Musings on Immigration

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What a Good Legal Immigration Reform Bill Looks Like--Thank you Senator Hatch

Yesterday we focused on the shortcomings of the "Gang of 8's" Four Pillars of Immigration Reform.  Let's take a look now at Utah Senator Orrin Hatch's new Immigration Innovation Act of 2013 or "I-Squared Act of 2013 (S.169) (now that a catchy little ditty of a title, no?)  Frankly, this is exactly what an immigration reform bill should look like if it is serious about making America competitive into the 21st century.  Senator Hatch's office released a summary, which I have paraphrased:

Employment-Based Nonimmigrant H-1B Visas

This bill Increases H-1B cap from 65,000 to 115,000 immediately. And, it establishes a market-based H-1B escalator, so that the cap can adjust — up or down — to the demands of the economy (includes a 300,000 ceiling on the ability of the escalator to move):

  •  If the cap is hit in the first 45 days when petitions may be filed, an additional 20,000 H-1B visas will be made available immediately.
  • If the cap is hit in the first 60 days when petitions may be filed, an additional 15,000 H-1B visas will be made available immediately.
  • If the cap is hit in the first 90 days when petitions may be filed, an additional 10,000 H-1B visas will be made available immediately.
  • If the cap is hit during the 185-day period ending on the 275th day on which petitions may be filed, and additional 5,000 H-1B will be made available immediately.
The bill also uncaps the existing U.S. advanced degree exemption (currently limited to 20,000 per year) and authorizes employment for dependent spouses of H-1B visa holders.

Further, the bill increases portability of high skilled foreign workers by:

  • Removing impediments and costs of changing employers;
  • Establishes a clear transition period for foreign workers as they change jobs; and,
  • Restores visa revalidation for E, H, L, O, and P nonimmigrant visa categories in the United States, which was taken away after the events of 9/11.  
Student Visas

This bill allows dual intent for foreign students at U.S. colleges and universities to provide the certainty they need to ensure their future in the United States. This will make securing a student visa much easier, which is good news for our economy and our universities.  

Immigrant Visas and Green Cards

The bill enables the recapture of green card numbers that were approved by Congress in previous years but were not used.  This has been a huge problem in the last decade, and will substantially lessen the waiting period for immigrants currently in the proverbial "line."

Even more importantly, the bill exempts certain categories of persons from the employment-based green card cap:

  •          Dependents of employment-based immigrant visa recipients
  •          U.S. STEM advance degree holders
  •          Persons with extraordinary ability; and
  •          Outstanding professors and researchers
Further, the bill provides for the roll-over of unused employment-based immigrant visa numbers to the following fiscal year so future visas are not lost due to bureaucratic delays
Eliminates annual per-country limits for employment based visa petitioners and adjust per-country caps for family-based immigrant visas

U.S. STEM Education & Worker Retraining Initiative

Finally, the bill increases the fees on H-1B visas and employment-based green cards and uses the money from these increased fees to fund a grant program to promote STEM education and worker retraining to be administered by the states.

Frankly speaking, other than the increase in fees, which can be somewhat justified, there is absolutely nothing wrong with this bill. While it has zero chance of passing on its own (although a straight up or down vote would likely lead to immediate passage), I believe the concepts and ideas found in this bill could very well be incorporated into the "Gang of 8" proposal, which will be the principle vehicle for moving immigration reform legislation in the Senate.    Let's congratulate Senator Hatch for his work on this bill and for leading the way on fixing a broken legal immigration system.  

Why The "Gang of 8" Immigration Proposal is Not Immigration Reform

There has been much made of the Immigration Reform Proposal put forward by the "Gang of 8," a bi-partisan group of Senators seeking to "solve" the immigration problem in which we find ourselves. President Obama says he support most of these principles.   But the solution proposed by these well-meaning Senators will not really fix our Immigration System, and this solution may very well make our immigration problems worse.

