Comprehensive Immigration Reform’s Proposed Points System

A new element of the immigration reform Senate Bill 744, “The Border Security, Economic Opportunity, and Immigration Modernization Act” is coming into play, namely a proposed merit-based points system, similar to ones found in Canada, the UK, Australia and New Zealand. The points system — an immigration-management tool that will be used to decide who is suitable to enter the US — would allocate new immigrant visas to foreign-born people who meet certain criteria. Each year, the new system would allow between 120,000-250,000 immigrants to obtain immigrant visas through an accumulation of points based on skill, employment history and education. This points-based system is intended to replace the current Diversity Visa Lottery.

The “Desired Immigrant”

This points system shows that the US government does indeed favor a particular type of immigrant, a “desired immigrant”. The system would be more beneficial to certain immigrants over others, like those seeking employment-based immigration. Many immigrants would be at a disadvantage, including women, middle aged and older adults, and those from developing nations. The points system would be divided into characteristics that the US considers beneficial in a visa candidate, such as education, occupation, work experience, English language proficiency and age.

The Two Tiers

PointsFig1PointsFig2

During the fifth fiscal year after the immigration reform bill is passed and the points system is introduced, DHS would assign merit-based visas in two “tiers”, and would give 50% of the visas to applicants with the highest number of points in tier 1, and the other 50% to applicants with the highest number of points in tier 2. Tier 1 is for high-skilled workers and tier 2 is for lower-skilled workers.

The points system favors employment and educational categories over the others; and desires immigrants who are educated, experienced, fluent in English, and young. The system seems to be heavily influenced by economics, placing large value in immigrants’ ability to generate economic worth.

Disadvantaged Immigrants

Moreover, the system is biased against women. Women in other countries frequently have less education and work experience opportunities, allowing the points system to naturally favor men. Though Tier 2 acknowledges women by creating a separate caregiver characteristic, it only grants 10 points, which doesn’t count for much when compared to the employment background characteristic, which totals 40 points.

Family-based immigration is also minimized in the system. Similar to the caregiver characteristic, the siblings or adult sons/daughters of US citizens characteristic only receives 10 points, which, again, doesn’t account for a lot. The system also emphasizes age discrimination and nationality bias, by preferring young immigrants who come from countries with low US migration.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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A Second Look at Comprehensive Immigration Reform

In February, I wrote about why comprehensive immigration reform has a chance to pass this year; now, it’s time to discuss how immigration reform can strengthen the US as a whole.

Immigration reform has heavy bipartisan support, spearheaded by President Obama and Republican Sen. Marco Rubio (FL). Sen. Rubio is a member of the “Gang of Eight”, the four Democrat and four Republican Senators who have introduced new immigration legislation to Congress — Rubio has also assumed the role of spokesperson for the pending bill in the Senate. The House is also sponsoring several other bills on immigration.

There are security and economic reasons for the US to reform its immigration policy, both of which will have a major impact on the US economy.

The Security Side and the Impact on Employers

Immigration reform is not going to happen without enhanced border security and metrics to measure the levels of security reached. Another measure of security to guarantee a legal workforce is to make both E-verify and Form I-9 compliance mandatory for all employers.  Senate has already earmarked $110 million dollars to these programs — employers should see new compliance regulations soon after a new immigration bill has passed.

In addition, electronic checking of departures by CBP will ensure that non-immigrants depart on the date their authorized stay expires, according to their Form I-94 record. Departures are currently recorded with a paper I-94, which is surrendered upon exiting the US. The new electronic I-94 will record departures from passenger manifests issued by airlines. Entries are currently recorded, but exits from the US are not recorded uniformly at all ports. In addition, the new bill will mandate that all passports be electronically read, which would reduce human error.

It is a misconception that highly skilled visa holders somehow depress US wages. On the contrary, where certain technical skills are in short supply, employers pay top dollar wages for visa holders and high fees to the federal government, as well as jump through legal hurdles to employ these workers. The cost of employing a foreign worker is more expensive than a domestic worker.

The Economic Side

Granting legal status to more immigrants will relieve our labor shortages in both high-skill and low-skill arenas. The educational background of native-born Americans typically includes high school and college education — few are without high school diplomas, and hardly any have Ph.D.s in science, technology, engineering or mathematics (STEM). The educational background of immigrants, on the other hand, is quite different: while many lack high school education, others hold Ph.D.s in STEM fields.

Most of the debate on immigration reform has focused on giving legal status to undocumented immigrants, upon the condition that they pay fees and back taxes. This will certainly have positive effects on our economy; however, we have more to gain from immigrants, both young and old, who, after gaining legal status, decide to further their careers in the US. Once these immigrants feel reassured about their future in the US, they will be more willing to invest in their careers.

