Thursday, April 26, 2012

Oral Argument in US Supreme Court about Arizona's Immigration Law SB 1070

On 4/25/12 the U.S. Supreme Court heard arguments on the constitutionality of Arizona's controversial immigration law SB 1070 that confers powers of immigration inquiry and detention of aliens on local police if they believe that the subject aliens are in the U.S. illegally. Chief Justice Roberts made it clear that he did not want the oral arguments to turn into a case about racial or ethnic profiling. The Court wanted to make sure the arguments primarily addressed the Supremacy Clause argument. This argument states that immigration is a federal domain, therefore, it preempts any state's efforts to control immigration issues. The attorney for Arizona agreed and stated that Arizona did not intend to compete with the U.S. in enforcing immigration policy, but merely wanted to be a junior enforcer to the federal authorities. One of the explicit purposes of the law is "attrition by enforcement." That means that if aliens suspected of being in the country are interrogated and detained until their immigration status can be verified, they will likely pack up and leave voluntarily. But this could result in mass incarcerations because even citizens don't walk around with citizenship papers or birth certificates. So, if a citizen is detained and his immigration status is not verified for several days, he could be held for that long. The Supreme Court showed no interest in such possible effects of the implementation of the law; the justices were only interested in the preemptive nature of the law. If the law is upheld, mass incarceration could be its immediate effect. Most of the justices seemed to indicate that they might side with Arizona on this case. Although, with Justice Elena Kagan having disqualified herself from the case, the votes would have to be at least 5-3 for either side to prevail. 

So, what to do?
If you live or work in Arizona, chances are that after the Court renders the decision, the local police may be able to ask anyone for documentation to prove citizenship or authority to stay in the U.S. So, if you don't carry papers in Arizona, you may likely be incarcerated by local police on immigration violation charges-- even if you have H1B status but don' have your papers with you.

Wednesday, April 18, 2012

Vartelas v. Holder... The Supreme Court Decides!

Until March 31, 1996, green card holders (LPRs) with criminal convictions who voluntarily left the U.S. for a brief, casual, and innocent trip abroad, did not face being stopped at the border. They were afforded the same due process rights as if they never left the U.S. and were in deportation proceedings. LPRs in the U.S. have more rights than those without LPR status or those outside the U.S. So, for the above described brief, casual, and innocent trip, the LPR was treated as if he had never left the U.S. and therefore enjoyed the due process rights. 

However, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996  (IIRIRA) that took effect on April 1, 1997, changed all that.  After IIRIRA, the Board of Immigration Appeals (BIA) determined that the returning LPR with a pre-1996 conviction would face being stopped at the border and not being permitted into the U.S., just as if he were never in the U.S. even if the trip was brief, casual, and innocent. 

On March 28, 2012, the U.S. Supreme Court changed that again with the decision in VARTELAS v. HOLDER. In this case, Mr. Vartelas, who pleaded guilty to conspiring to make counterfeit security in 1994, was returning from a week-long trip to Greece. He was stopped and not permitted to enter due to his 1994 guilty plea. One of the key questions here was that does guilty plea amount to a conviction as intended in the IIRIRA law? Anyway,  the U.S. Supreme Court stated that the IIRIRA 1997 rule does not apply to Vartelas and he should be afforded due process rights as if he never left the U.S. Applying IIRIRA 1997 rule to LPRs such as Vartelas would place new disabilities on LPRs when their trip overseas was brief, casual, and innocent. The Court gave examples of the types of visits that could qualify as brief, casual, and innocent: journeys abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies.
The implications for LPRs with pre-1996 convictions are that they are afforded higher due process rights so they have a better chance of explaining their side of the story and gain reentry to the U.S. Without this decision, such an LPR would not even get a chance to explain their situation. 

So, what to do?
If you are an LPR with a pre-1996 conviction, this higher protection may be available to you. 

Saturday, April 7, 2012

H1B Quota...already one-third cap reached (?)

According to field estimates, anywhere from 25-33% of the 65,000 H1B quota is already reached. As of April 6, 2012, 16,700 cap subject and 5,600 cap exempt applications are estimated to have been filed. Last year, on April 7, 2011, these numbers were 5,900 cap subject, and 4,500 cap exempt. Last year, the cap subject number of 16,000 was not reached until June 28, however, the cap exempt number was  almost the same by April 18th. The cap exempt numbers are for professionals who received masters degree from the U.S. If the 2012 exempt numbers are about the same as those from 2011, that could mean that not a significant number of applicants filed on the basis of U.S. earned masters degree. That goes against the usual trend in the face of rising unemployment. In other words, when unemployment rises, more people attend graduate programs. That is not the case here, so as far as H1b workers are concerned, there seems to be optimism about economic recovery. Now, let's break down the unemployment numbers. On April 6, 2012 the unemployment rate dropped to 8.2%. In 2011, the unemployment rate near 8% was in November; at 8.6%. And even before then, in August 2011, the number was 9.4%. The drop from August 2011 to November 2011 was nearly 8.5%, whereas, the drop from November 2011 to April 2012 was only 5%. So, when unemployment rate dropped at a slower rate, more cap subject applications were filed; almost three times as many as last year. What explains this mystery? Again, optimism in the private sector's employment recovery. Is that outlook supported by the data? Well, according to the U.S. Bureau of Labor Statistics on April 6, 2012, majority of gains in the jobs were in the manufacturing, healthcare, finance, and other private sector jobs, whereas, the least growth was in the public sector jobs. As far as pure number crunching, the public sector job loss contributes to a perspective of slow recovery. However, the private sector job gains were in the areas where majority of the H1B applications are filed (private sector engineering, information technology, finance, and healthcare). This could explain more applicants (actually, employers) rushing to file cap subject H1b applications.

So, what to do?
Well, if you have a cap subject application, file it now. If the applications continue to be filed at the current rate, the quota will run out well before October.

Friday, April 6, 2012

EB-2 Priority Dates for India and China

DOS Practice Alert: EB-2 India & China Priority Date Projections: "On March 16, 2012, at the AILA Midwest Regional Conference in Chicago, Charlie Oppenheim, Chief, Visa Control and Reporting at DOS, informed participants that he will likely retrogress India and China-mainland born Employment-Based Second Preference priority dates to around August 2007, effective with either the May or June 2012 Visa Bulletin. He also advised that he projects that all EB-1 visas available in FY2012 will be used this year, resulting in no "spill down" to EB-2."

So, what to do?
Well, usually retrogressions are temporary so don't give up on filing labor certifications or adjustment of status. Also, if you currently have an approved August 2007 I-140 EB3, you can use that for EB2.


Welcome to Attorney Seth D. Miller's Blog. The objective of this blog is to provide you with immigration law and policy news and analysis. We will look at how the big picture (federal law) affects the small picture (your business or career). We will also guide you to maximize your immigration benefits.