• 28Jul

    The H-1B visa is, by far, the most sought-after temporary work visa in the United States for foreign national workers. It requires sponsorship by a U.S. employer and is limited to specialty occupation positions which generally require the candidates to hold at least a bachelor’s degree (or the equivalent) in a relevant discipline.

    Despite its demand, the H-1B visa category is not without its drawbacks. For one, new H-1B visas are subject to an annual quota of 85,000, with 20,000 of those set aside for advanced degree graduates with a U.S. Master’s degree or higher. (The H-1B quota applies only to petitions for new employment and not to beneficiaries of H-1B extensions and transfers from one U.S. employer to another. Nor does the quota apply to employees of qualified institutions of higher education and certain non-profit or government research organizations.)

    For fiscal year (FY) 2016, a record-breaking 233,000 H-1B cap petitions were filed with USCIS, representing a 35% increase from the prior fiscal year. Based on such an overwhelming increase in filings, H-1B candidates were faced with a 1 out of 3 chance of a petition being selected in the H-1B lottery. In other words, approximately 2/3 of all petitions submitted were summarily rejected for lack of quota numbers.

    So what is a U.S. employer to do when a foreign national is not selected in the H-1B lottery? While there are a limited number of options presented by the “alphabet soup” of temporary visa categories, there are some viable alternatives for obtaining valid work authorization for such foreign nationals. The following list includes some of those alternatives.

    1. B-1 (in lieu of an H-1B): While the B-1 is not a traditional work visa, if applied for properly, this sub-classification is a viable alternative for multinational employers as it will allow foreign nationals to temporarily engage in professional-level employment in the U.S. for short-term periods (up to 6 months) provided the foreign national does not receive a salary or any other remuneration from the U.S. employer. Rather, the foreign national must be placed and remain on the payroll of a foreign entity;

    2. O-1: This visa classification is generally associated with nationally or internationally acclaimed scientists, researchers, athletes or artists; however, this category can also be utilized for business personnel who can establish they have risen to the top of their respective fields by demonstrating he/she satisfies at least 3 out of 10 threshold criteria provided in the regulations. See 8 C.F.R. § 214.2(o)(3)(iii);

    3. L-1: This visa classification is commonly used by multinational employers to transfer executive, managerial or “specialized knowledge” personnel to the U.S. from abroad. It requires a common ownership and control of the sending and receiving entities by way of a parent, subsidiary, affiliate or branch relationship. In addition, qualifying candidates must have been continuously employed for at least 1 year with the foreign affiliate within the preceding 3 years;

    4. TN-1 (Canada) and TN-2 (Mexico): This visa classification is available only to citizens of Canada and Mexico who are coming into the U.S. to engage in professional-level activities as defined by NAFTA, which activities specifically require “at least a baccalaureate degree or appropriate alternate credentials demonstrating status as a professional.” The TN employment must fall within a NAFTA Schedule 2 profession. 8 C.F.R. § 214.6(b); 8 C.F.R. § 214.6(c);

    5. H-3: This visa classification may be utilized by a U.S. business or individual seeking to bring foreign nationals into the U.S. for the purpose of engaging them in an established training program for up to 2 years. The U.S. employer must demonstrate that similar training programs are not available in the foreign national’s home country. Although the training program may consist of a combination of classroom and on-the-job training, any productive employment must be “incidental” to the training program. 8 C.F.R. § 214.2(h)(7)(ii)(A);

    6. E-1: This is a visa classification available to applicants from one of the enumerated countries with which the U.S. maintains a treaty of trade. Applicants must be sponsored by a U.S. employer which is owned at least 50% by national(s) of the foreign national’s treaty country. (A publicly traded company is generally considered to have the nationality of the country in which its stock is listed and traded on a public stock exchange.) The U.S. employer must demonstrate substantial trade in services or technology between the home country and the U.S., while the employee must be entering the U.S. to perform supervisory or executive duties or have skills which are “essential to the operation of the enterprise.” 8 C.F.R. § 214.2(e)(3);

    7. E-2 (commonly known as an Investor Visa): Like the E-1, this is a visa classification available to applicants from one of the enumerated countries with which the U.S. maintains a treaty of commerce. Applicants must be entering the U.S. to develop and direct the operations of an enterprise in which the individual has substantially invested (or is in the process of investing) monies to create a business in the U.S. that is not marginal and has a reasonable growth trajectory.

