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Dallas-based immigration attorney Stewart Rabinowitz offers informed commentary about Congressional Report.

The Secretary of the Department of Homeland Security (DHS) is charged with preventing the entry of terrorists, securing the borders, and carrying out immigration enforcement functions. U.S. Customs and Border Protection (CBP), a component of DHS, has primary responsibility for securing the borders of the United States, preventing terrorists and their weapons from entering the United States, and enforcing hundreds of U.S. trade and immigration laws. Within CBP, the U.S. Border Patrol’s mission is to detect and prevent the illegal entry of aliens across the nearly 7,000 miles of Mexican and Canadian international borders and 2,000 miles of coastal borders surrounding Florida and Puerto Rico.

In 2006, in response to requests for support enforcing federal immigration laws from the governors of Arizona, California, New Mexico, and Texas, President George W. Bush announced the deployment of up to 6,000 National Guard troops along the southern border to support the Border Patrol.

“What Bush did was unprecedented only in respect to the large potential number of National Guard troops to be used explicitly for that purpose, but it was certainly an escalation of the status quo,” explained Dallas-based immigration attorney Stewart Rabinowitz, “Bush also received a lot of political pressure from Conservatives to take such action.”

During 2006-2008, more than 30,000 individuals participated in the mission “Operation Jump Start.”

“There’s considerable debate about what the mission actually jump started,” Rabinowitz said.

The report concluded that illegal drug activities and crime continue. The day after the murder of Arizona rancher Robert Krentz on March 27, 2010, the Border Patrol seized 290 pounds of marijuana near his ranch. “That incident was also one of several catalysts in helping to bring about Arizona’s controversial and now somewhat embattled immigration law, Senate Bill 1070,” Rabinowitz concluded, “Of course it more directly brought about an increased military presence, especially along Arizona’s border with Mexico.”

The primary restriction on military participation in civilian law enforcement activities is the Posse Comitatus Act (PCA). The PCA prohibits the use of the Army and Air Force to execute the domestic laws of the United States except where expressly authorized by the Constitution or Congress.

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.

Dallas-based immigration lawyer Stewart Rabinowitz provides timely insights about the controversial suit.

Citing conflict with Federal Law, the Department of Justice has challenged Arizona immigration law Senate Bill 1070. In a brief filed in the District of Arizona, the Department said S.B. 1070 unconstitutionally interferes with the federal government’s authority to set and enforce immigration policy, explaining that “The Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.”

“Having contradictory state and local policies would disrupt federal immigration enforcement, which isn’t necessarily a good idea,” asserts Dallas-based immigration lawyer Stewart Rabinowitz, “It can be argued that the state of Arizona has crossed a constitutional line.”

The Department’s brief said that S.B. 1070 will place significant burdens on federal agencies, diverting their resources away from high-priority targets, such as aliens implicated in terrorism, drug smuggling, gang activity, and those with criminal records. The law’s mandates on Arizona law enforcement will also result in the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status.

Rabinowitz amplifies the latter point. “Although the Arizona proponents of S.B. 1070 always insist that racial profiling is expressly prohibited in the language of the bill, in practice, just the opposite effect is likely to occur – considering the socio-political milieu which exists in Arizona,” he said.

In declarations filed with the brief, Arizona law enforcement officials, including the Chiefs of Police of Phoenix and Tucson, said that S.B. 1070 will hamper their ability to effectively police their communities. The chiefs said that victims of or witnesses to crimes would be less likely to contact or cooperate with law enforcement officials and that implementation of the law would require them to reassign officers from critical areas such as violent crimes, property crimes, and home invasions.

“It’s likely that enforcement of S.B. 1070 would lead to near-zero enforcement in many areas – creating a kind of chaos,” Rabinowitz concludes.

The Department filed the suit after extensive consultation with Arizona officials, law enforcement officers and groups, and civil rights advocates. The suit was filed on behalf of the Department of Justice, the Department of Homeland Security, and the Department of State, which share responsibilities in administering federal immigration law.

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.

Between fiscal years 2010 and 2014, ICE will prioritize its efforts on the first three homeland security missions identified in the 2010 Quadrennial Homeland Security Report.

