Friday, February 27, 2015

Litigation Over American Immigration

Injunction on Executive Action Suspends Expanded DACA Start Date Indefinitely

Legal action being taken on President Obama’s Executive Action of November 20, 2014 is now at the stage of an injunction in place against the expansion of Deferred Action on Childhood Arrivals (“Expanded DACA”) and Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”).  

The injunction was ordered by a federal judge in Texas based on concerns over compliance with the Administrative Procedure Act (“APA” – this is like a rhyming joke, these acronyms).  The Expanded DACA/ DAPA supporter American Immigration Lawyers Association ("AILA") of which I am a member seems pleased to some extent by the judge’s reasoning since he is not holding back Expanded DACA and DAPA on constitutional grounds.    


Here’s the quick timeline on the litigation that led to the current injunction so far:

November 20, 2014: Expanded DACA and DAPA programs announced by President Obama as his “Executive Action” on Immigration.  Expanded DACA  will broaden the number of undocumented foreign nationals that can register and be approved as a non-priority for removal from the United States.  Expanded DACA will increase to three years from two the duration of the employment authorization document (“EAD”) that approved applicants can obtain.  DAPA is introduced as a new program that could give EADs to up to 4 million undocumented.

December 3, 2014: 17 states or state governors file a lawsuit against the US government and representatives of the Department of Homeland Security in Texas vs. United States.  The states claim that Obama engaged in law making that is reserved to the Congress harping on Obama’s rhetoric that he changed the law.  The states blame the original DACA action announced in June 2012 for encouraging refugees to come to the United States from Central America and Mexico causing a humanitarian crisis in the US.  The states call the latest Executive Action “rule” making and as such in need of a notice and comment period under APA, 5 USC §553.  There was not notice and comment period, so the Executive Action is unlawful agency action.  The states also say that the president is breaching his constitutional duty to “take Care that the Laws be faithfully executed.” US Constitution, Art. II § 3, Cl. 5.

December 24, 2014 The Defendants file their brief.

December 29, 2014 Friends of the Court in favor of Expanded DACA file a brief.  They include: AIC, AILA, NIJC, NILC, the Service Employees International Union, the Southern Poverty Law Center and United We Dream.  They state that the injunction would harm the economy and individuals.

February 16, 2015 The injunction is granted.  Federal Judge Andrew Hansen finds that at least one Plaintiff, the state of Texas, has all the elements to maintain a lawsuit and obtain in injunction.  The Defendants were enjoined from implementing all aspects of DAPA for not complying with the APA.  They were likewise enjoined regarding Expanded DACA.

Standing Found for at Least One Plaintiff, the State of Texas. The judge found that Texas stands to suffer direct damage from the implementation of DAPA, and so it can pursue this case in federal court.  Texas will suffer an injury proximally caused by the US government, and a favorable remedy from the court would prevent occurence of that injury.

February 18, 2015 USCIS would have begun taking applications for Expanded DACA.  This date is now indefinitely deferred due to the injunction.

February 24, 2015 The US Government request a stay of the injunction.

Judge Hansen has not shown willingness to rush a decision on that request according to the online publication Politico.   The US Department of Justice in response has said that they will request that the case be moved to a higher court.  The next court would be the Fifth Circuit Court of Appeals in New Orleans, Louisiana.

Monday, March 18, 2013

H-1B 2014 Season - Lottery Likely

The USCIS has done some research, perhaps talking to high volume H-1B employers and the Department of Labor, who issues a vital part of the H-1B supporting documentation.  The US immigration agency estimates that they will reach the maximum number of petitions needed to meet the 65,000 visa limit by only the first five business days of submissions.  

The H-1B petition acceptance start date is Monday, April 1, 2013.  The anticipated “final receipt date,” or last date of acceptance of petitions and filing fees, is April 5, 2013.  If the anticipated number of petitions come in, the USCIS will decide by lottery which of the petitions it will consider.  The remaining petitions will be “rejected.”  Those unlucky petitions will be returned to their senders with their filing fee checks.  

Anticipating this influx of petitions, the USCIS will put the Premium Processing procedure on hiatus for H-1B petitions until April 15, 2013.  Those who find out that their petitions will proceed to adjudication will be able to upgrade later to Premium Processing, if they desire a 15 day response on their petitions, for $1225.  The approved H-1B petitions are good for a work start date only as early as October 1, 2013, in any case.

Base government filing fees for an H-1B petition are $325 (for an I-129) and $500 (Fraud Fee).  Other fees may apply: e.g., ACWIA Fee ($750 for a company of up to 25 employees).

