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May 31, 2013

SENATE CIR BILL S. 744 PASSED BY BIPARTISAN VOTE OF 13 TO 5

On 5/21/13 the Senate Judiciary Committee wrapped up weeks of work on immigration reform by passing the Bill S.744 the "Border Security Economic Opportunity, and Immigration Modernization Act" out of committee by bipartisan vote of 13 to 5. 

The committee considered 31 amendments, 16 of which passed (the majority on voice votes). Many of the most controversial amendments were debated (none of which passed) including: denying citizenship to anyone who had ever been in the country illegally, providing immigration benefits to same sex couples, making siblings and adult sons/daughters over the age of 31 eligible in the family category, and making RPI recipients ineligible for tax benefits such as the EITC and CTC. 

The following is a transcript of the May 21, 2013 meeting. 


MAKEUP BEGINS

10:43 am Sen. Leahy: No opening statement.

Sen. Grassley: I have several questions, but am only going to ask one on health care. I think the bill rightly prohibits legalized individuals from accessing health credits to buy health care, but along with it, comes with the notion that employers can skirt penalties if they don't cover these individuals. How would the bill ensure that those who are legalized don't get public benefits, but don't disincentivize employers to displace or give secondary preference to Americans

Sen. Durbin: Under this bill, there is an ambiguity. These RPU workers will not be entitled to the subsidy to the health reform act. It's my understanding that they can purchase it without subsidy. You've asked the right question, what impact does that have on their employer? I will concede that this is an issue that is not totally resolved.

Sen. Grassley: When you say it's unresolved at this point, is that something you're continuing to work on it and will be resolved before the bill is complete or that can't be even be handled.


Sen. Durbin: I understand it's a finance committee jurisdiction issue.


Sen. Leahy: Sen. Grassley and I talked yesterday, and we're going to keep going as there is a possibility that we can finish today.
Amendment Blumental 15 is up for consideration. The amendment would move the physical presence date to April 17, 2013.

Sen. Blumenthal: I'm not going to ask for a vote on it. The date in the bill now, December 31, 2011, is now an arbitrary cutoff. But the effect is that 400,000 will be barred from walking that path to citizenship. Those 400,000 or so people will in effect be in the same status, in the shadows, of the people that we're now trying to bring out.
Amendment Blumenthal 15 is withdrawn.is up for consideration. The amendment would restrict eligibility for the Child Tax Credit.

Sen. Durbin: The Senator made an important point. This does not apply to the 11 million, because they will receive Social Security numbers. Yes, let's address fraud, and the Finance committee should, but this bill.

Sen. Sessions: What's happening is that a person's filing under a false Social Security name, and IRS assigns them an ITIN and files their return. It's clearly a policy that's allowing illegal aliens in our country to get federal checks. Surely we can agree that after this bill passes, we shouldn't continue the policy of sending government benefits to people who are entering illegally in the future.

Sen. Leahy: We have at so many times taken steps that would harm children. And I'm not about to take a step to harm children. This would harm numerous U.S. citizen children. We're all against the idea of fraud, but this seems like an additional punitive measure that will harm a lot of low-wage worker families and their children. I know so many extraordinary hard-working people in my small state. I'm just not going to vote for something that has the implication that they are just here to break the law.


Sen. Sessions: I appreciate the Chairman's concern for children, but I would like to emphasize that this amendment would prohibit the plain rewarding of government benefits to those who come here illegally.


Sen. Durbin: Would the Senator concede that there are three categories of workers: Those who are here legally with Social Security number, those who have declared themselves with ITIN number and are paying taxes, and those who are perhaps working under someone's else's SSN. The Senator has targeted the second group when the focus should be on the third.

Amendment Sessions 30 fails on a vote of 8-10.
Amendment Hirono 20 is up for the consideration. The amendment would require DHS to collect demographic data from RPI applicants. Modified by 2nd degree.
Amendment Hirono 20 passes by a voice vote.

Amendment Grassley 17 is up for the consideration. The amendment eliminates judicial review for revocations and denials of RPI applications, except on challenges to the constitutionality of the legalization provisions.

Sen. Durbin: We acknowledge that the balances in our three branches of government has kept us democratic. If you're to take away this review, you're giving a bureaucrat the opportunity to make decisions with any review. Sen. Schumer: This goes overboard. The incentive to file frivolous claims is small because the individual has no right to stay in the United States pending the court's decision unless you can show that the claim is not frivolous.
Amendment Grassley 17 fails on a vote of 6-12.
Amendment Feinstein 13 is up for the consideration. The amendment expands the grant program in the bill to include individuals in blue card status. Modified by 2nd degree. Feinstein 2nd degree restores to the bill the power of the Consular official to deny a visa.
Amendment Feinstein 13 passes on a voice vote.
Amendment Cornyn 4 is up for consideration. Modified by 2nd degree. The amendment would require DHS to identify victims of each criminal offense by waiver-eligible RPI applicants and to consult with victims to determine whether applicants should be granted a waiver. 2nd degree clarifies that DHS should work with prosecution agencies and that the victims would not suffer adverse immigration consequences.

Sen. Klobuchar: I appreciate the changes that have been made, and I support this amendment.

Sen. Leahy: I understand that we're changing the victim notification period from 90 to 60 days. And that victim cannot be found or does not respond, DHS can proceed.


Sen. Cornyn: The chairman is correct.


Sen. Durbin: I think the modifications really improve this amendment.

Amendment Cornyn 4 passes on a voice vote.
Amendment Cornyn 5 is up for consideration. The amendment expands the situations in which the Secretary is required to disclose information provided on RPI, RPI-adjustment, blue card, DREAMer-adjustment, ag worker- adjustment applications.

Sen. Cornyn: If it's good for victims of crime, why is it not good for illegal immigrants? It would not prohibit individuals from coming forward. The application would have been denied. The amendment would also clarify that the State department can share visa records with other countries on a case-by-case basis.

Sen. Leahy: I'm concerned about a chilling effect.


Sen. Cornyn: The confidentiality would be removed only if the application is denied and all appeals are finished.


Sen. Durbin: You have made your argument based on law enforcement and national security, but i think you amendment goes further. Because it also authorizes civil actions. Are you opening up civil and criminal actions to past employers?


Sen. Cornyn: I believe not.

Amendment Cornyn 5 fails on a vote of 9-9.
Amendment Lee 10 is up for consideration. The amendment defines requirements for establishing compliance with federal tax obligations. The individual must prove compliance by a preponderance of the evidence.
Sen. Leahy: I have a concern that this is really in the jurisdiction of the Finance Committee.

Sen. Schumer: I understand where Sen. Lee is getting at, and I believe Sen. Hatch on the Finance Committee has some ideas, too. We understand that living in the shadows mean not keeping any records. But, we do have another goal here. The goal is to set things right by allowing those in the shadows to come out and to prevent new individuals from come in. As rigid as this amendment is, it would delay and prevent many many people from coming out of the shadows.


Sen. Lee: I'm not understanding what is so rigid about this.


Sen. Schumer: Let's say you have someone who has been working at paying taxes for 12 years. Working for different employers, and can't remember. What do you do?


Sen. Lee: There's nothing particular rigid of this. I understand the concern and I'd be happy to submit this for a voice vote.


Sen. Sessions: it seems to be me you're not requiring the government to investigate everyone. It's if you've been assessed a fine payment by IRS. Maybe they are investigating now.


Amendment Lee 10 fails by a voice vote.

Amendment Lee 8 is up for consideration. The amendment would prohibit aliens who have absconded or have attempted to reenter from receiving RPI status.
Amendment Lee 8 fails by a voice vote.
Amendment Lee 12 is up for consideration. The amendment prohibits the use of sworn affidavits to verify the employment or education of RPIs applying for permanent residence.

Sen. Lee: The RPIs would have work authorization and they should have documentation for the duration of their RPI status.

Sen. Grassley: this amendment ought to be adopted so that we don't repeat the mistakes of 1986.


Sen. Durbin: This is how we learned the lesson from 1986. These affidavits must come from non-relatives who have direct knowledge. If sworn affidavits are used, one more document must be used to support.


Sen. Sessions: Disclosure rules, let's say someone submits a false affidavit, are they free to report to ICE agents?


Sen. Durbin: I don't believe there is any prohibition from that happening.

Amendment Lee 12 fails by a voice vote.

Sen. Leahy: We have five amendments left for Subtitle A, 28 for the rest of the bill. We will continue back here at 2:30.

