Fed Up with the Feds: States Continue Trend of Regulating Immigrants in 2008

The National Conference of State Legislatures has issued its latest report summarizing new legislation related to immigrants and refugees introduced by the states this year.

As of March 31, 2008 at least 1,106 bills have been considered in 44 states, some aimed at integrating immigrants, others aimed at deterring illegal immigration, according to the report.

The level of activity this year is comparable to this same time last year when 1169 bills and resolutions had been introduced as of April 13, 2007.

The top three areas registering the most activity are, as in recent years, law enforcement, employment, and identification documents.

The study identifies the following 10 areas attracting immigrant-related legislation this year: education, employment, health, human trafficking, id/driver’s licenses/other licenses, law enforcement, legal services, miscellaneous, omnibus/multi-issue, public benefits, voting resolutions.

The report is available here: http://www.ncsl.org/print/immig/immigreportapril2008.pdf

Didn’t Mark “Change of Status” On H-1B Application? Cap-Gap Relief Problem Remedied

USCIS has remedied the ironic situation in which the H-1B applicants most in need of cap-gap relief were being excluded due to a requirement of the new regulation that the petition be marked for “change of status.”

To rectify the problem, USCIS is allowing the petitioners to request a change of status to make these employees eligible for the cap gap relief under the new regulation.

The request for change of status must be made within 30 days after receiving a receipt notice. Petitioners should not apply until a receipt notice is received.

USCIS explains the process as follows:

To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice.

 The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.

 Special email addresses for each service center have been established specifically for this purpose. These addresses are listed below and are posted on USCIS’ website.

 E-mail addresses for requesting change of status are:

Vermont Service Center

-  Premium Processing cases: Vscppcapgap@dhs.gov

-  Non-Premium cases: Vscnonppcapgap@dhs.gov

 California Service Center

- Premium Processing cases: ppcapgap@dhs.gov

- Non-Premium cases: nonppcapgap@dhs.gov

If an F-1 student, who is the beneficiary of a selected 2009 H-1B petition, has a pending request to change to a status other than H-1B but now wants to file under the process outlined above, he or she should withdraw the previously filed change in accordance with established procedures.

For more information, please see the USCIS announcement.

New H-1B Cap Gap Rule May Not Help Those Who Need It Most

The new H-1B cap gap bridge is revealing a crack that may cause it to collapse.

The new regulation requires H-1B applications be marked “change of status” to benefit from the automatic Optional Practical Training (OPT) cap gap extension.

This requirement poses a critical problem for cap gap sufferers because they would not have been eligible to change status. Instead, those whose status would have expired before the Oct. 1 employment start date would have had to leave the country to obtain their visa, thus they would have not checked the “change of status” box.

In other words, the regulation has made itself inapplicable to the very group it is intended to protect.

AILA has called this irony to the attention of USCIS and is awaiting guidance.

We will post any update as soon as it is announced.

 

New OPT Rule Effective Today, April 8, 2008

The interim final rule regarding the extension of optional practical training (OPT) for certain foreign national students was published in today’s Federal Register, meaning the rule is now in effect.

The final rule will be issued after the Department of Homeland Security reviews public comments, which must be submitted by June 9, 2008.

The rule extends OPT for two categories of students. The first is for pending H-1B applicants who are caught in the cap gap caused by the limited annual availability of visas. Those applicants with a start date of Oct. 1, 2008, when the new H-1B visas become available, but whose OPT period will expire before Oct. 1, 2008 will receive an automatic extension of their OPT to cover them through Oct. 1, 2008, assuming the H-1B application is approved.

If the application is denied, the student has 60 days to leave the country from the date of notification of the denial.

The second category of students to benefit from the new rule are those who hold degrees in science, technology, engineering and mathematics and whose employers are enrolled in the controversial E-Verify program. OPT for these students is being extended from 12 months to 29 months, a 17-month increase.

