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PIERCE'S IMMIGRATION LAW E-NEWSLETTER
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PIERCE'S IMMIGRATION LAW E-NEWSLETTER is free. It is published by the Law Offices of Curtis Pierce, Certified Specialist, Immigration & Nationality law, The State Bar of California Board of Legal Specialization. 523 West Sixth St., Suite 348, Los Angeles, CA 90014. (213) 327-0044.

Curtis Pierce was honored by Super Lawyers Magazine as one of the top 5% of attorneys in California. Super Lawyers are chosen by their peers and through independent research. Mr. Pierce has been chosen for the years 2008, 2007, and 2006.

Immigration continues to be a hot topic in both the Republican and Democratic presidential primaries. How well do you know the positions of the presidential candidates on immigration reform? Which candidates support family reunification? Which candidates supported the DREAM Act? Has the spirit of California Proposition 187 been resurrected in the current campaign? (California Proposition 187 was a 1994 ballot initiative designed to deny undocumented immigrants social services, health care, and public education.) Chances are if you are reading Pierce's Immigration Law E-Newsletter, you have at least a passing interest in the issue of immigration reform. Learn more about the positions of the remaining candidates.

Republican candidate Mike Huckabee confused the facts when he related illegal immigration to the assassination of former Pakistani Prime Minister Benazir Bhutto. Former Arkansas Governor Huckabee mistakenly stated that Pakistani immigrants are the largest group of illegal immigrants in the U.S. after Mexicans. On December 28, 2007, ABC News' Kevin Chupka reported, during a press conference Thursday night in West Des Moines, Iowa, Governor Huckabee suggested that after the assassination of former Pakistani Prime Minister Benazir Bhutto, the United States should, "have an immediate, very clear monitoring of our border, and particularly to make sure, if there's any unusual activity of Pakistanis coming into the country."

Governor Mike Huckabee’s written position on immigration can be found on his website. His focus is clearly on enforcement and border security detailed in his plan called “The Secure America Plan”. The overview of Mike Huckabee’s nine point strategy for immigration enforcement and border security includes:

Modernizing the process of legal immigration for Mike Huckabee includes eliminating the admission category for adult brothers and sisters of U.S. citizens. This means limiting family based immigration by cutting the category of family fourth preference. For unskilled workers from certain countries, family based immigration may be the only way they have of obtaining legal status in the U.S.

Governor Huckabee expects that the 12 million undocumented workers who are currently in the U.S. will leave the country voluntarily and return to their native countries. He plans on providing illegal immigrants a 120-day window to register with the Bureau of Citizenship and Immigration Services before they leave the country. Those who register and return to their home country will face no penalty if they later apply to immigrate.

I oppose and will never allow amnesty. I passionately rejected the amnesty bill that President Bush and Senator McCain tried to ram through Congress this summer after secret meeting of an under the radar cabal of amnesty-loving senators.

I opposed the misnamed DREAM Act, which was a nightmare because it would have put us on the slippery slope of amnesty for all. Because once we open that door even a crack, we'll never get it closed again.

I oppose and will not tolerate sanctuaries for illegals. The federal government must enforce our existing laws by cracking down on rogue cities and town that willfully undermine our economy and our homeland security by giving benefits and protection to illegals. The consequences for illegal entry must be swift, certain, and uniform throughout our country.

I oppose giving driver's licenses to illegals, such as governor Spitzer tried to do in New York. I support legislation that would prevent the states from granting this privilege to illegals. In 2005, I signed legislation that prevents illegals in Arkansas from getting driver's licenses.

Points that benefit potential immigrants in Huckabee’s plan include increasing visas for highly skilled and highly educated applicants. He plans on providing illegal immigrants a 120-day window to register with the Bureau of Citizenship and Immigration Services before they leave the country. Those who register and return to their home country will face no penalty if they later apply to immigrate.

In practice, Governor Huckabee has made sympathetic gestures toward illegal immigrants. He has advocated prenatal care for pregnant immigrants and has proposed a scholarship program for illegal immigrants who graduate from Arkansas high schools (Arkansas News Bureau).

