Kennedy's Immigration Law Report

Sotomayor Introudces Supreme Court to Phrase "Undocumented Immigrant"

Austin Kennedy — Thu, 10 Dec 2009 13:48:35 -0600

The Supreme Court on Tuesday released its first four decisions in argued cases this term, which also happens to be Justice Sonia Sotomayor's first term. All four decisions were relatively minor, but one stands out on account of Sotomayor's word choice. According to the New York Times, Justice Sotomayor's opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, included the Supreme Court's first use the term "undocumented immigrant". In contrast, the term "illegal immigrant" has apparently appeared in a dozen earlier decisions.

Though many will make much of this utterance, I doubt that Justice Sotomayor labored over this particular word choice. It's not that I think that her word choice is insignificant, but I doubt that she consciously devoted much thought to how she'd describe people who are allegedly in the United States without proper authorization. Rather, as the daughter of Puerto Rican parents who moved to the United States during World War II, Judge Sotomayor relates to the immigrant experience, whether it be of the 'documented' or 'undocumented' variety. Language is the process through which we define the world around us and our role within it. In choosing (consciously or not) to pen the phrase "undocumented immigrant", rather than "illegal alien', Judge Sotomayor humanizes individual people who too often are dismissed and described with words designed to create the impression of a faceless mass of criminality. Not too shabby for her first opinion.

Immigrants' Important Economic and Political Impact In Iowa

Austin Kennedy — Wed, 02 Dec 2009 08:44:37 -0600

The Immigration Policy Center (formerly American Immigration Law Foundation) is a great organization that provides highly valuable practice advisories to immigration lawyers while also lobbying for pragmatic immigration laws and providing a vitally sane voice on the economic and cultural impact of immigration in the United States. In other words, an important part of their mission is to disseminate quality, objectively verifiable information that disputes common myths about immigration here in the U.S.

To this end the IPC has recently released the result of research and analysis which shows immigrants, Latinos, and Asians are clearly an important part of Iowa's economy, labor force, and tax base. Immigrants and their children are a growing economic and political force as workers, consumers, taxpayers, and entrepreneurs. Immigrants and their children will continue to play a key role in shaping the economic and political future here in Iowa.

Highlight's from IPC's research and analysis include:

In 2007 Iowa was home to 117,437 immigrants;
34.5% of immigrants in 2007 (or 40,473 people) in Iowa were naturalized U.S. citizens who are eligible to vote;
Latinos accounted for 4.0% (or 119,522) and Asians 1.6% (or 47,809) of Iowa's total population in 2007;
The 2008 purchasing power of Latinos totaled $2.4 billion and Asian buying power totaled $1.7 billion in Iowa in 2007;
Unauthorized immigrant families in Iowa paid between $40 million and $62 million in state and local taxes in 2007;
If all unauthorized immigrants were removed from Iowa, the state would lose $1.4 billion in expenditures, $613.4 billion in economic output, and approximately 8,819 jobs.

As you can see, Iowa isn't the homogeneous state many assume it to be. Immigrants' economic, cultural and political impact on Iowa will only continue to grow in the coming years.

"Love Knows No Border"--The K-1 Fiancée Visa

Austin Kennedy — Wed, 14 Oct 2009 15:39:52 -0600

This is Part 1 of the on-going "Love Knows No Border" series, where we'll take a look at the various immigration approaches couples can take to allow their loved one to gain access to the United States so the couple can be together in the United States. With this first installment of the series, we'll examine the K-1 visa, commonly known as the fiancée visa. To keep things relatively simple, we'll use the term "fiancée" to mean either a man or a woman. The K-1 non-immigrant visa category permits the fiancée of a U.S. citizen to enter the United States for a 90-day period of time to marry the U.S. citizen and apply for permanent residence.

A K-1 visa can be issued only after the applicants have proved the following three key elements:

the parties have previously met in person within two years of the date when they filed the petition (unless a waiver is granted);
the parties have a bona fide intention to marry; and
the parties are legally able and actually willing to conclude a valid marriage in the United States within 90 days of the K-1 fiancée's entry to the United States.

Each of these three requirements is discussed below.

