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.

On Tuesday, July 20th, AILA filed a lawsuit against the Department of Homeland Security (DHS) and Citizenship and Immigration Service (USCIS) seeking the release of records concerning agency policies and procedures for the H-1B visa program.  AILA had attempted to obtain these documents under a Freedom of Information Act (FOIA) request which had been denied in full by USCIS.

This lawsuit focuses on the government’s H-1B visa review and processing procedures.  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.  At the same time, USCIS has kept under secret the rules and guidelines related to the review process.   The lack 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 lawsuit seeks the release of policy and other agency memoranda regarding H-1B adjudication and enforcement.   Considering the full denial of AILA’s earlier FOIA request, it may be expected that the government will fight this lawsuit to prevent this disclosure.  We will continue providing updates and developments on this case.  Please stay tuned.

We have previously written extensively about the January 2010 Neufeld Memorandum and the recent lawsuit challenging its validity.   We wanted to provide some recent updates on the case as it is of great interest to many of our clients and readers.

On June 25, 2010, the government filed a Memorandum in Opposition to the complaint.    The opposition is mainly based on technical arguments.  However, the government makes also the arguments that its policy-making ability pursuant to memoranda is exempt from the Notice and Comment requirements for rulemaking and that the plaintiffs have failed to show irreparable harm if the preliminary injunction were to be granted and, most interestingly perhaps, that agency memoranda are do not have the force of regulations and are just a suggestion to adjudicators on review criteria.

Subsequently, on July 9, 2010, the plaintiffs filed a reply to the government’s Memorandum of Opposition.  In it, the plaintiffs directly address the government’s arguments, including the argument that the policy memoranda does not constitute a regulation.   Plaintiffs argue that the policy guidance may not explicitly state that it is binding; however, in spirit and practice, it actually is.

We will continue to monitor the developments in this case as it affects a large number of our readers and clients.  Furthermore, the impact of this lawsuit may be broader than just the Neufeld Memorandum as the scope of the case may expand to cover other USCIS memoranda.   If you haven’t already, please subscribe to our free weekly newsletter to receive news and updates on this and related topics.

In a recent announcement, USCIS, as part of their annual budget review and due to lower-than-estimated fee revenue collection, proposed a fee increase that will amount to an average increase of  10% across the board.

A formal proposal has been published in the Federal Register and there is a 45-day comment period.   Some of the increases are substantial, especially when considered in conjunction with the ~60% fee increase done in 2007.   For example, an I-130 petition for an alien relative will jump from $355 to $420.  An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40.  Adjustment of status fees will increase by $55.  Businesses will also need to pay more – I-140 petitions for immigrant workers are increasing by over $100, premium processing fee is going up by $225 and a brand new fee of $6,230 is proposed to establish a Regional Center under the EB-5 program.

The USCIS justification is plain – our costs are high, our revenues are low, we need to either decrease service (by having less adjudicators and by increasing processing times) or to raise fees.   In a conference call to discuss the fee increase, USCIS Director Mayorkas explained that the fee increase is necessary to bridge the $160 million budget shortfall at the agency.

The 45-day comment period is due to expire in late July, so we encourage our readers and clients to comment on the proposed fee increase.  We will continue monitoring this proposal and will announce any developments with respect to any changes to the rule or to its effective date.   Please subscribe to our weekly newsletter to receive timely updates on this and related topics.

The Texas Service Center (TSC) recently launched a pilot program pursuant to which employment-based I-485 applicants can facilitate TSC processes relating to specific stages of the employment-based adjustment of status.  A special email address has been designated for this purpose: ebupdate.tsc@dhs.gov.

Procedure and Process

Notification of AC21 Change of Employer
I-485 applicants who wish to change employer and retain their adjustment process pursuant to AC21 are advised to follow the following steps:

1. Identify only one applicant in a single e-mail. E -mails must pertain to applicants whose I-485s have been pending for 180 or more days and who are eligible for AC21 porting.
2. Send an email to: EBUPDATE.Tsc@dhs.gov.
3. On the subject line,  write “EB I-485/AC21.” (Example: EB I-485/AC21)
4. In the text of the email, provide: A-number, old employer’s name and new employer’s name.  Attach a copy of the new employer’s letter of employment. The letter must identify the following information: the new employer, the letter’s author and his/her job title, the applicant’s new job title, start date of new employment, hours per week, salary, and specific description of the duties to be performed.
5. If the applicant has more than one A-number, they should be typed on the same line separated by a “/”. (Example: All 1222333 I A444555666). If there are multiple family members, they should be typed  all on the same line separated by commas. (Example: AIII222333, A222333444, A444555666). You should also indicate which of the A-numbers is that of the principal I-485 applicant / I I-140 beneficiary.

Notification When an Applicant Has Multiple I-140s With Available Priority Dates

Notification When Applicant is Eligible for Cross-Country Chargeability

Applicants who are eligible to obtain chargeability under a different country should follow the following procedure:

1. As with the categories described above,  identify only one applicant in a single e-mail. E-mails should pertain to applicants whose I-485s are currently eligible for processing because the applicant is entitled to receive a cross-charged priority date from a qualifying family member under Section 202 of the Immigration and Nationality Act.
2. Send an email to: EBUPDATE.Tsc@dhs.gov
3. On the subject line, write “I-485/ CC”
4. In the text of the email,  provide A-numbers, including the A-number of the I-485 applicant who will acquire the current priority date from the qualifying family member, and the country of cross chargeability. Also include the A-number of the family member who will confer the current priority date.  If the applicant who is to receive the cross-charged priority date has more than one A-number, or if there are multiple family members,  the instructions described above under AC 21 portability apply.

Notification of Case in Need of Transfer

Applicants can also notify TSC of cases which are in need of transfer.  The procedure is as follows:

1. Identify only one applicant in a single e-mail. E-mails must pertain to applicants whose I-485s are eligible for processing because the priority date of another petition relating to the I-485 applicant (such as an I-130) has a visa available.
2. Send an email to: EBUPDATE.Tsc@dhs.gov
3. On the subject line,  write “Transfer”.
4. In the text of the email, provide A-numbers or receipt numbers and the office to which the I-485 should be transferred. If the applicant has more than one A-number, or if there are multiple family members please follow the instructions described above under the AC 21 portability instructions.

Conclusion
TSC’s pilot notification program is a great idea; however, its success will depend on how well TSC will respond to legitimate notifications send to them via the new email address and how well TSC will advise applicants who use the notification tool of the status and progress of their request.  We will continue monitoring this pilot program and using it with selected clients who can benefit from it and will provide further updates on the pilot program’s usefulness.

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.

If you have not already, please consider subscribing to our weekly free immigration newsletter to receive weekly updates on immigration reform, news and developments.

In connection with the 2007 adjustment of status (I-485) filing “blizzard” and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   One of the most frequent questions we receive is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

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.