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Did Moncrieffe Kill Two Birds With One Stone?

24 Apr

Official Portrait of Justice Sonia Sotomayor

The Supreme Court’s decision in Moncrieffe v. Holder represents a big win for those—like us—who believe lawfully present immigrants should not be deported for relatively minor drug offenses. The question now is: how big?

In a 7-2 decision written by Justice Sotomayor, the Court held that a marijuana distribution conviction should not be considered an “aggravated felony” under the immigration laws unless court records demonstrate that the offense involved payment or more than a small amount of marijuana. Yet in so doing, the court appears to suggest that immigrants should always receive the benefit of the doubt if court records fail to indicate whether they were convicted of an “aggravated felony,” even when they are applying for relief from removal. If so, the decision would effectively resolve a question that was distinct from, but related to, the one before the Justices.

Some background: For immigrants in removal proceedings, having an “aggravated felony” conviction carries two distinct consequences. First, it makes them removable from the United States (i.e. subject to deportation). Second, it makes them ineligible for most discretionary forms of relief—including asylum and cancellation—that would allow them to lawfully remain in the country notwithstanding the conviction. Under the Immigration and Nationality Act, the government carries the burden of demonstrating that an immigrant is removable, while immigrants carry the burden of demonstrating they are eligible for relief. Thus, in holding that Mr. Moncrieffe was not convicted of an aggravated felony for purposes of removability, the Supreme Court could have left open whether he would have to affirmatively show he was not convicted of such a crime to qualify for relief from removal.

Fortunately, Justice Sotomayor’s decision appears to kill two birds with one stone, suggesting that a conviction cannot be considered an aggravated felony for purposes of removability or relief unless clearly established by the record of conviction. How do we know? For one thing, the opinion repeatedly implies that the inquiry into whether an immigrant was convicted of an “aggravated felony” should be one in the same for purposes of removability and relief—even saying in footnote 4 that its analysis is “the same in both contexts.” For another, the majority specifically says (on page 19) that an immigrant like Mr. Moncrieffe “may seek relief from removal such as asylum or cancellation of removal”—and, as importantly, that Immigration Judges could deny relief as a matter of discretion if additional facts surfaced to suggest the immigrant was a legitimate drug trafficker.

If this interpretation of Moncrieffe is correct, it would mean that numerous federal circuit courts now wrongly require immigrants to affirmatively demonstrate they have not been convicted of an aggravated felony to obtain relief from removal. By making immigrants prove a negative, these decisions (such as Young v. Holder in the Ninth Circuit, and Salem v. Holder in the Fourth Circuit) have the same practical effect as the position the Supreme Court has now rejected: denying relief from removal to otherwise qualified immigrants simply because their conviction records do not specify the surrounding circumstances of their offense. We hope government attorneys will read Moncrieffe the same way. You can be sure, however, that Benach Ragland will raise this argument and continue to litigate the issue until the Supreme Court makes explicit what Moncrieffe makes implicit.

How Can I Prepare for Immigration Reform?

12 Mar

No comprehensive immigration reform bill has been introduced in Congress, much less signed into law. But it’s never too early to start to prepare. If and when reform is enacted, millions of undocumented immigrants will finally be able to come out of the shadows. And just as the early bird gets the worm, those who apply first will (generally) be approved first. While the enactment of legislation is months away at a minimum, there are numerous steps noncitizens can now take to ensure they qualify for a path to legalization.

  • Don’t get scammed

The first thing undocumented immigrants should do while awaiting comprehensive immigration reform is actually something they should not do: get scammed. The road to passage of a final bill will be filled with notarios, immigration “consultants,” and other unethical (and unsavory) characters who promise legal status in exchange for inordinate sums of money. Don’t fall for it. Unless an individual is a licensed attorney, he or she cannot provide legal representation. (Make sure to avoid any practitioners currently disciplined by the immigration courts, however.) And until President Obama signs a bill that has passed both Houses of Congress, immigration reform will not be a sure thing.

  • Settle up with Uncle Sam

When politicians talk about a possible pathway to citizenship, the first thing they invariably mention is the requirement that undocumented immigrants pay any “back taxes.” While reinforcing the false notion that undocumented immigrants pay no taxes at all, such a requirement will almost certainly be included in any eventual legislation. Contrary to popular belief, a Social Security number is not required to pay taxes. Individuals can instead use an “Individual Taxpayer Identification Number,” or ITIN, which can be obtained from the Internal Revenue Service. (More information about ITINs is available here.) As always, the deadline to file taxes for last year is April 15.

  • Know your criminal history

If Congress creates a pathway to citizenship, another virtual certainty is that it will exclude persons with serious or extensive criminal records. Under the leaked version of a bill being readied by the Obama administration, for example, undocumented immigrants could not legalize if they have been convicted of (a) any offense for which they served more than one year in prison, (b) three separate offenses for which they served more than 90 total days, (c) any crime rendering them inadmissible under the immigration laws, or (d) any “aggravated felony” after entering the United States.

Undocumented immigrants who have spent even one day in jail thus will likely want to consult an attorney before applying for legalization. And the first thing an attorney will want to see are records relating to prior arrests or convictions. Obtaining such records now will allow potential beneficiaries to apply sooner rather than later if and when immigration reform is signed into law. A good way to start is requesting an official criminal background check from the FBI, which costs $18.

  • Get some ID

Undocumented immigrants would also be wise to obtain some form of government identification before applying for legalization. For example, noncitizens who lack a passport can generally obtain one from their embassy or consulate of their country of nationality.  Despite being undocumented, noncitizens with employment authorization can generally obtain a valid Social Security card and/or driver’s license. If no other options exist, foreign nationals from countries that issue “matricula” cards might be able to use them in connection with their applications.

