Silicon Valley Immigration Lawyer Blog

Yesterday the Department of Homeland Security announced a process change that would allow the spouses of U.S. citizens who are in the U.S. but need a waiver to obtain a green card, apply for that waiver while still within the U.S. While most family-based green card applicants do not need a waiver to obtain a green card, this proposed change will have a major impact on the lives of those applicants who do need to obtain a waiver.

While the foreign national spouses and children of U.S. citizens living in the U.S. can apply for a green card, those who entered the U.S. illegally or entered legally yet overstayed their period of authorized stay, must leave the U.S. and apply for their green card at the U.S. Consulate abroad. For those who have accrued a year of unlawful presence in the U.S, once they leave the U.S. they trigger a ten year bar from the U.S. They can apply for a waiver to allow them to return to their families before ten years by showing that their U.S. spouse or parent would face extreme hardship as a result of the separation. But under current procedures, waiver applicants must first leave the U.S., be interviewed at the U.S. Consulate and be told to apply for a waiver, and then must submit the waiver. This can result in family members being stuck outside the U.S. for months, and even years while they wait for their U.S. Consulate appointments and for their waiver to be approved - if it is.

The proposed new rule would allow U.S. citizen spouse waiver applicants to apply for a "provisional waiver" while they are still in the U.S. Instead of leaving the U.S. and first applying for a green card, and first waiting for a waiver application to be adjudicated, this would allow spouses to wait in the U.S. while their waiver application is adjudicated, and then leave the U.S. to apply for the green card at the U.S. Consulate. While this proposed rule would minimize the time that the spouses and children of U.S. citizens are apart, one of the real, but unstated benefits is that it allows spouses to "test" whether they can overcome the ten-year bar before they actually trigger the bar by leaving the U.S.

As an immigration lawyer, I know that one of the first questions from a client who would want to apply for a "provisional waiver" would be: "What happens to me if my provisional waiver is denied? Will I be put into deportation proceedings since now I have alerted the USCIS to the fact that I am here illegally, and I have provided my home and work address? " Unfortunately there is no answer to this question at this time. However, the recent shift in immigration policy towards a greater exercise of prosecutorial discretion might have the benign result of allowing immigrants with no criminal records and U.S. citizen spouses, whose provisional waiver is denied, to remain in the U.S. For now we do not know the answer, but as the proposed rule goes through the comment and rulemaking process hopefully this question will be addressed.

This past Monday, California Governor Jerry Brown signed AB130, a bill known as the California Dream Act that would open up private financial aid and privately funded scholarship opportunities to undocumented immigrant students who were bought to the country illegally as children. Undocumented students who qualify for in-state tuition in California will be able to apply for $88 million in private scholarship funds administered by the University of California, Cal State University, and the California Community Colleges. The bill will go into effect January 1, 2012. AB130 is the first installment of a two-part package that would provide undocumented students greater access to funding for their education. The second bill in the package, AB131, is considered more controversial since it would allow the state to confer to undocumented students publicly funded scholarships and financial aid, including access to Cal Grants. AB131 is still undergoing discussion in the state Senate.

Opponents of Dream Act legislation argue that granting financial aid to undocumented students would exacerbate the competition for already limited resources and state funds. While this is a legitimate concern, the California's public colleges and universities have expressed support for the bill, estimating that the state Dream Act would affect less than 1% of their current student population.

As a Californian, I support access to a California college education for those students who went to high school here and are going to remain in California, whether or not they are undocumented. It is ultimately in our own interest to generate a larger population of college graduates with higher knowledge and skills.

