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Tough Talk on Immigration May Hurt Republicans

President Obama’s report card will hardly show high marks when it comes to immigration. Even though he supported comprehensive immigration reform and the Dream Act, he has so far been unsuccessful in convincing Congress to do the same. Under his watch, deportations reached a record high of 400,000 per year, although there are signs that these numbers are going down after a policy change encouraging prosecutorial discretion in immigration enforcement last year.

While President Obama asks for five more years to fix the broken immigration system, the Republican candidates have been busy showing how serious they are when it comes to immigration by taking a general hard-line stance.

Former Massachusetts Governor Mitt Romney opposes the Dream Act and any measure that acts as a “magnet” of amnesty, such as in-state tuition for undocumented immigrants.

Romney also supports a national identification card system which, in combination with a national E-verify system, would lay the groundwork for “self-deportation”, i.e. when people decide to go back to their home countries because they don’t have the legal documentation to allow them to work in the United States.

At the debate in Arizona recently, Romney expressed that the draconian law that the state has been known for – which would have allowed the police to check the immigration status of anyone suspected of being an illegal immigrant – is a model law worthy of being copied by other states. He added that he would lift the current administration’s legal challenges to the law on his first day in office. The law’s author, Kris Kobach, is his adviser on immigration.

Former Pennsylvania Senator Rick Santorum similarly has a stern approach to immigration. He wants to step up employer enforcement and supports the deportation of undocumented workers. Like Romney, he wants the U.S.-Mexico border finished. At the Arizona debate, he declared support for the measures taken by the state in combating illegal immigration.

Santorum has alluded to the experience of his parents as Italian immigrants in explaining his position on legal immigration and has described an amnesty program as false compassion.

Romney and Santorum, who both support a mass deportation policy, have criticized Former House Speaker Newt Gingrich for his moderate approach to illegal immigration.

Gingrich has advocated for a humane stance toward undocumented immigrants who have been in the United States for a very long time. He proposes a middle ground between amnesty and deportation in the form of a legalization procedure that would give legal status to the undocumented but not lead to U.S. citizenship.

He has also said that he supports “half” of the Dream Act, i.e. children of illegal immigrants can become U.S. citizens after serving in the military.
Texas Representative Ron Paul, who wants to distinguish himself as the civil libertarian among the candidates, opposes amnesty and instead supports legal immigration reform and a system that grants beneficial status to the undocumented as opposed to deportation.

While he does not believe in a fence, Paul wants U.S. troops abroad recalled so that they can be stationed at the US-Mexico border. He has also called for an end to birthright citizenship and making English the official language of the U.S.

The GOP candidates know that it is already crunch time and they have drawn their lines on immigration issues.

Some Republican strategists, however, have expressed concern that the candidates’ tough talk may alienate the fast-growing Hispanic population and harm the party in the long run. Although their firm stance on immigration may please their conservative base, the candidates might be overlooking the immigrant electorate, particularly the Hispanic population whose vote may prove crucial this coming November.

Long Delays and High Denial Rates Belie Immigration Report

Contrary to its mandate, the USCIS does not always adjudicate cases in a fair or timely manner.
This is according to the country’s largest association of immigration law practitioners, the American Immigration Lawyers Association (AILA), based on the experience of its members in representing businesses in applying for immigration benefits.

This statement was made in connection with its challenge to a recent report which found that immigration service officers (ISOs) experience undue pressure, allegedly from USCIS leadership, to approve visa petitions.

The U.S. Chamber of Commerce, a federation of more than 3 million businesses, also disputed the finding that USCIS is making it easier for petitions to be approved. In a statement, it demonstrated that the report’s conclusions are inconsistent with the experience of the business community.

The report was released last month by the Department of Homeland Security Office of the Inspector General (OIG). It found that there exists a culture of “get to yes” within the USCIS wherein ISOs are sometimes pressured to issue approvals. Following the report’s release, the House Immigration Subcommittee called a hearing on February 15, 2012.

Fraud and outside influence aimed at the approval of visa petitions of clearly ineligible applicants would doubtless undermine immigration benefit adjudication and understandably be a cause for concern. However, statistics and testimony of witnesses at the hearing disprove the report findings.

As AILA raised at the hearing, if indeed there is undue pressure to grant petitions then it follows that approval rates must also be high. The opposite seems to be true, however.

For instance, based on data from USCIS itself, in the last four years there has been a dramatic increase in the denials of L-1 and H-1B petitions.

The National Foundation for American Policy analyzed the numbers and found that between 2007 and 2011, the denial rate of L-1B petitions rose from 7% to 27%. The L-1B category is used by multinational companies to allow personnel with “specialized knowledge” to work in the United States. The AILA notes that the change in approval rates took place without a corresponding change in the law or regulations.

At the same time, H-1B denials jumped from 11% in 2007 to 29% in 2009. In 2011 the denial rate was down to 17% but this is still higher than in the past.

