When Immigration Matters

Immigration Reform: What it means for Highly Skilled Foreign Workers

Posted by Karen-Lee Pollak on Mon, Dec 01, 2014 @ 9:00 AM

immigration reform, executive actionAs part of President Obama’s executive action, he has ordered new policies and regulations to be implemented which will benefit highly-skilled foreign workers by enabling businesses to more easily hire and retain these workers and allow them to make natural career progressions with their employers or seek similar opportunities within the United States thereby creating increased career stability for those foreign workers waiting for green cards. 

The November 20, 2014 memorandum from DHS Secretary Jeh Charles Johnson to USCIS Director Leon Rodriguez (the Memorandum) outlines these new policies and regulations and includes the following: Modernizing the Employment-Based Immigrant Visa System and increasing Worker Portability. 

One of the biggest gripes with the current visa system is the long waits for Immigrant visas or green cards due to outdated numerical limits established almost a quarter of a century ago.  These numerical limits do not cater for the visa demands of today.  For example, a foreign worker with an advanced degree who is a citizen of India is currently waiting almost 10 years for an Immigrant visa to be available according to the November 2014 visa bulletin.  This numerical limit is juxtaposed against an immigration system which also has failed to issue all available immigrant visas for a fiscal year.

The resulting backlogs prevent US. employers from attracting and retaining some of the best and brightest highly-skilled workers who are often educated in the United States.  Often a highly-skilled foreign worker’s time in temporary non-immigrant status runs out before the backlog becomes current.  For example, a L1b intracompany employee with specialized knowledge only has 5 years in L1b status but it is currently taking at least a minimum of 11 years, according to November 2014 visa bulletin, to obtain a green card assuming that person is an citizen of india, has a Bachelor Degree and has four years of experience. 

This makes little sense especially where as part of the Green Card process, the employer has to test the labor market and show the unavailability of US. workers.  That process in itself is disingenuous as it requires the employer to spend substantial time and money advertising and recruiting for a job and making applicants waste time on interviewing for a job which has already been filled.  Only after that charade can an employer file a labor certification with the Department of Labor which is currently taking in the best case scenario 8 months to be adjudicated. 

The permanent labor certification process delays the filing of the Green Card application with USCIS.  This delay is further exacerbated by the unavailability of immigrant visas for workers from certain countries.  Not only are wait times an inconvenience for these workers but these wait times are an impediment to their natural career progression.  Workers can only change jobs if the job “is in the same or similar occupation”.  The uncertainty of what this phrase really means often prevents workers from accepting promotions or accepting better job opportunities.  

Secretary Jeh Jonson proposes the following solutions in his Memorandum:

 USCIS should continue to work with the Department of State to ensure that all immigrant visas authorized by Congress are issued when there is a sufficient demand.

  • Improve the current system to determine when visas are available to applicants during a current fiscal year. 
  • USCIS must issue policy and regulatory changes to provide stability to beneficiaries of employment-based immigrant petitions.
  • Specifically, USCIS must clarify and amend its regulations to ensure that approved long-standing visa petitions remain valid in certain circumstances where the employee has changed jobs or has obtained a promotion to a supervisory position.

 In addition to these proposals, it is expected that regulations will be enacted that will allow workers with approved immigrant petitions who are unable to file adjustment of status applications due to visa quota backlogs to obtain the benefits of adjustment of status applications such as employment authorization and advanced parole.  This will help foreign workers evade the capricious adjudication of renewal of non-immigrant when they travel abroad and allow employees to switch employers.

Reforming Optical training for Foreign Students and Graduates of US. Universities.

Under current regulations, foreign students on F-1 visas may request 12 months of additional F-1 visa status for optional practical training (OPT).  OPT allows a student to obtain temporary work in their field of study to gain practical experience.  It must be approved by the educational institution and may occur before or after graduation. Students in the science, technology, education or mathematical (STEM) fields can obtain an additional 17 months of OPT for a total of 29 months. This extension has helped the United States in retaining some of its most talented STEM graduates from departing the United States and taking their skills overseas.  

The November 20, 2014 Memorandum recommends that USCIS develop regulations for notice and comment that expands the degree programs eligible for OPT and extends the time period and use of OPT for foreign STEM students and graduates including extending post-Masters OPT where only the first degree is in a STEM field.

Promoting Start-Ups, Research and Development in the US.

President Obama has underscored the importance of enhancing employment opportunities for foreign inventors, researchers and founders of start-ups wishing to create jobs and conduct research and development in the United States.  The November 20, 2014 Memorandum recommends two administrative improvements to our employment-based immigrant system for this purpose:

The National Interest Waiver which provides aliens with advanced degrees or exceptional ability to apply for green cards without employer sponsorship if their job is in the national interest, is one of the most underutilized visas.  USCIS is directed to issue guidance or regulations to clarify the standard by which a National Interest Waiver can be granted for the purpose of promoting its greater use in benefitting the US. Economy.

