Labor Immigration Law

We at the Capitol Immigration Law Group have been following closely the Democratic and the Republican National Conventions, respectively last week and this week, and we were surprised to see that there was virtually zero attention paid to immigration in the speeches and debates on and off the convention floor.

The Republican party was more likely to discuss the issue of immigration, especially in light of some of its members’ proposals to strengthen the border enforcement, go after employers who harbor illegal immigrants and generally opposed to a path to citizenship to illegal immigrants or what they call “amnesty”.   It seems that Senator McCain, who along with Sen. Kennedy (D-MA) authored a bipartisan immigration bill and which bill died in the Senate last year, has become more conversative on this issue and does not, at least in recent public appearances, seem to support the kind of ideas he supported a year or two ago.

In addition to the issue of illegal immigration, there are numerous other immigration-related issues, some of which are supported by  one or the other parties, but again, there does not seem to be much discussion.  There have been a number of groups dedicated to defending the interests of legal foreign workers who follow the legal path to permanent residency but who have been stuck in the system for years without ability to visit their families abroad or to advance their careers.  While some may seem such immigrants as potentially causing some Americans to lose their jobs, studies have shown that many of these highly-qualified foreign employees actually help the economy grow by bringing excellent education and training to the U.S.  Microsoft’s Bill Gates has testified and lobbied Congress on numerous occasions on the need of increasing the work visa quotas and streamlining the processing backlogs which plague the immigration system.

We will continue to follow the discussion of immigration during this political campaign, but given the economy and the Iraq war, we are not optimistic that immigration will take center stage during this political season.  We hope that immigration, even though not politically active topic now, woud be part of the agenda of the next president in January of 2009.

It is election season and many non-U.S. citizens are interested in being involved in the election process.  We receive a number of inquiries about what election-related activities are permitted by non-U.S. citizens and we republish an article we wrote in April 2008: Foreigners and the U.S. Political Process - Permitted Activities.

In addition, voting unlawfully is a ground for inadmissibility pursuant to Section 212(a)(10)(D) of the Immigration and Nationality Act.

False claim of U.S. citizenship or unlawful voting  are very serious offenses and may subject a foreign national to severe consequences.  Despite the importance and, sometimes, the urge to get involved politically, we urge our readers who are not U.S. citizens or permanent resident aleins to carefully consider their involvement in the political proces.

We wrote in June about the lawsuit challenging the 17-month OPT extension for STEM students.  The lawsuit was brought by  the Immigration Reform Law Institute, joined by the Programmers Guild and other organizations.   The lawsuit challenged the administration’s decision to extend the work period for students under the OPT program and argued that the OPT extension is just a way to go around the H-1B cap limit.  The argument was based on the fact that the H-1B program, and its annual cap, is set by U.S. Congress and by extending the OPT by 17-month, the administration has circumvented the required process of consent by the U.S. Congress.

There is a disposition in this case favorable to the F-1 and OPT holders who may benefit from the 17-month extension. In an opinion dated August 5, 2008, the US District Court for the District of New Jersey denied the request for preliminary injunction to stop the OPT 17-month program.

The title may not suggest how this post is related to labor immigration, but it is.  In an interview with the Wall Street Journal, the formed Federal Reserve Chairman Alan Greenspan suggested that one of the easiest, yet politically difficult, ways to alleviate the housing crisis is by … a major expansion of the quotas for immigrant workers.

Here are his comments:

Public policy can hasten this process by not prematurely propping up housing starts and by expanding the underlying demand for homes generally. The most effective initiative, though politically difficult, would be a major expansion in quotas for skilled immigrants. Skilled immigrants tend to form new households, by far the most important source of new home demand. The number of new households in the U.S. is increasing at a rate of about 800,000 a year, of which about a third are immigrants. Perhaps 150,000 of those are loosely classified as skilled. A double or tripling of this number would markedly accelerate the absorption of unsold housing inventory for sale — and hence help stabilize prices.

Politics aside, it makes sense, as we notice first hand from our clients - many qualified and well-paid foreign workers are willing and able to buy properties and settle down, but they are deterred either by tougher lending standards for non-permanent residents or they are unwilling to invest a substantial amount of money not knowing whether USCIS would successfully, if at all, adjudicate their immigrant application which, in many cases, has been pending for five, six, or even more years.

The E-Verify program, as we know it and have used to love it or hate it now, is set to expire on November 1st.  E-Verify and its requirements to verify the employment eligibility for all new hires is the cornerstone of many states’ immigration enforcement laws.  For example, South Carolina and Arizona require all or a large portion of the companies who employ workers to use E-Verify.

With the Senate in recess from August 1 until September 7, and target adjournment date of September 26, there are not many days left for Congress to consider the many issues that surround E-Verify.  Many senators wish to condition or structure E-Verify’s reauthorization with some other immigration measures.  Some of the proposed bills are likely to spur a fair amount of opposition and their passage, as proposed, is not guaranteed.

Until then, E-Verify is still operational, but the limited calendar and the desire of the U.S. congressmen to push alternative immigration measures alongside E-Verify may mean that its renewal will be down to the wire.

