Articles Posted in Immigration Reform

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WhiteHouseSouthFacade.JPGPresident Obama announced a wide range of executive actions (EAs) on immigration in late November, including an expansion of the Deferred Action for Childhood Arrivals (DACA) program, deferrals for family members of citizens and lawful permanent residents (LPRs), and potential eligibility for certain public benefits. The EAs do not substantively alter federal immigration law by, for example, creating new immigrant categories or giving undocumented immigrants a new means of obtaining lawful status, but they do grant millions of people a reprieve from the threat of deportation and the opportunity to work.

The President announced the EAs on November 20, 2014, after a long period of inaction by Congress. The U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, in a bipartisan vote on June 27, 2013. The bill would create new opportunities for lawful immigration status while enhancing immigration and border enforcement. It would crack down on abuses in the H-1B visa system and provide additional visas for students in science, technology, engineering, and mathematics (STEM) fields at U.S. colleges and universities. The bill never has even been introduced in the House of Representatives.

The EAs will expand eligibility for DACA, the program that allows undocumented immigrants who entered the U.S. as children and meet other criteria, about 90 days after the announcement date. The upper age limit, currently set at people born on or after June 15, 1981, will be removed, and the continuous presence requirement will be moved up from June 15, 2007 to January 1, 2010. The program still will not be available to anyone who entered the U.S. after that date.
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USGS_Rikers_Island.pngWhile programs like Deferred Action for Childhood Arrivals (DACA) offer hope and opportunity for many otherwise undocumented immigrants, the federal government continues to pursue an aggressive deportation program. The Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) deported 438,421 people in fiscal year 2013. That number reportedly represents an increase of over 20,000 from fiscal year 2012, which showed an increase of over 51,000 over fiscal year 2011. Since taking office in 2009, the Obama administration has deported more than two million people. DHS often relies on the cooperation of local governments, which it expects to abide by “detainers” issued for individuals held in custody by state and local law enforcement. Many local governments, however, are refusing to honor immigration detainers and are enacting legislation to this effect. The New York City Council passed two laws in October 2014 that place further restrictions on the city’s already limited cooperation with federal immigration officials.

DHS officials, which include ICE and CBP, are authorized by federal regulations to issue detainers to other law enforcement agencies. 8 C.F.R. § 287.7. A detainer notifies the other law enforcement agency that the federal government intends to take custody of an individual in that agency’s custody for the purpose of deportation. This frequently takes place before any adjudication of the person’s deportability or inadmissibility has occurred. Officially, a detainer asks the local agency to notify DHS before releasing the individual. In practice, it often means that the local agency is expected to continue to hold the person, even beyond the time he or she is otherwise entitled to release, until DHS can take the individual into custody. The federal government expressly disclaims any financial responsibility for the cost to local agencies of holding a person solely for a detainer. Id. at § 287.7(e).

New York City has passed several laws in recent years limiting the city’s cooperation with immigration detainers. In 2011, it enacted a law preventing police from holding a person in custody beyond the point when, in the absence of a detainer, he or she should be released. Police should only notify DHS of the person’s release in certain limited circumstances. Another law passed in 2013 bars the NYPD from turning certain individuals who are subject to a detainer over to DHS, such as those who are only charged with low-level offenses.
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Ambulance_NYC.jpgThe question of public benefits for immigrants is both complicated and controversial. State laws may be considerably different from federal law, even with regard to federal programs like Medicaid. A recent decision by the Ninth Circuit Court of Appeals, Korab v. Fink, No. 11-15132, slip op. (9th Cir., Apr. 1, 2014), addressed a Hawaii statute and affirmed that states have rather wide latitude under federal law to limit certain immigrants’ access to Medicaid coverage, or to exclude them entirely. New Jersey generally follows the federal system, while the state of New York offers wider Medicaid access to many immigrants.

