July 2009

News and Commentary written and edited by
Boyd F. Campbell, Attorney and Civil Law Notary

Published exclusively via the World Wide Web since 1994
© 2009 Boyd F. Campbell, All Rights Reserved

Immigration in the News (scroll to bottom for full text)

  Cuba, U.S. to resume talks on immigration 
  EU considers new immigration policy
  Business groups sue over immigration law
  Immigration raid costs taxpayers $6.1 million

    Make Your Voice Heard:  Your call today to support safe, sane, and secure immigration policy could make the difference. You may call the Senate switchboard to be directed to your U.S. senator -- (202) 224-3121 -- or to your representative in the House -- 202-225-3121.

LEAD STORY

USCIS issues memo to implement court order in religious worker cases

    On June 25, U.S. Citizenship and Immigration Services (USCIS) issued a memo implementing a Washington State federal district court order that invalidated rules forbidding religious worker immigrants to file concurrent applications for adjustment of status (Form I-485) and employment authorization (Form I-765) with the religious immigrant petition (Form I-360).  The court found the federal regulations governing the process "invalid" and "unenforceable".  Religious immigrants who were affected by expiration of their religious nonimmigrant visas (R-1 and R-2).  USCIS will not count the period of unauthorized employment from the date of submission of the original I-360 or November 21, 2007, whichever is earlier. Petitioners for religious immigrant benefits may now file I-485s and I-765s or refile the applications which may have been previously rejected by USCIS.  To read the USCIS memo using Acrobat Reader, CLICK HERE. 

FBI namecheck backlog eliminated

On June 22, U.S. Citizenship and Immigration Services (USCIS) announced that the FBI had elimited the namecheck backlog. In the majority of cases, the namecheck process returned "no record" responses, but the backlog was holding up immigrants' cases for many months, delaying their requests of our government for immigration benefits.  Elimination of the backlog is a welcome sign that federal agencies can work together to fix problems.

Support the Iranian people

    I want to express my support for the Iranian people.  I have had the privilege of representing a number of Iranian clients over the past 20-plus years, and I have always been impressed with my clients' education, training, judgment, and knowledge about their home country.  Something is happening.  Perhaps we do not know precisely what at this time, but there are marches, there are protestors dying, and there is history being made.  I support the Iranian people.  Let us hope they get the government they deserve. 

H-1B visas still available

    On May 18, U.S. Citizenship and Immigration Services (USCIS) said it had received about 45,500 H-1B petitions counting toward the Congressionally-mandated 65,000-visa cap. USCIS continues to accept petitions subject to the cap.
    USCIS received about 20,000 petitions for aliens with advanced degrees toward the 20,000 available visas, but will continue to accept advanced degree petitions because not all petitions received are approvable.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.  For more information, CLICK HERE .

E-Verify suspension extended to September 8

    As previously reported in the Immigration Law Update, federal court suspension of E-Verify to determine whether there is a match between a job applicant's name and the Social Security number presented by the applicant has been ongoing.  Recently, the parties to litigation over the rule agreed to suspend applicability of E-Verify to federal contractors and subcontractors.  The Obama administration is reviewing the rule to determine how best to phase it in.  The business community, led by the U.S. Chamber of Commerce, is concerned about vicarious liability for contractors and subcontractors and the expense of reverifying workforce employment eligibility.  E-Verify does not confirm that the job applicant is authorized to work in the United States; it merely confirms whether there is a match between the applicant's name and the Social Security number he or she presents to the employer.

Permanent resident card production delays

    Permanent residents may experience up to an eight-week delay in the delivery of their permanent resident card while USCIS upgrades its card production equipment. USCIS Field Offices will issue temporary evidence of permanent residence in the form of an I-551 stamp to applicants approved for permanent residence at the time of their interview.
    You will need to take your passport to your appointment. If you do not have a passport, you must bring a passport style photo and government issued photo identification to receive temporary evidence of permanent residence.
    If the application is approved subsequent to your interview or by a Service Center or the National Benefit Center, you should bring the above documents to an INFOPASS appointment to be issued temporary evidence of permanent residence in the form of an I-551 stamp.

