US citizens often consider access to an attorney a given and as a result, many citizens may not know that those going through the immigration process may not have that same right.  The Department of Homeland Security has received pressure by immigrant rights groups like the American Immigration Council and the American Immigration Lawyers Association to ensure that immigrants trying to navigate the complex waters of the American immigration system have access to adequate legal council. US Citizenship and Immigration Services is beginning to make changes to do just that.

Many immigrants cannot afford to hire a private attorney, but even those who can or are provided with a pro bono attorney do not have the same level of representation as one may expect. Given the challenging nature of the process and the fact that USCIS officials can use their authority in a significant way, having an attorney present that can help determine when questioning is inappropriate is very important.

USCIS Revises its Standards

Until now, immigrants were not permitted to have an attorney with them during their interview with a USCIS official. Attorneys will also be able to provide USCIS officials with documentation to help their clients’ cases. Many immigrants complain that they don’t know when questioning goes beyond what is allowed. Now, attorneys will be able to object when these situations arise.

While the new guidelines are being implemented, the American Immigration Council will be making sure that the rules are being adhered to. It is yet to be seen whether or not the other arms of immigration enforcement will follow the lead of USCIS is opening up immigrant access to attorneys.

Currently, there is an immigration law that makes the process for becoming a legal permanent resident (LPR) difficult even if you are the spouse or child of a US citizen. The Obama administration is working with the Bureau of Citizenship and Immigration Services to streamline this system.

There are scenarios under the current setup that eliminate the bar, but immigrants have to show that their delayed re-entry would cause an “extreme hardship” to a United States citizen and this is a difficult standard to attain. If it is shown that an extreme hardship would exist, a waiver can be obtained, but even in these circumstances, the immigrant has to return to their home country for at least three months in order to wait for the waiver to be approved. And what if the waiver is not approved? Families are separated for years.

As a result, the risks often outweigh the rewards and many immigrants decide not to apply for legal permanent resident status and choose to live out of status.

New Changes to the Immigration Law Proposed

If the proposed changes are signed into law, there will be two major effects. First, it would keep family members from having to return to their home country before applying to become an LPR. As a result of this change, it should encourage those currently in the country who are not in status to come forward to become LPRs. Currently, most immigrants who are eligible to become a legal resident with a green card are required to their home country before applying for the visa that grants the green card. Once this takes place, they are barred from reentering the US for anywhere from three to ten years and family members are separated for years. As a result, thousands of immigrants who currently qualify to become legal permanent residents are not coming forward.

Citizenship and Immigration Services has recommended that immigrants should be given a provisional waiver when they come forward to apply for legal status. With a provisional waiver in hand, an immigrant could be confident that the delay between returning to their home country and coming back to the US would be limited. In addition, further changes would streamline the process, reducing the wait even more.

While the new legislation is currently being put together, the implementation of any changes is likely to take at least until the end of the year.

The Process for Changes to the Current Law

The Obama administration sees these alterations in the law as a win-win. They would encourage those currently living in the shadows to come forward and become legal residents and it would lessen the burden on American families who want to follow the law. The White House has been looking for a way to make immigration changes with a contentious Congress.   Obama supports changes to the immigration system that would give legal status to millions of undocumented immigrants, but that will have to wait. In the meantime, immigrant advocates like those with the American Immigration Lawyers Association and American Families United will have to be happy with the proposed changes.

Legal Assistance Required?

If you are a US citizen with a spouse and/or children who are undocumented, please call 949-228-3922 for a free consultation to determine how best to apply for legal permanent resident status.

If you have been paying attention to the GOP primaries, you may have heard a new term: “self-deportation”. The idea behind self-deportation is that if the government makes conditions bad enough for undocumented immigrants in the US, they will voluntarily return to their home country. It is an idea that has been espoused by those pushing for extreme immigration policy for some time–the idea is that there will be attrition of the undocumented through enforcement of tough immigration policies.

Mitt Romney recently explained the whole idea of-self deportation saying, “If people don’t get work here, they’re going to self-deport to a place they can get work.” This is not an entirely accurate description of self-deportation in that it doesn’t stop at denying work to unauthorized immigrants. The strategy goes so far as to deny education, transportation, water, and housing to those without documentation. Different aspects of this policy have already been embodied in certain states’ laws and they have served to undermine basic human rights and devastate local economies. The laws put undue pressure on employers, lawful immigrants and the police.

