Statement of John Morton, Director, U.S. Immigration and Customs Enforcement, before the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement: “Oversight Hearing on U.S. Immigration and Customs Enforcement: Priorities and the Rule of Law”

Release Date: October 12, 2011

Rayburn House Office Building

Introduction

Chairman Gallegly, Ranking Member Lofgren, and distinguished members of the Subcommittee:

On behalf of Secretary Napolitano, thank you for the opportunity to address you today regarding U.S. Immigration and Customs Enforcement (ICE). As the investigative arm of the Department of Homeland Security (DHS), ICE’s primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. The men and women of ICE do this every day by carrying out ICE’s role in (1) protecting the borders through smart and effective immigration enforcement; (2) securing and managing our borders against illicit trade, travel, and finance; and (3) preventing terrorism and enhancing national security.

We are effectively managing our resources by carrying out our responsibilities in a smart, fair, and efficient manner. In the last two and a half years, we have made unprecedented strides across our agency, and as a result, we have made communities across America, and Americans around the world, safer and more secure. I welcome this opportunity today to share with you our successes and our opportunities as we move into a new year.

Protecting the Borders Through Smart and Effective Immigration Enforcement

There has been much discussion in recent months about the Administration’s approach to immigration enforcement. The Administration’s policies have been alternatively described as either an unprecedented effort to deport record numbers of individuals arbitrarily, or as an administrative amnesty that ignores the Government’s responsibility to the enforce immigration laws. Both characterizations are inaccurate. The Administration’s policy guidance governing immigration enforcement makes this clear, as does its enforcement record. ICE has worked to develop guidance to help focus ICE’s enforcement efforts on our highest priorities, including: aliens who pose dangers to national security or risks to public safety; recent illegal entrants; repeat violators of immigration law; and aliens who are fugitives from justice or otherwise obstruct immigration controls.

This approach has yielded results. DHS has produced record immigration enforcement. In FY 2010, ICE removed a record 195,772 criminal aliens, more than any other year in history, and 81,000 more criminal removals than in FY 2008. Nearly 50 percent of the aliens we removed in FY 2010 had been convicted of criminal offenses. Removing these individuals helps to promote public safety in communities across the country. We expect that this trend will continue, and that this fiscal year, we will again remove a record number of criminal aliens from the country.

Of those we removed in 2010 who lacked criminal convictions, more than two thirds were either recent border entrants or repeat immigration law violators. As such, and unlike ever before, an overwhelming majority of the aliens removed fell into one of ICE’s enforcement priorities. In fact, the number of individuals removed who could not definitively be placed into at least one of the priority categories — for example, those who were not immigration fugitives, repeat immigration law violators, or removed at the border — dropped from more than 19 percent in 2008 to less than 10 percent in 2010. We expect to see similar results in FY 2011 as well.

Prosecutorial Discretion

DHS must ensure that our immigration enforcement resources are focused on the removal of those who constitute our highest priorities, specifically individuals who pose threats to public safety such as criminal aliens and national security threats, as well as repeat immigration law violators, recent border entrants, and fugitives from justice or those who otherwise obstruct immigration controls. There are a significant number of cases currently pending before U.S. Department of Justice (DOJ) immigration courts, many of these will take years to resolve. Tens of thousands more are pending review in federal courts. Each of these cases costs taxpayers thousands of dollars, and those involving low priority individuals divert resources and attention from high priority cases. Due to the fiscal limitations, the expenditure of significant resources on cases that fall outside of DHS enforcement priorities hinders our public safety mission by consuming litigation resources and diverting resources away from higher-priority individuals.

Prosecutorial discretion has always been exercised in order to prioritize the use of immigration enforcement resources. The Immigration and Naturalization Service under the Department of Justice and later ICE under DHS has used discretion on a case-by-case basis where we feel it has been appropriate and responsible to do so, and where it enhances our ability to meet our priorities. In keeping with this practice, DHS and DOJ have recently established an interagency working group to implement existing guidance regarding the appropriate use of prosecutorial discretion in a manner consistent with our enforcement priorities.

This interagency working group will work to determine that immigration judges, the Board of Immigration Appeals, and the federal courts are focused on adjudicating high priority cases more swiftly by relieving pressure on the judicial system by identifying very low priority cases and on a case-by-case basis, setting those cases aside. This will allow for additional DHS resources to be focused on the identification and removal of those individuals who pose the greatest threats. In part, this process will accelerate the removal of high priority aliens from the country. At no point will any individuals be granted any form of “amnesty.” There will be no reduction in the overall levels of enforcement and removals – only a more effective way of marshaling our resources towards our highest priority cases and thus, increasing the number of criminal aliens and repeat immigration violators removed from the country.

