Gary Endelman On Immigration Policy and Law

Is It Still A Federal Case? An Unintended Consequence of Arizona v. USA

Of all the unexpected consequences of Arizona v USA, perhaps the least likely is the potential reshaping of licensure regulations for the immigration bar. So long as the states did not seek to regulate immigration, lawyers licensed in one state could practice immigration law in another, save for those jurisidctions such as California and Colorado that banned such practice. Relying on  ABA Model Rule 5.5(d) and Supreme Court precedent in the case of Sperry v. Florida, 373 US 379, 383-84 (1963),  immigration was a federal practice and any credentialed advocate could join in. That is why USCIS recognized this multi-jurisdiction bar in 8 CFR 292.1(a)(1) and 1.1(f). The State Department is no less courteous: 

9 FAM 40.4 N12.3 Local or U.S.-Licensed Attorneys Practicing Abroad  You must extend to a U.S. attorney who has been practicing abroad and is a member of a State bar association or to a local attorney-at-law, the same courtesies in correspondence that are extended to an attorney practicing in the United States, provided you are satisfied that the required relationship exists.

This has never been without controversy. New York makes out of jurisdiction lawyers register every two years at a $375 fee. In Texas, a solo immigration practitioner from New York State moved to Houston but did not bother to sit for the Texas bar exam.  She was not given a Texas-size welcome; the Unauthorized Practice of Law Committee of the Texas State Bar sued her, expressing a concern for the integrity of the Texas family and penal code as well as the potential harm to Texas residents. Ultimately, the case was dropped. See John Council, Out of Bounds: Lawyer Without Texas Bar Card Fights for Right to Practice, 18 Tex. Law. 24. (2002); Gregory Siskind, New York Immigration Lawyer Wins Battle to Practice in Texas, Immigration Daily available here. For those who want a deep dive into the delicacies of this controversy, see the wonderful article by Charles Kuck and Olesia Gorinshety as well as the masterful insights provided by Cyrus Mehta.

The exemption from state bar rules depends upon dealing exclusively with federal law. Can this easily or always be done? That is the concern voiced by Texas Ethics Opinion No. 516:

Without issuing an opinion on the subject of unauthorized practice of law, the committee assumes that the representation of clients in Texas by an out-of-state attorney solely on issues or matters of federallaw in the area of immigration and nationality law before the U.S. Immigration and NaturalizationService and in federal courts does not constitute the unauthorized practice of law in Texas. The committee further assumes sat this is incorrect regardless of whether the out-of-state attorney lives in or outside of Texas, maintains an office in Texas, or is employed by an attorney who is licensed to practice law in Texas, so long as the representation of clients in Texas by an out-of-state attorney is in fact limited only to issues or matters of federal law...However, the committee recognizes that the foregoing assumptions do not resolve all unauthorizedpractice of law problems presented in this question. As a practical matter, it simply may not be possibleto separate federal and state law issues when representing clients on matters under the U.S. Immigrationand Nationality Act. Representing clients on immigration and nationality law may require an out-of-stateattorney to know and advise such clients on issues and matters involving Texas law. For example, Texaslaw governing family matters such as marriage, divorce and adoption may be determinative in certainimmigration cases; likewise, immigration law questions may necessarily involve giving advice on Texascriminal law statutes, Texas employment laws, or other Texas law. Accordingly, the risk of engaging inthe unauthorized practice of law in Texas inevitably increases with the number of immigration andnationality cases handled by an out-of-state attorney. http://www.law.uh.edu/libraries/ethics/opinions/501-600/eo516.pdf

This is where SB 1070 comes in. If the Supreme Court finds that Arizona can use its retained police powers to regulate and punish conduct by and the presence of undocumented immigrants, then it will be much more difficult to separate state from federal law in the analysis of any immigration problem,whether in Arizona or in all the other States that either have their own state immigration laws already or will be encouraged to adopt them.  No longer will immigration lawyers be able to refrain, if they can now, from state law questions. Should this happen, and the lines between state and federal jurisprudence between irretrievably blurred to the point where they cease to exist, it is hard to imagine how any immigration lawyer who is not licensed in the state where they practice can avoid engaging in the unauthorized practice of law. Do we really want this ? As Proverbs warns us, he " who troubleth his own house shall inherit the wind."

" Where Do We Go From Here: How Can We Improve the H-1B?"

