Archive for the ‘Immigration, General’ Category.

From Systems to Substance, Digital Innovation is Welcome News for Immigration

shutterstock_276868460Last week, the Office of Management and Budget released a plan for modernizing and streamlining the legal immigration system.   Much of the focus was on the potential positive impact of digital innovation.  Recommendations included the creation of a cross-agency digital services team to support the implementation of the modernized immigrant visa project.  This team would be charged with improving the visa applicant experience and increasing efficiencies in the adjudication process through digitization.  The plan rightly points out that “currently, the immigration application and adjudication process is mostly paper-based, requiring documents to change hands and locations among various federal actors at least six times for some petitions.”  Or in many cases, the same information must be sent separately, and in different formats, to several agencies, several times.  Take for example the H-1B nonimmigrant visa category for specialty occupations.  This category alone requires coordination between the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), the Department of State (DOS) and Customs and Border Protection (CBP).

The DOL piece of the puzzle, the Labor Condition Application (LCA), has had an electronic option since 2002 and is today entirely online.  An employer may submit an LCA, post notice of filing and receive approval of certification from DOL without a single piece of paper.  However, the five-page LCA, once certified, must be printed out, signed and sent to one of USCIS’s Service Centers in Vermont or California as part of the H-1B petition.  And the LCA is not alone; USCIS’s forms must also be printed out and included with paper checks for filing fees which can exceed $3,500 and supporting documents which in total will easily exceed twenty pages.  To add to the paper submission, an entire copy of all documents submitted to USCIS must also be included so USCIS may physically send them to the DOS’s Kentucky Consular Center to be scanned and uploaded to the Petition Information Management Service.   And for H-1B cap cases, submitting the case to USCIS only means that a USCIS officer will collect the petitioner and beneficiary data and enter the case in a lottery.  The majority of cases which are not selected are put back in envelopes and returned to petitioners by mail.

Those H-1B petitions that are selected, or that are cap-exempt, will be reviewed.  If USCIS is not satisfied with the documents initially submitted, it will issue a Request for Evidence by mail.  The petitioner’s response must be submitted in duplicate by mail, or for those still fond of the 1990s, by fax.  Once approved, USCIS will send a two-page approval notice to the petitioner.  Should the beneficiary require a visa, the case will then move to the DOS phase.  DOS for its part has required online electronic applications of all nonimmigrant visa applicants worldwide since 2010.  However, many consular posts still recommend that visa applicants have a full hardcopy of the petition submitted to USCIS with them for their visa application interview.  In many cases, an H-1B visa will not be issued on the first submission.  Additional paper documentation may need to be couriered to a consular post before the application is approved.  Finally, with a visa endorsement in a passport, a beneficiary is still well advised, and in some cases required, to have an original USCIS approval notice to present to CBP on entry to the U.S.

With 318,824 H-1B petitions submitted to USCIS in 2014,  233,000 H-1B petitions submitted in the first week of April 2015 alone, and 179,408 H-1B visa applications submitted to consular posts worldwide in 2014, the cost of this inefficient and redundant  process to U.S. employers and the U.S. government, not to mention the environment, is significant.

While the H-1B is the most common nonimmigrant work visa, it is only a small piece of the entire immigration system which includes nonimmigrant visa categories from A to U, family and employment based immigrant visa categories, immigrant investors, the diversity lottery and others.  According to DOS statistics, nearly 10 million nonimmigrant and immigrant visas were issued worldwide in 2014.

A digital, paperless system is not a panacea, especially if the system is not robust, nimble or thoroughly tested prior to its launch.  We have seen for two consecutive years the DOS Consular Consolidated Database crash in the height of the summer visa rush.  Applicants around the world were effectively stuck in visa limbo for more than two weeks before the system was repaired and brought back on line.  The DOS’s National Visa Center (NVC) in New Hampshire, too, suffers from online payment issues which delay the processing of immigrant visa applicants’ cases, many of whom are separated from their U.S. citizen spouses while they wait.  The DOL iCert system has its own issues, including technical denials and technology that struggles to cope in the run up to H-1B cap season.  Modernizing our immigration system to a coordinated digital process will take a significant investment of time and resources.  But with a wealth of expertise in the stakeholder pool, the input, knowledge and best practices required are available.

