tag:blogger.com,1999:blog-104183422024-02-28T14:13:31.503-05:00Gil Ferrer Immigration Web JournalThis weblog is an outgrowth of my immigration law practice and the information I've posted in my website at www.gferrerlaw.us. This is meant to provide a more free flowing source of insight and information about the United States immigration process.Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.comBlogger31125tag:blogger.com,1999:blog-10418342.post-1161042010140410602006-10-16T19:27:00.000-04:002006-10-16T19:40:10.166-04:00Immigration Reform as The Mid-Term Congressional Election ApproachesI think we were all disillusioned by the Congress's failure to move forward on Comprehensive Immigration reform, or indeed to do anything other than vote to build a fence along parts of the Mexican boarder. The likelihood of anything further being done in the near future is nil as the Republican Party fights for its electoral life. The GOP is faced with high profile scandals (the Foley case and its very interesting subsidiary effects and the continuing residue of the Abramoff affair) as well as discontent around the Iraq War, which has been heightened immeasurably and with impeccable timing by the publicity around Bob Woodward's book. I'm reading the book right now and will report on it next week. I've read a number of his books over the years and have found most of them slow trudges. By comparison this is a real page turner.<br /><br />In any event, I hope the next Congress has a more realistic, less partisan (perhaps fewer ideologues controlling the debate and in leadership positions?) approach to immigration reform. Maybe then we'll get something done.<br /><br />gcfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1157903362682472332006-09-10T11:15:00.000-04:002006-09-10T19:50:02.433-04:00Thoughts on the Effects of September 11thIt has been five years since the 9/11 attacks. I was not in New York when two hijacked airliners destroyed the World Trade Center buildings. I was living in Texas, working for Dell Inc., as their immigration counsel. However, from 1978 to 1983 and again from 1985 to 1988, I worked in and in buildings immediately around the WTC, knew many people who worked there and frequently visited the restaurants and shops in the shopping arcade at the bottom.<br /><br />In fact my current office location, One Liberty Plaza, is where I started my practice in 1978 and is directly overlooking ground zero.<br /><br />When I returned to New York to live in 2002 and made my first visits downtown to the WTC area, it was not the hole in the ground that caught my attention. No disrespect meant, but if you come upon Ground Zero now that it is cleaned up, and somehow don't know the significance, it is just that: A huge excavation waiting for something.<br /><br />Rather, it was the immense emptiness in the air above Ground Zero that virtually overwhelmed me.<br /><br />Spending any time in the financial district in the 1970's, and until September 11, 2001, meant that your physical surroundings were dominated by the WTC. There is no way of conveying just how gigantic those two buildings were. To stand near the centuries-old St. Paul's church and look through "their" space all the way to the World Financial Center Buildings (built on the landfill created by "their" construction) causes me a disorienting feeling even today.<br /><br />As far as I know, I did not know anyone who died on 9/11. However, when you start taking account of friends of friends and relatives, the number of people I know who were affected starts spiraling upward.<br /><br />I wanted to make clear that I understand fully the concerns of the government to make this country as safe as possible from terrorist attack. However, I feel that in the initial frenzy, even panic, to prevent further attacks and make the country safer, reason and some of our fundamental values are getting lost. The latest indications of this are first, the decision of the House Republication Leadership's to dump Comprehensive Immigration Reform altogether and work on passing a border security measure instead. Second, is the Bush administration's attempt to get Congressional authorization for military tribunals to try "terrorists." This comes after the President's admission (of what everyone seems to have known for some time) that individuals are being held in secret CIA administered prisons around the globe.<br /><br />We've lost sight of two basic reasons for this country's existence. First, that it is an immigrant nation. Its culture and natonal profile are defined by the contributions of immigrants. In saying this I count everyone from the original colonists, and African slaves and early Europeans to the more recent Latinos, Asians, Indians, Muslims and on and on. Our history has been a continual process of immigration and that is not going to stop no matter how high the walls are built.<br /><br />Second, the United States is built on the notion that it is better than other countries. Why? Because it is based on rule by consent of the governed. We the people run the government, not a king or a dictator. Because we rule the country, we've given ourselves basic rights (in some cases by way of the Supreme Court) that the government may not touch. These include freedom of expression, freedom of religion and of association and of privacy. It also guarantees due process under the law and the right to be presumed innocent before proven guilty. Anyone who has observed how some other countries are run should give thanks every day for living a country where the rule of law governs.<br /><br />Apparently it is to avoid these safeguards that the government is setting up "military tribunals" in Cuba to try terrorists. Yes, we consider ourselves the good guys and we're just trying to protect our homeland; but with every "terrorist" kept in a secret prison or tried by a military tribunal; with each debate on how high to build the wall on our borders or how many more guards to hire; with every email or telephone call that is intercepted or investigated in the name of national security, small parts of our country's culture and our basic guarantees of freedom are being chipped away. We should be vigilant and careful about the safety of ourselves and all of fellow Americans, citizens or not, but we should also be extremely vigilant, careful and fearful of losing those parts of our nation's heritage that are most precious.<br /><br />gcfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1156700988913261652006-08-27T13:21:00.000-04:002006-08-29T21:14:55.953-04:00Summertime is Over - Let's Do SomethingIn June we anticipated that Congress would reach a compromise on the Comprehensive Immigration Reform Bill which had just passed the Senate. We were all quickly disillusioned by the House's reluctance to reach any kind of compromise at all. Indeed, the whole discussion was tabled while the Republication controlled House began a series of hearing in various parts of the country to gauge the support for CIR. Those hearings that are not stacked against CIR by anti immigration organizations are essentially telling the House leadership what we already know: The country is divided on the issue and some decisions are going to have to be made that are guaranteed to make a good chunk of the electorate unhappy.