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Back to School, but Congress Still as Unproductive as Ever

I rec????????????????????????????????????????????????????????????????????????????????????????????????????????????????ently took my five year old to his first day of kindergarten. He was pretty excited (and so was I for him). Now that the summer is officially behind us, our summer vacations are but a distant memory, our children are now back to school, and we are back to work.

I’m sure most of you know that our children must be in school no less than 180 days during the school year. I’m sure most of you, like me, work no fewer than 5 days a week (and often more). Do you know how many days Congress has been in session this year? Do you know how many days Congress has actually worked this year?

I remember when I used to work on Capitol Hill. Summertime at the office was fairly quiet as a rule. My boss would spend most of this time back in New York, occasionally coming back to Washington for one thing or another. It was pretty rare. Times have not changed, but our legislators certainly have.

When I worked on the Hill, I was admittedly a geek. I would go sit in the Senate gallery after work and watch bills being debated. Let me set the scene. If you’ve ever watched Congressional proceedings on C-SPAN, you might think that all the Senators or Representatives are intently listening to their colleague debate the merits of a bill. Nothing could be further from the truth. Typically the only people in the Senate or House chambers are the person speaking about a particular bill, a staffer sitting behind that particular legislator, one or two stenographers, a few congressional pages, whoever happens to be sitting in the chair person’s seat, and a few administrative folks who actually work for the Senate or the House. I imagine that if I was working on Capitol Hill today, I might have to find something else to do after work given that no Congress in modern history has passed fewer laws (to date anyway) than this one.

I read an interesting piece on the NBC News website recently that this particular Congress has been the least productive in modern history. Just prior to its August recess, “just 142 public bills [had] become law in this current Congress (2013-2014) – down from the 906 the 80th “Do-Nothing” Congress passed in 1947-48, and the 333 that were enacted during the Newt Gingrich-led 104th Congress of 1995-96.”

After coming back from their summer recess, Congress took care of a few things, and according to a recent article from NBC News, they’re now gone until November! “The U.S. House has been in session for roll call votes a total of 92 days in 2014 – or 35% of the year up until now. (They had “pro forma” sessions – without any legislative business – for an additional 25 days.) … The Senate’s been working slightly less, holding roll call votes on just 87 days this year, with an additional 30 days of “pro forma’ sessions, when most lawmakers aren’t in Washington.”

What about you and I? According to NBC News, “[t]hose of us working a typical 5-day work week, with public holidays, would have been clocking in for a total of somewhere around 181 days during that time.”

Incumbency is still a big plus for a legislator running for re-election, although arguably it’s a little less meaningful these days than it was before. We have important national issues that need our Congress’s attention, not the least of which is … wait, wait for it … Comprehensive Immigration Reform (CIR). The Los Angeles Times reported recently that although House Speaker John Boehner noticeably left immigration out of a speech made recently about the economy, he acknowledged during questions afterward that he thought that “immigration reform would help our economy.” Duh. So why can’t he get his party’s support in the House to pass meaningful immigration reform?

Instead, we’re left to wonder whether, and if so, when, President Obama will take executive action in lieu of congressionally passed (and supported) CIR. We can debate whether executive action in lieu of legislation is a good idea. Doing nothing, however, is a bad idea.

Saratoga Race Course’s Back Stretch Workers: More Need for Immigration Reform

??????????????????????????????????????????????????????????????????????????????I am very fortunate to live in Saratoga Springs, New York. Last Friday was opening day at the Saratoga Race Course, and the weather cooperated. As a result, the crowds were out to watch racing at what I would argue is the country’s finest racing venue.

Friday morning, at about 5:30 AM, the line outside the track was all the way down Union Avenue, with thousands of patrons trying to be the first ones through the gates. About a month or so ago, I saw a similar line, but this line was filled with hundreds of people hoping to get summer jobs at the track. Those jobs are for what I will call “front of the house” positions, like gate attendants who take your money, people who sell programs, and food and beverage providers. Of course there are many more.