The "Previous Meeting" Requirement

In order to be eligible for K-1 status, the law requires that the couple must have met in-person within the two years prior to the filing of the petition. Meeting over the internet, either by video or email or over the telephone, typically will not suffice. The "previous meeting" requirement may be waived upon proof that compliance would: a) result in extreme hardship to the petitioner; or b) violate strict and long-established customs of the beneficiary's foreign culture or social practice (ie., this is typically, but not always, an 'arranged marriage' situation).

The "Freedom to Marry" Requirement

Both parties to the intended marriage must demonstrate that they are both free to marry and that they in fact intend to enter into a valid marriage within 90 days following the fiancée's entry into the United States. In terms of being 'free to marry', both individuals must demonstrate that they're not currently married to someone else. If one or both of the parties have been previously married, they'll have to provide proof that the previous marriage has been legally dissolved (ie., divorce). In addition, the parties will have to prove that there is no law which would prohibit the wedding from occurring. For example, issues related to age or gender may prohibit certain individuals from being married in the United States.

The "Bona Fide Intention to Marry" Requirement

Rightly or wrongly, the U.S. government casts a skeptical eye toward marriages between U.S. citizens and foreigners. When evaluating a petition for K-1 status, the government starts from the position that they believe the marriage is occurring illegally for immigration benefits. Therefore, in order to overcome this presumption, the applicants must prove the "bona fides" of their relationship and intent to be married. In other words, they must prove that their love is real, and the marriage is occurring for no reason other than the couple's legitimate desire to be together.

The U.S. government deals very harshly with those that are found to have entered to a "sham marriage" for immigration benefits. Both parties to a sham marriage can be prosecuted criminally. In other words, the penalty can apply to the person coming from abroad and/or to the U.S. citizen.

Admission to the United States

K-1 non-immigrants are admitted with a single entry visa for 90 days to marry the U.S. citizen petitioner. If the K-1 fiancée actually does marry the U.S. citizen petitioner within 90 days of entry, then the K-1 fiancée is eligible to apply for adjustment of status to permanent residency. If the marriage does not occur within 90 days, the K non-immigrant must leave the United States. If the marriage does not occur and the person in K-1 fiancée does not depart from the United States, the person can be removed (ie., deported).

In summary, the K-1 visa is one tool couples can utilize to bridge the divide and begin a life together in the United States. That said, the 90 day window of time feature of this particular visa does create some logistical hurdles. As a recently married man, I can attest to how daunting it would be to have to produce a wedding within 90 days. But it certainly isn't impossible, and it does allow the foreign fiancée to adjust status fairly quickly to that of a permanent resident, which is a pretty huge benefit. All in all, the K-1 visa is one option that should be considered when one half of the couple is living abroad and the other is a U.S. citizen. Check back soon for Part 2 of the "Love Knows No Border" Series, where we'll discuss the K-3 visa.

U.S. Struggles to Keep Tabs on People with Expired Visitor Visas

Austin Kennedy — Wed, 14 Oct 2009 11:44:02 -0600

On Monday the New York Times posted an interesting piece detailing the story of Hosam Husein Smadi. Mr. Smadi was recently arrested in connection with a plot to allegedly blow up a Dallas skyscraper. Mr. Smadi had been illegally in the country for a quite a while, and should have been removed long ago.

Mr. Smadi's story highlights what administration officials fear is a common immigration situation--every year millions of people use a temporary visa to gain entry to the United States, but the government suspects that thousands of them never leave. Mr. Smadi appears to have been one of these people.

Since 2004 the U.S. government has put systems in place to check all foreigners as they arrive, no matter how they arrive. Customs officers now take fingerprints and digital photographs of visitors from most countries, and instantly compare them against law enforcement watch list databases.

In addition to the biometric measures, most entrants are also given something called an I-94 card. The I-94 card is a small square card that is supposed to be stapled into the person's passport. The I-94 card is supposed to record and reflect when and where the person arrived in the United States, and also present a date that says when the person is supposed to exit the United States. Then, when the person actually departs from the United States, they're supposed to turn the I-94 card back over to the government officials. The NY Times piece says that this check-out procedure often doesn't happen.

