John Valdez’s Legal Blog

For as long as I have been practicing, the Immigration Service has been faulted for failing to utilize up-to-date technology.  Antiquated computers, software, and high technology systems have certainly contributed to long processing times on immigration applications.  Faced with increased criticism for its failure to keep up with 21st century technology, to its credit, the immigration agencies have made some significant technological improvements.  A number of applications may now be submitted online,  INFOPASS, a new online appointment process, has significantly reduced the wait time at immigration offices, and the Premium Processing Program provides nearly instant feedback via email on pending applications. 

The results of immigration technology upgrades are uneven.  While the above-noted upgrades have produced some positive results, there are still large backlogs of cases causing very slow processing in general.  Even PERM, the new online labor certification process, has now slowed tremendously.  Where I once saw PERM cases completed in a couple of days, I am now seeing processing times of several months.

Other areas of modernization related to immigration enforcement are also less than perfect.  There is really no word on when a border fence will be completed, and there is certainly no guarantee that it will ever be completed or will be effective.  The E-Verify program likewise is not perfect.  This program provides an electronic system verification of work authorization that links databases of the USCIS and Social Security Administration and provides electronic feedback to employers.  Numerous cases of errors have been reported in the system, which have caused serious problems for individuals facing inaccurate reports of their ineligibility to work. 

I believe that the immigration agencies will make technological advancements that will improve their effectiveness, but there will always be problems areas.  We, the immigration attorneys at Smith & Garg, PC can help make your immigration experience as smooth as possible, under any circumstance.       

Few people realize just how complicated it is for employers to sponsor valuable employees for a green card.  For most employers, they must go through a three part process:  First, file a labor certification application.  Second, if the labor certification application is approved, file an immigrant visa petition.  Third, if there are available immigrant visas, file an application for adjustment of status or, if outside of the U.S., an application for a permanent resident visa at a U.S. Consulate.  This blog focuses on just the first step, the labor certification process. (There are cases where labor certification is not required for an employment-based green card, but that will be the subject for a future blog)

Before a labor certification can be granted, the employer must demonstrate that there is not a qualified, willing, and able U.S. worker (hereinafter referred to as a “qualified U.S. worker”) available to fill the position that the employer would like to give to a foreign national.  If this situation can be shown, and the foreign national is qualified to fill the position, the labor certification application may be certified and the process can move forward to the next step in the green card process. 

To demonstrate the lack of qualified U.S. workers, the employer must demonstrate that it advertised for the position, but the advertisement did not result in an application from a qualified U.S. worker willing to take the job.  Normally, there are several advertisements required in different mediums.  The employer is also responsible for providing notice of the labor certification application to the applicable union, or if there is no union, to the employer’s workers.  The process has many requirements, such as the employer’s assurance that it will pay the prevailing wage for the position. 

The labor certification process was developed to insure that when a foreign worker gains U.S. permanent residence through a job offer, it is not at the expense of a U.S. worker qualified for the position.  Thus, the system’s goal is to protect U.S. workers, and it relies on the employer’s good faith efforts to find a qualified U.S. worker. 

In practice, the labor certification process is deeply flawed.  Employers often have a difficult time understanding the rules.  For example, a labor certification application cannot be filed if there is an available U.S. worker who has the “minimum” “objective” qualifications for the position, such as, for example, a certain bachelor’s degree and two years of experience.  The process does not allow the employer to consider such factors as a terrible personality, or a prior employer’s recommendation not to hire the person.   Thus, the process often does not allow for real or normal business recruitment practices.

While the labor certification process is complex and difficult to apply for most employers, the lawyers at Smith & Garg, PC are very good at guiding employers, within the rules, to complete the process.  If you are considering sponsorship of a foreign worker, please contact us for a professional consultation.

On September 27, 2008, the House of Representatives passed Senate Bill 3606, which cleared the Senate on September 26, 2008.  This Bill extends the Special Immigrant Nonminister Religious Worker Program, which provides a pathway to U.S. permanent residence to nonminister religious workers.  The program was due to expire on October 1, 2008.  The President is expected to sign the Bill into law.

This is very good news for religious workers, especially for those who already have pending applications for permanent residence but were uncertain if they would ever receive a green card because of the expiring law.  The extension is, however, a short one.  Congress has only extended the religious worker law to march 9, 2009.

