June 26th, 2012 by W. Scott Railton
Today the U.S. Supreme Court published its landmark decision in the case of Arizona v. United States. A few thoughts:
Arizona v. U.S. is a case where the United States sought to stop an Arizona state law from being put into effect, based on the contention that the law was preempted by existing federal laws. The Supreme Court agreed with the U.S. on three out of four counts, but allowed on the fourth count that Arizona law enforcement officers could ask persons for their immigration papers (aka “show me your papers”) if they have a reasonable suspicion that the person is out of status. This latter allowance will almost certainly lead to racial profiling in the near term, and the Supreme Court left the door open for future challenges of the law for just that reason.
Now, in the past two weeks, we have the Supreme Court basically striking a state effort to legislate concerning immigration concerns, as well as a historic move by President Obama and the Department of Homeland Security to institutionalize the use of prosecutorial discretion in the case of qualifying youth who for have made the U.S. their home, despite their original entry without authorization.
Arizona v. U.S. and the deferred action decision have rightfully made headlines. Considered together, both underscore the failure of Congress to act on immigration in the past ten years. Comprehensive immigration reform means different things to different people, but Congress needs to take on these tough issues. The Arizona decision clearly says that immigration is a federal concern. The decision also sympathizes with the people of Arizona, acknowledging concerns. It is time for the gridlock and partisanship on immigration issues to end in Congress.
And it might. Nothing seems to motivate politicians more than political survival, and immigration reform is increasingly where many of the votes are.
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June 6th, 2012 by W. Scott Railton
I am honored to post here that I was recently elected to serve as Washington State Chapter Chair for the American Immigration Lawyers Association.
The American Immigration Lawyers Association (AILA) is a professional organization for attorneys who practice immigration law. Nationally, the organization has over 11,000 members. The Washington State Chapter currently has approximately 370 members. Though called the Washington Chapter, our membership includes attorneys from Alaska, Montana, Oregon, Idaho, and British Columbia. I have always been a member of the Association, since commencing immigration law practice, and can’t imagine practicing immigration law without the support of AILA. Greg Boos and David Andersson are two of the longest standing members of our Chapter.
Our Washington State AILA Chapter provides many services to lawyers and the community at large. The practice of immigration law requires constant education, to keep up with the changes in the law and its administration. On a monthly basis, we schedule professional education events, as well as a two day seminar once per year. The Chapter also holds pro bono Citizenship Day clinics a few times per year, with attorney volunteers working at sites all over the state. These clinics have helped hundreds naturalize over the past few years. Our Chapter holds regular liaison meetings with agencies involved in immigration matters, such as U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection.
We also have committees dedicated to advancing the ethical practice of immigration law, monitoring state government activities related to immigration in Olympia, and providing attorneys with law practice management support. The Chapter is a respected voice on matters pertaining to immigration law reform, as we schedule regular meetings with congressional staffers, periodically meet with editorial boards, and annually send a delegation to Washington D.C. to meet with members of Congress. I can go on–we are a very active professional association.
As Chair, I will have to draw from my past experiences of volunteering on many of these committees, so that the Washington State Chapter can continue to operate as one of the best in the country. Last year, our Chapter received the highest possible recognition from the national association.
I appreciate the confidence of my colleagues in electing me Chair. I am sure it will be a challenging and rewarding year. I am also thankful to everyone here at the firm for the support in this endeavor. The success of the Washington State AILA Chapter is based on the work of dozens of giving attorneys. I’m fortunate professionally and personally to work with such a terrific group.
May 29th, 2012 by W. Scott Railton
Effective May 25th, a new NEXUS only lane will be open between 7:00 AM and 7:00 PM, seven days a week, at the Sumas, Washington border crossing.
The NEXUS program is a “trusted traveler” program for cross-border travel, which allows pre-screened, low-risk travelers to expedite their border crossing. To participate in the program, both the United States and Canada must approve an individual application.
Additional information on enrollment is available at www.cbp.gov.
May 15th, 2012 by W. Scott Railton
It looks like U.S. Customs and Border Protection (CBP) and Canada Border Services Agency (CBSA) are attempting to take steps to improve and expand upon the trusted traveler program known as NEXUS, in an effort to conform to the aspirations of the Beyond The Border Plan.
Specifically, the agencies announced this past week that the two agencies will now streamline the NEXUS membership renewal process, by waiving the former interview requirement for members who have not had “changes to their information” and have maintained “low risk status.” Further, the two countries have begun enrollment blitzes, by expediting processing and further promoting the NEXUS program.
