2010 AILA Annual Conference: Overview of Hot Topics

The American Immigration Lawyers Association (AILA) held its annual national conference June 30-July 3, 2010. The information that follows was garnered by our Murthy Law Firm attorneys, several of whom participated in this year’s conference. The conference began with a quick summary and discussion of the current “hot topics” in U.S. immigration. This overview should aid readers in understanding the landscape of the latest developments in immigration law.

H1B Neufeld Memo, RFEs, and Pending Lawsuit Against USCIS

Regular MurthyDotCom and MurthyBulletin readers will recall the January 8, 2010 USCIS memo regarding the employer-employee relationship in the H1B context. The memo has been discussed extensively in articles available on our website. As summarized in the Hot Topics session of the AILA conference, the memo focuses on the employer-employee relationship in the H1B regulations. The memo removes the definition of control from the regulation, and makes it a separate, standalone requirement. The factors cited as control requirements come from case law that arose outside of an immigration context.

The requests for evidence (RFEs) at issue reflect this interpretation of employer-employee relationship, requiring more than the ability to hire and fire an individual. The RFEs require an itinerary, employment agreement, descriptive offer letter, and portions of the contracts that create the relationships between the parties – particularly as they contain terms regarding control of the work to be performed.

The memo has consequences beyond the targeted IT consulting companies. It is impacting the health care industry as well as government contractors and situations in which H1B workers have ownership interests in petitioning companies.

The memo is currently being challenged in court. This lawsuit, Broadgate, Inc. vs. USCIS, was filed June 8, 2010 in the U.S. District Court for the District of Columbia. The lawsuit challenges the memo directly. It argues that the Administrative Procedures Act (APA) was violated, that the legal standard set forth in the memo is at variance with the regulations, and that the Regulatory Flexibility Act was violated by a failure to consider the impact of the memo on small businesses.

Because of the filing of the lawsuit, the government officials present at the conference were unable to comment on issues related to the January 2010 Neufeld Memo. (We are following the litigation and will update MurthyDotCom and MurthyBulletin readers on any significant developments.)

USCIS Justification for Fee Increases

The USCIS is planning to raise some filing fees. This was reported in our June 18, 2010 article, Proposed Filing Fee Change: New Fees, Increases and Decreases. The USCIS explained the need for increasing fees as reflecting the costs of the services provided. They have had budget cuts, and the government appropriations do not fill their gaps in funding. Thus, they are requesting fee increases and the creation of some new fees. The proposed changes are not in effect as of this writing. There is first a 45-day comment period on the changes.

The new fees created would be for investor visa regional center creation, requests by physicians to be designated as civil surgeons, and a USCIS fee for cases requesting immigrant visa processing abroad. Naturalization fees would not increase.

AZ Legislation and Lawsuit by the Federal Gov’t

The hot state activity is the Arizona law regarding the questioning and detention of those suspected to be undocumented foreign nationals. AILA is fully supportive and playing a leadership role in the boycott of Arizona by many individuals, businesses, and organizations. Other states are considering following the Arizona model. It is believed by AILA that, ultimately, laws such as these will be damaging to the enacting state/s. These laws fail to consider the resources of the states, and are unlikely to withstand legal scrutiny.

The federal government filed a lawsuit challenging the Arizona law on July 6, 2010, reported in this issue of the MurthyBulletin in our first article. [See, Federal Government Sues Arizona Over Immigration Law.] Thus, this continues to be a hot-button issue with ongoing developments.

Comprehensive Immigration Reform

Immigration reform still does not have a bill under consideration, nor any timeline set forth by the Obama Administration. The President spoke about his commitment to Comprehensive Immigration Reform (CIR) on Thursday, July 1, 2010, and the importance of passing CIR. However, there does not appear to be enough political support or momentum on this issue. Analysts believe that there is not enough time or support to pass CIR before the mid-term elections.

There is some possibility of piecemeal legislation. The bills that are potentially ripe for these reform efforts are the DREAM Act and AgJOBS bills. Historically, these have had a lot of support, but not enough to be enacted. These are difficult measures to pass before an election. There are a lot of enforcement efforts aimed at the U.S. borders – particularly the southern border. Much of this is tied to frustration caused by lack of CIR.

Conclusion: Other Matters

Other issues creating buzz include the Supreme Court’s decision regarding the need to inform defendants of the potential for immigration consequences prior to entering a guilty plea in a criminal matter. This was reported in our article, Criminal Defendant Must be Advised of Risk of Removal (09.Apr.2010).

There are also many enforcement concerns, including detention reforms and expansion of the E-Verify system and audits based on E-Verify. MurthyDotCom and the MurthyBulletin cover the hot immigration topics of interest to our readers as they occur. We will continue to share updates with you, on these and other important matters as they develop.