More Alternative Facts: The Orwellian Abuse of Language in Connection with Donald Trump’s Recent Executive Orders on Immigration

Following an incident in which White House press secretary Sean Spicer provided false numbers regarding the size of the crowds at the inauguration of Donald Trump as President, Trump senior advisor Kellyanne Conway memorably stated on NBC’s “Meet the Press” that Mr. Spicer had merely been providing “alternative facts.”  This claim has, deservedly, been the subject of much ridicule.  As host Chuck Todd stated during that same interview in response to what one article rightly termed an “Orwellian turn of phrase”: “Alternative facts are not facts.  They’re falsehoods.”  Such disregard for the truth has been a common feature of the early days of the Trump Administration.

The same Orwellian approach to language has been evident in the Trump Administration’s recently issued executive orders regarding immigration.  Both the January 25, 2017, Executive Order entitled “Enhancing Public Safety in the Interior of the United States” and the January 27, 2017, Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” involve in different ways a very troubling relationship with the notion of truth.  (The orders also have a number of other deeply objectionable aspects, too many to fully address in one blog post, although many other blog posts, editorials, and op-eds by other authors on the subject are well worth reading.)

The January 25 executive order, among other changes to enforcement policy, creates a list of priorities for removal which, at first glance, is intended to focus in large part on criminals.  As the New York Times explained in an article published the day the order was issued, however, the executive order in effect defines the notion of a criminal for these purposes to include people charged with a criminal offense but never convicted of anything, as well as anyone who has “committed acts that constitute a chargeable criminal offense” (or, more precisely, anyone believed by the immigration authorities to have done so).

These priorities thus include people quite far afield from any traditional notion of what it means to be a “criminal”.  It is, or used to be, a tradition of long standing in this country that one charged with a crime is presumed innocent until proven guilty.  The mere fact that someone has “been charged with any criminal offense, where such charge has not been resolved,” to quote from Section 5(b) of the January 25 executive order, does not make them a criminal.  They might be innocent of any wrongdoing, and might be acquitted as the criminal case moved forward.  The idea that any technically removable person will become a high priority by virtue of an unresolved charge, of which they may be completely innocent, is therefore very troubling.  While merely being a priority is not itself a basis for removal, the executive order implies that the Administration could pursue removal of someone facing unresolved criminal charges who had overstayed a nonimmigrant admission for a short period of time, or failed to file a change of address and could not sufficiently establish that the failure was non-willful or excusable.

The notion that anyone who has “committed acts that constitute a chargeable criminal offense” will be a priority for removal even if not convicted of any charge is also troubling, and has broader implications than may be apparent at first glance.  Entry without inspection is a misdemeanor under 8 U.S.C. 1325, for example, so this priority could be read to apply to anyone who crossed the border without authorization, at least as an adult—even if that entry took place many years ago.

The January 27 executive order, which bars entry by nationals of Syria, Iraq, Iran, Somalia, Yemen, and Libya for 90 days subject to possible future extensions, and suspends all refugee admissions for 120 days, rests even more fully on a disconnect from the truth. It purports to be focused on protecting the U.S. from “Terrorist” entry, and yet it applies to many people who are extremely unlikely to be terrorists.  Besides a distaste for refugee admissions generally, it seems to be based on antagonism towards predominantly Muslim countries, and has thus been referred to as a “Muslim ban”—although it ironically does not apply to the few predominantly Muslim countries whose citizens were responsible for the attacks against the United States on September 11, 2001 that it invokes, such as Saudi Arabia, the country of citizenship of 15 of the 19 September 11th hijackers.  (It has been pointed out that the ban appears to leave out countries where Donald Trump has done business.)  Instead, the entry ban focuses on countries which either Congress or DHS previously deemed worthy of being a basis for exclusion from the Visa Waiver Program in the event that an otherwise VWP-eligible person had dual nationality in them or had visited them—an exclusion which, while it had some perverse effects, simply meant that such people had to apply for visas and thus be subjected to additional scrutiny.  This new order, however, applies to people who already have been granted visas (or documents to travel to the United States as refugees, which are not technically quite the same thing), following intense scrutiny and under circumstances that make it quite unlikely they would actually be terrorists.