DHS announces new worksite enforcement guidelines

    The Department of Homeland Security (DHS) has announced guidelines that will focus on criminal prosecutions of employers who knowingly hire unauthorized workers. In 2008, large-scale raids resulted in more than 6,000 arrests, only 135 of whom were employers. Frequently DHS launched raids based on tips that an employer was hiring unauthorized workers rather than being the result of Immigration and Customs Enforcement (ICE) investigations of employers, making it difficult to secure adequate evidence to result in prosecution.
    The new guidelines emphasize investigating and criminally prosecuting abusive employers thereby honing in on one of the root causes of undocumented immigration. Currently, immigrants, families, and law-abiding employers are caught up in a dysfunctional immigration system which creates incentives to circumvent the law.
    DHS also announced that ICE headquarters will play a larger role in defining the objectives and strategies around worksite enforcement, supplanting the old model where local field offices wielded broad discretion and often focused on "low hanging fruit" rather than egregiously abusive employers.

Job opportunity:  Legal assistant wanted 

    Folks, I need help.  The burdens of taking care of my clients and running a Regional Center have become too great.  I need to hire another legal assistant and request your help in finding just the right one.  Because of a concentration in our efforts to work with Chinese investors for the EB-5 Program, I will give a preference to an applicant who is fluent in English and Mandarin, but any qualified individual may apply.  Here is the link to the ad on the website on helpwanted.com:

    http://www.helpwanted.com/Job-Search/CPViewItem.asp?id=25678

H-1B deadline comes and goes

    The 65,000 (inadequate) visa numbers for H-1B were oversubscribed again on April 1.  This is recent history.  It has happened for four years now and will continue to happen unless the United States decides to roll out the red carpet for the "best and brightest" in industry, technolgy, and higher education.  It won't because "immigration" is a dirty word in this country and will continue to be until we -- as a nation -- decide that highly educated people -- many if not most educated at our own universities -- deserve a visa to stay here and work and produce for us.

Comment:  Comprehensive immigration reform

    It is a question I am asked almost every day:  "When do you think Congress will pass comprehensive immigration reform?"  (or words to that effect).  The fact is that the word "immigration" is still a dirty word on Capitol Hill.  Senators and members of Congress simply don't like to go there, although it continues to be the "elephant in the room".  I suppose a few bills having to do with the lack of H-1B and H-2B visas might pass, and U.S. farmers might see a glimmer of hope in the agricultural worker program this year -- pushed, as it usually is, by California -- but it is unlikely.  Europe and Asia could very well take over technological leadership from the United States within the next few years if Congress does not enable the best and the brightest from around the world to go to college here and work in the research and high technology sectors of our economy.  There is a great deal of focus on the economy, and the current Administration seems to be taking every step it can to put any initiative possible forward to see what works in bringing our economy back to a healthy state.

    Comprehensive immigration reform?  Not this year, probably not next year, but it may be on the table during the next Congress in 2011.  I know that's not what you wanted to hear, but that is my honest opinion.

USCIS expands premium processing for certain I-140s

      On February 24, 2009, USCIS announced that it is expanding premium processing for I-140s filed on behalf of individuals who have reached, or are reaching, their limitation of stay in H-1B nonimmigrant status.  On February 25, 2009, USCIS provided clarifying guidance on the newly expanded eligibility for premium processing of I-140s for H-1B nonimmigrants.
      On February 19, 2009, USCIS released a reminder of the upcoming EB-5 Immigrant Investor Pilot Program sunset on March 6, 2009, which addresses processing of Forms I-526 and I-485.  The text of the USCIS news release is below:

Sunset Date to Affect Regional Center Proposals Under the Immigrant Investor Pilot Program
Certain Form I-526 Petitions and Form I-485 Applications Affected