The "Gang of 8" is made up of Sens. John McCain (R-Ariz.), Chuck Schumer (D-N.Y.) (Richard Durbin (D-Ill.), Robert Menendez (D-N.J.), Michael Bennet (D-Colo.), Lindsey Graham (R-S.C.), Marco Rubio (R-Fla.) and Jeff Flake (R-Ariz.).  Potentially there is some really good immigration reform proposal that could come from these specific Senators.  What most folks don't realize is that the "Gang of 8" has NOT introduced any actual legislation!  All we have so far is an "outline" of what they believe an immigration bill should do.  These good Senators propose a plan based upon four "Pillars:"
  1. Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;
  2. Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;
  3. Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,
  4. Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.
The first Pillar contains the backbone of a legalization and border security plan intertwined together in such a way, and with such a lack of detail, that it is entirely possible to read the provisions of the first Pillar and conclude that it is likely that any permanent solution to the undocumented situation could take decades to complete.   The first Pillar also includes a separate Agricultural worker "path to citizenship," without any definition as to what that might be.  The first Pillar requires that any movement toward temporary legalization of the undocumented only start after a commission made up of elected politicians from the Southwestern Border states (perhaps these Senators have forgotten that Canada is not yet part of the U.S.),  advises on when and how the border is secure.  Another ill-conceived, but long sought after provision of the first Pillar is that of implementing the now infamous Exit/Entry Control system, seeking to ensure there are no visa overstayers in the U.S.   (yeah right, let's see the funding for that one) Finally, the first Pillar completely ignores the DREAM act, and basically says to these kids who are in every way, except birth, Americans, you have to get to the back of the line too, even though it was not your fault you are here.   Each of these provisions of the first Pillar create an untenable and remarkably unworkable fix. What is clear from the first Pillar is that you cannot please all of the people all of the time.

The second Pillar, which focuses on making our legal immigration system what it needs to be to reunite families and assist in growing the American economy, is perhaps the easiest part of the overall plan.  The provisions of this Pillar calls for increasing the number of family and employment based immigrant visas (this is LONG overdue), and creates a separate path for permanent residence for those who graduate with PhD and Master's degrees in STEM fields.    There is no mention of what those new numbers should be, or how long a wait is too long.  There is NO talk of fixing our broken non-immigrant visa system, increasing H-1Bs visas, getting USCIS in line on crazy RFEs on L-1s, and securing an investor visa system that works for entrepreneurs  investors and America.  

The third Pillar calls for "strong employment verification."  Basically, every employer in America will have to use E-Verify.  Period.  To Congress, this is simple. To employers, its another burden and unfunded mandate. While many employers are willing to trade this effort for access to workers when they need them, they are not aware that the fourth Pillar does NOT get them those workers!

The fourth Pillar admits new lesser skilled workers and "protects workers rights."   Supposedly.  The Gang of 8 is going to make American employers demonstrate that they have recruited for open positions before hiring an non-immigrant, something which is in place now. SO basically, they are reiterating that they will make the current H-2A (agricultural workers) and H-2B (non-agricultural workers) more usable, without saying how that is going to happen with an Obama administration Department of Labor which has consistently made these visas harder for employers, not easier.  

What we see from the Four Pillars of immigration reform from the Gang of 8 is NOT the Pillars that will fix our broken immigration system, assist in growing our economy or secure America into the future.  Rather, we see the elected politicians trying to kowtow to the same old anti-immigration restrictionists.  These are NOT bold ideas.  These Pillars are retreads, ready to blow up on the first big pothole they hit.

Where are the provisions fixing our immigration system? Where is the provision eliminating the 3 and 10 year, and permanent bars?  Where is the provision restoring discretion to our immigration judges? Where is the provision raising the artificial quota on the H-1B visa? Where is the provision creating an Entrepreneur visa?  Where is the provision eliminating per country quotas?  I could go on for pages like this, but you get the idea.  

Word on the street is that a bi-partisan group in the House of Representatives is drafting a bill and will have it introduced before the State of the Union Speech in two weeks.  We will see if our Congressman are better suited to lead here than our Senators.  If they all fail to lead out, President Obama says he will send his bill up to Capitol Hill and demand a vote on it.  But, oh Mr. President, why didn't you do that four years ago, and what will your bill say?

I hold out great hope we will have immigration reform this year, I just hope it is an immigration reform we can be proud of.  A reform that will make America strong long into the 21st century.  We deserve that much.

With Momentum Building for Immigration Reform, the Time to Prepare is Now!

