Tragedy in Boston Marathon Explosion

The Boston Marathon Bombings are a tragic event.  Our hearts go out to the victims and their families.  Unfortunately, these types of incidents have been a reality in the world we live in.  The September 11th bombings are an event we should not and will not ever forget.  The loss of life, the emotional suffering is something unimaginable.

Terrorist Attacks – Impact on Immigration Reform past and present

PAST: The reason I bring these events up in an Immigration blog article is there are some very real lessons from an immigration perspective.  On September 5 2001, just days before the September 11th attack, President George W. Bush and President Vincente Fox of Mexico met at the White House to discuss Comprehensive Immigration Reform.  This was a follow up meeting in which the Bush and Fox Administrations had been meeting for many months.  The result of the meeting was a set of principles in which both President Bush and President Fox agreed upon.  As Colin Powell stated, ”We’ve made a great deal of progress with respect to principles. We are now getting ready to move from principles into specifics and programs, and how would one design such programs.”1

It was unrealistic to expect legislation to be announced out of this meeting as its up to the President of the United States and Congress to legislate, not a foreign President.  However, Mexico did and still does have a clear interest in the migration system in the U.S.  In 2001 it was reported that there were  3 million Mexicans living illegally in the United States.2 According to the U.S. Census Bureau in 2000, there were 8 million undocumented persons living in the U.S. 3

As President Fox stated, “[W]e want some agreement on migration, taking into considerations two universes: One has to do with those Mexican workers that are here in the United States but are contributing to the U.S. economy, that are paying taxes, that are behaving; those right now are illegal. We want to regularize their situation so that they can be here without having to hide away, without having to have their rights violated, and that they would have a status of regularization that will permit them to have all the rights, and keep on working hard, and at the same time go back and forth to Mexico.”  Clearly, Mexico did and does have an interest in seeing its Nationals have a means of migrating into the U.S. and living legally in the U.S.

Congress also appeared to be receptive to Comprehensive Immigration Reform and in particular to address the Immigration Problem in the U.S.  Congressman Tancredo, head of the Congressional Immigration Reform Caucus stated  that a “guest worker program we can develop — one that will work, I hope we can develop,” said Rep. Tom Tancredo, R-Colorado. “But it should not be, and will not be, attached to any sort of amnesty.” 4

September 2001 seemed to be forming a basis for a much needed Comprehensive Immigration Reform.   Fast Forward less than a week and we had the bombings of September 11th.  A tragic event that understandably changed America.  Part of that change was how we view migration into the U.S. and securing entry into the U.S., whether crossing the border through Mexico or entering the U.S. through an airport.  Unfortunately, Comprehensive Immigration Reform was left in the shadows of securing our borders.  The Department of Homeland Security was formed and Immigration and Naturalization Services became United States Citizenship and Immigration Services under the Department of Homeland Security.

Immigration Reform 2013 Post Boston Explosion

PRESENT: Fast forward almost 12 years to 2013.  According to PEW Hispanic Research Center, we now have 11.1 million undocumented persons in the United States (as of 2011), 58% of whom are from Mexico (roughly 6.5 million).  In a matter of 12 years since the last time Comprehensive Immigration Reform was in the air and almost seemed like a certainty to pass, the undocumented person population in the U.S. grew from 8 million to 11.1 million, of which the Mexican undocumented population grew from 3.9 million to 6.5 million.  The problem has grown by approximately 50%.  Thus, approximately 3.5% of the U.S. population consists of undocumented workers. 5

It’s 2013, and Comprehensive Immigration Reform is in the air.  I would not call it a certainty to pass but the chances look as good as they did in 2001, just before the 9-11 attacks.  Yesterday’s Boston Marathon Bombings don’t appear to have the same level of impact on our country as the September 11th Terrorist Attacks, likely because we’ve unfortunately been through this before but also the Boston attacks seems to be much smaller in comparison.  This article is not intended to compare the two events, but rather state that it is very ominous that on the verge of Immigration Reform in both 2001 and 2013, we have these tragic events.

