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  1. Possible Lawsuit to Help Victims of the Asylum Clock

    The Asylum Clock has been the bane of asylum seekers and their lawyers since it was created in 1994 (and codified into law in 1996).* It requires an asylum applicant to wait 150 days before applying for an employment authorization documents ("EAD"), but the clock "stops" if the applicant causes a delay in her case.* The idea was to dissuade people from filing frivolous asylum applications in order to get EADs.* The problem, however, is that legitimate applicants are often prevented from obtaining EADs for seemingly random and inexplicable reasons.*

    In this artist's rendition of the destruction of the Asylum Clock, AIC and NWIRP are represented by Donald Duck.

    One reason for this problem is that the regulations implementing the Clock are vague, and are interpreted differently by different Immigration Judges.* So for example, most of my cases are in the Immigration Courts in Baltimore, Maryland or Arlington, Virginia.* Clients with the same case will receive an EAD in one court, but not the other.* All because the regulations are interpreted differently in different places.* For a good analysis of the Asylum Clock, check out this report: Up Against the Clock: Fixing the Broken Employment Authorization Asylum Clock prepared by the American Immigration Counsel and Penn State's Dickinson School of Law.
    Now, the American Immigration Counsel ("AIC") and the Northwest Immigrant Rights Project "(NWIRP") are exploring potential litigation on behalf of individuals who have been unable to obtain employment authorization due to Asylum Clock problems.* The organizations are looking for potential plaintiffs in the following three categories:
    (1) Applicants whose clocks have not started and will not start until the next scheduled master calendar hearing because their applications are not yet considered filed in immigration court;
    (2) *Applicants whose clocks have not started or restarted even after alleged applicant-caused delays have been resolved; and
    (3) Applicants whose clocks have not started or restarted after their cases were remanded following appeal.
    If you have a client in one of these categories who might be willing to participate in litigation, please contact Agnes Gyorfi at AIC at (202) 507-7523 or by Friday, September 16, 2011.
    Here's hoping that AIC and NWIRP are able to pursue this litigation and knock some sense into the Asylum Clock.
    Originally posted on the Asylumist:
  2. Bloggings: A few more thoughts about the effect of 9/11 on immigration, by Roger Algase

    Much has been written about specific pro-immigrant reforms which may have have been under consideration before 9/11 but were put on hold, or into the dust bin of immgration history after the attacks of 10 years ago. To mention only one small example, as I recall, the INS had announced during the summer of 2001 that it was planning to publish a rule providing for a 60-day grace period, similar to the one for F-1 students who finish or drop out of school, for H-1B workers who finish or leave their jobs for any reason.
    The fairness of such a rule would have been obvious. Many H-1B employees are here with families, homes that they own, and children in school. To expect them to leave the US immediately upon leaving their jobs, or, as is often the case, losing them suddenly with little or no advance notice, would strike even the average five year old child as unfair. It is scandalous that not only was publishing this proposed rule scrapped in the wake of 9/11, but in the 10 years since it has not even been considered by immigration officials who like to call themselves adults.  
    The same applies to the absurdly short 10-day grace period upon completion of a full term of H-1B employment. Has denying a realistic grace period to H-1B professional workers made America safer from attack during the past 10 years? Again, this is only one small example of how the 9/11 attacks were used as a cover for pre-existing anti-immigrant attitudes among both the general public and the immigration bureaucracy.
    On a larger scale, before 9/11, immigration was regarded as a branch of law enforcement and was mainly under the authority and control of the Department of Justice (with, of course, supporting roles for the State Department and Labor Department, as is still the case). This made sense, because the basic concept behind having a Department of Justice is that its actions should be governed by the rule of law. However, after 9/11, primary responsibility for immigration was transferred to the newly created Department of Homeland Security.
    The implied idea behind this was that immigrants are presumed to be dangerous to the US. Never before in US history, even in times of restrictive measures such as the Chinese exclusion laws or the 1924 Immigration Act, with its notorious "national origins" quotas excluding Jewish, Italian, Eastern European and most other immigrants from outside northern Europe, was the immigrant community in general so stigmatized. When immigration becomes primarily a security issue, the assumption is that the rule of law is no longer fundamental. Even trumped up threats to US security may take precedence over complying with the laws or the Constitution. Just ask Mr. Cheney.
    Instead of looking at immigration as either primarily a law enforcement or national security issue, important as these two issues are, immigration should be considered a branch of the law of human rights. I predict that this area of law will become increasingly well recognized and important during this century.
    For example, environmental law, which did not even have a separate heading in the West Digest in the early 1970's if I remember correctly, is now so important that one of our leading presidential candidates wants to abolish the EPA, and large polluters need to spend billions of dollars in campaign contributions so that ordinary Americans (and immigrants) can continue to choke on dirty air and drink poisoned water. In the same way, human rights law will become the true legal foundation for the 21st century.
    Does this mean that there is a "human right" on the part of everyone in the world to come to or live in the United States? Absolutely not. The idea of human rights does not include something that is impossible as a practical matter or patently absurd. But it does mean that the right to certain fundamental legal protections and to be treated fairly by the justice system should not depend on one's citizenship. It also means that the immigration system should be based on our common humanity, not artificial divisions.
    2,000 years ago, the Roman philosopher Seneca wrote that there were two types of citizenship: the one assigned to us by an accident of birth, and the other to be measured by the path of the sun. America has already had enough experience with the first kind of citizenship. If there is any lesson to be learned from 9/11 at all, it is that the time to focus on the second kind of citizenship has now arrived.
  3. Border Patrol Agent Says Big Spending at Northern Border a Waste

