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.

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.

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.

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.

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.

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.

5. USCIS should publish statistics on regional center activity, including number of investors, number of approved and denied I-526 petitions and number of approved and denied I 829 petitions. This information is material in enabling investors to make intelligent choices in their investments.

6. USCIS should actively monitor regional centers. Regional centers with a record of denied petitions or with a long record of inactivity should be subject to careful review.

7. USCIS should follow the law in adjudicating EB-5 petitions and condition removal petitions. If USCIS believes that the regulations are inadequate, it needs to go through notice and comment rulemaking rather than adjudicating based on policy memos and other “lore” that is not supported or supportable by the statute, regulations or precedent decisions.

8. USCIS should implement premium processing and concurrent processing of I-526 and I 485 applications, as is done with other employment-based petitions, to provide expedited consideration as is provided for family members and employees of businesses.

9. In pooled investments and regional center investments, the determination of a “targeted employment area” should be made at the time of the first investor’s investment. Multiple investors in the same projects should not have to invest different amounts of money to qualify based on the same project, and developers should be able to have the assurance of the number of investors that will be required to meets its capital investment needs.

10. Although not within the realm of USCIS, Congress needs to make the regional center pilot program permanent in order to remove any fears in the investment community that this is a temporary program that could be shut down, jeopardizing their potential immigration future.

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

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.

As Klasko previously reported, the U.S. Department of Justice (DOJ) filed suit in the United States District Court for the District of Arizona against the State of Arizona and Governor Janice Brewer in her official capacity.  The lawsuit claims that Arizona’s state immigration law, S.B. 1070, unconstitutionally interferes with the federal government’s ability to regulate immigration.  The law makes the failure to carry immigration documents a crime and it gives the police power to detain anyone suspected of being in the country illegally.

In her opinion granting the preliminary injunction, Judge Bolton stated that the United States is likely to succeed on the merits that several sections of S.B. 1070 are preempted by federal law.  Specifically, Judge Bolton enjoined Arizona from enforcing Section 2(B) of S.B. 1070, which requires that “an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.”  This section of the law has been heavily criticized that it allows Arizona law enforcement to engage in racial profiling. 

Judge Bolton also enjoined Section 3, which makes it a crime for “the failure to apply for or carry alien registration papers,” and Section 5, which makes it a crime “for an unauthorized alien to solicit, apply for, or perform work.”  Finally, Judge Bolton enjoined Section 6, which authorizes “the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.” Judge Bolton further explained that “the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest.” 

Now that the Court has decided on the motion for preliminary injunction, the lawsuit will proceed to a hearing on the merits of the case, and Judge Bolton will decide whether Arizona’s law as a whole is preempted by federal law.  While the case proceeds, Arizona is stopped from enforcing the above provisions by Judge Bolton’s preliminary injunction.

HSI will align the existing ICE offices that are primarily devoted criminal investigation, namely the Offices of Intelligence, International Affairs, and Investigations.  This directorate pursue ICE’s existing role as DHS’ principal investigative program, with responsibility for ICE’s national security programs and ICE’s investigative authority over criminal violations of U.S. law relating to illicit trade, travel, immigration, and finance. The directorate will also continue to investigate violations of the employment verification laws and visa violations in the U.S. and abroad. 

ERO will align the existing offices in ICE that are primarily devoted to civil immigration enforcement, including the Office of Detention and Removal Operations (DRO) and the Secure Communities program. This directorate will ensure a coherent and consistent approach to civil immigration enforcement in a manner that prioritizes convicted criminals, fugitives and illegal re-entrants, and recent border violators.

Management and Administration will consist of the Offices of the Chief Financial Officer, the Chief Information Officer, Human Capital, Acquisition Management, Policy, Privacy, Training and Development, National Firearms and Tactical Training Unit, Freedom of Information Act, the Chief Diversity Officer, and Equal Employment Opportunity. These offices support the missions of HSI and ERO and provide sound agency management.

Assistant Secretary Morton stated that the new directorate system will create a more efficient organization alignment within ICE.