Meyers & Meyers, PLLCAlbany NY Business Attorneys | Saratoga Real Estate Lawyers | Schenectady Immigration Law2024-03-29T07:54:55Zhttps://www.meyersandmeyers.com/feed/atom/WordPress/wp-content/uploads/sites/1603231/2020/05/og-image-75x75.jpgOn Behalf of Meyers & Meyers, PLLChttps://www.meyersandmeyers.com/?p=481082024-03-28T18:54:04Z2024-03-28T18:54:04Z[1] Furthermore, the case law to date has been very clear: there is no judicial review over an embassy’s or consulate’s decision to deny a visa (or, indeed, over almost any other action by the consulate in adjudicating a visa application).[2] Yes, you read that right. Case law refers to this as the “doctrine of consular nonreviewability.”[3] In 2015, the Supreme Court affirmed this notion that there is no judicial review of the denial of a visa because, according to the Court, an individual abroad (or the U.S. citizen petitioner that may have sponsored the individual abroad, e.g., a relative of that individual) does not have a Fifth Amendment right of due process.[4]
Enter the 9th Circuit Court of Appeals. In Muñoz v. United States Department of State,[5] the 9th Circuit Court of Appeals, in a broad decision that gave attorneys hope that there was now a chink in the government’s armor, held (a) that a U.S. citizen possessed a protected due process liberty interest in her noncitizen husband’s immigrant visa application, (b) that a declaration by a consular officer denying the immigrant visa application because of noncitizen's gang membership contained sufficient information connecting the reason for the denial with the cited statute of inadmissibility, (c) that, in a matter of first impression, due process requires that the U.S. government to provide its citizens with timely and adequate notice of a decision to deny a visa, and (d) the failure to provide timely notice of the factual basis for a visa application denial precluded the application of doctrine of consular nonreviewability.
Suffice it is to say, the government was not happy with the 9th Circuit’s decision, and then made an application for a writ of certiorari with the Supreme Court, which was granted, in part. The questions being presented to the Court are whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the U.S. citizen and, assuming there is a constitutional interest, whether then notifying a visa applicant that they were deemed inadmissible under the law suffices to provide any process that is due.[6]
This is pretty big in my opinion, because as you might imagine, it’s a pretty awful (and, as a lawyer, embarrassing) conversation we occasionally have to have with our clients when we tell them that consular officials essentially have unfettered discretion to review visa applications.[7]
I have seen many examples of well-documented cases that are denied for reasons not completely known to me. I’ve seen sophisticated and confident individuals who have completely unraveled in an intimidating consular interview setting, only to have their case denied. With no recourse at the consular level or in the Courts, clients are left to scratch their heads at a process sometimes referred to as “consular absolutism”. Perhaps now the tides are changing. I, for one, will be keeping an eye on the Supreme Court. Oral argument is scheduled for late April, 2024. Stay tuned.
[1] INA §104(a) specifically provides as follows: “The Secretary of State shall be charged with the administration and enforcement of the provisions of this chapter … relating to … the powers, duties and functions of diplomatic and consular officers of the United States except those powers, duties and functions conferred upon the consular officers relating to the granting or refusal of visas.”
[2] This would not be the case if the issue were before U.S. Citizenship and Immigration Services (“USCIS”). Let me tweak the facts. Let’s say your client is applying for a visa, and the consular official determines that because of something your client did in his or her past (e.g., an arrest, etc.), your client is not eligible for a visa without first receiving a waiver of inadmissibility from USCIS. You thereafter apply for that waiver with USCIS, and that application is denied. Here, you can appeal to the Administrative Appeals Office (“AAO”), and perhaps thereafter up the chain of federal courts if you’re not successful in that venue.
[3]Lihua Jiang v. Clinton, 08-CV-4477, 2011 WL 5983353 (E.D.N.Y. Nov. 23, 2011), citing Al Makaaseb Gen. Trading Co., Inc. v. Christopher, No. 94-CV-U79 (CSH), 1995 WL 110117 (S.D.N.Y. Mar. 13, 1995).
[4]Kerry v. Din, 576 U.S. 86 (2015).
[5] 50 F.4th 906 (9th Cir. 2022).
[6] The Supreme Court declined to address the question of whether, assuming that a constitutional interest exists and that citing the law is sufficient standing alone, due process also requires the government to provide a further factual basis for the visa denial “within a reasonable time,” or else forfeit the ability to invoke consular nonreviewability in court.
