Spar and Bernstein Law

Tens of thousands of same-sex couples in the United States live under the threat of separation because federal law prohibits immigration authorities from treating them the same as married opposite-sex couples.

And in a country where feelings run deep on immigration and same-sex marriage, the foreign-born same-sex spouses and partners of Americans live in a unique legal limbo: In the eyes of the government, they're neither married nor are they citizens.

It's an emotional and financial burden. They can't leave the country to see loved ones for fear they won't be allowed back. They might not be allowed to work or get loans to pay for college. If they're deported, they can be barred from re-entering the U.S.

If a U.S. citizen marries a foreigner of the opposite sex, he or she can apply for a green card for the spouse to stay in the country and eventually become a citizen. That process isn't available to about 28,500 same-sex couples, however.

The 1996 Defense of Marriage Act blocks same-sex couples from receiving a variety of federal benefits that are available to opposite-sex married couples, including ones involving immigration. And it doesn't matter if they're married or in civil unions, or they live in one of a growing number of states that recognize same-sex marriages.

Pew Research Center poll in October showed that 52 percent of U.S. Roman Catholics support same-sex marriage, a higher percentage than the 46 percent of Americans overall who back it.

Congress is divided, too. The Respect for Marriage Act, which would repeal the Defense of Marriage Act, has co-sponsors in almost a third of the House of Representatives and the Senate. The Uniting American Families Act, which would give same-sex couples the same immigration rights as opposite-sex ones, has a similar level of support in both chambers.

At the other end of the political spectrum, 32 House lawmakers have signed on to legislation to amend the Constitution with a definition of marriage as being between one man and one woman, which would further complicate the immigration cases among same-sex couples.

There are an estimated 28,500 binational same-sex couples and nearly 11,500 same-sex couples in which neither partner is a U.S. citizen. None of these 40,000 couples are eligible to use the immigration preferences available to different-sex spouses. These couples are raising almost 25,000 children. Among the binational same-sex couples, the countries most represented are Mexico (25%), Canada (8%), and the United Kingdom (6%), and one-fourth live in California. Among noncitizens in binational couples, 45% are Latino/a and 14% are Asian/Pacific Islander.

President Barack Obama, the son of a binational straight couple, also illustrates the conflict.

He supports gay rights generally, but not same-sex marriage. He also supports a comprehensive immigration overhaul, and he said in a speech in Texas last May that, "I don't believe the United States of America should be in the business of separating families. That's not right. That's not who we are."

But he didn't address the immigration rights of same-sex couples in the speech, and the White House refused this week to comment on where the president stands.

Last summer, the Department of Homeland Security issued new deportation guidelines that prioritized the cases of immigrants with serious criminal records. It appeared to give agents some extra discretion in cases that involve binational gay couples. But the DHS says that until Congress repeals the Defense of Marriage Act or the courts strike it down, the administration will enforce it.

This is a Hot topic and we will keep monitoring and reporting for our readers.

Read more here and here.

Paul Power, CEO Refugee Council of Australia addressed the Immigration Lawyers Association of Australasia breakfast meeting March 10, 2012 at the 6th annual CPD Law Conference.  His focus was on asylum seekers, detention centres and a divisive political debate.  Below is an authorized transcript of that speech.

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Two weeks ago I had what has probably been the most positive experience of my six years as CEO of the Refugee Council of Australia. For the 12 months to July this year, Australia is chairing the international dialogue on refugee resettlement which brings together governments and NGOs from resettlement states and senior officials of the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM).

This dialogue largely focuses on issues relating to the selection and preparation of refugees for resettlement but I suggested that Australia should put on a sharper focus on the post-arrival support of refugees by hosting a meeting of the Working Group on Resettlement in Melbourne. This group had never met before outside of Europe or North America. Despite some initial concerns that few people would come to Melbourne because of the distance and cost, the meeting attracted 87 delegates from 18 countries – government, NGO and UNHCR people involved in senior management roles in refugee resettlement programs.

The meeting was chaired by Jim O’Callaghan from the Department of Immigration and Citizenship and co-chaired by me, and was organised with an impressive level of cooperation from people in various government and non-government organisations. We organised two days of site visits to refugee settlement programs in Melbourne, Geelong and Shepparton, showing examples of good practice of support services for on-arrival orientation, housing, health, education and employment. We explained how different levels of government work with the non-government sector and with business. Visiting delegates met many former refugees involved in all aspects of the support of new arrivals and heard how feedback from, and the involvement of, former refugees had been critical to incremental improvements to services over the past 65 years. The two-day formal gathering which followed discussed different approaches to support services, multiculturalism and the contribution of former refugees to their new society.

I was expecting that the gathering would create a great deal of energy and interest but the feedback from the visiting delegates was even more positive than I had dared to hope. The gathering confirmed that, while we all know that there is room for improvement, Australia has the most comprehensive and sophisticated systems of support for resettled refugees anywhere in the world.

