Former President Trump Vows to Carry Out Massive Deportation if Re-elected

 

The 2024 United States presidential election will be held one year from now.  As the forerunner of the Republican presidential nomination, former President Donald Trump has shared his agenda for immigration policy.  Trump made some radical promises to conservative voters that have even surpassed himself.  The following are some of Trump's immigration policies as reported by the media recently:

• Conduct a "massive deportation" to remove hundreds of thousands of illegal immigrants.

• Sign an executive order to end birthright citizenship to children whose parents are not American citizens or legal residents.

• Continue to build and extend the border wall on the southern border.

• Limit political asylum to foreigners, and require them to wait for their hearings in Mexico.

• Give the National Guard and state officials the authority to arrest and deport immigrants living in the U.S. illegally. 

• Deny legal immigration based on the applicants' ideological beliefs, such as Marxists and communists.

• Halt refugee admissions from the Middle East.

• Expand the travel ban to bar the entry of citizens from certain countries, most of them majority Muslim or African.

• Revive Title 42 pandemic-era policy to expel migrants on public health grounds, including unaccompanied children.

As usual, Trump's rhetoric is characterized by intimidation and high-handed tactics.  However, many of Trump's bold promises may be appealing to his supporters but will not likely materialize because of legal, operational and humanitarian challenges. For example, the birthright citizenship has been guaranteed by the U.S. Constitution for decades.  To amend the Constitution would require a two-thirds majority vote in both Chambers of the Congress or by a constitutional convention called for by two-thirds of the State legislatures, both of which are extremely unlikely.  

Deporting hundreds of thousands of individuals would require tremendous amount of resources that our government simply does not have now.  Many illegal immigrants have already built a life here, and deporting them would mean taking away somebody's husband, wife, father, mother, etc. The humanitarian concerns and social issues involved would be difficult to justify.  Legally, his policies will certainly face tough legal challenges in court.

Immigration will likely continue to be a hot topic in the presidential debates. Despite the polarized positions of the political parties, most politicians agree that immigration reform is overdue.  For instance, we need a better system to attract and retain talent from other countries. It is hoped that these debates will result in a comprehensive immigration plan that is both fair and humane. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Biden's Immigration Plan has been Introduced by Congress

The U.S. Citizenship Act of 2021, a major policy initiative of President Biden, has been formally introduced in both the Senate and the House last week.  The full text of the proposal is 353 pages long.  It is a comprehensive plan that touches on all major aspects of the immigration system.  

The part about providing a path to citizenship for the undocumented gets most of the headline attention.  A good portion of the proposal is actually devoted to reform legal immigration. The following is a summary:  

• Recaptures from previous years unused immigrant visa numbers in both family-based and employment-based categories for current use.
• The number of immigrant visas allocated to immediate relatives from the previous year is no longer deducted from the annual visa quota.
• The annual cap of employment-based immigrant visas is increased from 140,000 to 170,000.
• Reclassify spouses and minor children of lawful permanent residents as immediate relatives (thus making them no longer subject to the annual visa cap).
• Spouses and children will no longer be counted against employment-based numerical limits in the employment-based visa categories (thus indirectly increasing the number of employment-based immigrant visas by a few multiples) . 
• The current per-county limit of immigrant visa allocation will be raised from 7% to 20%.
• Cancel the 3-year and 10-year bars for individuals who have been unlawfully present in the U.S.
• Death of the petitioner or a principal applicant will no longer terminate the related immigration petition.
• Fiancés of U.S. citizens and their children will be allowed to apply for adjustment of status without going through the K-1 visa or immigrant visa.   K-2 children will no longer age out.
• An immigrant visa applicant will retain the earliest priority date of any petition, regardless of the visa categories. Hence, an employment-based applicant may retain the priority date of a previously-filed family visa petition.  
• Graduates of accredited U.S. PhD programs in STEM fields will no longer be subject to the employment-based immigrant visa limits, making visa numbers immediately available to them. 
• Similarly, applicants and their dependents with approved I-140 petitions with priority dates older than 10 years will no longer be subject to the employment-based immigrant visa limits, thus making green cards immediately available to them.
• AC-21 one-year extension will be extended to other visa categories (F-1, O-1, L-1) once their labor application or I-140 petition has been pending for 365 days or longer.
• An additional 30,000 employment-based immigrant visa numbers will be allocated to the EB-3 Other Worker category (unskilled workers with less than 2 years training, education, or experience). 
• DHS is allowed to allocate H-1B visas based on the level of wages offered by employers. (Similar to Trump's wage ranking rule).
• The F-1 visa will be converted to be a “dual-intent” nonimmigrant visa category (and hence F-1 students will no longer be required to prove intention to return home.)
• Allow H-1B workers to extend status beyond the normal six-year limit until their adjustment of status (I-485) has been processed in the EB-1, EB-2, or EB-3 category.  H-4 children will not age out if H-4 status was initially granted before the age of 18.  A child's age in EB categories is frozen on the date when the labor application or I-140 petition was filed. 