The published rule in the Federal Register is available here: http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf

For more information about this new rule, please see our earlier article OPT Extension to Benefit H-1B applicants and STEM students. 

OPT Extension To Benefit H-1B Applicants and STEM Students

Optional Practical Training (OPT) time is being extended for pending H-1B applicants caught in the cap gap and for students with science, math and similar degrees, USCIS announced this week.

 

In particular, OPT will be extended automatically for those F-1 student visa holders who have applied for an H-1B work visa but who will have a gap in authorized stay because they cannot start work until Oct. 1, when visas for the next fiscal year will become available.

 

The extension will cover this gap, enabling them to continue working and alleviating concerns by employers who would be at risk of losing a valuable employees because of the unreasonably low number of H-1B work visas available annually.

 

The new rule also provides for the extension of OPT from the traditional 12 months to 29 months to students with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program. (E-Verify is an internet-based system operated in partnership with the Social Security Administration that is used to check a newly hired employee’s right to work. E-Verify has been widely criticized for its error rate, forcing the employer to question employment eligibility of U.S. citizens and non-citizens alike.)

 

To be eligible for an OPT extension under the STEM program, an F-1 non-immigrant student must:

 

l Currently be participating in a 12-month period of approved post-completion OPT;

 

l Have successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program;

 

l Be working for a U.S. employer in a job directly related to the student’s major area of study;

 

l Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program.; and

 

l Properly maintain F-1 status.

 

The STEM designated degrees include:

 

l Actuarial Science

l Computer Science (except Data Entry and Microcomputer Applications) 

l Engineering

l Engineering Technologies

l Biological and Biomedical Sciences

l Mathematics and Statistics

l Military Technologies

l Physical Sciences

l Science Technologies

l Medical Scientist (MS, PhD)

 

The new rule takes effect the day it is published in the Federal Register. That date has not been given yet, but should be soon. The public has 60 days to comment on the rule, after which the government will consider the comments and issue a final rule.

 

The rule is available here: http://www.dhs.gov/xlibrary/assets/press_opt_ifr.pdf

 

USCIS has posted frequently asked questions regarding the new rule on its website. 

 

 

 

Study Slams Mandatory E-Verify Program As Ineffective, Expensive, Intrusive

The CATO Institute has issued a report lambasting the concept of a federally-imposed electronic employment eligibility verification system as ineffective, expensive and intrusive.

The report is arriving as more and more states are joining Arizona in passing laws that require employers to use the federal government’s existing E-Verify program to confirm work authorization and as the federal government is threatening to make its use mandatory nationwide.

The report says this state and federal effort to require use of any such electronic employment eligibility verification (EEV) program is ill-conceived and ill-advised, promising to create more problems than it may potentially solve.

A mandatory national EEV system would have substantial costs yet still fail to prevent illegal immigration. It would deny a sizable percentage of law-abiding American citizens the ability to work legally.

The report predicts such a program will actually result in an increase in identity fraud, document fraud and abuse of desperate foreign nationals seeking a better life in the United States.

Such a system would make working in the United States more difficult, of course, but it would not eliminate the United States’ attraction to immigrants. Some potential illegal immigrants would change their plans, but others would respond quite differently. Some workers and employers would collude to avoid this immigration enforcement system. Work “under the table” would increase and, along with it, other forms of illegality.

The value of committing identity fraud would rise, and more illegal immigrants would commit this crime or deepen the minor frauds they are now involved in. Criminals and criminal rings would use the Social Security number (SSN) data from stolen laptops and hacked databases much more often in identity fraud as a robust black market for Americans’ personal information emerged.

The use of these data to fabricate mock identities would compound the problem for victims in a diabolical way. Seeking to prove their right to simple employment, American workers would have to appeal to bureaucrats who assume they are identity thieves.”

The CATO Institute says EEV constitutes one more excessive, Big Brother intrusion by the government into our privacy and an attack on our civil liberties.