    by , 09-06-2011 at 07:37 AM (Greg Siskind on Immigration Law and Policy)
  4. White House Hints It Will Oppose E-Verify-only Bill

    by , 09-06-2011 at 07:02 AM (Greg Siskind on Immigration Law and Policy)
    Lamar Smith is pushing for swift passage of his E-Verify mandate bill. While the bill would likely face a tough battle in the Senate, many wonder whether the President would sign or veto it. The White House has been a strong advocate for E-Verify, but it also knows that enforcement-only bills are hugely unpopular in immigrant communities.
    So recent comments by DHS Secretary Janet Napolitano are telling:

    Although the Obama administration favors the expanded use of the electronic E-Verify system to confirm the legal status of prospective employees, Homeland Security Secretary Janet Napolitano said today that any expansion of E-Verify must be part of a larger immigration reform plan.

    'If you just do E-Verify, you're not doing enough,' she told a breakfast meeting with reporters.

    Napolitano said that E-Verify expansion should be part of a package that also includes the DREAM Act, which allows some children of Napolitano said that E-Verify expansion should be part of a package that also includes the DREAM  Act, which allows illegal immigrants a pathway to U.S. citizenship, along with expanded H1B visas for high-tech workers and H2A visas.

    Of course, this isn't really comprehensive immigration reform, but that's okay in my opinion. Interestingly, Napolitano is quoted saying E-Verify "can and should be part of (comprehensive) immigration reform." Note that the Houston Chronicle reporter has put "comprehensive" in parenthesis assuming that Napolitano meant comprehensive reform. But I think she probably meant exactly what she said - just reform. Efforts to pass a comprehensive immigration bill have gone nowhere now for seven years and the politics have only gooten worse. But piecemeal immigration reform is an easier lift and it could be that we get some important reforms like the DREAM Act, perhaps AgJobs and skilled worker reforms in exchange for an E-Verify mandate. I'd take that deal if it were on the table, though I know many in the pro-immigrant community will reject anything less than perfect. But we all know that the perfect solution is the enemy of the good one.
  5. Executive Craftsmanship: Job Creation through Existing Immigration Laws

    by , 09-06-2011 at 06:52 AM (Angelo Paparelli on Dysfunctional Government)
    The dog days of August are behind us, yet the economic doldrums persist.  Unemployment remains unchanged and unacceptably high at 9.1%. The White House forecaststhat it will stay there through the New Year and then likely drop only a tenth of a percentage point for all of 2012. 
    Congress returns this week to Washington. Vituperation in lieu of legislative action will soon begin. The media kerfuffle over the timing of the Obama-Jobs speech enraged most citizen observers. Meantime, pundits are asking about the content of the President's speech:  Will he go large to appease dispirited Progressives?  Or, will he propose modest measures that "the Left [won't] understand" in the hope of winning bipartisan support. 
    American politicians and special interests seem to have forgotten the "vigorous virtues [of self-reliance, personal responsibility, industriousness and a passion for freedom]," as David Brooks, op-ed columnist for the New York Times, observes. Brooks argues, convincingly, that as a result of this forgetfulness (I would call it blind and callous indifference) a "specter [is] haunting American politics: national decline."
    The descent, however, is not inevitable.  It can be reversed.  A largely unseen, silent, law-abiding yet shackled group within our midst embodies all of the vigorous virtues. They are the sojourners from abroad who are yoked to the constricting terms and conditions of a U.S. employer's work visa petition. These hard-working souls are prohibited by law and dubious agency interpretations from using their ideas, talents, capital and energy to start companies and hire American workers.
    Fortunately, no act of Congress is required to unleash these innovators, entrepreneurs and job creators and empower them to work their magic. 
    The White House already knows it possesses the authority through executive action in immigration matters.  The Administration's recalibration of its immigration enforcement priorities has evoked little public outcry.  Disinformation, however, is spreading but failing to gain much traction.  The "Backdoor Amnesty" dog has no legs and won't hunt.
    If unauthorized immigrants with positive equities warrant legitimate administrative relief, as they clearly do, why not reward the more deserving foreign citizens who have patiently waited and played by the rules?  
    The President should therefore continue trying to jump start job-creation and allow the next generation of Apples, Googles and as yet unimagined supercompanies to take root in American soil and thrive. The White House's early steps "to Promote Startup Enterprises and Spur Job Creation" have been criticized, however, in this blog and elsewhere, as overly narrow and unhelpful. These missteps are not failures.  They are merely invitations to persist, as the iconic American innovator, Thomas Edison, reminds us ("I have not failed. I've just found 10,000 ways that won't work").
    Here then are my suggestions to President Obama for administrative reform of the legal immigration system, as presented to attendees at an outstanding event convened on August 31 in Los Angeles by January Contreras, the USCIS Ombudsman ("Listening Session to Explore Small and Start-Up Business Immigration Issues"):

