Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

The Unauthorized Practice of Law–Finally Getting Shot Down


Today, New York Attorney General, Andrew Cuomo, turning his attention rather momentarily away from Wall Street, issued more than 50 subpoenas to individuals and businesses in New York City, as part of a widening investigation into immigration fraud by unauthorized practitioners and businesses, including “non-profit” businesses. The New York Times reported today some details of the investigation and provides some short glimpses into the hardships caused by these predators.

To Attorney General Cuomo I say thank for doing what Attorney Generals around the United States (and, heck, the Attorney General OF the United States), should have been doing for years. Its about time that the law enforcement authorities took seriously the damage these predators cause on one of the most vulnerable sectors of our society–new immigrants.

Even that bastion of the letter of the law following government agency–the USCIS, does not actively investigate and prosecute the very people violating its own regulations! Might I cite you to 8 C.F.R. 292.1, which clearly states that NO one may represent someone before the USCIS who does not fall within that specifically detailed list. The USCIS sees it going on first hand, yet does nothing about it. You have to ask yourself, why? Is it perhaps because it is just easier to deport the victims, rather than go after the perpetrators?

But, let us not forget to be introspective too. Whenever we see this happening, we also need to ask ourselves–are attorneys assisting in this unauthorized practice of law? Too many times, attorneys are sucked into “non-profit” enterprises, or pair with in-the-know “community leaders” who have the attorneys act as fronts for their UPL activity, when the attorneys have little to no knowledge of immigration law, and abandon all attempt at the illusion of giving legal advise, all for the 30 pieces of silver these bad actors give the attorneys in return.

As we approach comprehensive immigration reform, and the tremendous demand that reform will put not only on the USCIS and the immigration system, but also on the need for competent legal services, we have to demand that federal and state authorities act now to send the message that taking money to give no service and do no good, will not be tolerated, Further, USCIS must send the message that it will not tolerate an abuse of its own system (isn’t USCIS perceptually doing that now with the record setting number of RFEs it is sending out), and begin to prosecute the UPLers. Remember, it is a violation of law to not sign the forms submitted to USCIS if you complete them for someone else–Come on USCIS, do a real investigation!

So, Bravo to Attorney General Cuomo. Let’s see if Attorney General Holder will follow suit and put a stop to these Harbingers of Doom.

Sotomayor and Immigration Reform


Is it possible? Is there really link between President Obama’s bold nomination of Judge Sonia Sotomayor, with possible movement or non-movement on Immigration Reform this fall? The folks over at http://www.electoral-vote.com/ note that there may be a link:

“A side effect of the Sotomayor nomination is that it may allow Obama to delay dealing with immigration reform for a while since Latino voters will be feeling good about him for a while just due to this nomination. On the other hand, if Obama (or more realistically, Rahm Emanuel) wants to enjoy the spectacle of the GOP tearing itself to bits, reintroducing the McCain-Kennedy immigration bill would be a good first start. The Tancredo wing the the Republican party will go all out to block it because it provides a path to citizenship for over 10 million illegals currently in the U.S. But an all out fight against these people–many of whom have friends and relatives who are citizens (and voters) will further alienate Latinos from the Republican Party. In contrast, the only major Democratic constituency that might oppose the bill is the labor movement, but there are probably other ways to mollify them (e.g., an all out push for card check).”

The reality is that with Judge Sotomayor’s nomination we could actually see an even stronger movement toward immigration reform. Clearly, by nominating a Latina to the highest Court in the land, President Obama has sent a very strong message to his Latino constituency. The question remains, however, is this enough of a message to delay immigration reform? My guess–absolutely not. One nominee to the Supreme Court still does not balance the incredible harm still being done to the legal and undocumented Latino community by the continuing aggressive and race based immigration enforcement only program the Obama administration continues to employ. Only when Driving While Hispanic is an historical footnote will the Latino vote be satisfied that America has lived up to her true potential.

