Spring/Summer 2016: Immigration Law: What You Should Know Now

by Adrienne J. Vaughan

In 2013 I wrote an article on immigration law that was published in the summer 2013 newsletter.1 That article provided a background on some important immigration principles that you might find helpful if your practice overlaps with immigration to a large degree. In the present article I’ll assume some degree of familiarity and try to provide an update on recent changes in the practice of immigration law that may be of interest to a family law practitioner.

The prevailing view from all sides these days is that the US Immigration system is broken. One faction proclaims that our borders are too porous and that we have too many foreign nationals coming in without following our rule of law. Private industry believes it to be broken because US immigration law has not expanded sufficiently to reflect our current economy where graduates with Science, Technology, Engineering and Math (STEM) fields are in great demand. Nor does the current system reflect geographic realities in terms of what countries produce the most STEM graduates that wish to work in the United States.2  Thus, we retain a system which allocates employment-based green cards based on a tiered system of category and nationality in which populous countries like India and China are given no more green cards than is Liechtenstein.3  Thus, employers seeking to start green cards for their valued employees must take the nationality of their employees into account in determining how long they will have to wait. To an employer who wants the most qualified candidate and certainty, this makes no sense. And they are right; the current system has not kept pace with our economic realities and thus serves neither US companies nor their potential foreign national employees well. However, because changing this would require Congress to take constructive action on immigration, don’t hold your breath to see this change anytime soon.

Another example of our broken immigration system that has been exacerbated in the last few years has been temporary visas for professional workers, namely the H-1B visa. Most employers who seek to hire an engineer, architect, lawyer, or related professional will look to the H-1B visa to hire that worker. There are numerous hurdles in the process, including in many instances having the company disclose their financials, names of clients, and information on their products and services which are not otherwise public. After overcoming these and paying what has become an escalating series of government fees, an employer still is not sure if their employee will be selected for an H-1B visa. This year the nearly 85,000 H-1B visa numbers were exhausted in the first week that the quota was opened.4  In fact, 233,000 H-1B applications were received for the nearly 85,000 H-1Bs. This was an increase over the prior year, resulting in about 148,000 applications rejected as being in excess of the H-1B quota. For many of those employers, there are no other visa options to employ those foreign workers, resulting in great frustration. These employers followed the rules, filed all the right paperwork, and were willing to pay all the fees, yet they still cannot hire a needed H-1B professional worker. And for the countless employers that were not aware of the brief 5 days per year when new H-1B petitions can be filed, there are no second opportunities. This problem has been increasing in recent years, yet Congress has not increased the number of available H-1Bs since 2003.5  This shortage directly impacts US companies and studies have shown that the H-1B stagnation also impacts on overall jobs, wages and the US economy.6  Again, like the employment-based green card problems above, this situation seems not to be one that congress cannot gain consensus on how to fix, thus the status quo will likely continue for some time.

In light of the dire shortage of H-1B visa numbers compared to demand, the US government earlier this year opened other options for foreign students in the Science, Engineering, Technology and Math fields to extend their post-graduation period of paid on the job training.7   These students may now gain three years of work permission authorized through their universities. This may ameliorate some of the concern caused by the H-1B shortage, but the program still has conditions which some employers may dislike, and importantly, it only applies to graduates in certain specified fields.

Overall, when they are available, H-1B’s are a good option for many foreign nationals engaged in traditional employer/employee relationships. However, what the US government has lagged far behind on is viable options for entrepreneurs. In this situation, the H-1B by and large is not usable.8   Many other immigration visa options are similarly restricted. A good option, if the foreign national is lucky enough to be from a country with an applicable US treaty9, is the E visa for traders or investors. The E visa category is temporary though, and the green card options for an investor usually involve use of the EB-5 program. Under the EB-5 program investments of $500,000 and greater are made (usually to an existing project which outlines their intention to create jobs for US workers) in exchange for a green card. This program has been under intense scrutiny in the past year by states, the SEC and investors, and remains in great flux. Most recently the State of Vermont brought a lawsuit relating to EB-5 projects in northeastern Vermont which had raised over $350million in what is alleged to be fraudulent offerings.10  In contrast to the situations above, I expect to see large changes in the EB-5 program in the next year or two. What remains to be seen though is whether the government will provide a better, or any, alternative method for foreign investors to fund or start companies and employ US workers.

Outside of changes for employers and investors, the US immigration community has been very active in advocating for changes in family detention. This follows a massive expansion of family detention resulting from the large influx of asylum seekers largely from Central America to our Southern border which began in summer of 2014. The legal representation of these detained individuals remains ongoing. These cases have overwhelmed our already gravely overburdened and underfunded immigration courts. Consider the fact that the average removal (“deportation”) case in immigration courts as of April 2015 has been pending for 604 days—nearly a year and eight months.11

While all of the above regulations and actions played an important role in the practice of immigration law over the past year or two, there was no news bigger than the President’s own attempts to create immigration reform through Executive Action. In November 2014, frustrated by congressional inaction, President Obama announced that he was exercising his executive authority through executive action. Decried by many as over-reaching of the executive powers and a form of amnesty, it remained during 2015 and early 2016 as a highly polarizing action which was estimated could have impacted directly 5 million foreign nationals.12 One of the most contentious elements of the action was termed “DAPA” or Deferred Action for Parental Accountability, which would have allowed a temporary status for unauthorized parents of some US citizen children. On June 23, 2016 the case of United States v. Texas was heard before the US Supreme Court. A split by the 8 member court resulted in an affirmation of the lower court injunction. With no fanfare, 1.5 years of contentious debate and with it the legal aspirations of millions of would-be DAPA beneficiaries seemed over. However, some Supreme Court commentators argue that it may not yet be over, suggesting that there are two avenues that the case may return to the Supreme Court.13  Even without the underlying immigration issue, the high stakes of such an expansion of executive action would be worth following.

