Agreement Reached: Class Action Lawsuit on Work Authorization for Asylum Seekers

Washington, DC — The U.S. Department of Justice and the U.S. Department of Homeland Security have agreed to settle a nationwide class action lawsuit challenging the denial of work authorization to asylum seekers who have been waiting six months or more for a decision on their asylum applications. If approved by a federal judge, this agreement will help ensure that asylum-seekers, who have fled persecution in their home countries, are not unlawfully prevented from working and supporting their families while the government adjudicates their cases.  The settlement agreement represents the culmination of years of advocacy by the American Immigration Council’s Legal Action Center (LAC) and other groups on behalf of deserving asylum seekers.

The agreement stems from a case filed in December 2011 by the Legal Action Center (LAC) and the Northwest Immigrant Rights Project (NWIRP), with co-counsel from the Massachusetts Law Reform Institute and the Seattle law firm Gibbs Houston Pauw.  The complaint challenged widespread problems with the “asylum clock”—the system government agencies use to determine when immigrants who have applied for asylum may obtain permission to work lawfully in the United States.

The case, filed on behalf of asylum-seekers around the country, alleged that the current system unlawfully denies asylum applicants the opportunity to obtain employment authorization if their asylum application has been pending for six months or more. Some end up waiting several months or years for the government to make a decision on their asylum application.  Indeed, one plaintiff from China has been waiting nearly 10 years for his case to be resolved. Employment authorization is critical given that most applicants have fled their home countries without any resources, and thus have no means to support themselves.

“The settlement agreement includes significant changes to ensure that vulnerable asylum-seekers are no longer arbitrarily deprived of the ability to work while the government decides their cases,” according to Mary Kenney, Senior Staff Attorney with the Legal Action Center.

“We are extremely pleased that we were able to achieve a solution that we believe will help hundreds, if not thousands, of people seeking asylum,” said Chris Strawn, director of the asylum unit at NWIRP. “Many asylum seekers who were stuck in limbo, without any way to support themselves or their family members while waiting for their asylum applications to be resolved, will now be able to obtain employment authorization.”

“Getting work authorization has been a huge benefit to me and my family, allowing us to sustain ourselves while waiting for a decision on my asylum application,” said B.H., one of the named Plaintiffs in the suit.

Because the suit involves a class action, the settlement agreement, filed April 12, 2013 in a federal district court in Washington State, will have to be approved by Judge Richard Jones, the judge overseeing the case.

Source: A.B.T. et al. v. USCIS, et al. A Nationwide Class Action to Fix the “Asylum Clock” Terms of Settlement, The Legal Action Center

–Kristine Tungol Cabagnot welcomes your questions and comments at kristine@tungollaw.com.

CAP’s Top 10 Ways the Senate’s Immigration Reform Bill Will Fix Our Broken System

www.motherjones.com

Washington, DC–For the past several months, four Senate Democrats—Chuck Schumer (NY), Dick Durbin (IL), Bob Menendez (NJ), and Michael Bennet (CO)—have worked with four Senate Republicans—John McCain (AZ), Lindsay Graham (SC), Marco Rubio (FL), and Jeff Flake (AZ)—to develop a proposal to repair our nation’s failing immigration system. The product of the bipartisan “Gang of 8” negotiations is a bill titled “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013,” filed in the Senate early Wednesday morning.

While it is far from perfect, this historic bipartisan compromise will go far in establishing an immigration policy worthy of our heritage and fit for the 21st century. Washington-based think-tank, Center for American Progress, has compiled the top 10 ways that the Senate’s comprehensive immigration bill fixes our nation’s badly broken immigration system.

1. It restores core American values. The bill would create an immigration system that honors our history as a nation of immigrants and that renews the promise that immigrants who work hard and play by the rules can achieve their dreams in America. It would halt the more than 400,000 annual deportations that tear apart families and devastate communities. It also protects undocumented immigrants from deportation if they arrived in the United States before December 31, 2011, have been continuously present since then, and have not committed any serious crimes, and it puts them on the path to achieving full citizenship.

2. It raises the wage floor for all workers. The bill allows undocumented immigrants who arrived in the United States before December 31, 2011, to apply for status as a registered provisional immigrant, or RPI. This allows undocumented new Americans to work lawfully in the United States while they wait to be able to apply for lawful permanent residence and eventually U.S. citizenship, and it prevents unscrupulous employers from underpaying them, which drives down the wages and working conditions of all workers. The bill also contains important wage and employee protections for future immigrant workers, keeping them safe from exploitation.