<br /><br />The Republicans in Congress are caught in a quandary. Many of them are adamantly opposed to any form of legalization program. However, President Bush strongly supports the whole CIR program. The President's problem is that his administration's failures (or perceived failures, I don't want to get off subject here) of the handling of the war in Iraq, Social Security Reform, Katrina response, corruption and/or incompetence among his appointees and among fellow Republicans, on and on, have severely hurt his and his party's support among voters.<br /><br />Congressional Republicans trying to save their own skins in the next election don't see any upside to going in support of a program pushed by the President, but that they see as not helping them with their constituants. However, they don't want to add to the damage by directly opposing their own party's leader. So, they stall with useless hearings around the country, which they hope will let them survive past the election in November. Once the election has come and gone, with voters unable to take immediate revenge against them for supporting the President, Republicans can bit the bullet and pass a compromise immigration bill with some sort of guestworker program.<br /><br />This may be wishful thinking on their part. Most commentators think that the GOP will lose control of the House after the next election. Even apart from immigration related needs, the record of this Administration and this Congress of getting things done has been especially dismal.<br /><br />gcfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1149599690657394602006-06-06T09:14:00.000-04:002006-06-06T09:14:50.700-04:00El Paso Times - Lawmakers must start to mesh immigration bills<a href="http://www.elpasotimes.com/news/ci_3897593">El Paso Times - Lawmakers must start to mesh immigration bills</a><br /><br />With the exhaustion of the H-1B quota as of May 26, 2006, by far the earliest that it has ever been reached, there's an immediate need for action; at least on an increase to the H-1B quota. An increase in the quota is contained in the Senate bill. The last thing we need is for Congressional conference discussions to resolve differences between the House and Senate bills to come to a halt over "amnesty."Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1148600979250096282006-05-25T19:49:00.000-04:002006-05-25T19:49:39.260-04:00Senate Passes Immigration Reform BillOn Thursday afternoon, the Senate voted 62-36 to pass S. 2611, the "Hagel-Martinez compromise" immigration bill, paving the way for conference negotiations with the House, which enacted the highly damaging "Sensenbrenner Bill", HR 4437, last December. Despite attempts by a handful of Senators to fundamentally alter the bill that was reported out of the Judiciary Committee in March, the basic architecture of comprehensive immigration reform survived intact after nearly four weeks of Senate Floor debate on the measure and votes on more than 40 amendments.<br />The Senate bill includes a path to permanent legal status for most of the 12 million undocumented immigrants in the country, a new temporary worker program, significant increases in family- and employment-based permanent visas, important reforms to the agricultural worker program, significant reforms to the high-skilled immigration programs, and relief for undocumented high school graduates (DREAM Act). The bill also includes some very harsh enforcement provisions and erosion of due process protections that will need to be addressed and corrected as negotiations move forward.Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1148511688049741122006-05-24T19:01:00.000-04:002006-05-24T19:01:28.080-04:00JURIST - Paper Chase: Senate advances immigration reform bill by voting to limit debate<a href="http://jurist.law.pitt.edu/paperchase/2006/05/senate-advances-immigration-reform.php">JURIST - Paper Chase: Senate advances immigration reform bill by voting to limit debate</a><br /><br />The Senate has voted to end discussion and further amendment of the immigration reform bill. It is likely that the final vote will take place on Thursday. With the battle with the House yet to come.Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1148398271765993352006-05-23T11:24:00.000-04:002006-05-23T11:31:11.790-04:00Maybe I Spoke To Soon. Hastert Threatens to Derail Immigration BillThe Washington Post reports today that Backers of President Bush's bid to revamp immigration laws are increasingly concerned about a House Republican policy that could block final agreement even if a bipartisan majority is within reach.<br /><br />Speaker J. Dennis Hastert's insistence that major legislation reach the House floor only if it appears to be backed by a "majority of the majority" could throw a high hurdle in front of efforts to reach a House-Senate compromise on immigration later this year, lawmakers said. Hastert (R-Ill.) has invoked the policy in blocking bills that appeared likely to win approval from more than half of the House's 435 members but less than half of its 231 Republicans.<br /><br />If this is the case, then it appears that the Republican's have a death wish (politically speaking) that could wipe out their control of Congress for years to come. I don't believe that the country whole heartedly favors a guest worker program. However, the failure to pass a comprehensive bill that takes a shot at trying to solve the massive immigration problems that this country faces, will only further solidify this Republican government's image of failure on all fronts.<br /><br />The full story is at <a href="http://www.washingtonpost.com/wp-dyn/content/article/2006/05/22/AR2006052201516.html">http://www.washingtonpost.com/wp-dyn/content/article/2006/05/22/AR2006052201516.html</a>Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1148344384635079392006-05-22T20:33:00.000-04:002006-05-22T20:33:04.676-04:00Article: News - House called open to deal on immigration bill<a href="http://www.ocregister.com/ocregister/news/nationworld/article_1151072.php">Article: News - House called open to deal on immigration bill</a>: "The man who would be the chief House negotiator on an immigration-overhaul bill said Sunday he was not ruling out discussing any provision in the Senate proposal, including letting millions of illegal immigrants eventually become citizens.<br /><br />'I don't think anything is a deal-breaker,' Judiciary Committee Chairman James Sensenbrenner said on CBS's 'Face The Nation.'"