  • Establish prior presence

An as-yet-unknown requirement is the date by which undocumented immigrants must have entered the country to be eligible for a path to citizenship. For example, the legalization proposal enacted in 1986 only applied to non-farm workers who entered the country before 1982. And the bills introduced in 2006 and 2007 also contained cut-off dates stretching a number of years back.

Fortunately, it appears that any cut-off requirement will be more lenient this time around. For example, under the leaked version of the bill being readied by the Obama administration, noncitizens would have to be in the country on the date of introduction in order to qualify. And the framework released by the “Gang of 8” in the Senate contains no mention of a cut-off date, suggesting that it too would be open to recent arrivals.

Nonetheless, potential beneficiaries would still be wise to start collecting evidence now that establishes their prior presence in the country—school records, medical records, bank statements, utility bills, pay stubs, tax returns, etc.—to satisfy whatever cutoff date the final bill includes.

  • Talk to a trusted attorney

Not every undocumented immigrant will need an attorney to take advantage of a pathway to citizenship. But many will. And it can be hard to know whether one needs to hire an attorney unless one talks to an attorney. In fact, as occurred in many consultations involving prospective DACA applicants, one might discover that they were already eligible for legal status through another route.

If you want to further discuss how you might benefit from immigration reform, visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association.

Stateside Waivers Have Arrived

4 Mar

Sixty agonizingly long days after final regulations were published, U.S. Citizenship and Immigration Services (USCIS) this morning released Form I-601A, Application for Provisional Unlawful Presence Waiver, and its accompanying instructions. In previous posts, we discussed many aspects of the stateside waiver process (see here, here, and here). In this post, we’ll discuss some basic filing-related details.

How much will it cost?

The filing fee for Form I-601A is $585 plus $85 for biometrics for applicants under age 79. No waivers are available for either fee. The check or money order should be made payable to “U.S. Department of Homeland Security” (not DHS).

Where should Form I-601A be filed?

According to USCIS’ website, Form I-601A should be filed with the Chicago Lockbox. Before filing their forms, applicants should double-check the website or call the National Customer Service Center at (800) 375-5283.

What must be filed with Form I-601A?

All applicants must submit a copy of the approval notice (Form I-797) for the immigrant visa petition showing they are the immediate relative of a U.S. citizen, as well as a copy of the fee receipt from the State Department for the immigrant visa processing fee. All applicants would also be wise to submit evidence in support of their claims of extreme hardship that would be suffered by a qualifying relative. (Examples of such documentation are listed in the instructions.)

What other materials must be filed with Form I-601A may vary based on applicants’ prior criminal and immigration histories. For example, applicants who are currently in removal proceedings must provide a copy of the Notice to Appear (NTA) along with an order demonstrating that their case has been administratively closed. Applicants who have ever been arrested or detained (for any reason other than a traffic violation) must provide information about the incident. Applicants who have been charged with a crime must provide certified court dispositions showing the outcome of proceedings, even if the relevant records are sealed or have been expunged. And applicants who were arrested but not charged must provide documents from the arresting or prosecuting authority demonstrating that charges were not filed.

Does the granting of a provisional waiver make me “legal”?

No. The approval of a Form I-601A will not affect an individual’s immigration status in any way. It does not provide employment authorization or any other interim benefits, and does not stop the accrual of unlawful presence. Nor does it eliminate the requirement that applicants depart the country to obtain an immigration visa at a U.S. embassy or consulate, nor guarantee that an immigrant visa will actually be issued.

What if my request for a provisional waiver is denied?

Applicants whose requests for a provisional waiver are denied have two options. First, they can re-file Form I-601A with the required filing and biometric fees. Second, they can seek a regular waiver of unlawful presence using the standard Form I-601, Application for Waiver of Grounds of Inadmissibility, after attending an immigrant visa interview at a U.S. embassy or consulate.

Do I need an attorney to file Form I-601A?

We think so. Visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association to find qualified attorneys to assist you.

The I-601A is Almost Here

1 Mar

jump-for-joy4

We are now days away from the launch of the provisional waiver process, a White House initiative that will permit immediate relatives of U.S. citizens to stay in the country while immigration officials process their waivers for the unlawful presence bars. U.S. Citizenship and Immigration Services (USCIS) will start accepting applications on March 4, and will release Form I-601A and its accompanying instructions either today or on Monday. We’ve talked about the provisional waiver process before (here and here), but thought we should again answer some frequently asked questions.

What’s the point of provisional waivers?

Existing immigration laws place many undocumented immigrants in a Catch-22. Unlike visa overstayers, those who entered without inspection must return home to obtain an immigrant visa. As soon as they depart the country, however, those who were unlawfully present for more than six months become inadmissible for either three or ten years. While such noncitizens can seek a waiver of inadmissibility, they are currently required to apply from abroad—resulting in separation from their families for many months if the waivers are approved, and for up to a decade if they are denied. As the name suggests, provisional waivers will allow such noncitizens to seek waiver before leaving the United States, reducing the period of separation to potentially just a few weeks.

Why are provisional waivers only available to immediate relatives of U.S. citizens?

Despite vociferous requests from immigrant advocates, USCIS limited eligibility for provisional waivers to those who are immediate relatives (i.e. parents, spouses, and children) of U.S. citizens. In the notice posted in the Federal Register, the agency gave two reasons. First, unlike immigrant visas in the family- and employment-based preference categories, no limits exist on the number that can be awarded to immediate relatives of U.S. citizens. And second, opening the process only to U.S. citizens could provide an incentive for eligible LPRs to naturalize.

