Immigration Visa Lawyer Blog

While some parts of the country have taken strong stands against purportedly "illegal" immigration, to the point of sometimes appearing hostile to immigrants in general, Ohio and much of the Midwest have adopted an attitude of welcome. Studies conducted in the past few years have demonstrated that immigrants have a great deal to offer local and state economies, and Ohio's immigrant community has quite a bit to offer the state.

The United States Census Bureau released a report earlier in February examining the percentage of people in America with college degrees and higher. It found that, as of March 2011, the percentage of Americans age twenty-five years and up with at least a bachelor's degree is the highest it has ever been, exceeding thirty percent. According to the Dayton Business Journal, this data came to the attention of the Association of Independent Colleges and Universities of Ohio, which decided to take a closer look at the numbers. The results are intriguing.

As of 2009, which is the most recent year for which data are available for individual states, twenty-four percent of Ohio adults age 25 and older had a bachelor's degree or higher. This percentage was, at the time, four percentage points below the national average.

Nationwide, twenty-seven percent of immigrants in the United States had at least a bachelor's degree at that time, slightly lower than the number for U.S.-born individuals. In Ohio, the number among immigrants was thirty-nine percent, almost a complete reversal of the figures for the rest of the country. The Association's president accounted for this by pointing out that immigrants do not enter the United States via Ohio. Immigrants coming to Ohio, therefore, are more likely to do so deliberately rather than out of opportunity. Employers like Honda's Ohio-based American branch and educational institutions that attract students from around the world account for much of the influx of educated immigrants.

Ohio has made several efforts to reach out to immigrants to encourage them to move to, and invest in, the state. This Immigration Visa Lawyer Blog reported last year about the City of Dayton's proclamation that it is "immigrant-friendly." Dayton's City Commission voted unanimously last October to enact a plan to make the city welcoming to immigrants who want to invest and start businesses. We also reported on efforts by Ohio business leaders to attract international entrepreneurs to the state, offering assistance to foreigners who want to apply for immigrant visas as foreign investors. Ohio leaders hope that attracting immigrant workers and business owners will stimulate the state's and the region's economy.

Continue reading "Ohio's Immigrants Have a Higher Rate of Education Than in the Rest of the Country" »

After several decades living in the United States, a time which included two deportation attempts and some time in jail, Nigerian-born Magnus Duruji finally became a U.S. citizen on February 22, 2012. Along with fifty others, representing twenty-seven different countries, he took the oath of citizenship before U.S. Magistrate Judge Norah McCann King at the federal courthouse in downtown Columbus. Duruji's story demonstrates just how much determination can be required to achieve the American dream.

Duruji arrived in the United States on a student visa in 1982 to attend Ohio Dominican University. He needed money, so despite a legal prohibition on working with a student visa, he took a job at a Columbus restaurant. Immigration agents raided the place in 1983 and arrested him. A judge ordered him deported, but the deportation was delayed for several months. His case fell through the cracks, and the government took no further action on his case for years.

Duruji went on to earn undergraduate and graduate degrees and marry an American citizen. He had several children, four in all, and bought a home and some real estate investments. He eventually became a chef.

In 1997, Duruji applied for legal permanent resident status, hoping to clear up his immigration record and clear a path to citizenship. When the government reviewed his application, it located the 1983 deportation order. The law had changed in the fourteen years since the order, and the specific law he had violated was not even in force anymore. Immigration agents arrested him anyway and initiated the deportation process.

The owner of the restaurant where he worked, Cameron Mitchell, held a rally in his support. Ohio Governor John Kasich, who at the time was a member of the U.S. Congress, worked behind the scenes with immigration authorities to try to help Duruji. Duruji drafted his own petition while behind bars challenging his imprisonment. Magistrate Judge King, who would one day preside over his citizenship oath, approved his petition, and a U.S. district judge ordered his release from prison. Eventually, the behind-the-scenes negotiations got him a green card in 2001.

