Copland and Brenner

Table of Contents

1. Senate Acts; What Will Follow?
2. IMBRA Imbroglio: DHS Drops the Ball
3. Update: FY 2007 H-1B Filings

1. Senate Acts; What Will Follow?

   On May 26, 2006 the Senate passed what is termed “comprehensive immigration reform,” or “CIR,” by a vote of 62 to 36. Voting in favor, 38 Democrats, 23 Republicans and one Independent carried the day. It is impossible to predict whether the Senate and the House of Representatives will be able to agree upon a joint bill to present to the President. Unless that happens, and unless the President signs a joint bill into law, there will be no change in the Immigration and Nationality Act.

   It is important for all stakeholders to keep in mind that any new law will surely contain at least some harsh provisions that punish certain aliens, even retroactively – because there are various historical examples of this very thing. So, while opposition to any “legalization,” earned or otherwise, of illegal immigrants continues to be the main obstacle in the House, some pro-immigration groups are reportedly questioning whether no new law at all is preferable to bad law.

   In a May 26 article, The New York Times quotes Representative James Sensenbrenner (R-WI) as stating that the Senate bill is a “non-starter.” In his view, “the Senate and the House started miles apart, and as a result of some amendments that were offered in the Senate miles have become moons apart or oceans apart, this has made a difficult task even more so.” As Chairman of the House Judiciary Committee, his position carries significant weight, and it is no secret that the House as a whole is openly hostile to any “legalization” plan, though somewhat less opposed to a “guest worker” plan.

   Deborah Notkin, president of the American Immigration Lawyers Association (“AILA”), notes that “[t]he Senate bill is not perfect. It still contains some overly-harsh enforcement provisions and strips important due process protections.” (AILA InfoNet Doc. No. 06052660, May 26, 2006). It is estimated that the Senate bill, S. 2611, would eventually help approximately ten million illegal immigrants regularize their status by becoming lawful permanent residents. But at least two million aliens, those who are undocumented in the U.S.A. for less than two years, would be out of luck.

   In the words of New York City mayor Michael Bloomberg (reported in The New York Times on May 24), “[t]he Senate’s tiered approach requiring that some people ‘report to deport’ through guest worker programs – while leaving their spouses, children and mortgages behind – is no less ridiculous” than the House plan for mass deportations. It is unclear what methods and means might be used to remove them; history reflects it is realistic that they will await the next “amnesty” or “earned legalization” program.

2. IMBRA Imbroglio: DHS Drops the Ball

   Due to inaction by the Department of Homeland Security (“DHS”) mandated by a new law, 1,100 fiancée visa petitions (Form I-129F) filed after March 5 were approved in error. Accordingly, they have been recalled by DHS from U.S. consulates overseas for further processing by U.S. Citizenship and Immigration Services (“USCIS”).

   The background to this lapse is as follows: on January 5, 2006, President Bush signed into law the International Marriage Broker Regulation Act of 2005 (“IMBRA”). IMBRA was enacted as part of a 176-page statute, the Violence Against Women and Department of Justice Reauthorization Act of 2005, which overhauled and extended the Violence Against Women Act of 1994, known as “VAWA.”

   Among other things, VAWA provides protection and services to women who are subject to domestic violence and other forms of abuse; funds training for law enforcement officials, court personnel and health professionals; and funds services needed by victims of domestic violence and abuse. VAWA also protects immigrant women, including those without legal status in the U.S.A., from domestic violence, trafficking and other forms of abuse, and provides means by which some such women may regularize their immigration status and remain in America.

   The January 5 enactment of IMBRA affects only those petitions utilizing Form I-129F. Only a U.S. citizen may file Form I-129F, either for a qualifying fiancée or for a spouse where a previously filed I-130 relative petition for a spouse is still pending. IMBRA extends protections to immigrant women who might otherwise unknowingly become entangled with U.S. citizen petitioners with backgrounds suggesting the potential for abuse or violence. In doing so, IMBRA focuses upon fiancée and spouse visa petitioners, as well as “international marriage brokers,” and imposes new limits upon the ability to obtain approval of such petitions.

   The new limits were to take effect 60 days after enactment; i.e., on March 6, 2006. In failing to adhere to the deadline mandated by the statute, DHS has created a nightmare for petitioners and beneficiaries who believed they had taken all steps necessary for petition approval, only to learn that additional action is required.

   IMBRA imposed the following requirements, all effective March 6, 2006 :

   Convictions of petitioner:
   - the petition form “ shall include information on any criminal convictions of the petitioner for any specified crime” (emphasis added)
   - the term “specified crime” means “[d]omestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking;” “[h]omicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment,” or an attempt to commit any of these crimes; or “[a]t least three convictions for crimes relating to a controlled substance or alcohol not arising from a single act.”