Even if it were free, the country should reject a national ID system. It would cause law-abiding American citizens to lose more of their privacy as government records about them grew and were converted to untold new purposes. “Mission creep” all but guarantees that the federal government would use an EEV system to extend federal regulatory control over Americans’ lives even further.

But, the system is not free. CATO says that creating an accurate EEV system would require a national identification (ID) system costing the taxpayer about $20 billion to create and hundreds of millions more per year to operate.

This figure does not take into account the time that Americans and legal workers will waste gathering paperwork and standing in line at government offices waiting to correct errors.

The current E-Verify system has been maligned as error-prone. A human resources association reports that the social security database, which is the source used by E-Verify, has a 4.1 percent error rate. The group, Human Resource Initiative for a Legal Workforce further explains:

If all U.S. employers were to use the system, as many as six million U.S. citizens and legal residents could be denied employment due to bureaucratic error.  The error rate for legal foreign-born workers is estimated to be as high as 10 percent - opening the door to increased discrimination based on national origin.  

The federal government has said it will try and improve the system, according to this article in the Indianapolis Star.

Survey Shows State Legislation Relating To Immigration Skyrockets in 2007

The National Conference of State Legislatures has compiled a comprehensive list of immigrant-related legislation passed by states in 2007.

State efforts to legislate immigrant-related matters skyrocketed last year as at least 1562 pieces of legislation addressing immigrant-related concerns were introduced across the nation, representing an increase of almost three times more bills than in 2006 (570), according to the NCSL.

Of these bills, 240 became law in 46 states. Governors have vetoed 12. By comparison, in 2006, 84 new laws were enacted.

The new pieces of legislation, some friendly, some hostile, touch on numerous policy areas, including employment, health, identification, driver’s and other licenses, law enforcement, public benefits, and human trafficking.

With so many states developing their own ways of handling the various issues, however, this inconsistency is bound to create conflict and confusion, especially with our ever-mobile citizenry.

Immigration normally is left to the federal government to regulate rather than the states. In the wake of the failed comprehensive immigration reform package last year, however, states have taken matters into their own hands to the extent allowed by law. Which laws will stand up under judicial scrutiny remains to be seen. Arizona, though, so far has survived a challenge relating to its new law imposing sanctions on employers who knowingly hire undocumented workers.

See also our previous story on this same issue: Summary of State Laws Reacting to Undocumented Immigrants. 

CIS Sweeping Files For Green Card Cases Eligible For Processing Under New Policy

In response to the new policy allowing for processing of green card cases and other applications with FBI name checks pending for more than 180 days, USCIS is sweeping its files looking for eligible cases, according to AILA.

AILA’s service center operations liaison confirmed USCIS is proactively searching for those adjustment of status cases that can be processed now under the new policy. USCIS told AILA its target date for identifying and acting on eligible cases is April 30, 2008.

AILA national and local offices will continue to monitor USCIS’s actions in light of the new policy. Our site will provide updates as the situation develops.

For more information, see our other articles: How You Can Use the New CIS Name Check Policy to Jump Start Your Stalled Case and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks 

How You Can Use The New CIS Name Check Policy To Jump Start Your Stalled Case

How can you take advantage of the USCIS memo this week that certain applications, including those for green cards, may be approved if name checks have been pending for more than 180 days?

AILF offers the following suggestion: If your application has been pending for more than 180 days, and otherwise meets the prerequisites described in the new policy, you may send a demand letter to the agency with the new policy memo attached requesting immediate adjudication of your application.

AILF explains that this demand letter may cause the agency to move more quickly to finish processing your case. On the other hand, if it does not prompt any action, AILF points out that the letter may be helpful if you later decide to file a mandamus lawsuit on the grounds that the agency is not implementing its new policy.

