Copland and Brenner

Table of Contents

1. Impasse or Passage? Congress Roiled by Immigration Debate
2. H-1B Update: FY 2007 Filings Under Way
3. Bi-Specialization alters I-129, I-140 Filing locations
4. 2006 Poverty Guidelines Issued

1. Impasse or Passage? Congress Roiled by Immigration Debate

   At this April 6 writing, Congress remains deadlocked on legislation that could free 11 million undocumented aliens from their underclass status in America and make progress toward meaningful border and security reforms. With political barbs flying in Washington, a rumor mill running rampant and anticipatory tensions high all around, it can be difficult to separate fiction from fact. The rumor mill had many believing a law was already on the books two weeks ago, but at least for now that is not the case.

   The current state of affairs, and how we got here, is as follows:

   Senator Arlen Specter (R-PA) is Chairman of the Senate Judiciary Committee, which has legislative jurisdiction over immigration and naturalization matters. On March 9, the American Immigration Lawyers Association (“AILA”) reported that the Committee “began to make some headway in its markup of Senator Specter’s draft bill on comprehensive immigration reform, known as the ‘Chairman’s Mark.’” (AILA Doc. No. 06030940) AILA noted that minimal progress that day left “an incredible amount of work yet to be done in the two markup sessions that remained,” and that Senator William Frist (R-TN), Senate Majority Leader, had warned he would introduce his own bill if the Committee failed to produce a bill by March 27.

   Senators John McCain (R-AZ) and Edward Kennedy (D-MA), also members of the Committee, had proposed the legislation being considered by the committee. However, moving a bill out of Committee would involve consideration of multiple additional provisions proposed by other Senators. For that reason, and for the simple fact that a broad range of issues – border and security issues, interior enforcement as well as immigration benefits - were in play, the “Chairman’s Mark” is also known as the Comprehensive Immigration Reform Act of 2006, or “CIR.”

   Time wore on, the Committee did not complete its deliberations, and Congress was scheduled to be in recess the week of March 20. Insisting that a vote on immigration legislation must take place by April 7, Senator Frist introduced his Securing America’s Borders Act (S. 2454) on March 16, notwithstanding requests from the Committee to allow members to complete their work on a comprehensive bill that would include provisions to address the undocumented alien issue.

   S. 2454 is punitive in that it focuses entirely on enforcement matters and seeks to cut back on many protections afforded aliens. S. 2454 is not comprehensive in that it offers no means of regularizing the status of the millions of undocumented workers acknowledged by all sides to be in the U.S.A., in some cases for many years. In its letter of March 27 to Senator Frist, the American Bar Association (“ABA”) voiced opposition to the harsh measures of S. 2454, including:

   - elimination of administrative review in many situations, including naturalization applications and visa revocations
   - presence without a visa, which would, for the first time, become a criminal offense rather than the civil violation it is under current law
   - a second violation of the “unlawful presence” provisions would be deemed an aggravated felony
   - expansion of expedited removal, with no right to legal counsel, an interpreter, an impartial adjudicator or judicial review, leaving inadequate due process protections
   - retroactivity provisions which would expand the definition of “aggravated felony” to include conduct occurring years earlier
   - expansion of grounds for indefinite detention, which would also be applied retroactively
   - authorization for local and state police to enforce federal immigration laws
   - criminalization of the unwilling use of fraudulent documents, or use of documents belonging to another person, which would unfairly impact asylum seekers and victims of trafficking
   - retroactive provisions that would render immigrants ineligible for citizenship for conduct that would not have disqualified them at the time of the conduct

   In its letter, the ABA urged Senator Frist to allow the Senate Judiciary Committee time to consider the Comprehensive Immigration Reform Act of 2006, asking that he “support comprehensive reform legislation that provides a realistic and meaningful approach to both national security and the need for immigrant labor, as well as crucial due process safeguards for immigrants and asylum seekers.”

   Notably, the McCain-Kennedy proposal did not discriminate among those illegally present in the U.S.A. before a certain date. Title VI (Work Authorization and Legalization of Undocumented Individuals) of the Chairman’s Mark that emerged from the Senate Judiciary Committee would allow for “conditional nonimmigrant worker status for an alien who can establish that he or she: (1) was physically present and employed in the U.S. before January 7, 2004; and (2) has been employed in the U.S. since that date, whether full time, part time, seasonally, or self-employed. The alien’s spouse and children are also eligible to apply for adjustment of status or to follow to join the alien.” The employment requirement could be satisfied “by full-time attendance at either an institution of higher education or a secondary school,” and would not apply to minors under 21 years of age.

   An initial fine of $1,000, application fee, fingerprints and background checks would apply. The period of conditional nonimmigrant status would be six years, during which there could be no change to any other nonimmigrant or immigrant classification. An alien “is inadmissible…for grounds related to criminal conduct, security reasons, terrorist activity, or participating in the persecution of any person. Practicing polygamists and child abductors are also barred. However, other grounds of inadmissibility related to undocumented status will be waived.”