In addition to all of this, the laws are ineffective:

1) According to a RAND Corp. study, fewer Mexican immigrants returned to Mexico from the US in 2008 and 2009 compared to 2006 and 2007, despite the fact that the economy in Mexico was improving and while the economy in the US was weakening.

2) According to the Pew Hispanic Center, somewhere around 2/3 of the 10.2 million undocumented adults in the US have been here for more than 10 years around half have school-aged children. The likelihood that these adults would self-deport seems low.

3) According to the Urban Institute, laws aimed at causing self-deportation will have a slow impact, making it very difficult to judge if they are effective or if migration is caused by other factors.

Attrition through enforcement is not only an ill-conceived policy, it is inhumane. The United States needs our politicians to take a holistic and thoughtful approach to the immigration issue. Self-deportation does not fulfill that need.

Traveling to Mexico, Canada or the United States’ Adjacent Islands as an F-1 or J-1 Visa Holder

Applicable Rules to International Students in the US with an F-1 or J-1 Visa

Within this post, we will discuss travel to Canada, Mexico and the “Adjacent Islands” as an F-1 or J-1 visa holder. In this context, “adjacent islands” refers to the following: Trinidad and Tobago, St. Pierre and Miquelon, Jamaica, Martinique, Haiti, the Dominican Republic, Bermuda, Barbados, the Bahamas, Anguilla, Antigua, Guadeloupe, Nevis, St. Kitts and The British Virgin Islands, Dominica, Grenada, St. Lucia, St. Vincent, as well as other British, French or Dutch territories or possessions in or bordering the Caribbean Sea.

Options for Automatic Visa Revalidation when Reentering the US

If you are a nonimmigrant with F-1 or J-1 status, you and your F-2 or J-2 dependents will be able to reenter the US from Mexico, Canada or the Adjacent Islands with an expired US nonimmigrant visa stamp as long as you were not out of the country for more than 30 days. Keep in mind that this is generally not recommended if you are returning from your home country. If you are traveling to your home country with an expired F-1 or J-1 visa, it is best to apply for a new visa while you are in your home country. If you are returning to the US from your home country, you may face difficulties with an expired F-1 or J-1 visa even if you have your original I-94.

Requirements for Automatic Visa Revalidation

1. You must have possession of the following documents when you reenter the US in order to be eligible for Automatic Visa Revalidation: 

• A valid passport
• A valid I-20 or DS-2019 (formerly called an IAP-66)
• The expired visa stamp or USCIS approval notice (Form I-797) if your I-94 card is from a change of status
• Your most recent I-94 with an expiration of D/S, which stand for “Duration of Status”

2. As mentioned above, you may only have visited the countries identified for a maximum of 30 days.

3. You still qualify for J or J status and have an intention to resume that status upon your return to the US.

4. You have not applied for a new visa while abroad. If you have applied for a new visa abroad, you will not be able to return to the US unless and until that visa is approved. It is even more risky to do this if you may be subjected to an extensive security check. If you face the situation in which your visa request is denied, you will have to return your home country and apply for a new visa there.

Nationalities Ineligible for Automatic Visa Revalidation

Automatic Visa Revalidation is not available to you if you are an Iranian, Syrian, Sudanese, or Cuban national. In this case, you will need to follow the normal procedures for renewing your F-1 or J-1 visa. While nationals of Iraq and Libya were recently removed from this list of those ineligible for automatic visa revalidation, but because automatic revalidation is at the discretion of the border official, it is more likely that you will face difficulties at the border.

All information regarding visa revalidation can be found in the Code of Federal Regulations, 22 CFR Section 41.112 (d), and 8 CFR Section 214.1 (b). These regulations are available online.

Of all of the individuals in deportation proceedings between July and September 2011 in ICE’s more than 50 immigration courts, only 7,738 (or just under 14%) were charged with having engaged in criminal activities. This is down from about 16.5% during 2010.

Not only has the proportion dropped since 2010, the numbers have been decreasing throughout 2011, from 15.8% during the first quarter of the year to 15.1%, 14.9% and 13.8% in the subsequent quarters. This is all based on information provided by the Executive Office on Immigration Review (EOIR) as a result of a Freedom of Information Act request by the Transactional Records Access Clearinghouse at Syracuse University. These same records show that during 2011, ICE began deportation proceedings against 188,770 individuals who were only being charged with immigration rule violations which is 83.4% of the total number of cases. This percentage is higher than the 81.9% of the same kind of cases held in 2010.

