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.
University Sues Chertoff Over Unlawful Immigration Security Checks
Breaking News
The University of Nebraska at Lincoln (“UNL”) has sued the U.S. government to compel it to act on a visa petition the institution filed 22 months ago on behalf of Bolivian Historian Dr. Waskar Ari. The lawsuit, a complaint for writ of mandamus, filed by UNL alleges, inter alia, that background checks being conducted by the DHS are not authorized by law and that the DHS lacks authority to withhold or delay action on UNL’s petition. UNL is represented by Maggio & Kattar attorneys Michael Maggio and Thomas Ragland .
Will the H-1B Cap Be Reached on April 2nd?
Employers who have been waiting since May 26, 2006 to file petitions for their cap-subject H-1B professional workers can do so on April 2, 2007. While it is impossible to know for sure, it appears that this year's H-1B quota may be exhausted earlier than ever before, and possibly within only a few days. In anticipation of the deluge of petitions it expects to receive, the U.S. Citizenship and Immigration Services ("CIS") advises that if a sufficient number of petitions is received on the first day, it will apply a computer-generated "random selection" lottery to all petitions received on the first and second days, April 2 and April 3, 2007. We strongly urge employers who are considering filing H-1B petitions on behalf of their eligible professional workers to do so as early as possible. For additional information regarding the H-1B cap, please refer to the January 2007 and June 2006 editions of our Immigration News & Analysis newsletter.
"Despite Push, Immigration Deal Not on Horizon", Or So It Seems
Despite considerable press and more attention in the past month, comprehensive immigration reform ("CIR") remains a question mark rather than an idea whose time has come. Without agreement on exactly what should be done to repair our nation's broken immigration system, prospects for viable legislation change from day to day, depending on who is talking. The headline quoted above, "Despite Push, Immigration Deal Not on Horizon", reflects the current state of affairs. In a recent article appearing in Roll Call, "The Newspaper of the Capitol Hill Since 1955", influential congressional insiders from both parties are quoted as painting a picture that CIR is unlikely before the 2008 elections. According to Roll Call: In fact, GOP and Democratic aides contend that both parties may be best served by political impasse over the issue since such a scenario would allow Capitol members to show that they are standing firm on hot-button issues while avoiding compromises that may upset base voters. Supporters of comprehensive immigration reform, most notably Senators Edward Kennedy (D-MA), John McCain (R-AZ), and Patrick Leahy (D-VT), have indicated that they hope Congress will take up the issue of CIR this spring. Yet, at the same time, Senate Judiciary Chairman Leahy remarked that the chance of passing CIR this year rests with the President. He stated that he will not mark up a bill "until the president gets involved personally and strongly." Perhaps President Bush's recent trip to Latin America, where he called for an overhaul of U.S. immigration laws, was just the nod Leahy needed. Nevertheless, Roll Call reports that leadership aides in both parties predict the debate won't begin "until August at the earliest." This would, according to Roll Call, put the immigration debate up against the annual appropriations fight and would significantly narrow the window in which to pass bills in both chambers, conference the legislation, and get it to the President before it becomes politically unviable. Meanwhile, in early March, both the Senate and House reintroduced the American DREAM Act (Development, Relief, and Education for Alien Minors), legislation that would provide a path to legal status for certain undocumented students who have lived much of their lives in the U.S. but do not have an authorized immigration status. Also reintroduced recently is the AgJOBS bill (Agricultural Job Opportunities, Benefits and Security Act of 2007), designed to achieve a stable and authorized agricultural workforce through a two-pronged approach including an earned adjustment program. And, in response to CIS's plan to raise application filing fees dramatically, the Citizenship Promotion Act of 2007 was introduced, a bill that would authorize funding for CIR adjudication of citizenship applications, thus obviating the need to raise fees disproportionately. See article on fees in our February issue of Immigration News & Analysis. Citizenship appears to be the flashpoint de jour, both in terms of fees as well as in terms of who would be eligible for citizenship under CIR. At recent Senate hearings, administration officials backed away from supporting provisions in comprehensive immigration reform that include a pathway to citizenship for undocumented immigrants. This is motivating Democrats to say that Republican backing for CIR, from the White House to the Congress, is essential because otherwise Democrats will be walking "the amnesty gangplank;" in other words, they'll be characterized as the "amnesty for illegal aliens" party in 2008. Bipartisan CIR would help to avoid that. Bill Gates entered the immigration fray this month. Testifying at a Senate hearing, the chairman of Microsoft warned that "America will find it infinitely more difficult to maintain its technological leadership if it shuts out the very people who are most able to help us compete." Echoing a broader concern - that restrictions on the number of skilled workers puts America's competitiveness at risk - Mr. Gates called on Congress to loosen rules for foreign students so that they can remain in the U.S. upon the completion of their studies and to speed the process of obtaining permanent resident status for highly skilled workers. Practically speaking, what does this all mean? Will we see piecemeal rather than comprehensive immigration legislation enacted, or is the introduction of individual bills designed primarily to keep the heat on? Those anxiously waiting for a legalization program probably will not see legislative relief until the issue is framed differently than "rewarding law breakers." Instead, the case must be made that it is not in the national interest to have 10-12 million unauthorized foreign nationals living in the United States and that the cost of removing them is too high, both administratively (i.e., undertaking legal removal proceedings) and economically in light of the critical role they play in our workforce at a time of historically low unemployment. Likewise, legislation increasing H-1B specialty worker visas and employment-based immigrant visas might not be enacted until late this year too. The smart money says that this type of legislation will be enacted before a legalization program, and perhaps by November 2008.