It is important not to rely on the details of this initial proposal yet.  The Senate and the House must first agree on a final version before it can be sent to the President for signature.  Due to the controversial nature of immigration issues, extensive debates and compromises are expected before a final version can be agreed on. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Biden's Aggressive Plan for Path to Citizenship for Undocumented Immigrants

Even before taking office, the Biden administration already unveiled a plan aimed at legalizing the undocumented immigrants in the United States. 

The details of Biden's plan have not been released yet. Broadly speaking, it proposes granting the over 11 million undocumented immigrants permanent residence. The path to citizenship would also be shortened to eight years: permanent residence eligibility would be after 5 years and citizenship eligibility after 3 years. 

Essential workers in particular who provided valuable services during the pandemic would be granted permanent residence. Additionally, those with Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) would be able to gain permanent residence and later citizenship. Biden has stated that he intends to not only restore DACA but also ask Congress to make it permanent. The President and his Vice President have also denounced the treatment of asylum seekers at the border. Policies such as making asylum seekers wait in Mexico while their case is processing are expected to be abolished. 

In order for the undocumented immigrants to obtain legal status under the Biden proposal, they would be required to pay taxes, pass background checks and to pay fines. Individuals with a criminal background would not be eligible. Biden also requires them to be living in the US as of January 1, 2021. 

Biden's bold immigration plan will likely be challenged by the divided Congress.  It would be difficult to get enough support from Congressional members to pass such an ambitious bill. Compromises will likely be made by toning it down to appeal to more Republicans  so that it can be passed.  Still, by aiming high, Biden has made it clear that immigration reform will be a major focus of his administration from the beginning. 

President-elect Joe Biden's Immigration Policies

President-elect Joe Biden has announced his immigration policies, which are markedly and expectedly different from those of President Trump.  According to their website information,  the following are some of the actions that the Biden Administration will take on immigration in the first 100 days of Biden's presidency:

Highly-Skilled Workers: Work with Congress to first reform temporary visas to establish a wage-based allocation process and enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages. Then, support expansion of the number of high-skilled visas and eliminate the limits on employment-based visas by country, which create unacceptably long backlogs. 

Family-based Immigration:  Allow any approved family-based applicant to receive a temporary non-immigrant visa until the permanent visa is processed; support legislation that treats the spouse and children of green card holders as immediate relatives (exempting them from caps).  Allow parents to bring their minor children with them at the time that they immigrate. 

Employment-based Immigration: Work with Congress to increase the number of visas awarded for permanent, employment-based immigration and promote mechanisms to temporarily reduce the number of visas during times of high U.S. unemployment. Exempt from any cap recent graduates of PhD programs in STEM fields in the U.S. who are poised to make some of the most important contributions to the world economy. 

Naturalization:  Restore and streamline the naturalization process for green card holders to ensure applications are processed quickly. Reject the imposition of unreasonable fees. Devote resources to prioritize integration and promote immigrant entrepreneurship, increase access to language instruction, and promote civil engagement. 

Undocumented Immigrants:  Commit political capital to deliver legislative immigration reform to provide a roadmap to citizenship for nearly 11 million undocumented immigrants. 

Border: Immediately reverse the Trump Administration’s policies of separating parents from their children at the border and prioritize the reunification of any children still separated from their families. End prolonged detention. Stop building of the U.S.-Mexican border wall. 

Asylum: End Trump’s restrictive asylum policies regarding victims of gang and domestic violence,  systematic prosecution of adult asylum seekers for misdemeanor illegal entry, the ability of members of the LGBTQ community to seek asylum, claims based on members of a “particular social group", limitation of number asylum applications, etc.  Facilitate humanitarian resources from faith-based shelters, non-governmental aid organizations, legal non-profits, and refugee assistance agencies. 

Public Charge Rule:  Reverse Trump’s public charge rule. 

DACA/Dreamers:  Reinstate the DACA program and explore all legal options to protect DACA families from inhumane separation. Allow Dreamers to receive federal student aid (loans, Pell grants) and seek education opportunities. 

Travel Bans:  End the travel and refugee bans against Muslims.

TPS/DED:  Protect TPS and Deferred Enforced Departure (DED) holders from being returned to countries that are unsafe.  Offer a path to citizenship through legislative immigration reform to TPS/DED holders who have been in the US for an extended period of time 

Enforcement of Immigration Laws:  Target people who committed serious offences and those who are threats to public safety and national security. ICE and CBP will report directly to the President. 

Military Personnel: Protect and expand opportunities for military personnel and their families. Create a parole process for veterans deported by the Trump Administration to reunite them with their families and military colleagues in the U.S. 

Temporary Workers:  Work with Congress to reform the current system of temporary work visas to allow workers in select industries to switch jobs.  

Visas for Rural Areas: Create a new visa category to allow cities and counties to petition for higher levels of immigrants to support their growth. 

Domestic Violence Survivors: End delays of processing time and triple the current cap of 10,000 on U-visas.

Supreme Court Affirmed Block of Deferred Action for Parents of American Citizens/Residents

Perhaps the recent Supreme Court decision should not come as a big surprise.  After the passing of Justice Antonin Scalia, the Supreme Court was left with only eight (8) Justices, and a 4-4 split decision is likely in cases involving controversial or political issues. In United States vs. Texas, the U.S. Government requested to overturn an injunction against implementation of two immigration programs initiated by the Obama Administration - (1) Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), (2) Expanded Deferred Action Program for Childhood Arrivals (DACA) program.  Since the Supreme Court was equally divided along ideological lines, the Fifth Circuit Court of Appeals' decision blocking these programs was affirmed.

