Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Congress Adjourns, Immigration Overhaul Stalled; J-1 Physicians, Nurses, and Athletes Get Relief
The 109th Congress adjourned on December 9, 2006 without passing significant immigration legislation, despite last minute speculation that a stand-alone bill addressing H-1B and employment-based visas might be enacted. The only bright spots were last minute visa relief for foreign physicians and nurses who work in medically underserved areas and for P-1 athletes. Just before adjourning, Congress passed a two year extension of the "Conrad 30" J-1 Waiver program, which permits state Departments of Health to facilitate waivers for the two-year home country rule for certain J-1 physicians who commit to working for three years in medically underserved communities. (See our article on how to obtain waivers of the two-year foreign residence requirements.) Congress also extended for three years a program that provides for up to 500 H-1C visas for foreign nurses who will work in underserved areas. Congress also passed a bill that enlarges the scope of P-1 nonimmigrant visas by eliminating the requirement that P-1 visa holders perform at an internationally recognized level. President Bush is expected to sign these bills into law.
Immigration law and policy experts agree that the stage remains set for renewed, perhaps more modest, immigration legislative efforts when Congress returns on January 4, 2007. Although the initial agenda announced by the incoming House Democratic leadership - its populist "First 100 Hours" issue list - suggest that next year Congress may be more willing to address the myriad of social and economic issues that, in the past, have falsely been linked to immigrants, immigration reform is not listed as a top priority. While the first order of business for the new Congress will be to look at issues related to the war in Iraq and social and economic issues, the new Democratic leadership is saying that immigration reform will not be ignored, even though it remains an intensely complicated issue with many, many diverse interest groups weighing in. The Chamber of Commerce and the American Association of Manufacturers, for example, still are consistently calling for more H-1B and employment-based immigrant visas, while trade associations that represent the interests of engineering professionals as well as other interest groups are vocally against it. Organized labor is split on immigration too, with the AFL-CIO and the Service Employees International Union (SEIU) representing the two differing camps. SEIU, whose ranks include many immigrants and undocumented workers, have supported the comprehensive immigration reform passed by the Senate (S. 2611), including the bill's expansive guest worker and earned legalization programs. The AFL-CIO, however, and numerous community-based organizations, view temporary workers as a threat to jobs and higher wages while the National Immigration Forum and the National Council of La Raza have been willing to accept guest workers as a trade off for earned legalization.
The big questions are: will the new Congress tackle immigration reform in a piecemeal fashion or comprehensively, and what is the relationship between immigration legislation and the fast approaching 2008 elections?
Piecemeal legislation seems more likely. Most agree that the lynchpins of the Senate's previously adopted comprehensive immigration reform package - a guest worker program and earned legalization, coupled with stricter enforcement - is too controversial for enactment with the 2008 elections already on Washington's mind. It seems that more discrete, stand-alone legislation addressing finite groups of foreign nationals, and especially those initiatives that directly impact our nation's economy, are most likely to be enacted. Last session's SKIL (Securing Knowledge, Innovation, and Leadership) Bill, which carved out relief for H-1B professional and employment-based visa applicants, and the so-called AgJobs Bill, are the best examples. (See May and July/August 2006 issues of Immigration News & Analysis.) In addition, thousands of Central Americans who have been working for five years in temporary protected status also are good candidates for early legislative relief. Other areas crying for much needed reform - and perhaps less controversial and less economically significant - include naturalization and relief for certain high achieving undocumented students through legislation known as the Dream Act.
Meanwhile, the demand for employment-based visas and resultant backlogs continue to escalate, especially among the lesser skilled "other worker" visa category. In the family-based categories, the State Department's Visa Office reports heavy visa demand with no relief in sight for certain family members of Mexican and Philippine nationals. As the waits for relatives in the Mexico and the Philippines categories continue to increase - upwards of 10, 12 and even 22 years - more and more Mexicans and Filipinos, who are eligible for visas as family members, must apply for employment-based immigrant visas or face lifelong, untenable backlogs. See the latest Visa Bulletin.