Likewise, it will enhance ICE’s historic partnership with U.S. Customs and Border Protection (CBP). Over the past few years, ICE has worked closely with CBP to increase efforts to prevent illicit trade and travel across our borders. This partnership includes the dedication of ICE officers, agents, and detention facilities to the apprehension and detention of recent border crossers. The record-setting results achieved along the Southwest Border are attributable, in part, to this unprecedented partnership. Notably, this process will allow DHS to free up additional resources that will be dedicated to the Southwest border.
Secure Communities

As I have stated, the Administration has established the identification and removal of public safety and national security threats as a top priority. To aid in this effort, we have expanded the use of the Secure Communities program, which identifies individuals arrested and booked into jail for a violation of a state or local criminal offense, convicted criminals, gang members, and other enforcement priorities in our jails and prisons.

ICE has acknowledged that it faced challenges in rolling out the Secure Communities program initially, including in explaining how the program works and which entities are required to participate. Nevertheless, Secure Communities has proven to be one of our best tools to help focus our immigration enforcement resources on our highest enforcement priorities, including convicted criminals and egregious immigration law violators, and ICE remains fully committed to the program.

Since its inception on October 27, 2008, through September 18, 2011, more than 97,600 aliens convicted of crimes, including more than 35,500 convicted of aggravated felony offenses were removed from the United States after identification through Secure Communities. These removals significantly contributed to a 71 percent increase in the overall percentage of convicted criminals removed by ICE, with 81,000 more criminal alien removals in FY 2010 than in FY 2008. As a result of the increased focus on criminals, removals of non-criminals fell by 23 percent during the same time period. In addition, over 25,000 aliens who were previously removed and reentered or who failed to leave the United States following the issuance of a final order of removal, deportation or exclusion, who are also DHS enforcement priorities, were removed through Secure Communities over the past two years.

Earlier this year, as part of the Administration’s continued commitment to smart, effective immigration enforcement, ICE announced key improvements to the Secure Communities program.

They included:

1. Establishing a task force, comprised of law enforcement, state and local government officials, prosecutors, and immigration advocates, as part of the Homeland Security Advisory Council to develop recommendations on how to improve Secure Communities so that it can better focus on identifying and removing individuals who pose true public safety threats. ICE is currently reviewing recommendations submitted by the Task Force;

2. Developing a new policy to protect victims of and witnesses to crimes, to ensure that the crimes continue to be reported and prosecuted;

3. Revising the detainer form that ICE sends to local jurisdictions to emphasize longstanding guidance that state and local entities are not to detain an individual for more than 48 hours pursuant to the detainer;

4. Working with the DHS Office for Civil Rights and Civil Liberties (CRCL) on regular and in-depth statistical monitoring of the program;

5. Creating a series of training sessions in collaboration with CRCL designed primarily for use by front line state and local law enforcement agency personnel to address civil rights and civil liberties issues that may be relevant when Secure Communities is activated for a jurisdiction; and

6. Agreeing to a protocol for CRCL to take the lead in investigating complaints of alleged civil rights violations for jurisdictions where Secure Communities is activated.

We are confident these changes will aid in our continued efforts to strengthen and improve Secure Communities. We will continue to expand Secure Communities to additional jurisdictions, and we look forward to nationwide deployment by the end of 2013. We will also continue to examine the program’s effectiveness and invest in additional training and education efforts.

Worksite Enforcement

As part of its immigration enforcement efforts, ICE has been pursuing a comprehensive worksite enforcement strategy to deter unlawful employment and drive a culture of compliance with the nation’s immigration-related employment laws. The Administration is focused on conducting criminal investigations and prosecuting employers who exploit or abuse their employees and those who have a history of knowingly and repeatedly employing an illegal workforce.

Our strategy has been designed to: (1) penalize employers who hire illegal workers; (2) deter employers who are tempted to hire illegal workers; and (3) encourage all employers to take advantage of easy to use and well-crafted compliance tools.

The success of our approach is evident in the statistics. As of September 17, 2011, ICE has initiated 3,015 investigations, which is 154 percent more than in all of FY 2008. In FY 2010, ICE arrested 196 employers for criminal worksite-related immigration violations, surpassing the previous high of 135 arrests in FY 2008. So far in FY 2011, ICE has also issued a record 2,393 notices of inspection, a more than a 375 percent increase from the number issued in all of FY 2008. This year, ICE has issued 331 final orders totaling $9 million in fines levied on employers compared to 18 final orders issued totaling $675,000 in FY 2008. In addition, FY 2010 worksite investigations resulted in a record $36.6 million in judicial fines, forfeitures, and restitutions.