The Senate Gang of Eight went ahead today as planned and unveiled details of their Comprehensive Immigration Reform Plan today, just one day after the Boston Bombings.  That is a sign of optimism that our leaders will stay focused on Immigration Reform and the debate will not spill over to only securing our borders.  Clearly Immigration Reform should include measures for securing our borders.  However, its important that we address all of our problems.  This is our best chance to get it done since 2001.  All the interested parties seem to have a vested interest to get this done.  Religious leaders want to grow their churches and make sure their followers have legal status in the U.S.; businesses need “skilled” and “unskilled” workers from all walks of life including undocumented workers; Police and National Security need to have a consistent framework in which to understand the rights of Undocumented workers (i.e. Arizona should not treat undocumented workers differently than Illinois or New York, etc); Politicians have an interest in winning the Latino vote as well other proponents of Immigration.

Let’s hope that we have learned and adapted to the realities of the September 11th attacks and that we are able to continue forward with Comprehensive Immigration Reform after the tragic Boston Marathon Attacks.

By Attorney Gerald Cipolla 
____________________

Cipolla Law Group is a full service immigration law firm located in downtown Chicago, Illinois.  We have over 25 years of combined experience helping individuals and businesses to fulfill their immigration goals.  Our immigration attorneys in Chicago strive to deliver the best immigration representation to our clients and have proven track record to win your case.  Contact us for a consultation today.

Comprehensive Immigration Reform is potentially here.  We have news that on Tuesday April 16, the Senate Gang of Eight will unveil their Immigration Bill.  There is also talk that the House of Representatives have a comprehensive immigration reform bill that they would like to propose.  President Obama also proposed a plan.  We really don’t know the details of each plan other than leaks to media.

Immigration Reform: What are the numbers? 

My greatest concern is not learning from the past.  As repeated in numerous articles in the past, one of the main contributors to the current immigration problem were arbitrary caps and inadequate visa categories.  Arbitrary caps on green cards (preference family members), H1B visas, and Employment Based Green Cards has caused a complete mess in the system.  For instance, the H1B filing season for Fiscal Year 2014 just began on April 1 and the arbitrary cap numbers were filled on April 5.  There were 124,000 petitions received in the first 5 days of April for the available 65,000 Bachelor’s Cap and 20,000 US Master’s Cap visas allotted by Congress each year.  What does this mean?  It means if an employer wanted to hire an overseas worker, they had a 5 day window to submit a labor intense application and had to spend thousands of dollars to file this application with an approximately 50% chance of the case even being selected for adjudication.  Even if the case is accepted for adjudication there is no guarantee it will be approved.  If the case is not selected in the H1B lottery, the options are find another visa category (this can be extremely challenging) or wait until next year (or should we say wait until October 1 2014 to begin employment i.e.. 18 months from now).  This does not include the employers and employees that agree to a relationship after April 1 and find out too late about the H1B process.  The system is chaotic and caused by arbitrary H1B visas allotted each year.

The illegal immigration problem in my opinion is caused by the lack of available visas and the long visa backlog time to bring relatives.  For instance, if someone from Mexico wants to enter the US for a manufacturing job where they will very likely be hired, there really are not any visa categories available for them.  If they are living in poverty in their home country, their choice is cross the border illegally where there is a job likely waiting for them or stay in poverty.  From the employer’s standpoint, they are often put in a position to break the law and hire someone without employment authorization, or just choose not to inquire about their employment authorization.

Immigration Reform: Good ideas ruined by Bad numbers? 

The leaks about the Senate Bill intrigues me because it almost seems like a merit based system similar to the Canadian Immigration System.  This article is to not speculate on the terms of the Senate Bill (we’ll find out in a couple of days) or the terms of the House proposal, but rather to express my views that Congress not ruin potentially good ideas with bad numbers.  In other words, the comprehensive immigration reform they may propose may have the right approach (i.e.. a path to citizenship for the 11 million undocumented persons in the US, opportunities for skilled and unskilled workers to migrate to the US, reduce the family backlogs for spouses of permanent residents), but please don’t ruin the laws by imposing arbitrary caps where in 5 years the numbers will make no sense.  Like now, many of our immigration laws probably make sense (I want to emphasize the word many as there are also many that make no sense at all), but the numbers have just created backlogs where the laws no longer make sense.  For Comprehensive Immigration Reform to make sense, it truly needs to comprehensive, numbers in all.