The DAPA and expanded DACA programs have been opposed by conservative groups right from the beginning.  Deferred action programs are nothing new in the context of immigration.  In fact, previous presidents from both the Republican and Democratic parties, including Eisenhower, Reagan, Bush and Obama, have taken similar actions to alleviate various immigration problems.  

Ordinarily the legislative branch of the government should pass laws to handle immigration matters including individuals who are in the U.S. illegally. Unfortunately due to political reasons, the partition Congress has not been able to function properly. In the absence of Congressional acts, it is both reasonable and necessary for the executive branch to take appropriate actions.  Deferred action is one of the inherent powers of the president that can be used to deal with millions of individual unlawfully present in the U.S.  United States vs. Texas tested the limits of this executive power. 

The Supreme Court decision in Texas, however, may not be as significant as the headlines suggest. First of all, the split decision sets no Supreme Court precedent. In fact, the Court only issued a one-line decision without opinions.  Since it was an equally split decision, the lower court's decision will stand automatically. It is also important to note that Supreme Court decision does not affect the Deferred Action for Childhood Arrival (DACA) of 2012.  Individuals who were found eligible under the 2012 DACA program may continue to extend their deferred action status under the existing regulations.  

It is unfortunate that the Supreme Court was not able to take this opportunity to settle the challenge to deferred action and set legal guidance for future programs.  However, there will be other opportunities for precedent decisions by the Supreme Court, as federal courts continue to hear and decide cases involving similar immigrant issues.   One thing that we can rely on is that America's immigration laws and policies never stay the same for too long.  Political changes (Ex. presidential elections), economic climate, shifts in cultural paradigms, etc., will keep on changing that nation's policies and attitudes towards immigration.  

Supreme Court to hear Controversial Deferred Action Case

Today, the U.S. Supreme Court announced that it will hear the controversial case of Texas vs. United States concerning the Government's plan to grant deferred action status to millions of long-time illegal immigrants in the U.S. who are parents of U.S. citizens and residents.  

In November, the Fifth Circuit sided with the lower Federal District Court and upheld the injunction against the Obama Administration to implement its new DAPA (parents of U.S. citizens and legal residents) and expanded DACA (childhood arrivals) programs.  These programs are part of the Administration's executive plan to reform the U.S. immigration policy. 

In granting certiorari, the Supreme Court also asked the parties to brief on the issue of whether the deferred action plan violates the "Taking Clause" of the United States Constitution.  The Taking Clause of the Fifth Amendment provides that private property should not be taken for public use, without just compensation.

The timing of this case is particularly interesting in light of the recent heated debates on immigration among the presidential candidates.  The case is expected to be decided in June, but the future of the these deferred action programs will ultimately depend on the result of the upcoming presidential election.  

Obama Administration Seeks Supreme Court Review on Deferred Action of Millions

The Obama Administration filed a formal request with the United States Supreme Court on November 20, 2015, asking the nation's highest court to overturn an injunction against its DAPA and expanded DACA programs.

The DAPA and expanded DACA programs, which are part of President Obama's “immigration accountability executive action," have been challenged by the Republicans and conservatives. Twenty six (26) states filed a lawsuit challenging these executive programs.

On February 16, 2015, a federal district court in Texas entered a preliminary nationwide injunction against the implementation of these programs.  The injunction was upheld by a divided Fifth U.S. Circuit Court of Appeals in New Orleans on November 9, 2015.  The administration promptly appealed this decision to the U.S. Supreme Court.  Considering the scope and importance of this case, the Supreme Court will likely grant certiorari to hear the case.

A Matter of Federal Authority

The gravamen of the case is whether the Obama Administration exceeded its executive authority in deciding to grant deferred action to certain categories of foreign nationals present in the U.S.  One such class of people are certain parents of  of U.S. citizens and lawful residents under the DAPA program.

The Administration's rationale is that, with only limited resources and funding, it is not possible to remove the estimated 11 million of unlawful immigrants from the United States.  As the executive branch, it has legal authority to use discretion to prioritize deportation of criminals, recent border crossers, national security threats, and other repeat immigration offenders.

For others who don't pose danger to society and have strong family ties, the administration has plans to defer their deportation, bring them out of the shadow, process and register them in the system, and  also grant them permission to work.

A Fight of Semantics

A large part of the fight is semantics.  For example, the Republican-controlled States argue that the Obama Administration does not have the legal authority to grant deferred action to a class of individuals in the U.S.  Such a benefit should only be granted by Congress, they argued. To be clear, "deferred action" itself is not an immigration benefit that would confer status or rights to an individual as political asylum (granting permanent protection and resident status) or adjustment of status (granting legal resident status) would.  A "deferred action" is simply a temporary suspension of legal action (deportation) against an individual.  It is well-settled that the executive branch agencies such as the DHS and former INS have authority to defer actions again certain individuals or groups of individuals.  For instance, in 2005, DHS granted deferred action to foreign students affected by Hurricane Katrina.

