The book has an extensive index that provides updated materials on all these issues, including helpful checklists and copies of policy memoranda and other official materials that are difficult to find at a law library in online legal research services.

In Bluman v. Federal Election Commission, the plaintiffs argue that non-citizens living legally in the United States but who don’t yet have Lawful Permanent Resident (LPR) status (“green cards”) should have a First Amendment right to contribute to political candidates.  The plaintiffs, Benjamin Bluman and Asenath Steiman, are both foreign nationals who lawfully live and work in America but don’t yet have green cards.  Current federal law prohibits foreign nationals (other than green card holders) from making political contributions in connection with any federal, state or local election in the United States.  Violating the law is a crime and can result in jail time and substantial fines.  The plaintiffs claim that the foreign national ban violates the First Amendment and want the U.S. Supreme Court to declare the law unconstitutional.

In Louisiana v. Bryson, the plaintiffs argue that non-citizens—both authorized and unauthorized—should not be counted by the U.S. Census unless they have attained Lawful Permanent Resident status. Louisiana filed the lawsuit—an original action in the United States Supreme Court—because the State believes that it has lost one seat in Congress as a result of the Census practice of counting all residents.  Louisiana contends that other States such as California have disproportionate numbers of foreign nationals who are not Lawful Permanent Residents, and those States have an advantage in the political process—and in the Electoral College—over States that have fewer foreign nationals without LPR status.

Although the cases may appear to be relatively straightforward to a layperson, in reality, both cases involve complex issues of U.S.immigration law:  Few members of the public know of the multitude of different immigration statuses; these statuses are not easily categorized as “temporary” or “permanent.”  While the immigration laws try to distinguish between “immigrants” (those who intend to reside permanently) and “non-immigrants” (those who enter the U.S.with an intent to be here temporarily), there are a multitude of “gray area” statuses, and the “dual intent” doctrine allows some “non-immigrants” to have an intent to remain permanently.  Is an H-1B professional worker a “temporary” or a “permanent” resident for Census purposes if he has an approved immigrant visa petition but is on a seven-year waiting list for his green card?  What about an El Salvadoran who has held Temporary Protected Status (TPS) for ten years, has U.S. citizen children, but who can’t adjust status because she entered the U.S. without inspection when she fled from the conflict in her country years ago?  Should the Census count an asylum seeker who has had his asylum application pending for many years, and who has permission to live and work in the United States until his asylum case is decided?  What about those who have a treaty-based right to live and work in the U.S., such as Native Americans born in Canada or citizens of Micronesia, Palau, and the Republic of the Marshall Islands?  Should the Federal Election Commission allow political contributions from an E-2 treaty investor who owns a U.S. restaurant and has been living and paying taxes in the United States for twenty years, but who can’t qualify for a green card because his business is too small to meet the complex and difficult EB-5 immigrant investor requirements?

Many Americans are aware that millions of unauthorized immigrants live in the United States, but few understand that there are also millions of foreign nationals who live legally in the United States for years at a time, but cannot obtain “green cards.”  These two Supreme Court cases have the potential to affect both the authorized and the unauthorized foreigners among us.

Recently, the Supreme Court recognized that non-citizens in removal proceedings have a Sixth Amendment right to counsel, but it is not clear what the Court will do with their First Amendment rights, or with their right to be counted as residents in the Census.  Reading the briefs for both the Bluman v. FEC and the Louisiana v. Bryson cases, one is struck by the complexity of the issues potentially facing the Supreme Court.  Although styled as a First Amendment case, Bluman could affect other Constitutional protections that are routinely afforded to non-citizens who have not yet obtained Lawful Permanent Resident status.  And Louisiana v. Bryson could change the results of a Presidential Election, depending on how it is decided, and vastly increase the complexity of U.S. Census questionnaires (if Lousiana prevails, the Census Bureau will have to account for more than one hundred different types of immigration statuses that residents of the U.S.currently hold). 

With its decisions in these cases, the U.S. Supreme Court could create even more chaos in the currently dysfunctional American immigration system.  Potentially, for example, the Court could rule that a Treaty NAFTA professor at Louisiana State University has a right to contribute to Louisiana Governor Bobby Jindal’s political campaign, but can’t be counted in the U.S. Census as a resident of Louisiana.  These two cases are ones that all immigration practitioners should be watching closely.