In addition, if you have a pending court action, such as a mandamus action, to which the memo would apply, AILF suggests filing a motion with the court with the USCIS memo attached so as to alert the court to the change in agency policy. The motion should state that all prerequisites for immediate adjudication have been met as required by the new policy:

1) the application is covered by the memo, e.g., it is an Application for Adjustment of Status (I-485);

2) the FBI fingerprint and IBIS check have been completed and;

3) the FBI name check request has been pending for 180 days.

The motion may request that the court issue an order remanding to the agency for immediate adjudication of the application.

AILF further advises that if you are unsure whether the delay in the adjudication of your application is caused by FBI name check delays, you may nevertheless consider sending a demand letter to USCIS with the new policy memo attached.

AILF’s suggestion stems from its observation that the memo does not say that the new policy only applies prospectively. Therefore, AILF explains, the memo affects all applicants whose FBI name check requests have been pending for 180 days.

To read the memo outlining the new policy, click here.

In addition to green cards (I-485, Applications for Adjustment of Status), the new policy applies to: Applications for Waiver of ground of Inadmissibility (I-601); Applications for Status as a Temporary Resident Under Section 245A of the Immigrant and Nationality Act (I-687), or Applications to Adjust Status from Temporary Permanent Resident (Under Section 245A of Public Law 99-603) (I-698).

Unfortunately, it does not apply to Applications for Naturalization (N-400), which has also been the victim of lengthy delays and the subject of numerous mandamus lawsuits across the country.

For more information see our article CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks.

AZ Employer Sanctions Law Upheld By Federal Court; Plaintiffs to Appeal Ruling

The controversial Arizona state law that threatens employers with closure of their business for hiring unauthorized workers passes Constitutional muster, ruled a federal district court judge.

ICEPIC Details Released; Public Comments Accepted

DHS has published in the Federal Register the official notice and related proposed rulemaking regarding the implementation of ICEPIC, a massive government database of immigration and law enforcement records that it says will help fight terrorism.

The notification provides background on the new information sharing program and the rulemaking involves DHS’ request that ICEPIC be exempt from certain requirements of the Privacy Act that it says is necessary in the name of law enforcement and national security needs.

The notice and the rulemaking both solicit public comments. Comments on the rulemaking are due on or before March 10, 2008. ICE will then issue a new notice that addresses public comments, responds to OMB direction, and includes other ICE changes no later than August 27, 2008. The procedure for making comments is detailed in the DHS notice and rulemaking.

ICEPIC is already in limited operation, according to the notice. ICE says the database will help fight terrorism by enabling officials to link suspected terrorists or other criminals with associates who are in the system.

The database program compiles information on immigrants and other individuals collected from more than nine other federal sources, including DHS and law enforcement records that will be shared with federal, state, local and international law enforcement.

Critics of the program, such as the ACLU, fear innocent people will be arrested due to inaccurate information being captured in the database, pointing to the terrorism watch list as an example. The ACLU explains that if the data is bad, and that bad data migrates from one database to another, innocent people are the victims who are being stopped or labeled as suspicious.

The notification and proposed rulemaking involving ICEPIC (ICE Pattern Analysis and Information Collection) appeared in the Jan. 30 edition of the Federal Register, and are available here:

Notification: text,  PDF

Rulemaking: text,  PDF

For more information, please read our previous article: Big Brother Brightens Beam on Immigrants.

States Cracking Down on Unauthorized Employment; Employers Fighting Back

Lately it seems the media has been teeming with stories on the backlash in states that have introduced legislation requiring employers to use a maligned federal database to verify a worker’s social security number.

In the past year or so, more and more states are contemplating or have already implemented legislation that compels employers to verify work authorization using the federal electronic verification program, called E-verify.

This week alone media reports on opposition to the forced use of the E-verify system included California, Texas, Arizona  and Kansas. Employers in Oregon are also rallying against proposed regulations targeting undocumented workers.

Big Brother Brightens Beam on Immigrants

Immigration authorities are getting ready to launch a massive information sharing program to aid law enforcement that critics say poses a risk of foreign nationals being wrongfully arrested due to inaccurate data, according to an online article by USA Today. 

