Terminating the H4 EAD?

Terminating the H4 EAD?

 
In February 2015, the Obama administration promulgated a federal regulation permitting certain spouses of foreign employees in H-1B visa status to seek authorization to work in the U.S.

Ordinarily, a spouse or child of a foreign employee in H-1B status is given a ‘derivative’ status known as ‘H-4’ status.  Under most circumstances, someone in H-4 status is not allowed to work in the U.S.   However, under this program, a spouse who is in H-4 status may apply for an Employment Authorization Document – (an ‘EAD’ or ‘work permit’) – if the H-1B spouse is also the beneficiary of an approved I-140 Petition for Alien Worker. 

The I-140 Petition For Alien Worker is the first step in the ‘green card’ process which shows that the foreign employee is eligible for a ‘green card’.  Because of the backlog of visa numbers for natives of some countries such as China and India, some foreign employees may have to wait years before they can take the second step of actually applying for a ‘green card’.  The executive order gave relief to the spouses of these foreign employees who successfully completed the first step while waiting for the second step.  It is typical for a foreign employee who qualifies for an H-1B visa to have a spouse who is also highly educated or skilled, so this program allowed spouses to put their education and skills to good use while waiting for a ‘green card’.

It was widely expected that when Donald Trump took office, he would attempt to eliminate this program.  Recent reports indicate that a proposed new federal regulation has been drafted that would do just that.

An added dimension to this story is the existence of a lawsuit styled Save Jobs USA v. U.S. Dept. of Homeland Security filed in April 2015 and presently at the D.C. Court of Appeals.  ‘Save Jobs USA’ is a consortium of technology workers who argue that the manner in which the H-4 EAD program was created was improper.  Proceedings in this case have been held in abeyance until December 31, 2017 to give time to the U.S. Dept. of Homeland Security (under the new Trump administration) to assess the case.  A ruling may be coming as early as January, so this may be a factor in how/when/if the Trump Administration addresses this program.

In the meantime, foreign employees and their family members who may be eligible for the program should examine whether they are in a position to benefit from these regulations…sooner rather than later.

 

Your HS&D Immigration Team

What is the Diversity Visa?

What is the ‘Diversity Visa’?

Basically, the Diversity Visa ‘Lottery’ is a program that provides an opportunity for individuals from countries that do not have many immigrants in the U.S. to apply for a ‘green card’.

Here is clarification on some of the issues associated with the Diversity Visa Program:

1.       Individuals from only certain countries are eligible to apply for a Diversity Visa.  The U.S. Department of State uses a complicated formula to determine which countries have low admission rates to the U.S. over the preceding 5 years.  Thus, the countries on the list change as the formula is applied each year.  Persons from those countries with the fewest numbers are eligible to participate.

 

2.       It really is a ‘Lottery’.  Persons from the listed countries can apply once in a year to participate in the Lottery, and like any lottery, it is a random selection process that is very difficult to win.  In 2015, there were 14.5 million applications for only 50,000 visas, so the odds of being randomly selected is very remote.

 

3.       There is no guarantee that you get a ‘green card’.  If a person is randomly selected, it does not mean that he or she gets a ‘green card’; it only means that the person can then apply for a ‘green card’.  A person must still meet certain education or work experience criteria to get a ‘green card’.  In addition, the person must, like all other ‘green card’ applicants, go through a background check, meet health and financial criteria and be vetted before going for an in-person interview at the U.S. Embassy in their country to see if the person is admissible into the U.S.  If the person passes the interview, he or she will get an ‘immigrant visa’ in his or her passport, but still must be examined at the U.S. border before he or she can be admitted.  Furthermore, if the person does not use the immigrant visa within one year, it is terminated and he or she will not be admitted.

It is important to recognize that the formal name of that program is the ‘Diversity Visa’ program because that explains its purpose.  Here’s why:

A Very Brief History

U.S. Immigration laws up until the 1952 McCarran-Walter Act operated on a system of quotas – allowing only a certain number of immigrants from each country to enter the United States.  This was preserved in the Act, but modified in subsequent amendments to open America’s borders to insure there was a variety of nations represented in the melting pot of America, (hence the ‘diversity’).  In what was then a mere quaint seed of globalization, our leaders recognized the importance of sharing ‘American Ideals’ with the rest of the world.   

As a consequence of the 1990 Act creating the program, anyone from anywhere in the world has a chance to fulfill his or her dream to come to the United States for a chance at a better life.  In return, the United States benefits from the traditional goal of sharing its values and ideals with persons from around the globe – not to mention the contributions that such motivated persons make to American culture, community and economy.

 

What About The Terrorist Attack in New York?

It has been widely reported that the suspect in the terrorist attack in New York arrived in the U.S. from the small country of Uzbekistan on one of these ‘Diversity Visas’ back in 2010.

The perverse and horrific actions of this individual are inexcusable.  And it is fair to inquire whether there was any inherent flaw in the Diversity Visa program that was somehow exposed by this perpetrator.  Given the random and slim odds that any one individual could win the visa lottery makes it an unlikely strategy for anyone intending to come to the U.S. for the purpose of causing harm; the fact that the suspect evidently has lived in the U.S. attempting to run a business while raising a family since 2010 makes the connection even more tenuous, and with no prior criminal background, it would make it difficult to have foreseen during his visa interview years ago that he might one day decide to inflict his terror on innocent people.  The fact that all but two of the persons killed by him were also immigrants from other countries visiting the U.S. makes his crime particularly sad and ironic.

 

HS&D Immigration Group

What's Next For DACA Recipients?

What’s Next For DACA Recipients?

 

You can be excused if you feel like you have whiplash.  The turmoil and mixed messages that have swirled since the announcement was made terminating the DACA program on September 5^th make it difficult to keep up.

Here’s a quick assessment of where we are – at least as of 1:27 p.m. on September 14, 2017:

                The DACA program is still winding down (as described in our previous post on this Blog).   As the program slowly dies, no new petitions are allowed, but anyone whose existing DACA benefits are set to expire before March 5, 2018, still have until October 5, 2017 to file an application for renewing his or her benefits.  The March 5 deadline is significant because it represents a 6-month invitation to Congress to draft and pass its own legislation to provide immigration benefits to the young adults who benefitted from the DACA program – (also referred to as ‘DREAMERS’).