2:39 pm Sen. Grassley: Senator Lee had an amendment that we defeated. And it was whether we had learned any lessons from 1986. Right before we broke for lunch, we had a vote on Lee 12 (prohibiting use of sworn affidavits) that concerns me that we're repeating those mistakes.
Amendment Cruz 3 is up for consideration. The amendment would remove the path of citizenship for anyone who has ever been "willfully" present in the U.S. unlawfully. Modified by 2nd degree which adds a savings clause that it would not impact those granted asylum.

Sen. Cruz: If legislation that includes a path to citizenship passes, like it did in 1986, I have little doubt that we will be back here in 20-30 years with not just 11 million, but 20-30 million. We need a solution that respect the rule of law and ensures that there are meaningful consequences to breaking the law. If this amendment is adopted to the current bill, the effect will be that those 11 million will still be eligible for RPI status, for legal status, and for LPR status, and would be out of the shadows. This amendment would allow that to happen. It would remove the path of citizenship that shows there are real consequence that respect the rule of law and treat legal immigrants with the fairness they deserve. I want immigration reform to pass, so if the objective is the pass common sense immigration reform, then we should look for areas of bipartisan agreement to come together. and if this amendment pass, the chances of this bill becoming law would be greater.

Sen. Leahy: My concern with this is that it would gut the bill. It gives a false promise of citizenship on the one hand, and then takes it back for the vast majority of the 11 million who would not qualify.


Sen. Schumer: I think this shows the distance some of us are apart. If we don't have a path to citizenship, there is no reform, is how some of us feel. To go to a European system where people can work but never can become a citizen fosters alienation. This amendment goes against everything America stands for. Two classes of Americans, no.


Sen. Flake: We don't want to have millions of people who want to become citizens, but never can. We don't want that. It's important people aspire to that. We don't want a second citizen or communities of them. Not everyone would seek. In 1986, only about 40% of those offered a path to citizenship took it. And a significant number of individuals under this bill will also choose not to take it. But for those who really want it, who want to earn it, they ought to have that opportunity.


Sen. Lee: Out of fairness of those who have tried to play by the rules, it makes sense to give an additional benefit.


Sen. Blumenthal: I think there are other ways to avoid the negative consequences, stronger enforcement of other features of this bill that is designed to prevent those negative consequences. This amendment goes to the very core of the values and traditions of America. The reason people want to come here is that we are a beacon of liberty. We would be diminished as a people by second-class citizenship, actually it would be less than second-class citizenship. It would be two tiers of residency.


Sen. Sessions: With regard to the European situation, it is instructive. Europe, however, does not provide that children can attain citizenship. That is not what would happen here if citizenship was not provided to those who came illegally.


Sen. Cruz: In my opinion, the current bill does not fix the problem. It may incentivize further illegal immigration, further exploitation. I think anyone can have an opportunity to become a citizen, if you come legally. And one way to do that is to expand legal immigration. Tying immigration reform hostage to a path to citizenship is not a strategy to passing a bill.


Amendment Cruz 3 fails by a vote of 5-13.
Amendment Cruz 2 is up for consideration. The amendment prohibits all aliens who entered or remained in the U.S. while not in lawful status from being eligible for federal, state, or local government means-tested benefit or under Affordable Care Act.

Sen. Durbin: This amendment says ok, if you become citizens, under no means would we provide any help. What kind of America are you thinking about? That we would have millions of citizens that couldn't have help with their children's education, or to provide basic health care. I don't think that's an America I want to be a part of.

Sen. Sessions: This is consistent to the Sponsors' intention that those legalized would not be eligible for benefits for 13 years.


Sen. Cruz: I would note that two of the amendments I offered is to expand legal immigration. This is an issue that is near and dear to many of us, and personal to many of us. The purpose of the amendments I have offered here are to fix the problem. To leave 11 million in the shadows if there is no path to citizenship is the less compassionate decision.


Amendment Cruz 2 fails on a vote of 6-12.

Amendment Flake 4 is up for consideration. The amendment clarifies that individuals in RPI status is not eligible for any federal means-tested benefits and would revoke status for those convicted of fraudulently claiming or receiving such a benefit. It would also require DHS Secretary to conduct audits.

Sen. Grassley: I just want to raise a question. Between now and the floor, I think it would be a better thing if it was someone other than the Secretary doing the auditing, and I would suggest the Inspector General.
Amendment Flake 4 passes on a voice vote.
Amendment Flake 3 is up for consideration. The amendment requires that RPIs undergo background checks at the time of renewal of RPI status.
Modified by two 2nd degrees (Flake-2nd degree; Schumer 2nd degree).


Sen. Grassley: I read Sen. Flake's amendment as an improvement. But as with Sen. Schumer's 2nd degree, I see it as going back to the way it was.

Sen. Feinstein: What is the innocent in "brief, casual, and innocent"?


Sen. Flake: What we don't want is someone who leaves the country to violate their RPI status.


Sen. Flake: It's a term of art in immigration law.


Sen. Schumer: It is used in current law frequently, it just means it's brief.


Sen. Flake: It's part of the Fleuti doctrine.


Sen. Sessions: The 6-year review, as I understand it, the RPI is to have a job, be a full-time student, or… If they don't meet the standards, will they be deported?


Sen. Schumer: Yes, if they don't meet the standards, they can be deported.


Sen. Sessions: Can be, should be, Are we going to deport the people.


Sen. Schumer: Remember, we're going to be under a new system. Right now, they're here, they can get a job. If you apply the existing world, obviously it doesn't make sense. If you apply the world that we're trying to make in the next 6 years, it make sense.


Sen. Sessions: I'm nots seeing a commitment to see it enforced.


Sen. Flake: This year, we had about 400,000 deportations, so it is happening. Certainly, with this new legislation, they will be identifiable, they won't be able to gain employment with mandatory E-Verify. Deportations can occur, they will occur, with this new legislation, more easily.

Amendment Flake 3 passes by a voice vote.
Amendment Hatch 10 is up for consideration. Modified by 2nd degree Hatch-Schumer amendment that consolidates Hatch 10-17 and 20.

Sen Leahy: We'll have a vote on the 2nd degree to accept it and open it up for 2nd degree amendments to it.

Hach-Schumer 2nd degree amendment is up for consideration, to be accepted as substitute to be considered.

Hatch-Schumer 2nd degree amendment passes 16-2.

Sen. Schumer: We make it easier for multi-national companies to transfer employees. We make sure that if there is an American worker that they get the job, but we also make sure that if the American worker doesn't fit the job, that the foreign worker can get the job, instead of now when companies relocate.

Sen. Grassley: The amendment allows the escalator cap to be fluctuated. The amendment does nothing to help unemployed American workers.


Sen. Leahy: There is a floor vote. I encourage everyone to come back. We will go late tonight. Moderately good pizza has been ordered.

Sen. Durbin: When you take a look at the underlying bill, and the amendment from Hatch and Schumer, it makes an effort toward what Senator Grassley and I have done in our bill. First, companies will be required to recruit American workers. On H-1B dependent companies, if we feel that you hare hiring American workers 85% of the time, we're going to treat you differently, but if you have a firm with more than 15% foreign workers, you will have additional requirements to recruit American workers. Most of us think of H-1Bs as high-tech companies hiring engineers. Most of the H-1Bs were outsourcing firms, where they aren't hiring engineers to be engineers, but hiring engineers to placed in firms temporarily. And it deals with that. I would've liked to have seen a different amendment, but this is a dramatic improvement to current law.

Sen. Graham: The most important thing is that you've (Sen. Hatch) made the bill better. I can say without any hesitation that the opportunity of American workers being hired in these sectors is going up because of this. We went too far, Senator Hatch brought us back. We made it too hard on the companies and too much power on the bureaucracy. What you've done, Senator Hatch, to this bill is to make it functional.


First Grassley amendment to the Hatch-Schumer is up for consideration.

Sen. Grassley: This amendment would require all employers to attest that they made a good faith effort in recruiting American workers. My amendment strikes down the watered-down language in the Hatch amendment. My amendment would subject all employers to the higher standard.

Sen. Sessions: I believe prudence would tell us to be careful as we go forward. I don't know where this economy is going, but most economists say we're not creating the kind of jobs we need to be creating. Under this bill, we'll be bringing in 1.2 million immigrants, for the 900,000 jobs that is projected in the 5 years. America is not a technological wasteland as the tech lobbyists would have you believe.


Sen. Hatch: We can't continue to hope that American companies don't move their operations overseas because of our visa policies.

