Seattle Immigration Lawyer Blog

U.S. Citizenship and Immigration Services (USCIS) must be thinking positively that the economy will improve soon. It looks like some time next month, USCIS will publish a notice of proposed rule making for a new electronic registration system for H-1B petitions subject to the annual 65,000 cap. In "Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations", USCIS will propose a cheaper way for employers to register for cap-based H-1B visa petitions before they spend the more expensive filing and legal fees to prepare a full-blown H-1B petition. The full petition would be filed only after an employer learns it has been selected for a cap-based petition for a specific employee. The purpose of the rule is to make it easier for USCIS to manage the flood of applications in good hiring years when there is only one or a few days to file for H-1B petitions that reach the annual cap quickly. In years past, when there was a surge in hiring, the annual allotment of H-1Bs were used up in a day on April 1 or within a week or two for jobs that would begin the following October. By contrast, during the last two years when the economy has been poor and hiring has been down, the H-1B cap has not been reached until much later in the fiscal year. (Hmm, would low demand in high unemployment years and high demand in growth years reflect the need for market based numbers rather than arbitrary caps???) Typically in growth years, on April 1, USCIS receives a deluge of applications for jobs beginning the next fiscal year the following October 1. Because the applications all arrive at once, it has been impossible for the agency to determine which applications arrived first and in what order, so USCIS has resorted to a lottery. This makes an employer's ability to hire a foreign worker a matter of luck, rather than predictable need. That means employers cannot plan projects with fast turn-around times or meet deadlines with any predictability. Keep in mind that certain employers or jobs are not subject to the cap, so H-1B petitions can be filed all year long.

Until Congress fixes the cap and removes numerical limitations, or allocates sufficient numbers to meet economic need, even with an electronic registration system, there is no certainty for employers. However, the registration system will reduce the overall costs for employers who try to get an H-1B number but are not successful. It appears the registration system will have a fee of its own, but it will be substantially less than the thousands of dollars incurred to file a full application package. Moreover, the electronic registration system will be designed to identify employers who file more than one petition for the same employee for the same job so they cannot game the system. Assuming the proposed rule comes out in January, it looks like there will be a notice and comment period until March. Employers should stay tuned for publication of the notice and they should be prepared to send in comments.

For 24 immigrants in New York, Santa could not have brought a better gift. Outgoing Governor David Paterson pardoned 24 individuals for crimes he felt had immigration consequences that were "excessively harsh and in need of modernization." Earlier this year, Governor Paterson set up an immigration pardon board after he learned that even the most minor of crimes can have devastating immigration consequences including deportation of the offender, permanent separation of families in mixed status homes, and even death to a deportee depending upon the country to where the person is removed.

Unfortunately, immigration laws impose another layer of punishment on criminal defendants who have already had their cases dealt with by a criminal court judge. "Did the crime and served the time" is essentially meaningless when it comes to U.S. immigration law. It's like fitting a square peg into a round hole. In fact, immigration law does not even recognize expungements or other case closures (erasing or sealing files or post- conviction dismissals), or deferred actions where there is a finding of guilt, or a suspended sentence. In some cases a mere admission to a crime, even if not prosecuted, or an immigration agency's "reasonable suspicion" that a crime was committed, is enough to deport someone. Immigrants can be deported for offenses that occurred decades ago and for which a small fine was paid. Because of these harsh realities, Governor Paterson established the pardon board since pardons are one of the few types of post-conviction relief that will be honored under immigration law.

Keeping in mind that not every offense is a ground for deportation, it is essential for immigrants, whether in the U.S. lawfully or not, to seek legal advice about the immigration consequences of the offense, if any, the availability of post-conviction relief, and whether there are any waivers available. As a Seattle immigration lawyer, our firm is frequently hired to analyze both U.S. domestic and foreign convictions to determine whether there are any immigration consequences of convictions, admissions or charges. We work closely with a network of domestic and foreign criminal lawyers who are able to determine if there is any post-conviction relief available. Every time Congress passes enforcement-only legislation, the list of deportable minor offenses and their perpetual retroactivity grows. Our immigration laws have become excruciatingly harsh, and Governor Paterson recognizes this (and for political reasons, probably has nothing to lose by his stance, either). But the reality for many people is that our harsh immigration laws affect not just the offender, but the U.S. citizen and legal resident family members, and the immigrant's employer when they lose a relative or worker to deportation because of old or minor offenses, even after years of rehabilitation and good standing. In fact, the U.S. Supreme Court in Padilla v. Kentucky ruled earlier this year that it can be ineffective assistance of counsel if a criminal lawyer does not advise an immigrant of the immigration consequences of a plea. The Supreme Court articulated why deportation consequences are so intricately wound up in criminal law:

