Archive for December 2011


Immigration and Congress

December 19th, 2011 — 11:20am

Fairness for High-Skilled Immigration Act

Ironically, of the three branches of government, the one specifically charged with enacting laws has been just about silent on the immigration front. The 112th Congress has neither passed nor significantly moved forward any important immigration proposal this year except, most recently, the now-stalled Fairness for High-Skilled Immigration Act, HR 3012. On November 29, the House of Representatives passed HR 3012, the first significant piece of immigration legislation passed by either the House or Senate all year. Passed with overwhelming bi-partisan support, the Fairness for High-Skilled Immigration Act eliminates entirely by fiscal year 2015 the current per-country cap on the employment-based visas and is designed to eliminate long wait times for workers from high-demand countries such as India and China. It also increases the family-based per-country cap from 7 percent to 15 percent. Before the bill can become law, the Senate must take up the legislation and President Obama would have to sign it into law. Meanwhile, Senator Grassley (R-IA), a long-time, staunch opponent of pro-immigration reform, placed a “hold” on the legislation in order to delay its consideration, citing his concerns about the impact of the bill on future immigration flows, among other things.  It is unclear how long he intends to hold the legislation hostage. In any event, some are hedging their support for the bill by noting that backlogs will not be truly eliminated but instead merely passes the buck down the line, inevitably creating backlogs somewhere else in the immigration visa quota system. The bill does not make any change in the overall number of green card visas available each year for skilled and professional workers and their dependents – 140,000 – a number enacted into law more than 20 years ago.

Tinkering at the margins, congressional committees recently have conducted a number of recent hearings on important immigration issues.  A round up includes the following:

Secure Communities

A House of Representatives hearing led by Representative Steve King (R-IA) was the first-ever congressional review of Secure Communities, the three-year-old program where the FBI shares the fingerprint data of arrestees from local (and state) law enforcement agencies with DHS. For several years now the program has been criticized for leading to racial profiling and interfering with community policing. Despite these claims, the Administration has directed ICE to expand the program, and an ICE official testified at the congressional hearing that DHS has safeguards in place to alert them of possible abuse. It is doubtful that any substantive changes will come from the hearing.

Visa Waiver Program

The Visa Waiver Program (VWP) is also subject of scrutiny as many call for its expansion. The program allows nationals from 36 countries to visit the United States for 90 days or less without securing a visa in advance. Many, especially the tourism industry, advocate for expanding opportunities to other nationals as good for the American economy, citing the VWP as the single largest program of inbound U.S. travel in 2010. It is unclear from the hearings whether any substantive changes will be made, though some countries, including Taiwan, are hopeful to be included if the program expands. The House hearing follows a recent State Department announcement that the U.S. is falling far short of meeting a growing worldwide demand for visas, undermining U.S. competitiveness now and into the future.

EB-5 Investor Program

The EB-5 Entrepreneur Investor Visa Program is up for review. Created in early 1990s and lauded as a job creator and a vehicle to drive the economy, the program has been perennially underutilized, issuing fewer than 2,500 visas in 2010 out of a possible 10,000. A Senate reauthorization hearing on December 7 was to review the Regional Center program, a component of the EB-5 program that permits a $500,000 investment in targeted employment areas in approved pooled investment programs instead of a $1 million, and is set to sunset in 2012.  Most observers agree that the program will be reauthorized, perhaps permanently.

Foreign Students Educated in STEM Fields

Continuing the emphasis on economic competitiveness, hearings also have been held to examine options for reforms that do a better job of retaining foreign students who graduate in the fields of science, technology, engineering and math (STEM). Currently, foreign students must leave the United States upon graduation unless they are eligible for one of the few and limited ways to stay in the country. Many politicians are upset that we provide stellar education but don’t reap the benefits. On the presidential trail, hopefuls have also stepped up the rhetoric: Newt Gingrich said during the CNN debate in November that foreign students graduating with STEM degrees should automatically receive work visas.

Combined with the approaching 2012 election cycle and candidates staking out positions, we can expect continued hearings on Capitol Hill on immigration but no comprehensive reform, even though a new nationwide poll shows a large majority of Americans favor a path to citizenship for most undocumented immigrants.

http://www.nationaljournal.com/daily/public-wants-immigrants-to-be-able-to-stay-20111206

Comment » | Immigration reform, Lawful permanent resident

Immigration and the Executive

December 19th, 2011 — 11:16am

While the Justice Department efforts to protect individual rights and to preserve the right of the federal government to enforce immigration law have been laudatory, a number of other significant policies of the current Administration have angered pro-immigration supporters, not the least of which has been the record number of deportations that have transpired in the last three years. Some 1.2 million undocumented foreign nationals have been deported since President Obama took up office, compared to almost 1.6 million deported during the eight-year Presidency of George Bush. In FY2011 alone, an unprecedented 400,000 people were deported. However, just last month the Administration took real action to provide relief for the undocumented who pose no threat to the country and who commit no crime.

