DACA, 'Chain Migration' and the Government Shutdown: Quick Updates

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 9^th 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!

 

 

DACA Program Revived by U.S. District Court

The DACA Program Gets Unexpected Reprieve

 

Just when you thought the DACA Program was virtually dead – left to rely only upon it’s unlikely rescue by a dysfunctional Congress – the U.S. District Court for the Northern District of California issued a surprise: an injunction ordering the U.S. Dept. of Homeland Security to maintain the DACA program in the same manner as it was operating prior to the September 5, 2017 decision to terminate it; (the exceptions being that it is not required to process any new DACA applications and it need not permit Advance Parole).

This is a fascinating development that requires a little explanation to fully understand what it means.

What Just Happened?

The District Court’s Order, shared here: U.S. Dist. Court Case - begins with a very helpful history of Deferred Action that is critical to understanding how the Court arrived at its Opinion.  We recommend reading the Order, but in a very brief summary, the Court points out that DACA derives from discretionary powers that have been recognized for decades of immigration law and implementation.  The Order shows where former Presidents from Eisenhower to Reagan used these discretionary powers to provide relief from deportation of classes of immigrants – even in some cases where there was no specific statutory authority for their actions.

This is important because this Court Decision is inextricably linked to the litigation filed in Texas by a number of states seeking to declare President Obama’s executive action allowing immigration benefits to the parents of U.S. citizen children – (known similarly as ‘DAPA’) – as unconstitutional.  In that case, the Texas Court enjoined the DAPA program from going into effect – along with some additional tweaks to the DACA program. 

But – and this is key – the Texas litigation did not address the constitutionality of the original DACA program instituted by the Obama administration in 2012.

Although the District Court in California provides an insightful discussion of why the original DACA program might be well within the authority of the President of the United States to implement, the point is that no Court had ever ruled that the original DACA program was unconstitutional. 

The criticism that President Obama acted outside of his executive authority is frequently a ‘talking point’ used by those who object to the DACA program, but it is no more than a personal opinion.  It has never been an Opinion from a court of law.  (Remember, the Texas case only addressed the ‘DAPA’ program and a few minor embellishments to the DACA program.)

Thus, when in June of 2017, 10 of the plaintiffs in the Texas case sent a letter to the new U.S. Attorney General Jeff Sessions demanding that he rescind the DACA program – or else they would amend the Texas Complaint to include a challenge to the original DACA program – the new Attorney General happily complied[1].  He then sent a letter to the acting Secretary of the U.S. Dept. of Homeland Security requesting its rescission, which was done the next day.

But it was the manner in which Attorney General Sessions acted that provides the basis for this new Order from the California District Court.

In his Letter rescinding the Deferred Action for Childhood Arrivals program, Attorney General Sessions cited the ‘illegal’ nature of the DACA program as the basis for terminating the program.  He further concluded that DACA was an ‘unconstitutional exercise of authority by the Executive Branch.’  The problem is, as stated above, this was no more than an opinion of the Attorney General – not a determination by a Court of Law – which is the only branch of the U.S. Government that can make such a determination.  As explained by the California case, whenever an Agency of the Government, (such as the U.S. Dept. of Justice), acts, it cannot do so if it is ‘arbitrary, capricious, an abuse of discretion or not in accordance with the law’.

The Administrative Procedures Act grants U.S. District Courts, (such as the one in California), the authority to set aside an act of a government agency if it is ‘arbitrary, capricious, an abuse of discretion or not in accordance with the law’.

The California Court stated:  “In sum, the new Administration did not terminate DACA on policy grounds. It terminated DACA over a point of law, a pithy conclusion that the agency had exceeded its statutory and constitutional authority”.  And basically, ‘you can’t do that’; only courts can draw such a conclusion.  The Court also cited tweets from President Trump and other comments to show that the decision to rescind the DACA program was improperly made, or in the words of the District Court: the Dept. of Homeland Security terminated DACA on “a flawed legal premise that the Agency lacked the authority to implement DACA”.

So what did the court actually order to be done?

The Court has essentially re-opened the DACA program to begin accepting applications for DACA renewals.  (This does not allow new DACA applications - the reasoning being that the plaintiffs were affected only by those who previously had DACA benefits – but not by persons who had never before applied for DACA.)

And the Court is serious – requiring USCIS to provide public notice to DACA recipients that they can apply for renewals, ordering USCIS to keep track of all applications it receives and even requiring a report to the Court on the first day of each quarter reflecting how it is processing the DACA renewal applications.

                So What’s Next?

                The U.S. District Court Order is certain to be appealed to the 9^th Circuit Court of Appeals by the Government, probably pretty quickly and asking that the Court Order be injoined until it can be heard by the U.S. Supreme Court. 

                Also keep in mind that the U.S. District Court’s order is itself only temporary until a Final Decision on the case can be heard on its merits.

                Finally, one cannot help but think that this Decision would have some impact on any negotiations in Congress that attempt to provide immigration benefits for ‘Dreamers’ – but it would be impossible to say whether it has a positive or negative impact on negotiations.  

Stay tuned…

---

[1] As a matter of explanation – it is the U.S. Department of Justice, (led by the U.S. Attorney General), that prosecutes the removal (‘deportation’) of immigrants from the U.S.

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?

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

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