Senator John McCain’s (R-AZ) support of a temporary worker program for the 12 million illegal immigrants in the U.S. angered many conservative voters and put at risk his bid for the Republican presidential nomination. The guest worker program was one of the most controversial elements of the failed comprehensive immigration reform bill supported by President Bush and a bipartisan group of lawmakers in the House and Senate.

The Arizona Republican now says that, in the wake of last summer's defeat of comprehensive immigration reform, he has "gotten the message" that the border must be secured before the status of illegal aliens already in the United States can be dealt with.

Border security is a major component of Senator McCain’s plan for solving U.S. immigration problems. His official statement on the John McCain for President Website puts the responsibility on the federal government for failing to secure the border.

Senator McCain was a cosponsor of S. 774, the Dream Act, providing in-state tuition for undocumented aliens. Remember, Governor Huckabee opposes the DREAM ACT. In 2006, Senator McCain voted for an amendment to S. 2611 offered by Senator Arlen Specter to require consultation with the Mexican government concerning the construction of fencing along the U.S.-Mexican border. Last year, Mr. McCain voted against an amendment (Senate Amendment 1184) introduced by Sen. John Cornyn, Texas Republican, that would have permanently barred gang members, terrorists, sex offenders, alien absconders, aliens convicted of domestic violence and aliens convicted of at least three DUIs from the United States. The Cornyn Amendment was rejected on a 51-46 vote.

"We need to make America more attractive for legal immigrants -- for citizens -- and less attractive for illegal immigrants. I want to see more immigration in our country, but more legal immigration and less illegal immigration." - Governor Romney, AP, June 23, 2006

Further, Romney posted on his campaign website that immigration has been an important part of our nation's success. The current system, however, puts up a concrete wall to the best and brightest, yet those without skill or education are able to walk across the border. We must reform the current immigration laws so we can secure our borders, implement a mandatory biometrically enabled, tamper proof documentation and employment verification system, and increase legal immigration into America.

In December 2006, Governor Romney Signed A Memorandum Of Agreement With The Federal Government To Allow State Troopers To Enforce Federal Immigration Laws. "Governor Mitt Romney and U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary Julie L. Myers today announced the signing of a Memorandum of Agreement (MOA) between the Commonwealth of Massachusetts and ICE, which will give specially trained Massachusetts State Troopers the authority to administer and enforce federal immigration laws in the Commonwealth. " (Office Of The Governor, "Governor Romney, ICE Sign Immigration Enforcement Pact," Press Release, 12/13/06)

IN-STATE TUITION:

"Romney also vetoed a number of outside sections of the budget, including:...A plan that would have permitted illegal aliens to pay the same in-state tuition rate at our public colleges and universities as Massachusetts citizens." (Office Of The Governor, "Romney Signs $22.402B Fiscal Year 2005 'No New Tax' Budget," Press Release, 6/25/04)

ENGLISH IMMERSION:

Governor Romney Fought Efforts To Weaken Massachusetts' English Immersion Law. "But yesterday, Romney press secretary Shawn Feddeman said the governor will fight all attempts to slow the implementation of English immersion, known on the ballot as Question 2. ... 'He will veto anything that weakens or delays English immersion,' Feddeman said." (Anand Vaishnav, "Romney Firm On English Timetable," The Boston Globe, 1/24/03)

- In June 2002, Mitt Romney Said "The Approach Of English Immersion Is One That I Support. ... I Would Make English Immersion The Educational Norm For All Non-Native English Speakers."

(John McElhenny, "Mitt Romney Endorses 'English Immersion' Education Plan," The Associated Press, 6/4/02)

DRIVER'S LICENSES:

Governor Romney Opposed Efforts To Give Driver's Licenses To Illegal Immigrants. "'Those who are here illegally should not receive tacit support from our government that gives an indication of legitimacy,' the governor said, echoing arguments that opponents have voiced in the Commonwealth and in other states considering similar license measures. 'If they are here illegally, they should not get driver's licenses,' he said." (Scott S. Greenberger, "Romney Stand Dims Chances Of License For Undocumented," The Boston Globe, 10/28/03)

Governor Romney Would Take Action To Secure The Borders Through Physical And Virtual Fences.