However, as an immigration lawyer, I have met with undocumented college graduates who cannot get a legitimate, professional job. As long as they are undocumented, they cannot legitimately obtain a job. Federal law requires employers to verify that all new hires are eligible to work in the U.S. Whether or not they are U.S. citizens, all new hires are required to produce documentation showing their identity, and that they are authorized to work in the U.S. (i.e. state driver's license and unrestricted Social Security Card; U.S. permanent resident card and foreign passport; work visa and foreign passport). Furthermore, federal contractors and subcontractors are required to submit a new hire's information through the E-Verify website to confirm the worker is authorized to work in the U.S. E-Verify is an online system that verifies an employee's information with the U.S. Department of Homeland Security and the Social Security Administration. An undocumented college graduate will have a college diploma, but will not have the documentation to show that they can work in the U.S.

As least for now. The federal Dream Act, totally different from the California Dream Act, would change this. The federal Dream Act would allow those undocumented students brought to the U.S. as children to eventually legalize their status. Students would have to graduate from high school and either serves in the U.S. military or attends college, and demonstrates good moral character. Bi-partisan, federal Dream Act legislation has been introduced in Congress over the past several years, in different variations. Although the specifics regarding length of residency in the U.S., age of students, possible fines, and military service requirements have varied from different proposals, the end result of a federal Dream Act law would be to legalize all those students who had no say in the matter when they were brought to the U.S. as children. The California Dream Act is at least a step in the right direction.

Several Silicon Valley Congressional leaders signed off on a letter to President Obama opposing the newly proposed immigration law that strips away President Obama's ability to authorize Temporary Protected Status (TPS) and to exercise prosecutorial discretion in removal cases. The proposed immigration law introduced by Representative Lamar Smith (R-TX) is called "Hinder the Administration's Legalization Temptation Act" - or HALT for short. The bill attempts to discredit the Obama administration by temporarily suspending immigration law provisions only for the duration of President Obama's term. For the remainder of his current term, the bill would strip President Obama's ability to designate TPS for countries wreaked by havoc from civil war or natural disasters, such as Haiti and Sudan which are still designated for TPS. It would prevent granting humanitarian parole for persons to enter the U.S. unless the life of the person seeking parole was threatened. It would prevent eligible persons from obtaining deferred action. An example of how deferred action is applied to innocent victims is when the 10,000 cap on visas for victims of crimes is reached (a U visa), persons who would otherwise qualify for a U visa are placed on a waiting list and provided deferred action while in the queue.

Continue reading "Silicon Valley Congressional Leaders Oppose HALT Immigration Bill" »

The San Jose Mercury News reports that at least two of Silicon Valley's unaccredited universities could be gaming the F-1 student visa system. According to the article, a university in Sunnyvale and one in San Jose cannot show that they actually satisfy the regulatory criteria to enroll international students on F-1 visas, despite being on the ICE list of schools approved to issue F-1 visas. This comes on the heels of the F-1 visa escapades with Pleasanton's Tri-Valley University, now closed and under investigation.

The Mercury News article explains that the universities in question are neither accredited by any agency with accrediting authority, nor are their credits accepted by other accredited schools. Without being accredited or having credits accepted by other accredited schools, these schools should not be approved to enroll F-1 students.

But international students can be big business for schools, since schools can charge full tuition. According to the article, the Tri-Valley University investigation revealed that the school had been paid millions by foreign students to obtain student visas. Unlike other visa categories, there is no cap or limit on the number of F-1 visas issued each year. The U.S. Department of State statistics show that in 2010, U.S. Consulates issued 385,210 F-1 visas. The potential for an unlimited number of international students, coupled with the high tuition fees that can be charged, provide an opportunity to create U.S. schools in the business of enrolling international students.

Continue reading "Silicon Valley Schools Facing Immigration Issues" »

Silicon Valley Congresswoman, Zoe Lofgren, the Chair of the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, invited Comedy Central's Stephen Colbert to Testify before the Subcommittee. This past July, Mr. Colbert invited the President of the United Farm Workers of America on his show to discuss their "Take Our Jobs" campaign. The purpose of the campaign was to highlight the fact that most Americans will not take jobs picking produce on farms. Mr. Colbert took up the offer to take a job working in the field, and he reported on his experience to the Subcommittee.

