General information

Whether I am watching an unedited independent film in a small local theater or a film that won the Grand Jury Prize at the Sundance Film Festival, there is something very exciting about film festivals. Filmmakers are eager to share their artistic expressions and answer questions about their experiences making movies. Audience members readily give their undivided attention. And unlike the limited formats given to the news or presidential candidate debates, films tell a complete story. The inaugural American Immigration Lawyers Association (AILA) Film Fest at the Annual Conference in Nashville this year is sure to be a hit.

Immigration films are important because they shape the public’s perception of immigrants. They offer viewers a chance to connect with characters and in turn, our clients. Filmmakers can educate the general public about why our current immigration system needs to be fixed. The lack of poetic justice can make viewers feel uncomfortable with the fairness of our immigration laws. Films can be persuasive, arguing against the border wall for example, or they can simply examine a unique perspective on immigration. No matter how many clients and different types of cases I have, it is always eye opening to see the points of view expressed in films about immigration.

The AILA Film Fest will offer a variety of feature films and shorts. For those of you that I won’t see on the red carpet, here are the films to check out:

The Other Side of Immigration
Based on over 700 interviews, The Other Side of Immigration asks why so many Mexicans leave home to work in the United States and what happens to the families and communities they leave behind. Through an approach that is both subtle and thought provoking, the film challenges audiences to imagine more creative and effective immigration policies.

Lost Boys of Sudan
Lost Boys of Sudan is an Emmy-nominated feature-length documentary that follows two Sudanese refugees on an extraordinary journey from Africa to America. Orphaned as young boys in one of Africa’s cruelest civil wars, Peter Dut and Santino Chuor survived lion attacks and militia gunfire to reach a refugee camp in Kenya along with thousands of other children. From there, remarkably, they were chosen to come to America. Safe at last from physical danger and hunger, a world away from home, they find themselves confronted with the abundance and alienation of contemporary American suburbia.

SHORT: Next Door Neighbors: Somali Soomaali & Little Kurdistan, USA
Nashville Public Television’s award winning Next Door Neighbors series looks at Nashville’s status as a new destination city for refugees and immigrants, and explores the rich diversity of people now calling Nashville home. Across the United States, mid-sized cities like Nashville, TN are experiencing unprecedented growth in their international populations. Together these communities are redefining the traditional international city on a smaller local scale.

Tony & Janina’s American Wedding
This film follows a Polish American family through the red tape of the current U.S. immigration system, telling the untold human rights story of post-9/11, that every undocumented immigrant in America faces today.

The Least of These
Detention of immigrant children in a former medium-security prison in Texas leads to controversy when three activist attorneys discover troubling conditions at the facility. This compelling documentary film explores the role – and limits – of community activism, and considers how American rights and values apply to the least powerful among us.

SHORT: The Invisibles
Every year, thousands of migrants face kidnap, rape and murder in Mexico. Driven by grinding poverty and insecurity back home, they travel through Mexico in hope of reaching the USA with its promise of a better life. But all too often their dreams are turned to nightmares. Told over four parts, The Invisibles exposes the truth behind one of the most dangerous journeys in the world and reveals the untold stories of the people who make the journey north through Mexico.

Papers
“Papers” is the story of undocumented youth and the challenges they face as they turn 18 without legal status. There are approximately 2 million undocumented children who were born outside the U.S. and raised in this country. These are young people who were educated in American schools, hold American values, know only the U.S. as home and who, upon high school graduation, find the door to their future slammed shut.

The Visitor
Sixty-two-year-old Walter Vale is sleepwalking through his life. Having lost his passion for teaching and writing, he fills the void by unsuccessfully trying to learn to play classical piano. When his college sends him to Manhattan to attend a conference, Walter is surprised to find a young couple has taken up residence in his apartment. Victims of a real estate scam, Tarek, a Syrian man, and Zainab, his Senegalese girlfriend, have nowhere else to go.

SHORT: Border Stories
Border Stories is re-imagining the documentary, one with no beginning, middle, or end. Its only linear aspect is the border itself. Our crew travels the length of the U.S.–Mexico border, from Brownsville, Texas to Tijuana, Mexico in search of stories that portray the human face of this politically and emotionally-charged region.