   Applicants “will be granted employment authorization, permission to travel abroad, and may not be detained, determined inadmissible or deportable, or removed pending final adjudication” of the application “unless the alien becomes ineligible for such status based upon conduct or criminal conviction.” Aliens present in the U.S.A. in removal proceedings, and even those already ordered removed, would be eligible to apply without being required to file any motion to reopen. A grant of conditional status would be followed six years later by an adjustment of status application, another fine of $1,000 plus the usual adjustment requirements.

   However, it appears the Chairman’s Mark is not to be. With most Republicans opposed to “amnesty” and the prospect of “rewarding” those who came to or remained in the U.S.A. illegally, a trifurcated approach was reached by the GOP in compromise late on April 5. That approach, as reported in The New York Times on April 6, would do the following:

   - place those who have lived in the U.S.A. at least five years “on a path toward guaranteed citizenship, provided that they remained employed, paid fines and back taxes, and learned English.” The aide quoted by the Times stated it is believed this group numbers approximately 7 million aliens.
   - those in the U.S.A. for 2 – 5 years “would have to leave the country briefly before reporting to an American port of entry, where they would be classified as temporary workers. They would be allowed to apply for citizenship but would have no guarantee of obtaining it.” This group is believed to number approximately 3 million aliens.
   - those in the U.S.A. for less than two years “would be required to leave. They could apply for temporary worker status but would not be guaranteed it.”

   As reported by the Times , the April 6 Senate vote first involved the Chairman’s Mark. However, as Senator Frist predicted, the bill did not have enough votes, and a vote on the new compromise would follow late in the day or on April 7. It is not at all clear whether enough Democrats will join their Republican counterparts to pass the compromise.

   Expecting the worst, fingers are being pointed in every direction for the impasse: the Republicans at the Democrats for insisting on an up or down vote on the Chairman’s Mark; the Democrats at the Republicans for seeking to add amendments that would wreck the bill approved by the Committee. Senator McCain, says the Times , is now supporting the compromise bill and some of Senator Kennedy’s supporters are doing the same, though the Senator himself has not yet agreed.

   Given the deadline imposed by Majority Leader Frist, it is still possible to hope that April 7 will bring news of the Senate passing a comprehensive bill. It is important to remember, however, that the Senate alone does not make our laws. Any bill passed by the Senate must be considered in Conference Committee with the bill approved by the House of Representatives earlier this year. It is important to note that the House bill, H.R. 4437, essentially an enforcement-only bill, lacks any provision for regularizing the status of the 11 million undocumented aliens. It must also be remembered that if a bill emerges from the Conference Committee, it must be presented to the full House and Senate for a vote. If both houses of Congress agree on a bill it will be presented to President Bush, who can either sign or veto the bill. There is a long road ahead and it is unclear what, if any, principles might be sacrificed, and by whom, along the way.

2. H-1B Update: FY 2007 Filings Under Way

   With the arrival of April 1, U.S. Citizenship and Immigration Services began accepting H-1B petitions for Fiscal Year 2007. In an April 5 notice to its members (AILA InfoNet Doc. No. 06040561), AILA stated that “[s]ources at USCIS indicate that the first two days of filings for H-1Bs for fiscal year 2007 are at about the same pace as last year. Last year, the cap was reached on April 10.”

   For employees utilizing the “portability” provisions to change H-1B employer, a March 24 USCIS notice offered new warnings: “In situations in which an H-1B worker is changing to an employer other than the one for which the initial H-1B petition was approved, [it] will require that the worker changing employers demonstrate that he or she actually did perform meaningful work for the original petitioning employer under circumstances not reflective of fraudulent intent in the original petition. In situations in which the H-1B worker is processing abroad, USCIS will work closely with the Department of State to ensure that this same level of integrity is applied to consular processed H-1Bs.”

3. Bi-Specialization alters I-129, I-140 Filing locationsOn March 24, USCIS announced that it would change filing procedures for Forms I-129 (petitions for nonimmigrant worker) and I-140 (employment-based immigrant visa petitions). Effective April 1, all I-129’s are to be filed directly with the Vermont Service Center. Any accompanying forms, such as an I-539 (application for extension/change of nonimmigrant status) for any family member, should accompany the I-129 to Vermont. Under a “pairing process,” the California Service Center will share I-129 adjudication, but initial filing must be with Vermont. All I-140’s are to be filed at the Nebraska Service Center, along with any accompanying applications (including I-485 application for adjustment of status, I-765 application for employment authorization, and I-131 application for travel document for the principal or any derivative family member applicant). The Texas Service Center will share I-140 adjudication. Until further notice, USCIS will not reject petitions and applications filed at the wrong Service Center.
4. 2006 Poverty Guidelines IssuedUpdated “poverty guidelines” of the U.S. Department of Health and Human Services (“HHS”) have been published in the Federal Register and are now in effect for immigration purposes. The revised guidelines may be accessed at http://www.access.gpo.gov/su_docs/fedreg/a060124c.html.