  1. USCIS is directed under its “significant public benefit” parole authority to propose a program that will permit DHS to grant parole status on a case-by-case basis to researchers, inventors and founders of start-up businesses who have obtained significant US. funding or otherwise hold the promise of job creation and innovation through the development of new technologies or cutting-edge research. Parole in these instances would help entrepreneurs start businesses in the United States instead of abroad. 

Bringing Greater Consistency to the L1B Program. Many multinational companies bring employees to the United States who have specialized knowledge in the company’s products or processes.  This visa is known as the L1B visa.  Inconsistent adjudications of these visas has created uncertainty for many companies relying on bringing foreign employees with specialized knowledge to the United States.  USCIS is directed to issue a policy memorandum that clarifies exactly what is meant by “specialized knowledge” to provide greater consistency in the adjudication of L1B petitions and to enhance companies’ confidence in the program.

These provisions, once implemented, will help alleviate some of the problems produced by our broken immigration system but it is really the duty of Congress to finish the job.  The only provision that has a projected timeline is the plan to give employment authorization to certain spouses of long time H-1B visa holders who have been approved for permanent residency (issued in May of this year). We anticipate the final rule to be published this month or in early January 2015. Regulations which have a limited impact can be issued as interim rules and take effect immediately. However, most regulations require the publication of a proposed rule with a 30 to 60-day comment period. Afterwards, the government agency must cull though public comments and decide if revisions to the proposed regulation are in order.

Of particular note is the Department of Labor’s (DOL) announcement, separate and apart from the November 20 Memorandum, that it will modernize the PERM regulations.  DOL has announced it will initiate a review of the decade old PERM program and relevant regulations. As part of this review, the Department will seek input on the current regulation, including how it could be modernized to be more responsive to changes in the national workforce.

Specifically, the Department will seek input on the following:

Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;

  • Methods and practices designed to modernize U.S. worker recruitment requirements;   
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

While we are excited about these proposed changes, we can only be cautiously optimistic.  Historically, promised policy guidelines often take years to be issued or have never materialized. USCIS specifically states on its website that “USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible.  Some of these initiatives will be implemented over the next several months and some will take longer.”  The challenge for the business community, foreign workers and all stakeholders is to make sure that these measures are initiated, drafted, and implemented in a timely fashion.

White House Leaks President Obama's Immigration Reform Early

Posted by Karen-Lee Pollak on Thu, Nov 20, 2014 @ 3:51 PM

executive action; immigration reformExtracts of President Obama's Immigration Action have been leaked by the White House.docs/White-House-Details-on-Anticipated-Administrative-Relief.pdf  Essentially, you must pass criminal and background checks, pay taxes and a fee and show the following:

are a parent of a US. citizen or lawful permanent resident on the date of the announcement and have been in the USA since January 1 2010

or

  • are an individual who arrived in the USA before turning 16 and before January 1 2010 regardless of how old they are 
The Government also states it will reduce wait times that families are separated while obtaining green cards.  Undocumented immigrants who are immediate relatives of lawful permanent residents or sons and daughters of US citizens can apply to get a waiver if a visa is available.  
You must have been in the USA for at least 5 years to qualify for these programs.  Recent border crosses are ineligible (defined as entering after Jan 1, 2014)
The Government will not begin accepting applications until early 2015.

AILA Urges Boehner to Act on Immigration Bill

Posted by Michael Pollak on Wed, Oct 02, 2013 @ 3:50 PM
describe the imageToday, House Democrats introduced a comprehensive reform bill based on the bill that passed the full Senate in June with a bipartisan vote of 68 to 32.

"Some might say that this isn't the time to bring up immigration reform
legislation but I disagree," said AILA President Doug Stump. He continued, "Now
is the right time because while there is disagreement around other issues,
immigration reform is something that the vast majority of Americans actually
agree on: that common sense reform is urgently needed and should include a
roadmap to legalization for the undocumented." A February Fox News
Poll
that found 72% of registered voters favor allowing illegal immigrants
to remain in the country and eventually qualify for U.S. citizenship, as long as
other requirements are met.

"This bill is not perfect, far from it. Nor was the Senate bill it drew upon.
We are talking compromise. AILA has major reservations about these bills, but no
one gets everything they want. Businesses aren't getting everything, and nor is
labor. Nor are faith groups, ethnic groups or civil rights organizations," Stump
noted.

"Like the Senate bill, this House version is tough yet also reasonably fair
and will provide enough slots to boost our economy, help American businesses,
and keep American families together," Stump said. The House bill replaces the
Senate bill's expensive "border surge" package with the bipartisan border
security bill that passed the House Homeland Security Committee earlier this
year.

"We call on Speaker Boehner to bring comprehensive immigration reform to the
House floor. By AILA's count, there are enough Democrats and Republicans who
support reform to get a bill passed in the House. He should bring everyone
together and get the job done. Put aside your differences for one moment and
allow the needs of the many to overcome the strident rhetoric that has consumed
so much of the political process. This is what Americans want and what America
needs," he concluded.