"The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.The "drastic measure" of deportation or removal...is now virtually inevitable for a vast number of noncitizens convicted of crimes.

Under contemporary law, if a non-citizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General....[T]his discretionary relief is not available for an offense related to trafficking in a controlled substance....

These changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.These changes confirm our view that, as a matter of federal law, deportation is an integral part--indeed, sometimes the most important part--of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

We have long recognized that deportation is a particularly severe 'penalty,' but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature..., deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century..... And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it 'most difficult' to divorce the penalty from the conviction in the deportation context.....Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult....."

In sum, Governor Paterson's carefully chosen pardons as a form of post-conviction relief recognize the harsh realities recognized by the Supreme Court and enshrined in our immigration laws. Politically speaking, he pardoned those who had relatively minor offenses and met a host of rehabilitative and good moral character criteria since the offenses occurred.

The Senate's failure to enact the DREAM Act was a blow to the young people who would have qualified and to their many supporters. The DREAM Act would have put young people living in the U.S. without status who came to the U.S. at an early age with their parents on a long 13-year path to legal status and citizenship if they commit to going to college or join the military. Other DREAM Act supporters included their families, employers looking for more college graduates and leaders, the military anxious to expand the pool of volunteer recruits, educators of all types at all levels of education, ethnic and immigrants rights groups, and many, many everyday Americans who are the relatives, friends, neighbors, fellow classmates, teachers, and service providers to DREAM youth.

Republican Senators Richard Lugar (IN), Robert Bennett (UT) and Lisa Murkowski (AK) very courageously voted in favor of the Dream Act last week. However, Democratic Senators Baucus (MT); Hagan (NC); Nelson (NE); Pryor (AR); and Tester (MT) all voted against the Dream Act. Senators Joe Manchin (WV), Bunning (KY), Gregg (NH), and Orrin Hatch (UT) (who ironically, was an original sponsor of the DREAM Act when first introduced in 2001) failed to even show up to vote on this important piece of legislation. 60 Senate votes in favor were needed to pass the DREAM Act, but fell just five votes shy of passing. Some Senators who voted against the DREAM Act have since stated they might have voted for it if it wasn't so broad.

Immigrant and gay rights are at the forefront of civil rights advocacy in the United States right now. Amazingly, the Senate had the guts to repeal Don't Ask Don't Tell (DADT), but it lacked the guts to pass this minor piece of immigration reform legislation that would have benefited the economy and security of the United States. Ironically, both pieces of legislation would have remedied this country's failure to accommodate people who want to pursue higher education and/or serve in the military because they love and want to give back to this country. Both DADT and DREAM recognize that this country has squandered opportunities to attract the best and brightest in academia and the military by discriminating against gays and immigrants.

By failing to pass the DREAM Act, the Congress has endorsed a policy of letting an estimated 65,000 undocumented high school graduates a year languish in the underground economy, keeping them disenfranchised and unable to pursue their talents, or preventing them from being able to pursue professions that could otherwise have resulted in the cure to cancer, developing the next great new technology, improvements to the environment, or leading great companies or organizations in ways that would benefit all Americans.

So, what happens now? Perhaps the failure of the DREAM Act will result in opportunities. As they say, "if you're given a lemon, make lemonade." There could be a silver lining in all of this despite predictions that it is unlikely the next Congress will vote for anything but enforcement-only immigration legislation. There are other approaches to take.