Understanding the Injustice that is the Widow Penalty?


Many of you may have seen a 60 Minutes report on what is being called the Widow Penalty. The following gives some background into the immigration process and how the widow penalty comes into play.

When a U.S. citizen marries a non-citizen, the citizen is able to file a petition for that non-citizen to receive “immediate relative” status and be processed for permanent resident (green card) status. The immigration process always takes many months to complete. First, the couple files the necessary paperwork, and then waits patiently for the government to process the application. Generally during the processing the non-citizen spouse will receive work authorization and travel permission. Then, if an applicant is given resident status prior to the second wedding anniversary, the permanent resident status is called “conditional” and referred to as “Conditional Permanent Resident” (CPR) status. This status is generally the same as permanent resident status, with the condition that the couple files a form (I-751) after two years to show the continuing validity of the marriage in order to have the condition removed. If the marriage has ended for some reason before filing the I-751, the CPR can file the I-751 alone and submit evidence proving that the marriage was: terminated through divorce but was entered into in good faith; show abuse; or inform USCIS that the citizen spouse has died. This is the case even if the marriage never reached the two year mark.

Where does the “widow penalty” come in? The widow penalty comes into play when the citizen spouse dies before being married for two years, or before USCIS adjudicates the applications? The government takes the position that if the death occurs before the government acts on the couple’s applications (CPR status), even if the marriage is one day short of the two year wedding anniversary, the application can be denied because the applicant is no longer a “spouse.” This makes no sense because in a case that sees quick adjudication to CPR status, the government allows the CPR to file to remove the condition despite the death, even if the marriage only lasted a short time after CPR status was obtained. In a nutshell, the non-citizen spouse is unfairly penalized because his or her spouse died before the notoriously slow government could timely adjudicate their petitions. This unfair distinction drawn by the government has given rise to litigation striving to end the widow penalty in several circuit courts and seems destined for the U.S. Supreme Court.

For more information on the widow penalty, including current litigation and how to get involved in stopping the government from applying their incorrect and unjust interpretation of the law, please visit ssad.org.

Immigration Checks at Local Jails. What Does this Mean?


According to recent reports, the Obama administration is expanding a program that was initiated by President Bush designed to check the immigration status of virtually any person booked into local jails. This crackdown on illegal immigrants who commit criminal offenses illustrates Homeland Security Secretary, Janet Napolitano’s commitment to focus enforcement measures on immigrants who commit criminal offenses, as opposed to those who are merely here in the United States illegally, but are otherwise abiding by the laws of this country.

My three cents…First, the program will unfortunately lead to immigration detention of foreign nationals who commit such grave offenses (said in a sarcastic tone) as speeding or driving without a license. Once arrested on these minor offenses, the local jail will necessarily perform a background check and determine that the person may not have status and then pass along the information to Immigration and Customs Enforcement and place the person in removal proceedings. It seems to me that the net is cast far to broad, and the program should focus on serious offenders. This leads me to my second impression…

Second, further implementation of this program will lead to overburdening of the court system – potentially the straw that broke the camel’s back. Currently in the Atlanta, Georgia immigration court, final hearings are set for individuals nearly two years down the road because the court’s dockets are so crowded. If illegal immigrants are detained by Immigration and Customs Enforcement officials and put in removal proceedings with more frequency, the courts and judges will be overwhelmed, and adjudication of cases – and justice will be delayed.

Third, I think that this helps set the table for comprehensive immigration reform. Clearly President Obama would be unable to garner support for reform without enforcement being a focus. Essentially what Obama is doing is appeasing or gaining the favor of the hesitant, or anti-immigrant folks by sensibly focusing on enforcement prior to initiating a path to legalization. There is simply no way reform would pass without a step up in enforcement and Obama clearly recognizes this. What appears to be a sign that things are getting even tougher for immigrants, in reality this is likely another sign that reform is on the horizon. Stay positive.