Should I apply for a provisional waiver or wait for the possible passage of comprehensive immigration reform?

Funny you should ask, since we devoted a previous post to this very topic. In short, whereas comprehensive immigration reform is a possibility, the provisional waiver process is a reality. Qualified applicants could become permanent residents in a matter of months not years, as could be the case with comprehensive immigration reform. Moreover, while the cost of provisional waiver process is not cheap ($585 for Form I-601A, $85 for biometrics, plus costs associated with obtaining an immigrant visa from a foreign consulate), they could still be less than the fines and fees required under a comprehensive bill.

What qualifies as “extreme hardship”?

We also discussed this topic in a previous post. For hardship to qualify as “extreme,” it must be more severe than that experienced any time family members are forcibly separated. Among other factors, adjudicators will consider: (1) whether applicants have family ties in their home country; (2) the emotional and psychological impact of separation; (3) the living standards and societal conditions in the country of origin; (4) the financial and professional impact of separation on the U.S. citizen relative; (5) any health conditions affecting the applicant; and (6) the U.S. citizen’s age and length of residence in the United States.

Who must suffer “extreme hardship” to qualify for a provisional waiver?

Under federal law, waivers may only be granted based on hardship that would be suffered by the spouse and/or parent of the applicant, not the children. Presumably, Congress believed that allowing undocumented immigrants to receive unlawful presence waivers based on the hardship facing their U.S. citizen children would make it too “easy” for them to avoid the three- and ten-year bars. Perhaps this law will be changed if and when Congress does enact comprehensive immigration reform. But for now, the law is the law.

What if I have a criminal conviction?

This is a tricky one. Under federal regulations, provisional waivers are only available to overcome the grounds of inadmissibility related to unlawful presence. Noncitizens who are inadmissible for additional reasons—including a criminal conviction—cannot file Form I-601A. The answer, then, depends on whether USCIS has “reason to believe” your criminal conviction makes you inadmissible on some other ground. “Reason to believe” not a high threshold from a legal standpoint, and is certainly lower than the standard the government would need to satisfy in court. But if there’s any reasonable possibility that your conviction would independently make you inadmissible, USCIS would likely make you apply through the existing waiver process using Form I-601.

What if I’m in removal proceedings?

To qualify for a provisional waiver, noncitizens who are in removal proceedings must first successfully move for the proceedings to be administratively closed. If the I-601A is granted, such noncitizens must then move for termination of proceedings before leaving the country, lest they be considered to have “self-deported” during the pendency of proceedings.

What if I’m subject to a final order of removal?

Officially, noncitizens who are subject to a final order of removal are precluded by federal regulations from applying for a provisional waiver. As previously noted, however, noncitizens who are in removal proceedings may apply for such waivers. Thus, noncitizens with final orders of removal should move to have the order rescinded and the proceedings reopened before filing Form I-601A.

What if I’ve already filed Form I-601A?

If you have already filed Form I-601A, we have some bad news for you. You’ve been duped. USCIS will not accept provisional waivers before March 4, period.

What’s at Stake in Moncrieffe

25 Feb

SCOTUS

Any day now, the Supreme Court is expected to issue an opinion in Moncrieffe v. Holder, an immigration case with important ramifications for noncitizens convicted of certain marijuana-related offenses. The case is one of three argued in early October that the Justices have yet to decide. With the Court scheduled to release opinions on Tuesday and Wednesday—and a better than average possibility that Moncrieffe will be among them—we thought we would review what’s at stake in the case.

The issue in Moncrieffe involves the fate of noncitizens who are convicted of crimes that—depending on the circumstances surrounding the offense—may or may not qualify as an “aggravated felony.” In Moncrieffe’s case, the crime in question was possession of marijuana with intent to distribute. While such offenses are generally considered to be aggravated felonies under the immigration laws, an exception exists for defendants who possessed a small amount of marijuana that they intended to distribute for no remuneration (i.e. compensation).

For his part, Moncrieffe was arrested with 1.3 grams of marijuana—enough for between two or three joints—none of which he intended to sell. Unlike federal law, however, the Georgia statute under which Moncrieffe pled guilty contained no exception for those intending to share rather than sell marijuana. So after the Department of Homeland Security placed Moncrieffe in removal proceedings, his criminal record alone did not reveal whether his conviction should be considered an aggravated felony for immigration purposes. Although the government bears the burden of proof in removal proceedings, an Immigration Judge—relying on a 2008 decision from the Board of Immigration Appeals—found that the ambiguous record of conviction was enough to make Moncrieffe’s conviction equivalent to felony drug trafficking under federal law.

Some may ask: if Moncrieffe did not intend to sell the marijuana, why didn’t he simply produce evidence demonstrating as much? The reason is that in determining whether a conviction constitutes an aggravated felony, immigration courts look at the elements of the crime, not the underlying facts of the case. Though it may seem artificial, this so-called “categorical approach” is what prevents removal proceedings from turning into mini-trials over offenses occurring years or decades before.

Moreover, noncitizens with alleged aggravated felony convictions are subject to mandatory detention during the course of removal proceedings, making it difficult if not impossible to gather evidence or interview witnesses regarding their underlying convictions. Indeed, during oral arguments in October, numerous Justices—and especially Justice Sonia Sotomayor—appeared hostile to the idea that convictions for possession of marijuana with intent to distribute should be considered aggravated felonies unless noncitizens could affirmatively prove to the contrary.

Even if the Supreme Court rules for Moncrieffe, noncitizens in his position will not necessarily escape deportation. Even if not considered an aggravated felony, Moncrieffe’s conviction would still render him deportable as a generic controlled substance offense. The key distinction is that noncitizens convicted of aggravated felonies are ineligible for most forms of relief, including cancellation of removal. Thus, if Moncrieffe wins at the Supreme Court, he would merely receive an opportunity to seek cancellation from an Immigration Judge, who at that point could take the circumstances of the offense into account.

