Citing conflict with Federal Law, the Department of Justice has challenged Arizona immigration law Senate Bill 1070. In a brief filed in the District of Arizona, the Department said S.B. 1070 unconstitutionally interferes with the federal government’s authority to set and enforce immigration policy, explaining that “The Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.”

“Having contradictory state and local policies would disrupt federal immigration enforcement, which isn’t necessarily a good idea,” asserts Dallas-based immigration lawyer Stewart Rabinowitz, “It can be argued that the state of Arizona has crossed a constitutional line.”

The Department’s brief said that S.B. 1070 will place significant burdens on federal agencies, diverting their resources away from high-priority targets, such as aliens implicated in terrorism, drug smuggling, gang activity, and those with criminal records. The law’s mandates on Arizona law enforcement will also result in the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status.

Rabinowitz amplifies the latter point. “Although the Arizona proponents of S.B. 1070 always insist that racial profiling is expressly prohibited in the language of the bill, in practice, just the opposite effect is likely to occur – considering the socio-political milieu which exists in Arizona,” he said.

In declarations filed with the brief, Arizona law enforcement officials, including the Chiefs of Police of Phoenix and Tucson, said that S.B. 1070 will hamper their ability to effectively police their communities. The chiefs said that victims of or witnesses to crimes would be less likely to contact or cooperate with law enforcement officials and that implementation of the law would require them to reassign officers from critical areas such as violent crimes, property crimes, and home invasions.

“It’s likely that enforcement of S.B. 1070 would lead to near-zero enforcement in many areas – creating a kind of chaos,” Rabinowitz concludes.

The Department filed the suit after extensive consultation with Arizona officials, law enforcement officers and groups, and civil rights advocates. The suit was filed on behalf of the Department of Justice, the Department of Homeland Security, and the Department of State, which share responsibilities in administering federal immigration law.

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.

U.S. Citizenship and Immigration Services (USCIS) is seeking public comment on a proposed federal rule that would adjust fees for immigration benefit applications and petitions. The proposal, posted to the Federal Register on June 9, 2010, for public viewing, would increase overall fees by a weighted average of about 10 percent but would not increase the fee for the naturalization application.

USCIS is a fee-based organization with about 90 percent of its budget coming from fees paid by applicants and petitioners to obtain immigration benefits. The law requires USCIS to conduct fee reviews every two years to determine whether it is recovering its costs to administer the nation’s immigration laws, process applications, and provide the infrastructure needed to support these activities. This proposed rule results from a comprehensive fee review begun in 2009.

“We are mindful of the effect of a fee increase on the communities we serve and have worked hard to minimize the size of the proposed increase through budget cuts and other measures,” said USCIS Director Alejandro Mayorkas. “Requesting and obtaining U.S. citizenship deserves special consideration given the unique nature of this benefit to the individual applicant, the significant public benefit to the nation, and the nation’s proud tradition of welcoming new citizens. Recognizing the unique importance of naturalization, we propose that the naturalization application fee not be increased.”

But Dallas-based immigration attorney Stewart Rabinowitz does not concur with Mayorkas, or with the underlying premise of fee increases for services not well rendered.

“Most people associate a fee increase with an improvement in service, not a greater expense for worse service,” countered Rabinowitz, “Yet today, the USCIS’s culture of saying ‘no’ in its decision-making thrives. USCIS has even developed new reasons to say ‘no’ adding an element of uncertainty to case adjudications which previously were straightforward. It recently issued the Neufeld H-1B memo which skirts the regulatory process and is of questionable authority as a basis for denying IT staffing H-1B petitions. It has made it nearly impossible gaining an approved L-1B petition by applying standards which are much higher than those set forth in USCIS’s own regulations. Even fixing simple USCIS errors on the face of an approval notice remains an exercise in frustration.”

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.

