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Carl Shusterman's Immigration Update


  1. Will the H-1B Cap Be Raised this Year? A bipartisan group of Senators lead by Orrin Hatch (R-UT) is trying to pass a bill which would raise the H-1B cap from 85,000 to 135,000. The I-Squared bill would do this by raising the general cap from 65,000 to 115,000 while leaving the master’s cap at 20,000.

    Does this bill stand a chance to be signed into law before the April 1st H-1B start date?

    Perhaps, but there are a lot of hurdles which must be overcome, including some internal battles within Hatch’s own party.

    Hatch, who heads the Republican’s High Tech Task Force recently stated: “Our high-skilled worker shortage has become a crisis.”

    However, not all his GOP colleagues agree.

    Two senior Republican Senators, Jeff Sessions (R-AL) and Charles Grassley (R-IN) argue that there is no shortage of high-tech workers in our country. In 2007, Grassley said: “Unfortunately, the H-1B program is so popular that it’s now replacing the U.S. labor force.” Senator Grassley is slated to become the Chairman of the Senate Judiciary Committee later in January when the Republicans take control of the Senate.

    Are Senators Sessions and Grassley champions of the American worker or are they simply anti-immigrant? As to the first issue, they have two of the worst voting records on labor-related issues according to the AFL-CIO. They both have negative voting records on immigration legislation.

    Even if the bipartisan coalition is somehow successful in getting the bill through Senator Grassley’s Committee and then approved by both the Senate and the House of Representatives, there is no guarantee that it would be signed into law by President Obama.

    The President does not like the idea of “piecemeal” immigration reform. Instead, he supports the idea of Comprehensive Immigration Reform (CIR). He would have signed the bipartisan CIR bill which was passed by the Senate in 2013, but Speaker of the House John Boehner (R-OH) declined to bring the bill to a vote in the House.

    That bill would have raised the H-1B cap to 180,000 rather than 135,000. Although the new legislation is a significant improvement to the status quo, it doesn't do enough to solve the larger problem. It all but insures that there will continue to be an “H-1B lottery” this year as over 172,000 H-1B petitions were submitted by employers in 2014.

    Not only that, but allowing more H-1B professionals to work in the U.S. without abolishing the “per country” quotas for employment-based green cards leaves workers born in India and China with little choice but to look elsewhere for jobs, thus threatening our country’s supremacy in various areas of science.

    Opponents of raising the H-1B cap should remember that until 1991, there was no cap of the number of H-1B visas, and yet there was virtually no criticism of the program in Congress.

    Maybe we should let the free market rather than the federal government decide how many H-1B professionals to hire.
  2. Immigration Reform Without a Pathway to Citizenship? Is there any chance that we will get Comprehensive Immigration Reform (CIR) before the end of the year?

    President Obama remains hopeful. He is even willing to drop the Senate’s approach and have Congress pass a number of immigration bills as many Republicans in the House of Representatives are proposing. “If they want to chop that thing up into five pieces, as long as all five pieces get done, I don't care what it looks like.”

    The problem is that none of bills that have been considered by the House Judiciary Committee even touch on what to do about the 11 million undocumented persons living in the U.S. The Committee wants to make the border (at least the one with Mexico) more secure, make E-Verify mandatory and bring in more high-tech and agricultural workers. That’s all well and good, but aren’t they ignoring the Big Elephant in the room: What about the 11 million?

    Here is the root of the problem: In the 2012 Presidential election, Hispanics and Asians voted overwhelmingly for President Obama. No surprise since his opponent’s solution to our broken immigration system was “self-deportation”.

    The GOP knows that if they want to win back Hispanic and Asian voters, they must address our immigration problem. However, by passing a bill containing a Pathway to Citizenship for 11 million persons, many Republicans are afraid that they are enfranchising people who are going to vote for their opponents.

    What to do?

    The Chairman of the House Judiciary Committee is working on a bill which would allow the undocumented to qualify for work and travel permits, but not for green cards and citizenship. Okay, maybe a Pathway to Citizenship for the Dreamers. The Chairman of the House Oversight Committee has a slightly different take. He would grant the undocumented a six-year provisional status, and would allow them to get green cards and naturalization, but only if they qualify under current law. The rest, probably the overwhelming majority, could remain in the U.S., but only under a newly-created temporary worker category.

