Seattle Immigration Lawyer Blog

Today, the Supreme Court of the United States (SCOTUS) heard oral arguments in Arizona v. US. The statement of the case as presented to SCOTUS was as follows:

Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) to address the illegal immigration crisis in the State. The four provisions of S.B. 1070 enjoined by the courts below authorize and direct state law-enforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law and impose penalties under state law for non-compliance with federal immigration requirements.

The question presented is whether the federal immigration laws preclude
Arizona's efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face.

The outcome of this case, as well as the "Obamacare" case heard a few weeks ago, will greatly influence the role of states' rights and federal powers. A transcript of the arguments in Arizona v. US can be found on the Scotusblog.com, while the audio version will be posted on Friday. The briefs for both sides and all of the amici briefs can be found here. There is excellent commentary about today's arguments by Scotusblog.com. Five key points people should know about this case are made by Immigration Impact.

NPR reporters interviewed people of all persuasions out on the streets in D.C. while the court was in session. Of particular interest were the comments of Europeans who are used to cross-border movement, whereas the Justices asked counsel for Arizona about whether states could seal their own borders or recognize the identification documents issued in other states, [such as Washington], that do not require proof of legal status.

As a Seattle immigration lawyer and Chair of the Washington Chapter of the American Immigration Lawyers Association, my colleagues and I hear daily about cases involving people arrested by local law enforcement agencies, who because of the federal ICE Secure Communities and Criminal Alien Programs, are referred to ICE for removal proceedings through the detainer process. Although Washington does not have the same state laws enacted by Arizona and other states, existing federal programs already result in thousands of lawful permanent residents and undocumented individuals being referred to ICE by virtue of their contact with local law enforcement because of these two nationwide federal programs. Immigration lawyers deal daily with the fallout of these state and federal programs. My colleagues see many people picked up for low level offenses or no offenses at all - just being in the wrong place at the wrong time, or trying to report crimes in their communities only to be arrested. Most are in mixed status families, only to end up being separated from their US citizen spouses and children.

According to ICE's statistics for FY 2011 ending on September 30, 2011, 319,000 individuals were removed, up from 245,601 in 2007. This does not include Mexican interior repatriation or border removals/returns or voluntary departures or returns. Of the 319,000 people removed in 2011, ICE reports that 216,698 were "criminal aliens." But only 87,547 of the 216,698 individuals were convicted of "felonies and misdemeanors" including homicide, sexual offenses, drugs and DUI, with drug and DUI offenders being the greatest number of people removed as "threats to national security or public safety". What about the other 129,151 "criminal aliens"? Who were they? Safety and national security risks such as those driving without proper ID? Broken tail lights? Shoplifters? Those accused of crimes but not convicted? Those driving under the influence of accents or brown skins? Anyone who comes in contact with the criminal justice system through the Criminal Alien Program or Secure Communities, whether charged or not, and whether convicted or not, can end up in removal proceedings and be classified as a criminal offender if ICE places a detainer for transfer to their facilities, even if local law enforcement decides not to prosecute for a local offense. ICE defines "criminal offender" as an alien convicted for one or more crimes, immigration fugitives (i.e., have outstanding orders of removal) or those previously removed or returned. Therefore, those not convicted of any crimes at all may be part of the 216,698 "criminal offenders", or they are part of the 73,399 people not labeled as criminal offenders.

Continue reading " SCOTUS Hears Arizona v. US: Fallout in the Trenches" »

Most people are confused about green card quotas and how they impact application processing times. Permanent immigration through a relative or work can take many, many years. This is because our legal immigration visa allocation system was established in 1965 and has only been amended a few times since, mostly dealing with how unused numbers spill into other categories. In 1965, Congress changed the visa allocation system from race based to country based calculations, designed in part to prevent any one country from monopolizing available immigration numbers. It is the system we still use today. This post attempts to explain the quota system more simply and provides some references to further explanations and background for what is otherwise a complex subject. The terms "permanent residence" and "visa" are used here interchangeably to refer to green card status obtained by 1) seeking an "immigrant visa" at a U.S. Consulate abroad, or 2) through "adjustment of status" in the U.S. at a USCIS office. There are differences in the two processes, but they both lead to permanent residence and they are based on the same family and work related categories. Both procedures require the applicant to be at the front of the line in the quota system in order to complete the application process and receive a green card.

What is the quota?

The quota is the annual allocation of permanent visas or green cards by country of birth and category. It should not be confused with bureaucratic processing delays or "agency processing times" that have more to do with available agency personnel, resources and priorities. Congress established a finite number of visas per country and per category. However, annual demand for green cards usually outweighs supply, thus creating a backlog. For FY2012 that began October 1, 2011, the annual worldwide limits are 226,000 family-based green cards and 140,000 employment-based green cards.