In fact, last year alone, 2.9 million foreign visitors on temporary visas like Mr. Smadi's checked into the United States, but never formally checked out. Some or perhaps most of these people may actually have vacated the country but failed to turn over their I-94 card. That said, the government has no way to be certain. Overall, government officials believe 40 percent of the estimated 11 million illegal immigrants currently in the U.S. came on legal visas and overstayed. The government has a very difficult time tracking these people down.

Obviously this situation brings about serious security concerns. But homeland security officials say that a series of pilot programs operating since 2004 have failed to yield a reliable exit monitoring system for the whole nation. Apparently they have not yet found the technology to support speedy exit inspections at land borders. Last year airlines balked at an effort by the Bush Administration to make airlines responsible for taking fingerprints and photographs of people exiting the U.S. So, in the meantime, the quest for a universal exit monitoring system continues.

Law enforcement agencies are left with the unenviable task of trying to weed through the masses to figure out who has overstayed their visa, and whether or not they pose a security threat. Senator Charles Schumer (D-N.Y.), chairman of the Judiciary Committee's subcommittee on immigration, says he is trying to steer money from the economic stimulus program to build an exit montioring system. Given this situation's obvious gravity, it's surprising to me that Sen. Schumer's efforts haven't gained more traction.

Fraudulent Immigration 'Consultant' Sentenced to 41 Months in Prison

Austin Kennedy — Fri, 25 Sep 2009 09:33:44 -0600

Shahrzad Eram Soleimanlou, of Falls Church, Va., was sentenced last week to 41 months in prison for defrauding her immigration clients of approximately $1 million from June 2000 through December 2005. She'll be required to pay $1 million in restitution.

Apparently Soleimanlou's scam involved lying to immigration applicants by telling them that money was required to establish something akin to a bond to demonstrate to officials that the applicants had the financial ability to support themselves and would not become a financial burden on society. She'd then steal the money and use it for her own purposes.

Hucksters and scam artists like Soleimanlou have traditionally been and, sadly continue to be, a real problem in the world of immigration law. Immigration laws are so complex and immigration clients are often so vulnerable that snake oil merchants like Soleimanlou have long exerted a corrosive and parasitic influence on the immigration system. Obviously they steal immigrants' money and they oftentimes destroy any legitimate claim to relief that might have once existed for an immigrant, but they also damage the reputation of legitimate, hard-working and ethical immigration lawyers. The more prosecutions of this nature the better for everyone. Hopefully the new Administration will make such prosecutions an enforcement priority.

HIV and AIDS Immigration Ban Nears End

Austin Kennedy — Thu, 24 Sep 2009 14:17:10 -0600

As many of you know, if an alien wishes to fully immigrate to the United States, the alien is required to submit to an HIV test as part of the overall medical screening process. Moreover, the USCIS currently has the power to deny visas to those applicants who test positive for HIV or AIDS. This roadblock also prevents those otherwise already legally located in the United States from adjusting status to a permanent resident if they are determined to have HIV/AIDS, no matter how far along they are in the immigration process.

This era appears to be nearing an end. Yesterday the USCIS issued this memo which instructs USCIS officers to place a hold on any green card applications which would otherwise be denied simply because of the applicant's HIV status. The hold will remain in place until the arrival of the final Health and Human Services rule change, which will completely eliminate the HIV/AIDS ban.

As observers have noted, the guidance memo shows that the Obama administration is very close to a final repeal of the ban, and is now instructing agencies to be ready for a pretty significant change in policy.

E-2 Investor Visa Observations

Austin Kennedy — Thu, 06 Aug 2009 09:24:43 -0600

Over the last 6 months or so I've had the good fortune of having a spate of E investor visa work. This kind of work is easy to feel good about, not only because it is good business, but because E-1 and E-2 investors directly stimulate the American economy. At a time when unemployment figures are higher than we'd like to see them, it makes all the sense in the world to have these investors starting companies in the U.S. and hiring employees. For those who are unfamiliar with the program, I should explain that E-1 and E-2 visa investors have to demonstrate as preconditions for obtaining their investor visas that they have invested a substantial amount of their own money into a U.S. business and that the business will be hiring a certain number of U.S. employees.

