Archive for the ‘News & Politics’ Category
Wednesday, April 3rd, 2013
When considering the prospects of new immigration legislation from Congress aimed to modernize the system or address legalizing the millions of individuals out of status over the past few years, many of us have felt like Charlie Brown trying to kick a field goal. Time and time again we’ve been disappointed when Lucy pulled the ball away.
Discussion of immigration reform has been incessant since the last “major” revision to the Immigration and Nationality Act in 1996. The first version of the DREAM Act was introduced in Congress in 2001, but despite reintroductions and revisions, it has never made it to the Oval Office for signature. Six years later, the Comprehensive Immigration Reform Act of 2007 was introduced in the Senate but failed to materialize support to bring about an up-or-down vote. Indeed, for the past decade, only relatively minor piecemeal legislation and Executive Branch policies revising enforcement priorities have been the headline-grabbing changes to the system.
But this year (and this Congress) is shaping to be quite different.
News broke Friday night that the AFL-CIO and the Chamber of Commerce reached a deal on a new relatively lower-skill “guest worker” visa, presumptively dubbed the W-visa. Led by the so-called Senate bipartisan “Gang of Eight,” the two constituent groups have reached a preliminary deal which allows workers the opportunity to receive employment-authorized visas without depressing U.S. workers’ wages. For years the lack of a consensus as to a visa category which allows those to take jobs in the service industries and agriculture – which some say is a major driver of illegal immigration – has stymied comprehensive reforms notwithstanding a broader consensus on legalization and increased enforcement.
The agreement reached by the two groups sets forth the following general provisions:
- The volume of W-visas will be capped, yet fluctuate from year to year in response to the economy. The first year, slated to begin in 2015, will cap W-visas at 20,000. The numbers will then increase to 35,000 in the second year, 55,000 in the third, and 75,000 in the fourth.
- In the fifth year, the number of W-visas will be capped at a maximum of 200,000 but the actual number available to employers will be determined by a new Bureau of Immigration and Labor Market Conditions, relying upon on labor market data. For instance, if economic indicators are weak, there could be as few as 20,000 W-visas in any given cycle.
- Similar to the H-1B, W-visa employers will need to comply with wage restrictions that require them to pay the greater of 1) the actual wages paid by an employer to U.S. workers with similar levels of experience in similar positions, or 2) the “prevailing wage” determined by the Department of Labor for the occupational category in question.
- However, unlike the H-1B, the W-visa is not temporary, but transitional. Beneficiaries will have the ability to self-petition for Green Cards after a year. Furthermore, the W-visa will not be tied to a single, discrete employer, allowing workers to leave abusive businesses.
- W-visa workers will be protected by state and federal employment laws. W-visa beneficiaries cannot be used by employers who have laid off workers within the preceding 90 days, and those enduring a strike or lockout.
This new agreement, forged in principle between two groups which historically have not seen-eye-to-eye, evidences a strong break in past failures to bridge the gap between organized labor and business on this hot-button issue.
Politicians from both sides of the aisle have expressed optimism that comprehensive legislation will soon be introduced. On Sunday, Senator Chuck Schumer (D-NY) told NBC’s Meet the Press that he is “very, very optimistic” that the group of lawmakers will have a deal this week and that legislation could be introduced as early as the next. Another Member of the Gang of Eight, Senator Lindsey Graham (R-SC), told CNN’s State of the Union that “[C]onceptually, we have an agreement between business and labor, between ourselves.”
But don’t pop the champagne quite just yet. Members have cautioned that while there may be an emerging agreement for the basic principles behind Comprehensive Immigration Reform, legislation has still yet to be drafted. Senator Marco Rubio (R-FL) cautioned to the Associated Press that “[A]rriving at a final product will require it to be properly submitted for the American people’s consideration, through the other 92 senators from 43 states that weren’t part of this initial drafting process.”
Monday, June 25th, 2012
Today, the Supreme Court issued a 5-3 decision in Arizona v. United States, the Obama Administration’s challenge to Arizona’s controversial immigration-related enforcement provision.