Tell Your Senators to Support Immigration Reform

Posted by Karen-Lee Pollak on Tue, Jun 11, 2013 @ 11:40 AM
S.744
 
Call Your Senators and urge them to support S744 for Immigration Reform
202-2243121
 

Senate Judiciary Committee Passes Immigration Reform Bill

Posted by Karen-Lee Pollak on Wed, May 22, 2013 @ 12:02 PM

Immigration reformWASHINGTON, DC - The Senate Judiciary Committee wrapped up weeks of work on immigration reform by passing S. 744 the "Border Security, Economic Opportunity, and Immigration Modernization Act" out of committee by a bipartisan vote of 13 to 5 last night. At the end of the hearing, Senate Judiciary Committee Chairman Leahy said, "The dysfunction in our current immigration system affects all of us and it is long past time for reform. I hope that our history, our values, and our decency can inspire us finally to take action," as he successfully concluded an unprecedented effort to open the immigration reform process to the public by making all amendments available online.

"At the outset of this process, the Senate Judiciary Committee faced 300 amendments filed by Senators, only some of which would have improved our immigration system. For the most part, Senators stood firm against a number of detrimental proposals that, if accepted, would have yanked our immigration system backward," said American Immigration Lawyers Association (AILA) President, Laura Lichter. She continued, "We applaud wholeheartedly the efforts of the four "Gang of Eight" members on the committee who helped ensure the core principles of the reform bill were essentially maintained."

As attention turns to the Senate floor where Senate Majority Leader Harry Reid (D-NV) has vowed to bring up the bill quickly, AILA remains committed to supporting amendments that would ensure all families can reunite with their loved ones, including the siblings of U.S. citizens and LGBT/same-sex families, as well as protect businesses and workers and maintain our country's commitment to the ideals of equal rights and due process.

"This next week, during Memorial Day recess, the American people need to make sure their voices are heard by calling on their Senators to support a balanced bill on the Senate floor and withstand the efforts of obstructionists who would offer destructive amendments that only serve to undermine this carefully wrought bipartisan framework. We need the Senate to pass immigration reform that will meet our country's economic needs and reflects our nation's values," concluded Ms. Lichter.

Watch this short video in which AILA Executive Director Crystal Williams discusses the impact of the Committee's action.   View the amendments here.  docs/Amendment.pdf

Immigration Reform Bill-8 key changes to Immigration Law

Posted by Karen-Lee Pollak on Thu, Apr 18, 2013 @ 10:53 AM

immigration Reform, Immigration reform, immigration reformYesterday, the bipartisan group of senators known as the "Gang of Eight" introduced S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act." Earlier today, AILA issued this press release commending the Senators for their work on the bill. Below are eight initial points of interest pulled from the bill's provisions. Just to barely scratch the surface, here are but a few things S.744 would do:

  1. Legalization: Allow noncitizens who are unlawfully present and who entered the U.S. before December 31, 2011 to adjust status to that of Registered Provisional Immigrant (RPI). Eligible applicants would be required to pay a penalty and back taxes. Individuals in RPI status would receive work authorization and may travel abroad. They would also become eligible to apply for LPR status after 10 years, and can apply for naturalization 3 years after acquiring a green card. Includes generous provisions for DREAMers and agricultural workers.
  2. Family-Based Immigrants: Move the current FB-2A category into the immediate relative classification, allow for derivatives of immediate relatives, eliminate the FB-4 category, cap the age of eligibility of married sons and daughters of U.S. citizens at 31, and bring back the V visa.
  3. Employment-Based Immigrants: Exempt the following categories from the quota: EB-1 immigrants, doctoral degree holders, physicians who have completed the foreign residency requirement, and derivatives. Add a new "EB-6" category for certain entrepreneurs.
  4. Temporary Workers: Create a W-1 visa for lesser-skilled workers, a W-2 visa for aliens coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a W-3 visa for "at-will" workers with an offer of full-time employment in an agricultural occupation. The W-2 and W-3 visas would replace the current H-2A agricultural worker program.
  5. Asylum: Eliminate the one-year filing deadline and authorize asylum officers to grant asylum during credible fear interviews.
  6. E-Verify: Require all employers to be on the system after 5 years.
  7. H-1Bs: Increase the quota to a floor of 110,000 and a ceiling of 180,000, increase the U.S. advanced degree exemption to 25,000 but limit it to STEM graduates, add a recruitment requirement for all H-1B labor condition applications involving a detailed posting on an Internet site designed by the Labor Department, add a non-displacement attestation, change the prevailing wage formula, provide EADs for spouses, and add a 60-day grace period after an H-1B has been terminated from his or her job.
  8. Fraud: Make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or BIA accredited representative when one is not authorized to do so. Require the identification of individuals who assist immigrants with the completion of forms and empower the Attorney General with injunctive authority to act against an unscrupulous "immigration service provider" at the federal level.








Immigration Reform Bill is Here!!!

