Articles Posted in Immigration Reform

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waste-paper-499987-m.jpgLast week, the Department of Homeland Security (DHS) released a formal notice of its proposed rulemaking (NPRM) on the subject of employment-based immigration programs for highly-skilled foreign workers. The NPRM was published in the Federal Register on December 31, 2015, and the public has 60 days to comment on the NPRM provisions.

The NPRM covers a variety of critically important issues, many of which were supposed to be the focus of the still unpassed comprehensive immigration reform legislation. We have highlighted a number of the provisions below and encourage visitors to engage in the comment making procedure before the period closes on February 29, 2016.

AC21 and ACWIA Provisions

AC21 and ACWIA are statutes that former presidents signed into law more than 15 years ago. However, DHS still hasn’t promulgated official regulations in order to implement the provisions of these two laws. Because of the non-existence of governing regulations, immigration attorneys, U.S. employers, and foreign nationals have had to rely on informal and unofficial agency memoranda which has resulted in much confusion, expense, and frustration for all parties involved.
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Screen Shot 2015-11-23 at 4.18.39 PM.pngIn the years since its implementation by the Immigration and Nationality Act of 1990, the H-1B visa, which is a popular temporary employment visa, has been a vital part of the U.S. economy. The H-1B visa program allows a multitude of U.S. companies, businesses, organizations, and non-profit institutions to bring over foreign workers who can perform specialized job duties in fields ranging from science, technology, engineering, and mathematics to education, business, and medicine.

Any U.S. employer who has utilized the H-1B program can attest to the fact that this program is extremely cumbersome and complex and requires U.S. employers to make multiple disclosures and attestations in order to successfully secure one H-1B approval for a foreign worker. Unfortunately, similar to almost anything related to immigration right now, the H-1B program has come under fire, and its existence and purpose is threatened in the U.S. Senate. Republican Senator Chuck Grassley and Democrat Senator Dick Durbin have crossed the aisle to join forces on an H-1B Visa Reform Bill that, if passed, will merely serve to hurt the nation’s economy.

The H-1B Visa Reform Bill

The bill proposes radical changes to the already voluminous and convoluted H-1B regulations. Among its key provisions are requiring U.S. companies that have more than 50 staff members and a significant H-1B workforce to recruit for U.S. workers before bringing on any additional H-1B employees. Moreover, in addition to the stringent reporting requirements already in place, the Reform Bill would also require companies to provide the U.S. Department of Labor (DOL) with copies of records of its H-1B and L-1 visa employees’ wages, education level, gender, and place of employment.
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Screen Shot 2015-08-04 at 10.00.45 AM.pngSince Congress has stalled comprehensive immigration reform for the past three years, the President has been able to provide some relief to foreign nationals who are contributing to the U.S. economy and communities, but who do not have lawful immigration status. This relief includes Deferred Action for Childhood Arrivals and the recently announced executive action which has unfortunately stalled in the courts.

However, the President continues to move forward with his new immigration action which would expand a waiver program that allows undocumented foreign nationals to remain in the U.S. while they wait for the U.S. government to complete their green card processing.

The Current Provisional Hardship Waiver

The current version of the hardship waiver was also implemented by the President through an executive action back in 2013. The current version allows undocumented foreign nationals who have a U.S. citizen parent or spouse to remain in the U.S. if they can demonstrate that their absence for three or ten years (depending on how long they have been in the U.S. without immigration status) would cause extreme hardship to their U.S. citizen relative.
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964707_capitol_place_2.jpgSince the summer of 2012, the members of Congress have been unable to come to an agreement on nearly anything related to comprehensive immigration reform. While the nation as a whole continues to wait for the federal government to get its act together, a number of states have decided to take matters into their own hands and pass immigration policies that have greatly benefited their respective communities and economies. In particular, the state of California has made efforts to encourage the integration of foreign nationals through a number of laws that are collectively referred to as the California Package.

The California Package

Since 2001 and continuing to the present, California has passed nearly two dozen laws that deal with the integration of foreign nationals in some way or another. Just this month, the state made the decision to expand its healthcare access to cover all undocumented foreign national children and also set aside more state funds to assist lawful permanent residents (green card holders) who are applying for U.S. citizenship through a process called naturalization.

Additionally, in order to qualify for in-state tuition colleges and universities do not look to an applicant’s immigration status at all. Instead, they evaluate the number of years the applicant has been in the California public school system. Moreover, just last year California also passed a law that required all of the state’s professional licensing boards to consider all applicants for admission – without regard to their immigration status. And it need hardly be stated that California also allows all of its residents to apply for driver’s licenses.
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196716_files.jpgThe United States economy continues to struggle to rebound to its pre-2008 recession strength. One of the reasons why this struggle persists nearly seven years after the recession is that many of America’s most highly valued industries are trying to balance their employment needs with the country’s exceedingly complex immigration laws and regulations.

While foreign workers bring inestimable benefits to all facets of American industry, there are certain sectors of the economy that rely on foreign workers more heavily than others. One example is the agricultural industry. Currently, the South Dakota dairy industry is experiencing a shortage of workers that is greatly detrimental to the state’s businesses and in turn, to the dairy supply for the large segments of the country that these businesses serve.