The Court ruled, generally, that it is the Federal Government, and not the states, which regulate immigration matters, and that three of four provisions that were the subject of the suit were “preempted,” or were so inconsistent with the federal regulation of immigration that they could not stand. The three provisions struck down were Arizona’s attempt to a) create its own requirement for foreign nationals to register with the immigration authorities and carry proof of such registration; b) criminalize the act of working without authorization in the United States, which federal law does not; and c) authorize state and local police to arrest people the police suspect of being removable from the United States.
The Supreme Court did not hear the challenge to the final provision, which allows Arizona police to question the immigration status of any person they have a “reasonable suspicion” to believe is in the United States unlawfully. The Court held it was too early to determine whether that provision, as enforced, unlawfully subjects some citizens and permanent residents to unconstitutional detention while their immigration status is verified.
The Court’s decision is a blow to those who would have states attempt to make their own laws and “attrition through enforcement” efforts except in the narrow area of business licensing recognized last year in the court’s Whiting decision.
It is also interesting to note that the Court incidentally validated the President’s authority to defer enforcement action for DREAMers:
“Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”
Arizona et al. v. United States, 567 U.S. ___ (2012) (slip op. at 4-5) (citations omitted, emphasis added).
Saturday, December 17th, 2011
Two weeks ago, I reported on a bill that passed the House of Representatives and would have helped addressed the severe delays faced by natives of India and China in the employment-based second and third preference visa categories (EB-2 and EB-3).
Yesterday, Senator Grassley, R-IA, informed the Senate that he was placing a “hold” on the Senate’s consideration of HR-3012. Such a hold greatly complicates the ability of the Senate to pass the bill, as it is a warning that the Senator would filibuster the bill if it came to the floor.
You can read my thoughts on the bigger picture at AILA’s Leadership Blog, but it’s enough to note that for now, the bill is effectively dead unless other Senators can convince Senator Grassley to remove his hold.
Wednesday, July 20th, 2011
USCIS Director Ali Mayorkas’ proposal for reforming and improving the EB-5 process has the potential to be a major step forward in making the EB-5 program more user friendly for real estate developers and other businesses seeking foreign investment capital.
Director Mayorkas’ proposal has three major elements.
One element of great importance is providing for accelerated processing (target two months) and premium processing (15 day processing) for “shovel ready” projects. This would apply to the regional center designation application, the exemplar I-526 project preapproval and the petitions of the investors in these projects. Although the definition of “shovel ready” is ambiguous and might better be defined as a project for which the developer is ready to seek investment capital, the concept is a very important one. Present processing times are unrealistic, and developers cannot be expected to wait the 12 to 18 months necessary for a regional center to be approved, a project to be approved, and an investor’s petition to be approved.
The second key component of the Mayorkas proposal involves the hiring of qualified expert personnel to adjudicate regional center designation applications and project pre-approval applications. Director Mayorkas proposes to add economists and business analysts for this purpose. Economic development specialists might also be added to the USCIS staff. The issues to be adjudicated in these applications are both complex and technical, and the Immigration Service needs to bring to the task professionals experienced in dealing with these issues.
The third major component of the Mayorkas proposal is to change the regional center and project pre-approval process from an adversarial to a consultative process. The Director proposes to change the present petition filing/RFE/RFE response process into one where the developer would have the right to a hearing with the expert professionals described above in order for the Service to articulate any questions or concerns and for the developer and his team of professionals to provide answers. This should result in faster, better and more informed adjudications.
The public has had an opportunity to comment on the proposal. Although commenters no doubt suggested improvements to the proposal, there is no question that implementation of the proposal, with whatever changes are deemed appropriate, will be a major step forward in making the EB-5 program more attractive for businesses seeking capital. This would be consistent with President Obama’s Select USA Initiative to attract more foreign direct investment into the U.S.
Although the proposal is a major step forward, it means nothing unless and until it is actually adopted by USCIS. The public eagerly awaits notification of its implementation.
Tuesday, June 7th, 2011
Yesterday, the Supreme Court of the United States vacated an order ruling unconstitutional the Illegal Immigration Relief Act ordinance of Hazelton, Pennsylvania. At issue is the local law that would penalize landlords who knowingly or with reckless disregard rent to an “illegal alien”, which is defined as “an alien who is not lawfully present in the United States” according to federal law. Separate provisions penalize employers hiring aliens without work authorization.
