Copland and Brenner

Table of Contents

1. Comprehensive Immigration Reform: Back from the Brink?
2. In Brief: Recent Developments

1. Comprehensive Immigration Reform: Back from the Brink?

   On December 15, 2009, Representatives Solomon P. Ortiz (D-TX) and Luis V. Gutierrez (D-IL) introduced the Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 before the House of Representatives. The proposed legislation, H.R. 4321, is also known by its acronym, CIR ASAP. A total of 92 House Democrats, including members of the Congressional Hispanic Caucus, Congressional Asian Pacific American Caucus, and the Congressional Black Caucus joined in sponsoring the bill.

   On his web site, Rep. Ortiz credits Rep. Gutierrez with pushing the initiative for H.R. 4321. Rep. Gutierrez is a Chicago native born in 1953 and an eight-term member of the House, where he has championed causes relating to immigration matters since 1992. As described on his web site (http://luisgutierrez.house.gov/), during his first term “he led the fight to increase citizenship education and English language proficiency programs for newly-arrived immigrants,” and has held citizenship workshops which have helped “more than 40,000 people take the first steps toward citizenship.” He chairs the Democratic Caucus Immigration Task Force as well as the Congressional Hispanic Caucus Immigration Task Force.

   As pointed out on his web site, Rep. Gutierrez previously introduced (with Jeff Flake, R-AZ) the Security Through Regularized Immigration and a Vibrant Economy Act of 2007 (STRIVE Act) in March 2007 (H.R. 1645). That proposed legislation was described in a Washington Post editorial on April 2, 2007 as “sensible, bipartisan legislation.” Regrettably, comprehensive immigration reform was not to be in 2007, despite the common-sense solutions proposed by both H.R. 1645 and a counterpart bill in the Senate. The “grand bargain” represented by the 2007 immigration reform bills failed in large part due to a procedural vote in the Senate on June 28, 2007. As stated in a June 30, 2007 editorial in The New York Times, the defeat of immigration reform in the Senate “was appalling, not so much because an ambitious bill died, but because of how stubbornly, to the bitter end, the process remained disconnected from reality. The bill crumpled on the Senate floor on Thursday in a procedural vote, with two-thirds of Republicans swarming to kill it.” That editorial noted further that Congress would have to revisit the issue and that “[i]ts solutions will have to correspond with the complex realities of global economic change, of a workforce that needs immigrants, of immigrants who need and deserve a clear, sure path to citizenship and of a nation that needs to be true to its laws and to its decent, welcoming self.”

   Nearly three years later, we have a new President and many new faces in the 111th Congress. Yet, “revisiting” the issue, to date, has meant only proposed legislation – including H.R. 4321 - that has not gained enough traction to succeed. It remains not only questionable, but doubtful, that comprehensive immigration reform will be enacted any time soon due to the simple mathematics involved in passing legislation. Unless both houses of Congress agree upon the same language and muster enough votes for passage, any proposed legislation will die without ever going before the President.

   The split in Congress is not entirely along party lines, but there do appear to be marked party-based differences on immigration issues. With respect to current legislation pending in Congress, the American Immigration Lawyers Association (“AILA”) web site indicates that it opposes three Senate bills and 19 House bills that are largely supported by Republican sponsors. In contrast, AILA supports 10 Senate bills and 25 House bills (including H.R. 4321) for which the sponsors are mostly Democrats. Elected representatives are not generally known for their courage in taking on difficult topics, particularly in an age when pro-immigration sentiment is deemed tantamount to supporting terrorism. With midterm elections in the House set for November 2010, each passing day brings members of the House closer to a day of reckoning – and perhaps further away from any commitment to comprehensive immigration reform.

   At 644 pages, H.R. 4321 is a weighty read which can be accessed in its entirety via THOMAS at The Library of Congress web site (http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.4321.IH:). For those with insufficient time to explore the full bill, summaries by the Immigration Policy Center of the American Immigration Council (http://www.immigrationpolicy.org/sites/default/files/docs/CIR_ASAP_2009_Summary.pdf), and the web site of Rep. Ortiz (http://ortiz.house.gov/), explain that it includes the following major provisions:

   Border Security, Detention and Enforcement: A national strategy for border security would be formalized; a Southern Border Security Task Force composed of federal, state, and local law enforcement officers would be created to protect U.S. communities along the Mexican border from violence and crime; personnel, equipment and other assets, port of entry infrastructure and operations would be evaluated and resources allocated to ensure that equipment, technology and personnel allow for more effective screening of goods and individuals. The U.S. Department of Homeland Security (“DHS”) would be required to ensure humane treatment of detainees; detention of refugees would be prohibited and family unity would be protected. Due process and other protections would be provided during enforcement activities; provisions allowing for local law enforcement of federal immigration statutes would be repealed. The one-year bar to applying for asylum would be eliminated, and federal court jurisdiction would be restored to review DHS decisions and practices.

