Articles Posted in S. 744

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On March 13, 2014, President Obama called for a review of the Department of Homeland Security’s (DHS) enforcement practices. However, this week he announced that he would delay this effort until summer’s end if Congress does not pass legislation in the remaining few legislative sessions before then. Hoping to extend an olive branch to the more restrictionist GOP House members, the President is hoping to give them a window of opportunity to take up immigration reform legislation in the coming weeks.

Almost a year ago, the United States Senate passed an immigration reform bill, S.744. But, the House of Representatives has never brought a reform bill for a vote on the floor. This is due in part to a deeply divided Republican party, where a minority of anti-reform representatives is holding the issue hostage in no small part because of mid-term elections. Most of these anti-reform Republicans are from gerrymandered, mostly white districts who hope to be re-elected or to elect more Tea Party favorites whose mantra is to oppose immigration benefits and to increase enforcement.

President Obama is caught in the middle, however. He has failed to satisfy immigrant advocates by his inaction in reviewing and humanizing deportation policies and improving immigration benefits adjudication trends. Yet, by merely suggesting he would review the policies, the Republicans have used their frequently used excuse to do oppose anything the President does by declaring him untrustworthy in implementing the law. Nonetheless, every day that goes by when Congress does not act on immigration reform, more families are being torn apart under a broken immigration system; businesses cannot hire the workers they need; and DHS will detain and deport another 1,000 people a day–many of whom could apply for legal status if reform is enacted.

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The H-1B cap situation is even worse than last year, which means employers are continuing to hire. USCIS announced today that it received 172,500 H-1B petitions for 85,000 available visas, compared to 124,000 last year. These were received at USCIS during the first week of April for the FY2015 filing season for specialty occupations with selected employees scheduled to begin work on October 1, 2014 (unless employees already have some underlying work authorization). Because the number of petitions far exceeds the supply, there will be a lottery. Unselected cases and fees will be returned to the petitioners or their attorneys. Such a large number of applicants for so few visas reflects yet again, that the H-1B cap introduced in the 1990s simply doesn’t work or match the needs of the economy.

During the recession, the number of filings was far fewer than in growth years. But even then, the cap was reached in a few months instead of a few weeks or a few days. Congress has quite the disconnect with employers’ needs. On the other hand, this year’s group of selectees may be pretty lucky for reasons other than numbers. S. 744 passed by the Senate last year, while raising the cap, would have also made the program much harder for employers to deal with in lots of other ways, especially those employers who place workers at third party sites. What Congress should really do, in this author’s opinion, is make a separate set of rules and numbers for third party placements so that their unique situation does not bleed into the needs of the majority of employers who do not conduct third party placements. Whatever Congress ends up doing in the future, if anything, if ever, it should be a program that can be easily understood, that is useful to employers, protects immigrant and US worker rights alike, and makes it predictable for employers to be able to know when and how they can assign H-1B workers to timely projects. Most employers are dealing with a fast paced environment, with quickly changing products, technologies and services over short life cycles. They need a predictable work visa system that matches the needs of employers all year long to staff important projects.

What H-1B filings are still available for the rest of the year?

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Immigration lawyers from around the U.S. are in Washington, D.C. today to visit their legislators asking them to vote on immigration reform proposals. Regardless of political persuasion, most people agree the current immigration system is dysfunctional and the laws need to be brought into the 21st century to meet the needs of families, businesses and the country as a whole. Immigration advocates argue that a common sense, balanced reform proposal should include:

  • Safeguarding the borders while also respecting the U.S. Constitution and fundamental values; ensuring that enforcement is done in a humane and balanced way that complies with due process, including protection of detainees, families and children, and the right to fair hearings and counsel in immigration court. Any enforcement program should have achievable and measurable objectives, plus better and consistent training of border agents.
  • A family based legal immigration system that unites loved ones, including adult sons and daughters without regard to age, the siblings of U.S. citizens, and LGBT family members. Reforms should also reduce or eliminate the backlogs, thereby making “getting in line” more meaningful and realistic.
  • A business based legal immigration system that allows all types and sizes of employers to have access to workers through an updated and efficient work visa system for the 21st century. This would accommodate the workforce and modern ways of doing business, with built in protections for immigrant and U.S. workers. This should include adding new visa categories and numbers, fixing existing visa and green card options, and reducing the backlogs so there is “a line to get into.” Further, employers need an employment verification system that they can understand, using a reliable government database, and involving simple ways to document work authorization status.
  • A legalization program for the undocumented population that is wide, inclusive, and provides an opportunity for citizenship after a reasonable period of time rather than endless years of a meaningless status.

