New Blog Address

Finally our new website is completed - I will not continue to blog on blogger and invite you to join my blog on: http://www.visa-pros.com/blog/
I will post updates and useful information there.
Cheers!
Karen

HOW DOES THE GOVERNMENT SHUTDOWN EFFECT U.S. IMMIGRATION SERVICES?

The government shutdown has created some confusion in the immigration community. Certain governmental services that are an essential part of my work as an immigration attorney have either shut down or began operating on a limited basis. Until Congress gets it together and passes a new budget, this will become the operating status quo for my industry. Below is a quick list of governmental resources and a brief description of how the shutdown affects them. 

EOIR: Only Immigration Court functions that support the detained caseload will continue, but other functions are suspended. The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as detained cases only, including case appeals, motions, federal court remands, and bonds. For all our non-detained clients, cases will not be heard and moved to future hearing dates.

ICE:  ICE detention and enforcement operations will continue as it is considered an essential function. However ICE chief counsel trial attorneys will work only on detained docket during the shutdown. The ICE Community and Detainee Helpline will remain operational.

USCIS: All USCIS offices worldwide are open and individuals should report to interviews and appointments as scheduled. Since USCIS is supported by filing fees and not congressional appropriations it is not affected at all by the shutdown. However, its E-Verify program is not working during the shutdown. 

Customs and Border Protection operations are considered to be essential functions and would not be disrupted. However, if there are staffing cuts, it is possible that there would be some delays in processing applications presented at the U.S. border and at border crossings. There may also be delays in waiver adjudication.

Department of State functions will be delayed although most services will remain open. Travel plans for State Department personnel will mostly be put on hold, as will all new employment offers. The State Department has not released exact numbers of furloughs, but in previous shutdowns, furloughs were felt more heavily at the department's headquarters in Washington than at posts overseas.

Consular operations will continue which means that people would be able to get visas (and passports) in the U.S. and abroad at consular sites but these services could be heavily delayed. The shutdown of ancillary consular operations, including building support and the employment of local personnel, may impact the delivery of visa services, resulting in cancellation of visa appointments or delays in the processing of visa applications. In past shutdowns, visa processing was slowed down significantly and they only processed "life and death" situations. However now many of the visas are fee-supported so they promise not to delay visa processing. So short answer is nobody knows how they will be affected so foreign nationals should be prepared for delays in consular visa processing and, where feasible, may want to consider postponing travel outside the United States if a new visa would be required to reenter the United States if not absolutely necessary.

Passports: Passport processing will be delayed as many offices are inside buildings that will be shut down.

CIS Ombudsman: The CIS Ombudsman's Office will be closed and will not be accepting any inquiries through their online case intake system.

OFLC functions are not "excepted" from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, the OFLC will neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. As of now, OFLC's web site, including the iCERT Visa Portal System and the PERM system, are inoperative and unable to process any cases. PERM applications that need to be filed due to expiring recruitment or the need to preserve H-1B AC21 eligibility could presumably be filed by mail if necessary. There is a problem for H-1B extensions that cannot be filed without the LCA - USCIS has been contacted about this issue by AILA to allow filing without the LCA for now. 

DHS: Due to the lapse in federal funding, DHS’ website will not be actively managed.

DHS OIG: The majority of DHS OIG staff has been furloughed due to the lapse in appropriations.

Comprehensive Immigration Reform: The shut down will create even more of a delay for the immigration reform cause as Congress will completely shift gears to address their inept bargaining tactics instead of addressing this key piece of legislation. However, the nationwide immigration event, known as the March for Immigrant Dignity and Respect will still continue as planned on October 5. To learn more, please click here.

Comprehensive Immigration Reform’s Second Wind

I was encouraged to learn this week that House Minority Leader Nancy Pelosi is introducing legislation to combine the comprehensive bill that passed the Senate Judiciary Committee in May with a bipartisan border-security bill from the House Homeland Security Committee. Both bills received bipartisan support but not enough support from the GOP leadership to bring it to the House floor for a vote. To answer this bureaucratic stalling, Pelosi has announced her strategy to bring comprehensive immigration reform back into the spotlight with her mash-up of the year’s most well-supported, bipartisan attempts at immigration reform.