                Shortly after U.S. Attorney General Jeff Sessions announced the termination of the program, tweets from President Trump infer that he is still supportive of the beneficiaries of the DACA program, and even went so far as to say that if Congress did not act by March 5^th, he might consider taking some other action that might be beneficial to these persons.

                Then, last night, Democratic leaders meeting with President Trump announced that they had all agreed to support legislation that would give immigration benefits to DREAMERS, and that funding for ‘The Wall’ between the U.S. and Mexico would not be a part of the Bill being negotiated.  Reports indicate that President Trump did not agree to not continue pursuing construction and funding for ‘The Wall’ – just that he would not pursue funding in the same Bill that would give DREAMERS immigration benefits.  (From a practical standpoint, this would increase the likelihood of passage of a ‘DREAM’ Act, since including funding for ‘The Wall’ would prevent Democrats from supporting the Bill.)

                For all of the excitement these developments seem to create, we would caution against getting too optimistic at this stage.  The history here shows that positions on this type of immigration reform have been predictably inconsistent.  Furthermore, we should be reminded that the DACA program was created only after the President and some Congressional leaders supporting a ‘DREAM’ act failed to get a Bill through Congress – which is precisely the same situation we are now in. 

It takes more than a President and some Senators and Representatives wanting to pass legislation.  It takes a majority of Senators and a majority of Representatives to vote for legislation in both houses of Congress that supports giving benefits to immigrants who are not currently in status.

Given recent history, it’s far from a sure bet that they would work together to get such a Bill passed, even if the President supports it.

But to end on a more optimistic note, it does appear that there is a broad measure of support for these young adults and their plight that seems to transcend political parties and ideology.  So stay tuned to see what happens next. 

 

                Your Immigration Team at

               Hunter, Smith & Davis, LLP

DACA is Terminated

Termination of the DACA Program

 

Like the slow progression of a hurricane expected to make landfall, the Trump Administration today finally confirmed what had been anticipated for a number of months:  the ‘rescission’ of the Deferred Action for Childhood Arrivals, or ‘DACA’, program.

So what does this actually mean?

It could be worse.

Let’s start here: What is (was) DACA?

As referenced above, the ‘D A’ in DACA stands for ‘Deferred Action’.  ‘Deferred Action’ is a legal term that references a longstanding immigration administrative tool that has been in use since the 1970s.  ‘Deferred Action’ simply means that the act of formally removing a person from the U.S. will be deferred for a specific period of time.  From a functional standpoint, it can also be viewed that a prosecutor from the U.S. Dept. of Justice uses his or her discretion to not act to remove a person from the U.S. because of sympathetic factors or in deference to other ‘deportation’ priorities.  This is known as ‘prosecutorial discretion’.

Understanding this helps us clarify what ‘Deferred Action’ does not do.  It does not grant any type of ‘status’ to the individual.  The person is not eligible for a ‘green card’, much less U.S. citizenship – and the person cannot sponsor anyone else for an immigration benefit.  The only thing ‘Deferred Action’ does is temporarily shield the person from an action to remove him or her from the U.S.; in addition, the individual who is granted ‘Deferred Action’ is also permitted to seek work authorization in accordance with Federal Regulations.

On June 15, 2012, then-President Obama ordered the Department of Homeland Security to consider young persons who had already been brought to the U.S. before January 1, 2010 and were at that time under the age of 16, to seek ‘Deferred Action’.  Since it was being used for a specific sector of young people living in the U.S. his program was initiated as ‘Deferred Action’ specifically for ‘Childhood Arrivals’, (or ‘DACA’). 

It is instructive to note that the DACA program was not the creation of a new immigration benefit – (Deferred Action has been around for nearly 40 years) – it was simply identifying a specific segment of society for whom these existing federal regulations would systematically apply.  Each individual, however, would still need to prove eligibility for deferred action on a case-by-case basis by filing a Form I-821D – ‘Application For Consideration of Deferred Action’ – with U.S. Citizenship & Immigration Services.  If the applicant met the qualifications and successfully passed a background check, the individual could receive ‘Deferred Action’ for a 2-year period.

In November of 2014, President Obama sought to expand the DACA program to extend the period of Deferred Action from 2 years to 3 years and include a greater number of persons who arrived before the age of 16.  (These persons are often referred to as ‘Dreamers’ – which alludes to an earlier Congressional Bill that offered similar benefits known as “The Dream Act”.)  Several state attorneys general brought suit in a Texas federal court to enjoin the DACA expansion.  Their success against the DACA expansion was solidified when the U.S. Supreme Court deadlocked on a 4-4 vote on whether or not President Obama’s actions exceeded his executive authority as President of the United States.  The original DACA program was not included in the Texas lawsuit – but what seemed to prompt today’s announcement was the threat among several state attorneys general to sue President Trump if he did not terminate the program on the grounds that DACA exceeded President Obama’s executive authority.

Tennessee’s Attorney General, Herb Slatery was initially among 10 attorneys general who threatened to sue President Trump if he did not terminate the program – but appropriately backed-out of the threat in recognition of the “human element” represented by the many DACA recipients who “have outstanding accomplishments and laudable ambitions”– and encouraged Tennessee Senators Lamar Alexander and Bob Corker to support a legislative solution to the issue.  It is hard to avoid noting the ironic argument that the Trump Administration would have had to make: that the President did not have executive authority to act on these types of immigration matters, when numerous and significant changes to our immigration system have been made exclusively by executive order by President Trump since January of this year. 

Interestingly, when President Obama initiated the DACA program, his stated purpose was to create a temporary program until Congress could act to pass legislation to give these same young people actual immigration benefits including legal status, work authorization or even perhaps lawful permanent residency.  Proposed bi-partisan legislation authored by Republican Lindsey Graham and Democrat Richard Durbin seeks to ‘legislate’ these benefits which – if successful, would be a more reliable means to accomplish the same ends.

 

What Does President Trump’s Memorandum Issued This Morning Actually Do?

First – it formally and immediately rescinds President Obama’s Memorandum of June 15, 2012, discussed above.  In other words, the DACA program is immediately terminated.