    WASHINGTON-U.S. Citizenship and Immigration Services (USCIS) reminds customers that the applicable provisions of immigration law concerning the EB-5 Immigrant Investor Pilot Program (Pilot
Program) will “sunset” or expire at midnight on March 6, 2009.
    The sunset date affects all Regional Center Proposals and certain Forms I-526, Immigrant Petition for Alien Entrepreneurs and Forms I-485, Applications to Register Permanent Residence or Adjust Status,
affiliated with Regional Centers relying on “indirect” job creation analyses. USCIS will continue to receive, process, and adjudicate as many Regional Center affiliated Forms I-526 and Forms I-485 as
possible until the close of business on March 6, 2009, the scheduled sunset date.
    The previous five-year extension of the Pilot Program was set to expire on October 1, 2008. However, on September 30, 2008, the fiscal 2009 continuing resolution bill entitled the "Consolidated Security,
Disaster Assistance, and Continuing Appropriations Act, 2009," H.R. 2638, was signed into law which extended all government operations through March 6, 2009, including the EB-5 Pilot Program.
    If the sunset date is not extended, affected Regional Center sponsors and certain Regional Center affiliated I-526 petitioners will not be able to benefit from indirect job creation under the sunsetting
provisions as of March 7, 2009. No new Regional Center Proposals will be accepted as of March 7, 2009.
    All Forms I-526 received after March 6, 2009 must demonstrate that all ten jobs created will be direct, permanent, full-time (35 hours per week) jobs for qualified U.S. workers (U.S. Citizens, Lawful
Permanent Residents, Refugees, Asylees, or persons granted cancellation of removal or suspension of deportation).
    Unless the program is extended, USCIS will hold unadjudicated Regional Center proposals and Regional Center affiliated I-526 petitions that were received before the provisions sunset in abeyance for an
indeterminate period of time pending further action by Congress. If Congress does not act to reauthorize the Pilot Program, final determinations will be made based on the evidence of “direct” job creation. The
decisions will be made based either on the existing evidence of record or in response to a request for evidence, and denials will be issued for any pending Regional Center Proposals.
    USCIS has not made a final determination whether it may approve Regional Center affiliated adjustment of status applications after the provisions sunset and it will hold these Form I-485 applications in
abeyance pending a final determination or Congressional action. If the sunset provisions are extended, adjudication of the held cases will resume promptly. USCIS will provide further guidance to the public if
legislation is enacted to extend the sunsetting provisions.
    Forms I-829, Petition by Entrepreneur to Remove Conditions, whether affiliated with a Regional Center or not, will be unaffected by the sunset of these provisions of the Immigration and Nationality Act.

Roundup of immigration-related bills introduced in Congress

    Fiscal 2009 Omnibus Appropriations bill (H.R. 1105) - Introduced by Rep. Obey (D-WI) on 2/23/09 - Summary: Includes provisions that would extend two immigration-related programs -- the EB-5 regional center program and Basic Pilot (E-Verify) program-- through September 30, 2009.

    The Immigration Oversight and Fairness Act (H.R. 1215) - Introduced by Rep. Roybal-Allard (D-CA) on 2/26/09 - Summary: A bill to reform immigration detention procedures, and for other purpose. For more information read AILA's section-by-section analysis of H.R. 1215.

    The Scott Gardner Act (H.R. 1199) - Introduced by Rep. Myrick (R-NC) on 2/25/09 -
Summary: A bill to improve sharing of immigration information among federal, state and local law enforcement officials, to improve state and local enforcement of immigration laws, and for other purposes.

    E-2 Nonimmigrant Investor Adjustment Act of 2009 (H.R. 1162) - Introduced by Rep. Putnam (R-FL) on 2/24/08 - Summary: A bill to amend the Immigration and Nationality Act to permit certain E-2 nonimmigrant investors to adjust status to lawful permanent resident status.

    The Save Our Small and Seasonal Businesses Act of 2009 (S. 388/H.R. 1136) - Introduced by Rep. Stupak (D-MI) on 2/23/09 (introduced by Sen. Mikulski (D-MD) on 2/5/09) -
Summary: A bill to reauthorize the provision exempting returning workers from the numerical limitations on H-2B temporary workers.

    H.R. 1127 - Introduced by Rep. Lofgren (D-CA) on 02/23/09 - Summary: A bill to extend both the religious worker and Conrad 30 programs through September 30, 2009.

E-Verify implementation delayed again

    E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.  E-Verify is free and voluntary and relies upon the Social Security Administration's database, which is loaded with errors.

USCIS delays rule changing list of documents acceptable to verify employment eligibility

    U.S. Citizenship and Immigration Services (USCIS) has announced a delay until April 3 for implementation of an interim final rule entitled "Documents Acceptable for Employment Eligibility Verification" published in the Federal Register on Dec. 17, 2008. The rule is supposed to streamline the Employment Eligibility Verification (Form I-9) process.

