Immigration in Focus

CBP Commences Process of Ending the Paper I-94 - Employers and Travelers Beware

It seems innocuous – an anachronistic paper form being replaced by an electronic process. Customs and Border Protection (CBP) will start a money saving and security enhancing project to end the issuance of the paper I-94 (arrival/departure) record at air and sea ports (not land) in a staged process starting April 30. http://tinyurl.com/cshmkkx CBP estimates that the process will save the agency about $15.5 million annually. CBP already implemented this transition to the electronic I-94 in the Visa Waiver Program – of course that was the green I-94W form. What’s not to like?

The issuance of the I-94 is that critical document evidencing the admission period and category of admission at our ports of entry. It is a key document number used in a variety of immigration processes as well as by Departments of Motor Vehicles nationwide as to applicants for driver’s licenses as well as the Social Security Administration regarding social security card applications.

CBP plans to have the paperless process completely implemented by May 21 at the end of the four week transition.

What is the new paperless process?

CBP is going back to just stamping the applicant’s passport with an admission stamp stating the date of admission, class of admission, and admission period of validity. Those admitted will also receive a flier advising them to go to a new website, http://tinyurl.com/cmrjsa9, in order to obtain their I-94 admission number. (also www.cbp.gov/I94 ) A video of this process is available at: http://tinyurl.com/c3mp2vw .

This number appears on the top left of the white I-94 card. As to the exit process for air and sea departures, it will no longer be necessary to return the paper I-94 upon departure after admission using the electronic I-94 process since electronic departure manifests can track this data. Of course, this return process does not cover those being admitted at air or sea ports and departing by land ports or vice versa. We are leaving that conundrum for another day.

So why do employers care?

Well, employers have a new Form I-9 that they must start using on May 7, if they have not already done so. That Form I-9 requires, when applicable, admission numbers both in Section 1 as to the employee and Section 2 for the employer. The viewing of the electronic I-94 is deemed by CBP’s new regulation to be a review of the “original” I-94. Of course, employers completing Section 2 of the Form I-9 must timely review originals of the work authorization and identity documents provided by a new employee. Employers can enter the data from an employee’s presented passport to access and print out the I-94 admission record from the new CBP website, if the employer is retaining the Form I-9 support documents. For those employers not copying such documents, it appears that viewing the information on the CBP website will equal a view of the original I-94 admission number when required. Let’s hope Immigration and Customs Enforcement and U.S. Citizenship and Immigration Services (USCIS) agree on that with CBP.

Employees who are work-authorized nonimmigrants in section 1 of the Form I-9 may need their admission number. In such cases, they will need access to the CBP website for this information.

It would certainly have been easier for employers and employees to use the admission stamp in the foreign passport provided by CBP to record the admission validity period versus the admission number. The CBP regulations define the I-94 to include this record of admission stamp on the passport. Unfortunately, the new Form I-9 requires as admission number when applicable – and a record … is not a number…

Why do travelers need to care?

1. Travelers must check the new CBP I-94 website when being admitted under this new electronic system to ensure that their admission category and period is correct in addition to their passport information. The consequences of a untimely departure from the U.S. can result in potential removal from the U.S. or future inadmissibility to the U.S. In addition, admission in the incorrect category can cause an employee not to be eligible to work in the U.S., for example.
2. Errors in the electronic I-94 may be corrected by CBP. http://tinyurl.com/cgrdsf8 The process requires the employee to go to a port of entry or a deferred inspection site to correct an erroneous admission record. Errors in the USCIS I-94 at the bottom of an I-797 approval notice are to be corrected by USCIS.
3. Here on the border, the readmission of a traveler with an expired visa 22 CFR §41.112(d) will be implicated as well. The presentation of the paper record will be replaced by referral to the database for those using the electronic I-94 process.

Let’s hope that database is robust and accurate. For those entering via the land border, paper I-94s will continue to be issued. Even in the air and sea port environments, the paper I-94 will still be used as to certain applicants for admission (e.g. parolees, asylees, etc). CBP needs to provide more guidance for the common issue of what to do when you combine the land entry and exit process though with this new electronic I-94 roll out – and for that reason, among others, the “beware” note is necessary.

Gang of Eight Immigration Bill – Boldly Going Where Few Have Dared to Go….

The Senate summary issued today of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (BSEOIM) is an intricate, complex, and bold proposal. (See attached) It provides for some radical changes to our dysfunctional immigration system. The Gang of Eight should be congratulated for having the intestinal fortitude to craft this bill.
Download REVISED outline of immigration bill 4-15 (2)

The actual text of the bill will be critical to review to assess the potential implications of the various moving parts of the bill. The summary of the proposal tells a tale of what must have been some excruciating compromises.

One of the first warnings is that there is no NEW LAW. Even the most aggressive and optimistic timelines should not create an expectation of a bill ready for presidential signature until August or September. Rep. Boehner on the House side is already suggesting a piecemeal approach to legislation. The American Immigration Lawyers Association (www.aila.org) is already issuing public service announcements to warn again those trying to sell services to file for a solution that we have no idea what the final requirements will be.

