Articles Posted in Legislative Update

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On Thursday, September 10th, a panel of federal judges ruled that President Donald Trump’s order to subtract the number of unauthorized immigrants from the census data in each state violates federal law. In July, President Trump ordered the U.S Department of Commerce to collect data about whether census respondents were legally living in the country, and then subtract the number of unauthorized immigrants from the census numbers.

Thirty-six states, the District of Columbia, fifteen cities and counties, a coalition of non-government organizations, and the United States Conference of mayors immediately fought the order, identifying it as an unconstitutional move that will strip citizens nationwide of appropriate federal funding and political representation.

The judicial panel made up of U.S. Circuit Judges Richard C. Wesley, Peter W. Hall, and U.S. District Judge Jesse M. Furman, unanimously sided with the plaintiffs noting that the memo violated the law by seeking to change the apportionment base. The panel explained the order disrupts Congress’s delegation of constitutional responsibility to count the whole number of persons in each state and the apportion members of the House of Representatives among the states according to their respective numbers.

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On Tuesday, August 25th, a D.C. federal court ruled the U.S. Department of Defense (DOD) unlawfully imposed service duration requirements for foreign military recruits seeking to obtain citizenship. According to U.S. District Judge Ellen S. Huvelle, the DOD does not have the authority to set naturalization eligibility standards.

Judge Huvelle’s ruling is based on the Immigration and Nationality Act, which governs immigration proceedings. According to Judge Huvelle, U.S. Citizenship and Immigration Services (USCIS) holds sole authority under the act to determine whether foreign members of the military have served honorably when adjudicating citizenship applications.

The immigration statute does not explicitly define what “served honorably” in the military means. However, the DOD does not have the authority to define the term for USCIS according to the court’s opinion. Judge Huvelle explains that the statute contemplates a role for the Department of Defense, which is limited to certifying a foreign military member’s honorable service. However, the department cannot rewrite the statute to define standards for N-426 certificates.

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On November 20, 2014, President Obama announced a series of executive actions on immigration that will include: (1) creating a deferred action program for the parents of U.S. citizen and lawful permanent resident children who meet the eligibility requirements; (2) implementing a “Priority Enforcement Program”; and (3) streamlining immigrant and nonimmigrant programs to boost the economy and create jobs in the U.S.

Actions related to business immigration changes include:

• Providing portable work authorization for high-skilled workers awaiting Lawful Permanent Resident (LPR) status and their spouses;

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This year’s H-1B cap was reached in a mere 5 days, a rate rapid enough to aggravate members of the Silicon Valley tech industry. The speed at which the cap was met indicates the great need for skilled foreign workers, especially software engineers and the like in Silicon Valley. Tech companies well as companies in numerous other industries readily use H-1B visas and are frustrated that the number given out is capped at 85,000 (including the 20,000 reserved for applicants with a U.S. Master’s degree). USCIS has stated that it received a total of 172,500 H-1B petitions this year.

Industry representatives have for years pushed Congress to increase the quota. A bill already passed by the Senate, though waiting on a vote from the House of Representatives, would increase the number of visas to somewhere between 115,000 and 180,000 per year. However, immigration reform has been met with strong resistance by lawmakers, especially in the Republican-controlled House.

Critics of raising the quota believe an increase would undermine the U.S. workforce. They argue that work visas such as the H-1B allow U.S. employers to hire foreign workers and pay them less than what they would pay U.S. workers. Additionally, the tech industry has been further criticized for its support of “stand-alone” legislation, which would increase the H-1B quota without addressing other issues embedded in immigration reform.

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On March 19, 2010 through an editorial in The Washington Post, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) presented their four (4) main proposals for comprehensive immigration reform: (1) ending illegal employment through biometric Social Security cards; (2) enhancing border and interior enforcement; (3) managing the flow of future immigration to correspond to economic realities; and (4) creating a tough but fair path toward legalizing the 11 million people currently in the U.S. without authorization. To read the whole article, please visit: http://www.washingtonpost.com/wp-dyn/content/article/2010/03/17/AR2010031703115.html. President Obama issued a recent statement pledging to do everything in his power to forge a bipartisan consensus in 2010 regarding immigration reform. This is a promising statement to immigrants and their practitioners and legislators in light of the desperate need for change in a very broken system.

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The USCIS has announced three initiatives to improve the E-Verify system. The first is a new agreement with the Department of Justice that will streamline the decision process in cases of E-Verify misuse and discrimination. The second is an informational telephone hotline for employees and the third is a series of new bilingual training videos focusing on E-Verify procedures and policies, employee rights and employer responsibilities in English and Spanish. For more information, please see: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=70beadd907c67210VgnVCM100000082ca60aRCRD&vgnextchannel=51ee4df6afc67210VgnVCM100000082ca60aRCRD.

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This week Senator Kerry (D-MA) and Senator Lugar (R-IN) proposed legislation that would increase job creation and U.S. competitiveness worldwide. The proposed act, known as the StartUp Visa Act of 2010, would help foreign entrepreneurs secure a two-year U.S. visa if they can demonstrate that a qualified U.S. investor will dedicate a minimum of $250,000 to the foreign national’s startup venture. Over 160 U.S. venture capitalists have endorsed this proposal. For more information about the Act, please visit http://lugar.senate.gov/press/record.cfm?id=322460.

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The Immigration Policy Center has issued a paper on the Repairing the Broken Employment-Based Immigration System. The paper emphasizes that if the U.S. is going to compete in an ever-changing global marketplace, policymakers need to assess our future employment-based immigration needs. It is critical that they look at both permanent and temporary work visas and high-skilled and low-skilled workers. They must also address the narrow worldwide quotas that prevent otherwise qualified workers from obtaining legal status in the U.S. The paper also states that the country is rapidly falling behind other countries in terms of available labor and talent due to its strict and outdated immigration laws. U.S. employment-based immigration must be viewed as a strategic resource for improving our struggling economy, while also protecting qualified U.S. workers. It is stresses the importance of U.S. lawmakers to embrace the concept of a global marketplace as many other countries already have and help the U.S. regain its stronghold as an economic and innovative leader. For more information, please see http://immigrationpolicy.org/just-facts/future-flow-repairing-our-broken-immigration-system.

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We previously posted an announcement about the extension of certain immigration programs until 2012. This post is simply a reminder that the Department of Homeland Security Appropriations Act of 2010, which President Obama signed on October 28, 2009, extends the following immigration programs until September 30, 2012: E-Verify, EB-5 Pilot Program, special immigrant visa category for non-minister religious workers, and the date by which J-1 visitors must obtain that status to qualify for the “Conrad 30” program.

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The Department of Homeland Security (DHS) published a rule in 2007 setting forth “safe haven” procedures for an employer to complete upon receipt of a Social Security Administration (SSA) “no-match” letter. A “no-match” letter is a letter from the SSA to an employer that a particular employee does not match the SSA database. The DHS rule created the “safe haven” rule that allowed safe haven to employers if they followed a short and harsh timeline for verifying the person’s employment with consequences that could lead to many immigrants being fired. The AFL-CIO and various organizations succeeded in getting a court to stop the rule from going into effect for the time being.

The DHS proposed on August 19, 2009 a rule that cancels its prior “save haven” rule. The DHS is currently accepting public comments on the August 19, 2009 rule until September 18, 2009, after which it will issue the final rule rescinding its “safe haven” procedures.

Please note that the SSA will continue to issue “no-match” letters, but the DHS will not require that “safe haven” procedures be followed. Employers should simply follow the instructions on the SSA letter as presented. Please feel free to contact our office with any questions.

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