But while the visiting delegates were effusive in their praise of our settlement support services for refugees, they were also asking questions in the meeting breaks and over lunch and dinner about the political debates about asylum which were being reported in the media. How is it that so many asylum seekers are in detention? Are recognised refugees with adverse security decisions really left in detention indefinitely? Is the debate about flows of asylum seekers to Australia really only about six or seven thousand arrivals per year? Aren’t Australians aware of the numbers of asylum seekers flowing from the Horn of Africa to Yemen, from North Africa to Europe or from many countries into the United States and Canada? Is the Opposition serious about suggesting that boats be turned back to Indonesia? Does anyone in the Government consider international law when looking at its detention policies?

People centrally involved in their own national debates about refugee policy in their countries in Europe and North America still have difficulty understanding why the Australian national debate about asylum is so high-profile, so divisive and is so disconnected from international refugee needs. The UN High Commissioner for Refugees, Antonio Guterres, is a highly skilled diplomat. But he had to acknowledge during his visit to Australia last month that he found it hard to share Australian politicians’ concerns about the small numbers of asylum seekers arriving by boat to this country when he compares it to the scale of humanitarian needs he sees in many other parts of the world.

The needs of refugees and asylum seekers seem to bring out the best and worst in our national character. The question for Australians who are upset by the unacceptability of policies which hurt asylum seekers is: How do we respond? What positive steps can we take to reclaim the initiative on refugee policy?

Recently I met the Melbourne filmmaker Robin Hughan to discuss her current work with refugees in South-East Asia and the meeting prompted me to look again at the film she released in 2008 called “A Nun’s New Habit”. It tells the story of Sr Carmel Wauchope, a nun in her seventies who, after a lifetime in schools and community work in rural South Australia, felt she could no longer remain silent when she saw the crushing impacts of long-term detention on asylum seekers. Whyalla, Port Augusta and Port Pirie are not known as centres for political action but members of the Christian communities in those towns became very actively engaged in visiting and supporting asylum seekers in Woomera and Baxter detention centres and in advocating for change with Federal Parliamentarians – as did people in many other suburbs and towns across the country through movements such as Rural Australians for Refugees, the Circle of Friends in South Australia and through countless community and faith-based groups.

The unacceptability of Australia’s treatment of asylum seekers and the provocative way in which asylum issues have been debated by political leaders have encouraged many people who would otherwise be inactive politically to speak up about the wrongs that they see.  This is even noticed at international meetings organised by UNHCR in Geneva where I’m regularly asked why Australian NGOs are so active, so organised and so vocal. To understand this, you have to go back 10 to 12 years ago to a time when Australia’s then Immigration Minister was regularly participating UNHCR meetings in Geneva to promote his government’s detention policies and its new Pacific solution. In response, NGOs had to get organised to publicise the damaging nature of these policies, to let the world know of the suffering of asylum seekers in Australia and to make clear that many Australians opposed these policies. Today, Australian NGOs are centrally involved in international alliances to raise issues of detention and refugee rights well beyond Australia’s shores and have played an important role in supporting refugee representatives, particularly refugee women, to take their concerns directly to international decision makers in Geneva.

Other Australians respond just as effectively but in a quite different way. Brad Chilcott, a Pentecostal pastor in Adelaide, last year saw the need for a non-political response to the never-ending political debate about asylum. He formed Welcome to Australia, a community initiative which engages Australians in cultivating a culture of welcome in our country. Brad believes there are thousands of Australians who don’t care much for politics and don’t know much about immigration policy but do know that they care about people. His organisation promotes parties and local gatherings of welcome for new arrivals, sharing of stories and is promoting the idea of street walks of welcome in Refugee Week this year.

Some of the most effective responses to the inequities of Australia’s asylum policy have come from people such as yourselves – practitioners in immigration law. In the past 18 months, we have seen three vitally important High Court judgements which have resulted from highly effective pro bono work from talent lawyers. In these judgements, the High Court has determined that:

• procedural fairness must be applied to all asylum determinations, even those decided under the excision provisions of the Migration Act;
• under the Migration Act, Australia cannot forcibly remove asylum seekers to a country which does not provide protections for refugees under domestic or international law;
• unaccompanied refugee minors cannot be excluded from family reunion because they might turn 18 before the Immigration Department finally determines their family reunion application.

Work by lawyers on behalf of asylum seekers is so vital that I would encourage you, if you are not already involved, to explore how you might assist. People in this room know far more about this than I do. However, there are opportunities for lawyers to get involved in working with IAAAS providers in the vital work of visiting remote detention centres to provide legal advice and representation to newly arrived asylum seekers. There is a great need for lawyers to provide pro-bono assistance to asylum seekers seeking judicial review of asylum determinations. And we need lawyers who are prepared to explore possibilities for running test cases aimed at restoring rights to people seeking protection from persecution.

