Federal Judge Violates Separation of Powers to Issue an Opinion on Separation of Powers

From The New York Times to The Washington Times to CNN, headlines about the case of United States v. Juarez-Escobar all emphasized that a federal judge had found President Obama's immigration program unconstitutional.  Upon reading the articles, none of the major news outlets asked the question, how could a program that was announced less than a month ago and that not yet been implemented ever come to a point this quickly where a federal judge is issuing an opinion on it?

Keep in mind that Article III of the Constitution provides that the judicial power of the United States extends to cases arising under the Constitution and the laws of the United States.  That is, unlike some other countries, the U.S. federal courts cannot issue an opinion on a law or police ad hoc.  There must be an actual case or controversy before them; a party must actually be aggrieved by some action.

So what is the case or controversy involved in Juarez-Escobar?  The case involved a man who was ordered deported in 2005.  He left the United States, but returned without obtaining a visa to work with his brother, who is a U.S. citizen.  The man has a U.S. citizen child.  He was pulled over in Western Pennsylvania for driving under the influence.  While in state custody, the Federal Government was informed of his incarceration.  He was criminally charged in the U.S. District Court for the Western District of Pennsylvania with re-entering the United States after having been deported without a proper visa.  After first pleading not guilty, the defendant changed his plea to guilty and was in the process of being sentenced by the court.  The court was about to follow its own practice of sentencing the defendant to time served plus one year of supervised probation with an order that the defendant obtain a proper visa before re-entering the United States.  The change of plea hearing took place in October of 2014.  Before the court passed sentence, President Obama made his announcement of the deferred action program for parents of U.S. citizens.  A few days later, on its own motion, the court requested briefing on how the President's program would affect the defendant's case.

It was in this posture that the court issued its opinion that the President's program was unconstitutional because it violated separation of powers.

The problem here is that issues of whether a particular defendant would be deported or whether they qualify for some form of immigration relief never go before a U.S. District Court.  Almost all immigration matters are appealed to the U.S. Circuit Courts directly from the administrative agency in charge of making the decision.  The only exceptions are cases where the Government denies a petition for naturalization (citizenship) or when the Government has taken so long to issue its decision that a party finds it necessary to seek a Writ of Mandamus.  U.S District Courts, in the context of a criminal sentencing, just do not have jurisdiction to consider immigration relief.  Indeed, in this very opinion the judge recognizes that he would have no jurisdiction to pass on issues of whether a defendant would qualify for some sort of immigration relief.

More troubling is that deferred action is a matter of pure discretion by the Executive Branch.  That is, no one has a right to receive deferred action.  It can be denied by the Executive Branch for any reason.  Thus, because no one has a right to deferred action, no one can sue the Government if deferred action is denied.

The fact that President Obama had announced his intention to grant deferred action to a number of parents of U.S. citizens or permanent residents, therefore, had no relevance to the sentencing of the defendant in Juarez-Escobar.  It is not an issue that a U.S. District Judge would have any jurisdiction to address.  Accordingly, the U.S. District Judge in this case, Arthur J. Schwab simply had no power or authority to issue this opinion.  Indeed, the opinion itself will have no legal effect beyond the case before the court.  Indeed, inexplicably, after writing an elaborate opinion finding the deferred action program unconstitutional, Judge Schwab then gives the defendant an opportunity to withdraw his guilty pea in order to consider if he would want to apply for the very program the judge found unconstitutional.

Why them would Judge Schwab, a Bush appointee, issue such an opinion?  The ultimate action by the court could have been accomplished very simply.  The court could simply have ordered that in light of the pending Executive action, the defendant could consider whether to withdraw his guilty plea and leave it at that.  The fourteen pages of the opinion which analyze the President's action in light of the Doctrine of Separation of Powers simply had no bearing on the court's ultimate action.  This leads to the inescapable conclusion that Judge Schwab issued this opinion for purely political reasons.

And thus, we are left with the ultimate irony in this case.  In order to find that the President violated Separation of Powers, the judge himself had to violate Separation of Powers and issue an opinion on a topic over which he had no jurisdiction. 

By:  William J. Kovatch, Jr.
(703) 837-8832
(571) 551-6069 (ESP)
wkovatch@kovatchlegalservices.com

A Salute to the Bravery of Escaping Domestic Violence

I want to salute the bravery it takes for a woman to take the affirmative steps necessary to escape domestic violence. 

You'll pardon me if I'm a little emotional as I write this today.  I just spent two days helping women who escaped from domestic abuse in Central America present their stories to Asylum Officers in the hope that they can gain the protection of U.S. law.  The stories have gotten me angry, and I need a constructive way to express that anger.

