Wednesday, December 23, 2009

Congressman Luis Gutierrez Hopes to Set the 2010 Agenda With Year-End Introduction of a Comprehensive Immigration Reform Bill


As the year comes to a close we want to shift our focus to what is likely to be a significant, though only partial, blueprint of the battles to come in 2010 over immigration reform. The Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (CIR ASAP) was introduced on December 15 in the House by Rep. Gutierrez (D-IL) and 91 co-sponsors, especially the members of the Progressive, Hispanic and Black Caucuses.  Below is a summary of H.R. 4321. The 644-page bill may be read in its entirety here.  At least one Christmas Eve editorial suggests that CIR ASAP may be laying the ground for a 2010 "dress rehearsal" with viable legislation only likely to pick up the necessary support in 2011, i.e. after mid-term elections.

Border Security, Detention, and Enforcement
-create a southern border security task force composed of federal, state and local law enforcement agencies that would develop and study comprehensive uses of advanced technology for border security;
-the program would emphasize improvement of the conditions of detention and protect families from being separated unnecessarily;
-the program would also repeal the 287(g) program which currently delegates some federal immigration enforcement to certain state and local agencies;
Employment Verification
-creates significant civil and criminal penalties for knowingly hiring unauthorized aliens
-allows individuals to register with the Social Security Administration to receive PINs
Visa Reforms
-provisions would exempt immediate relatives from the annual cap on immigrant visas as well as highly skilled workers from employment-based immigrant visa cap
-children of citizens would be protected from aging out of eligibility to apply for Legal Permanent Residency;
Earned Legalization Program for the Undocumented
-creates a program for undocumented workers (and their spouses and children) to receive 6-year conditional visas and path to Legal Permanent Residency;
Strengthening America’s Workforce
-reforms the badly-flawed H-1B, H-2B and L-1 visa programs;
-establish studies to analyze employment-based immigration and recommend appropriate methods for determining the numerical levels for future flows of workers;
-create an internet-based program that would post job opportunities in fields that have traditionally relied on unauthorized labor;
Integration of New Americans
-provides more scrutiny on rising immigration fees in order to make citizenship more affordable;
-creates grant programs to fund non-profit community organizations that assist eligible applicants for naturalization;

CIS Instructs Doctors: Write "NO LONGER REQUIRED" for HIV Status Until New Medical Examination Forms Are Available



For those who have worked hard for 20 years advocating for the repeal of the HIV ban, including the partners of this firm, seeing the words "NO LONGER REQUIRED" written in a doctor's handwriting across that part of the I-693 will be the first tangible, graphic representation of this tremendous victory. Read more here about this policy, which goes into effect on January 4, 2010.
See our earlier posts on this subject here, here, here, here and here in reverse chronological order.

H-1B Visas Run Out, CIS Will No Longer Accept Petitions for FY 2010. Petitions Received on December 21 Subject to "Random Selection"

In an announcement that may have been delayed by the massive east coast snowstorm that forced closure of the Washington, DC offices of the Immigration Service on Monday, USCIS posted the following update on the Fiscal Year 2010 H-1B count on its website yesterday:
As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009. USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.
H-1B Petitions filed by cap-exempt organizations (including some non-profit organizations and certain research/educational institutions) will continue to be accepted since they are not subject to the "numerical cap" of 65,000 visas.
Those "cap-subject" employers wishing to file H-1B petitions for FY 2011 will be able to file beginning April 1, 2010 for employment beginning October 1, 2010.
Separately, the drumbeat alerting of USCIS plans for unprecedented H-1B enforcement continues: "U.S. Moves to Strengthen H-1B Enforcement," Computerworld December 21, 2009.

Thursday, December 17, 2009

Only 800 H-1Bs Left As of Tuesday December 15

Today USCIS posted the following update:
As of December 15, 2009, approximately 64,200 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Tuesday, December 15, 2009

62,900 H-1B Petitions Received as of December 11, USCIS Appears to be Receiving 500 Per Day

In quick succession, the USCIS has updated its count of the number of H-1B petitions received in the past week three times. The statistics indicate that we are in the last days of availability for this Fiscal Year, and that the number of petitions filed has accelerated rapidly to nearly 500 a day. With just over 2,000 H-1Bs remaining, it is likely that USCIS will announce this week that it has received sufficient number of petitions to exhaust the Fiscal Year 2010 H-1B allotment of 65,000. See below:

Petitions received as of December 8 - 61,500
Petitions received as of December 10 - 62,500
Petitions received as of December 11 - 62,900


See previously post "H-1B Petitions Received at a Rate of 100 Per Day: Yesterday's Count Update Shows Only 3,500 Left." (Masliah & Soloway Immigration Updates, December 9, 2009)

Friday, December 11, 2009

January 2010 Visa Bulletin: EB Third Preference Jumps Two Months to August 1, 2002

The good news in the latest Visa Bulletin is that there is finally significant movement in the Third Preference Employment-Based category for the first time this fiscal year. For all countries other than India and Mexico, EB-3 has jumped from June 1, 2002 cut-off to August 1, 2002 in just one month. For Indian nationals, EB-3 cut-off date advanced about seven weeks to June 22, 2001. For Mexican nationals, EB-3 cut off date moved forward one month to July 1, 2002. For other EB categories and for Family-Based categories, see State Department Visa Bulletin for January 2010.


