Talk about U.S. Immigration

Immigration in Arizona

Arizona State Legislature recently passed an immigration Bill that empowers local police officers to determine immigration status based upon reasonable suspicion and arrest a person if he couldn’t produce an immigration document, even if legally immigrated but couldn’t show the officer proof of it. For the first time in history, a State Bill makes it a crime to be an undocumented immigrant. The New Bill, if signed into law by Governor Jan Brewer would affect even tourists or temporary visitors to Arizona.

The Bill silently authorizes racial profiling, unconstitutional so far and could lead to police questioning and arrest. U.S. Constitution requires that police have reasonable suspicion of a crime to stop anyone for questioning. Predominantly, a different physical appearance, race, color or accent would raise a suspicion that a person is from another country and might be undocumented. Consequently, police could stop anyone who fits this criteria and demand proof of lawful presence. The Bill winks at the acts squarely opposing the set principles of the U.S. Constitution.

Obviously, Constitutional challenges against the Bill are lying ahead if it became the law. Immigration, historically, had been federally controlled both for legislative and enforcement purposes. Precedent is well set that States aren’t allowed to determine immigration status nor could punish for lack thereof. Historically, the States could only report to the federal government if a local law enforcement officer discovered an immigration violation by someone, only if the person was originally taken into custody for some crime or violation. The person remained in custody until transferred to the Immigration and Customs Enforcement (ICE) which investigated for immigration violation. Lengthy detention by the State detention centers, if ICE didn’t take over, may breed litigation. The present Bill seems to circumscribe all precedents. It is the most draconian legislation in immigration history. Litigation is almost a certainty that would reestablish fundamental principles of the Constitutional Law which I hope are seriously followed by the Legislatures accross the country before attempting to legislate on immigration.

The Bill is a symbol of hate legislation and screams for Comprehensive Immigration Reform by Congress. What a waste of the tax money! Iimmigration is always easy to legislate. No bad immigration Law or Bill would put its sponsors out of their seat in the Legislature because the subjects sought to be regulated have no voting power to change anything at all. It is important to remember that immigrants, legal and illegal, are in the country to work and earn their living. There are others who form part of the family of U.S. citizens. Generally, one would see some favorable legislation for these family based immigrants. What we really need is a federal immigration reform that is remedial in nature in place of punitive State legislations on immigration waiting to be overturned.

The American Immigration Lawyers Association urged that the Governor Jan Brewer veto the unconstitutional bill. Untill then, beware if you have travel plans to Arizona.

Visa to India: new restrictions

Visa regulations in India are changing as government imposes stricter restrictions on foreign travellers. It may be that the Government policy for visa issuance is also changing. Practices acceptable hitherto are prohibited. There are reports of foreign Consulates posting complaints on their websites about this practice. The cause may either be increase in international traffic to the country or perhaps the hightened terror threats but most likely both.

Increase in tourism and also in the business and employment opportunities in the country has lead to increase in foreign nationals travelling to India. The government of India declared that foreign nationals enter with visas that is consistent with the purpose of their stay. In its November 25th press release, the government said that the business visa should be used strictly for business visits i.e. relating to purchase or sale of products or for setting up a business or industrial establishment.

Employment visa should be sought if the purpose is to execute a project. This visa is granted to senior level skilled and qualified professionals. Restrictions apply when large number of qualified local workers are available. It reminds me of the United States’ Labor Certification process requirement where an employer must tap the local labor market before offering a foreign national permanent employment. These measures are nationalistic in nature and are designed to protect loal job market. The measures would be increasingly adopted by countries of the world because as labor becomes mobile and supply of labor/services comes internationally i.e. qualified foreign workers move accross national borders to take up employment there would be greater desire to protect local job market.

The Indian government had earlier directed the foreign nationals with inappripriate visa to exit by October 31, 2009, (extendable in certain circumstances) and return with appropriate visa. The government claimed that foreign nationals accept gainful employment but remain within the country on visitors visa. There ought to be a procedure to apply for change of status from within the coutry. It is yet to be seen how the employment restrictions are applied. In my opinion until talented foreign workers are willing to accept Indian wage levels which are relatively low when compared internationally, the restrictions would stay relaxed.

