February 2013

Immigration News + Analysis

Maggio + Kattar

11 Dupont Circle NW, Suite 775
Washington, DC 20036
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E-Verify is not a requirement to comply with the Immigration Reform and Control Act. Only a timely, complete, and correct Form I-9 is a requirement. Therefore, while E-Verify may provide a greater measure of confidence to employers that the documentation provided by employees to satisfy the Form I-9 is valid, it does not make employers "more compliant." E-Verify is required for employers in some states and for certain Federal Contractors. However, these employers must then ensure compliance with a second layer of requirements while also ensuring Form I-9 compliance.  

E- Verify is very easy for organizations to enroll in. How easy it is to integrate into your organization's operations and ensure consistent and compliance practices is an entirely different matter. Employees performing review of documentation will need access to enter information within the three-day limit. These employees must also be trained and retrained regularly and there must be a system in place for oversight and audit to ensure compliance and consistent practices.  

Unfortunately, it is possible for confirmations and non-confirmations from E-Verify to be incorrect. While accuracy is improving, there is still some error in the DHS and Social Security databases. E-Verify will not root out identity theft and it does not contemplate situations where workers may find themselves without updated records in SEVIS.

Many employers who are not required by law to enroll in E-Verify, nonetheless, find E-Verify to be a helpful tool. However, organizations must carefully consider how E-Verify will, or will not, work with their current on-boarding processes and be aware of the risks associated with implementing a second layer of compliance. Policy and consistent practice for the resolution of disputed non-confirmations for employees must also be developed, maintained, and audited. If you are considering E-Verify for your organization, contact your attorney at Maggio + Kattar to be sure you've developed a workable implementation plan that contemplates the business realities of your organization.

The discussion regarding comprehensive immigration reform continues to make headlines with proposals coming from both parties in both houses of Congress as well as the White House. On January 29, 2013, President Obama issued a document outlining his proposals for reform. Around the same time, a group of eight senators issued a bipartisan framework for reform.

The common pillars of the President's and senators' proposals include strengthening border security, creating a pathway to citizenship for undocumented workers, creating an effective employment verification system, and streamlining and reforming our legal immigration system. Both plans recognize the importance of eliminating the backlogs in family and employment based immigration. They emphasize that immigrants who earn a Master's degree or Ph.D. in science, technology, engineering, or math (STEM) from a U.S. university should be awarded green cards. Both plans also recognize that individuals brought to the U.S. as children should be subject to less stringent requirements in obtaining legal status. However, the proposal from the eight senators is somewhat more restrictive than President Obama's, in that the senators are calling for enforcement measures to be complete before an immigrant on probationary status can earn a green card.

 

President Obama's plan also contains a welcome proposal for fixing many of the less-discussed but still problematic areas of our immigration system. For example, President Obama's plan mentions investing in the nation's overburdened immigration courts, revising the current unlawful presence bars, and providing more discretion to waive these bars in cases of hardship. President Obama's plan also emphasizes the importance of allowing a U.S. citizen to petition for a same-sex partner. Finally, President Obama's plan makes an intriguing reference to eliminating the existing limitations that prevent qualified individuals from applying for asylum, which likely refers to eliminating the one-year filing deadline for asylum applicants.

 

In another development in the Senate, Senators Hatch (R-Utah), Klobuchar (D-Minn.), Rubio (R-Fla.), and Coons (D-Del.) introduced the Immigration Innovation Act of 2013 (known as the I-Squared Act) which provides reform in the area of high-skilled immigration and provides for additional employment-based green cards without taking green cards away from other categories. Notably, this bill increases the number of available H-1Bs per fiscal year and establishes a market-based H-1B adjustment process, among other key provisions.

There has been arguably less progress in the House of Representatives. Three new, single issue focused immigration reform bills were introduced in the House by Representative Darrell Issa on February 4, 2013. One entitled the "STEM Jobs Act" would transfer the 55,000 immigrant visas from the diversity visa program for use by foreign students that have received an advanced STEM degree. The "Fallen Heroes Family Act" would create the "W" non-immigrant visa category status for a foreign national parent or guardian of a U.S. citizen child born outside of the country when the deceased parent was an active-duty service member of the U.S. military. Finally, the "Criminal Alien Accountability Act" would impose mandatory minimum sentences on aliens that reenter the United States without authorization after having been removed for committing crimes in the United States.

 

The House Judiciary Committee held its first substantive hearing on immigration reform on February 5, 2013. Much of the focus of the discussion was on border security. Some observers also expressed concern that the House may endorse a plan that does not lead to a full pathway to citizenship for undocumented workers. The Senate Committee on the Judiciary held its own hearing on February 13, 2013, which featured testimony from Homeland Security Secretary Janet Napolitano and Jose Antonio Vargas, a former journalist who unveiled his undocumented status in the New York Times.