But there are many logistical issues to consider, so the program will have to ‘wind down’ in an ‘orderly fashion’.  Thus, here are some of the other logistical ramifications of the President’s decision:

Second – USCIS will continue to adjudicate new DACA applications that have already been filed.  If you have not already filed a new DACA application, it’s too late now.

Third – USCIS will continue to adjudicate DACA renewal applications that have already been filed – and – will actually continue to accept DACA applications for renewal up until October 5, 2017 for persons whose current DACA benefits expire before March 5, 2018.

Fourth – the U.S. Department of Homeland Security will not terminate or revoke Deferred Action benefits from those who currently have them.  Of course, once they expire, they will not be renewed.

Fifth – Advance Parole:  if you have been previously approved for advance parole (the permission to travel abroad and then be admitted back into the U.S.), the Department of Homeland Security/Customs & Border Protection – states that it will continue to honor the permission to return to the U.S., but reminds us that it can also revoke or terminate this at any time.  [I think this means ‘travel at your own risk’.]

Furthermore, it will not approve any new applications for advance parole and will close any applications for advance parole that are currently pending.

 The Long-View

So what happens next?

The political calculation appears to be to give Congress a deadline to pass legislation that confers benefits to young people in this similar situation.  There seems to be some momentum for this since the majority of Americans polled seem to support benefits for ‘Dreamers’.  The less optimistic view is that the DACA program was born out of the same predicament: the inability of Congress to pass a law addressing this issue forced President Obama to issue a Memorandum instead.  Is it possible for Republicans and Democrats, Senate and House of Representatives to cooperate to pass legislation that amounts to immigration reform?

I am reminded of the great hope and momentum that emerged from the U.S. Senate in the summer of 2013 when a strong majority of the Senate – both Republicans and Democrats - voted to enact a Comprehensive Immigration Reform Act, only to see it completely abandoned by the House of Representatives.  That was our last best hope to help fix our ailing immigration system.

President Trump has now created a new opportunity for our Senators and Congressional Representatives to work together to solve this compelling issue. 

Here’s hoping that history will not be repeated.

 

HS&D Immigration

 

What is The Raise Act? Part 3

The Proposed RAISE Act

Part 3:  Elimination of the ‘Diversity Visa’ Program

On August 2, 2017, President Trump promoted a new Senate Bill drafted by Senators David Perdue of Georgia and Tom Cotton of Arkansas known as the ‘RAISE’ Act.

‘RAISE’ is an acronym for “Reforming American Immigration for a Strong Economy” Act.

The stated purpose of the Bill is to improve the American economy by limiting the number of immigrants admitted into our country.

Background

As stated in the first Blog installment, we are using the proposed Bill is to ‘raise’ our awareness of the more fundamental underpinnings of America’s unique immigration system.  An analysis of this Bill gives us an opportunity to examine: ‘what would constitute a healthy immigration policy in the U.S.’?  thus, the purpose of this article is to explore what is needed in immigration policy to fit the unique history and present cultural pressures of American society today.

We do this by comparing the provisions of the Bill to the current existing law.

 

1. Elimination of the ‘Diversity Visa’ Program

This third installment of our discussion on the RAISE Act addresses the proposed elimination of a program that is commonly referred to as the ‘Green Card Lottery’.  Most people understand that we have a program that allows foreign nationals who do not otherwise have a way to come to the U.S. to live – an opportunity to seek a ‘green card’.  Applications to enter the lottery are filed around the world each year; 55,000 of those applications are randomly selected to permit the applicant to then formally apply for a ‘green card’.

It is important to recognize that the formal name of that program is actually the ‘Diversity Visa’ program because that explains its purpose.  Here’s why:

History

A very brief and simplified history lesson -  U.S. Immigration laws up until the 1952 McCarran-Walter Act operated on a system of quotas – allowing only a certain number of immigrants from each country to enter the United States.  This was preserved in the Act, but modified in subsequent amendments to open America’s borders to insure there was a variety of nations represented in the melting pot of America, (hence the ‘diversity’).

Keep in mind that in 1952, we were just a few years removed from the end of World War II, the creation of the United Nations, the Cold War was heating up and American Policy was to spread democratic ideals in the world while counterbalancing the influence of the Soviet Union in world events.  In what was then a mere quaint seed of globalization, our leaders recognized the importance of sharing ‘American Ideals’ with the rest of the world.   

From a legislative standpoint, our immigration policy was one tool used to accomplish this goal.  We developed an ‘exchange visitor’ visa (the J-1 visa – that still exists today), to bring persons to the U.S. to study and train here, learn about our system, and then return to their home countries to share these democratic influences.  The ‘Diversity’ visa was another product of this effort.  As Vice President Hubert Humphrey noted in deliberation of the 1952 bill, it was important for America to create alliances and take an influential role in countries around the globe.  The objective was to develop “the respect of people around the world”.

Hence, the Diversity Visa Program.

 

 How it Works

Avoiding a detailed explanation of the complex formulas used by the U.S. Department of State and the U.S. Department of Homeland Security to calculate the breakdown of visas available each year, it basically works this way:

The Departments of State and Homeland Security review data for the preceding five (5) year period to determine how many persons from which countries received lawful permanent residency in the United States.  The number of immigrant visas permitting those persons to come to the U.S. are divided among ‘low admission regions’ and ‘high admission regions’.

Then 55,000 ‘diversity visas’ are made available each year to persons living in the ‘low admission regions’.

Persons from these ‘low admission regions’ may apply for one of the ‘diversity visas’ so long as the person can prove either – that she has a high-school diploma or equivalent, or has at least 2 years of work in an occupation that requires at least 2 years of training or experience.

A lottery is then held to select applications for further consideration.  If a person’s application is randomly chosen – (this avoids the history of ‘quotas’ from specific countries) – the person may then apply for a ‘green card’.  Just like anyone else applying for a ‘green card’ in one of the many other pathways to lawful permanent residency, the applicant must still prove that he or she qualifies for admission, (is ‘admissible’).  

As a consequence, anyone from anywhere in the world has a chance to fulfill his or her dream to come to the United States for a chance at a better life.  In return, the United States benefits from the traditional goal of sharing its values and ideals with persons from around the globe – not to mention the contributions that such motivated persons make to American culture, community and economy.