[7] There certainly are some (very few) regulatory opportunities to request that a denied application be reviewed by the consular officer’s superior, but very rarely, if ever, will that change the result.]]>On Behalf of Meyers & Meyers, PLLChttps://www.meyersandmeyers.com/?p=481072024-03-01T15:24:36Z2024-03-01T15:24:36ZU.S. Citizenship and Immigration Services (“USCIS”), during the FY2024 registration process, there were more than 780,884 registrations filed with only 110,791 selections (for a total of 85,000 H-1B visas numbers that are ultimately available). Of the 780,884 registrations filed, 408,891 were determined to be for individuals on whose behalf multiple employers submitted a registration, a 147% increase in multiple registrations from the prior fiscal year.
These numbers show two things: the current H-1B system does not meet the demand of employers who legitimately need qualified workers (whether foreign or not). It also shows that the H-1B registration system was subject to abject exploitation. USCIS finally stepped in and retooled the process.
On January 30, 2024, USCIS announced a series of changes that are intended to strengthen and improve the FY2025 H-1B registration system and cap filing season. At its core, USCIS is implementing a “beneficiary centric” selection process for H-1B registrations. What does this mean? With the original version of the H-1B electronic registration system, USCIS conducted H-1B selections based on the pool of individual registrations that employers submitted for beneficiaries. The new system, however, is based on selecting unique beneficiaries (i.e., the “beneficiary centric” system).
Under the new system, USCIS will require that each foreign national provide a prospective H-1B employer with a valid passport number (or a number from another valid travel document). Different from prior years, this year any number of employers can submit H-1B registrations on behalf of an individual beneficiary. And, most importantly, if the foreign national is selected, he or she can then choose, if more than one employer filed for him or her, which employer he or she will work for.
As you can see, rather than having the H-1B selection process be based on the number of submitted employer H-1B registrations, as it was under the original system, USCIS will now be running its lottery based on the number of unique “beneficiary” filings.
After the H-1B selection process is completed, USCIS will notify all of the employers who submitted registrations for a particular beneficiary that their registration for that beneficiary was selected and that they are then eligible to submit an H-1B petition for the beneficiary during the 90-day filing period (generally starting on April 1).
As noted above, in creating a “beneficiary centric” system, USCIS is (interestingly) allowing more than one employer to file an H-1B petition for a selected beneficiary. In doing so, not only will USCIS receive additional filing fee income (that subject will be considered in a separate article about USCIS’s recent fee increases),[1] but USCIS will also adjudicate each petition and, regardless of the order in which each H-1B petition was filed or approved, the beneficiary may then choose to commence work under any of the approved petitions. That’s quite a change (and candidly, it’s “employer-beware” in this situation)![2]
The registration period for the H-1B cap season opens at noon Eastern Standard Time (EST) on March 6th, 2024 and remains open until noon EST on March 22nd, 2024. We’ll see how it goes. I am cautiously optimistic. (Famous last words.)
[1] USCIS also announced a new final rule regarding the fees for registration. For FY2026, the H-1B registration fee will rise to $215.00. Applicants submitting paperwork this year, however, can still do so for just $10.00.
[2] I can envision scenarios where multiple employers invest significant resources (i.e., time and money) in a foreign national who then ultimately decides to work for some other employer. Despite concerns expressed by stakeholders that USCIS should notify all employers who were filing registrations for a selected individual, USCIS ultimately declined, indicating that it was a matter for the employer and employee to deal with amongst themselves.]]>On Behalf of Meyers & Meyers, PLLChttps://www.meyersandmeyers.com/?p=481052024-01-31T18:40:25Z2024-01-31T14:38:43ZSaratoga Today, reporting that the Northern Border Regional Commission (“NBRC”), a federal-state partnership for economic and community development within the most distressed counties of Maine, New Hampshire, Vermont, and New York, launched their J-1 Visa Program. The program is designed to make quality healthcare accessible to rural and medically underserved areas across, for our purposes, upstate New York and the North Country. This is actually a pretty big deal, and I would argue that it did not get nearly the attention it deserved.
A little background. The J-1 exchange visitor visa category is very broad (i.e., it has fifteen [15] subcategories like, e.g., interns or trainees, physicians, camp counselor, au pairs, summer students in the travel/work program, etc.). One aspect of the J-1 visa category, which is unique from other nonimmigrant visa categories, is that some people who are admitted under it are subject to what is called a “two-year foreign-residency requirement”.[1] The two-year foreign-residency requirement can be triggered in several ways including, for purposes of this discussion, if the individuals who entered the United States on the J-1 visa obtained medical training in the United States.
