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| (c) Law Office of Bonnie Stern Wasser |
Spring 2007 |
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Greetings, The immigration debate heats up in the U.S. Senate this week as a "compromise" bill is introduced. This is the week for voters to Contact Congress. In addition to highlighting the latest action in the Senate, this newsletter addresses new passport requirements for US citizens, new US citizen family sponsorship rules, the H-1B debacle and strict new labor certification rules affecting US employers. As Chair of the Congressional Liaison Committee of the Washington State Chapter of the American Immigration Lawyers Association (AILA), I went to Washington, D.C. with 12 other colleagues from our state, joining 400 other AILA members from around the country. We met with Washingon State members and staff of the House and Senate to urge passage of Comprehensive Immigration Reform (CIR), and are continuing to meet with members and staff here in the state. They each confirmed that they receive vastly more calls and emails from the anti-immigrant crowd at a 10:1 rate. However, while there is much bi-partisan support for passing CIR, there is only a short window of opportunity until the August recess for Congress to pass legislation before the subject is off the table until after the next Presidential election. The basic principals of CIR that we support include 1) bringing the millions of the undocumented individuals out of the shadows on a path toward residence and citizenship; 2) clearing the family and employment permanent visa backlogs and adding more visas to the H-1B and H-2 visa categories; 3) creation of new visa categories for skilled and unskilled workers to come lawfully; and 4) restoration and preservation of due process and civil rights in the enforcement area. For a more thorough discussion about CIR, see What is Comprehensive Immigration Reform?Since my return from D.C., the House introduced the STRIVE Act which follows this basic 4-part CIR framework but still has some problems, especially in the due process area. House hearings were scheduled for later in the spring or summer, but could start earlier. Senate hearings begin the week of May 21. The current Senate "compromise" as of May 20, is fraught with issues of concern (see below) and is a much harsher bill than the STRIVE Act. If passed, it could be the biggest restructuring of immigration law since 1965. In its current form, it would be a debacle to family and employment based immigration law as we know it. If it passes the Senate in whatever form, compromise will be needed with the House bill in Conference Committee. You can easily contact your Senator by phone, fax or email THIS WEEK!. Click on the "Contact Congress" button on my website and fill in your zip code to get your House and Senate Representative information. There are sample letters which you can customize. Congress needs to hear from employers and families about how current or proposed immigration laws affect them. It takes just a few seconds to do. To learn more about CIR, see What is Comprehensive Immigration Reform?Best Regards,
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SENATE "COMPROMISE" BILL FALLS SHORT
While the Senate Bill (S. 1348) promises to morph over the next few weeks, the basic components out of the starting block include:
- A legalization program for the millions of undocumented people currently in the USA, but drawn out over 8-13 years starting with an initial conversion to a new "Z" visa status without right to join in family members; a minimum price tag of $8500 per applicant, a useless trip to the home country for a short stay by the head of household; the usual criminal background checks all immigrants are required to have; payment of taxes; steady employment; but, several enforcement triggers with no defined completion dates required before the program even begins;
- Decimation of family based immigration: limitations on the right of US citizens to sponsor their parents; elimination of US citizens and permanent residents from sponsoring adult children and siblings; a reduction of some but not all of the current backlogs over an 8-year period;
- A new temporary worker program for 400,000 people per year, but without the right to come with family members or to apply for permanent residence; maximum two-year stay limit with little to no worker protections; creates havoc to employers who spend time and money training workers only to lose them;
- Creation of a new point-based immigration system emphasizing the greatest points for English speaking highly skilled workers - but also eliminating most of the current employment based categories and substantially curtailing the annual number of employment based visas. Although there would be points for family members available, family immigration would be severly curtailed.
- Further reductions in the rights of immigrants to due process (including the right to court hearings and appeals; more grounds for mandatory detention);
- A detention facility construction boom;
- Establishment of English as the national language;
- Creation of a mandatory employer verification program (which must be complete before the legalization program kicks in)
The "compromise", while a valiant attempt to find common points of interest between strange bedfellows, has already received considerable opposition from a variety of interest groups on all sides of the debate and both sides of the aisle. Unfortunately, cutting back on both family and employment based legal immigration, whether temporary or permanent, contributes substantially to illegal immigration. In addition, a minority, but very vocal anti-immigrant crowd opposes any form of legalization perceived as "amnesty"; but, they have not put forth any other proposal that would reduce illegal immigration or be an incentive to employers to refrain from hiring undocumented workers. Moreover, poll after poll shows that a majority of Americans do NOT want mass deportations of their friends, neighbors, families, fellow students, employees or business people. Already, raids across the country in recent weeks have raised the ire of immigrants AND US citizens, and DHS/ICE promises to conduct more raids.
Congress really has only three options regarding the millions of undocumented immigrants in the US: 1) do nothing; 2) deport them all or 3) legalize them (regardless of the label attached). Doing nothing amounts to an amnesty for employers who illegally hire unauthorized workers. It does nothing to bring these people out of the shadows on the road to paying taxes, having criminal background checks and participating fully in American society. Failing to add numbers and categories to lawful means of entering the US does nothing to limit illegal immigration.
