Labor Immigration Law

In a report released yesterday, the non-partisan Pew Hispanic Center provides a revised estimate of the unauthorized immigrants in the U.S.  According to the report, the annual inflow of unauthorized immigrants to the United States was nearly two-thirds smaller in the March 2007 to March 2009 period than it had been from March 2000 to March 2005.

This significant decline has contributed to an overall reduction of 8% in the number of unauthorized immigrants currently living in the U.S.-to 11.1 million in March 2009 from a peak of 12 million in March 2007, according to the report.

The data is obtained mainly through U.S. Census data.  It is interesting that the most significant decrease in the population of unauthorized immigrants has been among those who come from Latin American countries other than Mexico.  From 2007 to 2009, the size of this group from the Caribbean, Central America and South America decreased 22%.  The numbers of unauthorized immigrants from Mexico  (which accounts for about 60% of all unauthorized immigrants) peaked in 2007 at 7 million and has since remained mainly unchanged.  The study notes that the inflow of unauthorized immigrants from Mexico has decreased, which seems to suggest that unauthorized immigrants from Mexico have settled in the U.S. and are not going back even in an economic crisis.

The recent decrease in the unauthorized population has been especially notable along the nation’s Southeast coast and in its Mountain West, according to the new estimates. The number of unauthorized immigrants in Florida, Nevada and Virginia shrank from 2008 to 2009.  Other states may have had declines, but they fell within the margin of error for these estimates.  These states have been severely affected by the housing crisis which resulted in a significant decrease in construction jobs.

The report estimates that over the past two years, the annual inflow of unauthorized immigrants is 300,000 per year, down from about 550,000 per year between 2005 and 2007.

We wish to remind our readers and clients that a new fee goes into effect starting on September 8, 2010 for Electronic System for Travel Authorization (ESTA) registration.  ESTA is a required pre-travel registration for Visa Waiver Program (VWP) travelers to the U.S.

About the Fee

The fee will be in the amount of $14.00 and will be required to be paid via credit card (MasterCard, Visa, American Express and Discover) at the time of completion of the ESTA pre-travel registration.  An ESTA registration is valid for up to two years so the fee will not need to be paid for subsequent VWP travels within this two-year period before a new ESTA registration (and fee) will be required.

The fee was mandated by the Travel Promotion Act of 2009 which mandates that the ESTA funds will be partnered with private funds for the purpose of U.S. travel promotion.

Fee Becomes Effective September 8, 2010

All ESTA registrations submitted on or after September 8, 2010 will require the payment of the new fee.   VWP travelers who plan to visit the U.S. in the near future may want to submit their ESTA registration in advance of this date.

The mandatory nature of the fee and the fact that it can only be paid via certain credit cards through the ESTA website has caused some concerns.  Although many Visa Waiver Countries travelers have access to credit cards at their disposal, the credit card payment requirement may deter or inconvenience some VWP travelers during their ESTA registration process.   As of now, there are no other alternative methods for paying the fee.

Visa Waiver Countries

As a reminder, the Visa Waiver Countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

The Department of State has announced that effective immediately, non-immigrant visa applicants may book interview appointments at any U.S. Consular Section in China, regardless of the province or city where they live.   Under the old policy, appointments had to be made only at a specific consulate, based on province of residence.

Consular Sections are located at the U.S. Embassy in Beijing and U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang.  The purpose of the rule is, according to the State Department, to “increasing mutual understanding between the United States and China through people-to-people exchange.”   According to Department of State numbers, in 2009, almost 500,000 people received U.S. non-immigrants visas in China and the new policy should serve to increase this number by eliminating barriers to application.

DHS Secretary Napolitano announced earlier this week that as of late this summer, the paper Form I-94W (arrival/departure record) for authorized travelers from nations participating in the Visa Waiver Program (VWP) will be eliminated.  Instead, the arrival/departure information will be stored electronically.

After a successful 7-month trial conducted with VWP travelers from New Zealand on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the United States at all airports by the end of this summer.  CBP will activate automated processing for U.S. airports on a rolling basis over the next several months.