Governor Romney: "In my view, there are several principles that need to be part of our immigration plan. First, to secure the border..." (Governor Mitt Romney, Interview On The Northern Alliance Radio Network, 1/27/07)

Governor Romney: "You've got to have a wall or fence or electronic surveillance. You have got to make sure we secure our border, that's first." (Fox News' "The O'Reilly Factor," 9/19/06)

Governor Romney Opposes The McCain-Kennedy Bill And Any Form Of Amnesty For Illegal Immigrants.

Governor Romney: "McCain-Kennedy Isn't The Answer." "Another aspect of American sovereignty is the security of our borders. The current system is a virtual concrete wall against those who have skill and education, but it's a wide-open walk across the border for those that have neither. McCain-Kennedy isn't the answer. As governor, I took a very different approach. I authorized our state police to enforce federal immigration laws." (Governor Mitt Romney, Remarks At The Conservative Political Action Conference, Washington, D.C., 3/2/07)

Opposition to Automatic Citizenship by Birth for the Children of the Undocumented

Congressman Paul takes a notably tough position on children born to undocumented aliens. He refers to them as "anchor babies" and opposes their automatic citizenship by birth in the U.S. The following quotes are from his campaign website. The anchor baby phenomenon has also been very problematic. Simply being born on US soil to illegal immigrant parents should not trigger automatic citizenship. This encourages many dangerous behaviors and there are many unintended consequences as a result of this blanket policy. I am against amnesty and I have introduced an amendment to the Constitution (H.J. Res 46) which will end this form of amnesty.

Congressman Paul's comments on this subject are also quoted from his campaign website. We have security issues at home and our resources are running thin. Our education system is stretched, and immigration accounts for virtually all the national increase in public school enrollment in the last 2 decades. There is a worker present in 78% of immigrant households using at least one major welfare program, according to the same study. It’s no surprise then that often times these immigrants can afford to work for lower wages. They are subsidized by our government to do so.

Right now we are subsidizing a lot of illegal immigration with our robust social programs and it is an outrage that instead of coming to the United States as a land of opportunity, many come for the security guaranteed by government forced transfer payments through our welfare system. I have opposed giving federal assistance to illegal immigrants and have introduced legislation that ends this practice. In the last major House-passed immigration bill I attempted to introduce an amendment that would make illegal immigrants ineligible for any federal assistance. Unfortunately, that amendment was ruled "not relevant" to immigration reform. I believe it is very relevant to taxpayers, however, who are being taken advantage of through the welfare system. Illegal immigrants should never be eligible for public schooling, social security checks, welfare checks, free healthcare, food stamps, or any other form government assistance.

I (Congressman Paul) have also supported the strengthening our border and increasing the number of border patrol agents. It is an outrage that our best trained border guards are sent to Iraq instead of guarding our borders. For national security, we need to give more attention to our own border which is being illegally breached every day, and yet the government shirks one of its few constitutionally mandated duties, namely to defend this country. Citizens lose twice with our current insecure border situation – we don’t have the protection we should have, and then taxpayers have to deal with the fallout in the form of overstretched public resources and loss of jobs.

The anger is understandable when it comes to illegal immigration and the problems with our borders. I will continue to fight in Congress for more effective ways to address these issues in keeping with the Constitutional mandate to protect America .

Senator Hillary Clinton’s (D-NY) website (www.hillaryclinton.com) introduces the immigration reform issue with the phrase, “Our immigration system is in crisis”. Clinton stresses putting a premium on compassion, respect, and policies that help families. Further, she makes the point that our current immigration laws don’t reflect that.

Within the framework of comprehensive immigration reform, Clinton stresses honoring the rule of law. She believes comprehensive reform must include strengthening our borders, greater cross-cooperation with neighboring countries, strict but fair enforcement of our laws, federal assistance to our state and local governments, strict penalties for those who exploit undocumented workers, and a path to earned legal status for those who are here, working, and respect the law.