The Commissioner of U.S. Customs and Border Protection (CBP) has approved the Native American Tribal Card issued by the Kootenai Tribe of Idaho as an acceptable travel document for purposes of the Western Hemisphere Travel Initiative. This designation, which became effective on January 31, 2012, allows Kootenai Tribe members to establish identity and citizenship by showing their approved card when entering the United States from contiguous territory or adjacent islands at land and sea ports of entry.

The Western Hemisphere Travel Initiative (WHTI), effective June 1, 2009, specifies the documents that U.S. citizens and non-immigrant aliens from Canada, Bermuda, and Mexico are required to present when entering the United States at land and sea ports of entry. Pursuant to the initiative, an approved Native American Tribal Card is among the acceptable documents that may be used to establish citizenship and identity upon entry into the United States when traveling from contiguous territory or adjacent islands.

On March 3, 2009, CBP and the Kootenai Tribe signed a Memorandum of Agreement (MOA) to develop the Tribe’s cards and evaluate their use for border crossing purposes. In accordance with the MOA, the cards are issued to Kootenai Tribe members who are able to establish identity, tribal membership, and U.S. or Canadian citizenship. CBP tested the cards, which contain various physical security features, and determined that they meet the requirements for acceptable documents under the WHTI. CBP’s ongoing acceptance of the Kootenai Tribal Card as a WHTI-compliant document is conditional on compliance with the MOA and other related agreements.

The Immigration Policy Center released a report titled “Rebooting the American Dream; the Role of Immigration in a 21st Century Economy.” This report discusses the current problems with our immigration system and also well documents the positive impacts both employment based immigration and family based immigration have on the American economy. Regarding the need to fix our current immigration system, the report is particularly enlightening. Significant changes to our immigration system have not been made since 1990 when the immigration act of 1990 create the five tiered employment based immigration system and also instilled the current numerical limits. The entire immigration system has not been overhauled since 1965. The fact that no significant changes have been made since 1990 is particularly concerning considering the drastic economic changes to our economy since that time. From the high tech bubble that began in 1999 to the deep recession we currently find ourselves in, it is striking that our immigration system has not addressed these changes. Our current employment based immigration system allows for 140,000 immigrants annually. Included within this number are the immigrant’s eligible spouses and minor children. Consequently the actual number of workers receiving green cards is much lower than 140,000. Because of numerical limitations, many foreign workers have to wait up to ten years or more before receiving their green card. More than one million high skilled immigrants are currently awaiting employment based green cards. Currently, demand for highly skilled workers not only outstrips the supply of employment based immigrant visas, but the current broken system makes it very difficult for skilled workers to immigrate to this country. These problems are resulting in many skilled immigrants evaluating new options for their long term residences. Many countries are also changing their own immigration laws so that they can more effectively compete with other countries with attracting the most highly skilled workers throughout the globe. Countries such as China and India which have historically produced some of the highest numbers of skilled immigrant workers, are now much more actively putting into place domestic policies to retain their talented citizens. These new policies have resulted in an increased number of Chinese and Indian nationals who have studied in the U.S. returning to their home countries. This has also resulted in greater retention of these highly skilled workers in the first place. In a recent study where many foreign students were interviewed at American universities, only 6% of Indians and 10% of Chinese students said they plan to remain in the U.S. Three quarters of these students said they feared they would not receive longer term visas. Resultantly, the U.S. is experiencing a brain drain of talented foreign skilled workers for the first time in our history. Talented immigrants are also returning to their home countries in greater numbers to found companies there, when historically many of these immigrants chose to found their new companies in the United States. Research has revealed that the broken immigrating system is part of the reason many of these workers are returning home for their entrepreneurial pursuits.

The report also clearly discusses the positive effect immigrant labor has on the U.S. economy. U.S. cities with higher immigration rates have experienced greater economic growth than those cities without high immigration rates. From 1990 to 2006, Phoenix, Dallas, and Houston experienced the fastest growth of immigrant labor in their workforce and these cities also had above average economic growth. In contrast, the slowest growing U.S. cities, Cleveland, Pittsburgh, and Detroit, had the smallest increases in immigrant labor. It is also a proven fact that most immigrant labor compliments the U.S. workforce rather than replaces U.S. workers. Immigrant labor is concentrated on the two ends of our workforce spectrum. These workers tend to fill positions at the bottom of the educational skill or at the top of the educational skill while in contrast Americans tend to fall somewhere in the middle. By complimenting and filling the gaps in the U.S. labor workforce, immigrant labor spurs economic growth. In the high tech and scientific fields, immigrant labor is playing a particularly important role. A December 2008 study released by the Harvard business school showed that 50% of scientists and engineers with doctorate degrees are immigrants and they account for a 67%increase in the United States science and engineering workforce between 19995 and 2006. The report also shows that immigrant labor has a net positive effect on wages of U.S. born workers and that the H-1B program results in job growth for all workers in the American economy. According to a report by the National Foundation of American Policy, for every one H-1B position requested, U.S. technology companies are employing five more workers in the following year. Consequently, the ability to hire temporary skilled workers through the H-1B program allows spurs overall job growth for U.S. companies.