On May 16, 2011, the U.S. Department of Justice (DOJ) announced that Maricopa County Community College in Arizona had agreed to pay $45,760 in civil penalties and $22,123 in back pay to settle a lawsuit filed after foreign workers were asked for too much documentation when they were hired by the College.  On December 28, 2011, DOJ announced that defense contractor BAE Systems Ship Repair Inc. had agreed to pay $53,900 because its Alabama subsidiary had been requiring all newly hired lawful permanent residents to present permanent resident cards, commonly known as “green cards,” as a condition of employment.   According to federal worksite verification regulations, employers cannot demand that lawful permanent residents present “green cards;” it is up to the employees to decide which documents they will present to verify their eligibility to work.  A green card holder may present a driver’s license and Social Security card, among other documents, to satisfy the federal requirements.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) at the Department of Justice is responsible for protecting work-authorized individuals against discrimination.  OSC will assist workers and file suit when it discovers that employers have not been complying with employment eligibility verification laws, which require employers to be careful when asking for documents to verify work eligibility.  In OSC’s view, asking for too much documentation can be just as bad as not asking for documentation at all.

OSC recognizes four types of “document abuse” that can result in fines:

1. Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;

2. Improperly requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;

3. Improperly rejecting documents that reasonably appear to be genuine and to relate to the employee presenting them; and

4. Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to present particular documents the employer does not require other employees to present.

OSC operates a worker hotline at 1-800-255-7688, and an employer hotline at 1-800-255-8155.  People who have questions about documentation requirements can also email osccrt@usdoj.gov or visit OSC’s website at www.justice.gov/crt/about/osc.

Dual citizenship is something that millions of Americans possess, often inadvertently.  Whether a person holds citizenship in a particular country is a matter of that country’s law, not U.S. law, and one’s citizenship is thus not always within the control of the individual or the United States Government.  Although some countries allow their citizens to expatriate, others do not.  Some people are dual citizens because their parents or grandparents hold citizenship in a foreign country; others are dual citizens because they were born in another country.  The U.S. Office of Personnel Management has published “Citizenship Laws of the World,” a document that explains the wide variety of rules regarding citizenship.  Although this document is not completely up-to-date (some countries have changed their laws since it was published), it can give a reader a good idea of the potential problems posed by the Army’s personnel regulation.  According to OPM, for example, the country of Iran considers the children of male Iranian citizens to be Iranian citizens as well, and prevents them from renouncing Iranian citizenship–so any US-born child of an Iranian citizen is necessarily a dual citizen of the United States and Iran, and can’t rid himself of Iranian citizenship.  Should the US Army bar a young American of Iranian descent from serving in the US Army Special Forces, merely because his father is an Iranian immigrant to the United States?  One would hope not.

The Army’s regulation preventing all dual US citizens from enlisting in most Army jobs is a much broader bar than the military has previously applied.  Previously, dual citizenship did not prevent enlistment into any job and did not automatically bar a person from holding a security clearance; instead, security officials would evaluate each person’s case individually. Ironically, famous Americans such as George Washington, John F. Kennedy, John Shalikashvili, Marco Rubio, and even Barack Obama would likely have been barred from serving in most Army jobs had they attempted to join the US Army at a time when this regulation was in effect. 

The rule barring dual citizens from enlisting in most jobs also cedes American sovereignty to other countries, because it lets foreign countries control who can serve in the US Army.  As discussed above, a foreign country–not the United States–determines who is a citizen of that country.  When a foreign country determines that an American holds its citizenship, that American necessarily is a dual citizen of that country and the United States.  Barring these dual citizens from enlisting thus lets foreign countries use their citizenship laws to control which Americans can serve in the Army. Allowing foreign laws to control who gets to enlist in the US Army is clearly not in America’s national security interest.  Let’s hope that Army leaders reconsider their new rule at the first opportunity.

The Legal Workforce Act, sponsored by Representative Lamar Smith (R-TX), was marked up by the House Judiciary Committee in September 2011, and could face a floor vote soon in the House.  The bill would mandate participation by all U.S. employers in the E-Verify program, a system designed to check the employment authorization status of employees. 

The proposal to make E-Verify mandatory now, in the midst of hard economic times, has garnered varied and divisive reaction.  The Seattle Times published an article regarding reactions of local small businesses and State government officials to making E-Verify mandatory.  Supporters of E-Verify say the system is easy to use and can potentially free up jobs for unemployed American workers.

Opponents of mandatory E-Verify say it hurts more than it helps.  Washington Governor Chris Gregoire and local farm-group representatives recently visited DC to lobby against the Legal Workforce Act, emphasizing the negative effect of mandatory immigration verification on the farm labor workforce in Washington State.  If Washington farm workers (most of whom are estimated to be undocumented) did not pass mandatory E-Verify screening, agricultural employers would be forced to either lay off a large part of their workforce and leave their crops unharvested, or keep their workers for harvest but expose their companies to significant fines and other liabilities.  Employers also have the option of trying to use the complicated H-2A visa program for seasonal agricultural workers, but even the House Committee on the Judiciary has acknowledged that this system is burdensome and may not meet employers’ needs. 