Duruji has dealt with further hardships since his release from prison and acquisition of permanent resident status. He lost his rental properties to foreclosure while his deportation case was ongoing. He developed, then beat, cancer. He opened three restaurants and saw them all fail. He lost one of his four children to untreated food poisoning in 2008.

Still, Duruji decided to try for citizenship again a few years ago, and his dream of becoming a citizen finally came true on Wednesday.

Continue reading "Nigerian Man Who Settled in Columbus Decades Ago Becomes a Citizen" »

Presidential candidate Newt Gingrich believes that credit card companies could play a part in verifying immigration status and employment eligibility, which could help control immigration fraud. He announced that as president he would create a new guest worker program, reform the current e-verify system, and outsource immigration status checks to credit card companies. "We'd be far better off to outsource e-verify to American Express, MasterCard or Visa, because they actually know how to run a program like that without massive fraud," said Gingrich.

Gingrich's immigration proposal hopes to streamline the application process for H-1B visas. The plan would take advantage of the credit card companies' behavior-tracking software, which tracks credit card purchases, and Gingrich says that the same software could be used to look at behavioral patterns and detect when someone is improperly using a visa.

The current H-1B visa application process is too long and difficult, and may cause skilled workers to take their expertise to foreign countries if they can't obtain H-1B work visas in the U.S., according to Kerry Fields, Professor of Clinical Finance and Business Economics at the University of Southern California Marshall School of Business. "Industries are suffering greatly in the United States, because the U.S. government cannot well-administer the [H1B] visa program," Fields said.

Research Director for the Aite Group, Julie McNelley says, however, that regarding preliminary identify verification, "I don't think that outsourcing it to private industry makes a whole lot of sense because the government source data is the best data available for this."

The E-2 "treaty investor" visa allows a foreign investor to come to the United States to develop and direct the operations of an enterprise in which the investor has an active investment. The E-2 does not require any minimum investment, so it is flexible enough to allow many smaller investors to realize their dream of opening and running a business in the United States.

Instead of a minimum investment, the E-2 requires that the investment pass a subjective "marginality" test. If the investor's business "does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family," the business is considered marginal and the visa (or its renewal) will be denied. Marginality has become enough of an issue to generate several articles in the New York Times chronicling E-2 denials of small business investors, such as "Maine Business Is Shut Without a Renewed Visa" and "A Town Fights to Save an Oasis of Baguettes."

Can an investor use other income - income not generated from the investment itself - to pass the marginality test? Courts say yes, and have reversed denials where the investor's non-investment income was not considered. This happened in Matter of Kung, a 1978 decision by the Board of Immigration Appeals, as well as in Chung v. INS, a federal district court decision from 1987.

Furthermore, the Department of State's own book of rules for issuing visas, the Foreign Affairs Manual, used to state that "it becomes necessary to consider other factors" to determine marginality if the income from the investment did not exceed what was necessary to support the investor's family. This was part of a two part test for analyzing marginality, and the language was certainly in line with the court decisions that allowed examining such income.

In 2009, the Department of State changed the language of the Foreign Affairs Manual that described the marginality analysis. It eliminated the two part test and shifted the emphasis to the investment enterprise itself, rather than what the individual investor could show. Most importantly, the "other factors" language was eliminated. Some practitioners and commentators believe that taking this language out means that non-investment income cannot now offset an investment's marginality. For example, Ira J. Kurzban's Immigration Law Sourcebook regards the deletion as "confirm[ing] that evidence of other income is no longer a factor that may be considered."

However, neither Matter of Kung nor Chung v. INS used the "other factors" language as support for their decisions.Rather, Matter of Kung focused on other language in the regulations regarding marginality, stating that "a 'small amount of capital in a marginal enterprise solely for the purpose of earning a living' must be applied to a given situation in its entirety." (emphasis added) Even if the "other factors" language was added to the Foreign Affairs Manual as a result of Matter of Kung, taking that language out again does not affect what the case stands for: that it is an error to not allow non-investment income to overcome the marginality test for an E-2 applicant.

