Friday, July 30, 2010
Thursday, July 29, 2010
Governor of Arizona Janice K. Brewer and the State of Arizona filed an appeal
On 7/29/10, Governor of Arizona Janice K. Brewer and the State of Arizona filed an appeal to the U.S. Court of Appeals for the Ninth Circuit from the U.S. District Court’s preliminary injunction, which blocks sections of Arizona law SB 1070 from taking effect.
Link to preliminary injunction appeal.
Link to preliminary injunction appeal.
Wednesday, July 28, 2010
Arizona judge gets it exactly right
By Ruben Navarrette Jr., Special to CNN
Link.
San Diego, California -- U.S. District Judge Susan Bolton ripped the guts out of SB 1070 on Wednesday, striking down the most egregious and indefensible parts of Arizona's immigration law.
That's exactly what you should do when confronted with a monster -- in this case, the monstrosity of a law that usurps federal authority over immigration enforcement, doesn't just allow for racial profiling but requires it by allowing police to arrest people they suspect are in the country illegally, makes it a state crime to ask for work if one is undocumented and requires legal immigrants to carry documents proving their legal status.
If I were grading this law, I'd give it straight D's. It's divisive, dangerous, dishonest and dysfunctional. It's divisive because whites and Latinos see the law differently; according to polls, about 70 percent of whites support it, and 70 percent of Latinos oppose it.
It's dangerous because, as Phoenix Police Chief Jack Harris argues, local police shouldn't have to enforce immigration law at the cost of reallocating resources aimed at tackling other kinds of crime.
It's dishonest because Arizonans created the very problem they're now complaining about so vociferously by hiring illegal immigrants.
And it's dysfunctional because neither local cops nor federal immigration agents had any idea how they were going to enforce the very provisions that the judge struck down.
Link.
MSNBC: Judge blocks police from questioning immigration status
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Statement by DHS Deputy Press Secretary Matt Chandler
“The court’s decision to enjoin most of SB1070 correctly affirms the federal government’s responsibilities in enforcing our nation's immigration laws. Over the past eighteen months, this Administration has dedicated unprecedented resources to secure the border, and we will continue to work to take decisive action to disrupt criminal organizations and the networks they exploit. DHS will enforce federal immigration laws in Arizona and around the country in smart, effective ways that focus our resources on criminal aliens who pose a public safety threat and employers who knowingly hire illegal labor, as well as continue to secure our border.
“ICE works everyday with local law enforcement across the country to assist them in making their communities safer and we will continue do so in Arizona. At the same time, we will continue to increase resources in Arizona by complementing the National Guard deployment set to begin on Aug. 1 with the deployment of hundreds of additional Immigration and Customs Enforcement agents, Border Patrol agents and other law enforcement personnel that will aid in our continuing efforts to conduct outbound inspections, patrol challenging terrain, and interdict illicit smugglers. We are focused on smart effective immigration and border enforcement while we work with Congress toward the type of bipartisan comprehensive reform that will provide true security and establish accountability and responsibility in our immigration system at the national level.”
Link to DHS press release.
“ICE works everyday with local law enforcement across the country to assist them in making their communities safer and we will continue do so in Arizona. At the same time, we will continue to increase resources in Arizona by complementing the National Guard deployment set to begin on Aug. 1 with the deployment of hundreds of additional Immigration and Customs Enforcement agents, Border Patrol agents and other law enforcement personnel that will aid in our continuing efforts to conduct outbound inspections, patrol challenging terrain, and interdict illicit smugglers. We are focused on smart effective immigration and border enforcement while we work with Congress toward the type of bipartisan comprehensive reform that will provide true security and establish accountability and responsibility in our immigration system at the national level.”
Link to DHS press release.
AILA Applauds Arizona Decision
FOR IMMEDIATE RELEASE:
Wednesday, July 28, 2010
WASHINGTON, DC - The American Immigration Lawyers Association (AILA) applauds the decision of Judge Susan R. Bolton of the U.S. District Court for Arizona enjoining the most damaging and dangerous provisions of Arizona's SB 1070, which were set to go into effect tomorrow. With the stroke of a pen, Judge Bolton has restored the rule of law to the citizens of Arizona.
The ruling underscores the need for a comprehensive overhaul of our dysfunctional immigration system and makes clear that America needs solutions, not mean spirited laws which are based on the misguided notion that the darker a person's tone, the more likely they are illegal.
"A patchwork of different state and local immigration laws are counterproductive and no substitute for comprehensive, federal action," said David Leopold, president of AILA. "It is the Federal Government's responsibility to fix our broken immigration system with workable solutions. This includes effective federal border security, a path to legalization for undocumented immigrants and a legal visa system for future needs."
AILA stands ready to work with President Obama and Congress to fashion a safe, orderly and fair immigration system that meets the needs of American families and business and keeps our nation competitive into the 21st century. Leopold concluded, "Laws like Arizona's are harmful and would strain and burden law enforcement resources, create an atmosphere of fear of law enforcement officials in immigrant communities thereby inhibiting victims and witnesses of crimes from coming forward, and tax state and local budgets to pay for inevitable legal challenges."
###
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
Wednesday, July 28, 2010
WASHINGTON, DC - The American Immigration Lawyers Association (AILA) applauds the decision of Judge Susan R. Bolton of the U.S. District Court for Arizona enjoining the most damaging and dangerous provisions of Arizona's SB 1070, which were set to go into effect tomorrow. With the stroke of a pen, Judge Bolton has restored the rule of law to the citizens of Arizona.
The ruling underscores the need for a comprehensive overhaul of our dysfunctional immigration system and makes clear that America needs solutions, not mean spirited laws which are based on the misguided notion that the darker a person's tone, the more likely they are illegal.
"A patchwork of different state and local immigration laws are counterproductive and no substitute for comprehensive, federal action," said David Leopold, president of AILA. "It is the Federal Government's responsibility to fix our broken immigration system with workable solutions. This includes effective federal border security, a path to legalization for undocumented immigrants and a legal visa system for future needs."
