Archive for April, 2011

USCIS Restores H-1B Cap Exemption to Some Nonprofit Entities Affiliated with Institutions of Higher Education

April 25, 2011

On March 16th, the day before residency match positions were announced within the medical community, USCIS restored, as an interim policy, the H-1B cap exemption status for nonprofit entities that are related to or affiliated with an institution of higher education, provided the institution received a cap exemption after June 6, 2006. While the interim policy affects all institutions and their H-1B employees, it positively and disproportionately affects thousands of foreign national physicians, including medical residents and fellows. USCIS emphasized that cases must be filed with proof that a cap exemption was previously granted by filing copies of petitions and approval notices. It also stressed that these measures will only remain in place on an interim basis while the entire policy is being reviewed.

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Will Same-Sex Married Couples Soon Receive Immigration Benefits? Not for Now…

April 20, 2011

In February, President Obama and Attorney General Eric Holder announced that they would not continue to enforce the Defense of Marriage Act (DOMA) because they believe it to be unconstitutional. DOMA, passed in 1996, defines marriage for all federal purposes as the legal union between one man and one woman. Obama and Holder determined that the law, since it treated people differently based upon sexual orientation, must be able to withstand a heightened standard of constitutional scrutiny, not the relatively lower “rational basis” test that has been used in the past. The Administration found that the law could not withstand constitutional scrutiny under this higher standard and therefore violates the Constitution’s guarantee of equal protection under law. Regrettably, at least for now, the Administration’s announcement does not translate into any new immigration benefits for  same-sex couples.

For a brief period in March, same-sex couples thought immigration options were opening up to them, only to have their hopes dashed. Following the Obama/Holder announcement, USCIS and DOJ were reportedly holding in abeyance all enforcement and benefits processing for individuals who may have a claim to immigration benefits if DOMA were no longer law. After only one week of this presumed policy shift, USCIS released a statement that it would not hold same-sex marriage cases, and that agency would continue to process these petitions in accordance with DOMA.

In response to this latest development, a group of some 80 organizations urged DHS, in an April 6th letter, to adopt interim measures to prevent immediate and irreparable harm to American families caused by its continued adherence to DOMA.  Then, on April 14th, Representatives Nadler, Lofgren, and other members of Congress formally re-introduced the Uniting American Families Act (UAFA), a bill that would give immigration benefits to the same-sex spouses of U.S. citizens.

However, for now, the reality for same-sex, bi-national couples has not changed. USCIS will deny green-card petitions filed by U.S. citizens for their same-sex spouses, and it will take years for their appeals to reach federal courts.  Keep an eye on this dynamic and important area of law as the fight over the future of DOMA continues.

 

Connecticut Court Protects H-1B Employee from Wrongful Arrest: States that Regulation Extending Work Authorization based on Timely Filed Extension Implicitly Extends Authorization to Remain in U.S.

April 19, 2011

A federal district court in Connecticut ruled that the government may not arrest an H-1B employee for whom a timely filed extension application remains pending. U.S. District Judge Janet C. Hall in El Badrawi v. United States found that a federal immigration regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications and that that authorization is part of their authorization to be in the country, not a separate matter. “The government’s proposed interpretation of the work authorization regulation . . . that it extends authorization to work in the country, but not authorization to be in the country,” held Judge Hall, “cannot be squared with the text or purpose of that provision. . . .” Judge Hall also found that the government’s proposed interpretation of the regulation at issue raises grave due process concerns. “The government has argued that. . .an alien who has filed a timely application for extension may remain in the country, but if he does, the government has discretion to arrest, detain, and remove him. There is a serious question as to whether this interpretation is consistent with the Fifth Amendment’s Due Process Clause.”  Had the government provided clear, advance notice of the risk of detention, the court may have ruled otherwise.

The plaintiff, a medical researcher from Lebanon, was in valid H-1B status when his employer timely filed an H-1B extension. USCIS never adjudicated the petition and refused to respond to requests for information. Nearly seven months later, with the case still pending, Immigration and Customs Enforcement (ICE) agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months. He sued the government for false arrest and abuse of process.

The court concluded that permitting the initiation of removal proceedings during this period would thus be unfair.

Connecticut Court Protects H-1B Employee from Wrongful Arrest: States that Regulation Extending Work Authorization based on Timely Filed Extension Implicitly Extends Authorization to Remain in U.S.

April 19, 2011

A federal district court in Connecticut ruled that the government may not arrest an H-1B employee for whom a timely filed extension application remains pending. U.S. District Judge Janet C. Hall in El Badrawi v. United States found that a federal immigration regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications and that that authorization is part of their authorization to be in the country, not a separate matter. “The government’s proposed interpretation of the work authorization regulation . . . that it extends authorization to work in the country, but not authorization to be in the country,” held Judge Hall, “cannot be squared with the text or purpose of that provision. . . .” Judge Hall also found that the government’s proposed interpretation of the regulation at issue raises grave due process concerns. “The government has argued that. . .an alien who has filed a timely application for extension may remain in the country, but if he does, the government has discretion to arrest, detain, and remove him. There is a serious question as to whether this interpretation is consistent with the Fifth Amendment’s Due Process Clause.” Had the government provided clear, advance notice of the risk of detention, the court may have ruled otherwise.