    As set forth above, the H-1B visa category, in its current form, is not without its issues. Until such time that Congress realizes that the arbitrary quota on H-1B visas serves no useful purpose, U.S. employers, including in-house counsel and human resources departments, should consider more creative, perhaps less conventional alternatives, to retain and attract a more diverse, intelligent and energetic workforce.

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  • 03Feb
    H-1B Visa News, OPT, USCIS News Comments Off

    H-1B “cap season” is upon us! This alert is a reminder of the rapidly approaching April 1, 2015 “deadline” for the filing of H-1B for Fiscal Year 2016 which starts on October 1, 2015.

    Given the pent-up demand, we fully expect the cap to be reached on the first day of April. USCIS will, as usual, accept petitions during the first five (5) business days; i.e., through April 7, 2015. Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions for a full year, until April 1, 2016. As such, we strongly encourage you to identify any employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely April 1 filing.

    ACTION NEEDED: Assess Your Cap-Subject H-1B Needs:

    H-1B visas are available for specialty occupations requiring the attainment of a bachelor’s degree or its equivalent. For current or transferring employees, employers should consider who might need to file an H-1B for Fiscal Year 2016:

    • Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need a change of status to H-1B;
    • Determine whether any TN employees (NAFTA professionals) might want an H-1B to be eligible to apply for adjustment of status to a permanent resident;
    • Consider whether you employ someone in L-1B status (intra-company transferees with specialized knowledge) who might need to switch to an H-1B to gain an additional year of status and
    for whom a change of status is a necessary component to planning your business’ long-term strategy of pursuing lawful permanent residence for that employee;
    • Review those employees who are on expiring O visas which are renewable in only one year increments (as compared to the three year visa period under an H-1B); and
    • Identify potential candidates who are abroad and have not been previously counted against the H-1B cap.

    PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B nonimmigrant professionals seeking to file an extension of stay or a transfer petition are not subject to the cap.

    The Importance of Early Preparation:

    Cap subject petitions are accepted on a “first-come-first-serve” basis. Any petitions filed after the cap is met will be returned and cannot be re-filed until the following year.

    To assure a timely petition filing, Labor Condition Applications (“LCAs”) should be submitted to the DOL by the beginning of March, and petitions should be ready for filing before April 1, 2015. Gathering the necessary supporting documentation and preparing the H-1B visa filing materials can be time consuming. Preparation includes assembling background and education documents, drafting and signing letters and forms, and submitting an LCA with the Department of Labor for certification. Early preparation is therefore essential.

    If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

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  • 24Dec

    On Thursday, November 20, along with President Obama’s announcement regarding his Executive Action on Immigration, Department of Homeland Security (“DHS”) Secretary Jeh Charles Johnson issued a memo to the Directors of U.S. Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”) directing the agencies to take action on the President’s announcements to improve the employment-based immigration system. The DHS memo provides a general overview of proposed changes the government wishes to implement, relating to skilled immigration, in order to address some longstanding issues and problems in our antiquated business immigration system. For purposes of this article, the authors will focus on the proposal to increase foreign worker portability by permitting certain skilled workers to pre-register for adjustment of status.

    Under Secretary Johnson’s directive, USCIS is expected to develop new regulations or otherwise issue guidelines that will allow foreign nationals with an approved second step (employment-based immigrant visa petition, Form I-140) to pre-register for adjustment of status in order to obtain the benefits of a pending Application for Adjustment of Status (Form I-485) even if an immigrant visa number is not currently available for the foreign worker. This proposal will not only benefit the employee who is the principal green card applicant by permitting the principal to apply for an employment authorization document and travel document, but it will also enable his/her dependents to obtain employment authorization and immediately enter the U.S. labor market.

    Of equal or greater importance, once the last step (Form I-485) has been pending for at least 180 days, the principal is then permitted to move into another position with his/her employer and even port to another employer so long as the move is to a similar occupation. In anticipation of pre-registration of adjustment of status, applicants should gather the documentation required to be filed with the I-485 application:

    1.) Birth certificates for the principal and each dependent family member. Affidavits of birth (in lieu of birth certificates) may be used for those instances when a birth certificate is not obtainable from the applicable government authority;

    2.) Marriage certificate (if a spouse is applying); and

    3.) Copy of most recent tax return and paystubs of principal applicant for the last 2 months.