Dairies Warn that Immigration Laws May Jeopardize America’s Food Production

Mr. Steve Bossman is the manager of the Turner County Dairy, which houses 1,600 cows that require milking by the dairy’s employees. Mr. Bossman personally oversees more than 30 foreign employees and makes his opinion on the U.S. work visa programs quite clear when he told the local news, “Our federal system is absolutely screwed up.” In fact, Mr. Bossman believes that the system is so broken that if its problems are not fixed soon, America’s ability to produce dairy-related food items may be adversely affected, resulting in shortages of these goods around the country.
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Silicon_Valley_P1190057.jpgIn the weeks that followed the President’s announcement of his plans to institute deportation suspension and work authorization policies for qualifying undocumented foreign nationals, there has been a flurry of media attention that discusses how these policies will affect the country as a whole. Unsurprisingly, the media attention has spread across party lines, with liberal media sources lauding the President’s moves and conservative outlets largely decrying them.

However, recently the White House issued a public relations statement that seemingly could attract both sides of the political spectrum. Last week, White House advisor Cecilia Munoz stated that the President’s executive actions could boost the U.S. economy – specifically in the state of California – by more than $27 billion.

How the Executive Action Could Boost the Economy

According to the White House, the President’s action to provide work authorization eligibility to millions of undocumented foreign nationals would create a direct and immediate increase in productivity and worker availability, especially in California where there is a large undocumented yet highly skilled population. By tapping into this hitherto unavailable resource, California businesses will be able to expand their operations, increase their productivity and output, and create more job opportunities for American workers.
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stop-sign-1334670-m.jpgRecently, the House of Representatives made headlines again in what is likely its first of many moves to interfere with and further delay the much-needed comprehensive immigration reform. Specifically, the Republicans in the House voted to block President Obama’s deferred deportations of millions of undocumented foreign nationals, including those foreign nationals who were brought to the U.S. as children (commonly called “dreamers”).

The Vote

The 236-191 vote was made in connection with a broad bill whose purpose is to allocate nearly $40 billion in funds to the U.S. Department of Homeland Security (DHS). These funds are supposed to finance DHS operations through the rest of the fiscal year. While the bill’s vote was largely governed by party lines, it is worthy to note that 10 Republicans voted against the bill and that two moderate Democrats voted for it.

In the wake of the President’s immigration-related executive orders that he released in November, House Republicans pledged to reverse these orders and remove any protection from deportation for the estimated five million undocumented foreign nationals who stand to benefit from the President’s policies.
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behind-bars-76714-m.jpgIn November 2014, following the congressional mid-term elections that resulted in more Republican legislators elected to the Senate and House of Representatives, President Obama announced that his administration would be implementing new policies aimed at providing temporary immigration-related relief to undocumented foreign nationals who are the parents of U.S. citizens or lawful permanent residents (green card holders). This policy, referred to as Deferred Action for Parents of Americans and Legal Permanent Residents or DAPA, is an offshoot of the President’s previously implemented policy for undocumented foreign nationals who were brought to the U.S. as children (referred to as Deferred Action for Childhood Arrivals or DACA).

In less than two months, the President’s new policies have already worked to reunite American families and provide relief for undocumented foreign nationals who are poised to greatly contribute to the U.S. economy, but for their undocumented immigration status. This beneficial result has occurred because the Department of Homeland Security’s Immigration and Customs Enforcement office (ICE) is releasing DAPA- and DACA-qualified foreign nationals from immigration detention centers.

Arizona is the Current Leader in Releasing Detainees

All too often, the state of Arizona makes national headlines due to its discouraging immigration-related actions. However, Arizona has now become the leader in releasing DAPA- and DACA-qualified foreign national detainees, a distinction that hopefully indicates that the state is becoming more immigrant-friendly.
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gavel-3-1409593-m.jpgRecently, a Pennsylvania federal judge issued a case opinion ruling that the President’s executive action on immigration – specifically, suspending the deportation proceedings for qualifying undocumented foreign nationals – is unconstitutional. However, it is unclear whether this ruling will have any impact on the greater immigration debate because the judge was never asked to consider the constitutionality of the President’s executive action.

The Case

The case before U.S. District Court Judge Arthur Schwab was criminal in nature. The defendant is Mr. Elionardo Juarez-Escobar, a Honduran national whom the United States had previously deported to his home country. After deportation, Mr. Juarez-Escobar made an unlawful re-entry into the U.S. and was subsequently arrested on a drunk driving charge.

According to court documents, neither the defendant nor the prosecution referenced the President’s executive action policies in their arguments because these policies are only supposed to apply to civil proceedings. (Under current law, deportation qualifies as a civil proceeding.) However, Judge Schwab seems to have taken it upon himself to examine the President’s executive action anyway.

Judge Schwab’s Opinion

In his 38-page decision, Judge Schwab stated that it is possible that Mr. Juarez-Escobar may have benefited under the temporary suspension of deportation and because of this, the President’s actions violate the separation of powers established in the Constitution. The judge also alleges that the executive action violates the “take care clause” of the Constitution, which instructs presidents to take care that the laws of the U.S. are faithfully executed.
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stop-sign-1334670-m.jpgImmigration has once again made headline news recently as Dr. Rand Paul, a Republican Senator from Kentucky and possible 2016 presidential candidate, introduced a bill into the Senate that attempts to overturn the President’s executive action on immigration.

A couple of weeks ago, the President announced that his administration, working in conjunction with various departments within the U.S. Department of Homeland Security, would be implementing numerous measures designed to offer immigration-related relief to hundreds of thousands of foreign nationals who are currently living in the United States. These proposed measures include expanding the President’s existing Deferred Action for Childhood Arrivals program (DACA) as well as creating a new Deferred Action for Parental Accountability program (DAPA). DAPA will be reserved for foreign nationals who have a U.S. citizen or lawful permanent resident son or daughter.

The President’s announcement of his plans for executive action was met with tremendous anger and denouncement by many Republicans in Congress, who believe President Obama has overreached his presidential powers.
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