U.S. v. Arizona
- The court confirmed that immigration is an exclusively Federal area of law, and that States may not enact laws in that area. The court made clear that a state may not enact its own foreign worker registration system.
- A state is also prohibited from creating its own state-based crime for working without proper immigration documents.
- State and local police may not randomly stop persons to ask for immigration papers. However, a state or local officer may ask a person about his or her immigration status if the officer has reasonable suspicion that the person is not lawfully in the U.S., although the court made clear that skin color, race, or country of birth alone are not sufficient factors in and of themselves.
Along with the President’s announcement regarding deferred action for certain young persons, discussed below, the court’s decision turns up the heat on Congress to enact a comprehensive solution to the nation’s immigration problems.
On Friday, June 15, 2012, President Obama announced that certain young persons brought to the U.S. illegally as children may be eligible for deferred action. Deferred action is not a formal status, and does not in and of itself provide a path to lawful permanent residence (green card status). Deferred action is an administrative process through which the government acknowledges that it will not seek to deport a person at this time. It does not prevent the government from deporting the person later. It is a kind of interim measure to allow a person to remain in the U.S. while the government figures out what the next appropriate steps may be. Persons granted deferred action can obtain an EAD (Employment Authorization Document) provided they can show an economic necessity for employment, which is normally easy to do. The President has proposed granting deferred action for a period of two years, in the hope that Congress will enact a permanent solution within that period of time.
Under the President’s directive, an eligible applicant must:
- Have come to the U.S. while under the age of 16;
- Have continuously resided in the U.S. for at least 5 years prior to June 16, 2012, the date of the President’s announcement, and have been physically present in the U.S. on that date;
- Currently be in school, have graduated high school, obtained a GED, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.;
- Have not been convicted of a felony, multiple misdemeanors, a significant misdemeanor (which may include offenses including violence, threats, assault, bribery, larceny, fraud, and driving under the influence of alcohol or drugs), or otherwise pose a threat to national security or public safety;
- Not be above the age of 30.
The Department of Homeland Security will begin accepting applications within 60 days of the June 15 announcement, although procedural details including where to file, which form or forms to use, and whether or not an application fee will apply still need to be determined by the Department agencies.
Also, there is a broad spectrum of opinion as to whether eligible applicants should make themselves known to the government by applying for deferred action or continue to remain in the shadows. One school of thought considers applying for deferred action status to be a dangerous step, as it could possibly lead to deportation later. Another school of thought considers this to be a huge benefit, as applicants can obtain the right to work lawfully in the U.S., and can obtain other benefits including a state issued driver’s license.
USCIS confirmed that the FY 2013 H-1B cap was reached on June 11, 2012. The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals.
Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by USCIS are not affected. Also, there are exceptions to the cap for nonprofit research organizations, institutions of higher education, and certain affiliated entities. Further, some employees who may be affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, it is important to contact an immigration attorney regarding any specific employees you may be considering for H-1B status.
USCIS will begin accepting H-1B petitions for the FY2014 cap on April 1, 2013, which is 6 months prior to the start of the new Federal fiscal year on October 1, 2013. As the required H-1B pre-filing steps can take several weeks to complete, employers who may want to sponsor a foreign worker under the H-1B program should begin that process at least 6-8 weeks prior to when the filing season opens on April 1, 2013.
Employment based green cards, also called immigrant visas, are limited to an annual quota of 140,000. An additional limitation provides that the total number of immigrants from any single foreign state may not exceed 7% of the available immigrant visas in any fiscal year. Applicants are “charged” against the quota for the country where they were born. These rules make the immigrant visa process take significantly longer for persons born in the oversubscribed countries, which include China, India, Mexico and the Philippines. 7% of 140,000 results in only 9800 immigrant visas made available to foreign workers from the oversubscribed countries. These quota backlogs are among the key areas in which the U.S. immigration system has become broken and not usable in a practical way. Due to the exceptionally large number of applicants from India, that country has the most severe backlog. The quota imposed start to finish timeframe is expected to be approximately 15 years for some classifications.
For many years, Senator Charles Grassley of Iowa has stood firm against any improvement in laws that may benefit employment based immigrants. In June, Senator Grassley announced that he was working on an agreement to lift the hold that he placed on H.R. 3012, a bill that would eliminate the per country limitation of 7%, in exchange for more audits of employers who utilize the H-1B program. If this bill becomes law, it would dramatically reduce the projected wait times for Indian nationals, and would also make the process a little faster for nationals of China, Mexico, and the Philippines. However, because there would be no increase in the 140,000 cap place on the number of immigrant visas issued each year, the wait times for nationals of other countries may lengthen by several years. Also, additional checks and audits for employers using the H-1B program would likely be an unwelcome development for most employers who use the program. It is probably the case that H.R. 3012 will not become law in its present form, although the pressures for a comprehensive reform of the U.S. immigration laws is continuing to increase on many levels, including the employment based fronts.