The H-1B and L-1 Visas – the Attacks Continue!


It seems unrelenting these days. Attacks by anti-immigrationists on the two of the most useful non-immigrant visa categories, the H-1B and L-1 visas. The most recent attacks are based either on junk science or no science at all. Recently we received at the AILA National Office a letter from Professor Ray Marshall. AILA had issued a statement critical of the AFL endorsed Ray Marshall “plan” regarding immigration reform. This “plan” was highly supportive of the destructive Grassley-Durbin Anti-H-1B legislation. We were critical of this “plan” (and the Grassley-Durbin legislative proposal) because both the plan and the legislation are without merit and based on a lack of understanding of how our current employment based non-immigrant and immigration system currently works, what motivates employers to use the H-1B and L-1programs, and the tremendous historic and future benefits of these program.

A key part of Mr. Marshall’s letter reads as follows:

“Although we have grossly inadequate data about the H-1B and L-1 Visa programs, the data we do have clearly support the conclusion that these programs are used to displace U.S. workers and suppress their wages. Moreover, little or nothing is done to to ensure that these visas are used to import workers to fill real labor shortages–which, unlike the current system, would indeed strengthen the competitiveness of the American economy and promote broadly shared prosperity. Indeed, we have no reliable information about how many workers there are (estimates vary between 600,000 and 800,000, where and under what conditions they are employed, or how their numbers relate to total employment in the occupations where they are employed. These programs also do not have adequate safeguards to protect domestic or the foreign indentured workers from abuses. The recommendations inImmigration for Share Prosperity: A Framework for Comprehensive Reform are designed to address these defects. In addition to the provisions of the Durbin-Grassley bill, we need realistic, objective prevailing wage standards that will prevent these programs from being used to suppress the wages of American workers. Supporters often argue that the H-1B program is needed to attract the “best and the brightest” foreign workers, but the evidence shows that most of the foreign workers are hired for entry-level positions for which there do not appear to be shortages of qualified American workers. The H-1B and L-1 programs clearly need much better data and transparency to enable more effective evaluations of their impacts.It also is hard to see why a regular job, which most of those held by H-1Bs appear to be, should be held by “temporary” visa holders indentured for 3, 6, or even 10 years. If there are validated shortages of workers for regular jobs that cannot be filled at market wages with qualified U.S. residents, it would be better to fill them with immigrants with full legal rights, including the right to earn citizenship.” (emphasis added).

The stunning breath of ignorance of how the H-1B and L-1 programs operate and are used by U.S. employers is only matched by Professor Marshall ’s own acknowledgement that he has no evidence to support his non-peer reviewed conclusions. A formal response to Professor Marshall has been sent, but it is important that we all realize that those who understand and support these vital U.S. non-immigrant visa programs voice must not only voice our support, but provide the evidence to back it up.

Our exceptional Business Immigration Committee worked on a substantive response to Professor Marshall’s letter, with the lead taken by our Past President Ted Ruthizer. A key part of our response reads:

For starters, the H-1B status and its predecessor H-1 status have been a valuable part of our immigration system for almost 60 years, and the L-1 status for almost 40. And you might be surprised to learn that most economists who have studied these provisions disagree with you that H-1B professionals are hurting the American economy and the American worker. Rather, the vast majority of economists and business leaders who have looked at this issue, including Alan Greenspan, Jagdish Bhagwati, Nobel prize winning economist Gary Becker, Jack Welch, Michael Bloomberg, and Bill Gates are convinced that H-1B professionals (they’re not “guest workers” and they’re hardly “indentured” as you refer to them) have increased employment opportunities for all Americans, and their creativity and knowledge have furthered our national interest.

Here are additional points not mentioned in you letter that are worth noting. H-1Bs are designed for professionals, not for low level unskilled workers. Professor Richard Florida recently reported, “For management and business occupations – including hard-fit financial jobs – overall the unemployment rate is 4.0 percent; and for professional and technical occupations, it remains less than four percent (3.6 percent). . . .

