The ABCs of Immigration Law

By Marcy Stras on Posted in Uncategorized

Friends,

This month, the White House is celebrating the contributions of diverse immigrant communities. Last week, President Obama reiterated his support for comprehensive immigration reform, including the DREAM Act, at the White House’s annual Cinco de Mayo celebration.

President Barack Obama delivers remarks at a Cinco de Mayo event in the Rose Garden of the White House, May 3, 2012. (Official White House Photo by Pete Souza)

Here’s an excerpt of the President’s Cinco de Mayo remarks:

We’re going to keep fighting for this common-sense reform — not just because hundreds of thousands of talented young students depend on it, but because ultimately America depends on it. “No” is not an option. I want to sign the DREAM Act into law. I’ve got the pens all ready. I’m willing to work with anybody who is serious to get this done, and to achieve bipartisan, comprehensive immigration reform that solves this challenge once and for all.

It’s worth remembering; America is and always will be a nation of immigrants. We are richer because of the men and women and children who have come to our shores and joined our union.

To hear the President’s full remarks, click here.

Throughout the entire month of May, the Administration will celebrate Asian American and Pacific Island (AAPI) Heritage month.  In this year’s Presidential Proclamation on AAPI Heritage Month, the President reminded us that “generations of AAPIs have helped make America what it is today.” In this Immigration Action Update, you will read a blog about the important work being done by Harry Leong, an AAPI leader who returned to the White House last month for an event with President Obama celebrating a year of the Champions of Change program, which recognizes ordinary Americans from across the country who are doing extraordinary work in their communities.

During the program’s first year, the White House hosted a roundtable with leaders working to integrate immigrants into their new communities. One of those leaders, Patience Lehrman, also returned for the anniversary celebration. To read more, click here.

President Barack Obama meets with Champions of Change alumni in the Map Room of the White House, April 26, 2012. (Official White House Photo by Pete Souza)

In this edition of your Immigration Action Update, you’ll also find important agency updates, including the Department of State’s new Interim Final Rule on the Summer Work Travel/J-1 visa program, U.S. Citizenship and Immigration Services (USCIS) announcement re-designating Somalia for Temporary Protected Status (TPS ), a new policy memo on transgender immigration benefits, H-1B visa cap issues, Department of Homeland Security’s (DHS) new language access plan, and Immigration and Customs Enforcement’s (ICE) new relief for certain F-1 Syrian students.

Additional Blog Highlights include information on the next steps USCIS is taking on its Entrepreneurs in Residence (EIR) Initiative.

Also, don’t forget to read below and learn how you can participate in upcoming Administration stakeholder calls.

As always, please share with your networks and have a wonderful week!

By Marcy Stras on Posted in Uncategorized

Buenas Tardes:

On the weekend of April 13, 2012, President Barack Obama participated in the 6th Summit of the Americas in Cartagena, Colombia. The United States and Western Hemisphere region enjoy extensive economic linkages, rich cultural people-to-people connections, and a shared belief in inclusive growth and broad-based opportunity.

In his remarks at the Summit of the Americas, President Obama laid out the issues for discussion — including trade, strong cooperation on cutting edge energy security, and a network of connections among our countries and people that allow the efficient movement of knowledge, ideas and technology. To read more about the 6th Summit of the Americas, click here.

President Barack Obama participates in the CEO Summit of the Americas panel discussion at the Hilton Hotel, Cartagena, Colombia, April 14, 2012. President of Brazil Dilma Rousseff and President of Colombia Juan Manuel Santos took part. (Official White House Photo by Pete Souza)

On April 12, 2012, the White House hosted the “White House Conference on Connecting the Americas.” in conjunction with the U.S. Department of Commerce and the Council on the Americas. The all-day conference brought together business and community leaders from across the country with Administration officials working to expand opportunities for American businesses and people throughout the Americas. Secretary of Commerce John Bryson gave the opening remarks, Secretary of Interior Ken Salazar gave remarks at the day’s luncheon, and Secretary of State Hillary Clinton delivered the closing remarks. To read more about the conference, click here.

