Tag Archive for: Immigration

Cyrus Mehta

The Rescission of  Trump’s Buy American Hire American Will Benefit Immigrants and America

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By Cyrus D. Mehta

On January 25, 2021, President  Biden signed an executive order entitled the Future  is Made in All of America by All of America’s Workers. This executive order revokes Trump’s Buy American Hire American Executive Order (BAHA), 13788, of April 18, 2017. Although President Biden’s Buy American executive order requires government agencies to purchase goods and services from US companies, as a way to boost production within the United States, it is not designed to impede immigration or hurt immigrants. While Biden’s Buy American executive order has also been  criticized in some quarters as representing  bad economics – since forcing the government to buy only American products may raise the average cost and lower the average quality of everything the government buys – the purpose  of this blog is not to critique the economics behind Biden’s executive order but to celebrate the demise of BAHA.

Section 5 of the BAHA EO stated:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

When BAHA was announced with great fanfare in April 2017, USCIS reviewed all its regulations, policies, and programs to comport with BAHA.  BAHA was issued on the false premise that immigrants took away American jobs and were a threat to American workers. BAHA also falsely believed that immigration is a zero sum game where the presence of an immigrant in the US displaces a US worker. However, immigration can also be viewed as enhancing American jobs and foreign nationals complement US workers thus creating more growth and opportunities for further job creation.  The BAHA executive order explicitly highlighted the H-1B visa program and directed the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries even though there was no basis to do that in the Immigration and Nationality Act. The USCIS began to deny routine H-1B and L-1 visa extensions in the name of BAHA.  The State Department followed suit and so did the Justice Department and all other agencies in charge of implementing US immigration law. BAHA resulted in unfair denials of H-1B and L-1 petitions, and even US consuls at the State Department began asking visa applicants whether their entry into the US would comport with BAHA.

Even though there was no requirement in the INA for a demonstration that  US workers would not be displaced when approving visa applications – for example, an intracompany transferee need not demonstrate that he or she will not be displacing Americans, or create new jobs – attorneys prepared visa applicants to demonstrate how their entry in the US would result in more jobs for US workers and thus be consistent with BAHA. This author advised in a prior blog that attorneys should not suck up to BAHA as there was no standard set forth to determine how  a visa entrant would result in more jobs for American workers. BAHA now thankfully does not exist and attorneys need not have to go through the charade of coaching their clients to show how their entry would be consistent with BAHA even though those standards were nonexistent under the INA.

BAHA stemmed from Trump’s America First policy that disgracefully influenced how the United States viewed trade, immigration, the environment and global alliances. It was a radical departure from how the United States viewed itself before Trump took office. While previously the United States took the lead in forging the Paris climate accord, Trump withdrew from it. While the United States had promoted free trade as a basis for growing prosperity between nations, Trump withdrew from the Trans Pacific Partnership, which took years to negotiate under American leadership, and he also withdrew from other global alliances. Although the title was deceptive, Trump’s America First doctrine, unfortunately, abdicated America’s leadership role in the world. This thankfully will be restored by President Biden and without America First or BAHA guiding his administration.

It is worth noting that the term America First also has an ignoble history, and was associated with anti-Semitism.  The America First Committee (AFC) was founded in 1940 and opposed the involvement of the United States in World War II. AFC’s most notable spokesman Charles Lindbergh, the aviator, expressed not only sympathy for the persecution of Jews in  Nazi Germany, but further suggested that Jews were advocating that the United States enter a war that was not in the national interest. The AFC met a sudden death a few months later by disbanding when Japan attacked Pearl Harbor, which naturally propelled America’s involvement in World War II.

Now BAHA is dead, and can no longer roil US immigration policy. No longer may USCIS issue a BAHA report card each year boasting on how well it has done under BAHA by denying visa applications and harassing immigrants. Even pending regulations designed to impede legal immigration into the US, such as the new H-1B lottery rule, may no longer rely on BAHA to move forward although this in itself may not be the basis to invalidate them in court.  The newly promulgated DOL wage rule that artificially increases prevailing wages, thus creating obstacles for employers to obtain H-1B visas and permanent residency for foreign nationals, also mentions the BAHA executive order several times. The USCIS policy that rescinded giving deference to prior successful adjudications was based on BAHA (USCIS has touted this as one of its BAHA accomplishments).  It is hoped that immigration policies and rules that were issued under BAHA, now rescinded, can provide an excuse for the Biden administration to abandon them as well as potentially provide further ammunition to litigators who challenge them in court. Even those who received denials of visa petitions or applications that cited BAHA can potentially use that as a basis to challenge them in court or through additional administrative review.

The rescission of BAHA should also pave the way for new progressive laws and policies that view immigrants as an asset to the nation rather than a threat, which in turn will benefit both immigrants and America.

 

 

 

Cyrus Mehta

Top 10 Most Viewed Posts On The Insightful Immigration Blog In 2017

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Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2017. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them.

2017 was marked by President Trump’s turbulent impact on the immigration system. It started with the travel ban aimed against countries with mainly Muslim populations and enhanced interior enforcement, but then went onto undermining legal immigration, including attacks on H-1B visas. Although the Trump administration has not been able to slow down immigration through legislative changes in Congress or through rule making, it has achieved its stated objectives through shifts in policy that create more obstacles in the immigration process. The DACA program was cancelled and refugee admissions have been virtually halted. Immigrants have also been stereotyped, without basis, by conflating them with crime or by viewing them as taking away American jobs.  Our blogs critically reflect on all these developments and also endeavor to portray immigration as being in the national interests of America. We have not feared voicing our criticism as we believe it is the right thing to do on behalf of our clients and the nation. The Trump administration’s move to restrict immigration is not based on a rational policy, but driven solely by fear, xenophobia and stemming out of a eugenics movement sanctioned by the President. This was evident in a recent New York Times article that described President Trump angrily disparaging bona fide Haitian visitors by assuming they all had AIDS and Nigerian visitors who would “never go back to their huts.”   President Trump’s sentiments reflect the true underpinnings behind his administration’s new immigration policy, and the most effective way to react is to condemn them on grounds that they are not in keeping with long cherished American values as a nation of immigrants.

Our blogs also educate readers on new developments, such as on various aspects of the high skilled worker rule or on new decisions clarifying L-1 visas for functional managers or the national interest waiver. It is important to inform people on how they can maximize opportunities while the Trump administration is trying its best to restrict them.

The good news is that the Trump administration’s efforts to destabilize the immigration system have met with effective resistance through the courts, media, and advocacy. We proudly believe that our blogs are also part of this effort.

We do hope that 2018 bodes better for immigration, and wish all of our supporters and well-wishers a very happy New Year notwithstanding the challenges that lie ahead!

  1. Entry Level Wage Blues
  2. Analysis of the 60-Day Grace Period for Nonimmigrant Workers
  3. A Few Suggestions to Defend Oneself Against the 90-Day Rule
  4. Is There a Hidden Agenda? Suspension of Premium Process for All H-1B Petitions
  5. Matter of Dhanasar: The New National Interest Waiver Standard
  6. Raise Act Will Hurt Immigration, Americans and America
  7. Stopping H-1B Carnage
  8. 7 Points to Remember Regarding Resume Review in the PERM Process
  9. Filing Under the FY2018 H-1B Cap; New Developments in H-1B Cap Exemption
  10. Dealing with the Dreaded RFE – Reflections of an Immigration Lawyer
Cyrus Mehta

Calling Out President Trump’s Hoax: The Green Card Lottery and Family Fourth Preference Have No Connection To Terrorism

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By Cyrus D. Mehta & Sophia Genovese

Despite the President’s most recent comments, individuals that immigrate to the United States via the Diversity Visa program and family-based petitions are not chosen out of a bin and are certainly not the “worst of the worst.” To the contrary, individuals who come to the United States through these mechanisms undergo rigorous screenings and can face several years, sometimes decades, of processing and waiting.

