After Umar Farouk Abdulmutallab, often referred to as the “Underwear Bomber”, allegedly tried to detonate a bomb on a flight to Detroit on Christmas Day in 2009, questions have arisen regarding the roles of the Department of State and the Department of Homeland Security (DHS) in matters of visa security and whether any changes in law are warranted.
Abdulmutallab’s father had warned the U.S. Embassy at Abuja, Nigeria that his son might be a threat to the United States a month before the alleged bomb attempt. Officials at the Embassy sent a cable to the National Counterterrorism Center about Abdulmutallab, but no action was ever taken. State Department officials said that they did not have enough information to revoke his visa at that time. Abdulmutallab had been traveling on a multi-year, multiple-entry tourist visa that was issued in June 2008.
A recent Congressional Research Service report addressed the roles that the Department of State and the Department of Homeland Security play in visa security and the conflicting positions about the role intended for each department.
Under the Homeland Security Act of 2002, the State Department is to issue regulations governing visa issuance, staff U.S. consular posts abroad to advise and investigate as needed, and have consular officers bear responsibility for issuing visas. DHS’ U.S. Citizenship and Immigration Services (“USCIS”) approves immigrant and nonimmigrant petitions, DHS’ Immigration and Customs Enforcement operates the Visa Security Program, and DHS’ Customs and Border Protection inspects people who apply for admission to the U.S. The Department of Justice also plays a role in visa policy by making adjudicatory decisions on specific immigrant cases that it receives.
The report acknowledges the opinion of some that the DOS exercises too much control over the visa process, asserting that the intent of the Homeland Security Act was to have DHS be the lead agency with DOS merely administering the process. The opposing view is that DOS has officers on the ground in consular posts worldwide with country-specific knowledge and is in the best position to play the lead role in visa processing. Cost plays a role too, in that expanding DOS’ role may be prohibitively expensive for that Department.
Recently, a bill passed the House Committee on the Judiciary that would give the Secretary of Homeland Security exclusive authority on matters of visa security. The issue of changes to current processing, it appears, remains up in the air awaiting Congressional action.
Stewart Rabinowitz is President of Dallas-based Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney, please visit, http://www.rabinowitzrabinowitz.com.
San Francisco Sheriff Michael Hennessey has announced that he will release illegal immigrants who are believed to have committed low-level crimes instead of jailing them and turning them over to federal authorities.
Hennessey declared his distaste for the Secure Communities program run by U.S. Immigration and Customs Enforcement in an op-ed piece in the San Francisco Chronicle last month. Local law enforcement, which use the Secure Communities program, send the fingerprints of arrested criminal suspects to ICE to check them against federal immigration databases. A match can result in commencement of removal proceedings.
Critics have long argued that Secure Communities actually undermines public safety, and that immigrants will stop reporting crimes they see because they are afraid of deportation.
“ICE’s Secure Communities program puts local police in a bind. How can local police provide a ‘secure community’ if various members of that community will not report crimes nor offer to testify out of fear of federal action against the victims or witnesses? Some local police see their hard work in building community trust evaporate,” says Dallas immigration attorney Stewart Rabinowitz of the firm of Rabinowitz & Rabinowitz, P.C.
Hennessey stated that any illegal immigrants arrested for low-level crimes – such as shoplifting or public drunkenness – will not be held in jail, even if federal immigration agents request their detainment. He said that he would still report suspected felons to ICE, as he has been for years.
“Reports of persons removed for non-criminal conduct, such as visa overstays, who were stopped for minor traffic infractions are not what ICE had in mind in portraying the Secure Communities program as designed to remove dangerous criminal aliens from our streets,” Rabinowitz says.
“San Francisco has always been a city of immigrants,” Hennessey said. “We are proud of our diversity. We value the contributions of immigrants to our community. Law enforcement and other civic leaders work hard to serve all of our residents in an effort to promote the health and safety of our neighborhoods. Unfortunately, Immigration and Customs Enforcement’s controversial Secure Communities program violates this hard-earned trust with immigrant residents.”
Under federal law, other law enforcement officers can still choose to report immigration status to ICE. Several have already declared their intent to do so.
The U.S. Supreme Court has upheld an Arizona law which penalizes employers who knowingly employ unauthorized workers by suspending or revoking the employer’s state business licenses, as falling within an exception provided within existing federal immigration legislation. The exception permits states to impose sanctions against such employers through licensing and similar laws. The court’s decision also permits Arizona to make mandatory the voluntary federal program known as E-Verify.