Many people have been patiently awaiting comprehensive immigration reform for many years.  They have been lulled to sleep by legislative inactivity, politicians’ broken promises, political posturing, and constant baseless rumors of change that have given rise to hopes that come crashing down time and time again when nothing comes to fruition. 
To those that have been lulled to sleep, it is time to wake up!  I know you have been duped into thinking things would change in the past, but now, more than ever, there is real reason to believe that reform is coming!  Don’t be caught sleeping when the laws change.  Be prepared.
There are several key things that you can do to prepare for changes to come.  Though nobody really knows what exactly reform will look like, there are several common-sense things that you can do to get ready:
·        Meet with a reputable immigration attorney NOW.  When you consult with us, we will take down your information on our intake sheets.  We will get all pertinent information, and once the law changes, we will be able to review our notes and tell you exactly how the change in law affects you.  Schedule a consultation!
·        Review any criminal convictions.  There are many criminal convictions that will more than likely make a person ineligible to take advantage of immigration reform.  Some of these convictions are counterintuitive.  You need to speak with an immigration attorney, and review your dispositions with them to determine whether you should see a criminal attorney to fix any criminal convictions.  Please note that it does not necessarily matter that you may have paid all fines, served probations, or had convictions expunged.  If you have ever been convicted of any crime, review this with your attorney.
·        Gather your documents.  You will likely be required to prove the amount of time you have in the United States, and any familial ties to this country.  Gather documents such as: tax returns; birth certificates; rental agreements; receipts; bank statements; school records; and medical records.  This will put you ahead of the game if you have already taken the time to get this information together.
·        Get a tax identification number (TIN).  If you have not already done so, contact the IRS and get your TIN so that you can file your taxes every year.  The government will likely require at least some proof of tax filing to take advantage of any changes in immigration law.  Everyone can and should do this.
·        Save your money.  The government is no doubt going to charge high filing fees for whatever applications are required.  You might also be charged a fine for unlawful presence as part of the process.  Start saving now so that you don’t have to delay your filing when the time comes.
Get started now.  If you wait, the line will be very long by the time you apply to take advantage of whatever reform is headed your way.  Finally, a word of caution: Beware of notarios, neighbors, and inexperienced attorneys.  As reform is revealed, there will be many unauthorized and inexperienced people, some with ill intentions, who will come out of the woodwork with offers to help.  Trust only experienced immigration attorneys, like the attorneys at Kuck Immigration Partners with your future.

Don’t Forget Immigrant Entrepreneurs in Immigration Reform

The attributes that motivate an immigrant to leave behind the familiar surroundings of home and pursue a better life in another country, often at considerable risk of personal loss, are akin to the attributes of an entrepreneur who takes the initiative to pursue new business ventures, often at considerable risk of financial loss.  Stated another way--immigration is an entrepreneurial act.

It is therefore not surprising that immigrants to the United States and their children have made some of the most significant contributions to the U.S. economy.  Consider these findings from a recent report published by the Partnership for a New American Economy:
  • More than 40% of the 2010 Fortune 500 companies were founded by immigrants or their children.
  •  Fortune 500 companies founded by immigrants or children of immigrants employed more than 10 million people worldwide.
  • The Fortune 500 companies that boast immigrant or children-of-immigrant founders have combined revenues of $4.2 trillion – a figure greater than the GDP of every country in the world except the U.S., China, and Japan.
  •  Seven of the ten most valuable brands in the world come from American companies founded by immigrants or children of immigrants.
Yet the outdated U.S. immigration system does not always welcome immigrant entrepreneurs with open arms and an efficient and predictable process for them and their families to attain lawful immigration status so they can focus on starting new companies and creating new jobs.  While there are temporary and permanent visas available to immigrant entrepreneurs (e.g., temporary visas for nationals of certain countries coming to the U.S. to engage in substantial trade or to make substantial investments [E1 or E2 visas, respectively]; and a permanent visa or so called “Green Card” for those who invest between $500,000 and $1 million in a new commercial enterprise that creates at least 10 full-time jobs [popularly known as EB-5]), the often cumbersome and time-consuming application process to obtain these visas, coupled with their demanding requirements and shifting and sometimes unpredictable adjudication standards, make pursuing these visas unpalatable for entrepreneurs who are accustomed to moving quickly and efficiently.

Fortunately, the U.S. government recognizes this problem and has started taking steps to make the system more entrepreneur-friendly.  U.S. Citizenship and Immigration Services (USCIS) has implemented the Entrepreneurs in Residence (EIR) program where real-world immigrant entrepreneurs advise USCIS about how entrepreneurs operate in the real world and how USCIS can make visa programs more entrepreneur-friendly.  It has also recently introduced an online resource called Entrepreneur Pathways: A Resource for Immigrant Entrepreneurs to help immigrant entrepreneurs navigate the complicated U.S. immigration system.

These are steps in the right direction, but more must be done.  As Congress engages in the much-needed process of overhauling and modernizing the country’s outdated and broken immigration system, one of the pillars of reform must address the immigrant entrepreneur.