Senator Clinton led efforts for the Immigrant Children’s Health Improvement Act which would give states the option to provide federally funded Medicaid and SCHIP benefits to low-income legal immigrant children and pregnant women. She wrote the Access to Employment and English Acquisition Act to meet the growing demand for English language courses and other job skills. She co-sponsored the DREAM Act which provides a path to citizenship thorough military service or higher education for children who were brought to the U.S. by their parents. (Governor Huckabee is a staunch opponent of the DREAM Act). Further, Senator Clinton was a cosponsor for the Agricultural Job Opportunity Benefits and Security Act of 2003 and offered an amendment to make family reunification the gilding principle of our immigration system.

Voted NO on declaring English as the official language of the US government. (Jun 2007)

Voted YES on allowing undocumented workers to participate in Social Security. (May 2006)

Barack Obama’s (D-IL) voting record on the issues is similar to Clinton’s. Compare them on the issues. Senator Obama's votes are as follows:

Voted NO on declaring English as the official language of the US government. (Jun 2007)

Voted YES on allowing undocumented workers to participate in Social Security. (May 2006)

"The time to fix our broken immigration system is now...We need stronger enforcement on the border and at the workplace... But for reform to work, we also must respond to what pulls people to America... Where we can reunite our families, we should. Where we can bring in more foreign-born workers with the skills our economy needs, we should" - Barack Obama, Statement on U.S. Senate Floor, May 23, 2007

Like Clinton, Barack Obama supports comprehensive immigration reform. Again, like Clinton, Obama uses the phrase "bringing people out of the shadows". He supports a system that allows undocumented immigrants, who are in good standing to pay a fine, learn English, not violate the law, and go to the back of the line for the opportunity to become. (Obama's campaign website)

Also, like other candidates, Senator Obama wants to preserve the integrity of our borders. He supports additional personnel, infrastructure and technology on the border and at our ports of entry. Obama believes we need additional Customs and Border Protection agents equipped with better technology and real-time intelligence.

To remove incentives to enter the country illegally, Obama would crack down on employers that hire undocumented immigrants. Barack Obama has supported a proposal with Senators Charles Grassley (R-IA), Ted Kennedy (D-MA) and Max Baucus (D-MT) to create a new employment eligibility verification system so employers can verify that their employees are legally eligible to work in the U.S.

While several candidates have frequently stated that undocumented immigrants should "go to the back of the line", they do not explain that statement. Some real logistical problems exist. For example, what line are they talking about? Where is the back? What does one do if he is an unskilled immigrant from a country like Mexico? Check the Visa Bulletin to find out what the current waiting period is. What does one do if she is a skilled professional if the yearly quota of H-1B visas has been filled? What does one do if he has no family members to file an immediate relative petition for him? How long will the wait be then and where is the back of the line?

Solving the immigration problem involves far more than using catchy phrases or talking tough. If you are fortunate enough to already be an American citizen, it is your responsibility to choose the candidate who can grasp the complexity of the issues and implement reform.

We, at the Law Offices of Curtis Pierce, support the importance of increasing the number of visas for high tech workers in order to make our economy competitive in the global marketplace. Further, we support family reunification, a defining value in the history of American immigration policy.

H-1Bs ARE SUBJECT TO CAP. NOW IS THE TIME TO PREPARE TO APPLY FOR FISCAL YEAR 2009.

Last year, the quota for cap subject H-1Bs was reached on the first day of filing. It is important to begin the application procedure in a timely manner for FY 2009. Congress allocates the number of available H-1Bs. Current laws limit the number to 65,000.

The H-1B is a non-immigrant visa that enables professionals in "specialty occupations", i.e., those that require a minimum of a baccalaureate, to work in the United States. A U.S. degree or acceptable foreign alternative is required.

In some cases, work experience and education may be combined to meet the requirements. Non-graduates may be employed on an H-1B visa where they can claim to be “graduate equivalent” with twelve or more years work experience in the occupation (three years of relevant work experience may substitute for one year of education).

We at the Law Offices of Curtis Pierce strongly urge employers who are seeking to employ a foreign national on an H-1B visa for fiscal year (FY) 2009 to begin preparation early so as to be able to file visa petitions with the U.S. Citizenship and Immigration Services (USCIS) on April 1, 2008.

