, and his attempts to stop it will fail, or the rise in the pro immigration movement. Whatever it was, we are happy to see him go. Let the voices for Immigration reform take charge and make 2010 the year such change will happen. Good bye Lou!

The House of Representatives on Saturday night passed a sweeping health care bill by a vote of 220-215. In the next few weeks, this bill will be analyzed and there will be various summaries online regarding this important piece of legislation. I would like to focus on the Immigration related matters in the Bill.

The Congressional Hispanic Caucus staunchly oppose including a provision that would bar undocumented workers from using their own money to buy health insurance policies available through the exchange.

The measure is already included in the Senate Finance Committee's version of the bill and is backed by the White House. Some conservative House Democrats have also indicated their support for the Senate language.

Several Hispanic Caucus members who discussed the issue with House Speaker Nancy Pelosi on Friday said they had received assurances the Senate language would not be included. Rep. Charlie Gonzalez, D-Texas, warned Thursday that several caucus members might try to block the House bill if it's changed to conform to the Senate measure. Pelosi's bill includes various requirements for immigrants to verify their citizenship before getting federal subsidies to buy health insurance. Conservatives, however, have called the requirements insufficient.

We will review the Bill and report on more important points that will be of interest to Immigrants.