The National Visa Center released its annual report of immigrant visa applicants in the family-sponsored and employment-based preferences in early November, 2010. Dallas-based immigration attorney Stewart Rabinowitz of the firm Rabinowitz & Rabinowitz breaks down the numbers and advises applicants on what steps to take.
The majority of immigrant visa applicants are eligible based on either employer or family sponsorship. Most categories receive more applicants than the limit every year, so additional applicants are placed on a waiting list, with priority based on filing date.
On the employment side, “Priority Workers – those with outstanding abilities in business, athletics, the arts, education or the sciences – have the best chance of having a visa immediately available,” said Stewart Rabinowitz, a Dallas immigration lawyer with the firm Rabinowitz & Rabinowitz. “A foreign national in this classification must prove that he or she is on of the very few at the top of their field, an increasingly difficult standard to meet.” Unlike others who file for a visa based on employment, these workers can self-petition and do not need prior approval from the Department of Labor.
Those with advanced degrees (with limited exception), bachelor’s degrees or those with two years of training or experience who have desirable skills must first obtain certification of available U.S. workers through the Department of Labor. Visa backlogs, especially for applicants from India or China with advanced degrees, may have a 5-year wait for a visa to become available; those with bachelors degrees from either country may have a 10 or more year wait. Applicants with advanced degrees grew by 7 percent between 2009 and 2010, while those with lesser degrees or desirable skills or training shrunk by .5 percent. The waiting list for employment-based visas grew as a whole by 33.8 percent, or 1,183,429 people.
On the family side, a U.S. citizen can file a petition for a spouse, for children, and for brothers and sisters. Mexico has the single highest amount of visa applicants based on family, with almost 1.4 million people on the waiting list. The Philippines is the second highest, with just shy of 500,000. India, Vietnam, China and the Dominican Republic all also have sizable waiting lists of more than 100,000 people.
“Our Firm has successfully represented many foreign nationals who have immigrated based on employment or family status,” Rabinowitz said. “We offer comprehensive evaluations for businesses who seek to immigrate a needed foreign national employee or for individuals who seek to bring family members. With increased scrutiny at every turn by different branches of the federal government, charting a course to successfully negotiate the complex minefield of U.S. immigration law has never been more difficult.”
Department of Homeland Security Secretary Janet Napolitano announced early this month that the E-Verify program would be expanded to include U.S. passport photo matching. Dallas-based immigration attorney Stewart Rabinowitz of the firm Rabinowitz & Rabinowitz weighs in on the program.
E-Verify is an Internet-based program that employers can use to check if a potential employee is eligible to work in the United States. The program then compares the information from the employee’s Employment Eligibility Verification Form I-9 to data already on file in U.S. government records. If the records match, the employee is eligible to work. If not, the employee can still work but must resolve the problem within eight days.
“Adding U.S. passport photos expands our current photo matching efforts and will play a significant role in preventing and detecting the use of fraudulent documents – all part of major anti-fraud initiatives undertaken by the Department,” said U.S. Citizenship and Immigration Services Director Alejandro Mayorkas in a press release.
Approximately 10 percent of current E-Verify inquiries already use passports or passport cards. The Department of Homeland Security says that the upgrades will decrease the likelihood that someone will be able to beat the system with forged documents.
Critics argue that the E-Verify program has several flaws that slightly decrease its effectiveness.
“While E-Verify permits employers to authenticate that their new employees are eligible to work in the United States, the program remains error-plagued,” said Dallas-based immigration attorney Stewart Rabinowitz of the firm Rabinowitz & Rabinowitz. “Unfortunately, the error rate for E-Verify is currently around 8 percent, due to changing last names after marriage, and, troublingly, permanent residents who naturalize.”
The program is, so far, not mandatory for most employers. The federal government only began requiring E-Verify for its new employees in October 2007. Only Mississippi and Arizona have passed bills that require all employers to use E-Verify. The state of Illinois went to court after it tried to ban E-Verify, but that ban was shot down.
E-Verify was created in 1997 as part of the Basic Pilot Program, along with two other programs also designed to keep illegal aliens from getting jobs. The other two were eventually canceled, but E-Verify has slowly expanded since its inception.
The program, Secure Communities, allows U.S. Immigration and Customs Enforcement (“ICE”) to examine detainee fingerprints sent from local law enforcement agencies. ICE searches for a fingerprint match in the Department of Homeland Security databases, which contains data on both lawful and unlawful foreign nationals. ICE then makes a determination whether to initiate removal proceedings.
