Month: August 2011

by SCwpadmin SCwpadmin 288 Comments

Department of Homeland Security Releases New Guidance on the Exercise of Prosecutorial Discretion in Low-Priority Immigration Cases

On June 17, 2011, John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), released a memo setting forth the policy regarding the exercise of prosecutorial discretion by certain agency employees. This policy gives certain ICE agents the discretion to decide to what degree they will enforce immigration laws against a particular individual.

Prosecutorial discretion will be implemented in furtherance of the enforcement priorities of ICE, as set forth in a March 2, 2011 memo entitled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens”.

According to this new directive, ICE will prioritize the use of its enforcement personnel, detention space, and removal resources to pursue the removal of aliens who pose a threat to national security, public safety, or the integrity of U.S. immigration laws. ICE officers, agents, and attorneys may consider any relevant factors in deciding whether to grant favorable discretion, including but not limited to: length of presence in the U.S., family ties and contributions to the community, physical or mental illness, serious medical conditions, criminal history, pursuit of education in the U.S., immigration history, and risk to national security or public safety. When considering an exercise of favorable discretion, ICE agents, officers, and attorneys are to base their decision on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.

ICE also specified certain categories of undocumented aliens that should prompt special care and consideration in the exercise of discretion. Examples of these categories include: Veterans and members of the U.S. Armed Forces, long-time lawful permanent residents, minors and elderly individuals, pregnant women, and victims of domestic violence or other serious crimes.

In an effort to further this enforcement policy, an interagency working group composed of ICE and Department of Justice staff will execute a case-by-case review of all individuals currently in removal proceedings to ensure that they meet ICE removal priorities. The group will monitor new cases as well, to ensure that cases continue to meet these priorities.

While those in removal proceedings or their counsel may request a review of their case for prosecutorial discretion, it is unclear at this time whether those requests will be granted before the case-by-case review by the interagency group is completed. Additionally, ICE attorneys are encouraged to consider using their discretion without waiting for a request from those in proceedings or from counsel.

While the exercise of prosecutorial discretion is not a right, and does not provide categorical relief for any particular group of aliens, it is a step in the direction of recognizing inconsistency in the current enforcement of U.S. immigration laws, and in allowing productive members of the undocumented community to avoid lengthy detentions and removal to countries they no longer call home.

by SCwpadmin SCwpadmin 27 Comments

USCIS Creates New Initiative to Support Entrepreneurs

On August 2, 2011 the Secretary of the Department of Homeland Security and the USCIS Director held a press conference and announced a new initiative to promote start-up enterprises and to spur job creation in the United States.

Entrepreneurs, leaders in the venture capital world, and immigration lawyers have long complained about the negative impact of immigration rules and regulations on the ability of entrepreneurs to create start-up enterprises in the United States which will help the economy and lead to new jobs. It appears that Secretary Napolitano and Director Mayorkas now recognize this problem and are taking steps to create a more hospitable environment for entrepreneurs in the United States.

While many initiatives lack specificity, or do not make substantial structural changes, we hope that this initiative will change the attitude of USCIS adjudicators and make them view applications from entrepreneurs in a more favorable light.

The one very interesting new proposal is the possibility that entrepreneurs may be able to obtain permanent resident status based upon the national interest waiver process. Our firm has extensive experience in processing and filing NIW applications and we look forward to working with entrepreneurs who seek permanent residence status through this new approach.

Time will tell whether there is any substance to this new initiative. We hope that USCIS will take this initiative seriously in order to support entrepreneurs who want to create new businesses in the United States.

by SCwpadmin SCwpadmin 25 Comments

U.S. Department of Labor Update on Prevailing Wage Determination

Unfortunately, prevailing wage determination requests to the US Department of Labor remain under suspension with no indication of when they will resume. Due to federal litigation, the Department of Labor is under a court order to reissue a large number of H-2B wage determinations. They report that they are using all their resources to comply with the court order and therefore all other prevailing wage determinations are under suspension. The American Immigration Lawyers Association is attempting to obtain information regarding what, if anything, can be done in time sensitive cases.

by SCwpadmin SCwpadmin 25 Comments

Good News for College Professors and Teachers

In a recent decision, the Board of Alien Labor Certification Appeals (BALCA) held that the required journal ad for a special handling labor certification application does not have to be a print ad. Specifically, BALCA determined that an ad placed in an electronic journal filled the requirements of 20 CFR §656.18(b) of placing an ad in a “national professional journal”.

by SCwpadmin SCwpadmin 66 Comments

Half of 2011 California DREAM Act Signed into Law

On July 25, 2011, Gov. Jerry Brown signed a California bill (AB 130) that would allow undocumented immigrants to receive privately funded scholarships to attend state colleges and universities. AB 130 is set to take effect on January 1, 2012. The second half of the California DREAM Act (AB 131) would expand AB 130 to include some state-sponsored financial aid, which undocumented students are currently ineligible to receive. AB 131 is still in legislative committee.