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Gary Endelman on Immigration Policy and Law

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  1. Parole In Place: The Secret Sauce For Administrative Immigration Reform

    by , 11-18-2013 at 02:35 PM (Gary Endelman on Immigration Policy and Law)
    To read this article, please see here.
  2. America’s Role In Syria After The Chemical Weapons Attack And Immigration Reform

    by , 08-30-2013 at 03:37 PM (Gary Endelman on Immigration Policy and Law)
    By Gary Endelman and Cyrus D. Mehta

    After hearing about the horrific killing of civilians in Syria in a chemical weapon attack, President Obama stated: “We have concluded that the Syrian government in fact carried these out. And if that’s so, then there need to be international consequences.” The United States may resort to this military action alone, even though Britain has backed out, although France too believes that there must be a serious deterrent to discourage the use of chemical weapons again. The potential use of force against another country brings up the specter of Iraq, when we went to went to war on false information that Saddam Hussein had weapons of mass destruction. This time it is different. There is conclusive proof of a chemical weapons attack, and it is sad to see images of rows of bodies of innocent children, which was most likely perpetrated by the Assad regime in Syria.

    Still, people are legitimately questioning America’s role and whether it is legal for America to use force without a Security Council resolution. It is a foregone conclusion that Russia, which is a steadfast ally of the Assad regime, will veto any proposal in the Security Council to militarily intervene through a UN force to protect the Syrian people from future chemical weapon attacks. The United States, along with France, is attempting to assert and develop a new legal doctrine to bypass the Security Council, which is that a country can use force to protect the citizens of another country that have been killed, such as in the Syrian chemical weapon attack. They use the recent example of NATO’s use of force during the Kosovo crisis in 1999 and bypassing the Security Council in the face of a Russia veto, that prevented Milosevic from further slaughtering the Albanians, and which resulted in his downfall. Today, Serbia is a member of the European Union and Kosovo is an independent country. Kosovo is a successful example of countries intervening through force to stop a humanitarian disaster. On the other hand, the world stood by when there was genocide of unimaginable proportions in Rwanda.

    No matter what people think, but America still remains the superpower and is expected to lead the rest of the world during such a crises. America will never win universal admiration as a superpower and it will make terrible mistakes, like the Iraq invasion, whose specter still haunts us and inhibits countries today from intervening in the affairs of another sovereign state even in the face of an actual chemical weapon attack that has resulted in the slaughter of thousands of innocents (including 400 children) like insects killed by pesticide.

    If America, as a superpower, continues to play the role of a cop in world affairs by virtue of its superpower status, it will have more moral legitimacy to do so if it embraces people from the world through a humane and compassionate immigration system. It is a system that allows immigrants to quickly integrate and become part of America regardless of their nationality, religion or ethnicity. Even though our immigration system is presently broken and does not permit all deserving people to become legal, American has not en mass deported its 10 million undocumented immigrants. The world would much rather prefer America as a superpower that embraces immigration than a rising superpower such as China, which may not in the same way as America. In the same vein, if America is trying to develop a new international legal norm, which is the right to protect people and bypass the moribund Security Council, even if one does not agree whether use of force is the only way to protect, America will have more legitimacy to do that if it is still looked upon as the beacon for hope through its immigration system.

    At the dawn of the American Republic, Thomas Paine in Common Sense rightly and most proudly proclaimed that “the cause of America is in a great measure the cause of all mankind.” In this fateful hour of decision, with history and our conscience the only sure guide, surely the reverse must be true. From the time that Thomas Jefferson in the Declaration of Independence attacked King George III for interfering with immigration, since the first Congress enacted the Naturalization Act of 1790, our immigration system has been a symbol of what kind of a people we are and what manner of nation we seek to become. The many ideological grounds of exclusion in the 1952 Immigration Act eloquently reflected the anxieties and prejudices of the Cold War. The abolition of the national origins quota in 1965, passed the same year as the Voting Rights Act, testified to the nation’s belief in the promise of equality for all. The Refugee Act of 1980 was the embodiment of our continued commitment to the preservation and promise of America as a refuge for the persecuted and the oppressed. The Immigration Act of 1990 by tripling the number of employment-based visas and creating the national interest waiver reflected a growing national realization that participation in a global economy required an enhanced readiness to accept and admit the best and the brightest from all nations regardless of nationality. An American that readily embraces immigrants from around the world will be more likely to better understand the world.

    Therefore, while the Obama Administration and Congress are involved with Syria, they must not lose focus on Comprehensive Immigration Reform. The Senate Bill, S. 744, which has already passed the Senate, will expand pathways for people to come to the US, and will also legalize more than 10 million people. If the House passes a similar version of S. 744, a reformed immigration system will continue to burnish America’s role in the world. Perhaps, no other country would have legalized 10 million of its undocumented population ever, regardless of where they have come from, and put them on the path towards becoming Americans. The significance and impact of such an immigration measure would give America more moral legitimacy to speak on behalf of the world and to seek to establish new international legal norms that would protect vulnerable populations from future humanitarian disasters such as the chemical weapons attack we witnessed in Syria. Now, it is our turn to decide if our policy abroad and our actions at home will honor Dr. King’s teaching that “the arc of history is long but it bends towards justice.”

