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Carl Shusterman's Immigration Update


  1. 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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  2. Senators Weigh in on CSPA Lawsuit When Congress passed the Child Status Protection Act (CSPA) in 2002, there was wide bipartisan support concerning the need to change the immigration law to prevent the separation of families during the waiting process.

    Both the Senate and the House of Representatives passed the legislation unanimously, and it was signed into law by President Bush. One of the flaws in the immigration law that CSPA was designed to remedy was that when children turned 21 years old while waiting with their families for their green cards to be issued, they were no longer able to immigrate to the U.S. with their parents despite that the fact that they had waited in line for many years, even decades.

    Congress established a two-step solution to this problem. First, in order to avoid family separation due to administrative delays, the number of days that a visa petition was pending would be subtracted from the child’s age. If the resulting age was less that 21, the child could immigrate together with his parents. Second, if after this calculation the child’s age was over 21, the child would retain the priority date of the original petition. That is, he would be given credit for the years spent waiting in line. Also, the petition would automatically convert to the appropriate category. In most cases, this would be the family-based 2B category, since the child was now the unmarried adult son or daughter of a permanent resident.

    Seems simple enough, but nevertheless, we have been litigating this issue in the federal courts since 2008. The government maintains that the relevant provision is ambiguous and that courts should defer to a very restrictive interpretation of the law promulgated by the Board of Immigration Appeals (BIA) in Matter of Wang in 2009. The BIA held that while the first step of the formula applies to derivative beneficiaries of all family-based and employment-based preference categories, the second step applies only to a tiny subset of family-based beneficiaries. This is a curious interpretation since both subsections of the law clearly apply to the same people. The only difference is that the first step applies to persons whose age, after performing the formula, is under 21 while the second step applies to those whose age is over 21.

    The three U.S. Courts of Appeals which have issued precedential decisions regarding this issue all agree the language of the statute is unambiguous and, hence, there is no need to defer the BIA’s decision. However, two courts (the Fifth Circuit in Texas and the Ninth Circuit in California) ruled that the statute unambiguously foreclosed the BIA’s approach, whereas the other (the Second Circuit in New York) held that the statute unambiguously required it. The Solicitor General sought Supreme Court review, arguing that the law’s language is ambiguous and that courts should defer to the BIA.

    The language in dispute was first drafted by the Senate. The BIA, in Matter of Wang, curiously omitted any quotes from Senators when discussing the meaning of the disputed sentence. Wouldn’t it be helpful if Senators from both parties could speak directly to the Justices of the Supreme Court as to the meaning of the statute that they authored?

    On November 4, exactly that occurred. A bipartisan coalition of current and former U.S. Senators — former Senator (now Governor) Brownback (R-KS), and Senators Feinstein (D-CA), Hatch (R-UT), McCain (R-AZ), Menendez (D-NJ) and Schumer (D-NY) submitted a legal brief to the Supreme Court. What does the brief say?

    The Senators carefully explain Congress’ reasons for passing the CSPA, and clearly demonstrate the disputed subsection requires that the agency extend its benefits to all derivative beneficiary children.

    The following quotes from the brief are helpful in understanding the purpose of the law.

    On page 9, the Senators explain that

    “Only through the broad coverage of all derivative beneficiaries could the CSPA effectively protect family unity and award credit for the years that families had already waited.”


    “The Solicitor General’s argument that the CSPA covers only beneficiaries of F2A petitions directly conflicts with the primary purpose for which the law was enacted. In enacting this legislation, Congress meant to correct the inequities of the pre-CSPA regime in full.”

    On page 16, the Senators dismiss the Solicitor General’s ambiguity argument in the strongest terms:

    “The Solicitor General’s Attempt To Manufacture Ambiguity Erodes Congress’s Ability To Effect Its Will Through Clear, Unambiguous Draftsmanship.”

    On page 18, the Senators condemn the executive branch’s attempt to rewrite the CSPA:

    “The Solicitor General’s continuing insistence that the CSPA is ambiguous raises serious institutional concerns. While Congress can and often does rely on agency expertise to fill intentionally placed gaps in statutory language, it does not typically give an agency carte blanche to rewrite statutory language that is clear simply because the agency declares that the statute contains ‘tension.’ The Solicitor General’s attempt to read ambiguity into a statute simply because the requirements of the statute diverge from preexisting agency procedures undermines the authority of Congress. This Court should reject that attempt and reaffirm the agency’s duty to carry out the mandates of a congressional statute.”

    Finally, on page 19, the Senators conclude that

    “In the face of such an unambiguous congressional mandate, the existence of alleged ‘tension’ between the statute and preferred agency procedure is not sufficient to generate ambiguity where none exists. Congress has enacted a law that is clear on its face; the agency must act to faithfully carry it out.”