Immigration advocates argue that reform of the nation’s immigration laws on all of the issues above must be done at or near the same time, whether in a comprehensive bill or in several piecemeal bills. Each of the components above is intertwined with the others. Further, immigration reform would benefit the economy, according to the Congressional Budget Office (CBO). The CBO previously estimated that the Senate’s reform package, S. 744 passed last June, would reduce the federal deficit by $158 billion over the next 10 years and $686 billion over the following decade.

For those who argue the Administration has not done enough to deport people, the statistics just do not bear that out. The U.S. has deported 400,000 on average per year in this Administration, soon to be two million individuals since President Obama, known by some as the “Deporter in Chief,” took office. This has cost the taxpayers $2 billion annually. Removals without due process, in other words, without a hearing before an Immigration Judge, now account for 70% of all annual removals. And of those, most do not meet ICE’s stated priorities. For more information on the details of these statistics as they relate to ICE’s enforcement priorities, see Misplaced Priorities: Most Immigrants Deported by ICE in 2013 Were A Threat to No One. Just how the deportation numbers shake out is a matter of controversy, but for a good discussion of the reality, see The Challenge of Measuring Immigration Enforcement in the United States.
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This blog post discusses my personal reflections about the impact of the fall of DOMA on same sex couples from an immigration lawyer’s perspective. I have interviewed and represented numerous same sex couples in the first quarter since the U.S. Supreme Court ruled in June 2013 that section 3 of the Defense of Marriage Act (DOMA) impermissibly violated the equal protection clause of the U.S. Constitution. In U.S. v. Windsor, the Court required the federal government to recognize same-sex marriages in over 1000 laws, including immigration provisions. Since the Windsor case was decided, the Board of Immigration Appeals, in Matter of Zeleniak, confirmed that immigration law recognizes the law of the place where the marriage takes place, allowing same-sex couples to benefit from fiance(e), marriage and derivative visas, waivers, cancellation of removal, and other spouse-based benefits in immigration law. In addition, USCIS has added more FAQs on the subject, and the American Immigration Council, in cooperation with Immigration Equality, has issued a practice advisory for lawyers. Literally, within minutes of the Court’s decision, our office was inundated with calls. From this Seattle immigration lawyer’s perspective, it has been the most interesting time in my law practice in decades. For the first time in ages, it is very rewarding that a new benefit is available that can help a lot of people. And it fosters keeping families together. Below, I divide my observations into several themes about the kinds of issues same sex couples are facing.

Each of the many couples with whom I have spoken with have very different fact patterns. Therefore, it is impossible to describe trends in very broad strokes. However, that reinforces my long standing opinion that couples should seek quality legal advice before filing applications, whether they do it themselves or with counsel. Why? Because every case is different and demands a customized strategy, since there is no one-size-fits-all solution for everyone. Couples are often surprised to learn that just because immigration law now recognizes same sex marriage if legal in the jurisdiction where it took place, it does not guarantee that the path to a green card and citizenship will be easy, fast, recommended or available at all. Well, welcome to the real world of immigration law! Now same-sex couples get to face the same issues, complications, and bureaucracy that heterosexual couples have always experienced. Our laws are complex, procedures are often slow, mind-boggling, and/or frustrating. Below, I break down the broad themes I’ve seen by whether couples are living abroad together, living bi-nationally, or living in the U.S. together. The focus of this blog post is on marriage and fiance(e) visas between U.S. citizens and foreign nationals. In upcoming posts, I will address foreign nationals married to permanent residents, and dual foreign nationals needing principal or derivative nonimmigrant or permanent visas.

