U.S. Immigration: Then and Now

The United States has had a rich history of accepting immigrants from a wide array of backgrounds and for a variety of reasons ranging from humanitarian and religious to political and economic. Commonly regarded as a “melting pot,” the U.S. has been a nation of immigrants since its founding; pilgrims fled the tyrannies of the old world in search of what we now call the “American Dream”.  Today, the U.S. finds itself at a pivotal crossroads in its immigration policy. Demographic shifts resulting from immigration during the past half-century (as a result of the Immigration and Nationality Act of 1965) are proving to be an irreversible trend, rather than a statistical anomaly. Can national immigration policies be structured in an adequate way to ensure social cohesion, economic prosperity and national security, without compromising civil rights or undermining national identity?

 The statistics on immigration help provide a more concrete description of the issue. Today, the United States is home to 40 million immigrants, which constitute 13% of the total population. While this is a large figure nominally, it is proportionally less than the previous peak of 15% during the industrial boom of 1890-1920, when Europeans were entering the country in large numbers, many of them through the iconic Ellis Island. However, the biggest issue in today’s immigration policy is the presence of roughly 11 million undocumented persons who face discrimination and abuse economically, socially and politically due to lack of legal status. The debate around this issue, specifically whether a pathway (semantics may differ) to citizenship will exist to legalize undocumented aliens, will be the deciding factor in any meaningful immigration reform.  

The last major attempt at reform came in 1986, under the Reagan administration through the Immigration Reform and Control Act (IRCA), which aimed to curtail illegal immigration by imposing stricter employer accountability standards for hiring undocumented workers. At the time, there were about 3 million unauthorized individuals in the U.S. who received amnesty through a legalization process. Despite best intentions, IRCA was poorly enforced and underfunded, resulting in the creation of a large document fraud industry both in the U.S. and Mexico and ultimately attributed to the increase of undocumented immigrants currently residing in the U.S. IRCA was seen as “amnesty” which provided a solution to undocumented problem, but did not clearly define or enforce the regulations to minimize further flows of unauthorized individuals.

From this perspective, we can better understand the recently proposed immigration reform bill S.744. (Border Security, Economic Opportunity, and Immigration Modernization Act), which aims to improve where previous reform attempts have failed.  As the title suggests, the main concern revolves around national security, economic growth and improved methods of immigration compliance both at the borders and in workplaces. Such a bill provides a necessary compromise between hard-line nationalists who see border security as the primary method of regulating immigration flows and free-market liberals who encourage open labor markets to fill both high-skilled and low-skilled labor needs. In the next few months, the country will find out if compromises and proper appropriations can be made to create an enforceable bill that promotes a secure, economically viable and sustainable immigration policy.

If this issue is important to you, I urge you to contact your local representative.

 

 ImageNiko Druzhinin is a legal assistant at Lipman & Wolf, LLP and is currently pursuing a master’s degree in Global Policy Studies at the Lyndon Baines Johnson School of Public Affairs in the University of Texas at Austin. Niko received his Bachelor’s degree from UC Santa Barbara in Global and International Studies with an emphasis in the Latin America region. Niko is fluent in Spanish and Russian. If you have questions or comments about the article, please contact us.

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Senate Passes Landmark Immigration Reform Bill

After two months of heated debate and much speculation in the media, S.744 – the bipartisan immigration reform has passed through the Senate by a margin of 68-32 (with 14 of 46 Republicans voting in favor). Along with the controversial provision of a “pathway to citizenship” for the 11 million undocumented residents, a significant increase to border security is prominently featured in the bill. Over the next ten years, $46 billion (this figure was $3 billion in the original bill) will be invested to: hire 20,000 new federal law enforcement agents, increase high-tech surveillance (including drones and infrared cameras) and finish construction of a 700-mile long fence along the border the Mexico-US border.

Despite the valiant bi-partisan collaboration in the Senate, the real challenge remains to be met in the House of Representatives, where Republicans are unlikely to support any bill unless the majority of their party is in full agreement.  John Boehner, speaker of the House, even went as far as to say that the Senate bill was “dead on arrival” and the House would have to come up with a radically different bill to address their major areas of concern – namely the issue of border security and what Republicans perceive as amnesty in the proposed pathway to citizenship.