Sure, there's the obvious targets of my anger:  The SOBs who thinks nothing of treating their women like punching bags, or worse yet, like punching bags who had better have food on the table when I walk into the house drunk or stoned at 3:00am.  The men who feel it necessary to hold a machete tho their woman's throat to show them who's boss.  Who feel it necessary to use the most vile and foul language to constantly terrorize and tear down their women.  Who do all of this without regard to the fact that their children are in the room, watching and learning.

I'm also angry at the machismo culture that pervades much of Central America.  The culture that says a woman's identity is tied to that of her man, that says she is nothing without her man, that treats her as nothing more than property.  It's a culture where girls are trapped by decisions they make at 15 or 16, when they choose a man to be with, only later to find out his violent side when it's too late.  Of course, that's assuming the teenage girl hasn't been abducted by some SOB who thinks nothing of stalking and kidnapping in order to find a woman to tend to his needs.  It's a culture where families won't intervene in a "domestic dispute," because, well, this is the man you chose to be with.  It's a culture that adopts laws that say the right things, after all, we don't want to run afoul of the United Nations.  But, when it comes time to enforce those laws, the police are nowhere to be found.  Or, the police listen to a report of domestic abuse, only to do nothing.  Or maybe, they will arrest the guy, only to release him the next morning, angry enough to go back to his woman to teach her a lesson for making him spend a night in jail.  A culture that traps a woman, making it next to impossible for her to strike it out on her own, to make her own living without being dependent on a man.

But I'm also angry at the snot-nosed kid sitting behind the desk, who can't be more than thirty at the most, making my clients live their stories over and over again.  Worse yet, when human memory isn't perfect (as it rarely is), picking apart miniscule little holes, throwing the woman off their tracks as they try to tell their stories.  Using tiny misstatements as reason to doubt credibility.  Picking on those misstatements instead of taking in the clear emotional pain that is clearly being expressed at the mere mention of their ex-partner's name.  Using the fact that the these women do feel trapped, and for that reason did not come forward earlier, as further reason to doubt their stories.  Failing to realize that just as emotionally painful it is to retell the story in front of a total stranger, it is also painful to share that story with loved ones.  failing to understand that their very attitude is one of the reasons victims of domestic abuse don't come forward or try to escape.

I'm angry because someone has trained this snot-nosed kid to be this way.  Someone has trained him to suspect everyone seeking asylum in this country as just being a liar looking to stay in the United States the easy way.  Someone has trained him to be cold-hearted and skeptical.

I'm angry because just as the Board of Immigration Appeals releases a precedential decision that makes it clear that women who are trapped in abusive relationships that they cannot leave can indeed seek the protection of U.S. asylum law, critics, like those at the Daily Caller and Brietbart, who see it as nothing more than a way to open the flood gates to people who would flout our immigration law for the purpose of obtaining federal benefits.  Critics who would probably think nothing of telling me that all I've done is to assist those illegals in an effort to obtain amnesty.

And yet, it is in the face of all this that women like my clients had the courage to leave and seek protection.  They risked their lives leaving violent men, men who often continue to seek them out and threaten harm.  They risked their lives on the trip north, often knowing that the very Coyotes who are helping get into the promised land are going to rape them before leaving them off at the Rio Grande.  They face their fears over and over, telling their stories to their friends, their families, their lawyers, all before reaching the skeptics in the U.S. Government.

So pardon me if today I am a little angry, angry at a system that requires women to be brave in order to flee domestic violent and seek refuge in a place like the Untied States.  A system that likely exacerbates the emotional and psychological damage that has already been done.

By:  William J. Kovatch, Jr.
(703) 837-8832
(571) 551-6069 (ESP)
wkovatch@kovatchlegalservices.com

Memorandum Supporting President's Deferred Action Program

The White House released the memorandum written by the Justice Department detailing the legal support for his deferred action program.  Through this memorandum, President Obama's legal counsel provides analysis on whether it is permissions for: (1) the Department of Homeland Security to prioritize its resources to target undocumented aliens who are criminals; (2) the President to issue deferred action to parents of U.S. citizens and permanent residents; and (3) the President to issue deferred action to parents of DACA recipients.

 

Interestingly, the Justice Department concludes that while it is permissible to issue deferred action to the parents of U.S. citizens and permanent residents, it would not be permissible to do so for parents of DACA recipients.  The distinction appears to lie in the fact that U.S. citizens and permanent residents have a legal status, whereas DACA recipients do not.

