The right way to mend immigration

By Charles E. Schumer and Lindsey O. Graham

Friday, March 19, 2010

Our immigration system is badly broken. Although our borders have become far more secure in recent years, too many people seeking illegal entry get through. We have no way to track whether the millions who enter the United States on valid visas each year leave when they are supposed to. And employers are burdened by a complicated system for verifying workers’ immigration status.
Last week we met with President Obama to discuss our draft framework for action on immigration. We expressed our belief that America’s security and economic well-being depend on enacting sensible immigration policies.

The answer is simple: Americans overwhelmingly oppose illegal immigration and support legal immigration. Throughout our history, immigrants have contributed to making this country more vibrant and economically dynamic. Once it is clear that in 20 years our nation will not again confront the specter of another 11 million people coming here illegally, Americans will embrace more welcoming immigration policies.
Our plan has four pillars: requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.

Besides border security, ending illegal immigration will also require an effective employment verification system that holds employers accountable for hiring illegal workers. A tamper-proof ID system would dramatically decrease illegal immigration, experts have said, and would reduce the government revenue lost when employers and workers here illegally fail to pay taxes.

We would require all U.S. citizens and legal immigrants who want jobs to obtain a high-tech, fraud-proof Social Security card. Each card’s unique biometric identifier would be stored only on the card; no government database would house everyone’s information. The cards would not contain any private information, medical information, nor tracking devices. The card will be a high-tech version of the Social Security card that citizens already have.

Prospective employers would be responsible for swiping the cards through a machine to confirm a person’s identity and immigration status. Employers who refused to swipe the card or who otherwise knowingly hired unauthorized workers would face stiff fines and, for repeat offenses, prison sentences.

We propose a zero-tolerance policy for gang members, smugglers, terrorists and those who commit other felonies after coming here illegally. We would bolster recent efforts to secure our borders by increasing the Border Patrol’s staffing and funding for infrastructure and technology. More personnel would be deployed to the border immediately to fill gaps in apprehension capabilities.

Other steps include expanding domestic enforcement to better apprehend and deport those who commit crimes and completing an entry-exit system that tracks people who enter the United States on legal visas and reports those who overstay their visas to law enforcement databases.

Ending illegal immigration, however, cannot be the sole objective of reform. Developing a rational legal immigration system is essential to ensuring America’s future economic prosperity.

Ensuring economic prosperity requires attracting the world’s best and brightest. Our legislation would award green cards to immigrants who receive a PhD or master’s degree in science, technology, engineering or math from a U.S. university. It makes no sense to educate the world’s future inventors and entrepreneurs and then force them to leave when they are able to contribute to our economy.

Our blueprint also creates a rational system for admitting lower-skilled workers. Our current system prohibits lower-skilled immigrants from coming here to earn money and then returning home. Our framework would facilitate this desired circular migration by allowing employers to hire immigrants if they can show they were unsuccessful in recruiting an American to fill an open position; allowing more lower-skilled immigrants to come here when our economy is creating jobs and fewer in a recession; and permitting workers who have succeeded in the workplace, and contributed to their communities over many years, the chance to earn a green card.

For the 11 million immigrants already in this country illegally, we would provide a tough but fair path forward. They would be required to admit they broke the law and to pay their debt to society by performing community service and paying fines and back taxes. These people would be required to pass background checks and be proficient in English before going to the back of the line of prospective immigrants to earn the opportunity to work toward lawful permanent residence.

The American people deserve more than empty rhetoric and impractical calls for mass deportation. We urge the public and our colleagues to join our bipartisan efforts in enacting these reforms.

Charles E. Schumer is a Democratic senator from New York. Lindsey O. Graham is a Republican senator from South Carolina.