 

The RAISE Act

The RAISE Act proposes to eliminate this program entirely.

 

 

 

 

 

Next:  ‘Reducing the number of Refugees’

What Is The Proposed 'RAISE' Act? Part 2

Part 2:  ‘Focus on Family-Sponsored Immigration for Spouses and Children’

On August 2, 2017, President Trump promoted a new Senate Bill drafted by Senators David Perdue of Georgia and Tom Cotton of Arkansas known as the ‘RAISE’ Act.

‘RAISE’ is an acronym for “Reforming American Immigration for a Strong Economy” Act.

The stated purpose of the Bill is to improve the American economy by limiting the number of immigrants admitted into our country.

Background

As stated in the first Blog installment, we are using the proposed Bill is to ‘raise’ our awareness of the more fundamental underpinnings of America’s unique immigration system.  An analysis of this Bill gives us an opportunity to examine: ‘what would constitute a healthy immigration policy in the U.S.’?  thus, the purpose of this article is to explore what is needed in immigration policy to fit the unique history and present cultural pressures of American society today.

We do this by comparing the provisions of the Bill to the current existing law.

 

1. ‘Focus’ on Family-Sponsored Immigration for Spouses and Children

This second installment of our discussion on the RAISE Act addresses the ‘focus on family sponsored immigration for spouses and children’

This language from the Bill is perhaps a bit disingenuous in that the implication is that there is a ‘focus’ to enhance the immigration benefits for spouses and children of U.S. citizens and permanent residents.  More accurately, it eliminates all other immigration benefits for family members and simply salvages existing benefits for spouses and children, yet narrowing the definition of a ‘child’.

The proposed changes under the ‘RAISE’ Act for family-sponsored immigration is a bit more complicated than the elimination and replacement of the employer-sponsored immigration system discussed in the first blog because some elements of the family-sponsored system were retained and others were reconfigured.

It may be helpful to begin with describing the current law affected by the changes sought in the RAISE Bill.

Under existing law, there is a worldwide limit on the number of family-sponsored visas available each year.  Presently, all family-related immigrant visas are limited to 480,000.  (These are reduced by a formula set forth in The Immigration & Nationality Act, Sec. 201(c)(2), but in no case is the number to fall below 226,000.)

The RAISE Bill dramatically reduces this number to 88,000.

The term ‘immediate relative’ currently means the spouse, an unmarried child under the age of 21 and parents of a U.S. citizen who is 21 or older.  Although ‘immediate relatives’ are counted against the worldwide limit, there is no annual numerical limitation for persons seeking lawful permanent residency as an ‘immediate relative’.  In other words, if you meet the definition of an ‘immediate relative’, there will be an immigrant visa available to you, regardless of the numerical limitation.

The RAISE Bill removes ‘parents’ from the category of ‘immediate relative’ and lowers the age of the person defined as a ‘child’ from 21 to 18 years of age.

Under existing law, there are many other family members who can be sponsored for lawful permanent residency despite not being ‘immediate relatives’.  For example, the brother or sister of an adult U.S. citizen, an unmarried son or daughter of a ‘green card’ holder or a married son or daughter of a U.S. citizen may be sponsored for permanent residency (but because of the worldwide limit, these persons may have to wait many years before a visa becomes available).  The problem is that many more than 480,000 foreign persons seek to become U.S. lawful permanent residents each year.  When you consider that there are over 326 million persons living in the U.S., and that nearly all of us trace our ancestry to another country, there are many family members who want to join families that are already here, but there are not enough visas to accommodate the demand.

For example, because of the existing limitation, a person from the Philippines who was sponsored by a sister for a ‘green card’ would have to have filed the immigrant visa petition before April 8, 1994 just to be considered for a ‘green card’ today.  For those who are counting, that was 23 years ago.

One might be surprised by this long delay and might even question whether this current family-sponsored system is even functional.  However, the RAISE Bill eliminates the sibling category all together.   Here are the other family-sponsored categories eliminated by the RAISE Bill:  unmarried sons and daughters of U.S. citizens, spouses, children, unmarried sons and daughters of lawful permanent residents, married sons and daughters of U.S. citizens in addition to brothers and sisters of adult U.S. citizens – as well as the parents of U.S. citizens previously discussed.  Under the proposed Bill, the only remaining option for a ‘green card’ for family members are spouses and ‘children’ of U.S. citizens.

 Hence the ‘Focus’ on spouses and children of U.S. citizens.

One concession the RAISE Bill makes to the parents of American citizens is that it provides a non-immigrant (temporary) visa to parents to stay in the U.S. for five (5) years.  Although this non-immigrant visa (referred to as a ‘W’ visa) could be renewed, there are disincentives for a U.S. citizen to secure such a visa since the parent cannot work during this period, and the U.S. citizen child must prove that he or she will cover all of the parent’s living expenses, (regardless of the parent’s own assets) and secure health insurance for the parent, at no expense to the parent.

One final element in the proposed RAISE bill is a bit tricky; if the Bill were to pass, any visa application of a parent of a U.S. citizen, brother, sister or any other category eliminated by this Bill as discussed above filed after the date this Bill was introduced would be invalid on the date the Bill became law.  Since the Bill was introduced on August 2, 2017, any visa application filed today under one of the extinguished family classifications would be invalid if this Bill were to ever become law.  In other words, it’s already too late.

Again, few people fully expect this Bill to become law, at least not in its original version; but it is helpful to examine the potential consequences if this Bill were to pass Congress and signed into law by the President.  The result would be a dramatic reshaping of the immigration system as we know it – particularly for foreign persons who have family currently living in the United States.

 

 

Next:  ‘Elimination of the Diversity Visa Program’

What Is The 'RAISE' Act?

What Is The Proposed RAISE Act?

On August 2, 2017, President Trump promoted a new Senate Bill drafted by Senators David Perdue of Georgia and Tom Cotton of Arkansas known as the ‘RAISE’ Act.

‘RAISE’ is an acronym for “Reforming American Immigration for a Strong Economy” Act.

The stated purpose of the Bill is to improve the American economy by limiting the number of immigrants admitted into our country.