Despite the uncompromising, hard-line attitudes from many representatives of gerrymandered, overwhelmingly white districts,  the Republicans as a party, have a lot at stake in their treatment of the immigration issue. With the election loss in 2012 still fresh in their mind – where Republicans only got 29% of Latino vote, the party will have to make tough choices between local and national politics. Every month 50,000 Hispanics reach voting age and will likely continue to vote Democrat, meaning Republicans could become politically irrelevant if they cannot come to a compromise on immigration.

If you follow our Facebook or Twitter, then you know about the immense economic and social benefits of immigration reform. However, we know there is no such thing as “no-brainer” legislation as evidenced by the failure to pass universal background for gun purchases. We will continue to closely monitor the immigration debate unfold and hope for the best outcome for the country. In the meantime, one should not forget about programs like DACA, VAWAU-Visa and the new stateside waiver program that continue to provide relief to immigrants during this time of uncertainty. 

We welcome your inquiries and feedback and look forward to keeping you up to date on all of the latest happenings in the immigration world!

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Highlights of the Immigration Reform Bill Released Today

S. 744 – the bipartisan bill, sponsored by Senator Charles Schumer was released to the public today. The 844 page document outlines a path to citizenship and addresses many of the pressing issues that create backlogs and inconsistencies within our immigration system.

As expected, the proposed legislation adds significant funding (~$3 billion) and resources to secure the southern border of the US.  About half of the funds will be allocated to build a two-layered border fence, while the rest will pay for increased surveillance and man-power in the border region. Additionally, an electronic exit system will be instated at all sea and airports throughout the country for consistent record keeping. 

To crack down on abuses in the employment-based categories, the bill calls for the implementation of an E-Verify system to check employment eligibility of all new hires. Employers heavily dependent (more than 50%) on foreign workers, will be punished with higher visa fees and limits on future foreign hires. At the same time, the H-1B cap for high-tech workers will be increased from 65,000/year to 110,000/year to meet growing demand in the industry. Finally, the spouses of H-1B workers will also be allowed a work permit, if their country of origin grants reciprocal benefits for US workers. New merit-based visa categories will be introduced, along with “new start-up visas” to promote the increase of immigrant entrepreneurs. 

Long awaited relief may finally arrive in the provisions for the 11 million undocumented individuals who currently reside in the US. If they are found to be eligible (not presenting a threat to national security and having paid a fee to the government), these individuals can apply for Registered Provisional Immigrant Status (RPI). After successfully maintaining said status for 10 years (5 for DREAMERS), a provisional immigrant can file for Lawful Permanent Resident Status i.e. Green Card – with eligibility for citizenship another five years down the line. This entire process will require that the immigrants maintain good moral character (stay out of trouble – no felonies, or more than three misdemeanors), pay taxes and fees to adjust their status. 

Lastly a new visa class will be introduced – W visa – for low skilled workers, which will replace the H-2A category. This status will be granted for up to three years (both at will and contract positions) and any potential employers must first register with the government and prove that their jobs necessitate the use of immigrant labor. 

This seems like a solid list of amendments to fix a malfunctioning immigration system, however aspects of concern still remain. For example, there could be long delays in processing and backlogs, unless significant resources are dedicated to dealing with the huge influx of petitions which will be filed in the next 5-15 years.

At this point, the bill will take 3 full days just to read start to finish – but it is important to nail down all of the minutest details as it could mean creating one of the world’s most efficient, economical and fair immigration policies. Challenges still remain, especially considering heavy opposition in the house and difficult compromises will have to be made, but it looks like we are on the right path. 

Read the entire bill here: http://cnsnews.com/sites/default/files/documents/Senate%20Immigration%20Bill.pdf

 

 

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Stateside Waiver Reduces the Burden of Separation for Immigrant Families

New regulation officially entitled “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives” has finally been published and will take effect on March 5th, 2013. President Obama’s promise of immigration reform is finally beginning to take shape and the preservation of family unity seems to be a major point of emphasis in the newest legislation.  The painful separation of families via the consular visa process will be significantly reduced as a result of the new stateside waiver processing.