Applying for an ESTA VWP travel authorization became mandatory on January 12, 2009, for all nationals of VWP countries prior to boarding a carrier to travel by air or sea to the United States. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa, and allows DHS to determine whether a VWP traveler presents a threat long before the individual boards a U.S.-bound aircraft.  By eliminating the paper Form I-94W, travelers will be able to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States.

The political climate here in Washington, DC changes very quickly.  We wrote recently about some broad conceptual proposals for comprehensive immigration reform, followed by our reports of President Obama’s remarks that he does feel that the time is ripe for immigration reform.

However, some congressmen are pushing an immigration reform proposals forward.  A recent proposal for a bill, introduced by Senators Reid, Durbin, Schumer, Leahy, Feinstein, and Menendez aims to put more concrete plan out for discussion, despite what some may consider a poor timing for reform.  The Real Enforcement with Practical Answers for Immigration Reform (REPAIR) proposal sets the framework for a comprehensive immigration reform.  We hope to outline selected parts of the proposal.

Better Enforcement and Ending Illegal Employment

The REPAIR proposal calls for better immigration law enforcement, at the borders and inside the country, in addition to establishing a new biometric identification and employment verification system to prevent the employment of unauthorized workers.  New tamper-resistant Social Security cards will be issued which would contain photo and biometric information.  The proposal calls for sophisticated technology that will protect information about the cardholder and will not store any of the biometric data contained in the card on any government database. The proposal does not state where the data will be stored. The proposal will make it unlawful for anyone or any private or government entity to use the card for any other purpose than employment verification.

All employers will be required to verify a new hire’s employment eligibility status through an electronic system.  Failure to do so would carry penalties.  The system would, in effect, be a build-up of the currently-existing E-Verify employment eligibility verification system.

High-Skilled Immigrants Will See Substantial Benefit

Permanent Residency.  The proposal provides for an immediate green card to foreign students with an advanced degree from a U.S. institution of higher education in the field of science, technology, engineering or mathematics (STEM), and who have an offer of employment in the field related to their degree, from a U.S. employer.  The proposal would also eliminate per country employment caps which have resulted in substantial delays under the current system for nationals of many countries, but particularly for India and China.

H-1B Visas.  The proposal creates new requirements on H‐1B visas including: 1) revising how wages are determined; 2) requiring web posting of job openings; 3) lengthening U.S. worker displacement protection; 4) applying certain dependent employer rules to all H‐1B employers; 5) prohibiting “for H‐1B only” job ads; and 6) limiting the number of H‐1B and L‐1 employees that an employer of over 50 workers in the U.S. may hire. The proposal also authorizes the Department of Labor (DOL) to investigate application fraud and conduct H‐1B compliance audits.

L-1 Visas.  The proposal also creates new requirements on the L‐1 visa prohibiting the hiring of an L‐1 for more than one (1) year who will: serve in a role involving specialized knowledge and be located at a worksite other than that of the petitioning employer.  The proposal specifies L‐1 visa employer petition requirements for a new office; wage rates and working conditions; and employer penalties.

Family Immigration Proposals

The proposal will clear the family immigration backlog over an eight (8) year period.  After the eight year period, family caps will return to the current levels. Spouses and children of lawful permanent residents (LPR) will be classified as “immediate relatives”.   Per country caps in the family immigration system will be raised from 7 percent to 10 percent.  The proposal will also allow permanent partners of U.S. citizens and LPRs to obtain LPR status; provide protection for children and people with special humanitarian considerations; and address technical issues related to stepchildren and adoptive children.

Unauthorized Aliens Must Register and Wait For Permanent Residency

With respect to those ~11 million unauthorized aliens, the proposal has a two-phase approach.