3. It preserves family unity. The bill removes the limitations on the number of visas that legal permanent residents can request for their spouses and minor children, ensuring that families are not separated for years while awaiting legal status. It creates a process to aggressively clear the estimated 4.4 million-person backlogs in the family- and employment-based visa systems within the next 10 years. And it creates a new nonimmigrant visa that allows individuals to enter and work in the United States while waiting for a family visa to become available. The bill recognizes that united families have a better shot at achieving the American Dream and works to ensure families can set down roots together.

4. It promotes full American incorporation. The bill allows individuals who have been in the United States with legal status and work authorization for more than 10 years, including legalized immigrants with RPI status, to apply for a green card. This provision includes immigrants who have held temporary protected status or deferred enforcement departure—two designations for immigrants who were already living in the United States when extraordinary conditions in their country of origin prohibited them from returning home—for 10 years or longer, allowing them for the first time to achieve permanent residence and to become full and equal members of society. Further, the bill allows these long-term residents to apply for citizenship three years after securing their green cards.

5. It protects DREAMers and farmworkers. The senators’ proposal acknowledges the unique circumstances confronting individuals who were brought to the United States as children and provides them with an accelerated five-year path to earn permanent residence and citizenship, unlike the 10-year path for most unauthorized immigrants. Likewise, it recognizes the high percentage of farmworkers who are undocumented and their importance to the industry. To stabilize the agricultural industry, the bill authorizes farmworkers who continue working in agriculture to apply for permanent residence five years after the bill’s enactment.

6. It levels the playing field for all employers. The Senate’s immigration proposal mandates the use of E-Verify, the government’s electronic employment-verification system, for all employers to ensure that the workers they hire are authorized to work in the United States. This mandatory program will protect the integrity of the employment system by ensuring that employers and workers are held accountable and, paired with the legalization provisions, will make sure that no undue burdens are placed on those currently without legal status. The mandate includes a five-year phase-in period to allow small businesses more time to comply with the requirements.

7. It boosts economic growth. The bipartisan legislation enables eligible undocumented immigrants to realize their full earnings potential by providing them with a pathway to legal status and the ability to work legally, including the ability to pursue higher-paying legal jobs that match their skills. Legal status also provides an incentive for workers to further their education and training. On average, undocumented immigrants will increase their earnings by 15 percent over five years under this bill, leading to a cumulative $832 billion in economic growth and $109 billion in increased tax revenues over the next 10 years. It will also create an estimated 121,000 jobs each year, benefits that accrue to all Americans.

8. It modernizes our immigration system. The Senate’s immigration bill creates a new category of merit-based green cards for individuals who meet certain criteria—for example, education level, language skills, employment, and family connections—that are determined to be in the national interest. It expands the number of green cards for highly skilled, advanced-degree professionals, creates a new lesser-skilled visa category, and establishes a bureau tasked with analyzing economic, labor, and demographic data to help set annual limits on each type of visa.

9. It enhances national security. Differentiating between who is in our country to do us harm and who is here simply to make a better life for themselves and their families makes our nation more secure in the long run. The bill requires undocumented immigrants who arrived before December 31, 2011, to register with the Department of Homeland Security and undergo criminal and national security background checks. Individuals who have been convicted of a felony or of three or more separate misdemeanors would be ineligible to remain in the United States. Likewise, individuals who are inadmissible because of other criminal, national security, public health, or morality grounds would have to leave the country.

10. It strengthens border security. The bill sets a goal of apprehending or deterring 90 percent of attempted unlawful entries in each of the “high risk” southwestern border sectors; where more than 30,000 people were apprehended in the past fiscal year. If this effectiveness goal is not met within five years, additional funding will be authorized and a commission will be formed to issue recommendations on additional targeted measures. This smart investment in border security will go a long way in ensuring that the constantly evolving border is protected.

Notably, the bill leaves out certain groups such as LGBT partners of immigrants and eliminates programs such as the diversity visa lottery, which granted 50,000 visas per year, drawn randomly from applicants from countries with historically low numbers of immigrants. Even so, the Senate immigration bill is a thoughtful and pragmatic solution that will give approximately11.1 million people a chance to become full and equal members of society, will boost our economy, and will create a 21st century legal-immigration system that reflects our values and our economic needs. Congress should continue the Gang of 8’s bipartisan spirit and pass this bill as quickly as possible.

Source: Top 10 Ways the Senate’s Immigration Reform Bill Will Fix Our Broken System, Center for American Progress, by Marshall Fitz, Director of Immigration Policy at the Center for American Progress; Ann Garcia, Policy Analyst at the Center; and Philip E. Wolgin, Senior Policy Analyst for the Immigration Policy Team at the Center.

–Kristine Tungol Cabagnot welcomes your questions and comments at kristine@tungollaw.com.