Secretary Clinton delivers remarks at the White House Conference on Connecting the Americas, at the White House. (Photo Credit: Michael Grossman Dept. of State)

On April 11, 2012, the White House released a report, The Buffett Rule: A Basic Principle of Tax Fairness. This report highlights the need for Congress to take action and pass the Buffett Rule so that we can build an economy where everyone does their fair share and everyone plays by the same set of rules. Next week, Congress will have the opportunity to vote on the Buffett Rule. We’ll see where everyone stands. To read more on The Buffett Rule, click here.

Last week the Department of Health and Human Services released an issue brief on What the Health Law Means for the Latino Community. Across the country, more than 50 million Latinos are part of our communities, classrooms and workplaces. And thanks to the health care law, the Affordable Care Act, an estimated 5.4 million Latinos will gain insurance coverage by 2016 under the new law, according to an issue brief released by HHS today (go here to read it in Spanish). Just two years after it was passed, the health care law has already improved health outcomes and increased access to care for approximately 6.1 million Latinos. To read the full report, click here.

We also want to share some important agency updates that have a direct impact on the Latino community across the nation in the areas of civil rights, labor, housing, and consumer protection.

As always, please share with your networks and have a wonderful week!

 

 

USCIS Proposes Process Change for Certain Waivers of Inadmissibility

By Marcy Stras on Posted in Uncategorized

Original post from the Beacon, USCIS immigration blog.

 

Proposal would reduce time that U.S. citizens are separated from immediate relatives

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register  that would reduce the time U.S. citizens are separated from their spouses, children, and parents (i.e. immediate relatives) who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. This rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The proposed rule will not alter how USCIS determines eligibility for a waiver of inadmissibility or how an individual establishes extreme hardship.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this proposed rule will more effectively achieve,” said USCIS Director Alejandro Mayorkas. “The current process can subject U.S. citizens to months of separation from family members who are waiting for their cases to be processed overseas.  The proposed change will have tremendous impact on families by significantly reducing the time of separation.”

USCIS also proposes creating a new form for immediate relatives of U.S. citizens who choose to apply for a provisional unlawful presence waiver. Once in effect, this form would be used for individuals filing an application for a provisional unlawful presence application before he or she departs the United States to complete the immigrant visa process at a U.S. Embassy or consulate abroad. The streamlined process would only apply to immediate relatives who are otherwise eligible for an immigrant visa based on an approved immediate relative petition.

The proposed process outlined above is not in effect and is not available until USCIS publishes a final rule with an effective date in the Federal Register. USCIS will consider all public comments on the proposed rule announced today before publishing the final rule in the coming months. Individuals at this time should not to submit an application for a provisional unlawful presence waiver, or allow anyone to submit one on their behalf because it will be rejected.

USCIS encourages the public to submit formal input on the proposed rule through www.regulations.gov during a comment period that runs from April 2, 2012 until June 1, 2012.

A detailed Web page  addressing the proposed rule is currently posted to http://www.uscis.gov/provisionalwaiver. Additional details on the proposed process changes will be available at www.regulations.gov on April 2, 2012. For more information on USCIS and its programs and services, please visit www.uscis.gov or follow us on Twitter (@uscisExit Disclaimer), YouTube (/uscisExit Disclaimer) and the USCIS blog The Beacon.

Status of Court Challenges to State and Local Government Immigration Laws

By Elizabeth Wadsworth on Posted in Uncategorized

Court challenges to several restrictive state and local government immigration laws on the basis that they violate the United States Constitution and are preempted by federal immigration laws are continuing to prove successful.  On March 21, 2012, the United States Court of Appeals for the 5th Circuit upheld a federal district court ruling that enjoined a law in Farmers Branch, Texas, that bars undocumented immigrants from renting housing in the town.  The law also revokes the licenses of landlords who knowingly rent to such individuals.  The Fifth Circuit determined that the law is preempted by and thus violates federal immigration laws.  A similar law in Nebraska was struck down by a federal district court there on the basis that it was discriminatory in violation of federal law.