Anyway, after having successfully obtained a number of E-2 investor visas over the last couple months, a couple of observations come to mind:

First, an informed and well-written business plan is essential. If the immigrant investor isn't capable of writing a good business plan, then someone needs to be hired to do so. The plan needs to demonstrate that the business has forecasted reasonable expectations for financial growth and for hiring.
Second, the investment capital must be entirely owned and controlled by the intending immigrant. The investment capital can have been gifted to the E investor, but the capital cannot be in the form of loan proceeds that encumber any of the business property.
Third, consulates abroad take a long time to process these applications, so the investor needs to understand that the visa isn't going to be issued over night. Plus, it is extremely and maddeningly difficult to communicate with the consulate regarding the application. You can email or call through a third party private vendor service, but it will cost you approximately $25.00 per time. Plus, and this is a real treat, emails sent through the service have to be very short in length, I believe 200 words or less. Finally, the consulates routinely send you mysterious faxes that lack any sort of return fax number or other contact information. So you get the fax requesting additional information or clarification, and then it becomes an expensive race to the FEDEX box.
Fourth, make sure the investor hires an accountant. The investment needs to be clearly documented and explainable to the consulate, and accountants (as you might imagine) excel at such things.
Fourth, probably because this is a pretty unique area of the law, many consulate branches abroad seem unaware of the fact that they (ie., the Department of State) have jurisdiction to directly adjudicate the visa. In other words, the investor does not first have to petition USCIS for their status. All evidence and application materials can be sent directly to the consulate abroad. So, a friendly reminder on the front end of the process of their jurisdiction and authority seems to be a helpful icebreaker.

As you can see, E-1 and E-2 investor visas are a challenging area of immigration law, but also rewarding in a number of ways. The investors directly stimulate the economy by infusing it with large sums of investment cash, plus they hire U.S. workers. Makes sense, eh?

I-9 Audits Coming Your Way

Austin Kennedy — Thu, 02 Jul 2009 09:23:34 -0600

On July 1, 2009, Immigration and Customs Enforcement (aka, ICE) launched a new, "bold", audit initiative by issuing Notices of Inspection (NOIs) to 652 businesses nationwide. In comparative terms, these 652 NOIs are more that ICE issued during all of last year. According to ICE's press release, the notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with the I-9 employment eligibility verification laws and regulations. This new initiative is part of the Obama administration's directive to ICE to shift focus away from finding illegal workers and toward efforts to hold employers accountable for their hiring practices.

Somewhat ominously, ICE's press release also states that the 652 businesses presented with NOIs have been selected as a result of leads and information obtained through other investigative means. In other words, these audits are specifically targeted, rather than casually random.

If you receive an NOI from ICE, my best advice is for you to call your local immigration attorney.

More Support for Comprehensive Immigration Reform

Austin Kennedy — Tue, 21 Apr 2009 13:50:01 -0600

The NYT editorial board is out today with yet another very strong piece on the wide-reaching economic arguments supporting immigration reform legislation that includes the legalization of the people currently located in the U.S. without valid immigration status. The key grafs:

The unions, at least, understand that there is a better way. They see immigration reform as an issue of worker empowerment. If undocumented immigrants undercut wages and job conditions for Americans — and many do, by tolerating low pay and abuse and bolstering an off-the-books system that robs law-abiding employers and taxpayers — it is because they cannot stand up for their rights.

“Workers don’t depress wages. Unscrupulous employers do,” said Terence O’Sullivan, president of the Laborers’ International Union of North America. Unemployment in his industry is above 21 percent. Nearly two million construction workers are out of work. So what does Mr. O’Sullivan want? Reform that allows immigrants to legalize. “If we can free them so they can come out of the shadows, we can not only improve their lives, but all workers’ lives,” he said.

When framed in terms of the economic benefits to all American workers (especially laborers), rather than nativist misinformation, immigration reform and the legalization of currently undocumented workers just makes sense.

