Seattle Immigration Lawyer Blog

Today, Senators Robert Menendez (D-NJ) and Patrick Leahy (D-Vt) introduced the Comprehensive Immigration Reform Act of 2010 ("CIRA") (S. 3932), the first Senate proposal on immigration since 2007. The bill would put the millions of people already in the U.S. without status on a path to legal status. Certain targets would be required before those without status who come forward and register could become lawful permanent residents. Targets include things like reducing the backlogs for those immigrants in valid status or who have already been waiting for years but have been stuck in the quota. CIRA includes various enforcement and border security measures, mandates employers use E-Verify, increases penalties for illegal immigration, and makes important needed changes to the legal immigration system. CIRA adopts provisions from DREAM, AgJobs, and the Uniting Families Acts. S.3932 compliments a House bill introduced several months ago called the Comprehensive Immigration Reform for America's Security and Prosperity Act ("CIR-ASAP") (H.R. 4321). Meanwhile, President Obama has expressed his support for Comprehensive Immigration Reform as essential for our economy and national security. Unfortunately, neither bill stands a chance of passage before the November elections. More on the details of CIRA coming soon.

In an interesting case, U.S. Immigration and Customs Enforcement (ICE) and Abercrombie & Fitch agreed to a $1,047,110 settlement for I-9 technical violations at Abercrombie & Fitch's Michigan retail stores. The ICE audit began in 2008. The company was not found to have knowingly hired unauthorized immigrants, but its electronic I-9 system was apparently found to have many problems. An ICE representative said:

"We are pleased to see Abercrombie working diligently to complete the implementation of an effective compliance system; however, we know that there are other companies who are not doing so. This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants."

Every employer must complete Form I-9 for every worker hired after November 6, 1986 to document work permission status in the U.S. I-9s are required for U.S. citizen hires as well. Employers are liable both for "paperwork" violations, such as mistakes and technical violations, for failing to complete or maintain I-9s, as well as for "knowingly hiring unauthorized workers." There are a range of civil penalties per violation as well as criminal penalties for "pattern or practice" violations.

Abercrombie & Fitch had an electronic I-9 system which is allowed under interim final immigration regulations, though in this case, the audit started before the regulations came out. The fine seems high given the violations were technical rather than "knowing hire" violations. It appears the company failed to have in place various internal controls or compliance procedures that called into question the validity of the I-9s.

Given the government's focus on employers the last couple of years, a cottage industry of software companies has developed, all vying for employer dollars to be spent on IT devoted to I-9 compliance. LawLogix Group, Inc., one such I-9 compliance software vendor, has further comments on the case and due diligence. Allott Immigration Law Firm in Colorado has a good list of 25 due diligence questions to ask of potential I-9 software vendors.

The Obama Administration has increased enforcement efforts on employers through the audit process. On September 16, 2010, the American Immigration Lawyers Association announced it had received confirmation from ICE that the agency served "more than 500 Notices of Inspection (NOIs) to companies throughout the U.S. ... According to ICE, the audits flow in large part from leads about employers who allegedly are engaging in hiring unauthorized workers and paying employees unfair wages or otherwise exploiting workers." Employers generally have only three days to produce I-9s when a NOI is received. Every employer should at least consider doing a private internal I-9 compliance audit with immigration or employment counsel just in case ICE comes knocking at the door. Employers can expect to see more ICE audits and mandatory E-Verify as part of the enforcement component of any immigration reform legislation.

Today, USCIS announced new final regulations increasing by 10% on average the filing fees for immigration benefit applications. Although it did not raise the fee for citizenship applications, USCIS introduced some new fees such as for the EB5 regional pilot program designation ($6230.00!), fees for immigrant visas where USCIS has a role in the process ($165.00), and civil surgeon registration fees ($615.00). The rationale and fee list is posted here.

Besides the fee increases, USCIS made technical corrections to some application fees, made procedural changes that reduce other fees for a few applications, and increased the types of applications where fee waivers can be requested. USCIS also issued Q&As.

USCIS said it had received 225 comments during the public comment process, some in favor of the increases, most opposing, and others seeking fee reductions. In addition, USCIS held stakeholders meetings and invited the public to review its budget and cost methodology.

Fee increases have always been controversial, especially among immigration law practitioners and their clients, as well as NGOs that service refugees and low income immigrants. Often, we do not tend to see a corresponding benefit in USCIS processing times or procedures in relation to the fee increases requested by the agency. This is especially true in the last year or so when USCIS says filings are down, but procesing times are taking longer than ever, do not reflect processing times posted on their website, and many cases are delayed by Requests for Evidence. In any event, USCIS will most likely get bombarded with applications over the next two months before the fees go into effect on November 23, thereby increasing processing times more.

Anchor Babies - The Myth

"Anchor Baby" is a derogatory term and a figment of imagination. Anchor for what? Nativists believe that immigrants come to the US to "drop babies" so they can bestow an immigration benefit upon the parents. This is pure nonsense and not the law or fact! There are no immigration categories in our present system that allow a U.S. born child under 21 to sponsor his or her parents! Under current law, whether the parents entered legally or illegally, they will have to wait at least 21 years for a green card if sponsored by the U.S. citizen child. Similarly, a U.S. citizen cannot sponsor a sibling until the citizen is 21 years old.

How Many U.S. Citizen Babies are Born to Immigrants in the U.S.?