Because of this, potential investors should not be discouraged from considering the E-2 visa because of the size of the investment or its initial ability to generate income, particularly if they have other income or assets with which to support themselves. Marginality is just one of several complex requirements of the E-2 treaty investor visa. Because of the complexity and care with which E-2 visas must be prepared, potential investors should consult a competent and experienced attorney to help them achieve their dream of business ownership in the United States.

Lidiane Carmo's family came to the United States twelve years ago. Lidiane was only a toddler at the time. They arrived here from Brazil with nonimmigrant visas, but they remained after the visas expired. According to friends and relatives, the family always wanted to become legal U.S. residents, but they never had a legal mechanism to do so. The family settled in suburban Atlanta, where Lidiane's father co-founded a church and became one of its pastors. By all accounts, Lidiane became a "regular American girl." She has little knowledge of her native Brazil and can barely speaks Portuguese.

Today she is a high school freshman, age 15, who has survived an unspeakable tragedy. On January 29, she and her family were returning home from Orlando, Florida, where they had attended a church conference. They were involved in a massive car accident, allegedly brought on by smoke from a brush fire that blinded drivers on Interstate 75 near Gainesville. Lidiane's father, mother, and 17 year-old sister died in the crash, along with her uncle and his girlfriend. Lidiane was the only survivor from her family's vehicle, a church van. The multi-vehicle crash killed a total of eleven people and injured eighteen more. Lidiane suffered serious injuries requiring at least two surgeries so far.

Her community immediately began to worry that, without legal immigration status and no immediate family, immigration authorities would try to deport her. Immigration and Customs Enforcement (ICE) quickly responded that they had no intention of doing so. "Reports of her facing deportation are completely false," said an ICE spokeswoman.

ICE cited the policy of the Obama administration, announced last summer, to prioritize certain individuals for deportation. Lidiane's case is very low on the list of priorities. The director of ICE issued a memorandum last June encouraging ICE officials to use discretion in pursuing deportations and listing factors for officials to consider. The highest priority group consists of convicted and violent criminals, threats to national security, and repeat offenders of immigration laws. Lidiane, who came to the U.S. at the age of two and knows no other home, is a very low priority for ICE.

Continue reading "ICE Will Not Deport Brazilian Teen Who Survived Car Crash" »

The Obama administration has argued that the U.S. is in need of engineers, especially in high tech industries. He publicly defended the H-1B visa category during an online forum where the wife of a laid-off U.S. tech worker told the president that her husband, a semiconductor engineer, was laid off from his full-time job at Texas Instruments three years ago following a plant shutdown. She asked why the government continues to issue H-1B visas when many U.S. tech workers are jobless. Obama replied that the H-1B program does not displace U.S. workers because it should be reserved only for those companies who say they cannot find somebody in that particular field. Obama said that the industry leaders have told him that there aren't enough of certain kinds of high-tech engineers in America to meet their needs (see here). This would make it appear that Obama is in favor of the H-1B visa program.

On the other hand, the administration seems to have all but declared war on the H-1B visa category by stepping up its enforcement unannounced H-1B employer audits. The government has increased the number of H-1B visa denials to those foreign nationals of countries with a large number of IT professionals, such as India. The administration has been silent regarding the arbitrary cap set by Congress that currently prevents U.S. employers from hiring new H-1B workers for the next 8 months.

Furthermore, Obama's statement that the H-1B visa "should be reserved only for those companies who say they cannot find somebody in that particular field" is incorrect. Companies are not required to show they cannot find U.S. workers for the positions they seek to fill with H-1B workers. The real question here is whether Obama was merely incorrect, or does he actually seek to change our perception of the H-1B rules?

The administration seems to be targeting the H-1B visa program for scrutiny, yet ignoring other areas of immigration enforcement. The Obama administration recently announced its prosecutorial discretion policy to target for deportation those undocumented immigrants convicted of crimes, and its intent not to pursue deportation for those without criminal records. The new immigration policy seems to be a plan to forgive and forget undocumented immigrants so long as they don't have criminal records, but a plan to crack down on H-1B employment through heavy handed enforcement and more H-1B visa denials.