As another example of semantic differences, the Fifth Circuit commented in its decision that deferred action status would award "lawful presence" to the DAPA beneficiaries. True, those who are granted deferred action are no longer considered unlawfully present in the U.S.  Thus, their presence in the U.S. can be described as lawful. But such "lawful presence" is distinguishable from other "legal statuses" such as H-1B temporary worker status, F-1 student status, refugee status, etc., which are legal statuses created by Congress that come with a hose of statutory benefits.  In contrast, deferred action is merely a temporary administrative grace that can be revoked at any moment without notice. Yet, it is apparent from the context that the Fifth Circuit uses the term "lawful presence" as if it is a substantive legal status.  

Permission to Work

The Fifth Circuit agrees that the administration through DHS has the authority to grant deferred action to DAPA beneficiaries.  However, it held that the agency exceeded its authority by granting them employment authorization.  It accepted the argument that the plaintiff States would suffer financially by granting temporary driver's licenses to these individuals.  The Obama administration's response is that employment authorization is only incident to deferred action status, as people in deferred action status need to work to survive.  Withhold employment authorization, they would be forced to work off the books.  Further, the DHS Secretary has independent authority to grant employment authorization to any groups of foreign nationals, regardless of deferred action.

It is Always About Money
Financially, the Obama Administration argues that the States have no legal obligation to provide benefits to individuals in deferred action status.  Texas could choose to stop granting temporary driver's licences to these individuals.  

The Fifth Circuit's counter argument is that it would still cost Texas financially if it has to take legislative actions to eliminate state benefits to DAPA beneficiaries. Why is this important? In order for their case to be valid, the States must prove injury. Otherwise they would have no standing or basis to sue under the Administrative Procedure Act (APA).  

The Administration also argues that, if the States' economic argument was to stand, it would lead to other similar lawsuits. For example, if a state voluntarily decides to adopt the definition of "adjusted gross income" created by the IRS, the state could then sue the federal government for economic loss if it's revenues decreased as a result of a change in the calculation of "adjusted gross income" by IRS. Although such an argument is a bit far-fetched, it works as a reminder to the Supreme Court that its decision could open up a floodgate of lawsuits against federal agency actions.

Notice and Comment
Under the U.S. Constitution, the federal government has very broad power over the administration of immigration laws.  The U.S. Supreme Court will be unlikely to change this long-standing authority in its decision.  On the other hand, the Supreme Court may take issue with the Administration's failure to use the notice-and-comment rulemaking process to implement the new executive action programs. Under the APA, government agencies are usually obligated to publish any proposed rules and regulations in the Federal Register and allow a period of time for the public to provide written feedback and comments.  There is an exception:  the APA exempts from notice-and-comment all “general statements of policy." According to Obama Administration, its executive action programs fall under this exception, and hence the States' lawsuit must be dismissed.  How strong this argument is depends on what constitutes "general statements of policy".  As many Supreme Court decisions hinge on the meaning of a single word or phrase, the outcome of this important case remains unclear.

Challenges to the President's Immigration Reform Plan

President Obama's "immigration accountability executive action,” which includes a series of government acts to reform and change the nation's immigration system, has been challenged by the Republicans and conservatives as being too lenient, unilateral, or outright illegal.  They argue that these actions, especially the expansion of the current Deferred Action for Childhood Arrivals (DACA) program, and the new deferred action program for undocumented parents (DAPA), violate the U.S. Constitution and will encourage a new wave of illegal immigration to the United States.

Politically, the reaction of the Republicans and conservative members of the Congress is understandable.  They need to demonstrate to their constituents that they are doing something to respond the President's executive actions.  In fact, on December 4th, the House of Representatives passed a bill to block President Obama's executive actions.  This bill, however, is more symbolic in nature, as it will not likely be taken up by the Senate, which is still being controlled by Democrats. Further, the President can also exercise his veto power if the bill ever reaches his office.

Similarly, eighteen (18) states filed a lawsuit challenging President Obama’s immigration plan last week.  These states are mostly governed by Republicans.  They also argue that the President does not have the legal authority to take actions to change the immigration policy.  Further, these states argue that the new actions will result in substantial state spending in health care, education and law enforcement.

On the issue of legality, more than 100 law professors and scholars from the nation's law schools including Harvard and Yale have authored a joint letter on November 25, 2014, endorsing the President's DACA and DAPA plans as being within the legal authority of the executive branch of the government of the United States.  In fact, similar executive actions on immigration have been taken before by former U.S. Presidents including Presidents Reagan and George Bush Sr., both Republicans.  The U.S. Supreme Court has also recognized the executive branch's authority and need to exercise discretion in the enforcement of the immigration laws.  See Reno v. American-Arab Anti-Discrimination Committee,  525 U.S. 471 (1999); Arizona v. United States, 132 S. Ct. 2492 (2012). The President's deferred action plan is merely an exercise of his prosecutorial authority; it defers enforcement action for three years but does not grant any permanent legal status to the applicants.

The states' argument that they will have to spend substantial amount of additional social resources under Obama's immigration plan is far from clear cut.  Even under the current law, children are guaranteed a public education from kindergarten through 12th grade, regardless of their immigration status.  This right to education was upheld by the U.S. Supreme Court in the landmark case of Plyler v. Doe in 1982.  Further, certain health care services such as emergency room visits are already available to unauthorized immigrants.

