Tag Archives: Senate CIR Bill

A New Fiscal Year and the Same Old Dysfunction

1 Oct


The air is noticeably crisper, the baseball playoffs have begun, I have started to see decorative gourds, but the traffic got a whole lot lighter today.  It is October 1, 2013, the first day of the fiscal year 2014 (FY2014), and the federal government has shut down over the inability of Congress to pass a budget that does not seek to undo the Affordable Care Act.  With the radical takeover of the House of Representatives, government functions, including immigration, have ground to a halt.  If the House can not even keep the government running, how are we to expect that they can actually create positive change by passing meaningful immigration reform?

Here are things that are not going to happen because of the government shutdown:  our client, a lesbian from South Africa, will not get to present her case for protection to an immigration judge and she will remain in limbo for the forseeable future, worrying whether she must return to a country where “corrective rape” is a common occurrence for those deemed to be gay; our clients, DI and NM, husband and wife, will continue to be separated while they wait for the National Visa Center to resume processing DI’s case and deciding whether the birth and marriage documents from Iran are the right ones, and our client, DR will have her hearing rescheduled once again.

DR’s case presents an amazing saga of government bad luck and government dysfunction.  DR is supposed to go before the immigration judge on Monday, yet the case is likely not to go forward due to the shutdown.  Even if it did, the word is that the Congressionally-limited 4000 green cards available through cancellation of the removal for FY 2014 are already gone.  Chew on that for a minute.  The 4000 visas available for cancellation, meant to get the country through the entire year, were gone before the FY even started.  Thus, the Judge could not even grant the relief we were seeking.  Perhaps she could have reserved one of the FY 2015 visas and had us return in a year to finish the case.  This was supposed to all occur last year for DR.  However, last year, Super Storm Sandy closed the immigration court in New York for about two weeks.  DR missed her hearing and, by the time, she returned to court in December 2013, the cancellation visas were all gone.  Certainly, there would be new cancellation visas on October 7, a week after the FY begins, we all reasoned in December.  So, we scheduled for October 7.  Oops.  The irony of all this is that the government and the Judge all agree that she should be granted her residence.  Yet, it is Congress that has continued to stand in the way.  The 1996 Congress which passed the dreadful immigration law which limited cancellation grants to 4000 a year has caused endless bureaucratic delay and now with a shut down has made it impossible for the parties to work out a solution.  Meanwhile, DR keeps working and going to school, wondering when she will get the relief she deserves.

The Congressional inaction has also stalled immigration reform.  Millions of immigrants wait for the chance to regularize their status and integrate more deeply into American life.  The promise of reform has been tantalizingly close since June when the Senate passed its immigration bill.  Yet, the House has done nothing with that bill.  Rather than build, they seek to destroy.  In the meantime, millions of immigrants, their families and their employers get up and go to work and school.  They do their jobs while the House Republicans close the biggest employer in the DC area.  Yet, the deportation machine keeps running.  ICE has announced that enforcement and removal operations will continue during the shutdown.  The heavy priority on enforcement over benefits and relief has been noticed in the immigrant priority.  Certain immigrant groups have taken matters into their own hands, seeking entry into the United States across the Mexican border.  I have no idea what will be the long-term effect of that strategy, but I do know that it can not be any less effective than trying to lobby Speaker of the House John Boehner.

At least the traffic in downtown DC is better.

What’s Happening with the Immigration Bill? What is a mark-up??

7 May

Gang of eight

It has now been a couple of weeks since the Gang of Eight’s immigration bill was introduced.  We provided a brief rundown of its main points and we give it, overall, good grades.  It certainly is much better than the status quo, but less generous than we might have designed ourselves.  But they are in Congress and we are in court.  Now that it is out, what happens?

The bill has been assigned to the Senate Judiciary Committee.  The Judiciary Committee is chaired by Senator Patrick Leahy (D-VT).  Senator Leahy is a strong supporter of immigration reform and has acted quickly to move the legislation.  In the bill’s first weeks, he held hearings on the legislation.  Those hearings generated more heat than light and their contents have long been forgotten.  The bill moves ahead unscathed.  The bill also seems to have survived the terrorist bombings in Boston.  While immigration opponents seized on the foreign identities of the brothers Tsarnaev, the bill’s supporters were undaunted in arguing how the immigration bill would improve national security.  The ability of conservative members of the Gang of Eight to resist what must have been a strong impulse to jump ship gives us cause for optimism over the bill’s future.  Yesterday, the Heritage Foundation, a conservative think tank, released its most potent weapon against reform, a report in which they claim that reform will cost the American economy $6.3 trillion.  This salvo fell flat as Republicans, such as Paul Ryan, Grover Norquist, Haley Barbour and Jeff Flake  attacked the findings and methodologies of the Heritage report.  If the report was intended to weaken the resolve of Republicans pushing reform, it seems to have failed.  And, in a sign that the pro-immigrant crowd has gotten its political act together, the Immigration Policy Center was ready with its own report debunking the Heritage report.  In the 24 hour news cycle, speed is everything and IPC should be commended for its rapid response.