 

Now that the H-1B cap for FY 2012 has been reached as of November 22nd,  the question presents itself for our consideration: Where do we go from here? Are there ways to improve the H-1B ? In an ideal world, the Congress would either raise the cap or abolish it altogether, preferably the latter. The only cap that makes sense is one that works in concert with , rather than in ignorance of, the market. The best protection for US workers , indeed the only kind that really makes sense, is to let the economy decide how many H-1Bs should come. That, far more than any artificial limit picked out of thin air, will work. The H-1B has become the test case for all employment-based immigration. If we cannot articulate a rational policy here that serves the national interest, we will not be able to do it anywhere else. The ongoing H-1B debate is really about the direction that the American economy will take in the digital age and whether we as a nation will voluntarily surrender the high ground that America now occupies.

Opponents of the H-1B talk a lot about the "global economy" but act as if we lived solely in a domestic one. We want a seamless movement of trade and ideas across national boundaries but seem to believe that people must stay behind. Give us your money and intellectual capital but be sure to remain where you are!  Despite the obvious advantages of a realistic H cap,   Congress is not likely to provide this.There is no reason not to campaign for more H numbers but there is also an equally pressing imperative to consider ways to improve the H that do not involve more numbers.  Perhaps, we should begin asking whether  we need a different kind of H-1B visa.

With that in mind, please consider the following modest proposals. If you do not like any or all of them, feel free to throw away this list and suggest your own.

1. The Congress has endorsed the concept of H-1B portability in AC 21, but it has only taken a few baby steps along this road. Let's take some giant ones. Why not allow the H-1B alien to file the petition much as he or she can now file a national interest waiver or an extraordinary ability petition? The H-1B approval would then truly belong to the H-1B worker and not to the employer who loses any leverage that the market would not otherwise provide. Armed with such a weapon to guard against any unreasonable employer demands , the H-1B alien has not need for the LCA shield. It would then be irrelevant and all associated with it liberated. While its motives are honorable, the practical effect of DOL's command and control mentality  has been to deter H-1B compliance by creating a system that is poorly understood and unevenly administered. Its' Byzantine complexity benefits only lawyers and bureaucrats, but does little to protect American workers and imposes unnatural strains upon the wage structure of the vast majority of honest employers.

2. Ban any H-1B dependent employers.  Why should those with a more diversified work force be burdened by over-regulation aimed at a relative few?  If the latter are the problem, Congress can ban them from sponsoring anyone for an H, thus restoring rationality for everyone else and undercutting whatever dim justification for the LCA remains. No employer who is H-1B dependent should be able to file an H petition. End of story.

3. Require all H sponsors to prove the alien beneficiary is the most qualified applicant they can hire. Impose the same recruitment obligation that H-1B dependent employers now confront upon all H sponsors. There should be one key difference. Allow the employers to use the same recruitment they have already done to select the alien at time of initial hire and mandate acceptance of the "best qualified" standard that now only applies  to university selections. No one in the real world ever thinks of minimal qualifications.  Would you want to drive your car over a bridge designed by a minimally qualified engineer or allow a minimally qualified surgeon to perform open-heart surgery on your mother? The question literally answers itself. It is perfectly fair to ask that employers explain their choice not to hire an American if they are allowed to  use real world standards when doing so.

4. Create a Blanket H-1B.  Create a blanket H-1B visa that can be applied for directly at a US Consulate, much as it is now possible to apply for a Blanket L visa. Eligibility for this Blanket H should depend on the number of approved H  petitions in the past year; the percentage of full-time equivalent H workers in their employ ( no eligibilty for H dependent employers) and documentation of  demonstrated ability to pay the prevailing wage. No employer who is guilty of a willful or material H wage violation can apply.  Get rid of the LCA and this no longer prevents the rational from being enacted into law. H-1B portability under AC 21 would still remain, but the Blanket H allows the H-1B worker and employer to bypass the USCIS entirely.

5. Create an H-1B lottery. If the concept of a Blanket H seems to favor established employers or those with a multi-national presence, why not allow potential H-1B beneficiaries to register for an H-1B lottery much as people now register for the Diversity Visa lottery?  Take the 65,000 H-1B cap together with the 20,000 cap exempt allotment for advanced US degrees and let folks register on line for H numbers during a specified application period.  The H lottery winnder come in for 3 years and get to work for anyone they want. They win, they pay all fees involved and the visa belongs to them. The best employers will still get the top talent.

