Got Immigration? The World’s Best Damn Blog About U.S. Immigration

You might have noticed that I’ve been off-radar for the past couple of days.  Trust me – it’s not by choice.  I have a nasty sore throat (maybe strep?),  my stomach is doing the rumba, and my joints are all achey.  I hope I’ll feel better by the end of the long Memorial Day weekend, and will have more posts for you then.

I enjoyed reading a recent article in the L.A. Times about Alejandro Mayorkas, the Director of U.S. Citizenship and Immigration Services.  Apparently, he’s won high marks from both sides of the immigration debate, probably because he’s been very responsive thus far to complaints from across the political spectrum.  Mr. Mayorkas has made some immigration processes more transparent and user-friendly, and has cracked down on other aspects of the immigration system, such as checking up on H-1B and L-1 nonimmigrants and the companies that employ them.  I know for a fact that he’s worked closely with the American Immigration Lawyers Association (AILA) to spread information and address various complaints - definitely a nice change from most of his predecessors.  I welcome this change in leadership and attitude, but we can’t let ourselves become complacent just because a warm and fuzzy kind-of-guy is in charge of USCIS now.  There is still a veritable ocean of problems with our nation’s principal immigration agency that need to be fixed ASAP in order for America to remain globally competitive.  I’m talking about a flood of denied business-related immigration petitions, both for nonimmigrant and immigrant visas.  I’m talking about lengthy waits for appeals and Motions to Reopen to be adjudicated.  I’m also talking about a seeming lack of uniform training among immigration officers at all level of USCIS’s bureaucracy – perhaps the scariest problem of all.  The Times’ article makes it clear that Mr. Mayorkas has heard our complaints – I just hope that ”hearing” translates to more “doing” sometime soon.

Senator John McCain of Arizona is sponsoring the Border Security Enforcement Act of 2010 (S. 3332), which aims to enhance the nation’s - but especially Arizona’s – security along the border with Mexico.  The bill contains many provisions one would expect in border security legislation: money for more border patrol agents, money for improved surveilance systems, and even money for fancy new radios that are “P-25 compliant,” whatever that means.  Other provisions, though, are somewhat more unusual.  S. 3332 allows the Governor of Arizona to deploy up to 3,000 National Guard troops along the border until “operational control” has been achieved in those areas.  Senator McCain, just what does “operational control” mean?  Is that when no undocumented immigrants cross the border for 24 hours?  For a year?  Or does ”operational control” just refer to border violence?  I think a little more clarification – and a lot less discretion left to the government – is in order with respect to that portion of the bill.  S. 3332 also requires the Attorney General to reimburse state and local governments for the cost of incarcerating individuals that have been convicted of criminal activity while unlawfully present in the United States.  I think that’s an interesting way to shift the onus of enforcing the nation’s immigration laws to the federal government, but I wonder if Senator McCain really understands how much that would ultimately cost the feds annually.  Although on the other hand - if the goal is to spur DHS into action, the higher the cost, the better, right?  I’m curious to see how that idea plays out, and whether it makes it into the final version S. 3332 – or whether S. 3332 is even passed in the first place.

Arizona is not very happy about the City of Los Angeles’ resolution to stop doing business with the state, so much so that it is now threatening to stop sending power to L.A.  Arizona-generated power accounts for 25% of L.A.’s power supply, and any power boycott could have significant negative ramifications on the already cash-strapped city.  Oh, except for one thing – L.A. actually owns parts of the power plants that supply its power, making any power boycott extremely unlikely.  Check out this article on CNN’s website for more information about this potential war between the states (or between the city and the state).

This story was just too cute to pass up.  While visiting an elementary school in Maryland, First Lady Michelle Obama received an unexpected question from a second-grader about whether her husband was going to “take everyone away that didn’t have papers.”  The First Lady took the question in stride, answering as anyone would that is both an attorney and married to the President of the United States: “Yeah, well that’s something that we have to work on, right? To make sure that people can be here with the right kind of papers, right? That’s exactly right.”  The little girl quietly responded that her mother had no papers, to which Mrs. Obama replied, “Well, we have to work on that.  We have to fix that, and everybody’s got to work together in Congress to make sure that happens.  That’s right.”  This encounter perfectly illustrates the pain and worry that a parent’s immigration situation can cause their American-born children.  Although the law requires “extreme hardship” to citizen or permanent resident children for many immigration benefits, including waivers of inadmissibility, and requires “extreme and unusual hardship” in order to ”cancel” someone’s removal from the United States, merely having citizen or permanent resident children does not establish the requisite level of hardship.  In other words, the level of hardship needed to obtain an immigration benefit is something above just having citizen or resident children (or a spouse or parents, as the case might be); most cases require that the children have special medical or emotional needs, are heavily involved in school activities, etc.  I hope that this little girl’s question to the wife of the most powerful man in the United States shows that a parent’s deportation does cause extreme hardship to any child.  How could it not?  The fear, pain, and uncertainty that accompany a loved-one’s deportation are tremendous hardships on anyone, but especially to children, who arguably need their parents around much more than other relatives might need each other.  It’s time for the law to recognize that removing a parent is an extreme hardship on their children – period.

