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…

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[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.

What's Next For DACA Recipients?

What’s Next For DACA Recipients?

 

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

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

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

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

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

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

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

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

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

 

                Your Immigration Team at

               Hunter, Smith & Davis, LLP

DACA is Terminated

Termination of the DACA Program

 

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

So what does this actually mean?

It could be worse.

Let’s start here: What is (was) DACA?

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

 The Long-View

So what happens next?

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

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

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

Here’s hoping that history will not be repeated.

 

HS&D Immigration

 

What is The Raise Act? Part 3

The Proposed RAISE Act

Part 3:  Elimination of the ‘Diversity Visa’ Program

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

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

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

Background

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

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

 

1. Elimination of the ‘Diversity Visa’ Program

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

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

History

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

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

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

Hence, the Diversity Visa Program.

 

 How it Works

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

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

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

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

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

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

 

The RAISE Act

The RAISE Act proposes to eliminate this program entirely.

 

 

 

 

 

Next:  ‘Reducing the number of Refugees’

What Is The Proposed 'RAISE' Act? Part 2

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

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

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

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

Background

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Next:  ‘Elimination of the Diversity Visa Program’

What Is The 'RAISE' Act?

What Is The Proposed RAISE Act?

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

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

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

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

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

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

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

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

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

 

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

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

 

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

United States, and for other purposes.”

 

We will go through each objective separately.

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

 

1. Skills-Based Immigration Points System –

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

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

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

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

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

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

 

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

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

Types of Nonimmigrant Visas Available Under The Present System

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

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

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

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

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

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

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

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

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

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

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

 

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

Navigating Uncertain Times: Friday Roundup

Friday March 10, 2017

H-1B Alert!

Summary:

As most people know, the President issued a new and revised ‘Travel Ban’ this week – which we will discuss in more detail later – but a more obscure announcement was made that can have a wide-ranging impact on foreign nationals already living here on H-1B visas.

USCIS announced that it would be suspending ‘Premium Processing’ of H-1B visas beginning on April 3, 2017 (the first day of receiving new H-1B visas under the ‘H-1B cap’).

Those who will be most greatly affected by this development will by physicians who are completing their residencies in J-1 status – and need a Conrad 30 J-1 waiver to file a new H-1B petition.

H-1B Premium Processing Suspension

Late last Friday, USCIS announced that it was temporarily suspending ‘Premium Processing’ for all H-1B petitions filed on or after April 3, 2017.  It will be suspended ‘up to 6 months’.

And they are serious about it.  In fact, if one mistakenly files a ‘Premium Processing’ request after April 3, 2017 with the regular filing fee and the Premium Processing fee on the same check, they will reject the entire H-1B package petition.

Here’s why it matters:

As you may know, ‘Premium Processing’ is an application that one can file to request expedited processing of the H-1B petition.  It is accompanied by a filing fee of $1,225 – in exchange for a guaranteed decision within 15 calendar days.  This used to be a luxury – back when the normal processing times for H-1B visas was 4-5 months.

But now, the current processing time for someone filing an H-1B extension to continue working in H-1B status in our region is approximately 8-9 months.  Since employers are prohibited from filing an H-1B petition more than 6 months ahead of time, it is nearly impossible to get a new H-1B extension Approval Notice before the present H-1B status expires under regular processing. 

Since federal law and regulations permit a foreign employee working in H-1B status to continue working for 240 days following the expiration date of her existing H-1B status if her employer files an extension before her H-1B status expires, this would not be a particularly big deal…except that most states now issue driver’s licenses with an expiration date that corresponds to the H-1B validity date.  Thus, while someone who has timely filed an H-1B extension may still work, she cannot drive to work.

Thus, since most driver’s license offices require an H-1B Approval Notice to renew a driver’s license,  for about the past year it has become routine for foreign employees in H-1B status to use Premium Processing – just so that they continue driving to work.

 So the ability to use Premium Processing can make a big difference to employees in H-1B status.

But it’s an even bigger deal to a Physician who intends to use H-1B status to provide clinical care to patients following her Medical Residency.

Most foreign-educated physicians who complete their Medical Residencies in the U.S. complete their training using a J-1 visa.  But there is a catch.  The J-1 visa status requires the Physician visa holder to return home for 2 years following completion of her Residency in J-1 status.

Unless she gets a waiver of the 2-year home residency requirement

Typically, this is done with a Conrad 30 J-1 visa waiver.

Without going into great detail about the process, it is sufficient to say that it’s a lengthy process going through several state and federal agencies over several months before getting a decision.  But here’s a peculiarity of the Conrad 30 program:  it requires the Physician to begin work in H-1B status within 90 days of receiving an Approval of the J-1 Waiver.  Since nearly all Physician residencies conclude on the same day – (June 30) – this means that there is a window of time to get the J-1 waiver approved.  For a July 1 start date, one must actually get the Approval sometime after April 1.

