Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Ever since the people of Minnesota elected Al Franken their U.S. senator, there's been a hole in my comedic heart.  The good Senator doesn't keep counsel with me, but I've discerned that he's made a personal vow to never again offer a hint of his former incarnation as one of the nation's most hilarious comedians and sketch comedy artists.   In other words, he has adopted a serious mien, a gravitas befitting his membership in that elite conclave of the 100.  So far as I can tell, he hasn't said anything really funny since before July 7, 2009 (when he took his senatorial oath before Vice President Joe Biden), and has rarely even mentioned the word "comedy" (except when offering a eulogy to his former writing partner, Tom Davis).

But since last Thursday, I have been consoled, although not comedically.  That's when I was reminded of his famous role on Saturday Night Live as the "caring nurturer" and "member of several 12-step programs," Stuart Smalley.

I thought then of Stuart's famous tag line, and tweaked it because of what Sen. Franklin did. He clearly showed that he's still more than "good enough . . .  [and] smart enough,"  and that "doggone it [immigration reform advocates really] like [him]."  

While nonetheless sticking to his vow of steadfast unfunniness, he persuaded his colleagues on the Senate Judiciary Committee to adopt by voice vote an amendment (Franken 4) to the Gang of Eight's comprehensive immigration reform (CIR) bill, S. 744.  If CIR is enacted with Franken 4 included, it would establish within U.S. Citizenship and Immigration Services (USCIS) an "Office of the Small Business and Employee Advocate" (the SBE Advocate), whose purpose would be to "assist small businesses [firms with 49 or fewer employees] and individuals in complying with the [Form I-9 (employment-eligibility-verification) requirements" of the immigration laws, "including the resolution of conflicts arising in the course of attempted compliance with such requirements."

The new role for the SBE Advocate complements the expanded authority of the USCIS Ombudsman under another amendment engrafted onto S. 744.  Like the Ombudsman, the SBE Advocate is empowered to provide assistance to the public, resolve I-9 compliance problems and make recommendations for changes to immigration laws and regulations.  

Unlike the bully-pulpit authority of the Ombudsman, however, the SBE Advocate would be authorized to issue an "Assistance Order" if any employer (not just a small business) or an individual has suffered or will likely suffer a "significant hardship" relating to I-9 compliance.  The SBE Advocate can also consider "significant hardship" more favorably to the small business or individual if USCIS does not follow its own "applicable published administrative guidance" and require the Secretary of Homeland Security under the terms of an Assistance Order:

• to cease any action, take any action, or refrain from taking any action, with respect to the small business or individual under the I-9 provisions of the immigration laws; 
• to determine whether any employee is or is not authorized to work in the United States; or 
• to abate any penalty under such laws that the SBE Advocate determines is inappropriate or excessive.

The anticipated creation of the Office of SBE Advocate follows on the longstanding difficulties encountered by small businesses in trying to comply with immigration law requirements and the more recent laudable attempts by USCIS to espouse (and, alas, inconsistently demonstrate) support for small-business entrepreneurship under that agency's Entrepreneurs in Residence program, which has provideduseful training to its adjudicators and continues to grow.

So, all in all, I'm pleased with Sen. Franken and his Minnesota niceness; but I still miss Stuart Smalley.  Although mollified by Franken 4, but still unable to fill that comedic hole in my heart, I searched the web to find out what morphed Stuart into Senator Franken. Lo and behold I think I've found it.  It was obviously his encounter with erstwhile presidential candidate and inventor of the internet, Al Gore, that turned Stuart into a politico:

Doggone you, Al Gore!

by Cyrus D. Mehta, ABIL Lawyer and Gary Endelman
The Insightful Immigration Blog

We continue to analyze the provisions of the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, s. 744 (BSEOIMA), which seeks to bring about dramatic changes to the existing immigration system in the United States.  One of the most  transformative changes that BSEOIMA will bring, if enacted, is a merits-based points system. For previous blogs on BSEOIMA, we refer readers to Workable or Unworkable: The H-1B and L-1 Provisions in BSEOIMA, s. 744 and Some Preliminary Observations Regarding The Proposed Border Security, Economic Opportunity And Immigration Modernization Act.

There will be a two track merits-based system under BSEOIMA.  The first track points-based merits system will have 120,000 to 250,000 merit-based visas. The second track non-points merits system applies to long term residents, and this track does not have a cap. By creating a points system, Congress has voted “No Confidence” in the labor certification program as a way to provide US employers with the talent they and the economy needs. This lack of confidence is also evident in other parts of BSEOIMA where STEM graduates with advanced degrees can be directly sponsored for green cards by employers without going through the arduous labor certification process.

Perhaps, it has also dawned on Congress about the futility of the labor market test that is conducted on behalf of a foreign worker for green card sponsorship who is already hired by the employer.  A good faith test of the labor market even if conducted by a well-intentioned employer will likely fail, at least from the Department of Labor’s (DOL) view, if the foreign worker is already in the position. The statutory basis for labor certifications, which in its current form is known as PERM (Program Electronic Review Management), is provided in INA §212(a)(5) of the Immigration and Nationality Act ("INA"). Under INA §212(a)(5), an alien is deemed "inadmissible unless the Secretary of Labor" certifies, inter alia, that "there are not sufficient workers who are able, willing, qualified…and available at the time of application" among the U.S. workforce. Out of this simple mandate in the INA, the DOL has built a complex regulatory structure that has delegated to the employer to conduct a good faith text of the US labor market. While in the real world an employer selects the best workers based both on an objective and subjective set of criteria, the DOL requires employers to demonstrate that only minimally qualified workers are available for the position. The labor certification process neither compels nor incentivizes an employer to hire the best workers, but it also does not result in the creation of US jobs. If a minimally qualified worker applies for the position, all that happens is that the labor certification cannot be filed.

The first track points-based system moves away radically from the labor certification system as it allows a foreign national to apply for permanent residency without a specific employer’s sponsorship. It  will take effect five years after the enactment of BSEOIMA. During  the first four years from enactment,  visas shall be made available to the backlogged EB-3 preferences. From the fifth year onwards,  50 % of visas shall be allocated to applicants who get the highest number of points under Tier 1. The remaining 50% of visas shall be allocated to applicants who get the highest number of points under Tier 2.

Under Tier 1, points will be assigned as follows:

A. Education

• 15 points for a doctoral degree
• 10 points for a master’s degree
• 5 points for a bachelor’s degree from an institution of higher education in the US

B.    Employment Experience
No more than 20 points can be allocated as follows:

• 3 points for each year an alien has been lawfully employed in a zone 5 occupation
• 2 points for each year the alien has been lawfully employed in a zone 4 occupation

C. Employment Related To Education
An alien who is in the US and is employed full time or has an offer of full time employment in a field related to the alien’s education

• In a zone 5 occupation shall be allocated 10 points
• In a zone 4 occupation shall be allo0cated 8 points

D. Entrepreneurship
An alien who is an entrepreneur in a business that employs at least 2 employees in a zone 4 or zone 5 occupations shall be allocated 10 points

E. High Demand Occupation
An alien who is employed full-time or has an offer of full-time employment in a high demand 1 shall be allocated 10 points

F. Civic Involvement
An alien who has attested that he or she has engaged in  significant amount of community service shall be allocated 2 points

G. English Language
An alien who received a score of 80 or more on the Test of English as a Foreign Language, or an equivalent score on similar test, shall be allocated 10 points

H. Siblings and Married Sons and Daughters of Citizens
An alien who is the sibling of a citizen of the United States or who is more than 31 years of age and is the married son or married daughter of a citizen of the United States shall be allocated 10 points

I. Age
An alien who is:

• between 18 and 24 years of age shall be allocated 8 points
• between 25 and 32 years of age shall be allocated 6 points
• between 33 and 37 years of age shall be allocated 4 points

J. Country of Origin
An alien who is a national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in the US in the previous 5 years shall be allocated 5 points.

Under Tier 2, points will be assigned as follows:

A. Employment Experience
An alien shall be allocated 2 points for each year the alien has been lawfully employed in the US, for a total of not more than 20 points

B. Special Employment Criteria
An alien who is employed full-time, or has an offer of full-time employment

• in a high demand tier 2 occupation shall be allocated 10 points
• in a zone 1 occupation or zone 2 occupation shall be allocated 10 points

C. Caregiver
An alien who is or has been a primary caregiver shall be allocated 10 points

D. Exceptional Employment Record
An alien who has a record of exceptional employment shall be allocated 10 points

E. Civic Involvement
An alien who has demonstrated significant civil involvement shall be allocated 2points

F. English Language
An alien who received a TOEFL score or an equivalent score on a similar test:

• 75 or more shall be allocated 10 points
• More than 54 and less than 75 shall be allocated 5 points

G. Siblings and Married Sons and Daughters of Citizens
An alien who is the sibling of a citizen of the US or is over the age of 31 and is the married son or married daughter of a citizen of the US shall be allocated 10 points

H. Age
An alien who is:

• Between 18 and 24 years of age shall be allocated 8 points
• Between 25 and 32 years of age shall be allocated 6 points
• Between 33 and 37 years of age shall be allocated 4 points

I.     Country of Origin
An alien who is a national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in the US in the previous 5 years shall be allocated 5 points.

There is also a second merit based track system that does not depend upon points beginning October 1, 2014. The second merits non-points system cleverly acts as a safety valve to reduce the existing backlogs in the system, and also ensures that we do not experience the same horrendous backlogs as we see under the existing system. People whose employment-based petitions and family-based petitions filed before the Act have been pending for more than 5 years will begin to become eligible for merit-based visas on that basis. Those who have been lawfully present for not less than 10 years will also be eligible for this non-points based side of the merit-based visa system. Registered Provisional Immigrants (RPIs) will be able to adjust status based on 10 years of lawful presence under this second merit non-points track system.