Trump’s most recent anti-immigration comments were sparked by the Halloween attack in New York City resulting in the tragic death of eight individuals, as well as the failed bomb attack in Times Square last week. The alleged Halloween attacker, Sayfullo Saipov, entered through the Diversity Visa program in 2010. Ceasing this political opportunity to further propel his anti-immigrant rhetoric, Trump declared that the Diversity Visa program brings in “the worst of the worst” and called on Congress to end the program. The individual who attempted to bomb the New York City subway at Times Square, Akayed Ullah, had entered through a fourth preference family-based petition. He was the child of the beneficiary of an approved I-130 petition filed by his parent’s US citizen sibling. Trump again jumped on the opportunity to criticize another lawful method of immigration and declared that such “extended-family chain migration” is “incompatible with national security.”

Given the backlogs in family-based preference categories and the rigorous screenings in both family-based petitions and the Diversity Visa program, it is difficult to understand how the President believes they are easily manipulated processes for dangerous individuals to enter the United States. Logically speaking, if someone truly wanted to exert harm on Americans, there are several other ways to do so without having to go through the hassle of the diversity visa program or family-based petitions.

The modern-day Diversity Visa program was created by Congress through passage of the Immigration Act of 1990 and officially went into effect October 1, 1994. The purpose of the program is to “further enhance and promote diversity” by allowing individuals from countries with low rates of immigration to the United States the opportunity to obtain a green card. There have been many examples of immigrants who have succeeded and benefitted America through this program. In order to apply for the program, an individual must be from a low-sending country and have a high-school education or its equivalent. For FY 2019, individuals from every country but Bangladesh, Brazil, Canada, China (mainland), Colombia, the Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Kora, the United Kingdom, and Vietnam are eligible to apply. If applicants fail to submit their registration within the rigid timelines, fail to meet the requirements explained above (i.e. do not possess a high-school education or its equivalent), or generally fail to follow the instructions in the application carefully, they will immediately be disqualified from consideration. Even being one of the nearly 100,000 individuals initially selected in the lottery is not a guarantee for admission, especially if the applicant has triggered one of the many grounds of inadmissibility in the Immigration and Nationality Act. Instead, lottery winners undergo rigorous background checks and interviews, all of which must be completed within a strict timeframe.

There was a time in our history where immigrants came to the country without being subjected to rigorous selection criteria, and only with a dream of starting a new life and doing well through sheer determination and hard work. This was America’s secret sauce – its ability to attract and assimilate people regardless of their status in society and only with a burning desire to succeed. The Diversity Visa program is redolent of America’s past, which still gives anyone who can qualify subject to rigorous screening – whether from Scandinavia or sub-Saharan Africa – a chance to dream, work hard and succeed in America.

Similarly, individuals seeking to immigrate through family-based petitions face crippling backlogs, in addition to the comprehensive security screenings prior to entering the United States. For many of these families, the process of immigrating to the United States can take upwards of several years or even decades. For example, if a US citizen originally from Mexico filed an I-130 on behalf of their married son or daughter, their child can expect to wait at least another 21 years, if not longer, before they can apply for their immigrant visas. And even once their priority date becomes current, there is no guarantee that a consular officer will find them admissible for entry into the United States. It has now become fashionable, even by the likes of USCIS Director Francis Cessna, to criticize so called chain migration as not being desirable and providing a conduit for immigrants to come to the United States to do harm. But this is just subterfuge by immigration restrictionists to curtail family-based immigration in exchange for the proposed RAISE Act. Although the RAISE Act purportedly promotes merit based immigration through a points system, it will keep out most, even many highly skilled individuals, and it is thus no wonder that mostly xenophobes have welcomed it so far.

Chain migration is not a legal term, it is a political term, which is conveniently bandied around by those who oppose immigration, including Trump appointed officials like the USCIS Director who should be objectively administering the law rather than infecting it with Trump’s and his own personal biases. For any rational immigration system to work, minor children of the sponsored person, whether through employment or family-based immigration, along with the spouse, must also be let in. If only the principal beneficiary is admitted on a permanent basis, no one will ever want to immigrate to the United States. While this may be the dream of xenophobes, to deny spouses and children of the sponsored immigrant to get green cards would be cruel and create an unworkable system. The honest xenophobic politician or government official should just advocate shutting down immigration altogether rather than hypocritically espouse it, but only object to chain migration. Objecting to chain migration means that you are advocating a total shut down of immigration. Moreover, every foreign national who has been admitted into the United States as a permanent resident can ultimately naturalize provided they meet the eligibility criteria. A citizen, whether naturalized or born in the United States, should be able to sponsor family members. If there was a sub-class of citizens who could not under law sponsor relatives out of fear that it would foster chain migration, there would be two tiers of citizens in America. This would go against the values of this country that treats all its citizens equally and gives them equal opportunities in all spheres of life. Worse still, it would Balkanize America. The second-class citizens would not feel integrated and assimilated into the fabric of the country. America has succeeded brilliantly and has become great because all citizens are considered Americans no matter who their parents are or where they came from.

An individual with a vendetta against the United States and seeking to exert harm on Americans is not going to go through the pain of such a process. Putting logic aside, as this Administration has done from the start, Trump has nevertheless deemed these methods of lawful entry to be incompatible with national security and avenues through which terrorists are able to sneak in. Immigration, through the chain migration bogeyman, has unfortunately become a focal point of this Administration’s racist and xenophobic rhetoric. They have and will continue to cling on to any and all violent acts committed by immigrants and use it as justification to severely limit immigration to the United States, despite the fact that immigrants are less likely to commit violent crimes than native born Americans.

Ascribing an entire population for the acts of an isolated few, who likely became radicalized in the United States long after their initial admission as immigrants, is ludicrous. Even a native born US citizen can become radicalized. Indeed, we do not see outrage against white American men every time a native-born white male shoots up a school, church, movie theater, concert, or literally any other venue imaginable. Nor have we seen substantive gun reform in an era of alarmingly high rates of deadly shootings. But yet, on the rare occasion that an immigrant does commit a crime, suddenly all immigrants have to answer for it and any avenue through which the violent individual entered the United States is criticized.   While there is clearly a logical nexus between a gun and a person’s evil intent, it is hard to find such a similar nexus with a person’s propensity to do harm and congressionally mandated visa programs. This is another one of Trump’s many hoaxes. Recall the one when he claimed that he would have won the popular vote against Clinton had 3 million illegal voters not voted in her favor.

Simply closing the door to all immigrants because a few individuals committed crimes will do nothing but hurt America in the long run. We have provided exhaustive evidence throughout our blogs describing the various ways in which immigrants have benefited the United States. Immigrants with all sorts of backgrounds contribute to the United States, and it is fallacious to think that only those with limited skills contemplated under the RAISE Act will. It is unclear why we have to continue justifying immigration in the face of such clear evidence. The solution will ultimately lie at the ballot box. Trump repeatedly criticized Ralph Northam in Virginia and Doug Jones in Alabama for being weak on the border and not supporting his wall. Yet, both defeated the candidates that Trump repeatedly promoted on Twitter as being tough on illegal immigration and supporting the wall. Scapegoating immigrants for electoral advantage may have succeeded once for Trump, but might not every time. The tide will turn as people realize that America’s greatness is being diminished if it no longer has access to its secret sauce.

Cyrus Mehta

The Role Of The Immigration Lawyer In The Age Of Trump

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Our role as immigration lawyers has never become more important since the morning of November 9, 2016. Notwithstanding his conciliatory speech after his upset win, President elect Donald Trump will have to deliver on some of his campaign promises that got him votes such as building a wall, extreme vetting and cancelling Obama’s executive actions such as the Deferred Action For Childhood Arrivals (DACA) program.