<br /><br />This week, the U.S. Senate is expected to pass S.2611, the Comprehensive Immigration reform bill. Last week, enforcement-only Senators made several attempts to remove or gut guest worker provisions from the bill but fortunately that part of the legislation has survived more or less intact. Senate Majority Leader Bill Frist has repeatedly stated he intends to schedule a vote on the bill this week. Once it is passed it still has bot be reconciled with the enforcement only bill passed by the House. House Republicans have been very vocal in their opposition to any form of guest worker program or amnesty as they incessantly call it. However, the comment quoted above, by one of the most strident opponents of "amnesty" indicates that it may not be that difficult to reach some middle ground as the President has urged. Even though he still called the Senate bill an amnesty hat he continues to be opposed to, there appears to be a glimmer of hope that Congressional Republicans (and Democrats) can put political maneuvering and ideological gamesmanship on hold long enough for this Congress to pass legislation that will substantially benefit immigrants to the U.S.<br /><br />Perhaps there is still hope for a rational middle ground.Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1148240634151831412006-05-21T15:39:00.000-04:002006-05-21T15:43:54.166-04:00President Again Urges a Rational Middle Ground.In his weekly radio address Saturday President Bush publicly pressed his case for immigration reform for the third time this week and urged the Senate to pass a comprehensive immigration bill by the end of May so that negotiations can begin with the House on a compromise he can sign into law. In addition to repeating his <a href="http://jurist.law.pitt.edu/paperchase/2006/05/bush-posting-6000-troops-to-border.php">pledge to send up to 6000 National Guard troops to the Mexican border</a> and calling once more for a temporary worker program, Bush called for a path to citizenship for the estimated 12 million illegal immigrants now in the US in what could be construed as an appeal to his own conservative base:<br /><br />"Some people think any proposal short of mass deportation is amnesty. I disagree. There's a rational middle ground between automatic citizenship for every illegal immigrant and a program of mass deportation. Illegal immigrants who have roots in our country and want to stay should have to pay a meaningful penalty, pay their taxes, learn English, and work in a job for a number of years. People who meet these conditions should be able to apply for citizenship -- but approval will not be automatic, and they will have to wait in line behind those who played by the rules and followed the law."<br /><br />In addition to his Monday TV address on immigration reform Bush discussed the issue in extended remarks on a visit to an Arizona Border patrol station on Thursday.The Senate is slated to continue debate on the draft immigration bill this week in the lead-up to Memorial Day. A number of key amendments have already been adopted, including one that would create an additional 370 miles of fencing along the US-Mexico border and another that would deny the possibility of acquiring citizenship to illegal immigrants convicted of certain criminal offences. The US House of Representatives has already passed the Border Protection, Antiterrorism, and Illegal Immigration Control Act, a strict immigration control act that makes unlawful presence in the US a felony and that could punish humanitarian groups aiding aliens present in the U.S. illegally.Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1147869074666086742006-05-17T08:31:00.000-04:002006-05-17T08:31:14.803-04:00Immigration Proposals Pass Test In Senate<a href="http://www.washingtonpost.com/wp-dyn/content/article/2006/05/16/AR2006051600843.html?referrer=email&referrer=email">Immigration Proposals Pass Test In Senate</a><br /><br />The Washington Post reports this morning that initial attempts to remove the guest worker provisions from the Senate immigration measure were voted down on Tuesday.Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1147784877078354772006-05-16T09:02:00.000-04:002006-05-16T09:07:57.103-04:00Congressional Immigration Debate RestartsThe last few weeks have seen massive demonstrations by immigrants in many parts of the country. It's about time. The only way that the politicians in Washington will be made to see that there is a significant number of people (many of them voters) on the pro-immigrant side is to make themselves heard.<br /><br />The Restrictionist side has no qualms about flooding Congress and the media with phone calls, emails and personal visits decrying the possibility that illegal immigrants would be rewarded for breaking the law. Some polls show that public opinion was negatively affected by these public displays by large numbers of both legal residents and "illegals"Criticism has been along the lines of "They are hurting their own cause by speaking out and inconveniencing the public and their employers." Much the same criticism was levelled against demonstrators against the Viet Nam War in the late 1960's and the Civil Rights demonstrators of the early 60's. Regardless of what you think of their tactics, the direct effect of their actions or the justice of their cause, they were ultimately successful.<br /><br />Now that the two week Congressional adjournment is over, Senate leaders have promised to restart debate on pending bills and have legislation passed (at least by the Senate) by May 29th. Last night the President made a heartfelt appeal for a "rational middle ground" between those who favor amnesty for undocumented workers presently in the country on one side, and those who favor mass deportations of illegals on the other. I don't think he has much of an issue with most Democrats or the liberal wing of the Republicans, it is his so called core constituancy of conservative republicans (and some Democrats) that he has to convince. The main purpose of the speech was to reach out to that segment of the Congress and American voter. In the Democratic response to the speech (broadcast on cable channels) Senator Dick Durbin spent most of his time criticizing use of the overburdened national guard to help in guarding the borders. He then agreed with the president on the need for comprehensive immigration reform and rightly pointed to the conservative wing of the Republicans as the segment that will need to be brought around. It will take a massive use of what political capital the President has left to bring his own party around. However, this may be his last chance to leave a positive legacy for his administration.