6. Create a Schedule A occupational list for the H-1B. Does the economy have the same need for all H-1B occupations? Of course not!  Prepare a list of occupations deserving of H approval. Annual revisions of the list will keep it current. For those occupations not on the list, they can still get an H visa but only for shorter duration and with no exemption from the intending immigrant presumption found in Section 214 (b) of the INA. There is nothing particularly radical about this notin  this is precisely how Congress structured the 6,800 H visa numbers reserved for Singapore and Chile under their respective free trade agreements.

7.  Since everyone agrees that America's future depends upon science, mathematics, technology and engineering, why not exempt those with a US graduate degree in these disciplines from the H cap? Following one year in this special H category, they could self-petition for adjustment of status to lawful permanent residence.

8. If there is a national consensus on the need for more STEM degree holders, there is no such consensus regarding liberal arts .  While it is certainly true that employers have a real need for such expertise,  is there a valid reason why only those with a Master's or Ph.D. degree in non-STEM disciplines should qualiy for H-1B visas? I recognize this is not going to go down easy with some, perhaps many, of my brethren, but this concession to H-1B critics could go far to proving our concern for the larger national interest, particularly in a depressed economy, and could significantly increase the chances for concessions on many of the proposals outlined above.

9. The only reason to have the H-1B category, or any employment-based visa, is to benefit the US economy. The fact that someone has a relevant college degree may prepare them to do that and it is a factor that the USCIS should consider. Yet, it is not the only or even the primary criteria that can or should be used. In addition to education, fluency in English, age, specialized expertise in a shortage occupation or one of national importance are all of equal or greater moment in determining what contribution the visa applicant can render to the USA. Until now, advocates of a point system have limited its application to the immigrant visa context. It can and should be used to determine the allocation of H-1B visas as well.  If we want to enrich the nation and create new sources of wealth, something that would really help the very US workers that DOL wants to protect, the impose a points system to govern H-1B adjudication and let that decide who wins and who loses.  Take the data put out by the Bureau of Labor Statistics, the Federal Reserve and/or the Conference Board, to name but a few of the many possible sources of information, and revise the criteria by which the USCIS would rule on H-1Bs every fiscal quarter to guard against ossification.

10. If we have to have an H cap, why have a one size fits all approach? What about an H cap on a country-by- country basis  with an oversubscribed country able to borrow unused H numbers from an under- utilized country ?  This would facilitate diversity of H migration  and diminish much of opposition to the H visa itself as all but the most partisan critics would realize that considerations of national interest predominated in the setting of H visa limits.

This is pre-eminently a time for innovation. Try something and, if that does not work, well then try something else.  In a global economy, all forms of capital, including intellectual capital, flow to their optimum destination according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary only serve to enrich our foreign competitors while we all lose. The USCIS and DOL do care about American workers but they do not effectively express such concern through policies that make US companies less competitive and the US itself less desirable as a place for the world's creative elites to lvie and work. There is a better way where everyone benefits.  For those of faint heart who doubt this can be done,  let us return to the message that President Abraham Lincoln sent to Congress on December 1, 1862, outlining his plans for the emancipation of all African slaves. They are no less true  now than they were then:

"The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise to the occasion. As our case is new, so we must think anew , and act anew. We must disenthrall ourselves, and then we shall save our country"

Beware of What You Wish For: Is " The Fairness for HIgh-Skilled Immigration Act" Really A Good Idea?

    On October 28, 2011, the House Judiciary Committee approved a proposal brought forward by Tea Party favorite Congressman Jason Chaffetz(R-UT) with the support of Rep. Zoe Loefgren (D-Cal), an ardent advocate for more immigration, and Rep. Lamar Smith (R-Tx), not previously known for his pro-immigration stands.  Such diverse parentage suggests this is one bill that might actually go places. So, it might be worth a few moments to find out what it says.

     Right now, the INA permits the issuance of 140,000 employment-based immigrant visas each fiscal year with the nationals of any one country limited to 7% of that total. Under HR 3012, the so-called Fairness for High-Skilled Workers Act, would remove the per country cap on EB migration entirely, raise the cap on family migration to 15%, and stop taking 1,000 numbers from EB-2 China to compensate for the Chinese Student Protection Act. There are transitional rules for Fiscal Years 2012(October 1, 2011-September 30, 2012) through FY 2014 under which a certain percentage of immigrant visas would go to nationals who are natives of a foreign state or dependent area that was not one of two countries with the largest number of natives obtaining LPR status in that fiscal year. In FY 2012, this percentage would be 15% and would decline to 10% for the following two fiscal years.