ICE Steps-Up Workplace Raids
The Department of Homeland Security's Immigration and Customs Enforcement ("ICE") branch continues its aggressive enforcement policy against employers. ICE continues to conduct large-scale sweeps at worksites, arresting many foreign nationals and, very significantly, company managers and other executives on criminal charges. These charges include conspiring to encourage or induce undocumented workers to reside in the U.S., conspiracy to defraud the U.S. government and harbor for profit, as well as conspiring to hire. Just last week, ICE took more than 350 people into custody after it raided a Massachusetts manufacturing factory that makes equipment and apparel for the U.S. military. Three managers and the company's owner also were arrested. In late February, ICE raided a Florida cleaning service, indicting three executives on 23 felony counts. 195 individuals also were arrested for administrative immigration violations. These raids follow the much-publicized sweep last December when ICE agents entered six Swift meatpacking plants and apprehended and arrested nearly 1,300 undocumented workers. These sweeps reflect a dysfunctional immigration system that does not meet U.S. labor market needs. At the same time, ICE is violating the law because it is denying foreign nationals their rights to access to counsel and fair hearings. In the Massachusetts case, a large number of people were transported and detained in Texas, where only one lawyer is available to represent some 100 detainees. Moreover, in Massachusetts the separation of parents from their young children implicates broader rights infringements. In response to what has been called a "humanitarian crisis," Massachusetts Social Services Commissioner Harry Spence traveled to Texas to interview detainees and recommended some two dozen individuals who should be returned.
J-1 Waiver News
The U.S. Department of State ("DOS") issued a final rule last week containing administrative and substantive changes related to exchange visitors and J-1 visa waiver review. For persecution waivers, where the Department of Homeland Security ("DHS") has made a finding of persecution, the DOS Waiver Review Division ("WRD") will submit the application to the DOS Bureau of Democracy, Human Rights and Labor only if it believes circumstances have meaningfully changed since the DHS finding. This should be good news in cases where DHS finds persecution, as the DOS is not likely to find otherwise. The rule also announces realignment in the WRD Board, to which WRD may refer a waiver application with compelling competing interests. The Board's members will include both policy formulators and those responsible for administering J programs, with the goal of achieving consensus in difficult to decide cases. For scientists and physician researchers seeking a waiver through the Department of Health and Human Services ("HHS"), the road remains daunting. Although the bar is indeed high, with an HHS rate of approval of a little more than half, a successful HHS waiver requires much more than the repackaging of a previously successful O-1 petition. While many mistakenly believe that HHS is impressed by the approval of an extraordinary ability immigrant visa petition, what the HHS audience really needs is fewer laudatory words about an individual's work and more facts and figures about why the researcher is essential, irreplaceable, and vital to a program of interest to HHS. A strong case requires not so much a volume of paper as strong scientific evidence coupled with careful legal preparation and editing. Other J waiver news includes Congress' retroactive reauthorization of the Conrad-30 program from May 31, 2006 until June 1, 2008. Under the Conrad program, which, according to a recent GAO report, accounted for more than 90 percent of J-1 waiver requests, state departments of health may continue recommending waivers for foreign medical graduates committed to working in underserved areas for a minimum of three years in H-1B status.
April Visa Bulletin: Little Relief for Those Who Wait
The State Department's Visa Bulletin for April reveals some modest forward movement in priority dates for family-based immigrant visas, but significant retrogression for the second month in a row for Mexico and the Philippines third preference (married sons and daughters of U.S. citizens) with further retrogression predicted. The State Department also expects additional retrogression for Mexico first preference (unmarried sons and daughters of U.S. citizens) in May. Employment-based preferences also saw some modest forward movement but visas for unskilled workers (third preference "other worker") remain backlogged by six and a half years, and it is likely that this category will become unavailable in May.
Maggio & Kattar Helps University Sue DHS Over Unlawful Immigration Security Checks
The University of Nebraska at Lincoln ("UNL"), represented by Maggio & Kattar attorneys Michael Maggio and Thomas Ragland, sued the U.S. Government to compel it to act on an H-1B visa petition the University filed 22 months ago for Bolivian Historian Dr. Waskar Ari. The lawsuit, a complaint for writ of mandamus, filed by UNL, alleges, among other things, that background checks being conducted by the Department of Homeland Security ("DHS") are not authorized by law and that the DHS lacks authority to withhold or delay action on UNL's petition. At the heart of this lawsuit are issues involving the First Amendment, academic freedom, and an unlawful approach to background checks for foreign academics. Professor Ari, a member of the Aymara indigenous group of Bolivia, is an expert on the history of indigenous peoples, particularly in his native Bolivia. UNL sought to hire Dr. Ari as an Assistant Professor of History and Ethnic Studies. Professor Ari's appointment was to commence in August 2005; UNL's H-1B petition was filed under "premium processing," which guarantees a decision within 15 business days. However, the University's visa petition for Professor Ari has been pending for unspecified "security checks" - seemingly delayed indefinitely - since June 2005. Professor Ari is one of a growing number of foreign scholars whose visas have been revoked or whose applications have been denied or delayed, thus barring their entry into the U.S. based on their ideology or political views. The ACLU is tracking many cases, including Professor Ari's, in which it believes foreign nationals have been banned from entering the United States owing to their beliefs. Although the government rarely gives a reason for these exclusions, the ACLU reports that many exclusions appear ideologically motivated and that academics increasingly are being interrogated about their political beliefs when they apply for visas. In this instance, Professor Ari may be wrongly linked to the indigenous movement led by Bolivian President Evo Morales. A supporter of Venezuelan President Hugo Chavez and the first Indian President of Bolivia, Morales also is an outspoken critic of the Bush Administration's policies in the region. See our press release for more details on the lawsuit.