We are already getting a glimpse of the people who are being selected to be part of the immigration transition team. Kris Kobach has joined the team. He is avowedly anti-immigrant and was the architect of state enforcement laws, including Arizona’s notorious SB 1070, which includes the notorious “show me your papers” provision. SB 1070 authorizes local law enforcement to ask people for proof of their immigration status when there is “reasonable suspicion” that they might not be in the country legally. Kobach also coined the idea of “self-deportation” through attrition, which assumes that undocumented immigrants will leave on their own if the laws are applied harshly against them.

Another person who has joined the transition team is Danielle Cutrona who is Senator Jeff Sessions’ counsel on the Judiciary Committee. Senator Sessions is opposed to both legal and illegal immigration. He believes that even legal immigrants are bad for the United States.  When you have these sorts of people inducted into the immigration transition team, one can only imagine that they will want to implement as much as Trump’s vision on immigration, which he articulated in a fiery anti-immigration speech in Phoenix, Arizona:

  1. Begin working on an impenetrable physical wall on the southern border, on day one. Mexico will pay for the wall.
  2. End catch-and-release. Under a Trump administration, anyone who illegally crosses the border will be detained until they are removed out of our country.
  3. Move criminal aliens out day one, in joint operations with local, state, and federal law enforcement. We will terminate the Obama administration’s deadly, non-enforcement policies that allow thousands of criminal aliens to freely roam our streets.
  4. End sanctuary cities.
  5. Immediately terminate President Obama’s two illegal executive amnesties. All immigration laws will be enforced – we will triple the number of ICE agents. Anyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws and to have a country.
  6. Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.
  7. Ensure that other countries take their people back when we order them deported.
  8. Ensure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports.
  9. Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.
  10. Reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.

It may not be possible for Trump to implement his entire vision, as he would also need the cooperation of both houses of Congress. For example, Congress would have to agree to provide funding for Trump’s wall. However, when Kobach was asked about the wall, Kobach answered that there is “no question” that it would be built. “The only question is how quickly will get done and who helps pay for it.” Still, one is hearing that there is hedging on the election promises and the wall may no longer get immediate priority. While it would be nice to hope that all that Trump said was election blather, he has also been advised by the Center for Immigration Studies (CIS) whose goal and mission is to severely curtail immigration. If you take a look at their talking points to the next President on how to severely restrict immigration through administration actions, you will know what I mean. It is a scary 79-point list that if implemented will totally gut the system the way we know it.   Therefore, it would be a mistake to wait and see rather than taking action right away.

The low hanging fruit  is to cancel DACA (although I would prefer if they rather built the wall but left DACA untouched). There are hundreds of thousands of young people who have received benefits under DACA and have done extremely well in their careers. It would be a tragedy if DACA was rescinded, which is easy to do, since the policy was based on a memo of the Obama administration. Still, it will look bad on the Trump administration and the Republican party if this happens since jeopardizing the lives and careers of DACA recipients will generate much sympathy. Also, DACA recipients are active and know how to mobilize to protect themselves. Indeed, it is because of their effective activism that they were able to convince the Obama administration to implement DACA in the first place. Needless to say, DACA recipients should consider alternatives as soon as possible. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule (and since it is a regulation in the federal register, it cannot be cancelled as easily as DACA), which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  And even if DACA is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

Vulnerable immigrants need advocates more than ever before to defend and protect them. We have a new and renewed mission, and this should propel us forward and give us a new purpose. Trump’s immigration advisors will likely appoint hostile judges, officers and leaders in charge of immigration policy. He will be harsh in the enforcement of the immigration laws, and is likely to restrict business immigration in favor of an America first policy. There is a possibility that the Obama administration’s prosecutorial discretion policies may also get cancelled and people will be more susceptible to deportation. The proposed extreme vetting can become a nightmare, and for some, it could be a proxy for not being allowed to come into the United States at all. Immigration lawyers need to be strategic regarding advising clients to apply for citizenship and travel out of the US.  We will use our legal acumen and every skill to protect our clients and our client’s businesses. We will be the shield for them against all the hateful anti-immigration rhetoric that is bound to manifest itself even more from his supporters. We will do what we do best with a renewed sense of purpose.

Finally, we sincerely hope that Donald Trump as a President with respect to his immigration policies will be different from Donald Trump as a candidate. A new President elect should herald optimism in everyone rather than cause fear to hundreds of thousands of vulnerable immigrants. There has been no statement from Trump to allay their fear. Why should we think that Trump has changed after all the hateful rhetoric he spewed against immigrants and refugees? Just like a leopard does not change its spots, a bigot will always remain a bigot. The fact that Kobach and Cutrona have joined the team only heightens such fears. After 9/11, although we feared the worst, there were no drastic limits or moratoriums due to the resilience and strength of the immigration movement. 11/9 poses yet another grave challenge, but we are ready to brace for the fight to defend immigrants in the age of Trump and xenophobia. And prevail we must as the cause is righteous and just.

(This blog is for informational purposes, and should not be considered as a substitute for legal advice)

Cyrus Mehta

Immigration Perspectives On The Eve Of The 2016 Presidential Election

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The United States has always prided itself as a nation of immigrants. Unfortunately, however, there has been disturbing rhetoric against immigrants and refugees in the current presidential election season. This has been exemplified in racist taunts and epithets against Hamdi Ulukaya, a Turkish immigrant of Kurdish descent, who is the founder of the highly successful Chobani business that makes Greek yogurt and employs about 2,000 people, some of whom are refugees. Chobani’s annual yogurt sales are $1.5 billion.   According to a recent New York Time article, false stories have been published by right wing news outlets like Brietbart News and WND claiming that Mr. Ulukaya wants “to drown the United States in Muslims.” Some articles have also drawn a connection, again falsely, between Chobani hiring refugees and a spike in tuberculosis. This has led to unfortunate calls on Facebook and Twitter to boycott Chobani.

The Alliance of Business Immigration Lawyers, better known as ABIL,  of which I am a member, has in a press release rightly condemned such xenophobic attacks against a successful immigrant entrepreneur who has created jobs in the United States. It is already difficult for a foreign entrepreneur to obtain legal status in the United States under the current broken immigration system, and to then be successful and create thousands of jobs. Mr. Ulukaya is a shining example of an immigrant entrepreneur who has overcome these obstacles to benefit the United States. “Foreign born entrepreneurs like Mr. Ulukaya must be welcomed rather than attacked in such a shameful and despicable manner,” ABIL’s President Steve Garfinkel stated.  “These attacks go against the grain of what America represents – a nation that has always welcomed those to its shores who wish to better themselves and contribute to the country.”

The attacks against Chobani’s founder is only one such unfortunate incident. Donald Trump has used hateful rhetoric against immigrants from the start of his campaign. While every prior Republican nominee in recent times has spoken in glowing terms about immigrants being an asset to America, Trump emphasized only on the dark aspects, and hyped up fears of immigrants being a threat to the American people. This is despite the fact that studies have proved that newcomers are less likely to commit crimes than the native population. Trump was also fond of reading the lyrics from Al Wilson’s 1968 R&B hit song “The Snake” in his campaign rallies.  While this is a catchy tune, Trump has now corrupted the song by associating it with his opposition to Muslims. He first called for a ban on Muslims entering the United States, including Syrian refugees, and recently modified it by calling for a suspension of immigration from areas of the world when there is a proven history of terrorism against the United States or its allies. When Trump kicked off his campaign on June 16, 2015, he gave  a speech in which he called immigrants from Mexico rapists and criminals. “When Mexico sends it people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people,” he said. He has been proudly proclaiming till the very end that he would build a big wall on the Mexico-US border, and that Mexico would eventually pay for it.

