Visa Lawyer Blog

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Last week, the Attorney General overruled the Board’s decisions in Matter of Lozada, and Matter of Assaad. The decision held that there is no Fifth Amendment right to counsel in immigration proceedings. Matter of Compean-Bangaly-J-E-C, 24 I&N, Dec. 710 (A.G. 2009).

When immigrants face possible deportation, they don’t have the right to a state-appointed attorney. Now, Attorney General Michael Mukasey says this means they also don’t have the right to a new hearing if the lawyer they hire turns out to be incompetent or a fraud. This decision could hurt thousands of immigrants seeking to stay in the U.S.

For 20 years, various courts have ruled that the clients of such a lawyer had a constitutional right to ask for a new trial with a new attorney. But the Justice Department has disagreed with that concept, and recently some courts upheld its view. The ruling does allow the Justice Department to use its discretion to grant new trials if an immigrant can show that his lawyer’s actions were “egregious,” and if the agency believes the immigrant has a valid claim to avoid deportation.

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As we anticipated, on January 8, 2009, USCIS updated its H-2B visa count page to announce that the cap has been reached for FY 2009. Thousands of employers in need of seasonal workers will once again need to search for alternatives.

The word “Cap” used in this posting refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification.

The H-2B visa is designated for temporary, non-agricultural workers and is issued for one year with two one-year extensions allowed. Sixty-six thousand visas are reserved for this category each year, with the stipulation that U.S. employers demonstrate that the need for the labor is temporary. It can be seasonal, tied to peak-load demands, or even a one-time occurrence. H-2B visas are a key staffing option for many industries including landscaping, seasonal hospitality, and seasonal construction, and are also critical at peak times in manufacturing, food packaging, and fisheries.

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The Senate and House of Representatives are back in Session today. This Congress is certainly promising on Immigration reform, but we are not so optimistic as to what will happen in practice.

U.S. Congressman Bennie Thompson, chairman of the Homeland Security Committee of the U.S. House of Representatives in Washington, was among the first to urge the incoming Obama Administration to place immigration reform on the list.

According to Dr. Jorge G. Castaneda, professor of Latin American and Caribbean studies at New York University in Manhattan, Immigration reform is the sort of complex and costly project that, as a rule, presidents accomplish only at the peak of their power –when their term begins,” he wrote in an Op-Ed in a national newspaper. “If Mr. Obama decides to postpone immigration reform until later, he runs the risk of no longer possessing the leverage to convince his party’s legislators to brace the furies of the extreme right wing.”

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According to the Dairy Herd Migrant or foreign labor is a must for the dairy industry and other parts of agriculture, and a reduction in the workforce could cost consumers considerably. Labor and immigration are tied together, and it includes both legal and illegal immigration, says David Anderson, AgriLife Extension economist in College Station, Texas.

The value of milk production is $28.7 billion and this part of the dairy industry alone provides 147,000 jobs nationwide. If the related industries are added in, it is a $55 billion industry with 363,000 jobs. If you had a foreign labor reduction of only 20 percent, you would lose 33,000 employees, $5.5 billion in sales and $1.5 billion in income, Anderson explains. Total elimination would be a lot higher, he adds. Illegal immigrants make up 50 percent of agriculture’s workers.

About 20 percent of the dairy owners said they see labor shortages and are increasing wages to attract workers. Wages are higher where competing jobs are located. There is a vacuum of available workers, in part caused by the failure to pass immigration reform and the movement of penalties from civil to criminal.

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When the Illegal Immigration Reform and Immigrant Responsibility Act was passed by Congress in 1996, among its main goals was expelling and stiffening penalties against aliens who overstay visa allowances and improving security against illegal immigration on the borders and internally. While the law achieved some its objectives, it also spawned a population of immigrants, green-card holding “lawful permanent residents,” who could be more easily deported.

Key reason for this was a provision in the law that greatly expanded the list of crimes that qualified as “aggravated felonies” that would make aliens deportable. When the category of “aggravated felonies” was first added to immigration law in 1988, it encompassed only murder and trafficking in drugs or firearms. Those crimes along with a number of other violent and sex crimes remain as deportable offenses. But the 1996 law also added dozens of lesser offenses. These can include forgery, burglary, tax evasion, domestic abuse and any attempt to commit an aggravated felony. A number of crimes make aliens deportable if the sentence is a year or more, regardless of time served or whether the sentence was suspended. It even includes crimes that are misdemeanors in some states.