AILA stands ready to work with President Obama and Congress to fashion a safe, orderly and fair immigration system that meets the needs of American families and business and keeps our nation competitive into the 21st century. Leopold concluded, "Laws like Arizona's are harmful and would strain and burden law enforcement resources, create an atmosphere of fear of law enforcement officials in immigrant communities thereby inhibiting victims and witnesses of crimes from coming forward, and tax state and local budgets to pay for inevitable legal challenges."
###
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
American Immigration Council re: Judge's decision on SB 1070 Arizona Immigration Law
by American Immigration Council
Arizona Judge Draws Line Between State and Federal Authority
Focus Must Now Return to Comprehensive Federal Solutions
July 28, 2010
Washington, D.C. - Today, Phoenix district court judge Susan Bolton enjoined key provisions of Arizona's controversial immigration law, SB 1070. The judge recognized that the federal government has primary authority over making and enforcing immigration law, and that while states have limited authority in this arena, they cannot interfere with federal enforcement or undermine federal priorities. The decision acknowledges the complex nature of immigration law and the harmful consequences of local police attempting to make immigration determinations. The judge also recognized the serious strain that the Arizona law would place on federal resources, which would detract from the federal government's ability to enforce immigration laws in other states and target resources toward serious criminals.
The following is a statement from Benjamin E. Johnson, Executive Director of the American Immigration Council.
"It is clear that Judge Bolton has a strong grasp on the complexity of immigration issues and the challenges facing the state. She blocked the most controversial and troubling parts of the law that not only intrude on the Federal government's authority over immigration, but were also likely to violate the civil rights of legal immigrants and U.S. citizens. While it is important to acknowledge that there are serious problems in Arizona, if Arizonans truly want to target human trafficking, human smuggling, and other serious crimes, they must focus their efforts and resources on those criminal networks, and nothing in today's decision prevents them from doing so.
Now the question is whether politicians at the state and federal level will stop playing politics and start solving problems. Arizona must start focusing on serious criminals and the federal government must assume its Constitutional duty of fixing the broken immigration system. America needs real solutions that make our communities safer, our border more secure, and finally fix our broken immigration system."
Arizona Judge Draws Line Between State and Federal Authority
Focus Must Now Return to Comprehensive Federal Solutions
July 28, 2010
Washington, D.C. - Today, Phoenix district court judge Susan Bolton enjoined key provisions of Arizona's controversial immigration law, SB 1070. The judge recognized that the federal government has primary authority over making and enforcing immigration law, and that while states have limited authority in this arena, they cannot interfere with federal enforcement or undermine federal priorities. The decision acknowledges the complex nature of immigration law and the harmful consequences of local police attempting to make immigration determinations. The judge also recognized the serious strain that the Arizona law would place on federal resources, which would detract from the federal government's ability to enforce immigration laws in other states and target resources toward serious criminals.
The following is a statement from Benjamin E. Johnson, Executive Director of the American Immigration Council.
"It is clear that Judge Bolton has a strong grasp on the complexity of immigration issues and the challenges facing the state. She blocked the most controversial and troubling parts of the law that not only intrude on the Federal government's authority over immigration, but were also likely to violate the civil rights of legal immigrants and U.S. citizens. While it is important to acknowledge that there are serious problems in Arizona, if Arizonans truly want to target human trafficking, human smuggling, and other serious crimes, they must focus their efforts and resources on those criminal networks, and nothing in today's decision prevents them from doing so.
Now the question is whether politicians at the state and federal level will stop playing politics and start solving problems. Arizona must start focusing on serious criminals and the federal government must assume its Constitutional duty of fixing the broken immigration system. America needs real solutions that make our communities safer, our border more secure, and finally fix our broken immigration system."
NYT: Judge Blocks Key Parts of Immigration Law in Arizona
by Randal C. Archibald
Link to article.
In a ruling on a law that has rocked politics coast to coast and thrown a spotlight on the border state’s fierce debate over immigration, United States District Court Judge Susan Bolton in Phoenix said some aspects of the law can go into effect as scheduled on Thursday.
But Judge Bolton took aim at the parts of the law that have generated the most controversy, issuing a preliminary injunction against sections that called for officers to check a person’s immigration status while enforcing other laws and that required immigrants to carry their papers at all times.
Judge Bolton put those sections on hold while she continues to hear the larger issues in the challenges to the law.
“Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced,” she said.
“There is a substantial likelihood that officers will wrongfully arrest legal resident aliens,” she wrote. “By enforcing this statute, Arizona would impose a ‘distinct, unusual and extraordinary’ burden on legal resident aliens that only the federal government has the authority to impose.”
Link to article.
Tuesday, July 27, 2010
From AILA Director of Advocacy Greg Chen:
Tensions have been rising ever since word got out that comprehensive immigration reform won't happen anytime soon. Arizona's ill-advised SB1070 and the illegal release of the Utah "blacklist" are just two examples of how people are willing to go to extremes when our nation's leaders fail to lead. What's happening now should seem like a déjà vu to those who watched Congress stumble on immigration reform in 2007. What followed back then were hundreds of state and local immigration-related bills being introduced most of which did more harm than good. Recently, we've seen that same uptick in state and local measures.
What also followed after the failure of the 2007 immigration bill was a period of heightened enforcement driven partly by the Bush Administration's desire to show it could be tough in its enforcement of immigration laws. Now the Obama Administration is facing the same challenge. But by any measure, enforcement is happening at a significantly greater level than in past years. Newspapers are reporting widely what we've known for months: that deportations have increased dramatically compared to the last years in the Bush administration and will hit 400,000 this fiscal year. Secretary Napolitano has ably demonstrated that resources spent on border security are at an unprecedented level. Yet the calls keep coming for more national guard, more fences, more money to be thrown at the border, without any regard for what is really going to make a difference.
The more difficult problem this President faces is showing that he's a law enforcer who can do so in a way that is fair and humane. Almost exactly one year ago, ICE Assistant Secretary John Morton announced a raft of much-needed reforms to the substandard immigration detention system. Following those announcements were statements — and a new policy memo released on June 30 — that the federal government would use taxpayer dollars smartly and wisely and target those lawbreakers who are highest priority — namely those with violent criminal backgrounds who pose a threat to our safety. For employers the message has been that ICE would target egregious law violators that exploit workers.
