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Immigration a Big Election Winner

It was a close election but one thing is for sure, immigration emerged as the clear winner. Next to falling off the fiscal cliff, the buzz topic on the hill is that of immigration. That our country’s two largest political parties have finally decided to come to the table and (perhaps) have a serious conversation on comprehensive immigration reforms makes me feel like I might bear witness to something historical in the near future.

In fact, AILA compiled an interesting list of post-election quotes from political leaders and pundits on this issue (AILA Doc 12110946). What components might be addressed in a comprehensive immigration reform proposal? For all of our pundit readers, now is the time to submit your ideas to Congress! Tell us what you think. Though, I suspect, some of these topics below will significantly impact how practitioners can/will conduct their immigration practices moving forward. We can probably look forward to some of these issues weaving themselves into the fabric of any CIR proposal.

Immigration Enforcement Activities

If you’ve reviewed the statistics, the DHS immigration enforcement activities have netted the highest levels of removals from the U.S. than during any other administration. For readers who also follow our sister blog, The I-9 and E-Verify Blog, E-Verify has slowly become a state-mandate for many employers. Enforcement activities over the course of the last four years, including worksite inspections, Form I-9 inspections, debarments, and criminal investigations, remain on an upward trend. It’s likely this strategy of the Obama Administration will remain constant, if not steady.

Start Up Visas/ STEM Visas

Over the course of the last two years, I’ve had a steady stream of “techie” foreign national friends (mostly here on H-1Bs) ask how they too can start up their own companies in the U.S. Being that I’m located in the Bay Area, the start-up buzz is intoxicating but the current immigration laws, as written, don’t provide for a conducive environment from which to start a company in the U.S. Although Congress has arrived at a consensus that encouraging science, technology, engineering and math (STEM) degree graduates to remain in this country is beneficial to stirring job creation, it remains to be seen how the visa quotas will be shifted to allot for STEM and Start-Up visas, or if new visas will be created as a matter of law.

Fraud Issues

The last few years, Congressional leaders appeared especially alarmed at the high incidences of visa fraud (though I’ve yet to read reports supporting these claims). In any other area of law, even the hint of the “F” word is taboo unless one could demonstrate all of the required elements. Meanwhile, back in the immigration landscape, the “F” word is volleyed back and forth, sometimes with emphasis but mostly for political posturing. Actual fraud investigations DHS aside, I’ve yet to read a story about a large-scale international conspiracy for visa fraud. Possibly as a backlash to the fraud fears, practitioners are still seeing a deluge of RFEs, particularly on H and L visas. I’m still waiting for DHS to make good on its promise that an L-1B guidance memo will be forthcoming. [That was nine months ago?] The “F” word, IMHO, triggered fairly incredible kitchen-sink type RFEs on these types of cases. While professional organizations liaise with DHS, I’ll be curious to see how CIR can address this issue once and for all.

DACA or Path to Citizenship

By far the biggest immigration news this year was DHS’ Deferred Action for Childhood Arrivals program announcement in June. Criticized by many as a political tool by President Obama to gain an electoral advantage, the program itself helped to accelerate the immigration debate. Here we are, discussing the real potential for CIR! How will DACA evolve? If it’s any indication from the myriad of quotes collected by AILA, pundits from all sides agree that immigration reform should include a legal path to citizenship for educated, young people.

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Given these new developments, how are you shifting your immigration practice? Are you ramping up to assist more DACA applicants? Have you revised how you prepare your L-1 petitions because of the high risk of RFEs? Are you providing start-up entrepreneurs options to create a tech company? Are you more rigorously advising your business clients on I-9 compliance? Or have you seen an increase in unfair, anti-discriminatory practice by employers against foreign workers? We’d love to hear from our readers about how things have changed for them in the last four years and what they’ll be doing in anticipation of CIR. Please send me your comments and subscribe to theCM Guru Blog for more immigration news and practice updates.