Those who weren’t in that line, however, were the back stretch workers who do all of the little things to make our track experience enjoyable. These are the trainers, exercise riders, jockeys, grooms, farriers, veterinarians, muckers, jockey agents, and all the other positions associated with horse racing.

While many of these workers are U.S. citizens, quite a lot of them are foreign nationals from Central America. Many of them enter the United States annually on an H-2B nonimmigrant visa. Quite frankly, these are positions that U.S. workers do not want to fill, and unfortunately for those in the horse racing industry, they are stuck trying to navigate the incredibly cumbersome (and expensive) process of obtaining an H-1B nonimmigrant visa for these workers on an annual basis… and in 2012, it got a lot worse.

The H-2B nonimmigrant worker classification allows foreign nationals who are citizens of certain named countries (with some limited exceptions) to accept temporary non-agricultural employment in the United States, after the employer has obtained a temporary labor certification from the U.S. Department of Labor by establishing that there were no willing, able, and qualified U.S. workers available during the period of recruitment.

The H-2B classification allows foreign nationals to provide “temporary or seasonal” services or labor, provided the employment does not displace U.S. workers “capable of performing such services or labor” and as long as the H-2B employment will not adversely affect the wages and working conditions of U.S. workers.

The temporary job may be professional, skilled, or unskilled, and there must be a seasonal, peakload, intermittent, or one-time need for the temporary services or labor. Therein lies part of the problem with using the H-2B nonimmigrant visa for backstretch workers. Employers need to clearly show that their need is short-term; that is, regardless of whether or not the position by itself can be explained as not being a permanent one, the employer has to have only a temporary need for the worker (i.e., a seasonal, peakload, intermittent, or one-time need for the temporary services or labor).

This was not a particularly big issue until 2012, when the government changed its interpretation of the law, effectively making a program that is vital to the horse racing industry, and to our enjoyment of it 40 days a year in Saratoga Springs, that much more difficult. The government used to say that workers met the standards of “seasonal” and “temporary” because the same owner or trainer needed them in different locations at distinct times of the year. In 2012, however, the government’s interpretation changed, and its position now is that these backstretch workers are essentially year-round employees. Now, owners and trainers must file separate visa applications for each worker at each meet. Perhaps the larger stables can afford this, but the smaller ones cannot.

This is yet another example where immigration reform could be useful. Unfortunately, things in Washington are not looking promising. When our government cannot even resolve the current humanitarian crisis affecting all of the children arriving at our borders, what chance do the owners, trainers and backstretch workers have?

Immigration Reform by Regulations: 97K Spouses Will Be Able To Work!

?????????????????????????????????????????????????????????????????????????????????????????????We are very fortunate to represent many employers who sponsor foreign nationals as H-1B nonimmigrant workers. One of the biggest challenges in working with H-1B nonimmigrant workers is explaining that their dependent spouse cannot also work in the United States. This is about to change for some.

As a reminder, an H-1B nonimmigrant worker is someone who works in a “specialty occupation,” which is an occupation that requires the theoretical or practical application of a body of highly specialized knowledge. Examples of H-1B specialty occupations are scientists, engineers, or computer programmers. H-1B nonimmigrant workers are admitted for an initial three year period, and their employers can extend that up to a maximum limit of six years.

Some H-1B nonimmigrant workers can actually extend their H-1B nonimmigrant status beyond the six years. For example, if their employer (or a prospective employer) filed a permanent residence application prior to the end of their fifth year of H-1B eligibility. Another example would be if the H-1B worker has a Labor Certification Application (commonly known as a PERM application) approved by the U.S. Department of Labor and an I-140, Immigrant Petition for Alien Worker, approved by U.S. Citizenship and Immigration Services.

Under current law, H-4 dependent spouses cannot apply for work authorization (unlike spouses in some other nonimmigrant classifications, e.g., L-1 dependent spouses). That is about to change.

On May 6, 2014, the Department of Homeland Security announced the publication of a propose rule designed to attract and retain highly skilled workers. The rule would allow spouses of certain H-1B nonimmigrant workers to request employment authorization if their H-1B spouse is currently pursuing permanent residence through employment-based sponsorship.

