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”]

Navigating Uncertain Times: Friday Roundup

Navigating Uncertain Times:  Friday Roundup

Friday March 17, 2017

Happy St. Patrick’s Day!

As most schoolkids know, unless you intentionally want to get pinched – you had better wear green today.

One of the more enjoyable American holidays is St. Patrick’s Day.  No demands on your celebration.  You wear green, maybe you eat corned beef and potatoes or perhaps raise ‘a pint o’ Guinness’.  It is said that on St. Patrick’s Day, everyone is Irish.  We at least try to claim a little Irish heritage on this day.

But it wasn’t always so…

This might be a good moment to pause and reflect that a century ago, the Irish were unwanted immigrants.  They were marginalized and feared because their migration to the U.S. was somehow tainting what it meant to be ‘American’.

Adopting distinctive Irish traditions and heritage into our national culture has enriched our country and gives us reason to celebrate one of the fundamental features of American society: our rich diversity.  It’s a good time to remember that it’s okay to embrace new and different cultures, traditions, heritage…and people.

So enjoy!  Celebrate!  And remember who you are… and where you came from

Slainte!

HSD immigration group

In other news…

Travel Ban 2.0

On Wednesday, a federal district judge in Hawaii granted the state’s Motion for a Temporary Restraining Order on the implementation of  Sections 2 and 6 of President Trump’s revised Executive Order temporarily banning admission of immigrants from 6 predominately Muslim countries and refugees.  The Executive Order was scheduled to go into effect yesterday, but the TRO suspends its implementation until a hearing can be held on its merits.

Last week we alluded to the possibility that the origin and heritage of the Executive Order has so stained it that it cannot be separated from the President’s prior expression of intent to exclude persons of the Islamic faith from entering the U.S.  The federal district judge’s Opinion echoed that very problem in finding that the Executive Order was in violation of the Establishment Clause, the First Amendment to the U.S. Constitution.  [ As interpreted by the courts, the 1^st Amendment states that the government cannot take action “respecting an Establishment of Religion, or prohibit the free exercise thereof….” ]. Exercising the analysis set forth in the 1971 seminal U.S. Supreme Court case Lemon v. Kurtzman, the Hawaii District Court found that the government action did not have a ‘primarily secular purpose’ and therefore violated the ‘Establishment’ clause.  Additional evidence from the U.S. Dept. of Homeland Security concluding that the country of origin provided an insufficient link to the likelihood that a person might commit a terrorist act was entered into the Record and served to undermine the government’s own argument that its purpose was for the sake of national security.  It would seem that for the Administration to succeed, it would need to convince a court – perhaps the U.S. Supreme Court – that the President’s valid legal authority to make decisions regarding who may be admitted to the U.S. supersedes any limitation on that authority expressed in the Establishment Clause of the U.S. Constitution and/or other discrimination prohibitions found in federal law.

Stay tuned…

The Federal Budget

Perhaps one of the more obscure immigration-related news items this week was the issuance of the President’s new Budget Proposal.  One of the recommendations found in the proposed Budget was the elimination of the Appalachian Regional Commission ('ARC') and the Delta Regional Authority, ('DRA') among other regional commissions.

How does that affect immigration?

Because the Appalachian Regional Commission and Delta Regional Authority offer J-1 visa waivers to primary care physicians who are willing to provide direct patient healthcare to persons living in medically underserved areas – or more specifically, where there is a shortage of primary care physicians.

This is important because in many states that offer J-1 visa waivers to attract physicians to underserved areas, the primary program is what is known as the ‘Conrad 30’ J-1 visa waiver program.  As the name indicates, there are only 30 slots available for physicians who want to secure a J-1 visa waiver. 

[For explanation, foreign physicians who come to the U.S. to train in Residency programs often get a ‘J-1 visa’ to enter the U.S.  The catch is that the physician is required to return to her home country for 2 years before she can seek an H-1B visa that allows her to provide direct patient care.  A ‘waiver’ of that 2-year home residency requirement allows the new Residency graduate to immediately practice medicine in the U.S.].

Many states use up the allotment of 30 J-1 waivers under the Conrad 30 program fairly quickly.  Fortunately, the ARC and DRA provide an unlimited supply of J-1 Waivers for physicians who are not able to get a Conrad 30 waiver.  The ARC and DRA waivers are a bit more complicated, rigorous and narrowly defined than a Conrad 30 Waiver, but they at least offer an alternative for physicians who are willing to serve where other primary care doctors avoid serving.  In fact, some states like Virginia require physicians who qualify for a J-1 Waiver under the ARC program to seek a waiver there first – so that it can preserve the limited 30 Conrad waivers for physicians who have no other alternatives.

The Budget process may end up preserving the Appalachian Regional Commission – and the many other valuable services that it provides, for the sake of persons living in medically underserved areas and the foreign physicians who serve them. 

Comprehensive Immigration Reform

This takes the prize as the most unexpected news item this week - but there seems to be ‘chatter’ that the turbulent immigration developments over the past two months have somehow energized momentum for comprehensive immigration reform.  In a bi-partisan sort of way!

If this is an accurate development, it would be most welcome.  As you may recall, there was a remarkably successful period of bi-partisan collaboration on a Senate Bill in 2013.  Led by a ‘gang of eight’ Republican and Democratic senators, a Bill that ‘fixed’ many of dysfunctions of our immigration system – both on security and accommodation of visas – and passed fairly easily.  Unfortunately, it languished in the House of Representatives until it ultimately died with no action taken.

If in fact there is a renewed interest in coming to agreement on how to repair our immigration system, this would be a very positive development.

Have a nice weekend –

HSD Immigration Group