While Mr. Colbert jokingly recommends that Americans just stop eating fruits and vegetables, or that what he wants a tomato "picked by an American and sliced by a Guatemalan served by a Venezuelan in a spa where a Chilean gives me a Brazilian", his celebrity status highlighted a serious, immigraion issue. In all sincerity, he suggested that if we offer visas to those people who are doing this difficult work anyway, it will provide them recourse from exploitation.

The AgJOBS bill would provide undocumented farm workers with a path to legalization, upon background checks and paying fines. Congresswoman Lofgren has explained that
AgJOBS needs to pass because there are not enough citizens and legal immigrants willing to do the "killer" work. Unless American farmers have access to migrant labor, millions of American farm jobs will be shipped to Mexico and other countries with abundant and cheap labor.

A "leaked" USCIS internal memo (shown below) shows the immigration agency brainstorming various immigration reforms that could be implemented even without Congress passing any form of comprehensive immigration reform. The draft memo, titled "Administrative Alternatives to Comprehensive Immigration Reform", is directed to USCIS Director Alexandra Mayorkas. The proposed reforms outlined in the memo would serve to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization." As Congress, and not the USCIS, make immigration laws, the USCIS proposes these changes by reviewing prior statutory interpretation, issuing new guidance, and by broadening the use of discretionary relief.

These proposed reforms include practical suggestions that should not be controversial, such as authorizing the automatic extension of EADs for up to 240 days after submitting a renewal application, as well as issuing EAD's for two years instead of one year. Also included are measures that are likely to be controversial, such as allowing Temporary Protected Status (TPS) applicants who entered without inspection to adjust status to permanent residence. TPS provides humanitarian relief for persons currently in the U.S., regardless of their immigration status, when events such as war or natural disasters in their home county make it dangerous for them to return home. In most instances, applicants for adjustment of status to permanent residence must have been inspected upon entry, and this would allow persons with TPS to adjust status even if they entered without inspection.

The proposed reforms also suggest a liberal use of "deferred action", and apply it to large groups of people. Deferred action is a form of prosecutorial discretion that allows people who are otherwise removable, to stay in the U.S. Persons granted deferred action can obtain employment authorization. The proposed reforms include allowing persons who might benefit from the proposed DREAM Act, be afforded "deferred action". While deferred action is often used on a case-by-case basis, it has been used for large groups of people in the past.

The USCIS responded to an inquiry about the memo, made by the American Immigration Lawyers Association, with the following:

"Internal draft memos do not and should not be equated with official action or policy of the Department. We will not comment on notional, pre-decisional memos. As a matter of good government, U.S. Citizenship and Immigration Services (USCIS) will discuss just about every issue that comes within the purview of the immigration system. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation's immigration challenges.

Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected. Our goal is to implement policies wisely and well to strengthen all aspects of our mission. The choices we have made so far have strengthened both the enforcement and services sides of USCIS - nobody should mistake deliberation and exchange of ideas for final decisions. To be clear, DHS will not grant deferred action or humanitarian parole to the nation's entire illegal immigrant population."

Leaked CIR Memo (7!29!2010)

Opponents to any comprehensive immigration reform often argue that illegal immigrants are taking jobs away from Americans. The United Farm Workers of America are putting that assumption to the test with their "Take Our Jobs" campaign. Any American who would like a job in agriculture can enter their contact information online, and the UFW will help place them. The online submission section, called "I want to be a farm worker", includes the following note:

"Job may include using hand tools such as knives, hoes, shovels, etc. Duties may include tilling the soil, transplanting, weeding, thinning, picking, cutting, sorting & packing of harvested produce. May set up & operate irrigation equip. Work is performed outside in all weather conditions (Summertime 90+ degree weather) & is physically demanding requiring workers to bend, stoop, lift & carry up to 50 lbs on a regular basis."

Last week the president of the UFW was a guest on Comedy Central's Colbert Report to discuss the work of farm workers, and the UFW's new campaign. He told Steven Colbert that in response to the campaign, a total of THREE American workers had starting working. Americans simply do not want many of the jobs that are currently filled by undocumented immigrants.

