The online political website Politico.com has revealed that President Obama has invited members of Congress to the White House on June 8 to discuss immigration reform. Officials are vague as to the purpose of the meeting, saying:
"The meeting will be an opportunity to launch a policy conversation that we hope will be able to start a debate that will take place in Congress later in the year....This isn’t a forum or a summit with outside groups, this is solely a meeting with members of Congress on both sides of the aisle and both sides of the issue."
There has been much speculation on whether President Obama plans to tackle comprehensive immigration reform this year or now (see earlier blog posts). Maybe we will get more indication of his intentions after the meeting next month.
The New York Times today reports that census data from the Mexican government show a steep decline in emigration from Mexico to the US.
The recently released data show that about 226,000 fewer people emigrated from Mexico to other countries during the year that ended in August 2008 than during the previous year, a decline of 25 percent. All but a very small fraction of emigration, both legal and illegal, from Mexico is to the United States.
The article attributes the decline to the poor US job economy and lack of jobs for emigrants in the US. However, apparently there has not been a corresponding increase in the number of Mexicans returning to live in Mexico:
Still, at least 11 million illegal immigrants remain in the United States, the demographers say. Despite collapsing job markets in construction and other low-wage work, there has been no exodus among Mexicans living in the United States, the Mexican census figures show. About the same number of migrants — 450,000 — returned to Mexico in 2008 as in 2007.
Some commentators claim that the decrease is as a result of increased enforcement of immigration laws at the border and in the workplace. However, other sources in the article claim that enforcement is only a slight deterrent to Mexicans crossing illegally and that the poor job market is much more significant.
On June 1, 2009, the U.S. government will implement the full requirements of the land and sea phase of WHTI (Western Hemisphere Travel Initiative). Everyone traveling by air must now have a passport or other valid travel document to enter or re-enter the United States. The proposed rules require most US citizens entering the United States at sea or land ports of entry to have a passport, passport card, or other travel document approved by the Department of Homeland Security (DHS). Those other documents include:
Trusted Traveler Cards (NEXUS, SENTRI, or FAST)
State Issued Enhanced Driver's License (when available)
Enhanced Tribal Cards (when available)
U.S. Military Identification with Military Travel Orders
U.S. Merchant Mariner Document when traveling in conjunction with official maritime business
Native American Tribal Photo Identification Card
Form I-872 American Indian Card
US citizen children under the age of 16 will be able to present the original or copy of their birth certificate, or other proof of US citizenship such as a naturalization certificate or citizenship card.
The US passport card costs $45 and is valid for 10 years. It cannot be used for international air travel. Information on the card is here. DHS states that it has issued 1 million cards so far and is taking 4-6 weeks for approval.
More information on the WHTI and documentary requirements is available at the DHS website here and here and on the Customs and Border Protection website here. Photo by Mohan S.
The US Department of State has released the new Visa Bulletin for June 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories. Some categories do not advance at all, but none have retrogressed.
Employment-based categories have not changed for 1st preference applicants, and the entire 3rd preference and Other Workers category is "Unavailable", like it was in May. The biggest change is that the priority date for India EB-2 category has retrogressed from 2/15/04 in May to 1/1/00 in June. This is bad news for 2nd preference applicants from India, unfortunately.
Immigration and Customs Enforcement (ICE) issued a new Fact Sheet last week with FAQs on ICE's worksite enforcement procedures, figures, and reasons. The Fact Sheet explains that in Fiscal Year 2008
Of the individuals criminally arrested, 135 were owners, managers, supervisors or human resources employees facing charges including harboring or knowingly hiring illegal aliens. The remaining workers criminally arrested are facing charges including aggravated identity theft and Social Security fraud.
ICE has also made more than 5,100 administrative arrests for immigration violations during worksite enforcement operations.
ICE made more than 1,100 criminal arrests tied to worksite enforcement investigations.
In April 2009, Secretary Napolitano issued guidance outlining that ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration. ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. Furthermore, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.
The U.S. Embassy in Mexico City and all U.S. Consulates throughout the country have suspended all non-essential services to the public until May 6, due to the swine flu outbreak. Consular services for U.S. citizens will be limited to emergency assistance and to citizenship applications (passports and consular reports of birth abroad). See here for the embassy notice. The consulates will reschedule appointments that have been cancelled.
Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act - narrowly-tailored bipartisan legislation that would, in their words,
reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.
The H-1B visa program should complement the U.S. workforce, not replace it,” Durbin said. “Congress created the H-1B visa program so an employer could hire a foreign guest-worker when a qualified American worker could not be found. However, the H-1B visa program is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs. Our bill will put a stop to the outsourcing of American jobs and discrimination against American workers.
The Reform Act would
Require all employers who want to hire an H-1B guest-worker to first make a good-faith attempt to recruit a qualified American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers;
Prohibit the of “H-1B only” ads and prohibit employers from hiring additional H-1B and L-1 guest-workers if more than 50% of their employees are H-1B and L-1 visa holders;
Allow DOL to initiate investigations without a complaint and without the Labor Secretary’s personal authorization;
Authorize DOL to review H-1B applications for fraud;
Allow DOL to conduct random audits of any company that uses the H-1B program; and
Require DOL to conduct annual audits of companies who employ large numbers of H-1B workers.
The New York Times has a discussion this week on the DREAM Act. This legislation, sponsored by Senators Richard Durbin (D) of Illinois, and Richard Lugar (R) of Indiana, addresses the situation faced by young people who were brought to the United States years ago as undocumented immigrant children and who have since grown up here, stayed in school, and kept out of trouble.If enacted, the DREAM (Development, Relief, and Education for Alien Minors) Act would
Permit certain immigrant students who have grown up in the U.S. to apply for temporary legal status and to eventually obtain permanent status and become eligible for U.S. citizenship if they go to college or serve in the U.S. military; and
Eliminate a federal provision that penalizes states that provide in-state tuition without regard to immigration status.
Supporter of the legislation argue that
It would give lawful status to children brought to America by events beyond their control. They have grown up here, are fully integrated, and know no other country. Instead of being rounded up and deported, they will contribute to America, starting when they meet requirements that they go to college or serve in the military.
Opponents say that it is an amnesty
designed to politically leverage the dilemma of the most sympathetic group of illegals into a more general amnesty.
The most recent status of the DREAM Act is that a bipartisan group of senators introduced it to the latest Congress on March 26, 2009. AILA (the American Immigration Lawyers Association) estimates that 65,000 undocumented young people who have spent their childhoods in America would be impacted by this important piece of legislation annually.
The College Board, the nation's recognized leader in assisting students in the transition to higher education, recently issued a report supporting the DREAM Act.
USCIS has received approximately 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7.
USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS’ Web site at www.uscis.gov/h-1b_count. Photo thanks to aussiegall
Monday, April 20, 2009
CIS has issued the latest processing time goal and report here. In a 2007 fee rule, CIS aimed to reduce processing times by 20% by 2009. CIS is meeting its goals in some ares, e.g. EAD applications, I-129 petitions (2 month goal) and I-131 applications (3 month goal). In some other popular cases, processing times are well behind the goals, e,g, I-140 petitions (9 month processing vs 4 month goal), I-751 Removal of Conditions (9 month processing vs 6 month goal), Adjustment of Status for family (7.3 month processing vs 4 month goal). We have seen many cases take less than the posted processing times, especially naturalization applications. However there are also cases taking longer.
E-Verify is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.
Background to the new rule:
President George W Bush issued an executive order in 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees.The amended Executive Order reinforces the policy, first announced in 1996, that the federal government do business with companies that have a legal workforce.This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.
The effective date of the final rule requiring certain federal contractors and subcontractors to use E-Verify has been delayed until June 30, 2009.
Who is affected?
The rule will only affect federal contractors who are awarded a new contract after June 30 that includes the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704).Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause.
What contracts are included?
The E-Verify requirement would apply to federal contracts with a performance period longer than 120 days and a value over $100,000. The rule covers subcontractors if a prime contract includes the clause. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.
President Obama has chosed Alan Bersin to work with DHS Secretary Janet Napolitano to handle illegal immigration and drug violence issues along the Mexican-American border. Mr. Bersin held a similar position under Attorney General Janet Reno in the 1990s. His official title will be Assistant Secretary for International Affairs and Special Representative for Border Affairs.
