October
2008 Newsletter
IMMIGRATION MATTERS IN A
PRESIDENTIAL ELECTION
October 2, 2008
By Robert D. Aronson
DEAR CLIENTS AND FRIENDS:
A funny thing happened this
year on the way to the election …
Both Presidential candidates – Barack
Obama and John McCain – have publicly voiced their support
for comprehensive immigration reform. While both candidates see the
continuing immigration dysfunction as injurious to U.S. economic
interests through creating an unassimilated underclass from the undocumented
population, putting downward pressure on wages and working conditions,
and stifling access to skilled personnel as needed for economic competitiveness,
in Obama’s case, his support appears to be heavily grounded
in matters of social justice; in McCain’s situation, it is
the product of the human tragedies and economic upheaval from living
in a state that is obsessed with the consequences of a porous border.
While immigration has certainly slipped
from a front-line political issue amidst the current economic chaos,
it has certainly not disappeared either from the public’s attention
or as a political issue. Quite possibly in this close election, the
Hispanic and other immigrant communities will be the determining
voting bloc in various swing states. So, don’t be surprised
if we see over these next few weeks some very interesting developments
in the Congress and the Administration to adopt measures that might – that
just might – resonate with some key swing constituencies
BACKLOGS ABOUND AND WAITING
TIMES GROW
In most years, the commencement date of the new federal
fiscal year on October 1 signals a major jump forward in the Immigrant
Visa backlog lines owing to the fact that our quotas are replenished
with new visa numbers. But the recently released Visa Bulletin for
October by the U.S. Department of State reveals an alarming trend
of continued, and in some instances escalating, Visa backlog waiting
lines. In the employment sphere, while the Advanced Degree Professional
(EB-2) worldwide quota remains current, the visa numbers for China
have retrogressed to April 1, 2004, and for India until April 1,
2003. Essentially, this means that a highly accomplished professional
from China is now facing over a four-year waiting period for availability
of an immigrant visa number, as required to actually obtain permanent
residence status; for India, the situation is even more dire in that
the wait now exceeds five years.
There are two schools of thought
on how to interpret this backlog mess. The first school of thought
holds that the U.S. Department
of State has set an artificially conservative cutoff date intended
to clean up its backlog of long pending immigration cases, and
that we will soon see strong forward movement in the immigrant visa
backlogs
for China and India. The alternative school of thought, and one
to which I personally subscribe, is that the backlogs for China and
India are a harbinger of the oversubscribed, backlog situation
that
ultimately will afflict the worldwide quota, thereby adding significant
backlog waiting times for foreign nationals and their employers
to finalize in its entirety, an employment-based immigration case.
In
any case, the possibility of an oversubscription in the visa numbers
clearly indicates that the annual EB-2 numerical allotment
of 40,000 numbers (with a per country cap of 7% of this total)
is clearly inadequate to meet the legitimate personnel needs of U.S.
businesses. In this light, Sen. Bob Menendez (D-NJ) introduced
legislation
(S 3514) that would loosen up immigration matters a bit through
the following initiatives: 1) it would eliminate the 7% per country
immigration
cap; 2) it would allow for a recapture of unused immigrant visa
numbers from previous years that would infuse a large number of additional
visas into this year’s quota; and 3) it would expand the definition
of "immediate relative" to include spouses and minor
children of permanent residents, which, if passed would eliminate
the multiyear
separations that have become common for many families under the
current system. Somewhat in parallel to this, there appears to
be a concerted
effort to block an extension beyond its current expiration date
of November 1 of the E-Verify system, which is a web-based employment
verification system using immigration and Social Security databases
to verify a new hire's employment eligibility.
These initiatives
can be expected to resonate very favorably within
the Hispanic and certain other ethnic communities, and could be
a determining factor in a number of swing states, including Florida.
Stay tuned. This could get interesting.
SOME THOUGHTS ON DEALING
WITH THE BACKLOG WAITS
In my favorite film, Casablanca, (a wonderful
classic and well worth watching), the narrator intones: “They Come To Casablanca ...
And Wait ... And Wait ….” While that is one way to
deal with the current waiting times in our immigration system,
we have
a few other suggestions on how to avoid (or at least mitigate)
the problems caused by these lengthy processing times:
- Employers
of foreign national employees should engage in advanced
planning so as to start their cases for permanent residence relatively
early in the H-1B (or non-immigrant) visa status cycle;
- In developing a case’s strategy, great attention
should be paid to filing the case in as high as possible a preference
classification;
-
Despite the assertion made above, all parties need to be realistic
in their immigration expectations, and despite the benefit from
a nonexistent backlog, not all cases will merit classification
in the
First Employment-Based Preference Classification, which has been
established for foreign nationals possessing extraordinary or (highly)
outstanding abilities;
-
For foreign nationals working in H-1B status, it is very important
for them to make their initial filing for permanent residence prior
to the commencement of their sixth year in H-1B status, so as to
qualify for extension eligibility beyond their normal six-year
term in H-1B status;
- Even if a foreign national changes jobs so as to
require the filing of an entirely new Labor Certification Application,
it may be possible
to reclaim the initial and much more desirable Priority Date (i.e.,
immigration registration date) based upon a previously filed and
approved I-140 Immigrant Visa Petition;
- It is oftentimes critically important to carefully
and exactly calculate time spent abroad since any such periods
of time can
now be recaptured
so as to preserve extended H-1B eligibility.