EB:

All Charge-ability Not Listed

CHINA- mainland born
INDIA
MEXICO
PHILIPPINES

1st
CURRENT
CURRENT
CURRENT
CURRENT
CURRENT
2nd
CURRENT
01MAY 2005
22JAN 2005 
CURRENT
CURRENT
3rd
01AUG 2002
01AUG 2002
22JUN2001
01JUL 2002
01AUG 2002
Other Workers
01JUN 2001
01JUN 2001
01JUN 2001
01JUN 2001
01JUN 2001

Thursday, December 10, 2009

DHS Secretary Janet Napolitano Affirms Support for Immigration Reform in 2010

Yesterday the DHS Secretary Janet Napolitano testified before the Senate Judiciary Committee reiterating her commitment to work with Congress to push for comprehensive immigration reform in early 2010.  Video of Senate Judiciary Committee Hearing here. Excerpt from Napolitano's remarks:
"We can no longer perpetuate a status quo that is unacceptable for workers, employers, law enforcement, faith leaders, and America as a whole. We must seize this moment to build a truly effective immigration system that deters illegal immigration, provides effective and enduring enforcement tools, protects workers from exploitation and retaliation, and creates a tough but fair path to legalization for the millions of illegal immigrants already here."
(San Francisco Examiner, December 9, 2009)

Wednesday, December 09, 2009

H-1B Petitions Received at a Rate of 100 Per Day: Yesterday's Count Update Shows Only 3,500 Left

Only four days since CIS brought us the last update on the Fiscal Year 2010 H-1B Cap Count, today we learned that since Friday another 400 H-1B petitions have been received.
As of December 8, 2009, approximately 61,500 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
Those considering filing a petition for a FY 2010 H-1B may want to consider filing as soon as tomorrow.  Although there appear to be 3,500 left, the actual available number may be considerably less when the set asides for Chile and Singapore (see more here).

Tuesday, December 08, 2009

H-1Bs to Run Out Within Days

As we explained below, the annual allotment of 65,000 H-1Bs includes a set aside of 6,800 for Singapore and Chile. However, demand from those countries was not sufficient to use all 6,800 and what remains of them have become part of the 3,900 that remained available as of last Friday. Citizenship and Immigration Services posted this update today:
As of December 4, 2009, approximately 61,100 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Monday, December 07, 2009

Immigration in the News

Today we launch a new feature of our law firm blog, a weekly news round up of selected news or opinion pieces to represent diverse subjects and sources.

This morning, in their nationally syndicated column, well-known journalists Cokie Roberts and Steven V. Roberts call for comprehensive immigration reform. "Broken Immigration System Needs Attention Soon" (New Hampshire Register).  While New Hampshire might not be one of the states that readily comes to mind when thinking about our dysfunctional immigration system, California certainly is. Today's editorial in the San Diego Union-Tribune, "A National Priority: Public, If Not Lawmakers, Wants Immigration Reform," makes this point.  As the White House and Congressional leaders jockey for position on the busy 2010 legislative calendar for a number of high priority issues, the country continues to view immigration as a high priority alongside the economy and health care.
"Now there are signals that the discussion will begin in March or April of 2010. But, of course, that’s only the Washington portion of the conversation we’re talking about. Around the country, from Dallas to Des Moines to Detroit, there is really no need to restart the immigration debate because it never stopped. Regardless of what our lawmakers at the federal level have done – or more accurately, haven’t done – the immigration issue remains a top concern at the local level. And it will until our leaders roll up their sleeves and fix what’s broken."
He's back.... One-time presidential candidate and former Congressman, Tom Tancredo, who recently flirted with but rejected a gubernatorial run in Colorado, filed a ballot initiative proposal last Friday that has restored him to his familiar role in the spotlight anti-immigration activist.

The proposal, would appear on the ballot in the 2010 election, in Colorado and would require all employers to confirm the immigration status (and therefore the employment eligibility) of all prospective employees by using the federal e-Verify system. The Denver Post calls Tancredo a delusional blowhard. A columnist for the Denver City Buzz notes that this idea is now considered "right wing" but was once promoted by the Democrats and may find support from organized labor.
In Washington State, efforts by the immigration enforcement agencies to deputize local law enforcement has gone to court to resolve a conflict between a county's ordinance and a police officers' union after police were accused of retaliating against a detained individual who complained about mistreatment by turning him over to Immigration and Customs Enforcement.
A Baptist pastor in Houston, Rev. Harvey Clemons, Jr., wrote a moving column in support of immigration reform, "Follow MLK's Guidance on Immigration Reform," in which he attacks the myths surround the issue and concedes that "to many, it seems strange that I, an African-American minister from the Fifth Ward, would focus much of my energy and resources to work along with other leaders in our city for immigration reform." With great conviction Pastor Clemons explains that his religious faith and the example of Martin Luther King, Jr. compel him to work on this issue. He notes that rhetoric surrounding immigration is not unlike that which had falsely slowed the progress of other civil rights issues,
"Now the song of the false prophets paints the immigrant as a threat to, rather than a pillar of, American society; paints undocumented fathers and mothers working from sunrise to sundown as a drain of our nation's resources rather than a reminder of our heroic beginnings; and paints immigrant children as a national burden rather than our nation's blessing."
The New York Times last Wednesday published an article about the findings of a pair of disturbing reports by Human Rights Watch and Syracuse University's Transactional Records Access Clearinghouse, which mirrored those of an internal investigation by Department of Homeland Security. ("Immigration Detention System Lapses Detailed," December 2, 2009.) The various investigations found egregious lapses in the nation's detention and removal procedures and policy. Reporter Nina Bernstein noted that the detention system is "so haphazard that some detainees arrived at a new detention center without having been served a notice of why they were being held, or despite a high probability of being granted bond, or with pending criminal prosecutions or arrest warrants in the previous jurisdiction." Sadly, as immigration lawyers we are all too-aware that this situation is in fact a day to day reality making effective counsel of detained individual almost impossible. The bi-partisan group, The Constitution Project, headed by former Republican Congressman Asa Hutchinson, called for the most far-reaching of changes in how detained individual are represented:
"In what it called “an aspirational goal,” it recommended that where free counsel is not available, all indigent noncitizens in standard deportation proceedings have access to a government-paid lawyer. It also urged Congress to give immigration judges discretion to appoint counsel, and to require a lawyer in certain cases, including those involving unaccompanied children and the mentally ill."