According to the report issued by the Office of Immigration Statistics in late October,  Mexico sent more immigrants than any other country(3.3 million or 26%) followed by the Philippines (560,000 or 4.4%) after which came China (550,000 or 4.4%), India (500,000 or 4.0%) and then the Dominican Republic(440,000 or 3.5%).  The top 10 sending countries, including Cuba, Canada, El Salvador, Vietnam and the United Kingdom, accounted for 55 % of all permanent residents in FY 2010.

    The motives behind HR 3012 are laudable, to end the chronic backlogs in EB-3 and EB-2 migration from China and India; to allow highly-skilled scientists and engineers to make the US economy more competitive; and to avoid having to send this top talent to our competitors abroad so that more white collar jobs can flee these shores. Amen to all that! The IT industry and the immigration bar are in hog heaven as we used to say in Flatbush.  So, what's not to like? Isn't this what we all want and have been asking for?

The current system discriminates against nationals of China and India based on their country of origin. It is essentially an unintended but no less brutally effective revival of the  hated national origins quota enacted in 1924 to  keep Jews and Catholics from coming to the United States. Now we  keep out highly educated STEM Degree holders from China and India. What would the end result of lifting the cap on EB per country migration be? It would mean  that those born in these two countries would virtually monopolize all available EB visa numbers each fiscal year. By ending the inanity and inequity of treating Chinese and Swiss nationals the same, Congress would be effectively creating an equally pernicious regime that will admittedly treat everyone equally but, in practice, would keep out nationals of every country save for India and China. Everyone else would be infinitely worse off than they are now. The yawning EB backlogs for China and India would disappear to be replaced by equally discouraging queues for the rest of the world.

    Do we really want to create an employment-based green card system that only works for India and China?  Should discrimination against an educated workforce from these two countries be shelved only to discriminate against no less talented professionals from everywhere else? Why would those who favor diversity in college admission and employment hiring not recognize its value in immigration quotas? Doubtless advocates would contend that spreading the pain around is the best, maybe the only way, to get Congress to enlarge our manifestly inadequate EB quotas and they could be right. Before we join in the chorus for this radical move away from geographic neutrality, why not consider an alternative such as giving China and India a preferred position but not scrapping EB per country limits entirely? Remember the old adage: Beware of What You Wish For- You May Get It!

 

 

 

 

"Can Martinez v. Mukasey survive a Supreme Court decision in Vartelas v Holder?"

My guru on the law of removal, the learned Salvador Colon of Houston, is worried. Why you ask? It is because he wonders if the Fifth Circuit decision in Martinez v. Mukasey can survive a future Supreme Court ruling in  Vartelas v Holder. Now, this may seem very much like inside baseball trivia to the uninitiated but it actually can have real life consequences. Permit me to explain.

In my last blog, I discussed Vartelas v Holder, 620 F. 3d 108 (2d Cir. 2010), cert. granted sept. 27, 2011 (No. 10-1211). Here, an LPR had plead guilty in 1994 to the crime of possessing or making bogus securities. At that time, IIRIRA was not yet a gleam in the eye of the most fervent nativist. Why is this relevant? Look at INA 101(a)(13)(C)(v) that renders a returning LPR an applicant for admission if he or she has committed a crime involving moral turpitude that is not a petty offense. Even though the incident in question took place under a different legal regime, the BIA and the Second Circuit both held that the applicaitn of the post-IIRIRA admission  standard was not impermissibly retroactive.  This was in conflict with the contrary conclusions on this same question reached by the Ninth Circuit in Camins v. Gonzales, 500 F. 3d 872(9th Cir. 2007) and the Fourth Circuit in Olatunji v. Ashcroft, 387 F. ed 3838(4th Cir. 2004). Perhaps, given this conflict among the circuits, the Supreme Court granted certiorari to determine whether the current INA 101(a)(13)(C)(v) can be applied retroactively.