As a corollary to the
tight squeeze on immigrant visa availability, the H-1B Temporary
Worker numbers have been used up for positions
starting on October 1, 2008. However, in many instances, it may
still be possible to file an H-1B petition in a manner to exempt
the case
from the H-1B quota cap or to take other protective actions. Among
the options to be considered are:
- Arranging for a foreign national’s
employment at a university or a nonprofit, university-affiliated
employer;
- Aarranging for concurrent, part-time employment
with an entity that is exempt from the H-1B quota, such as a university,
a nonprofit
university-affiliated employer, or a nonprofit research organization;
-
Arranging for the foreign national to work at least on a part-time
basis “AT” (even if not for) an entity that has been
exempted from the H-1B quota;
-
Exploring alternative nonimmigrant visa options, such as L-1 Intracompany
Transferee, Alien of Extraordinary Ability, E-3 Australian Professionals,
TN Professional under the NAFTA Accords, etc.
-
Exploring various investor visa options, an alternative that may
become more attractive and possible given the weakening U.S. dollar
and depreciation of certain U.S. assets;
- Iin appropriate instances, filing a National Interest
Waiver along with a concurrent I-485 Adjustment of Status Application,
assuming
availability of an immigrant visa number.
-
For certain short term placement, it may be possible to qualify
the foreign national for a B-1 visa in lieu of an H-1B visa.
STORMY WEATHER
FOR IMMIGRATION REFORM
Now that I have revealed that my favorite
movie is Casablanca, let me recommend to you a favorite song of
mine, Stormy Weather, (written
in 1933 by Harold Arlen, who wrote the music to The Wizard
of Oz),
which seems ironically apropos to the current unsettled situation.
As
mentioned above, the prospects are dim that we will see any major
overhaul of our immigration system, despite the sentiments for
immigration reform expressed by both of the Presidential candidates
(although
Sen. McCain now appears to be backtracking somewhat in light of
the Republican Party’s plank in opposition to any initiative
granting blanket immigration status to this country's undocumented
population).
Given both the shifting sands of political fortunes and the current
economic downturn, which historically has been an inhospitable
environment to consider immigration reform measures (given the heightened
fear
that foreign nationals put downward pressure on both wages and
job opportunities), it is by no means clear that the next Congress
will
pass - or even meaningfully discuss - significant reforms to our
immigration system.
Within this overall uncertainty as to the future
of America's immigration policy, I have three (3) core beliefs
that I would like to share:
- As part of the immigration debate, we
should dispassionately consider the effect of immigration on
our economic growth, social cohesion,
resource utilization, and population growth objectives, and
I am absolutely convinced that on balance, a healthy, sustained
inflow
of new immigrants will be shown to contribute substantially
to the betterment of our nation;
- Comprehensive Immigration Reform, if successful, will need to
address the following four (4) issues:
·
Redesigning the architecture
so as to bring our immigration system more in line with the flow
of people, goods, services, and technologies that characterize
our current globalized world;
· Some
type of earned legalization program for our nation’s undocumented
population;
· An effective,
humane, and technology-driven enforcement system that will not
only involve governmental action,
but will get the buy-in from private business concerns as well
(i.e., some type of effective E-Verify system); and;
· A more
rigorous and effective border security system which, in part,
will utilize the latest technologies and
fraud resistant documentation.
- Ultimately, my basic concern will not be dealing with a multitude
of foreign nationals desiring to come to the United States, but
rather a dearth of immigrant applicants, for when that happens,
it will signify a precipitous decline in the fortunes, character,
and behavior of our nation.
CITIZENS ONLY: GET OUT THE VOTE
Particularly given the
imminence of our elections this coming November, we should point
out that under Section 212(a)(10) of the Immigration
and Nationality Act (INA), an individual becomes ineligible for
immigration benefits if he or she has voted in violation of any federal,
state,
or local legislation. There are, though, some very narrow exceptions
to this rule for 1) foreign nationals who have U.S. citizen parent(s),
2) who resided permanently in the United States prior to attaining
the age of 16 years of age, and 3) if the voter reasonably believed
that he or she was a citizen. But the basic rule is that voting
could render a foreign national ineligible for immigration benefits.