According to this proposed rule, H-4 dependent spouses can apply for work authorization if the H-1B spouse (a) is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker or (b) has been granted an extension of his or her authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B nonimmigrant workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit (in the situations described above).
Of course, this rule is a welcome change. And while this proposed rule may assist an estimated 97,000 H-4 dependent spouses who will now become eligible to apply for employment authorization, the rule does not assist H-4 dependent spouses whose H-1B spouses are not in the employment-based permanent residence process. By contrast, spouses of L-1 intracompany transferees are eligible to apply for work authorization, without the requirement of having to be in the permanent residence process.

This is not a perfect solution, but it’s a pretty big deal, nevertheless. I cannot tell you how often I have to break the news to an H-1B nonimmigrant worker that their trailing spouse can come to the United States but cannot work him or herself. There are organizations that work with trailing spouses (e.g., Tech Valley Connect works with trailing spouses to assist them with their professional development and assimilation into their new community), but a good portion of their missions are assisting trailing spouses with their professional development. Given the cap limitations associated with the H-1B program, what good does it do to work on professional development when employers are co constrained in terms of their ability to participate in the H-1B program?

From an immigration reform perspective, this, along with several other happenings recently, is interesting. Republicans have repeatedly said that President Obama cannot be trusted to enforce our laws. Here, we have an instance of legislating through regulatory change. This comes on the heals of President Obama directing DHS Secretary Jeh Johnson to conduct a review of immigration policy, including weighing an administrative move to curtail deportations. We shall see if there is any fall out of this in Congress. For now, a little progress.

Capital Region Approved as EB-5 “Regional Center”, Inviting Foreign Investors

????????????????????????????????????????????????????????????????????????OK, now for something completely new and pretty exciting (at least in my world). U.S. Citizenship and Immigration Services (“USCIS”) recently approved an application for an EB-5 Regional Center in the Capital Region which was facilitated by the Center for Economic Growth (“CEG”) and Prime Regional Center, LLC, an affiliate of Prime Companies. The Regional Center will be in an area of Upstate New York that includes eight counties surrounding and including the Capital Region, as well as specific counties in the Southern Tier, Mohawk Valley and Central New York.

So, what’s a Regional Center? Good question! Employment-based immigration is organized in a “preference” system, and one of the preferences is commonly called “EB-5”. The EB-5 employment preference is for immigrant investors (i.e., for employment-creation). In general, this category provides, initially, conditional permanent residence for foreign nationals who invest $1,000,000.00 in a new commercial enterprise that employs at least ten (10) full-time U.S. workers. The foreign national is made a conditional permanent resident for a two (2) year period, at which time he or she may make an application to remove the conditions and grant permanent residence. In order to receive unconditional permanent residence, the foreign national must show that he or she has “substantially met the capital investment requirement.”

A foreign national may also be able to make a smaller investment of $500,000.00 if the investment is in a targeted employment area that includes rural areas with populations of less than 20,000, or locations that have experienced unemployment at 150 percent of the national average.

Certain EB-5 visas also are set aside for investors in what are called Regional Centers, which are designated by USCIS based on public or private proposals for promoting economic growth. A Regional Center is defined as any economic entity, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.

The Regional Center program is for generally good for investors who have the means to invest the capital (i.e., not less than $500,000.00), but who do not wish to actively manage the business. Foreign national investors who choose to invest through a Regional Center must demonstrate that a “qualified investment” is being made in a new commercial enterprise located within an approved Regional Center, and show, using reasonable methodologies, that ten (10) or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the Regional Center. The typical investment will be $500,000.00 (plus additional fees and expenses associated with getting into the program, which can range from $20,000 to $70,000, plus or minus, plus professional fees), which may or may not be returned to the investor at the end of the proverbial day.

In a statement about the approval of the Capital Region’s EB-5 Regional Center, New York Governor Andrew Cuomo said, “As the State works to attract businesses and jobs from across the nation, we must also look overseas to lure global investors and entrepreneurs to start and grow their companies in New York. … With this approval, the Capital Region will be more attractive than ever before to businesses from overseas interested in expanding their investments here in the United States.”