Either way, most agree that immigration legislation must be passed within the next year, or it must wait until after the 2008 elections. Senator John McCain (R-AZ), the main sponsor with Senator Edward Kennedy (D-MA) of the comprehensive reform bill that passed the Senate a few months ago, is a leading contender for the Republican Presidential nomination, and this fact will likely have a direct bearing on the type of immigration legislation enacted in this Congress, if any is enacted at all.
A new Congress means that all bills filed by the old Congress are now dead, and must be reintroduced and assigned new Senate (S.) and House (H.R.) bill numbers in the 110th Congress. We will be monitoring and analyzing new legislative developments as they occur. And, we urge all concerned with these issues to make their views known to their Senators and Representative.
Supreme Court Rules for Thousands Deportedt
The Supreme Court has effectively concluded that thousands of non-citizens have been deported in error, and that the Government may no longer characterize certain offenses as aggravated felonies without compelling justification in the law. In Lopez v. Gonzales, the Supreme Court ruled last month that a simple drug possession offense that is classified as a felony under state law, but a misdemeanor under federal law, is not an immigration "aggravated felony."
The Supreme Court's near-unanimous opinion has dramatic implications for non-citizens who have been charged with or convicted of certain seemingly insignificant crimes. Previously, a simple possession of marijuana conviction, for example, in a jurisdiction that punishes the offense as a felony would have resulted in an immigration aggravated felony finding, foreclosing eligibility for various forms of relief from deportation. After Lopez, however, an offender who is a lawful permanent resident may no longer be subject to mandatory immigration detention, even if never imprisoned for their criminal offense, and no longer barred from such discretionary forms of relief from deportation as cancellation of removal and termination of proceedings to pursue naturalization. Moreover, an individual who fears persecution in his or her homeland may no longer be ineligible for asylum or withholding of removal.
It is essential to consult an experienced immigration attorney whenever a foreign national has been charged with a crime.
Naturalization Denials and Delays Can Be Fought
United States citizenship is one of the most coveted privileges in the world. Along with the right to vote and to otherwise participate in the country's government, citizenship often allows individuals to bring their relatives to the U.S. to join them, often after separations of many years. It also eases travel and makes available more jobs, student loans, and mortgages, among other benefits. It is no wonder that 602,992 people applied for naturalization in 2005. Significantly, CIS has denied almost 20% of applicants for the past five years. In 2005, 108,242 people were denied citizenship, and many wrongfully.
Two common grounds for denial are: (1) the individual was not "lawfully" admitted for permanent residence; and (2) the applicant lacks good moral character. The first ground of denial is essentially an assertion by the CIS that the applicant was either wrongly granted permanent residence by the CIS or that the applicant committed fraud when applying for permanent residence, often with the CIS questioning the legitimacy of a marriage that was the basis for the green card.
The second common basis for denial is based upon good moral character. Of course, "good moral character" is an ill-defined term: it does not require "perfect" moral character, but must rather be compared to the standards of the community. The CIS has been routinely denying naturalization to individuals with minor infractions of the law. One man was famously denied citizenship for lacking good moral character after he was fined for collecting 33 more oyster than authorized on a particular beach. Other common good moral character denials include a failure to register for selective service, a single offense of driving under the influence, or simple assault stemming from a shoving match in a bar. Because of the frequency of erroneous denials on this ground, a U.S. federal court has ordered one CIS office to reopen over 1,000 naturalization denials from a seven-year period and re-decide those cases.
Unlike most other immigration applications, an individual may seek review of naturalization denials in federal court where an independent court can reach its own decision on the applicant's eligibility. Often, after denying a naturalization application, the CIS will suddenly reverse itself once a case is filed in court. In these instances, after approval, the court case is dismissed. When the CIS does not relent, the individual will receive a new naturalization hearing before a federal judge. If the applicant prevails and the court orders naturalization, the applicant sometimes can seek attorneys fees from the government.
Interminable processing delays are another serious impediment to naturalization. Currently, untold multitudes of naturalization applicants wait for their cases to undergo the endless "background checks." All applicants for any immigration benefit must undergo these background checks, which are performed by the Federal Bureau of Investigation (FBI) at the request of the CIS. Although the CIS and the FBI claim that the majority of checks come back in less than a month, many FBI background checks languish for months or even years without being resolved. During this time, the individual applicant waits in the dark for some news about his application, only to be told that the application remains "pending."