Those were heartening pronouncements, but a year has passed on several of the announced reforms, and the signs of progress have been slow to come. AILA members continue to report cases of those stuck in detention who are mistreated or who have compelling cases for relief and should be released. Even worse, in late March, the Washington Post broke a story that senior level ICE officials were still imposing quotas on their officers to meet a set number of arrests and deportations-apparently without regard to any prioritization of those who are most dangerous. In May, ICE disclosed that a guard working at a Texas detention facility sexually abused women during transport. And this week, Human Rights Watch and the ACLU released a report detailing how immigrants with mental disabilities are often unjustifiably detained for years on end, and prevented from making claims against deportation — including claims of US citizenship — because they were unable to represent themselves.
Changing the trajectory of a behemoth institution is an enormous task, and this Administration is definitely confronting the problem of getting its marching orders to the field. But how much longer can we wait? President Obama still has the opportunity to demonstrate real leadership but he must act urgently. If he exercises his enforcement muscle no differently than was done the past, he also risks losing his moral authority and the ability to lead on this controversial issue of immigration reform. That would be a terrible mistake.
What also followed after the failure of the 2007 immigration bill was a period of heightened enforcement driven partly by the Bush Administration's desire to show it could be tough in its enforcement of immigration laws. Now the Obama Administration is facing the same challenge. But by any measure, enforcement is happening at a significantly greater level than in past years. Newspapers are reporting widely what we've known for months: that deportations have increased dramatically compared to the last years in the Bush administration and will hit 400,000 this fiscal year. Secretary Napolitano has ably demonstrated that resources spent on border security are at an unprecedented level. Yet the calls keep coming for more national guard, more fences, more money to be thrown at the border, without any regard for what is really going to make a difference.
The more difficult problem this President faces is showing that he's a law enforcer who can do so in a way that is fair and humane. Almost exactly one year ago, ICE Assistant Secretary John Morton announced a raft of much-needed reforms to the substandard immigration detention system. Following those announcements were statements — and a new policy memo released on June 30 — that the federal government would use taxpayer dollars smartly and wisely and target those lawbreakers who are highest priority — namely those with violent criminal backgrounds who pose a threat to our safety. For employers the message has been that ICE would target egregious law violators that exploit workers.
Those were heartening pronouncements, but a year has passed on several of the announced reforms, and the signs of progress have been slow to come. AILA members continue to report cases of those stuck in detention who are mistreated or who have compelling cases for relief and should be released. Even worse, in late March, the Washington Post broke a story that senior level ICE officials were still imposing quotas on their officers to meet a set number of arrests and deportations-apparently without regard to any prioritization of those who are most dangerous. In May, ICE disclosed that a guard working at a Texas detention facility sexually abused women during transport. And this week, Human Rights Watch and the ACLU released a report detailing how immigrants with mental disabilities are often unjustifiably detained for years on end, and prevented from making claims against deportation — including claims of US citizenship — because they were unable to represent themselves.
Changing the trajectory of a behemoth institution is an enormous task, and this Administration is definitely confronting the problem of getting its marching orders to the field. But how much longer can we wait? President Obama still has the opportunity to demonstrate real leadership but he must act urgently. If he exercises his enforcement muscle no differently than was done the past, he also risks losing his moral authority and the ability to lead on this controversial issue of immigration reform. That would be a terrible mistake.
Monday, July 26, 2010
Brewer pals to profit from 1070?
KPHO investigates ties between the Brewer administration and Corrections Corporation of America (CCA) – and how the governor’s rhetoric on border security may be damaging Arizona’s tourism industry for the benefit of CCA.
Effect of Arizona's new immigration law may hinge on federal cooperation
by Daniel González, The Arizona Republic
Link.
Arizona's tough new immigration law is slated to take effect Thursday, but the nation's immigration enforcement agency has not indicated whether it will cooperate with police who are trying to enforce it.
Without cooperation from Immigration and Customs Enforcement, much of the law would become unenforceable: Police would have no way of determining, from federal authorities, the legal status of suspected illegal immigrants as the state law requires. And that would severely hamper efforts to arrest them for violations of the law.
As a result, local police officers might have to release suspected illegal immigrants if they can't determine their status.
"If the Department of Homeland Security says, 'SB 1070 is unconstitutional, don't cooperate,' . . . then much of what is going on here shuts down. Not necessarily all of it, but a lot of it," said Gabriel Jack Chin, a University of Arizona criminal-law professor who co-authored a legal analysis of the law.
Link.
Judge considering partial injunction in Arizona case
by Alia Beard Rau, Michael Kiefer and Kevin Kiley, The Arizona Republic
Link.
The fate of Arizona's tough new immigration law now sits in the hands of U.S. District Judge Susan Bolton.
Bolton held hearings Thursday on two of the highest-profile legal challenges to Senate Bill 1070, making attorneys on both sides of the aisle sweat as she challenged their legal arguments and forced them to focus on specific portions of the law.
Bolton did make one thing clear: She has no intention of invalidating the entire law but is considering halting the enactment of a handful of its 14 sections.
Link.
Do undocumented children have a right to public education?
In 1982, the United States Supreme Court ruled in Plyler v. Doe, 457 U.S. 202, that states violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution when they deny undocumented children the same education opportunity that is provided to United States citizens.
Letter from the NY Civil Liberties Union to David M. Steiner, Commissioner, New York State Education Department.
USCIS Announces First Ten Areas of Focus for Agency-wide Policy Review
U.S. Citizenship and Immigration Services (USCIS) has announced the results of a public survey that launched the USCIS Policy Review, an unprecedented, top-to-bottom examination of the agency’s adjudication and customer-service policies. The survey results helped USCIS select the first 10 issue areas to address in the agency-wide review. Informed by the survey responses, the agency’s needs, and input from the workforce, the USCIS Policy Review will begin by examining policies in the following issue areas: National Customer Service Center; Nonimmigrant H-1B; Naturalization and Citizenship; Employment-based Adjustment of Status; Family-based Adjustment of Status; Employment-Based Preference Categories 1, 2 and 3; Refugee and Asylum Adjustment of Status; Form I-601; General Humanitarian; and Employment Authorization and Travel Documents.