   Prior petitioner filing(s) of Form I-129F:
   - a petition may not be approved unless the officer has verified that the petitioner has not previously sponsored two or more aliens and , if any petition was previously approved, that two years have elapsed since the filing of the previously approved petition

   Waivers:
   - the above number and time frame limitations may be waived by DHS “if justification exists for such a waiver. Except in extraordinary circumstances [ ] a waiver shall not be granted if the petitioner has a record of violent criminal offenses against a person or persons.”
   - a waiver “shall” be granted if the petitioner “has been battered or subjected to extreme cruelty” if he/she is or was “not the primary perpetrator of violence in the relationship, and upon a determination that the petitioner acted in self-defense, or violated a protection order intended to protect the petitioner , or meets certain requirements with respect to crimes not resulting in serious bodily injury that have a relation to the battery or extreme cruelty. In making such determinations, DHS “is not limited by the criminal court record” and “shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of” DHS.

   International marriage brokers:
   - brokers are required to conduct a search of sex offender registries regarding the U.S. Client
   - certification must be obtained from the U.S. client regarding any civil protection order or restraining order; any arrest or conviction for specified crimes, including those listed above as well as prostitution; marital history; the ages of any children under age 18; and all states and countries where the U.S. citizen has resided since 18 years of age
   - there is a bar to providing information about or photographs of any person under the age of 18

   Database:
   - DHS is to “create a database for the purpose of tracking multiple visa petitions filed for fiancé(e)s and spouses.” When a second visa petition filed by the same U.S. citizen petitioner is approved, the petitioner will be notified that his information has been entered into the tracking database.
   - once two I-129F’s by the same petitioner have been approved, a subsequent petition filed less than ten years after the first filing will result in notification to the petitioner and the beneficiary regarding the number of previously approved petitions in the database.

   Other mandates under IMBRA carry different effective dates:

   Information on domestic violence:
   - each “K” nonimmigrant visa applicant will be mailed a pamphlet including information on the visa process, the illegality of domestic violence, sexual assault, and child abuse in the U.S.A., provide information on available services in the event of such abuse, describe the legal rights of affected immigrant victims, child support obligations of parents, marriage fraud and associated penalties, and a warning regarding the potential use of K nonimmigrant visas by U.S. citizens with a history of, but no criminal record for, domestic violence or abuse
   - notice that marriage brokers are required to provide beneficiaries with information from sex offender public registries, marital records, and domestic violence and other violent history, but that such information might be incomplete or inaccurate
   - translation into specified languages affecting the greatest concentration of K visa applicants will be required
   - posting on DHS, DOS and consular post web sites is required
   - the pamphlet is to be given to all applicants for family-based immigration petitions “at all consular and adjustment interviews for such visas”
   - the pamphlet, with translations into the 14 currently specified languages, “ shall be distributed and made available…not later than 120 days after enactment; i.e., May 7, 2006 (emphasis added). The pamphlet is not yet available.

   As the Department of State (“DOS”) tersely pointed out in a May 30 cable, the March 5 deadline “was established for DHS to begin asking K-1 fiance(e) petitioners for their criminal background information. DHS did not meet the deadline for collecting additional information. Some petitions filed after the deadline were approved in error under the old procedures and sent through the National Visa Center (NVC) to posts for processing. Approximately 1100 cases went to 95 IV-issuing posts. Posts are preparing to return theses cases as quickly as possible to NVC.” Given that the statutory mandate applies to DHS, the State Department cable advises that disappointed petitioners and beneficiaries address any questions directly to USCIS.

   Interestingly, the only publicly available DHS action regarding Form I-129F appears to be two Federal Register notices – one from May 26 and one from February 28, 2006, concerning “agency information collection activities.” Both apparently relate to amendments necessary to Form I-129F arising from the Legal Immigration Family Equity Act of 2000 (“LIFE Act”). The May 26 notice states that USCIS “has submitted an emergency information collection request [ ] utilizing emergency review procedures,” (emphasis added) - but even it makes no reference to the changes imposed by IMBRA. Instead, it includes a link to the USCIS web site concerning the “new” LIFE Act provision: “Because LIFE became immediately effective in December, 2000, this Form must be changed to account for the new sections of the K nonimmigrant classification as quickly as possible.”

3. Update: FY 2007 H-1B FilingsOn May 30, the American Immigration Lawyers Association (“AILA”) advised its members that, “As of 5/25/06, 49, 034 H-1B numbers (out of a pool of 61,000) had been used for [fiscal year] 2007. That was a usage of approximately 4,000 in two days – double the rate of usage in the weeks before. As the cap nears, it is reasonable to expect that the rate of usage will continue to climb. Therefore, it is generally believed that the H-1B cap for fiscal 2007 will be reached very shortly.” (AILA InfoNet Doc. No. 06053062)