Visa Lawyer Blog

A number of measures to help startups and support entrepreneurs have either been introduced in Congress or on their way. But if lawmakers don't act on them by early Spring, their sponsors are doubtful they'll come to pass this year.

Yesterday, President Obama sent Congress a new Startup America Legislative Agenda to accelerate startup and small business growth following his State of the Union Address last week. The agenda lays out his legislative vision as well as his intent to proceed with a series of administrative reforms that would be completed in the future.

Among these are several key immigration initiatives to be implemented at some future point by the Department of Homeland Security and the Department of State. These include:

A proposed rule enabling spouses of certain H-1B employees (those who have extended their H status beyond six years under the American Competitiveness in the Twenty First Century Act) to obtain work authorization;
Expansion of eligibility for the 17-month extension of optional practical training (OPT) for F-1 students to include students having a prior degree in science, technology, engineering, or mathematics (STEM), rather than only those whose most recent degree is in a STEM field;
Allowance of outstanding professors and researchers to present a broader scope of evidence of academic achievement;
Harmonization of rules to allow E-3 visa holders from Australia and H-1B1 visa holders from Singapore and Chile to continue working with their current employer for up to 240 days while their petitions for extension of status are pending;
Launch of the USCIS "Entrepreneurs in Residence" initiative, whose goal is to maximize the potential of attracting foreign entrepreneurial talent;
Allowance for additional part-time study for spouses of F-1 students; and
Extension of L-1 validity to match the reciprocity schedules, rather than the initial validity period of the petition approved by USCIS.

The Administration also endorses eliminating per-country limits on employment-based immigrant visas. A bill that would accomplish this passed the House of Representatives at the end of 2011. A companion bill is under consideration in the Senate now.

Congress needs to “capitalize on the good will and bipartisan atmosphere that surrounds this issue of startups and act now to pass a legislation that will make us all proud to be Americans!!!!

Rep. David Rivera (R-Fla.) proposed a bill this week similar to the DREAM Act but aimed only at those who serve in the military. Illegal immigrants are currently not allowed to join the military.

“If these young people are willing to die for America, then certainly they deserve a chance at life in America,” Rivera said in a statement.

Rivera’s bill, called the ARMS Act, would grant illegal immigrants who join the military the ability to apply for permanent resident status after five years.

Potential applicants would have to serve at least two years in active-duty or four years in the reserves and would have to demonstrate “good moral conduct.”

The bill would only apply to illegal immigrants who came to the United States before they were 16 and have been living in the country for at least five years. Applicants would also need a high school diploma or equivalent.

Read More here

On Wednesday, President Obama gave the State of the Union address. During his speech, President Obama discussed many key themes in immigration, including the DREAM Act for students and foreign students educated in this country to have a way to legalize their status, and a belief that he’s done enough to the secure the border. More importantly, he framed these themes in context to America’s economic recovery, innovation and growth.

In the State of the Union address, President Obama repeatedly signaled to Congress that he would sign sensible bills to reform our immigration system, big or small. But he quickly noted that partisan politics would make it all but impossible to pass comprehensive reform:

"The opponents of action are out of excuses. We should be working on comprehensive immigration reform right now. But if election-year politics keeps Congress from acting on a comprehensive plan, let’s at least agree to stop expelling responsible young people who want to staff our labs, start new businesses, and defend this country. Send me a law that gives them the chance to earn their citizenship. I will sign it right away."

There are plenty of bills that fit this description, from the DREAM Act to proposals offering green cards to foreign graduates in science and engineering to support for immigrant entrepreneurs, but they are just as likely to flounder in the sea of partisan politics as something grander and more comprehensive.

And while the president suggested that the ball was in Congress’s court, he didn’t mention that his Administration has moved forward on reforms that don’t require Congressional action. The Administration has become more aggressive in the last in year in fixing parts of our immigration system, such as overhauling immigration detention, a review of the Secure Communities program, a re-invigoration of the use of prosecutorial discretion, and attempts to promote streamlined adjudications and family unity. The latter, announced just weeks ago, has generated real excitement among immigrant communities.

Similarly, changes to the way government officials decide what cases should be prosecuted in immigration court—and what cases should be dropped—have given hope to millions of immigrants that they may be able to stay with their families. But there remains a lot of uncertainty regarding how DHS will routinely exercise discretion, especially amidst reports that DREAM Act students and others who clearly fit the government’s low priority status are still being deported.

In the areas of detention reform and Secure Communities, however, the early enthusiasm about change has been replaced by wariness on the part of advocates who want to believe promised reforms will be made. They have been repeatedly disappointed by delays in the detention realm and a continued commitment to keep Secure Communities alive, a program that many believe undermines community safety and policing. A special task force voted out a series of necessary reforms and gave their report to Secretary Napolitano last September, but DHS has yet to announce how it will implement these recommendations.

Although these ongoing administrative reforms don’t fit tidily into the overarching vision of immigration policy the President laid out in the State of the Union, following through on them would have a lasting effect on both immigration enforcement and the consideration of benefits for those stuck in our broken immigration system. And the President shouldn’t abandon his larger vision. He has made significant strides in helping to reshape how people who don’t much care about immigration think about it and that will be critical when the time comes for comprehensive reform. But for those most directly affected by our immigration crisis, it is the most immediate details that matter most.