In terms of individuals targeted on national security or terrorism grounds, the number fell from 42 in 2010 to 30 in 2011.

As a result of all of this data, Syracuse has put out a powerful new tool that allows you to look at immigration enforcement patterns by state, Immigration Court and hearing location. All of this information can be found at http://trac.syr.edu/phptools/immigration/charges/deport_filing_charge.php. The site amalgamates information for years 1992-2011.

All of this information allows us to evaluate how well ICE’s actions are matching up with its announced priorities and policies. Is the prosecutorial discretion that has been espoused really making a difference? How do those being targeted in proceedings fall into the categories enumerated in ICE policy memos? What kinds of crimes are those being deported actually charged with?

All of this data seems to stand in stark contrast to the White House’s announcement (seen here: http://www.whitehouse.gov/blog/2011/08/18/immigration-update-maximizing-public-safety-and-better-focusing-resources) that, “Under the President’s direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States.”

ICE REFUSES TO RELEASE DATA CONCERNING DEPORTATIONS

ICE could clear up any discrepancies that are being found between word and action, but so far they have refused to do so. ICE has resisted responding to the FOIA requests that have been issued, quite possibly because the evidence would not help their position and stated intentions. In addition, the White House may have to look at its policies in the face and justify the difference between its directives and how those directives are being carried out.

Given all of this evidence, how can ICE boast about closely matching the announced priorities of targeting criminals and those who pose a national security risk? They do so in their October 18, 2011 press release found here: http://www.ice.gov/news/releases/1110/111018washingtondc.htm

ICE has been challenged to provide the numbers that back up these claims–these numbers have not been provided.

How ICE will respond to building pressure to follow the new “priorities” they have set out for themselves remains to be seen.

The H-1B program allows U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. These businesses must meet a variety of qualifications in order to bring foreign workers into the US under this program. In addition, there is a limit as to how many people can qualify for the H-1B program. This is known as a “cap”.

How USCIS Determines if an H-1B Petition is Subject to the Fiscal Year 2012 Cap

By looking at the information in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement, it can be determined whether a petition was subject to the H-1B cap of 65,000. Some petitions are exempt from the cap, such as those applying with an advanced degree like a US master’s degree. Even within this exception, there is a cap though and once the cap is met, those applying with an advanced degree will be counted against the general cap.

Fiscal Year 2012 H-1B Cap Count

As of November 22, USCIS received a sufficient number of petitions to reach the statutory cap for the year. By October 19, USCIS had received more than 20,000 petitions under the advanced degree exemption. As such, USCIS will reject all further cap-subject petitions received after November 22. USCIS will continue to accept cap exempt petitions, DOD petitions and Chilean and Singaporean H-1B petitions.

H1-B Cap Amounts

Currently, the annual cap on the H-1B category is 65,000. Of these 65,000 visas, up to 6,800 visas are set aside from the cap each fiscal year under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. If, at the end of the fiscal year, there are unused visas, they will be made available for H-1B use for the next fiscal year.

Ensure USCIS Considers Your Petition Is Properly Filed

USCIS continues to accept H-1B petitions that are not subject to annual numerical limitations. For example, H-1B amended petitions,  H-1B extensions for individuals who have already been counted against the cap within the last six years, DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2012 are all free from the annual cap.

In order to ensure that your petition is properly filed, please comply with the following guidelines:

• Make sure you complete all sections of the Form I-129 petition, including the H Classification Supplement to Form I-129 and the H-1B Data Collection and Filing Fee Exemption Supplement. USCIS accepts Form I-129 with a revision date of November 23, 2010, or later.
  • Original signatures, preferably in blue ink in order to differentiate from the type, are required on each form.
• Include a signed check or money order and ensure that the fee is made for the correct amount.
• In order to ensure timely processing, include all required documentation and evidence with the petition at the time of filing.

It is the petitioner’s responsibility to ensure that Form I-129 is completed accurately.  Failure to complete Form I-129 with the correct information and provide the required fees or documentation may result in the rejection or denial of the H-1B petition.

Additionally, make sure that you are filing the petition at the correct USCIS Service Center. You can find the Service Center that serves your area on the USCIS website.

Additional Documents That Must Be Submitted With Your Petition

Labor Condition Application (LCA)

A certified Department of Labor (DOL) LCA (Form ETA 9035) must be submitted at the time of filing your petition.  A photocopy of the LCA is acceptable.