Enforcing our immigration priorities and obligations is neither simple nor easy, and we are committed to getting it right. We all agree that we need fair, consistent, and enforceable immigration laws that encourage the free flow of commerce while respecting both security and the rights of individuals. We are committed to making changes within the immigration system that make sense and are achievable. While we are committed to being smart and tough with our enforcement, it remains the Administration’s position that Congress needs to take up immigration reform. We look forward to working with Congress to this end.

Securing and Managing our Borders Against Illicit Trade, Travel, and Finance

Southwest Border Initiative

In March 2009, the Administration launched the Southwest Border Initiative to bring unprecedented focus and intensity to Southwest border security, coupled with a reinvigorated, smart and effective approach to enforcing immigration laws in the interior of our country. In support of this initiative, ICE has targeted considerable resources at the Southwest border to address the activities associated with transnational criminal organizations, including the interdiction of contraband such as firearms, ammunition, bulk cash currency, stolen vehicles, human smuggling, and the detection of tunnels and other border crime at and between ports of entry along the Southwest border. Under this initiative, ICE has doubled the personnel assigned to Border Enforcement Security Task Forces (BESTs); increased the number of intelligence analysts along the Southwest border focused on cartel violence; and quintupled deployments of Border Liaison Officers to work with their Mexican counterparts. At the end of the third quarter of FY 2011, ICE deployed special agents to high risk locations, including Tijuana and Monterey, Mexico. ICE so far this year has initiated 9,748 investigations along the Southwest border, and is on pace to surpass FY 2010 totals.

Additionally, with the aid of $80 million provided in the 2010 Southwest Border supplemental appropriations, ICE has deployed 241 special agents, investigative support personnel, and intelligence analysts to the border. Indeed, ICE now has one quarter of all its special agents assigned to the Southwest border, more agents and officers along the border than ever before.

Border Enforcement and Security Task Forces (BESTs)

In FY 2011, ICE also continued to bolster border security through the efforts of its BESTs, which bring together federal, state, local, territorial, tribal, and foreign law enforcement. Thus far in FY 2011, ICE-led BESTs have made 1,565 criminal arrests, 814 administrative arrests, and obtained 757 indictments; seized 200,278 pounds of illegal drugs and $11.4 million in U.S. currency and monetary instruments. Some 733 defendants have been convicted thus far in FY 2011.

Illicit Finance Investigations

One of the most effective methods for dismantling transnational criminal organizations is to attack the criminal proceeds that fund their operations. In coordination with public and private partners, ICE works to seize illicit proceeds derived from and used for criminal activities, and to shut down the mechanisms used to retain and transfer these funds by countering bulk cash smuggling within the U.S. financial, trade, and transportation sectors targeted by criminal networks.

ICE’s bulk cash smuggling investigations are coordinated through the ICE-led Bulk Cash Smuggling Center, from which we provide real-time operational and tactical support to federal, state, and local officers involved in bulk cash smuggling seizures. In 2010, ICE, in partnership with the Drug Enforcement Administration, utilized the El Paso Intelligence Center (EPIC) to tackle bulk cash smuggling. This partnership ensures improved collaboration across the federal government for bulk cash smuggling investigations 24 hours a day, 7 days a week.

International Partners and Cooperation

ICE works closely with our international partners to disrupt and dismantle transnational criminal organizations. As part of these efforts, ICE currently maintains nine vetted units worldwide. These units are composed of highly trained host country counterparts that have the authority to investigate and enforce violations of law in their respective country. Because ICE officials working overseas do not possess law enforcement or investigative authority in host countries, the use of vetted units enables ICE to dismantle, disrupt, and prosecute transnational criminal organizations while respecting the sovereignty of the host country.

In FY 2010, Transnational Criminal Investigative Units (TCIUs) in Mexico, Colombia and Ecuador played a central role in Operation Pacific Rim–an ICE-led investigation that dismantled one of the most powerful and sophisticated bulk cash and drug smuggling drug trafficking organizations in the world. As a result of international cooperation, this operation resulted in ten guilty pleas, 21 indictments, and 22 arrests along with seizures totaling over $174 million in currency, 3.8 tons of cocaine, $37 million in criminal forfeitures, and $179 million in property. During 2011, two more TCIUs became operational and ICE plans to expand additional TCIUs in FY 2012.