Immigration in the News

Cuba, U.S. to resume talks on immigration issues

    SAN SALVADOR, May 31 -- Cuba has agreed to restart talks with the United States on immigration and has signaled its willingness to cooperate on issues including terrorism, drug trafficking and even mail service, a sign that the island's communist government is warming to President Obama's call for a new relationship after decades of tension, U.S. officials said on May 31.
    The breakthrough was announced as Secretary of State Hillary Rodham Clinton began a three-day trip to Latin America, where she is expected to face pressure to take further steps to ease the U.S. policy of isolating Cuba.
    Clinton said she was "very pleased" with the developments and hoped they would be well received by other Latin American countries. "We've made more progress in four months than has been made in a number of years," she said, "and we need to work together to continue that kind of progress, keeping in mind the legitimate aspirations and the human rights of the people of Cuba."
    Obama has promised a "new beginning" with Cuba, and his overtures have included lifting restrictions on visits by Cuban Americans to the island and allowing U.S. telecommunications firms to operate there. But the administration has moved cautiously, mindful of domestic political repercussions. Obama and Clinton have said the United States will not lift its economic embargo until President Raúl Castro's government makes democratic reforms. -- Excerpt from an article written by Mary Beth Sheridan and published in The Washington Post on June 1, 2009.

EU considers new immigration policy

    BRUSSELS, Oct. 15 (UPI) -- EU leaders were preparing to approve new uniform policies affecting both legal and illegal immigration to the continent, observers said.
    Leaders of the 27-nation bloc met in Brussels to take up the proposed European Pact on Immigration and Asylum, which would coordinate EU nations' political commitments in regular and irregular immigration, control of borders, asylum and dealing with countries of origin and of transit, The EU Observer reported.
    The pact is meant to strike a balance between the concerns that illegal immigration and asylum-seekers are overwhelming the capacity of some nations to accept them while at the same time keeping open the flow of valuable highly skilled foreign workers to Europe, the publication said.
    Some, however, say the pact concentrates too much by security concerns. Among them is the European Council on Refugees and Exiles, a network of 63 immigrant-rights organizations.
    "The pact may be tipping the balance further toward the security approach -- which to date has not provided solutions to Europe's migration challenges -- and away from the necessary actions to ensure human rights safeguards," ECRE Secretary-General Bjarte Vandvik said in a news release.

Business groups sue over immigration law

    OKLAHOMA CITY, Oct. 15 (UPI) -- A coalition of business groups is asking a U.S. appeals court to prevent an Oklahoma anti-illegal immigration law from being enforced.
    The U.S. Chamber of Commerce, the Oklahoma Restaurant Association, and the Oklahoma Hotel and Lodging Association, among others, say immigration enforcement should be left to the federal government, not the states, Legal Newsline reported Wednesday.
    The groups say the Oklahoma law, which requires employers to verify the immigration status of employees and contractors or subcontractors, forces them to use the voluntary federal online verification system to determine workers' legal status.
    The law, which isn't being enforced, also requires that businesses with state contracts to withhold income taxes of contractors and subcontractors if they don't use the federal verification system.
    "Federal regulation of the employment of aliens leaves no room for state interference," Robin Conrad, executive vice president of the National Chamber Litigation Center, told Legal Newsline. "Federal law broadly pre-empts the field of employment verification and any attempt by states to meddle in this domain is unconstitutional."
    She said states shouldn't take an independent approach to immigration policy.
    "A patchwork of conflicting and inconsistent state laws is not the answer," Conrad was quoted by Legal Newsline as saying.