Friday, December 04, 2009

Alexander Aleinikoff Named United Nations Deputy High Commissioner on Refugees

T. Alexander Aleinikoff, dean of Georgetown University Law School and former senior official in the Immigration and Naturalization Service will be the new United Nations Deputy High Commissioner for Refugees starting in February 2010. Read more here.

Tuesday, December 01, 2009

H-1B Cap Almost Reached

USCIS is expected to announce soon that it has received a sufficient number of H-1B petitions to exhaust the 65,000 cap-subject H-1Bs allotted for the 2010 Fiscal Year. If that happens—and there is some speculation that the announcement may be only days away—the next filing period will begin April 1, 2010 for 2011 Fiscal Year H-1B visas.  FY2011 H-1B petitions will be for employment commencing no earlier than October 1, 2011.  This week attorneys and employers are rushing to file petitions before the government ceases accepting them. On November 27, the last time USCIS issued its count, only 6,000 cap-subject H-1Bs remained.  Approximately 2,000 petitions were received in the week beginning November 20, suggesting an acceleration of demand as the numbers dwindle.  Additionally, it is important to note that 6,800 of the 65,000 are set aside for Chile and Singapore nationals, many or most of the Chile/Singapore specific H-1Bs will go unused and will be then be returned to the pool that is available to all petitioners.  Therefore, the actual number of available H-1Bs subject to the cap (for non-Chile and non-Singapore nationals) is significantly less than 65,000. Simple math reveals then that there are significantly fewer than 6,000 left as we enter December.
(In 2003, the United States signed separate Free Trade Agreements with Chile and Singapore which included specific set-asides within the H-1B program for professionals from those countries.)

USCIS Will Reopen Cases Recently Denied Solely Because of HIV Status, New Guidelines are Issued for Post-Repeal Adjudications


U.S. Citizenship and Immigration Services (USCIS) issued a memorandum last week establishing new procedures for adjudicating applications in advance of the effective date of the final regulations repealing the HIV ban.  That ban, which rendered inadmissible all HIV+ non-immigrants and would-be immigrants unless they qualified for a narrow waiver, had been in effect since the 1980s and had been widely condemned by human rights and public health advocates. Effective January 4, 2010 HIV status will no longer be a bar admission pursuant section 212(a)(1)(A)(i) of the Immigration and Nationality Act. (See "Pall Lifts Along With AIDS Travel Ban," Chicago Tribune, December 1, 2009.)
Since September 15, 2009, USCIS has held in abeyance the adjudication of all applications for adjustment of status to permanent residence where the applicant is HIV-positive but does not qualify for a waiver of inadmissibility. Anticipating the imminent publication of the final rule, USCIS favored delaying adjudication to avoid denying applications and facing unnecessary motions for reopening and reconsideration later. Public Law 110-293, 42 CFR 34.2(b) Inadmissibility Due to Human Immunodeficiency Virus (HIV) Infection.”
Additionally, USCIS will administratively close any pending waivers of inadmissibility because of HIV status on January 4, 2010, paving the way for final adjudication of those applications for adjustment of status. These cases, along with any other cases held in abeyance because of HIV status, will then be adjudicated without HIV as a bar to admissibility.
Importantly, the new guidance from USCIS waives the 30-day filing deadline for motions to reopen or reconsider for foreign nationals who have had an application for adjustment of status to permanent residence denied since July 2, 2009 – the day Health and Human Services published the proposed rule removing HIV from the list of "communicable disease[s] of public health significance" – where the only grounds for denial was HIV status. This waiver of the 30-day filing deadline invites those applicants who received denials between July 2, 2009 and September 15, 2009 because of their HIV status to have their cases reconsidered by USCIS. Such motions will be granted and final adjudication of the cases will be made after January 4, 2010.
The announcement from USCIS came just one week before World AIDS Day 2009, the theme of which is “universal access and human rights.”
Observers noted yesterday that the repeal of the HIV ban has made possible a related development. In 2012 the United States will be host to the 19th biennial International AIDS Conference. Secretary of State Hillary Clinton said Monday that the U.S. will host the global AIDS conference to show its commitment to fighting the disease. "Today, I am pleased to announce that with the repeal of the ban, the Geneva-based International AIDS Society will hold the 2012 International AIDS conference in Washington, D.C.," said Hillary Clinton. Clinton said the conference will bring together an estimated 30,000 researchers, policymakers and activists from around the world. (The Hill)  The International AIDS Society conference has not been held in the United States since 1990 because of the HIV ban.  (See video of Secretary Clinton's announcement.)

Today, on World AIDS Day, we remember the millions of men, women and children impacted by HIV and AIDS.  We honor the many who have valiantly struggled to end discrimination on the basis of HIV status and welcome those who have sought safe haven in the United States in flight from persecution.  We remember those who are no longer with us and continue to support efforts to expand access to medical treatment and end the stigma that often stands in the way of education and prevention efforts.

Monday, November 30, 2009

Green Card Lottery Submission Period Ends Today at Noon EST

The filing period for the Fiscal Year 2011 Diversity Visa Lottery or "Green Card" Lottery ends at 12 PM (noon) EST today, November 30, 2009. See our prior post here for details.

Wednesday, November 25, 2009

Fewer Than Nine Thousand H-1B Visas Left

As of November 20 approximately 56,900 H-1B cap-subject petitions had been filed for employment commencing during the 2010 Fiscal Year (October 1, 2009 to September 30, 2010). USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to exhaust the annual allotment of 65,000.