Given current trends, it could be only a matter of time before U.S. employers, large and small, agricultural and non-agricultural, would be required to use E-Verify or a similar system to screen all new hires.  The concept behind E-Verify–providing U.S. employers an immigration verification tool synced with federal government databases–is not a new one.   In 1996, Congress mandated the development of a pilot program in Section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act; this program has evolved to become E-Verify.  The federal government has been encouraging U.S. companies to enroll in E-Verify, and has taken other actions to ramp up enforcement of immigration sanctions against employers.   In recent years, Social Security no-match letters and unprecedented increases in I-9 and other workplace audits by the Department of Homeland Security have affected many U.S. businesses.  Under the current administration, employers have been assessed record fines for immigration violations.

Does your business have a plan in case you are targeted for immigration enforcement or audits, or have you thought about how mandatory E-Verify could affect you?  Here are a few suggestions to get you started thinking about immigration compliance for your company.

As a result of the Executive Order and the ongoing conflicts in Iraq, Afghanistan, and elsewhere, and in cooperation with the Department of Defense, United States Citizenship & Immigration Services (USCIS) began its Basic Training Initiative.  Under this initiative, qualified military recruits are naturalized as American citizens when they graduate from military basic training.  The USCIS initiative began with the Army in 2009, and was then extended to the Navy and (most recently) the Air Force; the Marine Corps is not yet participating.  All active duty military members, as well as National Guard and Reserve members undergoing basic training, are eligible to participate.

Basic training naturalizations were common in prior wars, including World War II and the Vietnam War, and it makes sense that USCIS would make them possible in today’s conflict as well.  Basic training naturalizations save the government money, reduce potential legal problems for military personnel, and ensure compliance with the Military Citizenship Processing Act, a 2008 law that mandates the quick processing of military naturalization applications.

Here’s how the fraud scheme works: An attorney receives an email from a person purporting to be a wealthy foreigner who wants to obtain an EB-5 immigrant visa by investing in a business in the United States.  The person asks for an attorney-client fee agreement and is anxious to know the attorney’s fee.  The person also says that he will send a check (often a cashier’s check) for the attorney’s fee, plus the full amount of the investment. 

The check that arrives looks like a real check and may have the name of a real company and real account number on it; it may even appear to be a valid cashier’s check.  The attorney deposits the check, which initially results in a large balance appearing in the attorney’s trust account.  Shortly thereafter, the client directs the attorney to wire some or all of the funds elsewhere, typically to an overseas account.  Later, the attorney learns that the check was phony, and the attorney now must repay the bank for the wired funds.

This scheme works because the attorney’s bank merely acts as the agent of the owner of a check for the purpose of collecting the check; the bank may provide provisional credit on a deposited item, pending final settlement or payment of the check, but if the original check turns out to be phony, the bank will demand repayment from the depositor (in this case, the attorney).  It may take months for a US bank to determine that a check from a foreign country is phony.  If an immigration lawyer accepts a large check from a client, deposits the check, and then wires the provisional funds back to the client for the client to use for other purposes, the lawyer may end up being victimized if the check turns out to be fraudulent.

Banks around the United States are currently publishing customer service articles describing similar schemes that have victimized business and divorce lawyers, but now the fraudsters are attempting to use the EB-5 program as a means of targeting immigration lawyers.  Attorneys are advised to be wary of anxious EB-5 investors who want to send large checks directly to the attorney for deposit in the attorney’s trust account, and who later direct the attorney to wire the money elsewhere.  Any attorney who suspects that such a scheme is fraudulent should contact the bank or law enforcement for assistance.

My thanks to Jason Feeken of Wells Fargo Bank for assistance in writing this blog post; Jason has written similar articles about fraud schemes targeting lawyers who practice divorce or business law.

At this time when our economy is sagging, the U.S. tourist industry and business in general could use a shot in the arm from foreign tourists, family members, conference attendees, company representatives, and other visitors. The U.S. Department of Commerce agrees. In a June 2011 report, the Chief Economist of the Commerce Department pointed out that, “Every visitor spends money in the United States. When foreign visitors come to the United States, they spend money on hotels, restaurants, donuts, and other U.S. goods and services.”

U.S. immigration law requires consular officers to view every visa applicant as an intending immigrant who does not intend to return to his or her home country. At a visa interview, the applicant must prove otherwise, and show strong ties outside the United States. The State Department admits that a subjective standard is applied to deciding who can come to the U.S.: “Strong ties differ from country to country, city to city, individual to individual. Some examples of ties can be a job, a house, a family, a bank account. ‘Ties’ are the various aspects of your life that bind you to your country of residence: your possessions, employment, social and family relationships.”