    (Gary Endelman is Senior Counsel at FosterQuan)


    This article originally appeared on the Insightful Immigration Blog on August 30, 2013, *http://blog.cyrusmehta.com/2013/08/americas-role-in-syria-after-chemical.html*

    About The Authors

    Gary Endelman is a Senior Counsel at FosterQuan, Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country. From 1995 to 2011, he worked as the in-house immigration counsel for BP America Inc., a multinational energy company ranked as one of the top 5 largest companies in the world. Mr. Endelman is board certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization and Chair of the Examinations Committee in Immigration and Nationality Law for the Texas Board of Legal Specialization. He is a frequent national speaker and writer on immigration related topics including several columns and blogs on immigration law. He served as a senior editor of the national conference handbook published by AILA for ten years. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Please contact Gary Endelman at gendelman@fosterquan.com. The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan

    Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.
  3. Would an American Pope lose his citizenship?

    by , 08-05-2013 at 10:04 AM (Gary Endelman on Immigration Policy and Law)
    Last March, there was a frenzy of media speculation over the possible selection of an American cardinal as Pope. At one point, the charismatic Timothy Cardinal Dolan was deemed by informed observers to be a leading contender.
    Would an American Cardinal lose his citizenship if elected Pope? Sounds crazy but it could happen. Here's how.

    Ever since the signing and ratification of the Lateran Pact in 1929, the Vatican City State has enjoyed the status of a sovereign nation; in fact, it is the world's smallest. As of 2012, there were 594 Vatican citizens, 238 of them with dual citizenship. The majority of Vatican citizens are diplomats who do not live in Rome but are stationed around the world. Unlike all other nations, Vatican citizenship derives neither from blood ( jus sanguinis) nor from place of birth (jus solis) but from office or official capacity( jus officii). The current law on Vatican citizenship was promulgated in 2011 by his Holiness Pope Benedict XVI under which there are 3 eligible categories: (1) all Cardinals resident in Vatican City; (2) Vatican diplomats, and; (3) those persons who resided there to do their jobs, such as the Swiss Guard who protect the Pope.

    Pope Benedict remained a German citizen and continued to vote in German elections. He did not have to apply for Vatican citizenship nor did he renounce German citizenship. Vatican citizenship was conferred on him by operation of law. No oath of allegiance to the Vatican city state was required. Remember that my friends because this will be a most salient fact!

    Loss of citizenship is determined by Section 349 of the Immigration and Nationality Act. To lose one's citizenship, the citizen must voluntarily commit an expatriating act with the intent of giving up American citizenship. Because Vatican citizenship would automatically attach itself to an American Pope, he could not lose citizenship unde Section 349(a)(1) of the INA which requires an application. If an application was required, however, would an American Pope enjoy the presumption afforded by State Department policy ( 22 CFR 50.40) that such a routine oath of allegiance was sworn with the intent of keeping American citizenship? Probably not because such a presumption only applies to a non-policy level job such as a civil servant, teacher, or local administrator. Judging by the criteria set forth in 7 FAM 1285, as the head of state, the Pope would undoubtedly occupy a policy-level position. This does not mean that an American Pope would lose citizenship, only that he could not benefit from any friendly administrative presumption.

    It is a statutory prerequisite under INA 349(a)(4) that the person either (a) take an oath of allegiance or (b) already have the foreign citizenship when assuming office. Here is where an American Pope would likely be protected since neither would be the case for an American Cardinal who did not live in the Vatican and who did not take any oath of allegiance to it. Absent either an oath of allegiance or prior foreign citizenship, the question of whether the Pope is a policy-level position is a question that is simply not reached. Moreover, since the man who becomes Pope is chosen by the College of Cardinals, it might be tough to argue that he "applied" for the job. Is there any "act" within contemplation of INA 349? Would an American Cardinal honored by election at Pope accept the office with the intent of relinquishing his citizenship? Judging by Pope Benedict's ability to continue to discharge his obligations as a German citizen after his election, it seems a stretch to contend that the conduct of an American Pope would be inconsistent with retention of US citizenship.

    Boy am I relieved!