On March 8, 2012, the United States Court of Appeals for the 11th Circuit temporarily enjoined enforcement of Alabama’s HB 56 that barred courts from enforcing contracts involving illegal immigrants, and prohibited illegal immigrants from conducting business with the state.  The court delayed its decision on a permanent injunction until the United States Supreme Court hears oral arguments on Arizona’s immigration law (SB 1070) in April 2012 (Arizona, et al. v. United States (No. 11-182)).  The 11th Circuit also heard arguments regarding Georgia’s HB 87, which authorized police to demand papers showing citizenship or immigration status during traffic stops, criminalized interactions with undocumented individuals, and made it difficult for individuals without specific identification documents to access state facilities and services.

In the meantime, a new Georgia immigration measure, SB 458, was passed in the Georgia Senate and on March 30, 2012, was still pending in the House of Representatives.  The bill passed by the Senate contained a provision banning all undocumented students from public universities and colleges in the state, but was later removed from the House version.  The bill also bars state and local governments from accepting many foreign passports as proof of identification, unless the passport is submitted with a valid United States Homeland Security Form I-94 or I-94A or other federal document that specifies the holder’s lawful immigration status.  Like Alabama’s law, this will leave immigrants and foreign tourists unable to prove their identity in a number of commercial and government situations.

The majority of these state measures were inspired by SB1070, Arizona’s infamous immigration law.  A federal district court and the United States Court of Appeals for the 9th Circuit have blocked Arizona’s enforcement of several key parts of the law, after being challenged by the U.S. Department of Justice.  The State of Arizona appealed those rulings, and on April 25, 2012, the United States Supreme Court will hear oral arguments.  Only eight justices will participate, which could result in a 4-4 tie and the upholding of the lower court rulings.

Overall five states—Utah, Indiana, Georgia, Alabama and South Carolina—have passed immigration measures similar to Arizona SB 1070.  The lower federal courts have blocked unconstitutional provisions in all five states from taking effect.

USCIS Proposed Rule for Unlawful Stay Waiver

By Elizabeth Wadsworth on Posted in Uncategorized

On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would reduce the time U.S. citizens are separated from their spouses, children, and parents (i.e. immediate relatives) who must obtain an immigrant visa abroad to become lawful permanent residents of the United States.[1]  The NPRM comment period runs from April 2, 2012 until June 1, 2012.

USCIS previously issued a Notice of Intent regarding the rulemaking on January 6, 2012.  (77 Fed. Reg. 1040 (Jan. 9, 2012), Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens).  USCIS’ issuance of the NPRM was far ahead of schedule, since it initially stated that it hoped to issue the NPRM before the end of 2012.

The proposed rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that separation from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship.  The qualifying U.S. citizen relative who will suffer the hardship need not be the U.S. citizen relative who filed the immigrant visa petition on behalf of the immediate relative.

The current process waiver process allows family members who are unlawfully in the United States to apply for the waiver only after leaving the United States to request a visa from a U.S. Consulate.  Once they leave the United States, however, they are then barred from returning to the United States anywhere from 3 to 10 years due to their prior unlawful stay.

The proposed provisional waiver would be granted before the relative leaves the United States to attend his or her immigrant visa interview with a U.S. Consulate.  The waiver would not become effective unless and until the relative departs from the United States.  If the relative is otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of the visa so that the relative can then return to the United States for permanent residence.

The proposed rule does not change how USCIS determines eligibility for the waiver, nor the test for extreme hardship.

When USCIS announced the intended measure in January 2012, there was a positive nationwide response from the immigration rights community.  Immigration lawyers estimate that there are hundreds of thousands of U.S. citizens married to illegal immigrants who face years of separation under the current waiver rule.  Lamar Smith (R-TX), Chairman of the House Judiciary Committee who was an author of the 1996 legislation that created the three- and ten-year bars to return by illegal immigrants, has characterized the proposed rule as an abuse of administrative powers.

[1] A copy of the NPRM can be found at http://www.ofr.gov/OFRUpload/OFRData/2012-07698_PI.pdf.

 

Fairness for High Skilled Immigrants Act of 2011

By Elizabeth Wadsworth on Posted in Uncategorized

H.R.3012 passed the House on November 29, 2011, and was read in the Senate and placed on its calendar on December 17, 2011.  It is not clear when it will be debated and voted on in the Senate.  There are 3 related bills in the Senate, two of which have the same bill title and were introduced by Senator Mike Lee of Utah (S.1857) and Senator Charles Schumer of New York (S.1983).

