Header graphic for print

Global Immigration Blog

Congress Conflicted over Funding to Address Undocumented Minors Crossing Border

AUTHOR:  Raazia K. Hall.

Approximately 57,500 unaccompanied minors have crossed the border illegally since October.  President Barack Obama has requested $3.7 billion to care for them, speed up deportation proceedings and attempt to deter illegal immigration.  Senate Democrats proposed a $2.7 billion package, but the House Republicans offered less than $1 billion on July 25, instead of the $1.5 billion that had been expected.  On July 29, House Republicans announced the funding has been pared down even further to a $659 million package.  The large gap between the two Houses will not only be significant to state, federal and other government agencies, but also for future immigration policies.

Computer Glitch at State Department Causes Major Delays for U.S. Passports and Visas

AUTHOR:  Helen Pihlstrom.

A technical glitch in the U.S. State Department’s global database for issuing travel documents is causing major delays for those around the world applying for a U.S. visa or passport, according to Washington Post and Associated Press reports.

It is not clear when travelers may expect the delays to be resolved. Companies with employees who frequently travel internationally should keep tabs on the resolution of the problem. Foreign national employees who have upcoming plans to renew their U.S. visas while abroad should likewise be aware of potential delays. However, Americans re-entering the U.S. with a valid U.S. passport should not be affected.

The State Department reported on its website that, as of July 27, it is working on restoring the system to full functionality. While the system is down, immigrant cases, including adoptions visas, will be prioritized.

Although the number of individuals directly affected is unknown, it could be great as the agency processes millions of visas and passports each year.

Obama to Take Executive Action to Fix Broken Immigration System

AUTHOR: Maggie Murphy

“If House Republicans are really concerned about me taking too many executive actions, the best solution to that is passing bills,” said President Barack Obama on June 30, 2014.  “Pass a bill. Solve a problem. Don’t just say no on something that everybody agrees needs to be done.”

These statements come a week after House Speaker John Boehner told President Obama that the House would not vote this year on immigration reform.  The President responded that if Congress refuses to act, he would  act by issuing  Executive Orders to send more resources to the Mexico border to detain and deport undocumented immigrants.  He has instructed Department of Homeland Security Secretary Jeh Johnson and Attorney General Eric Holder to present executive actions he can take without congressional approval by the end of the summer.

Immigration reform has been a priority for President Obama during his second term.  Over the last year, the U.S.-Mexico border has been flooded with immigrants from Central America – many of them unaccompanied minors.  Obama said the thousands of unaccompanied children showing up on the border underscore the need to drop the politics and act on immigration. He wants to focus immigration resources on the border to deter illegal entry and to deport recent, unlawful border-crossers who present a national security, public safety, or border security threat.

Deportations have spiked during the Obama administration – reaching nearly two Million so far, which is close to the number of deportations completed during the full eight years of the Bush administration.  Obama had asked the DHS Immigration & Customs Enforcement division to delay reviewing deportation policies, hoping the House would pass the immigration reform bill proposed and passed by the Senate in 2013.  “I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing,” Obama said. “And in this situation, the failure of House Republicans to pass a darn bill is bad for our security, it’s bad for our economy and it’s bad for our future.”

Jackson Lewis’ national team of dedicated immigration attorneys will continue to monitor and report on these issues.

Washington Federal Court Rules Temporary Protected Status Constitutes a Lawful Admission

AUTHOR:  Kevin Lashus.

Employers in industries traditionally vulnerable to unintentional hiring of unauthorized foreign nationals (such as in the construction, manufacturing, and hospitality industries) because of the prevalence of sophisticated fraudulent documents may get some relief from violation of law, at least as to workers who are Temporary Protected Status-eligible beneficiaries. 