DOL Extends H-2A Visa Transition Procedures

Austin Kennedy — Mon, 20 Apr 2009 09:19:30 -0600

On Thursday, April 16, 2009, the DOL published an amendment to its current H-2A visa regulation. My thoughts and a summary of the new Final H-2A rule can be found here. The most recent amendment to the Final H-2A Rule states that employers requiring H-2A temporary agricultural workers to start work before January 1, 2010 (rather than July 1, 2009), will file Applications for Temporary Employment Certification in accordance with the transition period procedures in 20 CFR 655.100(b)(2)(2009). Stated briefly, the transition procedures provide that a prospective H-2A employer should first file its temporary H-2A labor certification application and then conduct recruitment for U.S. workers. As always, I recommend that everybody read the full text of the new, Final H-2A rule for themselves.

The Argument for Immigration Reform During Tough Economic Times

Austin Kennedy — Thu, 16 Apr 2009 14:43:00 -0600

It's been a great couple of weeks for the immigration reform effort. First, last week President Obama announces that he's determined to live up to the promises he made on the campaign trail and begin facilitating a national dialogue in support of immigration reform. But the administration knows that immigration reform is one of the most challenging issues around, especially during an economic downturn, so it got out ahead of the predictable uproar by offering a helpful and clear-headed frame around the issue. Basically, the administration said this: immigration reform isn't an effort to add millions of new workers to the workforce, it's simply an effort to recognize those who are already in the workforce. An argument of this nature has the benefit of being both reasonable and true. How about that?

And then earlier this week we learned that the A.F.L.-C.I.O and Change to Win, two vital segments of the American labor movement, had forged a compromise to support the reform effort, including a disciplined path to citizenship for the undocumented.

Why would two previously warring factions of the labor movement, two groups who represent many 'laborers' in the truest sense of the word, come around to be on the same side of this issue? Well, as the NYT pointed out in its April 14, 2009, editorial, "[e]ven in a bad economy--especially in a bad economy--getting undocumented immigrants on the right side of the law only makes sense." The editorial furthers the argument thusly:

The country has suffered mightily in the meantime. American workers and businesses continue to be undercut by the underground economy. The economic potential of some of the country's most industrious workers is thwarted. Working off the books--and living in constant fear of apprehension--they earn less, spend less, pay less in taxes and have little ability to report abuses or to improve their skills or job prospects.

The ingredients of reform are clear: legalization for the 12 million, to yield bumper crops of new citizens, to make it easier to weed out criminals and to end the fear and hopelessness of life in the shadows; sensible enforcement at the border that focuses on fighting crime, drugs and violence; a strengthened employment system that punishes business that exploit illegal labor; and a future flow of workers that is attuned to the economy's needs and fully protects workers' rights.

In other words, the writers of this editorial get it. The legal American workforce doesn't gain anything by allowing the underground economy to exist in its current state, especially on the 'lower', less educated end of the skill spectrum. If a scrupleless employer is faced with the prospect of hiring a likely undocumented worker for $6.50/hr., or a fully documented worker for $8.00/hr., who do you think he's going to hire? Nine times out of ten he'll choose the guy willing to work for less, the guy with no legal protections. To say that immigration reform and the legalization of millions of undocumented workers is somehow going to hurt the legal American workforce is exactly wrong. The tough part, however, is helping people see beyond their learned biases and come to terms with this basic economic reality.

Obama Plans to Begin Addressing Comprehensive Immigration Reform this Year

Austin Kennedy — Thu, 09 Apr 2009 15:30:45 -0600

I'd be remiss if I didn't point out today's most important immigration-related news item, which currently sits at number 4 on the NYT's most read list. In case you haven't already heard, President Obama says that he will begin this year trying to forge comprehensive immigration reform legislation.

Given the fact that President Obama is trying to simultaneously save the global economy, reform our health care and energy systems and resolve two major battles abroad, the most common response to this immigration news is likely to be "Why Now?"

In my mind, it's fairly simple. Last year while campaigning Obama made a number of pledges to voters of all ethnicities that he would begin attempting to address our country's broken immigration system during his first year in office. Latino voters, in turn, turned out in disproportionately large numbers for Obama. Today's announcement is simply his effort to live up to that promise. In other words, in this corner you'll find courage and honor.

Now our President isn't naieve, he knows that the poor souls at Numbers USA and the misleadingly-named FAIR will be screaming at the top of their lungs about Obama wanting to give jobs to foreigners at a time when too many Americans are without work. So it seems that the Administration will provide an effective frame on the issue by pointing out that Obama's plan would not add new workers to the American work force, but that it would recognize millions of illegal immigrants who have already been working here.