President Obama has yet to announce his clear plan for immigration reform. This being an election year, it is unlikely that we will see the president take a clear stance on either side of the issue.

A gay couple on Long Island learned last month that they have achieved a victory, albeit a temporary one, in their struggle to keep one of them in the United States legally. After several New York politicians spoke on the couple's behalf, United States Citizenship and Immigration Services (USCIS) granted a reprieve to Tim Smulian, a 65 year-old citizen of South Africa, so that he may stay and care for his husband, 70 year-old New York native Edwin Blesch.

Smulian and Blesch were married in South Africa in 1999. Their marriage is legally recognized by both the state of New York and Suffolk County, where they reside. Federal law, under the Defense of Marriage Act (DOMA), does not recognize their marriage. Smulian is in the United States on a tourist visa, which he must renew annually. Since 1999, he and Blesch have spent six months in the U.S. and six months abroad. Blesch is suffering from HIV, and he suffered a series of mini-strokes a few years ago, along with other complications from his illness. He is therefore no longer able to travel with Smulian. Smulian is trained to care for HIV patients and is Blesch's primary caregiver.

With Smulian's status as a "tourist" and Blesch's poor health, they faced separation of at least six months each year. Smulian's visa was set to expire at the end of 2011, so they applied to adjust Smulian's status to legal permanent resident as the spouse of a United States citizen. USCIS would normally deny the application, since DOMA prohibits the federal government from recognizing the legal validity of a same-sex marriage. They asked USCIS to use its discretion to grant them an exception, partly on humanitarian grounds and partly because DOMA has been the subject of multiple legal challenges.

Several politicians advocated on Smulian's and Blesch's behalf, including New York Senators Charles Schumer and Kirsten Gillibrand. USCIS decided in early February to grant Smulian "deferred action" status, meaning the government will take no action on Smulian's case for at least a year. This does not grant Smulian any specific immigration benefit, but it does give him and Blesch time to find a way to proceed with their green card application.

Smulian's tourist visa, also known as a visitor visa, is a "nonimmigrant" visa for "pleasure, tourism or medical treatment." It requires that the visa holder intend to return to his or her country of origin when the visa expires. It often also requires that the visa holder physically leave the country in order to renew the visa, which is what Smulian and Blesch had to do every year.

Continue reading "USCIS Grants Deferred Status to Man on Tourist Visa So He May Care for Sick Husband" »

H-1B workers in the information technology field are better educated and earn more money than US workers in IT field, according to a new report by the Public Policy institute of California. However, the report is not without its critics.

The report found that the average wage income of an H-1B IT worker is 10 percent higher than that of a US worker. The report also shows that the average age of an H-1B IT worker is 30, while the average US IT worker is age 40. Less than 25 percent of US workers have a graduate degree, while nearly 50 percent of H-1B workers have a graduate degree.

The study was conducted by economists Magnus Lofstrom and Joseph Hayes in which they combine the data they obtained through Freedom of Information Act requests to the US Citizenship and Immigration Services and the US Census. Specific data about the H-1B worker population was taken from I-129 H-1B visa petitions including occupation, industry, education, age, and annual earnings. Specific data about US workers was taken from the US Census America Community Survey, which uses a 1 percent sample of the US population.

The study is getting attention from H-1B program supporters and critics as well. Norman Matloff, Professor of Computer Science at the University of California at Davis, disagrees with the report's findings. In his own written response to the report, Matloff takes issue with the authors' "incorrect descriptions of previous research findings to inaccurate descriptions of the H-1B visa itself." Matloff also believes the authors' statistical analyses are based on an inadequate understanding of the nature of the labor markets in question, and he further states that the authors cited two of Matloff's research papers several times but missed the central point of his research. The report did not examine some H1-B data factors, including the types of companies that hire H-1B workers.