An August 11, 2010 Pew Hispanic Center study, "Unauthorized Immigrants and Their U.S.- Born Children", reports that only 8% of children born in the U.S. in the year 2008, or 340,000 of 4.3 million babies, had at least one parent without documents, while 16% of U.S. citizen children born in the U.S. that year had one or more parents who are immigrants with legal documents. Overall, the Pew Hispanic Center estimates there are 4 million U.S. citizen children living in mixed status households out of 8.8 million mixed-status families in the United States.

According to a Pew Research Center for People and the Press article, "Obama's Ratings Little Affected by Recent Turmoil", Part 3, most of out-of-status mothers with U.S. born children have been here at least a year, and more than 50% have been here for five years or more without status. This means that most immigrants who have their babies in the U.S. do by so happenstance, not as the primary reason for coming to the U.S. The only exception may be people who live along the U.S.-Mexican border who have easier access to quality U.S. medical facilities for giving birth. A September 3, 2010 Boston Globe article, "'Birth Tourism' a Tiny Portion of Immigrant Babies", mentions Demographer Douglas Massey of Princeton University who has researched Mexican immigration trends. He says he has never met anyone who came to the US specifically to have a baby here, which mirrors the experience of most immigration lawyers. This is certainly consistent with this author's experience in immigration law.

The "anchor baby" argument, or the "birthright" movement, is intended, presumably, as a theory to reduce illegal immigration. But, if we repealed the 14th Amendment (see below) or otherwise prohibited U.S. born children from being American citizens at birth, according to a September 2010 Migration Policy Institute study, "The Demographic Impacts of Repealing Birthright Citizenship," between 2010 and 2050, we would actually double the number of people without status from 10-12 million to 25 million because the children of those children born in the U.S. would create yet another generation of children growing up in America without status or rights.

Other Considerations of U.S. Born Children in Immigration Law

Even when the U.S. citizen child turns 21, the sponsored parent or sibling may have to wait years more to immigrate or might not be able to immigrate at all. This is because of two main factors - quota delays for siblings of U.S. citizens, and the three and ten-year bars that require many sponsored relatives who entered the U.S. illegally to complete processing of a green card at a U.S. Consulate abroad. The act of leaving the U.S. to visit the Consulate can trigger the bars to re-entry despite otherwise having a way to immigrate legally. Those who are subject to the bars must first obtain an "extreme hardship" waiver to avoid waiting the three or 10 years abroad. Waiver approvals are unpredictable. Quota delays and the three and 10-year bars are why most people without legal status in the U.S. cannot immigrate today despite having an employer or family sponsor.

Continue reading "Anchor Babies and the 14th Amendment - Immigration Myths Part I" »

On September 7, 2010, the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), the National Association of Criminal Defense Lawyers (NACDL), the National Press Photographers Association (NPPA), and Pascal Abidor, a dual French-American citizen, sued the U.S. Department of Homeland Security (DHS) challenging as unconstitutional DHS policy that allows border agents to search electronic media without suspicion or warrants. The case is Abidor, et al v. Napolitano, No. 1:2010cv0405, filed in the United States District Court for the Eastern District of New York. The Plaintiffs seek declaratory and injunctive relief.

Through the Freedom of Information Act (FOIA), the ACLU was able to obtain records from 2008 to 2010 showing over 6700 travelers had their electronic devices such as laptops, digital and video cameras, external drives, and PDAs searched by border officials. At least half were U.S. citizens. A summary of the disclosed DHS data can be found on the ACLU's webpage. The majority of electronics searches conducted involved white U.S. Citizen males followed by Canadians, Mexicans, and the British. A substantial number of searches were not identified as to sex, race or nationality.

The ACLU's complaint itself is an interesting read because it discusses the plight of two trade organizations and three individuals engaged in education/research, photojournalism, and international criminal defense work, and their need to preserve client and source confidences required by their professions. Access to laptops and other electronic gadgets is essential to their work, as it is in many professions. The complaint discusses the precautions they now have to take, which complicate their work and personal lives. The expectation and experience to date is that once in the government's database system, they will continue to be harassed during future travel.

In the complaint, Mr. Abidor's laptop and external drive were searched after he was taken off a train and handcuffed. He spent hours in a cell. Charges were never brought against him. He was never arrested. No warrant issued for his arrest or search of his electronic gear. He is an Islamic studies student in Canada who needed to travel internationally and frequently to work on his dissertation. His laptop and external gear were seized and not returned to him for weeks after he was admitted into the U.S. Mr. Abidor's laptop and drive contained the only copies of his dissertation and supporting materials. Meanwhile, photojournalists have their gear frequently searched after covering wars, demonstrations, calamities, political interviews and events. Reporters and photojournalists are bound by their duty to protect the confidentiality of their sources. Likewise, criminal defense attorneys often travel abroad to interview witnesses, obtain evidence and participate in depositions or trials. Client confidentiality is essential, and there are penalties for certain types of international communications if made across the Internet. In addition, they need their gear all the time to do their work.

DHS takes the position that electronic devices are containers like suitcases at the border that can be searched without a warrant, with or without suspicion. They are like extensions of people. Current DHS policy and directives from August 2009 allow, among other things, for data searches away from the owner's presence under the extended border exception to the warrant requirements under the Fourth Amendment to the Constitution. In addition, DHS policy allows for disclosure of this data to other government agencies. Earlier, Customs and Border Protection (CBP), a division of DHS, issued a press release about how rare laptop searches are. Specific forms to complete and CBP advisories are part of the ACLU's FOIA response.

Continue reading "ACLU Sues Homeland Security Over Laptop Border Searches" »