It is no small wonder that there has been a surge of early Hispanic voters in states like Nevada and Florida that could potentially lead to Trump’s defeat.  Regardless of one’s party affiliation, it is hoped that the results of this election affirm that all immigrants be respected for the benefits they bring to the United States, whether as entrepreneurs or as hard working employees. The results should also speed up much needed and urgent reform of the immigration system that can tap into the talents of more immigrants like Mr. Ulukaya who bring growth and prosperity to America.  Finally, the recent revelation that Melania Trump was paid for modeling assignments in the United States while she was still on the B visa, and prior to obtaining the H-1B visa, goes to show that the line between legal and illegal immigrants is fuzzy at best. Someone in legal status can fall out of status and someone who is illegal can suddenly become legal. This is not a black and white issue as Trump and his anti-immigrant enablers have seen it.  The following extract from the Supreme Court’s decision in Plyler v. Doe, 457 US 202 (1982), which held that undocumented children could not be deprived of a public education:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

The lessons from these elections should point lawmakers to recognize that putting up a wall is not a solution; rather the best way to reduce illegal immigration, and reforming the system as a whole, is by providing more pathways to legal immigration into the United States. It would also be a good idea for any future presidential candidate to express compassion towards immigrants and refugees, consistent with America being great because of its immigrants, rather than engage in hateful rhetoric. It does not pay during election time.

Cyrus Mehta

Immigration Inadmissibility, Legal Ethics And Marijuana

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Although medical and recreational marijuana activities are illegal under federal law, at least 25 states have legalized marijuana for medical use. Colorado, Washington, Oregon and Alaska have gone even further by legalizing some forms of recreational marijuana, including its production and sale.

This conflict between federal and state law creates a curious anomaly for the foreign national who wishes to enter the United States either as a temporary visitor or as a temporary resident. If a foreign national wishes to invest in a marijuana business in a state where it is legal, and even endeavor to obtain an E-2 investor visa, this person would likely be rendered inadmissible under federal statutory immigration provisions.

Under 212(a)(3)(A)(ii) of the Immigration and Nationality Act (INA), foreign nationals can be found inadmissible if the authorities know, or have reasonable ground to believe, that they seek to enter the United States to engage in any unlawful activity. Also, under INA 212(a)(2)(C), a foreign national can also be deemed inadmissible if the authorities know or have reason to believe that the person is or has been an illicit trafficker in any controlled substance as defined under 21 U.S.C. 802, which includes marijuana.

If the foreign national has actually used marijuana in a state where it is legal, or undertaken other legal business activities involving marijuana in that state, this person can be found inadmissible for admitting to committing acts which constitute the essential elements of a law relating to a controlled substance pursuant to INA 212(a)(2)(A)(i)(II).

The Department of Justice has set forth guidance in a Memorandum by Deputy Attorney General James M. Cole (“Cole Memorandum”) explaining circumstances where it will exercise prosecutorial discretion and not enforce the law. Specifically, the Cole Memorandum states that it will defer to state law enforcement concerning state laws with respect to marijuana activities, although such discretion will not be applied relating to the following eight circumstances:

  1. Distribution to minors;
  2. Money flows to criminal enterprises;
  3. Prohibition diversion of marijuana from states where marijuana is legal to other states;
  4. Use of legal marijuana as a pretext for trafficking other illegal drugs or activity;
  5. Preventing violence or the use of firearms in connection with marijuana collection or distribution;
  6. Preventing drugged driving or other public health issues;
  7. Preventing marijuana growth on public lands; and
  8. Preventing marijuana possession on federal property.

Although the Cole Memorandum makes clear that it will not enforce marijuana activities that do not implicate its eight priorities in states where it is legal, it still considers manufacture, possession and distribution of marijuana as a federal crime. Thus, it may be difficult for a non-citizen who has been denied a visa to invoke the Cole Memorandum as a defense in demonstrating that the proposed marijuana activities will not be considered as an unlawful activity. Until there is a federal law that legalizes specific marijuana activities, the foreign national will find it extremely difficult to be admitted into the United States to pursue such activities even in states where it is legal.

It is also likely that a consul may question one who wishes to enter to undertake marijuana activities whether he or she has personally used marijuana, which could then potentially count as an admission to a violation of a law involving a controlled substance. However, in order to count as an admission, the BIA set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). If this strict protocol is not adhered to, then a non-citizen should arguably not be considered to be have admitted to committing acts which constitute the essential elements of a law relating to a controlled substance pursuant to INA 212(a)(2)(A)(i)(II).

If the foreign national wishes to directly set up or be involved in a marijuana business in a state where it is legal, which includes its sale or distribution, this would most likely be problematic under federal immigration law. The question is whether activities that are more remote, such as a foreign national seeking to enter the United States on an H-1B visa to join an advertising firm as a creative director where one of its clients is a marijuana business in Colorado, would be considered equally problematic under federal immigration law. The H-1B worker will direct the advertising strategy for this client among several other clients, who are not in the marijuana business. Such a person seeking admission under the H-1B visa who is remotely connected to the marijuana business in another capacity should not be found inadmissible under the immigration laws.

The same reasoning should apply to a foreign national lawyer who will be employed in a New York law firm that specialized in health law. The law firm requires its lawyers to advise hospital clients in complying with New York’s Compassionate Care Act (“CCA”) – a law permitting the use of medical marijuana in tightly controlled circumstances. Under the CCA, health care providers and other entities may apply to be selected as Registered Organizations authorized to manufacture and dispense medical marijuana. The lawyer will assist clients, among other things, in applying to be selected as a Registered Organization, and would also advise thereafter with respect to compliance.

New York Rule of Professional Responsibility 1.2(d) provides:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client

Rule 1.2(d), variations of which are incorporated in most state bar rules of professional responsibility, is one of the most important ethical rules. It point-blank prohibits a lawyer from advising a client to engage in illegal or fraudulent conduct. Rule 1.2(d), however, provides an exception for the lawyer to discuss the consequences of the proposed illegal conduct even though it does not allow the lawyer to assist the client with respect to the illegal conduct. It would be difficult for a New York lawyer to comply with Rule 1.2(d) with respect to advising a client under the CCA, as it would require the lawyer to counsel the health care client about medical marijuana activities that the lawyer knows is illegal under federal law although it is legal under the New York law. Under the CCA, the lawyer would not be able to competently represent the client by resorting to the exception under Rule 1.2(d), which is to “discuss the legal consequences of any proposed course of [illegal] conduct with a client.” Such a Registered Organization client would require active advice regarding the manufacture and distribute medical marijuana in compliance with the CCA.

New York State Bar Ethics Opinion 1024 endeavors to resolve this conundrum for the New York lawyer by permitting him or her to “assist a client in conduct designed to comply with state medical marijuana law, notwithstanding that federal narcotics law prohibits the delivery, sale, possession and use of marijuana and makes no exception for medical marijuana.” N.Y. State 1024 took into consideration the Cole Memorandum’s potential non-enforcement of federal law in states where marijuana activities have been rendered legal. While lack of rigorous enforcement of a law does not ordinarily provide a green light for the lawyer to advise a client to engage in activities that violate the law, N.Y. State 1024 took into consideration that New York state had explicitly authorized and regulated medical marijuana, and the federal government had indicated in the Cole Memorandum that it would not take measures to prevent the implementation of state law. Accordingly, pursuant to N.Y. State 1024, a lawyer may give legal assistance to a client regarding the CCA that goes beyond “a mere discussion of the legality of the client’s proposed conduct.” Consistent with similar opinions from ethics committees in Arizona and Kings County, Washington where recreational marijuana activities have been legalized, N.Y. State 1024 held that “state professional conduct rules should be interpreted to promote state law, not to impede its effective implementation.” This is not to say that all ethics opinions are in concert with N.Y. State 1024. A recently issued Ohio ethics opinion goes the other way by limiting the lawyer’s advice to determining the scope and consequences of medical marijuana activity, which is legal in Ohio. It also goes on to state that a lawyer who personally uses medical marijuana, even if legal in Ohio, may adversely reflect on a lawyer’s honesty, trustworthiness, and overall fitness to practice law. Just as lawyers are caught in a state of flux due to the conflict between state and federal law, so are other professionals, such as Certified Public Accountants. Businesses engaging in legal marijuana activities in states where it is legal are not allowed to take business expense deductions for federal income tax purposes for activities illegal under federal law, although they have to declare income from both legal and illegal activities, but may be allowed to deduct expenses under state law.

