Immigration Laws: Federal vs. State

August 13th, 2012

With the upcoming 2012 presidential election, voters are honing in on several key issues. Even a brief glance across the headlines of America’s newspapers shows that immigration is without a doubt one of the main topics. Immigration to the U.S. has been a consistently widespread trend since around 1820, and the intense debates regarding the issue are now coming to a pinnacle with the coming election.

One of the central conflicts plaguing the nation’s mutable immigration policy is the clash between federal and local governments over what kind of action to take. A program known as Secure Communities was introduced by the U.S. Immigration and Customs Enforcement agency (or ICE) in 2008. The program called for the arrest of all crime-causing illegal immigrants, regardless of the crime’s scope. This detainer extends the person’s holding time in jail by up to 48 hours, allowing custody to be transferred to ICE where they can initiate the deportation process.

Federal proponents of the bill, like ICE director John Morton and Secretary of Homeland Security Janet Napolitano, are now seeing that the major flaw of Secure Communities lies in its dependence on the cooperation from state and local authorities. This has been a particular source of trouble in Cook County, Illinois. Chicago Mayor Rahm Emmanuel informed the media in a press conference last month that he does not wish for the city’s police force to follow the Secure Communities guidelines, a sentiment echoed by many of the county’s officials.

Especially in the wake of Arizona’s notorious blitz on illegal immigrants two years ago in the form of Senate Bill 1070, local governments all over the country are retaliating against the stringent new measures. In addition to Cook County’s move, which has pervaded the news since Emmanuel’s July 9th announcement, places like San Francisco, Santa Clara County, Washington D.C., and Taos, New Mexico have refused to accept federal measures, even establishing decrees against jails allowing detainers for minor crimes in some cases.

Inevitably, White House officials have responded in kind with vows to try and make dissenting governments comply with Secure Communities. Admittedly, their accomplishments have not been small so far. The Obama administration has already racked up over 1.2 million deportations, 200,000 of them under the provisions of the 2008 act and boosted the deportation rate of criminal illegals by almost 90% in three years. The act now encompasses 3,000 localities and is expected to achieve national compliance next year.

Still, resistance continues to grow as well. California – a state that contends more than any other with immigration problems – approved a senatorial bill prohibiting detainers statewide, prompting Supreme Court debates over the legality of such unilateral policy decisions. As the most heavily-populated state in the country and certainly one of the bluest, California’s opposition to the federal mandate is sure, as TIME writer Adam Sorensen says, to put them “on a collision course with the Obama Administration.” <http://swampland.time.com/2012/07/16/obamas-next-immigration-battle-local-federal-authorities-on-collision-course-over-detention-requests/?iid=sl-main-mostpop1>

Luckily, these rigorous measures by the federal government will not directly affect legal maneuvers, like business immigration, which allow desirable workers from foreign countries to come into the United States and be allowed to work in various fields on temporary or permanent bases. At the same time, though, the Obama administration must ask itself how acts like Secure Communities will affect the U.S.’s international relations; after all, it may seem a tad unwelcoming for a country that was largely built by immigrants to take such a tough stance on the practice.

For information, education, and help regarding immigration law, visit ZulkiePartners.com, one of America’s top business immigration law firms.

Comment » | Immigration and Customs Enforcement, Immigration reform

Relief for DREAMers

July 16th, 2012
On June 15, 2012, President Obama announced that certain undocumented individuals who were brought to the U.S. as young children and who meet several eligibility criteria may receive “deferred action” and work authorization for a period of two years.  Deferred action means that the government will not seek to remove these individuals. 

In order to be considered for deferred action, the individual:

  • Must have been under the age of 31 and present in the U.S. on June 15, 2012;
  • Must have been under the age of 16 when brought to this country;
  • Must have continuously resided in the U.S, for at least five years before June 15, 2012;
  • Must be currently in school or have graduated from high school (or have received a GED), or have been honorably discharged from the U.S. Armed Forces;
  • Must have not been convicted of a felony, a “significant misdemeanor,” or multiple misdemeanors, or otherwise pose a threat to national security or public safety;
  • Must be at least 15 years of age at the time of application;
  • Must complete a background check.