April 30th, 2012 by W. Scott Railton
The H-1B quota for the 2013 fiscal year opened on April 1st, 2012, and after a month, it appears demand is greater than in recent years past, probably due to the improving economy and perhaps technology industry growth. Originally I anticipated that H-1Bs would be available at least through the end of the summer, but that may not be the case now.
Specifically, as of April 20th—only 20 days into the annual year—25,000 out of 65,000 cap eligible applications had been receipted under the general quota, and 10,900 applications out of 20,000 for the U.S. Masters Degree or higher quota. As the numbers diminish, there tends to be a rush by employers to capture the remaining numbers.
April 4th, 2012 by W. Scott Railton
Last week I traveled back to Washington D.C., along with seven other of my colleagues from the Washington State immigration bar. Our purpose was to participate in the American Immigration Lawyers Association’s “National Day of Action”—the annual lobby day for immigration lawyers. This was my second year in a row for making this pilgrimage.
During the course of the day, I met with staffers from five different offices of the Washington delegation. These included Rep. Jay Inslee (resigned), Rep. Doc Hastings, Rep. Norm Dicks (retiring), Rep. Rick Larsen, and Senator Murray. My own representative, Rick Larsen, though very busy, made time to stop in and talk with us for a little while. Thank you Rick.
The need for immigration reform persists. Ever since I started practicing immigration law, before 9/11, there have been calls for immigration reform. Businesses need a system of immigration laws that is responsive to their competitive needs and an evolving international business climate. Families need reform for the immigrant visa backlog (20+ years in some cases), and draconian, disingenuous laws regarding unlawful presence, to name just a few things. This year it seems that even a bipartisan successful law like the Violence Against Women Act can be fuel for partisan fires. Longtime advocates are left shaking their heads, shell shocked.
When I talked to staffers, a certain fatigue comes out when it comes to immigration issues. There’s a certain “What can we do?” attitude, where everything has been tried, but has failed due to partisanship. And it’s no secret–there is a real divide in Congress on a slough of issues, pitting the reds against the blues. The “insider view” now seems to be that real change in our immigration laws may only happen after one of the two political parties suffers significant losses in a key state, due to a changing demographic. This could take one or two election cycles, at least. But then there’s also a sense of “You never know–something might come up,” especially when it comes to immigration enforcement measures. Once upon a time, it was always vogue to be tough on crime. In some places, it seems its now always good to be tough on immigration.
This is not good enough. Business is right to expect more of Congress. So should families, schools, non-profits, undocumented, local governments, and every other interest that immigration issues cross. In recent years, I increasingly hear that Washington D.C. is broken, that the system is failing. Immigration is one of THE two or three issues where our elected officials have an opportunity to prove the pundits wrong. It won’t get done though, if “issue fatigue” is tolerated, and “political realities” carry the day. In the case of immigration, the stalemate has lasted a decade or more. Those who are elected to govern need to govern.
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March 23rd, 2012 by W. Scott Railton
Greg Boos and I participated on speaker panels last week at the 2012 American Immigration Lawyer Association’s Northwest Regional Immigration Law Conference in Seattle, Washington.
The conference was a success, by all reports, with nearly 300 attorneys in attendance, and two full days of immigration law panels. The conference was held at Seattle University’s School of Law. As a condition of practicing law, lawyers are required to regularly take continuing legal education courses, with a required minimum in ethics.
Greg’s panel was entitled “Border Issues and Solutions,” and featured Greg, Diane Butler of Lane Powell, and U.S. Customs and Border Protection Supervisors Shari Barnes and Jonni Galarza. The panel discussed such things as expedited removal, the Beyond The Border agreement between the U.S. and Canada, and possible coming changes to entry/exit documentation (I-94s).
My panel was entitled “Ethical Issues In Immigration Practice.” My co-panelist was Steve Crossland, Washington State Bar President. Steve and I discussed a number of hot topics in ethics for immigration lawyers, including disclosures regarding dual representation; limited representation agreements and fee agreements; a licensing fee referendum; and a proposed change to the Rules of Professional Responsibility.
February 28th, 2012 by W. Scott Railton
I frequently work with CPAs, and they often talk about how busy things get during “tax season.” Immigration law has its own seasons, related to cap-specific work authorization categories, such as the H-1Bs and H-2Bs. H-1Bs are now “in season,” meaning now is the time for some employers to be giving serious consideration to whether or not they wish to hire a foreign national for a specialty occupation in the coming year.
H-1Bs are a popular work authorization status for professionals. The category is reserved for “specialty occupations.” According to USCIS, a specialty occupation “requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.”