    How are proponents of comprehensive immigration reform reacting to such proposals?

    Surprisingly, a good many CIR supporters are no longer insisting on a Pathway to Citizenship. A leading immigration advocate, Representative Luis Gutierrez (D-IL), states that he is open to compromise, and seems willing to accept a bill which would protect the undocumented from deportation even if it does not offer a Pathway to Citizenship for all.

    Maybe half a loaf is better than none at all, but aren’t we creating a two-tier society?

    Will there be a new immigration law in 2013, or even in 2014, and what will it say? Only time will tell.

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  3. 10 Things We Like About the New CIR Proposal On April 28, Democratic Senators began circulating a 26-page comprehensive immigration reform proposal which may soon be introduced in the Senate in bill form. Some of the ideas in this proposal are good, some bad and a few are ugly.

    In this post, we discuss what we like about the proposal, in particular, some much needed reforms in the legal immigration system:

    1) There would be no numerical caps in obtaining permanent residence for students with advanced STEM (science, technology, engineering or mathematics) degrees from U.S. universities who possess an offer of employment from a U.S. employer in a field related to their degree;

    2) STEM F-1 student visas would be considered "dual intent";

    3) Country limits for employment-based immigration would be ended. Country limits for family-based immigration would be increased from 7% to 10%;

    4) Backlogs in the family-based immigration system which currently range from 3 to over 22 years would be completely eliminated during the next 8 years;

    5) Children and spouses of lawful permanent residents would be classified as "immediate relatives" which would remove all numerical restrictions from this category;

    6) All unused green cards could be recaptured in later years;

    7) Both the Conrad 30 Program for physicians and the R-1 non-ministerial religious worker program would be made permanent. It would be easier for all physicians working in medically-underserved areas to obtain green cards;

    8) "Permanent partners" of U.S. citizens and permanent residents would finally qualify for green cards;

    9) Refugees and asylees would be granted lawful permanent residence as soon as they qualified for refugee/asylee status; and

    10) Widows and orphans of U.S. citizens would qualify for immigration benefits as would children of Filipino World War II veterans.

    The American Immigration Lawyers Association (AILA) has released a summary of the proposal, known the Real Enforcement with Practical Answers for Immigration Reform (REPAIR) proposal. In addition, the White House has released a statement regarding the proposal.

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    Updated 12-02-2013 at 04:37 PM by CShusterman

  4. Shades of Grey
    This evening, I watched a debate on television between a proponent and an opponent of comprehensive immigration reform (CIR). The proponent emphasized that we need CIR not for the benefit of the undocumented but because it would stimulate the American economy. The opponent said that this amounted to "open borders" and that our immigration system was already generous enough in the eyes of most Americans.

    After the debate, I got to thinking about how different this type of debate is from the daily travails of immigrants. In our complex immigration system, the problems are not necessarily black and white, but various shades of grey.

    This morning, I spoke with a woman, a citizen of the U.S., who is raising her two children by herself because the Consulate in Ciudad Juarez, Mexico thinks that her husband once left the U.S. after living here illegally for many years so he could attend his brother's wedding in 2002. They claim that he re-entered the U.S. a couple of days later without inspection. Under our bizarre system of immigration laws, this subjects him to the "permanent bar". This means that he must remain out of the U.S. for ten years. Then, if he can prove that his continued absence from the U.S. would result in "extreme hardship" to his wife and to his parents (who are both permanent residents), he can return to the U.S.

    Every weekend, his wife drives down to Tijuana so that her two little girls can visit with their father. One of the girls has undergone a variety of serious operations. However, under our immigration laws, hardship to the girls does not count.

    To complicate matters, his brother was married in Mexico in 1992, not 2002. The wife faxed copies of the marriage certificate of his brother to me. Sure enough, it is dated in 1992. However, the officer who denied the husband's case in CDJ refuses to look at the marriage certificate. The officer maintains that the husband told her that he attended his brother's wedding in 2002, and that is the end of the matter. He can apply for a waiver in 2015, after he has been in Mexico for ten years, not before.