Perhaps the first and most obvious example of those who can be deemed potential “terrorists” only by Orwellian abuse of the word are those who were granted permission to immigrate specifically due to their service to the United States, such as the special immigrants issued visas based on their work for the U.S. military in Iraq.  The lead plaintiff in the ACLU lawsuit that resulted in the first temporary injunction blocking deportation of those affected by the executive order, Hameed Khalid Darweesh, was a former U.S. Army translator in Iraq who had received his special immigrant visa based on that service and had been twice targeted by terrorists in Iraq because of that service.  The Pentagon has now indicated that it will submit to the White House a list of Iraqis who have worked alongside the United States so that they may possibly be exempted from the entry ban.  That there was no exemption of such people from the January 27th executive order, and no promise even now that such people will be exempted, is even more outrageous than the executive order itself. The notion that blocking Mr. Darweesh’s entry would protect the U.S. from “terrorists” is a falsehood much graver than Mr. Spicer’s original alternative facts regarding crowd size.

While perhaps the most obvious example, however, those who served the U.S. military in Iraq are far from the only people affected by the January 27 executive order who cannot reasonably be associated with terrorism.  The executive order at least temporarily bars refugees from all countries of the world, including countries with no connection whatsoever to any past terrorist attack against the United States.  It also bars refugees persecuted by the very same extremist groups which might seek to do us harm, and whose cases have undergone extensive vetting before they reach the stage of applying for admission.  The January 27 executive order seemingly ignores the extensive screening that already exists for all refugees and visa applicants.

Despite all this, the Administration has sought to remove people covered by the January 27 executive order from the United States as soon as they arrive, without taking any time to investigate whether they might conceivably be reasonably suspected of any connection with terrorism.  Fortunately, the courts have stepped in, with both the aforementioned injunction in Mr. Darweesh’s class action and several others.  These injunctions did not come soon enough for all of the innocent victims of the executive order, however.  At least one habeas plaintiff was removed from the United States while an application for a temporary restraining order was pending, although Judge Dolly Gee of the U.S. District Court for the Central District of California has now ordered that Ali Vayeghan be returned to the United States.  Others, however, were removed or coerced to withdraw their applications for admission under circumstances that make their return less likely.

The Administration even initially sought to apply the entry ban to Lawful Permanent Residents (LPRs) of the United States with citizenship in one of the 7 affected countries—that is, people with “green cards”, who have already been cleared to live here permanently.  That was extremely legally questionable in the view of this author, given that the power relied upon by the January 27 executive order, section 212(f) of the Immigration and Nationality Act, authorizes the President to suspend the “entry” of certain aliens, and many LPRs returning from brief trips are under section 101(a)(13)(C) of the INA not to “be regarded as seeking an admission into the United States”.  Since section 101(a)(13)(A) of the INA defines “admission” as  “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer,” it would appear to follow that one who is inspected, and should not be regarded as seeking admission, also should not be regarded as seeking entry.  That would also be consistent with the purpose of section 101(a)(13)(C) to codify a modified version of the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963), which held under prior law that an LPR did not make an “entry” following an innocent, casual, and brief departure from the United States.   The issue may not need to be resolved in litigation in the near future, however, because the DHS Secretary, General John Kelly, determined Sunday that “the entry of lawful permanent residents is in the national interest”, and so “absent significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in [DHS’s] case-by-case determinations.”  That is, LPRs from the affected countries will be allowed to return to the United States in most instances.  It is consistent with the theme of this blog, though, that the Administration initially sought to redefine “entry” as something other than what it ought to mean under immigration law, and still evidently reserves the right to do so if it feels it is in possession of “significant derogatory information.”

Nor are the redefinition of “entry” and the basic disconnect regarding the relevance of this entry ban to “terrorism” the only alternative facts underpinning the January 27 executive order.  The order indicates that when refugee admissions resume, preference is to be given to religious minorities, which has been understood as intended to mean Christians in predominantly Muslim countries (although there are countries where Muslims are in the minority as well).  Mr. Trump’s suggestion that Christian refugees had previously had “no chance” of coming to the United States is, however, also untrue.  As the New York Times has explained, “In 2016, the United States admitted almost as many Christian refugees (37,521) as Muslim refugees (38,901), according to the Pew Research Center.”  Many Christian leaders have denounced the entry ban.