Bipartisan Senators Introduce Immigration Reform Bill

Doug Mills/The New York Times

WASHINGTON, DC — The senators known as the “gang of eight” released the full text early Wednesday, April 17, 2013, of their immigration reform legislation, the “Border Security, Economic Opportunity, and Immigration Modernization Act,” an 844-page document that addresses border security, undocumented immigrants and the legal immigration system.

The “gang of eight” includes four Democrats and four Republicans — Sens. Chuck Schumer (D-N.Y.), Dick Durbin (D-Ill.), Bob Menendez (D-N.J.), Michael Bennet (D-Colo.), John McCain (R-Ariz.), Lindsey Graham (R-S.C.), Marco Rubio (R-Fla.) and Jeff Flake (R-Ariz.).

The bill is likely to be contentious. The debate will begin in earnest on Friday, when the Senate Judiciary Committee holds its first hearing. Senators will get a few days to go over the bill ahead of that hearing and another to be held on Monday. Members of the gang of eight have said they are open to amendments, so long as they are not meant to kill the legislation.

Shift to Merit-Based Visas

The wide-ranging bill would allow undocumented immigrants to become citizens after a lengthy process and after border security improvements, along with strengthened enforcement and changes to the way visas are doled out. It would require employers to check job applicants through the government’s online E-Verify system to ensure they are authorized to work in the U.S. And it would shift the country toward merit-based visas based on work, away from family-based visas.

The system basically creates a way for workers who are here on certain temporary visas — both lower- and higher-skilled — to become permanent residents and, eventually, citizens. The visa will use a point system to determine who should be awarded permanent residence. You would get points for things like work history, education, family ties and English-language ability.

For the first five years after the immigration bill is passed, the merit-based visas will be used to clear existing immigration backlogs. After that, the program will offer tentatively 120,000 visas per year to new immigrants. Half of those visas will be geared toward higher-skilled workers and half toward lower-skilled workers.

Border Security

The gang of eight bill sets a goal for 90 percent effectiveness along the U.S.-Mexico border, meaning a majority of would-be illegal border-crossers are stopped. The U.S. Department of Homeland Security would be required to propose a plan for border security within three months, when undocumented immigrants would be able to apply for registered provisional immigrant status.

Unlawful Immigrants and Path to Citizenship

Immigrants would be unable to receive lawful permanent residence for 10 years after obtaining provisional status. During that time, further benchmarks would need to be met, such as implementing the border security plan and mandating employment verification. A Southern Border Security Commission — made of governors and experts — would be formed to improve border security if those plans were not completed within five years. Meanwhile, undocumented young people and agricultural workers would be given a quicker pathway to legal status.

Although the pathway to citizenship would be arduous, supporters of reform said its inclusion is a positive step. President Barack Obama, who has said such a pathway is necessary to reform, issued a statement on Tuesday that generally supported the bill without getting into specifics.

“This bill is clearly a compromise, and no one will get everything they wanted, including me,” President Obama said. “But it is largely consistent with the principles that I have repeatedly laid out for comprehensive reform. … I urge the Senate to quickly move this bill forward and, as I told Senators Schumer and McCain, I stand willing to do whatever it takes to make sure that comprehensive immigration reform becomes a reality as soon as possible.”

The Fair Immigration Reform Movement, a coalition of pro-immigrant groups, called the bill a “starting point” and said it will work with Congress to improve it. Their main concerns are that a path to citizenship could be too long and exclusive, leaving out many undocumented immigrants, while holding the process “hostage to” border security triggers.

“Our families’ well-being should not be conditioned on arbitrary border measures or any political or bureaucratic process which holds their loved ones hostage to regulations over which they have no control,” Kica Matos, a spokesperson for the group, said in the statement.

Republican senators were cautious earlier Tuesday about commenting on the bill, but Sen. Chuck Grassley (R-Iowa) told reporters it seemed to be a good start.

Sen. Mike Lee (R-Utah), who had worked with the gang of eight, but dropped out over disagreements on the path to citizenship, sounded a note of caution.

“It is unfortunate that we have so little time to digest and evaluate such an expansive piece of legislation before we hold our initial committee hearing,” Lee said in a statement. “As senators, it is our duty to read the bill and fully understand the impact it will have on our immigration system before casting votes.”

Sources: Senate Immigration Bill to Heighten Border Security, Grant Legal Status, Huffington Post

Border Security, Economic Opportunity, and Immigration Modernization Act of 2013

How Immigration Reform Revamps Employment Visas, ABC News

–Kristine Tungol Cabagnot welcomes your questions and comments at kristine@tungollaw.com.

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