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.
Immigration Legislation—Are We Waiting for Godot?
It seems like waiting for immigration reform may be like Waiting for Godot. Do you know Godot, the central character in Waiting for Godot, Samuel Beckett's play that many were required to read in high school or college? It's the story of two down and out refugees waiting together on a roadside bench for a person named Godot. Rather than arrive, Godot sends a messenger, one day after the next, who tells them Godot "will not come today, but surely tomorrow." The play ends with one refugee, Vladimir saying, "well, shall we go?" The other refugee, Estragon replies: "yes, let's go." However, they do not move, the play ends and, of course Godot never arrives.
Washington's policy-makers and political pundits currently feel that waiting for comprehensive immigration legislation is much like waiting for Godot. There was an optimistic and sometimes celebratory view that comprehensive immigration reform was likely after the Senate passed legislation in May. That legislation would establish a guest worker program and provide the means for some 8 to 12 million undocumented immigrants to become legal while tightening border security. (See June 2006 and May 2006 Immigration News & Analysis.) Now, however, most believe that meaningful immigration reform is dead for the foreseeable future and if there is immigration "reform" this year, it will be more bad than good. This more pessimistic view is based on a myriad of factors: the continued contentiousness of the debate, President Bush's backsliding on the guest worker issue (the President recently signaled sympathy for the idea that new and much tougher enforcement policies must be in place before a guest worker and legalization can be considered), and general election year posturing and politics.
To further complicate matters, the House of Representatives recently declared that it would hold "public hearings" on immigration issues this summer, a move that is believed to be nothing more than providing a platform for anti-immigrant voices. The Senate quickly followed suit.
It is against this backdrop that the immigration "roadshow" - field hearings on comprehensive immigration reform - has begun. On July 5th, the House held a hearing in the San Diego area that focused heavily on border patrol and displayed an overall get tough attitude. Another House hearing took place in Laredo, Texas and more are scheduled for August in border states, including California, Arizona, and Texas. (The House of Representatives passed an enforcement only and border security bill in December 2005. See January 2006 Immigration News & Analysis.)
On the Senate side, a hearing in Philadelphia on the economic impact of immigrants produced a fairly balanced and insightful discussion and one held in Washington on July 12th also focused on the economic impact of immigrants. At least one witness thoughtfully delved into the contradictions between today's economic, labor market realities and U.S. immigration policy.
Despite these developments, interestingly the House of Representatives introduced in late June, with the support of ten of its Republican members, a new stand-alone bill that would provide relief to corporate America for much needed highly skilled workers. "The Securing Knowledge, Innovation, and Leadership" (SKIL) Bill, H.R.5744, would increase the H-1B cap from 65,000 to 115,000, increase employment-based visa availability from 140,000 to 290,000, as well as provide other positive reforms. Somewhat paradoxically, the SKIL Bill represents a positive sign that both the U.S. Congress and Bush Administration are serious about correcting the growing competitiveness crisis for the United States and reforming the visa system for highly educated foreign nationals. (The Senate already passed the SKIL Bill because it is incorporated into the Senate adopted Comprehensive Immigration Act of 2006. (See May 2006 Immigration News & Analysis).)
For the meantime, keep a watchful eye on Washington's key players for signs of what will happen. These include House Speaker Dennis Hastert (R-IL), House Judiciary Committee Chair James Sensenbrenner, Jr. (R-WI) - arguably the most influential voice on the fate of the country's immigration policy and the chief proponent of the House's enforcement first approach to immigration overhaul, Senate Judiciary Committee Chair Arlen Specter (R-PA), and Senator Ted Kennedy (D- MA).
Will some kind of immigration reform materialize in 2006? In our view, comprehensive immigration reform, like Godot, probably will not arrive this year. Furthermore, enactment of piecemeal legislation, like the SKIL Bill, also remains highly uncertain, given the Senate's current hold on bringing any bill to conference committee and the overall contentious climate surrounding immigration reform in this election year.
PERM Update
The Department of Labor (DOL) reports a 62% approval rate for PERM labor certification applications. Under the old labor certification regime, more than 85% of applications filed were approved. Under PERM, applications are being denied routinely for mistakes as common as one typographical error. DOL also reports that PERM audits in the future will focus on cases where the employers' requirements are other than those that are "normal to the occupation." Despite these difficulties, our experience is that the PERM program is finally delivering on its promise to process labor certification applications rapidly.
H-1B Advanced Degree Cap to Be Reached Shortly
While the general H-1B cap for professional workers was reached in late May, H-1B visas continue to be available to those with a master's degree or higher from a U.S. university, but not for long. On July 7, 2006, the Citizenship and Immigration Services (CIS) updated its current cap count and reported that and reported that approximately 16,000 H-1Bs had been requested under this exemption. (This includes approved and receipted pending petitions as well as petitions received but not yet data-entered and receipted.) 20,000 H-1B visas are available under the "advanced degree" exemption. If history is a guide, a steady increase in submissions is expected until the cap is reached. This means that the advanced degree cap is likely to be reached within the next month or so.
CIS to Eliminate Issuance of Employment Authorization Documents (EADs), Including Interim EADs, at District Offices
At the June national conference of the American Immigration Lawyers Association (AILA), CIS officials announced that in the future only CIS service centers would issue employment authorization documents, including interim EADs, rather than at CIS district offices. While no start date was set, a subsequent announcement advised that the Washington, DC District Office would serve as a pilot site for the new EAD processing program. Once a start date is announced, CIS advises that applicants may continue to make an InfoPass appointment with the office and can physically appear to determine why the card has not yet been produced, but, under no circumstances, will the office issue an interim EAD. CIS further advises that it will take approximately ten days from the time the card gets produced for the applicant to receive it through the mail.
