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What’s happening in Immigration?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard a lot is happening in Congress about various immigration bills relating to the rights of immigrants. Can you give us an update of what types of bills are currently in Congress and what may have recently passed?

Answer: In a significant victory, House members defeated an amendment proposed that sought to prohibit the use of funds to provide assistance to any state or local government entity or official that prohibits or restricts the sharing of an individual’s citizenship or immigration status with the Bureau of Immigration and Customs Enforcement.

The Civil Liberties Restoration Act of 2004 introduced in House and Senate Legislation introduced on June 8 would address policies implemented since September 11 that have debased our country’s fundamental commitment to individual liberties and due process. These policies, including detentions for months without charges, secret hearings, and ethnic profiling, signal a sea change in our government’s policies and attitudes towards immigrants.

With the introduction of the Civil Liberties Restoration Act of 2004 (CLRA) take a giant step towards redressing these abuses and reining in executive branch overreaching.

The Civil Liberties Restoration Act would roll back, in a targeted and responsible manner, the excesses of the government’s response to the threat of terrorism.

The bill includes the following provisions that seek to ensure that immigrants are treated with the fairness and respect that our Constitution requires:

End Secret Hearings. The CLRA would end the government’s ability to issue a blanket order closing all deportation hearings to the public and to family members of detainees, while permitting the closure of hearings or a portion of hearings on a case-by-case basis to preserve the confidentiality of asylum applications or when national security interests so require.

 Ensure Due Process for Detained Individuals. The CLRA would provide minimum due process safeguards to individuals who are jailed on suspicion of immigration violations by giving them timely notice of the charges against them and assure that immigration authorities and judges make fair, individualized bond determinations.

Establish Independent Immigration Court. The CLRA would establish an independent immigration court within the Department of Justice and promote fair hearings by a competent, independent and impartial tribunal.

End Special Registration. The CLRA would terminate the troubled National Security Entry-Exit Registration System while encouraging fairness and a concentrated focus on those who pose a threat to the national security or safety of Americans.

Make Penalties Commensurate with Violations. The CLRA would assign reasonable penalties, commensurate with the technical nature of the violations, for noncitizens’ failure to register or provide timely notification of address changes.

 Require Accurate Criminal Databases. The CLRA would facilitate better law enforcement practices by requiring that the National Crime Information Center database relied upon daily by state and local law enforcement comply with minimum accuracy requirements.

 Ensure Access to Evidence. The CLRA would ensure that people who are charged with a crime based upon national security surveillance under the Patriot Act would see the evidence against them in the same manner as people charged with a crime based upon other kinds of classified information.

 Mandate Reports on Data-Mining. The CLRA would require the government to submit a public report to Congress on data-mining activities in order to protect the privacy and due process rights of individuals and to ensure accurate information is collected and used.

In a Supreme Court case as of yesterday, they basically stated that war is not a blank check for the President to just hold people in detention. They must be afforded various rights. Hopefully, this bill will pass in some fashion to give back fairness and rights that have been slowly taken away from the immigrants.

Filed under: Civil Liberties Restoration Act (CLRA), Congress, Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

What new Bills are on the Horizon?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that there are a large number of new immigration bills that are in Congress. Can you give a summary?

Answer: Yes, there are a significant number of bills. Whether they actually become law will only be determined by time. However, it does appear that there should be a significant number of changes in the coming year. Below are just a few of the bills introduced.

The Uniting American Families Act or the Permanent Partners Immigration Act: Introduced on June 21 by Senator Patrick Leahy (D-VT), S. 1278 would provide a mechanism for U.S. citizens and lawful permanent residents to sponsor their permanent partners for residence in the United States. S. 1278 defines the term “permanent partner” to mean an individual 18 years of age or older who (a) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (b) is financially interdependent with that other individual; (c) is not married to or in a permanent partnership with anyone other than that other individual; (d) is unable to contract with that other individual a marriage cognizable under the INA; and (e) is not a first, second, or third degree blood relation of that other individual. The bill is companion legislation to H.R. 3006 below.

The Unaccompanied Alien Child Protection Act of 2005: Introduced on January 24, 2005, by Senator Dianne Feinstein (D-CA), S. 119 would build upon the Homeland Security Act, which transferred the care and custody of unaccompanied alien children from the former INS to the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). Among other things, the bill would ensure that unaccompanied alien children have access to counsel; give ORR the authority to provide guardians to such children; establish minimum standards for the care and custody of unaccompanied alien minors; and strengthen policies for permanent protection of unaccompanied alien children. The bill is similar to legislation that Senator Feinstein introduced in the 108th Congress.