Phase I.  All undocumented persons will be required to come forward and register their presence through a rigorous process that includes identity, criminal background and security screening, fingerprinting, and the payment of fees, civil penalties and taxes. Upon completing registration, they will be considered for eligibility for a new interim status: “Lawful Prospective Immigrant” (LPI). In addition to the above requirements, undocumented persons must remain in the country continuously from the date of enactment to be eligible for LPI status.  Spouses and minor children living abroad will be eligible for legalization once their relative receives LPI status. Those found ineligible in Phase I will be placed in removal proceedings. Those who fail to register will remain undocumented and be subject to arrest and deportation.

Those convicted of three or more misdemeanors or any felony punishable with a prison term of more than one year; those who engaged in persecution of others; those “inadmissible” pursuant to INA 212(a) for national security and criminal grounds; those in the country in an “authorized immigrant or nonimmigrant status”; and those who entered illegally after the bill’s introduction date will not be eligible for LPI status.

Phase II.  It will begin eight years after enactment when current family visa backlogs are cleared at which time LPIs will be permitted to petition for adjustment to Lawful Permanent Resident (LPR) status. Requirements for eligibility include demonstrating basic citizenship skills, English language skills, and continuous residence in the United States; submitting to additional background and security checks; payment of all taxes, fees and civil penalties; and registration for Selective Service. The proposal allows for some administration and judicial review of denials.

Conclusion

The REPAIR proposals set forth a very interesting framework for comprehensive immigration reform.  It remains to be seen how the initial proposal will be taken by both parties here on Capitol Hill during an election year and during a political climate some political experts describe as “difficult.”  Also, it is important to note that REPAIR is just a proposal for law — it is not an introduced bill and it may (and will most certainly) will undergo substantial changes as it makes its way through the political system here in Washington.

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Last week we discussed the recent Congressional Research Service (CRS) report on unauthorized aliens.    Today, we discuss the companion CRS report, analyzing the permanent residency admissions to the U.S.   Both reports are helpful in providing some current information on the state of the U.S. immigration system and on the conflicting priorities which are likely to be part of the new comprehensive immigration reform, if and when it happens.

CRS Report on Permanent Admissions

The U.S. permanent admission policy is driven by four major principles: the reunification of families (family-based), the admission of immigrants with needed skills (employment-based), the protection of refugees (asylum), and the diversity of admissions by country of origin (DV lottery).

The CRS report on permanent admissions seeks to analyze the legal permanent residents (LPRs or green card holders) population in the U.S.   By way of contrast to the CRS report on unauthorized aliens, statistics on the permanent resident population and recent admissions are readily available and accurate.

During FY2008, a total of 1.1 million aliens became LPRs in the United States. Of this total, 64.7% entered on the basis of family ties.  Other major categories in FY2008 were employment-based LPRs (including spouses and children) at 15.0%, and refugees/asylees adjusting to LPR status at 15.0%. Over 17% of all LPRs come from Mexico, which sent 189,989 LPRs in FY2008.

Adjustment of Status v. Consular Processing

Many LPRs are adjusting status from within the United States rather than receiving visas issued abroad by Consular Affairs before they arrive in the United States. In the past decade, the number of LPRs arriving from abroad has remained somewhat steady, hovering between a high of 421,405 in FY1996 and a low of 358,411 in FY2003. Adjustments to LPR status in the United States has fluctuated over the same period, from a low of 244,793 in FY1999 to a high of 819, 248 in FY2006.

Approximately 58% (or 640,568) of all LPRs admitted in 2008 adjusted their status in the U.S. as opposed to going through consular processing abroad.     Most (89.8%) of the employment-based immigrants adjusted to LPR status within the United States in FY2008. Many (51.4%) of the immediate relatives of U.S. citizens also did so that year. Only
25.0% of the other family-preference immigrants adjusted to LPR status within the United States in FY2008.

Country Breakdown

In FY2008, Mexico led all countries with 189,989 foreign nationals who became LPRs. The People Republic of China followed at a distant second with 80,271 LPRs. India followed with 63,352 LPRs. The Philippines came in fourth with 54,030 LPRs. Three of these top countries exceeded the per-country ceiling for preference immigrants because they benefitted from special exceptions to the per-country ceilings. Mexico did so as a result of the provision in INA that allows 75% of family second preference (i.e., spouses and children of LPRs) to exceed the per-country ceiling, while India and China exceeded the ceiling through the exception to the employment-based per-country limits.

