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.
Comprehensive Immigration Reform More Likely as Democrats Win Control of Congress
As the dust settles on the Democrats' election day sweep, the results show a repudiation of bombastic anti-immigrant fervor and a dramatically changed political landscape that now favors immigration reform. However, despite greater opportunities to repair what all agree is a broken immigration system, there are many rivers to cross before that important but elusive goal is reached. In January, pro-immigration reform Democrats will take over the leadership of key congressional committees as well as the House and Senate majorities and leadership. It is significant, too, that in his first post-elections interview, President Bush specifically named immigration reform as an area where he and the new Democratic leadership share much common ground. There is no question that this is true. But, even in the context of the best political milieu, immigration legislation is never easy, and by definition is fraught with challenges and opposition. With the 2008 presidential and congressional elections already in the forefront of every politician's mind, the chances for far-reaching changes in immigration law and policy will be tempered by the shared Democratic and Republican obsession with the implications of their actions for the upcoming elections.
What did the American electorate have to say about the immigration issue on November 7th? First, they rejected many hard-line restrictionists who fought vociferously for stricter immigration laws. And, those candidates who tried to capitalize on immigration as a divisive, wedge issue found that this strategy did not work. In fact, it failed miserably. Congressman J.D. Hayworth (R-AZ), a prominent anti-immigrant restrictionists lost his re-election bid in a district he won by 21% two years ago. Also in Arizona "Repel the immigrant hordes" Minuteman Randy Graf (R-AZ) was crushed in his bid to replace Congressman Jim Kolbe. Elsewhere, former House Immigration Subcommittee chair John Hosteller (R-IN), who built his career opposing immigrants and immigration reform, garnered only 39% of the vote. On the Senate side, Rick Santorum (R-PA), who made comprehensive immigration reform a key issue in debates with his opponent, Bob Casey, also lost by a huge margin. Several other key senatorial candidates including Katherine Harris (R-FL), Tom Kean, Jr. (R-NJ), and Jan Ting (R-DE) failed to sway voters with the common refrain that their victorious opponents were "soft on illegal immigration." And, Senator George Allen (R-VA), who just one year ago was considered a serious contender for the Republican presidential nomination in 2008, lost largely because he publicly ridiculed a U.S. citizen of Indian descent whom Senator Allen believed to be from "another world" than Virginia.
Second, a majority of Americans declared that they want a solution to the nation's broken immigration system. They favor a pragmatic, comprehensive approach to immigration reform that includes a pathway to citizenship for the undocumented as well as a guest worker program. Election day polls made this clear. About six of ten voters stated that undocumented workers should be offered a chance to apply for legal status, according to a Washington Post poll that was confirmed by other polls conducted shortly before the elections and in exit polling. Significantly, the fastest growing group of new voters - Hispanics - made it clear that immigration is a defining issue. Nearly 75% of Hispanics reported voting for Democrats.
Given current public opinion, experts predict that the Democratic controlled Congress has less than a year to move forward with immigration legislation that includes a path to legal residency before the 2008 elections make cutting a deal political suicide for some. But that won't be easy. Opposition continues in both parties: Democrats who took a hard line on illegal immigration also were elected and restrictionists remain in the Republication Party. Consequently, both parties may be more centrist and cautious. A centrist approach also may be perceived as more responsive to the adverse economic consequences felt by employers from the lack of H-1B and employment-based immigrant visas.
Nevertheless, the key committees that control immigration - the House and Senate Judiciary Committees and their Immigration Subcommittees - will be led by pro-immigrant lawmakers. In the House of Representatives, John Conyers, Jr. (D-MI) is almost certain to serve as Chairman of the Judiciary Committee. Congressman Conyers has been a particularly strong supporter of immigration reform, in particular measures aimed at repealing the most onerous restrictions on relief from removal, due process, and judicial review. The House Immigration Subcommittee is likely to be chaired by Zoe Lofgren (D-CA), a former Silicon Valley immigration lawyer who really knows the law and issues, and especially the need for more H-1B and other employment-based visas. The Senate Judiciary Committee will be chaired by Patrick Leahy (D-VT) and the Immigration Subcommittee chair very well may be Ted Kennedy (D-MA). Both have a long history of championing immigrants, a better immigration system, and comprehensive immigration reform.
Precisely how the Senate and House committees will approach the immigration issue is yet to be determined, but some immigration experts are wary of the kinds of compromises that were enacted ten and twenty years ago, because they did not produce the desired long-term results. The border remains porous, computerized systems to check legal status of workers still are not in place, and the overriding needs of American business have not been met. At the same time, families remain divided owing to a paucity of visas, naturalization is more difficult to obtain, and long-time permanent residents face mandatory detention and deportation for crimes as minor as shoplifting.
The Senate's approach has been more comprehensive and balanced. Its bipartisan bill, S. 2611, includes not only stepped up enforcement/border control as well as provisos for undocumented foreign nationals to regularize their status (earned legalization and guest worker programs), but also relief for American businesses and their workers by raising the current H-1B visa cap and providing more employment-based green card visas. In the meantime, stand alone legislation to increase H-1B and employment-based visas remains pending in the post-election, or "lame duck," session of the current Congressional and could be enacted before Congress adjourns before Christmas; the likelihood of such is unclear. The House, in contrast, enacted enforcement-only legislation with numerous draconian measures.