One of our current problems is that many skill workers have trouble gaining a foothold onto the path to citizenship. Foreign entrepreneurs and technologists who study in the US are often denied works visas and return to their home country to find success. This issue is both stunting economic growth and causing a brain drain in America.

The number of available temporary visas is rarely revised and is still dependent upon caps and quotas. Our economic conditions have not been taken into consideration. Increasing visas both for high skilled workers, and lower skilled entrants in agriculture and forestry, could have a positive effect on wages and reduce the number of illegal entrants and overstays.

Immigrants also bolster our productivity growth. According to the Wall Street Journal, foreign scientists and engineers, who came to the US with an H1B visa, contributed 10-20% of the yearly productivity growth in the US from 1990-2010. Attracting innovators to our country will undoubtedly create more jobs, as more innovation means more labs, universities and companies doing research. Yet, the US’s H1B visa program only creates 65,000 visas per year for highly skilled workers. That amount has proved to be insufficient, as H1B visas quotas fill very quickly as in the last cap.

There are clear economic and security needs for streamlined and comprehensive immigration reform, and lawmakers and politicians must take action. Congress is set to vote on immigration reform before the July 4 congressional recess.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Deferred Status for Dreamers

In the last few months, there has been many reports on Obama’s new Deferred Action for Childhood Arrivals (DACA) Memorandum, a form of prosecutorial discretion. The memorandum states that children who entered before June 15 2012, and before they turn 15 years old, could be granted authority to work and lawful status for a period of two years. There are a lot of misunderstandings about the benefits offered, and not enough understanding about the dangers and caveats of filing this application.

Radio Stations Report Incorrect Facts about Deferred Status
Even reputable radio stations get the facts wrong. KMOX and NPR both erroneously reported the incorrect age of eligibility. The eligibility starts at age 15 and ends at age 31, not 30 as these stations reported.

No Path to Citizenship
Deferred action does not confer any lawful immigration status, such as the status enjoyed while waiting for an adjustment of status. Deferred action also does not change the current immigration status, such as a grant of a visa, or lead to US citizenship.

What deferred status provides is a period of authorized stay. In other words, the person in deferred status is allowed to stay in the US with the permission of the government. Any unlawful status before deferred action is granted, or after deferred action status ends, will still be unlawful (source). Immigration can review and/or withdraw the deferred action status at any time.

Presence in the US
In order to apply, individuals must be between the ages of 15 to 31 as of June 15, 2012. They must also have lived in the US continuously from June 15th 2007 to the present, and should have been physically present in the US on June 15th, 2012. Presence in the US is also required when filing an application.

Inspection at the border is not required; individuals could have ‘snuck’ over the border or have overstayed their visa.

Proving Presence in the US
It is fine to have left for a few days to Mexico or the Caribbean; this will not interrupt continuous physical presence. Documentation of stay could include medical and school records, or utility bills and tax filings. The evidence is weighed by USCIS using a ‘totality of circumstances’ standard to prove circumstantially that there is the required presence in the US. In addition, presence could be proved by evidence of stay in the US before and after June 15th, 2012.

Stay in school! Be “all that you can be.”
Applicants must be enrolled in elementary, secondary, high school or college to be eligible. A GED from a reputable school is fine, and a college education is great. An honorable discharge from the Coast Guards or Armed Forces is fine too. Anecdotally, there are only a few who will benefit from service in the armed forces. Only US citizens and permanent residents can enroll with a few exceptions from ‘those vital to the national interest’, and even then most would be eligible for naturalization and would not need deferred status.

Beware of Crimes
Applicants with significant criminal history need not apply. Those who are subject to removal orders from an immigration judge should apply for prosecutorial discretion. ICE may administratively close cases for individuals who are eligible for deferred action.
But if an individual has remained in the US after a grant of voluntary departure from a judge, then that person is subject to other immigration penalties, such as fines and bars to filing an immigration application for 10 years.

Being a Member of a Gang
Many law enforcement agencies maintain a ‘gang book’ of tattoos and the meaning of gang symbols. If an applicant has a gang tattoo or has been profiled in a ‘gang book,’ then that may be a problem, especially if the applicant is interviewed and the tattoos are revealed.

Traffic Offenses
Generally, traffic offenses are not considered fatal to an application. However, those with outstanding traffic tickets; unpaid parking tickets; accidents and arrest warrants for traffic violations; and accumulation points on a drivers’ license close to suspension of the license, need to exercise caution.

DWIs and Domestic Violence
Increasingly domestic violence and driving under the influence are being targeted as bars to immigration benefits. DWI convictions are already a bar to returning on a non-immigrant visa to the US. DWIs are a bar to applying, regardless of the sentence imposed.