Link.
Thursday, July 22, 2010
Governor Jan Brewer's response to the motion argued in court today to delay the implementation of Arizona's SB1070 law on July 24th
In sum, Arizona is arguing that illegal immigration is costing the state money and delaying implementation will cause economic damage to the state. Also, they argue that illegal immigrants are dangerous criminals and the citizens of Arizona are in grave danger each day this law is not implemented. According to reports published by the Immigration Policy Center, neither of these things are true.
Please see Studies Show Decrease in Arizona Crime Rates and The Political and Economic Power of Immigrants, Latinos, and Asians in Arizona.
Link to the Governor's response.
Please see Studies Show Decrease in Arizona Crime Rates and The Political and Economic Power of Immigrants, Latinos, and Asians in Arizona.
Link to the Governor's response.
One-sided segment from MSNBC on Arizona immigration law
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Fleeing the American Dream
CNN’s Thelma Gutierrez meets a family who feels forced to leave Arizona because of the immigration crackdown.
Today in Phoenix a judge will hear arguments in United States v. the State of Arizona
Washington, D.C. - Today in Phoenix a judge will hear arguments in United States v. the State of Arizona and Gov. Janice K. Brewer. The federal government's laywers will seek a preliminary injunction to stop the law from going into effect on July 29 - which gives police the power to question people they have "reasonable suspicion" are illegal immigrants - while the lawsuit proceeds.
Q & A Guide to Arizona's New Immigration Law
Special Report courtesty of the American Immigration Council
Link.
Barely a month after passage of Arizona’s tough new immigration law (SB 1070), both opponents and proponents are attempting to assess the impact the new law may have on residents of Arizona—citizens and immigrants alike. At the same time, approximately 22 states (at last count) are considering similar legislation. Multiple lawsuits have been filed challenging the constitutionality of the law, opponents are mounting a boycott, and numerous polls show that a majority of the public both supports the Arizona law and comprehensive immigration reform.
SB 1070 represents, among other things, a growing frustration with our broken immigration system. Ultimately the courts will decide the constitutionality of the law, while time will answer many questions about its impact. In the short term, as other states contemplate copying Arizona’s version of immigration reform, there is plenty of evidence to suggest that an enforcement‐only strategy—whether attempted at the federal or state level—does not solve the immigration problem.
This guide provides key answers to basic questions about Arizona’s law—from the substance of the law and myths surrounding it to the legal and fiscal implications. As other states contemplate similar legislation, knowing the answers to basic questions about Arizona’s law will prove to be critically important in furthering the discussion.
Link.
Wednesday, July 21, 2010
Advance Copy of I-9 Final Rule
The U.S. Department of Homeland Security (DHS) today finalized a regulation that provides greater flexibility for employers to electronically sign and store I-9 forms, which are used by U.S. Immigration and Customs Enforcement (ICE) to verify employment eligibility-eliminating the need for paper filing and streamlining efforts to ensure a legal workforce nationwide. ICE, July 21, 2010
Link.
2 Utah state workers losing jobs over immigrant list
Governor says others possibly knew about personal info distributed about 1,300 people
by Brock Vergakis, AP
Link.
by Brock Vergakis, AP
SALT LAKE CITY — Gov. Gary Herbert said Tuesday that two state workers were responsible for compiling and distributing a list of personal information of 1,300 purported illegal immigrants, and that both would be fired.
State officials had been investigating as many as 10 employees for possible involvement, but nobody else will face disciplinary action.
Link.
Report on the Constitutionality of Arizona Immigration Law S.B. 1070
Executive Summary:
Link to entire report.
The Committee on Immigration and Nationality Law of the New York City Bar Association has examined the Arizona Revised Statutes known as “SB 1070 Anti-Immigration Act,” as amended by HB 2162, and concluded that its core sections are unconstitutional in whole or in part under the Supremacy Clause of the United States Constitution and violate the First, Fourth and Fourteenth Amendments. The body of this Report sets forth the Committee’s analysis, and provides an overview of the Arizona legislation in the broader context of needed federal immigration reform. program for workers who are already here. The vehemence of efforts such as Arizona’s to formulate legislative policies which are, in their essence, anti-immigrant, runs the risk of coarsening the dialogue which must support and eventually lead to a rational federal program.
The substantive content of these state statutes, as manifested by SB 1070, promotes racial profiling while infringing upon the exclusive role of the federal government to regulate immigration. Our analysis shows that the Arizona statute is preempted under the Supremacy Clause for several reasons which are set out below, but chiefly because it adopts a parallel immigration enforcement program to the one maintained by the federal government through the pretext of conflating civil and criminal provisions of the Immigration and Nationality Act. At the same time, the statute fails on due process and Fourth Amendment grounds, in that it offers insufficient guidance to officials administering it as to when “reasonable suspicions” of unlawful presence exist, and will target the foreign-born. The anti-work solicitation provisions violate the First Amendment. We urge New York and other states to resist emulating Arizona’s SB 1070 because of these grave constitutional concerns and we urge instead that the federal government undertake necessary, comprehensive immigration reform. Failure to enact comprehensive immigration reform is providing the fuel for states to overreach in this area of exclusive federal regulation.
Link to entire report.
Lawsuit Filed Against DHS and USCIS Seeks Transparency
Lawsuit Filed Against Department of Homeland Security and U.S. Citizenship and Immigration Services Seeks Transparency Promised by Obama Administration American Immigration Lawyers Association Seeks Disclosure of Records under FOIA
July 20, 2010
Washington D.C. - Today the American Immigration Council's Legal Action Center filed a lawsuit against the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS) on behalf of the American Immigration Lawyers Association (AILA) seeking the public release of records concerning agency policies and procedures for the "H-1B" visa program - a program which allows U.S. businesses to temporarily employ highly-skilled foreign workers.