A perhaps more valuable use of this Bill is to ‘RAISE’ our awareness of the more fundamental underpinnings of America’s unique immigration system.  If it causes us to pause and reflect on these core principles of American identity and values, it will have served a noble purpose.

Most political observers suggest that this Bill is not likely to pass Congress; nevertheless, an analysis of this Bill gives us an opportunity to examine: ‘what would constitute a healthy immigration policy in the U.S.’?  We will leave the political discussion to those who are more knowledgeably equipped to do so; the purpose of this article is to explore what we need in immigration policy to fit the unique history and present cultural pressures of American society today.

A very strong and simple narrative upon which this Bill rests is the easily accepted notion that Americans are competing for job openings and that the addition of more immigrants would make it more difficult for Americans to get these jobs.

It is, of course, more complicated than that, but rather than debate the economic consequences of immigration – which is a fact-driven analysis that supports various dimensions on both sides of the debate – it may be even more helpful to look at the core values implicated in the Bill.  It is a point that will conclude our discussion, but to begin, it may be helpful to compare the provisions of the Bill to the current existing law.

Thus, the place to begin is the actual language in the Bill.

The Preamble of the Bill states 4 objectives:  “To amend the Immigration and Nationality Act to

 

1. Establish a skills-based immigration points system,
    
2. to focus family -sponsored immigration on spouses and minor children,

     3.  to eliminate the Diversity Visa Program, [and]

 

    4.   to set a limit on the number of refugees admitted annually to the

United States, and for other purposes.”

 

We will go through each objective separately.

Today we will address the ‘skills-based immigration points system’.

 

1. Skills-Based Immigration Points System –

The first objective of the Bill is to amend the current Immigration and Nationality Act to establish a ‘skills-based immigration points system’.  The intent here is to ‘filter’ the types of persons coming to the U.S. to only those who can offer their education, skills and salary to meaningfully participate in and prosper the U.S. economy.  The immigration benefit provided is presumably a ‘green card’ – or Lawful Permanent Residency in the U.S.

Under the provisions of the Bill, a person accrues ‘points’ based upon age, education, English proficiency, extraordinary achievement and salary related to a job offer.  A person who accumulates a minimum of 30 points is eligible to be placed in an ‘Applicant Pool’ for up to one year.

An applicant calculates his or her points based upon a strong showing under the metrics of age, education, English proficiency, extraordinary achievement and salary for a job offered.

For example, a young person aged 22 – 25 accrues 8 points, while an older person, aged 41 through 45 accrues only 4 points.  Likewise, someone with a bachelor’s degree from a foreign institution is allowed 5 points, but a person with a master’s degree in the U.S. in a STEM discipline is entitled to 8 points.  The English exam is scored on ‘deciles’ where the higher the decile, the more points someone gets.

If an applicant reaches 30 points, he or she may file an application with USCIS and is placed in a ‘pool’ of other applicants and sorted on the basis of an applicant’s overall score.

Every 6 months, USCIS will invite the highest ranked applicants to file an immigrant visa petition for a visa.  There would be only 140,000 visas available each year, so the invitation will go out to a number that will be expected to result in 70,000 visas being issued for that 6 month period.

 

To assess the effectiveness of such a ‘points-based’ system, we should consider the present system in light of the Bill’s stated objective of helping the U.S. Economy.

Our present Employment-Based Visa system offers a number of different types of ‘temporary’ visas to employees with the opportunity to eventually apply for an immigrant visa – (or ‘green card’).

Types of Nonimmigrant Visas Available Under The Present System

To make this a manageable comparison, we will look only at those nonimmigrant visas that are comparable to the ‘highly-skilled’ sector contemplated by the Bill that also provide a pathway to a ‘green card’, (lawful permanent residency).

One of the most sought-after nonimmigrant visas is the ‘H-1B’ visa for foreign workers in a ‘specialty occupation’.  By legal definition, a ‘specialty occupation’ is one in which the job requires a person with at least a college bachelor’s degree in that occupational field to perform the work.  There is an annual allotment of 65,000 H-1B visas available each year. 

Another visa is an ‘L-1A’ visa for foreign employees who are either multinational executives or managers, and the ‘L-1B’ visa for foreign employees who have unique ‘specialized knowledge’ in the specific field or work required by an employer.

It is important to note that both of these require the foreign employee to work only for the employer that sponsored him or her for the visa.  Thus, the visa process is targeted to specific job openings for specific job duties that an employer needs filled.

For the H-1B visa, the demand for specific employees is so great that in the most recent fiscal year when H-1B visas were available, employers filed over 235,000 petitions for only 65,000 visas.  When one considers that the cost of filing an H-1B petition includes a $500.00 ‘Fraud Detection Fee’, and $1,500.00 ‘Education and Training Fee’ and a $460.00 ‘petition filing fee’, not to mention additional legal fees, the cost of filing an H-1B visa petition is not taken lightly.  Furthermore, the employer must show the U.S. Dept. of Labor that it will be paying the foreign worker as much as or more than American workers – (to insure that the wages of American workers are not ‘undercut’ by hiring foreign workers at lower pay).  All of these factors give an economic incentive for U.S. employers to hire U.S. workers before considering the hire of a foreign worker.  Despite these additional costs, the fact that U.S. employers still filed over 235,000 petitions with the hope of having their applications randomly chosen for processing gives a pretty clear indication of the current inability of U.S. employers to fill crucial positions in their companies.

The ‘EB-5’ visa is known as the ‘job-creation’ visa.  This specialized visa generally currently requires an investment of at least $500,000 or $1 million, (depending upon other factors) in a new commercial enterprise in the U.S. and proof that the investment will result in the creation of at least 10 full-time jobs for American Workers.

Also, in 2016, the prior Administration issued an executive order providing for ‘entrepreneurs’ who could provide a ‘significant public benefit’ by creating or maintaining a new commercial enterprise to be admitted into the U.S. to manage these investments.  The Order was purposely suited for high-tech entrepreneurs and was set to go into effect on July 17, 2017.  This executive order was ‘suspended’ by the Trump Administration on July 10^th for review and possible rescission or implementation on March 14, 2018.  