U.S. Citizenship and Immigration Services (USCIS) recently announced that it will no longer approve its standard international adoption forms for United States residents seeking to adopt children from Vietnam. It bases this decision on a finding by the Department of State (DOS) that Vietnam has not complied with its responsibilities under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention). For now, people wanting to adopt a child from Vietnam must wait until DOS determines that Vietnam can comply with the Convention.

The Hague Adoption Convention is an international convention that governs adoption between countries and guards against child trafficking. It went into effect on May 1, 1995 and is centrally administered by the Hague Conference on Private International Law (HCCH). Eighty-five countries are signatories, and eighty-two of those countries have ratified the Convention. The United States signed the Convention in 1994, but did not ratify it until 2007. It went into force in the U.S. on April 1, 2008. The Convention took effect in Vietnam this month, according to HCCH.

The Convention sets up safeguards to protect children from abduction and international trafficking, and requires countries to cooperate in maintaining those safeguards. First and foremost, it requires countries to make sure adoptions are in a child's best interests. In the United States, DOS is responsible for ensuring compliance with the Convention. Adoption agencies must have accreditation from DOS, and they must operate with transparency.

Typically, someone seeking to adopt a child from abroad would file a Form I-800, "Petition to Classify Convention Adoptee as an Immediate Relative," with USCIS, but USCIS advises people not to do that until further notice from DOS. The Form I-800 would follow approval of Form I-800A, "Application for Determination of Suitability to Adopt a Child from a Convention Country." This is the form for prospective adoptive parents to request a determination by USCIS of their suitability to adopt a child from a Convention country. The I-800 then asks USCIS to determine the child's eligibility under the Convention.

Continue reading "USCIS Suspends Adoptions of Children from Vietnam Without State Department Approval" »

Those foreign nationals who have been ordered deported may have a new ground to appeal their deportation orders, as a result of a recent court decision. The 9th U.S. Circuit Court of Appeals halted the deportations last week of seven illegal immigrants on the ground that they have no criminal record. The seven were ordered deported before the Obama administration's announcement last June of a new policy that would target criminals for deportation and allow non-criminals to stay indefinitely.

After the administration's announcement last year, Homeland Security Secretary Janet Napolitano announced that the government would review approximately 300,000 active and pending deportation cases for those people not detained by authorities. The administration denied assertions by critics that the new discretion policy and the plan to review cases is really a type of amnesty. Rather, the administration stated, the purpose of the plan is to make efficient use of the government's limited resources. There are currently about 1.6 million deportation cases in the U.S. courts. Napolitano said this was an effort to ease the backlog of pending cases and focus the department's limited resources on deporting criminals and others who pose a risk to the United States.

The Court decided to delay the seven deportation orders until the Obama administration re-evaluates their cases, and the Court gave the administration until March 19 to make a decision. This ruling could encourage a surge of deportation appeals by foreign nationals without a criminal record who seek a similar ruling. Immigration attorneys will likely push for such deportation appeals in all the other circuit courts as well.

The rate at which US immigration authorities deny H-1B and L-1 nonimmigrant visas has increased within the last four years, and the rate is even higher to foreign nationals from India, according to a recent report released by the National Foundation for American Policy (NFAP). New data recently released from the US Citizenship and Immigration Services (USCIS) reveal that it has increased denials since 2008.

The data illustrate just how sharply the rate has jumped. In Fiscal Year 2008, L-1B denials were at 2.8 percent. That number rose to 22.5 percent in Fiscal Year 2009. In fact, there were more L-1B visa denials for Indian nationals in 2009 (1,640) than there were in the previous nine years combined (1,341).

Denial rates for H-1B petitions have increased dramatically as well. Denial rates for Indian nationals increased from 11 percent in 2007 to 29 percent in 2009, 21 per cent in 2010, and 17 percent in 2011.