The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, often known as the Welfare Reform Act, made substantial changes to non-citizens’ ability to apply for and receive public assistance. See 8 U.S.C. § 1601 et seq. “Qualified aliens,” defined to include permanent residents, asylees, certain parolees, and others, could still receive benefits, id. at § 1641(b), but others were barred. Exceptions are allowed for emergency medical care and services directly related to pregnancy. States could provide benefits at their own expense to non-qualified aliens, provided their legislatures passed new laws specifically authorizing such benefits. Id. at § 1621(d).

Some states passed legislation allowing non-qualified aliens access to benefits like Medicaid, even though those programs would not be eligible for federal reimbursement. Hawaii included many non-qualified aliens in its state health insurance plan until 2010. The state revised its plan to no longer include “COFA residents,” people who are nationals of the Republic of the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau who reside in the U.S. under a Compact of Free Association (COFA). The COFA, codified at 48 U.S.C. § 1901, allows COFA residents to visit the U.S. without a visa and establish residence here, but they are not “qualified aliens” under PRWORA.
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CBP_UH-60_street.jpgThe federal government introduced the “Secure Communities” (S-Comm) program in 2008 as a means of focusing immigration enforcement on individuals deemed a priority for deportation. The program began in a small number of local jurisdictions and has since expanded to cover most of the country. Federal immigration authorities have long used “immigration detainers,” requests to local law enforcement to continue to hold a detainee beyond the point when he or she would normally be released, as part of their enforcement procedures. This procedure became more official under S-Comm, with holds of at least 48 hours, not counting weekends. Several court rulings have held that these detainers are not binding on local law enforcement, and multiple cities have enacted laws limiting cooperation with the program. Local law enforcement in many areas has been slow, however, to respond to the backlash against S-Comm, if they respond at all.

U.S. Immigration and Customs Enforcement (ICE) describes these high-priority categories as “criminal aliens, those who pose a threat to public safety, and repeat immigration violations.” These designations are made in the sole discretion of ICE, and detainers under S-Comm are not subject to challenge by a detainee. The Third Circuit Court of Appeals ruled in Galarza v. Szalczyk, 745 F.3d 634 (3rd Cir. 2014), that mandatory immigration detainers violate the Tenth Amendment’s prohibition on commandeering state or local law enforcement. A federal judge in Oregon ruled that a county violated a woman’s Fourth Amendment rights by holding her pursuant to an immigration detainer after she was eligible for release on bail. Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317, opinion (D. Ore., Apr. 11, 2014).

Numerous U.S. cities have enacted laws or policies limiting cooperation with ICE regarding immigration detainers. The New York City Council enacted Local Law 62 in November 2011, which added a new section to the city’s Administrative Code stating that police should not detain a person beyond the time that he or she would otherwise be released, nor should they notify ICE of the person’s release, except under specified circumstances. See N.Y.C. Admin. Code § 9-131. The law listed numerous exceptions, including conviction of any felony or misdemeanor, pending criminal charges, outstanding warrants, and gang membership.
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Dreamers_AZ_Sit-in_5-17-10.jpgIn June 2012, the White House and the Department of Homeland Security (DHS) implemented the Deferred Action for Childhood Arrivals (DACA) program, which allows qualifying undocumented immigrants to avoid deportation and obtain work authorization for at least two years. DHS announced that it would begin accepting applications to renew DACA status in June 2014, since the earliest approved DACA cases were nearing expiration. The program has benefited hundreds of thousands of young people known as DREAMers, after the DREAM Act that would have made the provisions of DACA into law has failed to pass in Congress. Critics of DACA include most Republicans in Congress, who recently voted to end the DACA program entirely. The bill has little chance of passing in the Senate, however, and President Obama would be unlikely to sign such a bill.

DACA was created by an executive order issued by the President. It is essentially a means of setting priorities for the enforcement of immigration laws, a process known as “prosecutorial discretion.” The focus is on undocumented immigrants with criminal records and those who pose a threat to national security, instead of those who came to the U.S. as children and have contributed positively to society. Contrary to what many critics of the program claim, DACA does not modify DREAMers’ immigration status. They remain officially undocumented, but DACA approval means that DHS agrees not to pursue removal action against them as long as they maintain that approval.