It is a sad day when a high school student is denied an opportunity to pursue his sports passion and a solid university education because of an arbitrary and capricious policy. Chester Brown is a highly recruited football player in the State of Georgia. He is also the son of Samoan immigrants. Chester committed to the University of Georgia back in July, 2011. Yesterday, Chester reluctantly announced he will not be attending as the result of a controversial immigration policy at the university. The Georgia Board of Regents Policy states that an undocumented student cannot be admitted to the school over a legal resident should there be a space limitation.

Chester would not say whether the policy forced him to make the decision, but the Atlanta Journal Constitution, cited multiple sources, indicated it was. Chester said simply it was his decision - and a painful one at that. "It was my decision to make, and I had to do it," said Chester. "When I told the coaches they just were surprised, but they told to me do what I have to do. I don't want anyone to think that we went out on bad terms, and I love UGA, but I had to make this decision." Chester's status is unclear. His parents, who immigrated to the country decades ago, said he was born in the United States. But he apparently does not have the proper documentation.

The Board of Regents rule came about following an incident involving Jessica Colotl, a Kennesaw State student who sparked a national immigration debate after she was found to be in the country illegally following a traffic stop in May of 2010. She was attending the school and paying in-state tuition at the time. Colotl was jailed and nearly deported back to Mexico but was eventually allowed to return to school; she graduated last spring.

After the incident, the Georgia Board of Regents issued the following policy:

"A person who is not lawfully present in the United States shall not be eligible for admission to any University System institution which, for the two most recent academic years, did not admit all academically qualified applicants (except for cases in which applicants were rejected for non-academic reasons)."

Chester's family and the school will continue to work in hopes of allowing him to take the Georgia scholarship offer, according to the AJC story. In the meantime, Chester will re-open his recruitment. While Chester's story does not have an unhappy ending, it does reflect how some states are taking a harder stance against any undocumented individuals. Rather than work with him to see if Chester is a U.S. Citizen, the Georgia Board of Regents Policy unilaterally makes a decision that has a serious impact on the future of individuals caught up in this policy. It is policies like these that made the DREAM Act such an important piece of legislation because even if Chester was brought here illegally, he could still have a chance to pursue his passion of football at a university and get a solid education. Let us hope that Chester's situation works out for the best.

A ruling from U.S. District Judge Richard M. Gergel, has temporarily enjoined three provisions of South Carolina Act 69 and found a fourth provision likely to be overturned in future proceedings. The ruling makes South Carolina the sixth state—after Arizona, Indiana, Georgia, Utah, and Alabama—to see major parts of a punitive immigration law blocked in federal court.

Following its enactment last June, South Carolina Act 69 was challenged in court by both the federal government and a coalition of civil rights groups. In a 42-page opinion, Judge Gergel entered temporary injunctions against the following provisions, finding each to be preempted by federal immigration law:

Section 4, which makes it a state crime to transport or harbor undocumented immigrants, or for undocumented immigrants to allow themselves to be transported or harbored.
Section 5, which makes it a state crime to fail to carry an immigration registration document issued by the federal government.
Section 6, which requires police to try to determine the immigration status of any person under investigation or arrest whom the officer has “reasonable suspicion” to believe is in the country illegally, and which makes it a state crime to possess or attempt to use a fraudulent identification to establish lawful presence in the United States.

As Judge Gergel explained, while local lawmakers have every right to disagree with the federal government’s efforts to set priorities in the enforcement of federal immigration law, their opinion “does not entitle the State of South Carolina to adopt its own immigration policy to supplant the policy of the national government.”

Judge Gergel also found a fourth provision—the one making it a state crime to sell fraudulent identification to undocumented immigrants—to be preempted by federal law, but declined to issue a temporary injunction after finding the federal government would not face irreparable harm if the provision went into effect while legal proceedings continued.

“Once again, a federal judge has confirmed what has long been settled: that states cannot enact their own immigration policies or interfere with the U.S. government’s efforts to enforce federal immigration law,” said Benjamin Johnson, Executive Director of the American Immigration Council. With the U.S. Supreme Court now considering the Arizona law on appeal, it will be interesting to see if it has the effect to uphold the decisions made by federal judges in what they see as unconstitutional actions done by the states.

A recent New York Times article highlights the fine line between medical care for individuals that need it and the difficulties that come because of immigration status. The story talks about an illegal immigrant from Mexico living in New York City whose kidneys are failing. His siblings are donors, but the cost of the surgery requires the need for surgery. The man was a waiter in his early 30s, a husband and father of two, so well liked at the Manhattan restaurant where he had worked for a decade that everyone from the customers to the dishwasher was donating money to help his family.

When his younger brother volunteered to donate a kidney to restore him to normal life, they encountered a health care paradox: the government would pay for a lifetime of dialysis, costing $75,000 a year, but not for the $100,000 transplant that would make it unnecessary.

For nearly two years, the brothers and their supporters have been hunting for a way to make the transplant happen. Their journey has taken them through a maze of conflicting laws, private insurance conundrums and ethical quandaries, back to the national impasse between health care and immigration policies.