What's going on in Mexico, across the border, in Juarez, requires that we support the government of Mexico in its very valiant, courageous effort to both stem violence and also deal with the drug trafficking organizations.
The Obama administration has promised to target border violence and work with Mexican authorities to curb drugs and arms trafficking. Hundreds of federal agents, along with high-tech surveillance gear and drug-sniffing dogs, are being deployed to the Southwest.
As reported by CNN, Bersin is a former California secretary of education, superintendent of San Diego City Schools and practicing private attorney.
DHS has issued a detailed Fact Sheet explaining its approach toguarding the southern border. The goals are to:
1. Guard against violent crime spillover into the United States; 2. Support Mexico's crackdown campaign against drug cartels in Mexico; and 3. Reduce the movement of contraband in both directions across the border.
DHS aims to do this by the following initiatives:
Doubling Border Enforceement Security Task Force Staffing
The New York Times reported on Wednesday that President Obama planned to push immigration reform as a priority in 2010. This report generated a lot of comment and controversy, not surprisingly, given that immigration reform is a controversial topic at any time, but especially in a recession. CNN.com now states that
Multiple Obama administration officials tell CNN that the White House is not pushing to pass a comprehensive immigration reform bill this year.....There are roughly 12 million illegal immigrants in the United States. In addition to making a way for some of them to stay in the country legally, CNN has learned the Obama administration wants to remove incentives to enter the U.S. illegally, beef up border security and work with Mexico to cut down on illegal immigration.
The American Immigration Lawyers Association (AILA) has published a letter commending President Obama on his plans to reform immigration. AILA comments that
Moving forward with comprehensive immigration reform will ensure that all workers are here legally, will punish unscrupulous employers who undercut their honest competitors, and will restore integrity to the labor market. It will lift wages for workers, ensure all workers are paying taxes, restore fairness to our immigration system, and create a level playing field for law-abiding employers. We laud the administration for seeing past the political and emotional rhetoric to the truth that what our country needs to climb out of the crisis toward economic growth and stability.
The US Department of State has released the new Visa Bulletin for May 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories. Some categories do not advance at all, but none have retrogressed.
Employment-based categories have not changed for 1st and 2nd preference applicants. However, the entire 3rd preference and Other Workers category is "Unavailable", meaning that nobody in that category can file in May, even with a very old priority date.
USCIS has announced that it is continuing to accept H-1B cases that are subject to the Fiscal Year 2010 cap. This means that the agency might not have received enough petitions within the first few days of filing to reach the quota. If this is the case, this would be the first time in years that the cap was not reached immediately. This also means that any cases received by CIS before today should be accepted for H-1B processing and should not be entered in a random lottery. Any cases received after today may be too late, however we won't know when the cap has been reached until after this happens.
As a follow-up to last week's blog posting about the new I-9 requirements starting on April 3, USCIS has released a Question and Answer document for employers here. The Q&A answers questions such as
What is the difference between the revised Form I-9 and the old one?
Why can’t I present an expired document?
As an employer, can I accept documents that used to be on the Form I-9 but aren’t now?
Do I need to complete the revised version of the Form I-9 for all my employees or just the new ones?
Previous blog posting: http://martinvisalaw.blogspot.com/2009/04/are-you-ready-new-i-9-requirements-take.html.
The new requirements regarding completing the Form I-9, to verify employment eligibility in the US, take effect tomorrow, April 3rd. Starting tomorrow, employers must use the new I-9 form to verify new hires and to reverify existing hires. The list of acceptable documents that an employee can present will change tomorrow also, primarily by eliminating expired documents from the list. USCIS has issued a Q&A document on the new requirements, available here. As the Q&A explains:
The new rule: • Requires that all documents presented during the verification process be unexpired; • Eliminates List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated Employment Authorization Cards); • Adds foreign passports containing certain machine-readable immigrant visas to List A; • Adds to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI ; and • Makes technical updates.
The new I-9 and instructions are here. The updated USCIS Handbook for Employers (M-274) is here.