As of June 15, 2012, individuals who may qualify for DACA were under the age of 31, had no lawful immigration status, and were physically present in the U.S. They must have arrived in the U.S. before their sixteenth birthdays and have resided in the U.S. continuously since June 15, 2007. They must not have any felony or serious misdemeanor convictions, fewer than three minor misdemeanor convictions, and no concerns regarding national security. Finally, they must be enrolled in school and have a high school diploma or GED, or an honorable discharge from the United States Armed Forces.
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NYS-Notary-Seal.jpgImmigration law in the United States can be complicated and confusing for anyone, especially someone who might not speak English as their first language. In today’s environment of possible immigration reform, unscrupulous individuals are holding themselves out as immigration-service providers, offering assistance with visa petitions and green card applications. People who pay them for their services, however, rarely if ever see any benefit. Government agencies, from the Federal Trade Commission (FTC) to city officials, are pursuing and prosecuting alleged immigration-services scammers, and seeking to educate the public about their rights.

In order to provide immigration services to the public, a person must be a licensed attorney or have accreditation from the Board of Immigration Appeals (BIA). U.S. Citizenship and Immigration Services (USCIS) offers an overview of common scams targeting immigrants. Some scammers pose as USCIS officials on the telephone in order to obtain personal information for identity theft, or to demand payment to fix non-existent immigration problems. Similar scams may use email or social media instead of the telephone. Local businesses and websites may purport to offer assistance with immigration petitions and applications, despite having no legal authority to do so.

A common scam that targets immigrants from Latin American countries involves the use of the title Notario Público. In the Spanish-speaking world, a notary public performs many of the same functions as an attorney, possibly including immigration assistance. A notary public in the U.S., however, is not authorized to provide legal services (unless they are also an attorney). The FTC obtained a judgment against a Baltimore company that targeted Spanish-speaking individuals from El Salvador and Honduras and charged them a fee for immigration services that were rarely fulfilled. FTC v. Loma Int’l Business Group, No. 1:11-cv-01483, mem. order (D. Md., Mar. 24, 2014).
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Thomas_Stothard_-_Oberon_and_Titania_from_-A_Midsummer_Night's_Dream,-_Act_IV,_Scene_i_-_Google_Art_Project.jpgNew Jersey Governor Chris Christie held a ceremonial public signing of S2479, informally known as the New Jersey Dream Act on January 7, 2014. He had officially signed the bill into law in December. The law, also known as the Tuition Equality Act, allows qualifying undocumented immigrants to pay in-state tuition at New Jersey’s public colleges and universities. It is based on provisions of the federal Development, Relief and Education for Alien Minors (DREAM) Act, which has been introduced in the U.S. Congress several times but has not passed both houses yet. At least sixteen states, including New Jersey, have passed legislation similar to the DREAM Act. The Obama administration’s Deferred Action for Childhood Arrivals (DACA) program also offers some of the benefits contained in the federal DREAM Act.

The DREAM Act was first introduced in Congress in 2001. It would offer benefits to undocumented immigrants who came to the U.S. as children, have no criminal history, and who have completed some higher education or served in the U.S. military. More than 2 million people college-age people in the U.S., known as “dreamers,” reportedly meet these criteria. The DREAM Act would apply nationwide and offer qualifying individuals relief from deportation, educational benefits, and work authorization.

State governments do not have the legal authority to confer immigration benefits, so the provisions of the DREAM Act pertaining to deportation and work authorization must remain in the hands of Congress and the White House. Federal immigration law allows states to enact laws making certain state or local public benefits available to undocumented immigrants. The New Jersey Dream Act therefore only applies to tuition rates for dreamers who reside in the state.
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file000581923017.jpgThe H-2 nonimmigrant visa program allows employers to bring in unskilled workers for temporary jobs. H-2B visas are available for non-agricultural jobs. The program has been the target of criticism from immigrant advocacy groups, which charge that guest workers may be subject to exploitation and abuse at the hands of their employers, and that the law does not provide adequate oversight to protect workers. From the employers’ perspective, the regulations governing the program are in disarray, with no clear guidance on how the government determines wage levels and other factors affecting guest workers.