According to the NFAP report, the dramatic increase in denial rates and Requests for Evidence for employment petitions without any change in the law or regulations raises questions about the training, supervision and procedures of the career bureaucracy that adjudicates petitions and the US government's commitment to maintaining a stable business climate for companies competing in the global economy. The report states that "Denying employers the ability to transfer in key personnel or gain entry for a skilled professional or researcher harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability."

When an H-1B worker files a complaint against an employer for alleged violation of immigration laws, Federal Regulation requires that the Wage and Hour Division (WHD) Administrator shall conduct an investigation and issue a determination within 30 calendar days of the date of filing. 20 C.F.R. § 655.806(a)(3). The plain reading of this regulation does seem to suggest that that if you are an employer, and an H-1B worker files a complaint against you, the WHD Administrator must issue a determination within 30 calendar days, or else the complaint cannot go forward.

It would make sense that the whole purpose for this 30-day regulation would be to protect the employer against excessive government delay and guarantee a swift adjudication of the matter. Not so, according to the Department of Labor's Administrative Review Board (ARB).

The ARB held that the time limits for processing a complaint are directional and not jurisdictional. U.S. Department of Labor vs. Integrated Informatics, Inc. ARB Case No. 08-127 (ARB January 31, 2011). In this case, the ARB held that the Administrator's failure to meet the 30-day time period for completing his investigation and issuing an initial determination did not deprive the Administrative Law Judge of jurisdiction to consider the complaint. It did not matter to the ARB that the Administrator took over a year to issue a determination in that case.

Gross delays such as this are detrimental and prejudicial to H-1B employers, who in the interest of justice, should be entitled to a speedy hearing on the merits and have the opportunity to defend themselves in a timely manner. Excessive delays hamper the ability to gather timely documentary evidence and testimony that may be not only necessary, but crucial, to support their defense. If you are an H-1B employer, it may be in your best interest to contact your representative or senator in Congress and make your voice heard. This regulation should be enforceable and charges should be dismissed when the government is permitted to disobey its own 30-day regulation.

An immigration judge in New York ordered the deportation of George Boley, Sr., an accused war criminal from Liberia. Federal authorities have alleged that the 62 year-old Boley led a war faction in Liberia in the 1990's and is responsible for multiple civilian deaths. The government's case made use of a new federal law addressing the use of child soldiers in warfare.

Liberia endured two bloody civil wars in the past two decades. The first one, launched by rebel leader Charles Taylor against the sitting government, lasted from 1989 to 1996 and claimed over 200,000 lives. During the war, rebel groups split into factions and began to fight one another. The various factions reached a peace agreement in 1995, and Taylor became president in 1997. The second civil war began in 1999, when rebels sought to overthrow Taylor's government. It lasted until 2003 and killed another 150,000 people.

Boley reportedly first came to the United States as a student in the 1960's. He re-entered the U.S. illegally, federal authorities claim, sometime after his alleged involvement in Liberian hostilities. He was arrested in January 2010 and stood trial in an immigration court in Batavia, New York in late 2010 and early 2011. The government sought to remove Boley in part under the Child Soldiers Accountability Act of 2008. This adds the use of child soldiers in warfare to the list of grounds for deportation. The judge hearing the case became ill and had to take a leave of absence before ruling on the case, so the outcome of the trial was delayed until this month.

Boley has spent over two years in immigration detention awaiting a resolution of the case. He requested that he be released pending the court's decision. The immigration judge reportedly supported a monitored release, but lacked the authority to set bail without the approval of Immigration and Customs Enforcement (ICE). ICE refused to agree to any release, stating that the "public interest" was best served by keeping him detained.

Continue reading "Judge Orders Deportation of Accused Liberian Warlord" »

After a jury convicted a family of three of fraud, money laundering, and other offenses, a judge in Queens, New York imposed prison sentences totalling 418 years for what he called "the most despicable gang of criminals to ever sit in front of me." The family, consisting of Shane and Gomatee Rasmundar, ages 52 and 48, and their daughter Shantal, age 23, are immigrants from Trinidad who were accused of defrauding nineteen fellow immigrants out of almost $2 million in a series of scams involving phony real estate deals and promises to obtain various immigration benefits. Shane Rasmundar was sentenced to 235 years in prison, the maximum possible sentence, while his wife Gomatee got 153 years and Shantal got 30 years.