    In addition, once the guidelines are issued and the filing of Form I-485s are permitted, each applicant and family member should arrange for a medical examination by a civil surgeon appointed by DHS.

    Stay tuned for further developments relating to the implementation of the Executive Order.

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  • 03Dec

    On Thursday, November 20th 2014, along with President Obama’s announcement regarding his Executive Action on Immigration, Department of Homeland Security (“DHS”) Secretary Jeh Charles Johnson issued a memo to the Directors of U.S. Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”) directing the agencies to take action on the President’s announcements to improve the employment-based immigration system (hereinafter “DHS memo”). The DHS memo provides a general overview of proposed changes the government wishes to implement, relating to skilled immigration, in order to address some longstanding issues and problems in our antiquated business immigration system. The following is a brief overview of the most pertinent of the proposed measures:

    1. Reform Optional Practical Training (“OPT”) for Foreign Students and Graduates of U.S. Colleges and Universities: Most foreign students on F-1 (student) visas are eligible for 12 months of post-graduate OPT work authorization as long as the work experience that they seek is in a field that relates to their program of study. Under current regulations, OPT can be extended an additional 17 months for a total of 29 months of work authorization for U.S. college graduates with degrees in designated science, technology, engineering and mathematics (“STEM”) fields. The proposed regulatory changes will seek to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign graduates. Finally, it is proposed that certain labor market protections, which could include a prevailing wage requirement, will be imposed in order to safeguard the interests of U.S. workers in related fields.

    2. Pre-Registration for Adjustment of Status: With the emphasis on facilitating foreign worker portability, USCIS is expected to develop new regulations that will allow foreign nationals with an approved employment-based immigrant visa petition (Form I-140) who are caught in the immigrant visa quota backlogs to pre-register for adjustment of status in order to obtain the benefits of a pending Application for Adjustment of Status (Form I-485), notwithstanding that their respective priority dates are not current. This proposal will not only benefit the employee who is the principal green card applicant by permitting the principal to apply for an employment authorization document and travel document (while also allowing the principal to port to another employer after the I-485 is pending for 180 days), but it will also enable his or her dependents to obtain employment authorization and immediately enter the U.S. labor market.

    3. Expanded Green Card Portability: USCIS is expected to provide additional guidance regarding the definition of a “same or similar” job for purposes of expanding eligibility for a green card applicant to be promoted to a new job within the same company or, alternatively, to port to a new job with a new employer. This guidance will help not only those in the green card process who wish to change employers, but also those employees who move to a different job with the same employer.

    4. Proposed Rule to Extend Work Authorization to Certain H-1B Spouses: While this was not specifically addressed in the DHS memo, it is rumored that the proposed rule published in the Federal Register in May 2014 to extend work authorization to the H-4 spouses of H-1B specialty occupation workers with an approved employment-based immigrant visa petition (Form I-140) may also be finalized in the next few months.

    5. Bringing Greater Consistency to the L-1B Visa Program: The L-1 visa program is a common vehicle used by multinational companies to transfer executive, managerial or “specialized knowledge” personnel to the U.S. from locations outside of the U.S. Noting the “vague guidance and inconsistent interpretation” of the term “specialized knowledge,” Secretary Johnson directed USCIS to issue a policy memorandum that provides clear, consolidated guidance on what constitutes “specialized knowledge” for L-1B visa eligibility.

    6. Promoting Research and Development in the United States: The DHS memo recognizes that the current immigration laws do not meet the needs of foreign entrepreneurs and calls for enhanced and expanded options under the law to encourage foreign entrepreneurs to invest, create jobs and generate revenue in the U.S., including a broader application of the “public interest” parole authority and “national interest” waiver of the labor market test and job offer requirements for green card status.

    It is important to note that the details and timing for implementing many of the above measures remains uncertain, since many of them may require a change in regulations with a notice and comment period. It also remains to be seen whether Congress will act on comprehensive immigration reform, which could have the effect of preempting some of the executive actions taken by President Obama.

    Please stay tuned for additional information on the pursuit of President Obama’s Executive Order as we plan to issue additional advisories in the future as key components of the executive action are implemented.

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  • 25Jun

    The Fraud Detection and National Security (“FDNS”) unit of USCIS recently announced plans to expand its worksite inspection program to include L-1 employers, likely in response to the 2013 report by the Department of Homeland Security (“DHS”) that addressed fraud and abuse in the L-1 program.