By Attorney Gerald Cipolla

Cipolla Law Group is a full service immigration law firm based in downtown Chicago, Illinois.  With over 25 years of combined legal experience, we have extensive experience and excellent track record in helping immigrants within and outside the U.S. to fulfill their immigration dreams.  If you are seeking an experienced immigration lawyer in Chicago, please feel free to contact us for a consultation.

It is H1B season right now and in the midst of the Comprehensive Immigration Reform Bill there has not been much talk for reforming the H1B Cap and some of the detailed rules revolving around H1B extensions and H1B Transfers.

H1B 2014 – Overview

An H1B visa allows U.S. employers to employ foreign Professionals with the equivalent of a U.S. Bachelor’s Degree or higher to work in a position related to the educational background.  For example, someone with a Master’s Degree in Engineering could work in a field related to engineering, however if the same candidate were to apply for a job as an accountant, it likely would not be approved for an H1B as the academic background is not related to the job.

H1B Cap 2014 and H1B visa 6 year limit

Congress allots 65,000 U.S. Bachelor’s cap and 20,000 U.S. Master Degree holders each year for H1B employment beginning on October 1.  Once someone has been counted against the Cap mentioned above, they can work on H1B for up to 6 years in total.  The first H1B is usually granted for a 3 year term and it may be extended for a second 3 year term with the same employer, called an H1B Extension.  The H1B rules allow for someone to transfer their H1B to a different employer within the 6 year period, called an H1B Transfer.

H1B Visa to Green Card

It is very common for an Employer to sponsor an employee on an H1B visa or H1B status for an Employment Based Green Card.  Most Employment Based Green Cards in the second preference (EB2) and all of the Employment Based Green Cards in the third preference (EB3) require Labor Certification or PERM.  Generally the filing of the PERM before the Employee’s 6th year allows for an H1B extension beyond 6 years under the American Competitiveness Act of the 21st Century (AC21).  Due to retrogression (backlog in Employment Based Green Cards), the rules for extending H1B status beyond 6 years become very convoluted and detailed causing much confusion for Employers, Employees, and some inexperienced Immigration Lawyers as the rules are constantly evolving.

The H1B problem and what needs to be done 

In my opinion, the rules surrounding an Employment Based green card and H1B visa are very fair.  However, the arbitrary caps placed by Congress are the source of the problem.  The main problems are:

Brief History of High-Skilled Immigrants Act

The fairness of High Skilled Immigrants Act was discussed during a February 13, 2013 Senate Hearing.  If you recall, the Bill was introduced to the House in September 2011 and subsequently passed in November 2011 by the U.S. House of Representatives.  It has subsequently been stalled by the Senate.  However, during a Senate Hearing Senator Lee, a Republican from Utah stated he will be introducing the bill in the Senate.

What is the purpose of this Act? 

The purpose of the Fairness of High Skilled Immigrants Act is to “amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, to increase the per-country numerical limitation for family-sponsored immigrants, and for other purposes.”

Who will be affected under this Act?

As many are aware, the per country limitations is a complete disaster.  By a simple review of the Visa Bulletin, you will see that a skilled worker in the Employment Based Green Card category of EB3 from India has over a 10 year wait time.  In other words, an employer will commit to an employee from India who has the equivalent of a U.S. Bachelor’s degree by offering the EB3 worker from India a permanent job offer.  The employer will go through the rigorous process of PERM (Labor Certification) undertake thousands of dollars in advertising costs and attorney fees, obtain an approval, file an I-140 petition to prove the merits of the case, obtain an approval, and then be stalled for 10 years.  The employer is on hold and the employee is on hold and forced to go through H1B renewal after renewal incurring substantial costs.  The green card wait time for other employment based green card categories are not significantly better, an EB2 employee from India has an average of 9 year wait time and someone from China generally has a 5 year wait time in EB2 Preference Category.

