Header graphic for print

Global Immigration Blog

Immigration Reform Update

AUTHORS:  Michael H. Neifach and Garen E. Dodge.

With comprehensive immigration reform legislation no longer a realistic possibility for the foreseeable future, the focus of advocates for reform has shifted to executive actions the President may take unilaterally to implement immigration policy changes.

The President reportedly  is considering broad use of executive action, potentially granting relief to up to 5 to 6 million undocumented individuals similar to what has been provided under the administrations Deferred Action to Childhood Arrivals program. 

Under DACA, certain individuals who came to the United States unlawfully while under the age of 16 and have remained here since June 15, 2007, are eligible for deferred action for 2 years, renewable by the government.  Approximately 700,000 individuals to date have been granted deferred action under DACA, which allows the individuals to work legally in the United States.

Building off of DACA, the President has directed the Department of Homeland Security to review the administration’s immigration enforcement polices and recommend additional changes, possibly expanding the deferred action and work authorization to family members of U.S. citizens and lawful U.S. residents.  The administration reportedly also is looking at possible changes to current law and regulation that could benefit employers. 

For example, USCIS recently proposed regulations allowing certain spouses of H-1B workers to work in the United States.  Additional options now being discussed include excluding employment based immigrant workers’ spouses from the annual 140,000 cap on employment based visas. 

Any unilateral action the administration may take is likely to be controversial and there has been no final decision what executive action will be taken.  Indications are that the President will make a decision before the mid-term elections this November.

Businesses need to keep alert to potential changes.  Jackson Lewis’ Immigration and Government Relations practice groups are uniquely positioned to advise and advocate at the legislative, regulatory, and judicial level on behalf of employers regarding current requirements and coming changes.

House Republicans Pass Bills to Discontinue DACA, Provide Funding to Address Border Crisis

AUTHOR:  Forrest G. Read IV

House Republicans have passed a bill to suspend Deferred Action for Childhood Arrivals (DACA), the program established by the Obama administration in 2012 that protects from deportation certain undocumented individuals who came to the United States as children and allows individuals to obtain employment authorization documents if certain conditions are met.  House Republicans also passed a bill that would provide funding to address the immigration situation at the United States-Mexico border. 

House Republicans contend DACA is among the causes, if not the chief cause, of the crisis at the border, arguing DACA encourages families to send their children to the United States expecting that they will not be deported and will have an opportunity to remain in the U.S.  The bill would defund DACA and discontinue the issuance of work permits to such workers, eliminating the attraction for children from countries such as El Salvador, Honduras, and Guatemala.  House Democrats opposed the bill, arguing the approximately 600,000 individuals with DACA status and employment authorization documents would be returned to the stigmatized status of undocumented immigrants.  As the crisis on the border has received more attention, the intent and impact of DACA have become more controversial, with Republicans seeking to eliminate the program and Democrats seeking to protect it.          

The chamber also passed legislation providing funding to address the growing border crisis. The measure would appropriate just under $700 million, a dramatically lower figure than that the White House requested, which had sought approximately $3.7 billion to be directed to Immigration and Customs Enforcement, Customs and Border Protection, Department of Justice, the State Department and the Department of Health and Human Services.  House Democrats uniformly opposed their Republican counterparts’ funding bill, arguing that it is insufficient to address the serious humanitarian issues triggered by the border situation.     

Although the twin bills passed before Congress took its August recess have little chance of passing the Democratic-led Senate, they represent a clear message from House Republicans as they left Washington for home to visit with constituents and in advance of what many observers expect will be executive action on immigration before the 2014 midterm elections.  The House Republicans’ emphasis remains on border security and they clearly have no interest in adopting the comprehensive immigration reform bill passed earlier in the year by the Senate and favored by their House Democratic colleagues and President Obama.   

Although there may not be immigration legislation that passes both chambers in 2014, it appears clear that immigration issues will likely not fade from the national view, and will continue to occupy a prominent position among pro- and anti-immigration reform groups, not to mention in news cycles, in the lead-up to midterm elections. 

 

New York Legislature Considering State Citizenship to Undocumented Residents

AUTHOR:  Anna L. Susarina.

A path to state citizenship for non-citizen New Yorkers, including undocumented residents, is under consideration by the New York legislature. “The New York Is Home Act” was introduced by State Senator Gustavo Rivera in the Senate (S7879) and Assembly Member Karim Camara in the Assembly (A10129). 

If passed, the bill would grant state citizenship to persons who: (1) can prove identity; (2) have lived in New York for three years; (3) have paid state taxes for three years; (4) commit to abide by New York laws and uphold the State Constitution; and (5) agree to serve on New York juries and pay state taxes. 

Qualified non-citizens would receive such benefits as drivers’ and professional licenses, financial aid, health care, the right to vote, the right to run for office, and protection against racial discrimination.  A summary on the bill can be viewed at http://open.nysenate.gov/legislation/bill/S7879-2013.

If enacted, approximately 2.7 million non-citizens will be provided a wide range of civic and economic benefits by the state. The bill also may motivate other states with large undocumented populations to adopt similar legislation.  According to Senator Rivera, California and Texas could follow New York’s example.  With the gridlock in the U.S. Congress when it comes to federal immigration reform, states appear to be stepping up. Two recent examples of pro-immigrant state actions are the right to Florida in-state tuition (“The DREAM Act” signed into law by Republican Governor Richard Scott on June 9, 2014) and the right to practice law in California (see In re Sergio C. Garcia, the unanimous decision of the California Supreme Court of January 2, 2014).

While supporters of the New York bill assert that the notion of state citizenship is consistent with the nature of dual-sovereignty and U.S. Supreme Court precedents, even if passed, the law would not protect undocumented workers from federal laws prohibiting unauthorized employment.  In addition, employers would still have to comply with the I-9 regulations requiring all workers to have proper employment authorization documents.  With that in mind, New York may be hoping to stimulate enough support from others to push Congress to re-focus on federal immigration reform.

USCIS Begins L-1 Verifications

Author:  Amy Peck.

The U.S. Citizenship and Immigration Services (USCIS), which has been sending investigators from its Office of Fraud Detection and National Security (FDNS) to conduct site visits at the offices of H-1B petitioners, has expanded its investigations to include petitions for L-1 non-immigrant visas. The L-1 visa enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.

While the H-1B site visits typically involve a review of the premises, an interview with the employee and the manager, and some documentation review, recent reported L-1 verifications involve only an e-mail from the FDNS to the employer’s contact listed on the petition, asking extensive questions about the petitioning organization and the beneficiary. Some of these questions were not likely to have been addressed in the initial petition. For reasons that are presently unclear, attorneys who filed the case and entered Form G-28 Attorney Representation are not being notified by FDNS of these e-mails.  

The FDNS e-mails seek to confirm the authority of the person signing the petition and ask a series of questions about the overseas company, such as the name of the foreign company, how many locations exist overseas, the number of overseas employees, the location of headquarters, and organizational charts of the foreign company as it relates to the U.S. company. Extensive questions are asked about the U.S. company, including the locations and numbers of employees in non-immigrant status and employees sponsored for permanent residency. Another series of questions asks about the beneficiary’s qualifications and the duties abroad and in the U.S.

L-1 petitioners already provide extensive documentation to USCIS to receive an approval. The FDNS e-mail probes further into a petition that has already been approved and asks questions that may not have been addressed in the petition. FDNS is not an adjudicatory body, so it is unclear what purpose the additional information serves beyond the stated purpose of verifying the authenticity of the petition. The verification questions are sure to complicate an already complicated L-1 process. Employers that receive an FDNS e-mail should consult with appropriate counsel.

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.