H-1B petitions are filed by US employers to hire foreign nationals with four year college or university degrees, or the equivalent work experience (three years for every one year of college required).  The jobs into which the foreign nationals are hired must require a four year college degree or more.  The employer must testify that they will pay at least the "prevailing market wage," the wage paid typically to others in the same types of jobs in the geographic area of the worksite, or the wage paid to others in the same job at the company (the "actual wage").

Monday, July 18, 2011

Russia-US Adoption Agreement Will Subject US Adoption Agencies to Decision Making Process at Russian Ministry of Education

According to the USCIS and US Department of State, the Russia-US adoption agreement signed on July 13, 2011 by US Secretary of State Hillary Clinton and her counterpart in Russia, Foreign Minister Sergei Lavrov, foresees US adoption agencies being subject to the approval of the Russian Ministry of Education before they can continue to work in Russia. The Ministry of Education currently approves Russian domestic adoption agencies. Some have expressed concern that US entities will not be playing on an entirely even field there. (See Voice of America’s report of the Russian press conference presided over by Clinton and Lavrov, in Russian,, July 14, 2011.) Russia government has a bad reputation for corruption and bribe taking. (Corruption Perceptions Index).  A July 14, 2011 Voice of America reporter claimed that the number of US adoption agencies working in Russia will be reduced threefold from 67.

The Department of State’s new “Frequently Asked Questions” (FAQs: Bilateral Adoption Agreement with Russia, July 13, 2011) states that they will provide the Russian Ministry of Education with their list of US adoption service providers accredited in the US to provide services under The Hague Convention on intercountry adoption, to which the US became a member in 2007. The Department of State will not otherwise make any recommendations about adoption agencies to Russia.
On the phone call held by USCIS and US Department of State on July 14, 2011, a member of one US adoption agency mentioned “black listing” that had occurred arbitrarily against US adoption brokers in Russia. She also mentioned a rumor that US passports were being issued to adoptees in the US Embassy in Moscow. This rumor was emphatically denied by Mike Regan of the US Department of State.

A representative on the phone call from the Office of the Legal Adviser of the Department of State is looking into whether the Clinton-Lavrov agreement can be published to give US adoption agencies working in Russia more of a heads up as to what their new requirements for working in Russia will be. Meanwhile, US adoption agencies may want to look to requirements for domestic Russian adoption agencies under Ministry of Education regulations. The Clinton-Lavrov pact must be ratified by the Russian legislature, the Duma, before it goes into effect in Russia. From the point, US adoption agencies will have 60 days wait for the Ministry of Education to put out regulations listing the new requirements and application procedures. The Ministry of Education anticipates a 30 day decision making process before a license is given under the new regulations.

Stakeholders participating on the phone call with the USCIS and US Department of State included staff from Families for Russian and Ukrainian Adoption - FRUA; Michael Goldstein, Attorney; All G-d’s Children International; Global Adoption Service; Harvard Law School Child Advocacy Program -CAP; Adoption Ark; and Adoption Associates Inc. -AAI .

Chavin Immigration Law Office offers legal advice and assistance on Russia and international adoption.


Erin Siegel, US Signs Adoption Agreement with Russia, Finding Fernanda blog.

Michael Schwirtz, Pact on Adoptions Ends a U.S.-Russian Dispute, NYT, July 13, 2011 .

Россия и США заключили соглашение об усыновлении детей, RIA Novosti ( Trudnoie det’stvo), July 7, 2011.

Kak usynovit’ rebionka, Graphic in Russian on the procedure for adopting a child in Russia for citizens of Russia, under Russian family law.

Intercountry Adoption, Bureau of Consular Affairs, Department of State. Country Specific Alert regarding Russia, July 13, 2011.

Saturday, April 16, 2011

McDonald’s Managers & Employees Face Jail Time Over Sale of Stolen Identities & Harboring Crimes

The managers of two McDonald’s restaurants in Savannah, Georgia, allegedly sold IDs to two other prospective employees, to use to obtain work at their restaurants. All four have been indicted in federal court the crimes of harboring an illegal alien and identity theft. The charges carry potential maximum sentences of over a 100 years for the manager/ID sellers, and 37 years for the employee/ID buyers.