Shane Rasmundar would present himself as an agent of Immigration and Customs Enforcement (ICE), with a fake ID card and badge and an air pistol to complete the disguise. He would approach fellow immigrants at Hindu temples in Queens and claim that, as a government agent, he could help them get certain immigration benefits outside of the usual processes. For a price, he said he could get green cards for them and have their names removed from government watch lists and deportation rosters. Gomatee was accused of assisting him by helping convince victims of his ability to help them as a federal agent. In all, prosecutors said that twelve victims paid the Rasmundars over $250,000 for immigration assistance. The Rasmundars had no affiliation with ICE, of course, and there is generally no way of circumventing the usual petitioning and application procedures to obtain a green card.

The other part of their scam operations involved fraudulent real estate transactions. Shane Rasmundar would tell victims that federal agents had an opportunity to purchase properties seized by the IRS and DEA before the properties were put up for public auction. He claimed he could help the victims buy these properties, supposedly located in Queens and Florida, and then help flip them for a profit. Some victims gave the Rasmundars money for both the immigration and real estate operations. They collected $1.5 million from ten people for fake real estate deals.

Criminal charges against the family included grand larceny, criminal impersonation, scheming to defraud, and money laundering. All three entered pleas of not guilty in 2010. The case went to trial, and a jury found them guilty in November 2011. All criminal charges were in New York state court. So far they apparently have not faced federal criminal charges for the immigration fraud.

Continue reading "Family Sentenced to Long Prison Terms for Immigration and Real Estate Scams" »

The Kansas legislature introduced a bill that would allow some undocumented immigrants to work in industries that are facing worker shortages. The Kansas Business, Workers, Communities Partnership Act would create a state program that grants employment authorization to local undocumented immigrants who are considered to be a low-priority for deportation. The bill, HB 2603, comes this year as many immigration proposals are expected as state legislatures across the country begin their 2012 sessions.

Supporters of the Kansas bill say it addresses the issue of dealing with the undocumented foreign nationals living in the state, and that it also may avoid crisis in agriculture and other areas. Critics argue that there is no legal way to hire such workers, but the coalition claims they have a creative approach.

The most recognized immigration laws that have been passed in recent years are restrictive laws against those who entered the country illegally. These laws, which were passed in states such as Alabama and Georgia, resulted in detrimental effects to some industries, including agriculture.

Industries backing the legislation include building and construction, landscaping, highway construction, restaurant and hotel, and hospitality businesses. Kansas suffers from a shortage of workers, especially in areas such as western Kansas, said Mike Beam, Senior Vice President of the Kansas Livestock Association.

Undocumented immigrants can qualify under the bill and be paired with a business in need of workers if they have lived in Kansas for at least five years and pass a criminal background check. Applicants must not have committed a felony, or more than one misdemeanor, and must work toward English proficiency.

The United States Department of Homeland Security announced it will make changes in the F-1 and H-1B visa categories, which will likely benefit professionals from countries such as India. Changes would include providing work authorization for spouses of H-1B visa holders, 17-month extension of optional practical training (OPT) for certain F-1 international students, allow for additional part-time study for spouses of F-1 students, and allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.

Under current immigration law, H-4 visa spouses of H-1B work visas holders are not permitted to work themselves. One of the proposed DHS regulations would change this. The new regulation would allow some spouses of H-1B visa holders to work legally while the H-1B visa holder spouses wait for their adjustment of status applications to be adjudicated. H-4 dependent spouses would be granted employment authorization when the principal H-1B visa holders begin the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the United States.

Currently, F-1 students may only work in optional practical training (OPT) for 12 months. DHS plans to provide 17 month extensions of OPT for those students with degrees in Science, Technology, Engineering and Mathematics (STEM).