Senators were also given until 5PM today to file their amendments to the bill.  All amendments were posted online on the Senate Judiciary Committee page for all to see.  This transparency contrasts with the middle of the night passage of the Illegal Immigration Reform and Immigrant responsibility Act of 1996 (IIRIRA), the disastrous ’96 immigration bill that caused the vast majority of today’s immigration problems.  By showing the amendments, the Judiciary Committee has highlighted the differing opinions of Senators offering amendments to the bill.  For example, Senator Leahy seeks to add language that would require the recognition of same-sex marriages under the Immigration & Nationality Act.  His amendment has the virtue of simplicity.  It simply says that a marriage that is legal in any state shall be given full validity under U.S. immigration law.  To the contrary, Senator Grassley displays his intent to undermine reform.  Senator Grassley, who was one of the voices to suggest that the Boston bombing should put a halt to immigration reform, has submitted 77 amendments, as of 8PM Tuesday.   We chose one at random to get a sense of what Senator Grassley was up to.  We picked “Grassley39.”  This amendment would replace language in the bill that provides additional personnel to the immigration court system and replace it with a study to be conducted in the 18 months after passage of the law of the need for additional personnel.  The study would then be provided to the Judiciary Committee for consideration of additional legislation if necessary to relieve the understaffed immigration courts.  Of course, the overburdened immigration court system is well-documented and individuals routinely wait years for their hearing dates.  This backlog frustrates not only relief, Senator Grassley, but also removal.  If this amendment is representative of Senator Grassley’s contributions, it is clear for all that he is trying to undermine its needed reforms.  But we already knew that.grassley

Senator Leahy has scheduled a “mark-up” of the legislation for this Thursday, May 9.  A mark-up is a meeting in which Senators debate, amend and re-write proposed legislation.  The Committee will address all of these amendments.  It is likely, given the Democratic advantage and the presence of two Gang of Eight Republicans, Jeff Flake (R-AZ) and Lindsey Graham (R-SC), that the legislation will emerge from the Judiciary Committee largely unscathed.  After the Judiciary Committee votes, after weeks in which they will have to consider the 300+ amendments, the bill will be brought to the Senate floor for a vote in the full Senate.  Expect major pyrotechnics there.

We will continue to update the progress of the bill as it moves through the Senate and the Congress.  Stay tuned.


Summary of the Newly-Introduced Senate Immigration Bill

17 Apr

Here is a short summary of the Senate immigration bill released to the general public late last night. Keep in mind that this is just proposed legislation, and no one can or should apply for anything yet. We’ve a long way to go before this legislation becomes reality.

Title I Border Security

This title provides for phased in border security measures that will achieve and maintain effective control in high risk border sectors of the Southern border.

  • Border Plan: Stage one requires the Secretary of DHS to develop a Comprehensive Border Security Strategy and Southern Border Fencing Strategy that must be submitted to Congress before the registration period for Registered Provisional Immigrants (RPI) begins. These strategies must be designed to achieve an ability to achieve persistent surveillance of the border using both technology and human resources and to achieve a 90% effectiveness rate for apprehensions and returns in high risk border sectors. This bill appropriates $3 billion for this plan. The Secretary’s plan must be operational before any RPIs may apply for adjustment of status.
  • Triggers: In addition, the Secretary must develop and implement a fencing plan (up to $1.5 billion); Everify must be mandatory and operational; and biographic entry-exit at air and seaports must be implemented before RPIs may adjust to permanent residence.
  • Southwest Governors Commission: After five years, if the specified goals of 90% effectiveness and persistent surveillance have not been met, a Southern Border Security Commission will be established to make further recommendations for achieving the targets. The Commission will recommend up to $2 billion in additional spending that would be available achieve the border security goals if they have not yet been met.
  • Additional Resources: To further ensure completion of these targets, Border Patrol personnel and resources will be increased, additional funding for border prosecutions in the Tucson sector are funded, and the authority of the National Guard to assist in border security operations is codified.
  • Civil Rights: To protect the integrity of the system, additional resources and training will be devoted to implementing a DHS-wide use of force policy and associated training in appropriate use of force, individual rights, and sensitivity to cultural and environmental impact of federal operations on border communities. A Border Oversight Taskforce is established to take testimony and conduct hearings in order to review and recommend changes to existing border policies. The current duties of the USCIS Ombudsman’s office will be expanded to encompass all DHS immigration functions.

