While some overly competitive immigration lawyers might derive some pleasure from the recent news that Fragomen, the nation's largest immigration law firm, is having all of its PERM green card cases audited by the Department of Labor, wiser folks realize that the Department of Labor is launching phase two of a broad attack on the right to representation by legal counsel and they've chosen the nation's biggest law firm in order to send a message of intimidation to the immigration bar. Others have done a good job laying out the issues. ILW.COM has a special commentary today on the case. And the American Immigration Lawyers Association has written a scathing letter taking DOL for making new rules by press release and for acting recklessly in issuing a news release with potentially disastrous repercusions before it has concluded an investigation of the law firm. A copy of the letter can be found here (especially when the theory under which the investigation is being launched seems so dubious). Download aila_fragomen_letter.pdf
Finally, the National Law Journal covers the Fragomen story.
I suppose if there is a silver lining in the news it is that the DOL was dumb enough to take on a firm that has the resources to fight back.
This sounds like a good thing. DHS has announced a new program where Visa Waiver Program applicants can submit their entry application (the green form you fill out on the plane) online before leaving on your trip. The big advantage is that it allows DHS to pre-screen you before you fly and if you're going to be flagged for trouble based on security concerns, you will know ahead of time.
DHS contends using E-Verify is simpler than ordering a book on Amazon.com. Cato's Jim Harper reminds us that when you order a book on Amazon, you don't sign an 8 page contract that, among other things, allows government officials to come unannounced to your office and go through all of your business records. Touche, Mr. Harper.
I had a consultation this afternoon with an American citizen who filed a green card petition for his wife in 2004. The case was ready to process at the US consulate in the country where his wife was working, but she then had to move back to her home country before the 2005 interview date. So an I-824 petition was filed with USCIS to get them to cable the I-130 paper work to the consulate with jurisdiction over the home country. That I-824 was filed in July 2005 and three years later they are still waiting. And this is not that rare. The I-824 processing delays are grossly unjust and USCIS simply shrugs its shoulders when people complain. We're talking about a few minutes of a USCIS officer's time to manage the request. And it's not like people aren't paying for the service. At least offer premium processing so that people can have the option of paying a little extortion for decent service. </rant off>.
Congrats go to the Detroit Red Wings, the winner of the 2008 National Hockey League Stanley Cup. Swedish-born Henrik Zetterberg has been named the Most Valuable Player for the Red Wings and is our Immigrant of the Day. Zetterberg scored the winning goal in last night's victory against the Pittsburgh Penguins. Henrik has played his entire eight year pro career with the Red Wings
Wow. Oklahoma passed one of the nation's toughest immigration laws and the Sooner state's legislation has been the model for anti-immigrant groups around the country. And now Robin Cauthron, a US District Court Judge, has granted a preliminary injunction suspending the law from taking force due to concerns that the plaintiffs, the US Chamber of Commerce and various civil rights groups, are "substantially likely to establish" that the Oklahoma law is preempted by the Immigration Reform and Control Act of 1986. In other words, the law appears to violate the Supremacy clause of the US Constitution. Oklahoma's governor and Attorney General, defendants in the suit, had the Chutzpah to claim that Congress actually infringed upon the lawmaking authority of Oklahoma when it passed the 1986 immigration act, a charge the judge quickly dismissed.
The decision can be viewed here. Download okahoma_preliminary_injunction.pdf
Well, isn't America really better off? These people are just lazy and just want our welfare, right? This kid is a lawbreaker and who really cares if he came to the US at age two and doesn't even know the language of his native Armenia.
Sadly, these are just the arguments you'll hear the antis make. I'm sure I'll see a few of this nature in the comments. Seriously, isn't it time to pass the DREAM Act?
Goes nicely with our expensive gas and our depreciating homes. Thanks Congress. "Enforcement first" really is delivering dividend for the economy. As I love to tell folks, if you like depending on imported oil, you're going to love imported food even more.
The Ninth Circuit Court of Appeals will become the first federal appeals court to hear a challenge on a state immigration law when it hears arguments Thursday concerning the constitutionality of Arizona's tough employer sanctions law. Arizona mandates all employers use E-Verify and can suspend the business licenses of employers found to have knowingly hired illegally present immigrants. Nearly two dozen states now have immigration laws and the Ninth Circuit case could have a major impact on whether these laws will survive.
Here is the text of the Executive Order. The Chertoff press conference starts at 1 pm eastern time, but I checked with C-SPAN and they are taping it and will re-broadcast it later. If DHS releases the text of the statement, I'll post it here.
One key item - DHS is permitted to delay making the order effective until it issues a formal rule. Sources tell me that a proposed rule is now in the works.
Wow! All businesses with federal contracts are going to have to use E-Verify. That's a lot more businesses than most people realize. The vast majority of health care employers are subject since they take Medicare. All universities that participate in the federal student loan programs are government contractors. Every business that deals with the Department of Defense will need to comply. The list will be very, very long.
Chertoff is having a news conference this afternoon.
As part of its roll out of the Executive Order on E-Verify mentioned yesterday, DHS Secretary Michael Chertoff and Department of Commerce Secretary Carlos Gutierrez have issued a joint press release giving an update on where the Administration is in achieving the 26 goals outlined last August.
The Border Fence
Approximately 330 miles of fencing have been completed. DHS believes it is on track to complete 670 miles of fencing by the end of this calendar year.