The federal courts also can be used to expedite decision-making on long-pending naturalization cases. The law affords applicants whose applications for citizenship have been pending for more than 120 days after the interview the statutory right to bring an action in federal court to demand a decision on the application. Again, upon filing suit in federal court, the CIS often moves into high gear to resolve the pending background checks. Experience teaches that most cases brought in federal court for resolution of the background checks are settled by an approval of the application within three months of the filing of the suit.
Because of these complexities, and the fact that it is easier today than ever before for a permanent resident to be deported, it is essential that persons eligible for American citizenship consult with one of our experienced immigration lawyers before filing their application.
H-2B Cap for "Seasonal" Workers Reached; Plan Soon for H-1B Availability
The U.S. Citizenship and Immigration Service (CIS) has just announced that the H-2B cap for foreign seasonal workers for the first half of fiscal year 2007 has been reached, which means that, absent legislative action, new H-2B visas for all such qualified individuals will be unavailable until April 1, 2007. In its notice, CIS advises that November 28, 2006 is the "final receipt date" for new H-2B petitions for the first half of fiscal year 2007. Using the same procedures it used for the H-1B caps, petitions received after November 28, 2006 will be rejected and returned. Petitions received on the "final receipt date" are subject to a lottery to enable CIS to apply the remaining numbers to petitions. Those not selected will be rejected and returned. "Returning" H-2B workers are not subject to the cap if they previously had been counted towards the numerical cap between October 1, 2003 and September 30, 2006.
The caps for H-1B professionals and H-1B foreign nationals with advanced degrees from U.S. institutions were reached on May 26, 2006 and July 26, 2006, respectively. H-1B petitions for the next fiscal year may be filed beginning April 1, 2007, effective for work starting October 1, 2007. In our next newsletter, we will address this issue more fully so that clients may adequately prepare to file new H-1B petitions given that numbers for fiscal year 2008 probably will be exhausted in April or May 2007.
Labor Certification Update
The U.S. Department of Labor ("DOL") is expected to announce a window of safety for employers who wish to convert traditional pending labor certification applications to Reduction in Recruitment ("RIR"). According to the American Immigration Lawyers Association, employers will be able to notify the DOL that they plan to submit a conversion request, and then will have a specified amount of time to actually submit the conversion request including recruitment information. During this time frame, the employer will be protected to go ahead and conduct its recruitment without concern about receiving the recruitment instructions and thus having the RIR recruitment be wasted. Those employers who may want to convert traditional labor certification applications should advise us so that we can do some advance preparation. The DOL also has recently provided more detailed guidance on employer compliance under the PERM program, addressing PERM application withdrawals, beneficiary training and experience, recruitment timelines and time periods, and acceptable advertising. Some highlights include:
- confirmation that an employer who is unable to withdraw an application electronically should email that request to the appropriate National Processing Center at PLC.Chicago@dol.gov or PLC.Atlanta@dol.gov; the guidance advises that a certified PERM application can be withdrawn at any time;
- where a beneficiary's training is part of the employer's minimum requirements, the employer must list the training required for the position, and the employer and beneficiary must attest that the beneficiary meets the training requirement, regardless of how the training was secured;
- timelines for advertising and time period for posting are defined differently; for example, when counting the 30-day timeline for advertising purposes prior to filing an application, the day the ad is placed is not considered day one, however, for counting time periods for job posting requirements, the day the job is posted does count as a day;
- advertising in online professional and trade organization journals as an alternative recruitment source is acceptable.
A copy of the DOL Office of Foreign Labor Certification's guidelines on the subject (see page 9 of the guidelines) is available.
For more guidance on how to apply for permanent residence based on employment where an employer can show a shortage of U.S. workers, for a particular job, see our firm's memo, entitled Employment-based Immigration Through Labor Certification. For updates on the PERM program, see July 2006, February 2006, October 2005 issues of Immigration News & Analysis.