Title II Legalization (Registered Provisional Immigrant program) and Legal Immigration

  • This title provides a path to citizenship for the 11.5 million undocumented workers in the United States. This title establishes a new framework for future legal immigration that maximizes the number of visas made available annually to persons in family, employment, and a new merits based visa category. In addition to the current family and employment based systems, two additional “merit-based systems” would be created.

    SubPart A. Creation of Registered Provisional Immigrant program

  • Registration Requirements: Immigrants who entered the United States before December 31, 2011 and have been physically present in the U.S. since that time will be eligible to apply for Registered Provisional Immigrant (RPI) status provided they pass background checks, have not been convicted of serious criminal activity, pay any assessed tax liability, pay appropriate fees and a $500 fine.
  • Initial registration will be valid for six years, provides for work and travel authorization, and includes spouses and children.
  • Renewal: RPIs applying for renewal will be subject to new background check, evidence of having been regularly employed while meeting public charge requirements or having income and resources at 125% of the poverty level evidence of learning English and payment of fees and a $500 fine.
  • Adjustment of status to Permanent Residency: At the end of ten years, RPIs may apply for adjustment of status, provided that they can continue to demonstrate eligibility per the renewal standards (with a heightened income requirement) with payment of an additional $1000 fine. Individuals present in the U.S. for 10 years in lawful status can adjust status. RPIs may not adjust status until the family and employment backlogs are cleared and the border security triggers are met. RPIs may apply for naturalization after a three year wait, making the total path to citizenship a 13 year wait.
  • Timeline: There is an initial 12 month period for regulations. Then there is a one year initial application period which can be extended for up to one year at the discretion of the Secretary.
  • DREAM Act: Individuals who entered the United States before the age of 16 and who have completed high school in the U.S. may register for RPI status through the DREAM Act. There is no age cap for the program. Five years after registration, DREAM RPIs may apply for adjustment of status; their time in RPI status will count towards eligibility for naturalization, allowing them to become citizens immediately after receiving their green card.
  • Agricultural Program: Undocumented farm workers who have made a substantial prior commitment to agricultural work in the United States would be eligible for an Agricultural Card. Agricultural workers who fulfill future Agricultural Card work requirements in U.S. agriculture, show that they have paid all taxes, have not been convicted of any serious crime, and pay a $400 fine are eligible to adjust to legal permanent resident status.
  • Grant Programs: Creates an Office of New Americans and additional integration initiatives. Provides funding for immigration legal services.SubPart B. Legal Immigration Reforms
  • A new “Track Two” merit-based system is created to adjust the status of individuals lawfully present in the U.S. for over ten years with work authorization and to eliminate all existing legal immigration backlogs within the next 8 years. The Secretary is permitted to clear the backlog of family and employment based petitions that have been pending for more than 5 years.
  • Lawful Permanent Residents’ spouses and children become “immediate relatives” and are uncapped: Current family based categories will be revised to permit the spouses and children of lawful permanent residents to immigrate immediately.
  • Additional changes to the current family system: The current sibling category will be eliminated 18 months after enactment, but the backlog reduction program will include processing of all sibling petitions submitted before expiration of the program and US citizens can petition for the sibling for up to 18 months after enactment. The third family preference category (adult married children of US citizens) has an age cap of 31.
  • New Family “V” Visa: Creates a new nonimmigrant visa for families with approved petitions to work and live in the U.S. while waiting for their green card. Allows other family members including siblings to visit the U.S. for up to 60 days per year
  • International adoption harmonization allows adoption of foreign-born children till age of 18, as opposed tp the current age of 16.
  • Equal treatment for all stepchildren, as in the age until which a step-child is considered a child is amended from 18 to 21.
  • Clarification of 203(h)(3) of the Child Status Protection Act – Children who age out after complex mathematical formula still retain the original priority date of any family-visa, employment-visa and diversity visa petition filed on behalf of their parents, and can apply the original priority date to a subsequent petition filed on their behalf by a parent.
  • Employment-Based Reforms: Spouses and children of employment based visa applicants, STEM graduates with doctoral degrees, certain other experts and professionals, and certain foreign doctors are exempt from the employment visa cap. The cap on low-skilled workers is raised.
  • New Merit-Based System: Creates a “Track One” merit based visa which will initially allocate 120,000 visas annually based on a points system. Equally weighted points will be awarded for factors such as education, employment, and length of residence in the US, with the possibility of increasing the allotment by 5% (capped at 250,000) in any year where unemployment is under 8.5%. A portion of these merit visas will be set aside for high skilled and low skilled workers.
  • Additional Backlog Reduction and Improvements: Additional provisions to streamline processing and reduce backlogs including elimination of employment based country caps, increase in family based country limits, and recapture of unused visa numbers are authorized. Permanently authorizes popular programs for foreign doctor (Conrad-30), religious worker recruitment; and EB-5 investors. Includes numerous other technical fixes to improve and streamline current visa programs, many of which were included in the Menendez/Honda Reuniting Families Act (additional protections for stepchildren, widows, and other family members.)
  • Judicial Discretion: Expands availability of waivers for unlawful presence, false claims to U.S. citizenship, misrepresentation and expands authority of immigration judges and DHS to waive removal on humanitarian grounds, lowering the bar from extreme hardship to hardship for parents, spouses and children of U.S. citizens and lawful permanent residents.