The Office of Management and Budget plan also included a recommendation to redesign systems with an eye towards a human perspective and accessibility for users.  Ironically, a more digital system will result in a more human perspective than the current process.  Instead of mailing a bundle of papers to a vast, remote service center, applicants will have an online connection and will be able to communicate in real time through webchats, email and text.  Instead of petitions being physically sent from a client’s office to an attorney’s office, to a USCIS service center, to a DOS center in Kentucky or New Hampshire, to a U.S. consular post in any part of the world, an entire visa process could be submitted, reviewed and approved with the click of a mouse or tap of a screen.  The human perspective has shifted to an online experience.  The world has become smaller and technology is more accessible.  The systems currently in place by DOL and DOS are a good start, but with a concerted, planned effort, the immigration process can be brought into the 21st century.  And with a coordinated, modern, working digital  immigration system, Congress may just take notice and act to replace our current antiquated immigration laws with immigration laws fit for the 21st century.

Written by Anastasia Tonello, AILA Second Vice President

A Lot of Glass in Those Towers, Any Mirrors?

shutterstock_113897485Antonio Olivio of the Washington Post hit the nail on the head in his July 6th column (At Trump hotel site, immigrant workers wary) regarding the building of the new Trump luxury hotel in Washington DC.  Ever since Donald Trump made his ill-informed and untrue statements about Mexican and Latino immigrants, the spotlight has been turned onto Mr. Trump and how he earns his millions of dollars on a daily basis.  The public has since learned that Mr. Trump earns quite a lot of money on the backs of immigrant labor and even outsourced labor (see the now former Trump clothing line which was made in Mexico and China, among other countries).

As Mr. Olivio noted at the DC Trump project, many of the immigrant workers rise early and commute to the worksite in a professional manner to earn an honest living to support their spouses, children and families.  While Mr. Trump’s comments are offensive to them, the need to work and support their families is more important than pride.

However, based on Mr. Trump’s comments about Latino and Mexican immigrants as rapists and criminals, which he has voraciously defended as accurate, after reading this article it must be asked, how was Mr. Trump able to find enough professional Latino and Mexican immigrants who were not rapists and criminals to employ?  In the alternative, is Mr. Trump knowingly hiring the very criminals he ranted about to shamelessly obtain the media spotlight?

The truth is that Mr. Olivio’s article demonstrates what most Americans already know: the vast majority of Latino and Mexican immigrants are hard-working, self-sufficient proud people with a desire to earn a living and care for their own in the best country in the world.  They were not born into a wealthy family and left with a large inheritance like their employer.  Rather, they earn each dollar working for a man who values money more than the lives of his employees.

Take a look in one of your mirrors that was likely hung by an immigrant worker and that is now cleaned by an immigrant worker Mr. Trump, you might see someone who has earned a lot of money on the backs of hard working immigrants but has now lost something money cannot buy, self-respect.

Written by Matt Maiona, Member, AILA Media Advocacy Committee

LGBT Detention Must End

shutterstock_142284691On June 23, 2015, 35 members of the House of Representatives wrote to Secretary Johnson, calling on the Obama Administration to end the detention of LGBT immigrants in ICE custody, especially transgender women.[1] The letter requested the administration seek parole and alternatives to detention for LGBT immigrants, including supervised release. These alternatives to the status quo are urgently needed because of every five victims of confirmed sexual abuse in ICE detention, one victim is transgender. This is a staggering statistic of victimhood for transgender individuals, especially when only around 75 trans persons are detained by ICE each day. While it does not need reminding, ICE is authorized to detain and house up to 34,000 immigrants in any given day.

The advocacy centered on LGBT immigrants is not an attempt to prefer LGBT detainees over the detainee population as a whole. The goal is ensure their safety while in the custody of the U.S. government and to drive the conversation of whether ICE/ERO can and should do better in releasing LGBT and non-LGBT detainees through alternatives to detention, instead of locking them up in jails for prolonged periods of time.

There are many arguments to be made as to why detention should be used sparingly. This includes the high cost of detaining individuals and the barriers created through the detention system for those who seek to find and hire a lawyer. However, the simple question remains: if a person is not a threat or a priority for removal and the person is likely to show up for an immigration hearing in the future, shouldn’t they be released?