   Employment Verification: Employers would be required to verify workers’ identity and work authorization using an employment verification system; penalties for failure to comply would be significantly increased; anti-discrimination provisions would prohibit discriminatory practices; employees could register with the Social Security Administration to ensure accuracy of their records and make corrections.

   Visa Reforms: Several provisions would reduce lengthy backlogs in family- and employment-based immigrant and nonimmigrant visa classifications; spouses and children of lawful permanent residents would be classified as immediate relatives; greater discretionary authority would allow for waivers of bars to family reunification (including unlawful presence); I-864 affidavit of support requirement would be reduced from the current 125% to 100% of the applicable poverty guideline level.

   Legalization of Undocumented Immigrants: Conditional nonimmigrant status, valid for six years, would allow legalized immigrants to live, work and travel while being protected from removal; qualified aliens could apply for lawful permanent resident status and, eventually, naturalization; undocumented children brought to the U.S.A. before the age of 16 would be eligible for accelerated permanent residence upon meeting certain conditions.

   U.S. Workforce Protections: An independent “Commission on Immigration and Labor Markets” would develop employment-based policies to promote economic growth and competitiveness while protecting wages and labor; written notice of terms of employment would be required to ensure that foreign workers are not misled by prospective employers; there would be greater oversight to L-1 and H-2B nonimmigrant programs.

   Integration of New Americans: The goal of U.S. citizenship would be encouraged among immigrant communities by utilizing incentive programs and other measures.

2. In Brief: Recent Developments

   Technical Instructions for Adjustment Vaccination Requirements: On December 14, 2009, the Department of Health and Human Services, Centers for Disease Control and Prevention (“CDC”), issued Vaccination Requirements for Adjustment of Status for U.S. Permanent Residence: Technical Instructions for Civil Surgeons. The 19-page manual addresses changes announced in the Federal Register on November 13, 2009 regarding new criteria for determining which vaccinations will be required for applicants seeking lawful permanent resident status (http://edocket.access.gpo.gov/2009/E9-27317.htm). As explained therein, the CDC “will continue to require the vaccinations explicitly listed in section 212(a)(1)(A)(ii) [of the Immigration and Nationality Act].”

   For all other vaccinations recommended by the Advisory Committee on Immunization Practices (“ACIP”) for the general public, the Technical Instructions state that the CDC will require only those for which there is a public health need at the time of immigration/change of status based upon the following criteria:

   1. The vaccine must be an age-appropriate vaccine as recommended by the ACIP for the general U.S. population; and

   2. It must protect against at least one of the following: (a) a disease that has the potential to cause an outbreak; (b) a disease that has been eliminated in the U.S.A. or is in the process of elimination in the U.S.A.

   Based upon the new criteria, vaccines for herpes zoster (zoster) and human papillomavirus (HPV) are no longer required as of December 14, 2009. The following age-appropriate vaccinations are required for adjustment of status applicants based upon the above criteria: diphtheria, tetanus, pertussis, polio, measles, mumps, rubella, rotavirus, haemophilus influenza type b, hepatitis A, hepatitis B, meningococcal (tetravalent meningococcal conjugate vaccine is required for applicants 11 – 18 years of age), varicella, pneumococcal, influenza (required for applicants six months – 18 years of age during the flu season, and for all applicants age 50 or older).

   The instructions in the manual specifically “supersede all previous vaccination-related ‘Technical Instructions,’ ‘Updates to the Technical Instructions,’ and memoranda or letters to civil surgeons,” and “are to be followed for vaccination requirements for all persons applying for adjustment of status for permanent residence.” The manual is available in pdf on the CDC web site, at http://www.cdc.gov/ncidod/dq/pdf/civil_surgeon_ti/2009-vaccination-technical-instructions.pdf. Additional information may be found on the agency’s web site, at http://www.cdc.gov/ncidod/dq/laws_regs/fed_reg/vaccine/revised-vaccination-immigration.htm.

   H-1B Update: On December 22, 2009, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had “received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010.” On that basis, December 21 was the final receipt date for H-1B petitions subject to the annual limit of 65,000. A computer-generated, random selection process will be used to identify petitions that may be adjudicated under the FY 2010 cap.

   Cap-subject petitions received after December 21 are being rejected by the agency, with applicable filing fees returned to the petitioner. However, H-1B petitions that are not subject to the cap (including those to extend the stay of current H-1B workers, change employer or terms of employment, and allow concurrent work in a second position) will continue to be adjudicated.

   N-400 Filing Location Changes: On December 17, USCIS abruptly posted an update announcing revised addresses for filing applications for naturalization (Form N-400) at agency lockbox facilities in Phoenix and Dallas. No explanation was provided, and the changes took effect immediately. Details regarding the new post office box addresses for filings made via the U.S. Postal Service, as well as those made via courier, may be found in the agency update at www.uscis.gov, and clicking on the link to “News.”

   Those filing under special statutory provisions at Sections 328 and 329 of the Immigration and Nationality Act, including military spouses, should file their applications at the Nebraska Service Center, P.O. Box 87426, Lincoln, NE 68501-7426.