AILA had pursued disclosure of the documents through two separate Freedom of Information Act (FOIA) requests, both of which were denied in full by the government. In its complaint filed in U.S. District Court for the District of Columbia, AILA seeks the court's intervention to compel the government to release the requested records.
The FOIA litigation centers on the government's H-1B visa review and processing procedures. The H-1B program, administered by USCIS, allows U.S. businesses to temporarily employ foreign workers - such as scientists, engineers, and computer programmers - in occupations that require theoretical or technical expertise in specialized fields. Since 2008, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced worksite inspections - expected to reach 25,000 visits in 2010 alone - in connection with H-1B cases. Yet USCIS has kept secret the rules and guidelines related to the review process. The dearth of publicly available information on the government's heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.
"The requested documents are the kind that a government agency should release as a matter of course," said Crystal Williams, Executive Director of the American Immigration Lawyers Association. "That we had to file a FOIA request, and that the request was denied, is counter to the President's directives for a more open and transparent government. This lawsuit seeks to require the agency to be true to the open government directives of the Obama administration."
"It is in the public and the agency's interest to release the documents sought by AILA," said Mary Kenney, attorney at the American Immigration Council's Legal Action Center. "The documents will help employers and foreign workers who seek immigration benefits comply with the law. Further, the agency violated FOIA when it issued wholesale denials of AILA's FOIA requests."
AILA is also represented in the litigation by Steptoe & Johnson LLP.
Link.
New USCIS Memo clarifying petition validity periods for O-1 aliens of extraordinary ability
On July 20, 2010, USCIS issued a clarifying memo which provides guidance for processing and adjudicating O-1 petitions, with regard to determining the appropriate validity period of an approvable petition when a gap exists between two or more events reflected in the itinerary.
Notably, artists and entertainers in particular, commonly submit petitions with an itinerary that includes gaps in time between scheduled events. USCIS had the following to say in this regard:
Notably, artists and entertainers in particular, commonly submit petitions with an itinerary that includes gaps in time between scheduled events. USCIS had the following to say in this regard:
The statutory and regulatory background provides flexibility on the length of validity period that may be granted. The statute and regulations allow for an approval of an O-1 petition for a period necessary to accomplish the event or activity, not to exceed 3 years. Adjudicators should evaluate the totality of the evidence submitted to determine if the activities described in the itinerary are related in such a way that they would be considered an “event” for purposes of the validity period. When the validity period requested is established though the submission of appropriate evidence, Service Centers should approve a petition for the length of the validity period requested where the law and regulations permit.
Thus, there is a clear indication in the regulations that a petition may be approved to cover not only the actual event or events but also services and/or activities in connection with that event or events. 8 CFR 214.2(o)(2)(ii)(C) defines the evidentiary standard for identifying the event or activity relating to the events by requiring “an explanation of the nature of the events or activities, the beginning and ending dates for the events or activities and a copy of any itinerary for the events or activities.” Unlike other nonimmigrant categories that have a specified time limit, a temporal period is not specified for the Os. The regulations state that the validity period shall be that which is “necessary to accomplish the event or activity, not to exceed 3 years.” 8 CFR 214.2(o)(6)(iii).
A group of related activities may also be considered to be an event. However, speculative employment and/or freelancing are not allowed.1 A petitioner must establish that there are events or activities in the alien’s field of extraordinary ability for the validity period requested, e.g. an itinerary for a tour, contract or summary of the terms of the oral agreement under which the beneficiary will be employed, contracts between the beneficiary and employers if an agent is being utilized in order to establish the events.
The burden is on the petitioner to demonstrate that the activities listed on the itinerary are related to the event despite gaps in which the beneficiary may travel abroad and return to the United States.
Monday, July 19, 2010
USCIS Publishes First-Ever Proposed Fee Waiver Form
U.S. Citizenship and Immigration Services (USCIS) has proposed for the first time a standardized fee waiver form in an effort to provide relief for financially disadvantaged individuals seeking immigration benefits. USCIS has published a notice in the Federal Register seeking public comment on the proposed form – Form I-912, Request for Individual Fee Waiver.
Link.
Sunday, July 18, 2010
Immigration fines top $600,000 for Texas companies
By Alan Blinder, The Houston Chronicle
Link.
WASHINGTON — Texas businesses that hired illegal workers or failed to follow immigration regulations have been fined more than $600,000 since October, though few resulted in criminal prosecutions, federal records show.
A Houston Chronicle review of actions by U.S. Immigration and Customs Enforcement shows 23 Texas companies, including at least four in Houston, have been penalized since the start of the federal fiscal year in October. At the same time, statistics show workplace arrests declining, a shift from the enforcement strategies of the George W. Bush era.
Under President Barack Obama, immigration workplace enforcement has largely targeted employers, rather than workers, and depended on audits of company paperwork that is supposed to prove employees are working legally. At least 1,500 such investigations have been completed since October, compared to 503 in a 12-month span two years ago when Bush was president.
Link.
2010 USCIS Ombudsman Report to Congress
From January Contreras, Citizenship and Immigration Services Ombudsman, Department of Homeland Security the Ombudsman Excerpt re: Requests for Evidence (RFEs):
Link to PDF Report. 144 pages.
The challenge that USCIS now has is to ensure that these initiatives and others, such as working to address widespread concerns about Requests for Evidence, are carried through to a timely and meaningful result. This will require that USCIS leadership provide critical new directives and guidance, both internally and externally. As importantly, change will require new training, and aligned quality assurance and performance indicators to help individual employees – no matter which office, service center, or program they are a part of – work consistently with leadership priorities as they make decisions that impact lives and businesses every day.
Link to PDF Report. 144 pages.
A Closer Look at the Seven Lawsuits Challenging Arizona Law S.B. 1070
By Kalie Moody, Immigration Policy Center
Link.
