The Congressional Hispanic Caucus’s Eleven Theses on Immigration Reform

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs Office

In the wake of congressional “do-nothingism,” per Rep. Luis Gutierrez, President Obama announced plans on June 30, 2014, to implement additional immigration relief within the power of the executive branch before the end of this summer. The President did not provide more specifics on his intentions. However, in April, the Congressional Hispanic Caucus (CHC or Caucus) presented a draft of a confidential memorandum to Homeland Security Secretary Jeh Johnson outlining possible options within the power of the executive branch “to end the needless separation of American families” affected by immigration enforcement. The memo, which was subsequently leaked to the media, includes suggestions both on affirmative administrative relief and immigration enforcement.

The CHC offers five possible affirmative administrative relief actions that the President could execute with the “confines of the law.” The options for relief presented in the memo include the following: (1) Expansion of the Deferred Action for Childhood Arrivals (DACA) program to family members of DACA recipients who would qualify for relief per the Senate Immigration Reform Bill (S. 744); (2) Expansion of “Parole in Place” benefits to undocumented immigrants other than family members of military personnel; (3) Eligibility to adjust to permanent residence for DACA or Temporary Protected Status (TPS) recipients who travel and reenter on “advance parole” despite prior unlawful presence; (4) Expansion of Humanitarian Parole to immediate family members of DACA recipients and immediate relatives of US Citizens and Permanent Residents; and (5) Extending eligibility for enlistment in the military to recipients of DACA, TPS, Asylum, or Refugee Status under the Military Accessions Vital to the National Interest (MAVNI) program.

In addition, the CHC memorandum advises the Department of Homeland Security (DHS) to modify the agency’s “policies and practices to reflect a more humane approach to immigration enforcement.” The Caucus advocates a clarification of the “extreme hardship” standard for waivers and provisional waivers of grounds of inadmissibility, such as for unlawful presence, that incorporates prior DHS decisions and memorandums. Furthermore, the Caucus proposed an expansion of the provisional waiver to spouses and children of permanent residents. On the subject of deportation proceedings, the memorandum requested a review of enforcement priorities and a refinement of prosecutorial discretion practices to provide “case-by-case use of deferred action” and adjusting the weight of positive factors over negative factors, a limitation on “deportations without hearings” which includes expedited removals at the border, and restricting detainment of immigrants to the “highest priority cases.” The CHC likewise counseled a termination of Secure Communities to improve safety, reduce racial profiling, rebuild community trust, and relieve local law enforcement of any obligation to participate in immigration enforcement programs. As a final point, the Caucus called for improvements in “short term custody” to improve the conditions and treatment of immigrants in immigration detention facilities.

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No Comprehensive Immigration Reform in 2014, Executive Actions Imminent

Contributed by Aaron Hall, Partner

After months of languishing in the House of Representatives with only the occasional flicker of hope, it appears that the prospect of immigration reform is officially dead for 2014. 

The Obama Administration has announced that by the end of the summer, it would be implementing a new serious of executive actions.  In the summer of 2012, the administration implemented the Deferred Action for Childhood Arrivals (DACA) program as an executive action.  It is unclear if this summer’s policy changes will include an expansion of the DACA program or whether they will be different in scope and purpose. 

According to a Politico article, the White House acknowledges the risks of turning to executive authority and knows that many will complain that it has gone too far while many others will feel like it has not done enough.  The administration has not released any specific plans but has stated that it plans to “go as far as we think is good policy and is permitted under the law.”

See the Politico Article here.

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Just What the Doctor Ordered: One State’s Proposed Solution to the H-1B Insanity

By Amber Blasingame, Associate Attorney, Colorado Springs Office

According to Albert Einstein the definition of insanity is doing the same thing over and over again and expecting different results. Submission of a cap subject H-1B petition, especially in the last two years, comes dangerously close to insanity. It is no wonder that a state government, in an effort to stop the insanity, would feel compelled to create a “workaround” for bright, up-in-coming, foreign-national entrepreneurs who have paid into the state economy directly and indirectly in the form of tuition for over four years. Massachusetts’ Governor Deval Patrick proposed just such a plan, the “Global Entrepreneur in Residence Program,” on April 10, 2014.

