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 1st 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
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