 

In the State of the Union address, President Obama discussed the importance of passing comprehensive immigration reform in the next few months. He spoke of the need for strong border security, a pathway to earned citizenship, and fixing the legal immigration system. He urged Congress to send him a comprehensive immigration reform bill for his signature. Following the State of the Union address, it was revealed that White House officials had sent copies of a draft proposal for legislation to officials in immigration agencies. According to the draft plan, undocumented immigrants who qualify for legalization would have to wait to be granted permanent resident status until the earlier of two dates: either eight years after the bill is enacted or 30 days after everyone who applied legally has been granted a green card. President Obama faced some criticism for not allowing Congress to proceed first with its discussions.

 

While there will still be a significant amount of work required before any legislation is passed, the good news is that there appears to be agreement between the parties on the need for reform of the employment based immigration system as well as a path to some type of legal status for the nation's undocumented. Maggio + Kattar will continue to monitor legislative developments and provide further details as they become available.

United States Citizenship and Immigration Services (USCIS) will start accepting H-1B cases subject to the annual H-1B cap beginning on Monday, April 1, 2013 for an October 1, 2013 start date. Most H-1B petitions are subject to an annual 65,000 numerical quota, with an additional 20,000 slots available for individuals with a U.S. master's degrees or higher.

If USCIS projects that the number of petitions filed will exceed the quota  - in recent years it has taken several months to fill all quota numbers (June 2012 for FY 2013 and November 2011 for FY 2012) - USCIS will announce a final receipt date and may also conduct a random selection. Of course, many H-1B petitions are exempt from the cap, including those on behalf of H-1B workers previously counted against the cap. 

 

Based on improving economic conditions and increased hiring, it is possible that the H-1B quota will be exhausted in the first few weeks of April. Once this occurs, there will be no H-1Bs available for cap-subject employers prior to an October 1, 2014 start date.

 

Advance planning is especially critical since a required component of H-1B petitions, the Labor Condition Application (LCA) filed with the U.S. Department of Labor (DOL), takes up to seven days to be processed.

 

If you have any questions about how the H-1B quota may impact your foreign national population, please contact us.

De Osorio v. Mayorkas. In De Osorio, the Court found that some of these individuals' second bite of the apple will enjoy the better spot in the waiting line that they had with the first bite. In doing so, the Ninth Circuit joins the Fifth Circuit (Khalid v. Holder) in arguing for broader reach in these cases and disagrees with the Second Circuit (Li v. Renaud), providing a challenging landscape for immigration attorneys and clients alike.

 

The individuals positively impacted by the De Osorio decision can best be termed "derivative-turned-direct" (DTD) beneficiaries. These individuals were derivative beneficiaries on petitions filed by married sons or daughters of U.S. citizens over 21 and siblings of U.S. citizens which allow minor children of the principal beneficiary to be included as derivative beneficiaries. In one situation (3rd), the petitioners are the grandparents (the parents of their parents), and in the other situation (4th), their uncle/aunt (the siblings of their parents). The I-130 immigrant petition for this initial case gets approved, but due to the long visa number waiting times, the final step in the process does not get completed before the derivative turns 21. That means the derivatives' parents become permanent residents, but the derivatives do not.

 

These derivative beneficiaries, now over 21, turn into "direct" beneficiaries when their parents, now permanent residents, become the petitioners and file I-130 petitions directly for them under the family-based 2B ("F2B") category (petitions are for sons and daughters (over 21) of lawful permanent residents). However, the priority dates of these second cases, absent coverage by the CSPA, would not be automatically converted into the priority dates of the initial cases. That costs the derivatives even more time - over and above the headache of requiring a second family-based immigrant visa petition.

 

The court decision in De Osorio focused on:

1. The CSPA has three functional sections. The first allows subtraction of the number of days an immigrant petition is pending from a child beneficiary's actual age. The second tells us the universe of cases to which the "subtraction formula" applies - basically, all family-, employment-, and asylum-based cases. The third tells us that the priority date of the petition for any child beneficiary who has still aged out, despite the subtraction formula, converts to the priority date of any original petition for that beneficiary.             
2. The plain meaning of the CSPA essentially gives us a "transitive property of equality" of sorts that links all three sections. Specifically, because the automatic conversion clause in the third section applies to any case using the subtraction formula in the first section, and because the first section applies to all the types of cases listed in the second section, then all the types of cases listed in the second section apply to the automatic conversion clause in the third section. The three sections must be read together in context, not as each section applying to different types of family-based cases.              
3. The Court noted that CSPA could not have been intended to restrict the automatic conversion clause to family-based 2A ("F2A") preference cases (these petitions are for spouses and minor children, under 21, of lawful permanent residents). These cases automatically turn into F2B cases (which carry the same petitioner, unlike the DTD ones). If it had wanted to so, the Ninth Circuit found, CSPA would have contained restrictive language in the automatic conversion clause, as it did with the previous regulation covering F2A-to-F2B. The Court also did not agree that the "same petitioner" only argument for automatic conversion; it noted that if it allowed an F2A-to-F2B case under the existing regulation, which required a new petition, then there would be no greater agency burden to do the same for DTD beneficiaries in F3 and F4 cases (which are, similarly, new petitions).            
4. Because the plain language is unambiguous, the court noted that it does not have to defer to the immigration agency's interpretation espoused in the Board of Immigration Appeals case, Matter of Wang. Again, this position is at odds with the Fifth Circuit's decision.            
5. Going against the finding of the majority of the court, the dissenting judges found: (a) That the plain reading of the automatic conversion only means that the same petitioner must be on both cases; and, (b) That the ambiguity in the words "original petition" in the conversion clause means that the agency should get deference, meaning Matter of Wang (which closes off applicability to F3 and F4 DTDs) would still apply. Another persuasive policy argument is that the CSPA was only meant to address waiting times due to the administrative delays in processing paperwork, not the lengthiness of the priority date backlogs; the De Osorio decision ameliorates the latter problem and does not even assume the former one.

So, what now? The Ninth and Fifth Circuits have decided that the CSPA extends to DTD beneficiaries; the Second Circuit (and essentially the other circuits, by lack of other case precedents are still bound by Matter of Wang) found that it does not. Although the decision, by its nature, reaches a fraction of the class of beneficiaries stuck in the longest lines of the family-based immigration process, it is a tempting question for the Supreme Court. Interestingly, the appropriate agencies have not issued guidance in the wake of the De Osorio decision, suggesting that they may be anticipating further judicial review.

 

      * Maggio + Kattar thanks Shane Dizon, Visiting Assistant Professor, and Anand Sinha, a third-year law student at the Maurice A. Deane School of Law at Hofstra University's  for this update on the current status of CSPA.

In Canada, Citizenship and Immigration Canada (CIC) plans to unveil its new start-up visa for entrepreneurs on April 1, 2013. The startup visa is part of several changes being undertaken by Citizenship and Immigration Minister Jason Kenney in an effort to use the immigration system to facilitate economic growth in Canada. Under this new initiative, visas would be issued to people identified by venture capital funds as candidates to create startup firms in Canada and the venture funds would be required to invest in the startups. Once the venture investment funds choose entrepreneurs to invest in, the government would try to clear them for entry into Canada within weeks. Under the existing entrepreneur visa, an immigrant is only required to hire one person for one year. The government will set aside 2,750 visas a year for startup entrepreneurs and their families. In comparison, the government issued 700 visas last year under the old entrepreneur class. The government is also expected to set up external safeguards and spot checks to ensure that the venture funds are investing as promised.

Technology does not always make our lives easier.  Such is the case with many "auto-fill" and document prompts in I-9 software.  U.S. Immigration and Customs Enforcement has indicated that it views certain auto-fill and document prompt functions as not compliant with the regulations.  For example, an electronic I-9 system should not auto-fill the issuing authority based on information provided for other lines on Section 2 of the Form I-9, nor should it prompt for certain documents based on the status indicated by the employee in Section 1. For more information on the use of an electronic system to support your I-9 compliance efforts, contact the immigration professional with whom you work at Maggio + Kattar.

USCIS has noted that petitioners and applicants may experience a 30 to 45 day delay in the appearance of their case information via the agency's online system. The front log is alleged to be linked to the volume of applications that USCIS receives.

Citizenship and Immigration Canada (CIC), in cooperation with the Royal Canadian Mounted Police (RCMP) and the Canadian Border Services Agency (CBSA), confirmed that citizens of 29 nationalities and one territory will be required to submit their fingerprints and digital photograph at Visa Application Centers (VACs) throughout the world. Canadian authorities are in the process of opening several new VACs worldwide to handle the increased volume in applications. The submission of biometrics by applicants from affected countries will occur at the outset of the visa application process. The RCMP in Canada will then check the applicant's fingerprints against domestic and international databases. As long as the biometrics check does not produce adverse information, the applicant's visa application will be allowed to proceed.

 

This biometric requirement applies to all work, study and visitor visa applications. However, applicants under the age of 14 and over the age of 79 are exempt from this requirement. This new requirement is part of Canada's effort to decrease identity fraud and security risks in the visa application process and at Canadian port of entries.