Almost immediately after Arizona governor Jan Brewer signed S.B. 1070 into law, lawsuits were filed in federal court in Arizona challenging the law. The lawsuits all seek the same result—a halt to the law’s enforcement—although each suit argues different grounds. Some suits cite civil liberty violations, racial profiling and unlawful regulation of federal immigration law, while another suit states that the police training videos exacerbate conflicts between federal and state law. As July 29, 2010, the date S.B. 1070 is set to go into effect, draws near, litigants and supporters on both sides of the lawsuits are seeking swift resolutions. Ultimately though, the timing of any resolution will depend on the court.
Six lawsuits have been brought by non-profit organizations and individuals and a seventh lawsuit was filed by the U.S. Department of Justice. Five of the six lawsuits filed by individuals and organizations ask the court to declare S.B. 1070 unconstitutional and to block Arizona from enforcing the law. The sixth lawsuit and the lawsuit brought by the U.S. Department of Justice ask for the same relief, but only seek to block the first six sections of the law. This would leave intact provisions about employment and the impounding of vehicles.
Link.
Immigration-Enforcement Preparedness: Is Your Business Ready?
By Angelo Paparelli, Nation of Immigrators
Link.
When immigration-beat writers for the Sentinels of the Left and Right, the New York Times and the Wall St. Journal, report on a new trend in government enforcement actions against employers, prudent businesses must take note.
The NYT’s Julia Preston reports: “The Obama administration has replaced immigration raids at factories and farms with a quieter enforcement strategy: sending federal agents to scour companies’ records for illegal immigrant workers.” In a similar vein, Miriam Jordan of the WSJ writes: “Even as the Obama administration cracks down on companies that hire illegal immigrants, it is simultaneously going after employers that it says go too far in vetting job applicants to ensure they are entitled to work in the U.S.”
Link.
Friday, July 16, 2010
Utah Identifies 2 Allegedly Behind Illegal Immigrant List
SALT LAKE CITY -- Utah officials have identified at least two state workers who apparently breached a state database to create a list of 1,300 purported illegal immigrants.
The governor's office said Friday that the employees work for the Department of Workforce Services, which administers food stamp programs and other public benefits.
News media, law enforcement and other government officials started receiving the list of names and personal information this week, creating fear in the Hispanic community. The anonymous mailing demands that those on the list be deported, although some named have said they are in the country legally.
The governor's office has said it will give information about the breach to the state attorney general's office by Monday so it can decide whether to file charges.
Link.
Thursday, July 15, 2010
Policing Illegal Hires Puts Some Employers in a Bind
By Miriam Jordan, Wall Street Journal
Link.
Even as the Obama administration cracks down on companies that hire illegal immigrants, it is simultaneously going after employers that it says go too far in vetting job applicants to ensure they are entitled to work in the U.S.
The Department of Homeland Security currently is auditing employment records of many companies suspected of hiring undocumented workers. Yet in an emerging paradox for businesses, the Justice Department and other agencies have stepped up probes of employers—including restaurant groups, factories and retailers—for allegedly violating anti-discrimination laws by demanding too many identity documents from applicants who aren't U.S. citizens.
To fend off lawsuits or enforcement actions, several companies have recently reached out-of-court settlements with the government; in some instances they paid fines.
"The message is: Employers beware. You need to worry just as much about asking for too many immigration documents as you do about not asking for enough," said Stephen Yale-Loehr, an immigration-law scholar at Cornell University.
Link.
Immigration Enforcement Under Obama
The latest available data from the Justice Department show that criminal immigration enforcement by the two largest investigative agencies within the Department of Homeland Security (DHS) has increased to levels comparable to the highest seen during the Bush Administration.
The government reported that during April 2010 there were 7,822 new prosecutions referred by Customs and Border Protection (CBP), following 7,090 prosecutions in March. The total of 14,912 is the highest two-month total since September and October of 2008, when the combined figure was 16,127.
In addition, there were 2,119 new criminal prosecutions referred by Immigration and Customs Enforcement (ICE) in April 2010, following a March figure of 2,026. The combined two-month total of 4,145 is the highest recorded since the creation of the agency in 2005. This surpasses previous highs of 3,777 in July and August of 2008 and 3,787 in July and August of 2009.
Link to the Trac Immigration report.
In The Eye of The Perfect Storm
Message from AILA President, David Leopold
Read his entire post here.
Arpaio had pulled himself away from terrorizing the Latino neighborhoods of Maricopa County long enough to fly into to Kansas to endorse Kris Kobach, who is running for Kansas Secretary of State on a platform of fear. Kobach, you see, who is an attorney with FAIR, takes credit for co-authoring Arizona’s notorious “Show Me Your Papers” S.B. 1070 which effectively codifies the notion that the darker person’s skin tone, the more likely it is they are illegal.
So today Kansas City was ground zero for the restrictionist’s message—billed as a fundraiser for Kobach and dubbed “The Illegal Means Illegal Rally”. My mission? To make sure that that Kobach-Arpaio message of fear and xenophobia was met with the truth: that immigration is good for America, economically, socially, and, above all, morally.
Read his entire post here.
Wednesday, July 14, 2010
Utah probes list of 1,300 people claimed to be illegal immigrants
SALT LAKE CITY — State agencies are investigating whether any of their employees leaked Social Security numbers and other personal information after a list of 1,300 people who an anonymous group claims are illegal immigrants was circulated around Utah.
The anonymous group mailed the list to several media outlets, law enforcement agencies and others this week, frightening the state's Latino community. A letter accompanying the list demanded that those on it be deported immediately.
The list also contains highly detailed personal information such as Social Security numbers, birth dates, workplaces, addresses and phone numbers. Names of children are included, along with due dates of pregnant women on the list.
Associated Press via The LA Times. Link.
Tuesday, July 13, 2010
Do No Harm on Immigration Reform
By Greg Chen, Director of Advocacy, AILA Advocacy Department
Last week the Department of Justice filed a long-expected lawsuit challenging the newly enacted Arizona law SB 1070. AILA applauded DOJ’s suit both on its principal legal ground (that federal law preempts state law) and for the broader message it sends to the American public (that the federal government will not let stand a state law that sanctions racial profiling and the targeting of those with dark skin or who speak with an accent).
