Immigration Blog

The lame-duck Republican Congress did not completely ignore immigration in its last days.  Congress passed measures to 1) extend a program that offers 500 non-immigrant visas for nurses working in medically unserved areas, 2) extend a program that placed American-trained foreign physicians in medically unserved areas, and 3) broaden the categories of athletes elible for the non-immigrant performer (P) visa.  Congress was not so positive on employment issues such as raising the H-1B and employment-based immigrant visa quotas, failing to address these items altogether.  Much remains to be achieved in 2007.  We'll soon see if the new Democratic leadership is up to the task.

 

The unauthorized practice of law has long been a problem in the area of immigration, but it is a problem that is beginning to receive greater attention by the state of Tennessee.  Because much of immigration is form-based (though the forms alone are rarely adequate!), many people mistakenly think that preparing and submitting immigration forms does not encroach upon the practice of law.  Tennessee state law defines the "practice of law" as "the appearance as an adovcate in a representative capacity OR the drawing of papers, pleadings, or documents in connection with proceedings pending or prospective before any court, ... OR ANY body, board, committee, or commission constituted by law..." (emphases added).  Violations concerning the unauthorized practice of law are punishable by fines up to $10,000 per violation, as well as attorney's fees and costs.  Such lawsuits can be brought by both the state attorney general and by private citizens.  The purpose of unauthorized practice of law statutes is the protection of the public against inappropriate advice, defective paperwork, and the loss of legal rights resulting from unqualified advocates.  If you have been the victim of unauthorized practice of law or know of its existence, you can report such activities either to the local bar association or directly to the state attorney general's office.

 

As I previously indicated in the Immigration News section, U.S. Citizenship & Immigration Services is in the process of making fundamental changes to the naturalization process--the process by which one becomes a naturalized U.S. citizen.  These changes will be significant, including increases in fees, changes to filing procedures, and changes to testing procedures.  Persons considering naturalization are highly encouraged to do so before these changes are put in place to avoid higher costs, likely delays, and the uncertainty of the new process.  One of the major changes is the standardization of the examinations required for citizenship.  USCIS has posted the questions they are using in a pilot program of the new examinations on the USCIS website.

 

Yesterday I was among a small group of local immigration lawyers that lunched with Prakash Khatri, the Department of Homeland Security's Ombudsman for U.S. Citizenship & Immigration Services.  The role of the Ombudsman is to identify and and offer solutions to problems within the immigration agency, which means that Mr. Khatri is a busy man.  Mr. Khatri asked us to offer our perspectives on the most pressing problems we face as immigration lawyers.  I expressed to Mr. Khatri that without a doubt the biggest problem that East Tennesseans face in dealing with USCIS is the fact that all Tennessee residents are required to travel all the way to Memphis to visit the immigration office.  The hardship this places on East Tennesseans is tremendous:  a thirty-minute interview in a marriage or naturalization case requires either a 14+ hour drive or a $500+ plane ticket and a rental car.  The distance makes attorney representation at the interview cost-prohibitive in almost all cases.  And in light of the fact that there are three USCIS offices closer by half (Charlotte, Atlanta, Louisville), it simply makes no sense for East Tennesseeans to be traveling to Memphis.  Mr. Khatri indicated he would look into the issue.  I hope this is one of the problems he is able to resolve.

 

U.S. Citizenship & Immigration Services has announced that it is testing a new format for the examinations taken in the naturalization process.  The new test will feel less like a historical trivia game and test more on concepts such as, What is democracy? and What do the Bill of Rights do?  In addition, the English-language exam will include civics-related vocabulary.  The new exams will be tested in ten USCIS offices around the country on a voluntary basis.  Full implementation is scheduled to begin in 2008.  On another note, fees for naturalization are expected to increase significantly in the near future.  Persons considering U.S. citizenship are advised to apply soon to avoid increased costs and the uncertainty of the new examination requirements.

 

For several months I have been advising clients that the results of this week's mid-term elections would be very important for the chances of any type of comprehensive immigration reform in the near future.  Well--good news!  Most observers (like the Miami Herald) agree that the mid-term elections were a resounding defeat of immigration restrictionists and restrictionist policy.  As tracked by immigration2006.org (see previous post), immigration moderates won 12 of 15 races where immigration was used as a key campaign issue.  Noteworthy defeats include two immigration hardliners in Arizona.  Just as important, if not more so, exit polling indicates that 73% of Hispanics voted for Democratic candidates, a gain of nearly 20 percentage points from the 2004 election.  The defeat of immigration restrictionists and the massive loss of Hispanic voters is sure to get the attention of House Republicans who rejected a comprehensive reform bill this year.  The odds are much better today for a comprehensive solution to immigration in the new congress.

 

Immigration has been hotly debated this year, greatly due to the fact that 2006 is an election year. A new website, Immigration2006.org, launches today with the purpose of observing the true impact that the immigration issue has on local and national elections. As described by its creators: "Immigration burst onto the political scene in 2006. While there are many forces at work that will shape the election outcome, the issue that could fundamentally realign politics is immigration. Immigration2006.org has been formed to bring together well known pollsters and policy thinkers who have been following how the immigration issue is playing in races across the country. Immigration2006.org will: analyze the impact of immigration on bellwether races at the state and federal level in the 2006 cycle; assess implications for legislation as the issue plays out in Congress in 2007; evaluate the short and long term implications of anti-immigrant platforms impact on the Latino vote; and offer insights on the political and demographic fallout of immigration on the 2008 election." I will certainly be following this website, as I know first-hand that the outcome of this year's elections will have incredibly significant ramifications for millions of immigrants.

Persons filing immigration applications need to be more certain than ever of the consequences of such filings before they file in the wake of a September memo from U.S. Citizenship & Immigration Services.  The memo, titled "Disposition of Cases Involving Removable Aliens," provides guidance to USCIS officers when reviewing applications of persons who are not currently in a lawful immigration status.  The American Immigration Lawyers Association urges that "caution should be exercised ... with respect to a pending I-130 petition for classification in the family preference categories where the alien beneficiary is not in status.  There is increasing concern that USCIS will be devoting attention to the status issue when reviewing these petitions and that they may ... elect to issue an NTA."  In other words, petitions filed when no relief is available are likely to result in removal proceedings before an immigration court.  If there is any question at all as to maintenance of status, you should consult with an immigration lawyer before submitting any paperwork to USCIS.

 

With Congress taking October off to campaign for November elections, this Congressional session comes to a close without having meaningfully addressed the immigration question.  Despite a presidential proposal, a comprehensive Senate bill, and summer-long hearings by Republicans in the House of Representatives, the cumulative result is essentially this:  permission to build a 700 mile fence along one-third of the U.S. - Mexico border.  Congress doesn't know how much it will cost to build 700 miles of fencing, however, so in reality the U.S. is only going to get as many miles as $1.2 billion can afford.  No progress made on the undocumented population.  No progress made on a guestworker program.  No progress made on skilled workers.  No progress made on creating a reliable verification system.  In other words, Congress did again what it often does:  pass its problems on to the next guy.  The issue is not going away.  As local and state governments rachet up the pressure, the federal government will eventually have to face reality and make some real decisions.  Maybe next year.

 

A Nashville city councilman has introduced a bill that would make English the official language of Davidson County and impose an English-only language requirement for city functions.  The Tennessean reports on the possible challenges to such a bill as identified by Nashville's Metro legal department.  The legal opinion concludes that English as an official language measures are generally not problematic, while English-only requirements are much more susceptible to a variety of legal challenges.

 

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