Between fiscal years (FY) 2010 and 2014, ICE will prioritize its efforts on the first three homeland security missions identified in the 2010 Quadrennial Homeland Security Report: (1) preventing terrorism and enhancing security; (2) securing and managing our borders; and (3) enforcing and administering our immigration laws.

These priorities, along with ICE’s goals, objectives, and strategies, leave room for adjustment during the next five fiscal years. These goals will guide enforcement initiatives, budget requests, budget execution, resource allocations, and policy decisions.

1. Prevent Terrorism and Enhance Security

ICE seeks to prevent terrorist attacks against the United States and to dismantle threats to homeland security before they materialize. This includes preventing the entry of people and materials that pose a threat to national security; investigating and removing suspected terrorists or their supporters; and preventing the export of weapons and sensitive technologies that could be used to harm the United States, its people, and its allies. Objectives under this heading include: (1.1) prevent terrorist entry into the United States; (1.2) remove individuals posing a security threat; (1.3) support direct investigation of terrorists, and (1.4) protect the United States and its allies through counter-proliferation investigations.

2. Protect the Borders Against Illicit Trade, Travel, and Finance

Transnational criminal and terrorist organizations attempt to exploit lawful movements and transportation systems and to create alternative, illicit pathways through which people and illegal goods – narcotics, funds and weaponry – can cross the border. ICE plays a critical role in the Department’s layered approach to border security. As DHS’s largest investigative agency, ICE responds to investigate criminal activity if U.S. Customs and Border Protection (CBP) interdicts contraband at the border.

3. Protect the Borders Through Smart and Tough Interior Immigration Enforcement

Protecting and securing the borders involves action overseas, at the border and ports of entry, and inside the United States. ICE will engage in effective enforcement at the border and ports of entry by supporting the apprehension, detention, and removal of newly arriving aliens seeking to enter illegally. Within the United States, ICE will pursue an enhanced worksite enforcement program to reduce the incentive for aliens to come to, enter, and remain unlawfully. Towards this end, ICE will make increasing use of employer I-9 audits, fines and criminal indictments where warranted.

Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com

U.S. embassies and consulates liberalize interview appointment policy.

Effective immediately, non-immigrant visa applicants may book interview appointments at any U.S. Consular Section in China, regardless of the province or city where they live. Consular Sections are located at the U.S. Embassy in Beijing and U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang.

In 2009, almost half-a-million people received non-immigrant visas in China, more than ever before. The United States government is committed to increasing mutual understanding between the United States and China through people-to-people exchange. The U.S. Department of State is hoping that the elimination of restrictions on where visa applicants can make their applications will promote this exchange by making the application process more convenient.

With the boom of non-immigrant visa applications in U.S. embassies and consulates all over the world, the U.S. Department of State is adopting and transitioning office-by-office to its new online Nonimmigrant Visa Electronic Application recently introduced worldwide. The online application is intended to efficiently collect application information from nonimmigrant visa applicants and to facilitate the visa application process.

Formerly, prior to the streamlining of interview appointment policy which has occurred, appointments for non-immigrant visas had to be made at least 45 days in advance of travel. Even after a visa interview was completed, if special processing/checking, or additional information was required, a background check became a necessary prerequisite, and issuance of nonimmigrant visas were typically delayed.

Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com

U.S. Citizenship and Immigration Services seeks public comment on proposal to adjust fees for immigration benefits. Dallas-based immigration attorney Stewart Rabinowitz weighs in on what he regards as the opposite of “value-added.”

U.S. Citizenship and Immigration Services (USCIS) is seeking public comment on a proposed federal rule that would adjust fees for immigration benefit applications and petitions. The proposal, posted to the Federal Register on June 9, 2010, for public viewing, would increase overall fees by a weighted average of about 10 percent but would not increase the fee for the naturalization application.

USCIS is a fee-based organization with about 90 percent of its budget coming from fees paid by applicants and petitioners to obtain immigration benefits. The law requires USCIS to conduct fee reviews every two years to determine whether it is recovering its costs to administer the nation’s immigration laws, process applications, and provide the infrastructure needed to support these activities. This proposed rule results from a comprehensive fee review begun in 2009.