The UFW campaign highlights the reality that labor performed by undocumented immigrants is vital to our food industry, and also highlights the need for immigration reform. AgJobs, the Agricultural, Job Opportunities, Benefits, and Security Act sponsored by Senator Dianne Feinstein, and re-introduced in Congress last year, would provide some of the immigration reform needed in this area. AgJobs would provide temporary legal immigration status for experienced farm workers already in the U.S., who committed to continue in farm work for the next five years. These farm workers would need to pay a fine, and undergo background checks. Unless more than three Americans start turning to agricultural work, we need AgJobs.

California Senator Feinstein is amongst a group of Democratic Senators (including Senate Marjoity leader Reid, and Senators Durbin, Schumer, Leahy, and Menendez) that set forth an immigration law reform "proposal" last week, called the Real Enforcement with Practical Answers for Immigration Reform (REPAIR) Proposal. This proposal is not an actual bill, or a proposed bill. It is a "proposal". While it is a purely Democratic proposal, it contains provisions that show a willingness to reach out to Republications and incorporate the immigration reforms critical to any Republican support.

The proposal acknowledges that in order to accomplish any immigration reform, achieving greater border security and improving methods for fighting crimes connected to illegal immigration is a prerequisite to addressing the millions of undocumented immigrants living here. The proposal addresses: (1) increased border enforcement, (2) increased interior enforcement; (3) biometric identification and employment verification; (4) family and employment visas; and (5) registration and legalization of the millions of undocumented immigrants living here.

As an immigration lawyer often representing highly-skilled foreign nationals, the most exciting provision is the change for graduates of U.S. universities. Graduates of U.S. universities obtaining advanced degrees in the fields of science, technology, engineering, or mathematics, who have an offer of employment from a U.S employer in a field related to their degree, would be eligible for a green card. As has been said repeatedly on this blog, it only makes sense to allow these folks to remain in the U.S. and use their intelligence and knowledge to benefit the U.S.

Continue reading "California Senator Supports Immigration Law Proposal" »

Today the San Francisco Board of Supervisors pushed for a boycott of Arizona and its businesses based there, to protest the new immigration law signed last Friday. The new immigration law requires state and local law enforcement to question individuals about their immigration status if the officer has a "reasonable suspicion" that they are undocumented. An individual who cannot provide proof of legal status would be subject to arrest. The new law essentially compels law enforcement to conduct racial profiling of all people in the state, and will lead to people being questioned and detained for looking foreign.

In opposition to the new law, the San Francisco Board of supervisors is calling for San Francisco to end any and all contracts with Arizona-based companies and to stop, doing business with the state. Supervisor David Campos told a City Hall rally, "We want to send a message. . . . There are consequences when you target a whole people." City Attorney Dennis Herrera also called for a wide-ranging boycott of Arizona, and pledged to have attorneys in his office work with the city to identify contracts with Arizona companies and help break those contracts where possible.

San Francisco is not the one calling for a boycott. Within hours of the new law being signed, the American Immigration Lawyers Association (AILA) Board of Governors voted to move the Association's Fall 2010 conference, which was to be held in Arizona. AILA's Board President explained that AILA could not spend its funds in a state that dehumanizes the very people that many AILA members represent.

Arizona is already under fire for signing into law a new immigration law that President Obama characterized as "misguided" and that would "undermine basic notions of fairness that we cherish as Americans." Obama said he instructed the Justice Department to "examine the civil rights and other implications" of the new law.

The new immigration law requires state and local law enforcement to question individuals about their immigration status if the officer has a "reasonable suspicion" that they are undocumented. An individual who cannot provide proof of legal status would be subject to arrest. The new law essentially compels law enforcement to conduct racial profiling of all people in the state, and will lead to people being questioned and detained for looking foreign.

What would cause an officer to have reasonable suspicion that a person is "undocumented"? The color of their skin? Their accent? They way they are dressed? The work that they are doing? The kind of car they drive?