There is also Mr. Trump’s false claim that “My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months.”  In fact, the narrowly focused increase in screening of refugees and applicants for Special Immigrant Visas from one country, during which some Iraqis nonetheless continued to be admitted to the United States each month of the six months in question, is in no way “similar” to a months-long outright ban on entry of nearly all citizens from seven countries.  Moreover, the heightened screening created in 2011 is still in place, so the fact that scrutiny of Iraqi refugees and visa applicants was increased six years ago cannot reasonably be offered as a reason for suspending their entry now.

The fictional Superman was known for defending “truth, justice, and the American way.”  Based on his disregard for the truth, Donald Trump has perpetrated a great injustice, one inconsistent with the American way of hospitality towards immigrants and refugees.  Several Democratic leaders have indicated that they will propose bills in Congress to overturn the January 27 executive order, and Democratic Senate leader Chuck Schumer unsuccessfully attempted Monday to get consent for a vote on such a bill.  Such bills face highly uncertain prospects in the Republican Congress, given that House Speaker Paul Ryan seemed to express support for the executive orders in his statement on the subject, but we can hope—and, for those of us whose representatives are not already on record in favor, can contact them to urge their support.  Donations to the ACLU in connection with its pending lawsuit against the January 27 executive order are another way to show opposition to the entry ban.

Alternative facts are bad enough when they concern something as trivial as crowd size.  That they would be relied upon to harm innocent immigrants is unacceptable.

Justifiable Outrage On Trump’s Muslim Travel Ban By A Client

By Farhad Wadia

Editor’s Note: On Friday evening, January 27, 2017, we sent out a notice to our clients relaying the details of President Trump’s executive order blocking the entry of visa-holders, refugees, and LPRs from seven predominantly-Muslim nations, namely Iran, Iraq, Syria, Somalia, Sudan, Libya, Yemen. Among other things, we strongly discouraged clients or the employees of corporate clients from these countries from travelling outside the United States.  Outraged by Trump’s actions, Farhad K. Wadia wrote to us this spontaneous, eloquent response. Mr. Wadia is the Chief Executive Officer of Samuels Jewelers, a multi-million dollar specialty jewelry chain. Under Mr. Wadia’s leadership, Samuels Jewelers has expanded to 123 stores across twenty-two states and now employs over 800 people. Mr. Wadia, who is a citizen of India, is also a proud lawful permanent resident. Note that there have been some clarifications to the EO since last Friday, the situation remains fluid as interpretations keep on changing.

This weekend, I was shocked to hear that President Trump had not only banned refugees and visitors from seven Muslim countries, but that Lawful Permanent Residents from these nations were also denied entry. Due to the uproar from protests this weekend, the White House has since rolled back on its policy denying entry to LPRs; however, many more people, including temporary workers and students, continue to suffer under this inhumane policy.

This Executive Action has already ripped apart families and shattered the dreams of professionals and students. Twice before in American history have such actions caused untold hardship and suffering to innocent people. The first of which was the U.S. refusal to admit Jews fleeing the Holocaust. Upon return to Nazi Germany, these people were violently persecuted and/or killed at concentration camps. The second was the internment of Japanese-Americans after the bombing of Pearl Harbor, causing immense trauma and untold misery. Trump’s recent actions join these events in the halls of infamy and serve as a degradation of American values.

Despite these spots on its history, America, has historically served as a beacon of hope and opportunity for citizens and immigrants alike. It has allowed me, an immigrant and now proud lawful permanent resident, the opportunity to grow a successful company, contribute to the American economy, and employ hundreds of workers. But I am no exception. America has given millions of people the opportunity to create new and better lives for themselves and become leaders in their communities. Immigrants to America have become influential politicians, doctors, teachers, business leaders, and scientists that have all made this country stronger.

