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New Visas Vital in Global Race for Talent

Although jobs in the science, technology, engineering and mathematics (STEM) fields are increasing three times faster than jobs in the rest of the economy, there are not enough American students in these fields such that by 2018, there will be a shortfall of 223,800 STEM workers. This is according to a May 2012 report by the Partnership for a New American Economy and the Partnership for New York City entitled “Not Coming to America: Why the US is Falling Behind in the Global Race for Talent”.

When U.S. companies find it difficult to staff highly-skilled jobs with U.S.-born workers, they often look to qualified foreign-born workers to fill in their need for talent. However, visa limitations and bureaucratic obstacles keep this from happening.

As a result, foreign born students get lured by other countries or return to their home countries where their skills are put to use. For instance, in 2009 many of the tens of thousands of students from China, India, South Korea and other countries, who graduated from an American university with degrees in computer science, engineering and math had little choice but to go home instead of remaining in the U.S. and contributing to our economy.

Whether we like it or not, in a global economy with a global talent pool, the United States’ loss is the rest of the world’s gain.

Immigrants have also been found to be job creators. One study pointed out that nearly half of the top 50 venture capital-backed companies had at least one immigrant founder. Some of the most successful U.S. companies were started by immigrants, including Google, Intel and eBay.

Recognizing the importance and economic contribution of immigrants, a bipartisan group of U.S. senators recently introduced a bill call Startup Act 2.0.

The bill would create a visa for as many as 50,000 foreign-born students from U.S. universities with master’s or doctorate degree in the STEM fields. The individual would be given conditional resident status as long as he/she remains actively engaged in a STEM field for five consecutive years. The visa holder becomes a permanent legal resident once the conditional status is lifted.

The bill also proposes 75,000 entrepreneur’s visas for immigrant entrepreneurs in the science and technology field who create businesses that employ full-time workers.

To help immigrants from countries with huge visa backlogs, the bill also eliminates the per-country numerical limitation for employment-based immigrant visas and adjusts the family-based cap from 7% to 15% without increasing the total number of available immigrant visas.

The bill also gives incentives to encourage investment in startup companies. It seeks to make permanent the exemption on capital gains taxes for investments in small startups and creates a research and development tax credit for small startups that are less than 5 years old.

The authors of the legislation, Senators Mark Warner (D-Va.), Chris Coons (D-Del.), Marco Rubio (R-Fla.) and Jerry Moran (R-Kan.), noted that six countries in the past 16 months came up with new policies to encourage entrepreneurship, innovation and job creation, and argued that the United States cannot afford to turn a blind eye to its competitors.

It is difficult to tell how the bill, which enjoys the support of many technology firms, would fare in the current Congress and in view of the coming elections. A bill for highly-skilled immigrants passed the House last year but has stalled in the Senate. In the past, targeted legislation has been held back in order to create greater buy-in for comprehensive immigration reform.

Same-Sex Marriages under Immigration Law

After years of offering civil unions as an alternative to marriage, President Obama recently expressed support for same-sex marriage. In a dramatic shift from his long-held position, Obama said that same-sex couples should be allowed to get married.

The polarizing issue of same-sex marriages has made the headlines in the United States and abroad, even in the Philippines. It is expected to be one of the social issues to be hotly debated in this year’s presidential elections.

Under the federal system of government, marriage is for state legislatures, not the U.S. Congress, to define. Same-sex marriage is prohibited in 30 states and legal in the District of Columbia and 8 states: Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, Washington, and Maryland.

For immigration purposes, however, the law that is applied is the Defense of Marriage Act (DOMA). Marriage under the DOMA must be between “one man and one woman” and a spouse is either a husband or wife “of the opposite sex”.

Because of this definition, gay and lesbian couples who are married, whether in the United States or in a foreign country, are not considered by immigration authorities to be legally married. This means that a U.S. citizen (USC) or lawful permanent resident (LPR) cannot petition his/her same-sex spouse for a green card.

The Obama administration has taken the position that the section of DOMA restricting marriage to heterosexual couples was unconstitutional and announced last year that it would no longer defend it in federal court challenges.

Several efforts have been introduced to repeal DOMA, one of which is the Uniting American Families Act (UAFA). This bill would amend the Immigration and Nationality Act by allowing a USC or LPR spouse to sponsor his/her same-sex partner for immigration to the U.S. Reintroduced in every Congress since 2000, UAFA now has more co-sponsors than ever before.

The Department of Homeland Security has also issued guidelines on prosecutorial discretion. Although the memorandum does not specifically mention gay and lesbian couples, it considers family ties a favorable factor.

Just recently, a lesbian couple in Vermont was saved from separation after USCIS granted a two-year deferred action in the alien spouse’s removal proceedings. A New Jersey immigration judge last year closed the deportation proceedings of a gay man who was married to a U.S. citizen on the motion of the USCIS that it would no longer pursue the foreign national’s removal.