I tell my clients to think of the quota like a movie theater. Suppose there are only 100 seats in the theater but more than 100 people want to see the movie. Once the 100 seats are sold out, everyone standing in line has to wait until the next show. In the case of visas, that means waiting for the next month, or perhaps the next fiscal year to determine if a new group of visas (tickets) are available. Visas are allocated annually by category and country via a formula determined by Congress. Estimates, (note the word "estimate"), of visa availability are published monthly by the U.S. State Department in the "Visa Bulletin." The State Department refers to categories that are backlogged as being "oversubscribed." Where visas are available, the categories are said to be "current." Oversubscribed categories are referenced by a date, called a "priority date." The priority date is the date in which the applicant first got in line. If the Visa Bulletin shows dates, it means it is issuing visas to applicants who were in line prior to that date. Current quotas are reflected in the visa bulletin by a "C". If visas are not available at all, the category is noted by a "U." Priority dates are discussed in more depth below.

The annual "diversity visa" lottery also has a maximum limit. Generally, more applicants are notified than visas are available because many people will turn out not to qualify or will change their minds. But nonetheless, the demand exceeds the supply and creates a backlog or quota that is also reported monthly in the Visa Bulletin. The State Department has published a more detailed explanation of how the quota system works. For academic readers, data crunchers and historians, there are additional statistical reports on historical data, country, category and regional reports published by the State Department here.

Why is the quota important?

In order to receive an immigrant visa abroad at a U.S. consulate, or in order to apply for adjustment of status in the U.S., a visa must be "immediately available." In other words, the quota must be current in order to complete immigrant visa processing or to file for adjustment of status in the U.S. (Form I485). When there is a backlog in any visa category, the applicant cannot get into the theater and has to stand in line waiting for the next show, using the movie theater analogy above.

Thus, one could have filed initial labor certification (PERM) and/or visa petitions to start a case months or years before, but be unable to file the last set of paperwork due to the quota backlog. The quota need not be current to file PERM or visa petitions to start the immigration process. Another scenario that sometimes occurs is that one may have filed for an immigrant visa or adjustment of status when the quota was current, but while the application was being processed by USCIS or the State Department, the quota retrogressed or became backlogged. In that unfortunate situation, the State Department or USCIS can process the application but cannot grant it until the quota is current again. Therefore, it's important to track the quota in the Visa Bulletin on a monthly basis.

Continue reading "FAQs:Understanding Quotas and Green Card Delays: Why is My Case Taking so Long?" »

In an earlier post, Prosecutorial Discretion: "Backdoor Amnesty"? 9 Myths Debunked, I discussed the latest announcement from the Department of Homeland Security (DHS), that it will work with the Immigration Courts to cull from its docket "low priority" cases. The August 18, 2011 announcement by Homeland Secretary, Janet Napolitano, makes reference to two June 17, 2011 memos from Immigration and Customs Enforcement (ICE) discussing the criteria ICE should be using to determine if and when it will exercise prosecutorial discretion. As mentioned in the earlier post, discretion comes into play when the agency decides, weighing the good facts with the bad for a particular individual believed to be in the U.S. without proper documents, whether to arrest, detain, place in removal proceedings, continue with removal proceedings, or carry out an order of removal. So, just what are the criteria ICE will consider, and what will the courts consider in deciding whether to keep a case on its docket? Keep in mind that there were actually two memos issued on June 17, 2011 addressing broader enforcement priorities and one devoted to victims and witnesses of crimes and plaintiffs in civil proceedings.

General Enforcement Memo

The broader, more general memo on civil immigration enforcement priorities, mentions these factors to consider in deciding whether to favorably exercise discretion:

• the person's length of presence in the United States, with particular consideration given to presence while in lawful status;
• the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
• the person's pursuit of education in the United States, with particular consideration given
to those who have graduated from a U.S. high school or have successfully pursued or are
pursuing a college or advanced degrees at a legitimate institution of higher education in
the United States;
• whether the person, or the person's immediate relative, has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in
combat;
• the person's criminal history, including arrests, prior convictions, or outstanding arrest
warrants;
• the person's immigration history, including any prior removal, outstanding order of
removal, prior denial of status, or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person's ties and contributions to the community, including family relationships;
• the person's ties to the home country and conditions in the country;
• the person's age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical
disability, minor, or seriously ill relative;
• whether the person or the person's spouse is pregnant or nursing;
• whether the person or the person's spouse suffers from severe mental or physical illness;
• whether the person's nationality renders removal unlikely;
• whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime; and
• whether the person is currently cooperating or has cooperated with federal, state or local
law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the
Department of Labor, or National Labor Relations Board, among others.