Fortunately, there is the ability to obtain a “waiver” of the two-year foreign-residency requirement, but it’s not always that easy to do and, for international medical graduates, it can be extremely complex.[2] Although there are five (5) types of waivers that are available for J-1 exchange visitors, for international medical graduates, generally speaking they (with the assistance of their future employer) will be making an application (1) to an “Interested Government Agency” (“IGA”), where they will endeavor to show that the J-1 exchange visitor's departure from the United States would be detrimental to one of its programs or that the exchange visitor's stay in the United States is vital to one of its programs (the rationale being that it is in the public interest to have the exchange visitor remain in the United States), or (2) to one of the several types of federal, state, or what are called “Conrad 30” programs for foreign medical graduates, where here, the NBRC is acting as an agency interested in facilitating the foreign medical graduate’s employment in a federally designated “Health Professional Shortage Area” (“HPSA”) or a Medically Underserved Area (“MUA”).[3]
So, why is this so important? Because, quite candidly, the areas where these foreign medical graduates would need to practice are incredibly underserved by medical professionals.
In order to be eligible for the waiver in a federal, state, or what is called a “Conrad 30” program, generally the foreign national must agree to be employed full time (as an H-1B nonimmigrant worker) at a health care facility located in an area designated by U.S. Department of Health and Human Services (“HHS”) as a HPSA, MUA, or a Medically Underserved Population (“MUP”). At this point, the NBRC is limiting its waiver recommendations for physicians who will practice primary medical care (including general or family practice, general internal medicine, pediatrics, or obstetrics and gynecology), in a designated primary care HPSA or designated MUA or psychiatric care in a designated Mental Health Professional Shortage Area.
When you combine the general need in these medically underserved upstate New York areas with what our overall society is dealing with with the pandemic still in our rear view mirror, e.g., chronic stress of adults and children, the economy and concerns about our financial well-being, ongoing global crises (both far from and at our own borders), to name just a few among so many other stressors in our daily lives, the NBRC’s new J-1 visa program is (if it’s utilized properly) a big win for the communities being served by the NBRC and the foreign nationals who received their medical education here in the United States.
New York State, and historically and more specifically, New York City, has long been the preferred destination for new immigrants to the United States. Although immigrants no longer need to pass through Ellis Island to lawfully enter the country, many still come to our shores and settle downstate. The NBRC’s new J-1 visa program will (we hope) contribute to mitigating the shortage of qualified health care professionals in rural upstate New York, and generally even promote much-needed immigration to these same communities.
[1] This basically means that someone subject to this requirement must reside and be physically present for a total of two (2) years in either his or her country of nationality or country of legal permanent residence before he or she becomes eligible to change to certain other nonimmigrant visa categories (e.g., H-1B specialty occupation worker) or before obtaining permanent residency (i.e., getting a green card).
[2] There are so many discreet practice areas in the immigration law, and physician immigration is a specialty all unto itself.
[3] The other bases for applying for a waiver are (a) showing exceptional hardship to U.S. citizen or lawful permanent resident (LPR) spouse or child, (b) persecution or (c) a no objection statement from the foreign national’s home government (the latter, though, not being an option for international medical graduates).]]>On Behalf of Meyers & Meyers, PLLChttps://www.meyersandmeyers.com/?p=481012023-12-22T11:16:35Z2023-12-22T11:16:35ZU.S. v. Minter, No. 21-3102, 2023 WL 5730084 (2d Cir. Sept. 6, 2023), a decision which “could” benefit some immigrants who have New York state convictions relating to the sale or possession of a “narcotic drug.”
What is a narcotic drug? “Narcotic drug” is a term used in New York law, and it refers to a list of drugs that New York state has designated as “narcotic drugs”, such as cocaine and heroin. (In New York, “narcotic drugs” do not include “cannabis,” “stimulants,” “hallucinogens,” or another category of drug.) In Minter, the defendant had been charged with selling a narcotic drug, and more specifically, cocaine.
So, what did the Court hold? In sum that certain New York convictions for possession or sale of a "narcotic drug" will no longer be deportable or disqualifying drug crimes for immigration purposes.[1] This is potentially huge for some (but not all) individuals with certain New York “narcotic drug” convictions that may now be able to reopen and have dismissed old deportation orders, or defend against the government’s attempt to remove them if they are now currently in removal proceedings. In addition, some individuals who had their applications for permanent residence (i.e., a green card) or naturalization denied because of a New York “narcotic drug” conviction may now be eligible.
The only way to know for sure whether a conviction was for sale or possession of a “narcotic drug” is to identify the exact New York criminal statute an individual was convicted under. It’s not enough for some to say that he or she was convicted of a felony under whatever the name of the statute is. Many (if not most) laws have multiple sections in them, and the “crimmigration” law will not necessarily have the same adverse consequence for each section. One would need to review the criminal court documents and, potentially, the immigration case documents and decisions too.