    The Senators’ brief is both forceful and convincing. Families which are impacted by this section of CSPA may wish to read the full brief of the Senators as well as the amicus briefs submitted by the Catholic Legal Immigration Network and by Immigration Advocacy Organizations.

    The Solicitor General has until November 27 to submit a reply brief.

    Our firm is co-counsel in the case, and the case will be argued in the Supreme Court by Mark Fleming, who specializes in appellate litigation at WilmerHale. The Supreme Court will hear oral argument on December 10, and a decision is expected in early 2014.

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    Updated 11-20-2013 at 11:10 AM by CShusterman

  3. Indian IT Company Agrees to Pay $34 Million Settlement*304.jpg?v=1
    Various companies have paid one million dollars or more to the government in order to settle cases involving immigration violations. However, the $34 million settlement that an Indian IT company recently agreed to pay is the largest yet.

    What did the company do to bring this on itself?

    The U.S. Attorneys’ Office in the East District of Texas accuses Infosys, a multi-billion dollar company based in India, of misusing B-1 business visitor visas to place foreign-born employees in professional jobs in the United States. states that persons on B-1 visas are permitted to come to the U.S. to engage in any of the following activities:

    • Consulting with business associates
    • Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
    • Settling an estate
    • Negotiating a contract
    • Participating in short-term training
    • Transiting through the United States
    • Certain air crewmen may enter the U.S. as deadhead crew with a B-1 visa

    However, in order to work as a computer programmer or a systems analyst in the U.S., a person must usually possess an H-1B visa. Most H-1B employers are subject to a numerical cap which, in practice, allows them to sponsor professional employees only during the first week of April each year. Also, applying for an H-1B worker involves an expenditure of several thousand dollars in attorneys’ fees and government filing fees.

    Infosys employs over 160,000 workers in more than 30 countries. Approximately 15,000 of these workers are employed in the U.S. 10,800 have H-1B visas and 1,600 have L-1B specialized knowledge visas. According to a confidential source, the number using B-1 visas is about 1,000. The company claims that it uses B-1 visas only for “legitimate business purposes”.

    In the settlement agreement, the government and Infosys essentially agree to disagree. The government states that the company provided their B-1 workers with a memorandum which instructed them “to deceive U.S. Consular Officials, including specific instructions to avoid certain terminology, to secure entry of the visa holder in the United States." Infosys, despite agreeing to pay the government $34 million, "denies and disputes any claims of systemic visa fraud, misuse of visas for competitive advantage or immigration abuse. Those claims are untrue and are assertions that remain unproven."

    The matter began as a whistleblower case brought by a disgruntled employee. A civil lawsuit by the employee was dismissed. However, in 2011, the B-1 issue raised by the employee led the Department of Justice and the DHS to audit Infosys’ I-9 forms.

    This settlement does not subject Infosys to any civil or criminal judgment. It allows the company to continue to supply IT professionals to U.S. firms and to be eligible for federal contracts.

    Although $34 million sounds like a lot of money to you and me, given that Infosys’ market capitalization exceeds $30 billion, the settlement amount is simply “chump change” for the company. Indeed, news of the settlement had little effect on the company’s stock price. And making the payment certainly beats spending time in Federal Prison.

    However, this is should be a cautionary tale for any employer thinking of toying with U.S. immigration laws, especially those who don’t have a rainy day fund of several millions of dollars to tap. U.S. Attorney John Bales made the point succinctly: “We want other companies like Infosys to be on notice that we will be looking.”

    Also, the settlement may aid lawmakers in the House who are trying to limit the use of H-1B and L-1B visas by IT consulting firms in rounding up the necessary votes to do so. The Senate bill (S.744) already contains such a provision.

    Employers beware!

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    Updated 12-02-2013 at 12:08 PM by CShusterman

  4. USCIS Launches Redesigned Websites
    On October 30, the USCIS introduced new websites, in English and in Spanish.

    The new sites are designed to enhance the user experience. In the past, I’ve always had a difficult time finding the information I needed on Because of this, I made sure that our website links to the most helpful pages on USCIS website from our temporary visas page, our green cards page, our citizenship page, our forms page, our USCIS page, etc. Hopefully, this saves our users a lot of time.

    However, it seems that it is much easier to find the information I need on the new USCIS website than on the old one. Bravo!

    The green menu near the top of the page contains the following items:

    1. Forms
    2. News
    3. Citizenship
    4. Green Card
    5. Tools
    6. Laws

    Place your cursor over the word “Forms”, and a pull-down menu provides links to a lot of useful information. The first row links to the most commonly searched for USCIS forms. The second row links to a chart showing the filing fees for various types of USCIS forms. It also links to a section regarding e-filing procedures and an explanation of how to order forms by phone and by mail. Finally, there is a link to the most searched for State Department forms and a link to the CBP page explaining the new I-94 procedures. The third row breaks down the forms according to category: Citizenship, Family-Based, Employment-Based, etc.