When I first heard about this new law, I was reminded of a public service announcement that ran soon after the September 11 attacks, called "I am an American". Created by the Ad Council, it features Americans of different races, accents, ages, and dress stating "I am an American." It's a reminder that we really cannot determine who is American and who is undocumented, simply from appearances.

As an immigration lawyer, I've met U.S. citizens of all different ethnicities, occupations, and varying levels of English proficiency. I've also met undocumented immigrants with white collar jobs, who look and talk like they could be from the Midwest (where I am from.) When I meet a potential new client, I cannot tell whether they are a U.S. citizen, a U.S. permanent resident, a legal nonimmigrant, or an undocumented immigrant, until I hear their story. I wonder how the Arizona police will decide who creates a 'reasonable suspicion" of being undocumented?

Yesterday I had the benefit of joining a group of local San Francisco and Silicon Valley immigration lawyers and government staffers to meet with the USCIS Director, Alejandro Mayorkas. He held a town-hall style meeting at the San Francisco USCIS office, to provide an overview of his goals for the USCIS and to hear our concerns of working with the USCIS. Overall, as an immigration lawyer, I came away truly enthusiastic about the direction I hope we will see the USCIS headed. If the Director can put his goals into action, then applicants and lawyers should see a more positive interaction with the USCIS, and we should see the USCIS heading away from the "culture of no" that has pervaded the USCIS over the past several years.

The Director had no prepared remarks, and began by stating that he hoped everyone would feel comfortable being outspoken. As a Cuban immigrant himself, he explained that he wants the U.S. immigration system to be "welcoming". He wants adjudicators to understand that each case is about someone's life and the lives of their family, and each case needs to be treated as such. The Director rhetorically asked how the USCIS can be welcoming while also being vigilant against fraud. His answer was that a vigilant approach permits the USCIS to be welcoming and embracing.

The Director acknowledged that a government agency that is essentially a public service agency cannot serve without reaching out to the community. He highlighted the USCIS' Office of Public Engagement, as one avenue to bridge the divide between the USCIS and the community. He also acknowledged that the USCIS cannot govern by edict, as they effectively do when they publish new memos interpreting critical statutes and regulations without consulting those most affected. He specifically acknowledged the troublesome Neufeld Memo of January 2010 and discussed in an earlier post.

Continue reading "USCIS Director Meets With Silicon Valley Lawyers" »

New immigration laws proposed last week by Senator's Charles Schumer (D-NY) and Lindsay Graham (R-NC) present dramatic reforms. The most notable are the opportunity for millions of undocumented immigrants to legalize their immigration status, and the introduction of a biometric Social Security card for EVERYONE, including U.S. citizens.

The two Senators set forth their bi-partisan immigration reforms in last Friday's Washington Post article, "The right way to mend immigration." The plan is based upon four pillars: (1) a biometric Social Security card that employers would need to swipe to verify an employee's authority to work in the U.S.' (2) further resources towards border security and interior enforcement; (3) more options for both skilled and unskilled temporary workers, and (4) a pathway to legalization for the approximately 11 million undocumented immigrants living here.

One of the proposals would award green cards to immigrants who receive a Ph.D. or a Master's degree in science, technology, engineering, or math from a U.S. university. This proposal is commendable, and this blog as advocated for such a reform. As stated before, it makes no sense to allow the best and brightest from across the world to be educated at our universities, and to then force them to leave the U.S. instead of remaining and using their skills.

Surely legalization will be the most hotly-contested proposal. The Senators describe the path to legalization as a "tough but fair path forward". According to the proposal, they would be required to "admit they broke the law and to pay their debt to to society by performing community service and paying fines and back taxes." They would also undergo background checks (as all immigrant applicants do), and be proficient in English. Paying fines and back taxes have always been a hallmark of legalization programs, but forced community service is new. Does community service mean picking up trash on the side of the highway while wearing an orange vest? Helping in a soup kitchen? Do you owe the same debt to society if you've been here illegally for two years v. twenty years? Also, as an immigration lawyer, I don't know whether I would advise a nineteen-year old who was brought here as a baby to "admit that they broke the law".