Finally, where does President Bush fit into this picture? The President has his eye on building a legislative legacy during his final two years in office, and doing so with the Democrats in charge of Congress will be difficult. The President answered affirmatively that a Democratic Congress gives him a better chance at comprehensive immigration reform, adding that immigration is "an issue where I believe we can find some common ground with the Democrats." This may be one of the few key issues where the President can cut a deal with the presumptive Speaker of the House, Nancy Pelosi (D-CA), also a long-time strong advocate of better immigration laws. The Democrats need an issue where they can prove they are a governing party after years of opposition, and President Bush knows his last two years will be deprived of any significant legislative accomplishment unless he demonstrates that he can work with the Democrats. What is more, besides the obvious issue of the war in Iraq, political pundits have identified a yearning for bipartisanship and an end to political gridlock as decisive election issues. Ultimately, immigration is an area where greater political consensus can be formed. Indeed, there are strong voices in the ethnic, business, labor, and religious communities as well as the leadership of both parties who want urgently to replace our broken immigration system with one that is more realistic and responsive to our nation's needs.
Despite the dynamism of the issue and its inherently, competing factors - a diverse mosaic of ideologies and backgrounds on Capitol Hill, President Bush's legacy, and the will of the American people - American lawmakers have a real opportunity to move beyond the stalemates of the Spring and construct a realistic immigration system that meets the needs of our economy, our families, and our national security. There now exists an historic opportunity to fix this nation's broken immigration system, and it's up to those who care about immigration reform to actually make it happen.
Holiday Travel Alert
Human resources personnel, managers, and foreign nationals should be aware that visa processing delays at U.S. consulates may impact the ability of foreign nationals to return to the United States on schedule after the holiday season. We strongly urge that this Holiday Travel Advisory be distributed immediately to all foreign nationals contemplating travel abroad as well as to managers and human resources personnel concerned with immigration matters.
Foreign nationals who anticipate traveling abroad and who believe they have a valid U.S. visa in their passport must first be certain that their visa stamp will not expire before their anticipated date of return to the U.S. Foreign nationals with work-related nonimmigrant visas must always travel with the original I-797 Approval Notice to document their current nonimmigrant status. Furthermore, although not essential, it is prudent to travel with a complete copy of the nonimmigrant petition, with supporting documentation, as well as the copy of the foreign national's recent pay stub or check to confirm that he or she is continuing employment as stated in the approved visa petition. If there have been any changes in the terms of employment for the approved visa petition, these changes should be brought to the attention of immigration counsel prior to the foreign national's departure. F-1 students and those in J-1 exchange visitor status must always travel with a valid I-20 or DS-2019 Certificate of Eligibility Form. At immigration inspection, foreign nationals should only present a valid passport, a current visa stamp and, as applicable, either an I-797 or DS-2019 Form when applying for admission. Other documents should only be presented upon request.
Foreign nationals who require a new visa stamp in their passport to return to the U.S. should immediately investigate the current visa application procedures and requirements specific to the consulate at which they intend to apply. The Department of State ("DOS") website regularly provides updates regarding the documentation required from visa applicants via its embassy page. Personal interviews are now mandatory for virtually all visa applicants. As a result, it often takes many weeks to secure an appointment at consulates, where previously, a visa applicant could appear at any time without an appointment and have his/her visa application processed the same day. At certain consulates, it can take 30 days or more to secure a consular appointment. Moreover, visa issuance on the day of the consular appointment is by no means assured.
Any foreign national with a criminal history, including U.S. permanent residents, should not leave the U.S. before consulting with an immigration attorney who is well versed in the immigration implications of criminal convictions. It is important to know that under U.S. immigration law, a criminal conviction "counts" even if it has been expunged. Our attorneys have extensive experience addressing such problems.
Foreign nationals should anticipate long lines and thorough questioning by immigration authorities when seeking to enter the United States. Under the U.S. Visitor Immigration Status Indication Technology (US-VISIT) system, most arriving foreign nationals are fingerprinted upon their arrival. It is therefore essential that foreign nationals entering on a work-related visa always carefully and immediately review the I-94 arrival card issued to them by immigration authorities to confirm that the card's "admitted until" date reflects the validity of their I-797 Approval Notice. Frequently, immigration inspectors incorrectly admit foreign nationals by referring only to the validity date of the visa stamp in their passport when the Inspector should, in fact, refer to the validity date reflected on the foreign national's I-797 Approval Notice. If an Immigration Inspector insists that the foreign national can only be admitted through the validity date of his or her visa stamp, the assistance of a supervisor should be politely sought. Note, however, that Immigration Inspectors may rightfully limit a foreign national's I-94 card admission date based on the impending expiration of the foreign national's passport. Should this occur, the foreign national ought to immediately advise immigration counsel to determine the appropriate course of action.
Clearly, advance planning is essential if foreign nationals are to avoid unexpected delays in returning from overseas travel, especially during the holiday season.