Labor certification will undoubtedly survive even after BSEOIMA as beneficiaries under the EB-2 and EB-3 preferences still need an employer to obtain labor certification. Moreover, not everyone will be able to make it under the merits system, such as ethnic cooks for example, who may not even need to speak English but are still vital for the success of the restaurant.  The merits based points system will compliment labor certification if BSEOIMA is enacted. Congress, and probably DOL itself has realized, as the authors have previously noted in their prior article, that the very notion of a “good faith” recruitment seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in PERM do you win by losing. Unable to utilize real world recruitment standards, compelled to base evaluations upon the entirely artificial concept of “minimal qualifications” that does not exist outside the cordon sanitaire of 20 CFR §656, wedded to an inflexible job description that can never change regardless of an employer’s business needs or a worker’s evolving talents, and effectively prohibited from taking into consideration the very subjective character traits whose presence or absence is the most reliable predictor of effective job performance, the labor certification process is fundamentally at odds with the very economic system it allegedly seeks to serve. Justification of labor certification can extend no further than a test of the relevant job market. The DOL has also failed to provide jobs to U.S. workers even though it forces the employer to conduct elaborate tests of the labor market to retain the foreign national employee. Indeed, as presently conceived and administered by the DOL, labor certification is a job killer, hurting the employment prospects of the domestic work force by artificially preventing US employers, most especially emerging companies who are the engine of job creation, from treating the foreign national as an asset to be maximized in way that promotes job growth and strengthens the very economy on which we all depend. Indeed, no intellectually honest examination of the labor certification system can fail to detect the pervasive distrust of the entrepreneurial spirit and the very ethos of capitalism itself that the DOL brings to each phase of the PERM process.

As the PERM labor certification appears to wither in BSEOIMA, giving way to a merits based points system, one can also learn from the Canadian points system where the points based system first started. A points based system may not necessarily be ideal. It could potentially encourage PhDs to win the highest points only to immigrate and not find jobs that are commensurate to their skills. Moreover, gaining the requisite points under specific criteria  are not an end unto themselves, and  that their effectiveness cannot be measured apart from the overall ability of the new immigrant to integrate into the economy and culture of the receiving nation . It  is this that ultimately will determine if the immigrant will be put into a position to succeed for themselves and their adopted home.

A Maclean’s article on the failure of the Canadian points system is revealing. According to a study conducted by the Organization for Economic Co-Operation and Development (OECD), only 60% of Canadian immigrants found jobs in their chosen areas of specialization compared to an OECD average of 71%; in matching up skills with employment, Canada ranked near the bottom, worse than Estonia, Italy, Spain and Greece.

The labor certification system seeks to  match the employer’s demand with the foreign national’s skills. Even here, however, it seems clear that PERM is not the best way for employers to express their interest in potential new hires. An independent assessment of language and credentials after which applicants can be placed in a pool for employers to draw from may be a promising third way between a free-standing points system (Canada) and immigration linked to specific job offers (USA). This “expression of interest” as applied in Australia and New Zealand avoids the frustrations of the Canadian approach and the economic illiteracy of PERM.

The frustrations of the Canadian model suggest strongly that recruitment of even the most skilled knowledge workers cannot be divorced from domestic demand.  Not only has this produced  long waiting lines in Canada but the bias towards highly educate STEM professionals has deprived those industries which are booming, such as the oil fields in Alberta, of the blue collar talent that they so vitally need. According to a New York Times article that was written when the points based system was first proposed in the failed 2007 bill:

Part of the backlog in Canada can be traced to a provision in the Canadian system that allows highly skilled foreigners to apply to immigrate even if they  do not have a job offer. Similarly, the Senate bill would not require merit system applicants to have job offers in the United States , although it would grant additional points to those who do. Without an employment requirement , Canada has been deluged with applications.

According to a Huffington Post article, the chronic underemployment of advanced degree professionals in Canada underscores the need for employers  to play an active role in the immigration selection process. Since 2004, the Provincial Nominee Program (PNP) where provinces sponsor immigrants to designated job vacancies has expanded six fold. In Australia, 81% of immigrants obtained employment in their chosen disciplines within six months. A pure points system not anchored to what employers are looking for will produce lower income and higher unemployment. Once again, according to the Maclean’s article, a comparison with Canada is instructive:

BSEOIMA  keeps intact the traditional labor certification system under the employment-based second and third preferences, but also introduces a merits based points and non-points system. Within the merits-based points systems, plenty of points will be given to those who have jobs, offers of employment, and even US-based employment in the area of the alien’s education,  but it does not require the employer to file a “pointless” labor certification (no pun intended!). Under the non-points merits based visa system, long term residents waiting in the pipeline for a green card can avail of visas, thus creating a safety valve in case of backlogs. BSEOIMA thus provides several pathways for foreign nationals to obtain permanent residence without obsessively focusing on labor certification.  The goal we seek is not to replace PERM with a points system but to find an alternative to both that is ethical, transparent and realistic providing the economy with the human capital it needs to grow but doing so in a manner that allows immigrants to be productive while respecting the legitimate interests of US workers.

We now have a new world.  The merit based system in the bill provides this missing alternative. BSEOIMA is a transitional document and the number of options to obtain green card status without labor certification is bound to grow in future years.  The virtue of BSEOIMA is that it is hybrid system combining a points system with employer selection. This offers the best of both worlds, and we refer readers to a Migration Policy study that thoughtfully provides models for such hybrid systems. As the global competition for top talent in science and technology intensifies, in order for the United States to attract and retain the best and the brightest, PERM will increasingly be relegated to a less important place, although it may still be important for certain occupations who cannot avail of the new pathways to permanent residency. PERM will not disappear but it will never again enjoy the dominance of old.  It is this third way that will define America’s immigration policy in the 21st century.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

While most of the nation fixated this week on black and brown American heroes in Cleveland, the attention of immigration advocates diverged.  They vacillated between delight with the imploding anti-immigration conservative movement and nail-biting over votes on a flood of amendments to the massive, bipartisan Gang of Eight bill in the Senate Judiciary Committee.

Schadenfreude abounded over the fall of Jason Richwine, proponent of the discredited eugenical theory of low-IQ Hispanic immigrants and co-author of an error-filled study, “The Fiscal Cost of Unlawful Immigrants and Amnesty to the U.S. Taxpayer.” Apparently gobsmacked by the torrent of criticism, Richwine resigned from the Heritage Foundation, which promptly distanced itself from the man, if not his report. 

Frissons of excitement intensified with the prospect that Richwine’s fall would, at long last, also unmask the rantings of nativist groups, too long disguised as principled think tanks, and cause Republican pragmatists and evangalelicals to reject the wingnuts on their party’s fringe. If anyone needed convincing of the link between opposition to immigration reform and white supremacists, then Rachel Maddow’s tour de force report vaporizes all doubt:

To be sure, there remain troubling questions about whether the current immigration system in America is inherently racist in its design, its effect or its enforcement, as this sometimes heated debate involving Unai Montes-Irueste, who writes for Politics 365, and immigration lawyers, Susan Pai and David Leopold, reveals:

Whatever the right answer (I could argue for all three positions), that debate will be left to historians if an enlightened form of comprehensive immigration reform (CIR) is enacted this year.  That won't happen, however, if the poison-pill pharmacists on the right are allowed to administer a deadly dose.  

Take for example, Sen. Ted Cruz (R. TX) who proposes a fatal amendment to bar any path to citizenship for the 11 million undocumented immigrants in the United States. Or consider the Downton Abbey amendment offered by Sen. Mike Lee (R. UT) which would allow Americans to hire the undocumented but only if they served (apparently only the 1%) as "cooks, waiters, butlers, housekeepers, governessess, maids, valets, baby sitters, janitors, laundresses, furnacemen, care-takers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use."

It's not only about preventing bad amendments but also preserving and improving on good ones.  Take for example an amendment that markedly improved on the Gang of 8 version which would merely have expanded the jurisdiction of the U.S. Citizenship and Immigration Services (USCIS) Ombudsman to also cover U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).  Proposed by Sen. Mazie Hirono (D. HI) and passed by voice vote, Section 1114 of the CIR bill creates a new "Ombudsman for Immigration Related Concerns" with the power to:

• receive and resolve complaints from individuals and employers and assist in resolving problems with the immigration components of the Department [of Homeland Security].
• conduct inspections of the facilities or contract facilities of the immigration components of the Department.  
• identify areas in which individuals and employers have problems in dealing with the immigration components of the Department.  
• determine whether an individual or employer is suffering or is about to suffer an immediate threat of adverse action as a result of the manner in which the immigration laws are being administered, and intervene as necessary.  
• propose changes in the administrative practices of the immigration components of the Department to mitigate [identified] problems . . .
• review, examine, and make recommendations regarding the immigration and enforcement policies, strategies, and programs of [CBP], [ICE], and [USCIS].
• monitor the [three agencies' compliance] with law, regulations, and policy. [and] 
• request the Inspector General of the Department of Homeland Security to conduct inspections, investigations, and audits.

Consider also various amendments not yet voted on which are proposed by Sen. Leahy (D. VT). One would modernize and make permanent the EB-5 regional center program for immigrant investors. Others would enact family-based immigration benefits for same-sex couples by way of the "Uniting American Families Act of 2013" and another measure would recognize for immigration purposes all marriages valid under the laws of any state or country, including same-sex nuptials.

Ponder as well the amendments long espoused by Sen. Chuck Grassley (R. IA) who would add the heavy hands of hamstringing regulations and enforcement to the H-1B and L-1 bill, in ways even worse than the bad ideas already in the G8 proposal.  These amendments (Grassley 57 to 67), along with the base bill, would stifle innovation not only in the tech industries but they would also essentially declare illegal the modern business practice of global sourcing of services on which so many American companies and customers rely.

The point of this post is not that revelry over the fall of xenophobes and eugenicists is wrong; rather, it is that celebrations of that sort are unaffordable luxuries. That wine is just too rich at this late hour.  

Advocates for enlightened CIR must instead keep eyes peeled on the Senate Judiciary Committee and its fast-and-furious consideration of amendments which will profoundly reshape in ways unforeseeable the rules for employment- and family-based immigration.  This week's action will focus on Title IV which would transform (in good and bad ways) many of the most heavily-used nonimmigrant visa categories and create new classifications whose contours will be decided in the coming weeks, perhaps as soon as Memorial Day. 

So save your gloating for another day.  Now, keep the Congressional feet to the fire. Let the word go out in Twitter feed and Facebook update, in radio/TV talk shows on cable, broadcast and satellite networks, in blog posts and letters to the editor.  Let calls overflow the capacity of the Capitol Switchboard.  We need a modernized immigration system that functions well; not one hampered by bureaucratic red tape and heavy-handed, guilty-until-proven-innocent enforcement. It must spur 21st Century innovation and job creation in the private sector. And it must be true to our bedrock values of family unity and refuge for the persecuted. From your mouths to the Senators' ears.

by Cyrus D. Mehta, ABIL Lawyer and Gary Endelman
The Insightful Immigration Blog

The Senate Immigration Bill, S. 744, entitled the Border Security, Economic Opportunity, and Immigration Modernization Act (BSEOIMA) has been applauded by immigration advocates for bringing much needed changes to the broken immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings,  among many other beneficial provisions. We refer readers to David Isaacson’s insightful blog post, SOME PRELIMINARY OBSERVATIONS REGARDING THE PROPOSED "BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION MODERNIZATION ACT.