On the issue of law enforcement, the new plan may actually bring about positive changes. The new plan will bring the illegal residents out of the shadow and register them in the system.  These changes will make it easier for police officers to enforce the law and create safer communities.  In fact, mayors from metropolitan cities with large immigrant population such as San Francisco, Los Angeles, Houston, New York, etc., all embrace the President's executive actions.  They believe the new plan will "strengthen [their]cities, keep families together, grow our economies and foster additional community trust in law enforcement and government."

In sum, challenges to President's immigration reform plan will likely continue.  But so far, they represent more like political rebuke than real threats to the plan. 

Q&As on Pres.Obama's new executive immigration plan

President Obama on November 20, 2014, announced an executive plan to reform the current U.S. immigration system.  The following are some questions and answers regarding his plan:

Q: When will the new plan become effective?
A: President Obama's plan is composed of a number of executive actions addressing different aspects of the U.S. immigration policy.  Some will become effective soon while others will be addressed by new regulations and other agency actions.  For examples, the deferred action plan for undocumented parents of U.S. citizens and permanent residents will become effective with 180 days (on about May 18, 2015).  Expansion of deferred action plan for childhood arrival will become effective with 90 days (on about February 18, 2015).

Q: I am a parent of a U.S. citizen or green card holder.  How do I apply for the President's deferred action plan for undocumented parents?
A: The government has not yet announced the details of the application process.  Nobody should be able to help you submit the application right now.  However, you may gather documents and evidence to get ready to file for this benefit.

Q:  How do I get ready to file for President Obama's deferred action for parents?
A:  You can get ready by gathering documentary evidence to prove your identify (e.g., passport, driver's license, birth certificate), your relationship with your child (e.g., his/her birth certificate), your continuous physical presence in the U.S. for the past five years (e.g., rent receipts, employment documents, school documents, utility bills, insurance documents, etc.).  If you haven't file federal income tax returns, you should file them as soon as possible.  You should also consult with the qualified immigration attorney about your particular situation.

Q:  I have a criminal background.  Would that make me ineligible for deferred action?
A:  You should still consult with a qualified immigration attorney if you have a criminal record.

Q: My spouse is an H-1B employee.  Would I be able to obtain employment authorized document (EAD) soon?
A:  Part of President Obama's plan is to give employment authorization to spouses of H-1B workers in the U.S. A proposed regulation was published in May 2014 to issue EAD to H-4 spouses if they are already in the process of applying for lawful permanent status. The final regulation with more details will likely be implemented early next year.

Q: I already have an immigration court case pending. Would I still be qualified for the President's new plan?
A:  It depends on the status of your immigration case.  If you have been ordered deported from the United States or failed to appear in immigration court before, you may not be qualified for the benefits of the new plan.  You should consult with a qualified immigration attorney about your particular situation.

Q: Would I be able to obtain permanent resident status under President Obama's new plan?
A:  The deferred action plans proposed by President Obama provide a temporary protection of three years for qualified individuals from the danger of deportation.  The plan does not offer any direct way for the undocumented foreign nationals to apply for permanent resident status.

Q: If the President's new plan offers only temporary protection, should I wait for something more permanent before I apply?
A:  Although the President's  immigration reform plan only offers temporary protection, there are many advantages to apply. For examples, qualified individuals will be able to obtain government-issued ID document (EAD) to allow them to live and work in the U.S. legally for three (3) years;  and be able to apply for valid driver's licenses and state ID cards.  Most importantly, they will no longer have to live under the fear of deportation.  Extension of the period of protection is also possible, depending on the political situation. 

President Obama's Executive Immigration Reform Plan - A Bullet Point Summary

Tonight, President Obama announced his executive plan to reform the current U.S. immigration

system.  Below is a summary of the most important points:

• Deferred Action for Undocumented Parents of U.S. Citizens and Green Card Holders: These parents can stay for three (3) years if they have been in the U.S. since January 1, 2010, pass background checks and pay back taxes.  This rule should take effect in 180 days.

• Expansion of Deferred Action for Childhood Arrivals (DACA):  This action will benefit more undocumented young people who were brought to the U.S. as a child (before the age of 16). The applicant must have been in the U.S. since January 1, 2010 (extended from June 15, 2007).  The present age of the applicant is no longer a criterion for consideration.  All other DACA requirements will remain in effect. These young people will also be allowed to stay and work in the U.S. for three (3) years. This rule will take effect in 90 days.  

• Expansion of I-601A Provisional Waiver to include spouses and children of LPRs:  People who have been unlawfully present in the U.S. need a waiver before they may apply for permanent residence status.  Provisional waivers allow undocumented individuals to submit their waiver applications in the U.S. before they apply for a visa to return.  Currently only immediate relatives of U.S. citizens may apply for provisional waivers.  Under the new rule, spouses and children of green card holders will also be eligible for provisional waivers.

• Foreign Workers with Approved I-140 Petitions May File I-485 Adjustment Applications Earlier:  This is very good news for the 410,000 EB applicants who have been waiting for available visa numbers.  They will be allowed to apply for employment authorization documents (EADs) and travel documents with the I-485s.  Exactly how early they may submit their I-485s will be addressed by regulation. 