Preventing Terrorism and Enhancing National Security

As the largest investigative arm of DHS, ICE enhances national and border security by interrupting the illicit flow of money, merchandise, and contraband that supports terrorist and criminal organizations. As of the end of the third quarter of FY 2011, ICE has seized $363 million in currency, 1.4 million pounds of narcotics and other dangerous drugs, and $272 million worth of contraband and other illegal merchandise. In addition, ICE agents and officers responded to 1.1 million inquiries and calls for assistance from other federal, state, and local law enforcement agencies through ICE’s Law Enforcement Support Center (LESC).

ICE leads efforts in national security investigations through interconnected programs that prevent criminals and terrorists from using our nation’s immigration system to gain entry to the United States. This includes: investigating terrorist organizations and their actors; preventing criminal and terrorists from obtaining U.S. visas overseas; preventing criminal and terrorist organizations from acquiring and trafficking weapons and sensitive technology; and identifying and removing war criminals and human rights abusers from the United States, while protecting children from exploitation.

Joint Terrorism Task Force (JTTF)

The FBI-led JTTFs are a part of a joint counterterrorism partnership between U.S. law enforcement agencies. Since 2007, ICE agents assigned to JTTFs have initiated 5,564 cases, resulting in approximately 1,119 criminal arrests and 2,010 administrative arrests. In FY 2011, ICE special agents in Louisville, Kentucky, assisted in a JTTF investigation which ultimately led to the arrest of Waad Ramadan Alwan and Mohanad Shareef Hammadi. Both of these Iraqi refugees were indicted on federal terrorism charges, as well as the murder of a U.S. person engaged in official duties. They both had allegedly conspired to have money and weapons shipped to Iraq to support the activities of al-Qaeda. In FY 2012, ICE will continue to collaborate with our law enforcement colleagues through the FBI-led JTTFs.

Visa Security Program

The Visa Security Program (VSP) deploys ICE special agents to diplomatic posts worldwide to conduct visa security activities and identify potential terrorists or criminal threats before they reach the United States. By working closely with the Department of State, this program enhances national security by providing an additional level of review of persons of special interest before they enter the United States. ICE conducts visa security operations at 19 high-risk visa adjudication posts in 15 countries.

Counter Proliferation Investigations

ICE leads the U.S. Government’s efforts to prevent foreign adversaries from illegally obtaining U.S. military products and sensitive technology, including weapons of mass destruction and their components. In FY 2011, ICE initiated 1,780 new investigations into illicit procurement activities, made 583 criminal arrests, obtained 419 indictments, achieved 262 convictions, and made 2,332 seizures valued at $18.9 million.

In 2010, ICE, in coordination with the World Customs Organization (WCO), launched “Project Global Shield,” an unprecedented multilateral law enforcement effort aimed at combating the illicit cross-border diversion and trafficking of precursor chemicals used by terrorist and other criminal organizations to manufacture improvised explosive devices by monitoring their cross-border movements. On March 22, 2011, Global Shield was endorsed by the WCO Enforcement Committee and converted from a pilot project to a permanent program. It currently has 83 participating countries and has led to 19 arrests, 24 seizures, and chemical seizures totaling over 33 metric tons.
Human Trafficking and Human Smuggling Investigations

ICE works with our interagency and international partners to extend our borders and disrupt and dismantle international human smuggling and trafficking networks and organizations along their entire routes. ICE holds the directorship of the Human Smuggling and Trafficking Center (HSTC), an interagency information and intelligence fusion center and clearinghouse. The HSTC was established to facilitate the broad dissemination of anti-smuggling and trafficking information and help coordinate the US Governments efforts against human smuggling, human trafficking and criminal facilitation of terrorist mobility.

In 2010, ICE’s Office of Intelligence established its Human Trafficking Unit to develop intelligence and identify potential human trafficking investigative targets. In the coming fiscal year, ICE plans to expand coordination with the Departments of Justice and Labor to initiate additional investigations of human trafficking violations. Sadly, a significant number of human trafficking victims are children. ICE takes these cases very seriously. ICE’s “Operation Predator” targets and investigates human smugglers and traffickers of minors, as well as child pornographers, child sex tourists and facilitators, criminal aliens convicted of offenses against minors, and those deported for child exploitation offenses who have returned illegally. Since its launch in 2003, Operation Predator has resulted in the arrest of over 13,594 sexual predators, of which 10,975 were non-citizens.