The same trend could also be seen in L-1A petitions (managers and executives of multinational companies) and O-1A petitions (aliens with extraordinary ability in the sciences, education, business or athletics).

Longer delays also ensued from the increased use of “Requests for Evidence” which officers use to obtain more information instead of granting or denying the petition right away.

The president of the USCIS officer’s union testified at the hearing that there is no culture of getting to yes within USCIS. The Inspector General himself said that they found “no conspicuous fraud” in immigrations benefit adjudications.

The methodology for the study was also criticized as weak and unscientific by AILA and the Chamber of Commerce. They believe that the OIG drew conclusions from a very small and self-selected sample.

The OIG interviewed only 147 managers and staff and received only 256 responses to an online survey, which represent only 2% of the total number of personnel involved in immigration benefit adjudications. Even Rep. Zoe Lofgren, a ranking member of the Subcommittee, called the report “amateurish”.

The AILA and Chamber of Commerce gave examples of actual experiences that contradict the report’s findings of undue influence. These cases highlight the arbitrary standards being applied by the USCIS and the burdensome requests and lengthy processes that U.S. businesses are subjected to. As some of those experiences illustrate, the negative trend in adjudication has also led to the loss of jobs of U.S. workers.

Indeed just by looking at the statistics and experience of businesses, it appears that the USCIS instead suffers from what some have termed a “culture of no”. Perhaps the USCIS should instead realize the need to develop a culture that would bring the United States where it needs to be in today’s global economy.

Deportations Decline Following Policy Change

The first quarter of the 2012 fiscal year saw the lowest proportion of deportations in immigration cases in at least two decades. At the same time, the proportion of aliens allowed to remain in the U.S. also increased.

According to a recent report, immigration court records for 53,064 completed cases showed that only about half or 50.8% of the individuals with deportation cases were removed. Compared to the preceding quarter, the period of October to December 2011 saw a decrease in the percentage of aliens ordered removed by more than 5 percentage points.

Not only were there fewer deportations in proportion to the number of cases. Substantially more cases were also closed without a deportation or voluntary departure order, which essentially means that the respondent alien was allowed to stay in the United States. According to the study, in 18,266 cases (34.4%), the court granted relief to the alien, terminated the case, or administratively closed the proceedings.

This is significant because it indicates that more than one in every three aliens in deportation were allowed to remain in the U.S., which is considerably greater than the previous quarter’s 29.9% and is the highest ever recorded.

More striking was the jump in the percentage of aliens granted relief or found to be legally entitled to stay in the U.S. Whereas in the previous quarter the court granted relief only in 13.1% of the cases, for October-December 2011 relief was granted in almost 18% of the cases.

These notable changes could be the result of a number of policy changes implemented by the Obama administration last year.

It will be recalled that on June 17, 2011, the Immigration and Customs Enforcement issued a Memorandum directing its personnel to exercise prosecutorial discretion with the aim of conserving the agency’s resources for cases deemed to be enforcement priorities, such as those involving criminal aliens and suspected terrorists.

Then in November 2011, the DHS announced a two-month long review of incoming as well as pending removal cases to determine which cases should be accelerated or prioritized and which ones should be administratively closed using the guidelines on prosecutorial discretion. The DHS also launched a scenario-based training for ICE officers and attorneys as well as pilot programs to review the dockets in immigration courts in Denver and Baltimore.

The report was released by the Transactional Records Access Clearinghouse (TRAC), a research group based at Syracuse University.

It comes at about the same time that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ordered the Department of Justice in five separate immigration cases to advise the court by March 19, 2012 “whether the government intends to exercise prosecutorial discretion”. It’s as if the court has taken to itself the initiative of prioritizing the use of government resources by focusing on more important cases before it.

Out of the 53,064 cases analyzed by TRAC, 82.1% or 43,591 cases involved the violation of immigration rules only, i.e., those who entered the country illegally, overstayed a valid visa, or violated procedural requirements. In the remainder of the cases the charges against the alien included more serious offenses, such as involvement in or conviction for a crime.

It seems that the data confirms that the increase in the proportion of aliens allowed to stay – those who were granted relief or whose cases were terminated or administratively closed – pertained to aliens who were charged only with a violation of immigration rules.

On the other hand, among aliens charged with criminal violations, there was a slight increase in the percentage of those ordered removed or granted voluntary departure.

The study also found however that, in spite of the increases in case closure or termination, for the first quarter of fiscal year 2012, the average processing time went up from 311 days on average in the last fiscal year to 375 days.

Visa Requirements for Business Travelers

In today’s global economy, people from all over the world visit the United States for business reasons. However, although the United States has a policy of allowing the free movement of people into the U.S. for cultural, social and economic reasons, at the same time it has to protect its labor force from those who enter the country to perform labor or seek employment.