On June 8, 2010, a group of IT staffing companies, whose H-1B petitions USCIS had denied, filed suit against USCIS in the U.S. District Court for the District of Columbia. The lawsuit Broadgate et al versus United States Citizenship and Immigration Services, et al, challenges the controversial Neufeld Memorandum of January 8, 2010, which allegedly clarifies employer-employee relationships within H-1B visa petition adjudications, but in practice has resulted in a preponderance of H-1B denials.

Individual plaintiffs in the case – Broadgate Inc., Logic Planet Inc., DVR Softek Inc., TechServe Alliance, and the American Staffing Association moved for a preliminary injunction to prevent the USCIS from implementing the policy announced in a January 8, 2010 memorandum issued by Donald Neufeld, Associate Director of USCIS. The memorandum declared that a third-party placement contractor is not a United States employer even though the company hires, pays, supervises, fires its employees, and shares control over them, and even though prior to the implementation of the policy initially announced in the memorandum, such an entity was deemed to be a United States employer. It was the preliminary injunction’s contention that this new policy is arbitrary and capricious, while it explicitly changes an existing regulation, limits USCIS’s discretion, and profoundly affects plaintiffs and others outside the government.

Plaintiffs in the suit allege that the Neufeld Memorandum was at odds with the plain language of the statute and its implementing regulations. The Neufeld Memorandum is premised on the assumption that an employee can have only one employer and that “the real employer” is the entity that exercises the greatest day-to-day control. It therefore proclaims that third-party placement contractors that have an overarching right to supervise their employees, that hire, fire and pay their employees and that share control of those employees nevertheless are not valid employees because they have “No Right to Control; No Exercise of Control.” This binding policy is inconsistent with the plain language of the INA which expressly includes contractors as United States employers.

Stewart Rabinowitz, a Dallas-based immigration attorney, concurs. “Broadgate appropriately challenges USCIS agency action on many grounds. Its Complaint alleges a violation of the Administrative Procedures Act (APA) by substituting a USCIS-issued memo by a person not authorized to issue a rule, instead of following the statutorily mandated notice and comment requirements of the APA.”

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.

Four major principles underlie current U.S. policy on permanent immigration: the reunification of families, the admission of immigrants with needed skills, the protection of refugees, and the diversity of admissions by country of origin. These principles are embodied in the Immigration and Nationality Act (INA). The INA specifies a complex set of numerical limits and preference categories that give priorities for permanent immigration reflecting these principles. Legal permanent residents (LPRs) refer to foreign nationals who live permanently in the United States.

During FY2008, a total of 1.1 million aliens became LPRs in the United States. Of this total, 64.7% entered on the basis of family ties. Other major categories in FY2008 were employment based LPRs (including spouses and children) at 15.0%, and refugees/asylees adjusting to LPR status at 15.0%. Over 17% of all LPRs come from Mexico, which sent 189,989 LPRs in FY2008.

“But U.S. Immigration Policy is not working well,” asserts Stewart Rabinowitz, a Dallas-based lawyer of the firm Rabinowitz & Rabinowitz, “and neither are efforts to reform it.”

Substantial efforts to reform legal information have failed in the recent past, prompting some to characterize the issue as a “zero-sum game” or a “third rail.”

“The trick is to initiate reforms that balance employer needs by increasing the supply of legally present foreign workers whom the country needs. These include temporary, low skilled, guest workers, and permanent high skilled “best and brightest” workers to keep the U.S. globally competitive while allowing foreign workers to re-unite with their families, and by improving the policies governing immigration comprehensively – and simultaneously,” explains Rabinowitz.

But while state initiated solutions like the controversial Senate Bill 1070 in Arizona have become law to solely address the undocumented population, and an existing federal piece meal enforcement policy such as the somewhat similar 287 (g) program deputizing local and county police to act as immigration officers, neither can be mistaken for an elusive comprehensive policy for immigration reform. Comprehensive reform must address strengthening our borders, creating and implementing a meaningful guest worker program, adequately providing for the high skilled worker needs of the country and deciding upon a policy to address the sizable undocumented population in the country.