Unfortunately, the H-1B visa, and accompanying L-1 visa proposals in BSEOIMA have not been received with the same jubilation as other parts of S. 744. The main concern on everyone’s mind is how the bill would deal with the shortage of H-1B visa numbers. For FY14, which commences on October 1, the H-1B cap was reached on April 5, 2013. S. 744 increases the H-1B cap undoubtedly, but this increase is accompanied by changes to the H-1B and L visa programs, which may make it more difficult to obtain H-1B and L visas quickly. A nonimmigrant visa ought to provide a quick pathway for a much needed worker to be employed in the US. This BSEOIMA fails to do.

BSEOIMA increases the H-1B ceiling to 110,000, which could go all the way up to 180,000.  However, any increase or decrease in H-1B visa numbers cannot be more than 10,000 visas from the previous year. The market based adjustments from year to year, according to the succinct BAL summary,  will be based on the number of H-1B visa petitions in excess of the cap and the average number of unemployed persons in “management, professional and related occupations” when compared to the previous year.  Moreover, BSEOIMA will also increase the Master’s cap from 20,000 to 25,000, but this new cap will only be applicable to those who have graduated from universities with advanced degrees in STEM (Science, Technology, Engineering and Math) fields. This would be a significant improvement from what we have today, which is a paltry 65,000 H-1B visas plus 20,000 for advanced degree holders, which under current law is not restricted to only STEM degree holders.

The Society of Human Resource Management found in a recent national survey that 2/3 (66%) of employers hiring  full-time staff experienced difficulty in recruiting scientists, engineers, and cutting-edge technical experts, an increase from 52% in 2011. Until this gap between demand and supply is closed, the US economy cannot reach its true potential. The current H-1B base cap dates back to 1990 when the American economy was only 1/3 its current size and when the importance of STEM talent was nowhere as evident as it is today. Our H-1B policy predates the full impact of the Internet and the transition to a knowledge based economy. While we welcome the concept of an H-1B cap escalator, it is overly complex and its lack of precision will not accurately predict or reflect the actual and ever-rising demand for world-class expertise. For this reason, Congress would be well-served to adopt the methodology set forth in the bipartisan Immigration Innovation (I-Squared) Act (S. 169) which simply and elegantly links H-1B annual adjustments to how fast the H cap had been reached that same year.

Unfortunately, in exchange for an increase in H-1B visas to 110,000, with further adjustments based on a market based adjustment formula, BSEOIMA imposes significant restrictions to accessing the H-1B visa for all employers, as well as L-1 visas for some employers,  which will adversely affect corporate immigration practice.

Unlike the 4 level wage system we have today, BSEOIMA will replace it with 3 wage levels, and all non-DOL wage surveys must be specifically sanctioned by DOL.  The new Level 1 wage shall be the mean of the lowest two thirds of wages surveyed but can’t be less than 80% of the mean of the wages surveyed. This is clearly wage inflation with a vengeance. Dependent employers will only be able to pay new Level 2 wages, which is the mean of all wages. The third level shall be the mean of the highest two thirds of wages surveyed.

All employers will have to now attest that they have recruited for the position before filing an H-1B petition via an internet posting for 30 days, including advising where applicants can apply for the job. Dependent employers will have to undergo additional recruitment steps. The employer must offer a job (not just decline to hire the H-1B beneficiary) to any US worker who applies and who is “equally or better qualified.”  One can imagine how this will be interpreted by the DOL when an employer takes the top graduate of Wharton in a Bachelor’s program and turns down a U.S. applicant with an MBA from the University of Podunk.   Or, a law firm employer offers a position to a JD from a national law school over someone with comparable grades and achievements from a local law school. Will an employer dare to take the chance that might not be viewed as legitimate by the DOL?

There is more. The period within which an H-1B complaint can be brought against the H-1B employer is lengthened from 12 to 24 months, even when DOL itself complains or when the source remains anonymous. This can also encourage malicious complaints from restrictionist organizations, and  is bound to result in many more H-1B investigations especially when the bill authorizes annual  H-1B compliance audits for any employer with more than 100 employees if more than 15% are in H-1B status. The advertisement must contain all requirements including the higher than market wage salary. The compelling rationale for all this is the obvious desire to discourage H1B sponsorship by making it more expensive, more invasive, and less concerned with protection of business norms.

Non-dependent employers will also be subject to the non-displacement attestations, which until now have only been applicable to dependent employers or willful violators. Employers will need to attest that they have and will not displace a US worker within the 90 day period before and after filing an H-1B visa petition, but they will not be subject to such a non-displacement attestation if the number of US workers employed in the same O*Net job zone as the H-1B worker have not decreased during the past one year ending on the date of the filing of the labor certification application. Dependent employers will be subject to a longer non-displacement period of 180 days, and they will not be able to take advantage of the non-reduction of workforce in the same job zone exception available to non-dependent employers.

We saw when similar recruitment and non-displacement attestations were imposed on certain financial institutions and other entities that were bailed out by the US government under the Troubled Asset Relief Program (TARP) that they stopped using the H-1B visa program and even rescinded offers to foreign MBAs who were graduating from top business schools.

BSEOIMA seems to abhor the notion of “outplacement” of H-1B workers and L-1 workers, even while assigning workers to third party client sites is part of the business model of certain industries such as IT consulting. Dependent employers may not “place, outsource, lease, or otherwise contract for services or placement of an H-1B nonimmigrant employee.” A non-dependent employer must pay $500 if “outplacing” an H-1B worker. This model has been readily embraced by American companies, and provides efficiency by allowing companies to utilize skilled IT resources whenever needed. Consumers benefit, and it also allows companies to hire US workers higher up in the food chain.

The definition of “Dependent Employer” will remain the same: 1) Employer with 25 or fewer full time employees who hire more than 7 H-1B nonimmigrants; 2) Employer with at least 26 but not more than 50 full time employees who hire more than 12 H-1B nonimmigrants; 3) Employer with at least 51 full time employees who hire at least 15% of H-1B nonimmigrants.

Moreover, BSEOIMA seeks to ultimately bar a category of so called “super dependent” H-1B or L-1 employers by FY 2017 from filing new H or L petitions if more than 50% of their workforce are in H-1B or L status and hire 50 or more employees. For the first time, there will be a restriction on L employment too as a result. There is a sliding scale for this over the next few years: (1) if the employer employs 50 or more employees, and there is no distinction between full or part-time, the number of H-1B and L-1B, but not L1A, employees together cannot exceed 75 % of the total number of employees for FY 2015; (2) 65 %of total number of employees for FY 2016 and (3) 50% of total number of employees after FY 2016 which starts on October 1, 2017 . This does not apply to universities or non-profit research centers.

The filing fees for the H-1B and L go way up in a clear effort to discourage such visa sponsorship.  For FY 2014-FY 2024, the H-1B and L filing fee will be $5000 for an employer that employs 50+ employees in the USA if more than 30% but less than 50% of such employees are in H or L status.  From FY 2014-FY 2017, the filing fee goes up to $10,000 per H-1B or  L petition if the employer employs 50+ employees, again no distinction between full or part time, if more than 50% but less than 75% of such employees are in H1B or L status.

BSEOIMA goes beyond the L-1 Visa Reform Act of 2004 which allowed outplacement of L-1B workers so long as the L1 beneficiary remained under the direction and control of the  petitioner. Here, even if this was the case, such secondment would be limited to an affiliate, subsidiary or parent of the L1 petitioner.  All L employers who place L-1s at third party sites are now subject to a displacement obligation of 90 days before and after the L petition was filed.  For a new office L, the L beneficiary could not have been the beneficiary of 2 or more L petitions in the immediately 2 preceding years. For the first time, BSEOIMA introduces an explicit provision for L investigations that can be based on anonymous sources. In addition, DOL shall conduct annual L compliance audits for each employer with more than 100 employees if more than 15% are in L status. Non-compliance with new L restrictions can lead to fines up to $2000 per violation and a 1 year debarment + an obligation to make the employee whole through payment of lost wages and benefits. A willful misrepresentation of a material fact on an L petition can result in $10,000 fine and 2 year debarment. The DHS Inspector General must prepare a report on fraud and abuse in Blanket L program within six months of enactment. The opponents of immigration have long sought to impose on the L-1 visa many of the same straightjacket restrictions that have suffocated the H-1B.  Now it seems they have a major victory.

While these provisions against dependent employers are designed to put certain industries out of business that rely on H-1B and L workers, BSEOIMA introduces the concept of “intending immigrant” which does provide some respite.  If an employer has an H-1B or L employee who is an “intending immigrant,” that worker is not counted in the employer’s dependency or “super dependency” calculation.  With respect to not counting an alien from the dependent calculation who is the subject of the labor certification, the employer has to qualify first as a "covered employer" who is an employer of an alien, which during the one year period that the employer filed a labor certification application for such alien, has filed I-140 petitions for not less than 90% of the total labor certifications filed during that one year period. However, labor certification applications pending for longer than 1 year may be treated for the calculation as if the employer filed an I-140 petition.

The purpose of this "covered employer" definition is to probably ensure that employers do not file labor certifications without pursuing permanent residency on behalf of their employees. In reality, most employers who take the trouble to file labor certifications will go ahead and file the I-140 petition within the 180 day expiration period. It is clear that Professor Ron Hira, a critic of the H-1B and L visa program, was engaging in sophistry in his testimony before the Senate committee when he said that it would be easy for employers to avoid becoming dependent employers through paper pushing!!

The question is what happens to the "covered employer" status if an I-140 petition (among the 90%) gets denied based on an ability to pay issue or a 3 year degree issue. All that the definition of "covered employer" requires is that the I-140s have been filed for no less than 90 percent of the aliens for whom a labor certification was filed during the 1 year period.

With respect to not counting an alien who is the beneficiary of a pending or approved I-140 petition from the dependency calculation, the employer does not have to establish that it is a "covered employer." A pending or approved I-140 petition on behalf of a foreign national will remove that person from the employer’s dependency calculation.