In the context of LGBT immigrants, many flee their home countries due to persecution they have suffered on account of their sexual orientation and/or gender identity. They seek asylum in the U.S. to protect them from the harms suffered in their past or what awaits them if they are forced to return to a country that persecutes LGBT persons. Knowing why these LGBT individuals are present in the U.S. makes it extremely likely they will want to pursue their case in front of an immigration judge. Should LGBT immigrants benefit from some form of an alternative to detention, these LGBT immigrants would be safer, would be able to seek the help of family/friends, and would be able to find more resources to assist them in their legal cases. Most importantly, they would want to show up and fight their case in immigration court.

While there is much work to do surrounding the issue of LGBT detention, ICE/ERO recently announced that transgender women qualify to be housed in women’s detention facilities.[2] Additionally, ICE/ERO will train its personnel to inquire about gender identity to determine how an immigrant identifies, if that person so chooses to disclose.[3] While the impact of these trans-inclusive policies and the full implementation are yet to be seen, these actions do go a long way in the goal of ICE/ERO in providing “a respectful, safe, and secure environment for all detainees, including those individuals who identify as transgender.”[4]

Written by Mike Jarecki, Member of the AILA Media Advocacy Committee and the LGBT Immigration Issues Working Group

[1] http://www.aila.org/advo-media/whats-happening-in-congress/congressional-updates/35-reps-end-detention-lgbt-immigrants

[2] http://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandum.pdf

[3] Id.

[4] Id.

A Long Journey for Justice: the Continuing Fight for LGBT Immigrants

shutterstock_56068639As the nation rejoiced after the Supreme Court ruling on Obergefell v. Hodges, I recalled the celebrations at AILA’s 2013 annual conference in San Francisco on the day that the Supreme Court decided Windsor v. Connecticut.   Windsor and subsequent Department of Homeland Security (DHS) directives made it clear that U.S. Citizenship and Immigration Services (USCIS) would recognize marriages of couples of the same sex for immigration purposes.  However, while our clients no longer had to worry about physical separation and removal from their spouses or partners, they did have to suffer additional indignities  if they lived in a state that refused to recognize their marriage.  For that, we celebrate but also reflect on the bumpy path to equality.

As a measure of how far we have come, before 1990, being gay was a ground for inadmissibility.   Before Windsor, we had to either file for asylum for our gay clients or see them separated from their partners as we scrambled for other options in the non-immigrant realm.   While the US did not accord the right of marriage to same-sex couples, the absolute terror that many of our clients faced in their home countries due to their sexual orientation was real, and it was our job to help protect them.

I remember speaking at several forums about options for LGBT immigrants which seems so historical today.  I also recall that as AILA’s USCIS Liaison Committee Chair in 2010-2011, we pressed USCIS to hold marriage-based I-130 petitions for same-sex couples in abeyance as marriage was legal in certain states.  We argued that while it was inhumane to separate committed couples before they were allowed to marry in any US jurisdiction, it was draconian and bigoted to place someone married to a US citizen in removal proceedings after denying their I-130 petition.  It was essentially an immigration policy which was in the same league as the over-150-year U.S. ban on naturalization for “nonwhites.”

At the Upper Midwest chapter conference in 2011, I brought that issue to my co-panelist, a USCIS adjudicator from Minneapolis, and he had that same look of empathy we got from USCIS headquarters, but the same line that they could not issue a blanket policy of holding these cases in abeyance.   I loved doing that work because as with many of our actions, it was a fight both to keep people together and for basic justice.  It was an unconscionable form of discrimination nationwide and USCIS was caught in that web of injustice.  I was thrilled that AILA did its part to raise consciousness and move the universal arc one step closer to justice.

This spring I spoke on a panel with Ali Bushara, a Ugandan gay man who fled his country last year.  We talked about his personal journey, but also the increasing persecution of gay people in many parts of the world such as Russia, which has codified laws to bar adoptions by LGBT members of society.

As my conversation with Ali and my unmarried LGBT clients continue to teach me, the role that AILA has played in seeking justice, equality and protection for LGBT immigrants cannot be set aside after this momentous decision.  We should continue to write, speak and advocate on behalf of basic human rights and make sure that State Department reports are consistent with what we hear from our clients and colleagues.

Written by Mark Shmueli, Member of the AILA EOIR Liaison Committee and the Distance Learning Committee

One Less Brick in the Wall, Mata v. Lynch

shutterstock_162933683We would like to thank AILA for approaching us to give our thoughts on our recent Supreme Court win in Reyes Mata v. Lynch, 576 U.S.___ (2015).