Opponents of the program argue that it is open to abuse because an individual’s immigration history is investigated regardless of the crime.
“This leaves the door open to a pretext arrest of a person whom the police believe looks like an illegal immigrant,” said Dallas-based immigration attorney Stewart Rabinowitz of Rabinowitz & Rabinowitz, P.C. “If the police are correct, ICE will detain and remove the person and there will never be trial on the charges prompting the arrest. Police only need to allege the commission of a crime – regardless of probable cause.”There are no safeguards in place to prevent this from happening, as ICE does not monitor local law enforcement agencies for procedural or civil rights violations.
Proponents of the program cite the removal of large numbers of foreign nationals from the United States and frequently look no further. But the Department of Homeland Security and ICE set annual priorities, and chief among them is the removal of dangerous, criminal aliens from the United States.
Measured by the number of dangerous criminals removed, ICE’s own statistics reveal that Secure Communities has been ineffective. From October 2009 to August 2010, only 16 percent of people deported were found to have committed serious crimes. “The program is supposed to protect the U.S. from people who pose a danger to public safety, but it ends up doing much more than that. It deports people who pose no threat, while dangerous criminal aliens still remain at large,” Rabinowitz said. “Secure Communities as an unchecked federal program enables racial profiling.”
And the Department of Homeland Security has told those localities that have decided to no longer participate in Secure Communities because of its perceived adverse affects on police-community relations that localities cannot opt out of the program.
ICE plans to extend the program to every state in the U.S. by next year, and hopes to be in all 3,100 state and local jails by 2013.
Social networking websites are currently seeing extensive popularity, some of them connecting more than 500 million people across the world. Dallas-based immigration attorney Stewart Rabinowitz of the firm Rabinowitz & Rabinowitz advises social network users to only connect to people they already know.
People use social networking websites for numerous reasons – to keep in touch with family across long distances, to search for romantic partners and sometimes even to find completely new friends based on similar interests. Many users choose to connect with people they do not know in the outside world to enhance the amount of virtual “friends” they have to appear more popular. On most social networks, this means that the new “friend” can see all of the user’s private information, as well as any correspondence the user has with close friends or family.
“Connecting to people you don’t actually know is a terrible idea,” said Dallas-based immigration attorney Stewart Rabinowitz of the firm Rabinowitz & Rabinowitz. “There is nothing wrong with creating a private profile to stay in contact with close friends and family, but allowing total strangers to view personal information is a mistake.”
When a user posts information on a social networking site, it creates a public record and timeline of his or her activities. Users can set privacy settings to strict levels on most sites, allowing only friends to view this information. However, privacy settings are worthless when a user connects to strangers.
“People who post personal information on social networking websites and become friends with mass amounts of people they do not know could potentially be opening themselves up to easy surveillance,” Rabinowitz said. “The government knows these sites exist. There are documented cases where law enforcement officials and immigration officers tracked social networking users and used the information they posted against them in court.”
The process of creating a social networking profile is simple on most sites. The user often needs only to submit an e-mail address and a password to create an individual page. The user can then post whatever personal information and photographs he or she wants, even if the information is untrue or the photographs are of someone else.
That someone else could be a spammer, a data thief or even an agent from the Fraud Detection and National Security office, which recently issued a memo that said, “Social Networking gives FDNS an opportunity to reveal fraud by browsing these sites to see if petitioners and beneficiaries are in a valid relationship or are attempting to deceive [the U.S. Bureau of Citizen and Immigration Services] about their relationship.”
“The attractive girl from California who sent you that friend request because she saw you both like the beach might actually be someone who wants to track what you post. Use your discretion. Set privacy levels to the strictest settings, post as little personal information as possible and only connect to people you actually know. You never know who could be trying to access your information,” Rabinowitz said.
The annual inflow of unauthorized immigrants – sometimes referred to in the mainstream media as “illegal immigrants,” or in an even less favorable light as “illegals” – was nearly two-thirds smaller in the March 2007 to March 2009 period than it had been from March 2000 to March 2005, according to new estimates by the Pew Hispanic Center, a project of the Pew Research Center.
This sharp decline has contributed to an overall reduction of 8 percent in the number of unauthorized immigrants currently living in the United States – to 11.1 million in March 2009 from a peak of 12 million in March 2007, according to the estimates. The decrease represents the first significant reversal in the growth of this population over the past two decades.