Citizenship Test Becoming More Rigorous and an Impediment to Naturalize
U.S. Citizenship and Immigration Services ("CIS") unveiled a list of 144 questions and answers that may be added to a new naturalization exam, which it plans to implement in 2008. The new questions will be pilot tested with about 5,000 volunteer immigrants in ten cities in early 2007. While CIS officials stated that the goal of a revamped citizenship exam is to increase immigrants' knowledge of U.S. history rather than just memorize facts, many understandably are concerned that the test will place unreasonable burdens on immigrants and will serve as an impediment to naturalization. A list of the new piloted questions is available.
Passports Soon Required for All Western Hemisphere Air Travel to U.S.
The Department of State ("DOS") and Department of Homeland Security's Customs and Border Protection ("CBP") finalized rules requiring, with limited exceptions, citizens of the United States, Mexico, Canada, and Bermuda to present a passport to enter (or reenter) the United States when arriving by air from any part of the Western Hemisphere. The new passport requirement goes into effect on January 23, 2007. This new passport is part of the Western Hemisphere Travel Initiative (WHIT), a program developed in response to the security recommendations of the 9/11 Commission, and subsequently enacted into law. While U.S. citizens currently are required to have passports to enter most countries, this new rule makes clear that passports will be required for return to the United States as well. The rule applies to U.S. citizen adults and children alike. The rule also makes clear that Mexican citizens will no longer be able to present border crossing cards (BCC) without a passport when they enter the U.S. by air. BCCs, while currently serving in lieu of a passport and visa for land border crossings within the border region, can still be used as a visitor's visa. Lawful permanent residents (green card holders) will continue to be able to use their Alien Registration Card (Form I-551), or other valid evidence of permanent residence status, and their passports, to apply for entry to the United States. (Children who are U.S. citizens will need to obtain a passport even if their parents are green card holders.)
CBP advises that people who apply for entry without appropriate documentation will likely be referred for secondary screening at the port. In secondary inspection, CBP officers will evaluate any evidence of citizenship or identity the individual may have and will verify all information against available databases. For foreign nationals, a determination regarding admission will be made at that time. Air travelers are advised to obtain appropriate documents to avoid delay.
Only about 25% of Americans currently hold passports. Information about obtaining a U.S. passport is available at the Department of State's web site, http:/travel.state.gov. It is anticipated that U.S. citizens and all other travelers will need passports to enter the U.S. by land and sea by January 2008.
Foreign Business Travelers Fear U.S. Immigration Authorities
The prestigious Financial Times recently reported that a survey of 2,500 frequent international business travelers to the United States revealed that U.S. immigration authorities are the most feared in the world, and a majority of those surveyed reported that they fear U.S. immigration officers more than terrorism. Not only does this perception affect visitors to the U.S. but it also dampens our country's ability to attract global talent and retain its competitive edge as a knowledge-based economy. This problem has been particularly pronounced in academia, where tighter visa procedures and entry conditions have deterred foreign students, graduate-level researchers, and other scholars from seeking visas to study and teach in the U.S. This has resulted in leading figures in U.S. education and business to call for further improvements to student visa policy and to list student visa liberalization as one of the top ten actions that would improve U.S. competitiveness.
In an effort to counter these perceptions - and hopefully policy as well - the Departments of Homeland Security ("DHS") and State ("DOS") recently appointed an advisory committee composed of experts from the tourism industry, health care, academia, and private section to help craft recommendations that balance security considerations with increasing America's welcome mat for those who visit and reside in our country.
Seasons Greetings from Maggio & Kattar
As 2006 comes to a close, we thank all of our clients and colleagues for your continued confidence in our work and law firm. We are grateful, and we wish you and your families a very happy holiday season and a most healthy new year. The past year has been especially rewarding and exciting for us, and we hope for you and yours, too.
We look forward to 2007 with much enthusiasm and a renewed commitment to client service. We have several new innovations to launch in early 2007, including an expanded web site that will permit easier access to educational materials, more and better client educational seminars and workshops on select immigration law issues, and access to our new outbound immigration lawyer network for our corporate and other business clients. Finally, in January we will roll out our new, state-of-the-art online case status inquiry network. Stay turned and be well!