 

The release of this memorandum would seem to indicate that the President will not expand his deferred action program to cover the parents of DACA recipients later, as some have surmised.  To do so would clearly contradict the advice from his own Justice Department.

 

It is also interesting to note that this memorandum does not cover the spouses of U.S. citizens or permanent residents.  This is not to say that such undocumented aliens would be ineligible to receive deferred action, merely that this memorandum, and presumably the President's program, will not cover such aliens at this time.

 

By:  William J. Kovatch, Jr.

(703) 837-8832

(571) 551-6069 (ESP)

Wkovatch@kovatchlegalservices.comn

Temporary Protected Status (TPS) Granted to Liberia, Guinea and Sierra Leone

Almost lost in the media attention given to the President's announcement on immigration yesterday was an announcement by the Department of Homeland Security extending Temporary Protected Status, or TPS, to Liberia, Guinea and Sierra Leone.  The move is meant to permit people who are present in the United States as of November 20, 214 to remain here for eighteen months while the Ebola outbreak continues in their home countries.

Those who qualify for the protection have until May 20, 2015 to apply.

TPS is a status designated by the U.S. Government to countries when it would be inhumane to require nationals from that country to return home.  Is permits people who are present in the United States to remain here without fear of deportation.  Aliens granted TPS may be given work authorization.

TPS does not lead to permanent residency or citizenship.  It is merely a temporary status, that expires once the U.S. Government determines that the conditions in the home country have improved.

TPS has been extended in the past due to such humanitarian reason as war and natural disasters.

By:  William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

Procedures for the President's Immigration Action Not Yet in Place

The President announced that the spouses and parents of U.S. citizens and permanent residents who have been in the United States for five years, pass a background check, and pay their taxes can qualify for deferred action. At this time, USCIS reports that there are no procedures to apply for this program.  We at William J. Kovatch, Jr., Attorney at Law, PLLC expect the application process to be much like the Deferred Action for Childhood Arrivals (DACA) program. Before the procedures are adopted, we will be accepting consultation appointments where we will take the information we believe will be necessary to apply for this deferred action and discussing whether you should apply.  We will use that information to fill out the forms, once they are adopted.

Call for an appointment: (703) 837-8832
(571) 551-6069 (ESP)

Graphic on the President's Immigration Program

Obama, Daring Congress, Acts to Overhaul Immigration

From the New York Times, a report on the President's announcement on immigration.

President Obama's Speech on Immigration, November 20, 2014

Will You Qualify for the President's Program?

President Obama has announced a program to assist those who are present in the United States who have either spouses or children who are U.S. citizens or permanent residents.  The President will grant those who are eligible for the program deferred action, meaning that he will promise not to start deportation proceedings against them.  Those who are granted deferred action may also be granted legal authority to work in this country.

If you think you are eligible for the President’s program, call me at (571) 551-6069.  We can sit down and discuss your situation.

If you make an appointment to see me, you will first sit down with my of my bilingual staff members to collect your information.  Once we have collected your information, I will review it and discuss whether you are qualified for the program.

There will be a consultation fee of $200.  If you are eligible for the program, that money will be credited against the legal fee for helping you apply for this program.

The legal fee will depend on how difficult your case is. 

If you have all of the documents that are required to apply, such as your birth certificate, your marriage certificate, your children’s birth certificates, proof that your spouse or children are U.S. citizens or permanent residents, and proof of presence in the United States for the past five years, the legal fee will be $750.

If you do not have all of your documents, the legal fee will be $1,000.

If you have two or more convictions for misdemeanors, or other problems with your eligibility, the fee will depend on how difficult your case will be.

These fees are in addition to any filing fees required by the Government to apply for the program.

If you need your documents translated, we can translate them for you.  The fees for translations are:

·         $50 for birth certificates

·         $75 per page for all other documents that are type-written

·         $100 per page for all documents that are hand-written.

We can translate from Spanish and French.

By:  William J. Kovatch, Jr.

(703) 837-8832

(571) 551-6069 (ESP)

wkovatch@kovatchlegalservices.com

President to Make Immigration Announcement

It is being reported the President Obama will make a prime time announcement concerning immigration policy on Thursday, November 20.  The announcement is expected to include a program to shield many undocumented aliens already present in the United States from deportation.

The most likely vehicle for this will be an expansion of the deferred action program.  Deferred action is simply a promise from the U.S. Government that it will not deport a person.  A person granted deferred action can apply for work authorization.