First Grassley amendment to Hatch-Schumer fails on a vote of 2-15. (1 pass)
Second Grassley amendment to the Hatch-Schumer is up for consideration. The amendment protect American women workers STEM field working in companies hiring H-1Bs.

Second Grassley amendment to Hatch-Schumer fails on a vote of 3-15.

Third Grassley amendment to Hatch-Schumer is up for consideration.

Third Grassley amendment to Hatch-Schumer fails on a vote of 2-16.

Fourth Grassley amendment to Hatch-Schumer is up for consideration. The amendment would apply the same wage requirement to all employers.

Sen. Grassley: The bill currently requires H-1B dependent employers to offer Level 2 wages to nonimmigrants. This would make apply it to all employers.
Fourth Grassley amendment to Hatch-Schumer fails on a vote of 3-15.
Amendment Hatch 10 as amended by Hatch-Schumer passes on a voice vote.

Sen. Leahy: Now we're moving on to Subtitle B & C involving agricultural workers and future immigration.

Amendment Whitehouse 4 is up for consideration. The amendment facilitates admission and naturalization of individuals who are employees of Federal national security, science, and technology labs.

Amendment Whitehouse 4 passes on a voice vote.

Amendment Grassley 16 is up for consideration. The amendment allows for the adjustment for inflation of all fees and fines in S.744.

Sen. Grassley: This leaves discretion to the Secretary on the index.
Amendment Grassley 16 fails on a voice vote.
Amendment Franken 9 is up for consideration. The amendment allows battered immigrants to be eligible to receive certain public and assisted housing.

Sen. Franken: The amendment reconciles two laws so that battered women who are here lawfully will be able to receive housing.
Amendment Franken 9 passes on a voice vote.
Amendment Session 2 is up for consideration. The amendment imposes a 20 million numerical limitation on individuals admitted as LPRs during the 10 fiscal years.

Sen. Sessions: I won't ask for a vote on this. But I would like to know how many we are receiving in immigration. There are 11 million, 4.5 million who would be given accelerated admission who are currently held down by the caps, and then 1.4 million for 10 years, that's about 30 million.

Amendment Sessions 2 is withdrawn.

Amendment Coons 3 is up for consideration. The amendment allows surviving spouses and children of U.S. government employees abroad who are killed in the line of duty.

Amendment Coons 3 passes on a voice vote.

Amendment Cornyn 8 is up for consideration. Modified by 2nd degree amendment. The amendment adds communities near closed or realigned military bases in the definition of targeted employment area in the EB-5 regional center context.

Amendment Cornyn 8 passes on a voice vote.

Amendment Hirono 1 is up for consideration. The amendment excepts children of certain Filipino World War II veterans from the numerical limitations on immigrant visas. Amendment Hirono passes on a voice vote.

Sen. Whitehouse: We don't have an amendment at the moment, but Sen. Graham and I are working on ways to address the cyber attacks One approach is to allow the Secretary to designate where the attacks are and another is to allow a S visa for someone who will testify or work against these cyber networks.
Amendment Cruz 4 is up for consideration. The amendment modifies the numerical limitations for family-sponsored and employment-based visas. It also removes per country caps.

Sen. Cruz: I am a strong advocate of legal immigration.

Sen. Schumer: In our bill, we have a delicate balance. This amendment would cut back on family by more than 25% and I would urge in defeated.


Sen. Sessions: While this would allow more immigrants in, the policy provisions in it are very good unlike the bill before us today.


Sen. Cruz: Indeed as it is structured, it would allow those who come here for employment to come with their families, so some of the family reunification is shifted to the employment.


Amendment Cruz 4 fails on a vote of 6-12.

Amendment Coons 9 is up for consideration. Modified by 2nd degree.

Sen.  Coons: The amendment modifies Coons 1 which would require enhanced notification to individuals in the E-Verify system. This 2nd degree reduces the enhanced notification the cases where a system returns a non-confirmation.
Amendment Coons 9 passes on a voice vote.

Amendment Grassley 19 is up for consideration. The amendment mandates USCIS to file reports to Congress on fraud. Modified to annual reports instead of quarterly.
Amendment Grassley 19 passes on a voice vote.

Amendment Hirono 10 is up for consideration. The amendment permits U.S. citizen suffering extreme hardship to petition for an adult son and daughter or a sibling.

Sen. Graham: In the future we are going to have a merit based economic system. Economic system with a family component. I respect what you are trying to do, but it would upset the balance.

Sen. Hirono: How would a single woman fair under the point system.


Sen. Graham: If you have family, you get 10 points. You get points for learning English. You will get points if you have desirable skills. I've asked for a new way around doing immigration that is economic based.


Sen. Blumenthal: I would like to join this measure as a co-sponsor and say that I support it.


Sen. Schumer: I reluctantly against this amendment. As Senator Graham said, we had a very careful balance in this bill. There are a large group of people who want a robust family immigration system. Others wanted a robust economic based immigration. Families do really well under this system. We have a petition system. This is a good amendment, but we could come up with amendments on the other side to take away from family and give to economic migration. Trying to get bipartisan compromise, I have to reluctantly vote note.


Sen. Durbin: The reason we have a CIR bill that will help 11 million Americans is because we sat down and reached an agreement. It was a give and take. I commend Senator Graham and Flake for voting no when it was tough. I must hold firm.


Sen. Whitehouse: There are times you have to stand by the agreement that put this together.


Sen. Graham: I get it. I was 21 when my mom died and 22 when my dad died. I adopted my 13 year old sister to make sure she got air force benefits. I get it. I've been bending over backwards to have a strong family component. I'm not going back to a chain migration system. As to hard votes, these are two hard votes for my colleagues from New York and Illinois. But I've been voting for 6 days.


Sen. Feinstein: I think it has been a unique process because those people who are members who have put this together and stood together. My hope is that that bipartisan agreement is enough so that what happened on the floor the last time doesn't happen again. I think this amendment would drive apart the agreement. Is this worth no bill. I've decided it is not. So, I think it is a fair system as is. I know it is hard for people to accept, but I want a bill. We need to keep the support. I am a no vote on the amendment.


Sen. Hirono: That this is not an amendment about chain migration. It is a narrowly crafted amendment that does not reopen sibling or married children over 31. It is for very specific situation where a U.S. citizen would suffer extreme hardship.
Sen. Sessions: I would not that a points system is something I would support but it only involves 8 to 16% of people who would be coming in the future.


Amendment Hirono 10 fails on a vote of 7-11.

Amendment Session 2 and Amendment Session 8 are withdrawn.

Amendment Sessions 15 is up for consideration. The amendment would remove judicial review and shift visa authority from Department of State to DHS.

Sen. Sessions: This deals with an important matter that I believe the committee and gang would recognize. One of the problems we discovered was that Secretary Napolitano said that who issues visa revocations is not clear. This amendment would provide current authority to both Secretaries of DHS and DOS to revoke visas. I would ask my colleagues to support the amendment.

Sen. Leahy: I'm not a fan of court stripping legislation.


Sen. Schumer: I want to oppose this amendment on similar grounds that the chairman did. It takes away any judicial review ever. That is not the hallmark of democracy. I have to say, do we want to live in that kind of country? A country with no due process for people we have invited to come here? I would urge this amendment be defeated.


Sen. Sessions: Under current law, the State Department can revoke visas.


Sen. Schumer: They can get a revocation hearing.


Sen. Sessions: Someone who is hear is hear at the pleasure of the U.S. I think you are constantly creating litigation that goes beyond anything we have done before. I know immigration lawyers that you like to meet with like to litigate. I think he amendment is correct, and i believe the Secretary of Homeland Security ought to be given this authority.


Amendment Sessions 15 fails by a voice vote

Amendment Hirono 11 is up for consideration. The amendment would require a GAO study on the impact of the merit based system on family. Under this amendment, the GAO must submit a study no later than 7 years after the date of enactment.

Amendment Hirono 11 passes by a voice vote.

Amendment Klobuchar 5 is up for consideration. Modified by Klouchar 2nd degree.

Sen. Klobuchar: This is a small but important amendment that would increase access to health care. It is an extension of the Conrad 30. This was a bill that I introduced with others. We have a shortage of doctors in this country. The amendment clarifies the bill and builds upon the bipartisan agreement. Senator Feinstein's Amendment 13 moves the dual intention provisions to another part of the code but forgot the doctors. It adds the doctors back in.

Amendment Klobuchar 5 passes by a voice vote.

Amendment Leahy 7 is up for consideration. The amendment recognizes for purposes of the INA, any marriage entered into in full compliance with the laws of the State or foreign country within which such marriage was performed.