Whether or not her bill will win any favors with the GOP leadership is dubious – to be honest, I don’t think it was really her end goal. I think her goal is much more strategic. Immigration reform is such a heated debate, it’s unlikely any singular proposed bill will win over the GOP leadership at this time and I trust she and her aides recognize that. It is more likely that her strategy is to smoke out the GOP leadership. From this point, the GOP can either reveal themselves as unwilling to act on immigration reform by continuing to keep all immigration reform bills off the floor or they can call one of these bills to a vote. Either way, the conversation on reform can shift to one of action or inaction by the GOP.

The most immediate benefit of her strategy is that it will renew news coverage for immigration reform. Pelosi's bill will debut (tentatively) on Oct.5th, which is now National Day of Action. On this day, rallies and marches for immigration reform will take place nationwide – in over 40 U.S. cities – to demand comprehensive immigration reform.The need for comprehensive immigration reform is real. Families across the nation are suffering and have suffered due to politics and inaction by our representatives.With the spotlight back on immigration reform, it is Pelosi’s hope, and mine as well, that Congress will take action and pass something comprehensive reform. The good news is that the GOP has promised to make immigration reform a priority. But until something other than border patrol measures gets to the House floor for a vote, I'd be cautious to believe them.

CIR WINNING

The American people are speaking and they’re saying “yes” to immigration reform. From both sides of the aisle, and all parts of the political spectrum, the left, the right, and the center are all coming out and registering their voices in support of immigration reform.  

Congressmen are actually listening as immigration advocates count 23 Republican members of Congress who have publicly come out in support of not just immigration reform for legal immigrants but a path to citizenship for current undocumented immigrants.

The Atlantic published a great article last week boldly exclaiming that Immigration reformers are winning in August. But despite the show of numbers for immigration reform, Roy Beck, executive director of the anti-immigration group NumbersUSA remains unconvinced that immigration reform will happen. He asserts that protests, rallies and shows of numbers do not necessarily correspond to votes in Congress. I have to say Beck is right – but only to a point. He is right when he says that our work is not done. Until a comprehensive immigration reform bill is signed into law, we can only be "winning" but we have not won. Even still, it is encouraging to see less and less people show up to anti-immigration rallies – like the sort Beck organizes, Turnout is so low that major anti-immigrant rallies have to be cut back and events have to be cancelled due to low participation. To this setback, Beck argues that his side does not need to come out in numbers in the same way as reform advocates since anti-reform advocates have the House in their pocket. Beck and his like minded supporters count on the House rejecting the Senate bill, which is the most immediate way comprehensive reform could be signed into law. 

The great thing about this fight for comprehensive immigration reform (CIR) is that even if the House rejects the Senate bill forthright – the call for CIR  is becoming so loud - the House cannot possibly disregard this call to action. In fact, the House is under increasing pressure to pass something immigration related as their first order of business, And like Beck, I have trust in the political process because at the end of the day, it is in their best interest as politicians to take note of the changing tide of public opinion - which is shown by show of numbers. After all, the same people most likely to be involved in the political process now are most likely going to stay involved during re-election time. 

BLURRED LINES

The need for a more distinct line between the role of local law enforcement and Immigration and Customs Enforcement  (ICE) agents is becoming more and more apparent. Pressure from advocacy groups to more strictly define the role of local law enforcement as their duties relate to undocumented immigrants is garnering some hopeful results with Connecticut, the District of Columbia, Cook County, Il, and Newark, NJ passing legislation to significantly limit the reach of ICE.

A recent civil rights lawsuit in New Orleans has brought attention to the unconstitutional practice of “excessive and unlawful custody” local police forces have taken to assist ICE beyond their duty to prevent crime and punish criminals. The New York Times reports that New Orleans Sherriff Marlin Gusman complied with an ICE request to detain two undocumented immigrants until ICE could come and take them  into custody. These two men were jailed at the time for minor offenses but were jailed for an additional 90+ days without a federal charge because of this ICE hold. The explicit limit for detaining someone for ICE is 48 hours – after which, the men should have been released. These men’s constitutional rights were clearly violated and in response to their case’s victory, New Orleans has opted to limit the role local law enforcement will play in future ICE detention cases.