At William J. Kovatch, Jr., Attorney at Law, PLLC, we stand ready to assist those who may benefit from the President's announcement.  To make an appointment to determine if you qualify, call us at (703) 837-8832.

En espanol, llame (571) 551-6069.

By:  William J. Kovatch, Jr.
(703) 837-8832
(571) 551-6069 (esp)
wkovatch@kovatchlegalservices.com

Can the Republicans Derail Administrative Action on Immigration?

The rumors are that President Obama will announce some kind of administrative action to address the large numbers of undocumented aliens already living in the United States.  What will that action be?  While at this point we can only speculate, the best educated guess is that it will be some type of expanded deferred action program, like the one the President adopted for undocumented aliens who were brought to the United States as children.  How broadly the program will cover remains to be seen.

Republicans, emboldened by their victories in the November mid-term elections, are warning that any executive action on the issue of immigration will meet with fierce legislative resistance.  The question, however, is just what can congressional Republicans do to derail any administrative action?

The President's safest bet would be to expand his Deferred Action for Childhood Arrivals, or DACA, program.  Deferred action is not really a legal immigration status.  It is merely a promise by the Government that it will not deport someone.  Deferred action is already built into the law.  The President can grant deferred action on a case-by-case basis.  Once deferred action has been granted, the law permits the alien to apply for work authorization.  Thus, while it is not a real legal status, and cannot lead to permanent residency or citizenship, it can allow an undocumented alien the ability to work and earn money legally.

There has been a lot of talk of impeachment.  That is, if the President were to act alone and announce such a broad-based deferred action program, some Republicans believe that there would be grounds to impeach the President.  The argument is that the President would be acting contrary to law by failing to enforce it.

Impeachment, however, would be a tough sell for Republican law makers.  First, as stated above, the law gives the President the discretion on a case-by-case basis to grant deferred action.  It has traditionally been a vehicle used for humanitarian purposes.  Nothing in the law says that the President cannot define a set of criteria on which he would grant deferred action.  Thus, on a purely legal basis, impeachment is on shaky grounds to begin with.

At any rate, a Republican-led House of Representatives has already impeached the last Democratic president, Bill Clinton.  While the grounds for Clinton's impeachment may have had sounder legal grounding (perjury by the chief executive officer in a sworn deposition of a pending lawsuit), the fact is that Republicans would have an image problem if they were to impeach two Democratic presidents in a row.  That is, it would leave the Republicans open to the charge of being willing to undermine the democratic process, instead of working together towards a solution to the nation's immigration problem.  (To those who would argue that the President is the one ignoring the democratic process by acting alone, it should be noted that the Republican-led House of Representatives has had numerous chances over the course of the past two years to propose and pass a serious immigration reform package.  They have failed to do so.)

The next strategy that appears to be gaining popularity is simply to de-fund the President's program.  This solution, some argue, would not require a shut-down of the Government, because the Republicans can just pass a continuing resolution that contains all of the funds necessary to have the Government operate, minus the funds needed to operate the President's program.

This strategy has two fatal flaws.  First, it fails to recognize how U.S. Citizenship and Immigration Services ("USCIS"), the agency that would be charged with administering any program the President adopts, is funded.  USCIS is not funded as a line item in the budget.  To the contrary, USCIS is funded through user files.  That is, every petition or application for an immigration benefit involves some sort of filing fee.  As it is, those filing fees are pretty high.  To become a permanent resident, for example, involves filings fees of almost $1,500.

All DACA applicants had to pay a filing fee of $465.  That included the cost of processing the DACA application itself, the work authorization application and the background check.  Thus, so long as the Administration sets the filing fee at an appropriate level, what Congress does with the budget will have little impact on the President's program.

The second problem with de-funding the President's program is that it assumes that the President will sit back and let it happen.  In our republic, all legislation, including the budget, has to be passed by both houses of Congress and signed by the President.  Bills concerning spending must originate in the House of Representatives.  But, if the House passes a continuing resolution that funds some, but not all, of the Government, the President could veto it.  The House tried this a year ago in an effort to de-fund Obamacare.  In the end, it didn't work.  Worse yet, the Republicans were politically damaged and had to spend the next few months repairing the damage before the November elections.  (It is important to note  that redistricting played a huge role in the Republican electoral victory.  That is, state legislatures redrew congressional districts in such a way as to create a large number of districts with very conservative majorities.  The result was that many very conservative candidates did well in the primaries and rode the redistricting wave to victory in the general election.  In a presidential election, the Republicans will have to face a national electorate, which will not likely be as conservative as the smaller congressional races.)

