News from the Alliance of Business Immigration Lawyers Vol. 7, No. 10B • October 15, 2011
Headlines:
1. California ‘Dream Act’ Becomes Law – California’s Governor Jerry Brown has signed into law the second portion of the California “Dream Act,” AB 131, which allows undocumented students to qualify for state-funded scholarships and financial aid for state universities after other legal resident and U.S. citizen students have applied.
2. Federal Court Halts Parts of Alabama Immigration Law – The U.S. Court of Appeals for the 11th Circuit issued an injunction pending appeal blocking certain provisions of Alabama’s new immigration law.
3. USCIS Seeks Comments on Proposed EB-5 Immigrant Investor Rule – The processes outlined in the proposed rule would provide an additional two-year period for certain immigrant investors to meet the EB-5 investment and job-creation requirements.
4. USCIS Suddenly Redirects I-797 ‘Notice of Action’ Receipts, Approvals To Petitioners – Effective September 12, 2011, the agency began sending original Form I-797, Notice of Action, receipt and approval notices directly to applicants and petitioners.
5. Customs and Border Protection Discontinues H-2A/2B Exit Program Pilot – U.S. Customs and Border Protection has discontinued the H-2A and H-2B Temporary Worker Visa Exit Program Pilot, effective September 29, 2011.
6. OCAHO Orders Drywall Company To Pay $173,250 in Penalties – The company was ordered to pay $770 per violation for failure to ensure that employees completed or signed I-9 forms, among other things.
7. Justice Dept. Sues California Healthcare Provider for Discrimination – DOJ alleged that the company engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on naturalized U.S. citizens and non-U.S. citizens to work in the U.S.
8. November EB-2 Cut-Off Dates for China and India Most Favorable Since 2007 – The November EB-2 cut-off date for China and India is November 1, 2007.
9. New Publications and Items of Interest – New Publications and Items of Interest
10. Member News – Member News
11. Government Agency Links – Government Agency Links
Details:
1. California ‘Dream Act’ Becomes Law
California’s Governor Jerry Brown has signed into law the second portion of the California “Dream Act,” AB 131, which allows undocumented students to qualify for state-funded scholarships and financial aid for state universities after other legal resident and U.S. citizen students have applied. Gov. Brown said it would enable top students to have “a chance to improve their lives and the lives of all of us.” He signed the first portion, AB 130, in July, which allows such students to apply for private scholarships and loans. Currently, undocumented California high school graduates can apply for in-state tuition rates, as can those in 12 other states, including New York, Texas, and Washington.
Assemblyman Gil Cedillo (D-Los Angeles) said the legislation will increase California’s competitiveness in the global economy and that California “is prepared to lead the country with a positive and productive vision for how we approach challenging issues related to immigration.” Los Angeles Mayor Antonio Villaraigosa said the new law “invests in the dreams of talented undocumented students and in the economic future of our state.”
Not everyone in California is on board with the new law, however. Assemblyman Tim Donnelly (R-Hesperia), wants to put an initiative on the ballot to overturn it, calling the new law “absolutely, fundamentally wrong and unfair and…an insult to people who have worked and played by the rules, including those who have come to this country legally.” Stay tuned.
The text of AB 131 (as enrolled) is available at http://e-lobbyist.com/gaits/text/351864.
2. Federal Court Halts Parts of Alabama Immigration Law
The U.S. Court of Appeals for the 11th Circuit issued an injunction pending appeal on October 14, 2011, blocking certain provisions of Alabama’s new immigration law, HB 56. The provisions blocked included requiring the immigration status of students to be checked in public schools and making failure to “complete or carry an alien registration card” a misdemeanor for immigrants. The court allowed Alabama to enforce other controversial provisions, such as requiring that police attempt to determine the immigration status of people stopped who they suspect are unauthorized; barring state courts from enforcing contracts with undocumented individuals if the hiring party knew that the person was in the U.S. unlawfully; and making it a felony for undocumented people to enter into business transactions in Alabama, including applying for a driver’s license or business license.
The Department of Justice had filed an appeal with the 11th Circuit because of potential negative consequences of the new state law both domestically and internationally, including conflicts with federal responsibilities, discrimination against those legally in the U.S., driving undocumented persons underground or to other states, and affecting diplomatic relations. Advocacy groups, including the American Civil Liberties Union, had filed a separate motion against Alabama’s new law.