The summary addresses; the definition and timing of the Border Security Goal, a Legalization Program for the Undocumented, the Restructuring of our Legal Immigration System (family and business) including the creation of new Merit Based Visas (MBV), serious H-1 and L-1 Nonimmigrant Visa Reforms, a cyclical flow W visa for low-skilled workers, mandatory E-Verify including a requirement for all non-citizens to present their biometric work authorization card versus having a choice to present a List A or B and C document for Form I-9 purposes, and the implementation of the DREAM Act (not sure what version) and the Agricultural Job Opportunity, Benefits, and Security Act (AgJOBS) to allow current undocumented farm workers who made a substantial commitment to agricultural work in the U.S. to obtain legal status.

As to undocumented workers, the new acronym du jour is RPI (Registered Provisional Immigrant) – not to be confused with RPMs! Yes, there is a date proposed of December 31, 2011 to prove residence in the U.S. before this date as well as “continuous physical presence” since that date. I discussed the options of proving residence in my earlier blog regarding the DACA process. The penalty fee of $500 must be paid by applicants except for DREAM Act (we will see how that is defined) eligible students as well as assessed taxes in addition to processing fees. Ineligibility grounds include: convictions for an aggravated felony, a felony, 3 or misdemeanors, an offense under foreign law (who knows?), unlawfully voting (in what?), and being inadmissible for criminal, national security, public health, or other morality (not sure) grounds. The application period is one year with a possible extension of one year. RPI status would last for six years and is renewable, if the immigrant does not commit any acts that would render the alien deportable. Another $500 penalty is required to renew the registration.

I am going to try to work through an analysis on each portion of the bill over several postings. The summary provisions regarding the Border Security Goal are confusing as to its true impact upon an RPI registrant.

The bill measures Border Security based on:

• Persistent Surveillance of High Risk Sectors (apprehensions over 30,000) on the Southern Border AND
• Achieving an Effectiveness Rate of 90% in a fiscal year for all High Risk Sectors (HRS) along the Southern Border.

The Efficiency Rate is defined as the “number of apprehensions and turn backs in a specific sector divided by the total number of illegal entries.” It will be interesting to see how this rate is calculated, since we really do not ever know the “total number” of illegal entries. In the GAO 13-25 report issued in December of 2012 entitled, “Key Elements of New Strategic Plan Not Yet in Place to Inform Border Security Status and Resource Needs,” the report outlined that the most apprehensions by the Border Patrol on the southwest were in the Tucson sector. In 2011, the number of apprehension in the San Diego sector was 42,389 based on this report. The El Centro sector in 2011 had 30,172; Yuma - 4,861; Tucson – 124,363; El Paso – 9,994; Big Bend – 4,027; Del Rio 16,661; Laredo – 35,201; and the Rio Grande Valley – 59,450. Thus, it is clear that the Tucson and the Rio Grande Valley sectors are the biggest challenges. A part of that challenge is to be met by authorizing and funding border crossing prosecutions and related court costs in the Tucson sector at a level to increase prosecutions from 70 a day to 210 a day. To me, that sound like Operation Streamline on steroids.

How can the Border Security Goal slow everything down?

Well, on initial glance, it appears the timeline created by the summary is as follows:

1. Secretary Napolitano has 180 days after bill enactment to develop two strategies: the Comprehensive Southern Border Strategy and the Southern Border Fencing Strategy (yes fencing). She will have a $3 billion budget for the first strategy and a $1.5 billion for the second, which includes the deployment of the National Guard to build fences, increase ground-based mobile surveillance systems, deploy unmanned and manned aircraft, deploy radio communications systems, construct more border checkpoints along the Southern border, and provide assistance to Customs and Border Protection (CBP) in rural high-trafficked areas.
2. No undocumented immigrant may ADJUST (not necessarily file for) status to RPI legal status until the Secretary of the Department of Homeland Security (DHS) submits a “Notice of Commencement” upon “completion” of each strategy. You would think the Secretary would submit these strategies for approval by Congress or a committee before issuing the Notice. In addition, in the meantime, it would also seem that DHS could accept applications for RPI status.
3. No RPI immigrant is eligible to ADJUST to Lawful Permanent Resident status (except for DREAM Act and the Agricultural Legalization applicants) until the DHS Secretary submits a written certification to Congress and the President that each of the following are achieved (so, the wait could be many years longer than 13 years):

• The two Border Security Strategies are submitted to Congress and are substantially deployed and operational.
• The DHS Secretary has implemented a mandatory employment verification system to be used by all employers to prevent unauthorized workers from obtaining employment in the U.S.
• The DHS Secretary is using an electronic exit system exit system at air and sea ports of entry that operates via collection of machine-readable visa or passport information from air and sea carriers.