Doubtless, the conceptual framework that will govern such constitutional exegesis is the traditional two-step approach articulated in Landgraf v. USI Film Products, 511 U.S. 244 (1984). Since Congress did not expressly instruct  on how far back IIRIRA can go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101 (a)(13)(C)(v) will contradict basic notions of proper notice and upset "settled expectations" on which the actor "reasonably relied."  Interestingly, IIRIRA's temporal reach cannot be circumscribed simply because "it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law." Landgraf, 511 US at 269. When in doubt, retroactivity is disfavored.  The Supreme Court got it right: " Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Landgraf, 511 US at 265,

All of the above brings us, and brought sensei Chava Colon, to consider what might be the fate of the Fifth Circuit's enlightend ruling in Martinez v. Mukasey, 519 US F.3d 532(5t Cir. 2008) . This case held that the bar against INA 212(h) waivers for permanent residents who have committed aggravated felonies or have resided in the USA less than 7 years does not apply to one who adjusted status within the USA rather than having entered on an immigrant visa after consular processing. A cogent and incisive analysis of this case was offered by my learned colleague David Isaacson in this same space. http://www.ilw.com/articles/2008,0930-isaacson.shtm . Now, Chava Colon had the inspired thought that a Supreme Court affirmation of IIRIRA retroactivity in Vartelas v Holder might undermine the distinction between adjustment of status and admission on which Martinez v. Mukasey rests. Once the Supemes start tinkering with the notion of "admission", there is no way to predict where they or we will end up. Any Supreme Court pronouncement in Vartelas could well conflate the two ways of becoming an LPR that the Fifth Circuit in Martinez v Mukasey was so careful to keep separate and apart.

So, a decision how far back the IIRIRA notion of "admission" goes could wind up leaving an alien who needs 212(h) relief with no hope. When, to borrow a happy phrase from Einstein, the Supreme Court starts to play dice with the universe, mere mortals can only hope that the last laugh will not be on them or their clients.

 

"Remembering Fleuti: New Developments in the Law of Admission"

It has been a long time since the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") introduced the concept of "admission" now codified at INA Section 101(a)(13)(C) yet arguments have continued to rage as to what it means and who has the burden of proof when it comes to a returning permanent resident. Now, at long last, the Board of Immigration Appeals has brought clarity to this muddled picture, or so it seems. If the United States Supreme Court upsets this transquility, those charged with the responsibility of advising clients may once again find themselves searching for answers.

Before IIRIRA, the INA defined "entry" in these terms: " any coming of an alien into the United States...except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if...his departure to a foreign port or place...was not intended..." 8 USC Section 1101(a)(13). This is, to put it charitably, not the most artful or easily digestible drafting so it was not clear what Congress meant. Happily, the Supreme Court told us in Rosenberg v. Fleuti, 374 US 449 462 (1963) which held that a lawful permanent resident was not making an entry if his or her departure was "brief, casual and innocent." Comes along April 1, 1997 and "entry" a la Fleuti is no longer, replaced now by IIRIRA Section 101(a)(13)(C) "admission" pursuant to which an LPR shall not be regarded as seeking admission "unless" he or she met 6 specific criteria, including having been absent for a continuous period in excess of 180 days or having abandoned or relinquished LPR status while away. Not content to stop there, IIRIRA also introduced INA 240(c)(2), 8 USC Section 1229a(c)(2) that requires an applicant for admission to prove by "clear and convincing evidence" that he or she is "lawfully present in the US pursuant to a prior admission." The burden is on the applicant for admission to demosntrate "clearly and beyond doubt" that he or she is not inadmissible. At the same time, IIRIRA also lowered the burden on the government as the charging party in removal proceedings to establish deportability b y "clear and convincing" evidence replacing the "clear, unequivocal and convincing" evidence test articulated by the Supreme Court in Woodby v. INS, 385 US 276,286 (1966). Following hard on the heels of IIRIRA, which did not explicitly abrogate Fleuti,  the Board of Immigration Appeals held in Matter of Collado-Munoz, 21 I&N Dec.1061, 1065(BIA 1997) that "the Fleuti doctrine, with its origins in the no longer existent definition of 'entry' in the Act , does not survive the enactment of the IIRIRA as judicial doctrine." Farewell Fleuti!

