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Alabama Law Only Partially Blocked - Multiple Harmful Parts to be Enforced; H-1B Cap Usage Advancing Rapidly - Exhaustion Soon a Possibility

by Alan Lee

In a panel order on October 14, 2011, the Eleventh Circuit Court of Appeals which has jurisdiction over the states of Alabama, Georgia and Florida enjoined the State of Alabama from enforcing two parts of the restrictive Alabama immigration law, HB 56. The court blocked the state from requiring schools to inquire into the immigration status of their students, and law enforcement from charging undocumented aliens with misdemeanors who willfully failed to carry their immigration papers. However, it let stand major provisions that police could detain and arrest undocumented immigrants that they had reasonable suspicion were in the country illegally, that those they arrest without valid driver's licenses suffer mandatory detention until prosecution or handing over to U.S.I.C.E., and that contracts entered into by undocumented immigrants as well as "business transactions" between any division of the state and the undocumented are legally nullifiable. The Court of Appeals may take months to make a decision on the merits of the appeal as it was only ruling on the government's motion for a stay of the law, but in the meantime, the law for all intents and purposes allows the detention and arrest of anyone who looks "foreign." This usually means persons of color who exhibit any dress or mannerisms of their cultural heritage. It also means that the state or city or town can refuse to service a residence or commercial establishment owned by an undocumented alien, and that the people of Alabama can ignore or tear up contracts with illegal immigrants that they do not like. In defining the term "business transaction" with the state of Alabama or any of its subdivisions, the new law makes it a FELONY for an undocumented alien to enter into or attempt to enter into business transactions such as applying for or renewing license plates, driver's licenses, non-driver identification cards, or business licenses. Already many immigrants are fleeing the state, and the exodus will be even more rapid given the court's ruling. Workers in Alabama are not showing up for work; stores are not opening; children are not going to school; and crops are being left out in the fields. Alabama's agricultural commissioner John McMillan recommended farmers to consider hiring inmates from the state's work release program. This is indeed a sad day for civil-rights in a state with a long history of discrimination against minorities. The failure of the Court of Appeals to stem the tide is a severe blow to many legal and illegal immigrants with roots in the state who had pinned their hopes of remaining without state-sponsored harassment on the U.S. government's efforts with the court.

As of October 7, 2011, the cap count for new H-1B petitions is at 60,100 numbers out of an approximate allotted 85,000. In the latest fiscal year (FY) 2012 (10/1/11-9/30/12) figures provided by U.S.C.I.S., approximately 41,000 H-1B cap subject petitions had been receipted along with 19,100 for U.S. Masters or higher degree holders. (Those with advanced U.S. degrees are given their own annual quota of up to 20,000 before they are allowed to take any of the approximate 65,000 numbers allotted to others who may be eligible for H-1B visas). Number usage has been escalating sharply since the end of July, and we estimate that if the present rate continues, the cap will be reached by late November-early December. Following cap expiration, employers can only petition for FY-2013 new H-1B petitions beginning on April 2, 2012, for work to begin no sooner than October 1, 2012.

2011 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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