H-1B Visas Still Available for Fiscal Year 2011

As of June 25, 2010, 23,500 H-1B visa petitions had been filed for fiscal year 2011. There is an annual cap of 65,000 visa. That means that over 40,000 H-1B visas for fiscal year 2011 remain.

Also, 20,000 H-1B visas are available every year for foreigners who hold a masters degree or higher from a U.S. institution. As of June 25, only 10,000 petitions from this category had been filed. Thus, 10,000 H-1B visas for foreigners holding a U.S. master's degree or higher remain.

H-1B specialty worker visas, therefore, remain available. Specialty workers generally are workers in a profession requiring a bachelor's degree or higher. The fiscal year starts on October 1, 2010.

The Federal Government Sues Arizona

The Federal Government filed a lawsuit against Arizona over its law requiring police to inquire into the immigration status of a person if the police have a reasonable suspicion that the person is an illegal immigrant. The lawsuit contends that the Arizona law has been pre-empted by the comprehensive set of immigration laws promulgated by Congress.

In my humble opinion, I do not think the Arizona law can withstand a challenge from the Federal Government. The reason is that the Constitution clearly makes immigration a federal issue. In fact, immigration has to be a federal issue. The country simply cannot have one set of immigration rules at work in Arizona, and another set in place in Nebraska. Immigration must be a unified national policy.

The pre-emption doctrine provides that where a subject is within the authority of the Federal Government, and Congress has occupied the field by passing a comprehensive legal framework, states are not free to adopt their own laws on the subject. There is a comprehensive legal framework in place. The Department of Homeland Security is clearly tasked with enforcing U.S. immigration laws. The Constitution provides that the laws passed by Congress are the Supreme Law of the Land. Therefore, I do not believe that there is any room for the states to adopt their own immigration rules.

Interestingly, this is the same issue that led to our civil war; namely whether a state can trump the Federal Government by passing its own law that is inconsistent with Federal law. Just as the South was wrong then, Arizona is wrong now.

A City on a Hill

On this Fourth of July weekend, we celebrate the freedoms many of us take for granted. I am sure that when the Founding Fathers met in the sweltering heat of Philadelphia in 1776, they had no idea that what they started would be the creation of a beacon that would draw pople from all over the world. People flock to the United States to this day because of our freedom, and the opportunities we have.

It is fitting, then, to contemplate immigration reform. The president gace a speech on the issue two days ago. While I am generally not a fan of this president, there are some things I must agree with him about. Namely, that our immigration system is broken and is in need of reform.

A few years ago, I was in the camp of enforcement only, and strengthening the security of our borders. I still believe strongly in strengthening our borders. But, I have seen how the enforcement only approach has simply failed, and created an inhumane and intolerable situation.

The problem with enforcement only is tat it requires a huge amount of resources to implement. You need money for more courts and judges. You need money for more ICE officers. You need money for more goverment lawyers. You need money for more detention facilities. You need money to care for those who are held in detention awaiting a hearing.

Yet, we have not had the forethought to pure the money into the system. What is the result? People charged with immigration violations are being crowded into jails awaiting hearings. Sometimes, with the hge backlog of cases, they find themselves waiting years for a hearing. Worse yet, these people, who may have already served time for various minor crimes, and who are only awaiting a hearing for alleged immigration violations, find themselves mixed in with the general population of some of the most violent criminals.

The strain on the immigration court system is great. The judges' docket is packed. The government attorneys are overworked. In many instances, when the person has a claim under the law for relief, it is not unusual to have to wait two years for a hearing.

Money has not been put into the system to care for those who are in detention. Detainees sometimes lack even rudimentary health care. Plus, the system creates incentives for those in charge of the detention to develop a cold and callous attitude towards detainees. There are stories of detainees who complain of health issues, only to have ICE officers use that to pressure them to give up their case, and just accept going back to their home countries. There was one story from two years ago where the ICE officers refused to believe a man from Hong Kong of his incredible pain. Not until his family was able to get a court order was he able to get a medical exam. By then, it was discovered that this man had cancer, and the delay in treatment only served to allow the cancer to spread through his body.

This is the result of our enforcement only policy. This is why, as a human being, I can no longer support enforcement only. Yes, tose who broke the law should not be able to benefit by that. But, the reality is, the problem is just far too big to solve simply by enforcement only. If our elected officials are not going to have the political strength to dedicate the resources necessary to implement the enforcement only approach in a human e fashion, he we have to address those who are here, and do it in a fair way.