As background, in 1986, Congress enacted the Immigration Reform and Control Act. This comprehensive legislation created a federal scheme imposing requirements on all employers in the U.S. to make certifications regarding each new employee and requiring that all future employees prove their identity and work authorization within the first few days of hire, to prevent the employment of unauthorized workers. Arizona enacted the Legal Arizona Workers Act in 2007 as an additional penalty against employers who knowingly hire unauthorized workers. Arizona employers who knowingly hire such workers can have their articles of incorporation suspended, or even revoked. In addition, Arizona required employers within the state to participate in a federal program known as E-Verify. E-Verify is a federal voluntary, web-based program which the Department of Homeland Security offers to employers to check the work authorized status of new hires. It is a supplement to existing federal workforce requirements.
The Court held that the Arizona law did no more than impose licensing conditions on businesses operating within Arizona, and was not preempted by the comprehensive 1986 federal legislation. It further held that while E-Verify was available nation wide, there has been no Congressional intent expressed to prevent a state from requiring participation in the program. Multiple states have already made participation in E-Verify mandatory for its employers.
*Stewart Rabinowitz is president of Rabinowitz & Rabinowitz, P.C., a Dallas based immigration law firm.
A new passport agency has opened in El Paso, Texas, that will end the need for nearby residents to travel hours away just to get a passport.
Previously, if El Paso residents needed to quickly obtain a passport for urgent travel plans, they would need to trek 750 miles to Houston or 300 miles to Tucson. Now, with $2.1 million provided by the American Recovery and Reinvestment Act of 2009, an El Paso Passport Agency has been opened in the historic Anson Mills Building, just a few blocks away from the U.S.-Mexico border.
“For the first time, we will have a facility that will not only process applications but also produce and issue passports on- site right here in El Paso,” said Vincent Perez, spokesman for U.S. Rep. Silvestre Reyes, D-Texas, in an interview with the El Paso Times. Perez said that El Pasoans previously had to overnight their applications across the state in order to quickly obtain a passport.
The new agency provides in-person passport services to those who need to travel through the U.S. in fewer than two weeks or who need a visa to travel internationally in four weeks or less. Same day or next day passport services are available for emergencies for a $60 fee. Normally, the process takes about six weeks.
Deputy Assistant Secretary for Passport Services Brenda Sprague visited El Paso for the agency’s opening ceremony. She said that more businesspeople are traveling, and that should an unexpected need for a passport arise, the new agency will provide one promptly to any El Pasoan in need.
“El Paso was very high on our list because we felt we were not properly supporting the borderland,” Sprague said. “You get these very complicated issues because it’s very common for people here to have business, family, residences on both sides of the border.”
The new office is one of seven agencies that the U.S. Department of State plans to open along the northern and southern U.S. borders. Agencies in San Diego, Buffalo, N.Y. and St. Albans, Vt. have been opened in recent months, and existing agencies in Portsmouth, N.H. and Hot Springs, Ark. have been expanded.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
Secretary of Homeland Security Janet Napolitano released the department’s fiscal year 2012 budget request in February, 2011, with a total proposed budget of $43.2 billion, which is a .7 percent, or $309 million, increase over the fiscal year 2011 budget.
“On a daily basis, the Department of Homeland Security secures U.S. air, land, and sea borders; safeguards lawful trade and travel; secures federal networks; and disrupts and dismantles transnational criminal and terrorist organizations that engage in cross-border criminal activity,” Napolitano said. “The Department’s FY 2012 budget request allows us to continue to meet these evolving threats and challenges responsibly by prioritizing our essential operational requirements – while reflecting an unprecedented commitment to fiscal discipline that maximizes the effectiveness of every security dollar we receive.”
Napolitano focused specifically on securing and maintaining U.S. borders and enforcing and administering U.S. immigration laws.
In 2012, the Department of Homeland Security will support an all-time high of over 21,000 Border Patrol agents and a similar number of U.S. Customs and Border Protection officers. The budget also includes funding for additional surveillance technology on the southwest border of the U.S. and investments in technology for the long northern border between the U.S. and Canada. Additional funding will go toward the Coast Guard’s national security program and will allow the Coast Guard to invest in 46 new vessels, several aircraft, and improvements to existing facilities.