The petitions are submitted by employers based on their need for non-U.S. resident employees in “specialty occupations”. The H-1B non-immigrant work visa may be issued to applicants seeking temporary work in a "specialty occupation" which requires the skills of a professional such as scientists, engineers, information technology or other computer professionals, engineers, financial analysts, management consultants, architects, system analysts, journalists, lawyers, market research analysts, teachers in elementary or secondary schools or colleges, accountants, nurses, physicians, surgeons, and dentists. This list is by no means exclusive.

ATTENTION AMERICAN CITIZENS: NEW TRAVEL DOCUMENTS ARE REQUIRED FOR PORTS OF ENTRY EFFECTIVE JANUARY 31, 2008.

The U.S. Department of Homeland Security (DHS) and the U.S. Department of State (DOS) remind the traveling public that as of Jan. 31, 2008, all adult travelers will be required to present proof of citizenship, such as a birth certificate, and proof of identity, such as a driver’s license, when entering the United States through land and sea ports of entry. DHS will be issuing a notice in the Federal Register formally announcing the change.

This change is a necessary step to prepare travelers and ease the transition to the future requirements of the Western Hemisphere Travel Initiative (WHTI). WHTI proposes to establish documentation requirements for travelers entering the United States who were previously exempt, including citizens of the U.S., Canada, and Bermuda. As recommended by the 9/11 Commission, Congress enacted WHTI in the Intelligence Reform and Terrorism Prevention Act of 2004. WHTI will result in both enhanced security and increased facilitation across the border once implemented. During this transition, DHS and the Department of State are working diligently to minimize the impact on legitimate trade and travel.

Currently, U.S. Customs and Border Protection (CBP) officers may accept oral declarations of citizenship from U.S. and Canadian citizens seeking entry into the United States through a land or sea border. However, as of January 31, 2008:

All existing nonimmigrant visa and passport requirements will remain in effect and will not be altered by this change.

DOS reminds the public that the current turnaround time for a passport is four to six weeks, so Americans planning international travel may wish to apply now. For information on obtaining a U.S. Passport visit www.travel.state.gov or call 1-877-487-2778. Specific documentation requirements for land, sea and air travel may be found at www.cbp.gov/xp/cgov/travel/vacation/ready_set_go/. To learn more about NEXUS, SENTRI and FAST, visit www.cbp.gov/xp/cgov/travel/trusted_traveler/.

· To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.

If you have an application receipt number, you can use the Internet to check the status of your case with the USCIS.

Disclaimer: The information contained in this newsletter is analysis and commentary of a general nature. Nothing in this newsletter applies to a specific case nor does it constitute legal advice.

Schedule appointment: For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.

“The only title in our democracy superior to that of President (is) the title of citizen”.

Former Supreme Court Justice Louis Brandeis. (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")

In the words of President John F. Kennedy, the United States is a "nation of immigrants."

The E-3 visa is an important alternative to the H-1B for Australian nationals working in “specialty occupations” which merits further exploration. This option is particularly relevant in light of the limited number of H-1B visas available and the expensive fees attached to them by recent legislation. The E-3 category for visa issuance for Australians is a relatively new category of visas. Section 501 of the REAL ID Act of May 2005 created the E-3, a nonimmigrant category available only to Australian citizens.

It functions like the H-1B in that it allows temporarily work in specialty occupations in the United States. Again, this visa is limited to Australian nationals. It has many advantages over the other types of working visas, including the ability for spouses of E-3 recipients to apply for work authorization. This is an advantage over the H-1B and even the TN visa issued to Canadian and Mexican citizens.

Furthermore, H-1Bs are subject to an annual cap which is often reached in the first few days of availability. The quota of E-3 visas is 10,500 annually for each fiscal year. However, the demand for E-3s is much lower than that for H1Bs; consequently, there is much more availability of E-3s.

Who qualifies for the E-3 visa?
The E-3 visa classification currently applies to nationals of Australia as well as their spouses and children. E-3 principal applicants must be going to the United States solely to work in a specialty occupation.

