Immigration reform looked imminent in 2013. The 2012 elections demonstrated yet another discrepancy in the Latino electorate voting for Democrats, much like 2008. President Obama had issued executive orders to implement the DACA program in 2012 as a stop gap measure before comprehensive immigration reform emerged. Republicans were amenable to working with Democrats on comprehensive immigration reform, meaning a bill that covered business immigration, border enforcement, family immigration, and pathways to citizenship to certain individuals without status.

The driving force was the Gang of 8 – a bipartisan group of senators that pushed for immigration reform. They were partly successful. The Senate voted to pass a bill for comprehensive immigration reform. The House refused to pass the bill and comprehensive immigration reform has remained elusive since.

Immigration has become a hot topic once again over the past year, taking center stage in the presidential election. The Gang of 8 was heralded in 2013 as the cooler heads prevailing amongst the hotter temperaments. If the Gang of 8 is revived after the 2016 election, it will most likely have to resist a vitriolic and divided atmosphere. The status of DACA plus and DAPA and dormancy of comprehensive immigration reform show that immigration reform has been nonexistent since 2013. In the vacuum, states have passed their own immigration laws.

The post Gang of 8 Is Back? appeared first on Wood Immigration Law.

A new bill – The High Skilled Integrity and Fairness Act of 2015 – is poised to be introduced by two Californian legislators: Zoe Lofgren (D) and Darrell Issa (R). The bill proposes multiple changes to the H-1B visa and employment-based immigration, particularly to the H-1B lottery. The highlights of the bill are listed below:

• It will fundamentally alter the way the lottery works. The lottery process is shrouded in mystery, hence a lawsuit to extract information. Theoretically, all petitions are equally treated. This bill proposes giving employers who pay their prospective H-1B employees the most over the prevailing wage the best chance at success in the lottery. For example, an IT company that is willing to pay its Software Developer 200% of the prevailing wage will have an advantage over the IT company that is going to pay its Software Developer a dollar above the prevailing wage.
• Wages would not solely determine a petition’s chance at success in the new lottery. Also taken into consideration would be companies that hire US workers mainly. H-1B dependent employers would be prejudiced in favor of those companies.
• 20% of the lottery H-1B visas would be allocated to small companies (firms with fewer than 50 employees). This is to address the complaint of small and medium companies that a few large companies eat up all of the H-1B visas in the lottery.
• H-1B dependent employers currently have to pay a $60,000 salary to count themselves as exempt from the recruitment process. That threshold would increase to $130,000 under the bill. There may be a loophole if the employer petitions the employee for a Green Card.
• Per country caps on employment-based immigration visas would be eliminated. There are 140,000 employment-based immigrant visas available a year. The nationals of a country cannot obtain more than 7% of that number. By sheer population, that puts nationals of India and China at a major disadvantage, and they have to spend extraordinary times waiting for their Permanent Residence, despite approved employment-based immigration petitions.
• The L-1 visa remains untouched by this bill. There is no mention of filing fees, which are due to increase anyway. Certain companies have been hit with an enormous filing fee for H and L visa petitions.

List most legislation concerning immigration reform, this could go by the wayside. The legislative process may create even more changes or dilute some of the proposals.

The post H-1B Bill Seeks Changes appeared first on Wood Immigration Law.

Friday April 7 is the National Day of Action for immigration. Immigration lawyers, activists, advocates, and immigrants descend upon Washington DC and Capitol Hill to vocalize their concerns with the immigration system. Last year’s Day of Action occurred on May 19, which was the day that President Obama’s Executive Actions – DAPA and new DACA – were supposed to begin. They have not yet taken effect. A federal judge in Texas struck them down for abrogating the Administrative Procedures Act and the Court of Appeals for the Fifth Circuit upheld that decision. The Supreme Court is expected to make its decision in June of this year.