The law is already having an impact in Alabama. For example, reportedly a quarter of commercial building workers have left the state, several thousand students have stopped going to school, and church attendance has dropped. Anecdotal evidence is piling up. The Alabama-based Southern Poverty Law Center, which set up a hotline, received about 2,000 calls so far from people with problems such as being afraid to drive their sick family members to the doctor, being unable to set up water service because water companies were requiring them to prove their legal status, or whose children were being bullied at school. The Department of Justice has also set up a hotline for complaints about the Alabama law, telephone: 1-855-353-1010; e-mail: [email protected].
Tomato farmer Jamie Boatwright reported that he has a large crop of tomatoes ripe and ready for picking, but most of his workers have left Alabama. Similarly, the owners of Smith & Smith Farms were struggling with three trucks of workers for harvesting instead of 12. Both farms reported that U.S. workers were mostly either not interested or started working but then quit after a few hours. Meanwhile, contractors are taking longer to rebuild after the spring tornadoes that devastated the Tuscaloosa area. “We’re seeing smaller crews and seeing work take longer to accomplish,” said Jimmy Latham, president of Alabama Associated General Contractors and a Tuscaloosa contractor.
Alabama state Senator Scott Beason, who sponsored the legislation, said he is receiving similar complaints from local businesses experiencing difficulties in finding workers and keeping their businesses going. He asserted that there are sufficient numbers of Americans willing to do the jobs abandoned by undocumented workers, and that the adjustment to the new law will take time. Mr. Boatwright begs to differ, noting that he hasn’t been able to attract or retain American workers to his tomato farm and that if he were to raise his wages in an attempt to do so, he would also have to hike the price of his tomatoes and would lose business to neighboring states.
The text of the Alabama law is available at http://alisondb.legislature.state.al.us/acas/searchableinstruments/2011rs/bills/hb56.htm. The latest opinion from the 11th Circuit is at http://www.ca11.uscourts.gov/unpub/ops/201114532ord.pdf. The most recent previous court action on the law, enjoining certain provisions but upholding others, is available at http://irli.org/system/files/US%20v%20Alabama%2011-2746%20PInj%20Order_9-28-11.pdf.
3. USCIS Seeks Comments on Proposed EB-5 Immigrant Investor Rule
U.S. Citizenship and Immigration Services (USCIS) seeks public comments on a proposed rule published on September 28, 2011, that would enable the agency to process certain applications approved between 1995 and 1998 by immigrant investors under the fifth preference employment-based (EB-5) immigrant visa classification.
The proposed rule would implement provisions of the 21st Century Department of Justice Appropriations Authorization Act that apply to a group of immigrant investors who had a Form I-526, Immigrant Petition by Alien Entrepreneur, approved between January 1, 1995, and August 31, 1998. Specifically, the rule would enable USCIS to process cases for approximately 580 principal immigrant investors and their dependents whose I-526 petitions were approved during that period and who, before November 2, 2002, sought to:
- Register for permanent residence or adjust their status (using Form I-485); or
- Remove conditions on permanent residence obtained as an entrepreneur (using Form I-829).
The processes outlined in the proposed rule would provide an additional two-year period for most of these immigrant investors to meet the EB-5 investment and job-creation requirements. This rule would not impact any other applications or petitions filed under the EB-5 program.
Comments will be accepted until November 28, 2011, and should be submitted via one of the methods listed in the proposed rule, which is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-28/pdf/2011-24619.pdf. USCIS corrected the docket number for the proposed rule on October 4, 2011; see http://www.gpo.gov/fdsys/pkg/FR-2011-10-04/pdf/2011-25463.pdf.
4. USCIS Suddenly Redirects I-797 ‘Notice of Action’ Receipts, Approvals To Petitioners
On September 30, 2011, U.S. Citizenship and Immigration Services (USCIS) posted a notice on its website stating that, effective September 12, 2011, the agency began sending original Form I-797, Notice of Action, receipt and approval notices directly to applicants and petitioners. USCIS said that courtesy copies of the notices are being sent to attorneys or accredited representatives, if a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, is on file. Previously, the original notice had been sent to the attorney or accredited representative’s address listed on the Form G-28, while a copy was sent to the address provided by the applicant or petitioner in the applicable application or petition form.
USCIS said it implemented this notification change to ensure that documents (such as I-94 Arrival-Departure Records) are mailed directly to the address specified by the applicant or petitioner. USCIS said it “apologizes for any inconvenience caused by not conducting commensurate outreach and providing time for affected stakeholders to adjust their practices.”
USCIS noted that on November 28, 2011, the final rule for Immigration Benefits Business Transformation, Increment I, will take effect. Under the amendments made by this rule, documents produced as the result of an approved application or petition will be mailed directly to the address provided by the party seeking the benefit on the applicable application or petition and not that specified by the attorney or accredited representative on a G-28. “Our objective is to make sure that original receipts, decisions, and documents produced as a result of approved applications or petitions are sent to the address specified by the party making the request,” USCIS said.