Monday, November 23, 2009

Deadline November 30: One Week Left to Submit Applications to the "Green Card" Lottery

The filing period for the Fiscal Year 2011 Diversity Visa Lottery or "Green Card" Lottery ends on November 30, 2009. See our prior post here for details. (Photo: Permanent Resident Card, or "Green Card," which is actually an off-white color.)

Wednesday, November 18, 2009

Unexpectedly, the House Passes Health Care Reform Without Imposing a Waiting Period for Recent Immigrants


On November 7, the House of Representatives passed H.R. 3962, the Affordable Health Care for America Act, a bill that in part creates health insurance subsidies for people with low incomes. Congress was strongly lobbied to delay access to these subsidies for Lawful Permanent Residents (LPRs), or “green card” holders, by imposing a five-year waiting period. Ultimately, however, the final version of the bill passed without as much as an amendment offered to impose a waiting period of any duration on LPRs. This may be a sign that the tide is shifting on the broader issue of immigration, as Republican leadership decided at the last minute not to force a vote on an immigration provision within the bill, as reported by Jennifer Bendery of RollCall. She suggests that by not pressing the immigration issue in the House the GOP was placating Hispanic Republicans. It is also likely that Republicans concluded it was in their political interest to focus instead on splitting the House Democrats on the issue of federal subsidies for health care programs that cover abortion with the so-called Stupak-Pitt Amendment. That amendment, which became part of the final bill in the House, has since undeniably become the most controversial aspect of the House bill for the Democratic majority.
The National Counsel of La Raza (“La Raza”), the leading national Latino civil rights and advocacy organization in the United States, applauded the bill's passage, but argued that it did not go far enough. La Raza calls for the removal of the five-year waiting periods currently in place for LPRs seeking Medicaid, Medicare and the Children’s Health Insurance Program (CHIP). The Affordable Health Care for America Act specifically leaves these five-year waiting periods in place, even as it does not impose a similar waiting period for the new insurance subsidies.
The Federation for American Immigration Reform (FAIR), a non-profit organization advocating for restrictions on immigration, both lawful and unlawful, argues that not including the five-year waiting period will be problematic.
To persuade law makers that LPRs should not have access to health insurance subsidies “the day they get their green cards,” FAIR produced a cost analysis report in which they estimated the cost of providing insurance subsidies to recent LPRs to be in the billions of dollars.
However, a report entitled "Immigrants and Health Care Reform: What’s Really at Stake?” by the Migration Policy Institute notes that any apparent savings from excluding the recent LPRs from applying for insurance subsidies would be offset by cost shifts in other areas.  For instance, individuals without health insurance will continue to use the health care system at emergency rooms and community clinics. When Massachusetts decided to save $130 million by removing recent LPRs from its insurance subsidy program, its state hospitals ended up having to budget an extra $87 million for non-urgent emergency care to account for the resulting influx of uninsured patients at their emergency rooms. Further calculations would be necessary to assess the impact on the public health by leaving LPRs without access to subsidized health insurance coverage.
A similar exclusion of recent LPRs from insurance subsidies at the national level would disproportionally affect hospitals in states with the highest LPR populations, according to the Migration Policy Institute report. Taxpayers and those paying insurance premiums in California, New York, Texas and Florida would end up footing the bill if there was a five-year waiting period for LPRs to access the insurance subsidies.
Another point of contention within the House debate (and presumably in the upcoming Senate debates) is the citizenship verification requirement. What should a U.S. citizen applying for these insurance affordability credits be required to present in order to prove his or her eligibility? In a country without a national ID card, the answer is far from simple. The verification process for those claiming to be U.S. citizens is established by Section 341(b)(4)(C) in the House bill. It requires the applicant to provide his or her name and a matching social security number, which are then checked against records at the Social Security Administration. FAIR argues that this process is insufficient, and that it will lead to illegal aliens fraudulently claiming citizenship in order to apply for the insurance subsidies.
On the other side of the issue, Janet Murguía and Ralph Neas (of La Raza and the National Coalition on Health Care, respectively), argue that such “complex layers of citizenship verification” cause excessive delays in obtaining medical treatment, have failed to identify a significant amount of fraudulent claims and are expensive to administer.
Last month officials in L.A. county, required by a 2005 law to verify the citizenship of recipients of subsidized state health care pursuant to the Deficit Reduction Act, complained that virtually no illegal immigrants were found to be attempting to cheat the system. When a $28 million retroactive review of 100,000 records was conducted in Los Angeles County, it found less than 1% lacked proper documents, though most eventually produced them. “Verification of Illegal Immigrants Is Scrutinzed Amid Health Care Debate: L.A. County officials Question Cost-Effectiveness of Rules Aimed at Screening Those Trying to Get Public Health Services, Los Angeles Times, October 6, 2009.
A Congressional Oversight Committee study concluded that nine states had spent nearly $17 million dollars and caught only eight undocumented persons attempting to gain benefits using false documentation. The Congressional Budget Office found that in 44 states where the new rules were implemented a decline in the demand for Medicaid was noted; advocates believe that most of this decline is due to U.S. citizens who do not possess a driver’s license, passport, or birth certificate. A review of 240,000 records in El Monte, California found only two suspicious documents, both proved to be legitimate.
The Affordable Health Care for America Act now faces its next challenge in the Senate. With an election year looming, the health care debate is expected to continue to be highly polarized as incumbents facing re-election on both sides play to their bases. A recent Pew Research Center poll found that only 52 percent of registered voters want to see their own members of the House of Representatives reelected next November, which may make Democrats particularly nervous about losing their majority control. This number comes close to the all time lows that were seen prior to the 1994 election when Republicans overtook the Democratic Congress, and the 2006 election when Democrats reclaimed the two chambers after 12 years in the minority. Because Republican sentiment has become increasingly hostile to health care reform, specifically provisions covering immigrants (as illustrated in Rep. Joe Wilson’s now infamous cry) Democrats could be pushed to cave to Republican demands. (Photo: House Speaker Nancy Pelosi on November 7, 2009 announcing the passage of The Affordable Health Care for America Act, by Luke Sharrett for The New York Times)

Monday, November 16, 2009

Last Two Weeks for Diversity Visa "Green Card" Lottery Filing Period

The filing period for the Fiscal Year 2011 Diversity Visa Lottery or "Green Card" Lottery ends on November 30, 2009. See our prior post here for details. (Photo: Permanent Resident Card, or "Green Card," which is actually an off-white color.)