In the end, there may be very little the Republicans can do to prevent the President from implementing a carefully constructed program to address the presence of undocumented aliens.  The risks to the Republicans are great, considering the national electorate they will face in the 2016 elections.  A better course may be for the Republicans to offer a constructive counter-solution, one that involves more than simply building bigger walls and a push for indiscriminate deportations.

By:  William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

Harsh Republican Action May Spur Administrative Response on Immigration

In a move largely seen as pandering to Tea Party activists, House Republicans passed a bill Friday that would increase funding for border security and attempt to send the tens of thousands of unaccompanied minors attempting to enter the United States over the southern border back to their home countries expeditiously. House Republicans also took action to undo President Obama's Deferred Action for Childhood Arrivals (DACA) program. 

The move appears to be a purely symbolic one, since the bill has no chance of passing the Democratically controlled Senate. Still, House Republicans have sent a signal that they may not be willing to consider serious immigration reform. 

In a purely political calculation, House Republicans may see a greater threat from more conservative candidates in the primaries than from Democrats in the general election. The stunning primary loss of Eric Cantor has only emphasized this line of thinking. This, House Republivans do not appear to be willing to be seen as supporting anything closer to "amnesty" prior to the November elections. 

The House move, however, may have encouraged the Obama Administration to take drastic measures on its own. Democrats are already facing the prospect of the Republic as maintaining their majority in the House of Representatives. There is a possibility that the Republicans could take the Senate as well. Either way, the chances of legislative action on immigration reform before the end of President Obama's term appear almost non-existent. 

The President may, therefore, take executive action to ease deportations and removals for non-criminal undocumented aliens. One proposal that has been floated has been to grant the parents of DACA recipients deferred action. Another has been to grant deferred action to all undocumented aliens without a criminal record. 

The Administration appears to have anticipated the argument that such a move would be overreaching. Articles have already appeared in the media warning that Republicans may seek to initiate impeacent proceedings if the President takes such action. This could be an attempt to portray Republican resistance as being unreasonable. 

What action may happen is now hard to predict. William J. Kovatch, Jr., Attorney at Law, PLLC will remain on top of decelopments, ready to assist those with immigration issues when any action occurs. 

By:  William J. Kovatch, Jr.

(703) 837-8832

Wkovatch@kovatchlegalservices.com

Promising Asylum Cases from the Fourth Circuit

In 2014, the U.S. Court of Appeals has issued two cases that give some hope to people from Central America filing asylum applications based on gang-related issues.

In Martinez v. Holder, Crt No. 12-2424 (January 24, 2014), the Court held that being a former gang member was an immutable characteristic and may serve as the basis for claiming persecution based on a particular social group.  The case was remanded back to the Board of immigration Appeals.

In Aquino-Cardova v. Holder, Crt No. 13-1597 (July 17, 2014), the Court held that a person who is related to members of rival gangs who in turn are targeted for violence may qualify as a particular social group based on family ties.  This case was also remanded to the BIA.

These opinions appear to signal a shift in the trend in asylum law, wherein the U.S. Government resisted gang-related asylum claims.  The Fourth Circuit is largely considered a conservative jurisdiction, and thus these opinions which have a more liberal holding on asylum law are very significant.  While it may be early to tell, the cases could signal a trend of loosening the restrictions for aliens applying for asylum because they are escaping gang-related violence in Central America.  The cases have come in time to perhaps have some affect on the huge surge of Central Americans fleeing their countries and crossing the U.S. border with Mexico.

If you have a gang-related asylum case, call me for an appointment at (703) 837-8832, or email me at wkovatch@kovatchlegalservices.com.

By:

William J. Kovatch, Jr.

Lessons from the Surge: Adult Male Migrants

Unless you've been living under a rock, you know that there has been an almost unprecedented surge of migrants making the dangerous trek from Central America and across the Mexican border into the United States.

Make no mistake, those who come to the United Stayes this way are doing so illegally and are immediately removable. But, I'm starting to see a trend in how the Administration is treating these migrants. It is in stark contrast to what Immigration authorities were doing just months ago. 

In this post, I will talk about the trend for adult males. The surge in unaccompanied children is much more complex and deserves its own post. 

Even if an alien has crossed the border illegally and is immediately removable, they still have the right to claim that they have a reasonable fear of persecution. If the claim is made, then an Asylum Officer conducts an interview to see if the fear is credible. If the fear is found credible, then the case gets referred to Immigration Court where the alien gets an opportunity for a full hearing. 