The DOJ lawsuit is a much needed check on states and localities that are likely to do more harm than good by legislating on immigration. Apparently the federal message is not being heard in many states including Utah, Oklahoma, South Carolina, and Florida where the 2011 legislative sessions will likely see Arizona copycats. Florida’s Republican candidates for governor are tripping over themselves to show their support for Arizona’s law. Recently, several Utah Republican state representatives even conducted a “fact-finding” trip to Arizona to build support for their forthcoming bill.
Defenders of the Arizona law often cite polls like a June survey done by the Washington Post and ABC showing that 58 percent expressed support for the Arizona law. What many fail to note is that similarly high numbers (57 percent in the same Post/ABC poll) support allowing illegal immigrants to stay in the country if they pay a fine and meet other citizenship requirements.
How do we reconcile these apparently contradictory viewpoints? The answer is simple: Americans are frustrated that the nation’s leaders have not solved the problems with our immigration system. In the absence of comprehensive immigration reform, people are willing to accept unsound, even extreme, measures. I bet Americans would poll very differently if asked whether the Arizona law is good policy.
“Do no harm” is the first principle governing doctors and health care professionals. Unfortunately, there is no Hippocratic Oath for lawmakers and we desperately need one. As we near the November elections, lawmakers and all Americans should fight the urge to use immigration as a sword to divide communities and scapegoat immigrants. Democrats and Republicans will be pointing fingers at each other, and the temptation will be there to blame someone else for the lack of a solution. As the temperatures heat up, we must remind ourselves that real immigration reform will only happen if leaders from both sides of the aisle contribute to a final bill.
Today, AILA released a new video and website (www.multivu.prnewswire.com/player/41787-comprehensive-immigration-reform/) as part of our Solutions Campaign. The video, a complement to our Policy Manual (www.aila.org/solutions), sets forth AILA’s basic components for smart immigration reform. This new multi-media tool was created to be shared – you can actually embed it on your website and into your blog! Scroll down to Take Action to learn more!
Rolling the boulder of immigration reform up Capitol Hill has never been an easy task but it must begin with sound ideas. Only then can we do good on immigration.
Stay tuned. Same Pulse Time. Same Pulse Channel.
DREAM Act Fact Sheet
Courtesy of American Immigration Council
Link.
Each year, approximately 65,000 undocumented students graduate from high school, many at the top of their classes, but cannot go to college, join the military, work, or otherwise pursue their dreams. They belong to the 1.5 generation—any (first generation) immigrants brought to the United States at a young age who were largely raised in this country and therefore share much in common with second generation Americans. These students are culturally American, growing up here and often having little attachment to their country of birth. They tend to be bicultural and fluent in English. Many don’t even know that they are undocumented immigrants until they apply for a driver’s license or college, and then learn they lack Social Security numbers and other necessary legal documents.
Link.
Emerging Trends with ICE I-9 Audits
By Paul L. Zulkie
Link.
The reemergence of I-9 audits and the assessment of civil penalties as an enforcement priority exposes a certain group of businesses to significant liability: those companies who do not knowingly hire undocumented workers but who have traditionally viewed I-9 compliance as an unnecessary nuisance and not one that they should take seriously.
Link.
Monday, July 12, 2010
China: Super Saturday Visa Program
The U.S. Embassy in Beijing, along with four U.S. consulates general across China, is opening on Saturdays over the next few weeks to accommodate thousands of Chinese travelers seeking visas to visit the United States.
Trade, commerce, people-to-people exchanges, and tourism between China and the United States have grown dramatically over the past couple years. In 2009, U.S. consulates in China issued more than 487,000 visas to Chinese travelers. Sixty-six percent of these visas were for business and tourism. Growth in 2010 has been even more dramatic. China’s 2010 visa load is up 28 percent over the same period last year.
Link.
MPI Report: Indian Immigrants Third-Largest Group in U.S.
By Aaron Terrazas and Cristina Batog
Migration Policy Institute
Link.
Migration Policy Institute
The United States is home to about 1.6 million Indian immigrants, making them the third-largest immigrant group in the United States after Mexican and Filipino immigrants. Between 2007 and 2008, the number of Indian immigrants surpassed the number of Chinese and Hong Kong-born immigrants for the first time since at least 1960.
Indian immigration to the United States, a fairly recent phenomenon, grew rapidly during the 1990s and 2000s. In addition, people with Indian ancestry have also immigrated to the United States from the Caribbean, East Africa, Canada, and the United Kingdom.
Indian immigrants are heavily concentrated in California and New Jersey (for more information on immigrants by state, please see the ACS/Census Data tool on the MPI Data Hub). Compared to other immigrant groups, the Indian foreign born are much better educated — nearly three-quarters of Indian-born adults have a bachelor's degree or higher. About one-quarter of Indian-born men in the labor force work in the information technology industry.
This spotlight focuses on Indian immigrants residing in the United States, examining the population's size, geographic distribution, and socioeconomic characteristics using data from the US Census Bureau's 2008 American Community Survey (ACS) and 2000 Decennial Census, and the Department of Homeland Security's Office of Immigration Statistics (OIS) for 2008 and 2009.
Link.
US Citizen's Wife Deported
The undocumented wife of this U.S. citizen was deported as a result of being pulled over for a minor traffic violation. Set in Queen Creek, Arizona, this story provides a window into the impact that new state laws like Arizona's SB 1070 will have on the lives of undocumented residents and citizens alike.
Even tough SB 1070 will become effective on July 29, some law enforcement agencies are already putting it into practice.
www.90daystophoenix.com
No Time for Lame Ducking on Immigration
by Angelo Paparelli, Nation of Immigrators
You can read the entire blog post here.
This time, however, the phantasmagoric politics of the city didn’t sway me, and the President’s speech fell flat. Words, though artfully phrased, can come too late, or be delivered with too little energy, to reach (let alone pass) the tipping point.
