Immigration Blog

by David Tuteur David Tuteur No Comments

New York Gives Immigrants the Green Light

The New York State Senate approved a bill on Monday that allows undocumented immigrants to obtain driver’s licenses.

vehicles on streetNobody really likes going to the DMV. But it’s a necessary annoyance that we’re actually lucky to endure, because it enables us to drive safely and legally on the roads. In New York, the latest group of people to join us all in complaining about going to the DMV is undocumented immigrants.

The bill, known as “Green Light NY,” reverses a 20-year-old rule requiring driver’s license applicants to have a social security number. Before 2001, immigration status had no effect on driver’s license eligibility in NY, but fears about national security after the 9/11 attacks instigated a push for stricter requirements.

Proponents of the bill say that it is helpful for everyone living in New York because it will decrease the number of hit-and-runs, reduce insurance rates for New Yorkers, and provide around $50 million in revenue for the state. The bill will also make a big difference for New York’s undocumented immigrant population, which includes almost 1 million people.

These predicted benefits are probably right on the money. Four years ago, Connecticut started allowing undocumented immigrants to obtain driver’s licenses. In just two years, hit-and-runs decreased by 9%. The Connecticut courts are less busy, as well, while the number of people found guilty of unlicensed driving over the past four years has decreased by 4,000.

New York is now one of thirteen states and D.C. that allow undocumented immigrants driving privileges. Among those states is Colorado, which is home to approximately 162,000 unauthorized immigrants. The law, called the Colorado Road and Community Safety Act, has been in place since June 2013.

The other states include California, Illinois, Washington, New Mexico, Nevada, Utah, Hawaii, Delaware, Maryland, and Vermont.

by David Tuteur David Tuteur No Comments

Percentage of U.S. Workers Who Are Foreign-Born Reaches 20-Year Peak

On Thursday, the Bureau of Labor Statistics, a division of the U.S. Department of Labor, released a report on labor force characteristics involving foreign-born workers.  According to the report, foreign-born workers now account for 17.4% of all U.S. employees, which is the highest percentage ever recorded since the U.S. Department of Labor began tracking the statistic two decades ago.  In 2000, the share of the labor force that was foreign born was 13.3 percent.

The report defines “foreign-born” individuals as those who reside in the United States but who were born outside the United States and neither parent was a U.S. citizen.  Foreign-born individuals include legally-admitted immigrants, refugees, temporary residents such as students and temporary workers, and undocumented immigrants.

Among other highlights in the report is that foreign-born men participate in the labor force at a rate over ten percentage points higher (77.9 %) than native-born men (67.3%).  Additionally, the median weekly earnings of foreign-born full-time workers ($758) is significantly less than the median weekly earnings for native-born workers ($910).

The difference in earnings reflects several factors including differences in education levels, occupation, industry of work, and geographic region.  As for education levels, the proportion of the foreign-born labor force age 25 and over that had not completed high school was 21.2 percent in 2018, much higher than the figure for the native-born labor force, at 4.1 percent.

While native-born workers earn more than foreign-born workers at most educational attainment levels, there is a relatively small gap between the earnings of foreign-born and native-born workers who have a bachelor’s degree and higher.  Among those with a bachelor’s degree and higher, the earnings of foreign-born workers ($1,362) were actually slightly higher than the earnings of native-born workers ($1,309).

by David Tuteur David Tuteur No Comments

Asylum Seekers Face Mandatory Detention After New AG Decision Denies Bond Hearings

On April 16th, Attorney General William Barr issued a decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), overturning a Board of Immigration Appeals (BIA) decision that had been the governing law for the last fifteen years.  Previously, some noncitizens who were transferred to “full” removal proceedings from “expedited” removal proceedings, based on a finding that they had a credible fear of persecution or torture, were eligible to be released from detention on bond.  Only some aliens so transferred, and those who remained in expedited proceedings, faced mandatory detention until their case was fully resolved.  Specifically, the BIA had ruled that “arriving” noncitizens, such as those coming into the U.S. at a port of entry, must be detained, but all other transferred noncitizens were eligible for bond.