Border Security Accountability Measures

The summary notes that the Border Security Goal requires an Effectiveness Rate of 90% or higher to be achieved for all High Risk Sectors during the first 5 years after the bill is enacted.. If this rate is not achieved in five years post bill enactment, then the bill requires a Southern Border Security Commission to be established. The Commission apparently is given 180 days to come up with a plan to meet the Border Security Goal with a $2 billion budget. If the Commission does not issue the plan in the required time, then the charge and the money reverts back to DHS.

Reviewing the bill itself will hopefully provide more clarity, but based on this preliminary review and in consideration of the GAO report and the enforcement funding – the metrics are still potentially a moving target to establish Border Security and could create a serious roadblock to permanent resident status for those acquiring RPI status.

USCIS CLARIFIES May 7 START DATE New I-9 Form

USCIS clarified on April 9 with a Federal Register Notice that the new Form I-9 must be used as of MAY 7, 2013. The summary language from the notice is posted below:

SUMMARY: On March 8, 2013, U.S.
Citizenship and Immigration Services
(USCIS) published a notice in the
Federal Register announcing the
recently revised Employment Eligibility
Verification, Form I–9. USCIS also
announced in the DATES section of the
notice that employers can no longer use
prior versions of Form I–9 effective May
7, 2013. In the SUPPLEMENTARY
INFORMATION section of the notice,
however, USCIS incorrectly described
the effective date as being after May 7,
2013. This notice corrects this error and
clarifies that employers may no longer
use prior versions of the Form I–9
beginning May 7, 2013.

USCIS Unclear on Start Date for New Form I-9 Use – Issues New Handbook

United States and Citizenship Services (USCIS) has posted contradictory information on the exact date that the new I-9 form (Rev. 03/08/13)N must be used. The revision date is referenced on the lower left hand corner of the form. The Federal Register notice indicates that prior versions of the form can no longer be used by the public effective May 7, 2013. Yet, the supplementary information part of the Federal Register notice provides that: “After May 7, 2013, all prior versions of Form I-9 can no longer be used by the public.” http://tinyurl.com/bsf8dtf

As of March 28, I-9 Central states that employers must start using the new Form I-9 on May 7. http://tinyurl.com/chuqglt USCIS on its site related to USCIS forms notes, however, as to the Form I-9 version to use that: “After May 7, 2013, only the 03/08/13 will be accepted.”

The March 2013 edition of the E-Verify Connection newsletter published by USCIS states that: “Beginning May 7, 2013, only the new Form I-9 with revision date March 8, 2013 may be used.” http://tinyurl.com/brfe43d

SO WHAT TO DO? Employers who fail to use the new Form I-9 on May 7 can at least point to the confusion created by the USCIS postings as to any enforcement action against them for failure to use the correct form. USCIS has already indicated on I-9 Central that employers can correct the error of using the wrong version of the Form I-9 by the following:
“2. Drafting an explanation of the situation and
• Attach the explanation to the completed outdated Form I-9; and
• Sign and date the explanation”

Thus, it would appear that USCIS should be apply a “reasonable regulator” standard and accept either a May 7 or May 8 start date based on the above-referenced inconsistencies.

The New M-274

USCIS has also issued a new version of the M-274 Handbook For Employers (Rev. 03/08/13)N. The overall length of the new Handbook only increased by one page post issuance of the new two page form. There are some interesting changes including that a laminated or unsigned social security card may be accepted as long as “it looks genuine and related to the person presenting it.” In addition, the M-274 provides direction on what to do when an employee presents documentation of a new identity. The new form and Handbook are available on I-9 Central, the USCIS website, at http://tinyurl.com/5rsp5mm.

NEW FORM I-9 – EFFECTIVE MARCH 8, 2013

United States Citizenship and Immigration Services (USCIS) issued a new version of the Form I-9 today, March 8, 2013. http://tinyurl.com/c96fsr The Form I-9 is required to be used by employers to verify the identity and employment eligibility of new hires.

When is it effective? March 8, 2013. Yes, employers hiring today should use it, but there is a grace period until May 7, 2013. As usual, the Spanish version of the form is to be used only in Puerto Rico.

Is there a grace period to start using the new form? Yes, employers may continue to use the following versions UNTIL MAY 7, 2013 - (Rev. 02/02/09)N and (Rev/ 08/07/09)Y. The revision date of the Form I-9 is printed on the lower left corner of the form. Employers should NOT complete a new Form I-9 for current employees if a properly completed I-9 is already on file.

What about the M-274 Handbook for Employers? Well, it would be nice, if it were available as well today, but it is still being revised. I-9 Central indicates that it will be released next week. So…. use the new form with caution.

What are some changes?