Keeping this framework in mind, if a foreign lawyer applies for an H-1B visa to join a New York law firm that has among its clients Registered Organizations that need advice regarding compliance under New York’s CCA, would that lawyer be found inadmissible when applying for the H-1B visa at an overseas US Consulate? She should not, but if found inadmissible, this lawyer should forcefully make the case that her conduct would be found ethical pursuant to N.Y. State 1024, and thus should not be considered to be coming to the United States to engage in unlawful activity pursuant to INA 212(a)(3)(A)(ii). It is more likely that visa applicants will be denied entry if they are entering the United States to directly invest in a marijuana business, but probably less likely to be denied if they are performing activities that are more attenuated such as the New York lawyer advising compliance under the CCA or a computer professional who will be designing a social networking site for marijuana consumers. Just as some state bar ethics committees are finding ways to justify a lawyer’s conduct with respect to advising on marijuana activities deemed legal in many states, but illegal under federal law (although not always enforced if the state considers the activity legal), lawyers who represent visa applicants should also be advancing similar arguments with the immigration agencies.   Until such time that there is a change in the federal law that legalizes marijuana activities, lawyers should be pushing the envelope on behalf of clients who seek visas relating to lawful marijuana-based activities in certain states, while at the same time strongly cautioning them of the risks of adverse immigration consequences. Finally, lawyers advising such clients must carefully consult with ethics opinions in their states to determine what they can and cannot do under Rule 1.2(d).

Cyrus Mehta

Deconstructing the Myth of the Criminal Immigrant

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Donald Trump began his presidential campaign last year by accusing Mexican immigrants who cross the border as being criminals and rapists, and ended with the same sentiment in his acceptance speech of the Republican nomination by thundering that “nearly 180,000 people with criminal records ordered deported from our country are tonight roaming free to threaten peaceful citizens.”

While every prior Republican nominee in recent times has spoken in glowing terms about immigrants being an asset to America, Trump emphasized only on the dark aspects, and hyped up fears of immigrants being a threat to the American people. This is despite the fact that studies have proved that newcomers are less likely to commit crimes than the native population.

Still, even if immigrants commit crimes in lesser proportion to native born Americans, as long as they have not become citizens, they pay a greater penalty than US citizens when they commit the same crime. While both may be punished under the criminal justice system, the immigrant after serving his or her sentence is likely to face deportation.  It would seem fair that once a person has been punished and reformed, there should be no further penalty. Unfortunately, that is not the case with the non-citizen. Even a long term legal immigrant with a green card can get deported from the United States after serving a sentence.  The sentence may be relatively minor or inconsequential under the criminal justice system, but can be consequential for the immigrant. For instance, an immigrant who is convicted of a misdemeanor theft but received a one year sentence that was suspended would still be considered to have been convicted of an aggravated felony. When an immigrant is convicted of an aggravated felony, there are fewer opportunities for defending oneself against removal proceedings,  and often times one is also not eligible for waivers.

So when Trump spoke about immigrants roaming free with criminal backgrounds, he sought to stereotype and dehumanizes all immigrants. Some of these immigrants may have committed minor crimes from years ago, such as driving without a license, and may be the subject of prosecutorial discretion because they have family members who are US citizens. A significant percentage of their so called crimes involve civil immigration violations and nonviolent offenses, and thus it was patently false to suggest that they “threaten peaceful citizens.” Even the U.S.  Supreme Court has recognized that a non-citizen with a removal order cannot be indefinitely detained. In Zadvydas v. Davis, for example, the U.S. Supreme Court held that it was unconstitutional to indefinitely detain a non-citizen who has been ordered removed beyond a six month period.  Some persons in the group that Trump demonized may have orders of removal that are under judicial review, and ICE has decided  that it doesn’t make sense for them to be locked up indefinitely while the petition for review is pending. Another possibility is that in some cases the “criminal record” is a single nonviolent misdemeanor which does not render the person a removal priority. Trump might also have been counting people whom an IJ has ordered removed, but who have an appeal pending with the Board of Immigration Appeals, and who are out on bond.

When we as a nation accept immigrants, and America’s greatness is because it is a nation of immigrants, it is inevitable that a small group within the immigration population will commit crimes, both major and innocuous. A college student who is an immigrant may be convicted of possession of marijuana joint (outside Colorado of course), and when she travels and returns, she may be found inadmissible and put into removal proceedings. It would be unfair to demonize her by branding her as a “criminal alien” and being a threat to “peaceful citizens.” Immigrants should face the same penalty as a U.S. citizen when they are convicted of crimes. If the purpose of punishment is deterrence or reformation, and that is sufficient for the citizen, there is no need to subject the non-citizen immigrant to the additional draconian penalty of deportation, which can potentially result in the permanent banishment of that individual from America.

Finally, Trump in true demagogic fashion only focused on the anxieties and fears caused by immigrants. There was scant mention of their achievements and how they have benefited America in every sphere. Where was the sunny optimism about America being a welcoming country to people who can only benefit it?  Or America even being kind and forgiving – especially to the immigrant who may have committed a crime, but has long ties and family here, and has completely rehabilitated after serving his sentence?  If Trump may have been successfully in stoking fears in a few people, he also succeeded in galvanizing many more people to vote to throw him out so that America can continue to be this sunny, optimistic and welcoming country.

 

 

 

Cyrus Mehta

Brexit and Xenophobia vs. Immigration and Innovation

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In the backlash against globalization, as seen in the vote in favor of Brexit, there is an even more insidious backlash against immigration. The world has prospered because of the expansion of trade and technology, and also due to the free movement of capital and people. Millions of the world’s poor people have been lifted from poverty as a result of globalization. In turn, people in richer countries have been able to buy products and services at lower cost. Businesses have also been able to sell goods and services outside beyond national boundaries, thereby becoming more profitable and hiring more people.

Politicians like Donald Trump do not see it this way, who wish to tear up trade deals such as the North American Free Trade Agreement. So does Bernie Sanders, who while speaking with a softer voice, appears to be in harmony with Trump in his critic of globalization and trade deals. While Hillary Clinton is probably in favor of trade deals, she back tracked on the Trans-Pacific Partnership, after being attacked by Sanders during the primaries. It is true that globalization does not always have winners. Those who get displaced need to land on a safety net so that they can re-train and develop new skills. The safety nets, unfortunately, are not keeping up with the enormous changes in technology that increase productivity through innovative technologies, which include rapid strides in robotics and artificial intelligence. During this transition that promises a better future for all in the long run,  politicians exploit this shortcoming to lash out against immigrants in their countries and foreign-based workers outside who are paid less, when the true disrupter is technology and innovation.

As Fareed Zakaria so succinctly puts it:

“Manufacturing as a share of all U.S. jobs has been declining for 70 years, as part of a transition experienced by every advanced industrial economy. All other developed countries from Australia to Britain to Germany — which is often seen as a manufacturing powerhouse — have seen similar declines over the past several decades. Even South Korea, which has tried many kinds of protectionism, has experienced a drop in manufacturing as it has become a more advanced economy. This shift is partly a result of free trade, but serious studies show that the much larger cause is technology. One steelworker today makes five times as much steel per hour as he or she did in 1980.”

