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)