We at the Capitol Immigration Law Group will continue monitoring the situation on behalf of our clients and report as we get updates.  To receive timely updates please visit this site regularly, subscribe to its RSS feed, or subscribe to our email newsletter.

Section 245(a) of the Immigration and Nationality Act (INA) allows for the adjustment of status (I-485) which so many of our clients and readers are well familiar.  Section 245(c) of the INA establishes eight (8) bars to adjustment of status.  However, adjustment of status based on employment-based immigrant visa are exempt from three of these bars, pursuant to Section 245(k).

In a July 14, 2008, Memorandum, Donald Neufeld seeks to explain the applicability of these exemptions and provide details and clarifications on the applicability of the exemptions and the adjudication procedures.

What is the Exemption.   The bars to admission which are inapplicable are as follows: for a period of 180 days since the petitioner’s last lawful admission in the U.S. your status, (1) failed to maintain your status, (2) engaged in unauthorized employment, and (3) otherwise violated the terms of his/her status or admission.

Who is Exempt.  The exemptions are applicable to employment-based adjustment of status applications in EB-1, EB-2, EB-3, or EB-4 categories.  The alien must be present in the U.S. pursuant to a lawful admission.  The exemptions are available to derivative petitioners as well.

Analysis.  Although this is not a new rule, the July 14, 2008, Neufield Memo seeks to provide clear guidance and explanation on the applicability of the 180-day exemptions.  It is important to understand that the three exemptions are only for employment-based adjustment of status petitions, and not for family-based.  Also, it is important to understand that the 180-day period is cumulative and includes all days, weekend and holidays.  Finally, the 180-day period counts the dates since the last lawful admission - leaving the U.S. and entering legally “clears” the count.

Many of our clients and readers have asked us what kind of relief or changes they can expect once the new president takes office in January of 2009.  Although it is difficult to predict the exact type of policies they will implement once they take office, the Wall Street Journal created a helpful chart comparing Obama and McCain on immigration.

WSJ: Immigration - Obama v. McCain

As the chart suggests, both candidates are not very far apart on immigration.  Both support some part to legalization of illegal alient, both are for tougher penalties for hiring illegals, and both support increase in the number of visas, especially to reunite families.  Thus, we are hopful that the new administration will provide some long-expected relief for immigrants waiting in a processing backlog or waiting to be reunited with their families.

Many of our clients are complaining of the need to renew their employment authorization documents (EADS) every year while their green card adjustment of status application is pending. Given the long backlogs, the need to extend EADs every year becomes a hassle and, especially for those applicants who have to pay for each application, a financial burden.

DHS Secretary Chertoff, in remarks at the “State of Immigration” address, noted that beginning June 2008, DHS will start issuing 2-year EADs for applicants whose adjustment of status petitions if such petitions are expected to be pending for more than one year. His precise remarks are:

“Beginning later this month, we’ll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year.

..

This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It’s going to cut the paperwork there.“

Full text.

The speech does not address details such as the exact date of when this change would take effect and whether advance parole (AP) extensions would also be extended in 2-year terms. We will continue monitoring developments in connection with Secy. Chertoff’s statement and update our clients and readers as we know more. Readers can subscribe to our newsletter to obtain email notification of recent developments.

Update: USCIS has released more details on the new rule.

The recent OPT 17-month extension which went into effect in early April 2008 has been challenged in the U.S. District Court in Newark, N.J. by the Immigration Reform Law Institute, joined by the Programmers Guild and other organizations.   The lawsuit challenges the administration’s decision to extend the work period for students under the OPT program and argues that the OPT extension is just a way to go around the H-1B cap limit.  The argument is based on the fact that the H-1B program, and its annual cap, is set by U.S. Congress and by extending the OPT by 17-month, the administration has circumvented the required process of consent by the U.S. Congress.

We do not have a copy of the complaint at this hour to comment on the sufficiency of the legal arguments and whether it has actual merit as opposed to  its PR value.  However, we will monitor this lawsuit and report on any significant developments related to the OPT extension program.  Feel free to subscribe to our  electronic newsletter to receive updates on this and other immigration law-related stories.

Update: August 5, 2008, ruling against the plaintiffs.

Following the H-1B lottery, where roughly half of the applications were rejected in the lottery, we are providing an overview of the pending H-1B relief bills in Congress.

The main piece of legislation in connection with H-1B relief is the SKIL Bill (HR 1930, S 1083).   The bill would raise the H-1B cap to 115,000 and provide for market-based increase if the cap has been reached during the previous years.  The bill would also exempt from the cap professionals with U.S. master’s or higher degrees AND some medical specialty certificate awardees.  Finally, the SKIL Bill contemplates including into the 20,000 advanced degree cap holders of advanced degree from non-U.S. educational institutions.

The STRIVE Act of 2007 (HR 1645) has provisions similar to the SKIL Bill.

HR 5630, introduced by  Rep. Giffords (AZ) seeks to increase the cap to 130,000 and, similarly to the SKIL Bill, includes a market-based escalation provision.

Finally, HR 5642, introduced by Rep. Smith (TX) seeks to increase the cap for fiscal years 2008 and 2009 to 195,000.