Immigration raid costs taxpayers $6.1 million

    CEDAR RAPIDS, Iowa (Oct. 15) -- The immigration raid at Agriprocessors Inc. in Postville that resulted in more than 300 criminal convictions carried a hefty price tag for taxpayers of more than $6.1 million.
    That total is in records of financial expenses The Gazette obtained from Immigration and Customs Enforcement, the Executive Office for United States Attorneys, the U.S. Marshals Service and U.S. District Court of Northern Iowa. The records, obtained with Freedom of Information requests, included expenses of the raid and the aftermath.
    ICE had the biggest tab with $5,211,092 and rising as of Aug. 21. U.S. Marshals came in second with $497,416, slightly ahead of the U.S. District Court's $406,394.
    The raid was the largest work site operation in the United States. Federal authorities arrested more than 389 workers at the kosher meatpacking plant. The prisoners were detained in various jails in Iowa and the U.S. District Court of Northern Iowa set up temporary courts at the National Cattle Congress in Waterloo.
    The illegal immigrants were charged, pleaded and sentenced within two weeks of the raid. The process has been criticized and scrutinized for the speedy court proceedings, with critics claiming the accused didn't fully understand the charges while being railroaded into pleading guilty.
    As of September, more than 300 had been convicted and sentenced on various charges related to identity theft. Many sentenced to probation have been deported, 50 are going through removal proceedings with an immigration judge and some of the 273 individuals who just finished their five-month prison sentences have started deportation, ICE spokesman Tim Counts said last week.
    Counts said he didn't know how many will be deported or how long it might take. The process started Saturday, but that doesn't mean individuals were deported on that day.
    ICE's bills could increase because its investigation is ongoing. The agency didn't provide a breakdown of its expenses. Counts said Tuesday renting the 110-acre National Cattle Congress was included in ICE's expenses, but he didn't know the amount paid.
    In May, Wally Mochal, board president of the Waterloo site, wouldn't reveal how much the General Services Administration paid. He also said the agency misled him when saying the month lease would cover Homeland Security training.
    U.S. Marshals Service expenses were broken down into several categories -- travel, processing team, National Immigration Czar, prisoner team, judges detail, courtroom security, post operation and criminal clerk support.
    The federal court is exempt from the Freedom of Information Act request but Clerk of Court Robert Phelps said the courts try to honor the spirit of the request and provided expenses it incurred as of September. Expenses there were split in four categories: $208,246 for interpreting services; $48,252 in travel for judges and clerks and probation staffs; $35,052 in supplies and equipment; and $114,842 for defense counsel.
    Phelps said the bulk of the supplies and equipment continues to be used in routine court operations.
    U.S. attorneys' expenses were the least among federal agencies, at $26,123. Most were for travel and supplies. Travel included rental cars, mock operation training and hotels for attorneys and staff.
    Officials from the U.S. attorneys' office didn't return a phone message Tuesday.
    The state also incurred costs for the raid. Department of Public Safety expenses included $18,176.88 for 26 Iowa state troopers' salary, overtime, per diem and fuel costs, spokeswoman Jessica Lown said. Another $735 was for a Division of Criminal Investigation officer's overtime.
    Troy Price, press secretary for Gov. Chet Culver, said the Iowa National Guard had an ICE contract to provide 700 cots and sets of linens, blankets, pillows and towels for $7,700.
    The state was compensated for the items and ICE deposited the money into the Camp Dodge Facility Maintenance Fund. Price said no other state agencies incurred costs in the raid.

    HERE IS OUR WARNING AGAIN:  Your friends, relatives, and co-workers are good sources of bad information about immigration and nationality law and federal administrative procedures.  If you really want to know what to do about an immigration or visa situation, please consult a qualified immigration lawyer.  If you don't know one, please call the American Immigration Lawyers Association (AILA) Lawyer Referral Service in Washington, D.C., toll-free, at 1-800-954-0254.  AILA's Lawyer Referral Service cannot assure you that you will get the best immigration lawyer, but you should be able to get competent legal help and guidance.  Remember:  CIS considers every petition or application filed as a legal case for adjudication under the federal Administrative Procedures Act and federal regulations.  When people help themselves or others by filling out forms and filing them with CIS, they are filing a legal case before an administrative agency of the federal government for adjudication.  If the case runs into trouble or is denied, the alien and his family members rarely know what to do next or how to get the legal matter resolved.  Some visa applicants have monthly telephone bills that are larger than any fee they will ever pay to a qualified immigration lawyer.  For information about how to hire and work with an immigration lawyer, click on the following link: Why Hire an Immigration Lawyer?   Also, don't forget to check out our web links to other helpful (and FREE) information: CLICK HERE

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