The plaintiff, a medical researcher from Lebanon, was in valid H-1B status when his employer timely filed an H-1B extension. USCIS never adjudicated the petition and refused to respond to requests for information. Nearly seven months later, with the case still pending, Immigration and Customs Enforcement (ICE) agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months. He sued the government for false arrest and abuse of process.

The court concluded that permitting the initiation of removal proceedings during this period would thus be unfair.

Victory for Equal Justice and the Rule of Law: Court of Appeals Enjoins Enforcement of Ari zona’s Anti-Immigrant Law (SB 1070)

April 18, 2011

On April 11, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction against key and controversial provisions of Arizona’s SB 1070, the law enacted nearly one year ago that requires police to demand proof of immigration status from anyone who they have a “reasonable suspicion” of being in the country illegally. The court thus denied Arizona’s appeal of a U.S. district court’s July ruling that prevented segments of the law from going into effect because it was likely that the law violated the U.S. Constitution. Moreover, and significantly, the decision signals that the appeals court believes that the Department of Justice (DOJ) is likely to succeed in its challenge to the law’s constitutionality.

SB 1070 is the draconian state immigration law that was signed into law on April 23, 2010, after Arizona state legislators argued that they needed their own immigration enforcement tools to stem the tide of undocumented immigration into the state. Federal efforts, the state argued, were not enough. The law immediately sparked nationwide boycotts and protests as an unconstitutional attempt to usurp the federal government’s right to enact and control immigration law and as a way to set the stage for abusive and illegal police activity, including profiling. DOJ sued and won an injunction on June 29, 2010, the day before the law was originally set to go into effect.

In its ruling, the Ninth Circuit rightly rejected Arizona’s claim that state police have “inherent authority” to enforce federal immigration laws; in fact, the court held that Arizona’s attempt to drive immigrants from the state interferes with the federal government’s exclusive authority to enforce immigration law. Congress, the court held, intended state officers to “aid in immigration enforcement only under the close supervision of the Attorney General,” which was not the case here. The court also recognized that the SB 1070 has negatively impacted U.S. foreign relations and reflects the dangers of allowing states to enact a patchwork quilt of conflicting laws and regulations. In the immediate aftermath of SB1070’s enactment, a number of states considered or introduced copycat bills, but most states have now backed away from these measures.

While the fate of SB 1070 is likely to be decided by the Supreme Court, for now the court’s decision is a victory not only for the Obama Administration in its ongoing effort to halt the Arizona law, but also for equal justice and the rule of law.

Victory for Equal Justice and the Rule of Law: Court of Appeals Enjoins Enforcement of Arizona’s Anti-Immigrant Law (SB 1070)

April 18, 2011

On April 11, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction against key and controversial provisions of Arizona’s SB 1070, the law enacted nearly one year ago that requires police to demand proof of immigration status from anyone who they have a “reasonable suspicion” of being in the country illegally. The court thus denied Arizona’s appeal of a U.S. district court’s July ruling that prevented segments of the law from going into effect because it was likely that the law violated the U.S. Constitution. Moreover, and significantly, the decision signals that the appeals court believes that the Department of Justice (DOJ) is likely to succeed in its challenge to the law’s constitutionality.

SB 1070 is the draconian state immigration law that was signed into law on April 23, 2010, after Arizona state legislators argued that they needed their own immigration enforcement tools to stem the tide of undocumented immigration into the state. Federal efforts, the state argued, were not enough. The law immediately sparked nationwide boycotts and protests as an unconstitutional attempt to usurp the federal government’s right to enact and control immigration law and as a way to set the stage for abusive and illegal police activity, including profiling. DOJ sued and won an injunction on June 29, 2010, the day before the law was originally set to go into effect.

In its ruling, the Ninth Circuit rightly rejected Arizona’s claim that state police have “inherent authority” to enforce federal immigration laws; in fact, the court held that Arizona’s attempt to drive immigrants from the state interferes with the federal government’s exclusive authority to enforce immigration law. Congress, the court held, intended state officers to “aid in immigration enforcement only under the close supervision of the Attorney General,” which was not the case here. The court also recognized that the SB 1070 has negatively impacted U.S. foreign relations and reflects the dangers of allowing states to enact a patchwork quilt of conflicting laws and regulations. In the immediate aftermath of SB1070’s enactment, a number of states considered or introduced copycat bills, but most states have now backed away from these measures.

While the fate of SB 1070 is likely to be decided by the Supreme Court, for now the court’s decision is a victory not only for the Obama Administration in its ongoing effort to halt the Arizona law, but also for equal justice and the rule of law.


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