USCIS Reports that Fiscal Year 2011 H-1B Cap has been Reached

For employers in the United States seeking to hire professionals, one pool of applicants has been closed off for Fiscal Year 2011. The H-1B visa, available to professional companies seeking to employ a foreign individual in a professional position, is capped each year at a total of 65,000 visas for the entire country. The United States Citizenship & Immigration Service announced on January 27, 2011 that is has received enough petitions to meet the cap and will no longer take new ones. There are an additional 20,000 visas set aside for individuals with a United States earned Master’s Degree with an offer of employment in a position that requires a Master’s Degree, and that cap was reached on December 22, 2010 for Fiscal Year 2011.

Unfortunately, this continues to hinder free market professionalism during a lingering economic downturn. Companies are now unable to hire an employee if he/she is foreign born and does not have authorization to be employed in the United States. This loss tends to force individuals who are educated in the United States out of our job market and therefore out of the United States professional pool, making employers lose a competitive edge. In order for the United States to continue to participate in the global economy and increase our competitiveness, we must reform our immigration system to show that we do in fact want the best and the brightest here, using their knowledge and professional skills for United States corporations and small businesses.

http://www.aila.org/content/default.aspx?docid=34289

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Grants Available to Help Permanent Residents Become Citizens

Last week U.S. Citizenship and Immigration Services (USCIS) announced that there are three grants available this year to help prepare lawful permanent residents for citizenship and to promote immigrant integration in the United States. The grants total approximately $8.5 million and will provide citizenship preparation programs in cities across the country. There will be an estimated 35 award recipients to be announced by USCIS in September 2011.

Two of the grants will help strengthen citizenship preparation programs, while one of the grants will increase the capacity of organizations to offer citizenship services in underserved communities. Interested parties may apply for these funding opportunities at www.grants.gov and applications are due by April 1, 2011.

For more information, please visit http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=15b82dad650ad210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

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EB-5 Visa Program: Expanding Investments in American Businesses

NPR reported last week on the recent increase in popularity for the fifth employment based visa preference category, or the “EB-5” category. The EB-5 visa category, which was created by Congress in 1990, is available to immigrants seeking to enter the United States in order to invest in a business or company that will benefit the economy. There are two ways to invest within the EB-5 category: either by creating a new commercial enterprise, or investing in a troubled business. The minimum investment is $500,000, and must create at least 10 full-time jobs. The jobs must be created for U.S. citizens, permanent residents, or others lawfully authorized to work in the United States, and it does not include the intending immigrant investor or members of their family.

The EB-5 category can provide a quicker way to permanent residence than other categories because it allows qualifying applicants to self-petition for their permanent residence. The intending immigrant must file a Form I-526 Petition for an Alien Entrepreneur, followed by the I-485 application to adjust status to lawful permanent resident. The applicants are granted conditional permanent residency for a two year period, and finally, they must file a Form I-829 Petition by an Entrepreneur to Remove Conditions 90 days prior to the two year anniversary of the granting of the conditional Green Card.

NPR reported that with the current U.S. economic climate, it has been increasingly difficult for businesses to obtain the loans and start-up capital that they may need to expand their businesses. Many are turning to foreign investors to provide that financial backing, and then those foreigners are able to apply for the EB-5 visa category. NPR interviewed Bill Stenger, the owner of a ski resort in Vermont who is expanding from seasonal winter recreation to being a year-round resort, who reported that they had raised nearly $200 million dollars from foreign investors. With that, the resort had been able to hire 50 individuals so far.

To read more on the EB-5 program or to see the NPR article, please visit:

http://www.npr.org/2011/01/18/132940734/resort-draws-investors-with-immigrant-visa-program

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=facb83453d4a3210VgnVCM100000b92ca60aRCRD&vgnextoid=facb83453d4a3210VgnVCM100000b92ca60aRCRD

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U.S. and Cuba Discuss Immigration

The Washington Post reports today that diplomats from the United States and Cuba met in Havana to discuss immigration issues. Roberta Jacobsen, principal deputy assistant secretary of state for Western Hemisphere affairs, led the discussion for the United States. The talks this morning focused on an agreement the U.S. has had with Cuba for the last 17 years, where 20,000 visas are issued to Cubans each year.

As was expected and customary for these twice-yearly meetings, the topic of immigration quickly turned to other issues between the two countries, including the U.S.’s trade embargo and Cuba’s detention of Alan Gross, an American accused of spying.

To read the full story, please visit http://www.washingtonpost.com/wp-dyn/content/article/2011/01/12/AR2011011202450.html

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USCIS Implements Help HAITI Act of 2010

On January 3, 2011 the United States Citizenship & Immigration Service announced the implementation of the Help HAITI Act of 2010; a law aimed at granting Lawful Permanent Resident status to certain orphaned children devastated by the Haiti Earthquake and paroled into the United States under the Haitian Orphan Parole Program.