When we consider current Australian refugee policy, we do live, to borrow a line from Charles Dickens, in the best of times and the worst of times. As I have outlined, it is possible simultaneously to be very proud and deeply embarrassed by different aspects of our national policy. But we have many examples around us of people who were not content to do nothing in response to additional suffering inflicted on asylum seekers in Australia. It is our choice whether or not we join them.

A group of immigrant activists in Arizona is developing a smartphone application that will enable people arrested on immigration charges to inform their family and attorney of their whereabouts and detention.

The "Emergency Alert and Personal Protection" app will send arrest information to a pre-set list of supporters using GPS technology. With the touch of a button, friends and family will know what's happened. Too often, undocumented immigrants can be detained for days or even weeks before relatives are able to find out where they are. The application also will have an option to record video and audio, and then send it to a safe storage place so legal counsel can access it later. The app will also provide information about basic civil rights in English and Spanish to help guide the detainee during police questioning.

Immigrant advocates say they're using the technology to counter SB 1070, the Arizona law that has driven thousands of immigrants out of the state. Considering how difficult it is for undocumented immigrants to send any message of their whereabouts to friends or family, the smartphone app will help facilitate release and speed up the process to resolving the situation. Many times, undocumented immigrants wait days, even weeks before anyone knows what has happened or what can be done to take care of their detention.

Thanks to the development of the "Emergency Alert and Personal Protection", undocumented immigrants now have a way to get word out so the situation can be taken care of quickly. Because Arizona and other states are passing laws that are cracking down on illegal immigration, this app is now more important than ever to help preserve the rights of immigrants in a system that does not favor them. We will be keeping an eye out for this smartphone app's release so word may be passed along when it becomes available.

Last week marked the end of the second annual National Coming out of the Shadows Week, a rite of passage for undocumented youth -- Americans in all but the eyes of the law -- who support enactment of the DREAM Act. 

Publicly proclaiming one's unauthorized immigration status is clearly a courageous act. As the National Immigrant Youth Alliance explains in its "Guide to ‘Coming Out’ for Undocumented Youth," revealing to others that you live in this country without legal status can range from "easy to very hard" depending on the way it's done. An act in defiance of governmental authority, "coming out" can trigger serious repercussions under the immigration laws, including arrest, detention and deportation.

On the other hand, this form of self-revelation can be cathartic and possibly beneficial.  Counterintuitively, the first step from darkness could also set the stage for actions under current law that may well lead the federal government to grant legal benefits and protections unavailable to other DREAMers who remain in the shadows.  Some of these avenues are described in a useful 73-page online resource, "The Life after College Guide for Undocumented Students," published by the nonprofit, Educators for Fair Consideration (E4FC). 

Funded in part by benefactors from Silicon Valley, E4FC suggests, for example, the possibility of seeking employer sponsorship for an H-1B visa (for Specialty Occupation Workers), traveling abroad and applying for a "D3" waiver under Immigration and Nationality Act (INA) § 212(d)(3).  This is a risky proposition.  It requires throwing oneself on the mercy of both a U.S. consular officer (who must recommend the D3 waiver) and the Department of Homeland Security's Admissibility Review Office (ARO) -- a unit of U.S. Customs and Border Protection -- which must approve it.  If the waiver is not granted, a DREAMer who'd entered illegally or been in the U.S. in unlawful presence after age 18 would be subject in most cases to a ten-year bar on reentry to the United States.

The E4FC guide also discusses various legal ways of earning a living in the U.S. notwithstanding undocumented status, such as qualifying as an independent contractor, either as a sole proprietor or an incorporated entity. Although E4FC does not cite legal authority, it exists in some situations under Bhakta v. INS, 667 F.2d 771 (1981); Lauvik v. INS, 910 F.2d 658 (1990); and Konishi v. INS, 661 F.2d 818 (1981), cases holding that management of a business which will likely create jobs for American workers does not constitute unauthorized employment under the immigration laws.  

The guide, quite correctly however, cautions DREAMers: 

It is your responsibility to determine whether you may legally pursue these options based on your immigration status. Be sure to consult with an experienced immigration lawyer first.

The E4FC, also laudably, provides links to a free, online service gain a preliminary assessment of whether legal remedies may exist in a particular individual's unique situation, offering the admonition:

This service should only be used for a preliminary analysis of your possible immigration remedies. We urge you to consult with a reliable immigration attorney for a comprehensive analysis.  

I echo the same cautionary note as E4FC with a disclaimer here, and a reminder that what I am about to suggest is made available for educational purposes only, not to provide specific legal advice.  For legal advice in each individual's case, DREAMers should consult a competent immigration lawyer, as urged by U.S.Citizenship and Immigration Services (USCIS) here and as explained by the American Immigration Lawyers Association in this FAQ.

With the foregoing very large caveat, here are some additional tips, possible options and information for further research with and through your immigration lawyer that may be helpful and suitable in a given case (yet may fail miserably in other cases).