“The Arizona law is poorly conceived and sets a dangerous precedent, acting more to polarize and foster discrimination,” Rabinowitz asserts, “and 287 (g) has been an unmitigated disaster, if only from the perspective of documented abuses involving foreign nationals detained by ICE. As far as addressing the significant issues involved, we are still very distant from any sort of comprehensive or meaningful reform. To address competing priorities, some genuine leadership and far-sighted initiatives will be needed, but right now, such a solution seems more like a pipedream,” Rabinowitz concludes.

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.

The March 31, 2010 Supreme Court decision on the obligations of counsel for noncitizens charged with committing a crime has been applauded generally by immigration lawyers. The Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences arising out of criminal convictions, and that Congress eliminated from these laws the Attorney General’s discretionary authority to cancel removal in meritorious cases. The Court said, “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.”

The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. The high Court’s decision reverses the Kentucky court. It also rejected the federal government’s position (which had been adopted by several courts) that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea.

“Everyone should have the right to effective counsel,” explained Stewart Rabinowitz of the Dallas-based law firm Rabinowitz & Rabinowitz, “it’s perhaps the most crucial tenet of our criminal justice system. By this decision, the Supreme Court affirms that immigrants should not be considered at fault when they rely on incorrect advice from their lawyers or where their lawyers fail to provide any immigration advice at all.” According to Rabinowitz, this decision is also a stark reminder that the lockstep increased criminalization of immigration law coupled with limitations on judicial discretion is not a solution to potential immigrant malfeasance. “In a compassionate or just nation, each person facing deportation should at least get an opportunity to have a day in court,” Rabinowitz concludes.

U.S. consular posts in Canada are increasingly refusing visas to third country national applicants (TCNs) with foreign degrees who have not been previously issued H-1B visas from their home posts, and are referring them to their home countries for visa processing. U.S. posts in Canada have long shown a distrust of degrees that are not from the U.S. or Canada, in large measure due to past discoveries of fraudulent degrees from certain parts of the world.

While US posts in Canada do not publish this as official policy, they provide the following warning for H-1B applicants, “Evidence of qualifications must be original or certified copy. Consular offices in Canada may refuse to issue a visa to H-1B applicants if their education and/or work experience is based solely or predominately from a country other than the U.S. or Canada.”

Examining this issue from a historical perspective, Stewart Rabinowitz of the Dallas-based law firm Rabinowitz & Rabinowitz makes reference to situations that would arise in both Canada and the United States involving purported nurses from the Philippines. “Women, and occasionally men, would present nursing degrees from the Philippines that could not be verified, and in some cases turned out to be fraudulent,” Rabinowitz asserts, “an element of distrust became a natural outgrowth.”

More specifically, Rabinowitz considers the Canadian policy in light of policy at the US post in Ciudad Juarez. “The position of US posts in Canada mirrors that of the US post in Ciudad Juarez (“CDJ”) regarding nonimmigrant applicants who last entered the US in B-2 visitor visa status and who later changed to a different status through USCIS. If a foreign national enters the US in B-2 visitor visa status, changes status to H-1B, and then applies for an H-1B visa at CDJ, CDJ will not accept the visa application. The concern is that there may be inconsistencies between what the foreign national said to obtain the visitor’s visa and what the foreign national did by subsequently changing status while in the US which are best resolved by the home country. Putting aside concerns of whether such a position is actually justified, the policy also lessens the volume of third country nationals – non-Canadians – applying for nonimmigrant visas at US posts in Canada.”

Four major principles underlie current U.S. policy on permanent immigration: the reunification of families, the admission of immigrants with needed skills, the protection of refugees, and the diversity of admissions by country of origin. These principles are embodied in the Immigration and Nationality Act (INA). The INA specifies a complex set of numerical limits and preference categories that give priorities for permanent immigration reflecting these principles. Legal permanent residents (LPRs) refer to foreign nationals who live permanently in the United States.

During FY2008, a total of 1.1 million aliens became LPRs in the United States. Of this total, 64.7% entered on the basis of family ties. Other major categories in FY2008 were employment based LPRs (including spouses and children) at 15.0%, and refugees/asylees adjusting to LPR status at 15.0%. Over 17% of all LPRs come from Mexico, which sent 189,989 LPRs in FY2008.