This country should continue to the a beacon for the world. As my favorite president, Ronald Reagan, described, we should be a city on a hill, an example of freedom and self-government for the whole world to admire. And we should lead by example, showing that we can deal with our immgiration problems fairly, but with compassion.

Ineffective Assistance of Counsel: Padilla v. Kentucky & Post-Conviction Relief for Criminal Offenses with Immigration Consequences

On March 31, 2010, the U.S. Supreme Court issued its decision in the case of Padilla v. Kentucky, Crt. No. 08-651, which held that the failure to give advice concerning the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and thus a violation of the Sixth Amendment. Immigrants facing deportation or removal because of criminal convictions now face the possibility of using the Supreme Court’s decision to solve their own immigration problems.

Padilla was a permanent resident and veteran of the Vietnam War, where he served his country honorable. He was charged under Kentucky law for transporting marijuana, an offense that carried with it an assured deportation if convicted. According to Padilla, when considering whether to plead guilty, he asked his counsel about the immigration consequences of his conviction. His counsel told him not to worry because of the long time that he had spent in the United States. This advice was dead wrong.

After pleading guilty, Padilla faced removal proceedings. It was at this time that Padilla sought post-conviction relief to withdraw his guilty plea and face trial. The Supreme Court of Kentucky denied his request.

The U.S. Supreme Court held that the failure of counsel to provide advice on the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and remanded the case for further proceedings under Kentucky law. In reaching this conclusion, the Court made a number of key findings. First, the Court found that even though immigration is governed by civil law, the immigration consequences of a conviction are inexorably intertwined. Second, the Court noted that there was no distinction between bad advice and no advice. That is, criminal defense counsel is under a duty to provide advice concerning the immigration consequence of a conviction, even if the topic was not affirmatively brought up by the client. Finally, a key point of the Supreme Court’s decision is that Padilla sought to remedy a guilty plea that was allegedly procured by ineffective assistance of counsel.

With the Supreme Court weighing in on the subject, the question now for many facing deportation or removal is how to use Padilla to gain immigration relief.

All people being held by the government have the right to file a writ of habeas corpus. That means, that they can challenge the legality of their detention. Thus, in many instances, it may be possible now to file for a writ of habeas corpus, and argue that the detention is illegal because the conviction was based on a guilty plea procured by counsel’s bad immigration advice.

But, habeas corpus may not be available for everyone facing immigration consequences of their criminal convictions. For example, in Virginia, a habeas corpus action is only available for two years after the final judgment of the trial court, or one year after the final decision on appeal.

Virginia has one more avenue that may be available. That is the writ of error coram vobis. This is a procedure meant to correct errors that affect the validity and regularity of the judgment. In Commonwealth v. Mohamed, 71 Va. Cir. 383 (2006), a defendant attacked the length of his sentence, claiming his criminal defense counsel failed to advise him properly on the fact that the length of his sentence would cause his to be deportable. The Circuit Court of Arlington County permitted the defendant, who had served his sentence completely, to use the coram vobis procedure to reduce his sentence in order to avoid deportation proceedings.

It is important to note that Mohamed did not challenge a guilty plea itself. Indeed, in Virginia, by pleading guilty, a defendant waives a host of rights, including the right to appeal. A question remains as to whether the coram vobis procedure can be used to withdraw a guilty plea when based on ineffective assistance of counsel. The Virginia Supreme Court in Dobie v. Commonwealth, 198 Va. 762, 96 S.E.2d 747 (1957), held that coram vobis cannot be sought merely if the criminal defendant thinks he can obtain a better result by going to trial.

However, Dobie was decided long before Padilla. And, Padilla specifically addresses the situation where the guilty plea was alleged procured because of bad advice on the immigration consequences of the plea. The argument would be that the guilty plea itself is invalid because it stemmed from the ineffective immigration advice.

Such a strategy remains untested. Its success is, therefore, unknown. Moreover, this strategy faces the hurdle that guilty pleas are difficult to attack under Virginia law. However, it may be the best hope available for immigrants who have already served their sentences in Virginia, and now face the immigration consequences of their guilty plea.