There is a possibility that an amendment might be proposed during the markup phase to remove the “intending immigrant” concept, and so every attempt must be made to preserve this concept in BSEOIMA, so as to give dependent employers some chance to legitimately do business in the US. H-4 spouses will be able to apply for work authorization, but only if the spouse is a national of a country that permits reciprocal employment. While H-4 spouses who are Indian nationals will benefit from this provision (as Indians have been most affected under the EB-2 and EB-3 backlogs), it is worth noting that India does not currently provide employment authorization to spouses of  those who hold an Indian employment visa. However, unlike the US with many nonimmigrant visa categories that authorize work, there is only one temporary employment visa category in India. The Indian employment visa does not parallel the H-1B visa in any way. It is difficult to understand why this proviso has been inserted in the bill when spouses of L-1 visa holders (as well as E and J-1 visas) can seek employment authorization without regard to whether the spouse’s country permits reciprocal employment.

Regardless of a few bad actors, there has been an unjustified anti-India sentiment in immigration policy for a few years. This is the genesis behind all the adverse provisions against H-1B dependent employers in BSEOIMA, who otherwise try very hard to comply with the existing complex rules in place.  This sentiment was reflected in the Neufeld memo that was specifically aimed against IT consulting, along with the jaundiced way that Indian equivalent degrees have been viewed by the USCIS. Then, even after an H-1B petition is approved, upon responding to a lengthy RFE and FDNS site visit, the visa applicant is delayed at the US consular post in India (although BSEOIMA brings back visa revalidation in the US for certain work visa categories). All this happened only since 2009 when all along before that there was no issue of H-1B workers being placed legitimately at third party sites, which is indeed how the business model works to the benefit of US businesses and consumers.

Clearly, the success of the Indian IT global model has led to a backlash in the same way that Japanese car makers were viewed in the late 1980s. The IT global giants along with the smaller IT firms have been "tainted" by the same brush. There is no doubt that corporations in the US and the western world rely on Indian IT, which keeps them competitive. Spurred on by Senators Durbin and Grassley, the architects of BSEOIMA have unwittingly prepared the way for a massive dislocation of the American economy which will no longer be able to benefit from the steady supply of world class talent that the Indian IT providers most directly harmed by this legislative vendetta have always supplied at prices that American business and its consumers could afford. What has gone unnoticed by the so-called Gang of 8 in the Senate is the fact that the ability of American companies to maintain their competitive edge has been due in no small measure, to the very Indian IT global model that BESEOIMA seeks to destroy.

One can also recall Senator Schumer's infamous slip of tongue when he referred to Indian IT companies as "chop shops" instead of job shops at the time Congress outrageously raised the filing fees for certain L-1 and H-1B employers (to fund a couple of drones on the Mexican border), as if job shops is not enough of a pejorative. Senator Durbin also falsely insinuated this week that highly regarded employees of companies like Infosys pay to come to the US. These sentiments will now become part of the law, and it is not hard to guess the senators who have inspired these provisions, further supported  by the diatribe of Professor Ron Hira, who spew outrageous falsehoods in the guise of academic scholarship. Perhaps, one can look at the other side of the picture and find out how the H-1B visa program has benefitted the US and even creates jobs. It is unfair to assume that an employer who depends on H-1B workers in engaging in fraud. Interestingly, under BSEOIMA even "non-Indian non-dependent non-fraudulent employers" will need to go through more bureaucratic red tape, and will have to actually offer the job to a qualified US worker (unlike a PERM where all that happens is that the application is not filed) before being able to file the H-1B petition. The provisions that were previously enacted to target dependent employers in 1998 have now been expanded to cover all employers.

Unfortunately, the H-1B provisions, in an otherwise good Senate immigration bill, reflect a complete lack of understanding of the role of globalization and free trade in services during the second decade of the 21st century, which can benefit the US, India and the world. We need to draw attention to this fact in the hope that these discriminatory provisions against Indian IT, which are also inconsistent with principles of free trade and in violation of GATS, can be eliminated.  Indeed, BSEOIMA has extended the additional recruitment attestations that have only applied to dependent employers to all employers, along with artificially forcing employers to pay higher than market wages for H-1B workers.

BSEOIMA seems to give more emphasis on green card sponsorship rather than prolonging the temporary visa status of foreign national workers. To some extent, this is a good thing. By allowing foreign nationals to obtain green cards, it gives them mobility and to not be bound to one employer for many years. There is also a good provision that allows an H-1B who has been terminated to be accorded a grace period of 60 days, and an application to extend, change or adjust status during that period shall be deemed to have been lawful H-1B status while that application was pending. Indeed, many employers may be able to avoid the H-1B process altogether by directly sponsoring STEM advanced degree students on an F-1 visa for a green card without even having to go through the labor certification process. BSEOIMA also allows F-1 students to have dual intent, and so their desire to obtain green cards will no longer impede their ability to obtain an F-1 visa at a US consular post overseas. PhDs, regardless of whether they got the degree from a US institution or not, can also avail of this fast track green card and they do not also need to have their PhDs in a STEM field. Still, not all employers can rely on PhDs and students in the US who graduate with STEM advanced degrees. They will need to rely on the H-1B visa, and to some extent on the L-1B visa, and BSEOIMA will clearly not quell the demand of US companies for IT services and expertise through consulting companies. It remains to be seen whether the H-1B and L provisions in BSEOIMA prove to be workable or not. Everyone thought that when the Labor Condition Application was introduced in the Immigration Act of 1990, that the H-1B visa would become unworkable. Yet, H-1Bs have continued to chug along for 22 years, and if the new provisions get enacted, it is hoped that the government agencies administering the new H and L visa programs will interpret the provisions in a way that will allow them to work.

BSEOIMA is a transformational document heralding a fundamental realignment of US immigration policy. The paradigm shifts from family ties to merit-based strategies designed to invigorate the economy. Before, it had been easier to come for temporary work reasons and difficult to stay permanently. Now just the reverse will be true. Years ago, the H-1B was a lightning rod for critics while the L-1 sailed on smoothly in calm seas. No longer. For the first time, the L and the H are fused in the minds of its critics. At a time when our permanent immigration model is more open to STEM talent as never before, our H and L policy reflect a pervasive insularity that will contradict our trade commitments, slow down our innovation, and increase the intrusiveness of government regulators as they audit the legitimacy of immigration sponsorship decisions by those American employers who seek to take advantage of this brave new world.  For this reason, while BSEOIMA has much to commend it, what it gives on the permanent side of the ledger, it takes away on the H and L side. This lack of internal consistency must be resolved before it is born.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Much has been written since April 17 when the bipartisan Gang of Eight senators introduced S. 744, a brobdingnagian immigration reform bill that overlays 844 pages of turgid text on top of the already gargantuan and complex Immigration and Nationality Act.  The Migration Policy Institute, the National Immigration Law Center, and the American Immigration Lawyers Association (AILA) have each offered a helpful analysis of the bill.  This legislative leviathan grew to 867 pages on April 30 with the substitution of a “managers’ amendment” (available here as revised and here as redlined, as well as here with AILA’s redlined section-by-section analysis released on May 1).  Although most of the media focus has homed in on border security and the seemingly IED-laden roadway to citizenship for undocumented immigrants, U.S. companies -- especially the General Counsel (GCs) who advise them -- are slated to be on the receiving end of shock and awe if the “Border Security, Economic Opportunity, and Immigration Modernization Act,” or BESSIE MAE, as wags like to call it, ever becomes law.

As I explained in a recent article (penned before the managers’ amendment), “Senate Immigration Reform Bill Offers Surprises Galore for Employers,” BESSIE MAE presents American companies with a slew of opportunities and burdens.  Consider just a few:

• The H-1B visa quota will rise from 65,00 to 110,000, with a phased escalation clause pushing the quota as high as 180,000 per fiscal year, based on employer demand and the unemployment rate for “management, professional and related occupations.” Yet this Faustian gift will cost employers dearly in pre-hiring recruitment, higher filing fees, increased record-keeping, expanded enforcement authority for the Labor Department, and greater potential fines and penalties. 
• Similarly, managers and executives who may or may not become L-1A intracompany transferees would be allowed to enter the U.S. as business visitors for up to 90 days “to oversee and observe the United States operations of their related companies, . . . [and]  [e]stablish strategic objectives when needed,” while “employees of multinational corporations [may] enter . . . to observe the operations of a related United States company and participate in select leadership and development training activities . . .” Yet in return, employers lose the free hand heretofore available to devise creative incentives and bonuses for their inbound expatriate employees who now, like their H-1B brothers and sisters, must be paid the " prevailing wage" under the watchful eyes of the Fraud Detection and National Security Directorate (FDNS) of U.S. Citizenship and Immigration Services.
• In like manner, employers would be given immunity (none dare call it "amnesty") if they maintain on their payrolls workers who are undocumented immigrants but who express the intention to apply for the new Registered Provisional Immigrant status. Yet, enrollment in a veritable E-Verify on steroids will become mandatory for all employers, and the Form I-9 (Employment Eligibility Verification) will continue to be required.   Worse yet, any new hires who fail to receive confirmation of employment eligibility from E-Verify on the first try must continue to be paid, trained and employed while they pursue a host of new administrative hearing and appeal rights of indeterminate length.

Proactive GCs of corporate America should therefore make sure that their companies are ready for the tsunami of change that will sweep over the enterprise if BESSIE MAE or any equally unreasonable facsimile thereof makes it into the statute books.

The old way of managing immigration, as a backwater area of law relegated to Procurement, Recruiting, Human Resources, and Payroll Administration, or -- worse yet --  to foreign nationals seeking work visas who are encouraged or allowed to find a low-cost immigration lawyer to "help" the company, will no longer do.   Years back, it was sufficient to consider adopting tips from such articles as, "A Three-Point Immigration Manifesto For Chief Legal Officers And Outside Counsel," and “Global Mobility Management—A Primer for Chief Legal Officers and HR Executives.” Times since then, however, have changed.