Sen. Leahy: People face discrimination based on who they love. I understand that not all states have reached this point of being compassionate as my home state of Vermont. Just since the introduction of immigration reform, we have had 3 states join Vermont. Regardless of state efforts, federal law continues to discriminate against people based on who they love. My amendment would not change a single state law. DOMA makes 1,000 of American families left secure. IN the immigration context, if you are an American and fall in love with someone of the same sex in another country and get married legally, you cannot petition for your spouse. I don't want to be the Senator who made someone choose between love of their spouse and love of their country.

Sen. Graham: I think a lot of folks have been wondering what you would do about this issue and how you would handle it. I want to be the first to say that your passion for marriage equality has not changed. The country is going through a debate on how to define marriage state by state. When it comes to immigration reform, we have put together the most effective coalition since 2005. I've been asked a lot about what would this mean. If we try to redefine marriage w/in the immigration debate, it would mean the bill would fall apart because the coalition would fall apart. There are a lot of people in S.C. who would support this bill but find it a bridge too far. The courts are dealing with this issue. I would just urge my colleagues to understand that traditional marriage is a well-accepted concept. When it comes to passing this immigration bill, interjecting a new definition of marriage would be a bridge too far. I would urge my colleagues to understand that this would fracture the coalition. I have an obligation to listen to the people of South Carolina. This is the best chance I've seen since dealing with the issue. I support traditional marriage without animosity. But not only could I not support the amendment, but I believe that it would break the coalition.


Sen. Leahy: Does the Senator see anything in the amendment that would require your state to change the definition of marriage or require your state to pass new laws?


Sen. Graham: You got me on immigration but not on marriage.


Sen. Feinstein: One of the cases before the Supreme Court is an equal protection case. The Supreme Court may settle this all and would make this moot. This amendment would assure that same sex couples are accorded the same protections of heterosexual couples. In short, same sex marriages would be entitled to equal treatment under the law. There would be no need to create a different category. There is a problem. Like Senator Hirono's amendment, this could blow this bill apart. I don't won't to blow this bill apart. I don't want to lose Senator Graham's vote. I am for what Senator Leahy is proposing, I would just say hold up on this amendment at this time. I think we can get it done in a way that will not blow apart this bill.


Sen. Leahy: I listen to people who support what I'm doing and those who don't. I said I would certainly hear from anyone who wishes to speak. I held this to the end so we could get through the rest of the amendments.


Sen. Flake: What a pleasure it has been to be so new in the Senate and be part of this process. I think this process that we have gone through has been a real antidote to this process. You haven't cut any person off and you have allowed anyone to offer any amendment. This immigration bill is a heavy lift as we all know going through the process. We can only make that lift if we have the broadest coalition possible. This is an issue that is being addressed by the courts right now. I think it would certainly upset the coalition right now. It would certainly mean this bill would not move forward, which would be a real shame. I thank you for this process. I hope the amendment could be withdrawn.


Sen. Durbin: I'm a cosponsor of UAFA and Senator Feinstein's bill. My position I hope is very clear. What we've witnessed is an order of priorities. I can tell you I know how difficult it is to withdraw an amendment. I want to make certain that the people who would benefit from immigration reform get it. There will be another day. I hope that today we can keep this coalition together.


Sen. Leahy: When I talk to legally married couples in my state, and they say that we can't dream because we are the same sex. I constantly ask myself how I would feel. I appreciate what you have said about me and this process Senator from Arizona and South Carolina.


Sen. Schumer: I too want to add my voice to thank you for having an open and fair process. I would also like to say that i know your passion on this issue. It is consistent with you record and beliefs. I want to say that this is one of the most excruciating and difficult decisions I have had to make. I know our constitution and core principles calls for equality. It is rank discrimination, and I believe in it strongly. It is a basic principle of fairness that you should not treat one class of people differently. Should same sex partners have the same rights as heterosexual couples? Absolutely. I believe so strongly they should. The law needs to change. I believe that the American people support this. I have urged inclusion of these principles in an immigration bill. Those in the group believe that it will rip apart the bill. But all I can do is try to persuade, bargain, and cajole. I cannot compel them to believe and ask otherwise. They've made perfectly clear that if this provision is added to the bill, they will have no choice but to abandon this bill. I wish it were otherwise. The bottom line is that in the political reality in which we operate, those who hold differently have the power to stop this bill. If we make the effort to add it to this bill, they will walk away. They have told me publicly and privately. No equality, no immigration bill. Nothing gets accomplishment. Much as it pains me, I cannot support this amendment if it will bring down this bill. I want to let them know that I will be here and ready to work with the LGBT community to advance the cause of equality.


Sen. Franken: This is the definition of a Hobbesian choice. In my bones, I believe in equality. I believe in equal protection of the law. I think Senator Durbin and Senator Schumer have said it. This will get resolved hopefully sooner than later. Boy I wish my colleagues on the other side felt differently. It is wrong to discriminate against people but I do not want the LGBT people who would be hurt by this whole bill not passing to be hurt by this falling apart.


Sen. Leahy: I heard a Senator not on this committee, not in my party, that if I included this it would kill this. I believe fixing our broken immigration system is this committee's top priority. I believe this legislation will make us safer, it will help spur the economy. It is not the bill I would draft. It is with a heavy heart that the Senator that I heard on that radio talk show who said the whole immigration legislation would be killed if I offered this amendment. I will withhold this amendment. I say this with a heavy heart.


Amendment Leahy 7 is withdrawn.

Sen. Graham: I want to thank you for the way you have conduct this hearing. This is the best mark-up I've been involved in. We will have this debate. But it should be done outside this bill. Your decision today has represented the best opportunity to get this bill passed. You set an example.

Sen. Whitehouse: I didn't want to close without expressing my appreciate for all of the members of the committee but particularly Senator Durbin, Schumer, Graham, and Flake. I think this has been very impressively done.


Sen. Whitehouse: I didn't want to close without expressing my appreciate for all of the members of the committee but particularly Senator Durbin, Schumer, Graham, and Flake. I think this has been very impressively done.


Sen. Hatch: I commend this committee for the good work on this bill. I filed 4 amendments on financial issues that would make this bill better. These are not poison pill amendments. I filed them in good faith. Thus far, the authors of this legislation have shown a willingness to work with me. I will vote this bill out of committee, but if these issues are not addressed on the floor, I will vote against this bill on the floor. I think we have come a long way, and I want us to continue that will get people in the House to support.


Sen. Schumer: We have talked a little about the financial amendments but he has my commitment to try and work something out. I will give it my college try best. Each side will have to give, but this has been an excellent process. We hope to continue this process on the floor.


Sen. Klobuchar: I wish we could move forward with marriage equality, but I understand why. I appreciate all the work and the heart felt views. I wanted to say how proud I am of this committee. This has been the longest mark-up I've been involved in. This has been a bill that focused on security. I'm proud of this bill from the economic perspective. As well as the pathway to citizenship. Thank you for this civil mark-up.


Sen. Flake: Asked for adoption of technical amendments for Flake 3.


Sen. Coons: I want to add my thanks for a positive mark-up on this bill. But immigration also implicates are most fundamental values. There has been many tough votes cast. There are many members of the Gang of 8 who had offers they wanted be refrained from offering. Whether it is through court decision or amendments on the floor or legislation, Iit is my intent to end discrimination against same sex couples. I'm grateful at how hard you have worked. I recognize this evening may have not been the evening to consider UAFA.


Sen. Cornyn: I want to thank you for a good mark-up. My only regret is that more of my amendments did not pass. None of us are guaranteed that our amendments will pass. I too have been involved in this debate the entire time I've been in the Senate. I think I've made clear that the only way that I can support a piece of legislation if it credibly dealt with border security, which this bill does not, if it deals with 40% of visa overstays, which I look forward to working with Senator Feinstein on the floor, and an effective work site enforcement. The American people aren't mad at people who come here to work. I believe the American people are fundamentally compassionate. I believe if we deal with those issues. I regret that I am going to vote no on the bill coming out of committee. I will vote yes on a motion to proceed on the floor and encourage my colleagues to do the same. I believe it is important to get on the bill on the floor. I don't know if it will ever meet my standards on the floor. I can't vote for something that is not credible but I will work together with colleagues to further improve the bill on the floor. I do congratulate the gang of 8 in moving the bill forward.