In FY 2012, ICE will expand operations of our Child Exploitation Section by establishing the Child Exploitation Center and deploying Child Sex Tourism Traveler Jump Teams to conduct investigations of U.S. citizens traveling in foreign counties for the purpose of exploiting minors. ICE will also continue working to end human trafficking and smuggling alongside the Department’s “Blue Campaign”― a DHS initiative to combat human trafficking through enhanced public awareness, victim assistance programs, and law enforcement training and initiatives.

Conclusion

Thank you so much for the opportunity to share with you the good work of Immigration and Customs Enforcement. I’m proud of the work our ICE teams do each and every day all around the world to help strengthen and secure our homeland; we’re engaging in record-breaking immigration enforcement strategies, and I am confident we will continue to do so. ICE’s broad authority to enforce the nation’s trade, travel, finance, and immigration laws has made American communities safer. On behalf of the men and women of ICE, I thank you again for the opportunity to testify on these efforts. I would now welcome any questions you may have.

This page was last reviewed/modified on October 12, 2011.

VLOG – Immigration and Nationality Law – David H. Nachman, Esq., Mitchell Ignatoff, Esq. and Michael Phulwani, Esq.

Immigration and criminal law are two completely separate areas of law that are occasionally intertwined. Unfortunately for many immigrants, the potential immigration implications of a criminal conviction are often overlooked. A seemingly minor criminal offense can have devastating immigration implications. As a result, it is extremely important to be aware of any immigration implications when pleading to a criminal matter, or facing potential criminal penalties. In these segments, David Nachman, Esq. and Michael Phulwani, Esq. and Mitchell Ignatoff, Esq. discuss some of the immigration implications of a criminal convictions for nonimmigrants, green card holders and naturalization. In some cases, waivers may be available.

Immigration and Nationality Law Part 1 (David H. Nachman, Mitchell Ignatoff, and Michael Phulwani)

http://www.youtube.com/watch?v=un0X3TjghBs

Immigration and Nationality Law Part 2 (David H. Nachman, Mitchell Ignatoff, and Michael Phulwani)

http://www.youtube.com/watch?v=6t8VXkfHx3o

http://www.youtube.com/watch?v=KM58a_JBN4chttp://www.youtube.com/watch?v=KM58a_JBN4c

Immigration and Nationality Law Part 4 (David H. Nachman, Mitchell Ignatoff, and Michael Phulwani)

http://www.youtube.com/watch?v=IfB6Z7bSLu4

US Trying to Stop ‘Reverse Brain Drain’

BY: Meredith Buel – Washington

The U.S. Congress is debating how to overhaul the nation’s immigration system in an effort to get foreign nationals who earn advanced degrees at American universities to stay and work in the country to help the U.S. stay globally competitive.

Some are calling it a “reverse brain drain.”

Foreign students flock to American universities to earn master’s degrees and Ph.D.s in science, technology, engineering and math.

But many, like 25-year-old Yifang Wei from Xian in central China, may not be able to get a visa to work in the United States after graduation.

“Yes, I am very worried, very worried,” said Wei.

In 2009, foreign students earned up to two-thirds of the doctorates in physics and engineering awarded by U.S. schools of higher education.

Xiao Qin is from Beijing and is working toward his Ph.D. in computer science at Georgetown University in Washington. He would like to work for Google, Yahoo or Microsoft.

“Obviously, we prefer to stay here for several years, but if we cannot get any valid visa we have to leave,” he said.

The United States limits the number of foreigners who can seek careers in the United States, and critics say restrictive immigration policies hurt America’s ability to retain top students.

Representative Zoe Lofgren of California said, “While we once asked the brightest minds in the world to come and make their homes here, we now turn them away. Having educated and trained the world’s best students in our universities, we no longer welcome them to enrich this nation.”

High-tech companies recruit workers at the nation’s top universities. But some, like Texas Instruments, say it can take 10 years for their foreign workers to become permanent U.S. residents.

Darla Whitaker, senior vice president at Texas Instruments, said, “This is not sustainable. It hurts our company and our industry, and it places burdens and stresses on our employees.”

The United States now limits the number of immigrants from other countries on a country-by-country basis, meaning students from large nations generally have the longest wait.

A recent study by the National Foundation for American Policy says a highly skilled Indian national could wait 70 years for permanent status.

Vivek Wadhwa conducts research about immigrant entrepreneurs, and is on the faculty of Harvard and Duke Universities.