Doctors sought a transplant center that would take him. Hospitals in the city receive millions of taxpayer dollars to help offset care for illegal immigrants and other uninsured patients. But at one hospital, administrators apparently overruled surgeons willing to waive their fees. At another, he was told to come back when he had legal status or $200,000.

A last resort is a return to Mexico, where the operation costs about $40,000. But to pay off the necessary loans, the and his brother, a deli worker, would have to sneak back in through the desert. If they failed, they would be cut off from their children in Brooklyn, who are United States citizens.

Bellevue performs no transplants but, as a trauma center, often supplies organs harvested, with family consent, from illegal immigrants fatally injured at work.

“Here’s the paradox: he could donate, but he can’t receive,” Dr. Manheimer said, calling the imbalance troubling. Organ registries do not record illegal status, but a study estimated that over a 20-year period noncitizens donated 2.5 percent of organs and received fewer than 1 percent.

To those focusing on immigration enforcement, however, the inequity runs the other way. “They should not get any benefit from breaking the law, especially something as expensive as organ transplants or dialysis,” said Representative Dana T. Rohrabacher, Republican of California, who contends that care for illegal immigrants is bankrupting American health care and has sought to require that emergency rooms report stabilized patients for deportation unless they prove citizenship or legal residence.

“If they’re dead, I don’t have an objection to their organs being used,” Mr. Rohrabacher added. “If they’re alive, they shouldn’t be here no matter what.”

To Ruth Faden, the director of the Johns Hopkins Berman Institute of Bioethics, the brothers’ case, like the transplant statistics, illustrates how quickly firm principles on both sides unravel in practice. “We tie ourselves up in knots,” she said, “because we’ve accepted as a country and in international human rights law that if someone shows up in extremis in your emergency room, the nurses and doctors and technicians are morally obligated, and legally obligated, to provide that life-saving care.”

How to begin refusing care, she added, becomes a dilemma for “real people in real time.”

This dilemma shows just how personal and difficult it is where the line in providing health care for those in need gets mired by the legal situations a person is in. Balancing the humanitarian side of medicine with the rule of law has become a focal point in a discussion where those that want reform on the immigration enforcement side appear unfeeling towards the plight of illegal immigrants who's suffering have an impact on U.S. citizen children. The other side is that those who appear soft on immigration enforcement minimize the other concerns regarding the costs that come with trying to increase the enforcement and how it is a drain of taxpayer resources.

Continue reading "For Illegal Immigrant, Line Is Drawn at Transplant" »

U.S. citizens have been illegally detained throughout Los Angeles County as a result of the Secure Communities immigration enforcement program, a coalition of civil and immigrant rights groups said Wednesday.

The American Civil Liberties Union and others identified four U.S. citizens detained through the fingerprint-sharing program in the last few months, including three identified in November.

"Native-born American citizens are being illegally detained by the Secure Communities program right here in L.A. County," Rep. Judy Chu (D-Monterey Park) said in a statement. "This is unacceptable."

The four citizens were initially detained after arrests for such minor things as shoplifting but were kept in custody for additional days because of requests made by immigration authorities. Under the Secure Communities program, which began in 2008, fingerprints collected by state and local police are shared with immigration authorities to identify and deport tens of thousands of people each year. The program was initially touted as a way to target serious convicts for deportation but has come under fire because a large percentage of immigrants caught up in the program were never convicted of a crime or are low-level offenders. There is also growing evidence that the program ensnares U.S. citizens. This a cause of concern given the program's original intentions.

In an interview Wednesday, Immigration and Customs Enforcement Director John Morton said cases of detained citizens are highly unusual. "We have absolutely no intention of detaining U.S. citizens," he said. "We have no authority to do so and it is not our policy." The agency will soon issue a revised form for people on immigration holds before they are transferred to ICE custody, he said. The form will provide detainees with phone numbers to call to raise concerns about a hold and will make it clear that such holds are only valid for 48 hours, he said. However, aside from issuing a revised form, there was no mention of any compensation for those who were unlawfully detained.

Concerns about Secure Communities led Mayor Antonio Villaraigosa earlier this month to write to Gov. Jerry Brown asking him to suspend the state's participation. "Individuals who pose no discernible threat to public safety are held in our local jails at the taxpayers' expense, with minimal to no reimbursement from ICE," Villaraigosa wrote.

Although the exact number of U.S. citizens detained on immigration holds is not known, a study published earlier this year by researchers at UC Berkeley found that citizens made up 1.6% of Secure Communities cases analyzed. In a study published in September, a political science professor at Northwestern University identified more than 160 U.S. citizens detained or deported by immigration officials in recent years.

The ACLU and other groups called on local officials to revise policies for cooperating with immigration hold requests. Santa Clara County and Illinois' Cook County have implemented policies limiting local cooperation with immigration holds depending on a person's criminal history.

It comes as no surprise that the Secure Communities program would have this affect on U.S. citizens. Because of the nature of local law enforcement, the UC Berkeley study only confirms what many feared would be a problem when the program was first instituted. However, with no recourse or remedy for this harm done to U.S. citizens, changes must be addressed by our legislatures to bring about the changes necessary so that fewer to no illegal detentions will happen with the program.