• H-4 Spouses Employment Authorization (EADs):  This was proposed in May.  The regulation will likely be finalized in December or January. 

• Foreign Entrepreneurs Will Get Parole Status:  Certain foreign investors will be allowed to enter or stay in the U.S. in "parole" status.  

• Foreign Entrepreneurs, Researchers, Inventors, and Founders Eligible for National Interest Waivers  (NIW):  They will be allowed to bypass the labor certification process and apply for green cards directly. 

• STEM OPT Will be Expanded:  The length of time for STEM OPT will be extended.  Subsequent non-STEM degrees are also being considered for eligibility. 

• Optimal Use of Immigrant Visa Numbers:  The President will direct immigration-related agencies to look at modernizing the visa system, in an attempt to achieve optimal use of the numbers of visas.  For examples, whether dependents should be counted towards the visa quota and recapture of unused visa numbers will be considered.  

• Prioritizing Enforcement Efforts:  The top three priorities will be: (1) Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and persons apprehended on the border; (2) Persons convicted of serious or multiple misdemeanors and very recent border crossers (those who entered after January 1, 2014); and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal. 

(Any questions regarding the President's new plan can be sent to info@szetolaw.com.)

House Republicans: Immigration Reform is still on the Table

Recently, House Republicans made efforts to reach out to the Latino community and offered renewed pledges that the House will once again pick up immigration reform this year, according to the Washington Post.  These efforts by Republicans rekindled new hope among immigration advocates that immigration reform could still be possible this year to allow the nation’s 11 million undocumented workers and students to have a way to be legalized.

In June, the Democratic-controlled Senate passed a bipartisan plan that contains a multi-year path to citizenship for immigrants who are present in the country illegally. However, the plan was obstructed by the Republican-controlled House, and immigration reform has been viewed by some as being dead on arrival.  Since then, negotiations on immigration between the parties have broken down.

The recent signals by the House Republicans suggest that there may still be a chance that some sort of immigration reform will get passed this year.  Some key GOP leaders have signaled that the House is willing to move forward on legislation that could bring immigration back to the negotiation table.

For example, Judiciary Committee Chairman Bob Goodlatte (R-Va.) disclosed  that his panel is working on four new pieces of legislation dealing with border-control laws.  Mr. Goodlatte emphasized the need “to resolve the status of people living in the country illegally,” without disclosing further details.

There are also reports that Mr. Goodlatte and Majority Leader Eric Cantor (R-Va.) are working on a bill that would grant legal status to young people who were brought to the country illegally by their parents, something similar to the DREAM ACT.   Even so, Goodlatte emphasized that  he does not support a “special path” for citizenship that would give preferential treatment to individuals who entered the country illegally over other legal immigrants.

Immigrant dvocates believe that a comprehensive immigration plan passing the House and Senate remain only a remote possibility.  In fact, more likely than not, House Republicans will prefer to pass a series of “smaller bills” that would tackle different immigration issues individually.  The Obama Administration, on the other hand, insists that any immigration reform must be comprehensive rather than piecemeal.  In fact, this has become be the major roadblock for comprehensive immigration reform this year.

There are also other pressing matters that the federal government has to deal with, including budget, debt ceiling, health care reform, etc. These other issues could take precedence over immigration.  For example, a government shutdown is imminent on October 1 if the budget talks fail in Washington.

If immigration reform law is not passed by the end of this year, the issue will become more complicated in 2014, when lawmakers are running for reelections.  Rather than speaking as one voice, they will be more concerned about their own elections and constituents, hence making immigration reform even more unpredictable.

House bill does not address comprehensive immigration reform

Shortly after the Senate passed its version of Comprehensive Immigration Reform (CIR) bill, the House of Representatives also drafted H.R. 1417 - House's Border Security Results Act of 2013.  The new House bill is different from the Senate bill in that it is not a comprehensive immigration reform plan.  Rather, it is a bill that focuses on border security.  Specifically, it directs the Department of Homeland Security (DHS) to develop a five-year national strategy and implementation plan for security and operational control of the borders, including a plan for implementing a biometric exit system.

H.R. 1417 also requires DHS to submit regular reports and the strategy and implementation plan to the Government Accountability Office (GAO).  For examples, 90 days after the bill is passed, DHS must submit a report on state of situational awareness and operational control; and 180 days after enactment, DHS must submit a plan to implement biometric exit system at Ports of Entry.  The bill directs DHS to consult a national laboratory and other authorities to measure certain "metrics" regarding border control.  Some examples of metrics include:  Illegal border crossing effectiveness rate, illicit drugs seizure rate, and cocaine seizure effectiveness rate.

The House bill does not contain any provisions for allowing the illegal immigrants to be legalized.  It also does not address any issues regarding immigrant visa backlog issues, employment immigration issues, H-1B visa cap, etc.  It is purely an enforcement bill aimed at further securing the borders.  It is consistent with the "step-by-step approach" announced by House Speaker John Boehner.  According to Mr. Boehner, although the majority of House members intend to tackle immigration reform, they will not take up the recent bill passed by Senate. (For highlights of the Sentate CIR bill, click here.) Instead, the House will take a slower approach and draft its own immigration reform bills piece by piece.