Continue reading "Immigration Law Reforms Would Legalize Millions" »

A self-proclaimed "wiser" Lou Dobbs appeared on Bill O'Reilly's program last week to discuss immigration reform. "Wiser" means acknowledging that this country needs immigration reform legislation that goes beyond enhanced border security, and that meets the needs of the undocumented people already living here. The answer is not mass deportations. Mr. Dobbs' suggestions are consistent with prior proposed legislation, including allowing undocumented people to pay a fine, learn English, and get on the path towards U.S. citizenship. He also suggested a separate guest-worker program to help reduce continued illegal entries from Mexico. A key issue of any immigration reform providing legalization will be to dramatically increase the size of the USCIS. Whatever his reasoning for "wisening up", we say better late than never.

Yesterday U.S. Congressman Luis Gutierrez (D-IL) introduced the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP). The video clip shows Representative Gutierrez introducing the proposed immigration law alongside members of the Congressional Hispanic Caucus, the Congressional Black Caucus, the Congressional Asian Pacific American Caucus, and the Congressional Progressive Caucus.

Representative Gutierrez characterizes the proposed immigration law as (1) pro-family, (2) pro-jobs, and (3) pro-security. But one of the most important provisions, not mentioned in the video clip, is the Earned Legalization Program for the Undocumented. This provision would allow those undocumented persons, currently in the U.S., to apply for nonimmigrant visa status. To qualify, applicants would need to attest to their contributions to the U.S. through employment, education, military service, or volunteer work. Applicants would pay a $500 penalty fee, and would have to pass criminal and other background checks. After six years, applicants could apply for permanent resident status.

As an immigration lawyer who has seen many people with no immigration options, I applaud Representative Gutierrez for moving the immigration reform debate forwards. Many of the provisions in the proposed legislation (which I will elaborate upon in future postings) remedy legitimate problems in our current immigration system, and are simply the right thing to do. But in the video clip, Representative Gutierrez also quotes Ghandi for the proposition that there simply is no compromise on some fundamental matters. I truly hope that there can be compromise on this proposed immigration law so that we can move towards improving our current immigration system while promoting family unity, jobs, and border security. Potentially divisive issues, such as the earned legalization program, must be open for compromise in order to further the other beneficial provisions.

Today's San Jose Mercury News highlighted the plight of a local Cambodian woman who immigrated to the U.S. as a refugee, and has long been eligible to apply for U.S. citizenship. Ms. Chantel In was born in the 1970's in Cambodia, during the brutal reign of Pol Pot. Her family survived and immigrated to the U.S. as refugees, eventually settling in California. Ms. In has been a U.S. permanent resident (a green card holder) for several years, but has not yet applied for U.S. citizenship. The $675 USCIS application fee is just too high, and Ms. In simply cannot afford it. The San Jose Mercury News included her story as part of their seasonal Wish Book campaign.

Unfortunately, USCIS fees are only expected to go higher. USCIS Director Alejandro Mayorkas recently stated that a 2010 fee increase is likely. USCIS funding relies heavily on the fees generated by applications. Applications, and therefore filing fees, plummeted in 2009 leaving the USCIS with a $164 million shortfall. But filing fees are already high enough to create obstacles to people like Ms. In. The cost for a family of four (two adults and two minor children) to file for an adjustment of status (for a green card) would range from $3220 to over $4000, depending upon the age of the children. That fee does not include additional, non-fee costs such as medical exams for each applicant and photos.

The USCIS does allow applicants to apply for a fee waiver. Applicants must show that they are elderly or disabled, have been receiving Federal means-tested public benefits, are destitute, are living below the Federal Poverty line, or have other extenuating circumstances. If the fee waiver request is denied, the application is returned and the applicant can resubmit it with the fee.