We can only hope.

Basically, an EB-5 Regional Center allows wealthy foreign national investors to essentially “buy” a Green Card for themselves and their families (although not without a lot of hoops to jump through and significant financial risks too). The EB-5 program has been around for quite some time now, but not until the Regional Center portion of the EB-5 program gained traction with the immigration bar and the economic development community and their lenders did it start being used as it was intended; that is, to stimulate the U.S. economy through job creation and capital investment by immigrant investors by creating a new commercial enterprise or investing in a troubled business.

This is truly an exciting opportunity for the Capital Region!

 

 

 

 

Can’t We Just Deport Justin Bieber?

Justin Bieber?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????OK, so my apologies ahead of time to those of you who have children who like Justin Bieber or enjoy his music.  My children are still (mercifully) way too young to know who he is or the shenanigans he gets himself involved in.

What I did not know until his recent arrest in Miami is that the young Mr. Bieber is not a U.S. citizen; rather, I am informed that Mr. Bieber is in the United States as a nonimmigrant (perhaps in an O-1 nonimmigrant status, which status is reserved for foreign nationals of extraordinary ability).  In Mr. Bieber’s case, the standard for an O-1 nonimmigrant is actually a lower standard; that is, instead of proving to U.S. Citizenship and Immigration Services (“USCIS”) that he’s an alien of extraordinary ability, because he’s an “artist or entertainer” (so they say), the standard is showing that he’s an alien of “distinction.”  But I digress.

My understanding is that Mr. Bieber and R&B singer Khalil Sharieff were arrested on January 23 while drag-racing in Miami Beach.  According to news reports, Mr. Bieber was charged with driving under the influence (“DUI”), resisting arrest and using an expired driver’s license.  He has pleaded not guilty to all charges.

Some news outlets also reported that Mr. Bieber initially resisted arrest, cursed at police officers, and also told police that he had consumed alcohol, pot and prescription drugs (this all according to the police).  His next appearance in court is May 5.

Of course, the arrest (and related arrogance) of a young pop star consumed the media for days, if not weeks.  What was more interesting to me, however, is when some media outlets started reporting that people were calling for Mr. Bieber to be deported (actually, officially called “removed”) from the United States.

For example, a petition was lodged with the White House to have Mr. Bieber deported.  The petition was created the day of his arrest, and it urged the White House to revoke Mr. Bieber’s permission to be in the country.

We the people of the United States feel that we are being wrongly represented in the world of pop culture. We would like to see the dangerous, reckless, destructive, and drug abusing, Justin Bieber deported and his green card revoked. He is not only threatening the safety of our people but he is also a terrible influence on our nation’s youth. We the people would like to remove Justin Bieber from our society.

First off, as noted above, I don’t believe that Mr. Bieber has a “green card”.  But apart from that, over 100,000 people have signed on to the petition.  Even Sen. Mark Warner, a Democrat from Virginia, is on board. “As a dad with three daughters, is there someplace I can sign?” he asked with a laugh, when prodded by the hosts of Chesapeake-based FM99’s “Rumble in the Morning.”  The White House is obligated to respond to petitions that reach more than 100,000 names.  Still waiting on their response at this point.

OK, so this all got me thinking.  Could Justin Bieber actually be removed from the United States as a result of this incident?

Immigration consequences attach to foreign nationals who have been “convicted” of certain crimes, as well as sometimes even to foreign nationals who admit to committing certain crimes for which they were not convicted, or whom the government has “reason to believe” are involved in certain criminal activities.  Because Mr. Bieber (I presume) is lawfully in the United States, he would be subject to the grounds of deportability under section 237 of the Immigration and Nationality Act (INA), as amended, and possibly even the bars to a finding of good moral character at under section 101(f) of the INA.

I’ve had an opportunity to review Mr. Bieber’s Complaint / Arrest Affidavit (and I must admit, it makes for some very interesting reading if you don’t mind the “f” bomb).