Premium Processing Expanded to I-140 Extraordinary Ability Beneficiaries
Effective November 13, 2006, U.S. Citizenship and Immigration Services ("CIS") will extend its Premium Processing services to Extraordinary Ability immigrant visa petitions. This allows petitioners to pay a $1,000 premium processing fee in exchange for 15-calendar-day processing of their case. Just last month, CIS added three new I-140 categories to its Premium Processing services: (1) outstanding professors and researchers, under the employment-based first preference; (2) members of professions with advanced degrees or a bachelors degree plus five years of progressive experience not seeking a national interest waiver of the job offer; and (3) professional and unskilled workers under the employment-based third preference category. Previously, premium processing had been available for Form I-129 nonimmigrant worker cases, such as H-1B specialty workers, L-1 intracompany transferees, and O-1 extraordinary ability workers.
Employers and foreign nationals may elect to request premium processing of their I-140 immigrant visa petitions solely for the piece of mind of knowing quickly whether the underlying basis of their eligibility for permanent residence will be approved. In addition, certain foreign nationals in H-1B status may benefit from premium processing as an approval of their I-140 will make them eligible for three-year extensions of their H-1B status until their priority date (place in line for a green card) becomes current. On the other hand, some applicants may elect not to pursue premium processing given that an immigrant visa petition may be filed concurrently with an application for adjustment of status (Form I-485) as long as the foreign national's priority date (place in line for their immigrant visa) is current. (See October 2006 issue of Immigration News and Analysis). It remains to be seen whether the quick approval of an I-140 petition will compel the CIS to adjudicate the I-485 sooner.
At the same time, CIS recently made available its written, internal guidelines for the processing of Extraordinary Ability immigrant visa petitions. The basic requirements for this means of qualifying for permanent resident status without a job offer or a certification of a labor market shortage from the Department of Labor, can be found on our website, www.maggio-kattar.com. What is new is a series of clear directives to those CIS officers who adjudicate these cases to be much more demanding with respect to the nature of evidence deemed acceptable to establish the "sustained national or international acclaim" required to qualify for permanent resident status. This topic will be discussed further in a future newsletter.
Gap in Immigration Law Brings Heartache for U.S. Citizen Parents Desperate to Bring Home Their Foreign Born Adopted Children
Increasing numbers of Americans are adopting internationally. Those who have been involved in international adoption know that the process is complicated and ever changing. Thus, most who adopt internationally do so through adoption agencies well versed in these intricacies. But what about those who wind up doing it on their own or who want to adopt children from countries where the process relies on lawyers and others in the foreign country? What role is played by the U.S. Department of State ("DOS"), and when do U.S. foreign policy interests collide with the best interests of the child?
Two recent news articles expose the inconsistencies and winking that routinely occurs. Just last month, Madonna and her British film director husband Guy Ritchie spent eight days in the African country of Malawi to adopt their 13-month old son, David. The Malawian government apparently relaxed the usual ban on adoptions by foreigners and waived the requirement that prospective parents stay with the child for 18-24 months for assessment before the adoption can be formalized. Apparently, the U.S. Consulate did not question that government's decision to do so. On the other side of the world, in Guatemala, The New York Times recently exposed what is essentially a baby buying scheme, an adoption system where children are specifically sought for adoption in exchange for hefty fees to brokers and birthmothers. And, the U.S. Consulate in Guatemala has been approving immigrant visas for those kids.
In stark contrast, in the war-torn country of Sierra Leone, the Department of State routinely questions the veracity of High Court final adoption orders, birth certificates, and agency-issued abandonment statements, and it challenges the true intent of birthparents who sign relinquishment affidavits. Officially decrying high rates of fraud, yet unofficially, the desire to reunite parents separated from their children during the war, the Department of State, through its consular corps, is cultivating a system where many children fall through the adoption/orphan gap: final orders of adoption are issued by the High Court yet the child is not deemed to be an orphan, and he or she thus ineligible for an immediate relative visa. What does this mean for the adoptive parents and their adopted child? Parents are placed in the untenable situation of assuming legal responsibility for their child, becoming emotionally attached to the child, but remaining physically separated for years, and possibly forever. While orphan processing is a high priority for USCIS and the Department of State, it's time to take a fresh look at the laws governing orphan status and adoption. Hopefully, our country will do so sooner rather than later, perhaps when it considers becoming a party to the Hague Convention on Inter-country Adoptions.
Thomas Ragland Joins Maggio & Kattar
We are pleased to announce that Thomas Ragland, an exceptionally experienced and able immigration litigator, has joined Maggio & Kattar as a Senior Attorney. Thomas has more than ten years of immigration litigation experience, having served both as a Senior Attorney Manager at the Board of Immigration Appeals (BIA) and as an Appellate Attorney in the Department of Justice's Office of Immigration Litigation ("OIL"). In addition to his extensive litigation skills, Thomas brings with him a deep understanding of the myriad complex issues that often surround the immigration consequences of criminal convictions, waivers of inadmissibility, asylum, adjustment of status and naturalization, and detention and bond issues, among other deportation defense matters.