    The wife enlisted the services of her Congressman and an experienced immigration attorney, but to no avail. The factual determination of a consular officer is not reviewable in Federal Court. Not even the*State Department's own attorneys can question an officer's factual determination.

    The wife is on the verge of losing her house to the bank. She is also on the verge of losing her mind. Would passage of CIR bring her family together? I am afraid not.

    This type of situation is not unique. We are retained by clients with these types of problems on a daily basis. Fortunately, some Immigration Officers are sympathetic to the problems of immigrants. And they have the discretion to solve many of the problems that immigrants face.

    I remember when I was an INS Trial Attorney back in the early 1980s. One of the persons that I was supposed to prosecute was a young woman from the Philippines whose parents were both green card holders. Her father sponsored her for a green card years ago, but died before she could immigrate to the U.S.

    Nevertheless, the U.S. Embassy in Manila scheduled her for an immigrant visa interview. She completed the application accurately, and revealed that her father was deceased. The interviewing officer was in a rush, and missed this entirely. She was granted an immigrant visa. She sold her house, quit her job as a executive secretary, and booked a flight to join her widowed mother in the U.S. At the airport in Honolulu, an INS officer noticed that her father had died. He paroled her into the U.S. for an exclusion hearing in Los Angeles.

    When I read the woman's file, I could not believe that the INS had initiated exclusion hearings against her. If both parents had submitted visa petitions on her behalf, she would not be in such a fix. I sent the file back to the deferred inspection officer, and asked him to cancel the Order to Show Cause (OSC). He refused to do so. I stuck the woman's file in the back of one of my file drawers for a year or so. Then, I sent it to a new deferred inspections officer. This time, the officer cancelled the OSC.

    These cases illustrate that many immigration cases are not black and white, but shades of grey.

    When both parties take a commonsense approach, a lot of cases can be worked out to avoid family separation. Too often, however, immigration cases are litigated year-after-year at a tremendous cost to both the immigrant and the government.

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  5. Immigration Reform in 2010

    As Rodney King famously remarked, "Why can't we all get along?"

    As Democrats and Republicans in Congress have spent the past year beating each other up regarding the health care bill, do we want the same thing to happen with immigration this year? At the moment, President Obama cannot even find two Republican senators out of 40 to support Comprehensive Immigration Reform. And anyone who thinks that all Democrats are united in support of CIR must be drinking the Kool-Aid.

    But does this mean that immigration reform is DOA in 2010?

    Not necessarily. There are individual pieces of immigration legislation which enjoy bipartisan support. Like what? For instance, the DREAM Act. Students who have lived almost their entire lives in the U.S., excelled in school, and are pursuing their goals in universities should not be punished because their parents brought them to the Promised Land as toddlers. Senators on the left and the right are co-sponsoring the DREAM Act. Any piece of immigration legislation that is co-sponsored by Senators Richard Lugar (R-IN), Bernie Sanders (I-VT) and 31 of their colleagues should definitely be voted on in 2010.

    The same thing with the AgJobs bill. On how many issues do agricultural employers and the United Farm Workers agree on? Congressmen Jeff Flake (R-AZ) and Luis Gutierrez (D-Il) don't see eye-to-eye on CIR, but together with over 50 of their colleagues, they have co-sponsored this important piece of legislation. If ICE ever decides to audit farms as they have factories, their will be a lot of hungry children in America. I think we all know who is picking the crops.

    And how about erasing the 20-year wait for Indian EB-3 workers with approved PERM applications? Is it the American Way to penalize a person solely because of their country of birth?

    And who, in these terrible times of double-digit unemployment, could possibly oppose visas for investors who put Americans to work? Or for physicians and nurses who work in medically-underserved areas?

    I say, let's see what we agree on, and move forward.

    Let's not let the perfect be the enemy of the good.

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    Updated 12-02-2013 at 04:40 PM by CShusterman

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