We met Mr. Mata in October of 2012.  Probably the most outstanding thing about his situation was how typical it was.  Like so many of our clients, he is a long-time non-LPR with an assault conviction.  Never mind that his wife later swore under oath that he never struck her or that he is a single parent to three U.S. citizen kids after the same woman was imprisoned for drug trafficking.  Such people often become fodder for negligent attorneys who take their money and then when a brief or a notice of appeal does not get filed, no big deal.  The client who trusted them won’t be around long enough to sue. We took his case pro bono when we discovered his ordeal.

In Mata’s case, his prior attorney had failed to file an appellate brief—typical negligence (Justice Posner recently called the immigration bar “weak,” and he was right.).  We intervened.  By our count, we had filed a motion to reopen with the Board 105 days from the Board’s denial of the appeal.  The Board denied our motion.

On judicial review, the Fifth Circuit cited Ramos-Bonilla v. Mukasey, 543 F. 3d 216 (5th Cir. 2008) for the proposition that it cannot review the BIA’s denial of a request for equitable tolling because it’s all just “sua sponte” (since it is an untimely motion), and the courts typically refuse jurisdiction to review the Board’s use of its sua sponte power.  (Side note: in preparing our petition for certiorari we counted 16 times in the past 7 years the Fifth Circuit has denied petitions for review with the same logic; in my imagination the court has rigged some sort of Ferris Bueller-type automaton to write these opinions while the court is out joyriding in a borrowed Ferrari.).

Our petition for cert. only asked one question: do the courts have jurisdiction over equitable tolling claims like ours?  On June 15, the Court, in an 8-1 decision voiced by Justice Kagen, said the courts do indeed have jurisdiction over such claims.  In vacating the Fifth Circuit’s decision, the Court reiterated its holding in Kucana that the courts have jurisdiction to review motions to reopen, and added “[n]othing changes when the Board denied a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling.”  Slip. op. at 4.  At first glance, these words appear to expand jurisdiction only where an equitable tolling claim is at issue.  But the Court held that the appeals courts have jurisdiction over all motions to reopen, regardless of whether they are seeking equitable tolling.  Slip op. at 5 (“Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.”).

What does this mean?  While the Court pussyfoots around the big question, i.e. whether the courts can review the BIA’s sua sponte decisions for abuse of discretion, the fact remains that every time the Board invokes its sua sponte authority, it necessarily does so in a decision where it has already found that a motion is either untimely or does not meet the criteria for a motion to reopen or reconsider.  See INA § 240(c)(6-7)).  And because the Court has definitively separated the Board’s rejection of the motion for not meeting statutory criteria from its rejection for not meeting the sua sponte standard, this must mean that every decision of the Board is subject to at least some degree of abuse of discretion review.  Rather than denying jurisdiction for untimeliness, the Fifth Circuit now has to examine whether the Board abused its discretion in rejecting the motion because of its untimeliness.  What goes into this consideration? Mere review of the timeliness of the motion (hopefully taking into account equitable tolling and not just based on ineffective assistance of counsel)?  Or might there also be room to argue that the Board abuses its discretion in denying a motion, regardless of timeliness, when the error or deprivation sought to be redressed is particularly compelling?  When, for example, a client was ordered removed based on incorrect law?  The court must now establish some rule for overturning or not overturning the BIA in such situations, and an absolute prohibition would have the same result as a jurisdictional bar, potentially conflicting with Reyes Mata.

And what of Heckler v. Chaney, 470 US 821 (1985), the case so often relied upon as creating a blanket jurisdictional bar to review of the BIA’s sua sponte decisions?  Reyes Mata does not so much as cite it.  And the Court’s antipathy to judicial creation of artificial jurisdictional barriers to reviewing motions to reopen would seem to conflict with its application in immigration proceedings.