ICE states: "This list is not exhaustive and no one factor is.determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities."

Continue reading "Prosecutorial Discretion Criteria: Questions Abound" »

On February 23, 2011, U.S. Attorney General Eric Holder sent a letter to Speaker of the House, John A. Boehner, indicating the Administration's decision not to further defend Section 3 of the Defense Against Marriage Act (DOMA) in two pending cases, Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.) and Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.) Although the general rule in immigration law is that the U.S. must honor the laws of the place where marriages (deaths, births and divorces) take place, DOMA provides an exception since DOMA declares that marriage can only be between one man and one woman. Accordingly, although same-sex couples can marry in several states and countries, for immigration purposes, these marriages are not recognized as either a category of direct spousal sponsorship, or in the area of dependent visas, or as qualifying relatives for waivers and other relief from removal or inadmissibility.

On March 31, 2011, Congressman Rush Holt (D-NJ) wrote to Homeland Security Secretary, Janet Napolitano, requesting that she immediately halt the deportations of same-sex binational couples and resolve the case of Henry Velandia.

Then, on April 6, 2011, approximately 85 organizations sent a joint letter to Secretary of Homeland Security (DHS), Janet Napolitano, Juan Osuna of the Executive Office of Immigration Review (EOIR) in the Justice Department, and Thomas Hussey of the Office of Immigration Litigation (OIL) in the Justice Department asking that:
• I-130 visa petitions and refugee/asylum relative petitions and others filed on behalf of married same-sex partners as principals or derivatives or self petitions under VAWA be held in abeyance pending development of interim measures or resolution of DOMA;
• Concurrently filed applications for adjustment of status and petitions if filed on the above grounds be allowed to be filed and held in abeyance;
• The agencies decline to initiate or continue removal proceedings against noncitizens who are principals or derivative beneficiaries on petitions filed by or on behalf of same-sex spouses, or grant deferred action status;
• Derivative applicants in asylum applications involving same-sex spouses be allowed to seek relief from removal, in addition to similar relatives in cancellation of removal, waivers or VAWA cases;
• Proceedings in immigration court be terminated, or allow motions to reopen or reconsider to administratively close or continue proceedings until there is a final judicial resolution regarding DOMA;
• OIL attorneys be allowed to agree to or not oppose requests for stays of removal in federal court litigation until the DOMA case is resolved or there is a legislative resolution concerning DOMA and/or to request a continuance or request the court to hold such cases in abeyance or to stay the order until there is a resolution concerning section 3 of DOMA.

The Administration took a historic step forward in announcing its conclusion that Section 3 of DOMA is unconstitutional and indefensible. A Massachusetts federal court has ruled that DOMA cannot withstand even rational basis review. See Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010).

In a blog post by Victoria Nielsen, Legal Director of Immigration Equality (www.immigrationequality.org), she recommends that same-sex couples:
• Not race to the courthouse to challenge DOMA since the House of Representatives is likely to defend it some how. Instead, litigants or potential litigants should consult Immigration Equality or the American Immigration Lawyers Association (AILA) to discuss litigation strategy and get amicus help.
• Getting married might now makes sense in certain situations where the person is already out of status or is on a dual intent visa. People coming and going on temporary nonimmigrant visas or the visa waiver program requiring a permanent home abroad should probably still not get married to preserve future rights to use temporary visas or else they will be denied entry if the border officials have reason to believe the applicant is coming to the U.S. to stay permanently.
• DHS is still denying I130s visa petitions for same-sex partners, so it would not be advisable to step forward and apply until there is a firmer policy in place that would help applicants.
• Advocating for better laws, policies, and interim relief may be a better strategy unless litigation is adequately coordinated with groups that know this area the best such as AILA and Immigration Equality. For example, while DOMA is challenged, an important strategy is to call upon Congress to enact the Uniting American Families Act ("UAFA"), a bill that would allow U.S. Citizens and Lawful Permanent Residents to sponsor their long-term partners for immigration benefits whether or not they are married. Senator Patrick Leahy (D-Vt) reintroduced UAFA on April 14, 2011. A similar bill was introduced in the House on the same day by Congressman Jerrold Nadler (D-NY).