The governor introduced the Residence Program soon after USCIS announced reaching the cap for the second year in a row on April 1, 2014, which lead to yet another lottery for cap subject petitions. Only 65,000 H-1B temporary worker visas are available annually, starting October 1, with an exemption of 20,000 for beneficiary’s who have earned an Advanced Degree from a post-secondary educational institution in the United States. H-1B visas are a popular choice for professionals who have earned at least a four-year bachelor’s degree and received an offer of employment in the United States consistent with their education. As the economy has slowly recovered in the last six years, the H-1B visas have become more and more coveted. For fiscal years 2014 and 2015, USCIS received twice as many petitions than visas available which created a lottery system. No longer is an employer guaranteed at least consideration of its petition if received exactly on April 1, 2014.  For fiscal year 2015, USCIS received approximately 172,500 petitions as reported on April 7, 2014.

The “Global Entrepreneur in Residence Program” would establish the Massachusetts Tech Collaborative “to place foreign workers with participating university employers.” Institutions of higher education are exempt from the annual H-1B cap. As long as a beneficiary is employed by a university or college or employed by an organization in association with a University or college, the resulting petition for H-1B status is not counted against the annual 65,000 and/or 20,000 exemption quota.

The program would be available to recipients of advanced degrees in the STEM fields (Science, technology, engineering, science) or accounting, finance, economics, business or business administration, and who “desire to move to or remain in the commonwealth.” Universities would sponsor the foreign nationals in H-1B status and employ them on a part-time basis, 8-15 hours per week, “while they develop entrepreneurship skills.”

Developed skills may include starting a new venture. Such skills and development could actually open foreign nationals to other avenues for nonimmigrant or immigrant status in the United States such as intercompany transferee status, treaty trader or investor visas or green card status based on investment or multi-national manager capacity.

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DACA Renewal Procedure Finally Posted

Contributed by Kim Tremblay, Associate Attorney

On June 5, 2014, USCIS finally announced the procedure for the renewal of Deferred Action for Childhood Arrivals (“DACA”) applications and released a new I-821D form and instructions.   

USCIS accepted and approved the first DACA applications in August 2012; as DACA is granted for two years, many early DACA grantees have been waiting for this information.  USCIS states it may provide deferred action and employment authorization to cover any gaps between the expiry of a previous DACA application and the approval of a renewal application filed 120 days before expiry.  However, to avoid possible gaps in work authorization or the accumulation unlawful presence, current DACA recipients should file their renewal applications 120 days before their current DACA expires, but no more than 150 days before expiry, and file as soon as possible if their status is expiring in less than 120 days.   

   

Moreover, DACA grantees should use the updated form I-821D and file forms I-765 and I-765WS, along with the requisite filing fee and supporting documents.  Applicants will have to submit documents pertaining to new removal proceedings or criminal incidents.    

  

Previous DACA grantees will remain eligible for DACA as long as they did not depart the US without advance parole after August 15, 2012, have continuously resided in the U.S. since their last DACA application was approved, and did not committed any disqualify crimes.   

Finally, individuals who think they qualify for DACA and have not applied still can do so and should consult and immigration attorney or accredited representative.  

For more information:           

http://www.uscis.gov/news/secretary-johnson-announces-process-daca-renewal

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Executive Office for Immigration Review Announces Server Repair

Contributed by Melanie Corrin, Senior Attorney

Over a month ago, the Executive Office for Immigration Review (EOIR) experienced a “catastrophic hardware failure” that caused many of its record keeping and case management systems inaccessible.  The result was that for over a month cases were not being updated in the system.  

On May 19, 2014 EOIR announced that the data recovery team, who had been working around the clock, was able to recover the data and create new drives for those which had failed.  Their electronic databases are again functional and staff will update until all case information is current.  The system has been rebuilt in such a way to “result in greater assurance that such issues will not again” occur.

http://www.justice.gov/eoir/press/2014/SystemUpdate.htm

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Adam Walsh Act Decisions from Board of Immigration Appeals

Contributed by Aaron Hall, Senior Attorney


If an 18 year-old senior in high school is convicted of having sexual contact with his 15 year old sophomore girlfriend, should he forever be considered a sexual predator that is a danger to all of those around him?  What does it mean if he later falls in love with and marries someone who is not a U.S. citizen?