Visitor visa travellors face two month restriction on return. It is reported that the the foreign nationals used to travel to a contiguous country and return within a few days with a valid visitors visa. Perhaps, the government became aware of this issue only lately. So, now, the new restriction makes a quick return to India on visitors visa impossible. Foreign nationals report that their passports are stamped with the return restriction before they exit. There are numerous reports that the foreign Consulates are expressing their concern over the changes although I doubt that the resentment is over the changes per se. It would be more about the lack of publicity of these changes or about their inconsistent implementation. Also, it is unclear what is the extent of these restrictions as I try to explore the legal authority behind it.

The Chicago Indian Consulate confirmed the tourist visa return restrictions but said that certain exceptions apply including visit for emergent circumstances. Family or business exigencies like a death of a family member or a business need would fall in this category. My enquiry to the Consulate also confirmed that the restrictions do not apply to Card holders who possess Overseas Citizenship to India (OCI) and Persons of Indian Origin (PIO).

No extension for H-1C nurses

The H-1C nurses for Health professional Shortage Areas is about to expire this weekend unless extended. Foreign nurses could temporarily work in the United States under nonimmigrant H-1C status in hospitals designated as health professional shortage areas. 500 such nurses could be hired each year. The provision was created in 1999 and was reauthorized by the Congress in 2006 for another 3 years but is to expire on 12/21/2009.

Consequently, in the absence of further extension, strating 12/21/2009 U.S. citizenship and immigration services can not accept any further petitions for this category. However, those already working in U.S. as H-1C nurses, those entering U.S. in such status with an already approved petition and H-1C applications received earlier and pending with the USCIS remain unaffected by the expiration of the H-1C program.

Adjustment of Status: Validity of Medical Examination

Adjustment of Status applicants have good news. USCIS extends the validity of certain certificates of medical examination accompanying a Green Card applications until its adjudication. The agency would maintain this policy till the end of 2009.

The adjustment of status applicants are required to provide a medical examination certificate on Form I-693 which generally expired in a year. The rule necessitated a new medical examination when the applicantions were considered for adjudication more than a year after filing due to backlogs.

Because of the Visa Bulletin mix up and fee increases, there were record immigration filings in 2007. This seemingly had caused a huge backlog at the USCIS. The piked up cases necessitated that an application be filed annually where authorizations were granted just for a year eg. employment authorization were granted annually. The present extension of the medical certificate validity comes as yet another government policy to ease the problems created by the backlog.

The government policy on extending the medical certificate validity is available only in some cases though. It is available only to where medical certificate did not show a class A or Class B medical condition relating to the adjustment applicant.

Special Immigrant Religious Worker Sunset Provision

A government memo declares that unless Congress extends the program, the provisions of Section 203(b)(4) of the Immigration and Nationality Act, allowing non-minister religious workers to immigrate under the class “professional or religious worker in a religious vocation or occupation”, would expire on October 1, 2008. The memo closely follows the USCIS reminder issued on the September 19, 2008 to the same effect.

The two expiring categories that are the subject of the sunset provision are: the special immigrant workers in professional and non-professional capacities within a religious vocation or occupation. The immigrants under these two classification should adjust or be admitted into United States before October 1, 2008 including their accompanying or following to join spouses and children.

According to USCIS, while immigrant petitions (I-360) and applications (I-485 or I-824) for these category of workers are currently being accepted and processed expeditiously, all the unadjudicated petitions and applications relating to the two categories would be kept in abeyance once the program expires. Any filings made after that date would be rejected unless Congress extends the program.

Just so you know, the special immigrant provision for professional or religious worker in a religious vocation or occupation was enacted in 1990 and was extended from time to time. It is due to expire on October 1st, 2008. A proposed legislation seeking to extend the program is being considered by the Congress. The U.S. House of Representatives approved the extension and the proposal is currently under consideration before the Senate.

