Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, offers some astute observations about this recent Supreme Court decision.
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.
With increasing regularity, U.S. consular posts in Canada are refusing visas to third country national applicants (TCNs) with foreign degrees who have not previously been issued H-1B visas from their home posts, and are referring them to their home countries for visa processing. Stewart Rabinowitz, of the Dallas-based firm Rabinowitz & Rabinowitz, offers some informed commentary on the matter.
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.”
Dallas-based immigration lawyer Stewart Rabinowitz offers insights on recently released report: 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 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.
Dallas-based immigration lawyer Stewart Rabinowitz of the firm Rabinowitz & Rabinowitz offers some informed comment about recent 18-month extensions of Temporary Protected Status designations for foreign nationals from Nicaragua and Honduras.
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.
Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, weighs in on the Kerry-Lugar Visa Bill.
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.
Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, offers incisive commentary about the DHS commissioned report that revealed serious shortcomings in the E-Verify Program.
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.
Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, offers some perspectives on the island nation’s current calamitous chaos.
On January 13, 2010, DHS Deputy Press Secretary Matt Chandler, in response to the devastating earthquake epicentered in Port au Prince, Haiti, announced a suspension of removals to Haiti. Chandler said, “Department of Homeland Security Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement Assistant Secretary John Morton today halted all removals to Haiti for the time being in response to the devastation caused by yesterday’s earthquake. ICE continues to closely monitor the situation.”
The Administration considered and on January 15, 2010 granted Temporary Protected Status (TPS) in the wake of the disaster. TPS allows citizens of countries so designated who are in the U.S. illegally to stay and work in the U.S. legally for up to 18 months. Haitians who were residing in the U.S. on the day of the quake and who meet other requirements are eligible to apply. Presently, the DHS is readying for the registration of what DHS estimates to be 100,000-200,000 Haitians eligible to TPS. The registration period will begin on the date that DHS publishes notice in the Federal Register. Qualifying Haitians in the U.S. will have a 180 day window thereafter in which to file. TPS can be extended multiple times depending on Department of State’s assessment of country conditions. “Conditions are horrific there, almost unimaginable,” said Stewart Rabinowitz with the Dallas-based law firm Rabinowitz & Rabinowitz, “I am pleased that the Administration wasted little time in recognizing the severity of the situation.” According to Rabinowitz, Haiti is the poorest nation in the Northern Hemisphere, and this latest natural disaster, a 7.0 magnitude earthquake, the first major event of this kind in at least 200 years, is only the latest in a string of natural disasters. “Haiti has yet to recover from Tropical Storm Fay and hurricanes Gustav, Hanna, and Ike, which pounded Haiti in August and September 2008, killing a total of 793 people and leaving hundreds more missing. The country has also experienced riots over skyrocketing food prices and must endure a continued presence of UN troops to maintain order and now, a major earthquake in a country where buildings possess very little structural integrity.”
At least qualifying Haitians here can register for TPS and obtain employment authorization and can begin to assist family members in Haiti by remittances they will be able to send home to help in that country’s rebuilding process.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit Rabinowitzrabinowitz.com.
Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, echoes some timely comments against the despicable modern-day practice of human trafficking coincident with ICE efforts to combat the practice.
Recently U.S. Immigration and Customs Enforcement (ICE) described the increasingly prevalent practice of human trafficking, which has emerged as a global phenomenon. “It’s the equivalent of 21st century slavery,” said Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, “It may include forced labor, prostitution, child labor, or indentured servitude, but every day, people of all ages in many countries lead lives of desperation that are anything but quiet. In fact, their situations may be precarious if not also outright dangerous.”
Typical scenarios are varied but may include elements of the following: A young woman is smuggled across the U.S. border with the promise of a better life. Once she arrives here, she is forced to work as a prostitute to pay off her smugglers. With no travel or identity documents and unable to speak the language, she is trapped in a nightmare with little hope for escape.
Human trafficking is a serious cross-border crime, often leading to tragic consequences, and ICE is leading a U.S. federal government effort designed to investigate and dismantle human trafficking organizations.
“Criminal networks are becoming increasingly sophisticated when it comes to human trafficking,” asserted Rabinowitz, “It is a disturbing trend that should be met with an equally sophisticated response to proactively attack these criminal entities.”
The ICE has instituted several programs dedicated to combating human trafficking including:
Assuming the lead role in the Human Smuggling and Trafficking Center (HSTC), the U.S. government’s intelligence center for federal agencies involved in combating human smuggling, human trafficking, and terrorist travel.
ICE is training law enforcement and government partners around the world, conducting training sessions on trends in trafficking, undercover operations, and conducting investigations in foreign countries.
