Posts tagged: immigration reform

President Obama Announces Immigration Reform

 

We are pleased to announce that President Obama unveiled a long-awaiting plan to reform the immigration system on November 20, 2014.  His executive action brings immediate relief to as many as 4.4 million undocumented foreign nationals living in the US through a few key programs:

 

Deferred Action for Childhood Arrivals (DACA):  The DACA program allows people who came to the US before the age of 16 and meet certain qualifications to remain in the United States without fear of deportation and receive work authorization.  Under President Obama’s executive order, the expanded DACA program removes the upper age limit for qualified applicants and extends the work authorization to 3 years.  The USCIS has announced that it will begin to accept work permit applications for this new category of DACA applicants in 90 days.

 

Deferred Action for Parents (DAP):  This new program will allow parents with US citizen or Lawful Permanent Resident children to remain united with their families. These parents must have been in the US since January 1, 2010, pass a criminal background check, and pay back taxes in order to qualify.  The USCIS expects to start accepting applications for work permits to qualified DAP applicants in 180 days.

 

Provisional WaiversThe executive order expands the provisional waiver program to allow spouses of lawful permanent residents and sons or daughters of both US citizens and lawful permanent residents to apply for waivers.  These waivers are required when the foreign national is eligible for a green card, but have been in the United States unlawfully.  Under this program, the applicant can apply for the waiver in the United States, then once the waiver is approved, leave the United States to obtain an immigrant visa at a US embassy abroad, thereby avoiding months or even years of separation from family members while awaiting waiver processing abroad.

 

President Obama’s executive action also has a significant and positive impact for U.S. businesses and highly skilled professional workers by announcing several reforms to employment-based visas.  The agencies implementing these programs will announce the details over the coming months, but below are the broad outlines of these changes:

 

Benefits for Employees With Approved Immigrant Visas Awaiting a Priority Date:  Under the current system, an employee with an approved immigrant visa must wait for their priority date to become current before being eligible to apply for a green card.  Under this initiative, 410,000 employees awaiting green card visa numbers could apply for certain benefits such as Employment Authorization Documents (EAD) and Advance Parole (travel) documents.   US Citizenship and Immigration Service (USCIS) must write implementing regulations for this initiative; thus these changes will not go into effect for several months.

 

Revamp the Allocation of Immigrant Visas:  Currently the Department of State uses a complicated system to determine how to allocate immigrant visas that allow beneficiaries to apply for green cards.  Under President Obama’s executive action, the USCIS will work with the Department of State to simplify the existing system and ensure all immigrant visas are issued each year.  This could result in the recapturing of thousands of unused visa numbers.

 

Worker Portability Under AC-21: Under current law, an employment-based adjustment of status applicant can change jobs after the application has been pending for 180 days, but only if the new position is in a “same or similar” occupational classification as the position through which s/he obtained the immigrant visa.  The USCIS will issue a policy memo to clarify the meaning of “same or similar,” thereby allowing workers for example to accept promotions to a supervisory level or accept related jobs in their field without fear that their underlying approved immigrant visas will no longer be valid.

 

Work Authorization for H-1B spouses:  USCIS will publish a final rule allowing the H-4 spouses certain of H-1B workers to apply for employment authorization.  The H-1B holder must 1) have an approved immigrant visa petition or 2) have a PERM labor certification pending for at least one year.  This regulation is expected to be published in the next several months.

 

L-1B Specialized Knowledge: The L-1B intracompany transfer program allows the transfer of employees from a foreign entity to the US who have “specialized knowledge” of the company’s products or processes.  The USCIS will issue a policy memo to provide clear guidance on the meaning of “specialized knowledge,” which will bring about more consistency in adjudications, a higher approval rate, thus making the L-1B visa status more accessible to qualified employees.

 

Optional Practical Training (OPT) Work Authorization: Currently, foreign students in F-1 student status are eligible for 12 months of OPT work authorization.  If they are students in science, technology, engineering, and mathematics (STEM) fields, they can apply for an additional 17 months of OPT.  Under President Obama’s new initiative, USCIS and Immigration and Customs Enforcement (ICE) will develop regulations to increase the length of OPT time and expand the type of degree programs eligible for this extended OPT work authorization period.  These changes are expected in the next several months.