Immigration lawyers know first- hand how free trade and immigration has been beneficial for America. It is due to NAFTA that Canadians and Mexicans can enter the United States on TN visas to work for US employers who seek them out even while the H-1B visa, the main workhorse nonimmigrant visa, has hit the annual numerical cap. Singaporeans and Chileans can enter the United States on H-1B1 visas that ensue from trade deals and so can Australians on an E-3 visa. Nationals of many countries that have treaties with the United States can come here on E-1 and E-2 visas as investors and traders. While the L-1 visa does not ensue from a treaty, it too is premised on the needs of multinational corporations, big and small, in a globalized world. Intra-company transferee managers, executives and specialized workers can work for a US branch, subsidiary, parent or affiliate of a foreign company on L-1 visas. Despite there not being H-1B visas, the fact that other visas are still available, allow US companies to remain globally competitive by tapping into skilled and professional foreign workers. If it were not for these visas, the entry of skilled workers into America would be at a standstill.

We need to embrace immigrants, and view them as an asset, rather than as people who steal jobs and work cheaply. Immigration not only provides a complimentary workforce, but also generates innovation that will create the next generation of jobs that require new skills. If we have a robust and welcoming immigration system that would not shackle the worker to one employer, but would allow mobility and a quick pathway to permanent residency, then there would be no suppression of wages. Everyone would be on a level playing field, and market forces would ensure that wages remain competitive. Indeed, by encouraging more movement of people to America and other richer countries, it would have the effect of wages increasing worldwide and potentially a convergence in wages for highly skilled people. With the advent of technology that has increased productivity manifold times, manufacturing would be based in places not where the wages are lower, but where there is an abundant supply of skilled workers, technology and innovation.  If the free movement of people is restricted, employers will be forced to move operations to other countries, thus perpetuating wage disparity.

This brings us to the H-1B visa program that has a mere 65,000 visas, plus an additional 20,000 for those who have graduated with advance degrees. Due to the well publicized layoffs of US workers at companies like Disney by H-1B workers, there appears to be no appetite by Congress to increase H-1B visa numbers even though there is a dire need to do so. By continuing to limit and stifle the H-1B program, US employers will remain less competitive and will not be able to pass on the benefits to consumers. We need more H-1B visa numbers rather than less. We also need to respect H-1B workers rather than deride them, even if they work at IT consulting company, as they too wish to abide by the law and to pursue their dreams in America.  The best way to reform the H-1B program is to provide more mobility to H-1B visa workers. By providing more mobility, which includes being able to obtain a green card quickly,  H-1B workers will not be stuck with the employer who brought them on the H-1B visa, and this can also result in rising wages within the occupation as a whole. Mobile foreign workers will also be incentivized to start their own innovative companies in America, which in turn will result in more jobs. This is the best way to reform the H-1B visa program, rather than to further shackle it with stifling laws and regulations, labor attestations and quotas. Market forces can better control the H-1B program from abuses and distortions than labor attestations!

As we meditate over yet another July 4th weekend celebrating America’s independence, we should note that the world faces a stark choice today. Should countries be more open or less open? The ideological line between left and right is blurring as another more distinct line is being drawn between open and closed nations. America was founded on principles of openness and its ability to embrace people from all over the word, but that may change if the proponents for a closed and isolated world have their way.  If America becomes closed, just like Britain will likely be after Brexit, there will be fewer opportunities for businesses to sell outside national borders, and they will be further stymied and unable to grow if they cannot gain access to the best talent. Moreover, innovation will get stifled if the best people from around the world cannot cluster together to develop new products and change paradigms. Immigration is what fuels these advances, which in turn promises more growth and prosperity. Do we want to revive the industries of the past to bring back those illusory jobs, such as steel manufacturing or coal mining,  after technology has already marched on, or do we want to imagine about autonomous vehicles (notwithstanding the recent Tesla car setback), nanotechnology that will automatically repair our cells and space travel through a wormhole?  Brexit and xenophobia go hand in hand. Will America buck this trend in favor of immigration and innovation when it goes to the polls in November 2016?

Cyrus Mehta

Perspectives On Immigration In 2016 Through My Crystal Ball

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2016 portends to be an action packed year on immigration. While we continue to watch Donald Trump touting his absurd proposal to  temporarily ban Muslims, we can feel assured that it will likely not go anywhere. This is not the first time that America has witnessed such extreme anti-immigrant sentiments. It happened before in the mid-1800s when the Know Nothing party directed its ire against Irish Catholics, and later on in that century when the Know Nothings faded,  other anti-immigrant demagogues railed against the inferiority of  Jews and Southern European immigrants.

These earlier demagogues preceding Trump included Samuel Morse,  well known as the inventor of the telegraph and Morse code, who like Trump does with Muslim immigrants warned against Catholic immigrants whom he thought would be more loyal to the Pope:

How is it possible that foreign turbulence imported by shiploads, that riot and ignorance in hundreds of thousands of human priest-controlled machines should suddenly be thrown into our society and not produce turbulence and excess? Can one throw mud into pure water and not disturb its clearness?

A leading sociologist of his time in the late 19th century Edward Ross stated that Jews were “the polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain.” Regarding Italians, Ross noted that they “possess a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces, small or knobby crania and backless heads.”

The good news is that all of these anti-immigrant movements soon became irrelevant, and one does not need a crystal ball to predict that Trump, regardless of his current rise in the polls,  will also be relegated to the trash bin of history.

This week, the Supreme Court agreed to hear the challenge to the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) programs. The key issue is whether the President overstepped his powers provided to him in the INA by deferring the removal of a class of people who are in the United States in an undocumented capacity or not. My crystal ball reveals that the majority of justices in the Supreme Court will agree with the President. It is well acknowledged that the Executive Branch does have authority to prioritize on who should be removed from the country, given the limited funding that Congress gives it every year. Even if the Supreme Court required briefing on another question – whether the President is required to “take Care that the laws be faithfully executed” under Article II, Sec. 3 of the Constitution – it is hard to imaging a Supreme Court ruling that would require the President to enforce the law against each and every of the 11 million or more who are not authorized to remain in the United States.  At current levels of funding, it is manifestly impossible for ICE to deport most undocumented persons in the United States.  Even at the historically high levels of removal under President Obama who has been termed by many as the Deporter in Chief, some 400,000 per year were removed, which amounts to only 3-4% of the total undocumented population.   The government also exercises prosecutorial discretion in criminal matters, and no one bats an eyelid,  and has also developed guidelines regarding prioritizing enforcement with respect to states that have legalized marijuana. Accordingly, it is difficult to see how the President can be forced to take a different position with respect to immigration enforcement.

The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. During the presidencies of Ronald Reagan and George H. Bush, significant number of family members of recipients of the 1986 legalization program were allowed to remain in the United States through executive actions.  Even if the law suit alleges that the President does not have authority, now is a good time to remind critics about Justice Jackson’s famous concurrent opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952), which held that the President may act within a “twilight zone” in which he may have concurrent authority with Congress. Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that President Truman could not seize a steel mill to resolve a labor dispute without Congressional authorization, the executive branch under the recent immigration actions is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Although President Truman did not have authorization to seize the mill to prosecute the Korean War, Justice Jackson laid a three-pronged test to determine whether the President violated the Separation of Powers clause. First, where the President has express or implied authorization by Congress, his authority would be at its maximum. Second, where the President acts in the absence of congressional authority or a denial of authority, the President may still act constitutionally within a “twilight zone” in which he may have concurrent authority with Congress, or in which its distribution is uncertain. Under the second prong, Congressional inertia may enable, if not invite, measures of independent presidential authority. Finally, under the third prong, where the President acts in a way that is incompatible with an express or implied will of Congress, the President’s power is at its lowest and is vulnerable to being unconstitutional.