Presumably, CIS will promulgate an interim regulation in the Federal Register to properly effect this change. Under the regulations, CIS is required to issue interim EADs if it fails to issue an EAD to an eligible applicant within the 90 days - not 100 days - of filing for such. Arguably, a regulatory change such as this one is required to go through the normal public notice and comment procedure pursuant to the Administrative Procedures Act (APA).
U.S. Citizenship Status Becoming Increasingly More Important Yet Naturalization Process More Difficult
Becoming an American citizen is a very personal decision for many immigrants. Most immigrants focus almost exclusively on the right and responsibilities that attach to citizenship, such as voting, serving on a jury, and generally their ability to more fully participate in the political and economic affairs of this country. But, becoming an American citizen has never been more important for immigrants simply because it is now so easy for permanent residents - even long-term permanent residents - to be deported. And, within the last several years, the government increasingly has exercised its authority to do so.
Today, more and more permanent residents are filing for American citizenship and yet CIS has become increasingly tougher on citizenship applicants, the toughest we have seen in the past 28 years of practicing immigration law. While applicants are not being denied citizenship because of a typo on a naturalization application, many CIS offices, especially the CIS office in Baltimore, Maryland, are denying naturalization applications routinely for many improper reasons. The most popular basis for denying naturalization is alleging the applicant lacks "good moral character" because of a long ago, minor transgression, such as a drunk driving offense. Alarmingly, some permanent residents who apply for naturalization are thereafter placed in removal proceedings because in the course of considering their naturalization application the CIS determines that they may be deportable. How does this happen? Frequently, an old criminal conviction, even one that has been expunged, is discovered or the CIS acquires facts that may indicate that the citizenship applicant did not acquire permanent resident status lawfully. Other scenarios also arise. This new get tough mind-set, tantamount to the kind of zero tolerance, over reaching we have seen in other areas of immigration adjudication, requires a new way of approaching the naturalization application process.
Our team of lawyers is developing practice and litigation strategies to help ensure that eligible applicants are not deterred or denied naturalization due to government overzealousness or malfeasance. We urge persons interested in applying for naturalization to consult with one of our attorneys before applying. Please also see the citizenship section of our web site for information on the basic requirements and procedures to naturalize. Also, see the CIS web site for more information on naturalization.
Little Movement in Visa Priority Dates; Continued Modest Retrogression for Family-Based Immigrant Visas
Employment-based immigrant visa priority dates inched forward in most categories, with significant forward movement for China in the EB-1 (priority workers) and EB-2 (exceptional ability/advanced degreed workers) categories. However, it is not expected that greater relief from backlogs for green card applicants will be realized until the beginning of the next fiscal year, which commences on October 1, 2006. The "other worker" category for lesser skilled workers remains unavailable for the duration of the fiscal year.
In the family-sponsored preference categories, generally there was little significant forward movement across the board and continued retrogression in the F1 (unmarried sons and daughters of U.S. citizens) and the F2A categories (spouses and children of lawful permanent residents). The State Department's monthly Visa Bulletin may be viewed online.
Maggio & Kattar Reviewed and Highly Rated in New International Guide
We are pleased to report that Chambers & Partners, publishers of internationally recognized guides to law firms and lawyers has ranked Maggio & Kattar among the top five law firms practicing immigration law in Washington, DC. The Chambers USA Guide editorial says the following about our firm:
The Firm and its Clientele: This "highly prestigious" immigration boutique wins praise for the high quality of its representation across the board. "Everyone there is a fine lawyer," said sources. The practice encompasses the whole range of immigration services including work, permanent resident and business visas, relocation services, citizenship and waivers. Alongside its caseload for corporate clients, the firm also assists individuals in matters relating to deportation, asylum, residency and criminal issues. A broad-based clientele includes national and multinational companies from a wide range of sectors including manufacturing, industrial, biomedical, hospitality, IT engineering and education.
The Lawyers: The firm's chairman, Michael Maggio, is a nationally respected figure in the immigration field. Seen as "a terrific go-getter and creative practitioner," he is also an expert litigator. "The thing I love about him is he's a real fighter," claimed one peer. A former president of AILA and lobbyist on Capitol Hill, he is highly regarded for his expertise in complex immigration matters. A younger attorney who is building a profile is Andres Benach. He has a particular focus on complicated deportation and naturalization cases and also has been involved in a number of high-profile waiver cases.
Other News About Our Attorneys
Senior Attorney Jim Alexander's article, "Corporate Immigration - Impact on Maryland Lawyers," was published in the July/August 2006 issue of The Maryland Bar Journal. The article was co-authored by Senior Paralegal Stuart Mathews. Senior Attorney Alison J. Brown's article, "Pitfalls in the Bewildering Legal World of the 'Criminal Alien'," was also published in the same issue. The article was co-authored by attorney Mark J. Shmueli. For copies of these articles, please download the PDFs on our web site.
Jim Alexander also was quoted in the June 26, 2006 issue of Legal Times, Washington's leading legal publication, in an article entitled, "Business Lobbyists Seek to Deepen Visa Pool." Jim commented on the inability of an employment-based immigrant applicant to change jobs or accept a promotion or a raise without jeopardizing his or her application once it is filed, due to the current, burdensome green card process.
Senior Attorney Amy Novick was recently appointed to serve as a member of the Board of Trustees of the American Immigration Law Foundation (AILF). AILF in a nonprofit organization established in 1987 to increase public understanding of immigration law and policy, to promote the value of immigration to our nation, and to advance fundamental fairness and due process rights for immigrants. Amy will participate in the work of AILF's nascent Curriculum Center and will serve on the organization's finance committee.