As with all Supreme Court cases, it is impossible to predict what the Justices will decide or when they will issue their decision. But based on the other cases from early October that have yet to be decided, court watchers have predicted that Justice Sotomayor is authoring the majority opinion. If true, it would certainly be a welcome sign, given her aggressive grilling of the government during the oral argument and her overall track record on immigration cases.

A Sheep in Wolf’s Clothing: the Enforcement Provisions of the White House Immigration Bill

21 Feb

Sheep

Media coverage of the leaked White House immigration bill has mostly focused on its proposed path to citizenship for the nation’s undocumented immigrants. Little if any ink has been spilled on Title I of the bill, which, while labeled “Enforcement,” contains many provisions that will be pleasing to immigrants and their attorneys. The enforcement provisions in some respects are a sheep in wolf’s clothing, as they would lead to the initiation of fewer removal proceedings based on minor criminal convictions, eliminate many bars to relief for noncitizens facing removal, and give immigration judges authority to appoint counsel for unrepresented respondents at government expense.

Preemption

Under Section 117 of the bill, all state and local measures would be “preempted” by federal law to the extent they penalized individuals on account of their immigration status or required people to disclose their immigration status to receive goods or services. The provision would thus make explicit what the Supreme Court made implicit in Arizona v. United States: namely, that the federal government has exclusive responsibility for making and enforcing the immigration laws. If enacted, the provision might not prevent states from passing “show me your papers” laws. But it would prevent them from making noncitizens subject to prosecution in local court for violations of federal immigration laws, or requiring them to demonstrate the legality of their presence to do things like rent an apartment.

Arriving aliens with a credible fear of persecution

Under Section 121 of the bill, DHS would no longer be required to detain persons who arrive on our  shores and demonstrate during a preliminary interview that they have a credible fear of persecution. Instead, immigration officers would be authorized to grant bond pending a subsequent appearance before an immigration judge. While such noncitizens would not be entitled to employment authorization on the basis of their release, they would not have to suffer the indignity of being locked in detention for the duration of their legal proceedings.

Aggravated felonies

Section 122 of the bill would make a number of important changes to the provision of the INA concerning “aggravated felonies.” Under current law, convictions for many offenses—including theft—are considered aggravated felonies if the individual was sentenced to more than one year in prison. The White House bill would raise the threshold for certain offenses to five years, ensuring that only legitimately serious criminals could be charged as aggravated felons. The bill would also raise threshold for certain fraud crimes from $10,000 to $100,000 to be considered an aggravated felony. If the White House bill became law, Rosana Chaidez, who was on the losing side of yesterday’s Supreme Court decision, could not have been charged with an “aggravated felony” based on her minor role in the insurance fraud scheme in which she participated.

Unfortunately, the bill retains language added in 1996 making the list of aggravated felonies retroactive—which allows the government to charge noncitizens as aggravated felons for being convicted of offenses that were not considered aggravated felonies at the time they occurred. In practice, this means that if the final bill adds more offenses to the list of aggravated felonies, any lawfully present noncitizens previously convicted of such crimes would suddenly become deportable.

Definition of “conviction”

Section 123 of the bill would amend the definition of “conviction” in the INA in three important respects. First, noncitizens could not become removable on the basis of a criminal conviction until they had exhausted or waived their direct appeals. Second, it would prevent noncitizens from being deported on the basis of convictions that have since been dismissed, expunged, or vacated for any reason—effectively overruling the Board’s decision in Matter of Pickering. And third, it would only permit immigration courts to consider the period of a sentence for which actual imprisonment was imposed, rather than parts that were “suspended.” In combination, these provisions would go a long way toward preventing noncitizens from being deported on the basis of convictions for which they served no time in prison or were subsequently vacated or overturned on appeal.

Cancellation of removal

As we explained earlier this month, the immigration bill passed in 1996 gutted a common form of relief called “suspension of deportation,” which allowed undocumented immigrants to avoid removal by demonstrating that they possessed good moral character; that they were continuously present in the United States for at least seven years; and that their removal would impose extreme hardship to themselves or a spouse, parent, or child that was U.S. citizen or permanent resident. The 1996 Act made this type of relief much harder to obtain, increasing the residency requirement to ten years, raising the hardship standard to “exceptional and extremely unusual,” and requiring the hardship to befall a U.S. citizen or LPR immediate relative rather than the potential deportee himself.

Section 124 of the White House bill would partially restore the pre-1996 regime, allowing unauthorized immigrants to obtain what is now called “cancellation of removal” if their deportation would cause “extreme” hardship to either themselves or a U.S. citizen or LPR immediate relative. In fact, if this provision is enacted, some undocumented immigrants might actually prefer to apply for this form of relief in removal proceedings, which would immediately give them a green card, rather than wait for up to eight years as a “Lawful Prospective Immigrant” (LPI). Meanwhile, the White House bill would also modify the cancellation requirements for lawful permanent residents, making them ineligible on account of an aggravated felony conviction only if they were sentenced to more than five years in prison.

Immigration courts and removal proceedings

Although it unfortunately does not call for the creation of an Article I system to handle removal proceedings, the White House bill does propose a number of needed changes for the immigration courts. Under Section 156 of the bill, immigration judges would gain authority to levy fines against recalcitrant ICE attorneys, who are notorious for arriving to hearings underprepared (if not totally unprepared). Section 156 would also require the issuance of regulations to “enhance accountability” in removal proceedings. Though vague, the provision could pave the way for regulations establishing formal rules of evidence and other changes to make immigration courts operate more like criminal courts than traffic courts.