The Supreme Court on Monday agreed to decide whether Arizona may impose tough anti-immigration measures. Among them, in a law enacted last year, is a requirement that the police there question people they stop about their immigration status.

The Obama administration challenged parts of the law in court, saying that it could not be reconciled with federal immigration laws and policies under the Supremacy Clause. The United States Court of Appeals for the Ninth Circuit, in San Francisco, blocked enforcement of parts of the law in April.

The administration challenged four provisions. The most prominent was a requirement that state law enforcement officials determine the immigration status of anyone they stop or arrest if officials have reason to believe that the individual might be an illegal immigrant. The provision also requires that the immigration status of people who are arrested be determined before they are released.

The third challenged provision makes it a crime for illegal immigrants to work or try find work. Federal law subjects businesses that hire illegal workers to criminal punishment but imposes only civil penalties on the workers themselves.

The Arizona law also allows the police to arrest people without warrants if they have probable cause to believe that suspects have done things that would make them deportable under federal law.

The Ninth Circuit blocked all four provisions, basing its rationale on the fact that the Constitution gives Congress the power “to establish an uniform rule of naturalization.”

Mr. Verrilli told the justices that the Arizona law upsets a delicate balance that includes “law enforcement priorities, foreign-relations considerations and humanitarian concerns.”

In urging the court to hear the case, Arizona v. United States, No. 11-182, Paul D. Clement, representing Arizona, said the state law did not conflict with but, rather, complemented federal policies. The Ninth Circuit’s decision, Mr. Clement told the justices, had “completely foreclosed Arizona’s effort to address the disproportionate impact of unlawful immigration in a state with a 370-mile border with Mexico.” If this argument is persuasive to the Justices on the bench, it would force the Federal government to take a more proactive stance on immigration in making the reforms it envisions before other States follow with their own bills being upheld. A decision in Arizona's favor would take immigration out of the sole auspices of the Federal government. Such a consequence would have far reaching effects for aliens when deciding where to live and how to pursue their livelihood.

With the ongoing struggle between States and the Federal government in figuring out how to handle these immigration issues, the Supreme Court will now have a chance to decide whether immigration law remains the province of Federal government or whether State efforts to handle its own issues is constitutional.

Today we bring an article posted on NPR from their series titled "In Limbo". The series of articles focuses on those who are between being legal and being illegal. This article is about Dr. Alfredo Quiñones-Hinojosa. Dr. Quiñones-Hinojosagrew up in the small village of Palaco, Mexico. As a bright young man, he wanted to become a teacher. But he had to overcome many obstacles first, including hunger. "I am not talking about hungry for success; I was literally hungry for food. My stomach was empty," he says.

Dr. Quiñones- Hinojosa was determined to put food on the table for his family, so he did the only thing he could possibly think of: he literally jumped over a fence between his native Mexico and the United States and became a farm worker in southern California. He started by picking tomatoes, corn and broccoli. Later, he operated dangerous machinery in the fields. But things changed for him after a conversation with his cousin. "The critical portion that got me out of the fields was my own cousin telling me that I was going to spend the rest of my life working as a migrant farm worker," Dr. Quiñones- Hinojosa says.

He could not imagine that life. He left the fields and headed north. To pay for community college, he shoveled sulfur and scraped fish lard from tankers — an excruciating job that almost cost him his life. His journey then took him to University of California, Berkeley, and later Harvard Medical School. After 10 years, since first jumping over that fence into America, he became a U.S. citizen. Now, Dr. Alfredo Quiñones- Hinojosa is a respected brain surgeon who directs the Brain Tumor Program at Johns Hopkins Bayview Hospital. He says more needs to be done to help those who can follow in his footsteps. "Among people who come to the United States today — whether they come from privileged backgrounds or humble backgrounds — is our next Einstein, is our next Nobel laureate, but we just have failed to identify," he says.

The American dream has always been the chance at an opportunity for a better life. Regardless of the hardships he faced, Dr. Quiñones- Hinojosa worked hard at making his situation work so that he could achieve his dream. While the topic of immigration reform remains fresh in the mind of Americans with election season coming up, the story of those who have been stuck in between should also remind us that there is more to benefit by making changes to our system that bring people like Dr. Quiñones- Hinojosa here. For the rest of the week, NPR will continue to publish stories similar to this one to help put a new face on the immigration reform issue we still face.

Today, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act (HR 3012), legislation introduced several months ago by Representative Jason Chaffetz (R-UT). The bill eliminates per-country caps on employment-based green card numbers and increases the per-country limit on family-based green cards from 7 percent to 15 percent. If enacted, the bill will reduce the green card wait times for employment-based immigrants from high-volume user countries, such as India and China.

Though the bill has been passed by the House of Representatives, it is not yet law and must still pass the U.S. Senate and be signed into law by the President. We hope this will become a reality soon. We will keep our readers posted.

There is a movement going on right now on YouTube. The Define American movement has launched a social media campaign on YouTube to open up the dialogue on immigration here in the U.S. and how we can reform the immigration system. Jose Antonio Vargas, the journalist famous for outing himself as an illegal U.S. immigrant in The New York Times, and his campaign encourages Americans all across the world to share their personal stories about “what it means to be an American” and the effects of the immigration system on their lives. Users can share their story via text, audio or in the form of a YouTube video.