As I told the Orange County Register:
He said all the right things but I didn’t see the passion in the delivery I would have liked. . . . it was ultimately unsatisfying. It’s always puzzled me, frankly, because I had . . . naively assumed that the son of a Kenyan immigrant would care more, but I just don’t see the fire in the belly.
You can read the entire blog post here.
The Administration’s New Worksite Enforcement Initiatives
By Elise Fialkowski in Business Law Today
You can read her entire article here.
The Obama administration has announced new work site enforcement initiatives and goals that will likely increase the number of investigations as well as I-9 and H-1B audits. In many cases, these audits may be the preamble to criminal enforcement. The administration has pledged to aggressively investigate employers and pursue criminal enforcement wherever possible. While criminal enforcement against employers who hire unauthorized workers began under the Bush administration, recently criminal enforcement actions also have been brought in the H-1B context for egregious violations. The Obama administration has stated that, even more so than the prior administration, the focus will be on employer compliance with immigration rules.
You can read her entire article here.
Friday, July 9, 2010
New Business Versus Regional Center for an EB-5
New Business Versus Regional Center for an EB-5
by Christy Wallace, Co-Founder and Partner, Ryvin Wallace Group
The following comments are a very cursory analysis of the difference in using a new business versus a Regional Center to ride the EB-5 to the green card finish line. Notably, an EB-5 goes through two stages of approval and none of the substantive qualifications to obtain initial EB-5 approval, nor evidence needed to remove the 2-year temporary conditions on an EB-5 are laid out in this article. But the author does provide an opinion on which method is better for which investor as well as some reasoning and cautions.
New businesses have many risks inherent in the immigration approval process. On top of that, new businesses have pure numbers working against them which is that a large percentage of new businesses fail within the first few years. We never recommend using a new business, owned NOT by a Regional Center, as the EB-5 model. If a person has an existing business which meet the qualifications for EB-5 status and has business indicators showing it will continue to meet EB-5 requirements two years after initial green card approval, only then should he file a non-Regional Center application. To clarify further, this person typically is an individual already working pursuant to E-2 Treaty Investor status. He or she owns a decent business and wishes to upgrade visa status by filing an EB-5 petition based on BOTH existing or prospective business success of the entity in which he is invested. This person may file for EB-5 status using their own company.
The advice given by practicing business immigration attorneys is that if one has money to put at risk, put it into a Regional Center, and not any Regional Center either.
Note that Regional Centers can contain multiple investments under their umbrella name, so an investor wants to be certain that he or she is signing up for an investment that (since 12/09 is permitted) has been pre-cleared by US CIS as a vehicle determined to be sound on its immigration credentials, which inherently include financials viewed as viable/approvable financials from the US CIS's point of view. An investor must still be forewarned that US CIS can make a determination of the soundness of a Regional Center (a pre-clearance) for such Regional Center to essentially "guarantee" EB-5 approvability for any GENERIC investor. Yet, this does not predicting approval for any individual in particular who comes with his own set of background issues. Also, such pre-clearance does not guarantee that the investment will stand up under its own business model over time nor up against economic forces that are out of the control of the Regional Center.
At a minimum, one should obtain advice from three distinct and independent sources when applying for a visa based on investment in a Regional Center: (1) an immigration attorney who is NOT affiliated with the Regional Center to make sure that all immigration venues for the family, immediate and extended, are explored,(2) a tax attorney who has global tax experience and preferably affiliates overseas to obtain first-hand information about source of money problems and restrictions in other countries and (3) a valuations expert who can draw on knowledge of the local market as well as the nature of the investment vehicle.
Read more about RWG's checkpoint visa services for wealthy individuals.
by Christy Wallace, Co-Founder and Partner, Ryvin Wallace Group
The following comments are a very cursory analysis of the difference in using a new business versus a Regional Center to ride the EB-5 to the green card finish line. Notably, an EB-5 goes through two stages of approval and none of the substantive qualifications to obtain initial EB-5 approval, nor evidence needed to remove the 2-year temporary conditions on an EB-5 are laid out in this article. But the author does provide an opinion on which method is better for which investor as well as some reasoning and cautions.
New businesses have many risks inherent in the immigration approval process. On top of that, new businesses have pure numbers working against them which is that a large percentage of new businesses fail within the first few years. We never recommend using a new business, owned NOT by a Regional Center, as the EB-5 model. If a person has an existing business which meet the qualifications for EB-5 status and has business indicators showing it will continue to meet EB-5 requirements two years after initial green card approval, only then should he file a non-Regional Center application. To clarify further, this person typically is an individual already working pursuant to E-2 Treaty Investor status. He or she owns a decent business and wishes to upgrade visa status by filing an EB-5 petition based on BOTH existing or prospective business success of the entity in which he is invested. This person may file for EB-5 status using their own company.
The advice given by practicing business immigration attorneys is that if one has money to put at risk, put it into a Regional Center, and not any Regional Center either.
Note that Regional Centers can contain multiple investments under their umbrella name, so an investor wants to be certain that he or she is signing up for an investment that (since 12/09 is permitted) has been pre-cleared by US CIS as a vehicle determined to be sound on its immigration credentials, which inherently include financials viewed as viable/approvable financials from the US CIS's point of view. An investor must still be forewarned that US CIS can make a determination of the soundness of a Regional Center (a pre-clearance) for such Regional Center to essentially "guarantee" EB-5 approvability for any GENERIC investor. Yet, this does not predicting approval for any individual in particular who comes with his own set of background issues. Also, such pre-clearance does not guarantee that the investment will stand up under its own business model over time nor up against economic forces that are out of the control of the Regional Center.
At a minimum, one should obtain advice from three distinct and independent sources when applying for a visa based on investment in a Regional Center: (1) an immigration attorney who is NOT affiliated with the Regional Center to make sure that all immigration venues for the family, immediate and extended, are explored,(2) a tax attorney who has global tax experience and preferably affiliates overseas to obtain first-hand information about source of money problems and restrictions in other countries and (3) a valuations expert who can draw on knowledge of the local market as well as the nature of the investment vehicle.
Read more about RWG's checkpoint visa services for wealthy individuals.
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