Couples Living Abroad

1. Can the couple marry where they are?

If not, we are looking at the K-1 fiance(e) visa alternative, or ability to travel to third countries with marriage equality laws that preferably do not have residency requirements to marry. Immigration Equality has a good website FAQ on U.S. states and foreign countries that permit same sex marriage, Where Can We Marry? If going to a third country, can the couple get visas to go there to marry or to reside long enough to meet residency and consular jurisdiction requirements, if any? We are also looking at alternative visa options (work visas, other family sponsorships, or other programs). In some very narrow situations, some couples with stable jobs or businesses abroad may come to the US and marry, and then leave the US to complete consular processing. This requires very careful planning to assure that there will not be any false representations made to the border agents.

2. Are there children involved?

It is very important to evaluate whether a couple will immigrate with children because of age-out issues. To immigrate as a child of a US citizen or with the spouse of a US citizen, the child must be under 21 and unmarried. This will entail evaluating whether children can qualify as step-children if the marriage takes place before they are 18, or if they are older, using the fiance(e) category instead to preserve their age to 21. In the latter case, the children would immigrate as derivatives (K-2) of the principal fiance(e) K-1. Fiance(e) visas are more involved and costly because once the fiance(e) arrives in the U.S., the couple must marry within 90 days and then proceed to file a green card application based on that marriage. I expect that as time goes on, we will see more complicated family law issues depending upon how the couple’s children joined the family. In addition, there may be issues involving the Child Status Protection Act to preserve age, among others issues such as adoptions, surrogate children and more.

3. Is the U.S. citizen “domiciled” in the U.S.?

For affidavit of support purposes, required for marriage based cases, the U.S. citizen must be willing and able to take “concrete steps” to resume domicile in the U.S. on or before the foreign national’s immigration to the U.S. Surprisingly, there are many U.S. citizens living “in exile” abroad because until the WIndsor case, there was no U.S. spousal immigration option for living with a same sex spouse in the U.S. if the foreign national could not get a visa. Thus, many U.S. citizens have built lives for themselves abroad, including running businesses overseas.
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Just a quick note about yet another exciting and historic moment here at the American Immigration Lawyers Association Conference in San Francisco. The Senate just passed the ““Border Security, Economic Opportunity, and Immigration Modernization Act” with a bipartisan vote of 68 to 32! This is a mixed bag bill with lots of good stuff: pathway to legalization for the undocumented, albeit a very long and arduous path, some new visas for investors and entrepreneurs, retirees and guest workers, plus a new point system. It will supposedly help those in line waiting for the quota to move up but it will also eliminate some family based categories and the diversity lottery by moving those folks into the new point system. The enforcement provisions are harsh and very, very expensive and will no doubt become even harsher in the House. It is definitely a compromise bill, but it is also very historic to have come this far and in its scope.

Meanwhile, over in the House, they have been working on largely piecemeal enforcement bills and one skills bill that looks somewhat decent in terms of work visa legislation. However, there will be no bill at all if the House and Senate cannot get on the same page to get a bill over to conference committee and a final vote in each house by fall. Stay tuned.

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Just a quick post before I head to San Francisco for the annual American Immigration Lawyers Association conference. S. 744 is on the way to a vote within the next few days, only now with a GOP peacemaking feature to keep the bill moving. It now contains provisions for 40,000 Border Patrol boots on the ground (anyone need a job?) and more fencing (700 miles) to the tune of $46 billion dollars (i.e., the full employment bill for government contractors providing border enforcement technology and services). The National Immigration Forum has a good summary of where things are at. Yesterday’s Corker-Hoeven amendment substitutes the entire bill with much tougher enforcement provisions as a trade off to keep the bill moving with the path to legal status provisions (“RPI”), amendments to the legal immigration system, and E-Verify and employer sanctions. The enforcement provisions would be paid by taxpayers and fees paid by immigrants using the legal immigration system. All of this would occur, of course, while illegal immigration is at the lowest in 40 years.