To best manage risk, exploit opportunities and control costs across the enterprise while squeezing the most value out of limited resources, GCs must adopt a comprehensive plan of immigration portfolio management, whose key components should address a variety of essential concerns:

• Immigration-customized technology and tools.  Immigration Tech tools should include integrated dashboards (developed, prepared and maintained by external immigration counsel and a client-dedicated project management expert at the law firm) with "Single Sign-On" capability and screen views customized to the specific but differing needs of in-house counsel, and all other essential stakeholders within the enterprise. Access would therefore be instantly available to:   
  • an online collaboration tool using secure FTP extranet technology to exchange and logically organize immigration work product, thereby dispensing with the need to search for on-the-fly emails. 
  • a robust immigration case management system listing case status and key expiration dates for all employees on work visas or pursuing green cards,
  • user-customizable and standard reports showing deviations from internal policies and service level agreements with outside immigration counsel,
  • legal matter management, E-billing and performance analytics on immigration benefits procurement and compliance defense,
  • an "E-Room" library that houses documents which FDNS or other immigration enforcement personnel might demand to see on short notice such as H-1B public access folders, individual and multi-slot Labor Condition Applications, petitions and applications submitted to immigration agencies, recruiting and advertising materials required for immigrant and nonimmigrant work visa eligibility, vendor agreements with IT and business consulting firms that employ their own foreign workers onsite at company locations, and posting and nondisplacement attestations, and 
  • a consulting hotline and an online consulting log which serves as a knowledge-management repository for all responses to varying fact patterns, FAQs, memorandums and other oral or written guidance provided to the corporate client over time, with links to the contact information of the lawyer providing the guidance so that there is easy followup with a subject matter expert who can provide any new updates or more nuanced responses. 
• Key Immigration Performance Indicators. Metrics would be based on real-time data derived from Human Resource Information Systems that are linked and updated bi-directionally for use by internal recruiters and hiring personnel, and the business's outside immigration lawyers.
• True Partnering with Outside Counsel.  "Partnering" is a meaningless buzzword in too many law firms' pitch kits -- one tossed at chief procurement officers who claim to want quality and strategic counsel but are only willing to pay for commoditized immigration legal services offered by the lowest bidder. Real partnering looks more like this: 
  • It begins with a convergence process in which only one or at most two firms are selected after a carefully conceived request-for-proposal process is concluded, a process in which immigration lawyers come into corporate headquarters not to brag about their talents, but instead model what it would be like to work side-by-side with them to achieve the company's business mission while minimizing risks and controlling wasteful practices. 
  • The chosen law firm(s) would invest time, money and resources into a long-term relationship, offering all of the integrated legal services required in the immigration arena -- not just Johnny and Jane One-Note visa and green card services, but scalable immigration benefits-procurement assistance,  interdisciplinary immigration-compliance defense, federal court litigation and appellate law services, tax advice, U.S. and international employment law representation and export control law guidance -- all under one roof.
  • Immigration counsel would meet regularly and ad hoc as needed to evaluate the final immigration reform legislation, advocate for employer-friendly rulemaking, and map out action plans and task owners so that the enterprise is poised to pounce upon immigration opportunities with training programs and internal open-house forums for foreign nationals and managers, prepare Congressional outreach and media strategies, and eliminate or minimize old and new compliance risks.  Also included in these meetings would be an annual "Client 101" orientation program taught by in-house counsel for the external team of immigration lawyers, paralegals, project managers and administrative staff to learn all about the company and its culture and a periodic Client/Law-Firm Summit.
  • Immigration counsel would also provide benchmarking opportunities to help develop best practices based on the experience and wisdom of comparable businesses in similar industries and share knowledge and strategic thinking from other industry contacts with in-house counsel.
• Services would utilize the best principles of legal process innovation. Six Sigma, Lean Services, Voice of the Client, Scorecards, collaborative process mapping, stakeholder satisfaction surveys and other innovative practices would be employed to manage immigration compliance risks, measure performance metrics, reduce errors, speed cycle time, minimize costs and waste, and make sure that the corporate client becomes, and remains, an "immigration friendly company" to facilitate the hiring and retention of best-in-class talent.

***

No longer on hearing the word "immigration" should GCs be made to suffer that all-too-familiar form of queasiness which arises when an "alien" substantive-law problem lands on his or her desk.  Inoculation with a healthy dose of immigration portfolio management will provide GCs with immunity from the worst that the likes of BESSIE MAE can try to inflict on them.  So there's no reason to toss one's most recent meal.  Just take a prescription for immigration portfolio management and contact the most qualified immigration counsel to be found.

by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

On April 25, 2013, the U.S. Court of Appeals for the Second Circuit released an amended opinion in Shabaj v. Holder, docket number 12-703.  The prior opinion in Shabaj was the subject of a previous post on this blog.  To summarize, Shabaj held that a claimed error by the USCIS Administrative Appeals Office (AAO) in analyzing whether an applicant for a waiver of inadmissibility under INA §212(i) had shown extreme hardship could not be reviewed by a district court, because the jurisdiction provided by 8 U.S.C. §1252(a)(2)(D) to review constitutional claims and questions of law is only available on a petition for review to a court of appeals.  (This is a very brief summary of a more complex issue; for additional details, readers are referred to the above-linked previous blog post.)

The only changes in the amended Shabaj opinion are in the footnotes, but one of those changes has particularly interesting implications.  Although the amended opinion adds a new footnote 3 addressing why a statutory reference to the Attorney General applies to the Secretary of Homeland Security (and makes a slight formatting change at footnote 2), the particularly interesting part is the change in what was formerly footnote 4 and is now footnote 5.

In the old footnote 4, the Court of Appeals sought to explain why Shabaj could not have simply filed a petition for review invoking its §1252(a)(2)(D) jurisdiction under his particular circumstances, but suggested that others under similar circumstances could do so:

As explained in my previous post on the original Shabaj opinion, the procedure for judicial review that this footnote seemed to point to would be interesting but not unprecedented:

In its amended opinion, however, the Court of Appeals has removed the language that was previously in footnote 4.  In its place, the Court of Appeals wrote in the new footnote 5:

The question that arises is whether this amendment of the Shabaj decision has any effect on the jurisdictional possibilities that may exist in the Second Circuit for judicial review of USCIS waiver determinations.

Certainly, the new Shabaj footnote 5 does not purport to preclude the sort of petition for review that the original Shabaj footnote 4 endorsed.  Rather, the Court of Appeals has explicitly chosen not to address the issue of whether such a petition for review is possible, while noting that the government, as one might expect, contends that it is not. Thus, it still remains possible for others, under appropriate circumstances as described in my previous blog post, to argue for judicial review of a USCIS determination that is in some sense either incorporated into an order of removal, as in Orquera, or constitutes a refusal to reopen an order of removal, such that the USCIS denial is “the functional equivalent of a removal order,” Kanacevic v. INS, 448 F.3d 129, 134-135 (2d Cir. 2006). The Court of Appeals would then need to face the issue that it avoided as unnecessary in its amended Shabaj opinion.

Also interestingly, the new footnote 5 does not preclude the possibility that Mr. Shabaj or someone else in a similar position could have reopened his removal proceedings, in the way that the old footnote 4 seemed to assert such reopening was necessarily impossible.  Assume, for example, that Mr. Shabaj or someone else who had entered under the Visa Waiver Program had not actually waived his right to review in the way that the statute and regulations suggest he should have been required to.  Like the petitioner in Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011), whom the Second Circuit held could not simply be assumed to have waived his rights to removal proceedings, such a petitioner would properly be able to attack his removal order despite his Visa Waiver Program entry.

Perhaps for this reason, the Second Circuit declined, in its amended opinion, to necessarily rule out the possibility of such judicial review; it said in the new footnote 5 merely that, regardless of whether or not Mr. Shabaj could have filed a petition for review directly with the Court of Appeals, he had not in fact done so.  While that might raise the question of whether Mr. Shabaj’s lawsuit in the district court should have been considered as a petition for review filed in the incorrect venue and transferable to the Court of Appeals in the interest of justice under 28 U.S.C. §1631, it is possible that such relief was not requested or considered, perhaps because the lawsuit evidently was not filed within 30 days of the final administrative order as a petition for review would need to have been (the original and amended opinions both indicate that Shabaj’s appeal to the USCIS AAO was dismissed on May 2, 2011, and his lawsuit filed on July 14, 2011).

Thus, while the amended Shabaj decision has deleted language which seemed to give the blessing of the Court of Appeals to a creative strategy for seeking judicial review of certain USCIS decisions, it has not precluded such a strategy.  In addition, it may implicitly have acknowledged that some Visa Waiver Program entrants, in circumstances similar to Mr. Shabaj’s, could in fact reopen their removal proceedings and seek relief in that way.

by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

As most readers of this blog are likely aware, earlier this week the U.S. Senate’s “Gang of 8” – that is, Senators Charles Schumer (D-NY), John McCain (R-AZ), Richard Durbin (D-IL), Lindsey Graham (R-SC), Robert Menendez (D-NJ), Marco Rubio (R-FL), Michael Bennet (D-CO), and Jeff Flake (R-AZ) –introduced a proposed comprehensive immigration reform bill.  A copy of the bill as introduced is available on Senator Schumer’s website.  Its short title is the “Border Security, Economic Opportunity, and Immigration Modernization Act”, and so I will refer to it in this blog as BSEOIMA, although that acronym is somewhat more difficult to pronounce than previous well-known immigration bills such as 1986’s IRCA and 1996’s IIRIRA.  (Personally I would tend to pronounce it “B’soyma”, although Angelo Paparelli reports that Dan Kowalski, Editor-in-Chief of Bender’s Immigration Bulletin, has dubbed the bill “BESSIE MAE”.)  Broadly speaking, it combines increased border security with a new “Registered Provisional Immigrant” (RPI) status available to much, but not all, of the current undocumented population – primarily those present in the United States since December 31, 2011 who lack any significant criminal record – and various provisions designed to handle the “future flow” of immigration somewhat differently than our current system, such as a merit-based system of awarding some immigrant visas to those who accumulate an appropriate number of “points” in a system reminiscent of that currently used in Canada.