Mr. Bieber was charged with violating section 316.193 of Florida Statutes, which generally relates to DUI offices.  This section of law includes several subsections, and it’s not clear from the Complaint / Arrest Affidavit under which subsection he was charged.  Nevertheless, as no one was hurt or (thankfully) killed in the incident, it seems reasonable to conclude that he was charged under a subsection that would not result in his being convicted of, e.g., an aggravated felony (for immigration purposes)[1] or a crime involving moral turpitude.[2]  The other two charges likely do not have negative immigration consequences as well.  So, he appears safe, as far as these charges go anyway.

However, if the young Mr. Bieber did admit to police that he abused drugs, this could be a big problem for him.  The INA that provides that “[a]ny alien who is, or at any time after admission has been, a drug abuser or addict is deportable.”

Of course, I don’t wish any ill-will on Mr. Bieber, but if all this was the case, my children might not ever ask me whether they can see him at the Times Union Center or SPAC as they’re growing up!


[1] The term “aggravated felony” is defined at section 101(a)(43) of the INA, and now includes some 50 different offenses. While some of these offenses, such as murder, rape, and kidnapping, would sound like aggravated felonies to the layperson, a good number of the offenses in the definition do not readily appear heinous enough to be termed “aggravated felonies,” and based upon case law, some DUI violations can be considered aggravated felonies.

[2]  The Board of Immigration Appeals (“BIA”) defines a Crime Involving Moral Turpitude as “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”

Immigration Irony: John Boehner vs. President Obama, the “Deporter-In-Chief”

imm_2Many who know me will tell you that I have a propensity to have stream of consciousness moments.  I think to myself, “Define Irony”, and then I try to think about a (classic) movie moment where this statement might have been made.  Has anyone ever seen the movie “Con Air”?  Hardly a classic, I know.  Nevertheless, does anyone remember when all the convicts were dancing on the plane to Lynyrd Skynyrd’s “Sweet Home Alabama”?  Steve Buscemi, a fabulous actor, says “Define Irony: A bunch of idiots dancing on a plane to a song made famous by a band that died in a plane crash.”

Merriam-Webster defines irony as:

(1) a pretense of ignorance and of willingness to learn from another assumed in order to make the other’s false conceptions conspicuous by adroit questioning —called also Socratic irony;

(2) (a) the use of words to express something other than and especially the opposite of the literal meaning, (b) a usually humorous or sardonic literary style or form characterized by irony (c) an ironic expression or utterance;

(3) (a)  incongruity between the actual result of a sequence of events and the normal or expected result; an event or result marked by such incongruity, (b) incongruity between a situation developed in a drama and the accompanying words or actions that is understood by the audience but not by the characters in the play —called also dramatic irony, tragic irony.

Where am I going with this?  Good question.  Right after the President’s State of the Union Address, House Republicans finally released their “Standards for Immigration Reform.”  It was a one page document that primarily echoed what the Republican leadership had been saying for months: border security and interior enforcement is their top priority, and they offered a commitment to some sort of legalization program for those in the country without legal status.  The document also highlighted the importance of implementing an entry-exit visa tracking system and employment verification, above and beyond their interior enforcement goals.

Finally, right?  I mean, it’s not a perfect, and indeed it’s pretty vague on some level, which means it offers House Republicans cover within their own party and when they’re negotiating with their Democratic colleagues.  But it was progress nevertheless.

And then, literally in the wake of this statement, barely one week later, House Speaker John Boehner seemed to stamp out (once again) any prospect for immigration reform.  Speaking of the Obama Administration, he said “There’s widespread doubt about whether this administration can be trusted to enforce our laws.  And it’s going to be difficult to move any immigration legislation until that changes.”  Speaker Boehner went on to say, “We are going to continue to discuss this issue with our members, but I think the President’s going to have to demonstrate to the American people and to my colleagues that he can be trusted to enforce the law as it is written.”

Really?  Are you kidding me?  So the Republicans are no doubt concerned about some of the commentary leading up to the State of the Union Address, where there was some discussion that if the President could not get his way legislatively in certain areas, he would simply resort to Executive Orders.  But to say that the President can’t be trusted to enforce our laws?