The campaign follows the same formula that turned the It Gets Better campaign into a worldwide phenomenon. The goal, says Vargas and Define American co-founder Jake Brewer, is to open an honest dialogue across the country about immigration and immigration laws’ effects on families and communities.

“Only the Internet and only social media is vast enough to make room for an actual dialogue and an actual conversation,” Vargas tells Mashable.

The campaign kicks off with the support of some big names and a few powerful stories. Stephen Colbert, Sen. Robert Menendez (D-NJ), Palm Pilot inventor Jeff Hawkins, Twilight: New Moon director Chris Weitz and Craigslist founder Craig Newmark are just some of the people who have recorded videos for the Define American campaign.

There are also some touching stories that don’t come from household names, though. For example, one English class at Northwest Yeshiva High School in Seattle recorded a video discussing what they think it means to be American. One such story from a student said he defines American as "One who wishes to do as they please and seizes the opportunity to go forth," while another student defined American as "Someone who lives in America that believes in the freedom and rights laid out in the U.S. Constitution." The English teacher defines American as "Everyone" because the American experiment encompasses everything come here and live here for.

“We’ve called it a new conversation about immigration,” explains Brewer. “The ultimate success to us is people talking to talk openly, despite political or divided lines.”

As a career journalist, Vargas has a slightly different view on the campaign. “We are in the golden age of storytelling,” he claims. “We don’t have to rely on journalists to write the stories. Every day people are writing their own stories.”

Vargas made headlines in June when he wrote a lengthy piece describing his life as an undocumented immigrant. The article, which focuses on his struggle to fit in and stay in the United States, sparked a wave of interest in his story. That wave helped Define American acquire more than 100,000 signatures on a petition

However, Vargas says that his personal story isn’t enough to fix the problems he sees with the immigration system. Instead, he’s hoping that a flood of videos (the goal is 500 in the next week) and the social media conversation that will ensue will inspire people to tell their immigration stories.

“Never underestimate the power of a story,” Vargas says. “I’m just one story. We need to hear more stories.” As an immigration practice, we hear such stories every day in our office, whether it is pursuing education, getting married, or finding a job here. Each client has their own story that speaks to what it means to be American. So fellow blog followers, how do you define American? What does it mean to you? If you wish to share your own definition of what American is, you can follow the campaign and post your own story at Define American's website.

Today, the House Judiciary Committee held a markup and H.R. 3012 was reported favorably out of committee by a voice vote. An amendment from Rep. Lofgren (D-CA) that would make adjustments to the three year phase-in period was accepted. H.R. 3012 must next be scheduled for House floor debate which may occur in the next few weeks. We will update as soon as more information becomes available.

H.R. 3012, the Fairness for High-Skilled Immigrants Act, introduced on September 22, 2011 by Rep. Chaffetz (R-UT), eliminates the employment-based per-country cap entirely by fiscal year 2013 and raises the family-sponsored per-country cap from 7% to 15%. We will keep you posted!!!

The 11th Circuit Court of Appeals in Atlanta ruled that Alabama cannot prosecute illegal immigrants for not carrying registration documents with them at all times or require schools to check the immigration status of all students.

But the court said Alabama, among other things, can require police officers to verify the immigration status of anyone they lawfully stop if they suspect they are in the country illegally. Illegal immigrants will also be prohibited from obtaining a license to drive, get a vehicle or open a business.

Alabama's law, passed by the legislature this summer, would allow state and local officials to check the immigration status of public school students and to detain suspected undocumented immigrants without bond. It would make it a crime for immigrants who lack proper documents to conduct business with the state for things such as driver's licenses.

Among the provisions temporarily blocked from being enforced are:

-- One requiring state officials to check the immigration status of students in public schools;

-- One making "willful failure to complete or carry an alien registration card" a misdemeanor for immigrants;

But the state will be allowed to enforce these contested sections:

-- One requiring that police during "lawful" stops or arrests "attempt to determine the immigration status of a person who they suspect is an unauthorized alien of this country.

The order issued shortly before noon by the Atlanta-based appeals court followed requests by the U.S. Justice Department and group of 36 plaintiffs to stay the law pending an appeal of an earlier federal court ruling that left much of it in place.

On Sunday, October 9th, 2011 Governor Jerry Brown signed into law AB 1236, the Employment Acceleration Act authored by Assemblymember Paul Fong (D-Cupertino). The bill ensures that it prohibits the state, cities or counties from requiring employers to use E-Verify, an electronic employment verification system that uses employees’ social security numbers to determine work eligibility. Exceptions are made, however, for city or county workers, or if E-verify is a requirement for particular employers under federal or as a condition for employers receiving federal funds.

While supporters of mandatory E-Verify claim the system will magically open up millions of jobs to American workers, reports find that the program would actually cost California’s small businesses (which make up 99% of employers in the state) more than $312 million per year and potentially put 90,000 U.S. citizen and legal state workers out of a job. Nationally, mandatory E-Verify would cost small businesses $2.6 billion a year, according to Bloomberg News Service, and cost federal contractors $10 billion to implement. According to Assemblyman Paul Fong, AB 1236’s sponsor:

“This bill protects our California workers and businesses. The mandated use of E-Verify would impose a major financial burden on businesses, especially small businesses. In addition, businesses will suffer from delayed hiring and the cost of mistaken identities. In this tough economy, we need to help businesses and grow and provide jobs, not set up barriers that cost jobs.”