A federal court in Washington has ruled that a noncitizen’s Temporary Protected Status (TPS) qualifies as “inspection and admission” into the United States and, therefore, he is eligible for a status adjustment to “legitimate” himself. Ramirez v. Dougherty, No. 13-CV-01236 (W.D. Wash. May 30, 2014).   Under the Immigration and Nationality Act, inspection and admission are eligibility requirements for lawful permanent residence (LPR) status.  Jesus Ramirez, the plaintiff, was granted TPS in 2001 following a devastating earthquake in El Salvador, his home country.

The Secretary of Homeland Security would designate a foreign country for TPS because of conditions in the country that temporarily prevent the country’s nationals from returning safely. The Secretary also may make such a designation where the country is unable to handle the return of its nationals adequately.  In nearly all cases, the TPS-eligible foreign national entered the United States without inspection or overstayed his or her visa; as a result, the employee is unauthorized to work in the United States prior to applying for and receiving the TPS benefit.

Ramirez sought to become an LPR on the basis of his marriage to a United States citizen.

Before the federal court ruling, the Government had taken the position that once granted TPS, an individual could not pursue residency because the foreign nation was never “admitted.”  The District Court disagreed.

In addition to finding support for its decision in the language of the TPS statute, the court noted there are important policy reasons—stressing that Mr. Ramirez had been in the United States for approximately 15 years, had established roots here, and “has waited his turn for an independent, legal, and legitimate pathway to citizenship, through the immediate relative visa application.”

Relying on a Court of Appeals for the Sixth Circuit decision, the court found the government’s solution (which would require Mr. Ramirez to leave the country, be readmitted, and then go through the immigration process all over again) was a “waste of energy, time, government resources, and will have negative effects on his family.”

Following this decision, a large portion of the estimated 11.2 million unauthorized foreign nationals residing and working in the United States likely TPS beneficiaries are eligible to adjust status.  In other words, workers working under false pretenses who are TPS-eligible beneficiaries are now eligible to adjust status to become “legitimate.”  Thereby, erasing the employer’s exposure associated with the employee’s prior status.

Making an announcement without legal advice is not recommended; contact your immigration attorney to find out how educating the workforce in this regard may assist in decreasing administrative exposure.

DOS Warns against Third-Country Nationals using Canadian Consulates until Fall for Visa Processing

AUTHOR:  Davis Bae.

The Department of State has informed the American Immigration Lawyers Association that due to increasingly heavy demand by Canada-based visa applicants, the seven U.S. visa processing posts in Canada are extremely limited in their ability to accept third-country nationals (TCNs) cases during the peak demand period of June, July, and August. This explains the increased difficulty of scheduling visa processing appointments for TCNs at U.S. Consulates in Canada. Emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.

Canadian posts encourage such applicants to seek appointments elsewhere in the world, such as in the applicant’s home country. Appointments are available for TCNs during non-peak processing times, such as October and November, and January through May.

Immigration Reform Unlikely

AUTHOR:  KoKo Huang.

While Barack President Obama has delayed taking action on deportations to give House Republicans the opportunity to take action on immigration reform, it seems unlikely to happen soon.

House Majority Leader Eric Cantor (R-Va.) released a memo, dated June 6, 2014, outlining the GOP-led House’s legislative priorities for June.  Among them are government funding on transportation, housing and urban development agencies, and agriculture and defense; as well as the SKILLS Act, which aim to improve job skills for workers.  Immigration reform is not included.

Advocates for immigration reform worry this summer may be the final opportunity for an overhaul on immigration legislation this year.  While it appears that some House Republicans are trying to work toward that goal behind the scenes, immigration reform continues to face seemingly insurmountable obstacles in Congress.

Use of E-Verify Does Not Relieve Employer of I-9 Verification Duty

AUTHOR:  Harry Joe.

An employer was not absolved of its failure to complete I-9 Employment Eligibility Verification Forms for employees in a proper and timely manner and to produce them during an audit and inspection simply because it used E-verify to check the employment authorization of its employees, an administrative law judge has ruled. The ruling arose in United States v. Golf International d/b/a Desert Canyon Golf Club, decided on March 26, 2014, by the Department of Justice’s Office of the Chief Administrative Hearing Officer.