“You would think that this would be a major news story, and be getting a lot of attention from the U.S. media,” said Dallas-based immigration attorneyStewart Rabinowitz of the firm Rabinowitz & Rabinowitz. “But for some reason, the opposite message – that unauthorized immigration is out of control and continues to increase at unprecedented rates – is what anti-immigration voices in the media trumpet and what even so-called ‘moderate’ voices acquiesce to. Unfortunately, the reasons for this are best explained as political and part of an agenda.”
The Pew Hispanic Center’s analysis also finds that the most marked decline in the population of unauthorized immigrants has been among those who come from Latin American countries other than Mexico. From 2007 to 2009, the size of this group from the Caribbean, Central America and South America decreased 22 percent.
“Often some of the anti-immigration pundits and commentators will exaggerate and use hyperbole to say that next to Mexico, many other dark-skinned persons from points further south are sneaking in across the U.S.-Mexican border, although they will use language a bit more toned down than that, and they make their intent well-known,” Rabinowitz said. “What they are saying on talk radio tends to be thinly veiled.”
Lack of a factual basis fails to deter anti-immigration voices. The Pew Center’s analysis also noted that the inflow of Mexican unauthorized immigrants peaked at 7 million in 2007 and has since leveled off.
The Department of Homeland Security will deploy 2,200 Border Patrol agents along the northern border by the end of 2010. Dallas-based immigration attorney Stewart Rabinowitz of the firm Rabinowitz & Rabinowitz believes that such additional allocation of personnel has its pros and cons.
On Aug. 25, Department of Homeland Security (DHS) Secretary Janet Napolitano visited Piegan, Sweetgrass, Sunburst, and Havre, Montana, with Senators Max Baucus and Jon Tester and U.S. Customs and Border Protection (CBP) Commissioner Alan Bersin to tour CBP operations and meet with state and local officials, law enforcement personnel, and private sector stakeholders regarding DHS’s efforts to secure the northern border.
“We have made critical security enhancements along our northern border, investing in additional personnel, technology, and infrastructure to meet the security and operational requirements of our post-9/11 world,” Napolitano said. “DHS is committed to working closely with our federal, state, local and tribal law enforcement partners with the citizens of Montana to protect the border while facilitating legal trade and travel.”
State of the art technologies now put in place at Piegan and Sweetgrass ports of entry include thermal camera systems and Mobile Surveillance Systems. A roundtable discussion was held in Sunburst, Montana involving federal, state, local, tribal, and Canadian law enforcement to discuss potential methods of combating transnational crime and illicit drug smuggling along the northern border. DHS expects to have more than 2,200 Border Patrol agents along the northern border by the end of 2010 – a 700 percent increase since Sept. 11, 2001 – in addition to the approximately 5,800 CBP officers already stationed in northern border states.
“While more stringent security and safeguards are expected in the wake of the events which so traumatized Americans nine years ago, especially since several of the nineteen hijackers of jet planes were known to have entered the United States via Canadian routes to wreak their havoc, I question if the right questions are being asked when security and safeguards are being formulated, let alone being implemented. Are we as a nation simply being reactive or truly proactive – in the primarily enforcement-focused measures being taken, repetitively and continually, during the years since?” asked Dallas-based immigration attorney Stewart Rabinowitz, of the firm Rabinowitz & Rabinowitz.
Rabinowitz wonders about immigration patterns, scrutiny and leeway being granted or denied, and about excess concern with U.S.-Canada trade interactions, as individuals are too often lost in the paranoiac shuffle, or worse, subject to CBP abuses committed in the name of enhanced security. “These may have far reaching consequences too,” Rabinowitz said.
Dallas-based immigration lawyer Stewart Rabinowitz provides timely insights about the controversial suit.
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.
U.S. Citizenship and Immigration Services seeks public comment on proposal to adjust fees for immigration benefits. Dallas-based immigration attorney Stewart Rabinowitz weighs in on what he regards as the opposite of “value-added.”
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.”
On June 8, 2010, an application for preliminary injunction and complaint was filed in the U.S. District Court for the District of Columbia which challenges USCIS’s application of the January 8, 2010 Neufeld Memorandum‘s definition of employer-employee relationships. Stewart Rabinowitz, a Dallas-based immigration attorney, offers some pertinent insights.
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.”
According to Rabinowitz, of the firm Rabinowitz & Rabinowitz, the report released on April 1, 2010, by Congressional Research Services on U.S. Immigration Policy on Permanent Admissions implies that U.S. policy faces conflicting and still unresolved issues.
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.