1. Build Your Tribe.  No DREAMer should face the federal government alone.  Besides a competent immigration lawyer, your tribe of supporters and resource providers should include, whenever possible, family, friends, fellow students, community activists, faith-based groups working for social justice, wealthy benefactors, an employer willing to sponsor you for a work visa, social media mavens and sympathetic journalists to tell your story to the public and follow you through the immigration process. Though the government may deny that publicity has any effect on their actions, publicity helps.  Paraphrasing Hillary Clinton (even if she didn't say it first or quite this way), "it takes a village to raise a [DREAM] child."
2. Qualify for family-based, employer-based or self-sponsored immigrant visa classification, and apply for permanent residence (a green card) through adjustment of status by invoking the law's forgiveness provisions. The immigration laws allow foreign citizens to obtain "immigrant visa classification" in many different ways.  It can be obtained through certain forms of family or marital sponsorship, or through the employment-based visa categories, including a current or prospective employer's labor certification, as well as through self-sponsorship options under the "Extraordinary Ability" and "National Interest Waiver" avenues.  It can even be obtained by way of the EB-5 employment-creation investor category (say, if a wealthy benefactor provides a lawful gift, or a venture capitalist provides funds for investment by purchasing a DREAMer's intellectual property, valued at least a half million dollars). Immigrant visa classification can be converted into a green card through the adjustment of status (AOS) process without ever departing the United States.  As an initial prerequisite, AOS requires that the applicant have been inspected and "admitted or paroled."  Thus, a DREAMer who entered on a visa but overstayed satisfies this preliminary threshold.  If the DREAMer is an EWI (someone who entered without inspection), s/he would need to ask USCIS to grant Parole In Place to satisfy this first step for AOS eligibility. Ordinarily, however, AOS is not available to someone who violated status or worked without permission.  Fortunately, there are two exceptions (forgiveness clauses) under which USCIS can still grant AOS: (1) If the violation of status was for "technical reasons;" or (2) if it was other than through the fault of the applicant.  See my co-authored article, "Imagining the Improbable: Extraordinary Immigration Solutions for the Hapless and Hopeless." ("Imagining the Improbable"). With the help of an experienced immigration lawyer, more than a few talented and accomplished DREAMers can conceivably present a well-proven case showing that their violation of immigration status was proximately caused by the person(s) who brought them here, or through "technical reasons," e.g., their inability as minors under law to have the legal capacity or capability to take steps to seek some form of lawful status or discretionary relief under law.
3. Seek Lawful Nonimmigrant Status without leaving the United States.  Just as the green card AOS procedure contains forgiveness clauses, so too do the nonimmigrant visa categories.  As explained in Imagining the Improbable, someone who entered on a visa but overstayed or fell out of status, but who did not work without permission and who is not in removal proceedings, may be restored to the same or a different nonimmigrant visa status if "extraordinary circumstances" can be established.  Extraordinary circumstances are decided on a case-by-case basis.  As Imagining the Improbable also explains, it may be possible, in addition, to rely on a principle of law known as "equitable tolling" to extend the deadline for filing an extension or change of status. Even a person who came into the U.S. as an EWI may qualify if USCIS can first be persuaded to grant Parole In Place.  INS (and USCIS still today) have exercised authority to convert parole status into H-1B status on the strength of a March 25, 2000 Headquarters policy memorandum.  Thus, conceptually there is no apparent reason why parole-conversion-to-nonimmigrant-status could not also apply to other nonimmigrant categories once Parole In Place is granted.   
4. Apply to USCIS for employment authorization, while presenting evidence of eligibility for "deferred action" status. Grants of prosecutorial discretion (PD) by U.S. Immigration and Customs Enforcement (ICE) have been abysmally low.  According to a March 9, 2012 email sent to Congress, ICE has found only 1% of detained foreign citizens and 8% of immigrants in Immigration Court proceedings "provisionally amenable" to a grant of PD.  If a DREAMer is not before the Immigration Court (i.e., has never been served with a Notice to Appear), s/he may nonetheless be eligible for a grant of "deferred action," also sometimes known as "deferred departure," according to Leon Wildes, the lawyer who, in successfully representing ex-Beatle John Lennon, discovered through a Freedom of Information Act request, the existence of a secret procedure then known as the "Non-Priority Program."   Although the Operations Instructions (OIs) of USCIS's predecessor, the Immigration and Naturalization Service, have been superseded, "deferred action" status still exists at 8 CFR § 274a.12(c)(14), which provides that a foreign national may apply for employment authorization if s/he "has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment."  Here, from the old superseded OIs, is the INS rationale for granting deferred action status and the factors to be considered for this form of relief:

The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases. The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. In making deferred action determinations, the following factors, among others, should be considered:

(A) the likelihood of ultimately removing the alien, including:

(1) the likelihood that the alien will depart without formal proceedings (e.g., minor child who will accompany deportable parents);

(2) the age or physical condition affecting ability to travel;

(3) the likelihood that another country will accept the alien;

(4) the likelihood that the aliens will be able to qualify for some form of relief which would prevent or indefinitely delay deportation;

(B) the presence of sympathetic factors which, while not legally precluding deportation, could lead to unduly protracted deportation proceedings, and which, because of a desire on the part of the administrative authorities or the courts to reach a favorable result, could result in a distortion of the law with unfavorable implications for future cases;

(C)] the likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated which will result in a disproportionate amount of Service time being spent in responding to such publicity or justifying actions (emphasis added);

(D) whether or not the individual is a member of a class of deportable aliens whose removal has been given a high enforcement priority (e.g., dangerous criminals, large-scale alien smugglers, narcotic drug traffickers, terrorists, war criminals, habitual immigration violators).

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To be sure, some seasoned immigration lawyers might react to my suggestions with skepticism.  So be it.  My purpose is not to suggest that the immigration benefits available under current law through these strategies are easily won. 

Rather, this is where your tribe and the tribes of all the DREAMers must spring into action.  Mount a campaign to persuade USCIS to embrace these approaches in individual cases.  Present the most worthy and compelling cases first.  Refrain from filing cases with little hope for success.  Publicize the outcomes of the successes and failures.  Put USCIS (and the Obama Administration as it courts Hispanic-Americans and other hyphenated citizens for votes in November) to the task of explaining why such existing remedies under law are not embraced with gusto and granted with compassionate neutrality. 

The DREAMers, after all, are the innocents.  They landed here without asking for a life full of challenge and hardship. They deserve a chance to be brought into the law's good graces under remedial provisions that past administrations have created.

If large numbers of self-outed DREAMers were to ask for immigration benefits under current law, the bureaucrats managing and administering the immigration laws would be forced to take the flood of well-publicized filings into account and resolve them.  Just like the plea-bargaining that takes place in every court of the land, where it would crash the system if every defendant exercised the right to a trial, it would shake the unresponsive immigration system into action were the DREAMers -- in large numbers -- to ask for what the law clearly allows.  

So DREAMers (after consulting with your immigration lawyers and acting only on advice of counsel), stop playing hide and seek.  Instead, come out, come out, wherever you are.   

Under the Violence Against Women Act (VAWA), victims of domestic violence and cruelty have an alternative to waiting for their abusive spouse or parent to submit the paperwork for a green card on their behalf. They can submit a “self-petition,” using Form I-360, issued by U.S. Citizenship and Immigration Services (USCIS).

In 1994, Congress passed the Violence Against Women Act (VAWA), creating special routes to immigration status for certain battered noncitizens. Among the basic requirements for eligibility, a battered noncitizen must be the spouse or child of an abusive U.S. citizen or permanent resident. Through a self-petitioning process, the battered spouse/child may apply for immigration status without the knowledge or involvement of the abuser. Derivative status is available to certain children and parents of the principal immigrant.

California Democratic Sen. Dianne Feinstein will head to the floor today with other Democratic women Senators to push for renewal of the Clinton-era Violence Against Women Act. It is part of a coordinated Democratic push for the women’s vote, which Democrats see as in play following the Rush Limbaugh fiasco, the GOP primary’s focus on contraception and claims, disputed by the Mitt Romney campaign, that the Republican frontrunner said he would eliminate funding for Planned Parenthood.

She said as mayor in the early 80s she opened the first home for battered women in the city. At the time, she said, “Women were being battered and had no place to go, and often stayed in home where they were battered again and again.”

She said the 1994 law has reduced “non-fatal partner violence” by 53 percent over a decade and a half with no partisan disagreement, and that she was “stunned” when the Judiciary Committee, on which she sits, passed the reauthorization on a party line vote.

Citing the Centers for Disease Control, Feinstein said on average, 24 people a minute are subjected to “rape, physical violence, or stalking by an intimate partner in the United States.” That’s 12 million women and men a year. In California, she said 30,000 people have used crisis prevention centers funded by the bill in 2010 and 2011. In 2009, she said California had more than than 167,000 cases in the state in which police were called to a domestic violence scene.

She defended the bill’s expansion to cover gays and lesbians, illegal immigrants and Indian tribes, while saying it also consolidates programs and reduces costs by 17 percent, or $136 million.

Way to go Senator Dianne Feinstein, you have our support.

On Friday March 9, 2012 The Hon. Chris Bowen MP delivered the keynote address at the 6th annual CPD Immigraton Law Conference - ILAA (Immigration Lawyers Association of Australasia).  His address focused on changes to the skilled migration program and the employee sponsored Visas program plus the Government's anticipated outcomes.

Below is an authorized transcript of the minister's speech:

Good morning and thank you.

I had the honour of addressing last year's Immigration Lawyers Association of Australasia conference.

A lot has happened since then and it's good to be back to give you an update on progress over the last year in relation to our reform of skilled migration.

The last few years have been a period of significant reform when it comes to skilled migration.