Trump’s Executive Orders against immigrants and refugees stands in stark contrast to these cherished values. This is not the America that the world admires and respects, where the inscription on the Statue of Liberty reads: “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!” Trump has instead shut America’s door to those most vulnerable by blocking the admission of Syrian refugees, and has disrupted the lives of hundreds of visa holders seeking to continue their studies or careers.

These executive orders, in addition to the recent order heightening the status of Steven Bannon within the National Security Council, lead me to worry about the fate of America. Specifically in regards to immigrant workers, Mr. Bannon has been exceptionally discriminatory against Asian (citizen and noncitizen) workers in Silicon Valley. Relying on made-up statistics, Mr. Bannon has implied that there are too many Asian CEOs and workers in the tech industry. Stephen Miller and Jeff Sessions have both suggested rolling back employment-based immigration, even for the most talented workers that are capable of bringing ingenuity and success to the economy. I fear that this weekend’s actions are only the beginning of what is to come.

The suspension of immigration will only serve to hurt America. This country was built upon the backs of immigrants. Immigrants have made this country better. They have made this country stronger. Trump’s discriminatory orders will only reverse progress and growth, both economically and socially. America is better than this, and now is the time for the American people to stand up and fight against this injustice. As Martin Niemöller once wrote,

“First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.”

Let the American people take these words seriously, and refuse to allow Trump and his administration to degrade the values that this country was founded upon.

Is Being Anti-Trump A New Ground Of Inadmissibility?

Over the weekend, a Canadian student of McGill University, Joseph Decunah, who was seeking to be admitted to protest at the Women’s March the day after President Trump’s inauguration was refused admission. He was in the company of two US citizens who were allowed to cross. Decunah was point blank asked “Are you anti or pro-Trump?”

After Decunah indicated he was anti-Trump as he had nothing to hide, the CBP officer engaged in further questioning about why he opposed Trump, and the Canadian entrant spoke about the Affordable Care Act and some of the outrageous statements that Trump has made towards minorities. Then from there, the questioning moved on, according to Decunah, to determine if he and the two others in his group were extremists or not. He was asked about where he had been, and if he has ever been to the Middle East. The CBP officer then asked him about his political engagements, to which Dacunah responded that he had been a member of the NDP (New Democratic Party) in the past.

The CBP officer then alleged that Decunah would engage in “silent disruption” as a protestor in the march. He said, according to Decunah, “Would you agree that by standing in these crowds, that even though you may be a pacifist, that you would be disrupting events?”  Decunah’s partner Ruth mentioned that the Women’s March had permits from the Metropolitan Police Department and the National Park Service. “It’s not like we’re participating in anything illegal. [The guard] dropped the term “silent disruption” a few more times and then tried to explain that there were a series of bins Canadians have to fall into when they’re entering the United States,” according to Decunah.” One of those things can be tourism, one of those things can be for work or whatever it may be in that attending a march of any sort wouldn’t fall into one of those bins.”

We hope that this was an isolated incident, and not part of a growing disturbing trend under a Trump presidency. However, there have been other similar reported incidents of Canadians being blocked entry into the United States on the day of the protest.  While there is no specific mention in the Foreign Affairs Manual about whether coming to the United States to be part of a peaceful protest is a legitimate activity as a visitor for pleasure, it clearly ought to be. Under 22 CFR 41.31(b)(2) pleasure is defined as “Legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment and activities of a fraternal, social or service nature.” Clearly, being part of a peaceful protest with like-minded people could constitute activities of a “fraternal” or “social” nature. 9 FAMe 402.2-4(A)(3) also contemplates as visitors for pleasure “[p]articipants in conventions of social organizations.”

Of course, the CBP officer can rely on other grounds of inadmissibility under the INA. One potential ground is under INA 212(a)(3)(A)(i), which allows a consular or border officer to find inadmissible one, if there are reasonable grounds to believe that he or she seeks to enter the United States to engage principally or incidentally in “any other unlawful activity.” It is purely speculative and a stretch for a CBP officer to assume that an anti- Trump protestor, as opposed to a pro-Trump supporter, may more likely engage in a form of civil disobedience, resulting in unlawful activities such as blocking traffic. It is even more absurd to refuse entry to one who will engage in “silent disruption.” The First Amendment of the US Constitution ought to preclude the assumption that exercise of the right to peaceably assemble is likely to involve the violation of law.