In an effort to combat possible scams, USCIS said it generally discourages the practice of entering another person’s address for mailing purposes. Nonetheless, Form I-129, Petition for a Nonimmigrant Worker, petitioners who would like an attorney or representative of record to resume receiving original I-797 notices may use an attorney’s address as the mailing address on the petition, USCIS said.
USCIS warned that using an address other than the petitioner’s address as the mailing address may cause processing delays related to the Validation Instrument for Business Enterprises (VIBE), however, because VIBE automatically uses the address provided on the petition to validate the petitioner’s current location. If petitioners use an attorney’s address as the mailing address on the I-129 petition, USCIS said a cover letter should be included with the filing that clearly indicates the current address of the petitioner. “This information will be used to assist the Immigration Services Officer (ISO) in completing a manual check in VIBE using the petitioner’s address,” USCIS said. “In addition, if an attorney’s address is used as the petitioner’s mailing address on the form, the petitioner will not receive any I-797 notices.”
For petitions filed through Premium Processing, USCIS said the applicant or petitioner may provide an alternate address for mailing of the original approval notice and the I-94 if a pre-paid, self-addressed mailer is provided with the requested mailing address.
Many people have complained about the new procedure. The potential harm that can result from a misrouted, mishandled, or lost document can be serious. For example, when an I-797 notice is sent to a large employer, the document can be misrouted within the organization, resulting in delays in reaching the foreign national. In a worst-case scenario, the document can be lost. In addition, some attorneys have reported that requests for additional evidence are going directly to petitioners and applicants, not to attorneys of record. The change in the processing of notices and decisions undermines the right of a party to the effective assistance of counsel and impedes the ability of attorneys to zealously represent their clients.
The USCIS held a teleconference on October 12, 2011, to hear stakeholders’ concerns about the new I-797 procedures, but it is unclear whether the agency will make any changes.
The USCIS notice about the I-797 processing change is at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=10db489ad93f2310VgnVCM100000082ca60aRCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD.
5. Customs and Border Protection Discontinues H-2A/2B Exit Program Pilot
U.S. Customs and Border Protection has discontinued the H-2A and H-2B Temporary Worker Visa Exit Program Pilot, effective September 29, 2011. The pilot began on December 8, 2009. It required temporary workers in H-2A or H-2B nonimmigrant classifications who enter the United States at the port of San Luis, Arizona, or the port of Douglas, Arizona, to depart (at the time of their final departure) from these respective ports and to submit certain biographical and biometric information at one of the kiosks established for that purpose.
The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-29/pdf/2011-24716.pdf.
6. OCAHO Orders Drywall Company To Pay $173,250 in Penalties
The Executive Office for Immigration Review’s Office of the Chief Administrative Hearing Officer (OCAHO) has ordered Ketchikan Drywall Services, Inc., of the Puget Sound area of Washington, to pay penalties for various I-9 violations. Ketchikan was ordered to pay $770 per violation, for a total of $173,250, for violations such as failure to ensure that employees completed or signed I-9 forms.
Among other things, the decision noted that failure to complete an I-9 form is not a mere technical or procedural failure but “is substantive in nature and defeats the purpose of the law.” Such substantive violations include, among other things, failing to collect an employee signature; listing the wrong documents to establish identity or employment eligibility; failing to complete the I-9 within three days of hire; and failing to fully complete the form, including the employee attestation that he or she is authorized for employment in the U.S., and regardless of what other documents may have been copied or retained. The decision noted that “[c]opying the documents may well serve to insulate an employer from errors in transcribing the information, but nothing . . . purports to excuse an employer who fails to transcribe any information at all.” The decision noted that specific instances of omission when a copy of a document is retained with the form will be considered on a case-by-case basis, but “there is no general rule that omissions are cured by copying documents.”
The decision, which includes additional details about Ketchikan’s various violations, is available at http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume10/1139.pdf.
7. Justice Dept. Sues California Healthcare Provider for Discrimination
The Department of Justice (DOJ) filed a lawsuit on September 30, 2011, against Generations Healthcare, a provider with skilled nursing facilities throughout California, alleging that it engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on naturalized U.S. citizens and non-U.S. citizens to work in the U.S. The Department noted that employers are prohibited by law from placing additional burdens on work-authorized employees during the process of hiring or when verifying their employment eligibility based on their citizenship status or national origin.