Will lifting the per-country cap on employment based green card solve the backlogs?

The reason for this backlog is because of INA Section 201, “Worldwide Level of Immigration”  This section of the Immigration Act limits the amount of Immigrant Visas available worldwide and by country.  In other words, each country is capped at 7% of the worldwide level of available Immigrant Visas.  The Department of State reports that “immigrant visa issuance during fiscal year 2013 are limited by the terms of INA 201 to no more  than 226,000 in the family-sponsored preferences and approximately 154,000 in the employment-based preferences.”  

 My reading of the Fairness for High Skilled Immigrant Act does not increase the amount of worldwide Immigrant Visas available each year, but rather lifts the per country cap.

Is the pie big enough for all the demands? 

Another suggestion that has been made during this time of Comprehensive Immigration Reform is awarding permanent residence to persons earning a U.S. Master’s Degree or Ph.D from a University in the U.S. in the field of STEM (Science, Technology, Engineering, and Mathematics).  Logically thinking, there will be a frenzy of applicants enrolling in U.S. universities for fields within STEM.  This is a great idea, however if the worldwide limits are not increased for Immigrant Visas, we will still maintain the same backlog.  I am not a Mathmetician, but more demand for the same size pie (i.e. no increase in the amount of worldwide Immigrant Visas) is doomed to create the same long wait times that we are currently experiencing.  I applaud the ideas for reform but as Senator Grassley said in the February 13 Senate Hearing, “I’m going to start with a quote from then chairman, Sen. Simpson of WY made on 1981 as we started down a 6years road of 1986 bill. Just as congress is about to undertake an overhaul of the immigration reform system, his words are relevant today. Since I was elected to the Senate, I have served on this committee. I voted for the 1986 amnesty bill because I believed it was a one-time solution to the problem. I was wrong. I applaud the movement by members to work towards an agreement. I have read the Senate bi-partisan framework.  One line that struck me: “we will ensure that this is a successful permanent reform that will not need to be revisited” that sentence is the most important part of that document. We must learn from our previous mistakes so we don’t have to revisit the problem…”

So let’s get this right this time around.  Let’s involve mathematicians and statisticians to estimate the amount of supply and demand needed to eliminate backlogs that make our country less competitive and deter the brightest minds from being able to stay and Immigrate to the U.S.

By Attorney Gerald Cipolla

*Cipolla Law Group is a full service immigration law firm located in downtown Chicago.  Our Immigration lawyers have over 25 years of combined experience and excellent proven records to help businesses and individuals obtaining their visas and green cards.  If you are looking for an experienced immigration lawyer, please contact us today.

USCIS recently announced a new Provisional Waiver program for persons having accrued unlawful presence in the US.  The new rule will go into effect March 4, 2013.  The provisional waiver program is certainly not comprehensive immigration reform and its not even a change in the law.  But for those eligible it is a positive change.  Let’s start out by describing in laymen’s terms what the provisional waiver is.

What is Provisional Waiver?

The provisional waiver is a new program where USCIS will adjudicate extreme hardship waiver cases for persons in the U.S. who are neither eligible to change status or adjust status to permanent residence.  In the past, applicants for extreme hardship waiver cases needed to leave the U.S. to file the case and if the case was denied, they were separated from their family indefinitely or at least 3 to 10 years.  Now, the provisional waiver program allows eligible parties to file from the United States, receive a decision without leaving the U.S. and upon approval, exit the U.S. to attend an interview at an overseas U.S. Consulate.  Provided that the Consulate agrees with USCIS approval, the Applicant will likely be granted permanent residence upon entry into the U.S. on an Immigrant Visa (green card).  In the event USCIS denies the provisional waiver case USCIS does not envision initiating removal proceedings or referring provisional unlawful presence waiver applicants to ICE.  However, in limited instances USCIS reserves the right to issue a Notice to Appear for Removal Proceedings, but from the sounds of it is unlikely.

Who is eligible for Provisional Waiver?