Continue reading "DREAM Act Failure: Nightmare or Opportunity?" »

Today, USCIS announced that employer/petitioners will not be required to complete Part 6 of newly revised Form I-129 until Feb. 20, 2011. Part 6 pertains to Controlled Technology and Technical Data questions. Due to the many inquiries USCIS received from stakeholders about how to answer the questions, USCIS has extended the time in which employers must be able to answer the question.

As I mentioned in my earlier post, Employers Must Know Export Control Rules When Sponsoring Employees, USCIS introduced a substantially revised I-129 form on November 23, 2010. The I-129 form is used for a number of temporary nonimmigrant business visas. Two new export control questions in Part 6 ask employers to verify under oath that they have read the various export control rules and have determined that they are or are not required to have an export license for a particular employee. The questions apply only to petitioners for H-1B, H-1B1, L-1, and O-1A visas. Today is the last day previous editions of the Form I-129, Petition for a Nonimmigrant Worker, must be postmarked. Starting tomorrow, December 23, 2010, employers must use the Form I-129 with a Nov. 23, 2010 revision date or they will be rejected. However, Part 6 with the critical export control questions will not have to be answered until February 20, 2011. The reprieve is probably more useful for employers not normally subject to export control rules because they still have to answer the questions and verify under oath that they are not subject to them. One would think that most companies normally engaged in critical technologies already know if they need export licenses in the normal course of doing business. But some start-up companies may not realize the reach of the rules into the immigration area now.

In a December 3, 2010 letter to Senator Patrick Leahy, U.S. Citizenship and Immigration Services (USCIS) Director, Alejandro Mayorkas, stated that indirect jobs created by individual investors in an EB-5 regional center may in fact be created outside the geographical boundaries of the certified regional center. The letter sets out USCIS's interpretation from earlier case law that the job-creating businesses themselves must be located within the regional center's geographic limits, and that recent amendments to the EB-5 program require that "each regional center ...provide a proposal that 'clearly describes how the regional center focuses on a geographic region of the United States.'" USCIS interprets this to mean that the regional center must focus its "EB-5 capital investment activities on a single, contiguous area within the defined geographic jurisdiction requested by the regional center." Director Mayorkas concludes that "we agree that the law does not further mandate that all indirect job creation attributable to a regional center take place within that jurisdiction."

The business plan for the EB-5 regional center seeking initial approval or certification is critical, however. It lays the road map for how the center plans to proceed including the economic analysis to determine how the new jobs will be created. USCIS will adjudicate EB-5 regional center applications, amendments and annual reports as well as individual investor applications on the basis of that business plan. Therefore, it is essential that if the economic model being used anticipates job creation outside the geographic limits of the regional center, that this be reflected in the business plan for the center.

Two recent changes effective November 23, 2010 concerning regional centers include the release of a new form I-924 used for regional center designation applications. A new form I-924A was also introduced for annual reporting of the regional center activities. This form has to be filed annually between October 1 and December 29. There is also a new filing fee of $6230.00 for initial regional center applications. The I-924 should also be used for amendments to 1) the geographic region, 2) the business plan, 3) organizational structure, 4) affiliated entities, 5) changes in the economic analysis to predict job creation, 6) or changes to capital investment instruments or offering memoranda. When providing an exemplar of future individual EB-5 I-526 applications, the I-924 should also be submitted.

EB-5 regional centers typically attract a pool of foreign investors who may invest in one or more businesses within the designated regional centers. Depending upon where the regional center is located, the individual foreign investors must invest $500,000 or $1,000,000 in capital, and each individual investor must create at least 10 new full-time jobs. One benefit of the EB-5 regional center concept is the ability to create the new jobs indirectly within or now outside the regional center based on an economic model predicting how and when the jobs will be created during the foreign investor's initial two-year period of conditional permanent residence in the U.S. Within 90 days of the two-year conditional residence period expiring, the investor must show the full amount of capital was invested and the required jobs were created.

A list of currently approved EB-5 regional centers around the country can be found on the USCIS website. Also posted on the USCIS website is the powerpoint from the December 16, 2010 EB-5 stakeholder meeting.