    Instruct U.S. Citizenship and Immigration Services (USCIS) to rescind the January 8, 2010 "Neufeld Memorandum" on employer-employee relationships and replace it with a regulation expressly allowing immigration self-sponsorship by owner-entrepreneurs in a broad array of work visa categories for employment on company premises and at customer sites.
    Instruct USCIS and the State Department to issue -- on an expedited basis -- replacement or initial regulations interpreting the following laws in the expansive and job-creating spirit that Congress intended: The Immigration Act of 1990, the American Competitiveness and Workforce Improvement Act of 1998, and the American Competitiveness in the Twenty-First Century Act of 2000. These regulations should, e.g., broaden eligibility for all categories of the L-1 Intracompany Transferee visa, particularly for start-up operations, function managers and specialized knowledge personnel.
    Instruct USCIS to focus on improving the quality of adjudications by improving the corps of adjudicators who make employment-based immigration decisions:

    Impose stricter hiring requirements, including the minimum of a relevant bachelor's degree (if it takes that to receive an H-1B visa, the same should apply to grant one), strong writing and analytical skills.
    Cause the Small Business Administration to provide training to adjudicators on the characteristics, contributions and challenges of small businesses and startups.
    Review performance metrics and institute sanctions for improper issuance of Requests for Evidence, Notices of Intent to Deny and Revocation notices, while rewarding positive behaviors.

    Instruct USCIS to grant nonimmigrants in lawful immigration status the benefits of "parole in place" and open-market work authorization upon submission of proof that they will open a business, buy a home, hire U.S. workers or devise an innovative technology, good or service.
    Instruct USCIS to allow beneficiaries of approved employment- or family-based immigrant visa petitions whose place in the visa queue is backlogged to apply for adjustment of status (thereby entitling them to open-market work permits until they reach the front of the visa line and can receive green card approval).
    Instruct USCIS to allow Premium Processing of employment-based Administrative Appeals Office appeals and all Motions to Reopen or Reconsider along with the tolling of unlawful presence penalties and the grant of employment authorization during the pendency of non-frivolous filings.
    Instruct the Labor Department to add entrepreneurs and investors to the pre-certified Schedule A labor certification exemption, and allow an entity owned by such individuals to self-sponsor for green card status.
    Instruct USCIS to publicize its 2008 Notice prohibiting internal retaliation against small businesses, define "retaliation" broadly and pursue violations aggressively.
    Instruct USCIS to eliminate the Directorate, Fraud Detection and National Security (FDNS), and instruct U.S. Immigration and Customs Enforcement (ICE) to exercise all investigative and enforcement functions involving alleged immigration benefits fraud and immigration-related national security concerns.
    Instruct ICE to investigate only those small business violations based on articulable and reasonable cause that a violation of the INA has occurred. Stop the guilty until proven innocent approach currently in use. 
    Instruct USCIS to appoint an Associate Director who reports directly to the Director and who is solely responsible for promoting and facilitating the grant of employment based immigration benefits and reporting actions by USCIS personnel that impede, impair or deny the grant of such benefits to deserving parties. This Associate Director would also have authority to intervene under the Homeland Security Act when the State Department takes actions that unreasonably interfere with or deny immigration benefits to startups and small businesses.
    Require strict compliance by all immigration agencies with the notice-and-comment requirements of the Administrative Procedure Act and the small-business-impact analysis required under the Regulatory Flexibility Act, and phase out the practice of issuing guidance by policy memorandum.
    Instruct and empower the Small Business Administration's Office of Advocacy to review and recommend changes to DHS, DOL and DOS rules that adversely affect job creation, entrepreneurship, investment and innovation by small businesses and start-ups.

    As we await the President's address to a joint session of Congress, many anticipate that at least one proposal will be to rebuild our nation's existing infrastructure -- the roads, bridges, waterways, and rails.  Let's hope he also includes legitimate administrative fixes to our creaking and crotchety LEGAL immigration infrastructure.  American citizens looking for jobs deserve nothing less. 
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