This legislation applies specifically to thousands of immigrants currently unable to legally adjust their status within the United States, as a result of accruing unlawful presence, by way of illegal entry or a visa overstay of 180 or more days. Previously, these individuals had to seek an official pardon known as an “inadmissibility waiver” from the American consulate in their native country, often an uncertain process for an immigrant on shaky legal footing, leaving their family in the US posed a significant risk of being unable to return, resulting from an automatic ten year ban for those lacking a legal status.

 During the waiver application process an individual must prove that his/her family would suffer extreme hardship as a result of deportation. If the waiver is approved, an individual still must return to their native consulate, to file for a visa, but the risks of being stranded without legal re-entry are significantly minimized with the approval of a waiver beforehand.  Even in successful cases where individuals were granted legal re-entry, many still found themselves stranded in a state of limbo for several months, while consulates finalized their visa applications. Luckily, under the new regulation, waivers of inadmissibility can now be filed stateside, alleviating the stress placed on families during the process. The new legislation aims to standardize and speed up waiver processing, ending the wide variety of consular interpretations of the term “extreme hardship.”  US officials now estimate that waiting times for a visa petition could be reduced to “a matter of weeks.”

Still the difficult and nebulous task of demonstrating extreme hardship incurred by relatives remains central to the process. Additionally, for an individual to qualify for the new stateside waiver rule he/she must:

  • Be present in the United States at the time of filing the application for a provisional unlawful presence waiver
  • Be over the age of 17
  • Must not be inadmissible on the grounds of posing a criminal/national security threat
  • Is the spouse, parent or minor child of a US citizen
  • Is the beneficiary of an approved immediate relative petition
  • Has a case pending with the Department of State based on the approved immediate relative petition and has paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt;
  • Will depart from the United States to obtain the immediate relative immigrant visa

At this point, it is unclear how these waivers will be handled by USCIS; it is unlikely that an unsuccessful waiver application will trigger immediate deportation, unless the individual has outstanding offenses in a criminal record or poses a threat to national security. The new stateside waiver law offers individuals more time stateside to ease the burden of travel and an opportunity to gain legal status, if their removal will indeed cause extreme hardship for their immediate relatives. So far the new waiver rule only applies to immediate family members, but could be potentially expanded to include other relatives in the near future.

The application fee for the waiver is $585; individuals may file more than one application through different relative beneficiaries, if their first petition is rejected. Although USCIS will not begin processing applications until March, individuals should take this time to assemble proper documentation and assure that they appear as a beneficiary on an approved immediate relative petition, if they have not yet done so. If you need assistance or have questions about this process, please consult the experienced immigration attorneys at Visawolf.

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Future EB-5 Cut Off Date for China

The US government recently announced that more than 7600 people received visas to the USA under the Employment Based Fifth Preference category (“EB-5”), in the period from October 1, 2011 to September 30, 2012. There is an annual limit of 10,000 EB-5 visas.  More than 70% of all EB-5 visas are issued to people born in Mainland China.

With continued high demand for EB-5 visas, the US Department of State is predicting that the annual limit of 10,000 EB-5 visas will be reached sometime between April 1, 2013 and September 30, 2013. See http://www.travel.state.gov/visa/bulletin/bulletin_5803.html If the limit is reached, the US Department of State will establish a “Cut Off Date” for the EB-5 program for people born in Mainland China. This means that the US Department of State will issue visas first for those investors with the oldest cases, according to each investor’s “Priority Date.” An investor obtains a “Priority Date” once his or her Form I-526 Immigrant Visa Petition has been approved. The “Priority Date” is the date the investor’s Form I-526 Immigrant Visa Petition was filed. Investors born in Mainland China with older Priority Dates will be issued visas to immigrate to the USA faster than Investors born in Mainland China with more recent Priority Dates.

The EB-5 process includes three major steps:

Step 1: The EB-5 petition (filed on Form I-526)

Step 2: The EB-5 visa (filed on Form DS-230)

Step 3: The EB-5 green card renewal (filed on Form I-829)

If the US Department of State establishes a “Cut Off Date” for the EB-5 program for investors born in Mainland China, there will be no impact of the ability of such people to continue to file and receive approval for Step 1: I-526 petitions and Step 3: I-829 petitions. There is no limit on the number of EB-5 petitions (Step 1: Form I-526) and EB-5 green card renewals (Step 3: Form I-829) that may be filed or approved each year. Rather, the 10,000 annual limit is imposed on the number of Step 2: EB-5 visas that are issued each year.

