April 9, 2009

AILA Commends President Obama’s Commitment to CIR

WASHINGTON, DC -- The American Immigration Lawyers Association (AILA) commends President Obama for the Administration's statement today that it plans to advance the effort to reform our immigration system including eliminating illegal immigration and providing a path to citizenship for hardworking immigrant families. "The administration gets it; immigration is intrinsically tied to the economy," said Charles H. Kuck, president of AILA. "Rising unemployment is a serious and frightening crisis that we all share. Policies require looking ahead, for our short-term economic recovery, and for the nation's long-term economic stability and growth. We must meet the challenge to reform our immigration system now, with sensible, practical solutions. Fixing our immigration system is a critical component of fixing our economy. This courageous stance will prove to be the right remedy for what ails the country right now."

Moving forward with comprehensive immigration reform will ensure that all workers are here legally, will punish unscrupulous employers who undercut their honest competitors, and will restore integrity to the labor market. It will lift wages for workers, ensure all workers are paying taxes, restore fairness to our immigration system, and create a level playing field for law-abiding employers. "We laud the administration for seeing past the political and emotional rhetoric to the truth that what our country needs to climb out of the crisis toward economic growth and stability," stressed Kuck. "AILA welcomes this opportunity to work with the new Administration to forge a new path toward a 21st century immigration system that meets the needs of the American people and respects the ideals upon which our country was built."

H-1B Quota FY 2010

USCIS informs that almost half of the petitions needed to meet the FY2010 cap have been received and almost all of the petitions to meet the master's cap have been receive.

USCIS had also indicated that, while it has received nowhere near the number of filings that would fill the overall H-1B cap on the first day of filing, it had received close to the number needed to fill the 20,000 exemption for those who have earned a U.S. master’s degree or higher. This will be the first time that the U.S. master’s degree exemption has filled up before the H-1B cap has. “It is a reflection of how filings track market realities,” said Kuck. “In boom times, when there are shortages of U.S. workers in eligible fields, you see more foreign workers with only bachelor’s degrees in the mix. Now, with shortages only in a few specialized areas, the bulk of the H-1Bs requested are for expertise in highly specific fields that usually require advanced studies or in an overseas target market.” H-1Bs continue to be a fuel for the economy. “This development shows that an arbitrary cap is not needed,” Kuck concluded. “Let’s let the marketplace do its job and regulate the numbers needed.”

Delay in Immigration Raids May Signal Policy Change

By Spencer S. Hsu
Washington Post Staff Writer
Sunday, March 29, 2009; A02

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.

A senior department official said the delays signal a pending change in whom agents at U.S. Immigration and Customs Enforcement choose to prosecute -- increasing the focus on businesses and executives instead of ordinary workers.

"ICE is now scrutinizing these cases more thoroughly to ensure that [targets] are being taken down when they should be taken down, and that the employer is being targeted and the surveillance and the investigation is being done how it should be done," said the official, discussing Napolitano's views about sensitive law enforcement matters on the condition of anonymity.

"There will be a change in policy, but in the interim, you've got to scrutinize the cases coming up," the senior DHS official said, noting Napolitano's expectations as a former federal prosecutor and state attorney general.

Another DHS official said Napolitano plans to release protocols this week to ensure more consistent work-site investigations and less "haphazard" decision-making.

Napolitano's moves have led some to question President Obama's commitment to work-site raids, which were a signature of Bush administration efforts to combat illegal immigration. Napolitano has highlighted other priorities, such as combating Mexican drug cartels and catching dangerous criminals who are illegal immigrants.

Napolitano's moves foreshadow the difficult political decisions the Obama administration faces as it decides whether to continue mass arrests of illegal immigrant workers in sweeps of meatpackers, construction firms, defense contractors and other employers.

Critics say workplace and neighborhood sweeps are harsh and indiscriminate, and they accuse the government of racial profiling, violating due process rights and committing other humanitarian abuses.

The raids have enraged Latino community and religious leaders, immigrant advocates and civil liberties groups important to the Democratic base, who have stepped up pressure on Obama to stop them.

At a rally last week in Chicago, Cardinal Francis George, head of the archdiocese of Obama's home city, called on the government "to end immigration raids and the separation of families" and support an overhaul of immigration law. "Reform would be a clear sign this administration is truly about change," George said.

Also last week, House Speaker Nancy Pelosi (D-Calif.) and the Congressional Hispanic Caucus made similar calls as the caucus met formally with Obama for the first time.