The Senate voted Saturday not to move on the DREAM Act, H.R. 5281 by 55-41, just five votes shy of what was needed to move the bill. Senator Reid from Nevada had previously filed a cloture motion. Since the Senate failed to achieve the 60 votes needed, the bill will not proceed further. The new Congress is likely to enact enforcement-only legislation, but immigration rights groups, educators, business and other groups, emboldened by new organizing efforts, and who support immigration reform beyond enforcement-only laws will not give up. The New York Times quotes Senator Durbin, who originally introduced DREAM, as saying "'I want to make it clear to my colleagues, you won't get many chances in the United States Senate, in the course of your career, to face clear votes on the issue of justice.'"

Beginning December 23, 2010, the new I-129 form goes into effect. This form is used for H-1B, H-1B1, L-1 and O-1A visa petitions concerning professional/specialty occupation, intracompany transferee, and extraordinary ability employees. A new set of questions ask the employer to certify that the employer has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and has determined that either a license is not required or that if one is required, the employer has received the license or that the employer will prevent the foreign employee from having access to the restricted technology until it has the license.

The "export" of controlled technology and technical data by foreign nationals is strictly prohibited without a license. This applies even if the company does not have other exporting activities. Technology is considered "released" for export or a "deemed export" when made available to the foreign national employee through visual inspection, when technology is exchanged orally or is made available by practice or application under the guidance of others with such knowledge. This is a particularly complicated area of law involving several enforcement organizations. Several technology lists may have to be consulted: Export Administration Regulations (EAR), Commerce Control List (CCL), International Traffic in Arms Regulations (ITAR), U.S. Munitions List (USML). The Department of Commerce Bureau of Industry and Security (BIS) administers EAR while the Department of State Directorate of Defense Trade Controls (DDTC) administers the ITAR. Any misrepresentation about the petitioning employer's liability for a license is also a violation of federal law.

Some resources for employers are Export Control Basics, Deemed Exports, ITAR rules and how to apply for a license. As a Seattle immigration lawyer, I am familiar with these work visa categories and new requirements. The export control rules have been around for awhile, but they have previously come up in our practice when preparing for visa interviews at U.S. consulates abroad where higher level security checks are run on visa applicants whose work may involve export technology issues. Periodically, my clients and colleagues in the field have experienced additional visa processing delays due to the Technology Alert List, which can trigger higher level security checks. The new forms, however, require the employer to become more involved in the issue earlier in the process, although they should be dealing with export license issues in the regular course of business if subject to the rules. Now, employers not dealing with sensitive technologies will have to know the rules because they must verify and certify under penalty of perjury that they are indeed not subject to the licensing requirements.

The U.S. State Department announced today that the family-based permanent legal immigration quota will retrogress in January. The State Department makes monthly estimates about visa use around the world through an extremely complex formula that hardly anyone understands. Although the State Department posts a brief explanation online, it does not adequately reflect the true complex nature of calculating when visas are available. Not only does the State Department have to monitor how many permanent immigrant visas are being issued by each U.S. consulate world wide, but applications filed within the U.S., called "adjustment of status", also have to be monitored. Immigrant visas and adjustment of status applications can only be filed and granted when the quota is current. But in between those times, the quota can retrogress or become backlogged.

The quota status is published monthly in the Visa Bulletin at www.travel.state.gov. By understanding how the quota works, one can better understand why fixes are needed to the legal immigration system. Without these fixes, enforcement-only legislation will increase the numbers of people who fall out of status, or will encourage people to come illegally if one understands anything about the human condition or drive to protect and feed one's family.

I tell my clients to think of it this way. Suppose you are trying to see a movie at a theatre with 100 seats. You arrive at the theatre and the seats are sold out and you have to stand in line. How long you stand in line depends on demand for the limited supply of seats. You may get into the theatre for the next movie, or after several movies. Think of movies as months, maybe years. When people try to immigrate through family members, depending upon the relationship combination involved, the beneficiary may be waiting in line at theatre A, theatre B or theatre C for example, which we call preference categories. These are all defined and explained in the Visa Bulletin every month.

