Immigration
CHANGES AT THE HELM OF IMMIGRATION AGENCIES
In mid-July, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that she would be leaving DHS to become president of the University of California. A former governor of Arizona, Napolitano is only the third person to lead DHS, a department created a decade ago in the wake of the 9/11 attacks. Secretary Napolitano held the job throughout President Obama’s first term.
Apparently, Napolitano’s departure will create the 15th vacancy in the department’s 45 leadership positions. This includes the directorship of Immigration and Customs Enforcement (ICE) and USCIS. ICE Director John Morton recently announced that he would be leaving DHS at the end of July, and USCIS Director Alejandro Mayorkas recently was nominated to become DHS Deputy Secretary. Other vacancies include general counsel, privacy, legislative affairs, intelligence and analysis; those top positions are currently filled with acting officials. Rand Beer, acting DHS deputy secretary, is expected to serve as Acting Secretary until Napolitano’s permanent replacement is confirmed by the full Senate.
Update on Processing of Stateside Provisional Unlawful Presence Waivers
In March 2013, USCIS implemented a new program that permits certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional unlawful presence waiver prior to traveling abroad for consular processing of their immigrant visa applications. However, a provisional waiver will not be approved if USCIS has “reason to believe” that the applicant may be inadmissible on grounds other than unlawful presence. Based on these first five months of adjudication, the American Immigration Lawyers Association (AILA) has recently raised concern that USCIS is taking a very broad approach to the standard “reason to believe,” and has been denying I-601A provisional waivers that follow two clear patterns:
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Criminal record of arrest or conviction. “Reason to believe” denials are being issued notwithstanding evidence submitted that establishes that either the arrest did not result in a criminal conviction, that the incident was not conduct that would render the foreign national inadmissible, or that the crime for which the individual alien was convicted was not an inadmissible offense.
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Providing false name, date of birth, or other information at the time of an apprehension for entry without inspection. USCIS is denying the I-601A on the grounds that there is “reason to believe” that the alien knowingly and willfully provided false or materially misleading information while applying for an immigration benefit or while trying to gain admission to the United States. Denials are being issued even though the allegedly false or misleading information was not material, or was not given in connection with a benefit application or application for admission.
Individuals should carefully examine their circumstances and seek guidance from their immigration attorney before applying for a provisional waiver.
E-Verify Can Now Directly Notify Employees of a Record Information Mismatch
USCIS has announced that E-Verify will allow direct notification to employees if there is a record mismatch that needs to be resolved before the employee can be confirmed as work authorized. Until now, only the employer was issued a “Tentative Nonconfirmation” (TNC). A TNC occurs when information an employer provides about an employee to E-Verify does not match the data found in either DHS or Social Security Administration records. Employees (of employers who use E-Verify) can voluntarily provide an e-mail address when completing their I-9 form and they will be notified of a TNC at the same time their employer is notified by E-Verify.
New Study on Tax Implications Supports Legalizing Undocumented Immigrants
A new study by the Institute on Taxation and Economic Policy (ITEP) finds that undocumented immigrants who live and work in the United States pay billions of dollars in taxes every year to state and local governments. Given the chance to earn legal status, they would pay even more. According to ITEP, undocumented immigrants paid an estimated total of $10.6 billion in state and local taxes in 2010. ITEP also notes that allowing undocumented immigrants to work in the U.S. legally would increase their state and local tax contributions by an estimated $2 billion a year. Simply stated, legalization pays.
News in Brief
The following additional items may be of interest to our readers:
Majority of DACA Cases Approved: USCIS statistics on DACA cases indicate that almost 90 percent of all cases adjudicated thus far have been approved. Of the 365,000 cases approved, about 3,800 have been denied.
Florida, Mississippi, and Idaho Participate in RIDE Program: Idaho now joins Mississippi and Florida in participating in a program called the RIDE (Records and Information from DMVs for E-Verify) program, an initiative through which E-Verify is able to confirm information from drivers’ licenses and state identification cards.
DOJ Enters into Memorandum of Understanding with NLRB: The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) of the Justice Department recently entered into a Memorandum of Understanding (MOU) with the National Labor Relations Board (NLRB), formalizing a collaborative relationship that allows both agencies to share information, refer matters to each other, and coordinate investigations as appropriate. OSC is responsible for enforcing the anti-discrimination provisions of the Immigration and Nationality Act, which prohibit citizenship-status and national-origin discrimination in hiring, firing, and recruitment or referral for a fee, and discriminatory Form I-9 and E-Verify practices. The NLRB is an independent agency that protects the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions.
Dilip Patel of Shutts & Bowen LLP, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail dpatel@shutts.com