We've embarked on a series of reforms to make sure Australia's two-speed economy gets maximum advantage from what is a very significant program.

Skilled migration reforms

Back in 2009, under the stewardship of my predecessor, Chris Evans, we reformed our temporary skilled worker (457) program to make this program more responsive to the business cycle, better protect vulnerable workers and complement local training and employment opportunities.

Because the 457 visa program is our principal and most effective response to skill shortages, last year the Government spent $10 million opening up a new dedicated processing centre in Brisbane, designed to halve the median processing time for complete 457 visa applications.

I am pleased to say that, according to our latest figures, the median processing time for all applications this year has been reduced by 53 per cent on the average processing time when we came to office. It is now 19 calendar days.

Of course, as a median figure, this means that many complete applications will be processed faster than that — and, in fact, of the applications lodged in January this year, the majority were decided within ten working days.

So the 457 visa program is now more efficient and more responsive to changes in the labour market than at any time in its history.

You can play a big role in reducing these processing times further. Every time the department needs to ask for more information in order to assess an application, it results in delays in processing. With resources projects coming on line rapidly, delays mean dollars. So you can help to speed up processing by working with our officers and by using e-lodgement so that we can give Australian businesses the best possible processing times.

Last year, I also announced the introduction of the sponsorship accreditation scheme. The scheme recognises that many 457 sponsors have a long record of compliance with immigration law and should receive streamlined processing to speed up positive outcomes for employers and industry.
While the accreditation scheme is still in its infancy, to date a number of employers — including hospitals and scientific research bodies — have been granted accredited status. I am sure that many more important Australian businesses will take up this opportunity in the coming months and I welcome this development.

Another important reform we introduced — back in 2010 — was the new, more targeted Skilled Occupations List for Independent Migration. The new, shortened List is focused on high-value occupations for the economy over the long term and is underpinned by Skills Australia's independent analysis.

Then, last year, we introduced a new points test to better select independent migrants who are best equipped to find a place in the labour market through all stages of the economic cycle. The points test focuses on factors such as strong English language proficiency, on-the-job work experience and higher levels of education.

And this year we are introducing Skill Select. Skill Select gives the government the tools to prioritise and rank intending migrants in their order of relative merit. It also allows us to tweak the spread of occupations in any given program year — preventing the situation of recent years where the bulk of the program is dominated by only a handful of occupations.

Skill Select will also connect Australian employers, and state and territory governments, with potential job candidates. Applicants will benefit from online lodgement of Expressions of Interest and can be more confident of a positive outcome when they pay their application fees. All in all, Skill Select provides a more efficient and better-administered program, benefits that will bring productivity improvements for the labour market.

Employer Sponsored Visa reforms: a simplified, stronger program

This brings me to our latest reforms to strengthen and simplify the Permanent Employer Sponsored Program.

The defining characteristic of employer sponsored migration is the use of market-based employer processes to select potential migrants. That is, employers throughout Australia can sponsor foreign workers for permanent residence to fill genuine job vacancies in their businesses.

Because of this, these visas are highly responsive to labour market demands. They are good for Australia — in that they are our best performing permanent visa category in terms of employment and economic outcomes. For example, 96 per cent of Employer Nominated Scheme (ENS) migrants work full-time and their median income is $77 000 per annum.

Given this strong performance, we've put a lot of emphasis on growing this program — transforming it into the Government's main skilled migration program.

It was therefore prudent to take a good look at the program to ensure that it is well placed to meet both our labour market and integrity objectives. In undertaking this review, my department found that, while the employer sponsored program performs very well, there is still room to improve in three key areas:

• simplifying the program and reducing administrative costs
• better aligning the program with our broader economic; and
• limiting the vulnerability of visa holders; and
• reducing the potential for employers to manipulate the program to access cheap, less skilled labour

Today, therefore, I am pleased to announce reforms to improve the operation and effectiveness of the permanent Employer Sponsored visa categories: the Employer Nominated Scheme and the Regional Sponsored Migration Scheme (RSMS).

Our reforms will address all three areas for improvement. They also deliver on the Government's commitments to visa simplification and to creating a more efficient pathway to permanent residence for 457 visa holders.

These changes will effectively conclude the comprehensive review of the Skilled Migration program, which has modernised our system of skilled migrant selection.

As I say, it has been a period of significant reform in skilled migration. This reform has been necessary but I also recognise that change is disconcerting and people — both prospective immigrants and employers — need to see these reforms implemented and allowed to work. Once this round of reforms is implemented, I see us then embarking on a considerable period of consolidation.

Most importantly, the reforms will ensure that our Skilled Migration Program remains geared towards delivering significant benefits to the economy through greater productivity and migrant employment outcomes.

What are we doing?

What we'll be doing is cutting the red tape for all applicants and streamlining the visa for those people who've already been through the rigorous 457 visa process and have a proven work record in Australia. That's about 78 per cent of the entire program or around 15 000 places.