Sen. Blumenthal: Like my colleagues, I want to thank you for your leadership and the compassion and commitment you brought to this debate. I also want to thank the ranking member for enabling us to improve this bill. I want to thank the group of 8. These deliberations have been what I thought the U.S. Senate would be. Finally, I thank you Mr. Chairman for your commitment to UAFA which I cosponsored. The greatest nation in the history of the world should not make people choose between living in the country they love and living with the person they love. I believe that there will be other opportunities. Again, I thank you Mr. Chairman.


Sen. Hirono: I do support your marriage amendment, I hope we can move forward to repeal DOMA. As a new Senator, it has been a real honor to be a part of this process.


Sen. Cruz: I would like to than the Chairman for his willingness to consider the amendments and for allowing vigorous debate on those amendments. This has been a long and painstaking mark-up, and I thank you for keeping it open. At the outset, I hoped this mark-up would be a productive mark-up of this bill. I noted the majority had the votes. I will note with regret that I believe that is what has happened. I want common sense immigration reform to pass. I think our immigration system is broken. I think there are large majorities who want to get immigration reform to pass. This bill does not stop the problem. Human tragedy would flow as a direct result of this bill. I believe this bill will not become law because it will not pass the House of Representatives and become law. In the course of this mark-up, I've introduced 5 amendments. One of the greatest failings of this bill is that it is almost utterly toothless with respect to the border. I think it is unfortunate that we saw the votes that we did.


Sen. Grassley: Coming into the debate I think I made my position clear. I vote for amnesty in 1986. Now we are back discussing the same problems with the same solutions. I hope we reach that point [where we fix this once and for all]. The sponsors of the bill want us to believe that it will be different. No one would dispute that this bill is legalization first and enforcement later. Yes, immigration reform is very much desired because the system is broken. But it is pretty much based on securing the borders. I used the committee process to attempt to strengthen border security. At the end of the day and with the power of majority, argued against securing the border for another decade the triggers are inefficient and ineffective. This bill falls short of what I want to see in a strong immigration bill. In Iowa, one of the resentments is that people who have gone through legally are resentful of people who jumped over the gate. I remain optimistic that on the floor we can vote on common sense amendments to improve the bill. Again, I respect that process we have had here in this committee. We had an open process which isn't new or unexpected. I'm glad that we continued this tradition. Now the hard work begins to fix this bill. Absent significant changes on the Senate Floor, the house should take up their own product. I thank the Chairman for working constructively. I will vote this bill to the floor. I hope that nobody has their mind made up on exactly how this bill will end up. I won't know if I'm for this bill or not until it gets to this process. The system is broke.


Sen. Leahy: I will put my whole statement in the record. First, I appreciate what Senators have said about the openness and fairness of this process. I want to thank every single Senator for cooperating. I want to single out 4 Senators for special recognition who worked many hours beyond to put this together. We've tried to work out the best and fairest way. This is not the bill I would have drafted. I voted for amendments that have been rejected and against amendments that have been adopted. My biggest regret is that this amendment will not protect all Americans. I hope that our history, our values and our decency as a people take action. We're Americans. We need an immigration system that lives up to American values. I call the roll on final passage of the legislation as amended.


S. 744 passes by a vote of 13-5.



May 14, 2013

Diversity Visa 2014 Program Results

Posted by Immigration Attorney Norka M. Schell
Contact: (212)564-1589
www.lawschell.com

The Department of State has released the Diversity Visa 2014 Program results. Entrants in the Diversity Visa (DV) 2014 program can check the results of the drawing on the E-DV website, https://www.dvlottery.state.gov/. Entrants should use the Entrant Status Check (ESC) on the E-DV. This is the only means to available for determining whether an applicant's entry was selected; no notice of selection will be mailed or e-mailed. Applicants must use the information from the confirmation pages that they were advised to save at the time when they made their entry. Those applicants whose entries were selected will receive further instructions through the ESC on how to proceed with their application.

For more information, please contact our office.

Our Economy Needs Skilled Workers To Help Business Grow

Release Date:

May 9, 2013
For Immediate Release

NEW YORK—Secretary of Homeland Security Janet Napolitano today traveled to New York where she met with business community leaders to discuss the need for commonsense immigration reform, which is critical to our nation’s economic health and prosperity.

“Over the past four years, the Department of Homeland Security (DHS) has worked to meet our immigration responsibilities in a smart, common-sense manner. Today our borders are more secure and our border communities are among the safest communities in our country,” said Secretary Napolitano. “In order to build on this strong record, America needs a 21st century immigration system that meets the needs of law enforcement, businesses, immigrants, communities, and our economy.”

During the meeting with leaders from the business community, Secretary Napolitano discussed the need for critical changes to the legal immigration in order to help business grow our economy by providing the skilled workers this country needs.

Secretary Napolitano also highlighted this Administration’s dedication of historic levels of personnel, technology, and resources to the Southwest border, noting that while challenges will always remain, every metric used to measure border security shows significant progress and improved quality of life in border communities. Commonsense immigration reform will build on this historic progress, enhancing border security, facilitating lawful trade and travel, reuniting families and promoting economic growth.


May 2, 2013

IMMIGRATION AND POLICY: Wage Methodology for Temporary Non-Agricultural Em...

IMMIGRATION AND POLICY: Wage Methodology for Temporary Non-Agricultural Em...: Posted by Immigration Business Lawyer Norka M. Schell www.lawschell.com Interim Final Rule Summary The Department of Homeland Securit...

Wage Methodology for Temporary Non-Agricultural Employment H-2B Program

Posted by Immigration Business Lawyer Norka M. Schell
www.lawschell.com

Interim Final Rule

Summary

The Department of Homeland Security (DHS) and Department of Labor (DOL) (jointly referred as Departments) are amending regulations governing certification for the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment. This interim final rule revises how DOL provides the consultation that DHS has determined necessary to adjudicate H-2B petitions by revising methodology by which DOL calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited connection with the application for certification; the prevailing wage is then used in petitioning, DHS to employ nonimmigrant workers in H-2B status. DOL and DHS are jointly issuing this rule in response to the court's order in Comite de Apoyo  a los Trabajadores Agricolasv. Solis, which vacated  portions of DOL's current prevailing wage rate regulation, and to ensure that there is no question that the rule is in effect nationwide in light of other standing litigation. This rule also contains revisions to DHS's H-2B rule to clarify that DHS is the Executive Branch agency charged with making case, question about the methodology for settling the prevailing wage in the H-2B program. www.regulations.gov/#!docketDetail;D=ETA2013-003

May 1, 2013

IMMIGRATION AND POLICY: USCIS IMMIGRANT FEE PAYMENT TO MOVE TO USCIS ELIS

IMMIGRATION AND POLICY: USCIS IMMIGRANT FEE PAYMENT TO MOVE TO USCIS ELIS: Posted by Immigration Lawyer Norka M. Schell Law  Offices of Norka M. Schell, LLC www.lawschell.com United States Citizenship and Immigr...

USCIS IMMIGRANT FEE PAYMENT TO MOVE TO USCIS ELIS

Posted by Immigration Lawyer Norka M. Schell
Law  Offices of Norka M. Schell, LLC
www.lawschell.com

United States Citizenship and Immigration Services (USCIS) is moving the existing online payment for the USCIS Immigration Fee to its Electronic Immigration System (USCIS ELIS). Customers will soon pay $165.00 USCIS Immigration Fee using USCIS ELIS after they receive their immigrant visa package from the Department of State (DOS) and before they depart for the United States.  New immigrants will also use USCIS ELIS to file future applications and petitions  when they become available in the system.

April 17, 2013

IMMIGRATION AND POLICY: BIPARTISAN GROUP OF SENATORS ISSUES JOINT STATEMEN...

IMMIGRATION AND POLICY: BIPARTISAN GROUP OF SENATORS ISSUES JOINT STATEMEN...: PRESS RELEASES April 17, 2013 WASHINGTON, DC— A bipartisan group of U.S. senators—including Senators Charles Schumer, John McCain, Dick ...

HEARING ON COMPREHENSIVE IMMIGRATION REFORM LEGISLATION UPDATE

The U.S. Committee on the Judiciary published a Notice that the Hearing on Comprehensive Immigration Reform Legislation will take place on April 22, 2013 at 10:00 a.m.