Employers may petition for H-2B visas for workers needed for temporary jobs. This may include a need to fill a position temporarily due to a one-time occurrence, or a job that is seasonal or otherwise recurring. In order to petition successfully for an H-2 worker, an employer must obtain a certification from the U.S. Department of Labor (DOL) by showing that no qualified U.S. workers are willing or able to fill the position, and that the immigrant worker will not drive down wages for comparable jobs held by authorized U.S. workers. This latter requirement generally depends on the “prevailing wage” for the job, as determined by the DOL.

The American Civil Liberties Union (ACLU) has raised concerns about the treatment of some H-2B guest workers. Recruiters, who are not subject to U.S. law, allegedly make unfounded and lavish promises to prospective guest workers, and then charge high fees to match the workers with U.S. employers. The workers may find that the actual employment does not match the recruiters’ description, but that they cannot leave the job because of the debt incurred to get to the U.S. and the fear of deportation if the employer withdraws its support. According to the Southern Poverty Law Center, the legal protections extended to H-2A visa holders, such as reimbursement of travel costs and wage regulations, are not available to workers with H-2B visas.
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169849_3851.jpgImmigration reform has been a contentious topic all over the country for months, and proposed reform bills continue to make their way through the legislative process in Washington DC. The U.S. Senate passed a bill in June 2013, which now awaits the House of Representatives. Closer to home, a recent study showed that the immigration reform provisions expanding work eligibility could increase New Jersey’s tax revenue by tens of millions of dollars. New Jersey would benefit more than most states from an expanded tax base. The state already receives hundreds of millions of dollars in taxes, mostly sales and excise taxes, from undocumented immigrants living here.

The U.S. Senate passed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, on June 27, 2013. The bill resulted from the work of a bipartisan group of senators, known as the “Gang of Eight,” which included New York Senator Charles Schumer and New Jersey Senator Robert Menendez. It includes provisions for border security, employer compliance with work authorization laws, and new and modified nonimmigrant visa categories. It also includes the Registered Provisional Immigrant (RPI) Program, part of what has been called a “path to citizenship” for undocumented immigrants currently living in the U.S. Work authorization would be included in RPI and other immigrant and nonimmigrant categories.
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Rutgers_Newark_campus_003.jpgImmigration reform has been a contentious issue at the federal level for some time. Some state legislatures are also considering measures that would assist immigrants living in the U.S. and those who want to move here. One group of immigrants that has been the subject of much controversy, and whose members have often been very vocal in their advocacy of their rights, is the DREAMers. Named for a bill that has failed to pass in Congress several times, DREAMers are children and young adults who are undocumented immigrants, and who arrived in the U.S. with parents or others while they were children. While the White House has instituted a system to allow them temporary relief from deportation, the future of this group remains uncertain. A bill pending in the New Jersey Legislature would give DREAMers relief by allowing them to pay in-state tuition at public colleges and universities in the state.

The Development, Relief, and Education for Alien Minors (DREAM) Act was first introduced in Congress in 2001. DREAMers are generally defined as undocumented immigrants who arrived in the U.S. before the age of 16, and who have resided in the U.S. continuously for at least five years. Individuals who have graduated high school or obtained a GED, or who have served honorably in the U.S. military, would be able to apply for conditional permanent residence. A version of the DREAM Act passed the House of Representatives in 2010, but failed in the Senate. Many DREAMers have lived in the U.S. for as long as they can remember, and have few or no memories or ties to their “home” countries. The DREAM Act is therefore seen by many as a matter of basic fairness.
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