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.
New Maggio & Kattar Web Site Up and Running
Please visit our new, vastly improved web site, www.maggio-kattar.com. Our new web site features our "Key Practice Areas," and it provides detailed information about visa eligibility and procedural requirements. Our site has state-of-the-art navigational tools and improved access to case status information for our clients... Our new web site is, however, a work in progress; thus, over the course of the next several months as well as into the future, we will be adding more links to immigration resources, posting more advisories, and providing our visitors with the type of information and analysis that will help our readers better understand U.S. immigration law and policy. We would appreciate your comments and suggestions. Please tell us what you like and what you don't, and how our web site can better serve you.
H and L Nonimmigrant Adjustment Applicants No Longer Required to Possess USCIS Receipt Notice In Order To Be Admitted After Travel Abroad
U.S. Citizenship and Immigration Services (USCIS) recently eliminated the regulatory requirement that an H or L nonimmigrant with a pending adjustment of status application be in possession of an adjustment receipt notice (Form I-797) in order to travel abroad and be readmitted. Without such a notice, an H or L nonimmigrant traveler could risk his or her adjustment of status application considered abandoned. (This regulatory change does not in any way affect other adjustment applicants who must still wait for their travel documents (advance parole) for readmission or risk abandonment of their adjustment application.) While not always strictly enforced, this requirement had become particularly problematic in light of USCIS' inability to issue timely receipt notices due to the number of adjustment applications filed this summer and the resultant agency "inventory overload." The final rule was published on November 1, 2007 and became effective immediately.
USCIS Releases New Employment Eligibility I-9 Form, Changing List of Acceptable Documents That Establish Identity and Work Eligibility
Employers, and especially human resources specialists, must be alert to the new United States Citizenship and Immigration Services (USCIS) revised Form I-9, Employment Eligibility Verification form, which employers are required to complete for each employee hired in the United States. Also released in early November is the agency's M-274, Handbook for Employers, Instructions for Completing the Form I-9. While employers are instructed to begin using the new form immediately, there will be no consequences (paperwork penalties) for not using the new I-9 form until 30 days after a notice is published in the Federal Register.
The most significant change is the elimination of five documents that serve as proof of both identity and employment eligibility ("List A" of Form I-9). The revised list now includes: (1) a U.S. passport (unexpired or expired); (2) a permanent resident card (I-551)- presumably a "Alien Registration Receipt Card is no longer acceptable; (3) an unexpired foreign passport with a temporary I-551 "green card" stamp; (4) an unexpired Employment Authorization Document with a photography (I-688, I-688A, I-688B, I-766); and an unexpired foreign passport with an unexpired arrival-departure record (Form I-94) for nonimmigrants who are authorized to work for the employer. Once the new I-9 form goes into effect, employers may only accept documents on the new List A. Moreover, employers who must re-verify employee employment authorization due to pending expirations will be required to use the new updated list and the new I-9. Information from USCIS indicates that there are no changes to the way the new form should be completed.
The revised Form I-9 and Handbook for Employers are available on the USCIS web site as well as on our firm's web site.
Increased DOL Audits of PERM Applications Reported
The Department of Labor (DOL) is undertaking more frequent targeted - and random - audits of PERM labor certification applications now that its July 16, 2007 regulation requiring employers to pay the costs of applications filed under the Program Electronic Review Management (PERM) program is in force. The consequences of a DOL audit for some employer's foreign nationals can be significant, as DOL seeks to ensure total compliance and root out fraud. Even for employers who have strictly complied with PERM's requirements, as all should, a PERM audit, just like a tax audit, is a nuisance at best. As widespread PERM audits are new, time will tell how hardnosed DOL will be in what clearly is an expression of DOL's stepped up labor certification enforcement. This is consistent with the overall trend of increased immigration enforcement against perceived and would be violators of the immigration laws, be they U.S. employers or foreign nationals.
Investor Green Card Option Increasingly Popular
Despite its complexity and heavy scrutiny by USCIS, the Immigrant Investor Visa program (EB-5) should be considered by foreigner nationals of means who desire U.S. residency for themselves and their family, especially those who face long visa queues. While this program has been in existence since 1990, the program has been overhauled substantially, and its use is coming back into vogue.
Usually, in order to qualify for immigrant investor classification, a foreign national must invest at least $1 million in a new commercial enterprise that will benefit the U.S. economy and create full-time employment for at least ten workers. A significant exception is provided for those who invest $500,000 in a "targeted employment area". This is defined as including rural areas with populations of less than 20,000 or locations that have experienced unemployment at 150% of the national average, as designated by a state government. USCIS has approved immigrant investment visas through USCIS approved Regional Centers, which focus on specific geographic areas and the promotion of economic growth, and where a $500,000 investment is being made in a "targeted employment area". ($1 million is still required if not in a "targeted employment area" but the job creation requirement is relaxed.) There are now 17 active USCIS approved Regional Centers.