CITIZENSHIP FIRST, VOTING SECOND
U.S. Citizenship and
Immigration Services (USCIS) recently completed its multi-year
redesign of the naturalization test. The revised test,
with an emphasis on the "fundamental concepts of American democracy
and the rights and responsibilities of citizenship," will
be used beginning on October 1, 2008. All three parts of the test
-
English reading, English writing, and civics - have been redesigned.
Detailed instructions and information are available on the USCIS
website.
DON’T LEAVE HOME WITHOUT IT
As our readership
was informed in my newsletter from this past August, the Department
of Homeland Security will unveil in early 2009 a new
online system known as the “Electronic System for Travel Authorization” (ETSA),
which will require preauthorization for foreign travelers visiting
for business or personal reasons under the Visa Waiver Program (VWP).
This new system will become operational on January 12, 2009, and
will affect the estimated 15 million visitors who, over the years,
have been able to travel to this country without the need to get
prior clearance in the form of a visa or other clearance. While the
Government has touted this measure as providing enhanced security
protection and cost savings by eliminating the possibility of the
foreign visitor’s forced return to his/her home country if
problems arise at the point of entry, previous online services
have been riddled with errors and faulty data, which raise a serious
possibility
of undue delays and false-positive security hits. If so, the core
objective of the VWP program, which is to facilitate the travel
of business and personal visitors from low-fraud countries (i.e.,
countries
friendly to the United States), could be significantly thwarted.
HEALTHCARE
REFORM AND CONRAD EXTENSION
Given the high number of International
Medical Graduates who are clients of this office, let me add a
quick update on some physician-related
developments.
Healthcare reform will definitely be a major and perplexing
priority in the next Congress, particularly given the expected
cutbacks in
federal entitlement programs that will invariably result from the
current economic meltdown. There are somewhere around 47 million
uninsured Americans and our safety-net is riddled with holes. So,
while the quality of treatment in this country is unsurpassed,
it is unevenly distributed at a high and possibly unaffordable price-tag
(i.e., 16% of GDP, which translates into three Wall Street bailouts).
I
wish I had a comprehensive solution to designing a humane, equitable,
and effective national healthcare delivery system. But I don’t.
But I do know that the overall healthcare coverage needs of this
country are enhanced by tapping into the pool of foreign physicians
who serve as a highly effective source for providing medically
underserved communities with skilled medical personnel.
The Conrad
State 30 Waiver Program has been the legislative vehicle
enabling at-risk communities and healthcare facilities to access
physicians for hard-to-fill placements. Under this program, each
state can recommend up to 30 waivers/year to physicians who agree
to work for at least three years in placements of significant benefit
to the indigent and medically underserved.
This waiver program expired
this past June, and while generally considered to be popular and
socially useful, its extension fell
subject to a stultifying legislative paralysis on any initiative
connected with immigration.
During this past week, this legislative
impasse was broken, although in a tottering, time-limited manner
when the Congress passed a six-month
extension of the waiver program that increased the flexibility
of each state to recommend J-1 waivers to physicians who are performing
invaluable services to the indigent and medically underserved,
even
if they are not working in designated medically underserved areas.
Whereas previously, each state was limited to 5 waivers/year for
non-designated placements, the figure has now been doubled to 10
waivers annually. We expect academic institutions and other safety-net
providers to benefit from this new initiative. I further anticipate
that following the election, the new Congress will take active
steps to pass a more long-term extension.
ONE FINAL THOUGHT
As a general observation, I love Presidential
politics. For me, amidst all the sloppiness of the democratic system,
the invectives
spewed forth by the candidates, and the expression of high-minded
ideals running into hard-nosed realities, I think that this is
a sacred time of reconnection to our nation’s historical roots,
an opportunity to enhance the social fabric among the oftentimes
fractious segments of this society, and a reaffirmation of our
optimism for the future.
For the readership who are U.S. citizens,
I wish you wisdom in your
choices; for the noncitizen readership, I invite you to contact
us with questions or observations about either the current election
or immigration matters in this period of great change and challenge.
Above all, we hope to remain an active and key participant in the
efforts of our community of clients and friends in negotiating
the
ever-changing, highly challenging, and incredibly rewarding terrain
of the U.S. immigration system.
As always, we would welcome your thoughts and comments on this Newsletter.
Cordially,
ROBERT D. ARONSON
This memorandum is one of a series of communications
prepared as a general public service to our clients and friends.
The information herein presented is not intended nor should it be
utilized as legal advice on any specific situation. Furthermore,
given the rapid pace of change, the veracity of this information
is constantly subject to modification and/or reversal. Rather, this
piece represents a good faith attempt to orient clients and other
interested parties served by Aronson & Associates to current
immigration developments. This piece in no manner supercedes the
need to seek competent legal advice when engaged in activities carrying
possible immigration-related consequences.
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