President Obama’s aunt from Kenya won her asylum case in Immigration Court last week.  Judge Leonard Shapiro of the Boston Immigration Court granted Zeituni Onyango’s asylum petition, allowing her to remain in the United States indefinitely.  Ms. Onyango is the President’s father’s half-sister, and has been fighting to stay in the U.S. for about six years.  One item in CNN’s article, though, caught my attention – apparently, “Onyango…applied for political asylum in 2002 due to violence in her native Kenya. She was a legal resident of the United States at the time and had received a Social Security card a year earlier.”  If Ms. Onyango was a legal resident when she applied for asylum, why did she apply in the first place?  Maybe she had legal status in the U.S. through some other means, and was about to lose her status, or maybe she had applied to adjust her status, and her petition was denied or took too long to adjudicate.  If the President’s aunt was a permanent resident, though, she would have no reason to apply for asylum – unless she did something that rendered her removable, which would be interesting to find out.  Curiosity aside, Ms. Onyango’s case is now closed, and any immigration problems she might have had in the past are all pretty much irrelevant now.

Alright, this is admittedly a silly news story, but hey – if we can liven up the gloomy world of immigration once in a while, why not?  As many of you might know, the NBA Western Conference Championship series began last night, with the L.A. Lakers facing off against the Phoenix Suns at Staples Center in Los Angeles.  To mark the occasion, the mayors of L.A. and Phoenix made a bet/political statement about SB 1070, Arizona’s infamous immigration law.  The New York Times reports that L.A. Mayor Antonio Villaraigosa will take Maricopa County Sheriff Joe Arpaio off Phoenix’s hands if the Lakers lose the series, and Phoenix Mayor Phil Gordon will accept both of California’s Republican gubernatorial candidates, Meg Whitman and Steve Poizner, if the Suns lose.  Unfortunately, a city mayor can’t legally exile two gubernatorial candidates from their state, and Mayor Gordon probably doesn’t have much control over where Sheriff Joe goes, so I don’t really see any of these things happening – but neither do the mayors, who also bet that they’d treat a group of local students to a baseball game if their respective teams prevail.  Check out the Times’ article for the sarcastic semi-humorous letter that Mayor Villaraigosa sent Mayor Gordon to set this bet in motion.

USCIS announced last week that it is now issuing new and improved green cards that have some very fancy security features.  According to the USCIS website, the new green hard will have the following features: ”Secure optical media will store biometrics for rapid and reliable identification of the card holder. Holographic images, laser engraved fingerprints, and high resolution micro-images will make the card nearly impossible to reproduce. Tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. Finally, a preprinted return address will enable the easy return of a lost card to USCIS.”  My favorite feature – the new green card is actually green again!  Green cards have been a sort of off-white or khaki color for several decades, which proved very confusing for a lot of new immigrants.  USCIS’s website perhaps says it best: “In keeping with the Permanent Resident Card’s nickname, it will now be colored green for easy recognition.”  USCIS has already begun issuing these new green cards, and will issue them to permanent residents with the old version as they apply to replace expiring cards.

This must be the week of government techniness.  After USCIS announced that it had created some online contraption called VIBE (see yesterday’s post), purportedly to help employers file I-129s and I-140s, the Department of Labor announced that it has a new online resource for H-1B employers and workers called the H-1B advisor.  While VIBE seems to be an online tool that is actually used to file petitions with USCIS, the H-1B Advisor is purely a source of information for anyone connected with the H-1B nonimmigrant visa category.  The Advisor is initially divided into two sections – one for employees and one for employers – and is then further sub-divided by type of employee and type of employer.  The whole thing seems fairly user-friendly, and contains clear and concise statements of the law concerning employment of H-1B nonimmigrants.  My one critique would be that it’s almost too legalistic, which could scare some users off.  I especially love how the first two sub-categories of employers are “I am an H-1B dependent employer” and “I am a willful violator.”  Say what?  Willful violator?  That definitely does NOT sound good out of context, and the DOL might want to re-phrase some of these terms, or at least provide a tool on the same page that defines them (there is a glossary, but it is not accessible directly from the initial pages).  Minor criticisms aside, this is a very useful site that will demystify the H-1B category for many people, attorneys included.

There’s an informational session at USCIS’s Washington Headquarters on May 27th for something new and exciting called VIBE – Validation Instrument for Business Enterprise.  According to USCIS’s press release, VIBE is a “web-based tool that will help bring uniformity and consistency to the processing of employment-based immigrant and nonimmigrant petitions.”  I don’t know about you, but I’m still confused.  Is VIBE a means of submitting I-129 and I-140 petitions to USCIS online,  or is it a web-based checklist for employers to use in conjunction with a standard paper petition?  Is it something exclusively for employers, or can attorneys use it too?  Will VIBE replace attorneys completely in the employment-based immigration process?  I suppose that USCIS will answer these and other questions at its public engagement session on the 27th, and for the time being, I’ll wait until more information comes out about the VIBE program before commenting further.  I’ll just say one more thing: government agencies seem to have a bad track record when it comes to technological initiatives.  Government databases are full of errors, web-based government tools are full of bugs, and there is usually a lag time of years before a given piece of technology is both user-friendly and effective (iCERT is a wonderful example).  I hope that VIBE is that first piece of government techno-innovation that actually improves our lives, rather than driving us all crazy.