Where you are in line is further complicated by where you were born since visas are issued by country of birth, not citizenship, and each country is allocated a finite number of visas per category. If you were born in India, China, Mexico or the Philippines, you will usually wait much longer than everyone else. There are a few obscure rules on "cross-chargeability", so it's worth getting some legal advice to see if the beneficiary might fall into the world-wide category, which covers everyone else. But, for the most part, every single family preference category has been backlogged for years, and even moreso for Chinese, Mexicans, Indians and Filipinos. The only people NOT subject the quota backlogs are spouses and parents of U.S. citizens and minor unmarried children under 21 of U.S. citizens.

Continue reading "Legal Immigration Quota Backlogs Increase: Why Enforcement-Only Legislation Creates More Ilegal Immigration" »

The anti-immigrant rhetoric about the DREAM Act lately is disingenuous, to say the least, and completely false in other cases. Unlike experienced immigration lawyers, most legislators just don't have the day-to-day experience of implementing or using the laws they create, so they may not fully appreciate the real impact the laws they enact have on real people, families, employers, and the community at large. I show below how some of the anti-DREAM Act arguments being made by certain legislators and their supporters just don't stack up to the facts. As our colleagues at the Immigration Policy Center say, there's an appalling lack of "truthiness" by some legislators, to use a term coined by Stephen Colbert of Comedy Central.

1. Myth: The DREAM Act is Amnesty.
Reality: Amnesty is forgiveness for a wrong or past offense. DREAM Act is a process for legalizing the status of young people who were brought here at a young age through no fault of their own. We do not normally hold children accountable for the acts of their parents. DREAM Act has many steps and requirements for applicants to follow that will take years to obtain in order to earn legal status. Dreamers must meet certain age and application requirements, complete high school or a GED, attend higher education or serve in the military, pay of exorbitant filing fees, prove all taxes were paid, and pass English, government and civics exams. There is nothing forgiving about the process. Many people will be excluded because of the extreme requirements. Serious criminal histories will not be forgiven.

2. Myth: DREAM Act will open the floodgates to mass chain migration.
Reality: In my earlier post on Anchor Babies and the 14th Amendment, I gave specific examples of how long it takes for a U.S. citizen child to sponsor a parent or sibling from Mexico, where the quota or backlog is really long, and how long it takes to sponsor a parent or sibling from Canada, where the quota is the "shortest". Now, add the DREAM Act to the mix, and it's even longer for everyone. The DREAM Act, as passed by the House and to be voted on by the Senate, makes this program last for 13 years before a Dreamer becomes a U.S. citizen. Did you get that? 13 years! Applicants must spend 10 years in nonimmigrant temporary status, followed by three years of permanent green card status before becoming U.S. citizens. Only then can a U.S. citizen Dreamer sponsor a parent or sibling, and the Dreamer must be at least 21 years old.

Taking my examples from the earlier blog post, which used the State Department's September 2010 Visa Bulletin (monthly report of the quota and visa availability worldwide), the results of this "massive chain migration" will be as follows:

a) U.S. citizen Dreamer sponsoring a parent from Mexico: The category is "Immediate relative" (not subject to any quota). It will take 13 years of DREAM nonimmigrant status plus another 10 years if the parent lived in the U.S. illegally for a year or more (whether the parent entered illegally or arrived with a visa and overstayed by a year or more). This is because of the bar to adjusting status in the U.S. if the parent entered illegally or had unauthorized stay. As a penalty, he or she must process the visa abroad. Leaving the U.S. triggers the 10-year bar to re-entry, meaning the parent must reside abroad for 10 years before coming back to the U.S. with a green card. (There are rare exceptions to the 10-year bar.)

b) U.S. citizen Dreamer sponsors a Mexican Sibling: This is the fourth preference category which is subject to the quota. It will take 13 years from DREAM eligibility to sponsor the sibling, followed by a 16-year quota delay, plus 10 years living abroad if subject to the 10-year bar. Neither the Mexican parent nor sibling is eligible for a waiver of the bar because the U.S. citizen Dreamer adult child or sibling is not a qualifying relative for the waiver.

c) U.S. citizen Dreamer sponsors a Canadian (or French or Brazilian) parent: The parent is an immediate relative not subject to the quota. But, if the parent entered illegally, it will be 13 years to sponsor the parent and another 10 because of the bar to re-entry as described above.

d) U.S. citizen Dreamer sponsors a Canadian (or French or Brazilian) sibling. Again, fourth preference, 13 years for Dreamer to sponsor, followed by 9 years quota delay, followed by 10 years if subject to the 10-year bar.