The Court remanded the case to the Third Circuit for further consideration in light of its rationale in Chamber of Commerce of the United States v. Whiting. As we mentioned last month, the Court’s ruling in Whiting will have nationwide effects and may lead to varying state law approaches to immigration-related laws and penalties.
It is important to note, however, that while the law at issue in Whiting and that enacted by Hazleton have some similarities, the Supreme Court has only upheld non-federal laws dealing with employment eligibility and the corresponding penalties for noncompliance. It remains to be seen how the Third Circuit will reconsider the legal issues presented by the Hazelton ordinance.
Thursday, May 26th, 2011
The U.S. Supreme Court today issued an opinion upholding the “Legal Arizona Workers Act” which mandates private employers’ use of E-Verify and supplies state-law sanctions against those who knowingly or intentionally employ aliens without work authorization.
The decision has far-reaching effects outside of Arizona. By upholding the law, the Supreme Court has cleared the way for 50 different state laws regarding employment eligibility verification and the penalties for noncompliance. As such, employers need to be aware of the laws in their state when hiring new personnel. For further information regarding E-Verify, visit our Worksite Compliance web site. Contact your Klasko Law attorney if you have specific questions regarding employment eligibility verification for your company or organization.
Friday, April 1st, 2011
Earlier this week, Kate reported that the State Department said it would be able to release an extra 12,000 visas for processing in EB-2 this year because of USCIS reporting low demand (and low approval rates) in EB-1. What does that mean for possible movement of priority dates this year? Some people have reported across the internet that the EB-2 China/India backlog may disappear. Unfortunately, the numbers don’t bear that out.
The last pending I-485 inventory number released from USCIS said that, as of January 2011, there were about 5,000 pending I-485s for EB-2 China with priority dates earlier than January 1, 2007, and there were about 14,000 pending I-485s for EB-2 India with priority dates earlier than January 1, 2007.
So, the “extra” numbers that “spill down” to EB-2 from EB-1, plus the regular ones (about 2300 each for India and China), should get the priority dates to late 2006, and perhaps to January 2007, by September of 2011.
While that is still better than no movement at all, it is far from being current.
Thursday, February 17th, 2011
Working in the trenches of the EB-5 process, I am often asked how this important program could be improved to better meet the national interest that it furthers.
In no particular order, here are my thoughts:
1. Either USCIS must provide far more extensive business training to EB-5 examiners or it should partner with another agency in the government that can provide such expertise.
2. USCIS must increase the number of fully-trained adjudicators in order to bring processing times of both individual EB-5 petitions and regional center applications to acceptable levels commensurate with the needs of developers for capital on pending projects.
3. Both the regional center application process and the project pre-approval (exemplar I-526) process must be consultative rather than adversarial and must be completed promptly.
4. The notorious December 2009 “Neufeld Memo” must be rescinded and replaced with a policy that is both consistent with the regulation and that recognizes that business plans constantly change. Irrespective of a “material change” in the business plan, if an investor has sustained his investment and created 10 jobs, his conditions should be removed. (more…)
Sunday, October 31st, 2010
This month, Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced that ICE’s worksite enforcement numbers have climbed to historic highs with record breaking numbers of I-9 audits, fines and increased criminal prosecution of employers.
ICE announced that since January 2009, it has conducted I-9 audits of more than 3,200 US employers, more than ever before. By comparison, in fiscal year 2009—itself a banner year for I-9 audits–ICE conducted approximately 1400 audits. The audits conducted since January 2009 also resulted in record breaking penalties–ICE debarred 225 companies and individuals from doing business with the federal government and imposed approximately $50 million in sanctions for worksite enforcement violations. The increase in audits and sanctions is dramatic–ICE explained that the figures for just this year are higher than the total amount of audits and debarments for the entire Bush administration.
ICE also actively pursued criminal enforcement of employers–in fiscal year 2010, ICE charged 180 business owners, employers, managers, or supervisors with hiring illegal aliens, up from 135 in fiscal 2008 and 114 in fiscal 2009.
ICE pledged to continue aggressive enforcement against employers stating “enforcing worksite laws not only promotes fairness in the workplace, but it also substantially reduces the incentive for aliens to enter the United States illegally.”