California, recognizing this trend, is now considering a bill that would limit the role of local law enforcement in feeding inmates to ICE. Criminals charged for serious offenses such as felonies, would still be turned over for deportation, but others in jail for minor offenses would not be held on ICE’s behalf beyond the 48 hour maximum. I hope this legislation passes in California and I hope more legislation like this will surface soon in other states. Even an undocumented immigrant should not be detained for prolonged periods of time just because they are in the country without status if they are not criminals or if they only have minor offenses such as traffic offenses, which is most often the case. It’s a cruel and unusual punishment. Think about someone detained for90 days in jail for jaywalking. The punishment does not fit the crime.

We want local police officers to prioritize their efforts in a way that will make our communities safer and not to become an extension of ICE. 

PIECEMEAL APPROACH BY THE HOUSE MAY HASTEN DREAMERS’ LEGALIZATION AT COST OF COMPREHENSIVE IMMIGRATION REFORM

There is some good news to report this week on the immigration front:

The Huffington Post reported yesterday that 400,562 young people or 72% of the estimated total eligible for DACA, have applied and been approved for deferred action since it was approved last August.

In response to overwhelming public support for aiding the Dreamers, 2 House Republicans who voted against the DREAM Act in 2010 are working on a Dream Act-like bill, called the Kids Act that would legalize, not just defer the deportation of Dreamers.

Due to wide public support and the President’s action the case to legalize Dreamers is a done deal as it seems like Congress will be able to come together for their cause. The issue now is to make the case to legalize their parents which is a much tougher case to make. There is still a long road ahead for comprehensive immigration reform but as the case for Dreamers show, civic action and public support can play a substantial role in influencing policy makers.

As a recent Washington Post article notes, there is a danger in the Houses’ piecemeal approach to immigration reform as it could be possible that the GOP concession to legalizing Dreamers will come at a cost of killing attempts at comprehensive immigration reform for the remaining 11 million undocumented immigrants. This is why this strategy is problematic. We need comprehensive immigration reform and to strike while the iron is hot as there is great public support for it now.

CONGRESS’ RECESS BRINGS GREAT IMMIGRATION REFORM LOBBYING OPPORTUNITIES

The New York Times reports that immigration advocates see Congress’s 5-week summer recess as a crucial window to lobby the House to hold a vote for the comprehensive immigration bill that is currently tabled there. Should the House pursue its piecemeal approach to immigration reform, advocates fear issues like increasing border security will take precedence and leave the issue of a path to citizenship for the 11 million undocumented immigrants in the U.S. unresolved for a much longer time or leave the issue completely unresolved. This is unacceptable as deportations are increasing at a record pace every day.

Since a path to citizenship is included in the Senate’s comprehensive bill, immigration reform advocates are moving forward to launch several campaigns to get the House to vote on the Senate’s bill. One campaign that was both poignant and topical involved sending cantaloupes to more than 200 House members, with a note that said “This cantaloupe was picked by immigrants in California. You gave Steve King a vote. Give us a vote for citizenship.” In a speech last week, Steve King (R-IA), stereotyped immigrants as drug runners who taped marijuana to their calves making them the “size of cantaloupes.” This is not the first time that he made bigoted remarks.

Advocates also mentioned that if the Senate’s comprehensive bill were to be voted on in the House today, there would be enough bipartisan support to pass the bill. Therefore, advocates believe efforts to rally enough outcry from key constituent groups and the accompanying media coverage over the next 5 weeks can help pressure House GOP members and its leadership to act on this bill.

I want to encourage everyone to contact their Congress members in the month of August to support immigration reform, whether by calling their Washington D.C. office, local offices, writing letters or visiting with them if possible. Please do this as we need a final push to get the immigration reform bill passed!