"Raids that break up families in that way, just kick in the door in the middle of the night, taking [a] father, a parent away, that's just not the American way. It must stop," Pelosi added at a Capitol Hill conference on border issues sponsored by the U.S. Chamber of Commerce.

But Obama also faces pressure from conservative lawmakers and many centrist Democrats, who say that workplace enforcement is needed to reduce the supply of jobs that attract illegal immigrants, and that any retreat in defending American jobs in a recession could ignite a populist backlash.

When the White House announced plans last week to move more than 450 federal agents and equipment to the border to counter Mexico's drug cartels, lawmakers warned Napolitano against diverting money from workplace operations.

Rep. Lamar Smith (Tex.), ranking Republican on the House Judiciary Committee, said the administration "appears to be using border violence as an excuse" to undercut immigration enforcement in the nation's interior.

"It makes no sense to take funds from one priority (worksite enforcement) to address a new priority (the growth in border violence). This is just robbing Peter to pay Paul," Sen. Robert C. Byrd (D-W.Va.), the powerful chairman of the Senate Appropriations subcommittee for homeland security, said in an e-mail.

Led by Byrd, Congress this year ordered ICE to spend $127 million on workplace operations, $34 million more than President George W. Bush had requested. Reducing those amounts, even in ICE's overall $5 billion budget, would provoke a fight, senior aides in both parties said.

Napolitano has sought to chart a middle course by ordering a review of which immigrants are targeted for arrest. While a policy is still under development, Napolitano has said she intends to focus more on prosecuting criminal cases of wrongdoing by companies. Analysts say they also think ICE may conduct fewer raids, focusing routine enforcement on civil infractions of worker eligibility verification rules.

Former Bush administration officials said their raids were also targeted against supervisors, but that it took time to build complicated white-collar cases. In the meantime, they said, depriving companies of their workforces and in some cases filing criminal charges against illegal immigrant workers sent a clear message of deterrence to both management and labor.

Mark Krikorian, executive director of the Center for Immigration Studies, which seeks to reduce immigration, said Obama aides are trying to manage the issue until an economic turnaround permits an attempt to overhaul immigration laws.

"I think their calculus is, how do they keep Hispanic groups happy enough without angering the broader public so much that they sabotage health care and their other priorities?" Krikorian said.

Ali Noorani, executive director of the National Immigration Forum, an immigrant advocacy group, said that to the contrary, groups such as his support Obama's focus on going after bad employers and criminal illegal immigrants first -- or as he put it, prioritizing "drug smugglers, not window washers."

Within ICE, the front-office vetting of cases has led to some doubts. Last week, for example, ICE postponed plans to raid employers at a military-related facility in Chicago for which they had arranged to temporarily detain as many as 100 illegal immigrants, according to one official. A second official said Napolitano thought the investigative work was inadequate.

The raid would have been the second under the Obama administration. After the first, a Feb. 24 sweep of an engine-parts maker in Bellingham, Wash., that led to 28 arrests, Napolitano publicly expressed disappointment that ICE did not inform her beforehand and announced an investigation into agency communication practices.

In response, Leigh H. Winchell, the ICE special agent in charge in Seattle, wrote an e-mail to his staff -- subsequently leaked to conservative bloggers -- saying they had acted correctly. He also copied a statement from House Republicans calling Napolitano's review "beyond backwards."

"You did nothing wrong and you did everything right," Winchell wrote. "I cannot control the politics that take place with these types of situations, but I can remind you that you are great servants of this country and this agency."

New Nonimmigrant Visa Procedures in Ciudad Juarez

Beginning April 6, 2009, nonimmigrant visa applicants at the consular post in Ciudad Juarez must obtain an Application Support Center (ASC) appointment for biometrics before attending the nonimmigrant visa interview appointment at the post. The ASC for Cd. Juarez is located at the old consular post site at Avenida Lopez Mateos 924 N, Fracc. La Playa in Building C. The office is open from 8 AM to 1:30 PM from Monday through Friday. While the goal of the post is to allow applicants to schedule the ASC in the morning before the consular interview in the afternoon, this same day option is not available just yet.

Please note that it takes about 20 to 25 minutes to drive from the old consulate to the new consulate site in Cd. Juarez. At the moment, you have to plan one day for a biometric intake at the ASC and the following day for the appointment for the nonimmigrant visa interview. At present, there are more ASC appointments each day for scheduling use than nonimmigrant visa consular appointments. Of course, Cd. Juarez also requires the submission of the new DS-160 electronic form. The ASC and consular appointments do not have to be scheduled on consecutive days.

