Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Significant Agency Action Predicted
Breaking News
The first several articles in this issue contain important information about proposed action from the Department of Labor (“DOL") and the U.S. Citizenship and Immigration Services (“CIS”), which if finalized, will significantly impact the filing of immigration cases. While these proposals are not final yet, we thought it imperative to advise and caution our readers so they may prepare and act accordingly.
Far-Reaching DOL Proposal Slated for Final Action
The U.S. Department of Labor (“DOL”) is getting ready to implement proposed far-reaching changes in the processing of labor certification applications that would impact employers and foreign nationals tremendously, if promulgated, by eliminating the substitution of foreign workers in labor certification applications, imposing a 45-day deadline on filing immigration petitions, and requiring employers to pay all attorneys’ and other fees associated with the process. (See our February 2006 issue of Immigration News & Analysis.) While still not a certainty, a recent check of upcoming regulatory action reveals that this DOL proposal is slated for final action in April of this year. The rule is now at the Office of Management and Budget (“OMB”); the OMB’s job is to obtain clearances from other interested agencies. After the rule is cleared by the OMB, it will be sent back to the DOL for sign off and publication in the Federal Register.
To recap, the DOL proposes to eliminate “substitution of alien beneficiaries,” the practice of replacing the beneficiary of a labor certification application with another foreign worker who possesses qualifications that meet or exceed the stated requirements of the application. Second, the DOL proposes to impose a 45-day deadline by which all approved labor certification applications must be filed in support of an I-140 petition with the U.S. Citizenship and Immigration Service (“CIS”). Currently, labor certifications are valid indefinitely. The rule would compel employers and employees alike to have all supporting evidence for the immigrant visa petition, such as letters verifying experience, in hand as soon as the labor certification application is approved. The DOL further proposes to require employers, rather than foreign workers, to pay for all attorneys' fees and associated costs in connection with the preparation and filing of a labor certification application. The DOL’s stated goal in its proposed rule making notice is “to enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States.” Potential substitution cases should be acted upon promptly, supporting evidence for visa petitions should be sought, and employers who require their employees to pay for labor certification cases should get those cases started immediately.
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DOL Seeks User Fees for Labor Certification Applications
After years of talk, the U.S. Department of Labor (“DOL”) announced it will seek authorization to charge fees for the PERM labor certification process under a special provision in law that permits user fees for “activities that convey special benefits to recipients beyond those accruing to the general public”. When DOL was formulating the PERM program, DOL officials spoke of mandating filing fees in the thousands of dollars. Coupled with the proposed fee increases announced by CIS (see article below), employers and many foreign nationals would be burdened substantially by immigration-related application fees. We recommend that employers consider preparing and filing their labor certification cases as soon as possible before proposed fees are imposed. We will be following this issue closely.
Immigration Filing Fees Could Rise 66% as Early as This Spring
CIS announced in early February its proposal to raise immigration filing fees by an average of 66%, sparking unprecedented criticism from the Congress, the press, and immigration advocacy groups. The fee for applying for naturalization would increase to $675, a $345 increase over the current fee of $330. A petition to remove the condition on residence based on marriage would increase from $275 to $465. A Form I-485, "Application for Adjustment of Status" would rise from $325 to $905. Not only is it feared that these new fees will impede immigrants and U.S. citizen relatives from applying for benefits, but there also is concern that the user fees will not result in significantly improved service. These fears are well-founded. In years past, immigration user or filing fees were often used to fund not only the agency’s overhead but were siphoned off to fund the agency’s law enforcement activities, including investigations and security checks. Incoming immigration subcommittee chairs from both the House and Senate formally requested that CIS provide their committees with an opportunity to review the extraordinary circumstances that could justify such a massive increase. (The House Judiciary Committee held hearings on the proposed fee increase on February 14, 2007.) We encourage you to call your Senators and Representative in Congress to let them know of your concerns.
Gear Up Now for H-1B Filings Starting April 1st
In approximately six weeks, employers will be able to file new H-1B petitions for their professional employees who will commence work on October 1, 2007. Employers who have not already done so should immediately identify those new hires who will require a cap-subject H-1B visa so that a petition can be filed as soon as practicable. (See our January 2007 issue of Immigration News and Analysis.) Certain H-1B visas are exempt from the 65,000 statutory limit. (See June 2006 Breaking News). For example, an exemption exists for H-1B petitions filed by for-profit companies when the H-1B beneficiary will be working at a governmental research organization, a nonprofit research organization, or an institution of higher education. It is anticipated that the H-1B cap will be reached within days of the April 1st filing date.
Will This Be a “Do Nothing” Congress on Comprehensive Immigration Reform?
All agree: the window for comprehensive immigration reform (“CIR”) is open now, but only for the next six months. This window of opportunity will close by the August Congressional recess. After that, the presidential elections will dominate almost everything in Washington. Agreement is lacking, however, on how to best craft comprehensive immigration legislation that will be palatable to all sides.
What is meant by CIR? Basically, there are three components: a legalization program; the provision of more immigrant and H-1B nonimmigrant visas; and a guest worker program. Calls for stricter enforcement, especially against those who employ unauthorized workers, are woven into the package, as are issues of due process and judicial review. Generally speaking, Democrats are more likely to support legalization, more visa numbers, and tougher penalties for employers, and oppose the guest worker component of CIR. Republicans, on the other hand, are more likely to view guest workers as essential to CIR, and to oppose a generous legalization program and more penalties for employers.
At least 60 Senators must support CIR for it to pass, because under the Senate’s rules, 60 Senators – not a bare majority of 51– must agree for legislation to be voted upon. This means that getting Republican Senators to support CIR is essential.