Many people question whether so many border agents (potentially standing 250-1000 feet apart) and so much fencing are worth the price. Ironically, the ACLU and the Border Patrol have reached a tentative deal in a northern border case involving racial profiling. While this case, brought by three US citizen plaintiffs, was pending, there were rumblings by northern Border Patrol agents about being bored stiff when the new Port Angeles, Washington station opened up and hiring tripled in the area. Indeed, some officers worked with local law enforcement agencies as back up in smaller northern border towns, and they also provided interpretation services. This was stopped by DHS directive in December 2012. The bottom line: Do we need this amount of resources thrown at the border? What will it accomplish and can we afford it? Who really pays for it and who really gains from it?

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At first, it sounds so simple: If the US Supreme Court determines that the Defense of Marriage Act (DOMA) is unconstitutional, then many same-sex spouses expect to file their immigration petitions with USCIS immediately. But, I recommend caution. Getting married does not always solve a foreign national’s immigration problems. In addition, the path to status is long and arduous. There is nothing speedy about it. More importantly, there are many issues to consider before rushing to file. The mere act of being able to marry doesn’t by itself ensure legal immigration status. I’m always surprised in my Seattle immigration law practice how many heterosexual couples think that just getting married solves all their problems, when in fact getting married may be only the beginning of a long journey to legal status. Occasionally, getting married doesn’t help at all due to the foreign spouse’s immigration or criminal history. Therefore, I recommend having a consultation and thorough analysis of one’s case by a competent lawyer who understands immigration and LGBT issues.

A few weeks ago, I attended a very informative training held by Immigration Equality for its constituent attorneys. There are so many interesting issues to think about, some of which are quite complex or require further advocacy or legal fixes beyond the DOMA decision. As I head off to this week’s annual American Immigration Lawyers Association Conference in San Francisco, with the prospect of networking with hundreds of lawyers in a room together discussing the impact of DOMA’s demise, I can just imagine all the different scenarios and questions that will come up from analyzing the cases we see daily in our practices.

The following are just a few interesting questions raised by the prospect of DOMA’s demise, should it become reality. Some of the questions have easier answers than others, several remain unresolved, or the answer would depend upon the facts:

1. To which marriages will the ruling apply: place of domicile or place where the marriage was celebrated? Given that only some states and some countries have legalized same-sex marriage, this could be an interesting issue. Generally, for immigration purposes, the government recognizes the law of the place of celebration. There are special rules, however, that apply to transgender individuals and couples. Speaking of domicile, there are many stories of bi-national couples who had to leave the U.S. because the foreign national was either deported or ran out of authorized stay. The US citizen petitioner must eventually be domiciled in the U.S. for affidavit of support purposes, which means the citizen must return to the US on or before the foreign national’s immigration back to the US.

2. Where can one marry? A list of states and countries can be found on the Immigration Equality website. The more interesting question is where can people get divorced? Some states have residency requirements. In addition, if a waiver of inadmissibility is required along with a qualifying relative for the waiver (such as a US citizen or green card holding spouse), how and where was that relationship established and was it legally celebrated?

3. What would be the effect on civil unions? That is not clear yet. For immigration purposes, it may be better to get married, if that is possible. It may take some time to get clarity on what will happen with civil unions state by state, and USCIS may need to clarify further as well.
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During the coming week, we could see two historic events: announcement by the US Supreme Court on the constitutionality of the Defense of Marriage Act (DOMA), and a Senate floor vote on S. 744, the comprehensive immigration reform bill. Both are likely to occur while this Seattle immigration lawyer and thousands of my fellow immigration lawyers from around the country will be convening at the annual American Immigration Lawyers Association (AILA) conference in San Francisco. (Something big always happens during AILA conferences. Last year, President Obama announced “DACA”, Deferred Action for Childhood Arrivals for the DREAM Act youth [as in the DREAM Act that has never been passed by Congress to date, but features of which are included in S. 744.] The year before, it was the administration’s Prosecutorial Discretion initiative. And the year before that, President Obama gave his lackluster speech on his plans to tackle immigration reform). In any event, this week, it’s a race to see who will make history, if any: how will the Supreme Court rule on DOMA and whether the Senate will allow voting on Senator Patrick Leahy’s amendment to permit equal treatment of same-sex couples under immigration law, among many other features of the Senate bill.