 

National Interest Waivers and Parole for Inventors, Researchers, Founders:  The USCIS will issue guidance to clarify the standard by which to grant national interest waivers to foreign inventors, researchers, and founders of start-ups. USCIS will also initiate a program granting “parole” to inventors, researchers, and founders at an early stage in their careers or positions who do not yet qualify for a national interest waiver, but who have either been awarded US financing or hold the promise of innovation.  This “parole” will allow these individuals to enter the US temporarily to pursue their activity.

 

Labor Certifications: The Department of Labor will review the existing PERM program and initiate changes to modernize the system so that it aligns with the current recruitment practices for most professional occupations.  The exact changes to the PERM system have not been announced yet.  Further guidance is anticipated shortly.

 

Although Congress has yet to act on immigration reform, we applaud President Obama for taking a step to fix our broken immigration system.  There will be further discourse on these programs as Congressional leaders have vowed to block their implementation, but we are hopeful that millions of workers and families will benefit from this key policy announcement.  We look forward to keeping you updated over the coming weeks and months as the details are unveiled.

 

If you feel that you may benefit from any part of President Obama’s executive action, please contact the Law Office of Melissa Harms at 415.945.9600 extension 2 or via email at consultations@harms-law.com to schedule a consultation.

Department of Justice Challenges Alabama Immigration Law

The Department of Justice challenged the state of Alabama’s recently passed immigration law, H.B. 56, in federal court this week stating that the law conflicts with federal immigration law and undermines the federal government’s immigration enforcement priorities and objectives.  Alabama’s law is designed to affect virtually every aspect of an unauthorized immigrant’s daily life, from employment to housing to transportation to entering into and enforcing contracts to going to school. H.B. 56  criminalizes mere unlawful presence and, like Arizona’s law, expands the opportunities for Alabama police to push aliens toward incarceration for various new immigration crimes by enforcing an immigration status verification system. The federal government’s suit is consistent with the department’s position in United States v. Arizona, in which the department last year successfully obtained a preliminary injunction against Arizona’s S.B. 1070.  The government’s brief said that the mandates that H.B. 56 imposes on Alabama law enforcement may also result in the harassment and detention of foreign visitors, legal immigrants and even U.S. citizens who may not be able to readily prove their lawful status.  The government further argues that the Alabama law would impose  burdens on children by demanding that students prove their lawful presence, which could discourage parents from enrolling their children in school.

US Losing Its Best and Brightest Due to Unworkable Immigration Scheme

The recent USA Today article, More of the World’s Talented Workers Opt to Leave USA,  describes how the US is losing its best and brightest due to these foreign national’s opportunities at home, but also immigration delays.    The CEO of TiE Global, a worldwide network of professionals who promote entrepreneurship, explains, “If the country is going to maintain the kind of economic well-being that we’ve enjoyed for many years, that requires having these incredibly gifted individuals who have been educated and trained by us.”

 On an everyday basis, I find my corporate clients exasperated by long delays in visa processing, unfounded requests for evidence on pending applications, and general frustration in the delay and amount of time and money spent on immigration petitions.  One high technology client has chosen to relocate research and development activities abroad so it can be assured of choosing the scientists and researchers it needs without the headaches of considering immigration implications with each hiring decision.

 Other clients tell me that they will no longer sponsor foreign nationals for work visas due to the headaches involved.  This seems to be the answer that many who would have the US close its borders are seeking.  However, within a short while, each and every one of these clients has changed this position as they cannot locate a US worker to fill a position which requires higher education in the science, technology, engineering or math fields. 

 I am in support of creating jobs for US workers, but what many American’s don’t realize is that these innovators are creating jobs.  They are developing green energy solutions, creating smaller and smaller electronic devices with more power, and making our cars more fuel efficient.  Without these workers, our US COMPANIES would fail.  If we want to work on creating more jobs for US workers, let’s turn our attention towards our education system and training our students to compete on a global level rather than turning to the protectionism that will only hurt us in the long run.

Obama’s Heckler: Let’s Understand the Big Picture

The immigration debate is emotionally charged.  This was certainly evidenced when South Carolina Representative Joe Wilson accused President Obama of lying when he stated that his health care reform bill did not apply to illegal immigrants.  