If the immigrating parents or siblings live overseas and were never in the U.S. unlawfully for six months or more, they will not be coming to the U.S. for at least 13 years for the parents, and another 16 years if a Mexican sibling or another 9 years if a Canadian sibling. (All of the above assumes Congress has still not removed the bars, and has not changed the annual visa allocations by country so quotas remain similar to what they were back in September 2010.)

In sum, we're looking at some middle aged to elderly Dreamers becoming sponsors of elderly parents and siblings, who by then will prefer to remain in their home countries. Or, they could die waiting.

Continue reading "Anti-DREAM Act Rhetoric: Busting the Myths" »

On December 9, 2010, the Senate voted to withdraw its version of the DREAM Act, S. 3992, and to take up the House version, H.R. 6497, that was passed on December 8. The Senate still needs to plow through other tough legislation before it will vote on DREAM, but it is anticipated DREAM will be voted on next week. In the meantime, supporters should continue to fax or email the Senate in the next few days because at least 60 votes are needed to pass DREAM.

The House version has the two five-year periods of "conditional nonimmigrant status" before adjusting to permanent residence or green card status, the higher "surcharge" filing fees, and ineligibility for Stafford loans. It's not the best bill we could have hoped for, but it's better than no bill at all and will grant relief to young people who have grown up in the U.S. I will post a more thorough analysis of H.R. 6497 shortly.

The DREAM Act has gained incredible momentum among young people, educators, immigrant communities, the military, employers, and across many other segments of the population across the country. Undocumented students and young people have shown they are brave to come forward in the limelight; they are organized, dedicated and eloquent advocates. Meanwhile, as I cited in my earlier post, Congress to Vote on DREAM Act, the Congressional Budget Office and other organizations and economists have shown that the DREAM Act will be economically good for the country.

Today the House of Representatives bravely passed the DREAM Act by 216 to 198. It has taken a decade to get to this point. The bill, known as Development, Relief, and Education for Alien Minors Act of 2010, was attached to H.R. 5281 and was originally filed as H.R. 6497. This bill differs from the Senate bill S. 3992, which will be voted upon tomorrow morning. The Senate needs 60 favorable votes to pass. Keep making those calls to the Senate: 1-866-966-5161 or email.

Key differences in the two bills are that the House bill grants conditional nonimmigrant status in two five-year periods before students can file for green cards, whereas the Senate bill has just one 10-year period of status. The House version has a different fee structure and kicks in a $2000 fee for the second five-year period. The two bills vary as to when the higher education or military requirements must be met, and they vary as to when the deadline for initial application is required. The House bill makes DREAM Act students ineligible for Stafford loans while the Senate bill permits them. There are several other minor differences.

In the final roll call, , the Washington delegation was split with most voting for the bill except Representatives Hastings, Baird and Reichart. Rep. McMorris Roberts did not vote.

The House of Representatives is scheduled to vote on the DREAM Act later this morning. This is the first significant piece of legislation to actually help immigrants in over a decade. On Monday, over in the Senate, Senator Harry Reid (D-NV) filed a cloture motion to end debate to avoid a filibuster on S. 3992. Another attempt to get 60 votes is anticipated for this afternoon. Supporters should call or email Congress this morning:

Representatives: 1-866-967-6018
Senators: 1-866-966-5161
Email Representative and Senators

A Congressional Budget Office report released earlier this week stated that DREAM would cut the deficit by $1.4 billion and would bring in $2.3 billion in revenues over the next decade. This supports what Dreamers and their advocats as well as other economic researchers have been saying all along, that legalizing close to two million young people who have grown up here for most of their lives is a net economic benefit to the country if we keep them in school. It also helps our military with preparedness. The Obama Administration is supporting the DREAM Act. More importantly, over 70% of the public supports the DREAM Act.