So to make a comparison between the proposed Bill’s intent to let in only 140,000 persons who reach a high score on age, education, job salary and/or extraordinary achievements, and the current system that offers employers the opportunity to seek foreign workers for specific needs, one needs to consider the benefits from an employer’s perspective.

First, one might consider whether average companies who typically utilize the H-1B, L-1A or L-1B visa programs to meet specific specialized needs would be able to compete with the largest well-sourced corporations for the top 140,000 individuals who might apply under the proposed bill.  (Remember, over the course of 5 days this past April, employers of all sizes filed over 235,000 petitions just for H-1B visas.).  Second, consider the challenge of employers planning to fill a position with the uncertainty of not knowing where a prospective employee might stand in the ‘applicant pool’, especially considering that only 70,000 visas would become available each 6-month period; (and that the family members of a successful applicant are also included in that limited number of 70,000).  It might also be useful to consider whether the top individuals who attain a high score under these metrics actually align with the specific needs of employers if they came to the U.S.  The proposed Bill does not necessarily clarify this, but presumably, a person in the ‘applicant pool’ does not necessarily have to work for a specific employer and might otherwise compete on the open marketplace for other employment. 

If the objective of the proposed Bill is to land the world’s ‘best and the brightest’ in the U.S. so that they can contribute to the American economy and possibly create new opportunities for U.S. workers, it is fair to question whether the sample of current immigration programs described above also seek the same goals.  A fair criticism of the current immigration system is that these immigration programs do a poor job of meeting these same goals.  In fact, when one considers that 2 out of every 3 H-1B petitions are rejected because there are too few visas to go around, and that many high-tech companies are moving operations to other countries because they cannot bring the world’s ‘best and brightest’ to the U.S., it is apparent that seeking creative solutions to identify and secure the highest qualifying individuals to come to the U.S. is a crucial need.  The proposed Bill helpfully exposes the flaws and limitations of our current employment-based immigration programs.

Here's hoping that the dialogue opened by the presentation of the prospective ‘RAISE’ Bill will help invigorate a bi-partisan legislative solution to our poorly functioning immigration system for U.S. employers.

 

Next:  ‘The Focus on Family-Sponsored Immigration for Spouses and Minor Children’

Keeping DACA Discarding DAPA

Navigating Uncertain Times:  Friday Roundup

Friday June 16, 2017

 

Keeping DACA Discarding DAPA

U.S. Department of Homeland Security Secretary John Kelly issued a new Memorandum yesterday that rescinded a prior U.S. Dept. of Homeland Security Memo that provided protection for the parents of U.S. citizens who would otherwise be subject to removal from the U.S.  That same Memo also expanded the Deferred Action for Childhood Arrivals program, (‘DACA’).  A Federal District Court in Texas enjoined implementation of this Memo, so essentially, the provisions that the U.S. Dept. of Homeland Security has now rescinded were never implemented to begin with.

Understanding what this specifically means can create confusion.  So let’s break it down chronologically:

First, on June 15, 2012, the U.S. Dept. of Homeland Security issued a Memorandum that provided protection from removal and work authorization for children who arrived in the U.S. under the age of 16 before June 15, 2007 and were in the United States without authorization on June 15, 2012.  This initiative, known as ‘DACA’, also permitted such persons to apply for work authorization that would be valid for 2 years.

Then, on November 20, 2014, the U.S. Dept. of Homeland Security issued a second Memorandum that provided protection from removal and work authorization for the parents of certain U.S. Citizens or Lawful Permanent Residents.  (To be clear, these are not necessarily the parents of DACA recipients; these are the parents of children who are in the U.S. either as U.S. Citizens or ‘green card’ holders.)  These parents were eligible for protection from removal and work authorization if they had been residing in the U.S. since January 1, 2010 and were in the United States without authorization on November 20, 2014.  This provision, known as ‘DAPA’, also permitted such persons to apply for work authorization.  In addition, this November 20, 2014 also extended the authorized period of deferred action and work authorization of DACA recipients from 2-year increments to 3-year increments.

This Memo was blocked from ever being implemented by a lawsuit filed by 26 states in December of 2014.  The case blocking this Memo, Texas v. United States, is the case you might remember having gone to the U.S. Supreme Court last year.  Because there were only 8 U.S. Supreme Court Justices at the time, the U.S. Supreme Court decision was a tie – 4:4 – so the lower court ruling enjoining the Obama administration from implementing the Memo remained in effect.

Furthermore, because this Memo that was the subject of the lawsuit has now been rescinded, the case is now moot.

But significantly, the original Memorandum – the June 15, 2012 Memo establishing DACA benefits – was not rescinded and remains in effect.  In other words, the DACA program is still alive and kicking…for now.

 

 

 

Have a nice weekend,

HS&D Immigration

Navigating Uncertain Times:  Friday Roundup

Friday May 5, 2017

 

Whew!  That was close… [Check in again in October]

As you probably know, Congress has finally passed a budget bill that will extend the operations of the United States Government for the remainder of the 2017 fiscal year.  That is, until September 30, 2017.

Although much attention has been given to the fact that there was no direct funding for the construction of a new wall on the Southern border, the overall budget for the U.S. Dept. of Homeland Security increased by $1.45 Billion.  This includes an additional $700 million for Customs & Border Protection and $400 million for new detention facilities.  Thus, the ‘security’-side emphasis of immigration is clearly reflected in this bill.

In the meantime, many employers seeking highly-educated and highly-skilled workers are slowly realizing that they, once again, are unable to secure an H-1B visa to hire employees to contribute specialized knowledge to their companies.  All of the H-1B petitions that were randomly selected during the lottery have now been processed and Receipt Notices have been sent out.

There still may be a few Receipt Notices still straggling through the mail system, but for the most part, if you have not already received a Receipt Notice for one of your H-1B cases, you can lament the same way Chicago Cubs fans used to:  “Wait till next year”!

 

We can do better…

 

Have a nice weekend,

HS&D Immigration

Navigating Uncertain Times: Whew - That Was Close!

Navigating Uncertain Times:  Friday Roundup

Friday April 28, 2017

 

Whew!  That was close… [Check in again next week]

In the midst of loud announcements and unseen tinkering with the immigration system, it may have been lost on many persons that several key immigration programs nearly suffocated today.  But instead they were resuscitated just in time to live for…(wait for it)… one more…week.