Desert Canyon is a semi-private golf club in Scottsdale, Arizona. It was the subject of an I-9 Inspection and Administrative Subpoena. In the course of the audit, 157 I-9s were produced for active and terminated employees.  Desert Canyon was charged with failure to sign Section 2 of 107 I-9s, of which 93 were entirely left blank. In addition, Desert Canyon also was charged with failure to ensure that employees had properly completed Section 1 of the I-9 in 11 instances. In the course of the audit, Desert Canyon corrected the omissions in Section 2 of the I-9s and submitted the information to E-Verify.

Before the ALJ, Desert Canyon contended that because it used E-Verify, it was entitled to a rebuttable presumption that it had not violated the employment authorization verification requirements of Section 274A of the Immigration and Nationality Act. Moreover, it argued, its use of E-Verify was sufficient to accomplish the verification and attestation requirements in Section 2 of each I-9 and that failure to complete Section 2 had been excused.

The ALJ ruled that Desert Canyon’s use of the E-Verify employment verification system did not provide it with a “blanket protection” from fine proceedings for failure to properly complete an I-9 form for each new employee. The ALJ alluded to the E-Verify Memorandum of Understanding between the Department of Homeland Security and Desert Canyon that ” The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.”

The ALJ ruled that Desert Canyon was liable for 125 violations for the failure to ensure that employees properly completed Section 1 of the Form I-9 and the failure to properly complete Section 2, and that 4 violations had also been established for a failure to prepare and present I-9 forms upon the government’s request for inspection.

Tempest in a Teapot: Congress and the President Spar over Immigration Reform Prospects

AUTHOR:  Sean G. Hanagan.

At a recent White House law enforcement event, President Barack Obama took the opportunity to pressure Republicans in the House of Representatives to present an immigration reform bill this summer in advance of the November mid-term elections. 

House Speaker John Boehner (R-Ohio) has made comments supportive of immigration reform and issued a “statement of principles” developed by House Republican leadership addressing immigration reform in January. As reported by the Cincinnati Inquirer, the Speaker was careful earlier this month to distinguish that proposed roadmap to legal status for some illegal aliens from an outright amnesty.  ”I reject that premise. … If you come in and plead guilty and pay a fine, that’s not amnesty,” he said.  Regardless of how reform measures are characterized, though, patience is flagging and significant progress remains stubbornly elusive.

The President’s comments on immigration reform, while also asking his secretary of the Department of Homeland Security, Jeh Johnson, to delay releasing details of a recent study on the country’s deportation system, were seen as giving lawmakers time to propose and debate new legislation,   but continuing to hold out the threat of an executive order should Congress fail to act.  Activists on the left are pressuring the President to act. They urge an executive order similar to the one issued in 2012 extending temporary status and work authorization to some unauthorized aliens brought to the U.S. as children. The new measure for example, could extend the same type of protection to parents of those children, advocates contend. 

Nearly two million illegal immigrants have been deported since the President took office, according to a New York Times review and official records. The President asked the DHS secretary to evaluate how to make the deportation system more humane.  Further executive action on immigration may spur additional controversy and make comprehensive immigration reform negotiations in Congress more difficult.

An example of this type of challenge is in seen in the obstacles besetting the bi-partisan “ENLIST Act“(H.R. 2377), a bill designed to extend legal permanent residence to immigrants who were brought to the U.S. illegally as children and who enlist in the U.S. armed forces.  Hopes for easy passage have been set back.    Contrary to the expectations of many supporters, including the bill’s sponsor, Rep. Jeff Denham (R-Calif.), the measure was not taken up for discussion as part of the annual defense bill.   This is discouraging for proponents of reform.   Political brinksmanship, rather than a genuine willingness address the nation’s dysfunctional immigration system, appears to be the order of the day.

H-1B Lottery Selections Completed, Notices to be Issued

AUTHOR: Sujata Ajmera.