Trump, who is likely to continue being a controversial President, will generate more protests in the future. It would undermine America’s image as a free country if visitors from abroad are barred if they are specifically coming to participate in a peaceful anti-Trump protest. Immigration policy does not operate in a vacuum. There have already been troubling signs of Trump repeatedly attacking the press as being dishonest, thus undermining the First Amendment. Consuls and border officers should not feel emboldened as a result by allowing their personal prejudices to cloud their objectivity in determining who is a bona fide visitor. Otherwise, and most unfortunately, being anti-Trump might de facto become a new ground of inadmissibility. This is because there are very limited grounds to challenge the decision of a border officer. Similarly, under the recent Supreme Court decision in Kerry v. Din, a consular officer’s decision is virtually unreviewable if the applicant was simply informed about the section number in the INA as the basis for the denial. These officers are bestowed with great power and must use their power wisely. While they are obligated to ensure that those who potentially threaten to harm the United States do not come in, they should allow peaceful protestors who wish to exercise and celebrate the rights that are enshrined in the First Amendment.

Is Trump’s Proposed Scrapping of the H-1B Lottery in Favor of the Highest Wage Such A Good Idea?

By Cyrus D. Mehta and Sophia Genovese-Halvorson

Employers have already begun preparing for the upcoming H-1B visa lottery season.  The annual H-1B cap is limited to 65,000 visas per year for applicants with bachelor’s degrees, and an additional 20,000 for those with master’s degrees from US universities. The filing period begins on April 1, 2017. H-1B petitions received during the first five business days of April – April 3 to April 7 – will be given consideration under the lottery. Based on last year’s filings, the odds of getting an H-1B visa in the lottery is approximately 33%.

The H-1B lottery has been viewed as benefitting larger employers, mainly Indian IT firms that file a large number of petitions, over smaller employers who wish to focus on employing a single or few employees. A class action lawsuit, Tenrec, Inc. v. USCIS, challenging the annual H-1B lottery as contravening the INA, seeks to disrupt the status quo by allowing all employers to file on a first come first served basis. Under this plan, those who are not among the first 85,000 H-1B petitions received would be placed in a queue or wait list instead of being denied due to the quota having already been met. If this lawsuit is successful, it will certainly produce a long queue for the coveted 85,000 H-1B visas, and so most will still not benefit even after the lottery is dismantled.

Now Trump seeks to also disrupt the H-1B visa lottery, according to an article in Reuters. Specifically, Stephen Miller, senior advisor to the Trump administration, has suggested that the USCIS should abolish the H-1B lottery as we know it and replace it with a system which favors those who file on behalf of prospective employees with the highest wages. This proposal is similar to the one made by IIEE-USA, which, in addition to giving priority to employers who are willing to pay higher wages, suggest that the USCIS should also give lower priority to H-1B dependent employers. Most H-1B dependent employers, who have more than 15% of their workforce on H-1B visas happen to be Indian IT companies. This is also similar to the proposed reordering of access to H-1B visas in the Grassley-Durbin bill, which seeks to curtail the H-1B visa program in many other counterintuitive ways, including imposing mandatory recruitment of US workers before an H-1B petition is filed. Although a preeminent commentator, Vivek Wadhwa,  has praised the proposal on the grounds that Indian IT companies have been abusing the H-1B visa, we have several concerns about the proposed restructuring.

First, this preferential system would exclude entry-level professionals, some of whom have recently graduated from US universities. These entry-level professionals, while full of skill and talent, are not typically afforded higher wages at the beginning of their careers. If the H-1B program were to look unfavorably upon wage-earners commanding Level 1 wages in the DOL wage classification system, then we would be systematically excluding highly skilled, young workers that have the potential to positively impact the US economy and various professional sectors. While employers using the H-1B visa program have been criticized for excessively relying on the Level 1 wage, paying such a wage is not per se unlawful if the individual is being hired for a position with less than 2 years of experience and which requires supervision.