• The form is now two pages.
• Section 1 of the form provides “optional” information for completion by the employee (i.e. e-mail address and telephone number). If the employee chooses not to provide the information, they may indicate “N/A” in those sections.
• In section 1, if the employee indicates that they are authorized to work, the Form I-9 gives an option to provide either their ANumber/USCIS Number OR Form I-94 Admission Number. The instructions on the form, however, appear to indicate that this choice is really not one. The instructions state that if the applicant has an ANumber/USCIS Number, they are supposed to enter that information. If they do not, then they may use the admission number. If the admission number was issued by Customs and Border Protection (CBP), then the employee must also provide their foreign passport number and country of issuance. If the admission number though was issued by USCIS, then they may enter “N/A” in the blanks for foreign passport number and country of issuance. These changes herald the expected transition by CBP away from the use of a paper I-94 admission document.
• The major change in the list of acceptable documents is to clarify that for List C purposes, an employer should not accept a social security card with any of the following restrictions: Not Valid for Employment, Valid for Work Only with INS Authorization, or Valid for Work only with DHS Authorization.

The instructions also provide guidance in many areas. Some initial examples are:

• Temporary staffing agencies may enter the first day the employee was placed in the job pool to complete the date of employment blank in Section 2 .
• If employers elect to make copies of support documents presented for Form I-9 completion, they must be retained and presented with the Form I-9 in case of an inspection by the Department of Homeland Security (DHS) or other federal government agency.
• The person who examines the Form I-9 support documents presented to the employer must be the same person who signs Section 2. In addition, the examiner of the documents for the employer and the employee must both be “physically present during the examination of the employee’s documents.” This point further underscores the requirement that a tactile examination of the original documents be conducted and the employee must be physically present that time.

The changes to the form instructions have resulted in three additional pages. Please remember that the employee must have access to the instructions during the I-9 completion process. We will see what further guidance USCIS will provide on the Form next week in the M-274. The current M-274 takes 65 pages to address the previous one page Form I-9. Any thoughts on what an additional page will take in explanation?

PROVISIONAL WAIVER FILINGS COMMENCE MARCH 4 - HOW DOES IT HELP?

In my January 2, 2013 blog entry, I discussed the announcement by U.S. Citizenship and Immigration Services (USCIS) about a change for certain immediate relatives that would help spouses and parents of U.S. Citizens reduce the time of separation due to the processing of waivers of unlawful presence. Please refer to that blog for the basic conditions to participate in the program. On March 4, 2013, the ability to file in the U.S. with U.S. Citizenship and Immigration Service under the new "provisional waiver" program started. It is not any sort of "amnesty" program; it is an improvement in process for qualifying relative of U.S. citizens requiring a waiver, when available, of unlawful presence bars. Please referto this link for recent USCIS guidance. http://tinyurl.com/7ealj3w

Some critical points to remember about this program ----

1. The program does not apply as to unlawful presence waivers for spouses and children of U.S. legal permanent residents. These waivers will continue to be processed after the applicant departs the U.S.

2. The program does not apply to adult children of U.S. citizens. Immediate
Relatives are parents (of a U.S. citizen who is at least 21 years of age), spouses of U.S. citizens, and children (unmarried and under the age of 21) of U.S. citizens.

3. Applicants cannot be under 17 years of age.

4. The program does not apply to applicants who need a waiver of any other ground of inadmissibility to the U.S. In other words, the program only applies to applicants who are subject to a three or ten year bar of admissibility to the U.S. due to unlawful presence in the U.S. of 180 days or more. It does not apply to someone subject to the ten year bar, which cannot be waived before the ten years has passed (i.e. the permanent bar).

5. Even if someone qualifies under the restrictions above, they may still not apply for the provisional waiver while in the U.S. -- IF --- the Department of State (DOS) scheduled the applicant's consular interview through the National Visa Center (NVC) before January 3, 2013. That means the action of scheduling the interview - not the actual date for the interview to be conducted outside of the U.S. For those who are unable to proceed just because of this point to file a provisional waiver while in the U.S., they may still be able to qualify to file if DOS terminated the immigrant visa registration tied to the previously scheduled interview AND the applicant has filed a new immediate relative petition, OR the applicant is the beneficiary of a new immediate relative petition filed by a DIFFERENT petitioner.

6. An attempt to reenter or reentry to the U.S. without being inspected and
admitted or paroled, before or after a provisional waiver is approved or before the related immigrant visa is issued by the DOS may automatically revoke the waiver among other potential consequences such as criminal prosecution for illegal entry.

7. USCIS does reserve the right to place an applicant for an I-601A waiver in removal proceedings if the waiver is denied or withdrawn if the applicant has committed fraud, has a criminal history, or otherwise poses a threat to public safety or national security.

What is the real benefit?

Immediate relatives can decrease the typical time of separation after departure for a consular interview at a U.S. consulate or embassy abroad, as applicable, when they are found to require an unlawful presence waiver.

For those who qualify - how does this work according to the U.S. Consulate Cd. Juarez? (Please note that recent USCIS stakeholder calls do not seem to track the notice requirements outlined by the Consulate in their posting.)