During the last two weeks, the House and Senate Judiciary Committees finalized their respective immigration subcommittees and may now conduct hearings on immigration reform proposals. Rep. Zoe Lofgren (D-CA), previously an immigration lawyer in Silicon Valley, chairs the sixteen-member House immigration subcommittee. Sen. Ted Kennedy (D-MA), a long-time advocate of immigrants’ rights and due process, chairs the Senate’s counterpart. While strong leadership is essential to framing the debate, some of the House and Senate’s most ardent immigration restrictionists remain on these important subcommittees. Both subcommittees, with jurisdiction over immigration, citizenship refugees, border security, and other subject matters affecting migration issues, are likely to schedule extensive hearings (at least in the House), but have not done so yet.
It appears that the House Republican leadership will continue to oppose CIR. Practically speaking, the House will need a broad consensus in order to move a bill forward because many Democrats are cool to certain aspects of CIR. Also, Democrats and Speaker Nancy Pelosi (D-CA), savoring their recent assumption of power in the House, are unlikely to support immigration legislation that Republicans can use successfully against the Democrats in 2008. Any bill perceived to be too far to the left or right will be untenable.
For the Senate, the starting place is bill S.2611, CIR legislation that passed the Senate during the last congressional session. The heart of that bill – and future Senate action – is a problematic legalization program coupled with a guest worker program deemed workable by business, but adamantly opposed by a number of unions. Framing the guest worker program as key to addressing the future flow of foreign workers is critical to Republican support. Indeed, the Republican leader on CIR, Senator John McCain (R-AZ), has said that there will not be CIR without it. Senators Mel Martinez (R-FL), Sam Brownback (R-KS), and John Cornyn (R-TX) have emerged as key players joining the armada of voices central to the debate.
Most have come to realize that comprehensive immigration reform must go beyond the 1986 legislation – which married legalization with stepped up enforcement (i.e., employer sanctions) – in order to restore the rule of law and to have an immigration system that makes sense. The public, hungry for law and order and control of the border, also increasingly recognizes that immigration policy must respond to the supply and demand for workers. Legalization and more nonimmigrant and immigrant visa numbers also are needed to respond to the needs of the labor market and to restore respect for the rule of law. Having U.S. citizen and permanent resident families and employers wait forever to make their relatives and employees legal diminishes respect for the rule of law. Likewise, it makes no sense to have approximately 12 million people living in this country with their identity and status unknown to the government. The clock is ticking. If CIR does not happen by next fall, piecemeal legislation addressing some aspects of the broken immigration system may occur.
The Same Old Story: Growing Backlogs and Retrogression for Immigrant Visas
The growing backlog and retrogression of visa numbers is a broken record reflecting an increasingly broken down system. The State Department’s Visa Bulletin for March reveals little forward movement in priority dates since last month and some categories have not seen any movement in a year! Employment- based preferences did not move this month, and the State Department predicts that as the DOL and CIS work through their respective backlogs with pre- August 2002 priority dates, retrogression of the current employment-based third preference can be expected during the spring and summer. In the family preferences, most categories also witnessed little forward movement. Moreover, cut-off dates for Mexico and the Philippines third preference (married sons and daughters of U.S. citizens) retrogressed and are likely to continue to slip. For some, this means a lifetime of waiting. (See Visa Bulletin)
Compelling the Government to Do Its Job: Litigation Becomes Necessary Tool to Obtain Employment Authorization for Certain Foreign Nationals
Under CIS regulations, the government has an affirmative duty to issue employment authorization to foreign nationals who have applied for adjustment of status (“I-485”). If the government has not adjudicated an I-485 application within 90 days, it is required to issue an interim employment authorization document (“EAD”). The regulations under which CIS operates make this action mandatory. Recently, CIS district offices have refused to grant such work authorization, either by withholding or unreasonably delaying action on these applications. In one case, CIS declined to issue an EAD after years of issuing interim EADs, determining subsequently that the applicant failed to establish eligibility.
Foreign nationals and their employers can fight back. Filing a “mandamus” action in federal court to compel the government to act is a viable option for those who have been waiting an unreasonable period of time for their interim EAD. Our litigation practice group, which handles removal cases, appeals, and federal litigation, has filed numerous such suits nationwide and is monitoring trends to evaluate how the courts are ruling on this important issue.
Immigrants’ List, Bipartisan Immigration PAC, Established
Immigrants’ List, the nation’s first only pro- immigration bipartisan political action committee (“PAC”), was established shortly before last year’s November’s congressional elections to provide a much needed political vehicle for those who seek meaningful immigration reform. As a single issue immigration PAC, Immigrants’ List can more significantly affect the political process by financially supporting new political candidates, as well as existing members of the House and Senate. PACs may also engage in a public political campaign to better educate policymakers and the public at large about the undeniable important contributions immigrants make to our society.
What is Immigrants’ List’s mission, specifically? Immigrants’ List is dedicated to preserving and promoting the historic benefits that immigrants of all backgrounds have bestowed upon the United States through their risk-taking, enterprising spirit, their commitment to hard work and their families, their cultural diversity, as well as their quest for freedom – a quest which has defined our nation since the arrival of America’s first immigrants. To achieve its goals, Immigrants’ List supports politicians and political campaigns, regardless of party, that support due process, increased visa numbers, legalization, elimination of the three-, ten-year and permanent bars, judicial review, and relief from removal for immigrants and their U.S. citizen families and employers. It opposes candidates and political incumbents who use fear, disinformation, and manipulation to divide citizens from immigrants and to deprive immigrants of basic civil and political rights.
For more information on Immigrants’ List, as well as information on who can and cannot contribute to a political action committee, see their website.