Month: March 2009

According to an article on usatoday.com:  “The nation’s immigration courts are now so clogged that nearly 90,000 people accused of being in the United States illegally waited at least two years for a judge to decide whether they must leave, one of the last bottlenecks in a push to more strictly enforce immigration laws.”

This relates to the previous post.  There are estimated to be as many as 20 million undocumented aliens in the country.  If continuous workplace raids of cooks and janitors are what the government chooses to do, of course backlogs will follow.  A comprehensive immigration solution that allows undocumented aliens to learn English, pay a fine, pay taxes and go to the back of the green card line in order to legalize their status is worth considering.  We tried “deporting all the janitors” and it has not been too effective.  The poor economic conditions have probably been far more effective in getting the undocumented to leave the US than the high-profile, costly, inefficient raids have been.  In these times, taxpayer funds should not be wasted on raids of low-level factory workers.  There are much bigger fish to fry.       

According to an article on washingtonpost.com:  “Homeland Security Secretary Janet Napolitano has delayed a series of proposed immigration raids and other enforcement actions at U.S. workplaces in recent weeks, asking agents in her department to apply more scrutiny to the selection and investigation of targets as well as the timing of raids, federal officials said.”

This is a step in the right direction for the Obama Administration.  Arresting undocumented cooks and janitors should not be the number one priority of agents whose time would be better spent focusing on true criminals who pose a threat to the nation.  

A policy shift in relation to immigration is underway and time will tell if it succeeds.  The Bush immigration mess was years in the making and it takes time for government agencies to make major policy shifts from the “anti-immigration” trend we have seen to a sensible system that works.

According to an article on sfgate.com:  “More than 400,000 people a year are detained by immigration officials in the United States – including undocumented immigrants, legal immigrants who run afoul of the law and asylum seekers who come fleeing persecution – but according to a report released today by Amnesty International, conditions are often deplorable and detainees are routinely denied due process.”

The US District Court for the Western District of Washington has granted summary judgment to the plaintiffs in the class-action case Gabriel Ruiz-Diaz, et. al. vs. United States of America. 

 

The Court held that the government’s policy barring concurrent filing of I-485 applications for adjustment of status with I-360 special immigrant religious worker petitions was both an “unreasonable and impermissible construction of the governing statute.”

 

The parties must begin settlement discussions regarding an order for relief within the next twenty days.  For now, the court has not ordered USCIS to begin accepting concurrent filings.

 

This is great news for I-360 Religious Workers who have been singled out and unable to file I-485 applications concurrently with I-360 Petitions.  We commend the Seattle firm Gibbs Houston Pauw for bringing this case and hope that more class-actions on behalf of applicants for immigration benefiots make their way through the Courts when justice so requires.

It is H-1B season and I have been busy so I am unable to write as frequently as I would like to.  Below are some somewhat random thoughts about immigration that I feel are worth sharing yet don’t fall into a clear category.  The following is for informational purposes only and none of it should be construed as legal advice.

Imagine if the IRS viewed each and every tax return with a presumption that all filings were fraudulent.  They would conduct at least a desk audit of almost all but the most clear-cut returns.  If there were any discrepencies, mistakes or inconsistencies, the consequence would be jail or being thrown out of the US.  Imagine that there was no right to be represented by a lawyer at the hearing.  Scary scenario, especially for those who try to do things correctly but may make a simple error or wrongly claim a deduction.  Well this is in essence the state of our immigration system at the moment.

Leaving aside the issue of undocumented workers, green cards are taking years to process.  In fact, if someone is in the Employment-Based Third Category, the USCIS is currently accepting for processing I-485 applications for those with a priority date of March 1, 2003 (or November 1, 2001 for Indian Nationals).  This is an outrageous delay and those who are waiting in the US in H-1B status for instance, must have their employers continue to renew their H-1Bs at least until the I-485 application has been filed.  Moreover, the law requires that employers be able to demonstrate the ability to pay the offered wage from the time the labor certification is filed to the time the I-485 application has been adjudicated.  Given the long delays and the economic turmoil this country is facing, many employers will be lucky to be around in six or seven years, much less show net income or net current assets that exceed the offered wage.  This issue will be especially acute for smaller companies and could lead to a high number of I-485 application denials.