“We are mindful of the effect of a fee increase on the communities we serve and have worked hard to minimize the size of the proposed increase through budget cuts and other measures,” said USCIS Director Alejandro Mayorkas. “Requesting and obtaining U.S. citizenship deserves special consideration given the unique nature of this benefit to the individual applicant, the significant public benefit to the nation, and the nation’s proud tradition of welcoming new citizens. Recognizing the unique importance of naturalization, we propose that the naturalization application fee not be increased.”

But Dallas-based immigration attorney Stewart Rabinowitz does not concur with Mayorkas, or with the underlying premise of fee increases for services not well rendered.

“Most people associate a fee increase with an improvement in service, not a greater expense for worse service,” countered Rabinowitz, “Yet today, the USCIS’s culture of saying ‘no’ in its decision-making thrives. USCIS has even developed new reasons to say ‘no’ adding an element of uncertainty to case adjudications which previously were straightforward. It recently issued the Neufeld H-1B memo which skirts the regulatory process and is of questionable authority as a basis for denying IT staffing H-1B petitions. It has made it nearly impossible gaining an approved L-1B petition by applying standards which are much higher than those set forth in USCIS’s own regulations. Even fixing simple USCIS errors on the face of an approval notice remains an exercise in frustration.”

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.

On June 8, 2010, an application for preliminary injunction and complaint was filed in the U.S. District Court for the District of Columbia which challenges USCIS’s application of the January 8, 2010 Neufeld Memorandum‘s definition of employer-employee relationships. Stewart Rabinowitz, a Dallas-based immigration attorney, offers some pertinent insights.

On June 8, 2010, a group of IT staffing companies, whose H-1B petitions USCIS had denied, filed suit against USCIS in the U.S. District Court for the District of Columbia. The lawsuit Broadgate et al versus United States Citizenship and Immigration Services, et al, challenges the controversial Neufeld Memorandum of January 8, 2010, which allegedly clarifies employer-employee relationships within H-1B visa petition adjudications, but in practice has resulted in a preponderance of H-1B denials.

Individual plaintiffs in the case – Broadgate Inc., Logic Planet Inc., DVR Softek Inc., TechServe Alliance, and the American Staffing Association moved for a preliminary injunction to prevent the USCIS from implementing the policy announced in a January 8, 2010 memorandum issued by Donald Neufeld, Associate Director of USCIS. The memorandum declared that a third-party placement contractor is not a United States employer even though the company hires, pays, supervises, fires its employees, and shares control over them, and even though prior to the implementation of the policy initially announced in the memorandum, such an entity was deemed to be a United States employer. It was the preliminary injunction’s contention that this new policy is arbitrary and capricious, while it explicitly changes an existing regulation, limits USCIS’s discretion, and profoundly affects plaintiffs and others outside the government.

Plaintiffs in the suit allege that the Neufeld Memorandum was at odds with the plain language of the statute and its implementing regulations. The Neufeld Memorandum is premised on the assumption that an employee can have only one employer and that “the real employer” is the entity that exercises the greatest day-to-day control. It therefore proclaims that third-party placement contractors that have an overarching right to supervise their employees, that hire, fire and pay their employees and that share control of those employees nevertheless are not valid employees because they have “No Right to Control; No Exercise of Control.” This binding policy is inconsistent with the plain language of the INA which expressly includes contractors as United States employers.

Stewart Rabinowitz, a Dallas-based immigration attorney, concurs. “Broadgate appropriately challenges USCIS agency action on many grounds. Its Complaint alleges a violation of the Administrative Procedures Act (APA) by substituting a USCIS-issued memo by a person not authorized to issue a rule, instead of following the statutorily mandated notice and comment requirements of the APA.”

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.

Surveillance systems deployed to northern border provide situational awareness.

U.S. Customs and Border Protection recently announced the use of the

Remote Video Surveillance System (RVSS) in the Detroit Border Patrol Sector as part of the Secure Border Initiative’s Northern Border Project. The Northern Border Project is part of CBP’s program to use technology as part of its efforts to secure the northern border against illegal border crossers. The project also deployed the surveillance system in the Buffalo Border Patrol Sector in February 2010.