Friday, November 13, 2009

Citizenship and Immigration Services May Increase Fees Again to Cover Budget Shortfall

In an interview today with the Houston Chronicle, Alejandro Mayorkas, the Director of U.S. Citizenship and Immigration Services (CIS) indicated that another round of application and petition filing fee increases was probable in the near term.
While the fee increase story was first reported on September 23 by the LA Times, the Houston Chronicle interview made news on the same day as DHS Secretary Janet Napolitano's first major speech on the administration's goals for immigration reform.  Those goals include a legalization program that would eventually mean millions of new filings and billions in new revenues to CIS. Majorkas, who was born in Cuba, oversees an agency that employs 18,000 people. In the same interview he also suggested that layoffs may be necessary to stem the budget shortfall. Napolitano and CIS, however, have repeatedly assured that the agency is preparing to absorb the massive workload that would ensue from legalization by clearing its present backlogs.

Supreme Court Signals Interest in Federal/State Conflict over Immigration Law Enforcement

The Supreme Court indicated this week that it may address the question of whether individual States, as opposed to the federal government, can enforce federal immigration law.
Specifically, the Supreme Court asked the U.S. Department of Justice for its view on whether a 2007 Arizona law that allows the State of Arizona to enforce federal immigration laws is constitutional. Among other things, the Arizona law in question requires employers in Arizona to utilize a federal electronic system to verify whether their newly hired employees are legal and permits the State of Arizona to sanction employers it finds to have “knowingly and intentionally” hired illegal workers.
The Arizona law is being used by other states as a model, and opponents of the law are concerned about the possible rise of a patchwork of state enforcement measures that are inconsistent, hostile to business and immigrants, and unable to address or resolve the multiple immigration issues the U.S. faces. Opponents also assert that enforcement at the state level is unconstitutional, and that the power to enforce federal immigration law resides solely with the federal government.
The Supreme Court’s request may cause the Obama Administration to clarify certain aspects of its immigration policy. President Obama has indicated that he favors a federal solution to immigration issues. Now, through his Justice Department, he will have to decide whether he thinks federal reform is simply the best solution, or whether it is the only solution possible under the Constitution. Some disagreement on the constitutional issue may exist within his cabinet, though; while Obama’s Secretary of the Department of Homeland Security, Janet Napolitano, has confirmed her support for comprehensive federal immigration reform, she has also supported local (State) enforcement. She is the person who, as Arizona’s then governor, signed the law in question. And, as noted below, she delivered a major speech on immigration enforcement and reform today in Washington.
See also, "Governor to Release Report on Massachussetts Immigration Reform," Boston Herald, November 14, 2009.

White House to Push for Comprehensive Immigration Reform in Early 2010


The New York Times, reporting on DHS Secretary Janet Napolitano's speech today to the Center for American Progress, noted that today the Secretary confirmed the administration's intention to seek a path to legalization for an estimated 12 million undocumented persons now in the United States. The administration's plan, which seems on track to be introduced in early 2010, would require applicants to register, pay fines and all taxes they owe, pass a criminal background check and learn English." See full article here.  Newsweek magazine followed quickly, with bloggers there asking whether Lou Dobb's abrupt departure from CNN and Napolitano's message that the administration was ready to move forward on comprehensive reform may portend a "Rosier Picture" ahead. This roll out of the administration's intention to pursue a three-pronged approach (enforcement against employers or the "demand" side, enforcement aimed at securing the border and removing criminal aliens, and legalization) seems to have been purposefully timed so that the Secretary could enumerate the many ways in which the administration has prioritized and executed on its strategy ("reached its benchmarks"). At a Senate hearing earlier this year the Secretary was asked repeatedly whether she supported legalization, but at that time she was playing her cards close to her chest.  Nonetheless, protests are already being planned to oppose immigration reform in more than fifty cities on Saturday November 14 by anti-immigration organizations.
Interestingly, the number of apprehensions of individuals attempting to enter the United States illegally dropped sharply to about 556,000 (23% less than in 2008, and 67% less than the 1.675 million apprehended in 2000.  The speculation is that increased border security and a depressed economy have discouraged those who cross the border seeking employment. See also, "Immigrant Bill is Back on the Table," Wall Street Journal, November 14, 2009. (The use of the word "immigrant" here in place of the word "immigration" to describe the bill is unusual and may be a mistake by WSJ.)

Department of Homeland Security Secretary Janet Napolitano Gives First Speech on Immigration, Focusing on Enforcement and Reform

Secretary Janet Napolitano's Prepared Remarks delivered at the Center for American Progress on November 13, 2009 are available at the Department of Homeland Security website here. See video provided by the Center for American Progress here.

Wednesday, November 11, 2009

Masliah joins the American Immigration Council's Board of Trustees

Masliah & Soloway is proud to announce that Noemi has been appointed to the American Immigration Council’s Board of Trustees. Formerly the American Immigration Law Foundation, the American Immigration Council (“AIC”) was established in 1987 as the tax-exempt, non-profit educational and charitable sister organization to the American Immigration Lawyers’ Association. The Council is dedicated to changing how Americans think and act towards immigrants and to advancing fundamental fairness and due process under the law for immigrants. More information can be found at American Immigration Council

USCIS announces temporary period for filing H-1B petitions without certified LCAs

On November 5, 2009, the USCIS announced that, until March 4, 2010, it would begin accepting H-1B petitions filed without Labor Condition Applications (“LCAs”) that have been certified by the Department of Labor (“DOL”).