Congress has establish annual caps for the number of H-1B workers approved each year. There is a basic cap of 65,000, as well as an additional 20,000 for graduates of advanced degree programs from U.S. schools (e.g. Masters or higher). There are other rules related to cap administration, such as cap exemption and free trade allotments, but basically, there is one big pool of numbers available each year to most employers. When this pool dries up, most employers have to wait until the next fiscal year if they wish to use the program again.
The H-1B cap opens up on April 1st each year, for start dates commencing on October 1st or later. Going back a few years now, the cap used to fill in the first week, due to high demand for H-1B numbers. The agency held lotteries because they received too many applications on April 1st. Times have changed, and for the last couple years, the cap has filled between November and January.
Nobody knows how fast the cap will fill this year, though the numbers seem to go as the economy goes. Broad economic indicators point towards a gradual improvement of the economy, and so it is not unreasonable to expect the numbers to go a bit faster this year. I very much doubt the numbers will be exhausted in the first few months, but late summer is not unrealistic. The bottom line is if an employer wants to bring on a professional from abroad, now is the time to be thinking about it.
February 7th, 2012 by W. Scott Railton
On February 11, 2012, I am honored to speak at a Continuing Legal Education Society of British Columbia program in Vancouver. The program is entitled “Civil Law for Criminal Lawyers,” and I will be presenting on the effect of a Canadian criminal proceeding on a person’s ability to enter the United States.
In brief, any type of criminal proceeding can have an effect on a person’s ability to enter the United States, even if that proceeding does not end with a conviction. The U.S. places the burden of proof of admissibility on applicants for admission, and so frequently CBP officers will request to review court records to make their own determination on whether an applicant is admissible. Criminal defense attorneys in and outside the United States should consider the U.S. immigration consequences of criminal activity early on in the representation, if traveling to the U.S. is a client concern. Post conviction relief is very limited after a person is convicted. The U.S. immigration laws do not typically recognize Canadian pardons.
My presentation will lay out the law in more technical terms than this, and will at some length discuss various bases of inadmissibility, such as crimes involving moral turpitude, crimes involving controlled substances, and certain forms of conduct that do not even require a conviction to create a basis for inadmissibility. I will conclude by discussing the various forms of waivers that may be available.
January 28th, 2012 by W. Scott Railton
U.S. Citizenship and Immigration Services issued a FAQ this week regarding its much maligned “VIBE” system. VIBE stands for “Validation Instrument for Business Enterprises. VIBE is a commercially available database system that the agency has begun using to validate facts presented on various petitions before the agency for U.S. immigration benefits. Dunn and Bradstreet gathers and provides the business information which makes up the VIBE system.
USCIS uses the system to check up on the facts for immigrant and nonimmigrant petitions for business. VIBE is supposed to verify things like when a business was started, current number of employees, and financial ability.
In practice, VIBE adds yet another layer of red tape to cut through in the pursuit of immigration benefits for key employees. In my experience, VIBE is often inaccurate. The facts concerning a business change–they change locations, they have good years and bad years, and they hire and fire employees. When a VIBE search comes back with different or no information on the business, the agency immediately issues a Request For Evidence (RFE) or Notice of Intent to Deny (NOID), seeking clarification. And creating delays. In the world of human resources, a two week to two month delay in a hiring can have damaging consequences on a business.
Further, in responding, Petitioners are placed with the burden of making their case, by perhaps proving their existence, financial ability, or number of employees. With limited guidance on how to satisfy the agency on these and similar points, Petitioners are obliged to respond in full, lest they risk denial. Producing tax returns, wage reports, and property deeds can be burdensome, particularly in cases where businesses have multiple locations.
USCIS is obviously attached its VIBE system, and all of DHS is particularly focused these days on ferreting out fraud. Getting the story right is a necessary task for the administrative agency, but the agency also needs to do its research and be judicious in further burdening businesses. Issuance of RFEs and NOIDs should be sparing. With the exorbitant filing fees paid today, the agency can reasonably be expected to seek validation through other means as well, before further burdening petitioners.
One final note. The FAQ includes all sorts of information on how to update Dunn & Bradstreet with a business’s information. USCIS expressly says that updating with Dunn & Bradstreet is not required, and of course it couldn’t be, without revising the regulations on immigration petitions. But it sounds like USCIS would like to see businesses working with Dunn & Bradstreet. For businesses that are moving a fair number of employees into the U.S., this may make sense, rather than repeatedly respond to RFEs and NOIDS.