Notes from New Jersey AILA Chapter Meeting 1/26/2010

Speakers for US Customs and Border Protection:

Paula Heacock, Branch Chief, Enforcement Operations
Louis Mejia, Supervisor for Admissibility Issues
Kevin Donohue, Deputy Chief, Criminal Enforcement

Arriving Aliens with Convictions

Kevin Donohue spoke about deferred inspection and expedited removal of arriving aliens. He explained that CBP receives a list of individuals on a flight when it leaves an airport abroad. In the time that it takes for the flight to get to the US, using technology, CBP can get a record of conviction from the courthouse. Accordingly, arriving aliens with criminal convictions can be immediately placed in expedited removal proceedings. This is an improvement from the past when the alien would be placed into deferred inspection and told to return with a copy of the conviction. Under that system, many aliens were simply failing to show up at the deferred inspection. The expedited removal option that CBP is exercising with greater frequency has alleviated the burden placed on the deferred inspection system.

Mandatory Detention for Post-1998 Convictions

Officer Donohue pointed out that the law provides for mandatory detention with post-1998 convictions (Section 236(c)). Individuals with these convictions get detained in all cases. Thereafter, NTAs are sent to the General Counsel for legal sufficiency. The General Counsel for CBP is located at 1 Penn Plaza in Manhattan. Consideration will be given to humanitarian needs such as whether the individual is a sole provider for children, and whether he/she has health issues. This procedure is based on a program that was piloted in Atlanta and Miami.

A member asked about whether attorneys would be permitted at secondary interviews. Officer Donohue responded that such a right is not given under the law, but that reasonable requests will be considered on a case-by-case basis (this goes through Judith Altmann, Associate Chief Counsel). The general phone number for the airport is 973-565-8000 (press #1 for the duty supervisor). If the attorney is not permitted to attend, he or she will still be told about what is happening with the case and will be shown a copy of the NTA and be provided with a sworn statement. He pointed out that in cases where the attorney is retained later in the process, and the client does not have a copy of the sworn statement, it can be obtained through a FOIA request. A FOIA request can be made through the General Counsel at the following contact information:

Craig Stahl
FOIA Officer
CBP Office
1 Penn Plaza, 11th Floor
New York, NY
646-733-3200

An attorney can call and ask for the “attorney-of-the-day” and that person will log-in the information.

H-1B Admissions

Officer Donohue maintained that there has been fraud in the H-1B program, and that H-1Bs have been subjected to increased scrutiny at the port of entry. He indicated that officers may call the employer in order to make a determination about admissibility. He stated that while CBP will not permit the alien to call his/her attorney, CBP may call the attorney themselves.

Officer Donohue stated that CBP now has the technology to verify that the person who was interviewed at the embassy is the same person presenting at the port of entry. CBP is also able to access DOL information.

Officer Mejia indicated that he has “read the blogs” and knows that there is a perception that the H-1B denials are being experienced disproportionately by Indian Nationals. He categorically denied this claim. He also denied allegations that “rovers” are removing foreign national from the initial line and sending them directly to secondary inspection. He further noted that there are 4 flights arriving from India per day, and those flights have the most H-1Bs onboard.

Members expressed frustration with the fact that they are preparing their clients for interviews, and arming them with the necessary documentation, but the clients are still being denied visas and/or entry. This is particularly common where there is “seconding” occurring; these are complex, but legitimate, employment relationships that are even difficult for attorneys to understand. Officer Mejia indicated that members were doing exactly what they should be doing,( i.e., sending the foreign national to the port of entry well-armed with documentary evidence). Members also asked whether CBP was re-adjudicating cases based on a recent CIS memo. Officer Mejia indicated that the memo was not controlling on CBP, that they did not read it as calling for a re-adjudication, and that they were not re-adjudicating cases.

Members asked whether H-1Bs might be given a choice to withdraw their application for admission instead of being removed. Officer Mejia said that it would depend upon the circumstances; the Chief Counsel would have to be consulted. Another member suggested that, rather than removing an individual, CBP could issue an NTA. This procedure would permit an attorney to assist the foreign national. It was agreed that this would be the subject of further discussion between CBP and AILA NJ.

Closing of Varick Street Facility

Members inquired as to whether the closing of the Varick Street Facility would place extra pressure on NJ sites. The officers indicated that this would not occur because New York and New Jersey are entirely separate entities.

I-751 pending

Officer Donohue stated that when an alien presents an I-551 stamp, the alien will always be placed in secondary inspection. He also pointed out that this was true of anyone traveling with any document that did not have a biometrics identifier (e.g. I-551 stamp, I-797 extending the Conditional Residence for one year pending I-751 adjudication. In response to a member question, he indicated that there is no way for an officer to access any system that will tell him/her whether the alien has filed for divorce.