    In a typical FDNS audit, DHS inspectors (or third party government contractors) will conduct pre- and post-adjudication site inspections, usually without notice, at the petitioning employer’s principal place of business and/or at the work location set forth in the petition documents. The purpose of the site inspection is to verify the validity of the information submitted to USCIS with the nonimmigrant petition and ensure compliance with the terms and conditions of the relevant nonimmigrant status. This may include an audit of any of the following information: (1) that the petitioning employer exists and is engaged in the operations set forth in the petition, (2) that the stated job duties are in line with the employee’s classification as either a manager or executive (L-1A) or specialized knowledge employee (L-1B), and (3) the company is paying the employee the wage indicated in the petition and that the wage is consistent with the listed duties and level of experience.

    During the audit, FDNS inspectors may seek to review documents, speak with company representatives, and interview L-1 employee(s). Inconsistencies between the petition and the actual worksite conditions could trigger a Notice of Intent to Revoke (“NOIR”) the approval of the subject L-1 petition(s).  Moreover, the employer’s failure to provide the appropriate documentary evidence requested in the NOIR also could lead the USCIS to revoke the petition.

    To date, USCIS has provided little guidance regarding L-1 regulatory compliance.  As such, sending FDNS officers to company worksites to investigate a petitioning employer’s compliance with the L-1 program raises significant questions.

    With or without additional guidance from USCIS, L-1 employers should be prepared for FDNS site visits (and take them seriously should such a visit occur). In advance of an FDNS site visit, L-1 employers should conduct an internal audit of all L-1 employees to ensure that their job duties, worksites and salaries are readily available. Employers should also retain complete copies of all I-129 petitions and paperwork filed with USCIS. Additionally, employers should ensure that L-1 employees and their managers are aware of the content of the I-129 petition(s) and supporting documentation. While there is currently no requirement under the regulations to file an amended L-1 petition due to minor changes in employment, employers are required to file an amended petition if there has been a substantial change in employment (e.g., full-time to part-time, change in job location outside of MSA), or if it has been determined, post-filing, that there is a material fact provided in the petition documents that is false.

    Here are some practice pointers in dealing with an FDNS site visit:

    • The company representative should request the name, title, and contact information for the site investigator. There are multiple governmental agencies that may audit different nonimmigrant programs (e.g. the H-1B program), including ICE, the USCIS Department of Labor’s Wage and Hour Division, and/or the USCIS’ National Threat Assessment Unit. Therefore, it is critical that the company representative determine which agency he/she is providing information to in the event follow up is necessary.
    • If the investigator identifies him/herself as a USCIS FDNS contractor, the company’s representative should request a business card with a toll free number to obtain confirmation of his credentials prior to providing any information.
    • Legal counsel for the L-1 employer should be advised of the visitation prior to the start of any interviews of company representatives and should attend in person or by phone, if possible.
    • A company representative and/or counsel should accompany the FDNS officer during his/her review of the facility and request to be present during the interviews of any of the company’s employees. (This request may be denied in order to obtain the most candid responses from the employee).
    • The company representative should take notes of all information requested, and provided to, the FDNS officer – both verbally or in writing, including the locations visited, the pictures taken (obtain copies), and/or any other relevant information from the site visit.
    • Always provide complete and accurate information whether requested to do so onsite or subsequently via email.
    • If the FDNS officer has not gathered the required information, the officer will follow up with the L-1 employer via telephone or email to obtain additional information to complete the compliance review. (Counsel may assist with preparing such response).

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  • 06May

    While it’s not “news” that the Form I-94 Arrival/Departure Record system is now automated, on May 1, U.S. Customs and Border Protection (“CBP”) launched a new function to the existing Form I-94 website that permits all temporary (nonimmigrant) workers/visitors access not only to (i) one’s most recent Form I-94 Arrival/Departure Record, but also to (ii) one’s Form I-94 arrival/departure history for the past five (5) years from the request date.

    To do so, travelers should visit the same I-94 webpage (www.cbp.gov/I94) and enter the required name, date of birth, and passport information.

    By clicking on the “Get Most Recent I-94” button, as it has done in the past, the site will provide a printable copy of the most recent I-94 record, including the I-94 number, most recent date of entry, class of admission and the expiration or “admit-until” date.  (Keep in mind that this information will not reflect a change of status, extension of stay, or an adjustment of status granted by the USCIS).