Meanwhile, Section 158 of the bill would—for the first time—permit immigration judges to appoint counsel for unrepresented respondents in removal proceedings at government expense. It’s not clear what standards immigration judges would use in deciding whether to appoint counsel, and the ultimate decision would remain in their sole and unreviewable discretion—meaning the failure to do so could not be challenged in federal court. But if enacted, the provision could help level the playing field in removal proceedings, where unrepresented respondents often don’t stand a chance.

Mental incompetency and removal proceedings

Finally, the White House bill would provide much needed clarity on the responsibilities of immigration judges to noncitizens with mental disabilities. Section 162 of the bill would authorize judges to order psychiatric and psychological evaluations that would have to be conducted by non-DHS personnel; would require them to appoint counsel for unrepresented noncitizens who are deemed incompetent; and would require them to terminate proceedings (without prejudice to the government) if hearings could not be conducted in a constitutionally fair manner. These measures, combined with the issuance of further regulations, would effectively make treatment of the mentally incompetent in immigration court more similar to the treatment they receive in criminal court.

*****

Although they would not entirely fix the problems created in 1996, the aforementioned provisions would make many needed repairs to an enforcement system that is far more harsh than most Americans realize. States would have little leeway to enact their own immigration laws; long-time green card holders would no longer face virtually automatic removal on account of minor criminal convictions resulting in no actual prison time; and removal proceedings might finally offer meaningful procedural protections for those facing deportation. Is the White House bill perfect? Of course not. But if enacted by Congress, it would be a giant leap in the right direction.

The Leaked White House Immigration Bill: the Legalization Component

20 Feb

Drip

It took only three years longer than promised—and a leak that may or may not have been intentional—but the White House has finally produced a legislative proposal to fix the immigration system. Dubbed the Comprehensive Immigration Reform Act of 2013, the bill would create a pathway to citizenship for most of the 11 million removable noncitizens in the country, mandate the eventual use of E-Verify for most employers, and dull many of the draconian provisions enacted in the 1996 immigration bill. With the leaked portions of the bill totaling more than 200 pages, there’s a lot to chew on. Today, we’ll look at the part of the White House bill relating to legalizing the undocumented, and tomorrow we’ll review the enforcement-related sections.

Lawful Prospective Immigrant (LPI) status

As has by now been widely reported, the bill would allow qualified applicants to first obtain “Lawful Prospective Immigrant” status and later adjust to lawful permanent resident (a “green card” or LPR) status, a prerequisite for foreign nationals wanting to become U.S. citizens. To qualify for LPI status, noncitizens would have to be physically present in the United States on the day the bill was introduced and not have been convicted of a number of specified criminal offenses. Noncitizens could apply for LPI status if they were in removal proceedings, were under an outstanding order of removal, or had illegally re-entered the country after a prior removal. Applicants for LPI status could generally not be detained or removed, and would not be considered “unlawfully present,” while their applications were pending.

Qualified immigrants would initially be granted LPI status for a period of four years, during which time they would be authorized to work and travel abroad for up to six months, subject to renewal. Noncitizens with LPI status could also petition for their spouses and children to receive the same status, even if they are living overseas. Interestingly, the White House bill does not specifically state that LPI status could be accorded based on same-sex marriages. However, it incorporates the standing definition of “spouse” in Section 101(a)(35) of the INA, which is written in gender-neutral terms. As the bill is written, it is thus unclear (perhaps intentionally so) what, if any, protection same-sex couples would receive.

Adjustment to Lawful Permanent Resident (LPR) status

To qualify for adjustment, LPIs would have to satisfy any outstanding federal tax liability, be actively studying English and U.S. history, and not have left the country for more than six months while in LPI status. Applicants aged 21 or older when the bill was introduced would have to pay a $500 penalty to adjust status in addition to any processing fees. The government could not grant any adjustment applications until either eight years after the date of the law’s enactment, or 30 days after all immigrant visas became available for family- and employment-based petitions filed before the date of enactment, whichever came first (but no sooner than six years after LPI status was first granted). The only exception would be for noncitizens who were under 16 when they initially entered the country, were enrolled or had obtained a high school or college degree when they applied for LPI status, and had completed two years of college or the military when they applied for LPR status. (Or in other words, those who would qualify under the DREAM Act.)

Administrative and judicial review of denied applications

For noncitizens whose applications for LPI or LPR status were denied, the bill would require the creation of an administrative body housed within the Department of Homeland Security to hear appeals. Notices of appeal would have to be filed within 60 days of the denial, and stays of removal would generally be granted while appeals are pending. If their administrative appeals were denied, prospective LPIs and LPRs could file a challenge with a federal district court, which, in turn, could uphold or reverse DHS’ decision or remand the case back to executive officials for consideration of additional evidence. Importantly, federal judges would also have authority to issue stays of removal, and immigrants would not be considered “unlawfully present” while their appeals—administrative or judicial—were pending.

Protections for Employers of Prospective LPIs

Finally, the White House bill contains a number of protections for employers of workers seeking to legalize their status. For example, employers who learn of employees with pending LPI applications would not violate the law by continuing to employ them while their applications are pending. The bill would also prevent genuine employment records submitted in support of an application for LPI or LPR status from being used against the employer in a civil investigation or criminal prosecution. These provisions may well have been added due to the DACA program, which lead to concerns among some employers of liability or retaliation if their workers used employment records to demonstrate the extent of their presence in the country.