The National Day of Action is not limited to one piece of the immigration system. Advocates will be championing other aspects of immigration reform, such as changing the H-1B cap, increasing entrepreneurial opportunities, and giving migrants fleeing persecution access to counsel and a chance to have their cases heard.

The main motivation of the National Day of Action is to exhort members of Congress to understand facts about immigration, how it benefits the United States, and demonstrate that immigration reform is desired by the country at large. A booklet distributed by the American Immigration Lawyers Association highlights important facts about immigration in the United States.

Immigrants have created businesses and generated business income in their states. California, Texas, Florida, and Ohio are four states in which a combined 1.3 million immigrants started businesses and generated over 58 million dollars in business income. Immigrant-owned small businesses employ 4.7 million people. Legalization of undocumented immigrants would have a significant impact on the tax revenue, to which undocumented migrants contribute to (state and local taxes) already.

The National Day of Action urges reform in all aspects of immigration: humanitarian, family, and business. Immigration reform has been oft-discussed but not enacted. AILA is touting the election year as an impetus to change.

The post National Day of Action appeared first on Wood Immigration Law.

Immigration reform has probably fizzled out as a possibility, despite looking imminent in 2012 and reaching a crescendo in 2013 with major legislative movement. Here are some recent quotes from Congresspersons on the possibility of immigration reform.

Marco Rubio, Florida Senator and Candidate for President

John McCain, Arizona Senator

Paul Ryan, Speaker of the House

The protections that Marco Rubio mentions are part of the deferred action program (DACA), which has been in effect since June 15, 2012. Mr. Rubio has flatly stated the that DACA program needs to end. An executive action in November 2014 attempted to expand DACA and add relief for parents of Americans (DAPA). The expanded version of it and DAPA were struck down by a federal judge in Texas in February. The US Court of Appeals for the Fifth Circuit has not yet ruled on the matter.

The post Immigration Reform in the News appeared first on Wood Immigration Law.

S. 2146: Stop Sanctuary Policies and Protect Americans Act did not pass the Senate yesterday. It received 54 votes in favor, 6 short of the 60 required. The bill was proposed over the summer but recently was brought to a vote after being stuck in committee. The purpose of the bill was to limit federal grants to cities that do not comply with detainers issued by the Department of Homeland Security. There were also provisions to stiffen penalties for individuals who reenter the United States without authorization.

Sanctuary cities, such as San Francisco, have been lambasted for not cooperating with DHS and Immigration and Customs Enforcement. S. 2146 is the federal action against sanctuary cities, but there are local actions that are gaining in popularity. North Carolina’s legislature voted to ban local governments from preventing local law enforcement from working with federal immigration agents. Michigan and Texas are preparing their own anti-sanctuary city bills.

Opposition to the bill has been pronounced, despite the public and Congressional popularity of it. A House version of the Senate bill passed in the House during the summer, but President Obama vetoed it. Two years ago, immigration reform held the promise of being comprehensive and bipartisan. Yesterday was the clearest political indication that it is currently partisan and divisive.

The post Sanctuary Cities Bill Defeated appeared first on Wood Immigration Law.

Leon Rodriguez gave a speech in Salt Lake City, Utah yesterday, in which he upbraided the immigration system for lacking “justice.” Rodriguez is the director of US Citizenship and Immigration Services, which is the benefits wing of the Department of Homeland Security. He delivered his speech to the Catholic Legal Immigration Network, defending President Obama’s executive orders and imploring Congress to improve justice within the immigration regime.

Rodriguez’s critique of the immigration system carries family history. He is the son of Cuban immigrants and his family was split apart as some members migrated from Cuba in the 1960s. Some members of his family were fortunate to escape and begin a new life in the United States. Others were left behind. His larger point, illustrated through his family, was that the immigration framework that governs today was built in the 1960s and “does not reflect our economy, does not reflect our demographics, and does not reflect – above all – our values.”