The DOJ’s investigation found that the company demanded that a work-authorized applicant produce a permanent resident card, also known as a “green card.” The applicant did not have a green card and instead presented an employment authorization document. The company rejected her valid documentation because it had a future expiration date and told her that it could not hire her to work at its St. Francis Pavilion facility unless she presented a green card. As a result, the applicant was unable to obtain employment with the company.
The department’s investigation also revealed that Generations Healthcare required all newly hired non-U.S. citizens and naturalized U.S. citizens at its St. Francis Pavilion facility to present specific and extra work authorization documents beyond those required by federal law to prove their status, a burden that was not placed on native-born U.S. citizens.
“Employers are not allowed to impose more burdensome employment eligibility verification procedures on certain workers based on their citizenship status,” noted Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.
The DOJ’s media release announcing the lawsuit is available at http://www.justice.gov/opa/pr/2011/September/11-crt-1301.html.
8. November EB-2 Cut-Off Dates for China and India Most Favorable Since 2007
The Department of State’s Visa Bulletin for November 2011 includes the following:
The November employment-based second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.
The November EB-2 cut-off date for China and India is November 1, 2007.
The November Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5572.html.
9. New Publications and Items of Interest
Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.
Green Card Stories will be released soon. For more information or to pre-order, visit https://www.abil.com/green_card.cfm.
Foreign labor certification annual report. The Department of Labor’s Office of Foreign Labor Certification has released its annual report for the period October 1, 2009 – September 30, 2010. The report notes, among other things, that In the last three quarters of fiscal year 2010, computer-related occupations ranked among the most commonly requested occupations on prevailing wage determinations (PWDs) issued. Computer Software Engineer, Computer Systems Analyst, Computer and Information Systems Manager, and Computer Programmer occupations constituted over 25 percent of the total PWDs issued. Of these occupations, Computer Software Engineers, Applications, was the most frequently requested occupation, representing 13 percent of all PWDs issued. The remaining most frequently requested occupations each represented 2 percent or less of the total PWDs issued.
The report is available at http://www.foreignlaborcert.doleta.gov/pdf/OFLC_2010_Master_for_WebSite_StateFix.pdf.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration.
10. Member News
Laura Danielson was quoted in the Pioneer Press on October 1, 2011. In an article about Somali singer Aar Maanta’s show being canceled because of a visa delay, Ms. Danielson said, “My understanding is that [the delay] was for administrative processing, which likely means a background name check. He is the only one in the group with a Muslim name, which is more likely to trigger a hit in the government database.”
Mark Ivener gave a presentation, “M&A Deals Can Affect Key Workers’ Visa Status,” at the Professionals In Human Resources Association (PIHRA) Annual Conference on August 30, 2011, in Anaheim, California.
Cyrus Mehta has published several new blog entries. “Prosecutorial Discretion and the ‘Criminal Alien’ ” is available at http://cyrusmehta.blogspot.com/2011/10/prosecutorial-discretion-and-criminal.html. “Some Preliminary Reactions to the District Court Decision Refusing To Enjoin Portions of Alabama’s Immigration Law” is available at http://cyrusmehta.blogspot.com/2011/10/some-preliminary-reactions-to-district.html.
Mr. Mehta spoke on a panel for Brooklyn Law School faculty on September 21. The topic was “Teaching Ethics Across the Curriculum.”
Alliance of Business Immigration Lawyers members participated in the 5th Biennial Global Immigration Conference of the International Bar Association in London, England, on September 23-24, 2011, including Kehrela Hodkinson and Mr. Mehta. The conference program is available at http://www.int-bar.org/conferences/conf383/binary/London%20Global%20Immigration%202011%20programme.pdf.
Angelo Paparelli has published a new blog entry. “Suffer the Children: Immigration Heartlessness and Hypocrisy” is available at http://www.nationofimmigrators.com/.
H. Ronald Klasko was named Philadelphia’s Immigration Law Lawyer of the Year by Best Lawyers 2012.
Bernard Wolfsdorf was named Los Angeles Immigration Law Lawyer of the Year by Best Lawyers 2012.
For more information on Best Lawyers 2012, see http://www.bestlawyers.com/.
Stephen Yale-Loehr moderated “DREAM Act: A Pipe Dream or Eventual Reality?” on October 3, 2011, at Cornell University.
Mr. Yale-Loehr was quoted in International Business Times on September 30, 2011, in an article about the Alabama immigration law federal court decision. He said, “Because of the proliferation of state immigration laws, we need resolution from either the Supreme Court or Congress. Right now, for example, it is very hard for national employers to know what they can or cannot do in various states.” The article is available at http://www.ibtimes.com/articles/222715/20110930/alabama-immigration-law-immigration-law-ruling-immigration-supreme-court-georgia-immigration-arizona.htm?cid=2.
11. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin