Social networking sites are not new to the U.S. government.  The U.S. Department of State has its own presence on the web through sites like Twitter, Facebook, Flickr and their own blog called DipNote, all of which provide the public with photos, news feeds and analysis of all matters related to U.S. foreign policy.   And of course, President Obama, whose use of social networking helped him ascend to the presidency, has stayed connected to the American people, by maintaining an active presence on numerous social networking sites, and with its own blog, featuring the latest news, remarks of the president, analysis on proposed legislation and promotion of the president’s broader agenda.

With so many challenges facing Americans today—from the current state of the economy, to our broken immigration system, to the wars and reconstruction in Iraq and Afghanistan—we all have a responsibility as members of a democratic society, to keep ourselves informed and to broaden our own perspectives by looking to a variety of sources of information.  These sites are only the beginning, but they can provide an important tool in understanding the issues facing our elected and appointed officials, and the policies they are implementing to meet our nation’s challenges.  Whether you visit these sites or prefer instead the feel of newsprint in your hands, I encourage you to read and stay engaged in the debate. There’s too much at stake not to.

            So far, immigrant advocates have been less than thrilled with the lack of attention they perceive the Obama Administration has paid to the issue of comprehensive immigration reform.  Indeed, the Administration’s focus, under the leadership of Secretary Napolitano, has been on border security and issues surrounding criminal and fugitive aliens, immigration detention centers, and the electronic employee verification system. Immigrant advocates have been frustrated by the administration’s relative silence as to how and when it will begin to embark on its promised overhaul of the entire immigration system and deal specifically with the millions of undocumented immigrants living and working in the U.S.

            But it’s not as if the President hasn’t had a few other items on his plate since taking office eight months ago.  The state of the economy, a Supreme Court nomination and confirmation hearing and now health care reform have all taken center stage and seemingly pushed the issue of immigration reform aside.  So the meeting and pep talk over which Secretary Napolitano and President Obama presided yesterday, was most likely reminder to its constituents –  those most immediately implicated by our nation’s immigration laws – that the administration hasn’t forgotten about the issue and that it’s still an important matter that it intends to address.

            The American Immigration Lawyers Association (AILA) issued a statement in response, applauding the “positive message” and “(looking) forward to the President’s and the Secretary’s leadership on this issue in the days ahead.”  Crystal Williams, AILA’s Acting Co-Executive Director who attended the meeting, stated, “I was pleased to hear of the Secretary’s intention to step up her leadership on immigration reform.  There cannot be effective enforcement of immigration laws until those laws are reformed to realistically address the needs of families, workers, and American business, and to promote our long-cherished values of fairness and due process.”

            Sen. Chuck Schumer (D-N.Y.) will apparently introduce and hold hearings on a major immigration bill this fall.  Needless to say, the country can look forward to more months of heated debates, town halls and public meetings as we venture from the contentious issue of health care reform to that of immigration.  Thus the madness continues….

            USCIS also announced that so far it has received 8,974 H-2B petitions for the first half of FY 2010.  It has approved 8,183 and 791 are pending.  On August 6, 2009, USCIS announced the reopening the FY 2009 H-2B filing period and immediately began accepting petitions.  Employers are reminded that H-2B petitions for FY 2009 must be received, evaluated and adjudicated on or before September 30, 2009.   Petitions received on or after Oct. 1, 2009, and/or requesting a starting date on or after Oct. 1, 2009, will be considered towards the fiscal year 2010 H-2B cap.

            As always, if you have questions about either the H-1B or H-2B visa programs, or other need other immigration-related information, Contact the Experienced Immigration Attorneys of Garg & Associates, PC in Houston, Spring and The Woodlands, Texas and Long Beach, California.

            According to the Secretary’s announcement, “the present immigration detention system is sprawling and needs more direct federal oversight and management. While ICE has over 32,000 detention beds at any given time, the beds are spread out over as many as 350 different facilities largely designed for penal, not civil, detention.”  The secretary also noted that ICE employees are not the ones running these facilities.  Instead, detention operations are handled by county authorities or private contractors, making the entire system very ad-hoc, inconsistent, and lacking in effective oversight.

            Through these reforms, ICE will move away from the present decentralized, jail-oriented approach to one designed for and based on ICE’s civil detention authorities.  Over the next several years, ICE will design facilities located and operated specifically for immigration detention purposes, and address specific detention issues in need of reform:  detainee access to medical care, overall conditions of custody, and ICE oversight of the detention system.

            Effective immediately, the following steps will be implemented:

·         The Creation of an Office of Detention Policy and Planning (ODPP), the function of which will be to plan and design a civil detention system tailored to ICE’s needs.

·         Hiring an expert in healthcare administration and an expert in detention management to staff the ODPP.

·         Hiring a medical expert to provide an independent review of medical complaints and denials of requests for medical services.

·         Recruiting and hiring 23 ICE detention managers to work in 23 significant facilities –facilities which collectively house more than 40 percent of our detainees.

·         Establishing of an Office of Detention Oversight (ODO) within the Office of Professional

Responsibility (OPR) to ensure agents and personnel have better access to facilities to conduct routine and random inspections more frequently.

·         Forming two advisory groups of local and national organizations interested in ICE’s detention system to provide feedback and input to the assistant secretary – one focusing on general procedures, and the other on healthcare.

            Additional details on the roles and responsibilities of the Office of Detention Policy and Planning, the Office of Detention Oversight and the Office of Professional Responsibility within the context of the Department’s proposed reforms, can be found here.

            If you or someone you care about is detained by ICE, contact an immigration attorney to find out your rights while in detention and any potential avenues for relief from removal.  The Immigration Attorneys of Garg & Associates, PC in Houston, The Woodlands, Texas and Long Beach, California can assist you in protecting your rights and obtaining the relief you desire.  Contact us for a Consultation.

            The usual adjudication time frame for H-2B petitions is 60 days. However, because H-2B petitions for these 2009 visas must be received, evaluated, and adjudicated on or before the fiscal year deadline of Sept. 30, 2009, USCIS cannot guarantee approval of any H-2B petition on or before that date. The USCIS is therefore advising employers to file as soon as possible and to request premium processing which allows for expedited adjudication in approximately 15 business days.

            To qualify for one of the remaining H-2B visas, employers must:

·         Submit a Form I-129 Petition for a Nonimmigrant Worker to USCIS with supporting documents, and the corresponding approved Alien Employment Certification from the U.S. Department of Labor (DOL) that is valid for the entire employment period stated on the petition.

·         The petitioner must also indicate an employment start date before Oct. 1, 2009.

            Petitions received on or after Oct. 1, 2009, and/or requesting a starting date on or after Oct. 1, 2009, will not be accepted for the 2009 fiscal year, but instead will be considered towards the fiscal year 2010 H-2B cap.

            The H-2B program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers. Typically, H-2B workers fill positions in occupational areas such as education, construction, health care, landscaping, manufacturing, food service/processing, and resort/hospitality services.

            Employers seeking to take advantage of the reopening of the 2009 H-2B quota should contact an experienced immigration attorney to assist in the process of filing the petition on time and according to USCIS and DOL laws and guidelines.  Contact the Immigration Attorneys of Garg & Associates in Houston, The Woodlands, Texas and Long Beach, California for more information or to schedule a Consultation.  

Section 244(b)(1) of the Immigration and Nationality Act (INA) authorizes the DHS Secretary, after consultation with appropriate agencies of the government, to designate a foreign State and its nationals for TPS.  TPS is an immigration status granted to eligible nationals of certain countries for a specific period.  During this period, TPS beneficiaries are eligible to remain in the United States and may obtain work authorization, so long as they continue to meet the terms and conditions of their TPS status. Unlike other forms of temporary relief, the granting of TPS does not lead to permanent resident status.  When the Secretary terminates a country’s TPS designation, beneficiaries must return to the same immigration status they maintained before TPS, unless that status has since expired or been terminated.  In the event their prior status has expired, or they were out of status, they must return to their country of origin.

Somalia’s Initial Designation for TPS

On September 16, 1991, the Attorney General initially designated Somalia for TPS due to ongoing armed conflict and extraordinary and temporary conditions within the country. The Attorney General has since extended TPS for Somalia nine times, determining in each instance that the conditions warranting the designation continued to be met.

On September 4, 2001, the Attorney General re-designated Somalia for TPS, again, based on ongoing armed conflict and extraordinary and temporary conditions within Somalia, which had worsened. Since that date, the Attorney General and the Secretary of Homeland Security have extended the TPS designation of Somalia six times based on determinations that the conditions warranting the designation continued to be met.

Current Humanitarian Conditions in Somalia

Somalia remains in a state of turmoil, brought upon by the lack of central government; a crippled economy, the absence of or destruction of civil institutions and infrastructure; and generalized insecurity in the form of banditry, kidnapping, looting, revenge killings, targeted assassinations, suicide car-bombings, and inter-clan fighting.  Humanitarian efforts have been hindered by routine, targeted attacks on humanitarian workers countrywide.  In 2007, 6,500 civilians were killed. An additional 2,136 civilians were killed in the first half of 2008. Almost 750,000 people fled Mogadishu to escape the fighting between April and July 2008. Between January and August 2008, the number of people in need of humanitarian assistance increased 77 percent, from 1.8 million to 3.2 million people. The intensifying conflict, drought, increased food prices, the targeting of humanitarian workers, and growing piracy off the Somali coast have exacerbated the humanitarian toll on the Somali people.

            Eligibility for Temporary Protected Status – Somalia

An alien who is a national of a country (or alien having no nationality who last habitually resided in that country) designated for TPS is eligible to apply for TPS benefits if he or she:

·         Can establish the requisite continuous physical presence and continuous residence in the U.S. as specified by each country’s designation;

·         Is not subject to one of the criminal, security-related, or other bars to TPS; and

·         Timely applies for TPS benefits.  In addition, if the DHS Secretary extends TPS designation beyond the initial designation period, the beneficiary must timely re-register to maintain his or her TPS benefits under the TPS program.

·         An alien is not eligible for TPS if he or she:

o   Has been convicted of any felony or two or more misdemeanors committed in the United States;

o   Is a persecutor, or otherwise subject to one of the bars to asylum; or

o   Is subject to one of several criminal-related or terrorism-related grounds of inadmissibility for which a waiver is not available.

For more specific information relating to TPS eligibility, or for other immigration-related issues, contact the experienced immigration attorneys of Garg & Associates for assistance.

About ten years ago, the BIA first took up the issue and rejected the suggested classification in its precedent decision, Matter of R-A, 24 I&N Dec. 906 (BIA 1999).  Later, then-Attorney General Janet Reno vacated the decision and directed the BIA to stay reconsideration so that the Immigration and Naturalization Service could publish its proposed rules on the issue of asylum and withholding of removal in the context of domestic violence.  Fast-forward ten years, several Attorneys-General, more reviews and remands later, and still no regulations published, the issue has remained unresolved.

            The latest DHS brief, however, signals a shift in a positive direction for victims of domestic violence seeking asylum in the U.S.  While the DHS ultimately rejects the respondent’s articulation of her particular social group classification (as “Mexican women in an abusive domestic relationship who are unable to leave”); it does put forth two alternative definitions it believes provide an acceptable framework in which to analyze these types of asylum claims.  The DHS states that the applicant’s posited definition fails because it basically defines this particular group solely by the persecution suffered or feared by that group, a formulation the DHS believes is flawed as impermissibly circular.  Instead, the DHS suggests that “the particular social group in asylum and withholding claims based on domestic violence is best defined in light of the evidence about how the respondent’s abuser and her society perceive her role within the domestic relationship.” A group so-defined might be described as “Mexican women in domestic relationships who are unable to leave” or “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.” 

In order to be eligible for asylum, an applicant must establish that he or she has been persecuted or has a well-founded fear of suffering future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. Of the five protected grounds, “particular social group” has always been the hardest for the courts to define.  Several years ago, then-Judge Samuel Alito remarked in Fatin v. INS, “…read in its broadest literal sense, the phrase is almost completely open-ended.  Virtually any set including more than one person could be described as a ‘particular social group.’”  Nevertheless, the courts have managed to define at least the general contours of the phrase.  Persecution on account of membership in a particular social group means persecution that is directed toward an individual who is a member of a group of persons who share a common, immutable characteristic, i.e., a characteristic that is either beyond the power of the individuals to change, or is so fundamental to their identities that they should not be required to change it.  Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 1999). 

            Anyone seeking asylum under the social group classification, as an individual who has suffered from domestic violence will still have to meet the other qualifications for asylum.  It won’t be enough just to show that abuse has occurred.  All asylum applicants must demonstrate either that the abuse suffered rises to the level of persecution, or that they have a well-founded fear of suffering future persecution; and that there is nowhere else within their country of origin, that they can retreat in order to avoid such persecution.  The requirement of a well-founded fear of persecution means that the individual is subjectively afraid and that the fear of persecution has a basis in objective facts that show there is a realistic likelihood he or she could be persecuted upon return to his or her country of origin.  Guevara-Flores v. INS, 786 F.2d 1242, 1249 (5th Cir. 1986).  The persecution must also be motivated by a protected characteristic. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). 

            A copy of the DHS brief can be found here.  For more information about asylum, withholding of removal, and other forms of humanitarian relief available to immigrants, contact the Immigration Attorneys of Garg & Associates in Houston, Westchase, Spring and The Woodlands, Texas.

            All sarcasm aside, employers are of course required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.  Employers should take the necessary steps to ensure the work eligibility of their employees and keep up-to-date and accurate records of each employee’s identification and proof of proper work authorization.  The settlement reached between Krispy Kreme and ICE may not seem like such a harsh penalty (much less, incentive not to hire illegal workers) for this well-established franchise, but thousand-dollar or more fines could have significant financial impact on smaller businesses in the U.S. if/when they are sanctioned for immigration violations. 

            If you would like further information and the rights and responsibilities of employers and employees and I-9 compliance, please contact the Employment Immigration Attorneys of Garg & Associates, PC for assistance.

People Resolved to Obtain an Understanding of Democracy Act, or PROUD Act (H.R. 2681)
Introduced by Rep. Baca (D-CA) on 06/03/09
Summary: Would amend the Immigration and Naturalization Act to provide for the naturalization of certain graduates of U.S. high schools who are under 25 years of age on the date of application for naturalization.

Employee Verification Amendment Act of 2009 (H.R. 2679)
Introduced by Rep. Giffords (D-AZ) on 06/03/09
Summary: Would amend the Illegal Immigration Reform and Immigrant Act of 1996 to extend the employment eligibility confirmation pilot programs (which includes the E-Verify basic pilot program) until September 30, 2014..

Reuniting Families Act (H.R. 2709)
Introduced by Rep. Honda (D-CA) on 06/04/09
Summary: Would amend the Immigration and Nationality Act (INA) to promote family unity, and for other purposes. Specifically, the bill would establish the fiscal year worldwide level of employment-based immigrants at 140,000 plus: (1) the previous year’s unused visas; and (2) the number of unused visas from FY1992-FY2007.  It would also expand the fiscal year worldwide level of family-sponsored immigrants to 480,000 plus unused visas from previous years.  Most significantly, it would amend the INA’s definition of “immediate relative” to: (1) mean a child, spouse, or parent of a U.S. citizen or lawful permanent resident (and for each family member of a citizen or resident, such individual’s accompanying spouse or child).  In the case of a petition filed on behalf of a parent, the citizen or permanent resident must be at least 21 years old.  The bill would also amend the INA allow for petitions filed by and on behalf of “permanent partners.” 

Criminal Alien Accountability Act (H.R. 2837)
Introduced by Rep. Issa (R-CA) on 06/11/09
Summary: Would amend section 276 of the Immigration and Nationality Act (pertaining to re-entry after removal) to impose mandatory sentencing ranges with respect to aliens who reenter the United States after having been removed, and for other purposes.

Orphans, Widows, and Widowers Protection Act (S. 1247)
Introduced by Rep. Menendez (D-NJ) on 06/11/09
Summary: This would amend the INA to allow widows or widowers of U.S. citizens who had been married less than two years upon the death of the U.S. citizen spouse to petition for permanent resident status upon showing by a preponderance of the evidence, the marriage was entered into in good faith and not for purpose of obtaining immigration benefits.

H.R. 2954 (Sorry, no clever title to this one)
Introduced by Rep. Quigley (D-IL) on 06/18/09
Summary: To amend the INA to extend the authority of the Secretary of Homeland Security to waive certain requirements under the visa waiver program for an additional 2 years.

Filipino Veterans Family Reunification Act of 2009 (S.1337)
Introduced by Rep. Akaka (D-HI) on 06/24/09
Summary: A bill to exempt children of certain Filipino World War II veterans from the numerical limitations on immigrant visas.