Funding will also go toward enforcement of immigration laws and streamlining the legal immigration process. U.S. Immigration and Customs Enforcement maintains over 33,000 detention beds for detained aliens and removes more than 200,000 criminal aliens per year.
Napolitano also plans to roll out Secure Communities, a program that allows government offices to share information about detained foreign nationals, to 96 percent of all jurisdictions nationwide. The budget also includes an expansion of the E-Verify system, which allows businesses to use an Internet-based program to confirm new hire employment eligibility in the United States.
Additional funding will go toward integration efforts, English language and citizenship education programs, improvements to detainee health care, and improving detainee access to family members and legal representation.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
The United States Citizenship and Immigration Service announced in January, 2011, that 16 new countries have been added for the first time to a list of nations whose citizens can work temporarily in the United States on guest worker visas.
The five former communist nations of Estonia, Hungary, Latvia, Macedonia and Slovenia were added to a list of countries whose nationals are eligible to participate in the H-2A and H-2B programs. Also added were the Oceanic countries of Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuval and Vanuatu. The island nation of Barbados in the Caribbean was also added. The new additions bring the total of countries who are eligible for temporary guest-worker visas this year to 53.
Countries eligible for the program are updated yearly. A total of 38 countries remained on the list from last year to this year, though Indonesia was removed because it “is not meeting the standards set out in the regulation,” according to USCIS.
A country must meet four factors to have its citizens deemed eligible to apply for H-2A and H-2B visas. The factors include: the country’s cooperation in issuing travel documents for citizens and residents who are subject to a final order of removal, the number of final and unexecuted orders of removal against citizens and residents, the number of executed orders of removal against citizens and residents, and other factors that serve the U.S. interest.
H-2A and H-2B allow U.S. businesses to hire foreign nationals to fill jobs for which U.S. citizens cannot meet the need.
H-2A visas allow foreign nationals into the U.S. for temporary or seasonal agricultural work. There are currently 30,000 such workers in the United States, who are covered under law by U.S. wage laws, worker’s compensation and other standards.
H-2B visas allow employers to hire foreign nationals for temporary nonagricultural services or labor. Employers who wish to employ H-2B workers must apply for certification. H-2B workers can only be hired if there are insufficient U.S. workers who can fulfill the need for the temporary service and if their employment will not affect the wages and conditions of similarly situated U.S. workers, in addition to meeting other requirements.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
The Obama Administration pulled the plug in mid-January, 2011, on a plan to build a high-tech border fence on the United States and Mexico border in Arizona.
The project, which would have cost taxpayers $2.5 billion, involved the installation of sensors and cameras at the U.S.-Mexico border to detect illegal crossers.
The Department of Homeland Defense has been reviewing the plan for the past year, after DHS Secretary Janet Napolitano asked for an assessment of the program to determine its value. Initial results proved poor for the plan, which has been plagued since its inception by cost overruns, technological failures and delays.
The plan took a huge hit in May when a Government Accountability Office determined that the capabilities of the fence had shrunk from the initial plan.
In its place, the DHS plans to implement a new plan comprised of a combination existing, proven technology. It will use mobile surveillance systems, unmanned aircraft and thermal-imaging devices, and will cost $750 million, significantly lower than the cost of the canceled plan. Napolitano said that the new plan will also cover 323 miles of the Arizona border, a dramatic increase from the 53 miles that the canceled plan would have covered.
Funding for the program, known as SBInet, had been frozen since March while the assessment was being carried out.
DHS officials said that some aspects of the SBInet system had been successful in testing, including stationary radar and infrared and optical sensor towers, and may be included in future plans.
Some members of Congress applauded the DHS decision, calling the program “unrealistic” and “long-troubled.” Even Obama’s critics in Congress did not challenge the decision to shut down the project.
“The SBInet program has been a grave and expensive disappointment since its inception,” said Rep. Bennie Thompson of Mississippi, the ranking member of the House Homeland Security Committee. “Our committee has held 11 hearings on the project, commissioned five critical GAO reports, all while costing taxpayers nearly $1 billion for only 53 miles of coverage. I am glad that DHS and [U.S. Customs and Border Protection] are finally listening to what we have been saying for years – that the sheer size and variations of our borders show us a one-stop solution has never been best.”
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
Three men recently pleaded guilty to an immigration scam to procure visas for foreign nationals if the latter agreed to purchase home-construction companies.