Those pushing E-Verify say it identifies workers who do not have authorization to work in the US. But because the social security files are error-ridden, E-verify instead kills jobs, slaps burdens on small businesses, and hurts taxpayers.

According to government data, E-Verify correctly detects unauthorized workers only about half the time. Meanwhile, false positives abound. Consider the testimony of a U.S. citizen and former U.S. Navy captain (with 34 years of service) at a town hall meeting in Ashtabula, OH, a few years back. E-Verify flagged him as not eligible for employment -- and even though his wife is an attorney, it took them two months to clear things up.

Indeed, final error rates in a report commissioned by the US Government suggest that up to 90,000 US citizens and authorized immigrants in California could eventually lose their jobs -- more than the entire population of Santa Barbara, California. Nationally, the figures add up to 770,000 US workers out of work, hardly the right recipe for our economic problems.

AB 1236 ensures that for at least the State of California, our small businesses and agricultural industry do not carry the burden of the expenses that come with the E-Verify program.

Illegal immigrants can now apply for state-financed scholarships and aid at state universities after Gov. Jerry Brown announced last Saturday that he had signed the second half of a legislative package focused on such students.

The bill is the second half of the California Dream Act. Mr. Brown signed the first half of the package back in July, which approved private scholarships and loans for students who are illegal immigrants.

Under current law, illegal immigrant students who have graduated from a California high school and can prove they are on the path to legalize their immigration status can pay resident tuition rates. The bill would allow these students to also apply for state aid.

The contentious second half of the package requires that immigrant students meet the same requirements as all other students applying for financial aid at state universities but specifies that they qualify for financial aid only after all the other legal residents have applied.

Critics say it undermines immigration laws and encourages illegal immigration.

The bill is different from the federal Dream Act, which includes a path to citizenship for the children of illegal immigrants. Despite this difference, it is a step in the right direction to help students continue their education so they can become beneficial members of society.

Alabama has prevailed where four other states which enacted anti-immigrant state laws, including Arizona, did not. Today Alabama law enforcement officers will have the right to question and detain anyone they suspect may be an undocumented immigrant, Gov. Robert Bentley said, after a federal judge upheld key provisions of the state’s immigration law on Wednesday.

Yesterday U.S. District Judge Sharon Lovelace Blackburn returned her ruling for the Department of Justice’s challenge to Alabama’s recently passed HB 56, widely recognized as the harshest state immigration law on the books. Blackburn blocked several parts of the law, but let stand provisions that no other judge considering these laws so far has, including provisions that give law enforcement officers unprecedented power to act as immigration agents.

Mary Bauer of the Southern Poverty Law Center’s legal director, said Wednesday in a statement. “Today is a dark day for Alabama. This decision not only places Alabama on the wrong side of history but also demonstrates that the rights and freedoms so fundamental to our nation and its history can be manipulated by hate and political agendas - at least for a time.”

Blackburn blocked a provision that would have made it illegal for undocumented immigrants and other non-citizens from enrolling in Alabama public colleges and universities from going into effect. She also enjoined the enforcement of provision targeting day laborers’ rights to look for work and be picked up for a job, as well as a provision that would have criminalized undocumented immigrants’ attempts to look for and get a job. Blackburn also blocked a portion of the law that would have made it illegal to give a ride to or harbor a person who’s undocumented.

However, she was unconvinced by arguments from the Department of Justice, faith groups and a civil rights coalition that other severe parts of the law ought to be blocked as well. Blackburn refused to enjoin provisions that equip law enforcement agents with the power to question and detain anyone who they have “reasonable suspicion” to believe may be undocumented. Immigrant and civil rights groups have argued that this provision all but legalizes racial profiling, because it’s impossible to determine a person’s immigration status on sight alone, and any inference would rely on profiling.

“This is precisely contrary to the decision that courts that have looked at similar provision in Arizona and Georgia enjoined,” Linton Joaquin, general counsel for the National Immigration Law Center told Colorlines. NILC is one of the plaintiffs in a coalition of civil rights groups’ legal challenge to the law. “It’s a classic example of an area for states not to be legislating in.”

Blackburn also let stand a provision that demands that K-12 schools track the immigration statuses of their students, and let stand a provision that makes any business contract that an undocumented immigrant enters into unenforceable. Even though the Supreme Court has upheld elementary and secondary education as a constitutional right, undocumented immigrant parents who fear being tracked by the government will likely be too fearful to send their kids to school, said Kevin Johnson, a professor of immigration law at the University of California, Davis.

HB 56 and these provisions in particular are an attempt to frighten immigrant communities and undercut their basic constitutional rights, Johnson said.

“Taking away contract rights is just another effort to strip the few, if any, rights that undocumented immigrants have from them.”

The legal strategy to fight Alabama’s HB 56 is very different from the moral arguments against the law, though.

Continue reading "Federal Judge Rules on Alabama HB 56" »

Two bills in Congress would gut the H-2A visa program, replacing it with one more open to abuses.

Few would dispute that the existing system is broken. Its failure can be seen most clearly on farms: An estimated 70% of all agricultural workers in the U.S. are here illegally. However, without undocumented workers, crops would rot in the fields. Skeptics need only consider the plight of growers in Alabama and Georgia, who say that new anti-immigrant state laws have put their harvests at risk. Latino migrant workers have fled those states because they fear being deported, and few documented workers or U.S. citizens have applied for the jobs even though they pay above minimum wage.

It is also not difficult to understand why farmers are reluctant to use the existing guest-worker program that allows them to apply for H-2A visas for temporary foreign workers. Growers say the program is expensive and cumbersome, and requires them to predict harvest schedules and labor needs a year in advance. Such requirements make it difficult for them to determine if they have the need for such laborers or not.

This month, Congress stepped in with two proposals to address the situation, but both have several flaws. Reps. Lamar Smith (R-Texas) and Dan Lungren (R-Gold River) have called for gutting the H-2A visa program and replacing it with one that would roll back existing labor protections for U.S. and foreign workers and make it harder to detect abuses.

Rep. Smith's bill would allow up to 500,000 temporary guest workers into the country annually. But it would eliminate the current requirement that guest workers be paid at the same rate as the average farmworker, and require instead that they be paid the average of what the lowest third of agricultural workers earn. Some say the effect would be to lower the average wage for all workers, which clearly favors Growers at the expense of laborers already struggling to make a living.

Perhaps the most troubling part of the bill is a provision that wage disputes be subject to binding arbitration. Smith says it's intended to reduce frivolous litigation. But forcing temporary workers, who earn little more than the minimum wage, to pay for arbitration while barring them from recouping those costs if they win would essentially make it too expensive to fight abuses. Currently, workers can sue for back wages and punitive damages. This serves as a disincentive to withholding wages.

Lungren's proposal would require guest workers to pay for their own housing and transportation costs. Growers would no longer have to pay workers the prevailing wage, but only the federal minimum wage. And workers would have an amount equivalent to the Social Security tax deducted from their paychecks — money they could recover only when they returned home and demonstrated to U.S. consular officials that they had complied with the terms of their visas. The one strength of Lungren's bill is that workers would not be tied to one employer but could move from farm to farm.

Both bills would shift oversight of the guest-worker program from the Labor Department to the Department of Agriculture, which has no experience investigating workers' financial claims. This would cause the Department of Agriculture to require more resources to handle such claims if the new bill's program were to be abused by employers.

Both bills are not likely to succeed in committee because of opposition from growers, a crucial GOP constituency with deep pockets. Growers don't want to see their labor supply threatened. If Washington really wants to help growers and treat workers fairly, it ought to revive the Agriculture Job Opportunities, Benefits and Security Act. That bill would allow farmworkers who are already here to legalize their status if they agree to pay a fine and continue to work in the fields for at least three years.

So what is a U visa? The U visa is designed for noncitizen crime victims who (1) have suffered substantial physical or mental abuse from criminal activity; (2) have information regarding the criminal activity; (3) assist government officials in the investigation or prosecution of such criminal activity; and (4) the criminal activity violated US law or occurred in the United States (including Indian country and military installations) or the territories and possessions of the United States.

The U-visa program got off to a sluggish start, with advocates complaining that immigration officials were slow to approve applications. It grew quickly, however, with the help of outreach efforts, including local visits by officials with U.S. Citizenship and Immigration Services.

But with increasing awareness has come increasing demand. In the three years that the program has been in place, more than 30,000 applications have been filed and more than 25,600 have been approved. Soon after a visit to Los Angeles this month to promote the program, immigration officials announced that all 10,000 available U-visas had been issued for the fiscal year, which ends Friday.

Since last year, U.S. Sen. Robert Menendez (D-N.J.) and Reps. George Miller (D-Martinez) and Judy Chu (D-Monterey Park) have pushed the Power Act, which would expand U-visas to include victims of labor exploitation and increase the number of such visas to 30,000 annually. But the legislation has gained little traction in Congress. Others hope an increase will be included in separate legislation to benefit crime victims.

Proponents of immigration restriction, such as the Federation for American Immigration Reform (FAIR) and the Center for Immigration Studies, said visas for crime victims should be further limited to the most extreme cases. Email us for more info about this visa.

Read more here

U.S. Citizenship and Immigration Services (USCIS) is implementing the first phase in a series of proposed enhancements to the EB-5 program. As of today, Applicants will be able to communicate directly with USCIS adjudicators via email in an effort to streamline the process and quickly raise and resolve issues and questions that arise during the adjudication process.

The EB-5 Program, also known as the Immigrant Investor Program, is designed to stimulate the U.S. economy through job creation and capital investment by foreign investors. Form I-924 is the Application for Regional Center under the Immigrant Investor Pilot Program. Below are some questions and answers regarding the new proposed enhancements.

Q1. What are the goals of direct email communication between USCIS and Form I-924 Applicants?
A1. Direct email communication is a customer-service tool to enhance communication between USCIS and Applicants. Applicants may email USCIS questions regarding pending applications, including questions related to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) issued by USCIS. USCIS may email Applicants to informally ask for clarification on certain issues to facilitate review, understanding and adjudication of the application. USCIS may also send a courtesy copy of an RFE or NOID to the email address listed on the the form and, if applicable, to the email address listed on the Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, associated with the application.