Continue reading "Impact of DOMA Developments on Bi-National Couples" »

So sorry to my readers for not posting lately. As Chair of the Washington Chapter of the American Immigration Lawyers Association (AILAWA), I have been very busy the last few weeks writing letters, testifying and attending meetings before the Washington State legislature on several immigration related bills since our fair state decided to get into the immigration business this year. I was also in Washington, D.C. where together with AILA colleagues, we visited the members of the Washington Congressional Delegation to advocate for immigration reform. While in D.C., I also attended the AILA quarterly Board of Governors and AILA Chapter Chairs meetings. Meanwhile, our chapter held its annual Northwest continuing education conference in Portland, Oregon, hosted by the Oregon AILA chapter where I spoke on a panel about the fall-out of the Kazarian case dealing with the evidentiary standards for Employment Based Extraordinary Ability workers, and the new Request For Evidence templates and policy memorandum concerning visas for crème de la crème workers. Now I'm getting ready for our annual AILA national conference coming up in June in San Diego where I will be speaking on consular processing of family based visas. In between all of this, I have had to focus on client work. So, with that as background, I'm going to catch up with some more articles on a variety of topics, as there is never a shortage of news on immigration and citizenship issues.

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?" »

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.'"

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" »

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" »

"'Friendly Manitoba' Craves Immigrants'", reports the Seattle Times in a November 13, 2010 article. Our Canadian neighbor appreciates the benefits of immigration so differently than in this country, where anti-immigrant fervor gets louder every day, especially as high unemployment rates remain static. Yet how could the discussion of immigration be so different in our two countries?

In the U.S., immigrant rights groups are bracing for the new Congress to step up enforcement-only, anti-immigrant rhetoric without fixing the legal immigration system. But in Canada, Jennifer Howard, Manitoba's Minister of Immigration, is quoted as saying "I have yet to have people come up to me and say, 'I want fewer immigrants.' I hear, 'How can we bring in more?' "

The Canadian system allows the individual provinces to set their own immigration requests. Manitoba has crafted its immigration needs to fit the region, culture and economy where diversity is apparently favored, appreciated and encouraged. It nominates the people it wants using a point system. Semi-skilled workers are encouraged to apply as well as highly skilled workers and their families who bring $10,000 to help in transitioning to life in Canada. While there is some opposition, Canada has managed to avoid high unemployment while welcoming a proportionately larger percentage of legal immigrants than in the U.S.

On the other hand, the U.S. has higher unemployment and illegal immigration rates. U.S. proximity to Mexico as a source of illegal immigration is one factor. Ironically, Mexicans have fewer legal temporary or permanent immigration opportunities in the U.S. as do semi- and low-skilled workers from around the world. Congress has thus far failed to fix the legal immigration system for a modern economy. Instead, it has authorized record-setting spending on enforcement over the last decade resulting in the highest level of illegal immigration ever. At the same time, the number of highly skilled legal workers has declined even though immigrants are more likely to register patents for new technologies and start businesses that employ American workers. See "Ten Economic Facts About Immigration" by the Hamilton Project of the Brookings Institution. Perhaps Manitoba's different legal immigration approach and its holistic way of welcoming new immigrants is something Americans should consider.

On September 30, 2010, Rupert Murdoch, Chief Executive of News Corp., which owns Fox News, the Wall Street Journal and many other media outlets, along with New York City Mayor Michael Bloomberg testified before the House Judiciary Committee in support for immigration reform. Both recently founded the Partnership for a New American Economy, an organization of mayors and top business leaders who support expanding the types and numbers of visas for qualified workers in the U.S., as well as providing a path to citizenship for the millions of people in the U.S. without proper documents. Mr. Murdoch was questioned why his position on immigration reform is not evident from the anti-immigrant sentiment on Fox News, to which he replied, "we do not take any consistent anti-immigrant line." Both gentlemen expressed their frustration with Congress for doing nothing to fix the immigration system. As I discussed previously in my post, Comprehensive Immigration Reform Act of 2010 S.3932, Senators Robert Menendez and Patrick Leahy introduced S.3932 yesterday, the first Senate immigration reform proposal since 2007.

Mayor Bloomberg, meanwhile, said earlier that current US immigration policy is "national suicide." He said we should be stapling green cards to foreign students' graduation certificates and we should make it easier for immigrants to come here to start businesses.

The Partnership for a New American Economy, www.reneweourconomy.org, "brings together a bipartisan group of mayors from across the country and business leaders from all sectors of the economy to raise awareness of the economic benefits of sensible immigration reform." The Partnership advocates these essential components of comprehensive immigration reform: secure our borders; create a simple and efficient employment verification system for employers; increase visa opportunities for the best and brightest immigrants to work lawfully in the U.S.; streamline procedures; create a path to citizenship for undocumented immigrants; and strengthen immigrant and citizenship integration programs.