Changes would also allow for additional part-time study for spouses of F-1 students, and would increase the number of Designated School Officials (DSOs) at DHS certified schools to enroll international students. Under current immigration regulation, spouses may only take part-time vocational or recreational classes. The proposed changes would permit spouses of F-1 students to enroll in additional academic classes on a part-time basis while the F-1 student is enrolled in full-time studies.

The DHS's stated purpose here is to reform administrative practices and ease the visa process for highly-skilled immigrants who want to come to the United States for work. This effort could help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

President Obama proposed to eliminate country-specific caps for certain immigrant visa categories to stimulate small-business growth. Country-specific immigrant caps are limits on the number of immigrant visa the United States will grant each year. According to a White House statement, the purpose is to attract more high skilled foreign workers, including entrepreneurs to the United States. Employers, especially those in the technology business, complain that these caps prevent them from hiring skilled workers and growing their companies in the United States.

Obama called for a comprehensive immigration reform bill, and if this is not politically possible, he will seek reforms in smaller steps. "If election-year politics keeps Congress from acting on a comprehensive plan, let's at least agree to stop expelling responsible young people who want to staff our labs, start new businesses and defend this country," Obama said.

The Department of Homeland Security said it will implement several measures to simplify the process for immigrant entrepreneurs to do business in the United States, and also to keep more foreign nationals with science and technology degrees from U.S. universities.

Obama said the proposal was a "symbol of how important it is for us to spur entrepreneurship, to help start-ups, to move aggressively so that we can ensure more companies that create most jobs in our economy are getting a leg up from various programs that we have in our government."

Opponents of Obama's plan point to the high unemployment rate in the United States and question why the government would be extending nonimmigrant visas for highly skilled workers while many US citizens and permanent residents are unemployed and are seeking those jobs.

Obama told reporters on Tuesday that he expects Congress to pass a bill this year. However, some members of Congress are likely to oppose the proposal.

Missouri may join the list of states with their own immigration laws that rival the federal government's traditional enforcement role. A bill introduced in the Missouri Legislature by Republican State Senator Will Kraus would require state and local law enforcement to check the immigration status of anyone stopped by police with reasonable cause. The law would also make it a misdemeanor not to carry documentation of citizenship. These provisions are similar to the laws passed in Arizona and Alabama. The Missouri bill would also require school officials to verify students' immigration status. This has led to much criticism that the law would damage education and cause extensive racial profiling and harassment of children.

Laws currently on the books in Arizona and Alabama also make state and local law enforcement responsible for checking immigration statuses if they have reasonable suspicion that a person may not have legal status. Since immigration status is determined based on federal law, and immigration laws are principally enforced by federal agencies, this has created a conflict between state and federal law enforcement. Local police may not have the particular training and expertise to enforce federal immigration laws and regulations. Immigration regulations change on a regular basis. The state laws have also raised concerns that local police will engage in racial profiling, targeting individuals who, in essence, do not look "American."

Missouri's proposed law would add another layer to the confusion by putting school administrators and perhaps even teachers in the middle of the fray. Many immigrants and immigration attorneys know that immigration status is often not as simple as having a card or piece of paper. Federal law provides a vast number of forms of legal immigration status, and people who do not deal primarily with these issues may not know all of the available options.

Senator Kraus has stated that his bill was motivated by an effort to determine what "illegal immigration" costs the state, and whether Missouri could claim reimbursement from the federal government for its efforts in enforcing immigration law. He says that the bill would require the state's Board of Education to collect data and determine the cost to the state of educating undocumented immigrants. This is of course different from the cost of immigration enforcement. The United States Supreme Court has long held that children, regardless of immigration status, have a right to an education through the public school system. States have contributed to the cost of immigration enforcement in some ways. Cook County, Illinois, for example, recently addressed the issue of the cost of local cooperation with immigration detainers sent by federal officials, a story we covered in this immigration blog.

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