On June 11, 2013, Senator Leahy (D-Vt) introduced Amendment 1182, also known as the Uniting American Families Act, during which time many other amendments were introduced. However, amendment 1182 was “ordered to lie on the table,” which means it is not debatable but could come up for a vote at a later time, no doubt, after the Supreme Court decision, if it rules that DOMA is unconstitutional. If the Supreme Court does not act in favor of LGBT families, in theory, the Congress could pass a bill or an amendment to this bill to create a specific right for same-sex couples to gain immigration benefits. However, this is very unlikely in the context of S. 744, given the make up of the House and and the other features of the bill that need to pass, and because the conservative wing of the GOP would be “vindicated” by the Court if it issues a negative reaffirming DOMA.

Meanwhile, on June 20, Senator Leahy introduced a Manager’s Amendment to get the most non-controversial amendments moving in the Senate in the next few days. Previously, when S. 744 was before the Senate Judiciary Committee, Senator Leahy withdrew his amendment in order to save the overall bill from what would have been certain demise by the GOP conservatives who felt LGBT equality would kill the bill. Taking much heat from that move, Senator Leahy re-introduced his amendment again on the Senate floor, no doubt to preserve his legacy on the issue and just in case the Supreme Court gives DOMA its demise. The full Senate is scheduled to vote on the S. 744 after debate on the amendments, supposedly by the end of this week. Then it will face a nasty battle in the House, if the House can even come up with its own comprehensive bill over the summer. Right now, the House is working on piece meal legislation instead, most of which deals with enforcement.

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On Tuesday, May 14, the Senate Judiciary Committee completed another round of markups to Title IV of the comprehensive immigration reform (CIR) bill, S. 744. Besides additional enforcement provisions, the Senate tackled amendments to the proposed immigration law, particularly the various nonimmigrant work visa categories. The following is a short summary, the details of which can be found here with individual amendment text here. A number of Senator Hatch’s proposed amendments to the H and L visa programs are scheduled for hearing on Thursday of this week. Many of the GOP members’ amendments deal with protecting US workers and making the legal immigration system fund border and interior enforcement activities or fund improvements to education in the STEM fields. However, the key takeaway is that the amendments that were approved were approved by and large with bi-partisan support. The Senate webcast of the debate can be found here.

The work visa amendments that passed May 14 include:

1. Schumer #1: Technical corrections related to employment and family backlogs; Department of Homeland Security (DHS) to set wage levels for the new guestworker W visa category instead of the Department of Labor (DOL), the usual overseer of wage levels. Imposes the new J-1 $500 fee on summer programs only; W visa fee to fund research.

2. Whitehouse #6: DOL to create a toll-free number and website for people who feel they have been kicked out of their jobs by a foreign worker, with the program to be reviewed by the Attorney General within a year.

3. Grassley #58: Requires the new H-1B internet job posting ads to have more specifics. Yes, you read that correctly – overall, S. 744 would require H-1B petitioning employers to advertise for US workers BEFORE sponsoring them. The parameters of that are still being negotiated. (However, in this Seattle immigration lawyer’s opinion, the ad requirement, new fees and high wage requirements will most likely cause the demise of this visa category for new and small businesses at least.)

4. Hatch #9: Increases a newly proposed fee to $1000 for permanent labor certifications (PERM). Until now, there has been no fee for PERM applications (despite their time consuming nature for applicants and the government). This amendment would also direct some H-1B fees for STEM education and scholarships.
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Below are highlights from today’s opening Senate Judiciary Committee hearing on S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act.” Overall, the Committee considered 32 amendments to Title I concerning border security. The Committee adopted 21 amendments, of which 20 were adopted by a bipartisan vote. The debate and voting can be viewed on C-Span. The Committee will meet again at 10 o’clock next Tuesday.

After first approving by 14-4 the Sponsors’ amended version of the entire bill, the Committee voted on a package of amendments:

Leahy 1 (prohibits border crossing fees at land ports of entry)