            While the above-referenced bills all tackle issues which need to be addressed (some more than others), there are numerous other areas – potentially more contentious – which nevertheless require the attention of our elected leaders.  In my estimation, these should include:  an honest reassessment of the employment-based visa numbers available with a goal towards backlog reduction and elimination; further employment-based visa reforms which include an expansion of temporary work visas in the (H-1B, H-2B and H-2C categories) or in the alternative, a revamping of these categories to allow for employment of “essential workers” in industries in which such workers are in highest demand; and finally, a long-term solution to deal with the fate of the 11+ million undocumented individuals in the U.S.   I encourage you to read the text of these bills and write to your elected representatives to voice your opinion.  For a link to these, and other bills go to http://thomas.loc.gov/.  And for more information about immigration law and procedures in the U.S. and questions about a specific case, contact the Immigration Attorneys of Garg & Associates in Houston, Westchase, The Woodlands and Spring, Texas and Long Beach, California for a consultation. 

            The U.S. government enacted the Trafficking Victims Protection Act (TVPA) in 2000 as an initial step to define the problem and outline proposed strategies to combat human trafficking.  The purpose of the law is to punish traffickers, protect victims, and prevent trafficking from occurring.  The TVPA defines “severe forms of trafficking” as:  a) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age; or b) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

·         Sobering Statistics

            The International Labor Organization (ILO)—the United Nations agency which addresses international labor standards, employment, and social protection issues—estimates that there are over 12 million adults and children in forced labor, bonded labor, and commercial sexual servitude at any given time. Of these victims, the ILO estimates that at least 1.39 million are victims of commercial sexual servitude, both transnational and within countries.   Victims come from all over the world, and many end up right here in the United States.  The majority of victims – 56 percent – are women and girls.  Human traffickers prey on the weak, targeting vulnerable men, women, and children by using creative methods to trick, coerce, and win the confidence of potential victims.  Most often this involves promises of a better life through employment, education, or marriage.  Another unfortunate aspect of trafficking is the role of parents in allowing their children to become victims.  In some situations, the parents are victims as well, tricked into giving up their children in servitude with promises of a better life, school or other opportunities.  But in many situations, parents play a more sinister role, selling their children into prostitution or involuntary servitude in order to repay their own debts.  The report stresses the importance of local law enforcement in combating this part of the problem and notes that several countries have begun taking steps to criminalize such actions of parents.  Albania, for example has made it a crime for a parents to force their children into begging.

·         Public-Private Initiatives

            On a more positive note, the report also highlights several Public-Private Sector Partnerships in which corporations are working with government agencies and NGOs to enact targeted strategies to deal with different aspects of human trafficking.   For example, the Wyndham Hotel Group has joined efforts with the non-profit agency Polaris Project to provide free rooms to victims of trafficking.  LexisNexis (a legal database and search engine) has partnered with the U.S. National Human Trafficking Resource Center to create a national database of social service providers.  And Microsoft has partnered with several non-profit agencies in Asia to provide technical training to individuals in underserved communities, enabling those individuals to find legitimate sources of employment, thus lessening their vulnerability to trafficking.  Microsoft also provides training to law enforcement agencies on computer-related crimes in which many traffickers target children online.   

·         U.S. Immigration Law – Protection to Victims of Trafficking

            Under the Immigration and Nationality Act (INA), victims of trafficking can be eligible for immigration benefits.  The T nonimmigrant status (also known as the T visa) was created to provide immigration protection to victims of a severe form of trafficking in persons. The T visa also allows victims to remain in the United States and assist federal authorities in the investigation and prosecution of human trafficking cases.  Those who have been granted T-1 nonimmigrant status may eventually file for permanent residency provided certain conditions have been met.  Applicants must have been physically present in the United States for either a continuous period of at least three years since the first date of admission as a T-1 nonimmigrant; or for a continuous period during the investigation or prosecution of acts of trafficking, and the Attorney General has determined the investigation or prosecution is complete, whichever period of time is less.  In addition, individuals must have been a person of “good moral character” since admission as a T-1 nonimmigrant.  Finally, applicants must have complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking since first being admitted as a T-1 nonimmigrant, or else show that they would suffer extreme hardship involving unusual and severe harm upon removal from the United States.

            For more information about T Visas and other forms of humanitarian immigration benefits or questions about immigration in general, contact the experienced immigration attorneys of Smith & Garg in Houston, The Woodlands and Spring, Texas or Long Beach, California for further assistance.