The report also highlights a very important role of immigrant labor. Because of the aging baby boom population, there will an insufficient amount of U.S. workers to replace this aging population. If this shortfall is not addressed by foreign workers, there will be a fiscal crisis both with social security and Medicare. Consequently, an immigrant workforce is critical in addressing our labor shortfall that will result with the aging of the baby boomers. To understand the scope of this problem, between 2010 and 2030 the ratio of seniors “65 and up” to working age adults “25 to 64” will soar by 67%.

The report also highlights how important immigrant workers are to innovation and entrepreneurship. A June 2011 report from the partnership for a new American economy found that more than 40% of the 2010 fortune 500 companies were founded by immigrants or children of immigrants. Various reports show that immigrants are far more likely to found successful companies than U.S. born workers. This is particularly true in the high tech industries. The report also shows that immigrants are three times more likely to file patents in the U.S. than U.S. born citizens. This is the result of a disproportionally higher percentage of foreign degree holders in science and engineering than U.S. degree holders. To review the report in its entirety, go to the link below:
http://www.immigrationpolicy.org/special-reports/rebooting-american-dream-role-immigration-21st-century-economy

Alabama immigration law H.B. 56 is serving the purpose of the lawmakers’ intent—driving many of the state’s estimated 120,000 undocumented immigrants to pack up and head out of the state. The result is that many farms are left without the labor necessary to harvest the crops.

A substantial portion of farm workers there, as in other states, are undocumented. Alabama lawmakers who support the law insist that, by driving undocumented workers out, they will open jobs for Americans; the unemployment rate in the state is nearly 10 percent. But farmers say that jobless U.S. workers, mostly inexperienced in field work and concentrated in and around cities, are mostly unwilling to do the work required to plant and harvest tomatoes, squash, cucumbers and other crops. Farmers also say that, if they were to raise wages to make the jobs more attractive, as advocates for the new law suggest, crop prices would soar, making Alabama produce uncompetitive.

Many farmers state that if the immigration law is going to stand, legislators need to come up with solutions to prevent local agribusiness from going under. The debate is also raging in neighboring Georgia where the Georgia Department of Agriculture reports that this year’s harvest was short 11,000 workers, which farming advocates say was the result of immigrants leaving the state.

The uproar over the effect of these immigration laws on farms has exposed the nation’s hypocrisy over “unskilled” immigrants, whose legal entry into the country is blocked in most cases even though their labor remains much in demand. Congress and the federal government have simply failed to establish an adequate supply of visas for the immigrant labor drawn to the United States by the jobs. Some lawmakers, including Rep. Lamar Smith (R-Tex.), are suggesting the creation of a guest-worker program to recruit sufficient numbers of farm hands and other “unskilled” workers. In talking with the Birmingham News, Alabama state Rep. Jeremy Oden (R) said one solution was a temporary-worker program that would allow workers from outside the US to work here seasonally. Others say that the workers required are already in the United States and a more logical solution would be to allow them to legalize their status and provide a path for citizenship with various proposed requirements.

USCIS announced October 20, 2011 that it will resume sending original receipt notices to the Attorney of Record. Recently, USCIS had changed its policy and had begun to send original receipt notices to the petitioner, which in most cases is the employer. This has caused a great deal of confusion and extra work for employers, so the return to the prior system is quite welcome.

