Despite the fact that several US states recognize same-sex marriages and civil unions, US immigration authorities are barred from granting permanent residency status to partners of US citizens and permanent residents. The reason for this is the Defense of Marriage Act (DOMA) passed in 1996 that bars federal agencies from conferring any recognition to same sex marriages.
For several years, Congressman Gerald Nadler has pushed for a bill making an exception to DOMA for immigration cases. Now his Senate colleague Patrick Leahy (D-VT) is pushing for such a change as well. And since Leahy is the Chairman of the Senate Judiciary Committee and one of the most powerful legislators in Washington, the prospects for the bill have improved significantly. It also seems likely that President Obama would support some type of legislation since he is on record supporting recognizing same-sex civil unions.
February 16, 2009
New Homeland Security Secretary Janet Napolitano had an interview with NPR's Madeleine Brand where she discusses her priorities for DHS. No big revelations, but it does tell a bit more about what to expect from the Administration.
Not unsurprisingly there's a lot of talk about enforcement. However, it sounds like the focus will be on going after human traffickers and also deporting criminals. She does mention interior enforcement and beefing up security on the border, however, so it would be wrong to expect any kind of let up in enforcement actions currently under way. On the controversial subject of worksite raids, Napolitano does not say that they'll stop - only that the worst employers and others benefiting from illegal immigration - will be the focus of DHS actions.
On the benefits side, Napolitano does say that the millions of immigrants working illegally in the country will be dealt with at an "appropriate" time and that it's up to Congress and the President to get that deal made. But she did mention that she would focus on streamlining the citizenship application process to make it function better.
February 15, 2009
Sheriff Joe may have finally gone too far. Sally Kohn describes his latest antics at Huffington Post:
The House Judiciary Committee has had enough. They're calling on the Justice Department to investigate. America's Voice is applauding the move:
The Committee also asks the Department of Homeland Security (DHS) to review the agreement that DHS has signed with the Maricopa County Sheriff’s Office under Section 287(g) of the Immigration and Nationality Act. This agreement gives the Sheriff authority to enforce federal immigration laws, but does not provide permission to use racial profiling or other tactics that might violate an individual’s constitutional rights. Below is a statement from Frank Sharry, Executive Director of America’s Voice:
“The Joe Arpaio approach to law enforcement is un-American and ineffective. His actions are the perfect example of why the federal government needs to take back control of immigration enforcement and pass a practical immigration reform law that secures our borders and legalizes undocumented workers. It’s welcome news that the U.S. House Judiciary Committee will begin a federal investigation into his unlawful tactics. Arpaio is a modern day Bull Connor and his publicity-seeking crusades have made the Latino community scared and Maricopa County less safe by prioritizing racial profiling over executing the felony warrants that have piled up on his desk.”
“His most recent scheme, rounding up immigrants and shipping them off to separate "tent cities," is just the latest in a career filled with dangerous and anti-Latino demagoguery. Thankfully, Chairman John Conyers (D-MI) and other members of the Judiciary Committee in the House of Representatives will be able to catalog the range of his abuses he has heaped on the residents of Maricopa County and will hopefully bring long-awaited justice against a man who appears to not understand the word.”
Non-immigrant visa holders and green card holders will be eligible to obtain US citizenship within six months of enlisting in the military under a plan announced yesterday by the US Army. The program will initially be open to 1000 individuals. Non-immigrants must have been in the US for at least two years to be eligible. The program is an expansion of the announcement I reported a few months back regarding physicians, nurses and linguists. The NY Times reports that if the program is successful, it could expand to as many as 14,000 recruits a year and include the other branches of the military. Currently, 29,000 non-citizens are serving the country in our armed forces.
February 14, 2009
Korean-born Jim Kyu Robertson has lived a truly American story. She came from modest means in her native country for a housemaid job at the age of 22. When she arrived, the job was gone and she managed to survive waiting tables in a restaurant. She worked on her English skills and enrolled in college. She then joined the US Army and continued to work on her English. The Army allowed her to continue her studies and within a few more years she was an officer overseeing 50 soldiers. She also went on to hold the position of liaison ot the Japanese Self Defense Forces, the first woman to hold the job. After retiring from the US Army, she went back to school and in 2006, she received a Ph.D. from Harvard in Asian Studies. And now her daughter Jasmin, also a Harvard graduate is serving in the US Army. The Voice of America has profiled her this week and I hope more people learn about her story. Hat tip to Dan Kowalski for telling me about Dr. Robertson.
February 13, 2009
ICE has announced the arrests of eleven individuals in seven states as part of an investigation in to visa and mail fraud. The arrested were employees of Vision Systems Group, Inc., a New Jersey company that is a so-called "job shop" placing IT workers from India. According to USCIS:
As long time readers of this blog know,I've said many times that before issuing draconian new reforms to the H-1B system, we should first enforce the regulations on the books. The Labor Department needs more funds to do a better job enforcing existing rules and employers abusing workers and flouting our laws need to see more of these kinds of headlines.
Harvard Business School has released a report showing a correlation between rises and decreases in the H-1B cap and the amount of innovation (measured in patent applications). The paper is very technical, but I know there are a lot of technical folks who read this blog so I'll leave it readers to give their thoughts in the comments.