Posted by Karen-Lee Pollak on Wed, Apr 17, 2013 @ 9:50 AM
comprehensive immigration reform, CIRAs a framework for reform, this is closer than we've come in years to meaningful change," said AILA President Laura Lichter

We commends the Senate "Gang of Eight" for introducing its bipartisan immigration reform proposal, allowing the Senate Judiciary Committee to forge ahead on the "markup" process. A proposal like this is a necessary first step in any path forward to create a common-sense immigration system that will meet the needs of the U.S. economy, businesses, and families, and integrate into our society aspiring Americans who work hard and want only a better life for themselves and their families.

http://www.schumer.senate.gov/forms/immigration.pdf

In many ways, the language contained in the 844 page legislation reflects key issues AILA sees as necessary to any successful immigration reform, such as border and interior enforcement, legalization, backlog reduction, asylum, family unification, and both current and future business needs.

"Is it perfect? No compromise measure ever is. Is it a good bill? Yes, for the most part it is, and perhaps it is even a great bill in some respects. We do see some further changes that are desirable, and as we delve more deeply into the details, I'm sure we'll find some needed tweaks. But as a framework for reform, this is closer than we've come in years to meaningful change," said AILA President Laura Lichter. She continued, "This bill does not shy away from addressing the difficult issues embedded in current immigration policy. It's a good start, and I hope that by continuing to work across the aisle, the Senate can pass a bill that will meet our nation's needs and the House will follow suit."

Immigration Reform In Light Of Last Year's Spending Spree

Posted by Michael Pollak on Wed, Mar 13, 2013 @ 3:07 PM

The Obama administration spent more money on immigration enforcement in the last fiscal year than all other federal law enforcement agencies combined, according to a report issued by the Migration Policy Institute (MPI), a nonpartisan group focused on global immigration issues.

immigrationbnAccording to this report, in the 2012 fiscal year, the government spent about $18 billion on immigration enforcement programs run by U.S. Immigration and Customs Enforcement, the U.S.-Visit program, and U.S. Customs and Border Protection, which includes the U.S. Border Patrol.


Immigration enforcement topped the combined budgets of the FBI; Bureau of Alcohol, Tobacco, Firearms and Explosives; Drug Enforcement Administration and U.S. Secret Service by more than $3 billion dollars.


The 182-page report offers a detailed analysis of the current immigration enforcement system that was set in motion with passing of the Immigration Reform and Control Act (IRCA) in 1986. The report traces the evolution of the system, particularly in the post-9/11 era, in terms of budgets, personnel, enforcement actions and technology.


It examines individual programs and results, ranging from Secure Communities and 287(g) to deportations, detention, post-9/11 visa screening and new federal databases, explaining how they have intersected — in some ways by deliberate design, in others by happenstance — to create a complex, interconnected, cross-agency system.


This report concludes that the Obama administration has made immigration its highest law enforcement priority. "Today, immigration enforcement can be seen as the federal government's highest criminal law enforcement priority, judged on the basis of budget allocations, enforcement actions and case volumes," MPI Senior Fellow Doris Meissner, a co-author of the report, said in a statement released with the report.


The report challenges a long-standing contention by immigration restrictionists that the U.S. needs more border security before it can consider immigration reform. Unprecedented manpower, infrastructure and technology deployed for border security efforts has led to a drop in apprehensions at the Southwest border to a level not seen since the 1970s. The plunge in apprehension is widely viewed as an indication that fewer immigrants are crossing illegally into the U.S.


In fact, net migration from Mexico has dropped to zero and may be going in reverse, meaning that more Mexican immigrants may be leaving the U.S. than are entering it. While enforcement plays a role in that decline, the migration numbers have also been affected by a sluggish U.S. economy, a growing Mexican middle class and shrinking fertility rates among Mexican women.
Yet according to the MPI report, the U.S. Department of Homeland Security deported nearly 410,000 people from the United States in 2012 and the U.S. Immigration and Customs Enforcement (ICE) increased their worksite enforcement raids on paperwork audits, targeting employers who hire undocumented workers rather than targeting undocumented workers themselves.


This tough stance on immigration enforcement seems to contradict renewed interest in immigration reform from Congress and the White House. In the immediate aftermath of the November election, Congressional Republicans suggested that the time was right to begin reform talks anew, and President Barack Obama has promised to make immigration reform a priority in his second term.


In the lead up to the election, the president made several administrative changes to the immigration system, including the launch of the Deferred Action for Childhood Arrivals (DACA) program to allow some young undocumented immigrants to avoid deportation and work legally in the country for up to two years.

Also, earlier this month, the administration announced a change in process that will allow some undocumented immigrant spouses, parents and children of U.S. citizens to remain in the United States while they ask the government to waive three- or 10-year bans on returning to the United States because they have accrued unlawful presence.

Immigrants who win the waiver will still need to leave the country to complete visa paperwork but will be able to leave without fear of being barred from returning to their families for up to a decade. This rule goes into effect on March 4, 2013, and it is hoped that it will reduce the time certain immediate relatives have to be separated from U.S. citizen family members.
While the president acknowledges the need for effective border security, he also realizes that Congress’ failure to fix the broken immigration system has led to record and wasteful government spending on immigration enforcement. Generally, immigration laws have not changed in more than two decades and have come at an unjustifiably high cost to the American taxpayer.