1. You must notify the NVC of your intention to apply for an I-601A waiver, if you do not, your case may end up being scheduled for consular interview before the adjudication of the waiver. This notice tells the NVC to hold off scheduling the consular interview until the I-601A waiver is adjudicated by USCIS.

2. If the NVC proceeds to schedule your case for an interview at the consulate after January 2, 2013 AND you are eligible to file the I-601A provisional waiver and wish to do so - then you must notify the U.S. Consulate in Cd. Juarez before filing the I-601A and AFTER you pay the immigrant visa processing fee to the NVC. The notice to the U.S. Consulate in Cd. Juarez tells them that you wish to proceed with your immigrant visa case. A failure to notify the Consulate can result in an administrative closure of your case after two years of inaction.

What happens if the Consulate determines at the time of the immigrant visa
application interview post an I-601A waiver approval that you are inadmissible to the U.S. on some other ground?

The USCIS approved provisional waiver of unlawful presence will be revoked and a waiver of that ground as well as any other, as available, will have to be filed and processed while the applicant is outside of the U.S. in most cases.

The Take Away?

For those who qualify, the benefit of family unity for immediate relatives during the unlawful presence waiver adjudication is a very welcome development. It is critical, however, to have competent legal counsel conduct a careful review of the facts before submitting any I-601A waiver.

Sequestration and Immigration

The automatic spending cutback ("sequestration") is scheduled to take place March 1, 2013, at 11:59 EST. Notices to employees subject to furloughs will go out with a possible start date of approximately 30 days from now.

The Department of State (DOS) has warned that sequestration will result in diminished consular services, including visa adjudications, because the number of officers processing visa applications will be reduced. DOS representatives stated during a press briefing on February 27th that “one of the areas that there’ll be an impact on, obviously, is our ability provide consular services, and so we’re concerned about that and it took a lot of effort to get us to reduce those wait times, and a lot of new hiring, a lot of new staff.” If the sequester does indeed take effect tonight, there is a very real possibility of delays in the visa application process, which means foreign national employees may experience delays outside the U.S. and may not be able to assume, or return to, their jobs in a timely fashion.
U.S. Department of Homeland Security Secretary Janet Napolitano and Attorney General Eric Holder have warned that the sequestration will undermine domestic security efforts, affecting security on the U.S.-Mexico border due to the loss of about 5,000 border agents, long waits at U.S. airports and other ports of entry.
"If this so-called 'sequester' goes into effect,'' Holder said, "it will not only curtail the department's ability to support our state and local partners, it will have a negative impact on the safety of Americans across the country.''
The nation's top law enforcement officer said of the loss of federal aid to local law enforcement agencies "[t]here's no question that the effects of these cuts… on our entire justice system, and on the American people will be profound.''
The U.S. Department of Labor has posted a website for employers to assist DOL employees who may be impacted by budget reductions required by sequestration, which may cause delays in adjudications. http://www.dol.gov/sequestration/

United States Citizenship and Immigration Services (USCIS) adjudications are fee based, so it is hoped that the impact will be minimal to their processes.

The impact upon Customs and Border Protection (CBP) may be the most severe. http://tinyurl.com/d9u6co9 The National Treasury Employees Union, which represents 24,000 CBP employees, said it has begun formal furlough bargaining with CBP.

"The proposed 14 days of furloughs would result in the drastic loss of nearly three weeks' pay for dedicated frontline workers," said Colleen Kelley, president of NTEU. "Our goal is to mitigate the effects of these furloughs to the greatest extent possible and to ensure they are applied equitably."

Border Patrol agents say they're getting the short end of sequestration's stick. http://tinyurl.com/atdqkne

As we wait to see if these furloughs will go into effect, one can only hope that legislators will actually do their job and agree to a fix.

(Thanks to Lisa Donaldson of Cox Smith for her help on this blog today.)

Is Border Security Really All About the Got Aways?

