Tag Archives: immigration reform

Encouraging USCIS Speech

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USCIS Director Delivers Speech on Immigration Reform

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.

DACA In State College Tuition

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A judge in Maricopa County Arizona ruled on May 5 that immigrants granted deferred deportation status are eligible for in-state college tuition. This is a state court decision that will save thousands of dollars for DREAMers attending Maricopa County Community Colleges. Arizona is often the arena for contentious immigration litigation and legislation. Maricopa County is also the home of famed anti-immigration  Sheriff Joe Arapaio. This ruling could set a precedent for other schools and other states to level in-state tuition for their students with deferred action.

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.

DACA/DAPA Stayed

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Judge Refuses to Lift Temporary Order Against Expanded DACA and DAPA

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.

H-1B Cap Season Ends

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H-1B Season Is Over, Kind Of:

       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.

I Squared: More H-1B Visas

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US H-1B Visa Petitions

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.