USCIS encourages petitioners to consider DOL LCA processing times when preparing the H-1B petition and to plan submission of your petition with this in mind.  If the LCA certified by DOL is for multiple positions, you must provide the name and USCIS case receipt number of any alien who has previously utilized the LCA.

Make sure that the petitioner has signed the LCA prior to the LCA being submitted with the petition to USCIS.

You can check the Department of Labor’s Office of Foreign Labor Certification website for more information.

Include Evidence of Beneficiary’s Educational Background

All evidence of the beneficiary’s educational degree must be submitted at the time of filing.  If the physical degree has not yet been awarded, but all of the requirements for the degree have been met, the following alternate evidence may be submitted in place of the degree:

• A copy of the beneficiary’s final transcript; or
• A letter from the Registrar (or person with control over student records) confirming that all of the degree requirements have been met.

If you are indicating that the beneficiary is qualified based on a combination of education and experience, please provide substantiating evidence at time of filing.

A Duplicate Copy of the H-1B Petition

A duplicate copy of your H-1B petition must also be submitted at the time of filing if the beneficiary will be seeking nonimmigrant visa issuance abroad.  It is not the responsibility of USCIS to make a second copy if one is not provided.

A duplicate copy of the petition may also be submitted, even if the beneficiary is requesting a change of status to H-1B or an extension of stay in case the beneficiary later decides to seek visa issuance abroad or the H-1B petition is approved but the beneficiary’s concurrent change of status or extension of stay request is denied.

The Department of State’s website has all of the information needed to ensure that the consulate indicated on Form I-129 is able to process the beneficiary’s nonimmigrant visa application and any other consulate-specific special instructions.

Multiple or Duplicative Filings

As of March 19, 2008, an interim final rule on H-1B visas was issued that prohibited employers from filing multiple or duplicative H-1B visas for the same employee. In order to make sure that H1-B visas are distributed fairly and in an orderly fashion, USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

Mailing Your H-1B Petition

As previously mentioned, it is important that you file your petition at the correct Service Center. This will be dependent upon the jurisdiction of the H-1B beneficiary’s work location as specified in your petition.  USCIS has established specific mailing addresses for purposes of identification and processing of H-1B cases.

To determine which jurisdiction you are in, see the USCIS Direct Filing Addresses for Form I-129, Petition for Nonimmigrant Worker.

Certain educational or nonprofit organizations which file H-1B petitions on behalf of beneficiaries that are exempt from the H-1B numerical limitations. have a separate mailing address.

It is important that you read the filing instructions very carefully.  If you file your petition incorrectly, the petition will be rejected and will not retain a filing date.

Required Fees for Different H1-B Petitions

The type of H-1B petition you are submitting will determine how much the fee is for your submission.  Please refer to H-1B Data Collection and Filing Fee Exemption Supplement found on pages 17-19 of Form I-129 for detailed instructions on fees.

The base filing fees for an H-1B petition is $325.

American Competitiveness and Workforce Improvement Act of 1998 fee:

This information is found in the H-1B Data Collection and Filing Fee Exemption Supplement, Part B:

• $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
• $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection fee:

• $500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers. This does not apply to Chile/Singapore H-1B1 petitions.

Public Law 111-230:

• $2,000 to be submitted by a petitioner which employs 50 or more employees in the United States where more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status.
• must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers

Premium Processing fee:

• $1,225 for employers seeking Premium Processing Service

Use of Checks

If you are using a check to pay your fee, make checks payable to the Department of Homeland Security or U.S. Citizenship and Immigration Services, dated within the last 6-months, and include the proper guarantee amount and signature.

Use of Money Orders

Money orders must be properly endorsed in order to be used to pay your submission fee.

Non-payable Checks or Other Financial Instruments

USCIS will reject all applications or petitions submitted with the incorrect filing fee or using an incorrect instrument.  Rejected petitions and petitions in which the check or other financial instrument used to pay the filing fee is returned as non-payable will not retain a filing date. See 8 CFR 103.2(a)(7)(i).

While petitioners are generally given the opportunity to correct a fee deficiency, pursuant to the regulations, the filing date will not be established until the fee deficiency has been corrected. If the fee is not corrected, then a filing date will not be provided.