Truth in Immigration’s mission is to rebut legal and factual inaccuracies about immigrants and/or Latinos. Visit Truth In Immigration

Truth: Undocumented immigrants DO have legal rights under the U.S. Constitution and federal statute.
As far back as 1896, the U.S. Supreme Court ruled that:

“The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ’Nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.’ These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws.” 2

All persons in the U.S., therefore, have constitutional rights. Among these are the right to equal protection of the law and the right to due process.

Also, undocumented persons have a constitutional right under the Fourth Amendment to deny any officer from entering their residence without consent, absent a search warrant.

Further, the Supreme Court has held that all children, regardless of their immigration status, are entitled to free public education, as required under the Equal Protection Clause of the Fourteenth Amendment. 3

Additionally, under federal law publicly funded hospitals must provide emergency medical services to all patients, regardless of their immigration status. 4 Immigrants are also protected from workplace discrimination under state and federal laws.

Moreover, under federal law, a person may recover money damages for loss of property, personal injury or death where damages occurred as a result of the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 5

These are just a few of the rights that our Constitution and federal laws grant to all persons living in the U.S. These rights are intended to protect all U.S. residents from discrimination and arbitrary government action. These rights are especially critical in times where hatred based on race, color, and national origin is on the rise.

_______________________
1. Glenn Beck. CNN Headline News. February 7, 2007.
2. Wong Wing v. United States, 163 U.S. 228 (1896)
3. Plyler v. Doe, 457 U.S. 202 (1982)
4. 42 U.S.C. § 1395dd, Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA).
5. The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680.

MYTH: Immigrants Send All Their Money Back to Their Home Countries

FACT: While it is true that immigrants remit billions of dollars a year to their home countries, this is one of the most targeted and effective forms of direct foreign investment.

FACT: In addition to the consumer spending of immigrant households, immigrants and their businesses contribute $162 billion in tax revenue to U.S. federal, state, and local governments.

MYTH: The Government Gives Social Security Benefits to “Illegal” Aliens Who Have Never Contributed to the System

FACT: Contrary to what people think, undocumented workers are not (and have never been) eligible to claim social security benefits. Moreover, most undocumented workers will use a false social security number to prove work authorization, therefore paying money into a benefit system that they will never be eligible to use.

FACT: According to the Social Security Administration (SSA), undocumented immigrants "account for a major portion" of the billions of dollars paid into the Social Security system under names or social security numbers that don't match SSA records. As of October 2005, the reported earnings on which these payments are based-which are tracked through the SSA's Earnings Suspense File (ESF)-totaled $520 billion.

More mythbusting facts on this issue can be found in The Economic Impact of Immigration, a policy brief prepared by the Immigration Policy Center (IPC).

FACT: Contrary to popular belief, immigrants pay a substantial amount of taxes, from federal income and Social Security taxes to state income, sales, and property taxes.

FACT: The IRS estimates that undocumented immigrants alone paid $50 billion in taxes from 1996 to 2003.

FACT: A 2007 White House Council of Economic Advisers study reports that immigrants and their families contribute an average of $80,000 more than they use in benefits.

On 1/27/09 ICE updated its list of Student and Exchange Visitor Program approved schools.

ICE SEVP Response Center Now in Operation (Updated 2/6/09)

"On Monday, January 26, 2009, the SEVP Response Center (SRC) began operation. The SRC is just one of SEVP's ongoing efforts to expand service to our many stakeholders. The center is staffed by three highly trained SEVP employees knowledgeable on a variety of issues including, but not limited to:

These staff members are available Monday through Friday, from 8:30 a.m. to 5 p.m. EST to answer most of your questions on the spot. Questions or issues requiring research will be answered as expeditiously as possible.

The dedicated number for the SRC is 703-603-3400. A toll-free number for the SRC is planned and will be available as soon as possible.

We are confident that you will find the SRC an effective tool for handling stakeholder queries, and we look forward to receiving your feedback regarding this new service."

“Investigation” of Banks’ Usage of H-1B Visas Gets It Wrong

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) reminds petitioners who
participate in the H-2A agricultural temporary worker program and the H-2B nonagricultural temporary worker program to use the new Form I-129, “Petition for a Nonimmigrant Worker,” which contains the H Classification Supplement.