Senator Reid introduced the 5th version of the bill last week as S. 3992. The new version makes the DREAM Act more difficult for young people to qualify and is an obvious attempt to broker a compromise with Senators who were on the fence despite earlier versions of DREAM Act having been supported by both sides of the aisle for close to a decade now. S.3992 would allow students who were brought to the U.S. before age 16 and have been here for at least five years to file for a new "conditional non-immigrant status", a status not found elsewhere in the immigration laws. They would need to be in such status for 10 years rather than the previously proposed six years before they could obtain lawful permanent residence. They could become U.S. citizens once they have held green cards for three years. Obviously, the lengthy process was meant to prevent these young people from sponsoring their parents anytime soon, which they cannot do anyway until they are over 21 and are U.S. citizens. Ironically, complaints from the anti-immigrant crowd that DREAM would benefit too many older adults and not just young people will be the result anyway with a 10+-year program. 29 is the age-limit to apply but a 29-year-old will not have a green card until he or she is 39. Meanwhile, other provisions of the Senate version would prevent students receiving in-state tuition rates and would prevent them from qualifying if they have certain misdemeanors. In both bills, applicants would need to complete high school or earn a GED, enroll in higher education or join the military, pass an English and civics exam and pay back taxes if not paid previously. The Senate bill would also require good moral character since date of entry versus date of enactment.

Continue reading "Congress to vote on DREAM Act Today" »

The American Immigration Lawyers Association (AILA) has launched a new website, www.stopnotariofraud.org, to help consumers of immigration services avoid becoming victims of dishonest behavior by non-lawyers who hold themselves out as providing immigration services. The site also has state-by-state guides on how to verify information about lawyers, what kinds of questions to ask when entering into an agreement, and how to file complaints against notarios and unscrupulous lawyers. The site is in Spanish and English for now.

In many countries, public notarios or consultants are allowed to provide legal advice. But in the United States the rules are different. First of all, the U.S. Department of Homeland Security (DHS), which is responsible for issuing benefits, border control and enforcement, as well as the Immigration Courts or Executive Office of Immigration Review (EOIR), have specific rules about who can appear before their agencies. An authorized representative making an appearance whether in person or filing an application on someone's behalf must file specific forms with applications or litigation documents verifying their eligibility to appear. Eligible persons are attorneys admitted to any state in the U.S., its territories or possessions provided there are no orders of suspension or disbarment against the attorney. Accredited representatives are also allowed to represent people. They must be certified by the Board of Immigration Appeals and usually work for charitable or religious organizations that charge no fee or a minimal fee. Certain law students or graduates who meet specific requirements may also assist immigrants. Friends, relatives or clergy may assist an applicant provided no fee is paid and the agency or the court agrees to their presence at an interview or hearing.

An attorney's credentials can be verified with the State Bar organization in which the attorney is admitted. For example, here in Washington, that would be the Washington State Bar Association, which has a lawyer directory. The attorney can then be checked against the EOIR website to see if he or she has been disciplined by the courts. USCIS also has extensive information about hiring a representative and how to avoid notario fraud, as does the American Bar Association.

Continue reading "Stopnotariofraud.org: AILA Launches New Consumer Website" »

In my newer role on the Board of the International Section of the Washington State Bar Association (WSBA), I came to learn of an invaluable resource for foreign and American investors wanting to do business in Washington State. The WSBA just released the 5th edition of Doing Business in Washington State: A Guide for Foreign Business and Investment, edited by Randy J. Aliment, with articles written by lawyers in the fields of business, tax, real estate, intellectual property, antitrust, securities, litigation, dispute resolution, employment, commercial, bankruptcy and immigration law. The guide is written as an introductory "how to" that is simple to read and broad enough to cover the range of activities in running a business in our state.