The arrests came after a nine month investigation conducted by Homeland Security Investigations (HSI), a division of the Immigration & Customs Enforcement (ICE). The US Attorney, Southern District of Georgia, Edward J. Tarver is prosecuting the case. The two McDonald’s restaurants were shut down as a result of 14 arrests stemming from the investigation. Nine were arrested administratively for being “in violation of immigration law.” The fourteenth is an unnamed defendant accused of selling a stolen identity. The franchise owner, Nina Gompels, NTG Enterprises, was not implicated.

The manager/sellers were Oscar Lazo, 51, a citizen of Peru, and Eva Ramos, 35, a U.S. citizen. The employee/identity buyers were Maurcio Cruz and Manuel Cruz, both Mexican citizens.


US Immigration & Customs Enforcement Press Release on the April 13, 2011 Federal Indictment “Savannah area McDonald's employees indicted for conspiring to sell stolen identities”

The Augusta Chronicle

Thursday, March 10, 2011

E-Verify Self-Check Launching March 23, 2011 in Fives States and DC

The Department of Homeland Security held its USCIS E-Verify Self-Check Stakeholder Engagement on March 10, 2011 at 2pm EST. Participants listened by phone and in person. As part of the presentation, the USCIS Verification Division representatives conducted a demonstration of the E-Verify Self Check system.

The E-Verify Self-Check system would allow employees or workers looking to be hired to check their employment eligibility against the same databases used by employers who are members of E-Verify.

The Self-Check system will be rolled out in Arizona, Mississippi, Colorado, Idaho, and Virginia and the District of Columbia initially. A full roll out across the country will happen at a date “yet to be determined,” and will depend on how well the system works in the pilot states.

"Work Authorization Is Confirmed" Letter  After giving the information below, an individual will generally be issued an online letter telling them their “Work Authorization Is Confirmed.”

 Name,

 Address,

 Date of birth,

 Social security number, and

 Citizen status (e.g., US citizen or alien authorized to work)

Foreign nationals will also be asked for their employment authorization documentation information, I-94 number, or A number.

The letter that E-Verify Self-Check issues is not meant to be used as an employment authorization document. It is written in colloquial language, and addressed to the “First Name” of the individual doing the query. It is also not one of the documents permitted for use by an employer using a Form I-9 to verify employment eligibility upon hire.

Social Security Number and Name Mismatch  Other possible outcomes for an individual checking their own employment eligibility on E-Verify Self-Check are: (1) possible mistype of the social security number, try again, or (2) possible mismatch of the social security number. If the latter comes up, the individual is encouraged to visit the Social Security Administration with a pre-printed letter about this result, to try to have the mismatch corrected. The Mismatch Notification Letters to SSA are generated by the E-Verify Self-Check program. A mismatch could come up for example, if you have not changed your name with SSA after a marriage or divorce.

The Self-Check program warns those who choose not to go to SSA to resolve the mismatch that if they are checked by an employer on E-Verify, they are likely to get a TNC – Temporary Non Confirmation, and could be terminated, if they do not resolve the mismatch with SSA.

Privacy Protection  After an individual enters their personal information, short of their “citizen status,” the E-Verify Self-Check system warns that the information will now be sent to the third party who will create a “Quiz” for the individual. The Quiz will be a quiz of personal information available to credit agencies. If the individual passes the Quiz, he is able to use E-Verify Self-Check to verify his work authorization status. If he does not, he is considered to be someone who may be an identity thief.

Having Googled myself and a few individuals’ names before, I must say that the information that makes up the Quiz does not seem entirely “private.” My brief look at the privacy protection on this system makes me feel that this protection is not robust. The Quiz in the demonstration looks for former employer names, and former residential streets and phone numbers of the user. The concern of many participants at the Stakeholder Engagement was that the information obtained on an individual could be used nefariously by potential employers, or government benefit agencies.

On the other hand, recently arrived non-immigrants and refugees may have trouble using the Self-Check system at all since they will not have enough of a footprint with US banks and credit agencies to be able to have a “Quiz” generated. The Self-Check system is completely optional, however.


Federal Register
Online Demonstration

Tuesday, March 1, 2011

Owner of Bensonville, Illinois Temp Agency Knowingly Employed Undocumented Workers, Receives 18 Months Jail & Forfeits $465,178 : “Anna II” & “Can Do It Workers” Served Warehouses in Chicago Suburbs

February 16, 2011, as the result of a plea agreement, Clinton Roy Perkins of Wayne, Illinois was sentenced to 18 months in prison. He will forfeit $465,178 in proceeds from his criminal actions. His prosecution was started in spring 2010 by the US Attorney for the Northern District of Illinois Patrick Fitzgerald, and Chicago sections of the Immigration & Customs Enforcement (ICE) and the US Department of Labor.