The executive orders that President Obama announced six months ago included the DAPA and expanded DACA programs. 25 states sued the Department of Justice, refusing to allow the programs to proceed. A federal judge in Texas stayed the orders and the Fifth Circuit listened to oral arguments last month.
Director Rodriguez was very encouraged, despite the current state of dormancy for the programs. He claimed that USCIS is ready to implement the programs once the stay is lifted. He called on opponents of Obama’s executive orders to propose legitimate and workable solutions for immigration reform. The Director called the executive orders the “path to actual reform” and believes only Congress can pass legislation for undocumented immigrants to have a path to citizenship and that would represent real reform.

The post Encouraging USCIS Speech appeared first on Wood Immigration Law.

The basis of Superior Court Judge Arthur Anderson’s decision is that federal law determines who is lawfully present in the United States. Arizona has a voter-enacted law, Proposition 300, which demands that individuals seeking a federal, state, or local public benefit must submit specific documentation to prove lawful presence in the United States. There are also prohibitions from Arizona’s controversial SB1070 law, which was largely but not entirety stricken down by the United States Supreme Court.

The DREAMers have been clamoring for comprehensive immigration reform that will grant them a pathway to citizenship, as long as they meet certain requirements. Their argument is that they were brought to the United States as young children and have grown up knowing themselves to be Americans. Many DREAMers are unaware of their status until they start applying for colleges and realize that they do not qualify for scholarships and federal benefits because of their status.

Deferred action is not immigration status that grants green cards or a path to citizenship. It is a temporary allowance of authorized stay without many benefits. Individuals can obtain work authorization. Deferred Action for Childhood Arrivals (DACA) was announced on June 15, 2012 and is available for periods of two years. Expanded DACA and Deferred Action for Parents of Americans (DAPA) are being challenged by 26 states in Texas v. United States. The case is currently awaiting a decision in the Fifth Circuit after a federal judge in Texas blocked implementation of the programs because they were announced without following the Administrative Procedural Act’s Notice-and-Comment.

The post DACA In State College Tuition appeared first on Wood Immigration Law.

Judge Harlan of the Southern District of Texas decided against lifting his order from February, ensuring that the expanded DACA and DAPA programs remain unavailable. In February, the federal judge had blocked those two programs from going into effect, agreeing with plaintiff Texas that the president’s executive actions had not followed the proper procedure.

President Obama’s executive orders on immigration have been controversial, but his administration has argued they are necessary in response to congressional inaction on immigration reform. Immigration reform has been a prime legislative topic for years, but repeated attempts to pass laws have faltered. We have followed the news closely since the anticipation of executive action in the fall of 2014. The executive orders are widespread, covering everything from L-1B visa guidance to National Interest Waivers for entrepreneurs. The orders receiving the most attention and currently in litigation are Expanded DACA and DAPA.

DACA has been instituted as a program since June 2012. Expanded DACA and DAPA were additions to bolster protections for individuals without status who are low priorities for removal. Expanded DACA starts the clock of physical presence and continuous residence from January 1, 2010, allows for three years of work authorization and removal protection, and eliminates the age requirement original DACA has. DAPA is for the parents of US citizens or Permanent Residents and would be a boon for families in which a parent or parents are unauthorized. The clock of physical presence and continuous residence also starts from January 1, 2010 for that program.

The US Court of Appeals for the Fifth Circuit is expected to hear the appeal next week. The mayors of 73 cities and counties, 109 immigration law professors, advocacy groups, 181 members of Congress, 15 states and Washington DC have filed their amici briefs in support of the Department of Justice, which is defending the programs.

We will provide more news next week, as the case develops.

The post DACA/DAPA Stayed appeared first on Wood Immigration Law.

       If applications were filed like they were last year, Vermont and California Service Centers have received around 200,000 H-1B visa applications this past week. Because only 65,000 (+20,000 for U.S. Master’s Degrees) visas are available, the applications are spun in a lottery and the ones that win the “lottery” are processed. The others are returned.