Proposed Legislations are welcome

On 4/23/08 Representatives, Zoe Lofgren (D-CA) and James Sensenbrenner (R-WI) introduced a Bill relating to immigration. (H.R. 5882). The Bill seeks to recapture the employment based as well as family based green cards that were authorized by the Congress in the past but were not used because of government processing delays.

On 4/29/08, another bill was introduced by Representative Lofgren (D-CA) that would eliminate the per country level for employment-based immigrants and to end the spill-over of unused immigrant visa numbers between employment-based and family-sponsored categories. (H.R. 5921).

On 4/29/2008, Representative Robert Wexler (D-FL) introduced a Bill that would provide relief for the shortage of nurses in the United States. (H.R. 5924).

In 1990 the Congress set the quota for the employment based green cards at 140,000. These numbers include not only the sponsored foreign workers but also their accompanying immediate family members. Which means U.S. employers could sponsor approximately only 50,000 to 60,000 workers per year. The quota for the family based green cards is set at 226,000 far too few to meet the demand.

The quotas allowed for the employment and family based green cards in any given year, if not exhausted during the fiscal year are wasted, often due to government processing delays. At present, there is no legal provision to carry forward these unused green card numbers.

While several professionals wait five to ten years to get their green cards; the family based green card applicants face decades of waiting preventing family members from reuniting with their relatives in a timely way. H.R. 5882 seeks to recapture the unused green cards for the use of the U.S. employers to hire highly educated foreign workers and to reunite families with their relatives in U.S. and provides the easy and welcome temporary relief from the shortage.

The new form for employment authorization

The employment authorization application (EAD form) or the I-765 as it is popularly known is revised, as announced by the USCIS, on April 24, 2008.

The form I-765 is used by the foreign nationals to request U.S. Government’s approval that the foreign national is eligible to be lawfully employed in U.S. Majority of immigration enforcement involves removal of foreign nationals engaged in unauthorized employment. Therefore, any modification in the process relating to employment authorization becomes very important and proper compliance is expected to maintaining valid immigration status.

The interim regulation, published in the Ferederal Register on April 8, 2008, extended the Optional Practical Training period for certain categories of courses in science, technology, engineering and math (known as STEM) to 29 months and allows the qualified non immigrant students on F1 visa, to extend their OPT work by another year.

The new I-765 form would include the course codes for the designated STEM courses. The previous form may be used until July 8, after this date it would no loger be valid and only the new form, dated, April 8 2008, would be accepted.

Visa Waiver Program extended to more countries

Yesterday, the U.S. government signed an agreement extending the Visa Waiver program to three more countries, Slovakia, Hungary and Lithuania. A few weeks ago, Czech Republic, Estonia and Latvia were included in the VWP countires. Once the necessary requirements are satisfied, the U.S. government expects that the citizens of these countries would be able to undertake visa free travel to U.S. in the coming months.

Visa Waiver Program has been in existence for over 20 years and allows the nationals of 27 European and Asian countries to travel to U.S. without the need for a visa. Only countries with low visa refusal rate may qualify to be included in the program although the Immigration and Nationality Act allows additional countries to be designated as program country if those countries fulfilled the criteria. The U.S. Congress authorized the Department of Homeland Security to reform VWP, strengthen the security measures to be taken by the participating countries and expand the conditions set out for countries that wish to join the program.

A national of the VWP country may enter U.S. as a nonimmigrant visitor for 90 days upon production of a machine readable passport. Basically, a VWP visitor is subject to the same limitations as a B visa visitor would be in U.S. and must leave at the expiration of his authorized period but a short discretionary extension may be available in emergent circumstances.

No new immigration law in Indiana

Last week the Indiana Legislature allowed the porposed Immigration Bill, designed to punish hiring of illegal immigrant workers, to die. Two different versions of the Bill were passed in the Senate and the House and the State Legislature could not agree upon a compromise Bill. The reason: the Legislative leadres have not scheduled a conference committee hearing to work out the differences.

As of now, Indiana has not joined the group of States that passed laws to punish employers with licensing sanctions, for hiring unauthorized workers. However, possibility of such a law coming into effect next year is not ruled out.