<br /><br />gcfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1141656548745456352006-03-06T09:46:00.000-05:002006-03-06T09:49:08.760-05:00Do I Qualify for A National Interest Waiver?Anonymous <anonymous-comment@blogger.com> wrote:<br /><br />I have been in the US since 1998 on H1B and then employed on an I from a foreign media company, I am now in a PhD program at a tier 2 school and my research has a national interest. I have a master's degree as well in an another discipline earned overseas. I will try to beef up my act before I graduate with my PhD with conferences, projects and artcles as much as I can. Would that make me eligble for NIW? The PhD, is that important? --Posted by Anonymous to <a href="http://gferrerlaw.blogspot.com/2005/09/have-question-post-here.html">Gil Ferrer Immigration Web Journal</a> at 3/05/2006 02:56:58 PM<br /><br /><br />This will take a little bit of background information before I answer the question. The Second Employment Based category for permanent residency petitions is for advanced degree professionals or workers of exceptional ability (the EB-2 category). Normally this category requires a job offer from a sponsoring U.S. employer. The result is that the beneficiary of an EB-2 petition needs to go through the labor certification process first, before the EB-2 I-140 immigrant petition can be filed. Before the advent of PERM, this sometimes meant years went by before the labor certification was approved, and the I-140/I-485 green card application filed.<br /><br />The law provides that if it can be shown that granting the EB-2 beneficiary permanent residency is in the national interest, then the job offer requirement is waived. Practically speaking this means no labor cert is required for a petition filed with a request for a National Interest Waiver (NIW) nor does it need to be sponsored by a U.S. employer.<br /><br />An NIW petition requires, first, that the beneficiary establish that he/she has an advanced degree in an appropriate area (at least a Master's degree) or that they meet the standard of having exceptional ability (I will not go into what constitutes exceptional ability here.) <br /><br />Second, the petition must show that the nature of the work impacts on the national interest of the United States, as follows:<br /><br />1. The foreign worker's work is in an area of substantial intrinsic merit.<br />2. That the benefit of the work would be national in scope, not just locally beneficial to the region where the worker is based. <br />3. That having the foreign worker perform this work will serve the national interest of the United States substantially more than if a U.S. worker with the same minimum qualifications were doing the work.<br /><br />The third item is usually the sticking point. In practicality it often raises the bar so that the proof required is comparable to that for the "aliens of extraordinary ability" category. I've sometimes filed petitions in both categories, for the same person, and have had the EA petition approved first.<br /><br />So, to answer your question. No, the Ph.D is not essential but is helpful since it shows advanced work in your area of expertise. <br /><br />More importantly, can you convince USCIS that your ability and record in your field are so superior and significant that having you perform the work impacting the national interest, would benefit the U.S. substantially more than any U.S. worker that could be found in a test of the labor market and that therefore a labor certification is unnecessary. <br /><br />You may want to have a lawyer review your credentials with you in detail to advise you on your options. Thanks for your question.<br /><br />gcfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1141333256249252212006-03-02T15:59:00.000-05:002006-03-02T16:00:56.260-05:00H-1B Extensions Beyond the Sixth Year.Anonymous <anonymous-comment@blogger.com> wrote:<br /><br />My H1B is expiring in March 2007. If I want to extend my H1 Visa beyond the 6 year limit when should I apply for green card. Is there any cut off date or can I apply in a couple of months from now ? Will my H1 be extended ? Please let me know.<br /><br /><br />Many people who are nearing the end of their H-1B have this question. The law provides for extensions of H-1B status beyond the maximum six years if, at the time the H-1B worker reaches his six years, a labor certification, naming him/her as beneficiary, or an I-140 immigrant petition, has been on file for at least 365 days. It does not have to be "pending", but cannot have been denied. For example an approved labor cert filed with an I-140 for an immigrant petition filing can still be used so long as it was filed more than 365 days in the past. The beneficiary does not have to be working for the employer who filed it. <br /><br />With the new PERM requirements for labor certs, this means that the recruitment activity necessary before a PERM application can be filed should commence well before one year prior to the end of the H-1B period.<br /><br />Hope this helps and sorry for the delay in responding.<br /><br />gcfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1127786425481145412005-09-26T21:54:00.000-04:002005-09-26T22:00:39.270-04:00How many EB Immigrant Visas Will be Available this Coming Year?Many people have been asking this question in view of the current extreme backlogs in the employment based categories. There has been a published estimate that between the recaptured immigrant numbers from prior years and unused family based immigrant visas, that there should be 248.000 employment based immigrant visas available for the year rather than the normal 140,000. However, when questioned, a State Department spokesman was quoted as saying, "AC21 had recaptured the FY-1999/FY-2000 unused Employment numbers which totaled approximately 131,000. Approximately 101,000 of those numbers remained available for use in FY-2005, and there will be about 8,000 remaining for use in FY-2006. My estimate for the FY-2006 Employment limit will be 156,000 (140,000 + 8,000 (FY-2005 Family) + 8,000 (AC21)."<br /><br />So, more than normally alloted but still far short of the amount necessary to bring priority dates current.<br /><br />gcfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1127483668705525402005-09-23T09:48:00.000-04:002005-09-23T09:54:28.710-04:00Have A Question? Post Here.I'm starting this post with a request for whatever questions you have. It will be refreshed everytime I respond to a new post. So, in the interests of getting relevant information out to the most people possible at one time, instead of emailing me (or in addition to emailing me) please post your general questions about U.S. immigration law and process here. As usual, I cannot give specific legal advice regarding your particular situation through through the web. <br /><br />gcfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com3tag:blogger.com,1999:blog-10418342.post-1127223977349379382005-09-20T09:46:00.000-04:002005-09-20T09:46:17.770-04:00Immigration Nominee's Credentials Questioned"The Bush administration is seeking to appoint a lawyer with little immigration or customs experience to head the troubled law enforcement agency that handles those issues [DHS Bureau of Immigrations and Customs Enforcement], prompting sharp criticism from some employee groups, immigration advocates and homeland security experts." So reports the Washington Post today in a front page story. Julie Myers appears to have adequate law credentials and some "managerial" experience with smaller government operations. She clearly has the right Republication and administration connections. She was "an associate under independent counsel Kenneth W. Starr for about 16 months and has most recently served as a special assistant to President Bush handling personnel issues. Her uncle is Air Force Gen. Richard B. Myers, the departing chairman of the Joint Chiefs of Staff. She married Chertoff's current chief of staff, John F. Wood, on Saturday,")