For more information see http://www.judiciary.senate.gov/hearings/hearing.cfm?id=8cbd56caad16c74c7ff47a4bf3bfabdf

BIPARTISAN GROUP OF SENATORS ISSUES JOINT STATEMENT ON COMMON-SENSE IMMIGRATION REFORM PROPOSAL

PRESS RELEASES

April 17, 2013

WASHINGTON, DC—A bipartisan group of U.S. senators—including Senators Charles Schumer, John McCain, Dick Durbin, Lindsey Graham, Robert Menendez, Marco Rubio, Michael Bennet and Jeff Flake—released the following joint statement upon the introduction of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013:

“Our immigration system is broken and it is time for a national conversation about how to fix it. We believe common-sense immigration reform is vital in order to secure America's borders, advance our economic growth, and provide fuller access to the American dream. Our bipartisan proposal is a starting point, and will be strengthened by good-faith input and ideas from across the ideological spectrum. We look forward to multiple Senate hearings on this bill, an open committee process with amendments, and a full and fair debate in the Senate.”

The full text of the bill is available online here.

April 12, 2013

Immigration Bill Expected to Focus on Work Skills

 Posted by Norka M.  Schell, Esq.

WASHINGTON — The sweeping immigration bill that a bipartisan group of senators is preparing will include a major new merit-based program for foreigners to become permanent legal residents based on their work skills, including both high-skilled and blue-collar workers, according to people familiar with a draft of the legislation.

Over time the program, just one piece of the bill, would open up many new opportunities for foreigners to settle in the United States based on their skills, a shift from the focus on family ties that is the main foundation of the current immigration system.

But the bill will also include a host of measures to eliminate, over 10 years, a backlog of 4.7 million immigrants who have applied to come here legally and have been languishing in the system, waiting for permanent resident visas known as green cards. As a result, during the next decade, millions of immigrants who have been waiting patiently for legal documents will be united with their family members here.

The bill, an intricate combination of many interlocking parts, also provides a path to citizenship for an estimated 11 million immigrants living in the country illegally. Under the plan, those immigrants would wait at least 13 years before they could apply to become citizens.

The eight senators who are drafting the legislation, including Charles E. Schumer of New York, a Democrat, and Lindsey Graham of South Carolina, a Republican, said this week that they had reached broad agreement on its major pieces and hoped to present it early next week.

Mr. Schumer said Thursday that all issues among the senators had been resolved. “All that’s left is the drafting,” he said.

At the crux of the legislation is an effort to bridge the gap between Democrats, who strongly support and are seeking to protect family immigration, and Republicans, who are eager to move immigration toward a system based on work skills that foreigners bring to the United States.

The senators are under pressure to move quickly to introduce the bill. Senator Patrick J. Leahy of Vermont, a Democrat who is chairman of the Senate Judiciary Committee, has scheduled a hearing for next Wednesday. This week, tens of thousands of immigrants and their supporters rallied Wednesday on the lawn of the Capitol, calling for a path to citizenship for all illegal immigrants in the country and urging Congress to move swiftly.

One major goal of the bill is to put immigrants who have been living in the country illegally at “the back of the line” behind immigrants who made every effort to follow the rules, so that no one here illegally would become legal residents or citizens until those already in the system have the chance to do so.

Also, at the insistence of Republicans — particularly Senator Marco Rubio of Florida, another member of the bipartisan group — the bill also avoids giving illegal immigrants a separate pathway to citizenship. Under the proposal, no new green cards would be created in the future exclusively for them.

Instead, in a novel compromise worked out in hard-fought negotiations, immigrants who had been here illegally would gain a provisional legal status in which they would remain for at least 10 years. They could work legally and travel, but they would not become permanent residents.

During the first decade, the aim is to clear backlogs. Then, formerly illegal immigrants could apply for merit-based green cards, along with many other foreigners applying legally. After three years with a green card, the formerly illegal immigrants would be eligible to apply to become American citizens.
Some Senate staff members stressed that the final draft of the bill is not complete, and that many details could change, although not the broad outlines and goals.

Among proposals to reduce backlogs is a plan to accelerate green card applications of foreigners living legally in the United States who have been waiting to receive their documents for 10 years or more.

Any immigrants who have been working legally in this country for 10 years would also move rapidly to receive green cards, either through the current system or later through the new merit system.
The plan would also free up additional green cards by eliminating a category of foreigners who are now eligible for those visas: siblings of United States citizens.

The bill would also remove annual limits on the number of green cards for a different category, spouses and minor children of legal permanent residents. The senators estimate that 800,000 immediate family members will move through the backlog and gain green cards over the next decade as a result of that change.

At the end of 10 years, the bill would create a program offering 138,000 merit-based visas each year to foreigners based on their work skills, but also on other considerations including family ties. Green cards will be offered to workers in three categories: high-skilled foreigners in technology and science, employees with a middle range of white collar skills, and low-wage workers. Farmworkers are not included, as they will come under a separate program.

Immigrants who will be eligible for merit green cards would include those formerly here illegally, if they have remained in good standing, learned English and passed other requirements, and remained employed for 10 years.

But other migrants would be eligible for those green cards as well, including agricultural guest workers who had been legally employed in this country for 10 years, and other temporary visa holders. There would be no special, dedicated path to citizenship for immigrants who had once lived in the country illegally.  The New York Times  on April 12, 2013. Authors: JULIA PRESTON and ASHLEY PARKER

April 6, 2013

IMMIGRATION AND POLICY: Homeland: Immigration in America Must See Video

IMMIGRATION AND POLICY: Homeland: Immigration in America Must See Video: By NYC Immigration Lawyer Norka M. Schell Law Offices of Norka M. Schell, LLC Tel. (212)546-1589 www.lawschell.com As you read this &#3...

Homeland: Immigration in America Must See Video

By NYC Immigration Lawyer Norka M. Schell
Law Offices of Norka M. Schell, LLC
Tel. (212)546-1589
www.lawschell.com

As you read this 'blog" I would like you to consider the following questions:

Who are the immigrants anyway?
What are their stories?
Why do we need U.S. Immigration Reform?
How do immigrants and immigration help us and our communities?


IMMIGRATION LAWS BACKGROUND

All stories have two sides and the story of U.S. immigration is not different.

The first one hundred years of our national existence was a period of unimpeded immigration. New settlers were important to the young nation and immigrants were welcomed. The gates were open and unguarded and all were free to come. This national policy paid rich dividends as the immigrants and their descendants contributed heavily to the growth of our nation.

During this period there was little federal legislation. An early attempt at restriction was the Alien Act of 1798, as part of the Alien and Sedition Laws, which authorized the President to expel from the United States any alien deemed dangerous. The legislation was very unpopular and was allowed to expire at the end of its two-year term. Late in 1864, Congress passed legislation designed to encourage immigration, and some of the states had active programs to promote immigration.

Even during this period of tolerance the policy favoring immigration was by no means unopposed. In the earliest days there were groups counseling restriction. As immigration continued to increased these groups gained support of other groups, and they were potent during times of economic depression. Some of the states were disturbed at the influx of immigrants and sought to impose local controls from time to time. However, some of these state statute were declared unconstitutional by the Supreme Court as an invasion of the exclusive federal power to regulate foreign commerce.

In 1875, Congress passed a statute barring convicts and prostitutes.
In 882, Congress adopted the first general immigration statute which imposed a head tax of 50 cents and excluded idiots, lunatics, convicts, and persons likely to become a public charge.  Also, in 1882 Congress passed the Chinese Exclusion Act.
In 1885 and 1887, Congress passed the contract labor laws, aimed at the practice of importing cheap foreign labor under labor contracts which depressed the labor market in the United States.

In the first decade of the twentieth century there was a vast increase in immigration, more than doubling the previous decade's arrivals. During four years of this decade annual immigration exceeded a million. In addition, the new immigrants were coming from southern and eastern Europe, instead of the previous migrations from northern Europe. The antagonisms which previously had been directed against the Irish-Catholic and German migrants were transferred to this "new" immigration. The vast tide of immigrants create uneasiness, which was accentuated during periods of economic crisis. The demand for further restrictions increased.

In 1917 Congress passed another comprehensive revision of immigration laws over the veto of President Wilson. The most controversial innovation of this legislation was the literacy test. Another new feature was the creation of an Asiatic Barred Zone to shut out Orientals. Japan alone was not included, since Japanese were dealt with by the so-called Gentleman's Agreement between the Governments of the United States and Japan.

At the conclusion of World War I immigration again began to increase. There was widespread fear of inundation by a flood of immigrants from the war-devastated countries of Europe, which resulted in the Quota Law of 1921, enacted as a temporary measure. This law allocated quotas to each nationality. In 1924, a permanent policy of numerical restriction was enacted.

On June 27, 1952, the Immigration and Nationality Act was enacted. The basic features of the 1952 Act were: "Every alien seeking to enter the United States was deemed an immigrant unless he established that he was a nonimmigrant. A nonimmigrant is one who establishes that he sought to come temporarily and originally included foreign government and international organization officials, visitors, aliens in transit to other countries, students, crewmen, treaty traders and temporary workers.

