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.”
New Opportunities for Immigration Visas for Entrepreneurs
Gridlock in Congress has prevented the passage of new immigration visa opportunities for entrepreneurs, including the “start-up” visa program. On August 2, 2011, the Secretary of Homeland Security and the Director of USCIS announced a series of initiatives to make current immigration law more responsive to the needs of entrepreneurs. This initiative creates some interesting new approaches for obtaining nonimmigrant and immigrant visas for entrepreneurs and the talented professionals who they need to be successful in their enterprises.
Our firm is developing strategies for using this new initiative, in conjunction with existing immigration rules and regulations, to create a platform for obtaining appropriate visas for foreign-born entrepreneurs and the talented foreign-born individuals they seek to hire.
Please contact our firm for further information.
U.S. Consulate General, Mumbai Resumes Interviews for H and L Visas
In March, 2011 the U.S. Consulate General in Mumbai announced a partial reduction in its visa operations. The Consulate suspended all new H and L visa appointments, directing applicants to other U.S. Consulates in India and the Embassy in New Delhi. This moratorium was attributed to the consulate building’s aging infrastructure; the Consulate was forced to shut down several interview windows, largely limiting its visa processing capacities. The Consulate recently reported that it had resumed interviews for new H and L visas. The first interview appointments were scheduled for September 6, 2011. Given that 65 percent of H-1B visas are issued to Indian applicants, this news will positively affect thousands of Indian nationals.
September 8th Hearing on the American Specialty Agricultural Act (ASAA)
The house judiciary subcommittee on immigration enforcement will be holding a hearing on Thursday, September 8th on the American Specialty Agricultural Act (ASAA). The Act would eliminate the problems plaguing the H-2A program and institute a new visa category and program titled the H2-C program. The ASAA hopes to rectify the problems with the current H2-A visa program that have resulted in the majority of agricultural growers avoiding the use of the H2-A program altogether. The H-2C program contained in the ASAA would be distinct from the H-2A program in the following ways:
• Rather than the Department of Labor, the Department of Agriculture would administer the H2-C program. Historically, many agricultural growers agreed with the assessment of economist James Holt that there is “a culture of hostility toward the H2-A program and program users within the Department of Labor”. By replacing the Department of Labor with the Department of Agriculture as the H-2C program administrator, this culture of hostility would hopefully be eliminated.
• While the H2-A program originally included an attestation based process, this process was rescinded by the Obama administration. The H2-C program will return to an attestation based process. This process will reduce the necessary paperwork to hire a H2-C worker because an employer can attest to compliance with the program requirements rather than filing numerous forms with the Department of Agriculture.
• The H2-A program has an adverse effect wage rate formula for calculating the wages for H-2A workers. This formula often resulted in wages that were too high for employers to be competitive with other growers who were employing illegal immigrants. The ASAA eliminates the adverse effect wage rate formula and instead requires H2-C employers to pay the occupational prevailing wage in their locality, which is the same requirement for other temporary worker visa programs.
• The H2-A program requires employers to provide their guest workers with free housing. The ASAA allows growers to provide either housing or a housing voucher payable to a landlord. Consequently employers are no longer charged with the expense of providing free housing for their guest workers.
• The H2-A program, despite clear statutory language indicating otherwise, requires employers to pay transportation costs for all guest workers once they begin their employment in the U.S. if they decide to leave their employment at any time. This rule was instilled by the eleventh circuit in their decision in Arriaga vs. Florida Pacific Farms, LLC. The ASAA rejects the Arriaga opinion and rule and only requires an H2-C employer to pay for the transportation costs for their workers if the worker completes 50% of the work contract.
• Under the H2-A program, the 50% rule requires employers to provide employment to U.S. workers who apply for employment until H2-A workers have completed 50% of their work contract. The purpose of this rule was to ensure that U.S. workers who desired agricultural work were not displaced by H2 workers. However, this rule has had an adverse effect on the growers business because they are typically required to employ both U.S. and H2-A workers to ensure that they have a sufficient agricultural workforce in the event that U.S. worker decide to leave before the end of the agricultural period. The ASAA completely eliminates the 50% rule.
• Under the H2-A program, H2-A employers are required to guarantee employment for H2-A workers for at least three-fourths of the days covered by their employment contracts. The ASAA reduces this guarantee for the H2-C program to a more reasonable 50% of the workdays for the employment period.
• Dairies and other agricultural producers have not used the H2-A program because they employed their workers on a year round basis rather than on a seasonal basis, and the H2-A program is only available for temporary or seasonal work. The ASAA eliminates the requirement that such visas are only available for temporary or seasonal workers. Consequently, agricultural producers and dairies will be able to take advantage of the H2-C program because they will be allowed to employ full time, non-seasonal employees.