Certified LCAs have been required prior to filing the H-1B petitions. Recently, with the DOL’s implementation of the “iCERT” system for certifying LCA’s, processing delays have resulted in increased processing times for LCA certifications. As a result, this has delayed employers’ ability to file H-1B petitions.

In response to the public’s request, the USCIS will accept, until March 4, 2010, an H-1B petition filed with an uncertified LCA. The LCA, however, must have been filed with the DOL at least 7 calendar days before. The H-1B petition must be accompanied by the DOL’s e-mail receipt as evidence that the LCA was filed. The certified LCA must be then submitted in response to a Request for Evidence (“RFE”) with a 30-day deadline. Without a certified LCA, the USCIS will not approve the H-1B petition.

The DOL expects the delays in the LCA certification process to be temporary; hopefully, the delays will no longer exist long before March 4, 2010.

Saturday, November 07, 2009

H-1B Count Update

According to the USCIS, as of October 25, 2009, approximately 20,000 advanced degree and approximately 52,800 cap-subject H-1B petitions have been received by the USCIS for the 2010 fiscal year. The agency will continue to accept both advanced degree and cap-subject cases, however all petitions received from now on will be counted towards the FY 2010 cap of 65,000.

Tuesday, November 03, 2009

Report Claims That Immigration Enforcement Is Undermining Workers' Rights

"Iced Out: How Immigration Enforcement Has Interfered with Workers’ Rights," a report jointly issued on October 27 by the AFL-CIO, American Rights at Work and the National Employment Law Project and co-authored by Ana Avendaño, Rebecca Smith and Julie Martinez Ortega, concludes that an overseeing government entity is needed to moderate the enforcement of the nation’s immigration laws at the workplace and to ensure that workplace rights are not impeded by overzealous enforcement. Immigration and Customs Enforcement (ICE)’s current practice of conducting workplace raids during ongoing labor disputes and/or in the face of wage and hour violations puts all workers at risk, the report argues.
The reports cites numerous case studies in which ICE and state and local law enforcement agencies working in tandem with ICE have ignored specific policy—known as ICE Special Agents Field Manual 33.14(h)—which was designed to mitigate against this problem. The policy requires investigators to obtain approval from a Director when it appears that ICE was tipped-off about the presence undocumented workers as a tool in a labor dispute. "Iced Out" argues that this policy should be meaningfully revived and fully disseminated throughout the agency and state and local law enforcement offices in order to bring to an end the perverse climate in which employers unjustly benefit from hiring undocumented workers and keep them from asserting their rights by threatening to call immigration.

"Iced Out" identifies instances where ICE agents conducted surveillance of picket lines, and/or conducted immigration raids on the heels of wage and hour litigation–activities which, its authors, believe have send a clear message to employees that if they complain about working conditions they may face deportation. One example cited, involved the conduct of a particularly egregious raid at a plant in Iowa. According to the report, ICE agents had received letters from union leaders informing them that there was a labor dispute in process at the plant so that ICE would comport with their policy of not conducting immigration enforcement actions during such times. However, one week after receipt of this letter ICE raided the plant. Many of those arrested and detained in the raid were in fact eligible for U or V non-immigrant status* as a result of the illegal and unsafe working conditions at the plant. Instead of providing these workers with the resources to obtain lawful status, the 306 workers arrested were turned over to the U.S. Attorney’s Office to face criminal charges for working with false papers.

The report concludes with recommendations that seek to balance important goals of enforcing workplace rights and the U.S. immigration laws. By returning to the policy of not allowing immigration enforcement to inhibit the enforcement of labor laws, the authors hope to prevent abusive workplaces in which some employers take advantage of undocumented workers and exploit their fear of deportation during labor disputes.

*U is a nonimmigrant classification for victims of certain crimes who are willing to assist government officials in the investigation of the criminal activity. V is a nonimmigrant status created to allow families to stay together while waiting for the processing of immigrant visas.

Monday, November 02, 2009

Follow Us on Twitter

You can now follow Masliah & Soloway Immigration Updates on Twitter. To stay informed about changes in immigration law and policy and to receive news about our law firm click here or look for our tweets under the name MasliahSoloway.

HHS Secretary Kathleen Sebelius - Final Rule Repealing HIV Ban Will Be Effective January 2010: "I Am Pleased This Is Happening Now."

This morning, United States Health and Human Services Secretary Kathleen Sebelius announced the publication in today's Federal Register (74 FR 56547) of the final rule repealing HIV from the list of "communicable diseases of public health significance." This final rule finally ends the ban on immigrants and foreign national non-immigrants effective January 1, 2010, according to Sebelius, who said, "This change has been a long time coming, and I am pleased it is happening now." (HHS Press Release) The Federal Register, however, lists January 4, 2010 as the effective date of the Final Rule.
The only countries in the world that still bar entry to persons with HIV are: Brunei, China, Equatorial Guinea, South Korea, Papua New Guinea, Qatar, Russia, Singapore, Sudan, United Arab Emirates, and Yemen.
(Photo: Official Portrait of HHS Secretary)

Saturday, October 31, 2009

Advance Copy of the November 2, 2009 Final Rule Repealing the HIV Ban

Read it here. It becomes effective 60 days from publication, on January 1, 2010.
"As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration."
-Final Rule, submitted October 30, 2009 at 8:45 a.m. for publication on November 2, 2009. Kathleen Sebelius, Secretary, Health and Human Services.