Every immigrant is deemed subject to the prescribed numerical limitations unless he is exempted from such limitations. The principal classes exempted from numerical restrictions by the Act of 1952 were alien spouses and children of American citizens, returning lawful residents, and natives of Western Hemisphere countries.

The Act established annual based on a system of national origins for immigrants who came from countries except those in the Western Hemisphere, Special racial quotas were established for Asians. The law also established preferences within the quotas for immigrants with specialized skills and certain relatives of American citizens and of resident aliens..."

As the immigration debate continues on, you are invited to listen to the debate and participate on constructive dialogue on immigration issues that will shape our immigration laws once again. http://video.pbs.org/video/2258259814

April 3, 2013

IMMIGRATION AND POLICY: Comite de Apoyo a los Trabajadores Agricolas et al...

IMMIGRATION AND POLICY: Comite de Apoyo a los Trabajadores Agricolas et al...: IMMEDIATE RELEASE USCIS has temporarily suspended adjudication of certain Form I-129 H-2B petitions for temporary non-agricultural work...

Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa) - Suspension of Adjudication of Most H-2B Petitions Following Court Order

IMMEDIATE RELEASE

USCIS has temporarily suspended adjudication of certain Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa). http://www.dol.gov/eta/regs/unifiedagenda/fall2010/1205-AB61.htm
The Court’s order granted a permanent injunction against the operation of the portion of the 2008 wage rule related to certain prevailing wage determinations and gave the Department of Labor (DOL) 30 days to come into compliance with the Court order. Following the Court’s order, DOL announced that it can no longer make prevailing wage determinations based on the Occupational Employment Statistics (OES) survey four-tier wage system. DOL will, however, continue to process prevailing wage requests not subject to the court order, including prevailing wage determinations using applicable Collective Bargaining Agreements, acceptable private wage surveys, or Service Contract Act or Davis Bacon Act wages.  DOL intends to comply with the Court order within 30 days by promulgating a revised wage rule.

Accordingly, USCIS has temporarily suspended adjudication of H-2B petitions that are accompanied by temporary labor certifications (TLCs) issued by DOL when those TLCs are based on OES four-tier prevailing wage determinations. USCIS has also suspended premium processing for all H-2B petitions until further notice. Petitioners who have already filed H-2B petitions using the premium processing service, and who receive no agency action on their cases within the 15-calendar-day period, will receive refunds.
 
USCIS will be issuing notices on all pending petitions in order to determine the source of the prevailing wage determination (PWD). USCIS will not consider these notices as an "agency action" for premium processing purposes.

If it is determined that your pending petition is accompanied by a TLC that is based on a PWD utilizing applicable Collective Bargaining Agreements, acceptable private wage surveys, or Service Contract Act or Davis Bacon Act wages, USCIS will resume adjudication of your H-2B petition.

In addition, USCIS will adjudicate H-2B petitions that are filed with TLCs issued by DOL on or after March 22, 2013.

Furthermore, USCIS will continue adjudicating H-2B petitions for non-agricultural temporary workers on Guam if the petitions are accompanied by TLCs issued by the Guam Department of Labor (GDOL).

Finally, USCIS may adjudicate an H-2B petition if it can be resolved on issues unrelated to the OES four-tier prevailing wage determination.

Once a revised prevailing wage rule is promulgated, USCIS will resume adjudication of all H-2B petitions.

For information on H-2B petitions, please contact the Law Offices of Norka M. Schell at (212)564-1589 or visit our website at www.lawschell.com


March 21, 2013

IMMIGRATION AND POLICY: FedEx Settled Charges of Hiring Discrimintation

IMMIGRATION AND POLICY: FedEx Settled Charges of Hiring Discrimintation: Posted by Norka M. Schell, Employment Discrimation Attorney www.lawschell.com RELEASE Shipping giant FedEx settled charges of hiring di...

IMMIGRATION AND POLICY: USCIS ANNOUNCED THAT IT WILL BEGIN ACCEPTING H-1B ...

IMMIGRATION AND POLICY: USCIS ANNOUNCED THAT IT WILL BEGIN ACCEPTING H-1B ...: Posted by Attorney Norka M. Schell,  NYC Immigration Attorney Law Offices of Norka M. Schell, LLC www.lawschell.com U.S. Citizenship and...

USCIS ANNOUNCED THAT IT WILL BEGIN ACCEPTING H-1B PETITIONS ON APRIL 1, 2013

Posted by Attorney Norka M. Schell,  NYC Immigration Attorney
Law Offices of Norka M. Schell, LLC
www.lawschell.com

U.S. Citizenship and Immigration Services (USCIS) announces that it will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2014 cap on Monday, April 1, 2013 and Premium Processing for Cap-Subject H-1B Petitions will begin April 15, 2013.

U.S. Citizenship and Immigration Services will considered cases accepted on the date that USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.   The cap (the numerical limitation on H-1B petitions) for FY 2014 is 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000.

USCIS uses the information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 17 through 19) to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”). Some petitions are exempt from the cap under the advanced-degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master's degree or higher.

Unless otherwise exempt from the cap, petitions filed on behalf of beneficiaries who have obtained a U.S. master's degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced-degree exemption. In addition, petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Mariana Islands are exempt from the cap until December 31, 2014. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count toward the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• extend the amount of time that a current H-1B worker may remain in the U.S.
• change the terms of employment for current H-1B workers
• allow current H-1B workers to change employers
• allow current H-1B workers to work concurrently in a second H-1B position

USCIS advises that it anticipates that it may receive more petitions than the H-1B cap between April 1, 2013, and April 5, 2013. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, USCIS will use a lottery system to randomly select the number of petitions required to reach the numerical limit. USCIS will reject petitions that are subject to the cap and are not selected as well as petitions received after it has the necessary number of petitions needed to meet the cap. The lottery for the H-1B cap was last used in April 2008.
 
In addition, H-1B cap cases can continue to request premium processing concurrently. Due to the historic premium processing receipt levels combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master's degree or higher on April 15, 2013.
 
For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, contact us at (212)564-1589 or visit http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f537eff29cb6d310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

March 13, 2013

IMMIGRATION AND POLICY: Visa Bulletin For April 2013

IMMIGRATION AND POLICY: Visa Bulletin For April 2013: FAMILY-BASED PREFERENCES Family-Sponsored All Charge-ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES F1...

Visa Bulletin For April 2013


FAMILY-BASED PREFERENCES

Family-SponsoredAll Charge-ability Areas Except Those ListedCHINA- mainland bornINDIAMEXICOPHILIPPINES
F108MAR06 08MAR0608MAR0601AUG9315FEB99
F2A15DEC10 15DEC1015DEC1001DEC1015DEC10
F2B08APR0508APR0508APR0522FEB9315JUL02
F322JUL0222JUL0222JUL0222MAR9301OCT92
F401MAY0101MAY0101MAY0101SEP9615AUG89



EMPLOYMENT-BASED PREFERENCES

Employment- BasedAll Chargeability Areas Except Those ListedCHINA- mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01APR0801SEP04CC
3rd01JUL0722APR0708DEC0201JUL0708SEP06
Other Workers01JUL0701AUG0308DEC0201JUL0708SEP06
4thCCCCC
Certain Religious WorkersCCCCC
5th
Targeted
Employment
Areas/
Regional Centers and Pilot Programs
CCCCC

March 11, 2013

IMMIGRATION AND POLICY: New Employment Eligibility Verification Form I-9

IMMIGRATION AND POLICY: New Employment Eligibility Verification Form I-9: By: NYC Immigration Attorney Norka M. Schell Law Offices of Norka M. Schell, LLC www.lawschell.com The E-Verify or Electronic Verificati...

New Employment Eligibility Verification Form I-9

By: NYC Immigration Attorney Norka M. Schell
Law Offices of Norka M. Schell, LLC
www.lawschell.com

The E-Verify or Electronic Verification system originated in 1996 as the "Basic Pilot" system. This is a program in which employment eligibility of all newly hired employees will be confirmed electronically by access to SSA's and Department of Homeland Security's databases.

The Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) published last week a new Employment Eligibility Verification Form I-9.

What has changed on the I-9 Form?

  • The new I-9 Rorm has English and Spanish versions.

  • The instructions to the new version of the I-9 Form are more clear.

  • The I-9 Form has extra fields that make the form more friendly.

