July 1, 2011, Bender's Immigration Bulletin -- National Initiative to Combat Immigration-Services Scams

July 1, 2011, Bender's Immigration Bulletin -- National Initiative to Combat Immigration-Services Scams

                The Departments of Homeland Security and Justice and the Federal Trade Commission are leading a nationwide, multi-agency initiative to combat immigration services scams.

Bender's Immigration Bulletin

                The initiative targets immigration scams involving the unauthorized practice of immigration law that occurs when legal advice or representation regarding immigration matters is provided by someone who is not an attorney or accredited representative.

                "This coordinated initiative targets those who prey on immigrant communities by making promises they do not keep and charging for services they are not qualified to provide," Tony West, Assistant Attorney General for the Civil Division of the Department of Justice, said. "We are attacking this problem both through aggressive civil and criminal enforcement and by connecting qualified lawyers with victims who are trying to navigate a complicated immigration system."

                The initiative is a three-pronged approach of enforcement, education, and continued collaboration designed to stop UPIL scams and prosecute those who are responsible, educate noncitizens about such scams and how to avoid them, and inform noncitizens about the legal immigration process and where to find legitimate legal advice and representation.

                For further information on the initiative see Appendix A, the National Initiative to Combat Immigration Services Scams Fact Sheet, or go to www.uscis.gov/avoidscams

Mandatory E-Verify Laws Multiply 

                So far 2011 has seen new E-Verify laws or executive orders in Alabama, Florida, Georgia, Indiana, Tennessee, Utah, and Virginia, with many more pending. According to the National Conference of State Legislatures, as of May 26, 2011, more than thirty-one States had introduced measures. At that point, fifteen States required employers to use E-Verify. A list and descriptions are at http://www.ncsl.org/default.aspx?TabId=13127. The Alabama law was signed on June 9, and was not on the list as of June 21.

                Federally, on June 14, H.R. 2164, the Legal Workforce Act of 2011, was introduced by Congressman Lamar Smith (Republican-Texas). It is one of several bills that would make E-Verify mandatory.

                Court challenges are possible, but the U.S. Supreme Court decision in Whiting, discussed below, may limit their success. Employers must be aware of their state obligations just as much as they are of their federal (I-9) ones. 

Supreme Court Splits 4-4 in Citizenship Case, Remands Hazleton Case 

                The U.S. Supreme Court split evenly in the citizenship case United States v. Flores-Villar, affirming the Ninth Circuit's decision that it was valid to have different requirements to confer citizenship on an out-of-wedlock child through a citizen father than through a citizen mother. Justice Kagan did not participate in the case. The Supreme Court opinion is at 2011 U.S. LEXIS 4378 (June 13, 2011). The Ninth Circuit case, United States v. Flores-Villar, is at 536 F.3d 990 (9th Cir. 2008). Siovhan Sheridan wrote an emerging issues analysis on the case earlier this year. With the issue not definitively resolved, that analysis is still timely. It can be found on lexis.com as Siovhan Sheridan on Supreme Court to Decide on Rules for Unwed Parents to Bestow Citizenship, 2011 Emerging Issues 5560.

                A week earlier, the Supreme Court had granted certiorari for Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010), which struck down local measures restricting employing and housing unauthorized aliens. The Supreme Court simultaneously vacated the Third Circuit's decision and remanded for review in light of the Supreme Court's decision in Chamber of Commerce of the United States v. Whiting, which upheld the Legal Arizona Workers Act and is summarized at 16 Bender's Immigr. Bull. 1007 (June 15, 2011). 

USCIS Temporarily Suspends Use of VIBE in H-2A Program 

                USCIS temporarily suspended the use of the Validation Instrument for Business Enterprises in the H-2A program. The suspension will be lifted on July 18, 2011.

                USICS imposed the suspension after learning that some recent H-2A petitions have experienced unexpected delays due to Requests for Evidence resulting from the use of VIBE. The time-sensitive nature of agricultural work makes the delays in adjudication especially burdensome for H-2A petitioners.

                To help petitioners ensure that their petitions are expeditiously processed, USCIS released an H-2A Optional Checklist as well as a Questions & Answers (see Appendices B and C). USCIS held a public engagement to discuss the best filing practices on June 10.

                USCIS asks that petitioners with pending H-2A petitions delayed due to a VIBE-related RFE e-mail directly to USCIS at H2Athirdparty@dhs.gov. The e-mail must include: 

  • "VIBE H-2A RFE/NOID: [Insert Receipt No.]" in the subject line
  • The receipt number of the pending H-2A petition (Form I-129)
  • The petitioning company's full, legal business name (or if the business is a sole proprietorship, state that and provide the individual owner's full name if a business name does not exist)
  • Any trade-style name (such as "doing business as" (DBA) used by the company)
  • The company's registered business address
  • Any additional mailing addresses used by the company. 

No additional attachments or documents should be included in the e-mail. A separate e-mail should be submitted for each individual petition if multiple petitions are involved. 