Through the Immigration Accountability Executive Actions, the President is likely acting under either prong one or two of Justice Jackson’s tripartite test. INA 103(a)(1) charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien..”  INA  212(d)(5), which Congress also enacted, authorizes the Executive to grant interim benefits for “urgent humanitarian reasons” or “significant public benefits.”  Incidentally, parole can also be used to allow promising entrepreneurs to come to the United States and establish startups, although this and many other executive actions to help businesses have not been attacked in the law suit. Moreover, INA 274A(h)(3) provides authority to the Executive to grant employment authorization. Even if such authority is implied and not express, Congress has not overtly prohibited its exertion but displayed a passive acquiescence that reinforces its constitutional legitimacy. It should be noted though that the Fifth Circuit Court of Appeals in upholding the preliminary injunction noted that this provision did not provide authority for the President to issue work authorization under DAPA.   In terms of employment authorization issuance, Congress has rarely spoken on this except via INA § 274A(h)(3), so that many instances of employment authorization issuance are purely an act of executive discretion justified by that one statutory provision. If the Supreme Court limits the President’s authority under INA 274A(h)(3), it could jeopardize many other immigration programs under which work authorization is issued through this provision. Furthermore, INA 103(3) confers powers on the Secretary of Homeland Security to “establish such regulations, prescribe such forms or bonds, reports, entries and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act.”

Another more recent case that cuts in favor of President Obama is  Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), which  articulated:

“[a] principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their   families,  for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.”

Another key issue is whether states should be even permitted to sue the federal government on immigration enforcement policy. If President Obama loses, it would then be an open invitation for any cantankerous state politician to bring a law suit against the federal government over an immigration policy that he or she dislikes. The ability of a state to harass the federal government could be endless. For instance,  a state could sue the federal government for granting deferred action to other groups of non-citizens, such as victims of domestic violence or crime victims or widows and widowers of US citizens, like the federal government has done in the past. These sorts of challenges from states would undermine the long established doctrine that immigration policy is within the purview of the federal government and Congress, and that the federal government has that discretion with respect to enforcement, as upheld in Arizona v. United States. Another concern for upholding preemption of federal immigration law from interference by states is the concern about the relationship between immigration and foreign affairs. See Toll v. Moreno, 458 U.S. 1 (1982); Hines v. Davidowitz, 312 U.S. 52 (1941).  If a state were allowed to sue each time the federal government issued a policy and blocked it, this would upset the long acknowledged preemption doctrine relating to immigration. If there is a disagreement in how the Executive Branch implements immigration policy, it is for Congress to intervene by changing the law rather than for states like Texas to file a law suit.

Ultimately, Justice Kennedy will most likely cast the deciding vote in upholding DAPA, but my crystal ball hints that other justices from the conservative wing such as Justice Roberts may concur, due to their abhorrence on broadening the standing doctrine under Massachusetts v. EPA, which was essentially a liberal decision that gave Massachusetts standing to force the EPA to issue a rule to regulate greenhouse gases. On a personal note, it is highly abhorrent to equate the harm caused by pollutants with the supposed harm caused by immigrants, who will more likely benefit than harm the state through their tax dollars and many other contributions.

On the business immigration front, things do not look so bright unfortunately. The H-1B cap filing season will again take place this April 2016, and the cap will surely be hit within the first five days of April, and Congress will not lift a finger to increase the cap. Indeed, it will be fortunate if it does not lift that finger since the current mood in Congress is to restrict the H-1B, along with the L-1 visa programs, even further. It is better to have the H-1B program in place as is, as further restrictions could also affect those who are already in H-1B status, and it would be harder for them to seek H-1B extensions through their employers under a new law.

Regarding forward movement in the employment-based dates, although the filing dates for the EB-2 and EB-3 for India and China have remained the same when they were abruptly pulled back on September 25, 2015, the December 2015 Visa Bulletin  predicted the following:

China: Forward movement of this date during FY-2015 has resulted in a dramatic increase in demand. Little, if any movement is likely during the coming months.

India: Up to eight months.

EB-2 China actually did creep forward in February from 01FEB12 to 01MAR12, when the above-quoted predictions said there would be “Little, if any movement”, and EB-2 India has already advanced more than a year from 01JUN07 in December to 01AUG08 in February despite being predicted to move only “Up to eight months”, so the predictions may have been a bit overly pessimistic.  My crystal ball predicts some forward movement over the remainder of the year,  but alas, with regards to the movement in the filing dates, my crystal ball has become cloudy as it fails to understand the logic of the government in not moving the filing dates correspondingly forward. Perhaps, the Mehta v. DOL lawsuit will force the government to provide some clarity, or the government will some day realize that it can move the filing dates substantially forward based on its historic broad interpretation of visa availability under INA 245(a)(3). But for now my crystal ball fails me, which is most unfortunate, as skilled immigrants who are legally in the United States deserve more clarity than anyone else.

 

Cyrus Mehta

THE LABORATORIES OF DEMOCRACY: STATE INITIATIVE AND PROMOTION OF IMMIGRATION REFORM

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By Gary Endelman and Cyrus D. Mehta

Although states have been experimenting with their own initiatives on immigration, they have been related to mainly punitive enforcement laws, the most notorious being Arizona’s SB 1070. Section 2(B) of the Arizona law, which was upheld by the Supreme Court in Arizona v. USA, requires police officers to determine the immigration status of anyone they stop if they have a “reasonable suspicion” that the person in “unlawfully present in the United States.” While such punitive laws have received the most media attention, other states have been experimenting with initiatives that attract immigrants. 
But state laws need not always be punitive. If we have the eyes to see them, examples of positive state actions on immigration are all around us, such as the issuance of driver’s licenses to undocumented immigrants in California and Connecticut.  Many of the progressive achievements in modern American history, such as progressive income taxation, women suffrage, popular election of senators, wage and hour laws, occupational safety, and most recently health care and same sex marriages, to name but a select few, first appeared on the state level. The many instances where federal intervention has been necessary to protect civil rights against state abuse should not blind us to the possibility that state action can also be a force for good. State action on immigration harkens back to salad days of our national existence. It is certainly true that, for the first century of American independence, there were no illegal aliens in a national sense for the simple reason that Congress had not yet placed any limits on immigration and would not do so until 1875. This incorrectly assumes that, prior to the Civil War, the states had no proper constitutional role to play in regulating immigration. A leading scholar has called this period of our history “ the lost century of American immigration law.” See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993). The federalization of US immigration policy is a relatively recent historical development, dating as it does from the late 19th century, largely in response to inadequate and ineffective state and local efforts. Not until the early years of the last century would the states cease to play an active role in shaping American immigration policy. What is happening now, therefore, is not a new approach but is a selective incorporation of what what is the original American approach on immigration. Long ago, Justice Brandeis recognized in that federalism offered a constitutional framework for experimentation and creativity: 

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country…

New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J. dissent)

A case in point is Massachusetts’s launch of the Global Entrepreneur in Residence program. The GEIR is part of the 2014 Economic Development Bill, which facilitates partnerships with institutions of higher education such as universities to provide valuable, relevant part-time work opportunities to foreign graduates who are entrepreneurs and want to grow their companies, but cannot remain in the United States due to the H-1B visa annual cap. The university, as a cap exempt employer under INA section 214(g)(5)(A), can sponsor a foreign national who will not be counted towards the numerical limitations in INA section 214(g)(1).  Non-profit affiliates to institutions of higher education can also qualify as cap-exempt employers. 
So far so good, but there is a golden nugget by way of INA section 214(g)(6) that allows one who has been sponsored by a cap exempt  university employer to accept concurrent employment with an employer who is subject to the H-1B numerical limitation. INA section 214(g)(6) reads as follows:

Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b) of this title, who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5). 