Border Patrol staffing
The number of Border Patrol agents has increased from 9,800 in fiscal year 2002 to a current number of 16,471 with an increase of more than 5,000 in the last year.
Chertoff believes that the border will be "secure" by the Border Patrol's definition sometime in 2011, perhaps earlier.
The number of apprehensions has decreased, but the White House argues that this is because the enforcement measures recently enacted are having the effect of reducing the number of attempts to enter the country.
Violence at the border
In this fiscal year, there have been 744 incidents of violence against Border Patrol agents, a 26% over last year.
Western Hemisphere Travel Initiative
Slated to go in to effect at land and sea ports in June 2009. The initiative has already been implemented at airports and there has been close to 100% compliance. 200,000 applications have been received for the new pass-card being issued by the State Department beginning this month.
Washington state has begun issuing REAL ID-compliant licenses. New York has announced a plan to issue compliant licenses. "Other states are on the way to doing so as well" (no actual number is provided, however).
Approximately 10% of new hires in the country are now run through E-Verify. 70,000 employers are currently enrolled. DHS claims that 99.5% are verified instantaneously [editor's note - critics point out that this figure only includes DHS non-confirmations and not Social Security Number non-confirmations, something that appears to be a much bigger problem].
With respect to the recent Executive Order mandating federal agencies require contractors to use an electronic verification system designated by DHS, DHS designates E-Verify. Hundreds of thousands, perhaps millions, or workers will be covered by the order. Whether subcontractors will be covered will be determined when the regulation is written.
The Office of Management and Budget has just concluded its review of a proposed rule amending the federal acquisition regulation to implement the executive order.
90 employers convicted on criminal charges in the last year.
Legal Immigration facilitation
OPT rule released extending practical training from 12 to 29 months for student in science, technology, engineering and math fields working with an employer using E-Verify.
New H-1B rule prohibiting the filing of duplicate H-1B petitions by a single US employer for the same worker.
Employment Authorization Document validity period in adjustment cases increasing from one to two years beginning later this month.
H-2Bs - The Deaprtment of Labor porosed a rule addressing various "bureaucratic and ineffeciency concerns." DHS announced that yesterday it sent over to OMB a new proposed rule which would propose significant changes "designed to increase the effectiveness and attractiveness" of the H-2B program. The rule "eliminates certain regulatory barriers, adds protection for foreign workers, and increases efficiency and coordination." Most significantly, it would change the definition of temporary employment to recognize that some H-2B employment could last up to three years. Under the change, employers would now only need to show that a job is expected to last no more than three years rather than the current one year.
I'm going through the ten page transcript from yesterday's DHS press briefing on the new executive order and found this little nugget:
Secretary Chertoff: I'm also pleased to announce that we will be extending the validity period of the employment authorization documents that we issue to individuals who are waiting adjustment of status to lawful permit residence or as its colloquially phrased, the green card.
Currently, adjustment applications are granted employment authorization documents with only a one year maximum validity. Beginning later this month, we'll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year.
This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It's going to cut the paperwork there.
I'll have a more complete summary of the remarks posted here shortly.
Here is the text:DHS Designates E-Verify as Employment Eligibility Verification System for All Federal Contractors
Release Date: June 9, 2008
For Immediate Release
Office of the Press Secretary
The Department of Homeland Security today designated E-Verify, operated by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration, as the electronic employment eligibility verification system that all federal contractors must use as required by Executive Order 12989, as amended. E-Verify is a free Internet-based system that allows enrolled employers to confirm the legal status of new hires within seconds.
"A large part of our success in enforcing the nation's immigration laws hinges on equipping employers with the tools to determine quickly and effectively if a worker is legal or illegal," said Homeland Security Secretary Michael Chertoff. "E-Verify is a proven tool that helps employers immediately verify the legal working status for all new hires."
President George W. Bush has amended Executive Order 12989 in order to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system – designated by the Secretary of Homeland Security – to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract.
In response to this Executive Order, Secretary Michael Chertoff today designated E-Verify as the system of choice to ensure that the federal government only does business with companies that agree to verify the legality of their new hires and further, that the specific employees tapped to perform contract services in the United States for the federal government are authorized to work in this country. Federal departments and agencies within the executive branch are already enrolling with E-Verify to check the status of all new hires within the federal workforce. Agencies responsible for federal acquisition regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to the Federal Register today soliciting public comment on proposed changes to these regulations. Comments will be accepted for 60 days.
More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.
To view the Executive Order, please visit www.whitehouse.gov.
Little movement in the family numbers (except that the Family 2B date actually moved backwards by six weeks).
On the employment side, no changes in the EB-1 and EB-2 numbers. Indian and Chinese nationals are still stuck at April 1, 2004 in the EB-2 category.
The big news is in the EB-3 category for skilled workers which is now unavailable. In June, folks with priority dates earlier than March 2006 (except for China, India and Mexico) were being processed. For at least July and probably until September, no cases are going to be completed. The EB-3 category for other workers (those who are not skilled or professional) is still available for those with priority dates before January 1, 2003.
You can see the Bulletin here.
OK, I'm not sure Akihiko Hoshide, the Japanese-born astronaut, technically counts as an immigrant right now. The astronaut on the American space shuttle Discovery is currently in space, though he'll be back on the ground Saturday after completing a mission where he helped to deliver a Japanese laboratory to the International Space Station. Hoshide has been training at the Johnson Space Center in Houston since 2004 for this mission and has been preparing to go to the space station since 1999. Good luck on the return to earth, Mr. Hoshide!
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org