Copland and Brenner

Table of Contents

1. CIR: The Saga Continues
2. In Brief: Recent Developments

1. CIR: The Saga Continues

   In what has become a perpetual topic in immigration circles, we write again this month about prospects for comprehensive immigration reform (“CIR”). The 110th Congress has been in session since January 4, 2007, and there are already bills regarding immigration reform before both the Senate and the House of Representatives. Whether this Congress will achieve success, coming to agreement where recent predecessors have failed, remains to be seen. However, most analysts appear to believe that the 110th Congress offers the best opportunity in years, certainly since the attacks of September 11, 2001, for CIR.

   As summarized on the White House web site, CIR involves measures “that will secure our borders, enhance interior and worksite enforcement, create a temporary worker program, resolve – without animosity and without amnesty – the status of illegal immigrants already here, and promote assimilation into our society.” And, it notes, “[a]ll elements of this problem must be addressed together – or none of them will be solved.” In discussing CIR, the site (http://www.whitehouse.gov/infocus/immigration/) goes on to say:

   “ Comprehensive Immigration Reform Must Account For The Millions Of Immigrants Already In The Country Illegally. Illegal immigration causes serious problems, putting pressure on public schools and hospitals and straining State and local budgets. People who have worked hard, supported their families, avoided crime, led responsible lives, and become a part of American life should be called in out of the shadows and under the rule of American law.

   “ The President Opposes An Automatic Path To Citizenship Or Any Other Form Of Amnesty. Amnesty, as a reward for lawbreaking, would only invite further lawbreaking. Amnesty would also be unfair to those lawful immigrants who have patiently waited their turn for citizenship and to those who are still waiting to enter the country legally.

   “ The President Supports A Rational Middle Ground Between A Program Of Mass Deportation And A Program Of Automatic Amnesty. It is neither wise nor realistic to round up and deport millions of illegal immigrants in the United States. But there should be no automatic path to citizenship. The President supports a rational middle ground founded on the following basic tenets:

   - No Amnesty. Workers who have entered the country illegally and workers who have overstayed their visas must pay a substantial penalty for their illegal conduct.

   - In Addition To Paying A Meaningful Penalty, Undocumented Workers Must Learn English, Pay Their Taxes, Pass A Background Check, And Hold A Job For A Number Of Years Before They Will Be Eligible To Be Considered For Legalized Status.

   - Any Undocumented Worker Seeking Citizenship Must Go To The ‘Back Of The Line.’ The program should not reward illegal conduct by making participants eligible for citizenship ahead of those who have played by the rules and followed the law. Instead, program participants must wait their turn at the back of the line.” (emphasis in original)

   On February 28, Department of Homeland Security ("DHS") Secretary Michael Chertoff testified before the Senate, stating that the Department is "committed to the President's vision of immigration reform." And, he testified, "[w]e also cannot ignore the presence in our country of about 12 million illegal aliens..it is simply not in our interest to have a population of this size remain in the shadows of our economy and often beyond the reach of law enforcement."
   President Bush has voiced his support for a "willing worker" program many times over. For three years running, he has called for CIR in his State of the Union address. But he was unable to accomplish CIR with Republican majorities in the House and Senate during the 109th Congress. Terminology is highly charged, with any notion of "amnesty," "legalization" or a "path to citizenship" generally rebuked by conservatives who favor an enforcement-driven approach.

   It seems that parties on all sides agree on the need for border security and improved worksite enforcement. The sticking points, however, relate to matters involving a temporary worker program (especially as it relates to aliens who are now unlawfully present in the U.S.A.), whether (and how) to regularize the status of those unlawfully present, and how to fit them into a scheme involving future immigration prospects such as lawful permanent resident status and, ultimately, U.S. citizenship. Accordingly, optimism in some quarters notwithstanding, it remains far from clear whether a pragmatic approach will be undertaken by Democrats and Republicans in both Houses of Congress - or if, instead, the stalemate will continue.

2. In Brief: Recent Developments

   CGFNS bars VisaScreen eligibility: In a February 14, 2007 posting on its web site, the Commission on Graduates of Foreign Nursing Schools (CGFNS International) announced that “those Philippine nurses who were sworn in as licensed nurses in the Philippines following their passing the compromised licensure exam of June 2006 are not eligible for a VisaScreen Certificate. CGFNS began investigating this issue soon after the first reports of irregularities were received and sent a fact-finding mission to the Philippines in September 2006. CGFNS has concluded that the licensure process for those who received their license as a result of passing the compromised June 2006 licensure examination raises significant questions about the accurate assessment of the competencies of many of those individuals. Therefore, CGFNS is unable to certify that the licensure is comparable to a U.S. license.” The February 14 notice may be viewed at the CGFNS web site at http://www.cgfns.org/sections/about/news/news/2007/02-14-07_philippines.shtml.