Billions of dollars could be saved if government agencies better used the resources they’ve already been allocating, eliminated wasteful or duplicative programs and refocused our enforcement priorities on real threats rather than on people who have become an integral part of our workforce.

President Obama has promised to get immigration reform done in 2013. Let’s hope so.

--By Karen-Lee Pollak, Bell Nunnally & Martin LLP
Karen-Lee Pollak is a partner at Bell Nunnally & Martin, where she chairs the immigration practice group.

Originally published on Law360, Jan. 31, 2013. Posted with permission.

Feb 13 2013 Live Updates on Senate's hearing on immigration Reform

Posted by Karen-Lee Pollak on Wed, Feb 13, 2013 @ 12:07 PM

immigration reformCourtesy of Ammerican Immigration Lawyers Association (Cite as "AILA InfoNet Doc. No. 13020747 (posted Feb. 13, 2013))

On 2/13/13 at 9:30am ET the Senate Judiciary Committee will hold their first hearing on immigration reform of the 113th Congress that will feature Department of Homeland Security Janet Napolitano.

9:33am: Sen. Leahy (D-VT) starts the Senate Hearing: Few topics are more fundamental to who and what we are as a nation. We’ve effectively done enforcement first and enforcement only. The president is right, the time is now…The fundamental civil rights of U.S. citizens are more than a social issue. Any legislation that comes before this committee should acknowledge the rights of all citizens...The window on this issue will not stay open very long. This committee will start marking up immigration legislation soon.

Sen. Grassley’s (R-IA) opening statement: I’m going to start with a quote from then chairman, Sen. Simpson of WY made on 1981 as we started down a 6yr road of 1986 bill. Just as congress is about to undertake an overhaul of the immigration reform system, his words are relevant today. Since I was elected to the Senate, I have served on this committee. I voted for the 1986 amnesty bill because I believed it was a one-time solution to the problem. I was wrong. I applaud the movement by members to work towards an agreement. I have read the Senate bi-partisan framework. One line that struck me: “we will ensure that this is a successful permanent reform that will not need to be revisited” that sentence is the most important part of that document. We must learn from our previous mistakes so we don’t have to revisit the problem…The questions I have asked of this president and the secretary have gone unanswered. Why agents in NH were ordered not to arrest an individual convicted with sexual assault of a child. So the secretary must answer in the delay in arresting this sexual predator… I also plan to ask the secretary about the delay in transparency about the DACA program. About 5 letters about DACA have gone ignored…Finally, we have yet to see answers from the last hearing in this committee…Immigration must be settled, we must find answers. But getting answers to the basic questions of legislating seems impossible. I fear what will become of the President’s promise of transparency once we pass the bill. If we don’t have faith in the administration now, how can we trust in the implementation of an important bill we will pass later this year.

10:00am Sec. Napolitano praises the President’s plan and expanding on the need for Comprehensive reform in order to ensure America’s safety by driving down unauthorized crossings, bringing millions of people out of the shadows, and by prioritizing federal enforcement activities on narcotics smugglers, human traffickers and others.

10:08am: Sen. Leahy how is this plan different than the 1986 relief?
A: Immigration enforcement is light years away from what it was in 1986 and it’s seen in the numbers. There are 7 times more border patrol agents, we have 655 miles of fence infrastructure now as opposed to some chainlink fence, 409,000 deportation now as opposed to 25,000 deportation in 1986. The enforcement of removals has created tension what we saw expressed earlier today. Efforts must be sustained and multiplied and we must deal with the demand for illegal and legal migration.

Q:If we expand our legal immigration system does that make your job of removing criminal undocumented immigrants more or less difficult? A: It makes it less difficult because we can stop focusing on those that have long standing ties to their community, etc… and focus on priority cases

Q: Any longstanding prosecutor knows that you can’t prosecute everyone who commits a crime, you must show prosecutorial discretion. You’ve demonstrated this with DACA—that you can’t visit sins of parents against their children. Critics of DACA say that you’re breaking the law, how would you respond to that?
A: I would say that DACA is consistent with our values and the guidance we have given to ICE agents is to focus on those who have committed crimes, our repeat offenders and taking those who are low priority out of the system helps us meet those goals.

Q: Sen Collins (R-ME) and I are introducing the Uniting Families Act (that I have introduced every year for the last ten years). Some say that expanding spousal green cards to same-sex bi-national couples increases the potential for fraud, do you agree?
A: No, our adjudicators are experienced.

Sen Leahy: EB-5 is great! H-2A has had problems.

10:16am Sen. Sessions (R-AL) begins questioning Sec. Napolitano

Q: You’re afraid that enforcement first means enforcement only, but the American people are afraid that you mean amnesty only (without enforcement). I believe that if this Administration had done a better job of enforcement you’d be in a better place to ask for a more broad solution to the problem. I respect the lawmakers that are working to try to reach legislation, but it feels like what happened before with special interests controlling the process without ICE representatives, border patrol or real American people interests. I have my doubts that it will deliver on its promises. It might be better to deal with problems in a discrete level.