Stay tuned for more developments...... To make your voice known to Congress, this is the week to do it. See Contact Congress.
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Don't Leave Your Passport Behind This Summer
New Passport Requirements in Effect for US Citizens Returning to the US from Abroad.
As of January 23, 2007, all US citizens and anyone else traveling by air to and from the United States, Canada, Mexico, Central and South America, the Caribbean, and Bermuda must carry valid passports. The rules apply to children and the elderly as well. This is part of a program called the Western Hemisphere Travel Initiative (WHITI), a security enhancement program following 9/11. A number of tourism organizations and border states had hoped to delay the requirement because of the cost of passports, the proposed but not released national travel card, and the economic costs to many states dependent upon tourism. However, the rule went into effect nonetheless. What remains to be seen is the effective date when US passports will be required for re-entry through land and sea ports. Currently, those passport requirements are scheduled to be effective by June 2009, but many groups, including the Canadian government, are opposing implementation of the rule, especially along US Canada border states and towns. The Canadian government and several border states predict billions in lost tourism and trade dollars when WHITI is fully implemented. Some studies estimate only 40% of Canadians have passports while only 27% of Americans have US passports which can cost up to $100. Meanwhile, with the new rules in effect, it is taking longer to get a passport in the US, Canada and elsewhere.
DHS is lookng at the feasibility of an alternate high tech ID card that could be obtained for $20 and issued in 10 days. But privacy experts and other groups oppose that card as well for a number of reasons.
Already, the Department of Homeland Security (DHS) scaled back the deadline for children under the age of 16 entering the US by land to have passports, which will simplify things for groups such as the Scouts, church and other youth groups, exchange programs and school field trips. Meanwhile, the US Customs and Border Patrol (CBP) is testing a number of new technologies in border states including radio frequency IDs, bar codes on drivers licenses and other technologies.
In Washington State, Governor Christine Gregoire signed a Memorandum of Understanding with DHS which allows the State to develop a secure drivers license with citizenship information that will be cheaper and can be used as a substitute for a passport. The purpose is to enhance screening and cross-border traffic with British Columbia (B.C.) when the Olympics take place in B.C. in 2010. Similarly, the US State Department is looking at developing cheaper but more secure passport cards such as Smart Cards.
For more information about the WHITI passport requirements, see the CBP website. If you plan to travel shortly, see the US State Department's website about how to order expedited passports.
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H-1B Debacle Means Reform is Needed NOW!
For fiscal year 2008 beginning October 1, 2007, USCIS opened the H-1B application filing season on April 2, 2007 for 65,000 available new H-1B visas. Because the economy has improved and employers are hiring, USCIS was flooded with around 130,000 new applications on April 2 and April 3, 2007. As a result of so many filings, a lottery is being held to determine which H-1B applications will be part of the allowable 65,000 for next year. This gives employers absolutely no predictability since the usual process is "first in first out." Applications not accepted in the lottery will be returned. This is a debacle for employers! While employers are hot and mad, it is a great time to Contact Congress now. Not only are these visas for jobs that must be held in abeyance until October 1, many applicants may need to reapply for FY 2009. It is appalling that the quota is filled six months BEFORE the start of the fiscal year!
The situation is particularly difficult for employers hiring new college graduates from US universities. Many F-1 foreign students are allowed one year of practical training at the end of their programs. For many students, their practical training will expire in the summer leaving a gap between the end of work authorization and October 1, 2007 when the H-1B job, if selected, can begin. The first few times the quota was reached, USCIS developed interim relief. But in the last two years, the government has let these new grads flounder in regard to status forcing them to go abroad and wait, fall out of status or convert to a status that does not let them work.
Although the Strive Act mentioned above would set the annual limit based on market rates, a few other H-1B specific bills would either temporarily raise the cap or provide more exemptions from the cap, more along the lines of a bandaid fix. However, until Congress deals with Comprehensive Immigration Reform (CIR), which could include H-1B reform, it is unlikely any of the H-1B specific bills will be taken up unless and until CIR fails.
The situation is clearly unacceptable. Some employers are parking employees offshore or in Canada to wait for for H-1B visas to be available. Those who oppose increases to the cap fail to realize the connection to outsourcing of jobs.
No new H-1Bs will be available to
employers who discover new talent during the course of the fiscal
year. This is particularly difficult for small and medium size businesses, many of whom use H-1Bs infrequently or in smaller numbers as they are not always able to anticipate needs and apply early.
H-1Bs for THIS fiscal year and next ARE still available to certain employers engaged in higher education, non-profit or government research, as well as for nationals from Chile and Singapore that have their own quotas pursuant to treaties with the USA. There are very specific rules for these employer sponsors, so legal advice is highly suggested.
Employers should contact Congress now to demand relief for this program. AILA is currently circulating a letter and seeking more employers to sign on with 900 other companies. If your company would like to do this or write a custom letter that explains how your company is affected, please let me know and I will send you more information.