Comparison to “Gang of Eight” Framework

While the bipartisan group of Senators known as the “Gang of Eight” has yet to propose actual legislation, it’s almost certain that the path to citizenship in the White House bill is more realistic and immigrant-friendly. Unlike the Senate framework, for instance, the White House would not make the issuance of green cards contingent on satisfying an unknown set of security “triggers.” Based on statements from Marco Rubio, the Senate plan might also require the undocumented to rely on a third party (such as a qualified employer or family member) to sponsor them for a green card, which could potentially leave millions without a true path to citizenship. While we will wait to see an actual bill before expressing final judgment on the Senate plan, the White House has set a high bar.

Immigration Reform 2013: Understanding the “I-Squared” Act

18 Feb

We’ve previously told you about the broad proposals for immigration reform put forward by President Obama and the bipartisan group of Senators known as the “Gang of Eight.” Today, we’ll take you through an actual piece of legislation currently pending in Congress: the Immigration Innovation (or “I-Squared”) Act of 2013.

Unlike the frameworks put forth by the President and the Gang of Eight, which address numerous aspects of the immigration system, the I-Squared Act is narrowly focused on employment visas for professional and other highly skilled workers. However, as immigration lawyer Greg Siskind points out, the I-Squared Act is what’s known as a “marker bill”—meaning it was designed not to be passed on its own, but to serve as a model for similar provisions to be included in the eventual comprehensive reform bills.

Creation of a “Floating” Cap on H-1Bs

The biggest proposal in the I-Squared Act involves the H-1B program, which allows professionals and similarly skilled employees to work in their fields of specialty for up to six years, and which commonly serves as a bridge for university graduates who hope to obtain employment-based green cards. Due to the program’s popularity, the annual allotment of 65,000 slots is routinely filled just weeks (if not days) after USCIS begins accepting applications—leaving employers, and especially technology start-ups, unable to tap much of the pool of foreign labor on which they rely.

To remedy this problem, the I-Squared Act would allow the annual H-1B cap to “float” between 115,000 and 300,000 depending on market conditions and existing demand. For example, if the cap was reached within 45 days, the government would automatically make an additional 20,000 slots available. By contrast, if the number of approved H-1B petitions in a given year was more than 20,000 below the original cap, the government would reduce the base figure by 20,000 for the subsequent fiscal year.

Importantly, the bill would also exempt applicants with advanced degrees from the cap altogether; facilitate the ability of sponsoring employers and employees to extend H-1B status;  and for the first time allow the spouses of H-1B workers to themselves obtain employment authorization documents. Finally, to fund education in STEM (science, technology, math, and engineering) fields, the bill would raise the fees that H-1B employers must pay—from $750 to $1,250 for those with fewer than 25 employees, and from $1,500 to $2,500 for those with 25 or more employees.

Reforms to the Employment-Based Visa System

For many years, the employment-based green card system has been plagued by two opposing different problems. The demand for some types of green cards far exceeds the supply, creating lengthy backlogs and frustrated applicants. Meanwhile, the supply for other types of green cards far exceeds the demand, resulting in thousands of slots for permanent residency going unused each year.

To fix the first problem, the I-Squared Act would eliminate the per-country quotas altogether for employment-based green cards. Under current law, the government may not issue more than 7% of the green cards in any particular category to residents of any particular country. As a result, noncitizens from countries with many applicants, such as India and China, face much longer waits to obtain permanent residency than noncitizens from countries with few applicants. Indeed, due to the per-country quota, the government is only now processing EB-3 applications for Indian beneficiaries filed in November 2002. By eliminating the per-country quotas for employment-based green cards, the I-Squared Act would result in their being issued on a first-come, first-served basis. (What a novel idea!)

To address the second problem, the I-Squared Act would “recapture” all unclaimed employment-based green cards since 1992, making them available to current applicants and rolling them over to future years as necessary. It would also increase the annual percentage of green cards issued for the most popular categories (EB-2 and EB-3) from 28.6% to 42.9%. In combination, these proposals would do much to reduce (if not eliminate) the extensive waiting periods that currently face applicants for the most popular employment-based green cards.

In fact, by expanding the number of EB-2 visas available each year, the I-Squared Act would accomplish many of the same objectives as the STEM Jobs Act pushed during the lame duck by House Republicans. (Green cards in the EB-2 category are available to noncitizens with advanced professional degrees or who otherwise possess “extraordinary ability.”) Unlike the STEM Jobs Act, however, the I-Squared Act would not eliminate any existing green cards as an artificial attempt to “offset” the increase.

Authorization of “Immigrant Intent” for Student Visas

One of the biggest ironies (if not tragedies) of immigration law is that to obtain a temporary visa to enter in the United States, most noncitizens must affirmatively prove that they have no intention of permanently settling in the country. In other words, unless they can demonstrate that they intend to return home, most nonimmigrant visa applicants are forbidden from entering the country in the first place. For some types of visitors—such as tourists—this requirement makes sense. But for others—especially those who are highly skilled—it is entirely self-defeating. After all, how can we expect to attract talented foreigners to work here if we say up front that we don’t want them to stay?

Under current immigration law, applicants for only three types of temporary visas are permitted to possess “immigrant intent,” i.e., a desire to remain in the United States indefinitely: professional workers (H-1Bs), intra-company transferees (L-1s), and certain immediate relatives of permanent residents who are awaiting their own green cards (Vs).

The I-Squared Act would for the first time authorize visiting students (Fs) to have “immigrant intent,” meaning in practical terms that their ability to study in the United States would not depend on their having a foreign residence that they have no intent of abandoning. This change is not only long overdue, but crucial to attracting the very type of student to whose diploma we hope to ultimately staple a green card.