Mata v. Lynch contains at least one more gem.  Justice Kagen’s biggest beef at oral argument (one all the justices seemed to agree with) and the subject of her final thought, slip op. at 8, was that the Fifth Circuit was “wrap[ping]” its “merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other.”  Slip op. at 8.  In other words, the Court is hyper-aware of the appeals courts’ (and presumably of the agencies’) attempts to construe their jurisdiction in such a way that they can avoid rendering a merits decision which would otherwise appear extremely unjust to a reviewing court.  At Gonzalez Olivieri, we represent a small army of unjustly deported clients (removed pre-Lopez v. Gonzalez, pre-Carachuri, pre-Leocal v. Ashcroft, pre-St. Cyr, pre-Judulang, you name it) who would very much like to present their merits claims to the judicial courts and are ready to go all World War Z on the sua sponte jurisdictional wall.  For those of us who labor in the Fifth Circuit, getting equitable tolling (the next big question in Mata) will be a start.  But that wall, built by Heckler, is just another review-shielding jurisdictional barrier as it relates to immigration proceedings, and we, as well, I think, as some of the Supreme Court justices, would like to see it come down.  Mata v. Lynch may hopefully represent one less brick in that wall.

Written by Raed Gonzalez, AILA Member

H-1B Cap Slows U.S. Innovation

The Fiscashutterstock_192420653l Year 2016 H-1B random selection process for skilled workers is over.  As with many other immigration lawyers around the country, I am dealing with employer fallout over the loss of badly needed skilled professionals whose petitions weren’t selected.  Many of these would-be H-1B beneficiaries are already working for the employer in a status called Optional Practical Training.  Optional Practical Training is an employment authorized status permitted for 12 to 29 months after graduation from an accredited U.S. university.

This post addresses the plight of  U.S. based employers who produce products and services for the U.S. economy including legitimate management consulting firms who work with clients to install and improve management technology and go on to new projects.   These employers are to be distinguished from the perceived type of employer mentioned in recent New York Times pieces.  While the entirety of those situations aren’t yet known, what I do know is this: the H-1B visa was not intended to displace U.S. workers and there are regulatory safeguards in place.  In fact, the H-1B visa has contributed to the productivity of many employers in ways that have then led to many more jobs for U.S. workers.

It is hard to tell an employer that a star employee will no longer be authorized to work for them in the U.S.  They don’t understand how random and arcane the process is, particularly that this year there were only enough H-1B visas available to cover about 25% of the 233,000+ petitions filed for fiscal year 2016.

I’ve worked on a number of H-1B cases over the years and the employers I work with are doing their best in a confusing process. Here’s an example – one client requires a special skill set offered in a program at a top rated university. In recruiting at this institution, they discovered that only one US worker was enrolled in the program, so hiring a U.S. worker with the skills required is virtually impossible from the outset.

Other employers are scrambling looking for alternative work visas and when that fails, to figure out the legalities of contracting for remote services to be performed abroad for key employees.  These are but two of thousands of compelling examples of what U.S. employers are dealing with.  I’ve had multiple employers tell me that if they could find US workers to fill their open positions, they would gladly hire them and avoid this “visa morass.”

More than half of the H-1B petitions filed are for occupations in the STEM (Science, Technology Engineering and Mathematics fields).  Many of those whose employers have applied for them graduated from U.S. universities with STEM degrees! According to the Institute of International Educational Exchange, two thirds of foreign students studying at US universities are pursuing degrees in STEM or business fields; 84.8% of them have attained U.S. Master’s or Doctorate Degrees. Now that we’ve educated them, shouldn’t we do our best to keep them in the U.S. to become job creators?

Today, the U.S. is in an international fight to maintain hegemony in innovation and technological advances.  These highly skilled foreign students that we have educated can pick from a number of welcoming countries nipping at our heels to pass us as the world’s leading innovators.  They are a significant – and vital – part of our continued growth in cutting edge industry; indeed, according to Todd Park, the former U.S. Chief Technology Officer, every foreign-born graduate with an advanced STEM degree is associated with, on average, 2.6 jobs for American workers.  And, by some estimates, according to Mr. Park, immigration was responsible for one-third of the growth in patenting in past decades; these innovations contributed to increasing U.S. GDP by 2.4 percent.

The problem with the H-1B shortage stems from the Immigration Act of 1990 (Immact 90).  For the first time, annual numeric caps were imposed on the H-1B visa initially permitting a limit of 65,000 visas per year. What appeared to be a generous figure in 1990 soon became a huge headache for employers. In 2000, the American Competitiveness in the 21st Century Act exempted certain non-profits, primarily institutions of higher education and governmental research groups from the cap.  It also temporarily increased the H-1B cap to 195,000 for FY 2001 through 2003.  This was an acknowledgement that the existing H-1B cap was woefully inadequate and one can only conjecture that it was anticipated that by the end of this cap increase, a solution to the problem would be forthcoming.  It was not. After the H-1B returned to the draconian limit of 65,000, a permanent increase of 20,000 for holders of U.S. Masters Degrees was enacted.  A total of eighty-five thousand H-1B petitions is still woefully inadequate for our nation’s increasing demand for highly educated workers, especially in the STEM fields.

