Quick Updates in a
busy week: DACA, ‘Chain Migration’ and the Government Shutdown
With so many things going on in
immigration, it is difficult to keep up with developments that might affect all
of us. So here is a very brief review of
some of the issues emerging this week:
DACA
If you read our previous blog post, you are
aware that a U.S. District Court in California granted an injunction against
the President’s effort to terminate the DACA program. The Court determined that the termination was
based upon an erroneous legal presumption that the DACA program was initially unlawful.
This, of course, is only a
temporary injunction and the U.S. Department of Justice has already appealed
the Decision to the 9th Circuit Court of Appeals – and perhaps
seeking an expedited hearing with the U.S. Supreme Court.
Until then, however, the District
Court ruling still stands – so based upon the Court’s instructions to USCIS and
guidance published by USCIS, this is what you need to know for now:
* If
you have not previously been
granted DACA benefits, you are not
now entitled to have USCIS process a new DACA Application from you.
* If
you have previously been
granted DACA benefits and it expired on
or after September 5, 2016, you may file a renewal request.
* If
you have previously been
granted DACA benefits and it expired before
September 5, 2016, you may not file a renewal request; however,
based upon previously existing policy, you may
file a new DACA request.
Please check the uscis.gov website for more
information.
With
the DACA District Court Decision as a backdrop, finding a permanent solution
for children brought here by their families without authorization remains
elusive, despite an apparent bi-partisan bill designed to grant relief to the
same persons benefitting from the DACA program (‘Dreamers’). There is some discussion by leaders of the
Democratic Party that they will withhold support for a Continuing Resolution to
keep the U.S. Government operations funded unless the bill includes a provision
granting ‘Dreamers’ some type of authorized stay in the U.S. If the U.S. Government does shut down, see discussion
of the potential impact below.
‘CHAIN MIGRATION’ and ‘MERIT-BASED’
IMMIGRATION
‘Chain Migration’
The President’s refusal to approve a
bi-partisan bill to grant relief to ‘Dreamers’ was quite infamously linked to a
more troublesome discussion of so-called ‘Chain Migration’ and ‘Merit-based Immigration’.
In case you haven’t heard, the
President recently advocated for the termination of Family-based immigration
programs to be replaced by immigration programs based upon the ‘merit’ of the
immigration applicant.
Much attention has been given to
the language he is said to have used in describing Southern Hemisphere countries,
such as Haiti and African nations, but that attention is misplaced; the real
vulgarity was the underlying message that some human beings have greater or
lesser value based upon their place of origin or skin color. In this bleak context, I cannot help but hear
the phrase ‘chain migration’ and associate it with a period of migration during
the early centuries of our country’s origin when migration to the U.S. was
forced. This type of thinking, left
unchallenged, is what creates an environment such as that which allowed human
beings to be forcibly separated from their families and forced into servitude
because they were deemed to be of inferior value than others, based upon their
place of origin and skin color.
If we are being honest, our country
has repeatedly shifted its immigration policies to favor – or disfavor –
certain types of people from different places.
Interestingly, the family-based immigration programs currently under siege
actually arose from an effort to insure that families from northern/western
European nations were bringing in more family members from these same countries. But the ultimate consequence of those
programs, along with the intentional effort to spread American influence more
globally through the Diversity Lottery program - is that America became a more culturally
diverse nation where anyone with the desire and initiative to seek a better
life had the opportunity to reach those goals.
Eliminating family-based programs does nothing less than extinguish America’s
unique position as the ultimate hoped-for destination for people around the
world.
‘Merit-Based Immigration’
As for the ‘Merit-based’
immigration system, there has rarely been a more easily-resolved issue than
this.
Of course, no one would argue that
America shouldn’t want the ‘best and brightest’ to come to the U.S. to help maintain
and grow our standing in the world. The ‘best
and brightest’ can come from anywhere, but those who have already had the
opportunity to prove their ‘merit’ before
they come to the U.S., should be given a greater opportunity to come to America
and contribute to our greatness. There
is nothing wrong with the idea of ‘Merit-Based Immigration’
Fortunately, there is already a program
that supports ‘Merit-Based Immigration’: it’s called the H-1B visa program. The H-1B visa is for highly educated, highly-trained
and skilled immigrants from around the world.
Unfortunately, the number of H-1B
visas has been reduced, over the years, to an artificially-low number of 65,000. It is now so restricted that nearly 2 out of
every 3 H-1B petitions that are filed are returned because the limit on the
number of visas is reached within the first 5 days that H-1B visas can be filed
on April 1 of each year. Put another
way, nearly 2/3 of the ‘meritorious’ people who want to contribute their skills
to the U.S. are refused because there are not enough visas to go around. Often, they go to other countries to offer
their skills instead. [For more
information, see prior blog posts on further discussion of the H-1B visa
program.]
The point is, if the President
wants to do more to allow the ‘best and brightest’ to come to the U.S., simply
increase the number of visas available for the highly-educated, trained and
skilled persons seeking to come to the U.S. each year. It’s an easy fix.
THE U.S. GOVERNMENT SHUTDOWN
As discussed earlier, the
negotiation of ‘DACA-type’ legislation is having an impact on efforts to keep
the U.S. government operating. Actually,
not all government functions cease during a ‘government shutdown’ because ‘essential
functions’ of the government would continue – to insure our safety and
security. However, there would be some
impact on immigration-related functions:
·
USCIS and U.S. Department of State: Since applicants pay fees for visa petitions
and visa applications at U.S. consular posts, most of these operations would
continue to function (since they largely depend upon your fees – rather than
the U.S. budget - to operate).
·
ICE and the U.S. Customs and Border Protection: These enforcement-based services at
ports-of-entry are considered ‘essential’, so these would largely remain open,
although some less-significant operations may be curtailed.
·
The U.S. Department of Labor neither relies upon
fees nor is considered ‘essential’ for these purposes, so their services in
support of Labor Certification Applications, PERM, Labor Condition
Applications, etc. would be unavailable during a government shutdown.
By the time you read this, the
shutdown issue may have already been resolved, but since the threat of a
government shutdown is only slightly less frequent than ‘Old Faithful’, but
just about as predictable, you may want to keep this in mind for the next
Continuing Resolution deadline.
So that’s where we are on Friday, January 19, 2018… Tune in next week for more!
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