Of grave concern is that three times in your letter you say you really do not have data to back up your conclusions. More importantly, the studies you cite to have not been peer reviewed and have not been subject to critical analysis. Surely you are aware as an academic that without reliable data, it’s rash and unfounded for you to condemn the entire H-1B program, particularly when the benefits of the H-1B status are so strong. These benefits are not just intangibly based on opinion. Peer-reviewed studies, such as those conducted by Vivek Wadhwa, Executive in Residence, Pratt School of Engineering, Duke University, support the conclusion that the H-1B visa programs are good for America.

A couple of other important points you failed to note: H-1B professionals aren’t just computer scientists. They are also physicists, mathematicians, financial analysts, lawyers, economists, teachers, physicians serving in health professional shortage areas, and, like you, professors at virtually all American colleges and universities. Most of these H-1Bs aren’t recent arrivals. They are products of our finest universities, including your University of Texas.

The good news is that there are numerous studies coming out virtually every day with positive, enforcing data on the importance of the H-1b program. These studies will continue to come because business and academia understand the importance of these visa categories, and the need to vocally oppose these anti-immigrationists.

There is much more to our response to Professor Marshall, which you can read on AILA Infonet. But, this much you need to know. The gloves are off. The attacks on important and vital parts of our immigration system are underway. The anti-immigrationists know they cannot stop positive, effective immigration reform from happening, but they still think they can structure the updated immigration system in a way that still achieves their vision of restrictive immigration and a limited ability of American employers to hire the workers they want and need to thrive in an recovering economy.

Female Genital Mutilation – A Basis for Asylum


After I got my undergraduate degree from the University of North Carolina at Chapel Hill I had no idea what I was going to do with my life. I moved to San Diego, learned how to surf and worked with the San Diego Counsel on Literacy. While I was in San Diego I heard the executive director of the Tahirih Justice Center, Layli Miller-Muro, talk about applying for asylum based on female genital mutilation at the San Diego Baha’i Center.

Now, prior to this talk I had no idea what asylum or female genital mutilation was all about. But after Layli was done talking about it I could not believe what I was hearing was actually true and that it went on in certain parts of the world.

Female genital mutilation (FGM) is the removal of part, or all, of the female genitalia. FGM may refer to clitoridectomy (removal of the clitoris), excision (removal of the labia minora), or infibulation (removal of the clitoris, labia minora and majora, and stitching together). The procedure is usually performed in unsanitary conditions, using objects like broken glass, tin can lids, blunt knives, scissors, or razors. Victims are not given anesthesia or antibiotics and rarely have access to medical treatment. Infibulated women have their entire external genitalia cut, scraped, or burned out. The subsequent raw wound is stitched together with cat or lamb intestines or thorns, leaving a small opening for the passage of menstrual flow. The girl’s legs are bound together for up to two months, immobilizing her while the wound heals over.

FGM is done as a traditional ritual signifying the acceptance of a woman into society and establishes her eligibility for marriage. It is believed to inspire submissiveness in young women. Reasons given for FGM range from beliefs that touching the clitoris will kill a baby during childbirth, to hygenic reasons, to enhancing fertility and ensuring chastity. In many societies, an important reason given for FGM is the belief that it reduces a woman’s desire for sex, therefore reducing the chance of sex outside marriage. In FGM-practicing societies it is extremely difficult, if not impossible, for a woman to marry if she has not undergone mutilation. Marriage is often the only role available for women in FGM-practicing societies because they receive little education and are discouraged from pursuing a profession. In the case of infibulation, a woman is “sewn up” and “opened” only for her husband. Restricting women’s sexuality is vital because the honour of the whole family is seen to be dependent on it.