• Under the H2-A program, the efficacy of the program and the cost of the program to employers was frequently undermined by litigation. The ASAA hopes to reduce frivolous litigation by allowing growers to include binding arbitration and mediation clauses in their contracts with H2C workers. Furthermore, the ASAA provides that the federally funded Legal Services Corporation (LSC) may not sue an H2-C employer on behalf of H2-C workers unless mediation has been attempted through the federal mediation and conciliation service.
• Temporary agricultural visa programs have been criticized based on the assertion that temporary agricultural workers are anything but temporary, but rather stay in the U.S. illegally following their period of temporary employment. To address this concern, the ASAA does the following. First, the H2-C program does not allow temporary workers in the U.S. to bring their families with them during their periods of employment. The rationale behind this rule is that a person’s family is their strongest tie to their place of residence. Second, the bill requires that H2-C workers return home after ten months of work. Third, all H2-C employers are required to promptly alert the Department of Homeland Security if a worker has been fired or voluntarily left their employment.
• The H2-C program allows up to half a million foreign workers a year to receive H2-C visas. Based on statistics from the University of California at Davis and the Department of Labor, this allocation of temporary agricultural visas is projected to cover the needs of agricultural growers and producers.
Please check back with the Stern & Curray news blog to find out what new developments arise from the September 8th hearing on the ASAA and the proposed H-2C program.
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.
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.
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.
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”.
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.
Colorado General Assembly 2011 Session Immigration Legislative Summary
The 2011 session of the Colorado General Assembly drew to a close in early May after months of tough decisions for lawmakers. The session saw a host of immigration bills and resolutions. Certain anti-immigrant bills would have negatively impacted individuals who are lawfully present in the country or targeted marginalized migrant populations in Colorado. The constitutionality of other bills was questionable in the larger context of federal immigration law, and some bills would have hiked state and local spending without generating tangible benefits to local communities. Debate on these bills was emotional and lengthy. Representatives from agriculture, tourism, hotel, lodging, and restaurant industries spoke out in opposition to some of the proposed legislation.
Almost all immigration-related bills and resolutions this session – including provisions that would have authorized police to require proof of citizenship or lawful presence upon a vehicle stop, increased bond requirements for arrested individuals who were suspected of being undocumented, and complicated voter registration – were summarily rejected by the Legislature.
HB11-1003: Define ID for Voting
This bill would have required a government- issued photo ID for election-related purposes. It was postponed indefinitely in the Senate.
HB11-1088: Bond for Persons Illegally Present
HB 1088 would have increased disincentives for bail bondsmen to provide bail to arrested people who might be undocumented, and would have required advising the court and district attorney before bail being set if there were reasonable grounds for believing the defendant might be undocumented. The bill was postponed indefinitely in the Senate.
HB11-1107: State Illegal Immigration Enforcement
An omnibus immigration bill, HB11-1107 echoed much of the Arizona approach to immigration issues in employment and law enforcement found in Arizona SB-1070. One provision authorized police to contact anyone they suspected of being an illegal immigrant, while another required lawful immigrants to carry their papers on them at all times. The bill was postponed indefinitely in the House.
HB11-1140: Strengthening Illegal Alien Laws
HB11-1140 would have sanctioned local governments that did not participate in the Secure Communities program. Postponed indefinitely in the Senate
HB11-1252: Proof of Citizenship for Voter Registration
This provision would have directed the Secretary of State to compare public databases and determine if there was evidence indicating registered voters were not citizens. Voters notified by the Secretary of State that there was evidence indicating they were not citizens would be obliged to prove citizenship. The bill was postponed indefinitely in the Senate.
HB11-1309: Prevent Unlawful Employment & Human Smuggling
Another omnibus immigration bill addressing employment and law enforcement issues, HB11-1309 was postponed indefinitely in the Senate. Among its objectives, HB11-1309 sought to criminalize stopping and blocking traffic to hire and pick up passengers for work at a different location, and would have made any record related to a person’s immigration status admissible in a court without further foundation or testimony from a custodian of records.
SB11-054 Authority to Arrest Unlawful Aliens
SB11-054 would have authorized police officers to make arrests without a warrant if the officer had probable cause to believe that the individual was in violation of certain immigration provisions. It was postponed indefinitely in the Senate.
SCR11-002 Voter Registration Proof of Citizenship
This Senate Concurrent Resolution would have referred to the voters a state constitutional amendment providing the same citizenship investigation of registered voters as set out in HB11-1252, above. The resolution was postponed indefinitely in the Senate.
SCR11-003 Elected Official Proof of Citizenship
SCR11-003 would have referred to the voters a state constitutional amendment providing that anyone elected to public office in the state of Colorado must provide proof of citizenship along with the oath of office. Postponed indefinitely in the Senate.
SCR11-004 Require Employers Use E-verify
This bill proposed an amendment to the state constitution that would have required all private employers in the state to use the federal E-verify System for establishing eligibility for employment and set out significant sanctions for employers found in violation. Postponed indefinitely in the Senate