Let’s consider deportations during the Obama Administration.  Ever read “The Economist”?  I love that magazine.  And I think it’s fair to say that it’s pretty conservative too.  Well, The Economist recently labeled the President as “Barack Obama, deporter-in-chief.”  “America is expelling illegal immigrants at nine times the rate of 20 years ago; nearly [two million] so far under Barack Obama, easily outpacing any previous president.  Border patrol agents no longer just patrol the border; they scour the country for illegals to eject. The deportation machine costs more than all other areas of federal criminal law-enforcement combined.  It tears families apart and impoverishes America.”

A week later, The Economist followed up their earlier story with another article entitled “America’s deportation machine, The great expulsion.”  Says the article, “ It is hard to find many areas where the federal government is so effective in implementing laws passed by Congress.”  The article highlights the growing pressure that President Obama’s deportation machine is putting on the courts, and also even speaks to a detention bed quota.  But the article also singles out something known as “Secure Communities” as the real culprit behind the dramatic increase in deportations.  “The turning of police officers into immigration officials has brought border enforcement into areas
of the country far from the deserts of the south-west. Secure Communities, the name given to the programme that links police work to the immigration database, began life in a single jurisdiction in Texas in 2008 at the end of George W. Bush’s presidency.  By May 2013 it was operating everywhere.”

So, not only do we have those federal agencies and officials who we expect to be enforcing our immigration laws doing a pretty good job, but now we also have state and local officials, who have essentially been deputized to do the same.

Can’t be trusted?  Really?  Define irony.  Or, maybe we should be saying define disingenuousness.  I’m trying to think of a movie quote.  “Anyone?  Anyone?”

Team USA Sochi 2014 and the Influence of Immigration

olympic ice skatingI always enjoy watching the Olympics, both summer and winter.  Sure, they’re a bit over the top, not to mention exorbitantly expensive to host these days.  And the Olympics have seen their share of tragedy too, both human and political.  But did you know that there’s a long history of first and second generation immigrant athletes representing the United States on Team USA?  (Did you also know that some former Olympic champions were previously in the United States unlawfully?)  The U.S. Skating Team is especially influenced by immigrant athletes and coaches.  For example:

  • Simon Shnapir, who came to the United States from Russia, will be representing the United States in Sochi in pairs skating with his partner, Marissa Castelli.
  • Marina Zueva, previously a Russian ice dancer, retired in the late 1970’s to become a choreographer.  She moved to the United States in 1991 and has worked with many elite skaters including current members of Team USA.
  • Oleg Epstein, Marina Zueva’s former partner, is also an immigrant from Russia.  He has choreographed Gracie Gold and ice dancers Davis and White and is currently a coach and choreographer for siblings Maia and Alex Shibutani.
  • Although the “Shib Sibs,” as the Shibutanis are commonly known, are first generation Americans, their mother is an immigrant from Japan who met their father when they were both studying music at Harvard.
  • Rafael Arutyunyan, born in Soviet Georgia, competed as a skater for the USSR early in his career.  After immigrating to the United States, he has coached many successful U.S. skaters including Michelle Kwan.  He is currently one of Ashley Wagner’s coaches.
  • Igor Shpilband, a former ice dancer for the USSR, defected to the United States in 1964.  He is both the coach and choreographer for ice dancers Madison Chock and Evan Bates.
  • Finally, Yakuto Sato, a former Japanese figure skater who placed seventh at the 1992 Winter Olympics and fifth at the 1994 Winter Olympics, is, interestingly enough (considering where the Olympics are being held) the only foreign-born Team USA skating coach without a Russian background.  She currently works as a coach and choreographer at the Detroit Skating Club, where she coaches Olympic hopeful Jeremy Abbott.

Considering the Olympics are being held in Sochi, Russia, I suppose it’s a bit ironic that all but one of the individuals noted above is of Russian descent.  Nevertheless, it does not mean we support our Team USA any less.  We wish them all great success.

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