“We are out of touch. We are in a knowledge economy. It is all about competition. If we don’t keep these people, if we don’t compete, we are going to lose. We are going to become a third world country and they are going to become like us,” said Wadhwa.

Congress is studying ways to change America’s immigration policies.

So far there has not been a consensus, however, on how to reverse the brain drain and keep scholars like Yifang Wei and Xiao Qin in the United States once they graduate from one of America’s top universities.

David H. Nachman, Esq. and Michael Phulwani, Esq. have been doing a TV Program on iTV and on TV Asia about immigration law updates in the U.S. To make things easy, we have posted links to the recent shows for your viewing pleasure:

Inadmissibility Part 1 (iTV – David H. Nachman and Michael Phulwani)

http://www.youtube.com/watch?v=L5JLetLs6Dg

Inadmissibility Part 2 (iTV – David H. Nachman and Michael Phulwani)

http://www.youtube.com/watch?v=qNM_BT7mSt4

E-VERIFY: Prospects for Nationalization.

20th Annual Garden State Council — SHRM Conference and Expo for HR Professionals Sunday, October 23- Tuesday, October 25, 2011 Atlantic City Convention Center and Expo

David H. Nachman, Esq. TO SPEAK AT GARDEN STATE COUNCIL SOCIETY FOR HUMAN RESOURCE MANAGEMENT (SHRM) 20th ANNUAL CONFERENCE AND EXPO ON TUESDAY IN ATLANTIC CITY, NEW JERSEY

David H. Nachman, Esq., the Managing Attorney at the NPZ Law Group (f/k/a Nachman & Associates, P.C.) (VISASERVE), a prominent National Immigration and Nationality Law Office located in Ridgewood, New Jersey, will deliver a session entitled “E-VERIFY: Prospects for Nationalization” at the 20th Annual Garden State Council Society for Human Resource Management (GSC SHRM) Conference and Expo scheduled for October 23rd through October 25th, 2011 at the Atlantic City Convention Center. Mr. Nachman is the Vice Chair of the New Jersey Chapter of the American Immigration Lawyer’s Association (AILA) and an Adjunct Professor of Immigration Law at FDU.

This year’s Conference theme “HR 20/20: Evolve, Educate, Execute” is a three day educational conference geared to Human Resource and business practitioners that offers knowledge-filled concurrent sessions, dynamic keynote addresses, pre-conference activities and learning sessions on Sunday, evening networking opportunities with New Jersey’s leading HR vendors and outsourcing partners, knowledge center and job board, and HRCI certification hours. For additional conference information and registration visit http://www.gscshrmconference.org

The White House Blog.

Immigration Update: Maximizing Public Safety and Better Focusing Resources.

Posted by Cecilia Muñoz on August 18, 2011 at 02:00 PM EDT.

President Obama is deeply committed to fixing our immigration laws and has been aggressively searching for partners in Congress who are willing to work with him to pass a new law. As he focuses on building a new 21st century immigration system that meets our nation’s economic and security needs, the President has a responsibility to enforce the existing laws in a smart and effective manner. This means making decisions that best focus the resources that Congress gives the Executive Branch to do this work. There are more than 10 million people who are in the U.S. illegally; it’s clear that we can’t deport such a large number. So the Administration has developed a strategy to make sure we use those resources in a way that puts public safety and national security first. If you were running a law enforcement agency anywhere in the world, you would target those who pose the greatest harm before those who do not. Our immigration enforcement work is focused the same way.

Under the President’s direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States. And they have succeeded; in 2010 DHS removed 79,000 more people who had been convicted of a crime compared to 2008. Today, they announced that they are strengthening their ability to target criminals even further by making sure they are not focusing our resources on deporting people who are low priorities for deportation. This includes individuals such as young people who were brought to this country as small children, and who know no other home. It also includes individuals such as military veterans and the spouses of active-duty military personnel. It makes no sense to spend our enforcement resources on these low-priority cases when they could be used with more impact on others, including individuals who have been convicted of serious crimes.

So DHS, along with the Department of Justice, will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place. They will be applying common sense guidelines to make these decisions, like a person’s ties and contributions to the community, their family relationships and military service record. In the end, this means more immigration enforcement pressure where it counts the most, and less where it doesn’t – that’s the smartest way to follow the law while we stay focused on working with the Congress to fix it.

Cecilia Muñoz is White House Director of Intergovernmental Affairs

16 August 2011 – A Nation of Laws and a Nation of Immigrants

Posted by Alejandro Mayorkas, Director, U.S. Citizenship & Immigration Services.

