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Ruling on Arizona Law Underscores Need for Immigration Reform

The U.S. Supreme Court has issued its decision on the controversial Arizona immigration law, SB 1070, which was challenged by the Obama administration on federal preemption grounds. Since the ruling allowed one key provision of the law to stand, the need for comprehensive immigration reform is more pressing than ever.

The three provisions of SB1070 that were invalidated by the Court are: Section 3 which makes it a crime to fail to register under a federal law; Section 5(C) which makes it a crime for an undocumented immigrant to perform or apply for work; and Section 6 which authorizes the police to arrest a person based on probable cause that he or she has committed an offense which makes him/her removable.

In striking down these provisions, the Court said that federal law trumped state law when it comes to immigration. The administration chose not to attack the law on racial profiling or equal protection grounds.

The Court upheld Section 2(B), the “show me your papers” provision. It authorizes state police to determine the immigration status of a person who is stopped, detained or arrested. This allows local police to check the immigration status of anyone they suspect to be in the country illegally.

Supporters of SB1070 find this sufficient to declare victory but it must be remembered that the Court made a clear warning in the decision. Although Section 2(B) could not be challenged as written and prevented from going into effect, there may be other preemption and constitutional challenges to the law as interpreted and applied after it becomes effective. The Court also cautioned that detaining individuals for the sole purpose of verifying their immigration status would raise constitutional concerns.

This constitutional challenge is expected by many to follow. The problem with the “papers please” portion of SB1070 is it encourages racial profiling and discrimination. There is a fear that state police, in implementing the law, will base their actions on what people look like or what language they speak. That would be unlawful under federal laws prohibiting racial and ethnic discrimination.

All eyes are not only on Arizona but on other states as well. Five other states have enacted SB1070-type laws and in twenty-four states legislation has been proposed that include at least one of the four controversial provisions. By allowing Section 2(B) to stand, the Court has left the door open for states to pass their own, albeit limited, legislation.

Whatever path the ruling may be said to have paved way for is actually narrow and tricky given the Court’s caveat. Nonetheless, SB1070 and similar laws will be, if they are not already, implemented. Unfortunately, there must first be an actual case of racial profiling before the invidious discriminatory intent of the law merits discussion by the Court. It could be a U.S. citizen who is suspected of being an illegal alien.

Or it could be a DREAMer who already applied for deferred action. It remains to be seen how the new federal directive to grant deferred action to those who came to the U.S. at a young age would be applied in light of Section 2(B). The DREAMer could have been detained by Arizona police a little too long because Immigration and Customs Enforcement (ICE) could not give a definite answer as to his status, maybe because his application is still pending or simply because ICE could not find his application.

Although federal immigration agents have been instructed to use their prosecutorial discretion in determining which individuals to remove from this country, state police can legally make a status check on anyone they suspect as having no lawful status and detain them while doing so.

These examples highlight the need for a comprehensive immigration system. Throwing in a patchwork of state laws into the intricate maze of federal immigration laws makes for a minefield. At the losing end are the individuals with whom, though they may have “crossed oceans and deserts”, we all share a common destiny.

Work Authorization and Temporary Relief for Undocumented Children

Children of undocumented aliens come to the United States, usually at a tender age, without any intent to violate the law. They attend elementary and high school, some even graduating at the top of their class, and many become active members of the community. However, since they often do not have lawful immigration status themselves, they are unable to work legally in this country and they live in constant fear of being deported to a land they never considered home.

In a dramatic but long awaited move, President Obama announced recently that his administration would grant these individuals a form of immigration relief.

The new policy would grant deferred action to young undocumented immigrants who came to the United States as children. For a period of two years, these individuals would be allowed to remain in the United States without fear of being removed and, if they demonstrate economic necessity, would be given employment authorization.

An estimated 800,000 immigrants would be affected by this new policy, which achieves some of the goals of the DREAM Act (Development, Relief and Education for Alien Minors Act) that was defeated in Congress last year.

The policy is not an amnesty and does not offer a pathway to permanent residency or citizenship, which only Congress has the power to do. Deferred action is an act of prosecutorial discretion whereby the government agrees to defer removal action against an individual. It does not give positive legal status but is only a temporary reprieve from removal.