To be eligible, children must: 1) file aForm I-485; Application to Register Permanent Residence or Adjust Status, with fee, on or before December 9, 2013; 2) have been inspected and granted parole into the United States under the humanitarian parole policy announced by the Secretary of Homeland Security on January 18, 2010(this program was closed to new parole requests on April 15, 2010); 3) be admissible to the United States as an immigrant, however visa and passport requirements are waived; and 4) be physically present in the United States on the date the application is filed and on the date that CIS makes a decision on the case. Importantly, CIS states that it is not necessary for a U.S. citizen to adopt a Haitian parolee in order for the Haitian parolee to obtain a green card under the Help HAITI Act of 2010. However, adoption by a U.S. citizen will be necessary for the Haitian parolee to obtain automatic citizenship under section 320 of the Immigration and Nationality Act.

The Act will serve to give opportunity never known before by these orphans whose lives were so completely altered by the earthquake in Haiti on January 12, 2010.

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Colorado to use Secure Communities Program

Earlier this week 9News in Denver reported that Colorado Governor, Bill Ritter, signed a memorandum of understanding with Immigration and Customs Enforcement (ICE) to begin using the program Secure Communities. Secure Communities allows local law enforcement agencies to run the fingerprints of alleged criminals through state and federal websites to check their immigration status.

Congress set aside $1.4 billion to expand Secure Communities and ICE hopes to have it operating in every jail in the country by 2013. Thirty-five other states are currently participating in the program, as well.

To read the full story, please visit http://www.9news.com/news/local/article.aspx?storyid=173517&catid=222

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U.S. States Again Take Aim at “Birthright Citizenship”

Today the Washington Post reported that state representatives from across the country are joining ranks to support legislation that would deny U.S. Citizenship to children born in the U.S. whose parents are undocumented.

This effort is aimed at the U.S. Constitution’s 14th Amendment, which currently grants citizenship to all children born within the United States. The proposal would challenge the current interpretation of the 14th Amendment, and would require that all children born in the U.S. have at least one parent who is a permanent resident or citizen to qualify for U.S. citizenship. The strategy is reported to be explicitly designed to draw legal challenges, and the proponents are hoping that it will force the Supreme Court to ultimately and explicitly decide on the application of the 14th Amendment. Proponents of the new strategy said they would revive the concept of “state citizenship” and would then draw a distinction between children born to parents with and without status. The states would issue a different birth certificate to children of permanent residents and U.S. citizens, versus the birth certificate issued to children born to undocumented immigrants, tourists, and foreign students.

Pennsylvania State Rep. Daryl Metcalfe (R) reported that he was planning to introduce legislation within weeks in Pennsylvania, and that legislators in about 40 states had expressed support, including Virginia, Arizona, Nebraska, Alabama, Delaware, Idaho, Indiana, Michigan, Mississippi, Montana, New Hampshire, Oklahoma, Texas and Utah.

The Washington Post further reported that opponents of the proposal are calling the challenge racially motivated, and directed at Latino persons. They cite past challenges to the 14th Amendment, raised in the context of challenging the legitimacy of African American, Chinese American and Japanese American citizenship. Further, many of the opponents cite Supreme Court rulings over the past hundred years that uphold the current interpretation of the 14th Amendment: that every child born in this country is an American.

To read the full article, visit: http://www.washingtonpost.com/wp-dyn/content/article/2011/01/05/AR2011010503134.html?hpid=topnews

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Immigrant Father of U.S. Marine Faces Deportation

The Washington Post published a story today on the possible deportation of an illegal immigrant father of a Marine in Kentucky. Juan Andres, a citizen of Guatemala, came to the U.S. as a teenager; he is now 41. Mr. Andres has five U.S. Citizen children, one of which is a Marine awaiting deployment to Afghanistan.

On December 9th of this year Mr. Andres was arrested after accompanying a friend to an immigration office in Louisville, Kentucky to act as a translator. An official in the office suspected Mr. Andres was not in legal status and he was arrested.

According to the immigration attorney of Mr. Andres, they are asking that his case go before an immigration judge. If he is granted a hearing, Mr. Andres will be seeking ten year cancellation of removal, in an attempt to become a permanent resident. Mr. Andres is currently in immigration custody awaiting a hearing.

To read the full story, please click http://www.washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2010123002115.html

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Senate Fails to Pass DREAM Act

The Senate voted 55-41 against the DREAM Act on December 18, 2010. The unfavorable vote ended the hope of passing the bill this session. The bill fell five votes short of overcoming a Republican filibuster on Saturday. Sixty votes were necessary for the bill to succeed.

Senator Richard Durbin, one of the main backers of the DREAM Act, has pledged to continue fighting for the bill. However, with the swearing in of a majority Republican senate in January 2011, the DREAM Act will face a steep uphill battle.