Expired Green Cards

Aliens who have been out of the U.S. for more than 6 months, or who have expired green cards, will be placed in secondary. Officer Donohue indicated that they have information about how long each LPR has spent outside the US.

Courtesy of Victoria Donoghue, Esq. and David H. Nachman, Esq.
NACHMAN & ASSOCIATES, P.C.
Immigration and Nationality Attorneys
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H-1B Admissions at Newark, NJ Airport – Port Of Entry (POE)

The AILA U.S. Customs and Border Protection (“CBP”) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies. The inspectors’ questions focused on who the individuals worked for, how their pay was computed, who paid their salary, their job duties, and what they were paid. In some cases, the individuals were subjected to expedited removal and visa cancellation.
After inquiring with CBP headquarters (“HQ”) about these incidents, the CBP Liaison Committee was advised by HQ that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. HQ also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.” In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations. CBP HQ stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed. CBP HQ confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

In addition, on January 27, AILA members attending a CBP meeting in the Newark, New Jersey area were informed that a new policy has been instituted at Newark Airport. This policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders. Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

During that same local CBP meeting, attendees were advised that if CBP discovers that a returning Lawful Permanent Resident has a post-1998 conviction, the Lawful Permanent Resident may be detained. The Newark airport port of entry has adopted a mandatory detention policy for crimes that were committed after 1998. In the event that CBP cannot get a copy of the conviction record in twenty-four hours, the person may be released. The only exceptions are that CBP will release a Lawful Permanent Resident for humanitarian reasons; extenuating circumstances such as if the foreign national is traveling with children and there is no one to pick up the children; or when the person is a sole provider for United States Citizen or Lawful Permanent Resident children.
Individuals with pending I-751 petitions returning to the United States via the Newark airport port of entry, who have a I-751 filing receipt documenting that an I-751 has been properly filed or an ADIT Legal Permanent Resident stamp, will be sent to secondary inspection for further interview to verify the validity of the I-751 Petition. It is unclear if CBP will undertake a substantive review of the I-751 Petition.

In all cases, attorneys should remind their clients to thoroughly prepare for their trip to the United States and their inspection upon application for admission by reviewing all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer. Similarly, employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.

Finally, employers must be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Note the new fraud related language added to I-797 approval notices –
NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.
Please do not forget to contact the CBP port director to follow up on case problems at a particular port. In addition, as needed, file complaints through the CBP complaint process.

Learn more… About Nachman & Associates, P.C.

When traditional immigration approaches do not work, we analyze a candidate’s resume and determine if they may qualify for various nonimmigrant or temporary work permits or permanent immigrant visa transfer options such as outstanding researcher classification, TN under NAFTA or E-3 classification for Australia. Now that the H-1B nonimmigrant visa has become more difficult to obtain, we work closely with our clients who are seeking to transfer highly-skilled foreign national workers to the U.S. to determine if there are other nonimmigrant options for such transfers. No matter what the situation, our attorneys work hard to provide a variety of visa options to support their needs.

Contact Us.

Our staff of immigration lawyers and professionals are sensitive to the needs of our clients and the members of their families. Many members of our staff are themselves foreign born and have family and/or friends who have gone through the immigration process. As a result, our staff of business immigration lawyers and professionals have a personal and unique approach to processing visas and for dealing with our foreign national clientele. Our legal team can clearly explain how to process temporary and permanent work permits in the U.S. The PERM Labor Certification Process is time-consuming and complex and our staff of business immigration law professionals can clearly explain the process in Spanish, French, Japanese, Korean, Tamil, Hindi, Slovak, Czech, Russian, Chinese, German and English.

To schedule a consultation, please feel free to contact Nachman & Associates by e-mail or call 1-866-599-3625. Please contact our offices at 201-670-0006 (x100) or e-mail to us at info@visaserve.com.

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Nachman & Associates, P.C.
David H. Nachman
Managing Attorney
E-mail: david_nachman@visaserve.com