  Obama’s health care plan is certainly sweeping and controversial in its own right, but Rep Wilson’s outburst brings up the point that immigration reform also must be addressed.  By simply excluding immigrants from his reform proposals, Obama is looking at half the problem.  Policies that restrict immigrants’ access to health care such as preventive services lead to the inefficient use of emergency room and other costly services.  The economics behind immigration and health care are addressed in the report by the Immigration Policy Institute, entitled, Unequal Accecss: Immigrants and US Health Care.

Dr. Sarita Mohanty, a professor of medicine from the University of Southern California , the author of the report, explains that although immigrants comprised 10 percent of the US population in 1998, they accounted for only 8 percent of US health care costs.  Further, she documents that, “despite the fact that all immigrants are eligible for emergency medical services, they had lower expenditures for emergency room visits, as well as doctor’s office visits, outpatient hospital visits, inpatient hospital visits, and prescription drugs.”

 Although this report focuses on immigrants and health care, it captures the essence of the immigration debate by underscoring the importance of immigrants to our economy and to our nation.  Even pushing aside the fact that we are a nation of immigrants, as besides the Native American’s our ancestors all hail from other nations, the hard facts speak to the importance of immigration.  Not only to illegal immigrants perform jobs that native born Americans cannot and will not do, they also contribute to paying taxes and paying into the Social Security system for benefits they will never collect.  In 2001, the Social Security Administration (SSA) found that undocumented immigrants pay a major portion of taxes into the Social Security system under names or social security numbers that don’t match SSA records and which payees can never draw upon.  As of July 2003, these payments totaled $421 billion.

 It’s time to give undocumented immigrants an earned path to legalization so they can obtain health insurance and continue to contribute to our country, rather than focusing the health care debate on a broken immigration system.

Immigration Advocates Mourn the Loss of Senator Edward M. Kennedy

Edward M. Kennedy was a stalwart champion of immigration law.  At the defeat of his immigration reform bill which failed to pass in 2007, he stated, “immigration is an opportunity to be true to our ideals as a nation.  Our Declaration of Independence announces that all of us are created equal.  Today, we failed to live up to that declaration for millions of men and women who live, work, and worship beside us.  But our ideals are too strong to be held back for long.”

The Late Senator Kennedy with President Obama

The Late Senator Kennedy with President Obama

 His record on immigration related measures in the Senate is unparalleled:

 1965

The first major bill that Senator Kennedy managed on the Senate floor was the Immigration Act of 1965. It was enacted and stood as a major turning point in immigration and civil rights policy because it eliminated discriminatory immigration quotas which favored European immigration, but restricted immigration from other parts of the world. The 1965 Act gave priority to immigrants based on their skills and family relationships.

 1990

Senator Kennedy was also sponsor of the Immigration Act of 1990 to expand immigration quotas to reunite families in the U.S. and to meet economic needs, which was signed into law.

2005

 Senator Kennedy also begins a four-year effort to achieve comprehensive immigration reform, including a legalization program for immigrants who have been working in the United States, a reduction of the backlog of petitions to unify immigrant families, a temporary worker program, and strict security to protect the nation’s borders.

2007

Following an immigration raid on a factory in Massachusetts, Senator Kennedy worked with the Department of Homeland Security to develop guidelines on humanitarian screening for workers arrested in such raids.

Unfortunately, Senator Kennedy did not live to see his dream of immigration reform become a reality.  Click here to read the post by the American Immigration Lawyers Association which explains the loss the immigration community feels without this champion of immigrant rights serving his country.  The country needs more immigration advocates who are willing to take a stand and speak out for immigrant rights and champion immigration reform, an issue which is politically charged, yet needs to be addressed.

The Visitor

I recently came across the 2007 movie, The Visitor.  This movie is a compelling story about an American college professor and a young immigrant couple who grapple with the treatment of immigrants and the legal process in post-9/11 America. A critically acclaimed film whose leading actor was nominated for an Academy Award, The Visitor puts a remarkably human face on the stark realities of our immigration system. Without having to say so, the film makes obvious why the current system needs immediate and sweeping reform.