Plus, ever the community organizer, he is actively encouraging advocates for immigrants to build grass roots support within their communities for the issue. The article points out:

That is why Representative Luis V. Guiterrez, a Democrat from Mr. Obama's hometown, Chicago, has been on the road most weekends since last December, traveling far outside his district to meetings in Hispanic churches, hoping to generate something like a civil rights movement in favor of broad immigration legislation.

I think that's exactly the right approach to take in this situation. A controversial topic like immigration reform is never going to happen unless millions of like-minded people will it into existence. If you want to get involved and you live here in Iowa, a great place start is here.

FAQs Regarding Proposed H-2A Suspension

Austin Kennedy — Mon, 23 Mar 2009 11:28:46 -0600

Here's a link to the Employment and Training Administration's list of FAQs regarding the proposed suspension of the current H-2A regulation. At this point, however, the FAQs really just say that the current regulation remains in force until the end of the comment period and until such time that the Department has had a chance to consider the submitted comments.

Update on the Proposed Suspension of H-2A Regulation

Austin Kennedy — Tue, 17 Mar 2009 09:54:13 -0600

Yesterday's the DOL caused a good deal of confusion and anxiety by announcing the proposed suspension of the new H-2A regulation. Apparently word of the confusion and concern somehow worked its way up through the hierarchical org chart that is the DOL, because today my sources are telling me that DOL brass produced a modicum of internal clarity by further directing that all local SWAs continue to process H-2A cases under the transition rules of the new H-2A regulation...until further notice. Of course, the comment period for the proposed suspension is a whopping 10 days long. So after 10 days, we could be back to last year's H-2A regulation, or we could still be operating under the so-called transition regulation. Got it? So now that we've cleared that up we can all go back to enjoying St. Patrick's Day. Which is great, because it seems we'll definitely be needing the luck of the Irish to get us through this H-2A season.

DOL 'Proposes' to Suspend New H-2A Regulation

Austin Kennedy — Mon, 16 Mar 2009 10:57:07 -0600

I received word early this morning that the U.S. Department of Labor announced a 'proposed' suspension of the new rule implementing changes to the H-2A visa program. As many of my readers know, the new final H-2A rule appeared in the Federal Register on Dec. 18, 2008, and took effect on Jan. 17, 2009. I summarized the new regulation here. The formal DOL announcement concerning this sudden proposed suspension is here.

Under 'normal' circumstances the H-2A program is extremely complicated, rife with bureaucratic delays, expensive and non-user friendly. Suffice it to say, it doesn't help the situation much when the government adds this considerable dollop of confusion to the recipe.

The press release does provide a teeny tiny glimmer of helpful, instructive information in saying that, "[t]he Labor Department's Office of Foreign Labor Certification will continue to accept and process H-2A applications during the proposed suspension period." By what criteria the applications will be adjudicated and whether they'll be adjudicated on a timely, consistent basis is another matter altogether.

One would assume that the current existent rule will carry the day until the 'proposed' suspension actually takes effect. It sure would be helpful if the DOL would step to the plate and provide some much needed assurance and communication to that effect. Sigh. What a mess. Let me know what you're hearing.

How Diverse is Iowa?

Austin Kennedy — Thu, 12 Mar 2009 10:45:36 -0600

This week the New York Times is putting a spotlight on a series it calls "Remade in America", which explores the impact of immigration in the United States. The first issue they tackle is on the question of how to best educate immigrants. The series also features an cool interactive map (ie., "immigration explorer") that uses 2000 census figures to show where immigrants have settled across the country, as of 2000.

Interestingly, the map indicates that 22,144 (or 5.9% of the total population) residents of Polk County (where Des Moines is located), Iowa, are foreign-born. Johnson County (where Iowa City and the University of Iowa is located) appears to have the second largest total at 7,026 (or 6.3% of the total population) foreign-born residents. I believe Buena Vista county had the largest percentage of foreign born residents in the entire state with 12.4% of their overall population (or 2,541 foreign born residents). How, you ask, does Polk County, Iowa, compare to other larger metropolitan centers in our general vicinity? Well, we are less diverse than Hennepin County, Minnesota (ie., Minneapolis/St. Paul), where 110,046 (or 9.8% of the total population) foreign-born people resided in 2000. On the other hand, Polk County is more diverse as an overall percentage than the greater Kansas City area (ie., Jackson County). As of 2000, 4.2% of Jackson County was foreign born, while 5.9% of Polk County's residents were identified as foreign born. It'll be interesting to see how these statistics change when the next census is taken in 2010.