The magic word in section 214(g)(6) is “ceases.” In other words, so long as the foreign national has not ceased to be employed with an H-1B cap-exempt employer, he or she can be approved for an H-1B visa through a cap-subject employer without regard to the H-1B annual numerical limitation. Once the H-1B visa petition through the cap-subject employer is approved, according to a May 30, 2008 USCIS Policy Memo, even if the foreign national ceases employment at the cap exempt employer, he or she may continue to remain in H-1B status through the cap-subject employer, although a subsequent extension request will get denied unless there are new H-1B cap numbers available at the time of the new filing.  
Vivek Gupta is one such recipient of the GEIR program. The University of Massachusetts, according to the CNN news story, sponsored him in the university’s Venture Development Center as an “entrepreneur in residence,” where he will advise other founders of startup companies. This would allow Gupta’s own startup WealthVine, a cap subject employer, to sponsor him.  While we do not know whether Gupta’s H-1B visa petition through his company got approved, the GEIR would allow entrepreneurs like Gupta to work for their companies in H-1B visa status, which otherwise may not have been available to them due to the annual H-1B limitation. The USCIS Entrepreneurs Pathways portal provides a guide to how founders can use their startups to apply for H-1B visas. 
Michigan is another state that is actively innovating to attract top foreign talent. GOP Governor Snyder of Michigan will support those applying for the green card through the National Interest Waiver. While the specifics of Michigan’s plan have not yet been spelt out, it appears that Michigan will support applicants for the National Interest Waiver who reside in Michigan and who contribute to Detroit’s economic growth. There is ample scope for states to further develop the standards under the National Interest Waiver pursuant to President Obama’s November 20, 2014 Executive Action. Indeed, one of the Executive Action memos entitled Policies Supporting U.S. High Skilled Businesses and Workers acknowledges the under-utilization of the National Interest Waiver, and states can assist the DHS in establishing criteria for supporting applications from entrepreneurs and others that promote economic growth in the state. The same memo also indicates that DHS will use its “significant public benefit” parole authority under INA 212(d)(5) to develop criteria to bring in promising entrepreneurs who do not yet meet the National Interest Waiver cut. Here too states can provide input regarding developing criteria, and supporting entrepreneurs’ applications to the federal government when applying for parole to come to the United States. 
In the same vein, a state can designate certain occupations as shortage occupations, which may assist the Department of Labor in more easily certifying a labor certification  pursuant to INA § 212(a)(5) of an employer filed on behalf of a non-citizen resident in the state. A state can be a more effective judge of shortage occupations than the federal government, and if a labor certification is filed on behalf of a non-citizen in that particular state designated shortage occupation, the DOL may be more influenced in making a favorable determination on the labor certification. In fact, increased involvement by the states in identifying labor market shortages in their jurisdictions is precisely what Congress had in mind when in created the modern system of labor certification in 1965. Rather than a hyper-technical system of individualized recruitment, Congress thought it was setting up a structure in which the states would funnel information on job vacancies to their federal unemployment insurance colleagues that would then guide the Secretary of Labor:

The system set up by the DOL after 1965 was exactly what Sen. Edward M. Kennedy (D-Mass.) had promised Congress when he served as the floor leader for this legislation: a system based not on individual recruitment but on statistical calculation. That is also precisely why the DOL lost case after case in the federal courts: the willing requirement cannot be satisfied by statistics. Badly wanting an immigration bill that would abolish the national origin quotas and admit more immigrants, Sen. Kennedy agreed to the price set by organized labor-namely, a more stringent form of labor market control. Congress went along with Sen. Kennedy but did so in the belief that the Secretary of Labor would have access to the names of individual U.S. job seekers already on file with the state employment services, who were the human faces behind all these numbers..That is why the DOL placed the Foreign Labor Certification Program squarely within the Unemployment Insurance (UI) Division, now known as the Workforce Security Division. This was done so that the statistics would be readily available to the labor certification administrators at the DOL from the UI folks. Ultimately, the thought went, statistics represent people, and the states could funnel the names and addresses of such people to the Secretary of Labor who, in turn, would provide them to an employer so that labor certification would not be necessary.[footnotes omitted]. 

See Endelman, The Lawyer’s Guide to INA 212(a)(5)(A): Labor Certification from 1952 to PERM,  www.ilw.com/articles/2004,1102-endelman.shtm

Similarly, even with regards to an undocumented immigrant, a state may be able to enact criteria for recommending that such a person, who has otherwise not been convicted of significant crimes and is say an essential farm worker, is deserving of prosecutorial discretion by the federal government under its new enforcement  priorities pursuant to President Obama’s executive actions to remain in the state and  prevent its farm produce from otherwise rotting away. There may already be such authority under INA section 287(g), which authorizes the federal government to enter into a written agreement with a state to perform the function of a qualified immigration officer in relation to the “investigation, apprehension and detention” of non-citizens. In the era where the government has implemented a broad prosecutorial discretion policy, a state can assist the federal government in the “investigation,” rather than the apprehension or detention, of an individual who may merit such discretion from the federal government.
The Tenth Amendment of the United States Constitution provides that “all powers not delegated to the United States by the Constitution, nor prohibited by it to [from] the States, are reserved to the States respectively, or to the people.” This is the constitutional foundation for the “laboratories of democracy” concept and is integral to the American federalist tradition.  Under the general rubric of the state police power, the idea was that different policies could be road tested on the state level without directly influencing anyone else. If any one or more of those policies worked in any one statehouse laboratory, they could then be expanded to the national level by act of Congress. For example, Massachusetts established a health care reform law in 2006 that became the model for the subsequent Affordable Care Act at the national level in 2010. As the Supreme Court has allowed a seemingly limitless expansion of the federal power to regulate interstate commerce since the  late 1930’s,  the relevance of the “laboratory of democracy” model has significantly faded. However, now that we know that the federal government cannot use the Commerce Clause to compel consumers to purchase health insurance, perhaps the Progressive-era invocation of the states as laboratories of democracy will witness a modest revival.
There are, however, undeniable limits that properly circumscribe what experiments the state laboratories can conduct when it comes to immigration . Only the Congress can determine who comes to the United States and under what terms or conditions. Any state-attempt to cross that line and set immigration policy on its own will find a less than friendly judicial reception. That is why after upholding Section 2B of SB 1070 the Supreme Court did not allow Arizona to criminalize unauthorized employment ( Section 5(c) of SB 1070) or failure to carry an alien registration document ( Section 3 of SB 1070). That is why Arizona was not allowed to sanction warrantless arrest of aliens concerning whom a police officer had probable cause to believe had committed a removable offense (Section 6 of SB 1070). That is why Utah has not implemented its guest worker law 3 years after enactment. That is why a federal district court in 2009 held the Illinois ban on employer enrollment in E-Verify to be violative of the Supremacy Clause. 
What then distinguishes what Michigan and Massachusetts have done from the constitutionally infirm policies attempted in other states? Does not encouragement of state immigration laws implicitly encourage infringement of the plenary federal power over immigration policy? The key difference is that Michigan and Massachusetts rely exclusively on what Congress has already done. They seek only new and improved ways to take advantage of existing law, to adapt national standards to state and local needs.  There is no attempt to create new visas or enforce new restrictions above and beyond what Congress felt was necessary and proper.  A state immigration law linked to the existing INA has nothing to fear. A state immigration law that substitutes its own judgment for that of Congress cannot be allowed to stand. That is the difference between what we advocate and what the federal courts will not accept. 
The Massachusetts and Michigan experiments are useful and relevant for another reason. It seems sadly obvious that Congress will not, in the absence of a national consensus, enact comprehensive immigration reform, though we devoutly wish this was not so.  In response, the President has and doubtless will continue to exercise his inherent discretionary power to partially remediate our dysfunctional immigration system.  The objections to such actions are grounded on a claimed violation of separation of powers. For those who hold such views, and we do not, the resort to constitututionally compatible state immigration laws, should be a more palpable alternative. Some states will be more hospitable while others will not be, although at the local level, immigrants will be able to bring about changes for themselves as has been witnessed in California from the inhospitable Proposition 187 in 1994 to the issuance of driver’s licenses to the undocumented today.  For those who endorse what the President has done, and we proudly count ourselves among them, such state immigration laws should be embraced as welcome companions in the campaign for a more just system.  That it seems a bit odd should be no reason to pull back from such a step.  As that noted American political philosopher Lawrence Peter Berra so aptly noted: “When you come to a fork in the road, take it!”

(Guest author Gary Endelman is the Senior Counsel at Foster)