Premium Processing Service

Premium processing allows a petition to be processed within 15 calendar days. H-1B petitions are eligible for this Premium Processing Service.  In order to request premium processing submit:

• the Form I-907 and
• the filing fee of $1,225. This fee is in addition to the required base filing and other applicable fees and cannot be waived.

You can file the Form I-907 and corresponding fee:

• at the same time as Form I-129 or
• at any time after you file Form I-129 while it is still pending.

If the I-907 is filed after the Form I-129, you must include the receipt number (for example, EAC 11 123 51234) of the Form I-129 in the appropriate section of Form I-907.

USCIS will only accept the 08/10/09N or later edition of Form I-907.

Organizing Your H-1B Package Before Submission

A separate check for each applicable filing fee (Form I-129, Premium Processing, Fraud Fee, ACWIA fee, and Public Law 111-230) is preferred.  Applicable fees should be stapled to the bottom right corner of the top document.

Preferred order of documents at time of submission:

1. Form I-907, if filing for Premium Processing Service

2. Form G-28, if represented by an attorney or accredited representative

3. Form I-129, Petition for a Nonimmigrant Worker

4. H Classification Supplement to Form I-129

5. H-1B Data Collection and Filing Fee Exemption Supplement

6. All supporting documentation to establish eligibility

7. Provide a Table of Contents for supporting documentation

• • Tab items as listed in Table of Contents
  • Arrival-Departure Record (Form I-94) if the beneficiary is in the U.S.
  • SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
  • SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
  • Form I-566 if the beneficiary is a current A or G nonimmigrant
  • DOL certified LCA, Form ETA 9035
  • Employer/attorney/representative letter(s); and
  • Other supporting documentation.

Make a duplicate copy of the petition, if necessary.  Clearly indentify the duplicate copy of the petition by writing “COPY” at the top, so that it is not mistaken for a duplicate filing.

Mailing multiple petitions together

If you will be mailing multiple petitions in the same courier service or Post Office package, please place individual petitions into separate envelopes within the package.

Tips for Filing:

Form G-28: Notice of Entry of Appearance as Attorney or Representative

A properly executed G-28 should be included if the petitioner will be represented by an attorney or other accredited representative.  Ensure that each section of the Form G-28 is completed and includes the following:

• The printed name and signature of the representative
• The original signature of the petitioner.

Form I-129: Petition for a Nonimmigrant Worker

• Accurately complete all sections of the form.
• Properly sign the petition.
• In Part 1, question 3, petitioners should enter their own address so the original I-797 receipt and approval notices are sent directly to the petitioner.
• USCIS generally discourages entering another person’s address for mailing purposes. However, petitioners submitting the Form I-129 who would prefer that an attorney or representative of record receives original I-797 notices may use an attorney’s address as the mailing address on the petition.
  If you do use an address other than the petitioner’s, there may be processing delays due to the Validation Instrument for Business Enterprises (VIBE). VIBE automatically uses the address provided on the petition to validate the petitioner’s current location. If the petitioner decides to use an attorney’s address as the mailing address on the I-129 petition, it is advised that a cover letter is included with the filing that clearly indicates the current address of the petitioner. Including the cover letter will assist the Immigration Services Officer (ISO) in completing a manual check in VIBE using the petitioner’s address. In addition, if the petitioner uses an attorney’s address as the petitioner’s mailing address, the petitioner will not receive any I-797 notices so make sure that your attorney knows to contact the petitioner regarding any notices received.
• Make sure the beneficiary’s name is spelled correctly and that his or her date of birth is displayed in the proper format (mm/dd/yyyy).  Also, country of birth and/or citizenship and the I-94 number (if applicable) must be accurate.
• If the beneficiary is looking to have their visa issued at a consular office abroad, a copy of the petition and supporting documentation should be included with the filing.  In cases where the beneficiary is seeking a change of status or extension of stay in the US, you may still choose to submit a duplicate copy in the event that the beneficiary will be seeking issuance of a visa at a consular office abroad subsequent to the approval of the change of status or extension of stay.
• If the beneficiary is seeking an extension or change of status, the petition should include evidence (for example, a Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
• Include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129 (found on pages 11 and 12 of Form I-129)

• Complete all sections of the form accurately.
• In listing previous periods of stay in H/L classification (this is question 3), include the actual nonimmigrant classification held (H-1B or L-1, for example).
• Petitioner must sign the form, preferably in blue ink, to differentiate from the type on the form.