Agriprocessor Supervisor Sentenced

Austin Kennedy — Wed, 11 Mar 2009 15:52:24 -0600

Last summer former Agriprocessors supervisor Martin de la Rosa-Loera pleaded guilty to aiding and abetting the harboring of undocumented immigrants. The 43 year old was sentenced on Tuesday to 23 months in prison, followed by two years of supervised release. Other top managers will face trial in September 2009.

The Basics of Removal Law (aka Deportation)

Austin Kennedy — Fri, 06 Mar 2009 11:11:12 -0600

In 1996 Congress adopted the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act (commonly referred to as IIRIRA). The 1996 laws changed the rules by which noncitizens could be physically removed (ie., deported) from the United States. Most notably, the laws expanded the category of crimes known as aggravated felonies by adding many types of crimes and lowering the threshold for other crimes to qualify as aggravated felonies. This monumentally changed immigration law because aggravated felonies are the category of crimes that, when alleged against a noncitizen, make that noncitizen eligible for removal (ie., deportation).

In addition to murder and drug or firearms trafficking, aggravated felonies now include all crimes of violence or theft when the term of imprisonment is one year or more. More broadly, a noncitizen alleged to have committed a crime involving “moral turpitude” is likely to be put in removal or deportation proceedings. In general terms, a crime involving moral turpitude is a crime that is inherently base, vile, depraved and contrary to the excepted rules of morality. Determining whether an alleged crime should be viewed as a crime involving moral turpitude (and thus making the accused eligible for removal) requires a thorough analysis of the state’s code under which the crime is defined. Having said that, the following crimes have regularly been categorized as crimes involving moral turpitude: murder, rape, robbery, aggravated assault, fraud, theft, spousal or child abuse, incest, voluntary manslaughter and statutory rape. If removed, aggravated felons are permanently barred from reentering the United States unless the Attorney General provides permission for them to renter.

Legal changes in the 1990s also decreased other defenses against removal, even for aliens who are not aggravated felons. Currently, aliens who have committed certain crimes may be granted a waiver under limited circumstances, the primary one of which is preventing “extreme” hardship to the alien’s U.S. citizen or permanent resident child, spouse, or parent. In practice, the standard for proving “extreme” hardship is very difficult to prove. There is no bright line for what constitutes such a hardship, but typically it means that the noncitizen, if removed, will be abandoning multiple dependents without support or with limited support in the United States. Once removed, aliens who are not aggravated felons are barred from reentering the United States for five (5) to twenty (20) years.

And finally, we come to the charging document that begins the removal and deportation processes—the Notice to Appear (ie., NTA). At a minimum, the NTA does the following:

• states the factual allegations for which the person is charged with removability;
• indicates the section of the law allegedly violated;
• gives the date and time of the hearing;
• advises the accused individual of certain rights, including the right to counsel at no expense to the government; and
• notifies the alien of his or her obligation regarding change of address and the consequences for failing to appear for a hearing.

Suffice it to say, removal and deportation law is exponentially more complicated and nuanced than what I’ve described above. With that said, if you or a loved one has received a Notice to Appear, you really ought to contact a qualified immigration attorney to analyze your situation and apprise you of your rights.

A Summary of the New H-2A Regulation Governing Agricultural Laborers

Austin Kennedy — Fri, 06 Mar 2009 10:45:13 -0600

The H-2A visa program allows foreign workers to be admitted to the United States as non-immigrants (ie., those who intend to return to their home country) to perform agricultural labor of a temporary or seasonal nature. In order to bring foreign workers in under the H-2A program, a petitioner must prove that 1) there are not sufficient U.S. workers who are able, willing and qualified to perform the agricultural labor or services; and 2) there will be no adverse effect on the wages and working conditions of workers in the United States similarly employed. Generally speaking, these conditions are tested and (one hopes) proved by submitting an application for temporary labor certification to the U.S. Department of Labor. If the petitioner’s temporary labor certification application is approved by the DOL, the petitioner must then petition the USCIS for the H-2A visas.