Using a False Social Security Number
Using a false social security number is a federal crime with applicable jail time and fines. The applicant risks USCIS reporting the false document use to ICE, which could end in removal and federal prosecution. Chances are that false claims of US citizenship status have been made on I-9 forms, and taxes have been filed using the same social security number. In addition to all the federal crimes, there could also be immigration law violations due to the possible allegations of identity theft. Filing an application under these circumstances is very risky.

Entering Using False Documents
While a minor may not have a say on if the parents entered using false documents, USCIS can still share that information with ICE, and those facts could pose a problem for the parents and others who entered using false documents. All applicants are fingerprinted and photographed. There will be a background check on all applicants, and USCIS can share information about false documents and criminal history with ICE.

Arizona Decided Not to Issue Drivers’ Licenses
Gov. Brewer recently signed an executive order not to issue drivers licenses to conferees of deferred status on the basis that they were in unlawful status. Perhaps she did not read the relevant statutes. This statute is also called the Real ID Act.

Improved Security for Drivers’ Licenses and Personal Identification Cards

Pub.L. 109-13, Div. B, Title II, §§ 201 to 207, May 11, 2005, 119 Stat. 311, provided that:
“(2) Special requirements.–
“(A) In general.–To meet the requirements of this section [this note], a State shall comply with the minimum standards of this paragraph.
“(B) Evidence of lawful status.–A State shall require, before issuing a driver’s license or identification card to a person, valid documentary evidence that the person–
“(i) is a citizen or national of the United States;
“(ii) is an alien lawfully admitted for permanent or temporary residence in the United States;
“(iii) has conditional permanent resident status in the United States;
“(iv) has an approved application for asylum in the United States or has entered into the United States in refugee status;
“(v) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States;
“(vi) has a pending application for asylum in the United States;
“(vii) has a pending or approved application for temporary protected status in the United States;
(viii) has approved deferred action status; or
“(ix) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.

The Final Word
Deferred status could be used to keep a person in status while they are waiting for a priority date, in the family context. This status could stall unlawful status for a person shy of their 18th birthday. There is also a lot of discussion about filing for advanced parole after obtaining deferred status to exit and re-enter the US, and then, without filing a waiver, to file for immigrant status based on a relative.

The deferred status application is seemingly simple, but could be extremely complicated and lethal for the applicant and family members (see Arrabally, Yerrabelly). Those matters should be discussed with an immigration attorney before applying. Contact Nalini Mahadevan or Diane Metzger at Lowenbaum Partnership, LLC.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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How Family Law Affects Non Citizens

We have two kinds of people in the United States: US citizens and non citizens. Non citizens can be classified as persons who can stay here permanently, also called permanent residents or immigrants. We call those who have a non immigrant visa – these people may be able to work and some cannot; and those who have overstayed their visa or have entered without US Government visa, illegal aliens. This article discusses the effects of family law action on the immigration status of persons with lawful immigration presence.

Questions from family law practitioners are often about how an action in family court will affect their client’s immigration status. The first step is to recognize the documents and to ask for immigration documents from clients. In our office, we regularly ask for evidence of immigration status in the United States, regardless of accent, education, race or other appearance characteristics. We have clients from Canada who, for all intents and purposes, act like US citizens and those who are US citizens who have accents. So as a matter of procedure, immigration status is a routine question to ask.

Divorce and Annulment
Permanent residents, who are also called ‘green card’ holders in popular parlance, are generally not affected by family court actions like divorce, unless they are a conditional permanent resident. A conditional permanent resident has been married less than two years when they received their ‘green card’ with conditions, which have to be removed within 2 years. A conditional resident can apply for removal of conditions either jointly (which is an easier application) or after they obtain a divorce. Conditional permanent residents are not eligible for a permanent green card valid for 10 years, until they have removed conditions. Conditions can be removed either while being married or after divorce, but not during the pendency of a divorce action[1]. An annulment action negates the marriage, which is the basis of the application for the spousal ‘green card’. So such an action is not recommended for a spouse who is on conditional residency or whose application to USCIS has been based on marriage to a permanent resident or US citizen.