As a general principle, a U.S. citizen can file visa petitions for his non-citizen family members fitting categories recognized by immigration law.  However, Congress enacted the Adam Walsh Act in 2006 which barred U.S. citizens who have been convicted of a “specified offense against a minor” from having a family-based visa petition approved unless the agency rules that the citizen poses “no risk” to the alien beneficiary.  Specified offenses against minors are defined in the Adam Walsh Act as offenses which involve:

(A) An offense (unless committed by a parent or guardian) involving kidnapping;

(B) An offense (unless committed by a parent or guardian) involving false imprisonment;

(C) Solicitation to engage in sexual conduct;

(D) Use in a sexual performance;

(E) Solicitation to practice prostitution;

(F) Video voyeurism;

(G) Possession, production, or distribution of child pornography;

(H) Criminal sexual conduct involving a minor, or the use of the internet to facilitate or attempt such conduct; or

(I) Any conduct that by its nature is a sex offense against a minor.

On May 20, 2014, the Board of Immigration Appeals (BIA) issued three precedent decisions related to the Adam Walsh Act, Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014); Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014); and Matter of Jackson and Erandio, 26 I&N Dec. 314 (BIA 2014).

The three decisions’ most important holdings are that (1) the BIA has no jurisdiction to review the initial agency determination about whether the citizen poses “no risk” to the citizen and no jurisdiction to review whether the agency standard of a “beyond a reasonable doubt” is appropriate; (2) the petitioner has the burden of proving he has not been convicted of a specified offense and standard categorical approach will not be adhered to in analyzing convictions; and (3) that the Adam Walsh Act applies retroactively to convictions from before the July 27, 2006, effective date.

While the purpose of the Adam Walsh Act is laudable, the agency’s application of it has often meant that people with convictions from long ago who have been found by licensed professionals to pose no more of a risk than the general population cannot apply for their loved ones to obtain immigration status.  It has also meant that those who do have convictions triggering the Adam Walsh Act are forced to try to prove beyond a reasonable doubt that they pose “no risk” to beneficiaries.  If this sounds like and impossible standard to prove, that’s because it often is.  The BIA precedent decisions could embolden the agency to be deny more of these petitions in the knowledge that there will be little oversight over such decisions. 

Adam Walsh Act-impacted immigration cases can, however, be fought in federal courts, which are not bound by these BIA decisions.  If you have an immigration issue that could potentially be impacted by the Adam Walsh Act, it is crucial to make a well-documented and well-argued record before the agency to have the best chance of success, both at the agency and in federal court if necessary.  In many situations, involving a skilled attorney at the earliest stages of the process could make the difference between having a winnable case and facing a denial.  If you would like to consult with an experienced attorney on an Adam Walsh Act issue, contact our office to schedule an appointment.

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Finger Pointing and Inaction While Millions Wait for Immigration Reform

Contributed by Kim Tremblay, Associate Attorney

Advocates for immigration reform continue to put pressure onto the government to pass comprehensive immigration reform.  In the meantime, our elected officials are busy pointing fingers and teasing each other while millions of immigrants in the U.S. wait.  And wait.       

During a Rotary Club lunch in Ohio last week, House Speaker John Boehner blamed the House of Representatives’ inaction on immigration reform on his fellow Republicans, stating that they were complaining that doing so was just too hard.  His fellow GOP members criticized him immediately and blamed President Obama instead. 

This prompted Speaker Boehner to say he was just teasing and that the real blame lies with the President because he cannot be trusted to uphold the law that might be passed.

Although the Senate passed an immigration reform bill ten months ago and Speaker Boehner states he has been trying to move ahead with immigration reform, no immigration reform legislation has come up for a vote in the House.  Its members may not take the time to deal with the issue before the 2014 midterm elections.  Looks like more waiting, finger pointing, and possibly teasing, lie ahead.

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