Q2. How will the direct email communication process work?
A2. Applicants with pending applications will be sent an email with a unique identifier and a specific email address to use when corresponding with USCIS. Once assigned an email address, Applicants may use this contact information to send and respond to emails to discuss—either informally or through the RFE or NOID process—issues raised in their regional center applications. An Applicant will receive an email with instructions shortly after his or her Form I-924 application is accepted by USCIS for filing.

The direct email communication process is only available to entities that have a pending Form I-924 application. It is not available to regional center promoters who have pending regional center applications that were filed prior to the implementation of Form I-924 on Nov. 23, 2010.

Q3. Will USCIS use email to issue RFEs and NOIDs, and can Form I-924 Applicants use email to provide evidence in response to such notices?
A3. USCIS may email a courtesy copy of an RFE or NOID to Form I-924 applicants and, if applicable, to attorneys or representatives of record listed on the Form G-28 associated with the application. However, Applicants may not formally respond to an RFE or a NOID via email.

If an RFE or a NOID is issued in regard to a Form I-924 application, USCIS will follow standard procedures and will mail a hard copy of the RFE or NOID to the address listed on the Form I-924 or, if applicable, to the attorney or accredited representative listed on a valid Form G-28.

USCIS cannot accept an Applicant’s formal response to a RFE or NOID via email. Once an applicant is ready to submit the formal response to an RFE or NOID to USCIS, he or she should follow the response submission instructions provided on the RFE or NOID.

Q4. How will USCIS ensure that the attorney or accredited representative listed on the Form G-28 is included in email communication between USCIS and the Applicant?
A4. USCIS can only communicate via email with counsel representing a Form I-924 Applicant if the associated Form G-28 includes a valid email address for the representative. If a valid email address is not provided in the Form G-28, the attorney or accredited representative should provide USCIS with an updated Form G-28 that includes a valid email address. This updated Form G-28 should be sent as a PDF to USCIS’s general EB-5 mailbox at uscis.immigrantinvestorprogram@dhs.gov. An original, fully executed Form G-28 will also need to be mailed to USCIS for inclusion in the Form I-924 application.

Q5. Can the direct email communication process be used to discuss issues regarding individual Form I-526 and Form I-829 petitions or other EB-5 issues not directly related to a pending Form I-924 application?
A5. No. The direct email communication process is solely for discussing issues regarding pending I-924 applications. It is not a forum for general policy and legal questions about adjudicative procedures or decisions, or for questions relating to Forms I-526, I-829, or I-290B. USCIS will not respond to emails received concerning issues unrelated to a currently pending I-924 application.

If you have any questions regarding the EB-5 investor visa program, our office will be more than happy to discuss them with you.

Client walked into the office and demanded info about the new Obama amnesty."I need to apply as soon as possible and hope you can help me." Where did you hear about amnesty, I asked. A local paralegal told me about it and told me to put a deposit down and the price might go up.

Ever since the 8-18 announcement, similar inquiries come in and I fear this is not the end of it. So what can prospects do, check and double check.

The Obama Administration announcement is NOT an amnesty, it is NOT about granting legal status, and is NOT something that you can sign-up for!

The Obama Administration made very clear that the announcements do NOT provide any way to “apply” for a work permit or “EAD” nor is there a new way to apply to remain in the United States. The change announced is not about giving people work permits or legal status. The announcement applies ONLY to cases already in the system, ensuring that low priority cases do not continue to clog up an already overburdened immigration court system.

Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on the Secretary Napolitano’s August 18, 2011 announcement! Anyone who says that is not to be trusted!

There is NO “safe” way to turn yourself in to immigration and there is NO guarantee that your case will be considered “low priority.” ANY person who comes into contact with immigration authorities may be arrested, detained or even removed.

Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell
your about your rights. Do NOT seek legal advice from a notario or immigration consultant.

What the new policy IS:

The Obama Administration announced the creation of a high-level working group made up of Department of Homeland Security and Department of Justice officials who are to do the following:

 Review all cases already pending before the immigration courts. Those that are
considered “low priority” may be administratively closed. Those that are considered a “high priority” will be prosecuted more aggressively.

 There are no rules or guarantees that a particular type of case will be considered a “low” or “high” priority. Recent guidelines are helpful, but no one can tell you if your case is a low priority--only immigration authorities will make that decision.

 In the future, immigration authorities will review the cases people before they are
placed in removal proceedings. Those that are “low priority” may not be referred
to the immigration court.

 Create department-wide guidance to help USCIS, CBP, and ICE agents and officers make better, more consistent decisions about who to place in removal proceedings.

 Issue guidance on providing discretion in compelling cases for persons who
already have a final order of removal.

In other words, the August 18th announcement was preliminary and nothing has been implemented yet. Any details about how the review process will work, what cases will be considered low priority or how to have a particular case considered have not been decided.

The best course of action is to consult an immigration lawyer or accredited representative, not to take action because a friend, neighbor or coworker encourages you to act.