The database program compiles information on immigration and immigrants collected from more than nine other federal sources that will be shared with federal, state, and local law enforcement, according to the article.

The databases used for the program include those that not only track criminals and suspected terrorists, but also foreign students, visitors and immigrants.

Federal officials say the database program will help law enforcement agents link suspected terrorists or other criminals with associates who are in the system, according to the USA Today article.

Civil rights and privacy groups, such as the ACLU, however, raise concerns about the accuracy of the information being compiled, USA Today reports.

As an example, among the databases immigration officials say is being used is the government’s terrorist watch list, which is the source of numerous false terrorism or criminal “hits” on the names of visa holders entering the U.S. More than 15,000 people have sought to have their names removed from that list due to incomplete or inaccurate information.

As with the terrorist watch list, the ACLU fears investigators will arrest innocent people based on information from the flawed databases. The ACLU explains that if the data is bad, and that bad data migrates from one database to another, innocent people are the victims who are being stopped or labeled as suspicious.

The database will be run by the U.S. Immigration and Customs Enforcement (ICE), and is known as “ICEPIC,” short for the ICE Pattern Analysis and Information Collection System.

ICEPIC will be posted in the Federal Register on Tuesday and will be in use after a 30-day comment period, ICE officials told USA Today.

Employer Prosecutions Under AZ Sanctions Law On Hold Until March 1 Pending Court Ruling

Employers in Arizona received a reprieve until March 1, 2008 from prosecutions under a precedent-setting employer sanctions law pending a federal court ruling in a constitutional challenge to the state regulation.

AZ Employer Sanctions Law Clears Court Challenge for Implementation; Which State is Next?

Arizona employers are coming closer to being forced to use a maligned federal government database to verify the work eligibility of all hires or risk their business licenses under a controversial new state law.

Summary of State Laws Reacting to Undocumented Immigrants

In the wake of Congress’ failed comprehensive immigration reform bill effort, states increasingly have been tackling these issues locally, resulting in a patchwork of divergent laws across the country.

These state regulations cover a variety of areas targeting both undocumented foreign nationals and the employers who hire them. The approaches vary greatly, some friendly, some hostile. Many end up as the subject of lawsuits, their legality under federal or state law being questioned.

For example, Arizona now requires all employers to use the controversial “E-Verify” system to check an employee’s legal status, while a new Illinois law prohibits employers from using “E-Verify” until the U.S. government proves it is 99 percent accurate. Both laws are under attack in court.  

Stateline.org has compiled a comprehensive summary of state laws touching on immigrants and immigration issues, including employer sanctions, access to public benefits, in-state tuition, driver’s licenses, and local law enforcement collaboration with federal immigration authorities. (A state-by-state chart is also available on the site.)

The article observes that the harshest laws are coming out of states which only recently began experiencing an influx of immigrants, whereas states that have a history of immigration are generating laws that are more accommodating.

Immigration is an area that normally falls under the responsibility of the federal government to regulate, not the states. 

For more information, see our other article providing a related round-up of state legislation relating to immigration and immigrants: Survey Shows State Legislation Relating to Immigration Skyrockets in 2007.

DHS to Revise Controversial Social Security No-Match Regulation in Response to Lawsuit

The U.S. government has told a California court it intends to revise the controversial new DHS regulation that requires employers to resolve mismatches between employee Social Security numbers and existing records in government databases or risk criminal and civil penalties for knowingly employing illegal workers.

The government’s decision was prompted by a lawsuit over the regulation which had been put on hold pending the court’s decision in the case.

The motion filed by the Department of Justice last week requests a stay in the proceedings until the rule-making process is finished, which is estimated to be at the end of March 2008.

The motion states that as part of the rule-making process, the government will address concerns raised by the court, including conducting an analysis of the economic impact of the rule and its effect on small businesses.

