Dear Readers:

This has been one of the busiest times in my seventeen years in immigration practice while we are in the middle of the Senate’s consideration of one of the most sweeping immigration bills in the nation’s history.  

We were expecting an immigration bill that largely resembled last year’s S.2611 which the Senate passed with 62 out of 100 votes. Sure, we expected some concessions to hardliners on issues like triggers before certain parts of the bill took effect (for example, hiring certain numbers of Border Patrol officers before a legalization program for illegal aliens kicked in). We expected a "touchback" provision and substantial fines in exchange for legalization. But this bill has many more changes that we were not expecting. For one, it scraps many green card categories – all of the employment-based green card categories, several family categories and the green card lottery – for a Canadian-style points system. Unfortunately, the US is not Canada and the proposal is deeply flawed both technically and substantively. Did Congress really mean to make it easier for a bachelors level junior engineer to get priority over a Nobel Laureate or Academy Award winning director? Did they really mean to scrap the category for doctors who spend five years working in severe physician shortage areas? The bill now has a provision that will make H-1B filing fees soar to $8000+ each time a case is filed. The guest worker program that is supposed to ensure we don’t have a flow of illegal immigration in the future has a dopey provision that requires a worker to go home for a year every two years. As an employer, your biggest headache is turnover and this bill now institutionalizes it.  

I could go on, but it would be too depressing. In this week’s issue, I’ve included my list of a dozen problems that need to be fixed in the bill before passage. Fortunately, there are some extremely bright and pragmatic folks on the House side working on their immigration reform bill and we expect some of the dumber aspects of the Senate bill to be taken out. And there are some good parts in the bill such as the now much more workable legalization program. My good friend Nolan Rappaport, the former minority counsel on the House Immigration Subcommittee, and I are claiming credit for the probationary program to kickstart legalization that we suggested in an article we wrote earlier this year which has circulated around Capitol Hill. We have nothing to prove the idea was based on our proposal, but, hey, we’ll grab credit where we can. You can read that article at http://www.ilw.com/articles/2007,0314-rappaport.shtm.  

If you want to keep up with the changes, you might read the Section by Section summary I’ve written and which is linked on the front page of our site at www.visalaw.com. I also am commenting frequently on amendments and the behind the scenes politics at my ILW blog at http://blogs.ilw.com/gregsiskind/ as well as my blogs on our web site at http://www.visalaw.com/blogindex.html.  

As if the legislation in Congress weren’t enough to give you anxiety, two regulatory developments this week are cause for serious concern.  

First, USCIS ignored the warnings of the House Immigration Subcommittee and issued massive fee increases for most types of applications. USCIS promises they’re just raising fees to finally deliver on providing decent customer service and processing times. But this sort of reminds me of Charlie Brown, Lucy Van Pelt and a certain football. The cynical side of me says that USCIS’ secret hope is that if they raise fees high enough, they’ll cut down on the workload. The supercynical side of me says that the doubling of the naturalization fees to $675 is designed to cut down on new voters who tend to vote Democratic. I’m just saying….  

Another troubling change is the release of a final rule on labor certifications from the Department of Labor. The DOL is about to bar substitution of aliens in labor certification cases. The point of a labor certification is for an employer to document that it has recruited to fill a position and that no Americans are immediately available to fill the position at the prevailing wage. If an alien suddenly is not available and an employer has to line up someone else, why should the employer NOT be able to rely on that same expensive and time consuming recruiting effort. The DOL says that it’s goal is to prevent fraud because some employers have been caught selling labor certifications. But this is a crime and that’s why we have criminal laws. If an employer is not committing fraud and there is a legitimate reason for substitution, it should be allowed.  

Another doosie in the DOL regs is the bar on employees paying the legal fees in a labor certification case. Again, DOL’s explanation is that this is designed to prevent fraud. But they present no evidence that there has been fraud except to say that if the employer is paying the fee, then they would be aware that an application is being filed on their behalf. A very crooked lawyer – now in jail – was prosecuted for filing bogus labor certifications where employers were in the dark that they were being filed. But, again, this practice is already a felony and there is no evidence presented on why this regulation is needed. More importantly, it appears to violate several constitutional principles including the right to counsel, interfering with interstate commerce, and interference with the right to contract. The American Immigration Law Foundation is expected to file for a temporary restraining order to prevent this regulation from going in to effect before the July effective date and we’ll let you know how that goes.  

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In firm news, we bid goodbye to attorney Bryant Stevenson is leaving the legal profession to return to his native Alabama and join his family real estate business. We will miss Bryant and wish him the best of luck.  

We also welcome Leslie Phelps, a new paralegal in our Memphis office who comes to us from the international students office at the University of Houston . We’re glad to be getting someone with her in depth experience on academic immigration issues. Welcome Leslie!  

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Finally, as always, if you are interested in becoming a Siskind Susser Bland client, please feel welcome to email me at gsiskind@visalaw.com or contact us at 800-748-3819 to arrange for a telephone or in person consultation with one of our lawyers.

Kind regards,

Greg Siskind

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