Unfortunately, relief from removal such as administrative closure or deferred action does not grant lawful immigration status. The answer lies in the repeal of DOMA. Until the law is repealed or declared unconstitutional in a final court decision, its provisions would still be enforced. Since the law continues to deny recognition to same-sex marriages, homosexual foreign nationals face a constant threat of deportation.

The humanitarian considerations underpinning the movement for comprehensive immigration reform also support legal recognition of same-sex marriages. A recent study shows that there are 28,500 same-sex bi-national couples in the United States where one party is a U.S. citizen, and an additional 11,500 couples where neither party is a U.S. citizen. The study found that these couples raised nearly 25,000 children.

More than half (53%) of Americans believe that same-sex marriages should be legally valid according to a 2011 poll. With such strong numbers, it is about time for our lawmakers to recognize the need for immigration fairness and equality.

Renting Apartment to Undocumented Immigrant not a Crime

When a landlord leases an apartment to an undocumented immigrant, does he commit the offense of harboring an illegal alien? This question was recently answered in the negative in a case perceived by some to be the latest effort at localizing immigration enforcement.

Bolmer v. Connolly Properties, decided by the Court of Appeals for the Third Circuit, started out as a landlord-tenant dispute. The plaintiff was a tenant at a New Jersey apartment complex which later on fell into disrepair. He complained about overcrowding, inadequate heat, bug and rodent problems, criminal activity, and the apartment management’s failure to make repairs and regularly clean the common areas.

He asserted that the management undertook a scheme of actively seeking out undocumented aliens as tenants because they were perceived to be less likely to complain about poor housing conditions or to report violations. It allegedly allowed the condition of the premises to deteriorate but without offering a reduction in the rent.

The plaintiff alleged that by renting apartments to tenants without checking their immigration status or by knowingly renting to undocumented immigrants, the apartment management was harboring undocumented immigrants which is a criminal offense. The plaintiff sued the landlord under the federal anti-racketeering law, the same law used to target organized crime rings.

According to the court, to constitute harboring the conduct must tend to substantially facilitate an alien’s remaining in the U.S. illegally. Harboring requires something more than just simply renting an apartment to an undocumented alien.

In previous court cases where harboring was found to be present, the defendants were employers who failed to make disclosures required by federal and state law, or were involved in the actual smuggling of aliens into the US, or attempted to warn them about law enforcement, or helped them obtain false documents. The court highlighted that the management did not do any of these things.

Harboring also involves some type of “obstruction” to prevent detection by the government of the alien’s presence. The plaintiff stated that the management shielded the tenants, who were mostly Hispanic, by segregating them into certain buildings.

The court disagreed, saying that the management did not evade any requirement to report the immigrants because landlords have no obligation to do a background check of their tenants. The court noted that by grouping the tenants into certain buildings, the management probably made them more conspicuous.

The court also rejected as without proof the argument that the management encouraged or induced the aliens to reside in the U.S. illegally. Moreover, the court said, the law does not require, and in some places even prohibits, apartment managers to screen potential tenants based on immigration status.

Acknowledging that immigration enforcement is a federal matter, the court added that criminalizing the acts complained might undermine the system of enforcement. It included a reminder that some individuals who lack immigration status may reside in the U.S. often with the express knowledge or permission of the federal government.

The court said that landlords and those in the business of providing accommodations could not have been given by Congress the difficult task of determining a person’s immigration status and be held criminally in case they make a mistake in doing so.

Deportation Relief Denied for Lack of Good Moral Character

Cancellation of removal is a relief available to an alien facing deportation which if granted results in permanent resident status. The applicant must have been in the United States for a continuous period of at least ten years and demonstrate exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident relative.

He must also show good moral character for a period of ten years. Although good moral character is not defined in the law, certain classes of individuals are statutorily disqualified from establishing it.

The list of persons statutorily ineligible includes those who have been convicted of a crime involving moral turpitude; those who have engaged in prostitution, drug trafficking, and alien smuggling; and those who have given false testimony to obtain immigration benefits. If a person committed any of the offenses within the last 10 years, he would not be able to show good moral character.

At the same time, other negative factors can be considered in assessing the applicant’s good moral character, such as prior immigration violations and failure to provide child support.

A case recently decided by the Court of Appeals for the First Circuit illustrates how a good moral character finding is not only a statutory but also a discretionary matter. It also serves as a cautionary tale for those who marry or divorce under circumstances that might indicate that it was a sham or done only for immigration reasons.