I fought for the fencing that’s on the border and it only got done when the last bill was going forward that called for 700 miles of double fencing, which has not been met. The additional border patrol agents that have been added were added over the objection of people who were fighting for amnesty last time. Last time you were here (October 2011) I raised concerns about the morale of ICE officers.

A: CBP and ICE were involved in discussions with the White House as the President formed his proposal. Operational issues on how the system works were part of the dialogue. On the fence, all but one mile is complete! With respect to ICE morale, ICE agents have the most difficult law enforcement job in America: they get criticized for deporting too many people and for not deporting everyone that is here without papers. It’s our responsibility as leadership of a prosecution agency to set priorities (as is done with state Attorney General’s office and the Justice Department)—the field officers don’t set the priorities, they get guidance from ICE leadership.

10:24am Sen. Feinstein (D-CA) begins asking questions.

Q: I want to ask about the visa waiver program, the importance of biometrics, and the entry-exit system. I was told by June 2012 that the Department would have a fully operational exit-entry system so that U.S. could calculate visa overstays. Can you give a quick update on when we’ll have this capability?

A: Biometrics is extremely difficult, and our airports are not designed to monitor exits, only entrants. We will have country by country visa over stay reports by the end of 2013.

Q: I am putting together the AgJobs part of the bill, E-Verify as currently constructed is not workable in agricultural settings. I asked Dir. Mayorkas how E-Verify could be modified for agricultural settings, but he did not provide any strategies to meet these difficulties.
A: I believe national implementation of a worker verification system is essential to immigration reform, but the problem with agricultural workers is they’re out on the fields so we’re testing mobile sites and other technology to put e-verify where the workers are.

Q: One of the principles of our system is family unification, what do you believe is the appropriate place for immediate family?
A:this President strongly believes in family unification, we will work with you on how big the chain is.

Q: Do you have any studies on the average number of people LPRs bring in?
A: No.

10:36am Sen. Durbin (D-IL) begins questioning Sec. Napolitano

Q: I want to commend you for DACA, over 400,000 DREAMers have applied. These students represent a great opportunity for America to be a better nation. We have drawn rules around DREAM Act and DACA that are the right rules. The individual brought up by Sen. Grassley was denied DACA and is now in deportation hearings. Some critics are suggesting that deportations are splitting up families and targeting families that are not threats to American safety. What is your response?
A: One factor that is considered in PD is whether the individual is a parent of a U.S. citizen children.

Q: I suppose what I am asking you to clarify is when there is no criminal record and you’re breaking up a family, what are the standards that are applied?
A:It should be a low priority case.

 

Q: There is a genuine good faith bi-partisan effort and we are doing our best to fix the broken immigration system and it is a threat to America’s future if we don’t deal with it comprehensively. There are elements in the negotiation that go beyond my personal feelings, buts an effort to reach a deal. We are encouraged by the President, but he has made it clear that he is anxious to mover this along. I thank you for accepting the most difficult job in this administration.

 

10:43am: Sen. Cornyn (R-TX) begins questions.

Q: this is like déjà vu for a lot of us. I believe the reason immigration reform failed in 2007 is because the American people don’t believe that Congress actually intends to follow through on enforcement measures. Did you say that “the border is secure.”
A: I did, but the context is that the border is more secure now that ever before and the numbers are better than they have been in decades. But we have to build and sustain that.

Q: Refers to a GAO Report that says that the Texas border is nowhere near operationally secure. I do not believe that the border is secure and we have a long way to go. A recent report signaled that you failed to apprehend 39% of border crossers, is that a good record?
A: We know that border security is important and that we’ve done more in the last four years to deter traffic over the border. The main driver of unauthorized crossings is the ability to work—all of these things go together, we need employment enforcement to drive down crossers. Other students have shown that net migration is negative.

Q: Would you agree that terrorist border crossings are a national security risk?
A: By improving the legal migration system will enable us to better focus on those who are nefarious and trying to do us harm.

10:51am Sen. Schumer (D-NY) begins questions.

Q: I want to thank the President for his remarks on immigration last night, he asked us to act now without making it a wedge issue. He gave us the space to come up with a bi-partisan proposal which is our only hope to pass something. We're looking to get this done in a short period of time and Chairman Leahy has said he'll make time for us. Both sides know they have to give and they are. It will be much easier to accomplish enforcement once we account for all of those people here without legal status-this way our law enforcement resources can focus on a smaller universe of criminals, future border stays, employers who hire unauthorized workers, etc… A: Fewer people are trying to cross the border than in four decades.

Q: In 2010 we gave you 1500 increased personnel, 4 drones and more DEA agents at the request of Sen. McCain.

10:57am: Sen. Lee (R-UT) begins questions.

Q: Our immigration system includes many different distinct parts and we should not assume that we must do this comprehensively. The good news is that Democrats and Republicans are not that far apart: we all agree to secure the border, reform visa system, streamline legal immigration and implement worksite verification. We should do the enforcement measures we agree on, as well as the legal immigrant system. I will be introducing the Fairness for Highskilled Workers Act, which will remove the per country cap on high skilled visas. Which specific component components of immigration reform do you think enjoy the most bi-partisan support that can be implemented quickly in your department.
A: I think the bi-partisan framework is a good place to start and we want to work with you to flesh that out with you.