H-1B Data Collection and Filing Fee Supplement form (found on pages 17 through 19 of Form I-129)

• Complete all sections of the form accurately.
• Enclose pages 17-19 of the Form I-129 (make sure that your form has a revision date of November 23, 2010 or later).
• If the answer to the first question in Part D on page 19 is “No,” indicating that the beneficiary will not be assigned to work at an off-site location, please note that responses to the remaining two questions in Part D are not required.

Form I-907, Request for Premium Processing

• Complete all sections of the form accurately with original signatures.  USCIS will accept the 08/10/09 or later editions of Form I-907
• The representative may sign in both Parts 3 and 4 of the Form I-907 if there is a valid Form G-28 with the filing.  Otherwise, the petitioner’s signature is required.  Preferably, the signature(s) should be in blue ink.
• Please include a copy of the Form I-129 receipt notice along with the Form I-907 when Form I-907 is filed after the filing of Form I-129.

If you need help with your H-1B petition, please contact our offices at 949-228-3922 for a free consultation.

Over the course of the campaign season, we have learned a lot about what the GOP nominees have to say regarding their stance on immigration. While sound bites don’t give the whole picture, here are some examples of what they have said both throughout their campaign and during the debates regarding the issue of immigration.

Michelle Bachmann

Bachmann has advocated for a fence on “every inch” of the US border with Mexico. She has also called the extension of benefits to illegal immigrants “madness.” Back in 2010, Bachmann voted against immigration legislation that would have provided a path to citizenship.

During the most recent debates, Bachmann said the following: “I don’t agree that you would make 11 million workers legal, because that in effect is amnesty.” While it is unclear what she intended, it is very clear that Bachmann has stood strongly against any process that would allow immigrants who are here illegally to do anything that would potentially make it legal for them to stay.

Herman Cain

Like Bachmann, Cain has said he opposes “amnesty in every form.” One of the sound bites he got the most coverage for was when he spoke about building a 20-foot wall with a moat and alligators at the Mexican border. Later he said this was a joke. This was followed by calling for an electrified fence, then said that the electric fence was another joke. To be fair, he followed that up by saying that it might not be a joke.

During the debate, Cain made his position clear on the recent immigration legislation passed by states like Arizona. “To deal with the illegals that are already here, empower the states to do what the federal government is not capable of doing.” Apparently Cain does not agree with the Supreme Court’s rulings to the contrary.

Newt Gingrich

Throughout the campaign, Gingrich has called for “100 percent control of the border” which he says can be accomplished by using the National Guard to patrol the Mexican border. He has also shown a more nuanced understanding of the immigration situation though: “We are not going to deport 11 milllion people. There has to be some zone between deportation and amnesty.”

During the debate, Gingrich highlighted a more philosophical problem that he has with the GOP’s approach to immigration saying, “I don’t see how the party that says it’s the party of the family is going to adopt an immigration policy which destroys families that have been here a quarter-century.”

Jon Hunstman

Huntsman hasn’t seemed to give a clear idea of where he stands on immigration. He has said that the idea of a fence “repulses” him, but he has also said that it’s probably necessary. He has said he favors a path to citizenship for those already here. “There’s got to be an alternative rather than sending people back. That’s unrealistic.” He hasn’t clearly identified how he would make that happen as “amnesty” has become a dirty word.

Ron Paul

While Paul has pushed for a reduction in the role of the military overseas, he sees other ways that the troops can be used once they are called home. He has called for employing the military to patrol the Mexican border. He has said he opposes a border fence.

Paul has said, “If you subsidize something or give people incentives, you get more of it. So if you give easy road to citizenship, you’re going to have more illegals.”

Rick Perry

Perry has advocated for securing the border first, but disagrees with those arguing for a fence. He has said a 30-foot wall on the border would only improve the “35-foot ladder business.” Perry received a lot of criticism from his GOP counterparts when he defended a Texas law that lets illegal immigrants pay in-state tuition to state colleges. He has since waffled a bit on this statement, but seems to support the idea of letting undocumented students receive aid.

Mitt Romney

Romney has come out in favor of the construction of a fence along the border. He has also been critical of the Perry-approved tuition breaks for illegal immigrants in Texas. While Romney has favored a path to citizenship in the past, he has since come out against amnesty. “We cannot give amnesty to those who have come here illegally.”

Like Ron Paul, Romney has said, “If people who come here illegally are going to get to stay illegally for the rest of their life, that’s going to only encourage more people to come here illegally.”

