Legal Briefing

Legislative update and recent developments in US immigration

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Human resources | 01 October 2012

‘Let America be America again
, Let it be the dream it used to be
, Let it be the pioneer on the plain, Seeking a home where he himself is free’ [Excerpt from Let America Be America Again, a poem by Langston Hughes]

LEGISLATIVE UPDATE

Election years generally are not known for significant immigration legislation developments. President Barack Obama is hoping Hispanic voters will overlook his record on immigration and vote for him again. They gave him a majority of their votes in 2008 in key states such as Florida, Colorado, and Nevada. He had promised to make immigration reform a top priority in his first year and to legalise most of the unauthorised immigrants in the US (most of the estimated 11.5 million undocumented immigrants are from Latin America). However, the economic crisis, the stimulus plan and the healthcare overhaul took precedence over immigration.

While the Republicans have called for the toughest response – from more military troops to electrified fences along the border with Mexico – the Obama administration has set records for deporting illegal immigrants. The Department of Homeland Security has championed a programme called Secure Communities that requires immigration checks on anyone picked up by police and booked on suspicion of a crime. While under this policy a higher percentage of criminals are being deported, the administration has also set a target of removing about 400,000 illegal immigrants each year, and about half of those have no criminal history at all.

THE DEFERRED DREAM

The Development, Relief, and Education for Alien Minors Act (the DREAM Act) was first introduced to Congress in August 2001. The Bill proposed to grant conditional permanent residency to undocumented individuals who arrived in the US as minors, graduated from US high schools or served in the US military, lived continuously in the US for at least five years before the Bill’s enactment, and were of good moral character. Once an individual obtained conditional residency under the Act and satisfied certain other requirements, 
they would be eligible for permanent residency. Since its introduction, the Bill 
has been debated by the House and Senate, with detractors claiming the Act would encourage illegal immigration and invite fraud, and supporters arguing the Act would result in myriad social and economic benefits. As efforts at compromise have repeatedly stalled, passage of the Bill’s comprehensive reform provisions has grown increasingly unlikely.

THE FREE?

‘Who said the free? Not me?

Surely not me? The millions on relief today?

The millions shot down when we strike?

The millions who have nothing for our pay?

For all the dreams we’ve dreamed

And all the songs we’ve sung

And all the hopes we’ve held

And all the flags we’ve hung,

The millions who have nothing for our pay –

Except the dream that’s almost dead today.’

[Excerpt from Let America Be America Again by Langston Hughes]

THE DEFERRED ACTION FOR 
CHILDHOOD ARRIVALS (DACA)

The Latin American vote has incredible potential to shape the political landscape and in the hope that the immigration issue could still rule in his favour, in June 2012, President Obama issued an executive order directing the Department of Homeland Security to cease initiation of deportation proceedings against illegal immigrants no older than 30 years old who came to the US before age 16; have lived in the US for at least five years; have clean criminal backgrounds; and either are in school, are high school graduates, or are military veterans in good standing. The executive order directed qualifying individuals to apply to Homeland Security for ‘deferred action’ status. Under deferred action status, for a renewable period of two years, deportation proceedings are deferred, and the individual may apply for work authorisation. Secretary of homeland security Janet Napolitano issued a directive on 15 June 2012, to the US Citizenship and Immigration Services (USCIS) concerning enforcement of the President’s executive order.

In order to apply for deferred action status, individuals who have never been placed in removal proceedings will submit their applications to USCIS, and individuals with a pending removal case will submit their applications to Immigration Customs and Enforcement (ICE). USCIS began accepting requests for consideration of deferred action on 15 August 2012. An individual may apply for deferred action status if the individual:

  • was under the age of 31 as of 15 June 2012;
  • came to the US before reaching their sixteenth birthday;
  • has continuously resided in the US since 15 June 2007, up to the present time;
  • was physically present in the US on 
15 June 2012, and at the time of making the request for consideration of deferred action with USCIS;
  • entered without inspection before 
15 June 2012, or the individual’s 
lawful immigration status expired 
as of 15 June 2012;
  • is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the coast guard or armed forces of the US; and
  • has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Immediate relatives of individuals with deferred action status will not be eligible for deferred action status unless they also meet the eligibility criteria. Individuals applying for deferred action but who have a criminal conviction or whose application contains fraud will be referred to ICE.

The Wall Street Journal reports that only 40,000 applications were submitted in the first three weeks of the DACA program. The principal reasons for the shortfall according to The Wall Street Journal article are 1) disclosures required and 2) who will be President in January 2013.

As to the disclosures of information required, Mr Obama, and the federal government, has lost the trust of the immigrant community by deporting a record hundreds of thousands of undocumented aliens, half of whom had no criminal background whatsoever. Unless ICE is reined in, and deportations suspended, at least for non-criminal aliens, community trust will not be easily regained.

‘O, let my land be a land where Liberty

Is crowned with no false patriotic wreath,

But opportunity is real, and life is free,

Equality is in the air we breathe.