And I cannot stress enough that the analysis above needs to be done. Not everyone will benefit from this decision, and there are enormous risks for someone to seek relief based on this decision who is not qualified for it (e.g., having their motion denied or, worse, being put on Immigration & Customs Enforcement’s (“ICE”) radar, potentially exposing themselves to arrest, detention and even removal).
There’s a lot going on in the world of immigration, and if you read the headlines, you’ll agree that not all of it is good. Every once in a while, though, there’s good news to report, and this is such an instance.
[1] More specifically, the Court held that selling cocaine, in violation of N.Y. Penal Law § 220.39(1), is not a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e) because “New York’s definition of cocaine is categorically broader than its federal counterpart.” Slip Op. at 3. Specifically, federal law “prohibits possession of only optical and geometric isomers of cocaine, while New York’s statute prohibits possession of all cocaine isomers.” Slip Op. at 5 (emphasis in original).]]>On Behalf of Meyers & Meyers, PLLChttps://www.meyersandmeyers.com/?p=479422023-10-18T15:34:04Z2023-10-17T20:49:48ZRemote Work and Covid-19
There should be no debate from anyone that the Covid-19 pandemic fundamentally transformed the way people work. As businesses worldwide rushed to adapt to the crisis, remote work became the norm. Now, as the world steadily recovers from the pandemic, the remote work landscape continues to evolve.
I remember the Friday that then-Governor Cuomo told all non-essential employers (which our firm was not one of) they had to go fully remote. My IT “department” (which consists of me and my next-door neighbor from growing up) got everyone organized (amazingly) in a matter of hours so my staff and I could work fully remote. (I also need to give a shout out to two of my sons for setting up a home office for me to work out of on our third floor, which was used for about 40 minutes the following Monday morning. Then I went back to the office, by myself.)
People clearly have their opinions as to whether remote work is good, bad or something in between. In my opinion, there’s no right answer. For lawyers, it’s what works for you and your firm. I have a colleague that has not been in the office for over two years now. Yet she gets her work done, returns her phone calls, and responds to clients’ emails. I have another colleague who generally works from home, comes in for appointments when needed, goes to Court in person if required, but otherwise comes into our physical office on weekends to catch up. Again, he gets his work done, and is responsive to clients’ needs in the moment.
There’s no right or wrong solution here. It’s what works for you and your team. We get together as a firm from time to time, generally for an office dinner or the like. But as far as our day-to-day work, it’s what works for all of us, as a team and individually, that matters the most to me.
Hybrid Work Models
One of the most prominent changes in the post-Covid remote work landscape is the rise of hybrid work models. Many companies have embraced the idea of allowing their staff to split their time between working in the office and remotely. This approach offers greater flexibility and accommodates employees' diverse needs and preferences. For some, it's a return to normalcy; for others, it's an entirely new way of working. I’m all for it.
Remote Work and Immigration
In the world of employment-based immigration, and particularly for employers who have workers on temporary visas like the H-1B and the L-1, remote work has also left its mark. While U.S. Citizenship and Immigration Services (“USCIS”) tried to adapt to the changing landscape of the Covid-19 pandemic by allowing for more location flexibility and onboarding flexibility during the hiring process, challenges and complexities persist. Employers and nonimmigrant visa holders must navigate these changes carefully, lest a foreign worker find him- or herself out of status with no easy options to thereafter remain in the United States.
For example, if working in a remote location would be considered a material change in a nonimmigrant worker’s position or duties, then the employer would need to file an amended H-1B or L-1 petition with USCIS to update USCIS regarding the changes. Filing an amended petition enables USCIS to decide whether the employee qualifies for the nonimmigrant status under the new terms of employment.
For H-1B workers, the analysis of whether an amended is required because of a change of work location is a little more complicated. Under the law, if an H-1B worker changes work locations in such a way that it does not result in a material change in his or her position or duties, and the H-1B worker will be working in the same “metropolitan statistical area” (MSA) as the original work location, then all the employer must do is post a “notice” at the new worksite (including a home worksite) before the individual can commence his or her work in the new location. No amended H-1B petition is required.
However, if the H-1B worker’s change in work location (even changing from working at the office to working to home) will result in the H-1B worker performing work at a worksite outside of the same MSA as the location indicated on the employer’s original H-1B petition, then the employer must file an amended H-1B petition with USCIS before the individual can commence work in the new location.
During the pandemic, there were also issues for L-1A workers, whose jobs require that they manage a team or significant function at the U.S. office, and L-1B workers, where the employer must continue to ensure that the L-1B’s specialized knowledge continues to be integral to their U.S. position, even when working remotely.