President Barack Obama estimated that the DREAM Act would have “cut the deficit by $2.2 billion over the next 10 years.” The bill offered as many as 11 million undocumented individuals a path to legal status through education or military service. An estimated 65,000 undocumented students will graduate from high school in the next year, who may have benefited from the DREAM Act.

Hundreds of undocumented students, who had risked exposure in support of the DREAM Act, held vigil in the Senate Gallery during the vote on Saturday. When the Senate failed to pass the bill, the students gathered in prayer with hope for a better future.

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Questionable Rights in Removal Proceedings for Immigrants with Mental Diabilities

The Legal Action Center of the American Immigration Council issued a report recently on the treatment in removal proceedings of immigrants with mental disabilities. In contrast to the criminal justice system, there are no safeguards in removal proceedings for respondents with mental disabilities. To be sure, unreported numbers of noncitizens with mental disabilities are deported each year before anyone assesses their mental capabilities or psychological well-being.

As reported by the Legal Action Center, this is an alarming and urgent issue based on numerous reports of the mistaken deportation of U.S. citizens with mental disabilities. In a recent case before the Board of Immigration Appeals (BIA), the Legal Action Center argued that the current immigration laws do not provide sufficient protection to noncitizens with mental disabilities. The Department of Homeland Security (DHS) had appealed this particular case after the immigration judge terminated removal proceedings when he determined that the respondent could not understand the charges against him, among other issues. After the Legal Action Center submitted its brief, DHS withdrew its appeal, and the BIA dismissed the case, leaving the Immigration Judge's decision as the final one.

The Legal Action Center is correct that the current immigration regulations provide no safeguards for immigrants suffering from mental incapacity. Specifically, there are no procedures in place for ensuring that these respondents receive a full and fair hearing. Although respondents in immigration proceedings are not afforded many of the rights that defendants in criminal proceedings receive - such as the opportunity to undergo a psychological evaluation - the discrepancy in treatment of those with mental disabilities should not be overlooked.

Red the Legal Action Center's report here.

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House Passes DREAM Act, Senate Vote Likely Today

By a 216-198 vote, the U.S. House of Representatives yesterday passed the Development, Relief and Education for Alien Minors ("DREAM") Act, setting the stage for a vote in the Senate today.

The DREAM Act was drafted as a way to create a path to legal status for immigrants who were brought to this country illegally when they were under the age of 16. To qualify, the applicant would have to have lived in the United States for at least five years, obtain a high school or GED diploma, demonstrate that they are a person of good moral character, and attend college or serve in the armed forces for at least two years.

By most accounts, the DREAM Act faces an uphill battle in the Senate where it is likely to require 60 votes to overcome a filibuster.

To read the CNN article on the House vote, click here.

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DREAM Act Would Reduce Deficit Over Ten Year Period

The DREAM Act, a bill under consideration by Congress which would create a pathway to citizenship for the children of undocumented workers who meet certain requirements, would reduce the deficit by $1.4 billion over the next 10 years according to a Congressional Budget Office ("CBO"), and independent and nonpartisan agency. The deficit reduction would come as a result of the increase in revenues by having a larger pool of authorized workers.

The CBO report indicates that the longterm effects of the DREAM Act on the deficit are less clear and could potentially increase the deficit after 2020 when beneficiaries of the DREAM Act are eligible to become lawful permanent residents. But according to an article in the Huffington Post by Elise Foley, DREAM Act proponents argue that such longterm projections fail to take into account that beneficiaries of the DREAM Act will enter higher paying jobs over time and will thus increase revenue through paying more taxes.

The DREAM Act is expected to come up for a vote during the current lame-duck session.

To see the CBO report, click here.

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First-Ever Fee Waiver Form from USCIS

Last week U.S. Citizenship and Immigration Services (USCIS) announced that on November 23, 2010, they introduced a standardized form for requesting waivers of the fees charged for immigration-benefit processing. Form I-912, Request for Fee Waiver, is now available for use.

Before form I-912 was introduced, USCIS received many concerns about not having a standardized form to request a fee waiver. The lack of a fee waiver form led to confusion about the criteria and standards used to approve the fee waivers. The new form identifies clear requirements and instructions.

For more information, please visit: www.uscis.gov

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Military Naturalizations at Record Levels

United States Citizenship and Immigration Services ("USCIS") naturalized over 11,000 members of the United States armed forces during the 2010 fiscal year. The announcement, coming on the week of Veterans' Day, indicated that this is the highest number of service members naturalized in one year since 1955. The USCIS press release quotes USCIS Director Alejandro Mayorkas as saying:

“As our nation’s immigration agency, USCIS makes every effort to provide members of the military and their families with exceptional access to our services. We are proud to partner with the Department of Defense in these efforts."