The managing director of the Massachusetts Institute of Technology’s Martin Trust Center for MIT Entrepreneurship and a senior lecturer in the MIT Sloan School of Management recently shared in the Forbes Leadership Forum and the Huffington Post their observations about this problem and their ideas for how to address it.  These gentlemen, who teach an introductory entrepreneurship class at MIT, observe that U.S. immigration policy is killing entrepreneurship.  They note that if the three in 10 students at MIT, including four in 10 graduate students, who are not U.S. citizens or lawful permanent residents want to start their own company in the U.S., there are few viable options, if any, for them to do so and remain lawfully in the United States.  They astutely observe:  

Innovation-driven entrepreneurs are the engine of a vibrant economy. Their high levels of education and their pursuit of global markets and rapid expansion create jobs and economic prosperity. And many of them, such as these MIT students, were not born in the United States. There is a global competition to recruit this talent, and countries such as Canada, Singapore, and Australia have introduced policies that are far more welcoming than ours. Although strides have been made in retaining immigrant science, technology, engineering, and mathematics students, these measures are largely designed to let immigrants to fill jobs in existing companies. Would-be immigrant entrepreneurs still face major obstacles and uncertainty.

They recommend we consider three areas to make it easier for immigrant entrepreneurs to start American companies and create American jobs:
  1. Focus not just on skilled immigrants filling positions in existing companies, but also on immigrants who want to create new companies.
  2. Appreciate the talent of these entrepreneurs rather than making them feel like aliens.  (Unfortunately, I have found this is how many immigrants feel, regardless of their skill or talent level.)
  3. Shape the immigration laws, regulations, and application processes and procedures so they are more responsive to the needs of foreign talent in an increasingly competitive global market. 

The 21st century American economy needs a 21st Century immigration policy so that the U.S. has a competitive advantage, not disadvantage, in the global competition for talent.  As we move forward, we must include in our national discussion about immigration reform how our immigration policies can be adapted to be more responsive to the needs of immigrant entrepreneurs.

Immigration Reform, I Hope

"Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country" - President Obama, Inaugural Address, January 21, 2013.

In one simple and lofty sentence, President Obama made a commitment to make comprehensive immigration reform a priority.  Again.  He has enacted some positive measures on behalf of the immigration community.  He allowed ICE to use discretion to deport those that pose a real threat to American society.  He finally created a provisional waiver for families that have been truly afraid of not coming back to the United States if they leave for an immigrant visa interview abroad.  He created a program for the immigrant youth who were brought to the United States, through no fault of their own, to stay in the United States with a work permit, provided they contribute to American society.

However, as I've written in the past, President Obama has some dark blemishes on his record – mainly, hundreds of thousands of immigrants who were deported or forced to leave the United States.  The cost was unimaginable in terms of the fathers, mothers, sons, daughters, brothers, and sisters who were separated from loved ones.  

True, he is the executive branch, and has been sworn to execute and uphold the laws of the United States.  Accordingly, he must enforce immigration law.   Nevertheless, he did not fight for immigration reform during his first term.  He let that possibility evaporate in Congress, especially the Dream Act. 

However, he showed he intended for comprehensive immigration reform to be a major priority of his second term by promoting the few without congressional approval.  It appears the latino and immigrant electorate forgave him for his record.   After all, he was occupied with two wars, a free-falling economy, health care, and the rise of an obstructionist Tea Party.

Will he be able to deliver? Nobody knows.  What I do know is that there is a tangible discussion beginning on immigration reform.  Why?  Immigrants voted.  Latinos voted.  If there is no solution passed to address this broken system, the party that will be blamed has much to lose in the next election in two years and the presidential election in four years. 

I have been skeptical of any push for reform in the past ten years.  Last month, Congress failed to reauthorize the Violence Against Women’s Act bill.  Think about this – there are victims of domestic violence, who have been abused physically, sexually, emotionally, and psychologically – and Congress could not reauthorize this bill because political differences remained too great for compromise.  This is modern-day Washington.

Still, the president has a bully pulpit – and it appears he means to use it to get Congress to take action.  On January 21, 2013, the LA Times reported that David Axelrod, senior advisor to the president, that the “president will push forward with immigration reform early on – possibly as soon as the State of the Union speech in three weeks.” 

State of the Union speeches have sometimes captivated the American public.  Normally, they are long, drawn-out, and self-congratulatory.   Yet, this one should captivate every immigrant.  Surely, he will have more to say than one sentence about reform.   Surely, he will announce that it is time to invite every immigrant to be a full member of society, rather than a second-class citizen living in fear.  Surely, he will give hope.  I hope he can be audacious.  I hope.