The Attorney General’s new decision reversed the BIA’s ruling.  Now, unless paroled under INA §212(d)(5)(A), all noncitizens transferred from expedited to full removal proceedings based on a credible fear finding face mandatory detention until their asylum claim is decided; a process that can last months, or even years.

Notably, Matter of M-S- does not apply to unaccompanied minors nor families with children.  Under a 1997 decision, Flores v. Reno, often called the “Flores Agreement,” unaccompanied minors and families with children cannot be held beyond 20 days if they clear the credible fear screening.

Pending litigation on the constitutionality of holding noncitizens in mandatory detention beyond six months could prevent the change from going into effect, but barring an injunction, Barr’s decision will go into effect in July.  If the change goes into effect, it would tax an already heavily burdened court system and put new pressures on Immigration and Customs Enforcement (ICE) detention centers.  The Washington Post reports that detention centers run by ICE are holding a record 50,000 migrants, more than Congress has authorized, and some 400 immigration judges face a backlog of over  800,000 cases, which means that new cases are regularly scheduled for 2021 and beyond.

This latest development has added to the number of people calling for an independent court system outside of the Justice Department.  As the current immigration courts are part of the Justice Department, the Attorney General can unilaterally overrule cases that have been decided by the BIA.

by David Tuteur David Tuteur No Comments

Foreign Worker Talent Still Essential Despite More Difficult Process, U.S. Employers Say

In the latest edition of its Immigration Trends Report, the immigration firm Envoy Global says that up to 95% of United States employers believe that foreign nationals are important to their company’s talent acquisition strategy.  The report gathered responses from over 400 human resources professionals and hiring managers.  80% of employers said that, when compared to last year, they expect their foreign national headcount to either increase or stay the same.

Foreign workers are especially important in the science and technology fields; while less than 1% of all U.S. jobs are performed by foreign workers, they account for over 12% of all tech employees.  William Kerr, a professor of business administration at Harvard Business School, noted in the report that “immigrant talent now accounts for one in every 3.5 inventions in America, a dramatic growth from the 1970s, when foreigners contributed one in 12 patents.”

While U.S. companies rely on immigration for their future success, they are also reporting that the immigration process has become more difficult for them; 47% of respondents said their company’s visa application process has become more difficult compared with earlier years.  Envoy Global CEO, Richard Burke, reports that employers “confronted material increases in requests for evidence (RFEs), case denials, site visits, and new policy memos.”  Overall this has resulted in “heightened anxiety and uncertainty among foreign nationals, HR professionals and hiring managers.”  When asked whether RFEs had increased for their employees over the last five years, over half of respondents said yes.  RFEs are notices that agency officials send to applicants seeking more information for their applications, even after an application has been finalized and submitted to the agency for processing.  The report’s findings align with other data which shows that the share of RFEs issued for H-1B cases jumped to 60% in late 2018, a large increase from the 28% in the same period two years prior.

by David Tuteur David Tuteur No Comments

USCIS Plans to Close All International Field Offices

According to current and formal officials and an internal memo, U.S. Citizenship and Immigration Services (USCIS) is planning to close oversees offices that currently handle family visa requests, international adoptions and other tasks.  According to people with knowledge of the meeting, the director of USCIS, L. Francis Cissna, told senior staff members this week that the international division, which has 24 field offices in 21 countries, would close down by the end of the year.

USCIS Spokeswoman Jessica Collins confirmed that the agency “is in preliminary discussions to consider shifting its international USCIS office workloads to USCIS domestic offices in the United States and, where practicable, to U.S. embassies and consulates abroad.”

Officials at USCIS claim that closing the international field offices would save millions of dollars each year, but as Enrique Gutierrez and John Santos, media directors at the Democratic National Committee, said in a statement “the administration’s explanation that the move is an effort to cut government spending does not hold up since USCIS’s funding comes primarily from fees paid by people who use its services.”  Agency officials also claim that the move is intended to provide more staff resources to handle the backlog of asylum applications.