Special Relief for F-1 and J-1 Libyan Students 

                Immigration and Customs Enforcement announced special relief for certain F-1 Libyan students who have suffered severe economic hardship as a direct result of the civil unrest in Libya since February 2011. The relief applies only to students who were lawfully present in the United States in F-1 status on February 1, 2011, and enrolled in an institution that is certified by ICE's Student and Exchange Visitor Program. The Department of State took similar action for college and university students in J-1 status.

                Libyan students who qualify may now obtain employment authorization, work an increased number of hours while school is in session, and reduce their courseloads while continuing to maintain status. These relief measures will automatically terminate on December 31, 2011, without further notice.

                There are as many as 2,000 Libyan F-1 students currently enrolled in schools in the United States. The ongoing armed conflict in Libya has increased the financial burden on many of them, who previously relied on assistance from the Libyan government or family members in Libya to meet basic living expenses. Further, the situation in Libya makes it infeasible for these students to safely return home in the foreseeable future.

                As is covered on page 1106, both ICE and DOS published notices in the Federal Register announcing the relief measures on June 10. See Appendices D and E

EOIR Disciplines Eleven Attorneys 

                The Executive Office for Immigration Review recently took disciplinary action against eleven attorneys for violations of the rules of professional conduct for immigration practitioners. Two attorneys were reinstated.

                The following four attorneys were issued orders of immediate suspension: Samuel N. Omwenga, suspended based on his suspension in the District of Columbia; Leonardo Adrian Roth, suspended based on his suspension in Florida; Giselle M. Samuely, suspended for two years based on her suspension in New York for conduct involving neglect, dishonesty, fraud, deceit, or misrepresentation; and Yan Wang, suspended for six months based on her resignation from the Second Circuit bar while disciplinary proceedings were pending in that court.

                The seven final orders of discipline involved Robert Eugene Bennett, suspended for nine months based on his six-month suspension in Illinois; Anita C. Kanu, a.k.a. Anita C. Justin, a.k.a. Anita Chinatu Ogbuji, expelled based on her disbarment in the District of Columbia; Earl D. Munroe, suspended for two and a half years based on his two-and-a-half-year suspension in Massachusetts; Joseph Raymond Rowe, Jr., expelled based on his thirty-day suspension in Florida; Joseph S. Salomon, suspended for six months based on his three-month suspension by the Second Circuit and for two previous informal admonitions by the EOIR Disciplinary Counsel; Regina D. Steele, expelled based on her disbarment in California; and  Shelly Flowers Winn, expelled based on her criminal conviction in the U.S. District Court for the Southern District of Texas.

                The two attorneys reinstated are Jorge De La Mar, who completed his sixty-day suspension in Florida, and Brenna L. Stewart, who completed her six-month suspension in New York and was reinstated there. 

Inter-American Commission on Human Rights Opposes Removal of Haitians 

The Inter-American Commission on Human Rights expanded a "Precautionary Measure," originally issued in February, directing the United States to refrain from removing thirty-three men and women to Haiti. The measure responds to the United States government's move to remove people with U.S. criminal records to Haiti despite the continuing bad conditions in Haiti after last year's devastating earthquake. Haiti routinely jails deportees. The IACHR asked the United States to suspend removals to Haiti until Haiti is able to guarantee that detention conditions and access to medical care comply with minimum standards and that procedures are in place to review the deportees' family lives and ties to the United States. The Precautionary Measure is available at www.cidh.oas.org/medidas/2011.eng.htm. The Center for Constitutional Rights press release on the Measure is available at www.ccrjustice.org.

EOIR News

EOIR has opened a Twitter account to provide the public with information about news, events, and announcements through a social media channel. Follow the news on Twitter @DOJ_EOIR.

EOIR Deputy Chief Immigration Judge Michael McGoings presided over the investiture of Madeline Garcia, the newest immigration judge, at EOIR headquarters on June 11, 2011. She will join the IJs in Atlanta. She received her undergraduate degree from the InterAmerican University of Puerto Rico and her law degree from the Pontifical Catholic University of Puerto Rico. From 1996 to May 2011, she was in private practice dedicated exclusively to immigration law. For a more complete biography, go to www.justice.gov/eoir.

New Immigration Statistics Out

 DHS has recently updated the following statistics: (1) Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010; (2) U.S. Legal Permanent Residents: 2010; (3) Profiles on Legal Permanent Residents; and (4) Persons Obtaining Legal Permanent Resident Status: Fiscal Years 1820 to 2010. These items and more are at http://www.dhs.gov/files/statistics/immigration.shtm.

BIB Editorial Board Member Honored

 Congratulations to Ronald Y. Wada, Senior Counsel at Tafapolsky & Smith, LLP, in San Francisco, for winning the 2011 Edith Lowenstein Memorial Award. AILA gave him the Lowenstein Award for his excellent work in advancing immigration law practice, especially but not exclusively for his work on EB-2 and EB-3 degree-equivalency issues. He already had received AILA's Dubroff Award for Outstanding Scholarship in Immigration Law and an AILA President's Award. Ron Wada is a member of the Bender's Immigration Bulletin editorial board and writes frequently for the Bulletin.

[This is an excerpt from the July 1, 2011, issue of Bender's Immigration Bulletin.] 

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