Q: In 2011 ICE Director John Morton outlined two memos regarding PD. I don't agree with them.

11:04am Sen. Whitehouse (D-RI) begins questions.

Q: I want to talk to you about cyber security at a later time. I've been a supporter of the high skilled worker legislation with Sen. Kloubachar (D-MN). Can you make the case why encouraging high skilled workers is good for American jobs and the economy, rather than competing or displacing American jobs.
A: The case for STEM and high skilled workers is very strong, they complement American workers and become job creators.

11:06am Sen. Klobuchar (D-MN) begins questions.

Q: We are the world's talent and we need to attract the world's talent. Immigrant scientists and engineers are a third of what they were in 2001. 30% of U.S. Nobel Laureates were born somewhere else and 90 of the fortune 500 companies were started by immigrants. A problem with the system is that it treats drug smugglers the same as aspiring students.
A: With PD we take circumstances into account, but that is no replacement for statutory changes.

Q: Can you touch on how having so many people living in the shadows is difficult for law enforcement? A: What happens is, particularly in areas with large concentrations, is that people are afraid to interact with law enforcement when they've been victims of crime or have been witnesses. That is a cloud on those communities and when I speak with police chiefs (like SF and LA) it makes it very difficult for them to effectively ensure community safety.

Q: We did include U visas in VAWA for this reason, but were unable to include more in this go around. A: We need more U visas!

11:13am Sen. Flake (R-AZ) begins questions.

Q: Border security is a difficult term to define. The GAO has been quite complimentary of what’s happening in the Yuma sector of Arizona, but there are issues that the border patrol doesn’t have performance measures and goals to define border security.
A: The problem is how you define border security. One way to look at it if we have more money for enforcement, is it better to invest in employment verification system or to hire more border patrol agents. I think you can begin with the things listed in 2007 bill: apprehensions, crime rates along the border, drug and contraband seizures. The notion of a trigger implies that you don’t get to these other things until X is met, but we have to look at the simultaneously.

Q: I agree—we need people to have a legal way to come and go, only the path to citizenship would be tied to that. GAO reported in 2009 that in some sectors increased apprehensions as success, and in some decreased apprehensions as success. If directed by Congress can we go back to what we were doing prior to 2010 to “Operational Control?”
A: I would suggest that we should not go back. We cannot have a one or two line description of border security. We want a safe and secure border with efforts that can be sustained.

11:20am Sen. Hirono (D-HI) begins questioning Sec. Napolitano

Q: I am encouraged by the bi-partisan support around enforcement and visa reform, but unless we agree on how to address the 11 million people living in the shadows. The term Operational Control has been tossed out, and to some people that means zero illegal border crossings. How much money do we spend on border control?
A:Billions upon billions. Some studies suggest that you can add up the other expenditures of all federal enforcement agencies and it wouldn't reach immigration enforcement costs./p>

Q: So how much more would we need to spend to reduce border crossings to zero, because this about a cost-benefit anaylsis.
A:That's right, we are living in an austere world. I would advise that those efforts would be better spent on interior enforcement./p>

Q: I think immigration reform should be guided by principles that reflect our values. There has been a lot of emphasis on high skilled workers, specifically STEM, but another guiding principle should be the 50 year tradition of keeping families together. We should not get tunnel vision and forget the human element of immigration, I think we need to expand the opportunities for families to be united and kep together. Family immigration is essential to continue the vitality of the American economy. The success of immigrants in this country is closely tied to the success of the immigrants families. I want to ask about family unification backlogs, many immigrants have to wait in line for 20 years with Asian countries representing the largest backlogs. I'm pleased that the President included increasing the cap for family based visas to 15%, if that happens, what would you expect to see in terms of the reduction in the backlong, and how long would it take to eliminate the family based backlog.
A:I'd have to go back and get a firm number for you, but it would result in a reduction in the cap./p>

Q: In my community there are Filipino veterans who fought in WW II who have been waiting decades to be reunited with their children. I hope they will be prioritized. I've been told about 40% of the undocumented people in our country are visa over stayers, we have been attempting to address this for over a decade. What is it going to cost for us to put such a system in place to track these over stayers.
A:We have now linked databases and look at visa overstays and prioritize them as well. We will be doing enhanced biographic exit systems./p>

11:28am Sen. Graham (R-SC) begins questioning Sec. Napolitano

Q: We're not being overrun by Canadians are we? I would suggest that they return home because Canada has a stable government and economy and that most people who come are from worse situations. I think border security is the starting point. There are nine sectors that we've laid out, I want an inventory of what we can do that we haven't already done in each sector. Controlling employment is a virtual fence all of its own. I would bet that this could run into a roadblock on temporary worker program. I want American employers to be able to find the workforce they need without leaving the country. We are going to need a more robust legal immigration system in order to ensure the vitality of Social Security. We 're going to need more STEM workers.

