General information

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.

The U.S. Citizenship and Immigration Services (USCIS) National Children’s Art Project is currently underway and the agency is requesting that children between the ages of 5 to 12 years old draw pictures to answer the question, “People have come from all over the world to become Americans. Why does that make us great?” Submission forms are available at www.uscis.gov/childrensartproject and must be turned in by August 16, 2010. Participants’ art will be displayed in offices across the country and participants will be recognized during the 2010 celebration of the “September 11 National Day of Service and Remembrance.”

U.S. Citizenship and Immigration Services (USCIS) is seeking an increase in immigration application fees in order to offset the gap between the agency’s projected $2.1 billion in revenue and $2.3 billion in costs for 2010-2011. The proposed federal rule would increase fees by a weighted average of approximately 10 percent. Fees for citizenship applications would not increase. American Immigration Lawyers Association President Bernard Wolfsdorf expressed disappointment that the increased fees will not be accompanied by improvements in the quality or efficiency of USCIS decision-making.

USCIS has started issuing new versions of Green Cards, (I-551), which are actually green, and new Employment Authorization Documents, (EAD). USCIS started issuing the new cards in May but will still be accepting old Green Cards and EADs until their expiration date. The new cards have better security features and are less susceptible to fraud and counterfeiting. HR professionals should note these new changes for I-9 purposes.