Visa Lawyer Blog

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It is tempting to imagine that the Department of Homeland Security (DHS) has adopted a kinder and more just approach to its immigration enforcement mission. After all, the department announced in recent days that it will henceforth focus its enforcement efforts on “high priority” immigration cases; that is, those cases involving serious criminals and individuals who are a threat to public safety or national security. While this is a welcome, long overdue announcement, we must keep in mind that there are still DHS enforcement policies in place that are in dire need of repair.

For instance, according to a story in the New York Times earlier this month, U.S. immigration agents stationed along the U.S.-Mexico border have taken to detaining and sometimes arresting unauthorized immigrants as they try to leave the United States and return to Mexico. In other words, after pouring billions of dollars into immigration enforcement programs to make the United States as unwelcoming as possible to unauthorized immigrants, the Obama Administration has decided to make their departure just as difficult and to torment them as they leave. This policy is as nonsensical as it is cruel.

To be fair, the Administration is snaring unauthorized immigrants as it attempts to do what previous administrations have not: stem the flow of drug money and guns from the United States to Mexico, into the waiting arms of drug cartel leaders. But this neither explains nor justifies why immigration agents are arresting immigrants who have no connections to drug money or gun smuggling—and who are leaving the country. As the Times notes, even some vehemently anti-immigrant groups oppose this practice on the grounds that it slows, and perhaps even discourages, the departure of unauthorized immigrants from the country. In a surreal moment last year, the president of the nativist organization Americans for Legal Immigration issued a statement saying that:

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A federal judge temporarily blocked enforcement of Alabama’s new law cracking down on illegal immigration, ruling Monday that she needed more time to decide whether the law opposed by the Obama administration, church leaders and immigrant-rights groups is constitutional.

The brief order by U.S. District Judge Sharon L. Blackburn means the law — which opponents and supporters alike have called the toughest in the nation — won’t take effect as scheduled on Thursday. The ruling was cheered both by Republican leaders who were pleased the judge didn’t gut the law and by opponents who compare it to old Jim Crow-era statutes against racial integration.

Blackburn didn’t address whether the law is constitutional, and she could still let all or parts of the law take effect later. Instead, she said she needed more time to consider lawsuits filed by the Justice Department, private groups and individuals that claim the state is overstepping its bounds.

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As many of you may know the DOL has suspended issuing prevailing wage determinations for several weeks now. Such determinations are essential to start any PERM case.

On Wednesday, August 24, 2011, AILA received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, AILA has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

The following are a few questions that were brought up to the DOL in light of the recent delays, see what they responded:

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Reflecting a change in deportation policy, the Obama administration has dropped its attempt to remove a member of a same-sex California couple who overstayed his visa.

The announcement in a case pending before an immigration judge in San Francisco represents the administration’s decision to put a greater focus on deporting criminals and less emphasis on removing illegal immigrants who are otherwise law-abiding and have family ties in the United States.

Families, the administration has concluded, include gay and lesbian couples.

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Three alleged members of an international alien smuggling scheme were charged Tuesday with smuggling hundreds of aliens from China into the United States. The charges stem from an investigation conducted by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI).

HSI agents arrested Hak Tung Lam, 44, of Flushing, N.Y., Wen Wo Lam, 43, of Staten Island, N.Y., and Ying Yang, 30, of Flushing, for allegedly participating in smuggling more than 450 aliens into the United States. Hak Tung Lam, an immigration attorney who practiced in Manhattan, Wen Wo Lam, and Ying Yang allegedly served as legal advisors to alien smugglers by recommending ports of entry, advising on methods of avoiding detection, filing false immigration documents, and obtaining the release of detained aliens through fraud.

“As an officer of the court, Hak Tung Lam swore to uphold the laws and constitution of the United States. Instead, he used his training and education to allegedly perpetrate one of the most wide-ranging criminal fraud schemes that this office has ever investigated solely for his personal financial gain,” said James T. Hayes, Jr., special agent in charge of HSI in New York. “HSI will continue to pursue those individuals who seek to take advantage of this country’s legal immigration system for their own benefit and at the expense of others.”

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Attorney Ekaterina Powell from our office wrote this great article on maintaining H-1B compliance procedures by employers.

If you are an H-1B employer, you need to be familiar with the H-1B regulations and Labor Condition Application (LCA) compliance procedures. Each employer petitioning for an H-1B worker has to file a Labor Condition Application, containing a number of employer’s attestations, which each employer has to abide by. The penalties for LCA violations are severe, ranging from payment of back wages and civil money penalties to debarment from the H-1B program.

Many employers filing H-1B petitions are unfamiliar with the compliance measures that can, unfortunately, lead to employer’s sanctions.

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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.

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Attorney Ekaterina Powell from our office has prepared this article on acquiring U.S. citizenship through parents where the individual is born abroad.

In certain situations, a person who was born abroad to a U.S. citizen parent and who has been living abroad for years may have acquired U.S. citizenship at birth without even knowing so. Sometimes, the clients have not even met their U.S. citizen parent/s.

Often times, we are asked a question on whether an adult person who was born abroad to a U.S. citizen mother or father can obtain U.S. citizenship.

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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.

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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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