Many H-2A workers come to the U.S. to perform job duties that are traditionally seasonal in nature, such as harvest-time activities, bean-walking or corn detasseling. Organic farms also commonly make use of H-2A workers because of the labor-intensive nature of cultivating crops that cannot be exposed to pesticides. In most cases, if the job strikes you as a traditionally agricultural job, and you can legitimately argue that it’s either temporary (ie., a maximum of 8-10 months or less) or seasonal, then the job has a good shot of qualifying as an H-2A job.

Unfortunately, it’s oftentimes difficult to obtain a temporary labor certification for agricultural labor that occurs year round. For instance, egg layering operations, milk production facilities and hog confinement lots often struggle to obtain temporary labor certifications because of the fact that those operations typically maintain a 24 hour per day, 7 day per week, 365 day per year production cycle. In other words, while the labor at these operations is clearly of an agricultural nature, oftentimes it’s difficult (though not impossible) to argue that the labor is also seasonal or temporary.

The H-2A program has always been heavily regulated and, as a result, many employers have had a difficult time operating successfully and profitably within the program. As one of its final acts, the Bush administration rolled out a new set of regulations governing the H-2A program. The full text of the H-2A regulation is here. In the press releases accompanying the roll out of the new regulation the Administration claimed that the changes to the program would make it more user-friendly for employers, while also increasing protections for both foreign and domestic workers. The regulation officially took effect on January 17, 2009.

Well, after carefully reading the new regulation, I can only say this—it should keep us employment-based immigration lawyers busy. And I’d hesitate to apply the term “user-friendly” to the legislation. The new regulation asks a lot more from employers, especially those employers who qualify under the regulation as an H-2A labor contractor. The more major changes to the regulation include: new pre-filing recruitment requirements, post-recruitment reporting requirements, surety bond requirements, document retention requirements, audit possibilities, and some seriously dangerous new debarment provisions—to mention just those new areas that come easily to mind.

Below I’ve made an effort to summarize the new H-2A regulation. Keep in mind that I’ve certainly summarized the H-2A regulation with an eye toward the needs of my existing clients. As is always the case, my summary and analysis will not apply to each employer or petitioner’s situation. Every petitioner or employer should absolutely read the full text of the new H-2A regulation.

My summary of the new H-2A regulation governing the employment of temporary agricultural laborers can be found here.

Increased Skilled Immigration America's Best Option to Solve Economic Crisis?

Austin Kennedy — Thu, 05 Mar 2009 10:55:27 -0600

Our friend Lexington, over at Economist.com, calls the Obama administration and the Democratically-controlled Congress "dumb" for restricting companies' ability to hire H-1B visa workers. Citing a Kauffman Foundation study, Lexington's reasoning is persuasive:

Chinese and Indian immigrants founded more than half of all high-tech companies in Silicon Valley. Immigrants co-founded Google, Intel, eBay and Yahoo. Immigrants contributed to more than a quarter of US global patent applications. Immigrant companies employed 450,000 workers in 2006 and generated $52 billion in revenue.

Indeed. I'm hard-pressed to see how it helps our struggling economy to actively discourage highly-talented and entrepreneurial immigrants from coming to our country and setting up lucrative, high-tech job creating, tax revenue generating businesses. Furthermore, as Lexington points out, it's not just the short-sighted and protectionist immigration instincts that will ultimately stymie our economy. We're also losing highly-skilled immigrants to our global competition:

Americans have always assumed that skilled immigrants would do anything to get a bite at the American dream. But other countries [namely China and India] are producing high-tech clusters that offer bright people plenty of opportunities. They are also putting out welcome mats for the talented rather than building bureaucratic obstacle courses.

Our country's immigration policies say a lot about us. Sadly, our immigration laws are currently saying that we don't understand what it takes to stay ahead of the global competition. I truly don't believe that Obama is a protectionist at heart, but right now our immigration policies are communicating exactly the wrong message at a very dangerous time for our economy and country as a whole.