Prosecutorial Discretion

 A new DHS-ICE policy encouraging the exercise of prosecutorial discretion in appropriate cases was launched in mid-November – complete with fairly comprehensive guidelines and procedures – and is being piloted in Baltimore and Denver, December 4 through January 13, 2012. DHS (the Department of Homeland Security) had announced in June its intent to eliminate low priority cases from the immigration court dockets and instead focus its enforcement priorities on the removal of those who have broken criminal laws, threats to national security, recent border crossers, repeat violators of immigration law, and immigration court fugitives. In August, DHS and ICE (Immigration and Customs Enforcement) issued a directive to ICE attorneys to review pending court cases as well as cases where a charging document had not yet been filed to determine if the agency should decide not to prosecute the case. DHS also announced the establishment of a joint DHS-DOJ working group to review the approximately 300,000 pending cases and identify cases for administrative closure. The pilot program just launched was designed to identify cases most clearly eligible and ineligible for a favorable exercise of discretion. During a six-week period, USCIS, ICE, and CBP (Customs and Border Protection) attorneys are to review cases according to the agency’s general prosecutorial discretion guidance as well as by a set of more focused criteria. Ultimately, DHS expects to implement “best practices” on an ongoing basis nationwide.

While it is still too soon to judge the results of the pilot program and the impact of the agency’s new policy, in Baltimore, at least, removal cases normally set in December and January have been scheduled well into the future.  Stay tuned.

Other DHS guidance issued in November on when immigration charging documents should be issued dove-tails with its prosecutorial discretion policy.

Adjudications, Entrepreneurs, Small Business

More informally, the Administration has engaged the public and immigration stakeholders on a variety of issues and has done so more directly that ever before. Recently, the USCIS Ombudsman’s Office held an Annual Conference attended by 300 to discuss improving the delivery of immigration benefits and services. USCIS also has hosted a number of teleconferences with the public. A teleconference was held on USCIS’s then-changed policy on where and to whom I-797 approval notices are sent. (Feedback from the call contributed to USCIS changing its policy.) Another teleconference was held on small and start-up business immigration issues and involved not only immigration officials but those from the Small Business Administration and other federal agencies. On a related note, USCIS just launched an “Entrepreneurs in Residence” initiative and hopes to bring business experts in-house to work alongside USCIS staff to ensure that its policies are reflective of industry realities. This could be a valuable opportunity for business experts and immigrant entrepreneurs, especially those who have engaged in the U.S. immigration system through immigrant visa applications, to join USCIS’s tactical team and affect how the agency adjudicates cases. Business members, however, must be U.S. citizens. To apply for the Entrepreneurs in Residence program, see http://www.dhs.gov/xabout/careers/loaned-executive-business-expert-uscis.shtm

It’s anyone’s guess whether the Administration’s formal policy changes (prosecutorial discretion) or its informal meetings and public engagements will result is administrative fixes that have real teeth. At the end of the day, however, these changes represent only modest remedies to a system that cries out for wholesale reform.

Comment » | Customs and Border Protection, Department of Homeland Security, Immigration and Customs Enforcement, Immigration reform, Worksite enforcement policies

Immigration and the Courts

December 19th, 2011 — 11:11am

Supreme Court Enters Arizona Fray

On December 12, the U.S. Supreme Court agreed to decide whether Arizona may impose its tough anti-immigration law, S.B. 1070, including a requirement that state-law enforcement officials determine the immigration status of anyone they stop or arrest if the officials have reason to believe that the individual might be an undocumented immigrant. The Ninth Circuit blocked the provision and others in this Draconian, controversial law, which was enacted in 2010 and spawned copycat legislation in a number of other states.  By taking on the case, the Court has thrust itself into the center of American political life and will weigh in on what has been called one of the most combustible issues in American politics. The Supreme Court’s ultimate decision in the case, however, may not have precedential value. Justice Elena Kagan will not take part in the decision of the high court – she worked on the issue previously while solicitor general – which raises the prospect of a 4 to 4 vote. If that were to happen, the Court’s decision would carry no precedential significance for the other state laws being challenged. The Court is expected to hear the case in April.

 Federal Court Challenges to Utah and South Carolina State Immigration Laws

In the wake of congressional inaction on immigration, state legislatures continue to attempt to reform the law and the federal government continues to wrestle with the states to maintain its control or preemptive rights over the issue. As these battles persist and are played out in the federal courts, the Department of Justice (DOJ) has been center stage.  In addition to suits in Arizona and Alabama, DOJ recently filed a lawsuit in federal district court against a South Carolina law, Act No. 69, parts of which go into effect, on January 1.  Filed on behalf of the Departments of State, Justice, and Homeland Security, the lawsuit argues that certain provisions of the South Carolina law are unconstitutional and interfere with the federal government’s authority to set and enforce immigration policy. Then, on November 23, DOJ filed another suit, this time against Utah, to block implementation of HB 497, which mandates that local police enforce immigration laws. These laws are similar to those in Arizona (SB 1070) and Alabama. (The same day the Supreme Court accepted review of Arizona’s SB 1070, a federal court blocked a provision of Alabama’s immigration law that would have forced undocumented immigrants to leave their mobile homes. The ruling means that people paying for their annual mobile home registration tags required for residence will not have to prove their legal residency for now.)  DOJ is also reviewing laws in Georgia and Indiana that already have been challenged by private groups and individuals.

In its press releases announcing these lawsuits, DOJ cited the irreparable harm caused by the laws, including “the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status.” The reality of this concern was borne out recently when a German Mercedes Benz executive was arrested under Alabama’s anti-immigrant law while in town visiting the automaker’s facilities, followed by the arrest of a Japanese Honda employee also in Alabama.

Clearly, DOJ’s efforts in these cases reflect a commitment to protecting constitutional principles and individual rights, which we applaud.

Comment » | Department of Homeland Security, Worksite enforcement policies

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