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<br />But there is particular concern among many, even party loyalists after the Michael Brown catastrophe at FEMA (all right he is more of a symptom of FEMA's pathetic state rather than a cause,) about continuing the practice of hiring the minimally experienced and politically connected to run "troubled" organizations like ICE. Looks like more of the same under this administration.
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<br />Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1120428475807469212005-09-18T16:07:00.000-04:002005-09-18T16:06:25.660-04:00Immigration Issues Unaffected by Rehnquist/O'Connor Replacements - Congress is Where the Action IsWith the sudden passing of U.S. Supreme Court Chief Justice Rehnquist and the previously announced retirement of Justice Sandra Day O'Connor, there has been much speculation and discussion on the effect of John O'Connor's being named Chief Justice and of O'Connor's yet to be named successor, on the court's rulings on abortion, church and state separation and various civil rights that have come to be accepted as protected by the U.S. Constitution through Supreme Court rulings going back to the mid 20th Century. However, it is doubtful that little, if any changes are in store for the Supreme Court's position on immigration, such as it is. The Supreme Court long ago granted the Congress virtually unfettered discretion to treat "aliens" virtually however way the government sees fit. An alien who one day is perfectly legal in the US, can be illegal the next (and vice versa). A lawful permanent resident who commited a crime many years ago as a youth, served his time and has been clean since then is not deportable. Then suddenly, Congress changes the law, makes the change retroactive and now he IS deportable. Same person, same crime, same subsequent clean record, only now he is subject to detention and removal proceedings. Why now and not before? That does not matter, it is within Congress's discretion. Short answer? Expand the opportunities that currently "undocumented," or "illegal" "aliens" have to become "legal" and be a normal part of society.<br /><br />As the US voter's elected representatives, Congress has unfortunately often reflected the biases, prejudices, even hatreds of the American voter through history. This history is most obvious and well documented in the history of the civil rights movement. In the immigration area, it has favored laws, periodically, that either limit or stop immigration or, more recently, punish immigrants. Laws have been enacted which either punish immigrants directly or as a by product of the war against terror. The 1996 IRIIRA law was an example of the latter. The Anti Terrorism and Effective Death Penalty Act of 1995 and the Real ID act are examples of the former. Both of these were ostensibly to make us all safer. In fact, the extremist anti immigration lobby has taken advantage of the population's anti terrorist concerns to mix its traditional hatred of "all immigrants who are not like me" with pious concern with protecting the U.S. against future 9/11's.<br /><br />In the continuing debate on immigration reform, Congress has an opportunity to fix a broken system, to incorporate new immigrants into U.S. society as it has over two hundred years and to help employers gain the employees that they need so badly. The Kennedy/McCain bill seems to be the best able to accomplish this, of any of the pending legislative efforts.<br />gcfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1126014446029945322005-09-06T09:43:00.000-04:002005-09-06T09:47:26.036-04:00Will Immigration Reform Be Put On The Back Burner Again?Ever since President Bush made it clear, pre 9/11, that reform of the dysfunctional immigration process in the U.S. was one of the major goals of his administration, there has been much more talk than any meaningful action. Immigration reform has repeatedly been pushed aside while the Congress and Administration focus on the urgent concerns that keep arising: First 9/11 and the subsequent war on terror, the economic downturn, the War in Irag and now, possibly, the catastrophic Hurricane Katrina. Yes, taking care of the victims of a disaster which has ended the lives of thousands, displaced hundreds of thousands and effectively destroyed, temporarily, a major American city, should take precedence at this time, but what next?<br /><br />What effect will the pathetic Federal response to Katrina (I know, there is plenty of blame to go around) and his fight to confirm John Roberts as Chief Justice and to fill another vacancy on the Supreme Court have on the President’s ability or desire to support effective immigration reform? <br /><br />My concern is that the focus will be on helping “our own:” the vast number of U.S. citizens and lawful residents who have seen their lives destroyed by Katrina. Once again the undocumented workers and their families, who are suffering just as much as “legal” residents, if not more because of lack of bank accounts, social services and fear of being discovered when applying for aid or trying to escape the disaster, will be excluded from public concern and legalization channels postponed yet again.Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1118666298705227322005-06-13T08:38:00.000-04:002005-06-13T08:38:18.716-04:00Immigration Law as Anti-Terrorism Tool<a href="http://www.washingtonpost.com/wp-dyn/content/article/2005/06/12/AR2005061201441.html?referrer=email&referrer=email">Immigration Law as Anti-Terrorism Tool</a>
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<br />"In the past two years, officials have filed immigration charges against more than 500 people who have come under scrutiny in national security investigations, according to previously undisclosed government figures. Some are ultimately found to have no terrorism ties, officials acknowledge."