The Immigration Impact blog of the American Immigration Council has already published some preliminary reactions to BSEOIMA, and AIC and the American Immigration Lawyers Association (AILA) have also released a detailed summary of the bill.  In this blog post, I do not claim to provide a comprehensive summary of the bill, which is after all 844 pages long, and which has already been summarized by AIC/AILA (and others as well).  Instead, I will simply highlight some of the portions of the bill that caught my attention on a first read-through, with citations to the page number of the introduced bill on which they appear.  Readers should keep in mind that this is a preliminary assessment of complex legislative language that may change in the future (assuming the bill passes at all), so it should not be taken as a precise description of the future final version of any provision; it is, so to speak, a first-draft reaction to the first draft of the bill.  Because this is an entirely subjective list of some provisions that happened to catch my attention, it is also naturally skewed to the sorts of provisions that were of interest to me as an attorney practicing immigration law; I do not mean to deprecate the significance of the substantial provisions for increased border security with which the bill begins, for example, but since I am not in the habit of advising people to enter the U.S. unlawfully or smuggle in others, they are of less direct relevance to my practice and thus attracted less of my initial attention.And this is not even a list of every single provision that caught my attention on a first read—such a list would be a bit too lengthy for a blog post. With those preliminaries out of the way, here are some of the provisions that were interesting to me and may be interesting to readers as well:

Nonimmigrants who are lawfully present according to DHS or DOS records will not be eligible for the new RPI status, even if they have violated status or been employed without authorization—apparently making the analysis under BSEOIMA different from the one that was used under IRCA to determine whether applicants were known to the government to be here unlawfully by the key date and thus eligible for legalization. Pages 64-65.  While nonimmigrants with a currently valid status as of the date of introduction of the bill are excluded from RPI status, however, if they have already been lawfully present for 10 years or finish accumulating that total period of consecutive lawful presence after the bill passes, they’ll be able to apply for LPR status under the new merit-based system, about which more below.

Expunged convictions don’t count for purposes of determining eligibility for RPI status, but otherwise any felony, an aggravated felony, or 3 misdemeanors will disqualify RPI applicants, except for convictions under state and local laws having immigration status/violations as essential elements—for example, some crimes created by Arizona’s recently infamous SB 1070.  Pages 61-66.

There is a limited discretionary waiver under which some people could be eligible for RPI status even after previous departure or removal, at pages 71-72.  While the language is complex, it appears that the waiver will be potentially available to certain “DREAMers” (those who would have been eligible for relief under the previously proposed DREAM Act that is in large part incorporated in BSEOIMA), spouses and children of U.S. citizens and LPRs, and parents of U.S. citizen or LPR children.

Employers will be able to continue employing people who they know are, or will be, RPI applicants, pending adjudication of the application for RPI status, without violating the INA.  Page 78.  This will help avoid the specter of employers being reluctant to assist with the RPI applications of their employees because, having come to know that their employee lacks valid immigration status authorizing employment, they would otherwise be supposed to fire them.

RPIs will not be able to be absent from the United States either for a continuous period of more than 180 days, or for more than 180 days in any calendar year, without extenuating circumstances; otherwise they will lose their status and not be able to adjust status to permanent residence.  Pages 89-90, 94-95.

While there are limited exceptions based on age and disability, most RPIs will need to show that they have been continuously employed or had resources above 125% of the poverty line, or have been full-time students, in order to adjust to LPR.  Pages 96-99.

The DREAM Act is present in modified form as proposed INA section 245D: the DREAMers will only need to be RPIs for 5 years before they can become LPRs, instead of the usual 10.  There can be a “streamlined procedure” for those who have been granted Deferred Action for Childhood Arrivals (DACA).  The DREAMers (including the DACA grantees) will be able to apply for naturalization as soon as they complete their 5 years of RPI and adjust to LPR (but not sooner).  Pages 110-116.

The “AGJobs” bill benefiting certain agricultural workers, which like the DREAM Act has been floating around for a number of years, also makes an appearance in BSEOIMA. Like DREAMers, AGJobs “blue card” holders will be able to adjust after 5 years under certain circumstances, not 10 years like other RPIs. See pages 150-255.

We learn on page 262 of BSEOIMA that while siblings of U.S. citizens and married sons and daughters over 31 would no longer be separate family preference categories, they would get points in the new merit-based system that will make up a substantial portion of future immigrant visa numbers.  Although the diversity lottery in its current form would be abolished, the preference for diversity in the current lottery system also lives on somewhat in the form of an award of points to people from countries from which fewer than 50,000 nationals were admitted in the previous 5 years.  (Page 263.)  You will also be able to get points in the new system for things like speaking English, being between the ages of 18 and 37 (you get the most points for being between 18 and 24), having specific types of employment, or even civic involvement.  See pages 260-265.

Beginning on October 1, 2014, people whose employment-based petitions and family-based petitions filed before the Act have been pending for more than 5 years will begin to become eligible for merit-based visas on that basis (although this eligibility will not be immediate for everyone affected, but will phase in over a 7-year period).  People who have been “lawfully present” for not less than 10 years will also be eligible for this non-points-based side of the merit-based visa system.  See pages 270-273.  RPIs will not be able to adjust status to LPR except under this second merit-based track, based on 10 years lawful presence—a provision which may hopefully be changed before the bill is finally enacted, since it seems unnecessarily cruel to prohibit, for example, an RPI who marries a U.S. citizen from becoming an LPR in the same way that any other lawful entrant who became a bona fide immediate relative of a U.S. citizen could adjust status under section 245(a) of the INA (even if they had, for example, overstayed a tourist admission).  Pages 108, 269-274.

Anyone, including RPIs and others, who was lawfully present and work-authorized for 10 years before becoming an LPR, will be able to naturalize 3 years after becoming an LPR instead of 5.  Pages 109-110.

BSEOIMA will recapture previously unused visa numbers from past fiscal years, so that should also reduce the backlog of people awaiting immigrant visa numbers. Pages 276-279.

Spouses and children of Lawful Permanent Residents (LPRs) will become “immediate relatives” not subject to a visa number limit. Pages 280-281.

The BIA’s highly dubious decision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), rejecting automatic conversion and retention of priority dates under the Child Status Protection Act, would be overturned legislatively by a provision of BSEOIMA making even clearer how automatic conversion is supposed to work.  Pages 287-288.

Priority dates from any approvable-when-filed immigrant visa petition will be transferable to any other petition, regardless of category.  Page 288.

The numerical per-country limitations will be raised to 15% for family-based cases and eliminated for employment-based cases, which is good news for Indian and Chinese nationals who currently face substantial employment-based backlogs, and also (to a somewhat lesser extent) good news for Mexican and Phillipine nationals who currently face substantial family-based backlogs. Pages 294-296.

Visa number usage calculations would no longer include employment-based derivatives, the employment-based first preference (all three subcategories), aliens with a doctorate, or former J nonimmigrant physicians who have completed their 2-year foreign residence requirement under section 212(e) of the INA or obtained a waiver thereof.  Pages 299-303.  STEM graduates with a master’s degree or higher (as a practical matter this just means masters since doctorates are separately exempt) would be able to be exempt from the visa number limits if they have a job offer from a US employer and earned their degree within the 5 years preceding the petition filed for them.  These STEM immigrants would not require labor certification.  Pages 304-312.

V visas will be extended to cover family preference immigrants who have had petitions filed more than 3 years ago, but siblings and married children over 31 (whose family preferences are anyway being phased out under BSEOIMA) won’t get work authorization if they come on V visas, and will only be allowed to be present for 60 days per fiscal year.  The unmarried sons and daughters, and married ones under 31, will get work authorization with their V visas and will be able to stay on a longer-term basis.  Pages 313-317.  So for the family preferences that will continue to exist, this is like the old V visa; for siblings and over-31 married sons and daughters, it’s more like a dual-intent B-2 tourist visa.

The cutoff for stepchildren will be parental marriage by 21 years of age, consistent with the other “child” definitions of most of the rest of the INA, instead of the current age-18 cutoff.  Page 322.

The general cutoff age for adoptions valid under the INA will be extended from 16 to 18. Pages 322-323.

Immigration Judges and DHS would gain new discretionary authority to terminate removal proceedings or admit someone to the U.S. if removal or refusal of admission is against the public interest or would result in hardship to certain U.S. citizen or LPR immediate family members, although this new authority would not apply in the case of certain criminal removability grounds and certain other grounds of removability.  Pages 328-331.

H nonimmigrant petition beneficiaries who entered the US before age 16 and had a baccalaureate or higher degree from a US institution would be exempt from the unlawful presence bars (that is, the 3- and 10-year bars). The unlawful-presence waiver for others, under section 212(a)(9)(B)(v) of the INA, would be extended to cover hardship to a U.S. citizen or LPR spouse, son, daughter, or parent.  Pages 331-332.

J-2 spouses and children of J-1 exchange visitors would not be subject to the INA 212(e) foreign-residence requirement.  Also, physician training even under a status such as a J-1, which ordinarily requires a foreign residence which one has no intention of abandoning, would be dual-intent (that is, would not require such a foreign residence). Pages 367-370.

The exemptions from the English and civics testing requirements for naturalization in the case of certain older immigrants would be expanded somewhat.  Those who are over 65, and have lived in the US as an LPR for 5 years, would be exempt from the English/civics tests.  The limited exemption from the English language requirement, under which the applicant is still required to take the U.S. civics test but can do so in their native language, would apply with 50 years of age plus 20 years as an LPR, 55 years of age plus 15 years as an LPR, or 60 years of age plus 10 years as an LPR.  For those 60 years of age or older who had been LPRs for 10 years, the civics-test requirement could be waived on a case-by-case basis.  Pages 393-394.

The one-year filing deadline for asylum claims would be eliminated, and people who have been granted withholding of removal but denied asylum because of the one-year deadline would be allowed to reopen their cases. Page 552.

Over the next three fiscal years, there would be 75 new Immigration Judges appointed each fiscal year, for a total of 225, in an effort to reduce the backlog of immigration court cases.  Pages 566-567.

H-4 spouses will be employment authorized so long as they are from a country that grants reciprocal benefits to U.S. citizens. Pages 663-664.

H-1B nonimmigrants whose employment terminates will have a 60-day grace period, and will also be considered to be maintaining H-1B status during the pendency of “a petition to extend, change, or adjust their status” that is filed during such 60-day grace period. Some low-risk H-1B nonimmigrants, as well as A, E, G, (other) H, I, L, N, O, P, R, or W nonimmigrants, can have their visas renewed in the United States at the discretion of DOS.  Pages 664-667.

F-1 student status will be dual-intent for a bachelor’s degree or above: that is, students applying for visas to study in bachelor’s degree programs, doctoral programs and so on will not need to show intent to return to their home country afterwards, but can plan to remain in the United States and put their valuable knowledge to use here.  Pages 725-727.

E-4 nonimmigrant visas, which would function like the current E-3 visas available to Australian nationals working in a specialty occupation, will be created for South Korea and other countries with which we have free trade agreements as recognized by DHS with the concurrence of DOS and the US Trade Representative.  There is a limit of 5,000 E-4s per sending country, which does not include derivative spouses and children. Pages 732-733.

There will be E-3 visas created for Irish nationals which only require a high school education or at least 2 years of work experience in an occupation requiring at least 2 years of training or experience (a la the current diversity visa standard).  Page 734.