The June 15, 2012 Memorandum from the Department of Homeland Security listed the criteria to be met to be considered for the relief. To be eligible, the individual must have come to the United States under the age of sixteen (16) years; must be present in the United States prior to June 15, 2012 and must have continually resided in the U.S. for at least five (5) years prior to June 15, 2012; is currently in school, graduated from high school, obtained a general education development (GED) certificate, or honorably discharged from Coast Guard or the Armed Forces of the United States; not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise be a threat to national security or public safety; and not be above thirty (30) years old.

If granted, deferred action is valid for a period of two years and may be renewed. Guidance outlining the procedures has yet to be released, but the USCIS has stated that the policy will allow individuals to submit a request for a review of their eligibility and supporting documents. Deferred action will also be available to those already in removal proceedings.

Documentation to prove some of the eligibility criteria (coming into the U.S. before age 16, 5 years of residence, and physical presence as of June 15, 2012) includes financial, medical, school, employment and military records.

Individuals with certain types of criminal conviction will not only be denied deferred action because of ineligibility but in fact also be considered priorities for removal. Those who commit fraud in their deferred action request will also be referred to enforcement authorities.

Executive authority to grant administrative relief lies in Section 103(a) of the Immigration and Nationality Act which places the enforcement of immigration laws with the Secretary of Homeland Security. The executive branch has granted deferred action since the 1970s and federal courts have recognized such power.

An example of deferred action was the deferred departure granted to nurses, mostly from the Philippines, in December 1977. Hundreds, if not thousands, of nurses faced the threat of deportation. Through the efforts of the NAFL-FNG, a Filipino nursing group, which I represented as attorney, nurses were given a temporary relief of up to 3 years. Most of the nurses eventually obtained their green card.

Republican lawmakers, who are quick to cry backdoor amnesty every time President Obama wields his executive power in matters of immigration law, have predictably criticized the new policy as evidence of the president’s refusal to deal with Congress. Actually, in 2010, the DREAM Act was passed by the Democrat-controlled House of Representatives but rejected by the mostly Republican Senate. The bill was first introduced in Congress in 2001 and has been reintroduced every year since.

It will be recalled that more than one year ago after the DREAM Act’s demise, twenty-two Democratic Senators wrote a letter to the president urging him to grant deferred action to DREAM Act-eligible students.

The future of the policy is not guaranteed given that the United States may have a new executive by year-end. GOP candidate Mitt Romney has refused to say whether he would repeal the policy, apparently careful not to alienate the growing immigrant population.

Not all undocumented immigrants who were brought to the U.S. at a young age will be able to, or should, request the relief. If possible, one must seek legal advice before doing so since there are risks associated with the act of presenting oneself to the immigration authorities.

Be that as it may, the option of finally being allowed to contribute productively to society, albeit in a limited measure, should be favorably considered by anyone who meets the requirements. After all, regardless of who occupies the White House, one can always hope that our government will do the right thing.

Visa Refusal under 221(g) May be Overcome

Consular officers do not always issue a decision on a visa application right after the interview. In many cases, they issue a visa refusal under Section 221(g) of the Immigration and Nationality Act. A Section 221(g) refusal means that the officer did not have all of the information required to determine the applicant’s eligibility for a visa.

Although technically a visa denial, a 221(g) refusal means that the case is pending further action, which could be because additional documents are needed or administrative processing is required.

The consular officer issuing the 221(g) visa refusal should explain to the applicant what documents or other evidence are lacking or what procedural steps need to be completed.

Examples of additional supporting documents include police certificates; proof of local employment, particularly for nonimmigrant visa applicants; additional affidavits of support; court records about arrests or criminal convictions; job offer; and tax documents.

Processing resumes after the applicant submits the missing documents or information. The rules allow one year for documents to be submitted. If the applicant takes longer than that, he will need to reapply for the visa and pay the application fee again because the application will have been cancelled.

In cases where the reason for a 221(g) refusal is administrative processing, the consular officer needs to make further investigation or review in order to determine the applicant’s eligibility. Processing of an application that is suspended due to administrative processing may take months, possibly longer.

The additional processing may entail verification of the authenticity of civil documents; sending an investigator to the applicant’s home to look into the legitimacy of a marriage; calling a company to verify the applicant’s employment; checking with a school or university if a diploma was indeed issued to the applicant; and calling the sponsor who signed the affidavit of support on the applicant’s behalf.