Secretary Napolitano of the Department of Homeland Security (DHS) was again under the microscope during the February 13 Senate Judiciary Committee hearing on Comprehensive Immigration Reform regarding the attainment of the elusive undefined goal of “border security.” The goal that continues to muck up efforts to achieve immigration reform.
From El Paso, the goal does not appear that elusive. El Paso was yet again – the third year in a row - named the safest city with a population greater that 500,000 by CQ Press, which compiles FBI’s Uniform Crime Reports.
Based on Secretary Napolitano’s testimony:
• Attempts to cross the Southwest border illegally, as measured by Border Patrol apprehensions, have decreased 49 percent over the past four years, and are 78 percent lower than what they were at their peak.
• The U.S. Border Patrol is staffed at a higher level than at any time in its 88-year history. DHS has doubled the number of agents from approximately 10,000 in 2004 to more than 21,000 today. Along the Southwest border, the number of Border Patrol agents has increased by 94 percent to nearly 18,500.
• In Fiscal Year 2012, approximately 55 percent, or more than 225,000, of the individuals that ICE removed from the United States were convicted of felonies or misdemeanors — a more than 96 percent increase since Fiscal Year 2008. (Of course, I would point out that it would be useful to know how many of the felonies and misdemeanors relate to illegal entry and reentry cases.)
• The DHS Science and Technology Directorate (S&T) is developing criteria for evaluation of new technologies that may provide the ability to capture biometrics upon exit. As DHS noted in the 2012 plan, we will evaluate technological options within the constraints of the current fiscal environment. S&T is developing a test environment for a variety of biometric technologies in order for DHS to identify how to implement a process that increases the security of the travel system and enhances our ability to detect and deter overstays, while also improving passenger processing. (This effort of exit control has been an on-going challenge – check back on reports regarding the I-94 which could transmit prints….)
• A key part of DHS immigration enforcement efforts has been strengthening enforcement against employers that hire undocumented immigrants. In 2009, ICE implemented a new worksite enforcement strategy focused on more effective auditing and investigations that prioritize the use of criminal prosecutions against employers that engage in fraud or abusive practices against their workers, use unauthorized workers as a business model, or participate in other criminal conduct. Since January 2009, ICE audited nearly 9,000 employers suspected of hiring undocumented workers, debarred 917 companies and individuals, and imposed more than $101 million in financial sanctions, which exceeds the total amount of audits and debarments during the entire previous administration.

(Some Questions to Sec. Napolitano on Border Security from the Hearing)
11:13am Sen. Flake (R-AZ) begins questions.
Q: Border security is a difficult term to define. The GAO has been quite complimentary of what’s happening in the Yuma sector of Arizona, but there are issues that the border patrol doesn’t have performance measures and goals to define border security.
A: The problem is how you define border security. One way to look at it if we have more money for enforcement, is it better to invest in employment verification system or to hire more border patrol agents. I think you can begin with the things listed in 2007 bill: apprehensions, crime rates along the border, drug and contraband seizures. The notion of a trigger implies that you don’t get to these other things until X is met, but we have to look at the simultaneously.
Q: I agree—we need people to have a legal way to come and go, only the path to citizenship would be tied to that. GAO reported in 2009 that in some sectors increased apprehensions as success, and in some decreased apprehensions as success. If directed by Congress can we go back to what we were doing prior to 2010 to “Operational Control?”
A: I would suggest that we should not go back. We cannot have a one or two line description of border security. We want a safe and secure border with efforts that can be sustained.
10:43am: Sen. Cornyn (R-TX) begins questions.
Q: this is like déjà vu for a lot of us. I believe the reason immigration reform failed in 2007 is because the American people don’t believe that Congress actually intends to follow through on enforcement measures. Did you say that “the border is secure.”
A: I did, but the context is that the border is more secure now than ever before and the numbers are better than they have been in decades. But we have to build and sustain that.
Q: Refers to a GAO Report that says that the Texas border is nowhere near operationally secure. I do not believe that the border is secure and we have a long way to go. A recent report signaled that you failed to apprehend 39% of border crossers, is that a good record?
A: We know that border security is important and that we’ve done more in the last four years to deter traffic over the border. The main driver of unauthorized crossings is the ability to work—all of these things go together, we need employment enforcement to drive down crossers. Other students have shown that net migration is negative.

So, what was Sen. Cornyn referring to about a GAO report that says the Texas border is nowhere near “operationally secure.” Of course, Secretary Napolitano tried to use the goal of “operational control” at one time as the holy grail of border security. (Refer to my 2011 blog entitled, “Immigration Enforcement and the Goal of Operational Control - Are Utah's new laws the answer?”). A more recent GAO report (GAO 13-25) entitled, “BORDER PATROL Key Elements of New Strategic Plan Not Yet in Place to Inform Border Security Status and Resource Needs,” provides new insight on the alleged number of illegal entries to the United States and the ability of the Border Patrol to interdict them.
It is important to recognize that the starting point for the number of illegal entries to the United States is always a guess at best. Thus, the goal of 100% interdiction will always be unachievable without this base number. Let’s see what the report tells us though. The report states that:
Border Patrol apprehensions and estimated known illegal entries
decreased significantly across all nine southwest border sectors from
fiscal years 2006 through 2011, as shown in figures 24 through 32.
Apprehensions decreased by 46 percent or more across all the southwest
border sectors. Over this same time period, the number of estimated
known illegal entries also decreased by 28 percent or more across all
southwest border sectors. Apprehensions as a percentage of estimated
known illegal entries increased for six sectors over this time period.
A “known” illegal entry is defined as:
Border Patrol’s estimate of known illegal entries includes the number of illegal entrants who were apprehended as well as estimates of the number of entrants who illegally crossed the border but were not apprehended (individuals who either crossed back to Mexico—turn backs—or continued traveling to the U.S. interior and who Border Patrol ceased pursuing—got aways). These data are collectively referred to as known illegal entries because Border Patrol officials have what they deem to be a reasonable indication that the cross-border activity occurred.