That seemed like the most awful thing I had ever heard. At that moment in time I was so grateful to have been born in a country that did not practice FGM and so proud that my country had an official policy to help women who were in this predicament. The United States is obligated under international law to prevent, investigate, and punish such violence against women. The UN Declaration on the Elimination of Violence Against Women recognizes that violence against women not only deprives them of their civil and political rights, but also their social and economic rights, saying that, “the underlying structural consequences of these forms of gender-based violence help to maintain women in their subordinate roles, contribute to their low level of participation and to their lower level of education, skills, and work opportunities.” The Declaration provides that states should not invoke any custom, tradition, or religious consideration to avoid their obligation to eliminate violence against women, and that they must exhibit due diligence in investigating and imposing penalties for violence, and establishing effective protective measures.

I had a young woman walk into my office today from a country that practices FGM. She came here as a student but has been told by her family that when she goes home she is to undergo this ritual as part of her marriage ceremony. After we talked about the horror of this procedure we just started laughing because of how awful and ridiculous this procedure seemed to us. It was either laughing or crying…and we preferred laughing. I told her that there was no way she was going home to face this. International and U.S. law would afford her the right to stay in this country. All we had to do was fill out the paperwork and send in all of the supporting documents to immigration.

There are days when I absolutely LOVE my job. I love what I do and I love the people that my profession allows me to help. Today is one of those days. And again, I find myself feeling grateful.

Take this Immigration Quiz!


Admit it. Every now and then you veg out in front of the computer cruising the Internet. At least I do. Tonight was just such a night. But I ran into this immigration quiz. The purpose of this quiz is to point out how far we have come, or perhaps how far we have not come in our understanding of immigration. Go ahead, take the quiz!

287(g) – Highly Flawed in North Carolina


In his article posted March 26th, 2009, Gregory Weeks of the News and Observer points out a lot of the flaws with the current implementation of the 287 (g) program here in North Carolina.

“The program sounded very good on paper. According to U.S. Immigration and Customs Enforcement (ICE), the purpose of 287(g) authority is to identify undocumented immigrants who commit “violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering.”

In other words, we want to find the very worst offenders, get them off our streets and then out of the country once they have served their time. If done properly, this protects everyone from serious predators.

In 2006, Sheriff Jim Pendergraph made Mecklenburg County the first sheriff’s office on the East Coast to provide local law enforcement with 287(g) authority through ICE. There are a total of eight agreements across the state today.

From the beginning, doubts were raised about the program. Latino communities across the state repeatedly expressed concern that they would become targets. The way someone looks or speaks could easily become an excuse for detaining him.

This type of racial profiling could severely damage the relationship between Latinos and the police. Fears about deportation could lead undocumented immigrants to avoid the police even when they were the victim of or witness to a crime.

The bad news is that these concerns have been borne out. The Government Accountability Office of the Congress reported recently that many people were being apprehended for minor offenses such as speeding.

As the GAO notes, the emphasis on minor offenses has indeed left many community members fearful of intimidation. “Driving while brown” is an increasingly common phrase.

There is credible evidence of that occurring. A Mecklenburg sheriff’s office report on arrests until the beginning of March notes that about 6,000 individuals were identified as undocumented immigrants and subjected to deportation proceedings. Only 2,029 of these were detained for felonies or DWIs — more serious crimes — while more than 1,700 were arrested for traffic offenses.

There are other problems with the current 287(g) program. The GAO report indicated that there is virtually no oversight and no way for arrest data to be collected and analyzed, even though the number of local governments using the program has continued to grow.

In addition, there is the purely practical matter that ICE lacks the facilities to process all the immigrants going through the system. It has actually released people arrested for minor offenses due to lack of space.

Closer to home, a February 2009 study by the American Civil Liberties Union and the Immigration and Human Rights Policy Clinic at UNC-Chapel Hill explains in detail how the program in North Carolina fails to adhere to its own legally defined standards.