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<br />A story in today's Washington Post details what many of us already know: Minor immigration charges are being used to detain and remove people who the government sees as possible "terrorist" threats. Since the government does not have the resources to arrest and detain everyone who has overstayed their status, or who have other immigration violations, the focus seems to be on foreign residents of Arab and Muslim background.
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<br />Given the government's apparently broad mandate to tighten homeland security post 9/11, government law enforcement agencies will probably continue to receive broad latitude with the "tools" they have available to investigate and prevent terrorism. One can almost guarantee overeaching. Witness the stories coming out of the Guantanamo detention facility, the continuing debates about renewal and extension of the PATRIOT Act and the debate about reforming immigration laws, which restrictionists are trying to turn into a debate about protecting America from terrorists entering surreptitiously across the southern border. However, we can't forget that the 9/11 attackers came in on visas and came from a country, Saudi Arabia, that has not been at the center of "anti-terrorism" concerns.
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<br />gcf Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1117038314090671132005-05-25T12:25:00.000-04:002005-05-25T12:25:14.103-04:00Economist.com | Lexington<a href="http://www.economist.com/printedition/displayStory.cfm?Story_ID=3984555">Economist.com | Lexington</a>
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<br />Excellent "Lexington" column in the May 19th The Economist magazine favorably reviewing the Kennedy/McCain bill and lamenting the fixation on "cultural wars" in Washington (filibusters, conservative, "faith based," Schivo, and on and on, etc.) It notes the tough fight ahead of the bill but observes that it has much in its favor. You may need to have subscribed to Economist online to read the full article, but its bottom line message, and I quote from the article:
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<br />"The reformers' most important ally, though, is common sense. America has spent millions of dollars trying to tighten up its borders only to see the situation get worse. It now relies on illegal workers to pick its vegetables and build its buildings. Closing the border is impossible without some sort of legalisation for the millions in the country; mass deportation would do irreparable harm both to America's economy and to its traditions as an immigrant-friendly nation."
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<br />gcf
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<br />Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1116123244616439512005-05-14T22:11:00.000-04:002005-05-15T18:27:58.233-04:00Guest Worker Program? Amnesty? Either Way a Very Positive BillThe Secure America and Orderly Immigration Act of 2005 was introduced in the Congress on May 11th. Passage of this act would make major strides toward removing backlogs across all immigrant categories by increasing the quota of employment based visa numbers from 140,000 to 290,000 annually, reallocating distribution and providing for the recapture of unused numbers; increasing the per country limit for both family and employment based immigrants; lowering the income requirements for sponsoring a family member from 125% of poverty guidelines to 100%, among other things. These proposals are significant enough, but the most controversial parts relate to the legalization of presently undocumented workers in the U.S.<br /><br />The bill was simultaneously introduced in the Senate by Senators Kennedy (D-MA) and McCain (R-AZ) and in the House by Representatives Kolbe (R-AZ), Flake (R-AZ) and Gutierrez (D-IL). It is truly a generous effort to provide a path to legal status for unskilled workers who wish to enter the U.S. to take jobs that U.S. workers do not fill and also for undocumented workers currently in the U.S. It is so generous that it is not certain how much of this will survive to the point of passage by the Congress. However, President Bush has already indicated that this bill is consistent with his vision of of effective reform of the current unworkable system.<br /><br />The Secure America Act establishes a new visa (H-5A) that will allow foreign workers to enter the U.S. and fill available jobs that require few or no skills. Applicants must show that they have a job waiting in the U.S. The employers that want to hire them must show attempts to recruit U.S. workers. There is an initial cap of 400,000 visas annually, but the annual limit can be adjusted up or down depending on demand. The H-5A visa is valid for three years but can be renewed for an additional three years. The visa is portable, but if the person loses his job he must find a new one within 60 days. Also, an employer can sponsor an H-5A worker for a green card or the worker can adjust status on their own after working for four years in H-5A status.<br /><br />The Act also establishes the H-5B visa for undocumented workers in the U.S on the date that the bill was introduced (May 11th). Such workers can register for an H-5B valid for six years. Applicants have to show a work history, no criminal record and pass a security check. A number of grounds of inadmissibility are waived (except for criminal and terrorist grounds.) They get work and travel authorization. They (and dependents) also get interim work authorization while the application is pending. The undocumented worker also cannot be deported pending a final denial of the application for the H-5B.<br /><br />In order to obtain an H-5B the worker has to show he has been working in the U.S. from a date before the introduction of the Act to the point of application. This can be proven by a wide range of documentation, from government sources, the employer as well as sworn affidavits from nonrelatives of the alien. The employment requirement does not apply to people under 21 years of age. Also, the employment requrement can be met by attendance at a college or secondary school. The worker will also have to pay filing fees and a fine of $1000, if over 21 years of age.