    The new addition to the site includes the “Get Travel History” button.  By clicking on that button, the site should provide a printable five-year travel history based on one’s I-94 arrival/departure records.

    This electronic travel-history function means that travelers may no longer need to file Freedom of Information Act (“FOIA”) requests with CBP in order to obtain their arrival/departure history, greatly speeding up their process.  As such, CBP has added a function to allow travelers to cancel pending FOIA requests for travel history information – after they have received the information from the new website – by adding their FOIA Request Number and clicking on the “Request FOIA Cancellation” button.

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  • 22Apr
    H-1B Visa News Comments Off

    As anticipated, USCIS announced on April 7 that it received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

    In the first 5 business days of filing, USCIS reported to receive a record 172,500 H-1B petitions, including petitions filed for the advanced degree exemption.  This represents a nearly 30% increase from last year’s cap filings when 124,000 H-1B petitions were received within the first week of the filing period.

    On that basis, on April 10, 2014, USCIS announced that it deployed a computer-generated random selection process (i.e., a “lottery”) to select a sufficient number of petitions needed to meet the quotas.

    For those cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

    Given the exhaustion of H-1B visa numbers for fiscal year 2015, absent immigration reform legislation, the next time U.S. employers will be eligible to file an H-1B petition under the cap will be April 1, 2015, for a start date of October 2015.  Until then, employers are left with no choice but to consider alternative visa options for employing qualified foreign-born professionals. While there are a limited number of options available, there are, indeed, viable options for potential hires for whom you cannot (or will not) wait until October 1, 2015 to employ.

    Of course, USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

    If you have any questions about the H-1B visa cap or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

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  • 29Jan
    H-1B Visa News Comments Off

    This is a reminder of the quickly approaching April 1, 2014 “deadline” for the filing of H-1B for Fiscal Year 2015 which starts on October 1, 2014.

    Given pent-up demand for H-1B numbers, we fully expect the cap to be reached on the first day of April.  USCIS will, however, accept petitions during the first five (5) business days; i.e., through April 7, 2014. Once the H-1B cap has been reached, employers will be ineligible to file new cap-subject H-1B petitions for a full year, until April 1, 2015. As such, we strongly encourage you to identify employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely April 1 filing.

    Assess Your Company’s H-1B Cap-Subject Needs:

    The H-1B visa is, by far, the most sought-after temporary work visa in the United States for foreign-born, professional workers. The H-1B category requires sponsorship by a U.S. employer and is limited to specialty occupations which generally require the candidates hold at least a bachelor’s degree or the equivalent in a relevant discipline.  For current or transferring employees, employers should consider who might need to file an H-1B on April 1, 2014 for Fiscal Year 2015:

    • Identify F-1 (student) employees working pursuant to Optional Practical Training who will need to file a change of status to H-1B to continue working beyond the expiration of their current Employment Authorization Document (EAD);
    • Determine whether any TN employees (NAFTA professionals) will need to file a change of status to H-1B to be eligible to apply for adjustment of status to a lawful permanent resident;
    • Consider employees in L-1B status (intra-company transferees with specialized knowledge) who will need to file a change of status to an H-1B to gain an additional year of work authorization  (and for whom a change of status is a necessary component for a longer-term strategy of pursuing lawful permanent residence for that employee);
    • Consider employees in O-1 status (which O-1′s  are renewable in only one year increments) as compared to a full three (3) year validity period offered by the initial approval of the H-1B classification; and
    • Identify potential candidates who are currently abroad and have not been previously counted against the H-1B cap.

    PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B nonimmigrant professionals seeking to file an extension of stay or a transfer petition are not subject to the cap.

    Any cap-subject petitions filed after the cap has been met will be returned to the sender who will not be eligible to re-file until April 1, 2015.

    If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

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  • 09Apr
    H-1B Visa News Comments Off

    U.S. Citizenship and Immigration Services (“USCIS”) announced on April 5 that it had received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (“FY”) 2014. USCIS also announced that it received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced U.S. degree cap. As such, Friday, April 5, was the final receipt date for new cap-subject H-1B petitions requesting an employment start date of October 1, 2013.

    The following Monday, April 8, USCIS followed up with an announcement that it received an astounding 124,000 H-1B petitions within the first week of the filing period, including petitions filed under the advanced degree exemption.