The legislation also reduced leeway for judges to consider providing relief. Issues such as immigration status, time lived in the U.S., existence of family who are citizens, ties to the community, or service to the U.S., including military, are not considered.

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I wanted to wish a wonderful New Year wishes to all our readers and friends. May the coming year bring all the best to you all. See you next year.

Jacob

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USCIS published a notice announcing the revision of its Direct Mail Program so that certain filings of Form N-400, Application for Naturalization, will now be filed at a designated lockbox facility instead of a USCIS Service Center.

During the first 30 days after this notice takes affect, USCIS will forward incorrectly addressed Form N-400s to the proper address, rather than reject it. USCIS will forward any improperly addressed Form N-400s covered by this notice as follows:

Any Form N-400 from non-Armed Forces applicants will be forwarded to either the Dallas or Phoenix lockbox facilities.

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Due to the economic downturn, I get many emails from current H1B visa holders that are interested in starting their own companies. They are either worried about loosing the current H1B job or are in the process of being laid off. It can be really difficult for start up and small companies to file for and get H-1B visas.

Last April many Immigration lawyers received very similar requests for evidence focusing on few very particular issues. USCIS were looking for small companies filing for H1B’s or for job shop employers. Truly, if people are being hired outside the U.S. Normally USCIS will want you to prove the following:

1. Employer is capable of paying wages;

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The Department of Homeland Security (DHS) published a final rule on December 19, 2008 that will subject U.S. permanent residents (“green card” holders) to the US-VISIT (United States Visitor and Immigrant Status Indicator Technology) travel screening requirements. The program, which started January 5, 2004, requires the fingerprinting and photographing of most nonimmigrant foreign nationals applying for admission to the U.S. The final rule now extends the provisions to include U.S. permanent residents. This rule takes effect on January 18, 2009.

US-VISIT is aimed at verifying the identity of nonimmigrants seeking to enter the United States. As part of the program, digital finger scans are used to verify that the individual seeking to enter is the same person to whom the visa or other travel documents were issued. It is also used to check for new information (arising after visa or other document issuance) regarding involvement in terrorism or crime.

While there are advantages in expanding US-VISIT to include green card holders, including reducing the incidence of document fraud and potentially enhancing national security, the privacy interests of permanent residents will likely be eroded. An anomaly is also created by excluding certain classes of nonimmigrants from undergoing additional security measures upon entry to the U.S., while at the same time requiring that lawful permanent residents undergo the process of additional scrutiny. As mentioned in the comments to the rule, permanent residents have already undergone background checks and otherwise been scrutinized. Many permanent residents have resided in the U.S. for many years for suspicion – without incident or reason. However, they will now undergo the additional screening to reenter the U.S. after foreign travel.

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Today is Christmas Eve, I wanted to wish all the best for those who celebrate. I wanted to reference an excellent article by Ali Noorani, Executive Director of the National Immigration Forum, a non-partisan, non-profit advocacy organization in Washington. His comments were featured today at the La Prensa San Diego Website.

Last week, Homeland Security Secretary Chertoff claimed credit for “reversing” illegal immigration, but the credit should more accurately fall to those in the Bush Administration who let the economy and our financial regulatory agencies collapse during the President’s tenure. As we have often said, the best way to slow immigration to the United States is to dry up all the pesky economic opportunity that has run rampant in this country for so long. The Bush Administration is well on its way to making sure there is no excess opportunity or economic security milling about. But we’re sure that President Bush, had he watched Secretary Chertoff’s press conference, would shout a hardy “Heck of a job, Cherty!”

True, massive investments in border barriers, increases in detention bed space, and a huge expansion in Homeland Security personnel have put more enforcement resources on display. However, to say that these resources have contributed significantly to a decrease in legal or illegal immigration – a phenomenon we have observed since the economy began slowing in 2001 – is like saying there is less rain because people buy umbrellas. Despite conspicuous and record-setting immigration raids, new strategies to streamline the deportation of immigrant workers with minimal judicial oversight, and continued bureaucratic barriers to legal immigration, the Chertoff claim to making significant progress in controlling legal or illegal immigration stretches the definition of causality.

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