USCIS reports that over 800 conditional EB-5 green cards were issued to investors and their families for the fiscal year that ended on September 30, 2006. This is more than a three-fold increase from 2004. A recent article from the Wall Street Journal discusses the many benefits of this program.
DREAM Act and Other Piecemeal Immigration Legislation Fails
Seen as a test for the Senate's proclivity to tackle piecemeal immigration legislation, in late October that chamber rejected, on a procedural vote, further action on the DREAM Act (Development, Relief and Education for Alien Minors Act of 2007), perhaps the least controversial candidate for a stand alone immigration bill. The DREAM Act would have facilitated access to college for immigrant students in the U.S and provide a path to permanent residence for immigrant youth who were brought to the U.S. as young children and who want to pursue higher education or military service. While the estimated number of children who would have benefited varies, it was argued that these skilled graduates could benefit American business as well as boost the military.
Other immigration provisions - such as proposals that would increase H-1B visas for professionals and employment-based immigrant visas - had been grafted on to appropriations bills, but failed similarly to make progress. An amendment to the Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act would have increased the H-1B fee, although not the numbers, was stricken from that appropriations act as well provisions that would have allocated some 61,000 previously unused green card numbers to nurses and physical therapists. And,finally, plans were dropped at the last minute to add an AgJOBS amendment to the Senate Farm, Nutrition and Bioenergy Act of 2007 because Majority Leader Harry Reid (D-NV) stated he would attempt to avoid non-germane amendments to the bill. AgJOBS would have provided authorized work for farm workers with a path to legalizations. In short, immigration legislation helpful to foreign nationals and their American family and employers is very unlikely until after next fall's elections.
How Will Immigration Issues Factor in 2008 Politics?
As the 2008 election season approaches, we examine some recent events for clues on where the candidates and the country are headed on immigration reform, as least in terms of rhetoric, if not real action. Elections this month in Virginia - as well as elsewhere - were a big test for the anti-immigration message and generally the message failed. As reported in the Washington Post, Virginia chose candidates in state and local elections not out of anger over illegal immigration but based on party affiliation, a preference for moderation, and strong views on such key issues as residential growth, traffic congestion, and protection to schools rather than on taxes and social policy. With a few notable exceptions, the trend benefited Democrats and not those who campaigned the loudest for tough sanctions against undocumented immigrants. Given Virginia's close proximity to Washington, these results - and the mantra that all politics is local - should help beat the drum that these kinds of attacks won't return the votes.
Roll Call, Capitol Hill's widely read and well-regarded daily, echoes the Post's analysis:
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"For the umpteenth time, American voters this year have rejected a nativist approach to illegal immigration. It ought to be a warning to Republicans: Don't make this your 2008 wedge issue. Election results on Tuesday . . . also should encourage nervous Democrats that they can support comprehensive immigration reform - stronger enforcement plus earned legalization - and prevail."
Roll Call also reported that recent polling consistently shows that large majorities of Americans believe the U.S. is not doing enough to curb illegal immigration but that they support allowing undocumented immigrants to earn their way to legal status. And, even though enforcement-only campaigns don't appear to be succeeding at the ballot box, Republicans still seem bent on making illegal immigration a centerpiece of their 2008 campaigns despite warns that that care needs to be taken regarding immigration to avoid aliening Hispanic and new American citizen voters.
Where this admonishment might have bore fruit is the recent the recent congressional race in Massachusetts, but didn't. Although a close race, Niki Tsongas - an Immigrants' List supported-candidate - defeated a Republican opponent running on an anti-immigrant platform that used her position to demonize immigration into nothing more than a border security and amnesty issue. Tsongas spoke out in favor of reform that includes increased visas for high and low skilled workers, due process restoration, and a fair and practical pathway to earned citizenship.
At the same time, many Republicans, and most notably President Bush, have a pro-immigrant history. President Reagan, for example, presided over the 1986 immigration reforms that provided for legalization coupled with employer sanction for employing unauthorized workers. With the exception of Rudi Giuliani and John McCain, at the moment the leading Republican presidential candidates, the Republican Party seems to be taking an increasing anti-immigrant posture. The Democratic party, although publicly more pro-immigrant, has been much more talk than action.
National security anxieties and the desire to get their people elected also shape the immigration views of Democratic and Republican leaders alike. The link between local concerns and national security is being made curiously on the issue of state-issued drivers' licenses for the undocumented. Look for this driver's license issue to loom larger as the 2008 elections approach more closely every day.
While most still agree that comprehensive immigration reform remains two years away, the debate is far from over and local, state, and national hearings on the issue are likely to abound.