   In a February 20 follow-up, CGFNS announced that it “has further determined that the June 2006 passers are able to overcome this bar and qualify for issuance of a VisaScreen certificate by taking the equivalent of Tests 3 and 5 on a future Philippine nursing exam.” The February 20 notice is available on the CGFNS web site at http://www.cgfns.org/sections/about/news/news/2007/02-20-07_philippines.shtml.

   Another ICE raid ensnares executives in harboring and tax evasion scheme: On February 22, U.S. Immigration and Customs Enforcement (“ICE”) announced in a News Release “the unsealing today of a 23-count felony indictment charging three Florida residents with conspiracy to defraud the United States and to harbor illegal aliens for profit, harboring illegal aliens for profit, and evading payment of Federal employment taxes.” The release states that, “[a]ccording to the indictment, the three operated a cleaning and grounds-maintenance service that contracted with theme restaurant chains and hospitality venues throughout the United States that was staffed predominantly with illegal aliens.” Approximately 195 administrative arrests of immigration status violators were also made, with arrests at 63 locations in 17 states and the District of Columbia.

   FBI “Name Check” clearance: In a notice to members on February 26, the American Immigration Lawyers Association (“AILA”) posted a USCIS Memo detailing policy changes involving a missing or incorrect date of birth, name check validity period, duplicate requests, and expedited name checks (AILA Doc. No. 07022660).

   As applicants for naturalization or adjustment of status know (or learn during the process), a “definitive” FBI name check is mandated for these immigration benefits. This means that actual feedback from the FBI is required as to whether or not there is any record for a particular applicant. For many applicants, the process is initiated and performed by automated systems. When this is accomplished, a name check is typically available in short order. However, if a name check is initiated or must be performed manually, a delay of years is possible, and USCIS does not control the process. Under the policies as set forth in the Memo, expedited name checks are available only in cases that meet at least one of the following criteria:

   - Military deployment
   - Age-out cases not covered under the provisions of the Child Status Protection Act, and applications affected by sunset provisions such as Diversity Visa cases
   - Compelling reasons as provided by the requesting office (e.g., critical medical conditions)
   - Loss of Social Security benefits or other subsistence in the discretion of the District Director

   Significantly, “[m]andamus filings will no longer be routinely expedited.”

   Passport requirement under WHTI: As we have reported in prior editions, the first phase of the Department of State's ("DOS") Western Hemisphere Travel Initiative ("WHTI") went into effect on January 23, 2007. Under phase one, citizens of the U.S.A., Canada, Mexico and Bermuda must present a passport to enter the United States when arriving by air from any part of the Western Hemisphere. This initiative has not drawn nearly as much fire as the one slated to go into effect as early as January 2008, under which U.S. citizens traveling between the United States and Canada, Mexico, Central and South America, the Caribbean, and Bermuda by land or sea could be required to present a valid U.S. passport or other documents as determined by DHS.

   Elected representatives from several (largely northern, U.S. - Canadian border) states have railed against the land entry aspect of the passport requirement, complaining that this phase would impose too great a financial burden on families, will slow commerce, and bears an insignificant relationship to the goal of reducing the possibility of terrorist entry. The DOS consequently announced, on February 22, that it "will soon issue final regulations that will allow it to issue to U.S. citizens a lower cost alternative to a passport, the Passport Card.and will continue to issue WHTI compliant border crossing documents for frequent border crossers under its trusted traveler programs." In addition, the announcement stated the "intent to propose" significant flexibility regarding travel documents required for U.S. and Canadian children as part of WHTI requirements for U.S. land and sea border entry in 2008."

   "Third Track" for FOIA requests before EOIR: In a notice published in the Federal Register on February 28, U.S. Citizenship and Immigration Services ("USCIS") announced that it "is improving its processing of Freedom of Information Act (FOIA) requests from the general public by establishing a third processing track for individuals appearing before an immigration court." The third track, the "Notice To Appear" track, which will allow for accelerated access to the Alien-File (A-File) for those individuals who have been served with a charging document and have been scheduled for a hearing before an immigration judge as a result.

   The "Notice to Appear Track" will "not include cases in which the immigration judge has issued a final order or cases in which an appeal of an immigration judge's decision has been filed with the Board of Immigration Appeals (BIA)." Nor will it include "cases in which the subject's date of scheduled hearing before the immigration judge has passed and current records indicate that the subject failed to appear for his/her scheduled hearing, resulting in closure of the removal/deportation proceedings by the immigration judge."

   2007 Poverty Guidelines issued: Updated "poverty guidelines" of the U.S. Department of Health and Human Services were published in the Federal Register on January 24, and may be found online at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/07-268.htm. At this writing, however, USCIS has not yet updated its online Form I-864P regarding the 125% multiple that applies to immigration matters. Readers should refer to the USCIS web site at www.uscis.gov and click on "Immigration Forms" to ascertain when the agency imposes the new guidelines on immigration matters.