The rule, titled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, was published in August and would have given employers three months to correct or verify Social Security numbers that do not match employee names after receiving a “no-match” letter from the Social Security Administration. If the names and numbers cannot not be reconciled, employers would be forced to fire the workers or be held liable for illegal hires.

The American Civil Liberties Union, the U.S. Chamber of Commerce, labor unions and immigrant rights groups sued the agency in September in California, alleging that government databases are so error prone that the rule would harm U.S. citizen employees and discriminate against foreign-born or simply foreign-looking or foreign-sounding workers.

In response, the U.S. District Court for the Northern District of California issued a preliminary injunction blocking the government from mailing the letters while the court considers the case.

For more background on this issue, please see our previous article “Calif. Court Blocks New Social Security “No Match” Rule Pending Trial Judgment.”

DHS TRIP Failings Under House Committee Scrutiny Nov. 8

Congress is calling DHS to task on the failings of its traveler’s redress program, which was designed to assist foreign visitors who were consistently hassled at border crossings because their name happens to resemble Osama bin Laden’s or some other name on the terrorist watch list.

The House of Representatives’ Committee on Homeland Security will be discussing the Traveler Redress Inquiry Program (TRIP) at its committee meeting tomorrow, Thursday, Nov. 8. The committee sent a letter to DHS Secretary Michael Chertoff requesting him to respond to a list of questions regarding the program that are intended to identify the problem areas and to get them resolved.

TRIP was established as a “one-stop” redress center to clear the innocent travelers so they could fly and go through border crossings freely, but the program has been fraught with problems, including backlogs in application adjudications, temporary shutdowns, and lack of inter-agency communication, among other concerns.

Senate Kills DREAM Act

The DREAM Act is dead, falling eight votes shy of the requisite 60 to begin debate in the U.S. Senate.

The vote, 52-44, while in favor of starting debate was not enough to prevent a filibuster. The DREAM Act, which stands for Development, Relief, and Education for Alien Minors (DREAM), was part of the larger immigration reform bill that collapsed earlier this year. Proponents carved it out and put it up as a standalone bill, with bi-partisan support, hoping it would pass on its own, according to an article in the Oct. 25 edition of the Washington Post, also available online.

On the morning of the vote Wednesday, the Bush administration issued a policy statement coming out against the DREAM Act, essentially saying it rewards and encourages illegal behavior, despite having supported it as part of the overall immigration reform package earlier this year.

Other critics opposed the bill not for its substance, but because it was attempting immigration reform piecemeal. They say reform bit-by-bit will only lead to a contradictory and unworkable mess of local, state and national immigration laws, arguing instead comprehensive immigration reform is the responsible solution, reports The Hill online.

The DREAM Act was designed to address the situation faced by the children of illegal immigrants who were brought to the United States years ago and who have grown up here, stayed in school, and kept out of trouble. The legislation would provide a path to permanent residence and citizenship for these immigrant youth if they pursue higher education or serve in the military, according to the position paper written by AILA that summarizes the benefits of the law. 

DREAM Act Senate Vote Wednesday

AILA (the American Immigration Lawyers Association) has posted an Action Alert urging everyone to call their senators to support the DREAM Act, which will be voted on by the Senate tomorrow, Wed. Oct. 23, 2007. 

The DREAM Act, which stands for Development, Relief, and Education for Alien Minors (DREAM), is designed to address the situation faced by undocumented children who were brought to the United States years ago but who have grown up here, stayed in school, and kept out of trouble. The legislation would provide a path to permanent residence for these immigrant youth who want to pursue higher education or military service, enabling them to contribute fully to American society, according to the position paper written by AILA that summarizes the benefits of the law.  

AILA has posted on its site a draft email to send to your Senator and phone numbers of all Senators for those who prefer to call.

Senator Richard Durbin (D-IL) has introduced the DREAM Act as a stand-alone bill in the Senate. The bill will need 60 votes to pass the Senate.