Affidavits of Support
In a divorce action, maintenance and spousal support may be an issue. In family spousal application, an affidavit of support is filed as part of the application package with USCIS[2]. The affidavit of support is filed for the foreign spouse on Form I-864. The sponsor promises to maintain the foreign spouse so that he or she does not become a public charge. There are certain conditions to be fulfilled before this obligation is discharged.  The case discusses the sponsor’s obligations and discharge of duty under the law. In Cheshire v. Cheshire[3], a case in Florida, it was held that pursuant to the INA[4] and the terms of Form I-864, a sponsor’s support obligations to the sponsored immigrant under an affidavit of support terminate only upon the occurrence of one of five circumstances: 1) the sponsor’s death, 2) the sponsored immigrant’s death, 3) the sponsored immigrant becoming a U.S. citizen, 4) the sponsored immigrant permanently departing the U.S., or 5) the sponsored immigrant being credited with a total of 40 qualifying quarters of work, 8 U.S.C. § 1183a(a)(2), (3); 8 C.F.R. § 213a.2(e). The majority of sponsored immigrants will have to work ten years to meet the 40 quarters requirement, as a maximum of four quarters can be earned in a year. However, sponsored immigrants can be credited with quarters earned by the immigrant’s spouse during the marriage, but only if the alien remains married to that spouse. The sponsor’s financial obligations under the affidavit of support terminate only upon the occurrence of one of the five circumstances above; hence divorce does not invalidate the contract created by the affidavit of support. As such, a spouse sponsoring an immigrant spouse can be liable under the affidavit of support even after divorce. The instructions accompanying the affidavit of support, Form I-864, provide that “divorce does not terminate the obligation” of a sponsor to support the sponsored immigrant. Federal courts have found that divorce between a sponsored immigrant and a sponsor does not necessarily negate a sponsor’s financial liability under an affidavit of support[5]. The parties in Cheshire were divorced but that does not alleviate the sponsor’s obligation to support the foreign spouse according to Section 1183(a) and the terms of Form I-864. Family law practitioners could enforce a valid affidavit of support following the guidelines of sponsor’s financial obligations.

Enforcing Child Support
Personal Responsibility and Work Opportunity Act, 1996, Section 652(k) sometimes requires a denial of passport renewal for failure to pay child support. Under this law, there is a possibility of a denial or revocation of passports for individuals who fail to pay child support. Through this law, Congress sought to eliminate entitlements, or cash welfare, to individuals who were dispersed as part of the Social Security Act. Using Temporary Assistance to Needy Families or TANF, Congress attempted improve child support collection rates with the hope that single parent families would move off welfare rolls and remain self-sufficient. The idea was that “States should diligently continue their efforts to enforce child support payments by the non-custodial parent to the custodial parent, regardless of the employment status or location of the non-custodial parent”[6]. To achieve these purposes, the law was designed to encourage states to have similar child support laws, to share information through the Federal government, and to handle interstate child support cases quickly. One of the enforcement measures included a denial by the US Department of State of Passports for nonpayment of child support[7]. Under Section 51.70 (a) (8) of Title 22 of the Code of Federal Regulations, if you are certified to Passport Services by the U.S. Department of Health and Human Services (HHS) to be in arrears of child support payments in excess of $2,500, you are ineligible to receive a U.S. passport. As a practice pointer, may I say that in my experience it is easier to obtain a settlement for your client if the child enforcement department of the state is owed money. In other words, the custodial parent receives public assistance from the state. The state has an interest in collecting and arriving at a settlement; there are no emotions that cloud the issue as in the case of a custodial parent.  Information on child support can be obtained from the appropriate State child support enforcement agency.


[1] USCIS Acting Associate DirectorYates Memo dated April 10, 2003,
[2] United States Citizenship and Immigration Service.
[3] Cheshire v. Cheshire, 895 So. 2d 408 – Fla: Dist. Court of Appeals, 1st Dist. 2005
[4] Immigration and Nationality Act, 1952
[5] Schwartz, 2005 WL 1242171, (finding that “a sponsor and a sponsored immigrant’s divorce does not automatically terminate the sponsor’s obligations under the affidavit of support,” in case where plaintiff, permanent resident alien of the U.S. and defendant’s ex-wife, brought suit against ex-husband sponsor seeking to enforce affidavit of support);Stump, 2005 WL 1290658, (holding former husband, sponsor, liable to former wife, sponsored immigrant, for financial support under terms of affidavit of support where parties’ divorce was pending);Ainsworth, 2004 U.S. Dist. LEXIS 2896, (noting that divorce did not end enforceability of affidavit of support contract).
[6] Reconciliation Committee. “H. Report 104-725”. Retrieved 2011-01-09.
[7] Section III (Child Support), Subtitle G (Enforcement of Child Support) contained 14 enforcement measures to improve the collection of child support, including Denial of Passports for Nonpayment of Child Support in Section 370. Under Section 370, 42 U.S.C. § 652(k)(2) was amended so that the “Secretary of State shall, upon certification by the Secretary transmitted under paragraph (1), refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport issued previously to such individual.”

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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