“But U.S. Immigration Policy is not working well,” asserts Stewart Rabinowitz, a Dallas-based lawyer of the firm Rabinowitz & Rabinowitz, “and neither are efforts to reform it.”

Substantial efforts to reform legal information have failed in the recent past, prompting some to characterize the issue as a “zero-sum game” or a “third rail.”

“The trick is to initiate reforms that balance employer needs by increasing the supply of legally present foreign workers whom the country needs. These include temporary, low skilled, guest workers, and permanent high skilled “best and brightest” workers to keep the US globally competitive while allowing foreign workers to re-unite with their families, and by improving the policies governing immigration comprehensively – and simultaneously,” explains Rabinowitz.

But while state initiated solutions like the controversial Senate Bill 1070 in Arizona have become law to solely address the undocumented population, and an existing federal piece meal enforcement policy such as the somewhat similar 287 (g) program deputizing local and county police to act as immigration officers, neither can be mistaken for an elusive comprehensive policy for immigration reform. Comprehensive reform must address strengthening our borders, creating and implementing a meaningful guest worker program, adequately providing for the high skilled worker needs of the country, and deciding upon a policy to address the sizable undocumented population in the country.

“The Arizona law is poorly conceived and sets a dangerous precedent, acting more to polarize and foster discrimination,” Rabinowitz asserts, “and 287 (g) has been an unmitigated disaster, if only from the perspective of documented abuses involving foreign nationals detained by ICE. As far as addressing the significant issues involved, we are still very distant from any sort of comprehensive or meaningful reform. To address competing priorities, some genuine leadership and far-sighted initiatives will be needed, but right now, such a solution seems more like a pipedream,” Rabinowitz concludes.

U.S. Citizenship and Immigration Services (USCIS) recently announced that the Department of Homeland Security (DHS) will extend Temporary Protected Status (TPS) for nationals of Nicaragua and Honduras from the current expiration of July 5, 2010 to the new expiration date of January 5, 2012. During the past year, DHS and the Department of State have reviewed the conditions in Nicaragua and Honduras. Based on this review, Secretary of Homeland Security Janet Napolitano has determined that an 18-month extension is warranted because the conditions that prompted the TPS designation in 1999 following the environmental disaster caused by Hurricane Mitch persist and prevent Nicaragua and Honduras from adequately handling the return of its nationals.

“This timely extension will help over 70,000 nationals from Nicaragua and Honduras remain in the U.S. legally and maintain work until their home countries have been able to recover from the damage accrued,” Rabinowitz says.

Under the extension, individuals who have been granted TPS are eligible to re-register and maintain their status for an additional 18 months provided they remain otherwise eligible for TPS. There are approximately 3,000 nationals of Nicaragua and approximately 66,000 nationals of Honduras (including people having no nationality who last habitually resided in either country) who may be eligible for re-registration. TPS does not apply to Nicaraguan or Honduran nationals who entered the United States after December 30, 1998.

To maintain TPS status, Nicaraguan and Honduran TPS beneficiaries must re-register during the re-registration period from May 5 until July 5, 2010. It is important for eligible Nicaraguans and Hondurans to re-register as soon as the re-registration period opens to allow sufficient time for USCIS to complete all the routine background checks and further application processing. Applications from Nicaraguan and Honduran TPS beneficiaries will not be accepted before May 5, 2010.

“USCIS will issue a new Employment Authorization Document to eligible TPS beneficiaries who can re-register in a timely fashion and apply for EADs,” states Rabinowitz. “USCIS is automatically granting a 6-month extension for existing EADs held by Nicaraguan and Honduran TPS beneficiaries, through January 5, 2011.This extension will allow sufficient time for eligible TPS beneficiaries to re-register and receive new EADs without any break in their authorization to be employed,” concludes Rabinowitz.