Rick Santorum

While Santorum has said that the fence construction should be finished along the border, he also has stated that mass deportations are not the answer. This seems to be somewhat contradicted by other statements he has made. “Until we build that border, we should neither have storm troopers come in and throw people out of the country nor should we provide amnesty.” This suggests that deportations should not take place until the fence is in place–no statement on what should be done once the fence is built.

Where the Candidates Will Go From Here

Generally, candidates will move toward the middle during the general election, but it is clear that the GOP candidates will stay tough on immigration until they are nominated. At that time, it will be interesting to see how candidates cater to the large immigrant voting population.

November 23, 2001

This week, the Department of Justice (DOJ) filed a lawsuit against the state of Utah to block HB 497, which dictates that local police enforce immigration laws. This is similar to other states’ immigration policies passed over the last year that have also been stymied. Several provisions of the law have previously been enjoined as a result of efforts by immigrant rights groups. The DOJ claims that HB 497 violates the Constitution. As such, the suit is similar in many regards to the previously filed suits in Alabama, Arizona and South Carolina. Utah’s HB 497 is similar to Arizona’s SB1070, except that Utah state legislators tried to couple the enforcement bill with a state-level guest-worker program. As of today, the guest-worker program is not being challenged by DOJ, largely because it does not go into effect until 2013.

By challenging Utah’s anti-immigration law, the DOJ continues to exercise its role in preserving the federal government’s exclusive authority to regulate immigration. The DOJ also has a responsibility to defend against laws that will result in profiling, discrimination and the violation of fundamental constitutional rights.  As noted by the Secretary of the Department of Homeland Security (DHS), these types of state immigration laws will both divert already scarce resources from the priorities the agency has set for itself (national security and public safety) and overload the federal government with referrals.

The DOJ press release states that “the law’s mandates on law enforcement could lead to harassment and detention of foreign visitors and legal immigrants who are in the process of having their immigration status reviewed in federal proceedings and whom the federal government has permitted to stay in this country while such proceedings are pending.” The true reality of the impact of anti-immigration laws not in line with the Constitutional protections that exist came to light this week when a German Mercedes Benz executive was arrested under the Alabama anti-immigration law while he was in town visiting the automaker’s facilities.

“States contemplating copycat laws of their own should carefully study the disastrous consequences unfolding in other states,” said Benjamin Johnson, Executive Director of the American Immigration Council. “While these laws allegedly target undocumented immigrants, the impact on business, families and communities proves that the laws are, in fact, a burden and a threat to the well-being of all residents in these states. Congress must act on a federal solution or risk further challenges to their authority over immigration.”

We are sure to see more laws similar to those passed in Arizona and Alabama, but it appears that the Department of Justice will be acting much more quickly to keep those laws from becoming effective.

New Priorities in Determining Deportations

Last summer, it was announced that the Department of Homeland Security (DHS) would reassess their priorities in determining which immigration cases would result in the deportation of the individual being considered. If cases did not fall under these heightened priorities, they would be suspended. Immigration and Customs Enforcement’s (ICE) Principal Legal Advisor made an announcement today to all ICE attorneys to start the systematic process of reviewing over 300,000 immigration cases to determine whether pursuing deportation in each case is consistent with the Administration’s enforcement priorities as previously outlined. In addition, ICE also provided more details regarding the criteria that should guide the reviewing process ICE attorneys should use in determining when it is appropriate to exercise prosecutorial discretion to close or dismiss a case.

ICE Receives Directives on How to Decide Immigration Cases

All of this movement in Washington signifies a significant change in the culture of immigration enforcement. DHS will begin to align its resources with the enforcement policies which they will now pursue. In order to determine the fate of each case, ICE attorneys will consider the circumstances of each individual to decide whether removal is appropriate. Namely, resources should be focused on deportations of individuals who pose a real threat to public safety. That being said, the definition of criminality within the department will need to be considered. As a result, there should be fewer deportations of what are considered “low priority” immigrants which include DREAM Act students, individuals with strong family connections in the US and those with longstanding ties to their community here. It is important to note that this does not mean that an immigrant who is not deported is granted legal status in the US. Those who have their cases dismissed or closed will remain in the same status they were in prior to their deportation proceedings.