For the remainder of the program — that is, those people seeking direct entry — we're putting in place improved checks and balances.

We have retained the core strengths of the program while implementing a suite of changes. I'd like to touch on the key elements of the package that will commence on 1 July 2012.

Around half the people who take up a job opportunity on a 457 visa end up staying and becoming permanent residents. Most of these stay with the same employer doing the same job. Our reforms will better align the program with our broader economic objectives and streamline the pathway to permanent residence for these workers. We know they can do the job and are ready to make a commitment to Australia.

In practical terms, this means that the visa applicants skills will not be assessed a second time. Nor will we re-test English skills if they've been tested for their 457 visa.
Of course, businesses will still need to comply with their sponsorship obligations and applications will still be considered on their merits.

For those who apply directly for permanent residence and are mostly untested in the Australian labour market, we need to ensure that they can do the job in Australia.

Improved checks and balances will position us to select the best and brightest for the limited number of available visas — those people best equipped to succeed in the labour market and participate in Australian society. It will also mean that these migrants are less vulnerable to exploitation.

In particular, applicants seeking direct entry will be subject to an English requirement of IELTS 6, and an assessment of their qualifications and professional work experience. To reduce the complexity of the system, the current six visa classes for the permanent employer sponsored program will be reduced to two new visas: an ENS and a RSMS visa. This includes eliminating the onshore and offshore legal requirements, removing administrative barriers and simplifying visa rules.

In addition, a single, consolidated 'sponsored' occupation list will be introduced to replace three current occupation lists for the Employer Nomination Scheme, subclass 457 and the State and Territory Sponsored General Skilled Migration visas. This consolidated list will make it a lot simpler and clearer for employers and prospective permanent migrants to navigate migration rules.

This approach will be further strengthened with the removal of the subjective 'exceptional circumstance' provisions from RSMS.

In fact, last program year, almost 36 per cent of occupations nominated for RSMS claimed 'exceptional circumstances'. These included skilled trade occupations — such as plumbers and mechanics – and non-trade skilled occupations, such as hotel managers and law clerks. Any system which requires over a third of applicants to prove they face 'exceptional circumstances' is in need of reform.

It makes sense to have a more generous 'standard' program for RSMS will be available, including a broader range of eligible occupations and skills. The new rules will be simpler, clearer and more objective, thus saving time and expense for migrants, employers and my department.

At the same time, the program will be brought into line with the core premise of the Skilled Migration program — to focus on just that, skilled migration. The single, consolidated occupation list for ENS will concentrate on truly skilled occupations, as will RSMS, while semi-skilled occupations can be negotiated through a new Labour Agreements stream within ENS or RSMS.

Of course, I recognise that there are areas of the country that are crying out for semi-skilled workers. That's why I recently announced the Regional Migration Agreement program to cater for these needs. I have also taken steps to reduce the time it takes to approve a Labour Agreement, making the program a more viable option for employers.

Overall, the changes that I have announced today will strengthen the Permanent Employer Sponsored Program by attracting those people best-suited to meet Australia's and employers' unique labour force needs and make a contribution to Australia. This will provide for a more streamlined, flexible and simplified visa approval process.

I note that a plenary session on the reforms to the Skill stream, including the changes to the Permanent Employer Sponsored Program, will be conducted by departmental officers later this morning. They will provide a more detailed and technical summary of these changes to the Permanent Employer Sponsored Program. If you have any specific questions on the detail of the changes, I'm sure they'll be happy to answer them.

Conclusion

I have talked a fair bit today about the economic imperatives of our skilled migration program.

However, as you all know, immigration policies also have, at their core, a human dimension — and changes to them have real impacts on real people. It is therefore essential that changes to migration policy settings are made with an understanding of their effects on all facets of our economy and society, and recognition of their real world impacts on our clients and stakeholders. I like to think that our changes are made with this consideration firmly in mind.

Of course, there will always be scope for improvement, as the dynamic nature of our economy dictates that the Migration Program — and the skilled visa categories in particular — have an inherent need to evolve over time to ensure proper calibration of our migration program for current conditions. This does not mean an overhaul to respond to every bump in the economic road but, rather, a strong and durable framework, within which appropriate tweaks can be made.

Indeed, this is why the Government is implementing a Long Term Migration Planning Framework which provides for a more strategic and longer term approach to our immigration policy and settings.

In recent years we have undertaken an ambitious, wide-ranging and effective reform of our skilled migration policy and program settings. This has delivered a more targeted, demand-driven skilled migration program that is better placed to meet our short and medium to long term economic needs, while ensuring that our first priority of jobs for Australians is not compromised.

The employer sponsored migration reform that I have announced today adds to this important body of work. I trust it will provide greater certainty for your clients and better outcomes for Australia's economy and society.

Thank you.