The persecution claims from adult males can roughly fall into a few categories: (1) I'm being recruited by gangs, I don't want to join and now they're threatening to kill me; (2) I used to be part of a gang, I quit and they're threatening to kill me; (3) I witnessed a gang-related crime, and they want to kill me; and (4) the police are corrupt and helping the gangs, they wanted me to sell drugs, I refused and now the police want to kill me. 

Just three months ago, the first three of these stories were being dismissed by the Asylum Officer. 

Things have drastically changed. With the huge surge, the US Government does not have the resources to house all of the migrants who are waiting for the legal process to work itself out. In my opinion, and I have no way of proving this, I believe Asylum Officers have been given instructions to be more liberal with their reasonable fear determinations. This, stories falling in categories 1 through 3, which were summarily denied before are being approved now. 

This means more aliens with reasonable fear stories are being released on bond and placed in full Immigration Court proceedings. The bond amount is almost universally $7,500. 

The trend in immigration law had been for the US Government to fight the granting of any gang-related asylum claims. As hard-line opinions came out, it left immigration lawyers like me somewhat despondent. We had to advice clients whom we knew were going to be murdered the minute that they arrived in their home country that there was nothing we could do for them.

This surge may wind up being the chance to soften the US Government's stance on gang-related asylum cases. In a way, the softening has already started as the Fourth Circuit, no bastion of bleeding hearts, issued a more liberal opinion on gang-related asylum cases this year. 

At any rate, an alien released on bond with a reasonable fear claim should contact a lawyer immediately. Lawyers know how to put together a case with evidence that is more likely to be approved. 

To contact me about your case, call (703) 837-8832 or email wkovatch@kovatchlegalservices.com. 

William Kovatch

Immigration Court Computer System Still Causing Problems

In April, the Immigration Court's computer system went down, due to a hardware issue.  It took over a month to get the system fixed.  During that time, the court was unable to enter new data into the system.

The system has been fixed, but the data entry is still somewhat delayed.  I had one client who was released on bond during April.  The fact that he had been released had not been entered into the court system, and as a result, his case was transferred to the detained docket, causing some last minute headaches for both the client and myself.  Fortunately, with some paperwork and some phone calls, I got this solved.

Still, if you have a case pending with the Immigration Court, you will want to be vigilant.  Check the 1-800 number often, and make sure you know when all of your hearings are scheduled.

H-1B Cap for Fiscal year 2015 Met

On April 7, 2014, U.S. Citizenship and Immigration Services received enough H-1B petitions to account for the annual quota for fiscal year 2015.  In fact, USCIS announced that it had received enough petitions to account for the 20,000 H-1B visas set aside for alien holding advanced degrees from U.S. schools.

H-1B visas are also known as specialty worker visas.  They are visas that allow a person to come to the United States temporarily to work for a U.S. employer.  To qualify, the alien worker must be coming to perform a job that requires the equivalent of a bachelor's degree or higher.

H-1B visas are initially granted for three years.  The visas begin on October 1, the start of the fiscal year.  Application can be submitted up to 6 months before the start of the fiscal year, or April 1.  There are 65,000 H-1B visas available every year.  Another 20,000 H-1B visas are available for alien workers who hold an advanced degree from a U.S. institution.

In some years, the annual quota is not met until later in the year.  However, when U.S. employers need skilled foreign workers, the H-1B quota can be met early in the H-1B filing season.  If more than enough H-1B petitions are received by USCIS before April 7, a lottery is held to see which applicants receive the available visas.

By:  William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

Free Citizenship Class!

Prince of Peace Lutheran Church is offering a free class to help people study for their naturalization test. 

12 Classes, Tuesdays, Thursdays and Fridays. Running March 18 through April 11, 2014 from 7:30 pm to 9:00 pm. 

Prince of Peace Lutheran Church

8304 Old Keene Mill Road

Room 27

Springfield, VA 22152

(703) 451-5855

William J. Kovatch, Jr. 

(703) 837-8832

wkovatch@kovatchlegalservices.com

Imigration Reform Is Dead? How Did That Happen?

In less than a week, Republican House leadership went from revealing their principles for immigration reform to acknowledging that there was very little chance of passing reform this year.  Indeed, a few days after the proposal was revealed at a GOP legislative retreat, reform proponent Paul Ryan stated that the passage of reform was "clearly in doubt."  This was followed by House Speaker John Boehner declaring that passage of reform legislation would be "difficult" days later.

So what happened?  How did the fortunes of immigration reform legislation change so rapidly in sch a short period of time?

The Process Took Too Long

Strike while the iron is hot.  That's the conventional wisdom.  Use the momentum and advantage while you have it.