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DOL ISSUES NEW LABOR CERTIFICATION RULES
On May 17, 2007, the US Department of Labor (DOL) issued controversial new labor certification rules. Labor certification is the first phase of employer-sponsored immigration in which the employer must advertise and recruit for US workers in good faith. The new rules are very significant. First, they prohibit substitution of beneficiaries. This has been a helpful tool where employees are moved to new positions or leave the company before an approved labor certification for that employee can be used to achieve permanent residence. For the original beneficiary, under these circumstances, the labor certification is no longer valid. The substituted beneficiary, if meeting the same requirements, could use the earlier priority/filing date of the unused labor certification. This is important nowadays because the quotas have been backlogged and being able to rely on an older priority date is helpful.
Secondly, DOL now prohibits the barter and sale of labor certifications in light of several high profile fraud cases. Third, DOL now prohibits the foreign employee from paying the legal fees and advertising costs incurred to process a labor certification application. This includes prohibiting the employee from reimbursing the employer, receiving salary deductions and other indirect forms of reimbursement of money or services to the employer. The DOL's rationale is that the employer must in good faith have a bona fide job opening and recruit for US workers. Therefore, making the employer pay all recruitment and legal fees takes the potential for foreign employee bias out of the process.
Fourth, DOL now restricts the validity of approved labor certifications from indefinitely to 180 days before the next stage, the I140 visa petition, is filed with USCIS. This means employers must act quickly to make sure the I140 is filed and the employer can prove ability to pay the labor certification wage.
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State Department and USCIS Mess with International Love
New Delays for US Citizen Petitioners/Sponsors
Love must have been in the air the last few months because there was a sudden surge in new marriage cases at the firm. Americans often find their soul mates abroad whether in the course of their travels, international work or over the internet. Several of our US Citizen clients live abroad with their foreign born families. Historically, if a US citizen was living abroad in the consular district of their mate, the local US consulate might accept the intitial application for sponsorship, called a visa petition. The consul would also interview the couple about the bona fides of their marriage. This could shave off several months of processing time from the normal petition processing time compared to petitioners living in the USA. This is because US-based petitioners must also deal with the National Visa Center (NVC) in New Hampshire which coordinates documents and scheduling for the US consulates abroad. Petitioners abroad could previously avoid the NVC processing times.
However, last summer, the US Congress passed the Adam Walsh Act which contains a number of provisions to protect against child and spousal abuse. The Act now requires security checks of US citizen petitioners to determine if they have convictions for child abuse, pornography and other offenses. If so, they are now barred from sponsoring foreign born spouses and children except in a few circumstances. The Adam Walsh Act follows on the heels of the International Marriage Brokers Act, which was enacted to require security checks on US citizen petitioners for K-1 fiances where couples find each other through marriage brokers for a fee.
Because the US Department of State, which runs the US Consulates abroad, does not currently have access to this data on US citizens, it instituted a new policy requiring all immigrant family visa petitions to be filed in the USA or at USCIS offices abroad, of which there are only a handful around the world. This means the visa petitions will take longer than they used to, and that most applicants will also have to deal with the NVC. It also means some applicants may want to also seek K-3 visas after the petition is filed. This visa allows the beneficiary spouse to enter the US sooner, in theory, than waiting to complete processing of the immigrant visa at the US consulate. However, in practice, even the K-3 visa requires a US filed petition and a consular interview, and it may not be any faster than normal processing abroad for the immigrant visa, especially if the foreign spouse needs some kind of a waiver from excludability. Each case needs to be evaluated on its own and cross-checked against USCIS and consular processing times then in effect.
For petitioners residing abroad, there is another issue. Having a US domicile is required as part of the process for a petitioner to file an Affidavit of Support on behalf of the foreign spouse. The visa petiton is filed first, and does not require the US petitioner to have a US domicile at that point. But later in the process, the Affidavit of Support will need to be filed. It is at that point, the petitioning spouse must have re-established domicile or taken "concrete steps" to establish domicile back in the USA.
We are often asked when the best time is for a cross-border couple to marry, and whether it is best to use a fiance visa or get married in the US or abroad. The answer always depends upon the individual facts in the case, how well the couple know each other, the type of marriage planned, how work, travel, parent involvement, and current location of the couple are concerned. Therefore, it is important to get legal advice before taking the plunge into an international marriage.
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Firm News
Bonnie has been very busy with Congressional liaison, planning the AILA lobby day visit to D.C. and visiting members and staff of Congress in Washington with members of other community organizations. In addition, her article, Traveler Beware: Search and Seizure of Laptops and Other Electronic Gear was published in the March issue of The Advocat, a legal publication of the Vancouver, B.C. Bar Association. Another article she wrote, Investing for Fun and Profit in the Entertainment, Arts and Sports Industries, was published in AILA's Occupational Handbook Series on Entertainers, Athletes and Artists. This article focuses on the use of nonimmigrant treaty/trader E visas and permanent EB5 investor visas for companies in these fields.
In a few weeks, Bonnie will take over the reins as Chair of the Advocacy Committee for the Washington chapter of AILA. This committee has more of a media and community outreach focus and works with Congressional Liaison on legislative developments.
Bonnie is available to speak to community, business and professional groups about immigration issues. In addition, organizations wishing to establish coalition activities should contact Bonnie at (206)282-2279.
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