Title Three: Interior Enforcement

  • This title mandates E-Verify, provides additional worker protections, reforms the immigration court system and provides additional measures related to interior enforcement.
  • Five year phase-in of mandatory E-Verify: Establishes a phased-in expansion o current electronic employment verification system (E-verify) to cover all employers within a four year period, beginning with federal contractors and critical infrastructure employers. Requires identity verification through enhanced fraud-proof work authorization and green cards. Specifically prohibits creation of a national ID card.
  • Anti-fraud measures: Expands ability to protect against identity theft of Social Security numbers by allowing employees to block their social security number and gives employees access to personal E-verify history. It provides for photo identification mechanism as component of E-verify.
  • Due Process: Expands due process protections for employees to ensure that legal workers are not prevented from working due to errors in the system or because of employer negligence or misconduct. Provides for back-pay if an employee loses work unfairly due to system or employer error. Provides a stay of termination of employment to give the worker time to correct any errors in the system.
  • Worker Protections: Subparts B and C of this Title provide other miscellaneous protections for employers and employees, including pre-emption of state and local work authorization laws, expansion of U visas in employer abuse situations (POWER ACT), creation of mandatory exit verification system, program funding. The bill also cracks down on labor recruitment abuse.
  • Refugee/Asylum Issues: Streamlines processing in refugee and asylum cases by eliminating one year asylum filing deadline, allowing persons who were denied asylum as a result of the one-year filing bar to file a motion to reopen the case within 2 years of the enactment of the bill; eliminating family reunification barriers for asylees and refugees, authorizing streamlined processing of certain high risk refugee groups, authorizing asylum officers to grant asylum for eligible applicants during credible fear interviews, and permits qualified stateless individuals to apply for lawful permanent resident status.
  • Immigration Court Improvements: Authorizes increase in immigration court personnel, additional resources, and more training for judges and other staff, access to counsel for vulnerable populations to improve efficiency of courts, permanently and codifies Board of Immigration Appeals and legal orientation programs.
  • Interior Enforcement: Tightens certain grounds of inadmissibility relating to document and passport fraud, driving while intoxicated following two convictions, conviction for gang related activities, convictions related to domestic violence, child abuse, stalking, violation of protection orders and failing to register as a sex offender. Prohibits and or increases penalties for abusive smuggling, hindering or obstructing immigration investigations, illegal entry and re-entry.
  • Detention Reform: Increases oversight of detention facilities, expands discretion of immigration judges to conduct bond hearings, and requires establishment of alternative to detention programs in consultation with community groups.

Title IV Reforms to Non Immigrant Visa Programs

This Title reforms current non-immigrant visa programs and creates a new W worker visa that melds greater employer flexibility with more worker protections and ability to self-petition for permanent residence.

  • H-1B: Reforms to the H-1B high skilled visa program include expanding current cap from 65,000 to 110,000 with an option to ultimately increase the cap to 180,000 visas annually based on a High Skilled jobs Demand Index. Increases requirements for web-site advertising for U.S. workers prior to hiring foreign workers.
  • H-4: Allows dependents of H-1B workers work authorization if country of origin reciprocates with similar provisions for U.S. citizen dependents living abroad
  • Deterring Abuse: Establishes significant new authorities and penalties to prevent, detect, and deter fraud and abuse of the H-1B and L-1 visa systems by fraudulent employers. Increases wages for foreign workers to help protect Americans.
  • H-2B: Makes permanent the H-2B returning worker provision.
  • New Worker Program (W Visa): Establishes a new nonimmigrant W classification for lesser-skilled foreign workers performing services or labor for a registered employer in a registered position. Spouses and minor children are included and will receive work authorization. Three year visa with three year renewal periods. Initially, 20,000 W visas will be made available, rising to 75,000 visas in year four. After that time, a newly established Bureau of Immigration and Labor Market Research will be authorized to calculate and recommend appropriate W visa levels. Other safety valves will be built into the cap to ensure occupations or employers with genuine shortages can hire needed workers. W visa holders may switch from one registered employer or position to another without penalty and upon meeting other eligibility criteria apply for the merits based lawful permanent residence.
  • Agriculture: A new agricultural guest worker visa program would be established to ensure an adequate agricultural workforce. A portable, at-will employment based visa (W-3 visa) and a contract-based visa (W-2 visa) would replace the current H-2A program. The H-2A program would sunset after the new guest worker visa program is operational.

Here is the complete Senate bill and a longer outline of the bill.