11:35am Sen. Franken (D-MN) begins questioning Sec. Napolitano

Q: I want to talk about dairy. Cows aren't seasonal they have to be milked all the time. How will you help Minnesota workers?
A: We support reforms to the H2-A visa that would fix that issue.

Q: Approximately 205,000 parents were deported in two years from 2010-2012, we've seen firsthand in Minnesota how devastating these deportations can be on families. I know ICE has two sets of guidelines: parental directives and asking parents where they want children to go before placing them into custody. What is the status of these guidelines and what is DHS doing to protects children in enforcement actions?
A: These guidelines will be issues. This is the current hardship of the current immigration system-where parents need to be deported. We look at a number of factors: can one of the parents stay, are there other family members that can take the children?

Q: When an action is being taken, the children must have some contact with the parent, and the parents have some rights to be in contact with the children. We've seen this in Minnesota where it's been very traumatizing for children and parents and I'm introducing legislation to ensure that these families have right during those actions.

11:42am Sen. Coons (D-DE) begins questions of Sec. Napolitano.

Q: we're not living up to our Constitutional values of treating families and providing due process for all individuals. We're left with w system that's very expensive for all involved. One of the pillars of immigration reform is path to citizenship, what is the current path? Is there a line?
A: There is no line. We look at prior removals as a barrier.

Q: if someone is able to apply through a USC relative what is the process?
A:They are lengthy and complex. That's why we must create a path.

Q: In the context of reform there has been discussion about same-sex couples being a divisive issue, can we get a commitment of ceasing deportations of same-sex couples.
A: We can't because of DOMA.

Q: I want to talk about the process of deporting families along different parts of the border. How does the system ensure that refugees, asylum seekers or vulnerable women and children are protected and do agents have discretion?
A: We have found that one deterrent of repeat crossers of the border is consequences including lateral removal along the border.

Q: We want to focus on removing those who pose a threat to our community, under DACA DREAMers now don't live under the threat of an removal, has this policy resulted in the department's ability to focus on higher level priorities?
A: Yes it does and DACA is consistent with our values as a country.

11:55am: Second panel begins.

11:56am: Jose Antonio Vargas tells his life story to humanize the 11 million undocumented immigrants living in the United States.

12:02pm: Jessica Vaughan speaks on limiting the flows of immigration and the problems with comprehensive immigration reform.

12:10pm: Steve Case speaks on the importance of immigrant entrepreneurs.

12:17pm: Chris Crane speaks on his disappointment that DHS does not enforce the country's immigration laws.

12:24pm: Janet Murguia speaks on the critical need for immigration reform that includes a roadmap to citizenship, smart enforcement and a better legal immigration system.

 

Witness List:

The Honorable Janet Napolitano Secretary
United States Department of Homeland Security

Panel II

Jose Antonio Vargas
Founder, Define American

Jessica Vaughan
Director of Policy Studies, Center for Immigration Studies

Steve Case
Chairman and CEO, Revolution

Chris Crane
President, National Immigration and Customs Enforcement Council 118
American Federation of Government Employees

Janet Murguía
President and CEO, National Council of La Raza

Chairman Leahy (D-VT) Statement

 

AILA Testimony

Fifth Circuit Holds Immigrants Can Pursue Cases From Outside the USA

Posted by Karen-Lee Pollak on Mon, Oct 01, 2012 @ 5:33 PM

ICE, department of homeland security, removalLast week, the U.S. Court of Appeals for the Fifth Circuit rejected the government’s ongoing attempt to bar noncitizens from seeking reopening and reconsideration of their cases from outside the United States. Ruling in two companion cases, the court found that the “departure bar”—a regulation barring noncitizens from pursuing their cases after departure or deportation— is unlawful. In so doing, the court adopted arguments offered by the American Immigration Council's Legal Action Center (LAC) and the National Immigration Project of the National Lawyers Guild (NIPNLG) in an amicus brief to the court. These decisions are an important step toward ensuring that all noncitizens are afforded the opportunity to fully present their cases to an immigration judge and the Board of Immigration Appeals.

In the first of the two cases, Lari v. Holder, the court struck down the departure bar in the context of a motion to reconsider. Mr. Lari was represented by Matthew Hoppock of Dunn and Davison, LLC. The LAC and NIPNLG filed an amicus brief and argued in support of Mr. Lari. In the second case, Garcia Carias v. Holder, the court struck down the departure bar in the context of a motion to reopen. Mr. Garcia Carias was represented by Boston College’s Post-Deportation Human Rights Project and Nixon Peabody LLP.  

The LAC and NIPNLG have coordinated post-departure litigation nationwide. To date, nine circuit courts have rejected the departure bar. Nonetheless, the Board of Immigration Appeals continues to deny certain motions (including some involving asylum applicants) where ICE deported the noncitizen before the motion was decided. The LAC and NIPNLG are working to prevent the government’s attempted end run around the favorable court decisions. 

Posts by popularity

Posts by category