After the 2012 presidential election, the passage of immigration reform looked all but certain.  Even conservative talk show hosts, like Sean Hannity, stated that they had rethought immigration reform and supported a pathway to citizenship.

But, immigration reform was not the top priority either for the Administration or Congress.  Rather, the nation first had to face the crisis created by the so-called "fiscal cliff."

Once the crisis was settled, it became a race between a bipartisan committee from the House, which had been working on immigration reform behind the scenes since 2009, and the Senate "Gang of Eight."  According to The Hill, President Obama and Senator Chuck Schumer were not happy with concessions that House Democrats had made, and intervened with House Democrat Luis Gutierrez to slow the progress of the House bill in order to allow the Gang of Eight's bill to pass the Senate first, and thus shape the immigration debate.Once the Senate bill passed, momentum for the House bill died over the summer.

The Hill continues, reporting that two Texas Republicans, John Carter and Sam Johnson, were ready to introduce a bill in the House.  However, they received no commitment from Speaker Boehner.  Washington was then bogged down in the autumn, first by the situation in Syria, and then with the Government shut-down orchestrated by GOP tea party members.

By time Congress passed a new budget, opponents of immigration reform began to strengthen.  Tea party supporters were boosted within GOP ranks by their ability to shut down the Government.  By mid-November, Boehner was saying that there were not enough legislative days left in 2013 to address immigration reform.  Boehner ruled out going into a Conference Committee where the Senate bill would set the agenda.  Indeed, there was a fear among House Republicans that even if the House passed smaller bills on immigration reform that the Senate would use that as an opportunity to inject principles from the Senate bill into the resulting legislation.

When it appeared that the wheels were coming off of the Obamacare band wagon, House Republicans saw no reason to push for immigration reform in 2013.  Indeed, the momentum had shifted in Washington, placing Democrats on the defensive.

Republicans Don't Trust Obama

One theme that emerged from the demise of immigration reform last week was that House Republicans just don't trust President Obama.  The main issue is that of border security.  GOP leader had tried to sell reform to rank and file party members by promising that any pathway to legal status for undocumented aliens already present in the country would be tied to greater border security.  When conservative House Republicans voiced resistance to the leadership's principles, it prompted Boehner to say, "Listen, there’s widespread doubt about whether this administration can be trusted to enforce our laws."

If the President was trying to earn such trust, he had done himself no favors in the State of the Union Address.  There, he was seen as throwing the down the gauntlet, threatening unilateral executive action if Congress would not bend to his will in passing certain legislation in the remainder of the President's term.  Indeed, the President's reputation for acting unilaterally, and in the eyes of any conservatives unconstitutionally, on immigration issues is well-earned.  When Congress did not pass the DREAM Act, for example, the President responded by implementing his Deferred Action for Childhood Arrivals program unilaterally.  House Republicans fear that even if reform legislation included border security requirements, this President will simply refuse to enforce them.

Republicans Are Now Focused on the Mid-Term Elections

As I wrote last week, the Republicans are now very optimistic of winning control of both houses of Congress in the mid-term elections.  Democratic control of the Senate is in jeopardy, in part due to the continued unpopularity of Obamacare.  In the House, many GOP members are from "safe" districts, where the real electoral threat comes not from a Democratic challenger in the general election, but from a more conservative challenger in the primary election.

Many conservatives see supporting any immigration reform that includes any type of "amnesty" as political suicide.  Not only will it alienate more conservative voters, but it would only eventually add to the number of voters who support Democrats, as the undocumented aliens are overwhelmingly Latino.  Should the undocumented eventually become citizens, then the number of Latino voters will rise.  Given the huge majorities which Latinos gave the President in 2012, conservatives believe that adding so many Latino voters to the rolls will relegate the Republicans to a permanent minority party.

Democrats Couldn't Care Less if Immigration Reform Actually Passes

Meanwhile, Democrats are in no hurry to have immigration reform actually become law.  The reason is that it continues to give Democrats a political issue to bash Republicans over the head with in national elections.  Democrats can easily be seen as supporting immigration reform by pushing for legislation.  But, if the Republicans continue to oppose reform, Democrats can point the finger at the GOP and continue to use the issue to garner Latino and Asian support.

So Long as Republicans Have Legislative Power, Immigration Reform Remains in Doubt

The last time that immigration reform came close to passage, it was in 2006, when Republican George Bush was president, and the Republicans controlled both houses of Congress.  The Comprehensive Immigration Reform Act of 2006 included a guest worker program and a pathway to citizenship.  If Republicans really intended to pass reform, they had the political power to do so.  However, reform died in December of 2006, in the lame duck session, as many Republicans who has previously supported reform turned on the bill, in the wake of the Republicans 2006 electoral defeat.