Wellness and Mental Health
Remote work, while offering flexibility, has also brought new challenges, particularly regarding employee well-being and mental health. Many employees have reported feeling isolated, stressed or burnt out while working remotely. In response, companies are focusing on strategies to support employee mental health, such as offering mental health resources and encouraging work-life balance. This is absolutely necessary.
Going Forward
The remote work revolution has undoubtedly left its mark on certain U.S. nonimmigrant visas, particularly the H-1B and L-1 visas, and will continue to do so going forward, whether you like it or not. While USCIS has tried to adapt to the changing landscape by allowing for more location flexibility and temporary adjustments, challenges and complexities persist. Employers and their foreign worker employees must navigate these changes very carefully, ensuring compliance with ever evolving immigration regulations.
The post-Covid remote work landscape is marked by adaptation, innovation and a renewed focus on employee well-being. As companies (and law firms) navigate these changes, it's essential to strike a balance between flexibility and the traditional office or firm structure. Recent history suggests that all of this is very necessary, and possible.]]>On Behalf of Meyers & Meyers, PLLChttps://www.meyersandmeyers.com/?p=479402023-09-07T20:02:11Z2023-09-07T20:02:11Zsignificant influx of migrants (“migrants” being the common reference in the mainstream media to individuals crossing, primarily, our southern border). This has come to be either because migrants pine to go there due to the diversity and economic opportunity it offers, or, more currently, because southern governors (and the federal government) are moving migrants from our southern border across the country, including to New York City. With the significant influx, New York City Mayor Adams has taken steps to relocate many of them to our upstate communities.
With this as the backdrop, New Yorkers need to show empathy and pragmatism.
We should all want comprehensive and fair immigration reform to fix the broken system we now have, including what’s happening at our southern border. This includes our government making difficult decisions as to who to allow into the United States while individual asylum applicants wait for their claims to be adjudicated by U.S. Citizenship and Immigration Services (“USCIS”) and, importantly, what those individuals can do while they wait.
For those individuals who have made it into the United States, and perhaps are waiting for legal assistance, or having found some, waiting for “their day in court”, it seems to me that the federal government (i.e., the Executive Branch and Congress) should be doing all that it can to put migrants to work while they’re waiting for “their day in court”. By doing so, these individuals can meaningfully contribute to our nation’s economy and, at the same time, help employers, in New York and across the country, find qualified workers for jobs where there are known shortages of U.S. workers.
With a steady influx of migrants seeking a chance for a better life, the federal government, New York City, and indeed all New York communities, need to strike a balance between the need to fairly and compassionately enforce federal immigration policies against upholding our State’s and country’s humanitarian values.
Expediting immigrants’ ability to lawfully work in the United States is an excellent place to start. By doing so, migrants would be allowed to timely and meaningfully contribute to our local workforce which, any reasonable person or employer will tell you, is absolutely necessary. In doing so, migrants can also gain a sense of dignity, self-sufficiency and belonging while the federal government adjudicates their applications for asylum. New York City and the entire State (speaking selfishly) will also gain a stronger and more diversified workforce.
As immigrants share their diverse skills, perspectives, and life experiences, New York businesses can harness this diversity to drive innovation and growth. Integrating immigrant labor can help bridge the gap that many industries are facing as significant labor shortages persist. By expediting work applications for employment authorization, the federal government can ensure that New York City, our upstate communities, and indeed employers across the country, have access to the talent they need to thrive.
Finally, a welcoming environment for immigrant workers would establish NYC and all of New York State, as an even greater global hub for talent, in all sectors of the State’s economy.
For these measures to be effective, collaboration between the State of New York and the federal government is paramount. While employers in communities throughout New York State can provide immigrants with the jobs they want and need, it is up to the federal government to perhaps create a new basis for migrants to start working in the U.S. during these very challenging times, or minimally create a mechanism to expedite work authorization applications for those asylum applicants who are eligible to apply for work authorization or have already applied.
Creating a new and/or simplified and efficient work authorization application process can better ensure that migrants can begin contributing to society without unnecessary delays. We might also consider assessing migrants’ skills so they can be matched with industries facing labor shortages so we can maximize their potential impact on our economy.