Immigration Reform 2013: The Gang of Eight Plan

11 Feb

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The week before last, we surveyed President Obama’s plan for comprehensive immigration reform. Today, we will look at a similar plan put forward by a bipartisan group of Senators known as the “Gang of Eight.” (Its members are Democrats Charles Schumer, Dick Durbin, Robert Menendez, and Michael Bennet, and Republicans John McCain, Lindsey Graham, Marco Rubio, and Jeff Flake.)

Like President Obama, the Senators want to modernize the legal immigration system, create a pathway to citizenship for the undocumented, and require mandatory employment verification for new workers. Unlike President Obama, however, the Senators have not called for same-sex marriages to be recognized under the immigration laws, and would make the pathway to citizenship conditional on meeting as-yet-undetermined enforcement targets. For these and other reasons, the Gang of Eight framework is less immigrant-friendly than the plan outlined by President Obama.

Pathway to Citizenship Contingent on Meeting Certain Enforcement Targets

Like President Obama’s plan, the Gang of Eight framework would create a path to citizenship for most of the 11 million undocumented immigrants now living in the United States. To qualify, undocumented residents would first have to pass a background check and pay a fine and any outstanding taxes. They would then receive “probationary legal status” allowing them to work and freely travel to and from the country, but not entitling them to receive any public benefits not currently afforded to temporary nonimmigrants. Eventually, those with probationary status could apply for permanent residency (i.e. a green card) and U.S. citizenship.

Unlike President Obama’s plan, however, the Senate framework makes the availability of this pathway contingent on meeting a series of (yet to be determined) enforcement measures. For example, the plan would require the completion of an entry-exit tracking system for all temporary immigrants arriving by air and sea. This seems to be a particularly unfeasible requirement. The entry-exit tracking system was mandated in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 but for budgetary reasons has never been implemented. In an era of fiscal austerity, the entry-exit system may never become completely functional—raising concerns that the Senate proposal contains mileposts that can not be met, undermining the path to citizenship.

The Senate plan would also increase the staffing and technology available to the Border Patrol, and create a commission of politicians and community leaders in the Southwest to make a recommendation on when the border was “secure.” (For a perspective from officials on the ground in busy ports on the Southwest border, read this New York Times Op-Ed by El Paso Judge Veronica Escobar.) Only once these (and potentially other) measures were in place would noncitizens in probationary status be permitted to apply for green card. Moreover, no green cards would be issued to individuals in probationary status until permanent residency is granted to all persons with petitions pending at the time of the bill’s enactment.

The only noncitizens who would be exempt from these “triggers” are: (1) those who initially entered the country as minors, and (2) agricultural workers. Although the framework does not contain precise details, the former would likely be able to obtain permanent residency along the lines proposed in the DREAM Act (i.e. after spending time in college or the military), and agricultural workers would be placed on a separate pathway altogether.

Modernizing the Legal Immigration System

Also like the President’s plan, the Gang of Eight framework calls for improvements to the existing immigration system. Although short on specifics, the Senators’ plan does include two concrete ideas. First, the Senators call for reducing the mind-bogglingly long backlogs in the family and employment visa categories so that future noncitizens do not feel compelled to come or stay illegally. Second, the Senators call for the awarding of green cards noncitizens who have received either a PhD or Master’s degree in science, technology, engineering, or math—or what are colloquially referred to as “STEM visas.”

Although seemingly noncontroversial, these proposals carry potential for legislative gridlock. For example, disagreement could well arise over the number of green cards allocated for the family- and employment-based systems. Marco Rubio in particular has called for an increase in the percentage of visas awarded on the basis of skills rather than family connections. Groups representing U.S. engineers could also call for tight quotas on the number of STEM visas or insist that they be awarded only to PhD rather than Master’s graduates. Finally, unlike President Obama’s plan, the Gang of Eight framework makes no mention of whether same-sex marriages should be recognized under the immigration laws—as President Obama has proposed—and Sen. McCain has said that extending immigration privileges to LGBT relationship could derail the entire effort.

Mandating E-Verify

Like President Obama, the Gang of Eight plan would also require the mandatory phase-in of “E-Verify,” the system that most employers can now use on a voluntary basis to determine whether new hires are authorized to work in the United States. (E-Verify is now mandatory only for federal contractors and for private employers in four states, including Arizona.) While not specifically mentioning the creation of a national ID card, the framework says prospective workers should have to demonstrate eligibility through “non-forgeable electronic means”—suggesting that lawmakers would either require the creation of a new biometric ID card or a revamped, tamper-proof Social Security card.

Notably, unlike the President’s plan, which calls for E-Verify to be made mandatory within five years and would create exemptions for some small businesses, the Senate framework contains no timeline and mentions no such exemptions. The Gang of Eight proposal also calls for “procedural safeguards” and “due process protections” to ensure that authorized workers are not mistakenly identified as ineligible for employment.

Guest-Worker Program

Finally, the Senators’ proposal calls for the creation of a large guest worker program for “lower-skilled” immigrants. While few details are mentioned, employers would first have to demonstrate that they unsuccessfully tried to recruit U.S. workers to fill the position, and the overall quota would fluctuate based on whether the economy was creating jobs. Also, while the framework refers specifically to the needs of the agricultural industry, the program would likely extend to other industries as well. There currently is such a program in place, but most employers find it riddled with inefficiency and delay.  Any new guest worker program must be responsive to the needs of business and the guest workers so that employers are willing to use the program. Finally, the Gang of Eight framework would allow guest workers who have “contributed to their communities over many years” to eventually obtain green cards.