Static numerical limits for visas and green cards are fraught with problems.  A fixed numerical cap established almost 25 years ago doesn’t anticipate the needs of a growing economy. Another example of short-sightedness in visa limitations can be seen in the green card context. The Immigration Act of 1990 also abolished the old employment-based 3rd and 6th immigrant visa system and set up a five tier employment-based system with increased immigration numbers.  Again, many of these categories have become badly backlogged over time, particularly for those chargeable to the India and China country quotas.

A reform of our current system is badly needed if we are going to continue to retain the talent that we educate and utilize their abilities to help our economy’s growth. Every day, week, month, and year that goes by and Congress doesn’t pass immigration reform is another day, week, month, and year where our nation stagnates instead of grows.

Written by Deb Notkin, AILA Media-Advocacy Committee Vice Chair and former AILA President

A Failed Hail Mary

shutterstock_246224011A profound moment in immigration history is upon us.  Through change in administrative rules, certain H-4 visa holders were able to begin applying for work authorization on May 26.  This privilege did not come about easily. Activists, including H-4 spouses themselves, fought long and hard for it. While they had been advocating for years, the first glimmer of hope came in 2011 when the Department of Homeland Security proposed a new rule to extend work authorization to some within their ranks.  But with still no action, supporters in 2014 stepped up their game and submitted their own petition to the White House, sparking engagement from the administration.

Almost four years after first being proposed, the rule became final in February, 2015. USCIS then announced it would begin accepting employment authorization applications in May.  At a stakeholder meeting to discuss the new rule, USCIS Director Leon Rodriguez described how impressed he was by the persistence of advocates on this issue. And he revealed a rare insight into what happens to the targets of such advocacy — people like himself. Brand new to the position of director, and no doubt still settling in, he said he was fielding emails and phone calls every 15 minutes for eight months from people telling their stories of hardship.  I am sure he felt the pressure!

So desperately needed, the new rule will allow H-4 visa holders to apply for work permits if their H-1B spouses have an approved I-140 or if they have had their H-1B extended beyond six years. It does not go far enough to allow all H-4 visa holders to get work authorization.

Incidentally, the H-4 rule was almost thwarted by a lawsuit filed by the group, Save Jobs USA (SJU), made up primarily of former technology workers at Southern California Edison (SCE).  SJU wanted a preliminary injunction to stop the rule from taking effect this week.

In the suit, Save Jobs USA v. US Department of Homeland Security, SJU claimed that H-4 visa holders will make it harder for its members to find work. The group represents former SCE workers who claim they were fired from their positions and made to train H-1B replacement workers as a condition for receiving their severance packages.  The organization argued that the new rule favoring H-4 spouses is arbitrary and capricious and must be invalidated because DHS lacks the authority to allow these spouses to work in the U.S. However, the law requires SJU to prove that without preliminary relief, its members would likely suffer irreparable harm and that issuing the injunction is in the public interest.

To meet the standard of irreparable harm, SJU had to prove, with sufficient evidence, that the purported injury is “certain, great, actual, imminent and beyond remediation.” To support its motion, the group submitted affidavits from three members who were former IT employees at SCE.

It also cited advertisements from IT placement firms seeking H-4 visa holders as evidence of competition. DHS argued — and the court accepted — that the ads were not for jobs but rather to provide training for H-4 visa holders.

The court held that SJU failed to meet the burden of proof for a preliminary injunction.  SJU had argued that the harm was real because there would be increased competition from H-4 visa holders. But the court countered that the H-4 spouses will not be limited in their employment and could apply for jobs in retail, finance and myriad other industries. There was no proof they would apply for IT jobs and compete with SJU members.  Speculative economic loss, the court said, was insufficient to prove severe loss. The court also held that the purported injury was not imminent since it takes months to process an application for employment authorization and it was uncertain when or if the competition would begin. The court also held that there was no harm beyond remediation because SJU members would find themselves in this same situation, with or without preliminary relief.