Similar to the current political climate, conservatives who opposed reform gained momentum and worked to block passage.

Will Some Kind of Immigration Reform Pass this Year?

 There are certainly some optimists left in Washington on immigration reform.  Chuck Schumer has proposed, for example, enacting the legislation now, but delaying implementation until 2017.  The conventional wisdom, however, is that the prospects of passage is less than 50-50.  Considering that the 2016 presidential elections are on the horizon, if reform does not pass this year, it may be doubtful that it will pass until a new person is sworn in as Commander-in-Chief.  At this point, neither party appears eager to push for a quick resolution.

William J. Kovatch, Jr.
for an appointment, call (703) 837-8832
wkovatch@kovatchlegalservices.com

Washington Post Examines Life in Immigration Court

On Monday, February 2, 2014, the Washington Post published an article describing what Immigration Court is like.  In writing the article, Eli Saslo interviewed Immigration Judge Lawrence O. Burman.  Above is a photo, published by the Washington Post in connection with the article, taken from Judge Burman's perspective in his courtroom.

I have practiced before Judge Burman.  I find him fair, personable and knowledgeable, which is really all you want in any judge.  He also can have a dry sense of humor.  Today, when confirming a woman's address, he noted that she lived on John Marshall Street.  He asked her if she knew who John Marshall was.  When she responded that she didn't, Judge Burman told her that not only was he a Chief Justice of the Supreme Court, but also an officer who served with General Washington in the Colonial Army.  He then commented that under current US law, this would make him a terrorist (which is true).

Much of my practice is before the Arlington Immigration Court, which I enjoy very much.  If you need representation in an immigration matter, call the number below for an appointment.

William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

GOP Proposes Immigration Reform; Now What?

Last week, Republican leaders from the House of Representatives circulated a one page set of principles on immigration reform among rank and file members at a retreat in Cambridge, Massachusetts.  According to Time Magazine, the proposal included a pathway to legalization for undocumented aliens already present in the United States, provided border protection measures are taken and the undocumented meet certain criteria.

Time quotes that GOP leaders proposed that undocumented aliens "could live here legally and without fear in the U.S., but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families."  The Republicans principles did not include a pathway to citizenship, which the Washington Post reports may be an area where immigration reform advocates are willing to compromise.

Despite the support from Republican House leaders, whether immigration reform will even happen is "in doubt," according to Representative Paul Ryan.  Ryan has been the target of the ire of conservative talk show hosts for his support of immigration reform.  Ryan appeared on ABC's "This Week" on Sunday, stating, "Security first, no amnesty, then we might be able to get somewhere."  When asked specifically if Congress would pass an immigration reform bill this year, Ryan responded, "I really don't know the answer to that question. That's clearly in doubt."

After Mitt Romney's loss in the 2012 Presidential elections, the conventional wisdom was that the Republicans had to support some degree of immigration reform that included the granting of legal status to the undocumented aliens already present in the country if they were to remain competitive in national elections.  This was due to the overwhelming majorities that Latino and Asian voters gave the President.  What happened since then?

In truth, House Republicans are focused on the 2014 mid-term Congressional elections.  Most House Republicans come from "safe" districts, where the election of a Republican is almost certain.  Support for any immigration reform that can be seen as amnesty would more likely result in a credible challenge in the primaries, and not in the election of a Democrat.

Add to this situation the President's recent troubles with the cornerstone of his Administration: Obamacare.  With the program becoming increasingly unpopular, there is a real possibility that the Republicans may be able to take the Senate in the mid-term elections too.

Last week, talk show host Rush Limbaugh questioned why the Republicans would push for any immigration reform that includes so-called "amnesty."  Citing an article from the Politico, Limbaugh noted that Democrat may even be conceding control of the House to the Republicans in order to concentrate electoral resources on saving the Senate.  Limbaugh speculated that if the Republicans were poised to have such electoral success in 2014, the only way to derail that success now is if the party pushed for immigration reform.  Specifically, Limbaugh claimed that if Republicans supported "amnesty," that would likely cause faithful Republican voters to stay home on election day.

With this political climate, then, the passage of immigration reform, which seemed to be a sure thing in late 2012, early 2013, is not a sure thing.  Those who may have been waiting to see if reform would pass instead of acting on legal possibilities now may be well advised to re-think that strategy.

To discuss what possibilities may be available under the law, call now for an appointment.

William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com