The current environment can best be described anti-immigration when it comes to the agencies in charge of adjudicating and enforcing US immigration laws (USCIS. ICE, CBP and DOL).  Perhaps a protectionist instinct is kicking in due to the economy, maybe the poisonous anti-immigrant rhetoric that dominated the final couple of years of the previous administration lingers, or perhaps it’s some combination thereof.  The philosophy of the USCIS seems to have become, when in doubt, deny.  There are now times when we advise clients with borderline cases not to file given the anti-immigration environment whereas as recently as a year ago, our approach would have been more aggressive.  

The effect of this difficult period for immigrants keeps the demand for immigration lawyers high, especially those of us who consult with individual clients.  Granted, attorneys who relied on H-1Bs from financial institutions for their bread and butter are certainly feeling the pinch.  However, lawyers who practice removal, family immigration and counsel individuals and corporations on how to deal with layoffs or other options that may be available are quite busy.  Moreover, despite the new denial kick the government has been on – it is still wiser to retain an experienced immigration lawyer to file and if necessary, appeal a decision to obtain the benefit sought.   

Inconsistencies in adjudications have become a recurring problem.  Dozens of almost identical cases may have been approved over the past decade and are now suddenly being questioned or denied.  Lawyers are reporting that Specialty Occupations for H-1B extensions for positions that are clearly H-1B caliber are being heavily questioned. 

If an H-B petition for someone who is already in the US is denied, withdrawn by an employer or revolked, they are immediately considered to be out of status and, in theory removable/deportable.  There is no grace period.  What if the denial was in error?  The options are to file a motion to reconsider or an appeal.  An appeal will probably take at least a year and one does not preserve his or her status by filing an appeal. 

For now, we just have to keep at it and hope that the US does not lose too many talented people because of the backwards, foolish decisions that have been and continue to be made on both the macro (policies, laws and regulations) and micro (individual denials) levels. 

Canada welcomes highly skilled workers and we find ourselves referring prospective clients to our Canadian colleagues more often these days.  Immigration reform along with a more thorough training of adjudicators, sensible policies, and consistency in decisions are key to achieving any level of success with our immigration system. 

According to an article on boston.com:  “At a town hall meeting in southern California yesterday, Obama renewed his support for comprehensive reform, including a possible path to citizenship for law-abiding people who entered the country illegally, along the lines of the bill that stalled in Congress in 2007.”

The issue of immigration needs to be successfully addressed.  The backlogs are tremendous and adjudications are getting to be out of control in many instances.  Regarding a legalization component of an immigration reform package that is employment-based for those who are out of status – Congress and the Obama administration have their work cut out for them.

According to a USCIS Press Release:  “U.S. Citizenship and Immigration Services (USCIS) today announced additional requirements for employers, who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category.”

According to a USCIS Press Release:  “U.S. Citizenship and Immigration Services (USCIS) today announced that it will begin accepting H-1B petitions subject to the fiscal year 2010 (FY 2010) cap on April 1, 2009.  Cases will be considered accepted on the date that USCIS takes possession of the petition; not the date that the petition is postmarked.”

According to an entry in the Department of Homeland Security’s Leadership Journal:  “As of mid-February, USCIS and the FBI had completed all name checks that were pending for more than six months. In doing so, we beat our publicly stated goal by almost two full weeks. With the milestone’s completion, the FBI and USCIS have met or exceeded the first six milestones outlined last summer.”

Our nation’s detention of suspected mmigration violators is expensive and woefully ineffficient.  According to the Associated Press:  “… the dragnet has come to include not only terrorism suspects and cop killers, but an honors student who was raised in Orlando, Fla.; a convenience store clerk who begged to go back to Canada; and a Pentecostal minister who was forcibly drugged by ICE agents after he asked to contact his wife, according to court records.”