Friday, October 30, 2009

President Obama Expected to Announce End to HIV Ban Today, OMB Has Approved Final Rule

Yesterday, the White House Office of Management and Budget approved the regulations (see screen capture below) issued by the U.S. Department of Health and Human Services that will end the HIV ban on immigrants and non-immigrants, only seven days after the final regulations were submitted for review. Also, yesterday Congress passed re-authorization of the Ryan White HIV/AIDS Treatment Extension Act, which provides funding for low-income people with HIV. Today at 11:50 a.m. the President will sign the bill into law in a ceremony in the White House Diplomatic Reception Room and is expected to use the opportunity to announce that the HIV ban has been brought to an end. (See previously, "Repeal of HIV Ban in Final Stages".)

Updated 12:15 p.m.: The President (photo above) just announced that the Final Rule will be published on Monday November 2. This means that the effective date will be just after the New Year. Here is a copy for your reading pleasure: Removal of Human Immunodeficiency Virus (HIV) infection from Definition of Communicable Disease of Public Health Significance (Filed with Federal Register October 30, 2009; Published November 2, 2009)

Thursday, October 29, 2009

Members of Congress Look to Restart Immigration Reform in Early 2010

Listen to NPR's interview with Illinois Congressman, Luis Gutierrez on October 27, 2009.

Tuesday, October 27, 2009

Diversity Visa "Green Card" Lottery Filing Period Ends November 30, 2009

This note is posted for informational purposes only and does not constitute legal advice.
Consult a qualified attorney before filing any documents with the Immigration Service or State Department, including an entry into the DV Lottery.

1. What is the Diversity Visa Lottery Program?

The Diversity Visa (DV) Lottery Program makes 55,000 immigrant visas ("green cards") available each year to nationals of countries which the U.S. considers to be under represented in U.S. immigration. Applicants from those countries not excluded may apply, whether they are currently residing outside the U.S. or inside the U.S.

2. Which countries are excluded from this year’s DV lottery?

For the current DV Lottery (DV 2011) natives of the following countries are not eligible to apply: BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible. If you are a "native" of any of these countries, you cannot apply for the diversity visa lottery. Generally, a person is considered a "native" of the country in which he or she was born. There are some exceptions to this rule, so if you are not certain if you qualify, you should contact an attorney.

3. What are the requirements to qualify for the DV Lottery?

An applicant must come from an eligible country, have either a high school diploma, or two years of work experience within the last five years in an occupation that requires at least two years of training and be otherwise admissible.

4. Can I apply even if I’m in the U.S. without legal status ("undocumented")?

Under current law, a person who is in the U.S. without legal status who wins the DV lottery will not be permitted to apply for their residence from within the U.S. ("adjust status") unless they had some other legal permanent residence visa petition (family or employment based) filed before April 30, 2001. If you are undocumented and you receive a notice from DOS that you have won the DV lottery, the notice will instruct you to return to your country for processing. If you follow these instructions and leave the U.S., you will be subject to "overstay" bars of three years or ten years depending on the circumstances. Under current immigration law, anyone who has been unlawfully present in the U.S. for more than 180 days will be prohibited from returning to the U.S. for three years following departure. Anyone who has been unlawfully present in the U.S. for more than one year will be prohibited from returning for ten years following departure.

5. If I’m in the U.S. and undocumented should I apply?

Simply submitting an application to the DV Lottery does not in itself automatically trigger a deportation action against you, so entering the lottery if you are undocumented is not very risky. However, even if you are selected there is almost no chance you would be eligible for "adjustment of status" unless you are grandfathered under Section 245(i). If you are undocumented in the U.S. and thinking about applying for the DV lottery, you should consult with an experienced immigration attorney first.

6. I’m HIV positive. Can I apply?

For the first time in over 15 years, the answer to this question is pretty clearly, yes. Although the regulatory framework of the HIV ban is still in place, the administration has made it clear that it intends to end the ban by the end of 2009, possibly as soon as the end of October 2009. The Department of Health and Human Services has published proposed regulations seeking to remove HIV from its list of "communicable diseases of public health significance," and U.S. Citizenship and Immigration Services has put out a memo stating that it will not deny applications for legal permanent residence based solely on HIV-positive status; it will hold them until the final rule change. The final rule has been drafted and sent for approval to the Office of Management and Budget, and is expected to be published imminently. It is therefore most likely that long before the DV-2011 lottery winners are announced, the HIV ban on immigration will be history.

7. How will I know if I won?

A government computer will select at random individuals from among all qualified entries. They will be notified by mail and will be provided further instructions, including information on fees connected with immigration to the U.S. Those individuals NOT selected will NOT receive any notification. Applicants may also check the status of their lottery entry online at the DOS website to determine whether or not they have been selected. Please note that the DOS does NOT notify winners by email.

8. How do I apply?

Again this year the U.S. Department of State will only accept applications that are electronically filed at http://www.dvlottery.state.gov along with digital photographs. Applicants are strongly encouraged not to wait until the last week of the registration period to enter.

9. How much does the application cost?

There is no fee at the time the electronic application is filled out. Please note that the U.S. Government employs no outside consultants or private services to operate the DV program.

10. When is the registration period?

Entries for the DV-2011 Diversity Visa lottery must be submitted electronically between 12:00PM EDT on October 2, 2009 and 12:00PM EST on November 30, 2009.

11. Can I submit more than one application?

Anyone who submits more than one application will be disqualified automatically.

12. Should I hire a representative, pay a fee or use an online service to file for the DV lottery?

Other than a qualified, reputable attorney to advise you on this process, probably not. Most websites or services that offer to help applicants fill out their DV lottery application are not reputable and are not necessary. The online DV lottery application is very simple, and requires no fee.