The Role of Discretion in Immigration Cases

These changes will move DHS closer to the traditional law practices that are in place in other arenas, which emphasize the role of discretion in carrying out legal decisions. Members of a DHS Task Force sent a letter to Congress focusing on the importance of this discretion as an enforcement tool. Of note, they write:

“there is nothing unusual in our recommendation or in DHS’s current efforts to improve its use of prosecutorial discretion. Such discretion is a normal and essential part of the everyday activities of law enforcement agencies and prosecutors’ offices at the local, state, and federal levels across the nation. Exercising prosecutorial discretion, case by case, in a systematic and professional way, does not amount to administrative amnesty. Instead it helps to make sure that resources are focused in ways that best promote the overall enforcement mission.”

Areas of Discretion

There are several considerations that lawyers are being directed to observe. If an immigrant is a suspected terrorist or national security risk, has certain convictions (felonies, multiple misdemeanors, crimes of moral turpitude), is a gang member, or has certain entry details (illegal entry, violated terms of admission in last three years, previous records of removal,  immigration fraud), then ICE attorneys will be directed to go through the normal deportation procedure.

On the other hand, there are several categories of people who’s cases should receive greater discretion and may be closed or dismissed. For example, members of the coast guard or armed services, members of the community in good standing, those children who are either under the age of 5, in school, or completed high school (or its equivalent), those over the age of 65 who have been in the US for more than ten years, those who are legal permanent residents with a single, non-violent conviction, those with a mental or physical disability that requires medical attention, and those who have been in the US for a long time, has a US citizen relative and has ties to his or her community.

It appears that the Ninth Circuit said “no” to the Duran-Gonzales court case.

A link to the case is available here: http://www.ca9.uscourts.gov/datastore/opinions/2011/10/25/09-35174.pdf

The essential holding of this Ninth Circuit case is long and involved.

History Leading up to the Duran-Gonzales Decision

2001: In Perez-Gonzalez v. Ashcroft, the 9th Circuit held an alien could seek adjustment of status (AOS) with a Form I-212 waiver for a prior deportation/removal order with DHS (and EOIR).

2007: In Duran-Gonzales v. DHS, the 9th Circuit overruled the Perez-Gonzalez decision choosing instead to rely on the Board’s decision in Matter of Torres-Garcia which essentially held that DHS (and EOIR) could not grant a Form I-212 waiver inside the U.S., but could only grant this type of form abroad. The Duran-Gonzales case began by way of a District Court action filed by attorneys for aliens who were being denied consideration of their Form I-212 waivers by DHS pursuant to a DHS Memo that instructed them not to consider any Form I-212 waivers despite Perez-Gonzalez.

2010: In Morales-Izquierdo v. Holder, the alien was challenging a reinstatement order that was reinstating a prior deportation/removal order. The attorney argued that the alien should be able to file a late Form I-212 waiver because the alien was eligible to adjust status. In essence, it was argued that the Duran-Gonzales case should not apply to the alien retroactively. In its precedential holding, 9th Circuit holds that the reinstatement order is valid, and also finds that there is no error in applying Duran-Gonzales retroactively. Looking back at the arguments, the Morales-Izquierdo case may not have been the best case to raise the retroactivity argument.

10/25/2011: In Duran-Gonzales II, the 9th Circuit rejects the argument that the first Duran-Gonzales case should not apply retroactively to aliens who filed for adjustment with a Form I-212 waiver after the Perez-Gonzalez case but before the new change in the law announced in the first Duran-Gonzales. Here, the recent case of Nunez-Reyes v. Holder (en banc) was cited as support for the argument not to apply Duran-Gonzales retroactively. The 9th Circuit rejected the argument and again affirmed that Duran-Gonzales applies both prospectively and retroactively. The Duran-Gonzales II court found that it was bound by the panel’s decision in Morales-Izquierdo, and also seemed to be concerned with a sudden change in the retroactive application of Morales-Izquierdo as there had been other 9th Circuit and BIA decisions that had already cited to it and applied it retroactively since 2007 when the case was first decided. Lastly, the Duran-Gonzales II court distinguished Nunez-Reyes because in that case there were aliens who had waived their constitutional rights when pleading guilty in reliance of the old Lujan-Armendariz rule, whereas the Duran-Gonzales II court found no constitutional violation in this case.

Conclusion: Unless the 9th Circuit grants a petition for en banc rehearing and the panel decision is reversed, it appears that the argument that your client should be able to file a Form I-212 waiver in the U.S. will no longer be effective. While many will argue that this is an unfair decision, it looks like this is what the decision will be for the time being.