The New Provisional Waiver--What it Means and Who Can Use It.

There is a great deal of confusion about the new provisional waiver regulation published by the Obama administration. Let's be clear, this new regulation is nothing more than a locational change in waiver processing, with the benefit being a much shorter separation time between loved ones. Now, let's get into the details!

What Does It Mean?

The waiver we are talking about is the waiver that is needed to be forgiven of the immigration offense of "unlawful presence."  Unlawful presence occurs when someone is not in lawful status in the United States, regardless of their mode of entry.  Typically, individuals who come into the US with a visa, retain a right to process for permanent residence in the United States, IF they are married to a U.S. Citizen, or have U.S. Citizens children over the age of 21.  Those individuals who entered the U.S. without inspection (those who came illegally), cannot obtain permanent residence in the United States, even if they are married to a US Citizen or have US Citizen children over the age of 21. These people must leave the U.S. and process for their permanent residence abroad.  But, as soon as they leave, because they have typically had more than one year of "unlawful presence (being illegal), they are then barred from returning to the United States for 10 years, as punishment for their unlawful entry and unlawful stay.  There is already in place a "waiver" or forgiveness of this ten year bar, but the waiver or forgiveness can only be obtained AFTER the person leaves the U.S.  This new regulation merely changes Where and When the waiver can be applied for.  It does NOT eliminate the need of the person to leave the United States to process for residence through their spouse.

Only certain relatives of US Citizens are eligible to apply for this provisional waiver.   At this time, the provisional unlawful presence waiver process will remain available only to individuals who are immediate relatives of U.S. citizens (i.e., spouses, children, and parents (if the U.S. citizen is at least 21 years of age)).

Who Can Use the New Waiver?

To use the new process, the eligible individual must be currently IN the United States.  The current centralized  waiver process (with U.S. processing) will remain in place for those who have already departed the United States.  This process is also not available to those who's interviews have already been set by DOS as of the date of publication of the final rule (likely January 3, 2013).  If the interview is scheduled AFTER that date, then the person is still eligible to process using the new system.

The new waiver process is for individuals who, when they depart, will be subject to the three and ten year bars.  The current law states that only individuals who have U.S. Citizens Spouses or Parents who will suffer
"Extreme Hardship" are eligible to be granted this waiver.  This standard has not been changed by the new regulations. Children are NOT qualifying relatives for purposes of the waiver of the three and ten year bars.  USCIS is open to considering expanding the provisional unlawful presence waiver process to include lawful permanent residents as qualifying relatives after USCIS has a better understanding of the impact of the provisional unlawful presence waiver process on agency resources and operations.

Individuals who are currently in removal proceedings are eligible for submitting the waiver, IF their removal proceedings have been administratively closed and not re-calendered at the time of filing of the waiver request.  Persons in this situation need to have their immigration court cases terminated or dismissed before leaving the US to avoid delays in returning at the consulate.  Supposedly, ICE will work with individuals and their attorneys to terminate deserving cases (that I will wait to give judgement on).

Individuals with final orders of removal are NOT eligible for this new program.

Simply put, the ONLY people eligible for this new waiver process are those who's only immigration problem is unlawful entry with unlawful presence.

How Does the New Waiver Process Work?

The filing fee for the new waiver process is the same as it is for the current waiver process, $585, plus an additional $85 for the biometrics fee.  USCIS will not accept a filing of the Form I-601A (the new form used to file for the waiver) until March 4, 2012, and it will only accept that form once the I-130 has been approved, and the National Visa Center has begun the process for consular processing, with the necessary initial fees paid by the applicant, evidenced by the Department of State Visa Processing Fee Receipt.

In this final rule, USCIS does not modify how it makes extreme hardship determinations or how it defines extreme hardship. Consistent with how USCIS currently makes extreme hardship determinations, USCIS will consider all factors and supporting evidence that an applicant submits with his or her provisional unlawful presence waiver application. USCIS also has included in the Form I-601A instructions examples of factors to help provisional unlawful presence waiver applicants understand what can be provided to establish the required extreme hardship to a U.S. citizen spouse or parent.

USCIS will not commit to a certain processing time for these waivers, which, in the grand scheme is not a big deal, since the applicant will be in the United States with their family, but experience suggests that a processing time of 60-120 would not be abnormal.

So there you have it.  A simplied description of what this new process is, and what it is not. If you think you qualify for this new process, contact us today at 404-816-8611 for an analysis of your case and your options.