The Congressional Research Service (“CRS”) has released two recent reports which seek to analyze the extent of undocumented aliens in the U.S. and on the permanent residency (“green card”) programs.  In a series of articles, we will comment on the CRS reports with this article focusing on the unauthorized aliens in the U.S..  Both reports are helpful in providing some current information on the state of the U.S. immigration system and on the conflicting priorities which are likely to be part of the new comprehensive immigration reform, if and when it happens.

CRS Report on Unauthorized Aliens

The CRS report on unauthorized aliens seeks to describe and analyze the population of foreign nationals who are not authorized to be in the U.S.  By definition, such statistics are difficult to obtain, yet, the report does a good job in trying to put a profile on the population of unauthorized aliens.

Numbers.  The number of unauthorized aliens is not clear – according to recent estimates by the Department of Homeland Security (DHS), approximately 10.8 million unauthorized aliens were living in the United States in January 2009.   Using different sources, the Pew Hispanic Center has estimated the March 2008 unauthorized resident population at about 11.9 million.

Date of Arrival.  Most of the unauthorized aliens currently in the U.S. (29%) came between 1995 and 1999.  28% came between 2000 and 2004.  Only 8% came to the U.S. between 2005 and 2008.

Country of Origin. Mexico has historically been the greatest source country for unauthorized migration to the United States. According to DHS, there were an estimated 6.7 million unauthorized aliens from Mexico residing in the United States in early 2009, representing 62% of the total unauthorized resident population at the time. DHS further estimates that there were 8.5 million unauthorized aliens living in the United States in 2009 from North America, which includes Mexico as well as Canada, the Caribbean, and Central America (79% of the total). According to the DHS analysis, South America accounted for 0.7 million unauthorized aliens in 2009, yielding a combined North America and South America total of 9.2 million (85% of the total unauthorized resident population). Asia accounted for an additional 1.0 million unauthorized aliens.

U.S. State of Residence.  California is home to more unauthorized aliens than any other state (24% according to DHS). DHS and the Pew Hispanic Center estimate that about one quarter of the U.S. unauthorized alien population in January 2009 and March 2008, respectively, was living in California.  DHS and the Pew Hispanic Center also identify the same next three top states of residence for unauthorized aliens (in order from highest to lowest unauthorized population: Texas – 16%, Florida – 7%, and New York – 5%).

We have written and reacted previously on developments related to immigration reform here in Washington, DC (March 12, 2010 and March 18, 2010).   Our articles developed a fair amount of comments, excitement and hope.  However, the uncertainty and the current political climate here in Washington may make comprehensive immigration reform a rollercoaster ride.

In comments from late yesterday, President Obama has said that “there may not be an appetite” to overhaul the nation’s immigration laws this year, even though he believes there is a pressing need to do so.  According to the Washington Post,  even though Mr. Obama considers immigration a top issue for his administration, he recognizes that it may not happen soon due to the  political climate in Washington.  According to the Washington Post,

“It’s a matter of political will,” Obama said [and] added, “This is a difficult issue. It generates a lot of emotions. . . . I need some help on the Republican side.”

Even though there has been increase in talk about immigration reform, especially after the recent passage of a strict anti-immigrant law in Arizona, Mr. Obama’s comments seem to put a cold shower on top of the recent talk and immigration reform proposals.    Despite Mr. Obama’s comments, many in Washington are still hopeful that a compromise and Republican help will arrive this year.  We will continue monitoring developments here in Washington relating to immigration proposals.

In an opinion piece, to be published tomorrow, Friday, March 19, 2010, at the Washington Post, Senators Charles Schumer (D-NY) and Lindsay Graham (R-SC) have unveiled their proposal for comprehensive immigration reform.   The plan, as outlined in the Washington Post piece, sets several four broad principles for immigration reform.