These record breaking numbers reflect implementation of a new worksite enforcement strategy first announced by the Obama administration in April 2009. Rather than large scale raids, the new focus is on employers. As part of this strategy, ICE identified I-9 audits as an important administrative tool in building criminal cases, issuing civil penalties such as fines and bringing employers into compliance with the law. Not only will ICE use traditional criminal enforcement methods, but the guidance to the field emphasizes that administrative tools will be used “to advance criminal cases, and in the absence of criminal charges, to support the imposition of civil fines and other available penalties.” Indeed, the guidance makes clear that the “the most important administrative tool is the Notice of Inspection (NOI) and the resulting Form I-9 audit” as it will not only support the imposition of civil fines and other available penalties, but it “will often serve as an important first step in the criminal investigation and prosecution of employers.”
Consistent with this use of I-9 audits as the key administrative tool, ICE announced a nationwide initiative to audit employers’ Form I-9 employment eligibility verification records. As part of this initiative, in the first week of July 2009 alone, ICE issued Notices of Inspection (NOI) to over 650 employers across the country. In comparison, only 503 Notices of Inspection were issued in all of fiscal year 2008. As explained in earlier postings, ICE continued such widespread audits throughout the year, ultimately resulting in over 3200 audits. This widespread enforcement initiative is much different than any in the past. In the past, initiatives often focused on the most likely offenders—employers in industries such as meat-packing, construction, landscaping and manufacturing—commonly believed to regularly hire unauthorized workers. While these businesses were included within the I-9 audits, the reach was much broader to include a wide variety of businesses throughout the entire country. The message is clear—no employer is safe from an I-9 audit and investigation.
In order to avoid potential liability, employers are well advised to develop and implement detailed I-9 policies and practices. ICE recommends that employers, at a minimum, establish an internal training program, with annual updates, on how to manage completion of Form I-9 and how to detect fraudulent use of documents in the I-9 process; permit the I-9 and any E-Verify process to be conducted only by individuals who have received training; and include a review of the completed I-9 and documents by a second person as part of each employee’s verification to minimize the potential for a single individual to subvert the process. Regular audits–conducted before ICE comes knocking on the door– are also key to obtain compliance and limit liability.
For more information, contact Elise Fialkowski at Efialkowski@klaskolaw.com
Friday, October 1st, 2010
On September 30, 2010, Senators Menendez (D-NY) and Leahy (D-VT) introduced the Comprehensive Immigration Reform Act of 2010 (S. 3932) into the U.S. Senate. The bill is the first comprehensive immigration reform bill introduced into Congress since 2007. It contains provisions for enhanced border security, mandatory employment verification through E-Verify, fixes to the business and family visa systems, a legalization plan for undocumented aliens, and stiffer penalties on illegal immigration.
Highlights of the bill include:
- Clarification that the power to regulate immigration resides with the federal government, not states and localities;
- Provision of common‐sense rules governing the detention of families, elderly or ill immigrants, crime victims, and other vulnerable populations;
- Mandatory use of an employment verification system for all employers within five years;
- Creation of a new nonimmigrant visa program (H‐2C) to address gaps in existing worker programs that have lead to undocumented aliens. H‐2C workers are eligible to apply for green cards after having worked in the U.S. for four years, or immediately if they are sponsored by their employer;
- Assurance that the number of family and employment green cards authorized by Congress do not expire because of processing delays;
- Expansion of the share of visas that each country can access within existing quotas that limit overall immigration;
- Exemption for certain immigrants from counting against the annual green card quotas so that they can immediately reunite with loved ones in the U.S., including spouses and minor children of green card holders;
- Revision of the unlawful presence bars so that individuals with family ties are not permanently banished from the U.S.;
- Creation of a Lawful Prospective Immigrant (LPI) status for non‐criminal undocumented immigrants living in the U.S. since 9/30/10. In order to transition from LPI status to Legal Permanent Residency, applicants are required to wait at least six years; pay taxes and a $1000 fine; learn English and U.S. civics; and undergo additional background checks. They will not obtain green cards before those who were waiting in line to immigrate as of date of enactment; and
- Incorporation of the DREAM Act, which creates a path to legal status for individuals who were brought to the U.S. illegally as children, provided they meet age and other criteria and enroll in college or the U.S. military.
Klasko will continue to track the status of this bill on our blog.