The book is available in print and CD for $75 with discounts for bulk ordering. Product will ship after January 1, 2011. This is a particularly helpful resource for foreign investors thinking about starting or buying a U.S. entity or expanding operations in the U.S. EB-5 permanent entrepreneurs and E-1 treaty traders/E-2 treaty investors, L-1 multinational companies and others will find this book useful in planning who to hire, how to set up an entity and protect liabilities and assure tax compliance among other issues. The book is a collaboration with the Washington State Department of Commerce. In September 2010, Governor Christine Gregoire led a trade delegation of 100 Washington businesses to China and Vietnam back. The delegation brought a Chinese version of the CDs with them. The International Section of the WSBA plans to have the book translated into other languages.

A good mind is a terrible thing to waste, especially the mind of a motivated young person. And, I'm not talking about wasting a brain to drugs or crime. Instead, I'm talking about wasting the minds of tens of thousands of young people in the U.S. every year who have grown up here and are anxious to contribute to America, but who cannot go to college, get jobs, drive cars, or join the military simply because they lack papers to be here lawfully through no fault of their own. Most came when they were small children and were not capable of making decisions on their own. In my law practice, I have met young people who did not even know they were in the U.S. illegally. Until they went to sign up for drivers training, applied for a pilot or professional license, or tried to fill out the FAFSA form for college financial aid, these kids always thought they were Americans. Only then did their parents reveal the family secret about their undocumented status. To say the students, their mentors or teachers were shocked would be an understatement. Why continue to punish them for their parents' decisions when they are motivated to succeed and contribute to our country?

What is better for the United States? To deport these ambitious young people to countries they have never known or no longer remember? Let them languish with nothing to do? Or let them settle for a life of menial labor where they can be taken advantage of? We should be encouraging them to reach for the stars, and enrich our nation with their abilities and desire to lead. If they want to find the cure for cancer or improve the environment or become teachers, we should encourage them to do so. Why does the anti-immigrant crowd not want every child in America to succeed as we would want for our own children and our neighbors' children? If you feel as I do, please contact your Senator and Representative in Congress THIS WEEK and ask him or her to support the DREAM Act.

Senator Harry Reid of Nevada is predicted to file for cloture in the coming week with anticipated action on the Development, Relief and Education of Alien Minors Act, or DREAM Act. Building upon a decade of bipartisan support for the DREAM Act, it would be a fantastic accomplishment if the lame duck Congress enacted this bill and did what is right, moral, humane, and sensible, not to mention good for our country. Whether the bill gets acted upon this week or next term, the U.S. Congress really needs to do something quickly for this large group of young people. Migration Policy Institute estimates that there are roughly two million people or 65,000 graduating seniors every year who currently lack post-high school options. There are no longer any justifiable excuses not to pass the DREAM Act.

The DREAM Act would put young people on the path to green cards and U.S. citizenship if they complete high school and are willing to go to college or join the U.S. military. Eligible students, who graduate from a U.S. high school, will become conditional lawful permanent residents. They will then be required to earn citizenship by pursuing higher education or military service over a six-year period. The DREAM Act is supported by the Defense Department so that it can expand its recruiting pool.

Continue reading "PASS THE DREAM ACT: A Good Mind is a Terrible Thing To Waste" »

The H-1B cap is getting closer to reaching annual limits. As of November 26, 2010, for FY 2011, the H-1B Cap is as follows: 50,400 of the annual 65,000 allotment of cap-eligible petitions have been approved. 18,400 of the additional 20,000 U.S. masters degree exemptions have been used. If the annual caps are reached in the next few weeks or months, then a new round of H-1B visas will not be available for jobs beginning this year and next until October 1, 2011. The application window will open again on April 1, 2011. Not all positions/employers are subject to the cap. Our firm can help with analyzing whether a particular position or employer is subject to the cap. If an employer or position is not subject to the cap, then H-1Bs are available for cap exempt petitions all year long. Whether the cap is reached or not reflects whether employers are hiring and if the economy is improving. In growth years, the cap has maxed out on the first day or within the first few days of the filing season. If hiring levels are poor, then the cap is never reached. Since the fiscal year just started on October 1, 2010, the cap numbers reflect that there is some growth in the professional level job market despite the poor unemployment figures. H-1B employers are barred from hiring H-1B workers into positions if there were layoffs among those similarly employed within the 90 days before application or within 90 days after the H-1B worker is placed.

11/26/2010