In cases where there is already an approved petition such as in H-1B visa applications, if the consular officer discovers in the course of investigation that fraudulent documents were submitted or the beneficiary is not qualified, the officer is not limited to refusing the visa but also recommending to the USCIS that the earlier approved petition be revoked.

A 221(g) refusal is also invoked when an applicant presents security issues. This may be because the applicant resided in certain countries, previously worked for the military, or has the same name as a terrorist. In these situations, the consular officer will put the application on hold until a security clearance or approval is received.

Section 221(g) refusals are actually very common. It was used by consular officers in about 590,000 visa applications in 2008 and in almost a million cases in 2010. These staggering numbers have caused the Department of State to look into the potential overuse of Section 221(g) and urge consular officers to either approve or deny a visa application at the window.

Nonetheless, a 221(g) refusal can be overcome when the consular official receives the requested documents or is satisfied with the applicant’s eligibility for the visa. In 2008, the refusal was overcome in nearly 87% of the cases. In some cases it is possible to seek reconsideration of the visa refusal.

Note that although a refusal under Section 221(g) is a “soft” or temporary refusal, it is still a visa refusal that must be disclosed in subsequent visa applications. Even if a visa applicant was able to overcome a 221(g) refusal, he must still disclose it the next time he applies for a visa.

H-1B Petitions under Increased Scrutiny

As of June 1, 2012, the USCIS has accepted approximately 55,600 H-1B petitions subject to the regular cap of 65,000. Cap-subject petitions were being filed at an approximate rate of 1,800 per day from May 28. The master’s degree quota is also quickly filling up, with 18,700 out of 20,000 petitions already filed.

It is anticipated that H-1B visas for this fiscal year will run out before the middle of June. Employers who are planning to file cap-subject petitions should therefore complete their filings soon to ensure that their H-1B hiring needs are met. Otherwise, new H-1B workers would have to wait until October 1, 2013. Employees who already hold H-1B status are generally not counted against the cap and a petition to extend their status can be filed anytime.

A USCIS memorandum released to the public recently serves as a reminder to employers to be careful in completing the requirements for their H-1B petitions.

In the Memorandum dated October 21, 2008, adjudication officers are instructed to review more closely the H-1B filings of certain types of petitioners for possible fraud or violation of law. Petitioners with a gross annual income of less than $10 million, or which employ 25 employees or less, or whose business was established within the last 10 years, have been found to be more likely to have engaged in fraud or technical violations (also referred to as the “10/25/10” formula).

If a petitioner has two out of three attributes in 10/25/10 formula, the adjudication officer is directed to refer the petition to the fraud detection unit if there is at least one other misrepresentation in the petition, such as: fraudulent information or forged documents; if the business is found to be non-existent (based on an independent review that reveals fake or inconsistent addresses, questionable organizational chart, business zoning inconsistencies, and website information); or if the evidence of the job duties or the beneficiary’s qualifications is questionable (e.g., unsigned work experience letters, missing addresses and telephone numbers, and discrepancies in the beneficiary’s skills, education or age).

Regardless of the presence of any of these factors, if a petitioner has been referred to investigation by the Immigration and Customs Enforcement (ICE), or if the petitioner or alien is the subject of an ongoing ICE investigation, the guidance states that the petition must be referred to the fraud detection or background check unit.

It also identifies several ways by which petitioners who meet the 10/25/10 formula commit technical violations. Among the red flags listed are the following: physical job location is not listed on the I-129 form or on the labor condition application; mismatch between the salary and the prevailing wage; and misrepresentations on the beneficiary’s immigration status.

The USCIS also pays attention to any inconsistency between the offered job and the normal activities of the business, as well as between the facility and the type of work to be performed (e.g. petitioner claims to have 100 employees but the facility is in a residential zone).

In these cases of possible technical violations, the adjudication officer cannot approve the petition until the potential violation of law is resolved through a request for evidence, intent to deny or intent to revoke.

The memorandum sheds light on the agency’s review process and probably explains the increased H-1B denials despite the absence of any change in the law. It was made public as a result of a lawsuit under the Freedom of Information Act.

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