Second, by favoring foreign nationals with the highest wages, we may end up in a situation where a foreign national is making more than his or her American counterpart. Under the H-1B law, the employer must pay the higher of the prevailing or the actual wage. See INA 212(n)(1)(A)(i). If an employer wishes to bid for a worker by offering a higher than market wage, then the employer may have to adjust the wage for all similarly situated workers. This may not necessarily be a bad thing if all wages rise, but if the rise in wages is a result of an H-1B auction due to an artificial limitation in the number of visas, it could also have the effect of artificially distorting wages. It may also result in the inequitable result where American workers may be paid less than foreign H-1B workers, resulting not just in H-1B violations but also in discrimination lawsuits against employers. Therefore, under this proposal, the H-1B program may be criticized for causing imbalances between foreign and American workers.

Third, entrepreneurs who wish to obtain H-1B visas through their own startup companies will also suffer under this proposal. Their startups may not be able to pay them a higher wage than necessary in order to compete for an H-1B visa. Still, these startups hold promise to become successful and create jobs if the founder is able to remain in the US on an H-1B visa. This is why the USCIS provides entrepreneurs to get sponsored through existing visas such as the H-1B in the Entrepreneur Pathways Portal.  Although the USCIS has finalized a special parole rule for entrepreneurs, the final rule’s preamble acknowledges that Entrepreneurs Pathways compliments the parole rule and the two can thus harmoniously exist.  Even Wadhwa has stated that we are not encouraging startups and thus shooting ourselves in the foot, noting that “Google and Facebook can buy all the talent they want — it’s the startups who are struggling… The good thing is we have a powerful innovation system, and there are good things happening in Silicon Valley anyway, but the bad news is there’s a lot happening in other countries that would’ve happened here if we had let people come here. America gave a gift to the world.”

Fourth, while it has become fashionable to throw IT companies under the bus these days, they have to also be part of the solution. The use of IT consulting companies is widespread in America (where even the US government contracts for their services), and was acknowledged by Congress when it passed the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) by creating onerous additional attestations for H-1B dependent employers. The current enforcement regime has sufficient teeth to severely punish bad actors.  IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa even if they abide by H-1B rules regarding wages. However, it is this business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top-tier talent quickly with flexibility, at affordable prices that benefit end consumers, and promote diversity of product development. This is what the oft-criticized “job shop” or “body shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities, and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends. Such a business model is also consistent with free trade, which the US promotes when it’s in their favor, but seems to restrict when it applies to service industries located in countries such as India that desire to do business in the United States through their skilled personnel.

The solution instead lies in increasing H-1B caps in Congress rather than reordering who can have access to H-1B visas under an artificially small quota. As we have previously blogged, by continuing to limit the H-1B program US employers will remain less competitive in the world markets. By limiting the availability of H-1B visas, employers are missing out on much-needed innovation in US industries, especially in the STEM fields. This failure to innovate within the US domain may encourage employers to look to overseas markets in order to develop and expand their companies. This is bad news for the US economy. H-1B workers have historically helped to improve the US economy, which in turn helps to create more jobs for Americans.

It is also a fact that more H-1B workers are needed in the IT sector as the United States does not produce enough computer professionals of their own. Most American IT workers are self-taught, as opposed to being formally trained at an institution, according to one US-based IT worker who spoke to the authors for this blog. Moreover, the United States has more venture capital investments for new companies than most other countries, but lack the domestic labor force to reap the benefits of such investment, thereby making the need to bring in H-1B workers ever more necessary to grow startup companies.

Lastly, the United States is no longer the only player in the game. The “Silicon Valleys” in China and India are vastly more agile for quick development and production, largely due to the availability of skilled workers. Meanwhile, American innovative companies are hamstrung for lack of them and are thus forced to move more of their research and development facilities overseas. The most talented will go to countries where they are more welcomed, which may no longer be the United States.