Has the burden of proof shifted after IIRIRA fora an LPR who seeks admission to the US? If so, what burden applied? It is true, after all, that Woodby was not a constitutional decision and did not create a separate law on abandonment as opposed to all deportation cases.  As my learned colleague Cyrus Mehta and I wrote in "Home Is Where The Card Is: How to Preserve Lawful Permanent Status In A Global Economy," 13 Bender's Immigration Bulletin 849,856 notes 37-41 (July 1, 2008), even after IIRIRA, both the BIA and the Circuit Courts continued to place the traditional burden on the government when the applicant has a colorable claim to LPR status.

Enter Matter of Benno Rivens, 25 I&N Dec. 623,625(BIA Oct. 19, 2011) which settles the matter or should unless the Supreme Court unsettles it, but more on that disturbing possibility later. Keep reading! In Benno Rivens, the Board of Immigration Appeals tells us what we all wanted to hear ( unless of course we work for CBP!) : " As a matter of first impression with respect to the application of section 101(a)(13)(C) of the Act,we find no reason to depart from our longstanding case law holding that DHS bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident is to be regarded as seekind admission." Interestingly, the Board cites Matter of Huang, 19 I&N Dec. 749, 754(BIA 1988) which, in turn, had cited Woodby  even though Congress eleced not to include the phrase " unequivocal" in IIRIRA INA 240(c)(3)(A).  Did this omission mean a lesser standard? The BIA has " no occasion to determine whether, or to what degree, this has effected a substantive change." Benno Rivens, 25 I&N Dec. at 626. Now that is frustrating, maybe even a tad annoying. Would not we all like to know ?

So what's not to like? Isn't this enough even for a disgruntled yet zealous advocate? Allow me to introduce Vartelas V. Holder,  620 F.3d 108 (2d Cir. 2010), cert. granted Sept. 27, 2011 (No. 10-1211). Here, an LPR had pled guilty in 1994 to the crime of possessing or making counterfeit securities.  At that time, IIRIRA had not yet been enacted. How is IIRIRA relevant here? Look at INA 101(a)(13)(C)(v) that renders a returning LPR an applicant for admission if he or she has committed a crime involving moral turpitude that is not a petty offense. Even though the incident in question took place under a different legal regime, the BIA and the 2nd Circuit both ruled that the application of the post-IIRIRA admission standard was not impermissibly retroactive. This  was in conflict with the contrary conclusions on this same issue reached by the 9th Circuit in Camins v. Gonzales, 500 F. 3d 872 (9th Cir. 2007) and the 4th Circuit in Olatunji v. Ashcroft , 387 F.3d 383(4th Cir. 2004). Perhaps to resolve this conflict among the different circuits, the Supreme Court has granted certiorari to review this narrow question of whether the current INA 101(a)(13)(C)(v) can be applied retroactively.  Doubtless, the conceptual framework that will shape its analysis is the traditional two-step approach articulated in Landgraf v. USI Film Products, 511 US 244(      984). Since Congress did not expressly instruct on how far back IIRIRA can go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a0(13)(C)(v) will contradict basic  notions of  proper notice and upset "settled expectations" on which the actor in question "reasonably relied." Interestingly, IIRIRA's temporal effect cannot be circumscribed simply because  "it is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law." Landgraf, 511 US at 269.  When in doubt, retroactivity is not favored. Chang v United States, 327 F.3d 99,920 (9th Cir. 2003).  The Supreme Court said it best: " Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expecations shoujld not be lightly disrupted." See Landgraf, 511 US at 265.

As that immortal baseball philosopher Leroy Satchell Paige so wisely said: "Don't look back. Something might be gaining on you."

"Beware of Khamooshpour"

Thinking of applying for naturalization? Before you  file your N-400, you might want to kick back and spend a few moments to imbibe the lessons imparted by Khamooshpour v Holder, No. CV-10-01266-PHX-NVW(D.Ariz. Feb. 14, 2011). Money laundering in violation of the Iranian Embargo Controls and failing to report foreign bank accounts will make it pretty darn difficult to show good moral character. This is true even if the conduct took place beyond the five year period for which GMC must be shown so long as the conviction itself took place within the charmed circle of time. The way the USCIS interprets 8 CFR 316.10(a), the need to prove you are worthy of becoming a citizen starts from five years before the N-400 comes on stream and continues until the applicant takes the sacred final oath. Nor are you home free if the USCIS cannot pin the dreaded CMT tag on you.  Even if 8 CFR 316.10(b)(2)(i) does not apply,  the USCIS can still say a loud "NYET!" by finding that the challenged actions "relecetd adversely " on your moral character . 8 CFR 316.10(b)(3)(iii) makes it legal. That is a pretty  broad catch-all phrase when they want to turn thumbs down.