We expect that the processing time for EB-5 petitions (Step 1: Form I-526) and EB-5 green card renewals (Step 3: Form I-829) will not change nor will any new requirements be imposed. We do expect that the processing time for EB-5 visas (Step 2: Form DS-230) may become longer, but no new requirements will be imposed. 

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Expanded US Visa Interview Waiver Program in India

As of November 19, 2012 American Consulates throughout India have expanded the Interview Waiver Program to include H-1B and L-1 renewals. Under the Interview Waiver Program for India, certain applicants for visa renewal may submit their applications for consideration for streamlined processing, including waiver of a personal interview.

 

Here are the visa categories eligible for the Interview Waiver Program for India

  • Temporary workers on H1-B visas
    • Temporary workers on Individual L1-A or Individual L1-B visas
    • Business/Tourism (B1 and/or B2);
    • Dependent (J2, H4, L2)
    • Students returning to attend the same school and same program
    • Transit (C) and/or Crew Member (D) – including C1/D.
    • Children applying before their 14th birthday traveling on any visa class
    • Applicants applying on or after their 80th birthday traveling on any visa class

 

Some additional notes on the Interview Waiver Program for India

 

  • The applicant must be a citizen or legal resident of India
  • The visa applicant must be renewing a visa that is still valid or that expired within the past 48 months
  • The renewal application must be for the same visa classification as the previous visa.
  • The previous visa must not carry the annotation “clearance received”
  • Even if the applicant meets all the above criteria, a US consular officer may still require an interview for any visa applicant in any category.
  • The applicant may still need to make an appointment for biometrics (fingerprint and photograph) collection
  • All applicants must submit all required fees and the DS-160 application form

 

For more details about procedures for submitting a renewal application, please contact our office or see

http://www.ustraveldocs.com/in/in-niv-visarenew.asp

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H-1B Visas: 3 Facts Employers MUST Know

As October dawns upon us, many employers will be faced with the complexities of the H-1B visa process. In order to alleviate the anxiety and stress associated with this procedure, Visawolf brings you our “H-1B Visas: 3 Facts Employers MUST Know”.

1. What is the earliest an H-1B worker can apply for the new H-1B visa at the US consulate?

The US State Department Foreign Affairs Manual, states that (9 FAM 41.53 N8.4(b)) consular officers are authorized to accept H-B visa petitions and issue visas to qualified applicants up to 90 days in advance of the start date indicated on the approval notice. The officer must inform the visa applicant verbally and in writing that he or she may only use the visa to apply for entry to the United States no more than ten days prior to the H-1B status period indicated on the approval notice. Such visas will be annotated, “Not valid until (ten days prior to the petition validity date.)”

2. Is there a deadline by which an H-1B worker must apply for the visa? Is it ever too late?

No, the H-1B worker can apply for the visa at any time during the validity period of the H-1B approval notice.

However, it will be advantageous to apply for the visa as early as possible. This is because the documentation provided with the H-1B petition will still be fresh at the time the visa applicant goes to the consulate.

If the information in the H-1B petition is not fresh at the time the H-1B candidate goes to the consulate, there is a higher chance that the consulate will ask questions about the job offer and whether the same opportunity exists today as it did when the H-1B petition was filed. More documentation may be required and a lot more time in the visa application process could result.

3. At what point after the H-1B worker enters the United States is the employer required to add him or her to the payroll?

Pursuant to US Department of Labor regulations at 20 CFR § 655.731(c)(6), if the H-1B worker is brought from outside of the U.S., he must be put on the payroll at the time he presents himself for employment or 30 days after arrival in the U.S., whichever comes earlier.

If the foreign national is in the U.S. and a change of status has been applied for, the employment relationship may not commence until the effective date of the change of status. From that date, the employment must commence on the date that the employee presents herself as ready for employment or 60 days after the effective date of the change of status to H-1B, whichever comes earlier.

If the candidate is already in H-1B status with another employer, employment with Sparta can commence as soon as the H-1B petition is filed. Sparta also has the option to delay commencement of employment of the H-1B until the effective date of the H-1B approval notice, or up to 60 days later.

We hope this segment has cleared up any confusion regarding the H-1B visa process. For further inquiries, please respond to this post or contact us directly via email: social@visawolf.com

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