Increasing quotas in the employment-based preferences, along with the H-1B visa quota,  is the best way to reform the H-1B visa program, rather than to further shackle it with reordered lotteries, stifling laws and regulations, labor attestations, and quotas. If there is a concern about IT companies displacing US workers, such as what happened at Disney, then increasing the wage of an exempt worker from $60,000 (which was set in the 1990 Act) to something higher might be palatable in exchange for more H-1B visas annually and no further restrictions. If an H-1B dependent employer does not hire an exempt worker, then it needs to undergo an additional recruitment and anti-displacement attestation. This has been proposed in the Protect and Grow American Jobs Act sponsored by Congressman Issa, which increases the wage for an exempt H-1B employee from $60,000 to $100,000. If at all Congress wishes to impose restrictions on the H-1B visa, the Issa bill is preferable to the Grassley-Durbin bill.

Still, artificially raising wages above market wages would hurt the ability of US businesses to use the expertise of IT consulting companies in becoming more efficient, and thus passing on the benefits to consumers and even creating new jobs. Perhaps, the $100,000 wage can be lowered for certain exempt workers, such as those who have been sponsored for permanent residence through the dependent employer or those who have graduated in certain STEM disciplines.

Regardless of how one reorders access under the lottery, there will always be a shortage if the cap is limited to a mere 85,000 visas per year. For FY 2017, the USCIS received over 236,000 H-1B petitions, all vying for one of the 85,000 visas available. This means that some 151,000 or more people – highly qualified individuals with dreams and career aspirations – will likely be denied the ability to work in the US. This is not for lack of skill, this is not for lack of good moral character, but for an arbitrary cap system that limits their upward mobility and stifles US innovation in many fields. A system which seeks to provide preferential treatment to the highest paid foreign workers within the confines of an artificially low quota are unlikely to improve the position of US companies seeking to be competitive in global markets.

[Sophia Genovese-Halvorson, who is pursuing her JD degree at Brooklyn Law School,  is a Legal Intern at Cyrus D. Mehta & Partners PLLC]

 

 

Matter of Dhanasar: The New National Interest Waiver Standard

Overturning nearly two decades of precedent on how an individual qualifies for the National Interest Waiver (NIW), the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) recently issued a precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) which vacated Matter of New York State Dep’t of Transp. [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) on which USCIS routinely relied when adjudicating NIW petitions.

As background, the NIW is an immigrant petition for lawful permanent residence under the employment-based second preference (“EB-2”) category. In the ordinary course, a valid, permanent offer of employment in the U.S. and a labor certification application certified by the Department of Labor (DOL) are mandatory prerequisites to the filing of such an employment-based immigrant petition. However, the Immigration Act of 1990 (IMMACT90) provided that the labor certification requirement in the employment-based second category may be waived and foreign nationals may qualify for the NIW in the sciences, arts, professions or business if they are: (1) members of the professions holding advanced degrees; or (2) foreign nationals of “exceptional ability” who will “substantially benefit prospectively the national economy, cultural or educational interest, or welfare” of the United States, i.e. where the foreign national’s employment is deemed to be in the “national interest.” Yet, neither Congress nor USCIS have defined the “national interest.” Rather, it has been left intentionally undefined in an effort to leave the application of this test as flexible as possible.

In 1998, the threshold qualifications for a NIW were articulated in NYSDOT. NYSDOT restricted the use of the NIW as a way to bypass the labor certification process for foreign nationals qualifying for placement in the EB-2 category. In NYSDOT, the AAO defined a three-prong test as the legal standard for adjudicating NIW petitions. Under this test, the foreign national had to demonstrate that (1) the area in which the foreign national seeks employment is of substantial intrinsic merit; (2) the prospective benefit of the foreign national’s services is national in scope; and (3) the national interest would be adversely affected if a labor certification were required. That is, the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

The NYSDOT standard resulted in inconsistent adjudications, confusion and general frustration. It was impossible to devise a sure fire plan of attack or to predict the success of a NIW petition. Even if a petitioner could meet the first two prongs of the NYSDOT test, the third prong proved the most difficult to establish and was the sole subject of many USCIS Requests for Evidence. Under this prong, although a NIW is granted based on prospective national benefit, the foreign national’s past record had to justify projections of future benefit to the national interest. In other words, a NIW petitioner had to demonstrate that the prospective national interest was not entirely speculative, but based on demonstrable prior achievements. I previously blogged here providing a practical account of issues presented by the NYSDOT standard and how our firm was able to overcome that third prong and win a NIW petition for a marine biologist.