The international field offices currently provide, among other things, logistical assistance to U.S. Citizens, lawful permanent residents, and refugees seeking to bring family members to the United States, asylum seekers who wish to come to the U.S., Americans who adopt children internationally, and members of the military and their families applying for citizenship.

by David Tuteur David Tuteur No Comments

OVERALL DECLINE IN INTERNATIONAL GRADUATE STUDENT APPLICATIONS AND ENROLLMENT FOR SECOND YEAR IN A ROW

For the second year in a row, the number of international student applications and enrollment in U.S. institutions has declined. Based on a survey of 240 institutions who contributed data for both 2017 and 2018, the Council of Graduate Schools (CGS) reports that the overall number of graduate applications from prospective international students fell by 4%.  Between 2016 and 2017, the number of applicants had fallen by 3%.  While the number of doctoral applications increased by 1% between 2017 and 2018, the overall decline was driven by a 6% decline in master’s applications.

In a February 7th press release, CGS President Suzanne Ortega noted that “This is the first time we’ve seen declines across two consecutive years, and while we think it’s too soon to consider this a trend, it is troubling.”  While the survey report does not reach any conclusions as to the reason for the decline, the CGS President pointed to “issues, including changes in immigration and visa policy, with growing concern over the possible negative impact to the U.S.’s image as a welcoming destination for international students and scholars.”

Many commentators attribute the decline to increasingly burdensome U.S. immigration policies. One such change rescinded a 2013 policy which required USCIS adjudicators to request additional information from applicants before denying applications. The new policy gives USCIS adjudicators “full discretion to deny applications, petitions, or requests” without seeking additional information.

Another policy change is particularly worrisome for F-1 student visa holders, the most popular student visa. One of the statutory bars to future admissions into the U.S. is known as the “unlawful presence” bar.  Any alien who accrues more than 180 days, but less than a year of unlawful presence is prevented from re-entering the U.S. for three years.  Those who accrue a year or more of unlawful presence are barred from re-entry for ten years.  Previously, F visa holders started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed.  Under the new policy, F visa holders now start accruing unlawful presence the day after they no longer pursue a course of study, or the day after they engage in an “unauthorized activity.”  This means that international students could start accruing unlawful presence without ever having been formally notified that they are doing so.  These policy changes may be creating a chilling effect on international students’ decision to come to the U.S. for education.

 

by David Tuteur David Tuteur No Comments

Proposed Rule to Eliminate H-4 Employment Authorization Program Submitted by Trump Administration

On Wednesday, the Trump administration’s proposed rule for eliminating the H-4 EAD was submitted to the Office of Management and Budget (OMB) for review.  The administration had previously published an agenda item in December of 2017 titled Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization, indicating their intent to remove the current H-4 employment authorization document (EAD) rule that has been in place since 2015.

The Obama administration created the H-4 EAD program to allow the spouses of certain H-1B skilled workers to be employed while in the U.S.  The H-4 EAD has been particularly important for families that are awaiting approval for permanent residency.  Without the H-4 EAD, these dependent spouses cannot work in the U.S. until they receive green cards, a process which can often take many years, especially for immigrants from countries like India and China that send a lot of high-skilled talent to the U.S.  Since the rule went into effect, more than 90,000 spouses have been approved for work permits.  More than 90 percent of those who would be affected by the removal of the program are women.

Once the OMB reviews the proposed rule, it will be published in the Federal Register.   Upon publishing, a comment period occurs after which the administration must review the comments and make any necessary revisions before the rule is finalized.  Litigation could potentially delay the rule for months or years longer.  The proposed rule has not escaped the attention of Congress where a bill was introduced in the House of Representatives called the “H-4 Employment Protection Act of 2018” (H.R.7150) which seeks to protect the program.

by David Tuteur David Tuteur No Comments

FEDERAL JUDGE ORDERS DOD TO STOP DISCRIMINATING AGAINST NATURALIZED CITIZEN SOLDIERS

A federal district judge in Seattle has ordered the Defense Department to stop discriminating against naturalized citizens who volunteered to serve in the U.S. Army under the Military Accessions Vital to the National Interest (MAVNI) program. The MAVNI program was created in 2009 to attract immigrants with specialized skills such as critical foreign language skills or specialized healthcare training in exchange for an accelerated path to citizenship.  NPR’s Richard Gonzales reports that “[m]ore than 10,000 soldiers have served in the U.S. military through the MAVNI program.”