Biometric Social Security Cards to Prevent Illegal Employment

The plan would require all U.S. citizens and legal immigrants who want jobs to obtain a high-tech, fraud-proof Social Security card.  Each card’s unique biometric identifier would be stored only on the card; no government database would house everyone’s information. The cards would not contain any private information, medical information or tracking devices. The card would be a high-tech version of the Social Security card that citizens already have.

Prospective employers would be responsible for swiping the cards through a machine to confirm a person’s identity and immigration status. Employers who refused to swipe the card or who otherwise knowingly hired unauthorized workers would face stiff fines and, for repeat offenses, prison sentences.

Strong Border Security and Interior Enforcement

The plan aims to bolster efforts to secure the borders by increasing the Border Patrol’s staffing and funding for infrastructure and technology.  Additionally, other steps include expanding domestic enforcement to better apprehend and deport those who commit crimes and completing an entry-exit system that tracks people who enter the United States on legal visas and reports those who overstay their visas to law enforcement databases.

Creating a Process for Admitting Temporary Workers

The plan aims to attract the world’s “best and brightest.”   The legislation would award green cards to immigrants who receive PhD or master’s degree in science, technology, engineering or math (STEM) from a U.S. university.

Also, the plan calls for a system for admitting lower-skilled workers.  The plan would facilitate the circular migration” of lower-skilled workers by allowing employers to hire immigrants if they can show they were unsuccessful in recruiting an American to fill an open position; allowing more lower-skilled immigrants to come here when our economy is creating jobs and fewer in a recession; and permitting workers who have succeeded in the workplace, and contributed to their communities over many years, the chance to earn a green card.

Tough But Fair Path to Legalization for Unlawful Aliens

A tough but fair process is intended to allow unlawful aliens to find a way forward.  Such aliens would be required to admit they broke the law and to pay their debt to society by performing community service and paying fines and back taxes.  They would also be required to pass background checks and be proficient in English before going to the back of the line of prospective immigrants to earn the opportunity to work toward lawful permanent residence.

Conclusion

The Schumer/Graham plan has drawn an immediate vow of support by President Obama who has urged Congress “to act at the earliest possible opportunity.”    Mr. Obama’s pledge to support the plan should suggest that some sort of immigration reform may be forthcoming; however, the Senators have not offered a concrete plan and have not suggested a timetable.    Additionally, the White House has indicated that their top priorities (after health care, that is) are financial regulatory reform and campaign finance legislation.

Despite mixed messages from the White House, the Schumer/Graham proposal should help comprehensive immigration reform proponents in moving towards producing a bill and enacting it into law.  We will continue monitoring any developments and reporting them.

About the Electronic System for Travel Authorization

ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the Visa Waiver Program (WVP). ESTA has been mandatory since Jan. 12, 2009 for all nationals of VWP countries traveling to the U.S under the VWP. The requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.

ESTA applications may be submitted at any time prior to travel, and once approved, generally will be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations are valid for multiple entries into the U.S. The Department of Homeland Security recommends that ESTA applications be submitted as soon as an applicant begins making travel plans.

VWP travelers are required to log onto the ESTA Web site and complete an online application. The web-based system prompts applicants to answer basic biographic and eligibility questions typically requested on a paper I-94W form; ESTA is expected to completely replace the paper I-94W in the coming months. A third party, such as a relative, a friend, or a travel agent, may submit an application on behalf of a VWP traveler.

ESTA Registration Mandatory – New Enforcement Campaign

We have written in the past about the Electronic System for Travel Authorization (ESTA) which became mandatory more than one year ago, on January 12, 2009, for all Visa Waiver Program (VWP) travelers into the U.S.

The Department of Homeland Security (DHS) has recently announced a 60-day campaign to enforce ESTA registration.  Pursuant to this campaign, DHS will use its authority to deny entry to all VWP travelers to U.S. who have not registered with ESTA.   Beginning January 20, CBP will initiate a 60-day transition to enforce ESTA compliance for air carriers; VWP travelers without an approved ESTA may not be allowed to board a U.S.-bound plane.