(There’s never been equality for me,

Nor freedom in this “homeland of the free.”)

Say, who are you that mumbles in the dark? 


And who are you that draws your veil across the stars?

Langston Hughes, Let America Be America Again.

EB-5 INVESTOR PROGRAM

On 2 August 2012, the Senate agreed to a three-year extension of the EB-5 investor visa pilot program, which was scheduled to finish at the end of September this year. The EB-5 investor pilot program brings millions of dollars to the US. Each $500,000 investment by an immigrant investor through the EB-5 program also creates jobs for ten US citizens. The profile of EB-5 investors is diverse and includes individuals such as high-tech entrepreneurs, doctors, dentists and retired individuals

The EB-5 visa program enables foreign entrepreneurs who make an investment in a US business to become lawful permanent residents of the US. EB-5 visa holders can permanently live and work in the US with their spouse and unmarried children under the age of 21. The EB-5 visa program, which is also designated as the Employment-Based Immigration: Fifth Preference immigrant investor program, is operated by the USCIS. The program was established by Congress 
in 1990 to facilitate increased investment in the US economy. Several reforms have been made to the program over the years due to increased demand for EB-5 visas. Such reforms included the establishment of EB-5 regional centres through a pilot program.

ELIMINATION OF I-94 CARD FOR 
BUSINESS TRAVELLERS TO THE US

US Customs and Border Protection (CBP) has announced plans to streamline admissions to the US by eliminating the paper I-94 card issued to non-immigrant foreign nationals upon entry to the US. Historically, the I-94 card has been the primary document to show a foreign national is maintaining valid status in the US. The I-94 card is also used by employers when completing Form I-9, departments of motor vehicles when issuing a driver’s license, and the Social Security Administration when issuing social security numbers. The elimination of the paper I-94 will have wide impact.

CBP is eliminating the paper I-94 card for two reasons:

  • CBP already has access to the information on the card through information provided by the foreign national when submitting an application for a non-immigrant visa at a consulate abroad and through information submitted through the Advance Passenger Information System (APIS).
  • CBP expects to save significant time and money by eliminating the form.

Instead of issuing an I-94 card, CBP will issue an admission stamp in the passport of arriving non-immigrants. The admission stamp will include a handwritten notation showing the status and validity period. This is similar to the process used for visitors under the visa waiver program (I-94 cards are no longer issued for travelers who enter under this program). The data will be stored electronically, but CBP indicates it could take as long as 45 days for the information to be entered into the I-94 database. This could be problematic for individuals who need to provide evidence of their status shortly after entry to the US.

Initial plans called for a gradual rollout, starting with a pilot program at smaller airports. Recent plans indicate CBP is planning to eliminate the form in the near term at all air and seaports; however, the agency has not yet announced an effective date.

The elimination of the paper I-94 card will impact a variety of federal and state programs, including:

  • Form I-9, Employment Eligibility Verification: the current Form I-9 allows employers to accept a foreign passport and Form I-94/I-94A as evidence of valid employment authorisation in the US.
  • Issuance of social security numbers: the Social Security Administration requests passports and I-94 cards to determine if a foreign national is eligible for a social security number.
  • USCIS forms: Most forms used in applying for or extending non-immigrant status request the I-94 number as evidence the applicant or beneficiary has maintained lawful status. Approval notices issued by USCIS include an I-94 card.
  • Issuance of a driver’s license by state motor vehicle departments: many states require proof of valid immigration status before issuing or renewing a driver’s license. Production of a valid I-94 card is typically required for status verification. The driver’s license expiration date is also tied to the expiration date of the I-94 card.
  • Automatic visa revalidation program: Immigration regulations currently allow individuals to re-enter the US without a valid visa in limited circumstances. One requirement of this program is that the person has a valid I-94 card.

These are just a few areas that will be impacted by the elimination of Form I-94. It is unclear when/if other agencies will revise their regulations, forms or processes to accommodate this change in CBP procedures.

ENTER THE ‘GREEN CARD’ LOTTERY

Online entry registration for the diversity immigrant visa program 2014, also known as the green card lottery, will begin 
2 October 2012 and will be open through 3 November 2012. The congressionally mandated program makes available 55,000 diversity visas (DV) annually for applicants from countries with low rates of immigration who meet strict eligibility requirements. The winners are selected randomly from all entries received during the registration period. The DV program can be an excellent way for foreign nationals who otherwise do not have a viable path to permanent residence through family or employment to obtain permanent residence.

Applications must be submitted electronically by twelve noon EST on Saturday 3 November 2012 at 
http://travel.state.gov/. There is no fee.

The Department of State does not notify successful DV applicants by letter or e-mail. Entrants can check the status of their entries by returning to the website at http://www.dvlottery.state.gov to find out if their entry was or was not selected.