    Most of the other 5 menu items also have multiple rows of menu items which link to commonly searched for topics. The “Citizenship” tab links to various items concerning naturalization, citizenship through parents, and State Department passport information. The “Tools” tab provides links to a host of helpful services. It explains how to get a copy of your file, find a civil surgeon, check the status of your pending application, etc.

    Other menu items may still need a little work. For example, the “News” item contains only 3 links in the pull-down menu. While the “News Releases” and “Alerts” links are up-to-date, the “Questions and Answers” link stops in July 2012. Perhaps there is a reason for this, but if so, the page does not explain what it is.

    There are other items which need additional work. For example, when I worked as an INS Attorney (1976-82), I spent a couple of years interviewing persons claiming U.S. citizenship through their parents. The laws pertaining to “acquisition” and “derivation” of U.S. citizenship are complex, and the legal requirements change every few years. For this reason, INS Attorneys always relied on 4 handy charts published by the government.

    When I created our website in 1995, I wanted to link to these charts on the INS/USCIS website. However, it was extremely difficult to find them. When I finally did so, I linked to them from our “US Citizenship Through Parents” page. However, every few months, the government would change the URL/Address of these pages, thereby breaking my links. After repairing the broken links over a dozen times, I decided to put the 4 Nationality Charts on our website.

    Ever the optimist, I hoped that the new USCIS website would make it easier to find the 4 charts. In order to test my thesis, I placed my cursor of the “Citizenship” tab and down came the various menu items. I clicked on the link entitled “Citizenship Though Parents”. Two charts instantly appeared, but where were the other 2?

    I decided to try a new approach. I clicked on the website’s internal search engine which reads “What are you looking for?” and entered the words “Nationality Charts”. I got 89,900 results, but wait, the first 4 were links to the elusive Nationality Charts. Eureka!

    However, when I clicked on the first link, I did not see the chart, but the following message:

    Please be aware that the Adjudicators Field Manual (AFM) Chapters 71 to 76 and Appendices 71-1 to 75-7 have been superseded by USCIS Policy Manual, Volume 12: Citizenship & Naturalization as of January 22, 2013.

    Hmm… I then clicked the “Policy Manual” link, and from there, I clicked on “Part H: Children of U.S. Citizens”. This provided me with a lot of great information, but very complex. Where were the charts? Perhaps, if I were willing to spend a considerable amount of time clicking links, I would have found them, but for now, I’ll stick to my own website.

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    Updated 12-02-2013 at 12:11 PM by CShusterman

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  5. ICE's Bed Mandate: Who Benefits?
    Illegal crossings along the U.S.-Mexican border have diminished greatly. The Administration’s DACA policy has saved hundreds of thousands of young people from possible deportation. The GOP is pressing for deep cuts in the federal budget.

    So why is ICE locking up more persons than ever before, and spending much more money than in previous years?

    The simple answer is the “bed mandate”.

    The what?

    Back in 2009, the late Senator Robert Byrd (D-VA) amended a DHS appropriations bill to require ICE to keep a minimum of 33,400 persons locked up at all times. ICE thus became the only agency in the entire federal government to have a minimum quota on the number of people that they must keep in jail. Congress later raised the bed mandate to 34,000.

    Since 2005, the number of persons in ICE detention has risen 72%, and this costs the taxpayers $2 billion annually. Even former DHS Secretary Janet Napolitano calls the bed mandate artificial and unnecessary. Instead of releasing low-risk persons with ankle bracelets, ICE is forced to spend $120 per prisoner per day.

    Ironically, the GOP has blocked efforts to repeal the bed mandate even though it smacks of government waste and inefficiency.

    Why? Follow the money.

    Private companies, the Corrections Corporation and Geo Group, imprison over 60% of ICE detainees. The stock of these two-publicly traded companies has roughly doubled over the past 3 years. In messages issued in 2012, an ICE administrator ordered employees to increase arrests in order to comply with the bed mandate. These days, the former ICE administrator is, guess what, an executive for one of the companies mentioned above.

    The Comprehensive Immigration Reform (CIR) bill passed by the Senate last June would give ICE more discretion in determining who to imprison and who to release. However, if you own stock in the companies listed above, don’t sell your shares just yet.

    GOP Senators inserted an amendment into the CIR bill which would compel ICE to triple arrests in the Southwest. This would boost the cost of incarcerating inmates by over $1.5 billion over the next 10 years.

    Great news for stockholders, but for taxpayers, it’s just another example of government waste.

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    Updated 12-02-2013 at 12:14 PM by CShusterman

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