The migrant crisis is a challenge that requires strategic and compassionate solutions. By expediting immigrants’ applications for permission to work, the federal government can address both the labor shortage and the needs of migrants seeking refuge. This approach can also contribute to our state and country’s economic growth and upholds the principles of inclusivity and diversity that help to define the United States.]]>On Behalf of Meyers & Meyers, PLLChttps://www.meyersandmeyers.com/?p=479392023-07-31T22:09:27Z2023-07-31T22:09:27ZAmerican Immigration Council (“AIC”), more than one in five people in Florida are immigrants. Despite that the immigration law is a federal law, lawmakers in the Sunshine State often propose (and recently enacted) their own state laws related to immigration, and most recently, regulating the rights of immigrants within the state.
Two recent (and notorious) examples of Florida legislation targeting immigrants include FL 264, which law imposes significant nationality-based restrictions on the ownership of property by individuals from “foreign countries of concern”[1], and FL 1718, which law restricts the ability of undocumented individuals to live and work in Florida.[2]
While both laws are atrocious, from a purely “humanitarian” perspective, I am going to focus on FL 1718 in this missive.
FL 1718 criminalizes the simple act of transporting undocumented immigrants across state lines into Florida. The law also bars non-citizens from using valid driver’s licenses within the state of Florida that were lawfully issued in other states. The law also impacts an undocumented immigrant’s ability to seek medical care, requiring both hospitals and health care workers to report a patient’s immigration status if they are using Medicare. Talk about a creating chilling effect on an undocumented immigrant’s access to health care?[3]
Now, some facts. According to the AIC, (1) immigrants make up 29% of the healthcare workforce in Florida, (2) at least one in seven K-12 teachers and teaching assistants were immigrants in Florida, (3) immigrants make up at least one in six social workers and mental health counselors in Florida, and (4) over 40,000 undocumented immigrants make up 3.1% of all students in Florida’s colleges and universities, including 8,000 DACA-eligible individuals who represented 0.6% of the state’s college students.
By some estimates, approximately 900,000 people are undocumented in the Sunshine State. Florida ranks among the top five states in the country in terms of the undocumented agricultural worker population. Without undocumented workers, the Florida Policy Institute suggests that the very industries that employ the most undocumented workers (e.g., construction, agriculture, retail, and hospitality) would stand to lose ten percent (10%) of their workforce (and the wages they contribute along with them). In one year alone, Florida’s GDP could drop by $12.6 billion. I’m assuming that would not be good for Florida (or anyone for that matter).
Imagine the impact to the Florida economy (not to mention the character and quality of the state itself) if there were no immigrants to perform those jobs (undocumented or otherwise). Imagine how much better Florida would be if there were more immigrants to do jobs that U.S. workers don’t want or U.S. employers can’t find enough of (because Congress did its job so Florida did not have to)!
I suppose no one should be surprised that Ron DeSantis proposed these laws in the first place, considering he previously led the effort to ban sanctuary cities in his own state and organized flights of migrants from Texas and Florida to Martha’s Vineyard.
And what about families? In a state where one in five residents are immigrants, it should be no surprise that hundreds of thousands of U.S. citizens live in mixed-status households. So how does FL 1718 potentially impact those families. Consider the following example. Let’s say my spouse was undocumented (or fell out of status) and we lived in Georgia. Let’s say one day we decided to travel down to Jacksonville for a long weekend. FL 1718 provides that a person who transports into Florida someone they know (or should have known) is an immigrant who has not been "inspected" by authorities could be charged with a felony for human smuggling. What does “inspected” mean in this context? I know of no equivalent under federal immigration law, at least not in this context.
So, back to my hypothetical. What would happen to me? Well, under the new law, a person who is found to be transporting less than five undocumented immigrants (or immigrants unlawfully present in the United States), as a first offender, could be charged with a third-degree felony, sentenced to up to five years in prison per person, or pay a fine of $5,000 per count. The penalties increase for subsequent offenses or for transporting more people or children. (Add to this that my law license would then be put in jeopardy for having been convicted of a crime.)
I know that people have different opinions on immigration reform, some reasonable and some not. Until Congress and the Executive Branch finally step in and pass meaningfully immigration reform, we’re going to continue seeing more state law infringement on federal law and the resulting jeopardy to many thousands of families and businesses along the way.
[1] FL 264 became effective on July 1, 2023. The law places significant restrictions on land ownership by “foreign principals” from specified “foreign countries of concern” (i.e., China, Venezuela, Syria, Russia, Iran, North Korea, and Cuba). Specifically, FL 264 prohibits foreign principals from these countries from owning or acquiring agricultural land in the state or owning or acquiring any interest in real property within 10 miles of any military installation or critical infrastructure in the state. Persons who are U.S. citizens or lawful permanent residents are not foreign principals for purposes of FL 264.