Any CIR proposal will likely be challenged in the House, which is controlled by conservative Republicans.
CIR by definition will provide ways to allow the millions of undocumented immigrants in the U.S. to be legalized.  Additionally, in August, Congressional members will take summer recesses to return to their legislative districts.  It is expected that they will face conservatives constituents who are likely be opposed to comprehensive immigration reform.  As such, upon return to the Washington in the fall, some House members may feel pressured to vote down any proposals for CIR.

Still, CIR is far from dead in Congress.  The voting power of new immigrants especially the Hispanics is a huge incentive for the Republican leaders to pass CIR.  It is clear that President Obama wants to pass an immigration reform bill this year, and he also spoke to the lawmakers about his intention.  The House will be the key battleground. Within the House, in order to pass any CIR bill, the Speaker must first agree to bring it to the floor for discussions.  So far, Mr. Boehner has been reluctant to do so.  Even if a CIR is passed by the House, it may likely be quite different from the Senate version.  The two versions must be first reconciled before a final bill can be presented to the President for signature.  Timing is also an important factor in this legislative process, as there are only a few months left in 2013.

Senate passed S.744 CIR 68-32!

Today the Senate passed S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act," as a milestone in the road to Comprehensive Immigration Reform.  

Immigration Reform Bill Approved by Senate Judiciary Committee

The Senate Judiciary Committee approved 13-5 a comprehensive immigration bill, S.744, on Thursday night.  The bill was introduced by a bipartisan group of senators known as the Gang of Eight. After several weeks of intense debates, the bill survived more than 200 proposed amendments and is ready to be debated on the full Senate floor beginning the first week of June.  The bill is the most comprehensive U.S. immigration reform proposal in recent decades.  If passed into law, S.744, will change many aspects of the current  immigration system and provide a path for the estimated 11 million of undocumented immigrants to obtain U.S. citizenship.

H-1B Visa Cap Reached -- New Immigration Bill

H-1B Visa Cap Reached and New Immigration Bill

On April 5, 2013, the U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014.  USCIS has also received more than 20,000 H-1B petitions filed under the advanced degree exemption category. USCIS was still counting the number of applications received as of April 5 but the agency has stopped accepting new applications after that date.

On Monday, April 8, 2013, USCIS further announced that it has received approximately 124,000 H-1B petitions during the filing period, including both regular cap and advanced degree petitions.  It also confirmed that a random selection process or “lottery” was conducted on April 7, 2013 to select cases for further processing. The agency first conducted a lottery to select 20,000 petitions from among the pool of advanced degree petitions received for further processing.  All advanced degree petitions not selected were then grouped together with the other regular H-1B petitions for a second drawing, in which 65,000 were then selected to fill the regular cap.

USCIS will be sending out notices to all H-1B petitioners and their attorneys soon. H-1B applicants should stay tuned for further information.  Lucky winners of the visa lottery should receive a receipt notice, Form I-797, with a case number.  If a case was not selected for further processing, the petition along with all supporting documents would be returned to the employer or attorney with a notice.

New Immigration Bill Expected

Separately, two senior Senators have announced that a comprehensive immigration reform proposal is likely to be completed this week.  A partisan group of senators known as the “gang of eight” have been working together for several months to put this new proposal together.  The new bill, in addition to border security provisions, is expected to contain an “earned pathway” for the estimated 11 million undocumented immigrants to become U.S. citizens.  It is also expected to create a temporary guest worker program to allow foreign workers to work in the U.S. temporarily. 

The new proposal is also expected to provide faster and more efficient mechanisms for high-tech and other skilled workers to obtain work visas and permanent resident status.  Currently, the H-1B program is limited by an annual visa cap.  For instance, employers who fail to secure a visa number this year for an H-1B worker must wait another 18 months before securing the services of skilled foreign worker.  In the fast-changing business world, 18 months could mean light years.  Similarly, it could take up to 10 years or longer for certain foreign skilled workers or managers to apply for a green card under the current system.   The new bill is expected to address these issues as well. However, until it is finally passed by Congress and signed into law by the President, this new bill will only be a proposal and should not be relied upon. 

Understand and get ready for Comprehensive Immigration Reform (2)

The White House has released a fact sheet for its version of Comprehensive Immigration Reform.  The following is a summary of the plan:

The White House and the President recognize that reforming our broken immigration system requires responsibility from the 11 million people living in the shadows and from the employers who hire illegal workers.  The new plan must also guarantee that everyone is playing by the same rules.  The four key principles the President Obama’s plan include:

Continuing to Strengthen Border Security

Though the number of Border Patrol agents has been doubled since 2004, the President’s new proposal will further strengthen and improve infrastructure at ports of entry, and continues supporting use of technologies to secure land and maritime borders. It will create new criminal penalties to combat transnational criminal organizations in drugs, weapons and money trafficking, and human smuggling across the borders. It also includes tough criminal penalties for trafficking in passports and immigration documents and schemes to defraud. The U.S. Department of Homeland Security (DHS) will establish border community liaisons along the Southern and Northern borders to improve communication and collaboration with border communities.

