Visa Lawyer Blog

The Obama Administration’s Immigration announcement is not an Amnesty program. The consumer advisory from AILA put out a warning stating that:

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 Nepolitano’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.

The Obama Administration announcement is not an amnesty, it is not about granting legal status, and it 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.

In the wake of protests on Department of Homeland Security (DHS) prosecutorial discretion for removal cases, DHS Secretary Janet Napolitano announced a new process for implementation of the June 17, 2011, prosecutorial discretion memorandum. The letter included a background two-pager.

From the background two- pager – “the new interagency process is designed to ensure that resources are focused on the Administration’s highest enforcement priorities. As part of this process, an interagency team of DHS and Department of Justice (DOJ) officers and attorneys, including representatives from throughout DHS and from the Executive Office for Immigration Review (EOIR) and the Office of Immigration Litigation at DOJ, will identify low-priority removal cases that should be considered for an exercise of discretion. This review will be conducted on a case-by-case basis and will consider cases that are at the various stages of enforcement proceedings, including charging, hearing, and after a final order of removal. The interagency working group will also issue guidance to prevent low priority cases from entering the system on a case-by-case basis. Resources that are saved as a result of this process will be used to accelerate the removal of high priority cases.”
The guidance from DHS is a good indication that the protests and the voice of the people is being heard. At a time when immigration enforcement has been highlighted by a wave of states enacting their own laws, DHS is showing that it is using its prosecutorial discretion to handle cases that warrant removal, including high profile cases involving convicted felons who are a threat to public safety. Although the letter stresses that it cannot make any categorical distinction for removal cases, such as those who might fall under the DREAM Act if it were passed, the director of DHS strongly believes in the Act and will continue to make efforts involving Congress to get it passed, including testifying before Congress. So even though DHS leadership stresses a need to enforce immigration laws, there is a feeling that reform is necessary so that our resources are being put in the right direction.

A program that is central to President Obama’s immigration enforcement strategy has drawn protests by Latino and immigrant organizations in six cities in the last two days, as those groups stepped up their confrontation with the administration over the fast pace of deportations.

In Los Angeles, about 200 immigrants and their supporters walked out of a stormy hearing Monday evening that was called by a task force advising the enforcement program, known as Secure Communities. Bearing signs that said “Stop Ripping Families Apart,” the protesters called for an end to the program, which they said had led to the deportation of victims who reported domestic violence to the police, and to parents of American citizen children.

On Tuesday in Chicago, several dozen protesters delivered thousands of petitions calling for an end to the program to the headquarters of Mr. Obama’s re-election campaign. Petitions were also delivered by small groups of protesters to Democratic Party offices in Miami, Atlanta, Houston and Charlotte, N.C.

About two dozen prominent immigrant advocacy organizations issued a report denouncing the program and calling on the administration to halt it.

Organizers said the protests were a response to an announcement on Aug. 5 by Immigration and Customs Enforcement, the federal agency that runs Secure Communities, that the program would continue to expand to meet its declared goal of covering the whole country by 2013. Clarifying doubts about whether states and cities could choose whether to participate, John Morton, the agency’s director, said that agreements with state and local officials were not required for the agency to proceed.

President Obama has made no headway in a divided Congress toward an immigration overhaul that would give legal status to millions of illegal immigrants. At the same time, in each of the last two years immigration authorities have deported nearly 400,000 people.

Under Secure Communities, fingerprints of anyone booked into jail by the state and local police are sent to the F.B.I. for criminal checks — long a routine practice — and also to the Department of Homeland Security, which records immigration violations. Immigration agents decide whether to detain noncitizens signaled by fingerprint matches.

The ferment on Tuesday exposed vastly differing views of the program between immigrant advocates and Obama administration officials. In an interview, Mr. Morton said the program was working effectively to carry out his agency’s focus on deporting immigrants convicted of serious crimes.

“It’s the law, and we think it is very good policy, to focus our resources on people who are here unlawfully and also committing crimes,” Mr. Morton said.

He said agency figures showed that about 90 percent of those deported under Secure Communities since it was started in 2008 were either convicted criminals or foreigners who had failed to obey a court order to leave the country or who had returned to the United States illegally after deportation.

Immigration officials pointed to the arrest in January in Los Angeles of a Mexican man on charges of driving with a suspended license. After a Secure Communities match, the police learned that he had been convicted of drug trafficking and burglary and deported six times. Another Mexican arrested in Los Angeles was found to have been convicted in the killing of a child in 1997.

Mr. Morton said he had created the advisory task force, which went to work in June, to recommend fixes that would lower the numbers of deportations of illegal immigrants who did not have criminal convictions.

Also on Tuesday, the American Immigration Lawyers Association published a report that cast light on how Secure Communities and other enforcement programs have stirred tensions in immigrant communities. The association, which includes 11,000 immigration lawyers, polled its members to see how many were handling cases of immigrants facing deportation after being stopped by local police officers for minor offenses, like traffic violations.

Gregory Chen, director of advocacy for the lawyers’ association, said his office was deluged with responses.

“Department of Homeland Security practices have ushered in a sea change in who is being deported, and our attorneys have literally been flooded with people coming in to their offices who have been picked up by local police for small time stuff,” Mr. Chen said. The report, which presents a sample of 127 cases from 24 states, was the “the tip of the iceberg,” he said.

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There is bipartisan interest in Congress in reforming high-skill immigration. New legislation is on its way, and here’s what to watch for. What bills have been introduced or are coming?
In the House, the most important Democratic initiative is from Zoe Lofgren (D-Calif.), whose district includes Silicon Valley. Her bill would make green cards available to students who earn advanced degrees in science, technology, engineering and mathematics — the so-called STEM fields. However, it isn’t expected to go anywhere.

The person to watch instead is Rep. Lamar Smith (R-Texas), who heads the House Judiciary Committee. Smith appears interested in some limited immigration changes expected in a bill from Rep. Jason Chaffetz (R-Utah). Chaffetz’s bill, which is due “soon,” is expected to call for elimination of the per-country limits on employment-based visas — as green cards are officially called.

The U.S. has a cap of 140,000 employment-based visas a year. Spouses and children of the workers are counted against that cap. The U.S. limits the number of green cards per country to no more than 7% of the total available visas. In India, where there is a big demand for green cards, the wait for one can be as long as 10 years. This is significant in terms of the availability of green cards to immigrants across the board.

If the per-country cap were eliminated, green card applicants who have been waiting the longest might see their expected waiting times reduced. But applicants from countries with relatively short wait times might find themselves waiting longer. Tech companies might support elimination of the per-country cap, since that would likely increase the availability of workers from China and India. Employers will take what they can get, but they might be hoping for something better out of the Senate.

Sen. Charles Schumer (D-N.Y.), who heads the Senate subcommittee on immigration, said this week that he intends to introduce legislation that, similar to Lofgren’s bill, will “staple” green cards to the diplomas of people who earn degrees in STEM fields. He is also promising reform of the H-1B visa process in his bill.

Overall outlook: If Schumer follows through and the House Judiciary Committee also produces legislation, a limited, targeted immigration reform bill could emerge. Both parties have strong reasons to please the tech industry.

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