USCIS's commendable commitment to serving members of the military and their families is something that every member of the armed forces should know about and take advantage of if it can help them or their families. To read the USCIS press release, click here.

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The 11th Annual Cross-Border Crime Forum Ministerial

On November 10, 2010, officials from the United States and Canada met during the 11th annual Cross-Border Crime Forum (CBCF) Ministerial to discuss crime and border safety. The purpose of the CBCF is to enhance cooperation “on key cross-border crime and security issues,” focusing on cross-border investigations and the resulting prosecutions. Some of the issues discussed by officials include terrorism, mass-marketing fraud, and organized crime. The two nations also discussed the possibility of streamlining information sharing and enforcement efforts.

In addition to participating in the CBCF, officials from both the United States and Canada took part in the official signing ceremony of a Memorandum of Understanding (MOU) for the Sharing of Currency Seizure Information. This MOU will create a notification protocol for both countries when border officers on either side of the U.S.-Canadian border intercept more than $10,000. This type of protocol will help identify potential threats and assist in money-laundering and terrorist-financing investigations.

To read more about the proceedings at the CBCF, please visit: http://www.ice.gov/news/releases/1011/101110washington.htm

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Twenty-Three New Immigration Judges Sworn In

On November 5, 2010 a swearing-in ceremony was held for twenty-three new Immigration Judges, increasing the number of judges serving the United States' fifty-nine Immigration Courts from 239 to 262. The ceremony was held at the headquarters of the Executive Office for Immigration Review (EOIR) in Falls Church, VA. Chief Immigration Judge Brian M. O'Leary says that EOIR expects "...to further enhance the corps by additional immigration judges before the end of the calendar year." The new judges will serve courts in several states, including California, Florida, Colorado and Texas. One hopes that adding to the judicial roles in this way will help reduce the time gap between initial and final hearings. For further information, and for information on the individual judges, see:

http://www.justice.gov/eoir/press/2010/IJInvestiture11052010.pdf

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USCIS to Begin Bilingual Information Series

U.S. Citizenship and Immigration Services started this fall the first in a series of public engagement sessions that will be in Spanish. The sessions will occur each quarter, and each session will focus on a specific immigration-related topic. The sessions will be broadcast via live webinars, teleconferences, and will also include opportunities for in-person engagements. Each session will have a question-and-answer period.

The series is part of the USCIS’ continued efforts to expand its outreach to the communities they serve. Learn more about these efforts and opportunities to engage in dialogue with USCIS here: http://www.uscis.gov/portal/site/uscis

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Prisons + Profit = SB1070?

A recent story by National Public Radio details the origins of Arizona's controversial Senate Bill 1070 ("SB 1070"). According to the report, a company called Corrections Corporation of America sent executives to a meeting with Arizona state Senator Russell Pearce. Corrections Corporation of America reports reveal that the Corrections Corporation of America is aggressively pursuing the immigrant detention market and expecting a significant portion of its revenue from contracts with Immigration and Customs Enforcement.

At their meeting, the company executives and Senator Pearce discussed created a model for the bill that would months later become the finalized version of SB 1070. The NPR story reports that the sponsors of the legislation soon began to receive significant campaign donations from the same private prison corporations that had been pushing the bill.

In sum, the same corporations that will profit enormously from the increased "civil" detention of immigrants pushed and helped formulate the policy to increase instances of such detention in Arizona. This may be a good way to increase corporate profits but it sure is a vulgar way to make public policy.

Read the NPR piece here.

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Increased USCIS Filing Fees to go Into Effect This Month

U.S. Citizenship and Immigration Services (USCIS) posted a reminder on its website that the new fee schedule for application and petition fees will go into effect on November 23, 2010. All applications and petitions postmarked or filed on or after this date must include the new fee, or they will be rejected.

The new fee schedule was published on September 24, 2010. Filing fees will increase by an average of 10%. To view a complete schedule of fees, which includes the existing fees and the new fees that will take effect on November 23, please visit:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=92c5e116de9eb210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

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Boulder Restaurant Owner Pleads Guilty to Harboring

Immigration and Customs Enforcement ("ICE") announced this week that a Boulder resident was convicted of one count of harboring illegal aliens and one count of failure to pay taxes. The man, who pleaded guilty in Federal District Court, was a citizen of Thailand who is in the United States on an E-2 investor visa.

According to the plea agreement, from 2001 the man would sponsor Thai nationals to come work in his three Boulder area restaurants. He would then force them to pay him exorbitant fees to pay him back for his bringing them here, work them overtime without reporting such work to the IRS, and attempt to charge them $18,000 if they violated any term of his "contract" or caused him any damage. He faces up to ten years imprisonment and up to a $250,000 fine for the harboring conviction and up to five years imprisonment and up to a $250,000 fine for the failure to pay taxes conviction.

To read ICE's news release on the matter, click here.

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