<br /><br />A worker who is present in the U.S. and has been ordered deported may still apply for an H-5B and the application apparently acts as an automatic stay of the deportation/removal order. The worker does not have to file a motion to reopen or reconsider the removal order in order to be eligible to apply for the H-5B.<br /><br />Also, they are eligible to apply for permanent residency so long as they have been employed in the U.S. during the required period or met the education requirements, and have proven that all income taxes owed have been paid or that final arrangements to pay them have been made.<br /><br />To apply for permanent residency, an H-5B (or H-5A) holder will need to show that he/she has an understanding of English and knowledge of the history and government of the United States. Apparently, if the H-5B holder meets this requirement for permanent residency purposes, he will have satisfied the similar naturalization requirement for the purposes of a later application for U.S. citizenship.<br /><br />If this Act passes intact (how likely is that? Not very,) we would see a dramatic change in the approach this country has taken over the past decade and would be the most "immigrant friendly" legislation seen since the Immigration Reform Act of 1986.<br /><br />gcfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1114104107335444152005-04-21T12:29:00.000-04:002005-04-21T13:21:47.340-04:00Legislative Roundup - Immigration BillsA large number of immigration bills are currently in various stages of consideration by the Congress these are some of the more noteworthy:<br /><br />Real ID: This bill was passed by the House and is under consideration by the Senate. It was passed as part of the Emergency Supplemental Appropriations bill for the Iraqi war effort and Tsunami relief. Since it was "tacked on" to that bill, there was little or no debate on its substantive provisions. This bill is ill advised. It is billed as an "anti-terrorist" bill, but is more an anti-immigration bill and not only impacts the ability of undocumented workers to get drivers licenses, it grants extraordinary powers to the Secretary of DHS with respect to the building of a border barrier and also renders the standard of proof for asylum claims extremely difficult to meet. If the Senate passes this bill, it will become part of law, since the house has already passed it. <br /><br />AgJobs: This is a program that provides temporary status for agricultural workers and a method for obtaining permanent residency. Because the Real ID bill was attached to the Supplemental Appropriations bill by the House, the Senate ruled that all immigration related amendments to the bill could be considered by the Senate. AgJobs is one of them. The majority used a process called cloture to limit the debate. Essentially, a vote of 60 in the Senate was required to stop debate on a bill and pass it on for a substantive vote by the Senate. The supporters of AgJobs lost that cloture vote, receiving only 53 out of the necessary 60. The opponents of AgJobs consider this a resounding victory and are patting themselves on the back. The supporters of AgJobs see the vote as an encouraging sign, since it signals that the Senate would be receptive to having it attached to some future bill (just not this one) and when it does come to a vote it would have the votes necessary to pass. <br /><br />H-2B bill: This category is for temporary and seasonal workers. The quota for this year was gone in January. This bill provides for short term emergency relief. This passed cloture by a large majority (83 votes of the 60 needed) and will be part of the Senate version of the Emergency Appropriations bill.<br /><br />EB-3 Quota: A bill sponsored by Senators Schumer (NY), Hutchinson (TX) and Kennedy (MA) would recapture EB-3 numbers from the fiscal years 2001-2004 that wee not used because of processing delays. This would provide some relief for individuals from India and China, in the third employment based category and are stuck in the backlog for visa numbers and unable to process for an immigrant visa or adjustment of status. This bill also passed cloture and will also be part of the Senate version.<br /><br />To the extent that the Senate and House versions differ, discussion will shift to conference between the two houses to negotiate the final version.<br /><br />If you understood all this the first time you read this, you are either a quick study or my powers of simplification and clarity are unsurpassed. The manuvering that takes place in the Congress as a bill goes through the legislative process is complex and not particularly intuitive. The analysis is based in part on the current Washington Update of the American Immigration Lawyers Association. If you would like a copy, let me know.<br /><br />gfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1112970705353789782005-04-08T10:31:00.000-04:002005-04-08T10:40:59.260-04:00As Government Cap on Work Visas Rises, So Does Confusion (washingtonpost.com)<a href="http://www.washingtonpost.com/wp-dyn/articles/A35832-2005Apr7.html?referrer=email">As Government Cap on Work Visas Rises, So Does Confusion (washingtonpost.com)</a><br />The Washington Post reports today that as of Thursday, the USCIS was still trying to get criteria together for who will qualify for the 20,000 visas. Previously there was indication that the rule implementing process for the 20k additional visas was at OMB under review. Which raises the question: How can a rule be under review at OMB if the USCIS still isn't sure what it should say?Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1112625245850587892005-04-04T10:16:00.000-04:002005-04-04T10:34:05.853-04:00What To Do While Waiting for 20,000 H-1BsMany people are subject to this scenario: They are currently in an F-1 Optional Practical Training status and are working. Their OPT will expire sometime between now and October 1st when the new 65,000 H-1B quota becomes effective. As a result there will be a gap in status and employment between the expiration of OPT and October 1st. <br /><br />The 20,000 additional H-1B numbers would save their situation, but there is still no news on when they will be available. What to do?<br /><br />Here are a few general possibilities, some or all may not apply to specific situations. If you are in this situation, get specific counsel from a knowledgeable immigration professional. Don't relay on "friends" experiences. <br /><br />1. File now for a spot in the October 1 quota - The candidate will not be able to work after the OPT expires, but might be able to stay in the US pending the application. In the past the USCIS has cut some people in this type a situation a break (allow them to stay in the us while waiting the start of the H-1B period.) They may do it again, but if they don't, or if the specific situation does not allow it, the candidate would have to leave the US anyway to get the actual visa stamp in October before receiving H-1B work authorization.