Thus, based on the Border Patrol’s best guess, it appears there is a 28% reduction in estimated known illegal entries. In determining the number of “known” illegal entries, the Border Patrol relies on cutting sign in the dirt, cameras, visual observation, and credible sources. In some cases, the illegal entrant turns back across the border or gets away. The report includes estimates of “turn backs” and “got aways.” As to “got aways” it appears that most of the data is based on sign cutting. (Take a look at the book Cutting for Sign by William Langewiesche). In 2011 along the Texas border, the smallest number of “got aways” was in the El Paso Border Patrol sector while the largest was in the Rio Grande valley and the Big Bend (around 30%). At the same time, the largest number of turn backs was in Rio Grande valley.

On the port of entry front according to Customs and Border Protection (CBP) FY 2012 statistics, over the last four years, CBP focused on reducing barriers for fast, efficient, and secure travel to and from the United States. In FY 2012, CBP officers inspected more than 350 million travelers. At air ports of entry alone, CBP officers processed more than 98 million international travelers, an increase of more than 4 percent from fiscal year 2011, and a 12 percent increase since fiscal year 2009. CBP also processed more than $2.3 trillion in trade— a 5 percent increase over FY 2011— while enforcing U.S. trade laws that protect the economy, health and safety of the American people. CBP processed nearly 25 million cargo containers through the nation's ports of entry, up about 4 percent from last year. In addition, CBP conducted nearly 23,000 seizures of goods that violate intellectual property rights, with a total retail value of $1.2 billion, representing a 14 percent increase in value over FY 2011.
So our ports of entry are addressing increasing levels of inspections while Border Patrol is seeing fewer attempts to enter the United States illegally. According to the Congressional Research Service report dated January 6, 2012 entitled, “Border Security: Immigration Enforcement Between the Ports of Entry,” by Marc R. Rosenblum, “the only significant decrease in unauthorized migration appears to have occurred since 2007, and it is unclear how much of the drop-off is due to increased enforcement and how much is a result of the U.S. economic downturn and other systemic factors.” Mr. Rosenblum concludes in part that,
…Deciding how to allocate border resources therefore requires a clear definition of the goals of, border security. Zero admissions of unauthorized migrants may not be a realistic goal when it comes to migration control, as noted above, and may be a higher standard than is expected of most law enforcement agencies. Indeed, with estimated illegal inflows at or below estimated outflows (i.e., with no new net illegal migration) and few people with serious criminal records being apprehended, some people might describe the border as already being secure with respect to illegal migration under current conditions.

It is obvious that we have struggled for decades to address the conundrum of what constitutes “Border Security.” Here along the U.S. /Mexico border, the goal has usurped our federal judicial system resources with such projects as Operation Streamline. We need to have the fortitude to walk, talk, and chew gum (as politely as possible) and join the goals of border security with true reform of our immigration system. The two have never been stove-piped. The live symbiotically and until we address the two as they co-exist – we will never be giving the goal of border security, which includes economic security and the protection of civil rights, a decent chance at success. It isn’t just the got aways…

The Immigration Reform Saga – The Back of the Line and Secure Borders

Due predominantly to the Republicans poor showing in the recent election and the strength of the Hispanic vote, it appears that immigration reform legislation is on more than just life support. We have the bipartisan Senate principles announced on the 28th, the bipartisan business I-Squared Act of 2013 to be introduced today, and rumors of a group of bipartisan House members working on the completion of an immigration bill of their own in the next two weeks to try to introduce legislation before President Obama’s State of the Union address on February 12. Rep. Mario Diaz-Balart (R-Fla.) and republicans John Carter and Sam Johnson of Texas are supposedly members of this group along with Democrats, Zoe Lofgren of California and Luis Gutierrez of Illinois. The President’s speech today on immigration reform in Vegas may have been vague, but the fact sheet released from the White House contains some promising details. The President is even quoted as stating that:
“We can’t allow immigration reform to get bogged down in an endless debate.... And if Congress is unable to move forward in a timely fashion, I will send up a bill based on my proposal and insist that they vote on it right away.” http://tinyurl.com/bkq5fo6

What appears to have traction?

Enforcement – Increased Resources to Interdict Illegal Entry and to Track Overstays
Path to Citizenship for Undocumented Immigrants contingent on securing the border and tracking whether legal immigrants have left the country
Reform the Legal System
Create Effective Employment Verification System to end the hiring of unauthorized workers
Create a new system to allow employment of lower-skilled workers

See Senate principles attached.
Download Reform0128principlessenatefinal

For border residents, the Senate legislation outline proposes to create a Commission comprised of governors, attorneys general, and community leaders living along the Southwest border to monitor the progress of securing our border. Of course, we have been struggling for years to define what constitutes the acceptable level of control for our borders. Please refer to my earlier blog entitled, “So Where is the Border Security Goal Post.”