Can permanent residents of Australia apply for an E-3 visa?
No. E-3 visas are available only for Australian nationals. If you are a new Australian citizen or in the process of becoming one, you must possess an Australian passport by the time of your visa interview.

Is the term “specialty occupation” the same term used in H-1B cases?
Yes. The term “specialty occupation” is the same term used in H-1B cases. Pursuant to section 214(i)(1) of the Immigration and Nationality Act (INA), specialty occupation means and occupation that requires a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. In order to be eligible for an E-3 classification, an alien must be able to show he or she will be employed in a specialty occupation in the U.S. and he or she possess the required U.S. bachelor’s or higher degree (or its equivalent) in the specific specialty to meet the minimum requirement for entry into the occupation.

Are there differences between the E-3 and the H-1B?
Yes, there are differences between the E-3 and the H-1B.

No. The annual cap of 10,500 initial applications for each fiscal year applies to all initial E-3 application made abroad and to all change of status E-3 applications made through USCIS. The cap does not apply to extensions of E-3 provided that the alien continues to be employed by the same employer.

No. The consular officer need only be satisfied that the individual has the intent to depart upon the termination of nonimmigrant status.

What are the advantages of the E-3 visa?
One notable advantage of the E-3 is the E-3 spouses will be able to seek employment since they can apply for the Employment Authorization Document, EAD. The spouses of H-1Bs do not have this advantage. Also, the E-3 visa is renewable for two year periods, indefinitely, provided the principal demonstrates that he/she does in intend to remain in the U.S. permanently. Also, the fees are considerably lower than those for an H-1B.

Fees
The considerably lower fees to the E-3 visa offer a significant advantage over the H-1B. Because of recent Congressional action, the government filing fees for the H-1B are over $2,000. If you choose premium processing, add approximately $1,000. The E-3 is a great bargain because although it requires a Labor Condition Application, there is no fee. U.S. consular fees apply for all non-immigrant visas. The worldwide application fee for a U.S. nonimmigrant visa increased to $131 effective January 1, 2008.

Do the spouse and children of the E-3 principal applicant have to be Australian citizens?
No. The spouse and children need not be Australian citizens. It should be noted that the U.S. does not recognize De Facto relationships or same-sex Civil Partnerships for the purposes of immigration.

Where does one apply for an E-3 visa?
Initial application for a visa to enter may be made at a consular office overseas. One can apply at any U.S. Embassy or Consulate which processes nonimmigrant petition based, visas, but it very important to note that one cannot apply for an E-3 visa from within the U.S. In Australia, one may apply in Sydney, Melbourne, or Perth.

Do I have to find a job in the U.S first before applying for an E-3 visa?
Yes, you need to have a job offer from the U.S. before you can apply for the E-3 visa.

Can I travel to the U.S. on the Visa Waiver Program to find a job or attend interviews and then apply for the E-3 visa once I have returned to Australia?
Yes, you can travel on the Visa Waiver Program if you meet the requirements. The Visa Waiver Program enables nonimmigrants from qualified countries to travel to the United States without a visa if they meet certain conditions. To be admitted, they must be citizens of a Visa Waiver Program country, seek entry as a tourist or business traveler for a period of not more than 90 days, posses a valid, machine-readable e-passport with digitized photograph, have a round-trip ticked with a qualified carrier and meet other requirements. Visa Waiver Program entrants are not permitted to extend their visits or change to another visa category. If you do not meet the VWP requirements, you may be eligible to travel on the B-1/B-2 Combined Visa for Business or Pleasure. You must leave the U.S. before applying for your E-3 visa

Is the sponsoring employer required to submit a petition to the Department of Homeland Security (DHS)? No, the United States based employer of an E-3 principal is not required to submit a petition to the Department of Homeland Security.

What documents must the sponsoring employer submit?
Similar to an H-1B visa, the sponsoring employer must present a labor condition application (LCA) attesting to the wages and working conditions certified by the Department of Labor (Department or DOL) to the Department of State (DOS) Consular Officer at the time of visa application. Consider the advantages of the E-3 visa if you are an Australian professional seeking temporary employment in the U.S. This may be the visa for you. For questions, contact the Law Offices of Curtis Pierce at 213-327-0044.