Because of these two interests, U.S. consular officials carefully screen visa applications. With the exception of those in visa categories that allow “dual intent” such as H-1B and L-1 visas, nonimmigrant visa applicants are automatically seen as intending to settle permanently in the U.S. To be eligible for a B-1 visa, even business visitors must overcome the presumption of immigrant intent.

There are three basic requirements for a B-1 visa. First, the applicant must give proof of an unabandoned foreign residence. This refers to the principal actual dwelling place of the applicant. It is the principal place of abode to which he/she will return at the end of the temporary visit to the U.S.

Second, the entry must be for a temporary period only, meaning, that the stay is for a limited time and not indefinite. To prove this, the applicant must give evidence of specific plans for the visit, adequate financial resources, and sufficient business and family ties to his/her home country which would be a strong inducement to leave the U.S. at the end of the visit.

Third, the purpose of the visit must be to engage in permitted business activities. The applicant must be visiting for business and not for the purpose of local employment or labor for hire.

Sometimes, it is hard to distinguish between a permissible business activity and impermissible labor or employment. In such a case, the consular official must look at whether the principal place of business and the actual place where profits accrue are in the foreign country and not in the U.S.

The consular official may also use the old three-prong test which asks, first, whether the individual would be compensated from a U.S. source. The B-1 nonimmigrant may receive an expense allowance or reimbursement from a U.S. source, but he/she may not receive a salary or remuneration from U.S. sources in connection with activities in the U.S.

The second prong pertains to the nature of the services performed. Attendance at business meetings is allowed, but services, even if uncompensated, for which a U.S. worker would have to be hired, or those services inherently part of the labor market are not and could disqualify the applicant from the visa.

The third prong requires the officer to determine who benefits the most from the visitor’s services in the U.S. If it’s a U.S. entity that will benefit the most, chances are the visitor will be denied a B-1 visa. On the other hand, if the foreign national or foreign employer primarily benefits from the services, the visitor may be eligible for a B-1 visa.

Examples of business activities that are allowed under a B-1 visa are the following: engaging in commercial transactions; negotiating contracts; litigating; participating in a convention, conference or seminar; and undertaking independent research.

Deportation Remedies

Being placed under removal proceedings is probably one of the hardest things that any immigrant might have to experience in the United States. However, even at this stage several types of relief are available to prevent an individual’s deportation.

Some remedies, for example, adjustment of status, cancellation of removal, or asylum and withholding of removal, either grant or offer a path to permanent residence. If the respondent alien is not eligible for these forms of relief, he should certainly consider other options before he loses all hope and gives up.

Deferred action is one of the remedies available to an alien under deportation which is granted for humanitarian reasons. It is a form of relief granted not by the judge but in the exercise of prosecutorial discretion by the district director with the approval of the regional commissioner.

The alien must demonstrate that his removal is not a priority of the government. Some of the factors to be considered include the likelihood of ultimately removing the alien; the presence of sympathetic factors; likelihood of a large amount of adverse publicity because of those sympathetic factors; the alien’s continued presence is desired by law enforcement for an ongoing investigation or review; and whether the alien is a member of a class that is a high enforcement priority.

A grant of deferred action means that the government would not take steps to remove the alien from the United States. He becomes eligible for employment authorization in the meantime. However, deferred action is only a temporary stay of removal and does not confer any positive immigration status.

Another type of relief that may be available is voluntary departure. This allows an alien who would otherwise be deported to leave the U.S. at his own expense but within the time period ordered by the judge, which can be as long as 120 days if requested at the beginning of the proceedings.

An alien who is ordered removed may be barred from reentering the U.S. for at least several years, but one who voluntarily departs is not subject to the penalties of removal. Voluntary departure may be requested before or at the master calendar hearing, after the individual hearing, or at the conclusion of the proceedings.

If the alien has a matter pending with the USCIS, typically an I-130, I-140 or I-360 petition, the judge may order an administrative closure of the removal proceedings. This is to allow the USCIS to adjudicate the petition since the judge does not have jurisdiction over it. If the petition is approved by USCIS, the alien may apply for permanent resident status before the immigration judge.

A little-known type of relief, perhaps because it is rarely resorted to, is the private bill. It involves convincing a U.S. Senator or Representative to sponsor a bill providing one with permanent residence, and thereafter to have that bill passed in both houses of Congress and then signed by the President. As one can imagine, getting a private bill passed is nothing short of a miracle, but miracles do happen: in the 108th Congress, three private bills were passed.

The rules of both houses require the alien to establish particularly compelling circumstances and hardship. Even the mere sponsorship of a bill by a member of Congress already gives the alien relief. This is what happened to one of our clients years ago. The pendency of the private bill enabled him to remain in the U.S. until he obtained his employment-based green card.

Deferred enforced departure (DED) is a relief given to nationals of certain countries as determined by the President in his power to conduct foreign relations. If an alien is covered and is eligible for a DED, his removal is temporarily stayed and he may get employment authorization and advance parole.

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