ICE is overseeing a variety of outreach and public awareness efforts, including the “Hidden in Plain Sight” campaign to educate citizens on recognizing the signs of human trafficking and reporting suspected trafficking victims.
ICE’s efforts are paying off. The agency opened 566 human trafficking investigations in Fiscal Year 2009, a 31 percent increase over the previous fiscal year and which led to 388 arrests, 148 indictments and 165 convictions.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit Rabinowitzrabinowitz.com.
Stewart Rabinowitz, of the law firm Rabinowitz and Rabinowitz, offers his opinions about President Barack Obama’s decision to sign into law an extension of several U.S. Citizenship and Immigrations Services (USCIS) programs.
On October 28, 2009, President Barack Obama signed into law an extension of the Department of Homeland Security (DHS) Appropriations Act of 2010 which extended several key programs until September 30, 2012. The extended programs included E-Verify, the Immigrant Investor (EB-5) Pilot Program, the special immigrant visa category for non-minister religious workers, and the date by which J-1 non-immigrant exchange visitors must obtain that status in order to qualify for the “Conrad 30” program.
E-Verify, an Internet-based system operated by DHS in partnership with the Social Security Administration (SSA), allows participating employers to electronically verify the employment eligibility of their newly hired employees. Stewart Rabinowitz, an immigration lawyer for the firm Rabinowitz and Rabinowitz, believes that the program is in widespread use. “More than 168,000 participating employers at nearly 640,000 worksites nationwide currently use the program,” he says. Since Oct. 1, 2009, more than 1.3 million employment verification queries are now automatically confirmed without any need for employee action.
Adds Rabinowitz, “Despite this number, the program continues to suffer significant databases errors, especially when processing recently naturalized U.S. citizens, which has led many other employers to shy away from enrolling.”
Under the Immigrant Investor Pilot Program, USCIS will continue to receive, process, and adjudicate all Regional Center petitions. Under this program, qualifying investors who make a substantial investment in the U.S. and who create 10 U.S. worker jobs can gain permanent resident status. Through investment in pre-approved Regional Centers, foreign investors can rely on “indirect” job creation to meet the law’s requirements. Currently, there are more than 70 regional centers throughout the United States. USCIS strictly interprets requirements for this classification.
The special immigrant visa category for non-minister religious workers covers those within a religious vocation or religious occupation.
Finally, USCIS will continue to adjudicate immigration benefits covered by the “Conrad 30” program. The “Conrad 30” program allows each state health department to submit a request directly to the Department of State to initiate the waiver process for a foreign medical graduate who obtained J-1 status and who want to change to another status without leaving the U.S. to meet a two-year home residency requirement. “It’s not too difficult to imagine what might have happened in rural and other health shortage areas had the Conrad 30 program not been extended,” Rabinowitz concluded.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit Rabinowitzrabinowitz.com.
Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, offers informed commentary about the estimates of the 2008 U.S. legal permanent resident population.
The Department of Homeland Security (DHS) recently released information regarding the legal permanent resident (LPR) population living in the United States as of January 1, 2008, and has estimated that 12.6 million LPRs lived in the United States on that date. The LPR population includes persons granted lawful permanent residence, but not those who have become U.S. citizens. One-half obtained LPR status in 2000 or later; one-quarter became LPRs during 2005-07.
Data on the size and characteristics of the foreign-born population are needed to assess the impact of immigration and integration of immigrants into U.S. society. Stewart Rabinowitz, an immigration lawyer from the Dallas-based law firm Rabinowitz and Rabinowitz, explains how the estimates are compiled. “The decennial census and monthly household surveys of the Census Bureau include questions on place of birth, citizenship, and year of entry into the United States. This data provides information on the total foreign-born population, naturalized citizens, and non-citizens. National population data on the major subcategories of non-citizens, including LPRs, students, temporary workers, and unauthorized immigrants, however, are not readily available from any source and must be estimated.”In 1981, Congress discontinued an alien registration program which required all legal resident aliens to report their status annually to the legacy Immigration and Naturalization Service making direct calculations since then more difficult.Immigration data collected by DHS measures administrative events such as the number of aliens granted lawful permanent residence or the number approved for asylum, but not the population of legal permanent residents or the population as of asylees living in the United States at a point in time. Estimates of the LPR population have been derived primarily from Census and DHS data by estimating a base population as of a certain date and adding subsequent components of population change. Adds Rabinowitz, “A variant of this approach has been used by DHS to estimate the resident LPR population since 2002.”
Separate population estimates were developed for LPRs who entered the United States before 1980 and during the interval between 1980 and 2007. Two sets of estimates were added together to obtain the overall estimated population as of January 1, 2008.