Acknowledging the existing confusion, in Matter of Dhanasar, the AAO stated that based on the agency’s experience with NYSDOT “we believe it is now time for a reassessment.” Matter of Dhanasar articulates a new NIW standard that the AAO believes provides greater clarity, applies more flexibly to circumstances of both petitioning employers and self-petitioning individuals and better advances the purpose of the broad discretionary waiver provision to benefit the United States.

Matter of Dhanasar provides that after eligibility for EB-2 classification has been established, USCIS may grant a NIW if the petitioner demonstrates, by a preponderance of the evidence, that:

  • The foreign national’s proposed endeavor has both substantial merit and national importance.
  • The foreign national is well positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

The decision noted that Dhanasar’s prong #1 – requiring substantial merit and national importance – focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s substantial merit may be demonstrated in a range of areas including business, entrepreneurialism, science, technology, culture, health, or education. It is possible to establish an endeavor’s substantial merit without a demonstration of immediate or quantifiable economic impact, although such evidence would be favorable.  The AAO provided the examples of endeavors related to research, pure science, and the furtherance of human knowledge which may qualify whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

To determine whether the proposed endeavor has national importance, the AAO stated that it considers its potential prospective impact. An endeavor may have national importance, for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. “But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance,” the AAO noted. “In modifying this prong to assess ‘national importance’ rather than ‘national in scope,’ as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.”

Dhanasar’s prong #2 – requiring that the foreign national demonstrate that he or she is well positioned to advance the proposed endeavor – shifts the focus away from the proposed endeavor and onto the foreign national. The AAO stated that it will consider factors including, but not limited to, the petitioner’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals. In recognition of the challenges presented in attempting to forecast feasibility or future success, the AAO stated that petitioners will not be required to demonstrate that their endeavors are more likely than not to ultimately succeed. Nevertheless, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

Dhanasar’s prong #3 requires a demonstration that, on balance, it would be beneficial to the US to waive the requirements of a job offer and thus of a labor certification. The AAO recognized the intent of Congress to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. But, on the other hand, Congress also created the NIW in recognition of the fact that in certain cases the benefits afforded by the labor certification process can be outweighed by other factors that are also in the national interest. These two interests need be balanced within the context of individual NIW adjudications.

The AAO stated that this analysis requires an evaluation of factors such as whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. The AAO emphasized that, in each case, the factors considered “must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” The AAO noted that this new prong in Dhanasar, unlike the third prong in NYSDOT, “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.” Under NYSDOT, the petitioner had to demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the foreign national by making the position sought by the foreign national available to U.S. workers. The petitioner, whether the U.S. employer or the foreign national, had to establish that the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Matter of Dhanasar indeed rovides much needed flexibility and a clearer understanding of the evidence required in order to qualify for a NIW. In particular, this decision more widely opens the door for entrepreneurs to qualify for NIW. Under Dhanasar’s prong #1, the entrepreneur will no longer have to provide evidence that the proposed benefit will be national in scope as it has always been difficult for an entrepreneur to show that localized employment through his or her enterprise would be national in scope. Instead, the entrepreneur could demonstrate that the proposed endeavor has significant potential to employ U.S. workers.

The AAO acknowledged that the third prong of NYSDOT was always especially problematic for entrepreneurs and other self-employed individuals. A self-employed consultant would never be able to sponsor oneself through a labor certification as there is no distinct employer. In fact, the DOL regulations prohibit one who is the owner of the corporation from filing a labor certification on his or her own behalf as this person might negatively influence the good faith effort to recruit US workers. Also, certain governmental agencies do not have a policy of filing labor certifications on behalf of foreign nationals even though they may be critically needed. Under the more flexible Matter of Dhanasar standard, getting rid of the comparison requirement and focusing on the foreign national’s own background, the entrepreneur can demonstrate that even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions.

Matter of Dhanasar still requires the subjective determinations of USCIS adjudicators and accordingly, great care still needs to go into assembling a NIW petition. But this precedent decision opens the door to lawful permanent residence for individuals involved in a wider range of endeavors who would have failed to qualify under the NYSDOT standard.