The EB-5 Regional Center program (which attracts large fund investments from abroad to create additional jobs for American workers) was tethered to the ‘Continuing Resolution’ that Congress had passed in December of 2016 to keep the U.S. Government from ‘shutting down’.

Another very popular program – the Conrad 30 J-1 Visa Waiver Program - is an integral tool for rural healthcare systems to attract physicians to their medically underserved areas by giving physicians trained in the U.S. with a J-1 visa the opportunity to provide healthcare where other doctors are reticent to go, without having to return to their home country for 2 years before seeking to return to the U.S. to serve.

Also, religious workers who are not ministers have relied upon another program – the R-visa – to come to the U.S. to serve in religious institutions.  This was also saved by the approval of Congress to continue funding the U.S. Government budget with a Continuing Resolution.

That’s the good news.

The bad news is that the continuing resolution that keeps these programs functioning is valid for only 7 days.

And then we get to see if they (our representatives in the U.S. Congress) will pass another bill next week to keep these important immigration programs active.  If we’re lucky, we can keep it going perhaps as much as another 4 months!

I have to imagine that the founding fathers of the United States of America envisioned a much better functioning government than what we are now living with.   

So check back next week to see what happens…

Have a nice weekend,

HS&D Immigration

Lamb or Lion? How Does March End?

Navigating Uncertain Times:  Friday Roundup

Friday March 31, 2017

 

Lamb or Lion?  How does March End?

The old weather saying is that if March ‘enters like a lion, it leaves like a lamb’ – and vice versa.

Now that we are at the end of March – and another month of immigration drama – do we find ourselves with a sense that the turbulence is settling down into a predictable pattern – irrespective of your position on the issues – or is it heading for new levels of chaotic uncertainty?

It’s hard to say.  Perhaps we’ll just declare that it is leaving like a ‘liomb’.

In the past week, the federal judge in Hawaii has converted the ‘Temporary Restraining Order’ into a ‘Preliminary Injunction’ on the implementation of President Trump’s Executive Order limiting the admission of persons into the U.S. from six predominately Muslim countries.  This simply means that the ‘stay’ on the enforcement of the Executive Order will continue until a hearing can be held on the merits of the case.  Given the consistency of federal court rulings on this Executive Order, it’s probably safe to say that the ultimate decision will have to ultimately be made by the U.S. Supreme Court.  For all of the uncertainty and confusion that accompanied these Executive Orders thus far, at least the wheels of justice run on an orderly procedure.

In an earlier day, the term ‘The Wall’ was typically a reference to  Pink Floyd.  Now, ‘The Wall’ is undoubtedly a reference to President Trump’s efforts to build a wall on the Southern border of the U.S. to deter unlawful entry into the U.S. 

Candidate Trump famously declared that Mexico would pay for The Wall.  But the reality of his efforts now rely upon a supplemental spending bill that President Trump has asked Congress to pass to use U.S. Government funds to build ‘The Wall’. 

The problem with that approach is that Fiscal Year 2017 funding has yet to be approved to keep the U.S. operating beyond April 28, 2017 – (one month away).    You may recall the ‘Continuing Resolution’ that Congress most recently passed in December 2016 is the new normal for how Congress keeps the government funded: several months at a time.

Since it would require additional appropriations to fund the immediate construction of ‘The Wall’, the senior member of the Appropriations Committee, Republican Senator Roy Blunt of Missouri has indicated that attempting to deal with a supplemental spending bill from the President would unnecessarily complicate the negotiations going on now simply to keep the government operating beyond April 28.  Consequently, it appears that finding U.S. funds to build ‘The Wall’ will have to wait at least until later.

And finally, there were new statements from the White House this week taking aim at so-called ‘Sanctuary Cities’ – threatening to withhold federal funds if these municipalities refuse to assist Immigration & Customs Enforcement, (‘ICE’) in detaining persons who are subject to removal for immigration violations.

One of the problems in discussing this issue is that there is no legal definition for the term ‘Sanctuary City’.  Generally, it means some government jurisdiction, (town, city, county, state, etc.), that does not assist ICE in detaining and/or removing immigrants subject to removal.

The law relating to this is found in 8 US Code §1373, which generally prohibits such government entities from refusing to share information on an individual’s immigration status with ICE.  Several legislative efforts have been initiated to enforce President Trump’s Executive Order of January 25, 2017 by withholding federal assistance from these entities.  The proposed punishment variously identifies such federal assistance as economic grants, FEMA and Justice Grant programs.

One of the challenges to enforcing the Executive Order is that it grants authority to the U.S. Department of Homeland Security to designate which states or municipalities are to be defined as ‘Sanctuary Jurisdictions’ – absent a legal definition.  In fact, the Executive Order broadens the scope beyond violation of 8 USC §1373, to any entity that impedes the enforcement of ‘any federal law’.  Consequently, a city might simply refuse a request from ICE to detain a person (which the courts have confirmed is not required of a city) and still be punished for being a ‘Sanctuary City’. 

Like some of these other issues, it’s complicated.  And ultimately it will be the Courts that make the determination of what might be enforceable and what is not enforceable.

So if you think watching a controversial issue wind its way through our U.S. Court system is an exciting proposition, March might just be leaving like a lion.  If you think allowing our U.S. Court system to decide these issues is a long and inefficient way to deal with our problems, March might be leaving like a lamb …(but you would be wrong….)

 

Have a nice weekend,

HS&D Immigration Group

Navigating Uncertain Times: Friday Roundup

Navigating Uncertain Times:  Friday Roundup

Friday March 24, 2017

Bored yet?

With multiple significant issues simultaneously taking stage, one can be excused for not knowing how to prioritize your concerns.  In the midst of efforts to repeal existing healthcare law, (“will they or won’t they?”), nominating a new Supreme Court Justice to replace Antonin Scalia, (the specter of a filibuster is being raised), and wondering how far and deep the Russian connection goes, one can be excused for overlooking ‘yesterday’s news’ – immigration.  And yet, out of sight does not mean out of mind – or inactive.  Things are still happening, and we will continue to search for and provide insight into issues that may affect you.