Cracking Down on Employers Hiring Undocumented Workers

Our businesses should only employ people legally authorized to work in the United States. The President’s proposal is to stop the practice of knowingly employing undocumented workers and hold those companies accountable. The proposal provides tools for employers to ensure a legal workforce by using federal government databases to verify the eligibility of their employees to work in the United States. Penalties for hiring undocumented workers are significantly increased. The proposal also mandates a fraud‐resistant, tamper‐resistant Social Security card to prove authorization to work in the United States. The proposal will also protect workers against retaliation for exercising their labor rights by creating a “labor law enforcement fund” to ensure that industries comply with labor laws.

Earned Citizenship

Since it is not practical to deport 11 million undocumented immigrants living within our borders, the President’s proposal provides undocumented immigrants a legal way to earn citizenship. This proposal requires undocumented immigrants must come forward and register, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before they will be eligible for a provisional legal status. Individuals must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship. Consistent with current law, people with provisional legal status will not be eligible for welfare or other federal benefits. As under current law, five years after receiving a green card, individuals will be eligible to apply for U.S. citizenship like every other legal permanent resident. An individual whose provisional lawful status has been revoked or denied, or whose application for adjustment has been denied, will have the opportunity to seek administrative and judicial review of those decisions.

Streamlining Legal Immigration

The proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers. It also raises existing annual country caps from 7 percent to 15 percent for the family-sponsored immigration system.  The proposal also eliminates the backlog for employment-sponsored immigration by eliminating annual country caps and adding additional visas to the system.  (These changes, if implemented, will significantly speed up the waiting time of immigrant petitions for countries such as China, India, Philippines and Mexico.)  The proposal encourages foreign graduate students educated in the United States to stay here and contribute to our economy by making it easier for advanced degree holders in science, technology, engineering and mathematics (STEM) from qualified U.S. universities to obtain a green card.  Similarly, the proposal will also provide visas to foreign entrepreneurs who plan on starting businesses here and hiring U.S. workers.  

Understanding and Getting Ready for Comprehensive Immigration Reform (1)

As the economy appears to be recovering, the November elections seem far behind us, and the issues having been discussed so many times from all possible angles, the time is finally ripe for Comprehensive Immigration Reform (CIR).  Although any CIR plan will likely encounter resistance in Congress from conservatives, a bipartisan group of senators including former presidential candidate Republican John McCain recently came together and jointly announced a plan to overhaul our immigration system and provide a mechanism for the estimated 11 million of unauthorized immigrants living in the U.S. a chance to be legalized.  Almost simultaneously, the While House also announced its own plan to overhaul the current immigration system.  While the details of these CIR plans are not yet available, there are some principals and priorities common to these proposals. 

Border Security: First of all, everybody seems to agree that a prerequisite to CIR is border security.  Although after the 911 attacks and the establishment of the Department of Home Security, tremendous amount of resources and funding have already been allocated for border security.   The issue will likely be under the spotlight again.  Most hi-tech equipment and system will be deployed to safeguard our borders and ports of entries.  New entry and visa requirements will also likely be proposed for foreign visitors.

Hurdles to Legalization:  The media likes to label any CIR as “a path to U.S. citizenship” or “a way to become American citizens.”  True, if immigration reform materializes, many unauthorized individuals will eventually be able to acquire U.S. citizenship.  However, what is being left out in the news reports is “when” and “how” these individuals may be able to do that.  Realistically, the road to getting a U.S. passport will prove to be long and winding for the undocumented.  For instance, there is always a threshold of time before which a foreign must be present in the U.S. in order to apply for legalization.  The policy is to discourage any newcomers from trying to enter the U.S. after the plan is announced.   But no matter what date we set for grandfathering, there will always be a group of individuals who would not make the cut.  Then the question becomes: What do we do with them?  Other than entry requirements, the usual requirements for permanent residence status (“green card”) will likely be used in any CIR proposal.  So for instances, individuals who have a criminal background including demeanors and DUIs, prior immigration violations, contagious deceases, etc., may not be eligible for legalization.

Changing the Legal Immigration System:  It is also clear that any new proposal will also require unauthorized individuals to wait in line for their turn for a green card.  Currently, legal immigration in many preference categories is seriously backlogged, making the waiting time for an immigrant visa extremely long.  Fortunately, in almost all CIR discussions, revamping the current legal immigration system is also under consideration.  For example, one proposal is not to count the dependents (spouses and children) when counting the visa number usage.  So a family of three will only use up one visa number instead of three.  Granting foreigners with advance technology and science degrees special visas is also part of the consideration.  The unauthorized individuals will become direct beneficiaries of these changes in the legal immigration system.

Sanctioning Employers:  Any CIR proposal will also likely contain provisions that punish U.S. employers who hire unauthorized workers.  In fact, President Obama’s proposal specifically mentions about this issue.  What is interesting is that there already exists laws and regulations in the area of employer sanctions.  Enforcement of these laws is sometimes relaxed due to political and other considerations.  One way to ensure compliance is through a computerized verification system such as E-Verify.  Currently, use of the system is voluntary.  It is possible the new CIR plan will make it mandatory for employers to use the system to verify status of all employees.   However, any new changes will also have to be balanced with the additional financial and administrative burden imposed on employers, since economic recovery is still our nation is top priority.