 

Important Changes to Visa and Immigration Services Provided by Canadian Consular Posts

 

According to Operational Bulletins released by CIC, there will be a cessation of Visa and Immigration (V&I) services at its consular network in South Korea, the United States, and Venezuela. This is a comprehensive effort by the CIC to streamline the V&I delivery process.

 

What this means for the continental United States is a reduction in the number of Canadian consular posts. All Temporary Resident Visa (TRV) applications filed in all U.S. states and territories west of the Mississippi River may continue to be filed either by mail or personal appearance with the Canadian Consulate in Los Angeles. However, as of November 19, 2012, the Consulate no longer allows in person appearance to request the status of an application or request return of documents. All original documents will be returned by U.S. mail, thus increasing overall processing times to receive business or tourist TRV's and the processing of work authorization applications filed with the Consulate. The current list of VAC's can be found here.

Maggio + Kattar will hold its fifth annual Founders' Day benefit on April 10, 2013 at the Pepco Gallery in Washington, DC to support the work of Empowered Women International (EWI).   The benefit will highlight the work of EWI graduates in the fields of the culinary arts, fine arts, and music, including catering by Aida Mady, fine art by Nadia Janjua, and music by Tacha Coleman Parr. All proceeds of the event will benefit EWI and tickets can be purchased through their website for $40/individual or $75/couple. In addition, individual sponsorships ($150) include recognition in the program and two tickets, and corporate sponsorships ($250) include recognition at the event and in the program, and as two tickets to the event.

 

Maggio + Kattar shares EWI's belief in a world in which immigrant and refugee women in the United States and around the world are treated with respect and dignity, valued, and rewarded fairly for their skills, talents, and labor. EWI and its members and supporters join in supporting the extraordinary power of the arts as a unifying language of communication and multicultural understanding, and a vehicle of integration for newcomers. The organization delivers a holistic model of empowerment through entrepreneurship training, business mentoring, and community service, that builds women's confidence, business, and leadership skills. Its comprehensive three-month training program, Entrepreneur Training for Success (ETS), coupled with a year-long mentoring, marketing support, and civic engagement, helps entrepreneur graduates create pathways to self-sufficiency and citizenship.

 

EWI uses the power of the arts, entrepreneurship, women's voices, and their cultural heritage to empower women and transform their lives. Since its beginning in 2001, EWI served over 2,500 women, provided 600 women with business and career coaching, mentoring and support services, and launched 115 new start-up businesses of which 70% are still in operation. The Catalogue for Philanthropy recognized EWI this year for the second time as "one of the area's best small charities."

 

To join Maggio + Kattar in celebrating EWI and for an evening of art, music, and great food, please click here. 

Immigration Community Forum on "Combating Notario Fraud in Our Community." The forum will be held on Tuesday, March 19th from 9am until 11am. With recent developments such as the provisional unlawful presence waiver and Deferred Action for Childhood Arrivals, and the possibility of immigration reform on the horizon, the immigrant community has never been more vulnerable to the dangers of notario fraud. This panel will discuss how we can work as a community to prevent notario fraud and how victims can seek redress in their immigration cases and through civil litigation. The discussion will be led by a panel of experts engaged in the fight against notarios, including:  Michelle Singleton, AILA Practice and Professionalism Center Coordinator and content manager of the website, StopNotarioFraud.org; Michelle Mendez, Senior Attorney at Catholic Charities and AILA Unauthorized Practice of Law (UPL) Committee Member; and Bryan Cave LLP, Consumer Protection Team, leading the charge in civil litigation against notarios. Meg Hobbins, Maggio + Kattar Attorney and member of the AILA UPL Committee, will moderate the discussion. Please join us in our 5th Floor Conference Room at 11 Dupont Circle, Washington, DC 20036 for a continental breakfast followed immediately by the forum. RSVP by email to: events@maggio-kattar.com.  

Join Maggio + Kattar Senior Attorney Monique Van Stiphout at the DC Bar's Continuing Legal Education Course on "Employment and Immigration Compliance in 2013: Are You Audit-Proof?" The course will be held on Tuesday, February 26, 2013 from 5:30pm to 8:45pm. To register or learn more, click here.

 

Anna Gallagher spoke on Abriendo Puertas on Radio America, 1540 AM on February 5th at 3:30pm and answered questions about some of the current proposals for Comprehensive Immigration Reform.

 

Jim Alexander lectured to law students at Penn State University on February 6th on business immigration as part of an Introduction to Immigration Law course.

Maggio + Kattar provides Immigration News + Analysis as a service to its clients and friends to highlight and provide opinions on changes within the field of immigration and nationality law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel.


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