That case involved Juan Fernando Restrepo, a foreign national who entered the United States on a visitor visa and then overstayed. He married his wife Maria and they settled in the U.S. with their two children. A few years later, Restrepo moved out and lived separately from Maria and, before their divorce was finalized, his father petitioned him as an unmarried son and said petition was approved.

After the divorce, Maria married a U.S. citizen through whom she obtained her green card. While still married to the U.S. citizen, Maria and Restrepo reconciled and had a third child. Maria eventually divorced her U.S. citizen spouse and remarried Restrepo.

In 2001, Restrepo filed an adjustment of status application on the basis of his father’s preference petition. Immigration authorities discovered that he was married to Maria when his father filed the I-130 petition for him. As a result, they denied his adjustment application and revoked the immigrant visa petition. They also placed him under removal proceedings the very same day.

The removal proceedings were stalled for several years after Maria filed a visa petition for him as the spouse of a lawful permanent resident. When she finally applied for citizenship, the USCIS determined that her marriage to her U.S. citizen ex-husband was a sham and denied her naturalization application.

When his removal proceedings resumed, Restrepo applied for the relief of cancellation of removal. The judge denied the application after finding that he lacked good moral character not only because he committed false testimony but also because he had engaged in a sham divorce. The decision was upheld by the Board of Immigration Appeals.

The immigration judge found that Restrepo gave false testimony during the proceedings regarding the reasons for his divorce from Maria. The judge considered the suspicious timing of the separation (just before his father’s I-130 petition) and the fact that Maria subsequently married a U.S. citizen. His false testimony made him statutorily ineligible for a finding of good moral character.

The judge also noted that he and Maria had their third child while she was married to the U.S. citizen and that they remarried shortly before his adjustment application was denied. The judge found that none of the affidavits and letters submitted in support of the application mentioned any such divorce and remarriage, and not even the church pastor was aware of it although the applicant appeared to be an avid churchgoer.

Abused Spouses and Children Have a Path to Green Card

Many men and women come to the United States in search of a better life but unfortunately find themselves in abusive relationships. The alien spouse and child in such a relationship are especially vulnerable because they lack lawful immigration status or work authorization.

If no I-130 petition was filed by the U.S. citizen (USC) or lawful permanent resident (LPR) parent or spouse, or a petition was filed but it was withdrawn, most of the time the alien spouse and child were left in legal limbo. Sometimes, the abusive spouse or parent would refuse to attend the interview which then led to the denial of the application or petition.

The spouse and children were left without status and, in most cases, there was no other way to get it. Some of them chose to just endure the physical, verbal or sexual abuse rather than leave the home or get help and, in the process, risk deportation.

Congress passed the Violence Against Women Act of 1994 and subsequent legislation to allow abused spouses and children to seek safety and independence. The last congressional extension expired September 30, 2011 but the Senate recently passed a bill to reauthorize the program. Money disbursed before last year’s expiration has been used for the current fiscal year.

VAWA enables the alien spouse and children subjected to abuse or extreme cruelty by a USC and LPR spouse or parent to file a petition on their own behalf, or to “self-petition”.

In a self-petition, the spouse or child becomes both the petitioner and the beneficiary. The spouse may be a current or former spouse. Unmarried children under 21 may self-petition if they were abused by a USC or LPR parent, but they may also be included in the parent’s petition as a derivative beneficiary.

Abuse includes physical abuse (violence or threats of violence) and sexual abuse (sexual assault or rape). Intimidation, verbal abuse, isolation, coercion, extreme jealousy and threats of deportation are forms of extreme cruelty.

The self-petitioner must prove that there was a valid marriage. The marriage must have been entered into in good faith, meaning that the spouses intended to live a life together and not just for immigration purposes.

Good moral character of the alien is also required to be established. Certain types of conduct that would otherwise bar a finding of good moral character are waivable if sufficiently connected to the abuse or extreme cruelty.

For instance, the abused spouse may obtain a waiver for her having engaged in prostitution in the past 10 years if that was part of the abuse or exploitation that she suffered in the hands of her abusive husband.

The alien must have lived with the abusive spouse in the U.S. or abroad, but the alien must be currently residing in the United at the time of the self-petition. If the alien is filing from abroad, the abuse must have occurred in the United States or the USC or LPR spouse must be a U.S. government employee or a member of the armed forces.

The VAWA self-petition may be filed despite remarriage of the alien spouse or death of the abuser. Even a bigamous marriage is no longer a bar to VAWA relief; in such case, the alien spouse is an “intending spouse” if the USC or LPR spouse did not terminate a prior marriage and the alien spouse was unaware of this at the time of marriage.

If the petition is approved and the abuser is a USC, the beneficiary spouse or child becomes immediately eligible for permanent residence. On the other hand if the abuser is an LPR, the beneficiary is placed in a preference list and granted deferred action which makes him/her eligible for work authorization until the priority date is reached.

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