  • The I-9 Form also describe clearly the information employees and employers must provide in each section.

The E-Verify or Electronic Verification system originated in 1996 as the "Basic Pilot" system. This is a program in which employment eligibility of all newly hired employees will be confirmed electronically by access to SSA's and Department of Homeland Security's databases.

The new I-9 Form is available immediately. Employers should complete the new I-9 Form for new hires and for reverification purposes. It is not necessary to complete a new form for existing employees if a previously properly completed I-9 Form is being maintained by the employer.

Employers who need to make necessary updates to their business processes to allow for use of the new Form I-9 may continue to use other previously accepted revisions (Rev.02/02/09) and (Rev. 08/07/09) until May 7, 2013 date. After May 7, 2013, all employers must use the revised Form I-9 for each new employee hired in the United States.

For more information, please contact our office at (212)564-1589.

March 6, 2013

IMMIGRATION AND POLICY: Hearing on “Enhancing American Competitiveness thr...

IMMIGRATION AND POLICY: Hearing on “Enhancing American Competitiveness thr...: PRESS RELEASE March 5, 2013 Statement of Judiciary Committee Chairman Bob Goodlatte Subcommittee on Immigration and Border Security H...

Hearing on “Enhancing American Competitiveness through Skilled Immigration”

PRESS RELEASE
March 5, 2013


Statement of Judiciary Committee Chairman Bob Goodlatte
Subcommittee on Immigration and Border Security
Hearing on “Enhancing American Competitiveness through Skilled Immigration”


Chairman Goodlatte: The contributions of highly-skilled and educated immigrants to the United States are well-documented. Seventy-six percent of the patents awarded to our top patent-producing universities had at least one foreign-born inventor.  According to a recent report, these foreign-born inventors “played especially large roles in cutting edge fields like semiconductor device manufacturing, information technology, pulse or digital communications, pharmaceutical drugs or drug compounds and optics.” 

A study by the American Enterprise Institute and the Partnership for a New American Economy found that an additional 100 immigrants with advanced STEM degrees from U.S. universities is associated with an additional 262 jobs for natives.  The study also found that immigrants with advanced degrees pay over $22,000 a year in taxes yet their families receive less than $2,300 in government benefits.

The United States has the most generous legal immigration system in the world – providing permanent residence to over a million immigrants a year.  Yet, how many of those immigrants do we select on the basis of the education and skills they can bring to America?  Only 12% -- barely more than one out of 10 -- and that is including the immigrants’ family members.

Given the outstanding track record of immigrants in founding some of our most successful companies, how many immigrants do we select on the basis of their entrepreneurial talents?  Less than 1% -- and that is only if they already have the hundreds of thousands of dollars needed to participate in the investor visa program.  

Does any of this make sense, given the intense international economic competition that America faces?  Does any of this make sense, given that many talented foreign graduates of our best universities are giving up hope of getting a green card and are packing up and moving home to work for our competitors?  Does any of this make sense, given that Indian nationals with advanced degrees sought out by American industry have to wait over eight years for a green card?  Does any of this make sense, given that Australia, the United Kingdom and Canada each select over 60% of immigrants on the basis of skills and education?  The answer is clearly not.

It is as if we purposely add weights to handicap our horse in order to give our competitors a better shot at the winner’s circle.  This just doesn’t make sense as national economic policy. The House of Representatives acted last year to rechart our course.  We voted by over a hundred vote margin to pass legislation by former Chairman Smith that redirected 50,000 or so green cards a year from winners of the diversity visa lottery toward foreign students graduating from our universities with advanced degrees in STEM fields.  That bill would have made all Americans winners.  Unfortunately, at the direction of the White House, the bill died in the Senate.

In this new Congress, we can rechart our nation’s course anew.  We should look at all aspects of high-skilled immigration policy.  We can look for ways to improve our temporary visa programs for skilled workers – such as H-1B and L visas.  We can look for ways to improve our temporary visa program for entrepreneurs – the E-2 program.  We can look for ways to offer green cards to aspiring entrepreneurs that don’t demand that they themselves be rich but that instead rely on the judgment of the venture capitalists who have funded them.  We can look for ways to reduce the backlogs for second and third preference employment-based green cards.  And we can seek to help the United States retain more of the foreign students who graduate from our universities. 

Of course, at the same time, we need to ensure that whatever we do brightens rather than darkens the career prospects of American students and American workers.  Even newly-minted PhDs are not immune to sometimes bleak employment prospects. 

But attracting the world’s best and brightest is decidedly in the interests of all Americans.  Just think of the incredible economic windfall that America experienced through the arrival of scientists fleeing Nazism in the 1930s and 1940s.  This was one of the factors that enabled the post-war economic boom.  Today, talented individuals have many options worldwide as to where to relocate.  America needs to regain its place as the number one destination for the world’s best and brightest.  That should be our goal.

March 5, 2013

IMMIGRATION AND POLICY: PROVISIONAL WAIVERS INTRODUCED BY USCIS

IMMIGRATION AND POLICY: PROVISIONAL WAIVERS INTRODUCED BY USCIS: Posted by the Immigration Attorney Norka M. Schell Law Offices of Norka M. Schell, LLC www.lawschell.com U.S. Citizenship and Immigratio...

PROVISIONAL WAIVERS INTRODUCED BY USCIS

Posted by the Immigration Attorney Norka M. Schell
Law Offices of Norka M. Schell, LLC
www.lawschell.com

U.S. Citizenship and Immigration Services sent this bulletin at 03/04/2013 10:21 AM EST

Beginning March 4, certain immigrant visa applicants who are the spouses, children and parents of U.S. citizens (immediate relatives), and have been unlawfully present in the United States, can start applying for provisional unlawful presence waivers through a new process.

The new provisional unlawful presence waiver process is for certain individuals who seek a waiver of inadmissibility only for unlawful presence. They can now apply for a provisional unlawful presence waiver while in the United States and before departing for their immigrant visa interview at a U.S. Embassy or Consulate abroad. Under the current process, which continues to remain in effect, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States have to travel abroad and be found inadmissible at their immigrant visa interview before they can apply for an inadmissibility waiver.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members go through the process of becoming lawful permanent residents of the United States. For eligibility details and information on the process, please visit: http://www.uscis.gov/provisionalwaiver
                             

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February 23, 2013

Justice Department Reaches Settlement With Avant Healthcare Professionals LLC To Resolve Immigration -Related Unfair Employment Practices

Posted by Norka M. Schell, NY Immigration Attorney
Law Offices of Norka M. Schell, LLC
www.lawschell.com

DEPARTMENT OF JUSTICE

The Justice Department reached a settlement agreement with Avant Healthcare Professionals, LLC, a healthcare staffing company based in Casselberry, Fla., resolving allegations that the company posted discriminatory job advertisements on the internet.

According to the department investigation, hundreds of Avant Healthcare Professionals' internet-based job postings contained discriminatory language, permissibly preferring foreign-trained individuals seeking permanent residence or H-1B visa sponsorship over U.S. workers. The Immigration and Nationality Act (INA) prohibits employers from discriminating on the basis of citizenship or immigration status unless required by law, regulation or government contract. None of those limited exceptions applied to Avant's recruitment efforts.

Under the terms of the settlement agreement, Avant has agreed to pay $27,750 in civil penalties, to change its internal policies and written procedures to incorporate the INA's anti-discrimination protections, and to be subject to reporting and compliance monitoring requirements for a period of three years.

"Federal law protects authorized U.S. workers from illegal and discriminatory preferences," said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. "Employers have a statutory obligation to monitor their online job postings to ensure that they do not violated the anti-discrimination provision of the INA.

The Office of Special Counsel for Immigration Related Unfair Employment Practice (OSC) is responsible for enforcing the anti-discrimination provision of the INA. For more information about protection against employment discrimination under the immigration laws, call the OSC's worker hot line at 1-800-255-7688 (1-800-2372525, TDD for hearing impaired), call the OSC's employer hot line at 1-800-255-8155 (1-800-362-2735, TDD for hearing impaired), sign up for a no-cost webinar at www.justice.gov/about/osc/webinars.php, email to osccrt@usdoj.gov or visit the website at www.justice.gov/crt/about/osc.


IMMIGRATION AND POLICY: Justice Department Reaches Settlement with FTD Inc...

IMMIGRATION AND POLICY: Justice Department Reaches Settlement with FTD Inc...: Postad by Norka M. Schell, Immigration Attorney Law Offices of Norka M. Schell, LLC DEPARTMENT OF JUSTICE IMMEDIATE RELEASE The Justi...