While there are no programs on the horizon during the remainder of the President’s current term of such magnitude on immigration, there may be Congressional rumbling for change again. Several influential lawmakers see another opening for immigration reform in 2017, especially if Hillary Clinton wins and the GOP takes another hit among Latinos.14  South Carolina senator Lindsay Graham vows “I’ll tell you what I’m going to do in 2017…I’m going to take the Gang of Eight bill out, dust it off and ask anybody and everybody who wants to work with me to make it better to do so.”15

So, if President Obama could not enact change on our broken immigration system, and Congress reaches an impasse, is there hope for the future? It depends who you ask and how you think it needs to be fixed. Hillary Clinton proclaims that American needs comprehensive immigration reform with a pathway to citizenship.16  She defended President Obama’s executive action on immigration and wants to end family detention.17 Her view on immigration is decidedly pro-immigrant. In what may be seen as a sharp contrast, Donald Trump’s immigration plan has three core principles including building a wall across the Southern border (which Mexico would pay for), enforcing immigration laws, and ensuring that any immigration plan must improve jobs, wages and security for all Americans.18  He states that “[w]hen politicians talk about “immigration reform” they mean: amnesty, cheap labor and open borders.”19 Overall a decidedly different view on immigration than Hillary Clinton who views fixing the immigration system as an economic issue, but at heart a family issue.

In the meantime, the uncertainty over the next president and what immigration changes he or she may make has resulted in a noticeable uptick in applicants filing to become US citizens. It’s also resulted in many US citizens who can claim a second or “dual” citizenship to explore that option. And in the end if you’re unhappy with the results of the election there is always Cape Breton, Canada trying to lure those disenfranchised among us (cbiftrumpwins.com).20

In the coming months, a good resource to check out to follow immigration news is the American Immigration Lawyers Association (AILA) website at www.aila.org. Although much of the content is restricted to members, there still is very valuable content which can be accessed by nonmembers. I expect that AILA will make much of the next administration’s actions on immigration available to nonmembers.

Focusing exclusively in the area of United States immigration law, Adrienne Vaughan founded the Law Office of Adrienne J. Vaughan in April 2012. Based in Boston, Massachusetts, the firm provides legal services for corporations of all sizes on a broad range of nonimmigrant (temporary) and immigrant (permanent) visa options for their valued employees. Services also include advice for individuals in employment, marriage and family immigration matters. Attorney Vaughan is licensed to practice law in the Commonwealth of Massachusetts and the United States District Court. Prior to starting her own firm, she worked for a decade at a prominent downtown boutique immigration firm. She is a frequent speaker on immigration.

[1]  http://www.bostonbar.org/sections-forums/sections/family-law/family-law-newsletter/2013/07/25/family-law-newsletter-summer-2013-select-us-immigration-law-principles-a-background-and-a-look-forward
[2]  For a fascinating look at the changes over time in immigrant sending countries to the US see http://discuss.ilw.com/content.php?6347-Article-Here%92s-Everyone-Who%92s-Emigrated-to-the-U-S-Since-1820-By-Max-Galka
[3]  https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
[4]  https://www.uscis.gov/news/news-releases/uscis-reaches-fy-2017-h-1b-cap
[5]  http://www.ilw.com/articles/2016,0331-AIC.pdf
[6]  Id.
[7] https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/stem-opt
[8]  There are some exceptions wherein the foreign national entrepreneur can cede control of the entity to a Board of Directors or similar entity, but this is rarely desired.
[9]  https://travel.state.gov/content/visas/en/fees/treaty.html
[10]  http://www.sec.gov/news/pressrelease/2016-69.html
[11]  http://www.immigrationpolicy.org/just-facts/empty-benches-underfunding-immigration-courts-undermines-justice
[12] http://www.immigrationpolicy.org/sites/default/files/docs/a_guide_to_the_immigration_accountability_executive_action_final.pdf
[13]  http://blog.cyrusmehta.com/2016/06/an-eventful-thursday-for-immigration-law-at-the-supreme-court-united-states-v-texas-mathis-v-united-states-and-whats-next.html
[14] http://www.politico.com/story/2016/07/immigration-reform-gang-eight-225028#ixzz4DeuPo2jE
[15] Id.
[16] https://www.hillaryclinton.com/issues/immigration-reform/
[17] Id.
[18] https://www.donaldjtrump.com/positions/immigration-reform
[19] Id.
[20] http://www.wbur.org/hereandnow/2016/02/25/cape-breton-if-donald-trump-wins