USCIS published the final rules for the H-2A classification (73 FR 76891) and the H-2B classification (73 FR 78104) in December 2008 with effective dates of Jan. 17, 2009, and Jan. 18, 2009, respectively. These final rules necessitated revising the H Classification Supplement to the Form I-129. The new Form I-129 with the Jan. 22, 2009 revision date incorporates all necessary changes on account of the H-2A and H-2B final rules and should be used in lieu of the older version. Petitioners who file using an older version of the form for the H-2A and H-2B classifications will experience delays because they will receive a request for the revised H Classification Supplement to the Form I-129. Although previous editions of the Form I-129 are still accepted, petitioners seeking H-2A and H-2B classifications are urged to use the most current version of the Form I-129 posted on the Web site. More information about the H-2A and the H-2B programs is available at www.uscis.gov or by calling the National Customer Service Center at 1 (800) 375-5283.

President Barack Obama Issues FOIA Memo

On January 21, 2009, President Barack Obama issued a memo that provides guidance to Agency heads on FOIA procedures. The memo directs the Attorney General to publish new FOIA guidelines in the Federal Register and encourages agencies take affirmative steps to make information public.

Over 1,200 advocacy groups delivered a letter to the Obama Administration outlining priorities for immigration reform. The letter stressed the urgency with which the new Administration should approach immigration reform, noting that efforts to address the ills of our immigration system have become the victim of gridlock in Washington for too long.

The American Immigration Lawyers Association calls upon the new Administration to eschew the harsh, indiscriminate enforcement-only policies of the past 8 years in favor of a more rational and just approach to immigration policy that restores the rule of law and serves America’s core economic, security, and humanitarian interests.

USCIS posted a new edition of Form AR-11: Change of Address, and Form AR-11SR: Alien's Change of Address Card, to its website. Previous editions are still being accepted.

On October 14, 2008, DOS issued a travel alert to visa applicants and others visiting the U.S. Consulate in Ciudad Juarez, Mexico, in light of recent muggings near the consulate that have targeted applicants for U.S. visas. Those seeking consular services are encouraged to make provisions to pay fees with something other than cash.

Department of Homeland Security published a notice regarding the forthcoming required use of ESTA for nonimmigrant travel to the United States under the Visa Waiver Program (VWP).

The Department of Homeland Security reminds ESTA applicants that any passport issued by a Visa Waiver Program (VWP) country after October 26, 2008, must be an e-Passport for VWP travelers to be eligible to enter the U.S. without a visa

The U.S. Department of State (DOS) Visa Bulletin for November 2008 was published this week. This Visa Bulletin reflects no forward movement in the employment-based (EB) cutoff dates. The December 2008 Visa Bulletin is the second visa bulletin in USCIS / DOS fiscal year (FY) 2009, as FY2009 began October 1, 2008. With the exception of religious workers, there is no change with regard to categories that were previously current. The most current visa bulletin chart is always available on Aheckler.com..

Summary of Visa Bulletin

Employment-Based, First Preference (EB1)
The EB1 category is current for all countries of chargeability.

Employment-Based, Second Preference (EB2)
This category remains current for all countries, except for India and China. The cutoff dates for both India and China have made no progress for December. India's cutoff date remains at June 1, 2003. The date for China remains at June 1, 2004.

Employment-Based, Third Preference (EB3)
This category experienced the re-establishment of cutoff dates in October 2008, after being unavailable for many months. The cutoff dates moved forward by several months in all EB3 categories. EB3 categories also remain unchanged.

Employment-Based, Fourth / Fifth / Religious Workers, and Targeted Employment (EB4/5)

The USCIS has announced an increase in the allowable period of admission for foreign nationals using the Trade-NAFTA (TN) status. This status is available only to Canadian and Mexican citizens. The TN status was previously issued in one-year increments, with no limit on the number of extensions or readmissions possible. This has been changed to maximum possible three-year periods of admission, still with no limit on the number of extensions or readmissions possible.

New Third Country National Non-Immigrant Visa Policies at U.S. Consulates in Mexico

The U.S. Consular Mission in Mexico has changed requirements for visa applications for Third Country Nationals (TCNs) who are not residents of Mexico. The new requirements are posted on their website. Applicants may schedule interviews at one of ten posts through Mission Mexico on-line or by calling
1-900-476-1212. Please note that appointment numbers are limited; therefore, flexibility in post location by applicants will make appointment scheduling easier.


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