In addition, the Senate legislation outline notes that they want to impose exit-entry control as to all air and sea admissions to the U.S. Of course, the imposition of this goal in the land border context has been deemed to be implausible even by Department of Homeland Security representative. For background related to exit/entry control, please refer to Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).
Download 2007 usvist
Download 2007 usvist

Depending upon what definition is agreed to -- it could take generations to achieve this goal. The same conclusion is true as to the concept of those without legal status waiting at the “back of the line” until every individual already waiting in line for a green card (permanent residence) at the time of the legislation’s enactment acquires one. At present, some of the immigrant visa categories we have can wait over 50 years in line to be allocated an immigrant visa number. Please refer to the article at this link published by the National Foundation for American Policy
Download WAITING_NFAP_Policy_Brief_October_2011. We need to clear up the current backlogs for those immigrating lawfully to create a more realistic waiting line for those who might be able to file under a form of relief for those in undocumented status in the U.S. This point is addressed in the White House Fact Sheet as well as the Senate principles.

Some points of interest from the White House Immigration Reform Fact Sheet
Download White House CIR FactSheet–

• Five year phase-in of mandatory electronic employment verification with exemptions for certain small businesses.
• Mandate of a fraud resistant Social Security Card
• A labor law enforcement fund to help ensure that industries employing significant numbers of immigrant workers comply with labor laws.
• Allow children brought to the U.S. illegally who go to college or serve honorably in the Armed Forces for at least two years to be eligible for earned citizenship.
• Allow same –sex partners to serve as a relationship basis for family based immigration.
• Revise the current unlawful presence bars and provide a broader waiver.
• Eliminate annual country caps for employment based visas and add more visa numbers. Exempt certain employment based immigrant categories from annual numeric limits.
• Create a start-up visa for job-creating employers.
• For those in STEM fields obtaining a PhD or Master’s degree from a U.S. university who find jobs in the U.S. – simplify the path for permanent residence.
• Make the regional center investor program permanent.
• Create a new visa category for a limited number of highly-skilled and specialized immigrants to work in federal science and technology labs on critical national security needs after being in the U.S. for two years and passing rigorous background checks.

Who knows where this immigration reform merry-go-round will stop this time, but certainly cautious optimism may actually be merited. As Sen. McCain stated – ¡Vámonos! More to come.

DHS Starts New Provisional Waiver Process for Immediate Relatives March 4

On January 2, 2013, Department of Homeland Security (DHS) Secretary Janet Napolitano announced the posting of a final rule in the Federal Register that allows certain immediate relatives of U.S. citizens who are physically present in the U.S. to apply for a provisional unlawful presence waiver from within the U.S. See here for DHS’ announcement: http://tinyurl.com/amt4ygh. When DHS announced this potential change in the waiver process last January 2012, many applicants failed to appear for their immigrant visa interviews in the hope of using the new process. Now, those applicants can be expected to resurrect their applications.

BACKGROUND - Under the current law, immediate relatives of U.S. citizens (children, spouses, and parents) who are not eligible to adjust status in the U.S. to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the U.S. must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can to obtain an immigrant visa to return to the U.S. This process can take several months to a year or even longer.

NEW PROCESS - Under the new provisional waiver process, immediate relatives must still depart the U.S. for the consular immigrant visa process, however, they will be able to apply for a provisional waiver (only as to certain unlawful presence inadmissibility grounds) before they depart for their immigrant visa interview abroad and remain with their families in the U.S. while a decision on the waiver application is pending.

ELIGIBILITY - In order to be eligible to apply for the waiver under the new regulations, the applicant must be:

• An immediate relative of U.S. Citizen (spouse, child, parent);
• The beneficiary of an approved immediate relative petition;
• 17 years of age or old or older;
• Upon departure from the U.S. - will be subject to the unlawful presence ground of inadmissibility only. (If additional waivers for other grounds of inadmissibility are required, the applicant will not be eligible to use the provisional waiver process);
• Present in the U.S. at the time of filing the application for a provisional waiver and for biometrics collection at a USCIS Application Support Center;
• Has a case pending with the Department of State (DOS) based on the approved immediate relative petition and has paid the immigrant visa processing fee; and
• Meets the requirements for the waiver, except the foreign national applicant must show extreme hardship to his or her U.S. citizen spouse or parent.

In addition to these eligibility requirements, the Department of State must not have acted to schedule the immigrant visa interview for the applicant before the publication of date of the final rule in the Federal Register, which will probably be on or about January 3, 2012. Those ineligible to file under this rule may still be able to file a provisional waiver, for example, if a new I-130 relative petition is filed with USCIS by a different petitioner on their behalf.

EFFECTIVE DATE - The new process will become effective on March 4, 2013. The filing fee is $585 for the I-601A provisional waiver form. No filings will be accepted by USCIS before this date. The projected processing time for the waivers will be approximately four months.
See here for the final rule: http://tinyurl.com/as4fld8.