The court did acknowledge that both parties have compelling arguments: SJU seeks to protect its members while DHS would face difficulties if the H-4 employment authorization program, years in the making, had to be delayed.  The court made no indication as to whether one argument was more compelling than the other.

In sum, SJU lobbed a Hail Mary in the hope of stopping this rule from being implemented. Luckily, it didn’t work. DHS’ win was not only a win for that agency, but for all advocates, including AILA. And it’s a victory for H-4 spouses and their families who have been fighting this battle for years. What a relief that we won’t have a repeat of the unfortunate circumstances playing out in Texas v. United States, where DAPA and extended DACA applicants still face an uncertain future.  And although the case is not closed, for now, we can all feel victorious for our clients.

My hope is that H-4 visa holders who quickly find jobs will continue to communicate with us so we can collate evidence proving that the U.S. economy is better for having more resourceful and skilled workers in every industry. It would also prove that those who opposed the rule were wrong. And I hope that this proof will also pave the way for all H-4 visa holders to be eligible for work authorization, just like spouses of E-2 and L-1 visa holders.

Written by Tahmina Watson, Co-Chair of the AILA WA-Parents Committee

Understanding the Mindset

shutterstock_255315073 2On May 5 and 6, 2015, Ryan Hutton and Rafael Henry from Customs and Border Protection (CBP) Headquarters invited a group of AILA members to attend a southern border tour in Texas. On the first day, we visited the land border crossing at the Hidalgo Port of Entry, and on the second day we visited the Brownsville Port of Entry, which includes land, rail and sea crossings. The personnel at both ports were extremely welcoming and spent several hours demonstrating the use of their inspection procedures and equipment. We witnessed not only immigration inspections but also screenings for contraband, Customs violations, and agricultural pests.

As we walked through the ports, we were able to speak with various specialists. For example, an X-ray scanner showed us images of truck cargo and pointed out instances in which drugs were concealed within various compartments of vehicles. (These were about as easy for the untrained eye to spot as babies’ organs on an ultrasound image: not very). We also witnessed the wanton destruction of several luscious mangoes by a skilled agricultural inspector checking for insect larvae. He told us he had chopped up so many mangoes in his career that he can no longer eat them (a travesty).

As the tours progressed, a theme began to emerge. Regardless of which type of specialist we spoke to, each one expressed an awareness that the vast majority of travelers and/or cargo screened were compliant with federal regulations for admission. Each specialist was trained to look for the proverbial needle in the haystack—the one traveler (or poor, sweet mango) that was not compliant. As attorneys who deal exclusively with the immigration piece of border issues, it is helpful to be aware of this pervasive mindset. Inspectors at the border have a mental construct of a “good” case or applicant and when questioning a traveler, they are looking for something out of the ordinary, something that doesn’t sit right, doesn’t fit the mold, seems to be concealing something.

A twin theme was a layered approach to screening. Travelers and cargo are first given a cursory inspection at the primary inspection booth. Officers typically clear each vehicle in under 1 minute. Their job is to quickly clear travelers who do not raise any red flags while referring questionable vehicles or individuals to secondary inspection. All of the screening equipment reflects this two tiered approach. For example, each officer at primary inspection wears a small device on his belt that detects radiation. These devices will go off in the vicinity of any radioactive material, but they cannot detect which radioactive isotope set off the alarm. That is not the role at primary: they just say “whoop-whoop-whoop- PROBLEM!” and send the person inside. Then inside, CBP has more specialized equipment that is capable of determining the exact radioactive isotope and whether it is the result of medical imaging or a nuclear weapon. Again, there is a parallel in this procedure to the screening of applicants for immigration benefits. That is, officers at primary inspection are trained to ask cursory questions to determine whether someone needs to spend more time with an officer. If someone is coming in to buy groceries, and there are no red flags, they likely will be admitted very quickly. But anyone who needs an I-94 will be sent to secondary, as will anyone who cannot immediately be cleared.

It is extremely helpful to us as attorneys to understand this law enforcement mindset, and the way officers are trained to issue spot. It helps us to better prepare our clients for the inspection process and to understand how to present themselves at the port of entry when seeking immigration benefits. It is also beneficial to understand how this process fits within CBP’s wider law enforcement mission.