On February 24, 2010, U.S. Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) introduced bipartisan legislation to drive job creation and increase America’s global competitiveness by helping immigrant entrepreneurs secure visas to the United States.
The StartUp Visa Act of 2010 will allow an immigrant entrepreneur to receive a two year visa if he or she can show that a qualified U.S. investor is willing to dedicate a significant sum – a minimum of $250,000 – to the immigrant’s startup venture.

“The Kerry-Lugar bill represents an opportunity for both foreign investors and the U.S. economy to benefit from the energy, ideas, and capital of foreign nationals,” asserts Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz.

Rabinowitz is especially intrigued by the source and amount of the investment. “By lowering the actual initial investment amount to $250,000 and shifting the source of funds to a U.S. investor for this new entrepreneurial visa, and similarly lowering the created U.S. workplace expansion to five persons – an underutilized visa category can offer a real benefit to further help kick start the U.S. economy,” Rabinowitz explains, “Because the investment must either attract additional investment totaling $1 million or generate revenue of $1 million to successfully grant a long-term U.S. immigration benefit, the program represents a welcome sign from America to the best and brightest entrepreneurial minds worldwide: Come up with great ideas and plans to implement them; we will come up with the money.”

The Startup Visa Act of 2010 would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1million into the U.S., and thereby create ten jobs, to obtain a green card. After proving that he or she has secured initial investment capital, and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, and then he or she would receive permanent legal resident status.

Rabinowitz is optimistic about the bill. “This is a win-win for the U.S. and an opportunity for foreign nationals to bring their energy here to help America grow,” he says.

But he’s also pragmatic. “We will see how much traction the bill actually gets in the highly partisan Washington D.C. environment during a midterm election year with a lightning rod issue such as immigration, even with bipartisan support, being at stake,” Rabinowitz concludes.

Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C., a Dallas based Immigration Law Firm (http: //www. rabinowitzrabinowitz.com). He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.

The Westat Report on E-Verify, commissioned by the DHS, revealed some serious shortcomings. Originally authorized as The Basic Pilot Program under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to electronically verify the work authorization status of new hires of participating employers, the program now referred to as E-Verify is the federal electronic employment verification program available to employers to validate the lawful employment status of new hires.

To verify a newly hired employee, an E-Verify participating employer submits information from the Form I-9 over a secure Internet connection to be matched against government data. The information is first matched against Social Security Administration (SSA) data and then, for noncitizens and some naturalized citizens, against Department of Homeland Security (DHS) data. If the worker attests to being a U.S. citizen and if everything between databases is in agreement, the worker is employment authorized. If information from the SSA database does not match the worker information entered, E-Verify instantly requests the employer to check for possible input errors and, if no changes are made, E-Verify issues a Tentative Nonconfirmation (TNC) finding. That’s how the process is supposed to work.

The Westat Report commissioned by the DHS revealed that E-Verify does not detect most identity fraud cases for workers who use information about real-employment-authorized persons. Asserts Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, “A 54% error rate in approving workers who are actually unauthorized to work in the United States shows a serious flaw in the program whose goal is precisely to deny employment authorization to such workers.” Rabinowitz takes this observation to its logical conclusion. “Proponents of making E-Verify mandatory for all employers should not be comforted that E-Verify, as currently configured, will rid the workplace of unauthorized workers, nor is it ready for that task nationwide.”

Exacerbating matters, E-Verify can be misused. “Some employers succumb to temptation and use E-Verify to pre-screen workers before hiring, or take improper actions against workers who contest a Tentative Noncompliance (TNC) finding of employment eligibility,” Rabinowitz explains.

If wronged by an employer, workers seldom have a failsafe to mitigate such errors. “Aggrieved workers – some even U.S. citizens –who are told to go to the Social Security Administration (SSA) or a United States Citizenship and Immigration Service (USCIS) office to contest an inaccurate non-work authorized finding then face a government agency that does not have a well-established quick procedure in place to meet the strict time limits provided such workers, frustrating the affected workers and their employers,” concludes Rabinowitz.

Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C., a Dallas based Immigration Law Firm (http: //www. rabinowitzrabinowitz.com). He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.