[2] FL 1718 also became effective on July 1, 2023. FL 1718 is a comprehensive effort to restrict the ability of undocumented individuals to live and work in Florida by, among other things, dramatically enhancing the ability of state law enforcement to enforce immigration laws, requiring hospitals to maintain data on patients’ immigration status, mandating the use of E-Verify by Florida employers with over 25 employees, restricting access to Florida drivers licenses (as well as State Bar licenses), and adding state civil and criminal penalties for violations of its provisions.
[3] Additional provisions of FL 1718 seek to hold businesses monetarily liable under Florida state law to the tune of a $10,000 fine for every undocumented employee they employ. Indeed, the state could also revoke their business’ license.]]>On Behalf of Meyers & Meyers, PLLChttps://www.meyersandmeyers.com/?p=479382023-07-11T22:13:05Z2023-07-11T22:13:05Z[1] as well as other “lottery based” nonimmigrant visa programs (e.g., the H-2B program), is a joke. The current cap for H-1B visas is only 65,000, with an additional 20,000 available for individuals with U.S. master’s degrees or higher.
I get calls literally every day asking how I can get this computer programmer or that software engineer an H-1B visa. Arguably worse than that, this time of year, I speak with my clients in hospitality (or other seasonal businesses with seasonal peakload labor needs), many of them now in their busiest time of the year, and they cannot fill critical roles (e.g., front and back of the house restaurant positions, landscapers, etc.) where some actually have to close one or two days a week when they should be open each and every day of the week!
Yet, as I’ve written before, unless you’re a “cap exempt” employer, participation in the H-1B visa program involves a lottery process (due to the program’s popularity), and this year’s lottery registration process involved so much abuse I cringe just thinking about it.
The government’s Fiscal Year 2024 visa registration and lottery process closed on March 17, 2023, and on April 28, 2023, USCIS released data indicating that there was a sixty one percent (61%) increase in the number of H-1B registrations submitted compared to the prior year. More concerning, however, was that the data revealed a one hundred forty-seven percent (147%) increase in the number of registrations that were for individuals who had multiple registrations.
According to the Wall Street Journal, approximately 96,000 individuals were responsible for more than 408,000 registrations. Although the regulations do allow different employers to file registrations (and petitions) for the same foreign national, the significant increase raises concern. Multiple registrations involving the same foreign national accounted for over fifty percent (50%) of all the lottery registrations. That is concerning and suggests that unscrupulous employers are trying to unfairly (and perhaps unlawfully) game the system.
How does this play out in real terms? Several ways. Here are a couple. First, it potentially results in some H-1B visas from not being used because some individuals may be counted more than once if more than one employer had their registration selected for the same individual. This affects other companies who filed registrations for foreign nationals who were not selected.
In addition, many foreign students (who are in the United States on F-1 visas and working for U.S. employers pursuant to Optional Practical Training, or OPT) may be required to depart the United States if they are at the end of their OPT availability and are not selected in the H-1B lottery.
Something needs to change. According to USCIS, in FY23, there were 483,927 H-1B registrations. This number increased in FY24 to more than 780,000 total registrations. Of course, some of this increase is legitimate, but clearly not all of it. And even if you just look at the legitimate increase in demand, and accept as true all the anecdotal evidence from clients like mine or people you may even know in your everyday lives complaining about the difficulties in attracting and retaining talent into the workforce, if the H-1B lottery registration process is not changed, than it’s U.S. employers, and our economy, that will suffer.
With unemployment rates at historic lows, and demand for labor so high, the status quo will no doubt negatively impact economic growth. While the Department of Homeland Security (“DHS”) has indicated that it will refer for prosecution those that are unlawfully gaming the system, the issues are far more systemic, and Congress must get its act together to finally implement meaningful immigration reform.
[1] Some employers are eligible to file what are called “cap-exempt” H-1B nonimmigrant petitions if they are an institution of higher education, a non-profit entity which is “related to” or “affiliated with” an institution of higher education, a non-profit research organization, or a government research organization.]]>On Behalf of Meyers & Meyers, PLLChttps://www.meyersandmeyers.com/?p=479362023-05-26T16:32:44Z2023-05-26T16:32:44Zresilient concerning mental health issues, they still will often require both legal and emotional support if they want to properly manage those challenges while maintaining their legal right to remain in the United States. In most instances relying on a well-focused and experienced immigration attorney to assist with their immigration journey can free up an immigrant to focus more fully on his or her health and well-being. But that’s not always the case, and consequently, our clients’ mental and emotional health cannot be ignored.