Update (September 27, 2012):  The Virginia Supreme Court case of Morris v. Commonwealth has pretty much shut the door on obtaining post-conviction relief based on Padilla.  Morris held that the writ of error coram vobis and the writ of audita querela were not available in Virginia to address a claim of ineffective assistance of counsel.  The only avenue open for post-conviction relief based on a Padilla claim is a writ of habeas corpus.

There is, however, a statute of limitations on a writ of habeas corpus in Virginia.  It must be filed two years after the final judgment of the trial court, or one year after the appellate decision is final.

This creates a gross inequity in Virginia.  A person can have a conviction of a deportable crime that is ten years old.  There is no statute of limitation on the ability of the Government to use such a conviction for deportation.  But, that person may not have any clue that the advice he or she received when accepting the plea was faulty until ICE takes him or her into detention and starts removal proceedings.  That person would then have no ability in Virginia to challenge the conviction based on the Sixth Amendment violation.

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

Supreme Court Holds Competent Criminal Advice Includes Discussion of Immigration Consequences

On March 31, 2010, the U.S. Supreme Court held that the failure to advise a criminal defendant of the immigration consequences of a plea amounted to ineffective assistance of counsel.

Padilla had been a lawful permanent resident for forty years, and served honorably in the U.S. Armed Forces during the Vietnam War. On the advice of counsel, Padilla plead guilty to transporting a large amount of marijuana. Because of his guilty plea, Padilla faced deportation.

Padilla claimed that his defense counsel not only failed to advise him of the immigration consequences of the guilty plea, but that counsel assured him that since he had been a permanent resident for so long that he did not have to worry about his immigration status. Padilla insisted that if he knew about the immigration consequences of his guilty plea, he would have insisted on going to trial.

The Supreme Court of Kentucky, assuming Padilla’s claims were true, denied post conviction relief. Padilla appealed to the U.S. Supreme Court, which reversed the Kentucky decision.

Pursuant to the Sixth Amendment, before deciding on whether to plead guilty to a charge, a defendant is entitled to the effective assistance of competent counsel. Kentucky had argued that immigration consequences of a plea are merely collateral, and thus criminal defense counsel need not address them. The Supreme Court disagreed, noting the unique nature of deportation. While removal proceedings are a part of civil law, not criminal law, deportation is intimately related to the criminal process.

Based on this reasoning, the Supreme Court reversed the Kentucky Court’s decision, and remanded the case for further proceedings. Five justices joined in the Court’s opinion. Justice Alito concurred in the judgment, and was joined in his opinion by Chief Justice Roberts. Justices Scalia and Thomas dissented.

Arizona Law Ignites Firestorm of Controversy

Arizona passed a law addressing immigration concerns which has touched off a firestorm of controversy. The most controversial provision of the law provides that where any lawful contact is made by a law enforcement official or agency of the state or a county, city, town or other political subdivision, and a reasonable suspicion exists that the person is an alien unlawfully present in the united states, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

Opponents argue that it will be difficult for government officials to define when a reasonable suspicion exists that a person is an unlawful alien. Critics fear that police and other officials will rely on racial profiling to identify potentially undocumented aliens, thereby bringing a large number of lawful residents and U.S. citizens of Latino descent into suspicion.

Critics further note that the law will discourage many Latinos from seeking the vital services they may need from the government, for fear of being placed in immigration proceedings.

Despite pleas from immigrant rights groups across the country, and criticism from President Obama, the Governor of Arizona signed the bill into law on August 23, 2010. In response, the Board of Governors of the American Immigration Lawyers Association moved its fall conference from Arizona in protest.

H-1B Visas for Fiscal Year 2011 Still Available

On April 8, 2010, USCIS announced that it was still accepting applications for H-1B specialty worker visas for fiscal year 2011. The H-1B visas are for foreigners who work in a position requiring a bachelor's degree or higher. There are 65,000 available each year, plus an addition 20,000 available for foreigners holding a master's degree or higher from a U.S. school.

The fiscal year begins on October 1, 2010. H-1B petitions can be filed as early as 6 months in advance. Thus, April 1, 2010 was the first date on which H-1B petitions could be filed. As of April 8, 2010, 13,500 H-1B petitions had been filed, and 5,600 petitions for individuals with advanced degrees.

In recent years, the trend had been for there to be more petitions filed on April 1 than there were available visas. This results in a lottery to see which applicants receive the visas. Last, year, however, H-1B visas remained available up through December of 2009. Fiscal year 2010 appears to be starting off in the same manner.