Richard A. Murdoch, of Florida, pleaded guilty to fraud and tax evasion. Two U.K. residents, Hugh Morgan and Christopher A. Barrett, pleaded guilty to conspiracy to commit immigration fraud.
The men owned and operated a business called Royal Development, which served as a front organization for the lucrative immigration. According to the Department of Justice, the men promised foreign nationals living arrangements and help with immigration documents if the foreign nationals agreed to purchase construction businesses in Florida.
The conspirators advised foreign nationals that that the conspirators would file all of the immigration and visa paperwork, as well as help foreign nationals adjust to life after moving to the United States. The conspirators also promised that once the immigrants had purchased a construction company, the immigrants would receive help running it.
The men charged foreign nationals between $65,000 and $165,000, which included both the purchase of a construction company and the immigration paperwork. The men obtained $2.4 million from U.K. investors, according to figures released by the Department of Justice.
The three men were arrested on April 26, 2010. Morgan was arrested in Florida, where he lived, along with Murdoch. Barrett was arrested by law enforcement officials in Ontario, Canada, where he was living. Barrett was extradited to the United States on charges relating to the case that were filed in 2009.
In his plea document, Murdoch admitted to submitting false statements in the documents and affidavits he submitted for foreign nationals. He also admitted to bringing in over $500,000 from Royal Development between 2003 and 2005, and without paying taxes on any of it. According to the plea, Murdoch used the $189,852 that should have paid to the U.S. government, to buy cigars, go hang gliding and purchase a 1987 Porsche. Morgan and Barrett admitted to making false claims to immigration officials.
Murdoch faces a maximum of 10 years in prison for visa fraud and five additional years for tax evasion. Morgan faces a maximum of five years in prison for each conspiracy charge, and Barrett faces a total maximum of five years in prison for conspiracy to commit immigration fraud. All three face additional fines up to $250,000 for each charge.
Foreign nationals can enter the United States legally through several investor classifications, each of which requires strict compliance with U.S. immigration law. An experienced immigration lawyer can help to ensure both that the process goes as smoothly and has has an increased likelihood of a successful outcome.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
As of January 7, 2011, USCIS has receipted approximately 58,700 H-1B cap-subject petitions. Additionally, it has receipted 20,000 H-1B petitions for foreign nationals with advanced degrees. Federal law exempts the first 20,000 H-1B petitions filed for foreign nationals who have obtained US masters or higher degrees from the 65,000 overall H-1B cap.
The newest technology in the U.S. government’s effort to improve border security – radio frequency identification devices, or RFID – is being testing with a pilot program at a border crossing in El Paso, Texas.
The 90-day program allows travelers who have approved RFID documents to cross the El Paso/Mexico border through two special RFID-only lanes. Officials say that traveling across a border with RFID documents is faster and more efficient than traveling with traditional documentation. The estimate is that wait times are approximately 25 percent shorter with RFID.
Travelers passing through one of the new lanes must first hold their RFID documents up near the windows of the vehicle on the driver’s side. A machine scans the microchips inside of them and transmits the information – which includes the driver’s name, age, sex and address – to a U.S. Customs and Border Protection officer in a booth. The process is significantly quicker because an officer does not have to manually input the travelers’ information into the computer.
RFID documents became mandatory for all U.S. and Canadian citizens over the age of 16 crossing into the United Sates as a result of the Western Hemisphere Travel Initiative which went into effect in June of 2009. Available documents include U.S. passport cards, Legal Permanent Resident “green card” cards, Border Crossing Cards and most new passports. Some states also offer RFID enabled “enhanced” driver’s licenses.
Officials say WHTI compliant RFID documents will not only cut down crossing time, but also protect the U.S. from terrorism. WHTI was signed into law after the September 11, 2001 terrorist attacks and is a part of the Intelligence Reform and Terrorism Prevention Act. Because RFID information is more difficult to replicate, officials expect WHTI to curb fraudulent documents.
The El Paso “Ready Lanes” will be open from 6 a.m. to 10 p.m. daily and are the first in the U.S. to be open only to travelers with RFID documents. U.S. Customs and Border Protection officers have been distributing fliers to travelers and posting large signs at borders informing them of the new options.
Many expect the program to become more widespread if the El Paso program is successful and cuts down wait times while preventing fraudulent crossings.