<br /><br />2. Get an extension of the I-20 in F-1 status for a new educational program. Again, work is not authorized (unless CPT is available,) but the person would be able to stay in the US and continue their education.<br /><br />3. Change to B-1 in the meantime. This is only a temporary measure and there would have to be a good qualifying reason to make the change. There will have to be a subsequent change to H-1B from B-1 if the change is granted. B-1's cannot work, but could stay in the US.<br /><br />4. Enter a J-1 program. If a program that allows the worker to continue training for their profession and allows work authorization, this could allow them to continue working for 18 months after the change to J-1. The candidate should check with their employer, employer's professional organization and school for this. However, care should be taken that the program does not entail the two year home residency requirement. If it is not clear, inquiry should be made from as many sources(immigration lawyers, student advisors, etc.) who are knowledgeable in this as possible, it is worth investigating exhaustively.)<br /><br />5. If married and the spouse is on a J-1 visa, the candidate, as J-2 can get work authorization. <br /><br />In any event, to get an H-1B from the 20,000 quota, regardless of what else is done, the sponsoring employer will have to be ready to file at a moment's notice.Gil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0tag:blogger.com,1999:blog-10418342.post-1109272992692130982005-02-24T12:46:00.000-05:002005-02-24T14:23:12.696-05:00SAFER Act Extreme Answer to Immigration Reform?US Congressional Rep's are jockeying for position in anticipation of President Bush's immigration reform proposal. The extreme nature of some of the legislation make it clear that some compromise is in order at some point. Efforts to restrict immigration generally are being tied into concerns to "make America safe from terrorism." Some of the proposals really only pay lip service to that fight<br /><br />The restrictionist side is represented at this point, by the Real ID Bill HR 418, (Rep. Sensenbrenner) that was recently passed by the House of Representatives, which would require States to deny driver's licenses to undocumented aliens by requiring controls on the issuance of licenses if they are to be recognized as adequate identification in a number of essential areas. The bill also makes it much harder to prove eligibility for asylum in the US. <br /><br />Also, the SAFER Act HR 688(Rep Garrett) recently reintroduced in the House reworks the Immigration & Nationality Act in a number of key areas, some changes are quite extreme. I have not seen an analysis of this bill yet, so I'll focus here on some of its more interesting aspects:<br /><br />Makes the non-displacement attestation for H-1B's required of all employers (only applies to H-1B dependent employers currently)<br /><br />Imposes an additional $100 anti fraud fee for all applications, immigrant or non-immigrant, with only a few exceptions.<br /><br />Requires Permanent Residents to register annually, commencing on the first anniversary date after obtaining residency. <br /><br />All aliens who are not fingerprinted or photographed at the time of visa application must register and be fingerprinted within 30 days of entry if staying in the US for more than 30 days.<br /><br />In addition to any other requirements to register, SAFER Act requires all aliens in the US to register with Homeland Security every three months, commencing 60 days after the date of entry into the US.<br /><br />Allows consuls to require "visa term compliance bonds" as a condition of granting a non-immigrant visa. The compliance bond premium may be forfeited under certain conditions such as:<br />The visa holder changes address without giving USCIS and the bond issuer 60 days notice, or<br />the visa holder changes schools, jobs or occupations without the written permission of both USCIS and the bond issuer, or the visa holder fails to report to USCIS at least annually (not clear if the other requirements to report count in this case.)<br /><br />If the visa holder violates any conditions of the visa or the visa bond, the USCIS can order the visa cancelled and the visa holder arrested. <br /><br />Here is an interesting provision: "At anytime <em><strong>before</strong> (</em>my emphasis) a breach of any of the conditions of the bond, the surety or bail agent may surrender the principal (the visa holder)...to any office" of DHS charged with immigration enforcement or border protection. Sec 304(c) (6)(a). This appears to allow bounty hunters to bring a visa holder suspected of a possible visa breach to haul that person into USCIS.<br /><br />In fact, together with the Sensenbrenner bill, the SAFER bill seems to be attempting to initiate a new era of bounty hunting. So, an immigration bond can be fulfilled if the bounty hunter turns the alien into the authorities under certain conditions (it says nothing about dead or alive.)<br /><br />In the work authorization area, the bill makes it unlawful to claim any kind of deduction or benefit from activities resulting from unlawful employment AND gives any individual a right of action to sue on behalf of the US, to recover the value of the benefit. The individual would then be entitled to 25% of the amount recovered.<br /><br />There is a lot more in the SAFER Bill: Temporarily suspending most visa, adjustment of status processing, etc., while the Directorate of Border and Transportation Security gets its house in order. In removal proceedings, preventing immigration judges from granting continuances to allow an alien to become eligible for relief, or granting an illegal entrant a motion for a change of venue to another location, restrictions on habeus corpus, and so on with the usual anti-immigration favorites. <br /><br />At this point the bill is still in raw proposed form. The coming weeks will see how much of this gets passed to the Senate to be thrown into the legislative mix.<br /><br />gfGil Ferrerhttp://www.blogger.com/profile/05766901581227572265noreply@blogger.com0