Immigration attorneys are keenly aware of the reality that seeking a desired immigration status is a very stressful process for their clients, even when everything seems to be going smoothly (as far as we’re concerned). Immigrants may end up waiting for months for responses to applications and petitions for benefits, like asylum or even permission to work. Or they simply don’t understand what is often a convoluted process. They may feel as though their entire family is depending on them to not make a single mistake so that they can get through the process without any lasting repercussions. Again, our clients’ mental and emotional health cannot be ignored.
But we too must take care of ourselves. We often find ourselves in the middle of our clients’ stories, many who have and continue to experience heart-wrenching trauma, and then have to deal with an overly stressed and bureaucratic government system and its workers. This leaves us exposed to burnout. Immigration lawyers (and other types of victim advocates) need to take care of themselves as they deal with “compassion fatigue” and the secondary trauma that results from it.
There are tons of resources for lawyers in general who are experiencing various health problems, including mental health. Do yourself a favor. Don’t ignore the symptoms. Take care of yourself as well as you take of your clients.]]>On Behalf of Meyers & Meyers, PLLChttps://www.meyersandmeyers.com/?p=479192023-05-01T03:49:30Z2023-04-19T18:36:50Z[1] The comment period for the proposed rule expired on March 13, 2023, and according to reports, USCIS received almost 7,000 of them. Practitioners and advocates are livid. And rightfully so.
Immigration practitioners and advocates file hundreds of thousands (and perhaps even millions) of petitions and applications for benefits with USCIS each year. While USCIS has made efforts, and indeed some progress, over the years in streamlining its procedures and getting a handle on case processing and some filing backlogs, my experience is that it’s nowhere near sufficient, and timely adjudications at USCIS are the exception rather than the rule. And our clients suffer as a result.
I had a client in my office the other day who was exasperated at the prospect of waiting 60 months (yes, you read that correctly) for his marriage-based petition to be adjudicated by USCIS. I don’t blame him! Imagine how to navigate how (or not) to see your spouse when USCIS is telling you that it might take 5 years to process an “immigrant petition” (which, mind you, is only the first step in a multistep process that, for this individual, will then involve the DOS, and which can then take many more months or even years after that).[2]
In the face of this reality, USCIS is proposing exorbitant fee increases, some well over 100% of the current fee for some petitions / applications. That’s a hard pill for a client (and his or her attorney) to swallow when adjudication time frames are so out of whack.
Let me give an example. The proposed rule would increase filing fees for adjustment of status applicants (i.e., green card applications) by 130%. This will have the effect of delaying (or outright preventing) applicants from applying for lawful permanent residence at all. As a result, this will also prevent many individuals from becoming eligible and/or applying to become a U.S. citizen thereafter. Becoming a permanent resident, in a simple marriage-based situation, is expensive enough as it is. Add in a few children, and the fact that some of the now “bundled” benefits are being unbundled,[3] and the immigration process becomes unavailable to many.[4]
Again, as if the fee increases weren’t bad enough, processing times, whether because of the continued effects of the pandemic, labor shortages, or candidly, systemic inefficiencies at USCIS, continue to lengthen.[5]
So, where do we go from here? USCIS’s mission statement is to “uphold[]America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve.” The only way that “promise” is fulfilled, in the context of what I’ve written here, is by processing immigration benefits in a timely manner and at a price that all immigrants can afford. USCIS should aspire for nothing less.
[1] Perhaps not coincidentally, the Department of State (“DOS”) is also raising fees on most of its nonimmigrant visa applications (and the fee for a Border Crossing Card for Mexican citizens ages 15 and over), effective May 30, 2023. Those fee increases, however, are not nearly as dramatic as those proposed by USCIS.
[2] According to the Immigration Examinations Fee Account, Fee Review Supporting Documentation (January, 2023), between 2016/2017 and 2022/2023, the time USCIS says it takes to complete adjudication for some benefits has increased as much as 218%. See Immigration Examinations Fee Account, Fee Review Supporting Documentation (January 2023) at p.54.
[3] USCIS is proposing separating out the fees for permission to work and travel while the green card applications are pending with USCIS. These fees are now currently part of the overall filing fee for the application for lawful permanent residence.
[4] The currently filing fee for an application for permanent residence is $1,225.00 for an individual over 14 years of age, and $750 for those under 14 years of age. If a family of two adults and two children (one over 14 and one under 14) were to file their applications for permanent residence today, total filing fees alone would be $4,425.00. The proposed fee increase will more than double this amount.
[5] And, with the unbundling of the travel and work authorization application fees from the application for permanent residence fee, the cost of receiving permission to work (or to travel outside the United States) while the application for permanent residence is pending, will not only increase, but they will become an annual financial burden on applicants for permanent residence until their permanent residence is actually granted.]]>