This is part of a series of blog posts exploring the progress we have made in implementing the 9/11 Commission Recommendations.

Respecting and celebrating our tradition as a nation of immigrants strengthens our communities and helps ensure that people of diverse backgrounds share in the rights and freedoms guaranteed under our Constitution.

Every day, the dedicated men and women of U.S. Citizenship and Immigration Services (USCIS) ensure that deserving immigrants receive the benefits for which they are eligible under our nation’s laws. This same dedicated workforce protects the integrity of our nation’s immigration system and helps ensure the system is not abused by those who wish to do our nation harm.

After the 9/11 terrorist attacks, USCIS was created as part of a new national homeland security enterprise to confront and defend against the evolving threats we face and to make America more resilient when a crisis occurs. Its creation was premised upon the basic tenet that for our immigration system to work, we must be able to protect our national security.

Through USCIS’s enhanced efforts to protect national security, USCIS can more effectively screen for security threats while efficiently processing legitimate benefits for people rightfully coming to the United States. To that end, USCIS has taken and continues to take steps responsive to the 9/11 Commission Report’s recommendations. In our efforts, for example, to combat immigration fraud:

1. We redesigned the Permanent Resident Card, commonly known as the Green Card, to include a radio frequency identification tag that allows Customs and Border Protection to quickly access the electronic records of travelers seeking to enter the United States and includes new security features that reduce the risks of counterfeiting, tampering, and fraud.

2. We redesigned the Certificate of Naturalization, utilizing a tamper-proof printing process and embedding digitized photos and signatures.

3. We added a machine-readable zone to the Employment Authorization Document (EAD) to make it easier for border control officers to more efficiently identify people who have already been approved for immigration benefits and who have been reviewed previously by USCIS officers.

4. We have enhanced our partnership with the Forensic Document Laboratory which is dedicated exclusively to detecting fraudulent documents. As a result, we can better identify fake documents used to seek immigration benefits.

We also have enhanced our sharing of information with key federal partners:

1. Dozens of our Fraud Detection and National Security (FDNS) officers are aligned with local FBI-led Joint Terrorism Task Forces (JTFFs) to coordinate resources and provide immigration expertise to federal government agencies in support of terrorism investigations.

2. Our FDNS officers furnish support to the National Counterterrorism Center (NCTC), the FBI’s National Joint Terrorism Task Force, the Terrorist Screening Center, and U.S. Immigration and Customs Enforcement’s National Security Unit.

3. We regularly exchange information with US-VISIT related to refugee claimants under existing data-sharing agreements with foreign-government partners.

Our efforts reflect our commitment to oversee lawful immigration to the United States by strengthening the security and integrity of our nation’s immigration system while providing effective customer-oriented immigration benefit and information services.

You can read more about the Department’s efforts to implement the 9/11 Commission report’s recommendations here.

CHICAGO – August 1, 2011. Governor Pat Quinn today signed historic legislation to increase education opportunities to children of immigrants in Illinois. The Illinois DREAM Act creates a privately-funded scholarship program for high school graduates from immigrant families who wish to attend college.

“All children have the right to a first-class education,” Governor Quinn said. “The Illinois DREAM Act creates more opportunities for the children of immigrants to achieve a fulfilling career, brighter future and better life through higher education.”

Senate Bill 2185, sponsored by Senate President John Cullerton (D-Chicago) and Rep. Eddie Acevedo (D-Chicago), establishes a nine-member Illinois DREAM Fund Commission to manage the program, whose members are appointed by the Governor. The commission will help establish privately-funded scholarships for students who have resided with their parents while attending high school in Illinois, earned their high school diploma, attended school in Illinois for at least three years, and have at least one parent who immigrated to the United States.

In addition, the new law allows any person with a Social Security or taxpayer identification number to participate in a state-operated college savings pool. It also requires high school counselors to provide college information to all children of immigrants. Children of immigrants will have unprecedented opportunities to access higher education as a result of the Illinois Dream Act.

“We should be opening, not shutting doors of opportunity for young students regardless of how or why they are living in Illinois,” said President Cullerton. “This new law moves the state beyond the rhetoric of equal opportunity by making the dream of a college education a reality for more of Illinois’ outstanding students.”

The new law was one of Governor Quinn’s top priorities during the spring legislative session. The Governor recognized that it would ensure that Illinois continues to lead the nation in increasing access to top-quality education, which is critical to retaining our best and brightest students and ensuring our continued success in the competitive global economy.

Students, community leaders and elected officials from across the state joined Governor Quinn to celebrate the new law that brings more affordability and better access to higher education in Illinois.