The Civil Liberties Restoration Act: Introduced on April 6 by Representative Howard Berman (D-CA), H.R. 1502 seeks to roll back some of the most egregious post-9/11 policies and strike an appropriate balance between security needs and liberty interests. Among other things, H.R. 1502 would secure due process protections and civil liberties for non-citizens in the U.S., enhance the effectiveness of our nation’s enforcement activities, restore the confidence of immigrant communities in the fairness of our government, and facilitate our efforts at promoting human rights and democracy around the world.

The Secure America and Orderly Immigration Act: Introduced on May 12 by Senators John McCain (R-AZ), Edward Kennedy (D-MA) and others, S. 1033 would comprehensively reform our immigration laws so that they enhance our national security and address the concerns of American businesses and families. Among other things, the bill would establish a break-the-mold new essential worker visa program (the H-5A visa) while also providing a mechanism by which eligible undocumented immigrants present in the U.S. on the date of the bill’s introduction could adjust to temporary nonimmigrant (H-5B) status; promote family unity and reduce backlogs; call for the creation and implementation of a national strategy for border security and enhanced border intelligence; create new enforcement regimes; and promote circular migration patterns. House companion legislation (H.R. 2330) was introduced on May 12 by Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL).

The Agricultural Job Opportunities, Benefits, and Security (AgJobs) Act of 2005: Introduced on February 10, 2005 by Senators Larry Craig (R-ID) and Edward Kennedy (D-MA), S. 359 would create an earned adjustment program for undocumented farm workers who would be eligible to apply for temporary immigration status based on their past work experience, and could become permanent residents upon satisfying prospective work requirements. The legislation would also streamline the existing H-2A foreign agricultural worker program while preserving and enhancing key labor protections. Representatives Chris Cannon (R-UT) and Howard Berman (D-CA) introduced a companion measure in the House (H.R. 884). The bill is similar to legislation that the two Senators introduced in the 108th Congress.

The Save America Comprehensive Immigration Act of 2005: Introduced on May 4 by Representative Sheila Jackson Lee (D-TX), H.R. 2092 would, among many other things, increase the allocation of family-based immigrant visas; provide age-out protection for children; provide earned access to legalization; provide adjustment of status for certain children; update the registry provisions; and enhance border security.

We have fought long and hard to try to get reform of unfair immigration laws, and hopefully, this will be the year that much of the positive reform happens.

Filed under: Congress, Immigration, Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

I thought H-1B’s were dead!

Posted on December 9, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that H-1B’s were all used up for this fiscal year on the very first day. I have my Masters in Business Administration and was hoping to get an H-1B. Is there anything I can do?

Answer: Actually, there have been new H-1B provisions which have been passed by both the House and the Senate. It is simply awaiting signature by the President of the United States to make it law. It was actually passed inside of an Omnibus Budget Bill.

The new H-1B laws are entitled the ‘H-1B Visa Reform Act of 2004’. Now an employer must pay $1,500 to have an H-1B petition filed. If the employer has less than 25 employees, then the employer will only be required to pay $750.00. Additionally, there is a ‘Fraud Fee’ for both H’s and L’s of $500. Apparently, there is a big concern about fraudulently filed H’s and L’s and now everybody who files such applications must pay $500 which will go to a specific unit to investigate such fraud.

Next, the prevailing wage to be paid must be 100% (not 95%) of what is normal for the industry. However, the law now mandates that instead of the currently listed two tier wage for experience, there should be a four tier level of experience to determine the wage.

The Department of Labor will be able to conduct and initiate investigations into what it believes are employers violating the H-1B provisions.

In regards to your situation, now people who earn Master’s or higher degree from a U.S. institution are now exempt from the H-1B cap. There is a limitation of 20,000 per year for this exemption. Thus, assuming this is signed into law, it would help you for the next fiscal year. This is certainly a step in the right direction.

Question: There are certainly a lot of fees that have been added. Where are all of those fees going to go?

Answer: The distribution of money will be as follows: Job training- from 55% to 50%; Scholarship program- from 22% to 30%; National Science Foundation grant program for K-12 Math. Science and Technology education- from 15% to 10%; DHS processing from 4% to 5% and DOL processing maintained at 5%. The scholarships for computer science or other technology or science programs are increased from $3,125 to $10,000.

The most important provisions changing the H-1B program seem to be the exemption of persons with Master’s and higher education in the U.S. This will actually free up 20,000 more H-1B’s per year for everyone else. While this is not nearly enough, it is certainly a good start.

Filed under: H-1B, Immigration, Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

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