    As such, as it has done in the past, USCIS deployed a computer-generated random selection process (more commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps.  For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

    It may be a few weeks before we are advised whether a particular petition has been selected for adjudication.  In the past, this was accomplished by USCIS sending the petitioning employer (or its legal representative) a receipt notice (Form I-797) of the filing.

    The fact that the cap was reached within a matter of days is evidence of the high level of demand by U.S. employers eager to hire highly skilled foreign workers.  By contrast, last year, the H-1B cap was reached in slightly more than two (2) months.  The year before that, in 2010, the H-1B cap was not reached for ten (10) months.

    Given the exhaustion of H-1B visa numbers for fiscal year 2014, absent new reform legislation, the next time U.S. employers will be eligible to file an H-1B petition under the cap will be April 1, 2014, for a start date of October 2014.  As such, employers are left with no choice but to consider alternative visa options for employing qualified foreign-born professionals. While there are a limited number of options available, there are, indeed, viable options for potential hires for whom you cannot (or will not) wait until October 1, 2014 to employ.

    Of course, USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

    If you have any questions about the H-1B visa cap or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

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  • 01Feb

    On January 29, 2013, President Obama addressed the country on his principles for comprehensive immigration reform. A major theme running through the President’s remarks was that there should not be a struggle between “us” and “them.” President Obama pointed out that most of “us” used to be “them,” reminding the country that America was built by immigrants. He urged Congress to adopt a common-sense approach to immigration issues, hoping that progressive reform could be attained in the near future.

    The President’s plan is similar to the blueprint that was released earlier this month by the bipartisan group of Senators known as the “Gang of Eight.” The members of the “Gang of Eight” are Republican Senators Marco Rubio (FL), John McCain (AZ), Jeff Flake (AZ), and Lindsey Graham (SC); and Democrats Chuck Schumer (NY), Robert Menendez (NJ), Michael Bennet (CO), and Richard Durbin (IL). The issues at the heart of the immigration debate are border security, workplace verification, a pathway to citizenship, and a revamping of our legal immigration system.

    The first steps to immigration reform have been (and will continue to be) stepped up efforts of border security and a continued expansion of prosecutions for worksite compliance violations (I-9 and H-1B compliance) against employers. Opponents of immigration reform will push hard for tougher border security before considering a pathway to citizenship for undocumented immigrants. As such, we can expect more enforcement actions against U.S. employers, and perhaps a nationwide mandate to require employers to utilize the E-Verify system. (The Department of Homeland Security’s E-Verify system cross-references the Social Security Administration database with the DHS’ Immigration database to ensure that employees are legally authorized to work in the U.S.) A reform bill will most likely call for improvements to the E-Verify system to cut down on technical errors within the system.

    The next issue is creating a pathway to citizenship for the more than 11 million undocumented immigrants in the U.S. The plan proposed by the “Gang of Eight” calls for immediate “probationary legal status” for undocumented immigrants. This will be followed by an opportunity to obtain a permanent residence conditioned on the payment of back taxes, submitting to a background check, and other requirements, including learning English, passing a civics test, paying fines, and completing community service. In addition, it has been noted that undocumented immigrants will not jump ahead of those already “in line” for U.S. lawful permanent residence. Lastly, the Senate’s proposal supports implementing the Dream Act, which will open the door to citizenship for undocumented children who, through no fault of their own, were brought to the U.S. illegally by their parents. The DREAM Act will allow such undocumented children to pursue their studies at U.S. colleges and universities as well as a pathway to U.S. lawful permanent residence that would not require the same lengthy process as other undocumented immigrants.

    Last, but certainly not least, there has been discussions on many other types of backlog and quota reforms relating to legal immigration system. The President addressed the need for reform in the Immigration Courts, judicial review, increased opportunities for entrepreneurship visas in the United States, as well as a more expansive definition of families that includes same-sex couples. These reforms were not mentioned in the original plan outlined by the “Gang of Eight,” but are meant to be expanded upon in discussion on the Senate floor. Other possible reforms include increasing the H-1B cap to over 100,000 visas per year  and increases in the quotas for immigrant visas in order to shrink the horrendous backlogs we are currently facing in the both employment-based and family-based applications for lawful permanent residence.

    It should be interesting to monitor the progress made in Congress on immigration reform over the coming months. If the President is not satisfied with the progress of comprehensive immigration reform, he may propose his own legislation ahead of the “Gang of Eight.” The ability of politicians from both sides of the aisle to compromise and work together will be critical prior to any reform bill being passed.

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