Russian Entrepreneur's Extraordinary Eleven Year Asylum Struggle
Eleven years ago a small army of gun toting immigration agents, accompanied by a Russian prosecutor and a TV crew, arrested Alex Konanykhin, a young Russian banker and entrepreneur, and his wife, Elena, at their apartment in Washington's famous Watergate complex. A few years earlier, Konanykhin met with President George H. W. Bush along with Russian President Boris Yeltsin. Konanykhin was showcased at the White House by Russia's burgeoning democratic leadership as an emblem of Russia's new democracy (he had supported Yelsin's campaign) and free enterprise (he then was one of the richest businessmen in Russia, worth more than $100 million by the age of 23).
Konanykhin later fled Russia, fearing for his life. He held L-1 intracompany status for years and his green card application was pending when arrested. The then-Immigration and Naturalization Service (INS) and the Russian government under President Vladimir Putin charged that he had stolen millions from his own bank in Moscow before leaving the country. Konanykhin then sought asylum in the United States, arguing that his bank and the Russian state, too, were the victims of an anti-democratic money and power-grab by state security forces known as the FSB, previously the KGB.
Konanykhin's immigration saga, which began in the summer of 1996, and has been reported widely in the press and in his own book, is extraordinary. He was jailed for a year by the INS until a federal judge found that the INS had suppressed testimony by a government expert witness that supported his asylum claim. Although he was initially denied asylum in 1996, that decision was set aside by agreement with the INS due to evidence of their misconduct. Some years later, he was granted asylum by an immigration judge in Arlington, Virginia, but that decision was subsequently reversed by the Board of Immigration Appeals (BIA). At that point, Konanykhin and his wife decided to immigrate to Canada rather than continue fighting asylum in the United States. A few weeks later, as they approached the U.S.-Canadian border for a prearranged meeting with Canadian immigration officials, Konanykhin and his wife were arrested by armed agents of the DHS/INS. The couple was flown immediately to Washington and taken directly to the Russian Embassy. They were then flown to New York for immediate deportation to Russia.
As Konanykhin and his wife were waiting at JFK airport to be boarded on a flight to Moscow, the same federal judge who had intervened earlier in the case halted their deportation. Shortly thereafter, the BIA agreed to reopen the case yet again based on new evidence that anti-government business leaders in Russian face persecution. The BIA sent the case back to the same immigration judge who had first heard Konanykhin's case in 1996. After another round of hearings, in September 2007 Alex Konanyhkin was granted asylum yet again. This time, however, DHS elected not to appeal, and the judge's asylum grant became final. Konanyhkin's wife, Elena Gratcheva, passed away in April 2007 after an unsuccessful battle with cancer.
Maggio & Kattar is proud to have represented Alex Konanykhin and Elena Gratcheva throughout their eleven year quest for justice.
No Change: Foreign Travelers Fear U.S. Entry Process
Last year we 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, issue and a majority of those surveyed reported that they fear U.S. immigration officers more than terrorism. A new study reveals the same, and more: travelers rate America's entry process as the "world's worst" by greater than a 2:1 margin over the next-worst destination area. The study conducted by the Discover America Partnership also found both that travelers still want to come to the United States, and that minor changes in the treatment of foreign travelers would yield substantial gains. By deterring visitors, the U.S. is missing enormous economic and diplomatic opportunities.
M& K Attorneys on the Speaker's Circuit
Several Maggio & Kattar attorneys recently participated in important national and international immigration law conferences.
In October, John Nahajzer spoke at an international conference in Split, Croatia where prominent experts from the U.S. and Croatia gathered for four days to discuss increasing cooperation in educational and scientific exchange, and investment and trade between the two countries. John delivered a presentation entitled "U.S. and Croatian Scientific and Business Exchange: Important Government and Legal Considerations."
Also in October Thomas Ragland served as faculty member at the annual skills training conducted by the National Immigration Project of the National Lawyers Guild. He presented on "Challenging Documentary Evidence in Applications for Relief" and participated in a simulated, mock deportation hearing that included immigration judge Paul Schmidt, former Chair of the Board of Immigration Appeals. This national training was held in Washington, DC.
In early November Andres Benach served as a Panelist on the ILW.com teleconference entitled, "Adjustment of Status in Removal Proceedings," broadcast nationwide. On November 14, Andres is a guest speaker before the Alexandria, Virginia Office of the Federal Public Defender to advise criminal counsel on the immigration consequences of criminal convictions.
And, finally, Jim Alexander has been invited to present a number of immigration law workshops for human resource personnel in Sydney and Melbourne Australia and the American Chamber of Commerce in Australia this coming February. While in Australia, Jim also will explore how our firm can expand our growing network of knowledgeable overseas immigration counsel with whom we partner to assist our employer clients in transferring employees to countries other than the United States.