It appears that Congress granted only a short extension of the religous worker law because it wants to see if the Department of Homeland Security can takes sufficient measures to reduce the instances of fraud in the Program.  The USCIS has published reports of high instances of fraud in religous worker applications.  To reduce fraud, Senate Bill 3606 includes the following new provisions:

• The issuance of final regulations, within 30 days of the passage of the Act, to eliminate or reduce fraud;
• Certification to Congress and public notice in the Federal Register that these regulations have been issued; and
• Not later than March 9, 2009, submission of a report to Congress on the effectiveness of the regulations.

In the past, the USCIS has been very slow to publish needed regulations in a variety of immigration areas.  I hope that it will pass the religious worker fraud provisions quickly, as required by the Congressional mandate.  If it does not, the Program might not receive another extension.   

For the time being, there is considerable uncertainty for many religious workers seeking green cards.  The Immigration and Nationality Act, under Section 203(b)(4), permits professional religious workers and other religious workers in a religious vocation or occupation to apply for an immigrant visa.  Unfortunately, this law is due to expire (also known as “sunset”) on October 1, 2008. 

On September 19, 2008, the USCIS sent out an interoffice memorandum specifying how it will handle religious worker immigrant visa petitions under the expiring law.  If the law is not renewed by Congress on October 1, 2008, the USCIS will reject new immigrant visa petitions from that date on.  For those with immigrant visa petitions approved prior to October 1, 2008, but who still have pending applications for adjustment of status or visa applications at a U.S. Consulate, the government will hold the applications in abeyance, without approving them.  The USCIS will likely wait for Congress to make a decision on extending the religious worker law before making a final decision on the pending application.

Congress has let the religious worker law sunset many times in the past, only to extend it later, so the sunset is not unusual; but it is unfortunate, since many religous workers will undoubtedly feel substantial stress until Congress acts.  Also, the adjudication process will grind to a halt while Congress delays action.    The sunset will not affect Ministers, who may continue to seek green cards.

If you are a religious worker and want to apply for a green card, please contact us.  We have extensive experience in this area.

Come November, we will know who our new President will be.  Will the new President push through immigration reform? I believe there will be a breakthrough, regardless of whether McCain or Obama wins the election. 

McCain has championed immigration reform in the past, and will again in the future.  He was the co-author of a comprehensive immigration bill that was initially passed by the Senate, but later defeated after a battle in the  House and unsuccessful attempts to repackage it.  Remarkably, the other principal author was Ted Kennedy, a very liberal democratic Senator.  The fact that McCain was willing to reach across the aisle to work with Ted Kennedy suggests that immigration reform is an important matter to him.  During the race for President, McCain has backed away from his support for the failed immigration bill, and he has increasingly spoken about an enforcement-first approach to immigration reform.    To me, his backtracking is likely a symptom of his overriding desire to be President.  I think that if he wins, he will start to speak his mind again, and that means he will push for immigration reform, including a path to citizenship for the 12-15 million undocumented. 

Obama has a pro-immigrant mentality.  He worked on comprehensive immigration reform in the Senate.  He also was a co-author of a Dream Act bill, which I believe should be one of the first bills passed by Congress next year.  The Dream Act is legislation that would provide a path to citizenship for individuals who came to the United States as children and now want to attend college, enlist in the military, or do community service work.   Many people come to the United States at the age of one or two and don’t even know they are not citizens until they are refused entry into college or turned away from a  job opportunity because of their undocumented status.  It seems extremely cruel to me, but these young people usually have no way to gain legal status.

Obama recently answered an immigration questionnaire in which he unequivically announces his support for immigration reform.  He states on his answers that he would “make it a top priority in my first year as president.  Not just because we need to secure our borders and get control of who comes into our country.  And not just because we have to crack down on employers abusing undocumented immigrants.  But because we have to finally bring the 12 million undocumented out of the shadows.” 

Being an eternal optimist, I have great hope that these elections will finally result in an administration and Congress that can improve the lives of undocumented immigrants in the United States, so that they will not have to hid from the authorities, tell their children they have no future, or suffer from the social stigma of being undocumented, when their only crime was escaping poverty to improve their lives, and the lives of their children.  The passion that both Obama and McCain have shown in the past for immigration reform, as well as others, such as Senator Kennedy, provides some evidence that my optimism is not unfounded.