USCIS has announced that all H-1B Cap-Subject Petitions selected in the H-1B lottery have officially been data-entered for the 2015 Fiscal Year.  While Receipt Notices for these data-entered petitions likely will be sent in the next few weeks, unselected petitions are now in the process of being returned to the Petitioner or attorney of record.

The H-1B visa program allows U.S. businesses to employ foreign workers in specialty occupations that are considered “professional” in nature.  These includes engineers, scientists, and computer programmers, among many others.  The program is subject to an annual cap on the number of H-1B visas that can be issued – 65,000 visas for general petitions with a 20,000 advanced degree exemption.

Where more petitions are filed under the annual cap than eligible visas, USCIS conducts a lottery to determine which petitions are accepted. The filing window for the FY2015 H-1B cap opened on April 1, 2014, and USCIS confirmed on April 7 that the H-1B cap had been reached.  USCIS received 172,500 H-1B Petitions in the first five business days of filing eligibility.

Employers whose petitions were not selected under the cap will need to quickly start exploring alternative visa strategies for their effected foreign national employees.  Our immigration attorneys will work closely with affected employers to help obtain and retain work authorization for employees negatively affected by the H-1B cap limitations.  Contact your Jackson Lewis attorney for any questions regarding the H-1B cap, lottery selection process, and alternative visa options for your company and its employees.

USCIS Shows No Sign of Slowing Trend in Denials of L-1B Petitions

AUTHOR:  Forrest G. Read IV.

United States Citizenship and Immigration Services (“USCIS”) adjudicators have been giving heightened scrutiny to U.S. employers’ I-129 Petitions for L-1B status on behalf of “intracompany transferees.”   These individuals are employees of U.S. employers’ foreign-based affiliates, subsidiaries or parent companies who possess “specialized knowledge.” Such knowledge is defined as particularized knowledge “of the organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets,” or “an advanced level of knowledge or expertise in the organization’s processes and procedures.”  USCIS adjudicators review U.S. employers’ petitions and have the authority to approve or deny those them, thus having the authority over employers’ ability to employ selected foreign national employees in the U.S. 

Recent data shows that USCIS has continued its aggressive review of employers’ L-1B petitions.  In FY 2006 and FY 2007, respectively, the denial rate for such petitions was 6% and 7%.  The denial rate then spiked dramatically to 22% in FY 2008 – a new, unmistakable indictor of   stricter agency  review of L-1B petitions.  In FY 2011, the denial rate had risen to a whopping 27%, meaning that more than one quarter of L-1B petitions filed were denied.  Remarkably, USCIS has managed to increase those numbers.  New data shows that in FY 2012 and FY 2013, respectively, denials rose to 30% and 34%. 

In addition, U.S. employers can continue to expect costly and time-consuming requests for evidence (RFE) from USCIS in response to their petitions.  USCIS adjudicators issue RFEs to obtain additional, purportedly necessary information prior to reaching a final decision on  L-1B petitions, and were issued in 63% of cases in FY 2011.  After a backlash from U.S. employers and practitioners, RFE rates have dropped to 43% and 46%, respectively, in FY 2012 and FY 2013.  Still, employers can count on receiving RFEs for roughly half of the petitions they file, and thus must plan for delays, interruptions, or cancellations of important projects or initiatives in the absence of their needed and scheduled workforce. 

Because U.S. employers select carefully qualified intracompany transferees who will satisfy the L-1B specialized knowledge standard, the USCIS denial and RFE rates are viewed by many as  staggeringly high and suggest that USCIS may be imposing heightened standards in  disregard of the language and purpose of the  applicable regulations.  But those rates persist.  Just over one-third of all L-1B petitions are denied.  Furthermore, employers receive RFEs in nearly half of their cases, delaying company plans and increasing costs.  Before assuming employees will be able to work in L-1B status and making definitive staffing plans as to company projects, U.S. employers should consult with counsel regarding  the chances of approval and potential employment start dates in particular cases.