However, the program was frozen in 2016 due to security concerns. The Department of Defense has required MAVNI participants to undergo “continuous monitoring” which includes security checks every two years, even after discharge if the participants worked for the government or government contractors. No person affiliated with the DoD, other than MAVNI participants, was required to undergo such checks absent particularized suspicion.

The plaintiffs, 17 naturalized citizens who enlisted through the MAVNI program, argued that the increased scrutiny represented unconstitutional discrimination based on national origin. The Pentagon argued that the ongoing security checks were necessary for national security and that they were not based on the plaintiff’s national origin, but on the manner in which they enlisted into the Army.

Judge Thomas Zilly noted however, that the “defendant’s witnesses acknowledged that no MAVNI soldier who has become a naturalized citizen has ever been charged or convicted of espionage or any other criminal offense or been denaturalized.” Judge Zilly found that the evidence in the case “shows that the DoD was aware of the equal protection violations that would arise if naturalized MAVNI soldiers were treated differently from other citizens, but it nevertheless persisted in the discrimination.”

by David Tuteur David Tuteur No Comments

SUPREME COURT NOT LIKELY TO REVIEW DACA THIS TERM

On January 22, 2019, the Washington Post and Politico reported that the Supreme Court is unlikely to review the U.S. Court of Appeals for the 9th Circuit’s decision on Deferred Action for Childhood Arrivals (DACA) this term.  The 9th Circuit blocked the Trump administration from ending DACA, and SCOTUS’ decision not to intervene this term preserves the status quo.  This means the Trump administration is required to continue accepting renewals, but not new applications to the DACA program.

The Trump administration moved to end the Obama-era program in 2017, but the 9th Circuit rejected the administration’s theory that DACA was unlawful and kept the program in place.  Those individuals who have been approved for the program are protected from deportation and allowed work permits so long as they follow its regulations and do not violate laws.

Notably, the 9th Circuit opinion did not rule that DACA could not be rescinded as an exercise of executive power, but only that the decision to end DACA was based on an erroneous view of what the law required.

Based on the high Court’s normal procedures, even if it accepts the case at a later date, it would not be argued until the new term starts in October, with a decision likely in 2020

by David Tuteur David Tuteur No Comments

DHS PROPOSES CHANGES TO H-1B LOTTERY

On November 30, 2018 the Department of Homeland Security (DHS) announced a proposal to amend the regulations regarding the allocation process for H-1B cap-subject petitions. Under the proposed rule, all U.S. employers seeking to file H-1B cap-subject petitions would need to first electronically register with U.S. Citizenship & Immigration Services (USCIS) during a designated registration period. USCIS would then conduct a lottery from the pool of electronic registrations, and only those selected would be eligible to file a petition for adjudication.

The number of visas available under the H-1B program is capped at 65,000 annually, with certain employers and petitions being exempt from this cap. An additional 20,000 visas are reserved for individuals who hold advanced degrees from U.S. higher education institutions. Because demand for visas far exceeds the number of visas available, a lottery system has been used to determine which petitions are selected for processing.

Along with requiring electronic registration, the new proposal would also reverse the selection process. Under the proposed rule, all qualified registrants would participate in the lottery to fill the regular 65,000 cap first, and then those not selected who hold advanced degrees would participate in the lottery for the advanced degree cap.

If the rule is finalized as proposed, but there is insufficient time to implement the new registration system in time for the opening of the Fiscal Year 2020 H-1B cap filing season on April 1, 2019, USCIS has announced that it would likely suspend implementation of the new registration system.

This rule is a proposal only and is not yet in effect. The attorneys at Stern & Curray will continue to monitor the situation and keep you informed.

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