The version passed by the House amends the Immigration and Nationality Act to: (1) eliminate the per country numerical limitation for employment-based immigrants, and (2) increase the per country numerical limitation for family based immigrants from 7% to 15% of the total number of family-sponsored visas.  It also amends the Chinese Student Protection Act of 1992 to eliminate the provision requiring the reduction of annual Chinese (PRC) immigrant visas to offset status adjustments under that Act.

It provides a transition period for employment-based second and third preference (EB-2 and EB-3) immigrant visas: (1) for FY2012, 15% of such visas allotted to natives of countries other than the two countries with the largest aggregate numbers of natives obtaining such visas in FY2010; (2) for FY2013, 10% of such visas allotted in each category to natives of countries other than the two with the largest aggregate numbers of natives obtaining such visas in FY2011; and (3) for FY2014, 10% of such visas allotted in each category to natives of countries other than the two with the largest aggregate numbers of natives obtaining such visas in FY2012.

The bill also contains the following “per country” distribution rules: (1) for transition period visas, no more than 25% of the total number of EB-2 and EB-3 visas for natives of a single country; and (2) for non-transition period visas, no more than 85% of EB-2 and EB-3 visas for natives of a single country.

Finally, the bill provides that the amendments made by the Act will take place as if enacted on September 30, 2011, and shall apply beginning in FY2012.

DREAM Act

By Elizabeth Wadsworth on Posted in Uncategorized

First proposed in 2001, the bill for the Development, Relief, and Education for Alien Minors Act (the “DREAM Act”) finally passed the House in 2010 but stalled in the Senate, where its passage failed by just five votes.  In 2011, Democrats reintroduced the bill in both the House (H.R.1842) and Senate (S.952) with some modifications as the DREAM Act 2011.  Both bills continued to await Congressional action.

The DREAM Act 2011 bills take a more conservative stance than prior versions of the DREAM Act.  The 2009 bill of the Dream Act () gave qualifying undocumented children the chance to earn Permanent Residency which could then lead to U.S. citizenship.  Students were to first be issued temporary residence for a period of 6 years, which was conditioned on the student either attending college and earning at least a two-year or Associate’s Degree, or serving in the U.S. military for two years. Those students meeting these requirements would then be granted permanent resident status at the end of the 6 years, and then ultimately U.S. citizenship.

Under the Senate version of DREAM Act 2011 (S.92), in order to qualify for permanent residence on a conditional basis, immigrants must:

  • be 35 years or younger at the time the law is enacted;
  • have arrived in the United State on or before age 15, and been present in the United States for five years at the time the law is enacted;
  • have resided continuously in the United States for at least 5 consecutive years since the date of their arrival;
  • have been admitted to an institution of higher education in the United States or earned a high school diploma or general education development certificate (“GED”) in the United States; and
  • have “good moral character,” meaning no criminal convictions.

Like prior versions of the Act, the conditional status period lasts 6 years.  The conditional basis can then be removed if the applicant continues to show good moral character, has not abandoned his or her U.S. residency, and has earned a degree from an institute of higher education (or has completed at least 2 years in a bachelor’s or higher degree program) in the United States, or has served in the Armed Forces for at least 2 years (and if discharged was honorably discharged).  Applicants must also submit biometric and biographic data, and undergo security and law enforcement background checks.

Despite ongoing and widespread protests across the United States demanding passage of DREAM Act 2011, many Republicans in Congress continue to oppose it, even though historically the Act has enjoyed widespread bipartisan support.  Senator Marco Rubio (R-FL) recently suggested a watered-down version of the DREAM Act that would give undocumented students legal status but not full citizenship.  Some critics argue that this would create a system of apartheid in the United States.

Tech leaders in the Silicon Valley have responded to the Senate defeat of the Act by offering scholarships, career advice and legal assistance to undocumented students through a campaign called Educators for Fair Consideration (E4FC).  The program is backed by Jeff Hawkins of Palm Pilot, Andrew Grove of Intel, and Laurene Powell Jobs, the widow of Apple’s Steve Jobs.