“The Northern Border Project technology deployment provides immediate capability to help Border Patrol agents expand their ability to detect, identify, classify, respond to and resolve illegal cross border activity,” said Secure Border Initiative Executive Director Mark Borkowski. “At the same time, this deployment will provide lessons learned that will enable CBP to design better-tailored, longer-term technology options for the northern border.”

Each RVSS system has a total of four cameras – two day and two night cameras for round-the-clock operations. The Detroit sector deployment has 11 RVSS sites along the St. Clair River, ten of which are completed and operational with the eleventh scheduled for completion by year’s end. The Buffalo sector deployment has 5 RVSS sites along the upper Niagara River all of which are completed and operational.

The use of technology along the northern border is part of a larger border security strategy to assist CBP officers and agents. SBInet is the portion of SBI charged with developing and installing technology solutions to help gain effective control of our borders. The goal is the right mix of technology and personnel for each border sector based on the operational needs of Border Patrol agents.

CBP chose the Detroit and Buffalo sectors for this latest RVSS deployment based on the needs of the Border Patrol and the unique operational area, which consists of coastal maritime, river, urban and rural environments.

Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com

On June 7, 2010, Secretary Napolitano announced a major aviation security milestone.

Department of Homeland Security (DHS) Secretary Janet Napolitano recently announced that all passengers traveling in the United States and its territories are now being checked against terrorist watchlists through the Transportation Security Administration’s (TSA) Secure Flight program—a major step in fulfilling a key 9/11 Commission recommendation.

Before Secure Flight, each airline conducted its own passenger watchlist screening.

“Secure Flight fulfills a key recommendation of the 9/11 Commission Report, enabling TSA to screen passengers directly against government watchlists using passenger name, date of birth, and gender before a boarding pass is issued,” said Secretary Napolitano. “This program is one of our many layers of security—coordinated with our partners in the airline industry and governments around the world—that we leverage to protect the traveling public against threats of terrorism.”

Under the DHS program, TSA checks each passenger’s name, date of birth and gender against government watchlists for domestic and international flights. In addition to facilitating secure travel for all passengers, the program is designed to prevent the misidentification of passengers who have names similar to individuals on government watchlists. Misidentification has led to a significant number of such cases, a few of them well-publicized.

“We are quite pleased to see the positive outcome from the collaborative work that ATA, its member airlines and TSA have invested in the development of the Secure Flight program,” said Air Transport Association (ATA) President and CEO James C. May. “We are especially pleased that TSA phased program implementation to ensure that commercial airline travelers experience a seamless transition.”

Ninety-nine percent of passengers clear Secure Flight enabling them to print boarding passes at home by providing their date of birth, gender and name as it appears on the government ID they plan to use when traveling at the time of booking their airline tickets. Persons who match watchlist parameters are subject to secondary screening, a law enforcement interview or prohibition from boarding an aircraft, as the facts merit.

The TSA began implementing Secure Flight in late 2009 and expects all international carriers with direct flights to the U.S. to begin using Secure Flight by the end of 2010.

Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com

Dallas-based immigration lawyer Stewart Rabinowitz of the firm Rabinowitz &Rabinowitz offers some informed comment about recent 18-month extensions of Temporary Protected Status designations for foreign nationals from Nicaragua and Honduras.

U.S. Citizenship and Immigration Services (USCIS) recently announced that the Department of Homeland Security (DHS) will extend Temporary Protected Status (TPS) for nationals of Nicaragua and Honduras from the current expiration of July 5, 2010, to the new expiration date of January 5, 2012. During the past year, DHS and the Department of State have reviewed the conditions in Nicaragua and Honduras. Based on this review, Secretary of Homeland Security Janet Napolitano has determined that an 18-month extension is warranted because the conditions that prompted the TPS designation in 1999 following the environmental disaster caused by Hurricane Mitch persist and prevent Nicaragua and Honduras from adequately handling the return of its nationals.