Again, although seemingly noncontroversial, the creation of a guest worker program could prove to be the most difficult obstacle for lawmakers to overcome. Indeed, the 2007 immigration reform bill ultimately died over an amendment that would have terminated a guest-worker program after five years. Thus far, key sticking points between business and labor relate to how the annual quotas for guest workers would be set and the labor rights that employees would possess while in the country. Fortunately, reports are emerging that labor and business are nearing agreement on the details of a guest worker program—which, if true, would be instrumental in pushing immigration reform over the finish line in 2013.

Why Immigration Reform Must Also Avoid the Mistakes of 1996

6 Feb

Capitol

Those following Tuesday’s hearing before the House Judiciary Committee could be forgiven for thinking the sole cause of our country’s immigration problems was the Immigration Reform and Control Act of 1986 (“IRCA”), the landmark bill that created a pathway to citizenship for roughly three million undocumented immigrants. Time and again, Republican committee members faulted the legislation for not only being too soft on enforcement, but creating a supposed magnet for future unauthorized immigration.

In truth, while the 1986 law was indeed flawed (more on that below), a far more disastrous piece of legislation was the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Part of the GOP’s 1994 Contract with America and signed by President Clinton just weeks before his re-election, the measure sought to “get tough” on immigrants by eliminating common forms of relief from removal, permitting deportation without a hearing before a judge in many cases, and imposing draconian penalties on any noncitizen who was unlawfully present for more than six months.

Yet far from occasioning a reduction in the illegal immigration, the 1996 Act was followed by a rapid rise in the country’s undocumented population. Indeed, while precise numbers are impossible to calculate, a substantial percentage of today’s undocumented immigrants would possess legal status if not for IIRIRA. In weighing various proposals for immigration reform, federal lawmakers would thus be wise to avoid the mistakes of 1996 in addition to those of 1986.

Bars for “unlawful presence”

In hopes of deterring immigrants from illegally entering or remaining in the country, the 1996 Act created the so-called “unlawful presence” bars. Under these provisions, all noncitizens who were unlawfully present for more than six months became inadmissible for three years as soon they departed the United States. Similarly, noncitizens who were unlawfully present for more than a year became inadmissible for ten years upon leaving the country.

Yet rather than dissuade noncitizens from remaining illegally in the country, the law had largely the opposite effect. Caught in a cruel Catch-22, many undocumented immigrants who were legally eligible for permanent residence chose not to pick up a visa in their home countries for fear of triggering the bars. While Congress allowed such noncitizens to obtain waivers in cases of “extreme hardship,” applicants were—until the recent creation of a provisional waiver by the Obama administration—required to apply for such waivers from abroad, leaving them stranded for ten years if their applications were denied.

Reinstatement of removal

In hopes of deterring previously deported immigrants from illegally re-entering the country, the 1996 Act created a new process known as “reinstatement” of removal. The provision gave immigration authorities the ability to remove any immigrant who illegally re-entered the country without a hearing before an immigration judge—regardless of whether the individual had subsequently become eligible for a green card, asylum, or any other form of immigration relief. (The reinstatement process also explains how Maria Arreola, the mother of DREAMer Erika Andiola, was en route to Mexico less than 24 hours after being arrested by ICE.)

By any measure, the reinstatement provision has dissuaded few deported immigrants from illegally re-entering the country. According to the Department of Homeland Security, the number of reinstated removal orders has increased almost every year over the past decade, and accounted for a record 130,000 or the nearly 400,000 removals that occurred in fiscal 2011. The reinstatement provision has also prevented countless immigrants from obtaining forms of immigration relief for which they subsequently became eligible, including permanent residence based on a marriage to a U.S. citizen. Thus, rather than deter deported immigrants from illegally re-entering the country, the principal effect of the reinstatement provision has simply been to drive such noncitizens further underground.

Elimination of suspension of deportation

A further (but not final) flaw of the 1996 Act was the elimination of a common form of relief from removal known as “suspension of deportation.” Prior to IIRIRA, undocumented immigrants placed in deportation proceedings could avoid removal by demonstrating that they possessed good moral character; that they were continuously present in the United States for at least seven years; and that their removal would could extreme hardship to themselves or a spouse, parent, or child that was U.S. citizen or permanent resident.

In 1996, Congress eliminated this provision from the INA and replaced it a form of relief called “cancellation of removal.” Under this new provision, undocumented immigrants could only qualify for relief by showing, among other things, that they were continuously present for the previous ten years, and that their removal would cause the much higher standard of “exceptional and extremely unusual” hardship to a U.S. citizen or permanent resident spouse, parent, or child—but not to themselves.

As with the other punitive provisions mentioned above, the elimination of suspension dissuaded few if any noncitizens from entering the country illegally. To the contrary, abolishing the provision has likely encouraged many undocumented immigrants who would have previously qualified for relief to stay in the shadows. Indeed, it’s entirely possible that if suspension of deportation still existed, ICE would have had no need to conduct a nationwide review of more than 300,000 pending removal proceedings for cases meriting favorable exercises of prosecutorial discretion.

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Of course, none of this is to say the 1986 Act shares no responsibility for our current immigration problems. It does. However, the key drawback of the 1986 bill was not that it was too “soft” on immigration enforcement, but that it failed to allocate a sufficient number of visas to meet the rising demand for immigrant workers. Indeed, even if the current Congress provides a pathway to citizenship for all 11 million undocumented immigrants, nothing will be solved without modernizing the immigration system to accommodate current and future demand.

Taken together, the lessons of the immigration laws passed in 1986 and 1996 are clear. Without a system that accommodates market demand for immigrant workers, many noncitizens will feel no choice but to enter the country illegally. And without a practical way to obtain green cards for which they are legally eligible, undocumented immigrants are more likely to be trapped inside the country (or driven further into the shadows) as a result of punitive immigration laws than dissuaded from illegally entering or remaining in the first place.