Reports in some quarters that the Sanders Amendment was stripped from the stimulus were incorrect and the measure remains in the stimulus bill about to be voted on by both Houses of Congress.
The bar on all hiring of H-1Bs by banks receiving bailout funds was modified in the Senate and now allows the banks to hire H-1B workers but comply with the H-1B dependency rules. The rule will be in effect for two years. As I noted earlier in the week, this bill will only affect a few hundred workers as most of the recipients of TARP funds barely use the program.
Note that the dependency rules will apply regardless of whether the employer has fewer than 15% of employees in H-1B status and regardless of whether the employee makes greater than $60,000, two bases for exemptions in normal dependency situations. We believe, however, that the rule does not apply to extensions.
Banks receiving the funds will need to check the H-1B dependent box on the Labor Condition Application form and make the following attestations:
- Hiring H-1B workers will not displace US workers in the employer's work force.
- Hiring H-1B workers will not displace US workers in another employer's work force (secondary displacement).
- The employer recruits and hires US workers that are equally or better qualified than the H-1B non-immigrant applicant.
The non-displacement rule bars employers from laying off workers in essentially equivalent positions and replacing them with H-1B non-immigrants. The lay off period covered is the 90 days before and ending after the filing date of the H-1B petition. As for what is "essentially equivalent" USCIS will look to job responsibilities, duties, qualifications, experience and area of employment.
To prove it has not violated the non-displacement rules, employer must retain all records relating to the termination of employees during the 180 day period. The regulations list a variety of items that must be retained including the terminated worker's job title and description, experience and qualifications, assignments, documents related to the departure of the employee, documentation relating to job performance, etc.
Dependent employers must also demonstrate that they have attempted to recruit US workers to fill the position that is the subject of the H-1B petition. Recruiting must meet industry-wide standards and offer salaries as high or higher than being offered to the H-1B worker.
February 12, 2009
The American College of Physicians has honored Indian-born Tapan Thakur, MD as one of the nation's top ten hospitalists. Thakur works right in my home town of Memphis and was noted for his development of a new system to improve patient care by re-engineering communications both within the hospital and with referring physicians.
Still awaiting the final language, but given the anger coming on the antis' web sites, that's a basic confirmation. Also awaiting confirmation that the Sanders H-1B amendment was knocked out.
February 12, 2009
Congressional Quarterly (subscription required) is reporting the news. This can only be considered outstanding for the pro-immigration community. The senior Democratic senator from New York is one of the best friends the pro-immigration community has in Congress.
The news release linked above has a bank by bank breakdown showing H-1B usage.
That's how best-selling author Thomas Friedman describes the anti-H-1B measure passed in the Senate last week. He has an excellent opinion piece in the New York Times defending the H-1B visa program and explaining why we need MORE, not fewer, talent workers in the US if we are to revitalize the economy and keep the US on top. Friedman reminds readers that more than half of the start up companies in Silicon Valley were started by immigrants, a sizable portion of whom were originally on H-1B visas. That's a track record that shows that H-1Bs are job creators.
The big headline this month involves Mexicans in the "other workers" EB-3 category (available to workers who are not considered skilled or professional). The visa queue jumped a full year and a half for them (going from a 7 1/2 year wait to a 6 year wait). But this really just brings them back to where they were a few months ago when their numbers retrogressed significantly. Chinese and Indian EB-3 numbers moved back at the same time and have not recovered. Most other categories moved, though many by just a week or two since last month.
Family 1st - Advancement of worldwide, China and India numbers by two weeks to 22 JUL 2002. Mexico remains stalled at 8 OCT 1992 and the Philippines remains stalled at 15 JUL 1993.
Family 2A - Worldwide, India, China and the Philippines numbers advance one month to 1 JUL 2004. Mexico jumps three weeks to 15 OCT 2001.
Family 2B - Worldwide, India and China numbers advance six weeks to 22 JUN 2000. Mexico is still stuck at 1 MAY 1992. The Philippines advances six weeks to 01 DEC 1997.
Family 3rd - Worldwide, India and China advanced one week to 08 AUG 2000. Mexico moves one week to 15 OCT 1992. And there was a one week advance for the Philippines to 8 JUN 1991.
Family 4th - Worldwide numbers advance two weeks to 01 MAR 1998. China moves seven weeks to 15 NOV 1997. India advances six weeks to 01 MAR 1998. Mexico moves two weeks forward to 08 APR 1995. The Philippines moved two weeks to 15 MAY 1986.
Employment 1st - All categories remain current.
Employment 2nd - Worldwide, Mexico and the Philippines remain current. India jumps six weeks to 15 FEB 2004. China jumps six weeks to 15 FEB 2005.
Employment 3rd skilled/professional workers - All numbers are stalled and there is no movement for the fifth month in a row. Worldwide and Filipino numbers are at 1 May 2005. China jumps three weeks to 22 OCT 2002. India is stalled at 15 OCT 2001. Mexico jumps four and a half months to 15 AUG 2003.
Employment 3rd unskilled - Worldwide numbers are stalled at 15 MAR 2003. China advances three weeks to 22 OCT 2002. India is stalled at 15 OCT 2001. And Mexico is back up to 15 MAR 2003, a year and a half advancement from where the numbers were last month (when they retrogressed almost a year and a half).
Employment 4th - All remain current.
EB-5 remains current.
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 email@example.com