Generally, foreign nationals are required to apply for a non immigrant visa at a specific consular post abroad having jurisdiction over the foreign national’s place of residence. This is done to prevent forum shopping at a Consular post i.e. prefer a post that is likely to grant favorable result.

Consequently, forum shopping is now allowed in China.

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.

The U non immigrant visa is available to victims of qualified criminal activities, who have suffered substantial physical or mental abuse and who assist or agree to assist law enforcement or other designated officials in investigation or prosecution of those crimes.

Qualifying criminal activities involve violations of certain federal, state or local criminal laws, including: abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, hostage-taking, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, slave trade, torture, trafficking, witness tampering, unlawful criminal restraint and other related crimes.

Eligibility for U Visa is based upon certification by designated authorities of the assistance provided by the foreign national in the investigation or prosecution. Applicants can obtain lawful temporary resident status and employment authorization while their application is pending adjudication.

The DOL statement is an effort in the right direction. Hopefully it would act as a deterrant against those perpetuatinf abuse. It surely would help crime detection and enforcement of penalties where the foreign nationals possess the necessary evidence but would not disclose the evidence or silently endure the abuse for fear of deportation.

A Memo issued by the USCIS beginning this year has been the underlying cause. The agency Memo requires that h1b petitions show presence of employer and employee relationship and details several factors indicating such relationship. In addition to the traditionally accepted standards such as abilities to pay, hire and fire, it includes exercise of control and suprvision by the employer over the job performed as the necessary indicia of employer and employee relationship.

Factors indicating presence of employer and employee relationships are well established in the subsatntive law and same policies have been followed by USCIS in adjudicating visa petitions. The government memo attempts to borrow these same concepts is a compilation of its poilicies followed so far. However, there has been wide opposition to the memo which is called as untra vires because its issuance did not follow the requisite government procedure detailed in the Administrative Procedure Act. However, even if unltravires, until withdrawn we are required to follow the Memo and its mandate and prove as required, the presence of employer-employee relationship for a successful H1b petition.

Temporary Protected Status (TPS) is a form of relief under the U.S. immigration policy that offers temporary refuge to the nationals of countries suffering from a crisis, until situation improves in the home country. However, TPS is a temporary relief and may be lifted when the country conditions improve. Any stay beyond the authorized period then becomes unlawful. In sum, TPS provides lawful stay for a limited period and also employment authorization.

In the aftermath of the extremely powerful earthquake that measured 7.0, at least a third of nation’s population is reported to have been affected. The U.S. government immediately declared its intention to stop deportation/removal to Haiti until the situation improves. In addition, the recent government notification offered lawful status and employment authorization to Haitians already present in U.S. on the day the disaster occurred in Haiti.

This however, leaves out those Haitians who were in Haiti on 1/12/10, i.e. the real victims of the natural disaster. Increased security along the U.S. coast near Haiti is suggestive of the fact as also the U.S. government advice to Haitians not to leave for U.S. in the hope of getting TPS.

The present TPS does not protect the victims from the disaster. In my opinion, it is nothing more than an attempt not to increase the number of earthquake victims. The government effort is commendable nonetheless in that it stops the return of the unlawfully present Haitians to suffer the aftermath of the natural disaster and, albeit temporarily, also facilitates them by legalizing their presence.

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).

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.

The annual quota of 65,000 H1Bs may be reduced by upto 6,800 which is set aside for the H1B1 visa for nationals of Chile and Singapore and the remaining is then available for the general h1b applications. ince not all the 6,800 numbers of the H1B1 visa is utilized every year, the unused H1B1 from the previous fiscal year are added back to the annual h1b cap number. Additionally, 20,000 H1b applications are approved for advanced degree holders which are considered exempt from the annual cap/quota. Once the required number of advanced degree applications are received these applications would continue to be accepted until the general h1b ceiling limit is reached. As the advanced degree h1b quota is no longer available for fiscal year 2010 all further h1b applications regular as well as advanced degree h1b applications would now be accepted against the general h1b ceiling limit which appears to be fast approaching.

Country’s strict immigration policy could have been a major issue here. One of the Committee members pointed that foreign travellers face a “rather harrowing experience” when they enter into the United States and questioned if the situation would be improved for thousands of foreigners who would enter for the Games. The President’s response to this question as reported by the media left me less than satisfied. He said, “America at its best is open to the world.” Now this may mean that we welcome everyone. But that was exactly the question from the Pakistan member of the Committee and the President failed to address it. As the nation lamented the loss of the opportunity to host Olympics, blames were assigned to whomever possible but let us consider what would become of the Olympics if Chicago was the host under the present immigration policy.

Sportsmen and women would have been denied entry if they couldn’t get through the immigration screening. So would be the organizers and the visitors coming to watch the Games. A point system seems to arbitrarily flag foreign travellers at the border for secondary and subsequent screening. Even people with exceptionally good background and no bad record can be flagged. If we would not let through the participants and others connected with the Games to freely come into the country, are we justified in hosting the world sports event?

Not surprisingly the U.S. Tourism is badly affected. Laws and other efforts to promote tourism in U.S. are underway. It should be noted that the recent bad experience of the indian movie super star, Shah Rukh Khan, who was detained because of his muslim name, was well advertised. The actor was let go after the intervention of the Indian embassy.

Frequent denials of visitor visa, high visa fees in addition to the excessively strict immigration check points at the borders do have side effects. Hopefully we learn something from all this.

Several Federal Circuit Courts have earlier refused to agree with the government interpretation. But the Texas and Missouri courts struck down the rule as a matter of law and dispensed with the need to go to the Board of Immigration Appeals as a preliminary to seek redress before the court.

Spousal status should not be determined by fate and is not lost by the death of one of the marriage partners. The property law as the most common example recognizes the marital rights of the widow(er) attach soon after the marriage is complete unless dissolved before death of one of the parties to the marriage. Now try explaining this to the DHS.

The courts looked at interpretation and guidance from elsewhere in the absence of a clear legal language. However, as illogocal as it may sound, the Department of Homeland Seculrity passes the blame onto the legalese and wants the Congress to amend the rules before it could shift policy stand, acting like a real adverasary here. It should however be appreciated that the Agency does not wish to continue with deportation or removal attempts in these cases for two years. Secretary Napolitano states that is the most the government could do.

Unfairness of the rule is glaring from the fact that it is either being struck down or the government policy not recognized by courts after courts. In a good democracy, neither the Congress nor the government should force the public to go to courts, repeatedly, to seek redress against its own actions. Failure to recognize and redress the injustice to the aggrieved is despicable whether the reason is preoccupation of the Congress or unwillingness of the government to change its policy. Injustice due to illogical outcomes do a great dissrevice to our society. So, it is only ideal that Congress act now to clear its own mess and help those in bereavement. The political impasse over the fate of the unlawful foreign workers is well known. But a short wise step to comfort and treat with respect those who are legally here and grieving is immediately needed.