State Department statistics show that family-based immigrant visa issuance has decreased since 2006. Nonimmigrant, temporary visa approvals in 2010 were down from 2007 and 2008 levels, though up from 2009 levels. Given current lengthy administrative processing delays, 2011 approvals could be down yet again. Applicants denied visas have little recourse, as there is often no effective way to appeal a visa denial.

On eve of the September 11 remembrance, Secretary Powell cautioned Americans not to worry so much about terrorism that “we start to lose the essence of who we are as an open, freedom-loving people, welcoming to the rest of the world.” U.S. embassy and consulate officials need to heed the advice and loosen up visa policy and let foreign visitors into the United States. As the Chief Economist urged, “the United States has a lot to gain from opening its doors — and sharing donut lines — with international visitors.”

Currently, the primary investor options that exist essentially are the following:

• E-2 temporary investor visas, available based on citizenship in countries with bilateral investment treaties with the U.S.;
• L-1 temporary transfers of executive, managerial, and specialized knowledge personnel to U.S. parent, subsidiary, affiliate or branch offices of foreign entities;
• EB-1 permanent transfer (and green card) for multinational managers and executives from a related company abroad to a U.S. subsidiary or affiliate; and
• EB-5 permanent resident status (and green card) for $1 million investment, or $500,000 under some circumstances, with job creation.

Other creative investor options may be available, including the following:

• H-1B temporary status for investors who are employed in professional positions requiring at least a bachelor’s degree;
• EB-1 permanent resident status (and green card) for investors with extraordinary ability and at the top of the field of endeavor; and
• EB-2 permanent resident status (and green card) for investors who serve the national interest and create job opportunities.

While the timeline for immigration reform is unclear, the sluggish U.S. economy may prompt creative solutions from U.S. lawmakers that present opportunities for foreign investors.  A U.S. immigration stimulus plan that boosts the economy and sparks innovation could have benefit to foreign enterprises and entrepreneurs seeking access to U.S. markets and resources.

Meanwhile, Congressman Zoe Lofgren introduced the Immigration Driving Entrepreneurship In America (IDEA) Act. The efforts to spur foreign investment are gaining interest and some traction.

Currently, the primary investor options that exist essentially are the following:

• E-2 temporary investor visas, available based on citizenship in countries with bilateral investment treaties with the U.S.;
• L-1 temporary transfers of executive, managerial, and specialized knowledge personnel to U.S. parent, subsidiary, affiliate or branch offices of foreign entities;
• EB-1 permanent transfer (and green card) for multinational managers and executives from a related company abroad to a U.S. subsidiary or affiliate; and
• EB-5 permanent resident status (and green card) for $1 million investment, or $500,000 under some circumstances, with job creation.

Other creative investor options may be available, including the following:

• H-1B temporary status for investors who are employed in professional positions requiring at least a bachelor’s degree;
• EB-1 permanent resident status (and green card) for investors with extraordinary ability and at the top of the field of endeavor; and
• EB-2 permanent resident status (and green card) for investors who serve the national interest and create job opportunities.

While the timeline for immigration reform is unclear, the sluggish U.S. economy may prompt creative solutions from U.S. lawmakers that present opportunities for foreign investors. A U.S. immigration stimulus plan that boosts the economy and sparks innovation could have benefit to foreign enterprises and entrepreneurs seeking access to U.S. markets and resources.

Immigration cases are often very complicated, and the complexity of the law and constantly changing procedures often lead to situations where a case ends up in limbo, the Government makes a mistake, or the case may need to be expedited to prevent hardship.  When the matter involves a mix-up or delay at United States Citizenship & Immigration Services (USCIS), the Ombudsman’s Office can help.  Asking the Ombudsman for help is free; one simply fills out a form (DHS-7001) and sends it to the Ombudsman; in Texas and Washington, DC, one can even file the form online through a new pilot program.  The Ombudsman has a website that provides a link to the DHS-7001 and the procedures for filing it.

Before filing a DHS 7001 form with the Ombudsman, we go through these steps to try to resolve the problem:

• Call the USCIS National Customer Service Center at 1-800-375-5283 (or for cases involving US military members, 1-877-CIS-4MIL (1-877-247-4645))
• Check My Case Status Online
• Make an INFOPASS Appointment with USCIS

If none of those steps will resolve the problem, filing the DHS 7001 may be the next best step. 

In fact, in the case discussed above, the help of the Ombudsman resulted in a quick reversal of USCIS’s initial erroneous decision, and the child was able to get her certificate of citizenship.