As part of the Memorandum of Agreement signed with the federal government, local law enforcement is required to implement complaint mechanisms, publicize officials’ functions, outline how certification takes place, provide for interpreters, create a steering committee and even allow for modification of the memorandum itself with public input.

None of these has taken place in North Carolina.

The good news is that all of these problems do not mean that the program should be rejected entirely. The goal of finding criminals is a worthy one. Instead, we need to recognize that the program is not functioning properly and cannot continue in its present form. With careful work the 287(g) program can be repaired.

Participating law enforcement should coordinate with ICE to clearly define which criminal offenses are covered under the program, expand oversight, increase transparency and create formal links with the Latino community as a way to foster continuous dialogue.

The public has a right to know exactly who is being detained, why they were arrested and exactly what to do if someone needs to lodge a complaint.

This will be no easy task. The 287(g) program exists largely because of failure. Local governments have felt the need to take the initiative because Congress has proved unable to pass immigration reform. Police officers and sheriff’s deputies are now expected to learn and enforce immigration law, something far beyond their regular duties.

But positive change is possible. A spirit of cooperation and a public commitment to improvement would be an important step in the right direction.”

Why Don’t You Come Legally – the Immigrant Visa Disaster


Okay, we all know there are no visas available until October 1, 2009 for any third preference employments immigrant. It stinks. It makes no sense in how we grow the economy and bring in “legal” workers. And, we know there is a 5-9 year wait in this category.

We know that there are between 8-50 year waits for the assortment of family based immigrant visas (do the math for Mexican Brothers and Sisters–its not pretty). But we resign ourselves to fixing this disastrous, undocumented immigration causing problem as part of CIR.

But, in today’s Visa Bulletin we get this terrific surprise. India EB-2 has retrogressed to January 2000!

What the Heck? You mean if I am from India, and I have an ADVANCED DEGREE, and my work is in the NATIONAL INTEREST, that I have to wait 9 YEARS before I can even apply for permanent residence? No wonder these advanced degree, economy growing, job creating immigrants are deciding to go home. Vivek Wadwha, whom AILA is honoring with its Media Leadership Award at our Annual Conference, published an excellent study on the Brain Drain FROM the U.S. Foreign students who study and graduate from here with Master’s Degree and Ph.Ds are going back home to India. This is not good for America. This is not good for job creation. This is not good for our economy.

ICE and Ankle Bracelets – Better than No Detention at All?

Thursday, May 7th, 2009

ICE DRO (Detention and Removal Officers) were trolling the Immigration Courtrooms this week in Atlanta looking for respondents who were appearing for their hearings, but whom had previously not been detained by ICE, and thus had no bond or restraints on their liberty. You ask, what would ICE be doing looking for people who actually appeared at their immigration court hearing? They would slap Ankle Bracelets on them!

Yes, you heard me right. The people MOST likely to appear for future hearings are being placed under ICE supervision, restraining their liberty AND costing the American Taxpayers X dollars a day. Lest you think this is ridiculous, read this next part. Apparently, ICE in Atlanta (other cities have reported this same type of activity) have contracted with a private company to supply the “anklets” and to do the monitoring! And you thought outsourcing ended with the Bush Administration!

The officer administering the program (who was very polite and respectful) told one of our members in Atlanta that this programtargets non-lawful permanent residents, who do not have a bond (e.g., were free), and are in pre-final order status (in removal proceedings), even those with no criminal history and with relief available.

Now, here is the kicker. The program only works within about 50 miles from Atlanta, so respondents who live outside that radius are not tagged with the “anklet.” While there are certainly (somewhere) more ridiculous, outrageous and stupid programs out there, this new “ankle bracelet” monitoring program of people actually showing up for their hears is more than wasteful, it is inhumane and demeaning.

Secretary Napolitano, do you know about this? Mr. Morton, do you know about this? Don’t you think that limiting the freedom of and spending money to monitor people who actually show up to immigration court is nothing short of stupid?