O-1s will get portability between employers like what H-1Bs have now.  Pages 736-737.

Nonimmigrants with a pending application for extension of stay and related work authorization are authorized to continue employment until the application is adjudicated (as opposed to the current limited regulatory extension of employment authorization). Page 738.

Canadians over age 55 will be allowed to come as B-2 visitors for up to a 240-day period out of any 365 days, and maintain a home here, as long as they also have one in Canada.  Pages 742-744.

Retirees over 55 will be able to get a new Y visa, renewable in 3-year increments, if they use at least $500,000 to purchase one or more residences in the US which sold for more than 100% of the most recent appraised value (per their local property assessor), reside here for more than 180 days per year, and meet certain other financial requirements.  Pages 744-746.

A limited number of new W nonimmigrant visas will be available for workers in O*Net Job Zone 1, 2, and 3 occupations, but they will not be available for  higher job zones (requiring more than 2 years of preparation) or positions requiring a bachelor’s degree or involving “computer operation, computer programming, or computer repair”.  Pages 776-778, 803-804.

W status is for an initial term of 3 years, renewable for additional 3-year periods.  You have to first apply at a consular post abroad to be designated a “certified alien”.  If you are unemployed for more than 60 days, you have to leave. You can only work for a registered employer, and they have to first carry out recruitment for their desired registered position and fail to find a “qualified United States worker . . . who is ready, willing and able to fill such position”.  The recruitment is reminiscent of PERM recruitment for professional occupations, except that a “U.S. worker” would be defined more broadly than under PERM, to include anyone with unrestricted work authorization, rather than only U.S. citizens, LPRs, asylees, refugees, and temporary residents such as RPIs or their IRCA equivalent.  Pages 785-786, 789-804.

The registered W-visa position continues to be registered if the employer has filed an I-140 petition for the W worker by the end of the 3-year period.  It will cease being so if the petition is approved or denied, or the employment of the worker is terminated. Pages 805-806.  This raises the question of what happens if the petition is approved, but the priority date is not current—is the worker then stuck in limbo?  That may be an unintended flaw in the legislation that can be fixed as the bill moves forward.

W visas are, at least, dual-intent, page 828, so it isn’t a problem that the W worker is anticipating such a petition being filed for him or her.  But, W nonimmigrants will not be able to take advantage of the prong of the merits-based visa system that will allow others to become LPRs after being in lawful status for 10 years.  Page 271.  This, too, is an anomaly that may hopefully be fixed as the bill moves forward—why should W nonimmigrants be treated less favorably than absolutely everyone else who is lawfully present?

The W nonimmigrant may terminate his employment for any reason and take up employment with another registered employer in another registered position.  Page 819.

There will be new X nonimmigrant visas, and a new immigrant visa program, for qualified entrepeneurs.  The qualifications have to do with number of jobs created, financing devoted to your company by qualified venture capitalists etc., and/or your company’s revenue.  You will need to maintain nonimmigrant status for at least two years before you can petition as an entrepreneur immigrant (although not necessarily as an X nonimmigrant).  Pages 828-844.

And thus ends this first list of some highlightsof BSEOIMA.  Watch this space for additional blogging about BSEOIMA either from this author or from others at Cyrus D. Mehta and Associates, PLLC…

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The usual xenophobic suspects made the usual noises after the tragic events in Boston last week.  Perhaps the most premature outcry came from electrified-border-fence proponent, Rep. Steve King, Republican from Iowa, who a day after the marathon explosions linked a report (ultimately untrue) that a Saudi national had planted the bombs with King's mission to stop comprehensive immigration reform (CIR):

Another occurred on Reddit, where an amateur sleuth named Pizzaman along with multiple Reddit contributors noted the similarity to the photos of Suspect #2 (Dzhokhar Tsarnaev) and a missing Brown University student of Indian descent, Sunil Tripathi, whose whereabouts, sadly, remain unknown. (Reddit's moderator has since apologized for this misinformation disaster to the Tripathi family (who are as American as you and I.) 

Still another erupted, quite expectedly, from Ann Coulter's Twitter feed after the death of Suspect #1 (Tamerlan Tsarnaev) who mocked G8 member, Sen. Marco Rubio: "It's too bad Suspect # 1 won't be able to be legalized by Marco Rubio, now."

Similarly, long-time jingoist, Pat Buchanan suggested three days after the bombing that the focus should only be on border security.  Apparently forgetting that the Brothers Tsarnaev entered the U.S. legally, with the older having become a permanent resident and the younger a citizen, Buchanan slammed undocumented immigrants who aspire to become Americans:

Fortunately, CIR proponents on the right and left in Congress and elsewhere gave forth with rapid responses:

• Republican point man on immigration in the House, Rep. Mario Diaz-Balart disagreed with Sen. Grassley: "[E]very crime that is committed right now is under the current immigration system. So what does that lead me to believe? We need to fix the current immigration system, if in fact there is any connection between immigration at all."
• A spokesman for Sen. Marco Rubio (R. FL) issued this statement:  “There are legitimate policy questions to ask and answer about what role our immigration system played, if any, in what happened . . . Regardless of the circumstances in Boston, immigration reform that strengthens our borders and gives us a better accounting of who is in our country and why will improve our national security. Americans will reject any attempt to tie the losers responsible for the attacks in Boston with the millions of law-abiding immigrants currently living in the US and those hoping to immigrate here in the future.”
• Republican Senators John McCain and Lindsey Graham released a joint statement: “Some have already suggested that the circumstances of this terrible tragedy are justification for delaying or stopping entirely the effort. . . In fact, the opposite is true: Immigration reform will strengthen our nation’s security by helping us identify exactly who has entered our country and who has left.”
• Democrats, Chuck Schumer and Dick Durbin, also rejected the flawed reasoning which would link CIR to the bombings.  Sen. Schumer warned against the temptation to "“jump to conclusions” and “conflate” the Boston tragedy with immigration reform. Sen. Durbin noted that CIR would enhance our security: "[E]veryone, the 11 million people who were basically living in the shadows in America, [has] to come forward, register with the government, go through a criminal background check. That will make us safer.”  I made the same point when the Christmas-time underwear bomber succeeded in nothing more than scorching his private parts. See "Using Immigration to Stem the Terror Threat," (Dec. 30, 2009).
• The New York Times Editorial Board observed that CIR's opponents are desperate and that CIR would make finding wrongdoers easier: "Until the bombing came along, the antis were running out of arguments. They cannot rail against 'illegals,' since the bill is all about making things legal and upright, with registration, fines and fees. They cannot argue seriously that reform is bad for business: turning a shadow population of anonymous, underpaid laborers into on-the-books employees and taxpayers, with papers and workplace protections, will only help the economy grow. About all they have left is scary aliens. . . .There is a better way to be safer: pass an immigration bill. If terrorists, drug traffickers and gangbangers are sharp needles in the immigrant haystack, then shrink the haystack. Get 11 million people on the books. Find out who they are."
• Matthew Iglesias of Slate suggested seemingly counterintuitive but spot-on points that doing nothing will only encourage illegal immigration and let more terrorists and killers in and that the proposed 20,000-to-200,000 W visas for lesser-skilled workers likewise may be insufficient to stem illegal border crossings -- the precise point I made on April 18 to Abigail Rubenstein of Law360 Employment ("[That] the U.S. Chamber and the AFL-CIO reached a consensus on a lesser-skilled worker visa is wonderful, but the numbers make the program illusory").
• The General Counsel of the American Immigration Lawyers Association, David Leopold, persuasively explained, in essence, that immigration adjudicators are not soothsayers and that no one can foresee how an immigrant's life will turn, as reported in The Atlantic: "At the time that the Tsarnaevs applied for asylum, Tamerlan and Dzhokhar were very young. There was almost certainly nothing in their background that would have raised any red flags; apparently, there was nothing in the father's either. Here, Leopold made a key point: 'You can't predict future behavior.' For any democratic country that wants to participate in international society, Leopold pointed out, you have to assume some level of risk. Despite that, 'the systems they have in place,' meaning those security screenings, are 'doing the job.'"

Despite CIR proponents' quick retorts, the Boston bombings will likely make enactment all the more difficult.  Unlike an esteemed colleague who predicts a less than 50% chance, I'm still optimistic that CIR will be enacted.  If anything, Boston made the price of doing nothing simply too high.  Still, with background checks on gun sales a non-starter in the Senate despite 90% support among the American people, nothing can be taken for granted.

Here's what CIR's proponents must do now:

•  Urge the Senate to adjust the balance of funding in the Senate proposal, the "Border Security, Economic Opportunity, and Immigration Modernization Act’’ (or, "BESSIE MAE," as a prominent immigration editor has dubbed it) between border security (proposed at an overly generous and likely somewhat wasteful $6.5 billion) and the measly, wholly inadequate amount ($10 million) authorized for the integration of immigrants into American society. Whenever a refugee or any other immigrant comes to America, we want to provide the environment to prosper like Google founder Sergey Brin, a refugee from the Soviet Union, and not turn sociopathic as apparently happened with bombing suspect Dzhokhar Tsarnaev.  Meantime, until CIR is passed, kudos to U.S. Citizenship and Immigration Services for its recently announced Citizenship and Integration Grant Program, which will offer almost $10 million in funding during the grant period.
• Remind Republicans that the November 2012 election was a watershed. Republicans will continue to be the party of old white men, unless they take the politically smart and courageous act to pass CIR. Doing nothing is not an option if the GOP is to survive.

• Point to history.  We didn't stop immigration after the Puritans (themselves religious refugees) conducted their deadly Salem Witch Trials. Indeed, had America closed the door to English refugees, there'd be far fewer Anglos who oppose CIR.
• Make the point that Bostonians and the police got it right. Show that the post-bombing resilient spirit of Boston, and the close collaboration of federal and state law enforcement personnel (who cooperated superbly in speedily identifying and neutralizing the suspects), demonstrate that we've grown up as a country and a government since 9/11.  No virulent backlash against foreigners has sprung up since Monday's bombing, save for the vicious hate spewing from a few, notably, Fox News contributor Erik Rush, who tweeted "Let's kill all of them (Muslims)" and then backed down quickly after he was confronted, claiming that he was merely engaging in sarcasm.  Here, unlike 9/11 there was no inter-agency withholding of information and no governmental failure to connect the dots.  Indeed, the immigration system, insofar as it was involved, worked, given that USCIS held off on the naturalization application of Tamerlan Tsarnaev based on information derived from a prior FBI investigation of Tamerlan.
• Make sure that CIR clearly puts the burden on the immigration agencies to publish implementing regulations on strict deadlines or face a loss of funding, and that Congress conducts regular public oversight hearings after enactment during the implementation phase.  If the events of last week proved anything -- no, not the bombing, but rather the Texas fertilizer plant explosion that killed at least 14 people -- it is that government agencies must be held accountable and be funded properly (see my first bullet above about rational allocation of immigration budgets). User fee funding as the primary financial source for CIR implementation, which the G8s' proposal envisions, simply won't do.