Written by Danielle Rizzo, Vice Chair, AILA CBP Liaison Committee

Game Changer

Dushutterstock_147037244ring a recent campaign event in Nevada, Hillary Clinton blindsided the 2016 Presidential contestants by stating her unequivocal support for comprehensive immigration reform (CIR) and a clear path to citizenship for the undocumented migrants in the U.S. She also stated the obvious – that when immigration restrictionists talk about legal status “that is code for second-class status.”

A week later – Hillary’s husband, Bill, followed suit during an appearance on Univision and stated his own support for a path to citizenship and referred to the policy of “inclusive governance” as “not rocket science.”

Indeed – as a nation of immigrants – we should encourage and celebrate the possibility of having more citizens.  New blood not only brings innovation, but also supports our industries, and enriches our culture.  Even the idea of long-term or permanent non-citizens is an insult to our Founding Fathers who released this country from the clutched fists of a British government which sanctioned the idea of  having “Subjects” as opposed to free Citizens.

To be sure, I am not a Clinton cheerleader.  Though I voted for Bill Clinton, I am also sober to the many mistakes made under his watch: NAFTA, DOMA, DADT, and of course IIRAIRA, to name a few.  However, I am excited to hear Hillary Clinton speak about CIR because we need to have this discussion once again.

As we all know, in 2013 a reform oriented bipartisan immigration bill passed the U.S. Senate by a vote of 68-32.  Though not perfect, we had a bill we could work with.  Unfortunately, it was never taken up by the House and succumbed to an agonizingly slow death by expiration date when the new congressional session began.

The national conversation then turned to border security, only the Southern border of course, and also to the executive actions taken by President Obama on immigration policy.  The actual way forward, the way to solve the immigration problem, unfortunately got lost in all this noise and useless bravado.

I am not naive.  I understand that to pass any bill, we need both a President and a Congress who are willing to work together.  But I also understand that we live in a democracy where according to a May 2015 CBS/NYT poll, 57% of Americans want the undocumented migrants in this country to be able to apply for citizenship while only 29% want them to leave. We also have the 2016 elections coming up – a chance to vote for a whole new set of Representatives in Congress and a new president in the White House.

That is why I was excited to hear Hillary Clinton bring up CIR.  I am equally ecstatic that Bill Clinton, the very person whose signature is on the dreaded IIRAIRA, is also keeping this discussion alive.  People need to see the obvious: that it is morally reprehensible and financially impossible to remove the entire undocumented community and torpedo the unity of countless families.  Moreover, our security as a nation demands a full accounting of everyone residing within our borders.  It is also a fool’s errand to keep talking about baby steps on immigration reform without acknowledging that the final product cannot be anything short of a path to full U.S. citizenship for those who have already contributed in countless ways to our prosperity.

I hope that the Clintons’ remarks will end the national inaction on immigration and reboot the necessary conversation on CIR.  The restrictionists have, for far too long, drawn the battle lines on this issue.  I am glad to see the reformists reclaim the debate at the onset of our upcoming electoral process.  As an immigrant who is an immigration attorney, I believe the immigration reformists along with the American people at large will be the winners at the end of this Game of Thrones.

Written by Ally Bolour, Member, AILA Media-Advocacy Committee

Punch Line Material

shutterstock_215658637Three cheers to Daniel M. Gerstein and Martina L. Melliand for their story (The forgotten cornerstone in the immigration reform debate) in The Hill yesterday regarding the forgotten child in the immigration reform debate: the immigration court.

We hear endless stories about increased funding for ICE to detain and CBP to restrain but never for EOIR to adjudicate the caseload.  Instead EOIR is expected to continue to do more with less as the Department of Justice and Congress send funds elsewhere.

Immigration courts across the United States perform a herculean task on a daily basis with minimal office staffing and not enough judges.  However, Congress continually refuses to open its wallet so that the immigration courts can be properly staffed.

Because of this situation, the judges and staff that remain at the courts nationwide perform the work of two or three and respondents can expect that their case will not be heard for a number of years.  Unfortunately this is not likely to change.

Politicians will argue for funding for ICE and CBP because these agencies are tied to border security and enforcement and this is what captures the headlines.  Adjudication of 436,370 and growing cases nationwide will have to wait because it’s not headline material even as it drifts into punch line material.

Written by Matt Maiona, Member, AILA Media Advocacy Committee