Deliberate violation of the Iranian Embargo will not be lightly dismissed as a malum prohibitum regulatory offense. If you want to grease the skids to pass back and forth between New York and Tehran, best to get a license from your friendly Office of Foreign Assets Control.  Similarly, if you have a foreign bank account worth more than $10,000, failing to report it to Uncle Sam is going to be seen as a willful omission making you one bad actor. So, don't try to exchange money without a license, report your hefty foreign bank accounts and you too can get that shiny new naturalization certificate.  Forewarned is forearmed, as they say. Now, you can apply!

 

"Hard Times: Will They Help in The End?"

There is a fascinating observation in a recent column by noted demographer Michael Barone. Listen to what he says:

 “The 2010 Census tells something else that may prove important: There's been a slowdown of immigration since the recession began in 2007 and even some reverse migration. If you look at the Census results for Hispanic immigrant entry points -- East Los Angeles and Santa Ana, Calif., the east side of Houston, the Pilsen neighborhood in Chicago -- you find that the Hispanic population has dropped sharply since 2000.

One reason is the business cycle. The 2000 Census was taken on April 1, 2000, less than a month after the peak of the tech boom. Unemployment was low, immigration was high, and entry-point houses and apartments were crammed with large families.

The 2010 Census was taken after two years of recession, when immigration had slackened off. We simply don't know whether this was just a temporary response to the business cycle or the beginning of a permanent decline in migration.

Past mass migrations, which most experts expected to continue indefinitely, in fact ended abruptly. Net Puerto Rican migration to New York City stopped in 1961, and the huge movement of Southern blacks to Northern cities ended in 1965. Those who extrapolate current trends far into the future end up being wrong sooner or later.”

http://www.realclearpolitics.com/articles/2011/04/04/gop_shouldnt_panic_if_whites_become_a_minority_109436.html

 

What makes this so intriguing is the fact that conventional wisdom holds precisely the opposite, namely that the US is subject to never-end waves of unlawful migration to which we can offer no meaningful resistance. Yet, this is not all.  While it is certainly true, whether we are speaking of the 1930’s or the 21^st Century, that hard times makes many Americans less receptive to  calls for more immigration,  the influence of  dismal economic forces will, over time,  diminish these same demographic trends. Reinforcing the basic truth that, at bottom,  migration is an economic phenomenon,  it is the business cycle and not government policies that have the most powerful and sustained impact on who and how many come to America.

One final thought. Since the American public does not distinguish between legal and illegal migration, and tends to support the former while opposing the latter, particularly if we speak of high-end migration with advanced education,  it may be that the pain we are all going through now in the Great Recession of the last few years will, in the end, make enactment of comprehensive immigration reform more, not less, likely. If migration outside the law ebbs, then perhaps the American people will be less prone to see all immigration as a threat and consider the case for letting more of the best and brightest come on its own merits. That is a conversation that America needs.  As the great philosopher Mel Allen of Yankee Broadcaster fame in yesteryear used to say “ How ‘Bout That!”

 

"Want A New Passport ? Adopted Children Need Not Apply"

 

http://edocket.access.gpo.gov/2011/pdf/2011-4154.pdf

http://www.aila.org/content/fileviewer.aspx?docid=34593&linkid=229836

 Until I looked at the new DS-5513 Biographical Questionnaire for A US Passport in the February 24th issue of Federal Register, I did not fully comprehend that extent to which the State Department would go to prevent adopted children from travelling internationally.  Now I know.

If you think I protest too much, click on the links above and come to your own conclusion. Is there any way for an adopted child to know if his birth mother received pre- or post-natal medical care? Would an adopted daughter know how her birth mother came to the United States? How many adults who were adopted as infants could describe the circumstances of their birth? Maybe they could recite the dates of medical appointments for a woman they have never met and probably could not contact? Well, if they can climb into the family attic and unearth their baptismal or circumcision records, all is not lost.