And this week, clients were buzzing about the ’60 Minutes’ segment this past Sunday characterizing the H-1B program as an ill-advised program for bringing ‘cheap labor’ into the country to replace U.S. workers.

In other news…

The H-1B Program – Reform?

Yes – but for the right reasons.

This past Sunday, the news program ’60 Minutes’ broadcast an investigative report on the H-1B visa program characterizing it as a means for employers to ‘bring in cheap foreign labor to replace American workers.’

I was astonished to hear that the H-1B visa program – of all visa programs – would be accused of bringing in ‘cheap foreign labor’.

Without making a full response, here are a few facts about the H-1B visa program that gives insight into the credibility of that claim:

·         The filing fees to file a new H-1B visa petition for a foreign employee a U.S. company wants to hire is $2,460.00; if you want the petition expedited, you can pay an additional $1,225.00;

 

·         Federal regulations require the U.S. company to pay the costs relating to the H-1B visa petition; and if the employer terminates the H-1B visa employee early, the employer must pay the transportation costs of the employee’s return overseas;

 

·         To file an H-1B visa, the U.S. company must first apply for certification of a ‘Labor Condition Application’ with the U.S. Department of Labor to establish that the company is paying the foreign worker a wage that is known as the ‘required wage’.  The ‘required wage’ is either the prevailing wage (as determined by the U.S. Dept. of Labor) for any employee at the worksite who is similarly situated or the actual wage of any worker at the worksite who is similarly situated whichever is higher.

 

In other words, to be able to secure an H-1B visa, the U.S. company has to attest to the U.S. Department of Labor that it is paying the foreign worker as much as or more than other U.S. workers at the worksite who are in the same position.

 

Given these additional costs to an employer, it is hard to understand from a business standpoint how it is ‘cheaper’ for a U.S. company to hire a foreign worker under the H-1B visa program than to hire a U.S. worker.

The ’60 Minutes’ segment certainly found some compelling stories of U.S. workers who suffered hardship because they were replaced by persons, at least some of whom were in the U.S. on H-1B visas.  According to the U.S. workers being interviewed, the company they worked for did not pay their replacements a salary as high as theirs.  To add insult to injury, these U.S. workers were forced the indignity of training the very persons who were replacing them.

These are very sympathetic stories.

And if the U.S. company did not comply with federal regulations by paying their H-1B employees the ‘required wage’, then that is a problem.

If the U.S. company hired H-1B employees in one worksite in compliance with the U.S. Dept. of Labor regulations, but then sent them as contract workers to the worksite of another company – where they earned less as contractors than the U.S. employees of the second company - then that is a tough business decision that both companies made.

And if the U.S. company employing H-1B workers made the experienced employees train the new H-1B workers how to do their job before terminating them, then that would seem to be an unnecessary indignity to the loyal employees of the company.

It is not my place to criticize the U.S. companies for their HR management or the economics of their business decisions; I don’t necessarily have all of the facts.  But to place the blame on the H-1B visa program simply because these incidents involved employees who happened to have H-1B visas is misdirected.  And to characterize the H-1B visa program as providing ‘cheap foreign labor’ is a mischaracterization which seems designed to scintillate the already hypersensitive public who generally wouldn’t have the depth of knowledge in immigration law to critically evaluate the validity of such an assertion.

So does the H-1B program need reform?

Yes…but not for those reasons.

At the end of next week, it is likely that over 300,000 H-1B petitions will be filed in the hope of getting one of only 65,000 visas.

One must ask – why would so many U.S. employers go to such great an expense (~$2,500 per petition – not including additional legal fees) just to get a 1 in 3 chance of having its H-1B petition selected at random for processing?  [Because there are more petitions than available visas, the U.S. Citizenship & Immigration Service holds a lottery to randomly choose 65,000 petitions to process.  This is known as the ‘H-1B Lottery’]

Clearly – there is an unmet labor need.

Reform Item #1:  increase the number of H-1B visas available each year so that U.S. companies can secure the workforce they obviously can’t fill with only U.S. workers

But there does seem to be abuse in the H-1B visa program.  There are, in fact, some U.S. companies that hire such a large number of foreign workers, especially for IT positions, that other employers have less of a chance of having their petitions randomly chosen in the H-1B lottery.  These few companies get a disproportionate share of the H-1B visas.  This leaves other, smaller companies who have legitimate needs to find highly-skilled employees in the foreign labor market left without key positions being filled.

I can think of many instances where a client has attempted to bring persons with highly specialized skills and experience to lead important business or service initiatives here in the U.S. – only to have the H-1B petition returned simply because of the ‘luck of the draw’.

Reform Item #2:  Limit the number of H-1B visas a single company can file to secure its workforce.  It may place an unfair burden on some companies, but it might even the playing field for the rest of the employers seeking persons to fill very specialized occupations.

Whether we like it or not, we are part of a larger global economy that requires highly trained and educated individuals to help U.S. companies compete on the world stage… regardless of where they come from.

I think we can come up with a better system to accomplish that.

EAD Alert:

Last week we discussed the unexpected news that USCIS would no longer be accepting ‘Premium Processing’ for H-1B petitions after April 3, 2017.  We discussed the inconvenient consequences of this decision.

To no one’s surprise, USCIS has been inundated with H-1B petitions seeking Premium Processing before the April 3 deadline.  So many, in fact, that it is causing delays in the adjudications… of EADs!

Why EADs?

An ‘EAD’ (Employment Authorization Document) is now available for a spouse of an employee in H-1B status – if the H-1B employee has an approved Immigrant Petition for Alien Worker (Form I-140) and the employee cannot apply for a ‘green card’ yet because their immigrant classification is oversubscribed for his or her country of origin.

This relatively new benefit for the spouses of certain H-1B employees is very popular and helpful for families living in the U.S.  It is common to file the application for an EAD along with the H-1B petition; and if the H-1B is adjudicated using Premium Processing, the EAD is customarily processed in an expedited fashion as well.  But now, because of the overload, USCIS has announced that processing of EAD applications accompanying Premium Processed H-1B petitions are being delayed.

Please plan and anticipate accordingly.

Have a nice weekend,

HS&D Immigration Group

 

[News Flash:  in answer to the question at the beginning of this blog post – the answer is “they won’t”]