What’s more, some states – like Tennessee – won’t issue an unrestricted Medical License until the Physician completes her Residency.  On the other hand, Conrad 30 J-1 waiver recipients are exempt from the H-1B cap – so we don’t have to worry about trying to get a petition filed on April 1 (while the Physician is still in Residency).

But the bottom line is – by the time the Physician is ready to file an H-1B petition, it is usually already May, June or July.

Luckily, we always had Premium Processing to make sure the Physician could begin work within 2 weeks of Residency completion….   I think you can see the problem.

If the Physician’s employer cannot use Premium Processing… and the processing time is 8-9 months… it’s possible that a Physician completes her Residency in June, but cannot begin to work until February of the following year. 

We can hope that perhaps USCIS will reinstate Premium Processing  sometime in October or November, but that is well past the 90-day window in which the Physician is mandated to begin employment,(not to mention that it is a long time after Residency just waiting to begin work).

It’s still a big deal.   

 

The Trump Travel Ban: version 2.0

On Monday of this week, the President issued a second Executive Order addressing the admission of refugees and certain persons from certain countries into the U.S.

The second effort is much narrower and tailored to address the flaws in the first ban which the 9^th Circuit Court of Appeals concluded were unenforceable.

Here is a snapshot view of some of the major differences:

·         Iraqi nationals were removed from the list of foreign nationals from predominately Muslim countries who were prohibited from admission to the U.S.

·         It eliminates the ban on persons from the remaining 6 predominately Muslim countries who have ‘green cards’

·         It re-establishes a 120-day ban on the admission of any refugees – but Syrian refugees are no longer ‘indefinitely’ banned; they are subject to the same 120 day ban just as other refugees

·         It reduces the total number of refugees resettled in the U.S. under the U.S. Refugee Assistance Program from 110,000 to 50,000

·         It no longer gives a preference to ‘religious minorities’ [most likely Christians in predominately-Muslim countries]

 

Several states have already filed lawsuits to block the new travel ban, fundamentally on the same basis as before.  However, since the Travel Ban 2.0 was crafted more carefully to avoid some of the legal flaws that led to the demise of the first ban, the outcome will be less predictable.

Here is a sample summary of some of the issues presented by the new Executive Order banning travel:

·         It appears that there is still an evidentiary weakness in naming Syria, Iran, Libya, Somalia, Sudan and Yemen as countries from which its citizens are prohibited from entering the U.S. because of fear that they may commit harm when they arrive in the U.S.  Although the sectarian violence and conflict in these countries is well-known, the relationship between the threat that exists in these countries with the threat that their citizens pose to the U.S. is tenuous from an historical precedent.

 

·         In the absence of historical precedent, the court may decide that a ‘blanket’ ban on entire nations is not well-suited  - ‘too broad’ - for the intended purpose of the ban.  A court may decide that the Department of Homeland Security and Department of State can ameliorate this perceived threat by less-dramatic means, such as simply scrutinizing the background of citizens from these countries on a ‘case-by-case’ basis.

 

·         The core intent and effect of the ‘Travel Ban’ is inextricably derived from the President’s earlier pledges to create a ban to prevent persons of the Islamic faith from entering the U.S.  Such a ban is clearly unconstitutional.  However, the Travel bans 1.0 and 2.0 maintain a restriction from at least 6 countries that are predominately populated by persons of the Islamic faith.  This tainted legacy of the ‘Travel Ban’ will be hard to disentangle from the very real security threats that the U.S. indeed faces from individuals and groups around the world who want to do harm to the U.S.  The origin and history of these ‘Travel Bans’ may doom their viability.

 

·         One final point to consider:  the Executive Order banning admission of certain persons from certain countries is stated to be ‘temporary’.  It’s a 90-day ban on nationals of the 6 predominately-Muslim countries and a 120 day ban on refugees.  The indefinite ban on Syrian refugees has been removed, so it is fair to consider whether or not this Executive Order is actually a temporary restriction.  A brief suspension of immigration benefits in response to an imminent threat – for the purpose of addressing security measures – would not in itself seem to be unreasonable.  The question for the courts would be – are the security measures actually in response to a verifiably real – or simply perceived – threat; if so, what actions are the Department of Homeland Security and Department of State taking to institute necessary ‘fixes’ to the system; and has the Administration placed too many restrictions on the ability to reinstate the normal travel accessibility once the ‘review measures’ and ‘fixes’ have been concluded after 90 or 120 days?

 

This is why our Constitution created a third and independent branch of the U.S. Government: to examine and determine whether or not an Executive action as controversial as this adheres to the body of law established by the Courts’ interpretation of the U.S. Constitution throughout our history.

 

Stay tuned as these cases make their way through our Court system.