The reason that April 1-7 is the period applications are sent is because they must be filed within 6 months of the start of the fiscal year, which is October 1. October 1 cannot be requested with a February filing. All of the visa spots are taken if filed in July (in most years). A congressional bill has been posed twice to expand H-1B visas by need, but it has been an idea more than a legislative possibility. The number of H-1B visas available used to fluctuate and expand, but it has been consistently on the lower end for nearly a decade.

H-1B season does not have to be over for you. If you hold a Bachelor’s degree (or higher) in a specialty occupation, there are still opportunities for the H-1B visa. Some employers are cap-exempt, meaning that their applications for H-1B visas are not subject to the 65,000 or 20,000 limit. These employers are either universities or have an affiliation with universities such that the majority of work is furthering the purpose of that institution. That exception does not apply, for example, to a construction company that is building on a university. The scholastic purpose needs to be more apparent.

If you hold an H-1B visa, transfers and extensions can be executed without worrying about the cap. Once an individual has made it under the cap, she is able to transfer and request an extension without being subject to the cap. The H-1B can be utilized for six years; it can then be restarted by going overseas for a year continuously.

There are options outside the H-1B for employment visas, but judging by the competition for a limited number of slots, it is the most coveted. It also has the advantage of “dual intent.” Even though it is a non-immigrant visa, a visa holder may apply for Permanent Residence with the proper sponsorship.

UPDATE: President Leslie Holman of the American Immigration Lawyers Association responded to the news of a lottery, bemoaning the insufficient number of visas available.

The post H-1B Cap Season Ends appeared first on Wood Immigration Law.

The Immigration Innovation (I Squared) Act of 2015 is a bipartisan proposal by the US Senate to encourage the influx and retention of “high-skilled” talent and labor in the United States. The focus of the bill is the H-1B visa, which is for foreigners with a job opportunity, in a specialty profession that requires a bachelor’s degree. The other requirements are that the employer will pay the foreign employee at the prevailing wage or actual wage and that the hiring of the employee will not adversely affect the working conditions for US workers. To obtain an H-1B visa is an entire process for the employer (labor condition agreement, attestations, expenses), and although some employers fall into H-1B dependency, some of the most powerful and wealthy companies (also, small and medium-sized businesses) have clamored for H-1B visa reform for years and years as part of necessary immigration reform to keep American globally competitive. The H-1B visa can be used for a variety of professions – medicine, accountant, engineer – but it seems that its preponderance is located in computer-based professions.

I Squared has specific proposals that please the advocates of H-1B reforms. They are (not exclusively):

• Increasing the cap of visas from 65,000 to 115,000;
• Eliminating the 20,000 Master’s Degree or higher exempt visas;
• Employment Authorization for H-4 spouse visa holders (H-4 visas are for dependents and the recent executive actions intimate at work authorization for H-4 holders);
• Exempting dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap;
• Removing the annual per-country limits for employment-based visas;
• Instituting a grant program to promote STEM education and US worker retraining

An important aspect of increasing the visa cap to 115,000 is that number represents the floor on the number of visas to be issued for the fiscal year. That number can elevate to 195,000 depending on demand for that particular year.

Even if this bill were to become a law in short order, its provisions would not apply to the current round of H-1B applications. H-1B applications need to be sent out by March 31 for the April 1 filing date to be considered for October 1, when the fiscal year begins. As the cap is usually reached that first week in October, timing is crucial. The consistent and excessive demand for H-1B visas proves that reform in this category is necessary. Although it seems to have the appearance of bipartisan support, the legislative and political process will still have their say. Senator Orrin Hatch proposed a similar bill in 2013 (with the possibility of a 300,000 visa cap) that did not flourish into a bill. Regardless, we remain hopeful that the H-1B visa system and employment-based immigration will be improved in short order.

The post I Squared: More H-1B Visas appeared first on Wood Immigration Law.