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.


All Charge-ability Not Listed

CHINA- mainland born

01MAY 2005
22JAN 2005 
01AUG 2002
01AUG 2002
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.