Applications are not yet being accepted by the U.S. Department of Homeland Security, but  guidance on the process is expected no later than August 15, 2012.

Comment » | Department of Homeland Security, Immigration reform

Further Guidance on Failure to Register for NSEERS

June 22nd, 2012

Although DHS finally ended the NSEERS registration program last year, it recently issued guidance on the limited circumstances under which negative immigration consequences, such as a denial of a benefit, finding of inadmissibility, or commencement of removal proceedings, will result from a foreign national’s prior failure to comply with NSEERS requirements. NSEERS, or the National Security Entry-Exit Registration System, was a special registration process for male foreign nationals from certain countries who were over the age of 16 and who entered the U.S. as nonimmigrants prior to September 10, 2001. Implemented in 2002 in the wake of the September 11 attacks, it sought to record the arrival and departure of individuals mostly from Middle Eastern countries. The program failed as a counterterrorism policy and was discriminatory and relied on racial profiling.  While in its latest memo DHS clarifies that only noncompliance, in and of itself, is not a sufficient basis for such consequences to adhere, DHS has not completely eliminated the lingering consequences of NSEERS: a determination of a willful NSEERS violations may still apply and have negative immigration consequences.  We think this is wrong.  DHS should, once and for all, remove the residual penalties associated with NSEERS.

 

Comment » | Department of Homeland Security

ESTA Travelers: Do Not Risk a Misrepresentation Finding

June 22nd, 2012

U.S. Customs and Border Protection (CBP), the agency whose officers make the determination at ports of entry regarding admission to the United States, advises that failure to disclose visa refusals for administrative processing or for an incorrect visa category on  visa application, Form DS-160, may be construed as a misrepresentation when completing the Electronic System for Travel Authorization (ESTA) form, and this misrepresentation could make the applicant inadmissible. The ESTA form is required for those foreign nationals who are eligible to enter the United States through the visa waiver program. ESTA applicants are advised to report visa “refusals” as “denials” even when the refusals are for administrative processing or for selecting the incorrect visa category on Form DS-160. This means that even when a consular officer suspends a visa application for administrative processing for receipt of additional documents or other information and those documents are subsequently submitted and the visa is granted, the ESTA applicant should consider that as a denial on the ETSA form. This is because the Department of State (DOS) treats a consular officer’s decision to suspend processing a visa as a visa refusal. Because DOS treats the suspension for administrative processing as a refusal, CBP requires that such refusals be reported on the ESTA application.

The ESTA application asks “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?” If the applicant’s visa application is under administrative processing by a consular post, the applicant should answer “yes” to this question on ESTA. CBP advises that it will manually review the ESTA application to determine whether the applicant is eligible for travel. Generally, CBP will issue a decision on such applications within 72 hours of submission.

CBP also advises that if a visa applicant does not select the correct visa category on the nonimmigrant visa application, Form DS-160, the consular officer may require the applicant to complete a new Form DS-160 with the correct visa category before the visa may be issued. Because there may be a record of this error noted by a consular officer, the applicant should also disclose a visa refusal on ESTA as a denial and explain the circumstances in the space provided even if the applicant is not told that the consular officer has entered such a notation.

Comment » | Customs and Border Protection, Visa waiver program

H-1B Cap Reached

June 22nd, 2012

On June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory H-1B cap for FY 2013. On June 7, 2012, it received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will now reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013. Employers wishing to hire first-time, cap subject H-1B workers will have to wait until April 1, 2013 to file their cases for work that will begin no earlier than October 1, 2013, the first day of FY 2014. USCIS continues to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions as well as Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.

Comment » | Department of Homeland Security, H-1B

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