All this and more may be required by your friendly Passport Agency . It won't take long, though; maybe 45 minutes! Got a spare lunch hour? Of course, things might change since comments in opposition to this identity invasion can be submitted for 60 days. Why the reason for all these questions that no adopted and few biological children can answer? Here's the stated rationale:

“The primary purpose for soliciting this information is to establish citizenship, identity, and eligibility for a U.S. Passport Book or Passport Card,” says the notice. “The information may also be used in connection with issuing other travel documents or evidence of citizenship and in furtherance of the Secretary’s responsibility for the protection of U.S. nationals abroad.”

Now before you write your angry letter or indignant email, consider that  the State Department is proposing that the questionnaire only be required of those applicants who “submit citizenship or identity evidence that is insufficient or of questionable authenticity.”  Conservative estimates are that that only about 74,000 persons per year will need to tear out their hair when trying to complete this form.  That’s about 0.5% of passport applicants

Hopefully, the incandescent wrath of an aroused populace, which, as we all know has nothing else to worry about, will cause an astonished State Department to think twice. If not,  I hear that the Grand Canyon looks beautiful this time of year. For those who say that you cannot be too careful in these scoundrel times when the need to fight terror is with us late and soon, I close with words worth remembering from someone who knew how to react amid revolutionary fervor:" They that give up essential liberty to obtain a little temporary safety, " Benjamin Franklin reminds us, " deserve neither liberty nor safety."

 

 

 

 

"EB-2 India: The Great Leap Forward"

INDIA EB-2 SHOULD LEAP FORWARD

"The Department of State has told AILA that because of decreasing demand for EB-1 visa numbers, the EB-2 category will be given at least 12,000 additional visa numbers. The 12,000 numbers will largely be given to Indian EB-2 applicants. EB-2 Chinese natives may also be positively impacted by this news.

The May 2011 Visa Bulletin, which should be released in mid-April 2011, should reflect this news."

Immigration guru Chris Musillo posted this news flash on ILW. What better place for it!

All those with approved I-140s but no current priority date should take out their  old files  and dust them off because a race to the Texas and Nebraska Courthouse will likely soon begin. Expect the starter's gun to sound on May 1.

EB-2 India is now choking dust back to May 8, 2006 and has not been showing signs of life lately as we all know. Although H-1B workers caught in this dead zone are able to get annual H1B extensions, or, better yet, 3 year extensions if  they have approved I-140s, the prospect of being able to move to the head of the line and apply for the green card has become a mirage, a shimmering illusion off in the distance, perhaps even a cruel joke on all those who wait for Godot.

There is nothing in the INA or 8 CFR that would prevent the USCIS from accepting the I-485 as a provisional submission following approval of an I-140 or I-130 in the absence of a current priority date as Cyrus Mehta and I have previously argued in our essay appropriately entitled " The Tyranny of Priority Dates". In effect, this is a logical extension of pre-adjudication for adjustment of status cases now being done.  Drawing the analogy from patent law which allows a provisional patent to be submitted and allows one year for perfection of same, the USCIS could, if wanted to, adopt the same approach to remedy the implosion of our immigration preference system.  Allow provisional submission of an adjustment following I-140 or I-130 approval, along with companion applications for advance parole and EAD, but do not allow final approval unless and until the priority date becomes current. Only then does the I-485 actually get filed. Right now, without Congress creating a single new visa or touching the quotas in any way, the priority date problem can be solved.  President Obama has the discretion if there is the vision and political will to use it. http://www.ilw.com/articles/2010,1220-mehta.shtm

Till then, take heart in small victories and the anticipated great leap foward of EB-2 India in May is certainly one of those. What better way to usher in the springtime!

 

No Visas Comrade!

http://www.nytimes.com/2011/03/12/world/europe/12russia.html?ref=politics

 

Interesting tid bit in today's newspaper of record that fans of the Visa Waiver program would be well to note. Vladimir Putin and Joe Biden join in supporting the idea of making Russia the latest member of the visa waive club. Whether this is a good idea or a bad one, Putin's interest in advancing it, and Biden's in promptly accepting it,  testify to Russia's return as a great power and, equally importantly, to its status as the world's leading oil producing nation. Whether it is getting Uncle Vladimir to agree to a No Fly zone in Libya or making up the short fall in oil production resulting from the disruptions incident to the Arab awakening,  America is clearly looking for way to be nice to the Russians. The Obama Administration is to be commended for realizing that US immigration is an invaluable tool to advance our foreign policy and economic  objectives. Coming to the USA is something that lots of folks want to do. Visas are too important to give away. Let's get something for them!