Immigration and Customs Enforcement (ICE) reported that 396,906 individuals were removed from the U.S. in Fiscal Year 2011, the largest number in the agency’s history. What do these numbers mean? The administration prioritized certain areas, including the removal of individuals who have broken criminal laws, threats to national security, repeat violators of immigration law, recent border crossers, and immigration court fugitives. However, according to the American Immigration Lawyers Association (AILA), about 45% of the individuals removed had committed only civil immigration offenses. The other 55% were convicted of felonies or misdemeanors, with many of the misdemeanors being minor violations created specifically to convert civil immigration violators into misdemeanor criminals. A June 2011 Memo from ICE Director John Morton encourages those enforcing immigration laws to use their discretion in deciding the types of individuals who should be removed from the U.S. The factors that would deem an immigration case a low priority include good behavior, schooling, ties to America, and economic contributions. According to Eleanor Pelta, AILA’s president, “Unfortunately, Morton’s June guidance is for the most part going unimplemented in the field … Instead of spending money and time removing low-enforcement individuals from the country, ICE is supposed to be going after the really bad guys who could do us harm … ICE still has a long way to go.”

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.

Director of Immigration and Customs Enforcement (ICE), John Morton, recently issued a Memo outlining guidance to ICE agents and attorneys on exercising prosecutorial discretion. Specifically, he stated that ICE personnel may exercise prosecutorial discretion based on certain factors, including how long an individual has been in the U.S., what the individual’s status has been during his/her time in the U.S., circumstances regarding the person’s arrival and stay in the U.S., the individual’s education while in the U.S., the individual’s family ties to those with lawful status in the U.S., the individual’s immigration history, the individual’s criminal history, and the Agency’s immigration enforcement priorities, among other factors. Director Morton also clearly stated that no individual has a right to prosecutorial discretion.

The U.S. government has unveiled a new initiative to combat the unauthorized practice of immigration law (UPIL). The unauthorized practice of immigration law occurs when a person gives legal advice who is not an attorney or accredited representative. The Department of Homeland Security (DHS), the Department of Justice (DOJ) and the Federal Trade Commission (FTC) will be working together on this new initiative. The new government initiative will focus on enforcement, collaboration and education to combat UPIL. To increase enforcement, DOJ will dedicate more resources to the investigation and prosecution of UPIL cases and increase their collaborative efforts by working with the FBI, ICE, USCIS and state and local agencies.

The system for reporting instances of UPIL has also been improved. The Federal Trade Commission has made it easier to report incidents of fraudulent immigration practice or immigration scams. Victims of immigration fraud can call the FTC hotline to report instances of UPIL. To file a complaint in English or Spanish visit the FTCs online complaint assistance (www.ftccomplaintassistant.gov) or call 1-877-FTC-HELP (382-4357). The FTC database, the consumer sentinel network, is shared with more than 2,000 law enforcements agencies and also with ICE, DOJ and USCIS. Prosecutors and investigators will use these complaints to investigate instances of UPIL.

To increase education regarding immigration law, USCIS has designed a new brochure, a poster, a public service announcements and a new web resource center. These efforts are aimed at providing better education to the immigrant community regarding the unauthorized practice of immigration law and where to go for legal advice. For more information about the USCIS education initiative program, visit www.uscis.gov/avoidscams.

Education about UPIL will also be improved by making the public more aware of the Executive Office of Immigration Review (EOIR) recognition and accreditation program. While non-lawyers are allowed to practice immigration law, they are only permitted to do so if recognized and accredited by EOIR. EOIR accreditation signifies that an organization and designated members are qualified and able to provide immigration advice and services. The government plans to increase the use of the accreditation program so that immigrants are able to more easily identify whether or not an organization is properly qualified to provide immigration services. For more information on the EOIRs recognition and accreditation program, please visit the DOJ website www.justice.gov/eoir/statspub/raroster.htm.

The Social Security Administration has recently begun issuing no-match letters which inform employers that an employee is using a social security number that does not match the information held by SSA. Employers enjoyed a long break in receiving the letters, as SSA had stopped sending them in 2007.

Currently, the SSA is sending one letter per employee for which the information does not match. Like the prior letters, the current version reminds employers that there many reasons for mis-matched data.

We recommend that employers who receive no-match letters first check their records to see if they have provided the correct information. If the employer’s records are correct, we recommend notifying the employee, in writing, and explain that the employee needs to take steps to fix the problem, such as contacting SSA. We believe 120 days is a reasonable time since Social Security Administration’s own manual states that it can take two months or longer for an individual to get a replacement SS card. Additionally, the original Department of Homeland Security (of which all the immigration agencies are part) rules (now rescinded) allowed 90 days. Additionally, the Office of Special Counsel of DHS suggests 120 days as a reasonable time frame.

For further issues related to SSA no-match letters we recommend employers contact counsel.