Selection in the lottery does not guarantee the applicant a green card; applicants must still meet all standards for admissibility and be able to process their green cards within the allotted time. Immediate family members of successful lottery applicants are eligible for green cards as well, provided they meet the same admissibility standards. Individuals who are selected and eligible for one of the 55,000 visa numbers may either secure an immigrant visa at a US Embassy or Consulate or, if they are in the US and qualified to do so, adjust status by filing an application and supporting documentation with USCIS.

Lottery visas are apportioned to foreign nationals from the following six geographic regions: Africa; Asia; Europe; North America; Oceania; and South America‚ Central America, and the Caribbean. To qualify‚ a foreign national must claim nativity or country of birth in an eligible country and meet certain education or work experience requirements. The purpose of the program is to diversify and encourage immigration from countries that send lower numbers of immigrants to the US.

To fulfill the education/work experience provisions‚ an applicant must have either a high school education or its equivalent‚ or two years of work experience in the last five years in a job that requires at least two years of training or experience.

H-1B CAP REACHED FOR FISCAL YEAR 2013

It is widely acknowledged that highly educated H-1B foreign professionals, many of whom were educated in the US, bolster the US workforce and propel the economy forward. These professionals fill shortages and provide US companies with unique skill sets and knowledge in specific areas. But the annual cap on H-1B visas means that employers will be unable to access these highly educated professionals until the 
start of fiscal year 2014, which commences on 1 October 2013.

On 11 June 2012 USCIS announced that the H-1B cap had been reached for fiscal year 2013. Congress has established an annual H-1B cap of 65,000 (the cap reverted to 65,000 in 2003, down from 195,000 in the previous years). The 65,000 cap is reduced to 58,200 as 6,800 visa numbers are set aside under the US-Chile and US-Singapore free trade agreements.

On 8 December 2004, President Bush signed the Omnibus Appropriations Act for fiscal year 2005, including the H-1B Visa Reform Act of 2004, which added 20,000 visas to the H-1B annual quota for foreign nationals with qualifying advanced degrees from US universities. On 7 June 2012, USCIS announced that the H-1B advanced degree cap had been reached.

H-1B cases not subject to the fiscal year 2013 H-1B cap will continue to be processed. USCIS counts against the cap only those petitions regarded as ‘new’ employment. New employment generally refers to H-1B petitions that are filed for foreign nationals who are not currently in the US with H-1B status. Exempt from the cap are the following types of cases: H-1B extensions (for an existing or new employer); amended petitions; petitions filed in concurrent employment scenarios; and petitions for new employment at an exempt organisation, such as an institution of higher education or a related or affiliated non-profit entity, non-profit research organisation, and governmental research organisations, except where an H-1B employee moves from an exempt 
non-profit organisation to a for-profit company. Singaporean and Chilean professionals continue to be eligible for H-1B visas under the free trade agreements.

As of 1 April 2013, USCIS will accept advance filings of H-1B cases for employment in fiscal year 2014. H-1B numbers for fiscal year 2014 are expected to be used rapidly and employers should, therefore, file as soon as possible to ensure new employees will be able to work during the next fiscal year.

The H-1B is the most popular work visa and is the most heavily regulated non-immigrant classification. It is utilised by US businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialised field, such as scientists, engineers, or computer programmers.

CONCLUSION

The US is a nation of immigrants and they have fuelled the US economy for generations. During the economic expansion of the 1990s, half of all new workers were foreign born. Today, US immigration laws do not reflect the demographic and economic reality of the 21st century. The failure to deal with the immigration system in a comprehensive manner has resulted in a system that is unmanageable, with too few legal channels to enter the US and an increasing foreign population living outside of the law. The current immigration law addresses neither documented US labour shortages nor marketplace dynamics. The H-1B cap hinders US companies’ competitiveness and benefits competitors abroad. US immigration laws have not been substantially altered or updated in more than a decade and the need for change is becoming increasingly urgent.

Growing prosperity in developing countries, such as China, India, and Brazil has produced a surge of talented, prospective immigrants to the US. America’s universities last year attracted a record 723,000 foreign students, according to data from the Institute of International Education. More than 250,000 came from China and India. Yet rigid US quotas on green cards for skilled immigrants mean that any person who wishes to stay in the country after graduation is likely to face long waits to gain permanent residence.

Robert Guest, business editor of The Economist and author of the book Borderless Economics, warns that, while the US has benefited enormously from immigration:

‘America’s immigration system is a disgrace. In the long term, it poses a serious threat to the US’s status as a top nation.’

The author hopes that the US government will reform its immigration system, and states:

‘America’s unique ability to attract and absorb migrants lets it tap into the energy of all the world’s diaspora networks. So despite its current woes, if the US keeps its borders open, it will remain the world’s most powerful nation indefinitely’.

In these uncertain economic times, instead of focusing on border security and on deportation, let us hope the newly elected President will embrace the spirit of the founding fathers by enacting meaningful and comprehensive immigration reform in the next administration.

‘My dream is of a place and a time where America will once again be seen as the last best hope of earth’ – Abraham Lincoln.