“This timely extension will help nearly 70,000 nationals from Nicaragua and Honduras remain in the U.S. legally and maintain work until their home countries have been able to recover from the damage accrued,” Rabinowitz says.

Under the extension, individuals who have been granted TPS are eligible to re-register and maintain their status for an additional 18 months provided they remain otherwise eligible for TPS. There are approximately 3,000 nationals of Nicaragua and approximately 66,000 nationals of Honduras (including people having no nationality who last habitually resided in either country) who may be eligible for re-registration. TPS does not apply to Nicaraguan or Honduran nationals who entered the United States after December 30, 1998.

To maintain TPS status, Nicaraguan and Honduran TPS beneficiaries must re-register during the re-registration period from May 5 until July 5, 2010. It is important for eligible Nicaraguans and Hondurans to re-register as soon as the re-registration period opens to allow sufficient time for USCIS to complete all the routine background checks and further application processing. Applications from Nicaraguan and Honduran TPS beneficiaries will not be accepted before May 5, 2010.

“USCIS will issue a new Employment Authorization Document to eligible TPS beneficiaries who can re-register in a timely fashion and apply for EADs,” states Rabinowitz. “USCIS is automatically granting a 6-month extension for existing EADs held by Nicaraguan and Honduran TPS beneficiaries, through January 5, 2011.This extension will allow sufficient time for eligible TPS beneficiaries to re-register and receive new EADs without any break in their authorization to be employed,” concludes Rabinowitz.

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.

According to Rabinowitz, of the firm Rabinowitz & Rabinowitz, the report released on April 1, 2010, by Congressional Research Services on U.S. Immigration Policy on Permanent Admissions implies that U.S. policy faces conflicting and still unresolved issues.

Four major principles underlie current U.S. policy on permanent immigration: the reunification of families, the admission of immigrants with needed skills, the protection of refugees, and the diversity of admissions by country of origin. These principles are embodied in the Immigration and Nationality Act (INA). The INA specifies a complex set of numerical limits and preference categories that give priorities for permanent immigration reflecting these principles. Legal permanent residents (LPRs) refer to foreign nationals who live permanently in the United States.

During FY2008, a total of 1.1 million aliens became LPRs in the United States. Of this total, 64.7% entered on the basis of family ties. Other major categories in FY2008 were employment based LPRs (including spouses and children) at 15.0%, and refugees/asylees adjusting to LPR status at 15.0%. Over 17% of all LPRs come from Mexico, which sent 189,989 LPRs in FY2008.

“But U.S. Immigration Policy is not working well,” asserts Stewart Rabinowitz, a Dallas-based lawyer of the firm Rabinowitz & Rabinowitz, “and neither are efforts to reform it.”

Substantial efforts to reform legal information have failed in the recent past, prompting some to characterize the issue as a “zero-sum game” or a “third rail.”

“The trick is to initiate reforms that balance employer needs by increasing the supply of legally present foreign workers whom the country needs. These include temporary, low skilled, guest workers, and permanent high skilled “best and brightest” workers to keep the U.S. globally competitive while allowing foreign workers to re-unite with their families, and by improving the policies governing immigration comprehensively – and simultaneously,” explains Rabinowitz.

But while state initiated solutions like the controversial Senate Bill 1070 in Arizona have become law to solely address the undocumented population, and an existing federal piece meal enforcement policy such as the somewhat similar 287 (g) program deputizing local and county police to act as immigration officers, neither can be mistaken for an elusive comprehensive policy for immigration reform. Comprehensive reform must address strengthening our borders, creating and implementing a meaningful guest worker program, adequately providing for the high skilled worker needs of the country and deciding upon a policy to address the sizable undocumented population in the country.

“The Arizona law is poorly conceived and sets a dangerous precedent, acting more to polarize and foster discrimination,” Rabinowitz asserts, “and 287 (g) has been an unmitigated disaster, if only from the perspective of documented abuses involving foreign nationals detained by ICE. As far as addressing the significant issues involved, we are still very distant from any sort of comprehensive or meaningful reform. To address competing priorities, some genuine leadership and far-sighted initiatives will be needed, but right now, such a solution seems more like a pipedream,” Rabinowitz concludes.

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.