The last time America was hit on its soil -- September 11, 2001 -- a different, far more modest immigration reform, known as Section 245(i), fell victim to the understandable Congressional blowback, even though that provision would have helped numerous undocumented immigrants who had nothing to do with terrorism.  Well that was then.  This time it's different.  America has matured.  CIR will pass, unless its supporters fail at the ground game of persuasively mobilizing public opinion and holding our legislators' feet to the fire.  Let's not get all weak-kneed and wobbly when vigilance and community organizing like never before is what's required.  And we should recognize that eight-year-old bombing victim, Martin Richards, could just as well have been describing why we need immigration reform when he wrote these words on his poster:  "Let's stop hurting people. Peace."

Charles Kuck, ABIL President
Musings on Immigration

Everyone has heard of the new Senate Immigration bill, the Border Security, Economic Opportunity, Immigration Modernization Act of 2013 (BSEOIMA), proposed by the bi-partisan Gang of 8.  The key to remember is that this is a proposal, NOT a law. Nothing has changed yet.  Our current immigration laws, as bad as they are, are still in place.  There is no need to run out and hire an attorney, there is no one to pay to work on a case under this bill, and there is no need to panic about your qualifications. Before BSEOIMA becomes law there will be many changes, some good some bad, and the only law that matters is that one that ends up on the President’s desk for signature.  That said, let’s look at some key points of BSEOIMA.

First, everyone has focused on the newly proposed Registered Provisional Immigrant (RPI) status for undocumented and overstayed immigrants. RPI is a 10 year path to permanent residence that comes with interim work permits and travel permission, but with a $2,000 fine, regular filing fees (probably at least $1,000), the need to learn English and pass a civics test, have no felonies and maximum three misdemeanors and a requirement that ALL back taxes are paid!

The take away:  to get ready for reform, have your friends and family who might apply for RPI save their money, meet with accountants to file and/or fix back taxes (at least 3 years and possibly more), see an experienced immigration defense attorney, and learn English!

Second, and possibly more important than the RPI status, are the substantial modifications to our current legal immigration system, including a new “start up” visas, a counting of only principal applicants and not family toward the total number of immigrant visa numbers, an increase in business immigration numbers, an elimination of the diversity lottery, and many other good immigration changes that help legal immigrants immigrate faster to the US.  There is a trade off of family immigration numbers with the elimination of the brother and sister category, and perhaps the married children of citizen category.  But it is not an immediate elimination.  The key is EVERYONE in the “line” for legal immigration will obtain permanent residence before anyone in RPI status. 

The take away:  file applications for your family NOW if they qualify under any category, even if the “line” appears long.  It will be a lot shorter than RPI!

Third, there are over 400 different new waivers in this bill.  BSEOIMA includes forgiveness to people with deportation orders, permission to return to the US if previously deported, lowered standards for waivers, new waivers for false claims to citizenship, and many other positive and necessary modifications to our overly stringent immigration laws.

The take away:  if you or your relative have deportation orders, or have been deported, meet with an experienced immigration attorney, get your immigration files, and plan for reform now.

Reform will not happen for many months, but WE have to make it happen.  Call your Senators and Congressman today (and tomorrow) at 202-224-3121 and insist that they support Immigration Reform!

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

When two parties are in a personal dispute, and one of them is not a US citizen,  it is often tempting to use the immigration system to seek a remedy. For instance, the desire to see someone you are feuding with get deported from the United States may be tempting. However, the immigration system may not be the best forum to settle personal scores. If two spouses are in marital discord, the spouse who wishes to seek a remedy can resort to a family court to seek a separation rather than manipulate the immigration system to dump the foreign national spouse. The complaining spouse may also press criminal charges against the other spouse in the event that there are allegations of physical abuse.  But relying on the immigration system, when there  are clearly other avenues to seek redress, may likely backfire, especially if the claim is not found to be credible,  and the non-citizen you wish to see deported may still end up with a green card.

This is what happened in a case our firm handled on behalf of a foreign national spouse who was in removal proceedings. The unpublished decision of Immigration Judge McManus in New York Immigration Court where he was ultimately vindicated and victorious,  Matter of X (November 2012), can be found on LexisNexis Immigration Communities.

The foreign national spouse, the Respondent in the removal proceeding,  had married a US citizen in India through an arranged marriage in late 2006, which based on the record and voluminous evidence was undoubtedly bona fide and celebrated with much pomp. After the Respondent received an immigrant visa at the US Embassy, based on the US citizen spouse filing an I-130 petition, they travelled back to the United States in July 2007. The Respondent was refused admission at the airport when his wife alerted Customs and Border Protection officials that he married her solely for the green card, and that he had physically abused her. After being detained by the CBP for one day in the airport, he was denied admission as a lawful permanent resident and further paroled into the country for deferred inspection. Three days later, his spouse withdrew the I-130 petition she had filed on behalf of the respondent. After over two years, Respondent was served with a Notice to Appear in 2009 charging him with removability under INA § 212(a)(7)(A)(I)(i) as an alien not in possession of a valid entry document.

The first  issue in this case was whether the Respondent who was issued an immigrant visa could be admitted even though his US citizen spouse indicated at the airport that she wished to withdraw the I-130 petition, which she did three days later. Alternatively, could the Respondent be eligible for a waiver under INA section 212(k)?

With respect to the first issue, he IJ denied our motion to terminate removal proceedings. Even though former INA § 205 required the revocation of the petition to be communicated to the beneficiary before he commenced his journey to the US, it was amended in 2004, and new §205 did not contain this limitation. Under new § INA 205, an I-130 petition can be revoked at any time for good and sufficient cause, and the revocation shall be effective as of the date of the approval of the petition. While we were aware of the change in the statute, we pointed out that the government had not amended the regulation at 8 CFR § 205.1, which still contained the limiting language of the old statute. We argued that by not rescinding the regulation, the government still intended to interpret new § 205 in accordance with the way it was interpreted prior to the amendment. The Court held that when there is a conflict between a statute and a regulation, the amended statute trumps the regulation by citing K Mart Corp v. Cartier, Inc., 486 U.S. 281, 291 (1988). The Court also rejected our related argument that the Respondent should have been found to be admissible, notwithstanding the withdrawal of the I-130 petition, as he still had a valid immigrant visa issued  by the State Department, which had not been revoked.

With respect to seeking a waiver under INA §212(k), the IJ found  the Respondent to be eligible for the  waiver as he  was unaware of the ground of inadmissibility before he embarked upon his journey to the US.

INA §212(k) provides, as follows:

This case should be contrasted with Matter of Aurelio, 19 I&N Dec. 458 (BIA 1987), which is controlling. In Aurelio, the petitioner’s death resulting in the revocation of the I-130 petition did not entitle the respondent in that case to a 212(k) waiver  as the respondent should have known about the inadmissibility arising out of the  death of her father one year prior to her departure The IJ found in this case, unlike in Aurelio,  that Respondent could not have possibly known that his spouse would revoke the I-130 petition three days after his arrival in the US. Respondent was eager to embark on a new life in the US with his spouse and could not have known of the steps she was planning to take to withdraw the I-130 petition.

Although the DHS attorney vigorously sought to pretermit Respondent’s motion to seek a 212(k) waiver on the ground that he was not in possession of an immigrant visa, the IJ agreed with our contention that “the invalidity of the visa..is the reason a waiver is required, not a reason the waiver cannot be granted.” See also Kyong Ho Shin v. Holder, 607 F.3d 1213 (9th Cir. 2010) (“By definition, §212(k) refers to visas that are invalid in nature – otherwise, the applicant would not be seeking a waiver of inadmissibility in the first place”). The IJ also soundly rejected the government’s claim that Respondent ought to have foreseen his potential inadmissibility as he was experiencing difficulties in the marriage and could have expected his wife to level allegations against him upon his arrival in the US. The Court held, “[S]imply because there were some problems in the marriage, which is typical of most couples, does not mean that Respondent should have known that his wife would withdraw her  support for Respondent’s visa application immediately upon arrival in the United States.”

Moreover, Respondent also merited a favorable exercise of discretion as the IJ credited Respondent's detailed testimony, along with the testimony of his sister and uncle,  that he did not abuse his spouse in India, and agreed that several allegations made against Respondent at the airport and elsewhere may not have been truthful. For instance, one of the allegations by the spouse was that Respondent beat her up on the plane, which the Court thought found “unlikely that such a physical altercation would have  gone unnoticed, especially in light of evidence in the record indicating that such behavior is taken extremely seriously by airlines.” We provided evidence of how in a post September 11 world, such incidents could not possibly go unnoticed.  Another allegation that Respondent was  carrying drugs on his person while entering the country was also proved to be false as there was no indication, especially since he had been searched by the CBP, upon his arrival in the country. The allegation that the wife was kept captive in India was also disproved with credible accounts that she went out to Bollywood movies, visited relatives (including relatives in other Indian cities), and religious places on a regular basis.

The decision concludes as follows, “While the Court cannot know why Ms. [redacted] took such dramatic steps to withdraw the I-130 petition that she filed on Respondent’s behalf, the Court is troubled by the seemingly false statements made by Ms. [redacted] to various immigration officials, and agrees with Respondent’s counsel that it was improper for her to attempt to manipulate the immigration process in the manner that she did.”

The government doggedly pursued the case for over five years. Responded was denied admission in 2007 upon his arrival in the US and paroled for two years. After unsuccessfully convincing the government to admit him, in 2009, the government instead initiated removal proceedings against Respondent,  and the case dragged on for another three and a half years in Immigration Court, which included several hearings and motions. After the IJ issued the decision granting the Respondent a waiver under §212(k) and admitting him as a lawful permanent resident in late November 2012, the government did not appeal the decision within the 30 day period. To top up the hard fought victory in Immigration Court,  Respondent very recently received his actual green card in the mail!