The indictment filed by Patrick Fitzgerald’s office in spring 2010 covered the actions of Mr. Perkins and his son-in-law Christopher J. Reindl between October 2006 and October 2007. Mr. Perkins and his office manager Mr. Reindl had a practice of not checking the employment eligibility of their new hires. Knowing that many of them were undocumented, they gave their warehouse company clients fake Social Security information when asked. They paid their employees in cash, and did not deduct payroll taxes or withholding.

Mr. Reindl, age 40, has also plead guilty, and his sentencing is expected this month.


ICE Press release

US Attorney Patrick Fitzgerald's indictment in US v Perkins, undated/unsigned.

Wednesday, December 8, 2010

DREAM Act before Congress Today in Its Fifth Version

To appease opponents of the legalization of undocumented foreigners, even those that were brought to the US when they were minors, the DREAM Act draft bill S.3992 increases the conditions for eligibility, thus reducing the number of illegal aliens who would be able to legalize. The original versions of the DREAM Act drew on political momentum started on college campuses where illegal immigrants accepted to prestigious private school programs on scholarship were “coming out” with their undocumented status. Even in its current version,, the DREAM Act would chip away at the huge number of undocumented aliens in the US by allowing a path to legalization for some of the most sympathetic candidates, those brought here as children who have never known another homeland.

The draft bill before Congress today “The Development, Relief and Education for Alien Minors Act of 2010” exists in its fifth iteration. The DREAM Act in all its versions have had the goal of giving undocumented foreign nationals who were brought to the US as minors a path to legalization. Conditions for that legalization would be military service or educational achievements. The latest version is an attempt to compromise with some opponents of the bill. The drafters have lowered the total number of undocumented foreign nationals that could be legalized by increasing the conditions for legalization.

Birth right citizenship is based on a fateful birth in the US, even when one’s parents are foreigners. The DREAM Act would similarly allow those who were brought to the US by undocumented or visa-overstay foreign parents a path to legal status.

New Legal Status Created. Drafters call the new legal status offered by this bill “conditional nonimmigrant.” CNI status would be granted for ten years. It could then be converted to regular green card status, and in three years time after that, US citizenship. The status itself is conditional on maintaining “good moral character,” a clean criminal record, and other good immigrant behavior. It would not permit a dishonorable discharge from the military.

Deadline for Application. Under the current draft of the bill, an alien may apply for the new status offered under the DREAM Act no later than one year after the date of the enactment of this Act, the date of admission to a US institution of higher learning, or the date of graduation from high school or attainment of a GED, which ever comes latest.

Restrictions and Conditions for Conditional Nonimmigrant Status. In general CNI status would be granted to those who had:

long residence, at least five years in the US;

entry as a minor, at less than 16 years of age;

a US high school diploma, GED or admission to a US college program,

less than 30 years of age, on the date of enactment of the DREAM Act,

good moral character maintained since they were brought to the US;

no inadmissibility or deportability grounds for the most part, they have not committed crimes that would make them inadmissible or deportable or had other grounds of inadmissibility or deportability. This condition continues to expand uncomfortably for proponents of the bill;

no acts of persecution committed against others on the basis of race, religion, nationality, political opinion, or membership in a social group;

no felonies or prison terms in aggregate over 90 days for three or more misdemeanors; and

no existing final order of exclusion, deportation or removal, unless the alien has remained in the US under “color of law” or the order was given while the alien was still a minor (under age 16).

Unfortunately, the current iteration of the DREAM Act still does not offer a path to those who came here as children and have committed minor felonies. Even if they have served their time and now have good moral character, they will still have to “serve time” as an undocumented person, or return to a strange or even hostile ‘home’ country.

Conversion from CNI to Green Card Holder. To convert CNI status to green card status, a CNI would need to show

two years of higher learning or military service in the US,

secondary school attendance in the US,

good moral character during the entire period of holding this status (ten years at least),

not inadmissible or deportable, no acts of persecution and no felonies or prison terms in aggregate over 90 days for three or more misdemeanors, as above, and

continuous residence in the US, no absences of more then one year, other than for US military service.

Higher Education Assistance.  Earlier versions of the DREAM Act would have untied the hands of state legislatures to allow them to grant federal financial benefits like student loans and work-study programs to undocumented aliens similar to that granted to other state residents. This version states only that CNIs or green card holders shall be eligible for such assistance.