“Immigrants are a driving force in our city’s cultural and economic life, and opening the way for all Chicago students to earn an excellent higher education will make our city even stronger,” said Chicago Mayor Rahm Emanuel. “I am proud that families and students across Illinois will now have a better shot at the American Dream — which starts with a great education.”

With an estimated 65 percent of immigrant students coming from households earning below 200 percent of the poverty line, the financial barriers to higher education for academically qualified immigrant students are steep. Through the DREAM commission, Illinois leaders will now be able to raise private funds to help these students achieve their full potential.

“We thank Governor Quinn for his continuous support and his tireless work for the immigrant community,” said Lawrence Benito, Deputy Director of the Illinois Coalition for Immigrant and Refugee Rights (ICIRR). “The signing of this bill into law is historic and it confirms that Illinois is not only an immigrant-friendly state but also a national leader on moving fair, humane, and practical solutions.”

The DREAM Act passed with bipartisan legislative support and with the strong support of the education community. The commission will provide training to school service personnel and work with admission and financial aid officers and high school counselors across Illinois to help students utilize the wide array of higher education opportunities.

“The Illinois DREAM Act is a crucial step in the right direction, ensuring that worthy students are no longer denied the life-changing opportunity of college simply because their immigration status puts needed financial aid out of reach,” said University of Illinois President Michael J. Hogan. “I’m grateful to our legislators and Governor Quinn for supporting the shared vision that bright minds are our most precious resource and must be cultivated, not thwarted by outdated immigration laws.”

http://www.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=2&RecNum=9587

Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions.

Introduction

U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements: Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).” In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

Questions & Answers

Q: Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

A: No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

Q: What factors does USCIS consider when evaluating the employer-employee relationship?

A: As stated in the memorandum, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. Please see the memorandum in the links in the upper right hand of this page for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary. Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

Q: What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?

A: You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence.

Q: What if I cannot submit the evidence listed in the memorandum?

A: The documents listed in the memorandum are only examples of evidence that establish the petitioner’s right to control the beneficiary’s employment. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

Q: What if I receive or have received an RFE requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE?

A: If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE. You should explain how the documents you are providing address the deficiency(ies) raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation.

Q: Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?

A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.

Q: What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?

A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met), however, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.

Q: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity of the previous petition?

A: Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition. The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own). Such exceptions would be limited and made on a case-by-case basis.

Q: What if I am filing a petition requesting a “Change of Employer” and an extension of stay for the beneficiary’s H-1B classification? Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?

A: No. The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment. All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.

Q: I am a petitioner who will be employing the beneficiary to perform services in more than one work location. Do I need to submit an itinerary in support of my petition?

A: Yes. You will need to submit a complete itinerary of services or engagements, as described in the memo, in order to comply with 8 CFR 214.2(h)(2)(i)(B) if you are employing the beneficiary to perform services in more than one work location. Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.

Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?

A. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

Q: What happens if I do not submit evidence of the employer-employee relationship with my initial petition?

A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to a request for evidence (RFE). However, failure to provide this information with the initial submission will delay processing of your petition.

For more information on USCIS and its programs, call 1-800-375-5283.

Secretary Napolitano Announces Initiatives to Promote Startup Enterprises and Spur Job Creation.

Release Date: August 2, 2011

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

WASHINGTON—Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas today outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or who otherwise can create jobs, form startup companies, and invest capital in areas of high unemployment.

“The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs,” said Secretary Napolitano. “Today’s announcements will help our nation fully realize the potential of existing immigration laws.”

“Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation’s economy,” said Director Mayorkas. “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.”

These actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. They have also been one key focus of the President’s Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.

USCIS has published a Frequently Asked Questions (FAQs) document on its website clarifying that entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS will complement these FAQs with internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

In response to stakeholder feedback, USCIS has also updated existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa – which is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as science, engineering, and computer programming.

The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.

Created by Congress in 1990, the program stimulates the U.S. economy through capital investment and resulting job creation by immigrant investors. As of June 30, 2011, it is estimated that the program has resulted in more than $1.5 billion in capital investments and created at least 34,000 jobs.

USCIS has also announced the expansion of its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13″). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns.

Finally, USCIS is launching a new series of engagement opportunities for entrepreneurs and startup companies. These opportunities will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses and startup companies through its policies and regulations in the employment-based arena. For detailed information on USCIS’s public meetings, please visit www.uscis.gov/outreach.

For more information, visit www.uscis.gov.