Monday, October 26, 2009

Repeal of HIV Ban In Final Stages

The cruel and unnecessary ban on HIV+ immigrants and non-immigrants is a tiny step away from being history, as of this past Thursday. This past summer, the U.S. Health and Human Services published proposed regulations to bring them in line with the Congressional repeal of the HIV ban in the last weeks of the Bush presidency in December 2008. With these changes, HIV will no longer be considered a "communicable disease of public health significance" and will no longer be a grounds of "inadmissibility" as it has been for more than 20 years for non-immigrants and immigrants. The comment period for the proposed regulations ended on August 17. Activists and attorneys, non-citizens and judges, and even the United States Citizenship and Immigration Services itself, optimistically awaited the Final Rule. Only a month after the proposed rule was published, USCIS announced that it would not longer deny cases where the sole reason for the denial is HIV, but instead will hold those cases in abeyance until the new policy is implemented. (See USCIS memo here.)

We learned today that HHS sent the "final rule" to Office of Management and Budget on October 22 for review. Review must occur within 60 days (by December 21), meaning the HIV ban will be gone by the end of the year, and perhaps even sooner. Immigration Equality a lead advocacy group on this issue predicts that OMB could announce approval of the Final Rule as soon as Wednesday October 28.

For an excellent summary of the history of the HIV ban before the August 17 publication of HHS's proposed regulations, see "U.S. HIV Travel and Immigration Ban is Going... Going... Almost Gone," by Laura Belmonte, Associate Professor of History and Director of American Studies at Oklahoma State University.

Thursday, August 20, 2009

20,000 H-1Bs Still Available

There is continuing evidence that demand for H-1Bs has cooled off considerably this year. According to the latest update from Citizenship and Immigration Services, the number of Fiscal Year 2010 H-1B petitions filed in the past five months falls far short of the allotment of 65,000 H-1Bs available for employers subject to the numerical limitation. It is unlikely that the full allotment, also known as the numerical "cap," will be exhausted in the next few weeks.* As a result, employers will still likely be able to petition for H-1B employees well into the 2010 Fiscal Year, a nearly unprecedented phenomenon.

As of August 14, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the "advanced degree cap exemption" had been filed. This marks the first year in many that the October 1 will come and go with H-1Bs still available. Almost a third of the H-1Bs available to employers for Fiscal Year 2010 have no takers. In the past this surplus would have been unthinkable. In fact, demand for H-1B professionals was so strong in 2007 and 2008 that a virtual run on H-1Bs depleted the entire annual allotment days after the filing period began each year in April.

Citizenship and Immigration Services will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
_______________________________________________

*There is an annual allotment of 65,000 H-1Bs available for employers are not exempt from the numerical limitation. This means that approximately 20,000 H-1Bs are still available.

Another 20,000 H-1Bs are set aside for beneficiaries with Master Degrees from U.S. educational institutions. Although 20,000 Master Degree petitions have been received they have not all been approved and the government has indicated that it will continue to accept petitions in the Master Degree category until it has reached the 20,000 allotment in that category.

There are also certain non-profit employers, mostly educational and research institutions, that are not subject to the cap, i.e. for which there are an unlimited number of H-1Bs available.

Tuesday, August 11, 2009

J.J. Shepherd Joins Los Angeles Office

Joseph Shepherd is a recent graduate of Brooklyn Law School (J.D., 2009). He joins the firm as a Law Clerk in our new Los Angeles Office. Mr. Shepherd is a former intern of Immigration Equality, a national non-profit organization dedicated to ending discrimination against lesbian, gay, bisexual, transgender, and HIV positive individuals in U.S. immigration law that was founded in 1993 by Noemi Masliah and Lavi Soloway. While at Immigration Equality, he assisted in client representation and conducted research for the American Immigration Lawyers Association’s publication, "Immigration Law and the Transgender Client." While working as a student intern at Brooklyn Law School’s Safe Harbor Clinic he participated in the preparation of a successful case brought by a Jamaican asylum applicant. Most recently, Mr. Shepherd interned with the United States Attorney’s Office focusing primarily on immigration litigation in the Eastern District of New York. In July Mr. Shepherd sat for the California Bar Exam.

Saturday, August 01, 2009

Los Angeles Office Moves to a New Location

Masliah & Soloway's seven-month old Los Angeles office has moved to a new location at Museum Square, 5757 Wilshire Boulevard, Suite 645, Los Angeles, CA 90036. The office is located at the intersection of Wilshire and Curson next to the Los Angeles County Museum.

Wednesday, May 27, 2009

Vicki Yudenfriend, Of Counsel

Vicki Yudenfriend, of counsel to Masliah & Soloway, is a graduate of Boston University School of law and has practiced Immigration law for over twenty years.  Her practice has focused on business and family immigration.  She has represented corporations ranging from hospitals to engineering firms as well as individuals including artists, professionals and skilled workers.  She has also represented individuals in family immigration.  Ms. Yudenfriend   has spoken  at AILA meetings on topics such as IMMACT 90 and issues relating to the employment of foreign nurses.  Her interest in immigration law was sparked by her advocacy work in the 1980s and 1990s with people in the former Soviet Union who were denied permission to leave the country.  After traveling to Russia on two occasions, she lectured frequently at universities and civic organizations.  Even after many years working in the field, Ms. Yudenfriend continues to enjoy her work immensely because of the challenge and excitement of helping people make new beginnings.  

Saturday, April 25, 2009

Masliah & Soloway Opens Los Angeles Office

We are excited to announce the opening of our Los Angeles office. With the addition of this new office, Masliah & Soloway is better positioned to provide immigration law services to clients in southern California as we continue to grow and establish ourselves as a national immigration law firm.

To schedule a consultation with our Los Angeles office please e-mail info@Masliah-Soloway.com or call 323-904-4730.