The Hon. Chris Bowen MP

Recently, the Washington Post published the story about a man accused of practicing law without a license. His story represents a serious issue that is faced in immigration law, namely how so many individuals are taken advantage of by "notarios" and others who advise on legal services without a license to practice law.

Luiz Ramirez, a paralegal in the Washington, D.C. area, dispensed free legal advice on a thrice-weekly radio show on WURA (920 AM) and pushed for the Dream Act in Spanish-language dailies. A Univision segment featured his work helping two women who said they had been forced to become sex slaves. Over the past year or so, the publicity brought him awards and helped send hundreds of clients to his McLean-based legal services firm. Lawyers say the carefully honed image hid one of the most sophisticated and lucrative legal shams they have seen in the Washington area aimed at the very people for whom he purported to advocate: Latino immigrants.

Ramirez is facing felony ­charges for allegedly telling clients that he was a lawyer, even though he is not licensed to practice law in the area. People who sought his help accuse him of taking thousands of dollars in fees for legal work he never performed. The case highlights a concern in the Washington area, where tens of thousands of recent immigrants, who are often vulnerable because of language and other barriers, rely on a relatively small number of professional services providers that market to them.

Ramirez insists that he never practiced law, stating that "My contract is very clear: I’m a paralegal...To make a complaint, these people will say I’m an attorney. .?.?. We did our work. We did what they requested."

Some cash-strapped clients allege Ramirez failed to fill out visa paperwork or to represent them in bond matters and say they are now facing deportation. Others say they pulled together thousands of dollars to pay him for help in legal cases but got nothing in return.

Ramirez, an Oakton resident, is charged with five felony counts of obtaining money under false pretenses. The charges involve four clients in Fairfax County. Ramirez is scheduled to appear in court June 15.

He also faces a civil suit brought by another client in Fairfax and a handful of Virginia State Bar complaints. And a client filed a claim against him in the D.C. courts last year.

“Ramirez is one of the better marketers out there,” said Manuel Leiva, former president of the Hispanic Bar Association of Virginia and one of the lawyers who brought Ramirez’s case to authorities. “The reason people fell for this is because he had such a slick operation.” On the home page, Ramirez stands before an image of a waving American flag and offers a personal message, calling immigrants “those brave ones” with “the hope of freedom.” He concludes with a direct appeal: “Let’s give them a chance.”

One such story regarding the work he has done comes from Reyna Ordonez-Viera. Ordonez-Viera, who lives in the District and works as a janitor, said she turned to Ramirez after her husband was charged in a drug case last year.

Speaking Spanish, she said Ramirez led her to believe that he was a lawyer and assured her “everything would be fine.” She said she paid Ramirez to represent her husband, borrowing the $2,200 fee from a co-worker.

At the first hearing, Ordonez-Viera said, Ramirez introduced himself as a friend to her husband’s public defender and offered no legal assistance. Ordonez-Viera said that she demanded her money back and that Ramirez gave her a $600 check, which she said bounced. Ordonez-Viera filed a complaint in D.C. Superior Court and went back to Ramirez for a refund. When she confronted him on an elevator at his office, then in the District, she said he stopped the elevator and threatened to call police and tell them she was a drug trafficker.

“Nobody should believe him,” said Ordonez-Viera, whose husband is behind bars. Her complaint against Ramirez was dismissed because court papers could not be served to him, according to court records.

Ramirez disputes Ordonez­-Viera’s account, saying that he never told her he was a lawyer and that she was a client of a lawyer he previously worked for as a paralegal. He denies threatening her and said her money was eventually refunded.

Others said Ramirez had done good work for them. Diogenes Bustamante, a plumber from Alexandria, said Ramirez helped his wife’s mother get a visa to visit the United States and assisted family members with the green card process. “He did a great job for my family,” Bustamante said.

Leiva and other lawyers said the case highlights a pervasive problem in local immigrant enclaves: unlicensed consultants who provide bogus or shoddy legal and immigration work. In the Latino community, they often go by the term “notario.” In some Latin American countries, a notario publico is legally trained and can provide representation in some matters. In the United States, scammers sometimes get notary public licenses and offer legal advice to clients, who do not understand what a notary does in this country.

Virginia State Bar officials said that they received 52 complaints about immigration consultants between 2007 and 2012 and that such fraud is their biggest concern in the area of unauthorized practice of law. The bar has launched an education campaign around the issue. Most alleged scams go unprosecuted. Victims, who are often illegal immigrants, are reluctant to come forward, and some bar officials said Virginia could be better equipped to tackle the fraud. “If we had legislation on the books with teeth, it would entice local law enforcement to take up the cases and give them a specific tool to take on the fraud,” said Christine Poarch, vice chair­woman of the Virginia State Bar Unauthorized Practice of Law Committee.

If there is anything to take from this story, it is that there are still people out there who would take advantage of the plights of immigrants and abuse the system. Anyone who is facing an immigration issue should turn to a knowledgeable attorney who will ensure that your case is handled with the professionalism and care needed for any matter.