    PS. This blog is dedicated the shining memory of my good friend and teacher Carmen DiPlacido who wrote the Child Citizenship Act. May his name be honored always by those who benefit from his love of country and devotion to justice

    The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan, LLP.
  4. Is It Still A Federal Case? An Unintended Consequence of Arizona v. USA

    by , 04-29-2012 at 07:13 PM (Gary Endelman on Immigration Policy and Law)
    Of all the unexpected consequences of Arizona v USA, perhaps the least likely is the potential reshaping of licensure regulations for the immigration bar. So long as the states did not seek to regulate immigration, lawyers licensed in one state could practice immigration law in another, save for those jurisidctions such as California and Colorado that banned such practice. Relying on  ABA Model Rule 5.5(d) and Supreme Court precedent in the case of Sperry v. Florida, 373 US 379, 383-84 (1963),  immigration was a federal practice and any credentialed advocate could join in. That is why USCIS recognized this multi-jurisdiction bar in 8 CFR 292.1(a)(1) and 1.1(f). The State Department is no less courteous: 

    9 FAM 40.4 N12.3 Local or U.S.-Licensed Attorneys Practicing Abroad  You must extend to a U.S. attorney who has been practicing abroad and is a member of a State bar association or to a local attorney-at-law, the same courtesies in correspondence that are extended to an attorney practicing in the United States, provided you are satisfied that the required relationship exists.

    This has never been without controversy. New York makes out of jurisdiction lawyers register every two years at a $375 fee. In Texas, a solo immigration practitioner from New York State moved to Houston but did not bother to sit for the Texas bar exam.  She was not given a Texas-size welcome; the Unauthorized Practice of Law Committee of the Texas State Bar sued her, expressing a concern for the integrity of the Texas family and penal code as well as the potential harm to Texas residents. Ultimately, the case was dropped. See John Council, Out of Bounds: Lawyer Without Texas Bar Card Fights for Right to Practice, 18 Tex. Law. 24. (2002); Gregory Siskind, New York Immigration Lawyer Wins Battle to Practice in Texas, Immigration Daily available here. For those who want a deep dive into the delicacies of this controversy, see the wonderful article by Charles Kuck and Olesia Gorinshety as well as the masterful insights provided by Cyrus Mehta.

    The exemption from state bar rules depends upon dealing exclusively with federal law. Can this easily or always be done? That is the concern voiced by Texas Ethics Opinion No. 516:

    Without issuing an opinion on the subject of unauthorized practice of law, the committee assumes that the representation of clients in Texas by an out-of-state attorney solely on issues or matters of federallaw in the area of immigration and nationality law before the U.S. Immigration and NaturalizationService and in federal courts does not constitute the unauthorized practice of law in Texas. The committee further assumes sat this is incorrect regardless of whether the out-of-state attorney lives in or outside of Texas, maintains an office in Texas, or is employed by an attorney who is licensed to practice law in Texas, so long as the representation of clients in Texas by an out-of-state attorney is in fact limited only to issues or matters of federal law...However, the committee recognizes that the foregoing assumptions do not resolve all unauthorizedpractice of law problems presented in this question. As a practical matter, it simply may not be possibleto separate federal and state law issues when representing clients on matters under the U.S. Immigrationand Nationality Act. Representing clients on immigration and nationality law may require an out-of-stateattorney to know and advise such clients on issues and matters involving Texas law. For example, Texaslaw governing family matters such as marriage, divorce and adoption may be determinative in certainimmigration cases; likewise, immigration law questions may necessarily involve giving advice on Texascriminal law statutes, Texas employment laws, or other Texas law. Accordingly, the risk of engaging inthe unauthorized practice of law in Texas inevitably increases with the number of immigration andnationality cases handled by an out-of-state attorney. http://www.law.uh.edu/libraries/ethics/opinions/501-600/eo516.pdf

    This is where SB 1070 comes in. If the Supreme Court finds that Arizona can use its retained police powers to regulate and punish conduct by and the presence of undocumented immigrants, then it will be much more difficult to separate state from federal law in the analysis of any immigration problem,whether in Arizona or in all the other States that either have their own state immigration laws already or will be encouraged to adopt them.  No longer will immigration lawyers be able to refrain, if they can now, from state law questions. Should this happen, and the lines between state and federal jurisprudence between irretrievably blurred to the point where they cease to exist, it is hard to imagine how any immigration lawyer who is not licensed in the state where they practice can avoid engaging in the unauthorized practice of law. Do we really want this ? As Proverbs warns us, he " who troubleth his own house shall inherit the wind."
  5. " Where Do We Go From Here: How Can We Improve the H-1B?"

    by , 11-26-2011 at 07:00 PM (Gary Endelman on Immigration Policy and Law)
     
    Now that the H-1B cap for FY 2012 has been reached as of November 22nd,  the question presents itself for our consideration: Where do we go from here? Are there ways to improve the H-1B ? In an ideal world, the Congress would either raise the cap or abolish it altogether, preferably the latter. The only cap that makes sense is one that works in concert with , rather than in ignorance of, the market. The best protection for US workers , indeed the only kind that really makes sense, is to let the economy decide how many H-1Bs should come. That, far more than any artificial limit picked out of thin air, will work. The H-1B has become the test case for all employment-based immigration. If we cannot articulate a rational policy here that serves the national interest, we will not be able to do it anywhere else. The ongoing H-1B debate is really about the direction that the American economy will take in the digital age and whether we as a nation will voluntarily surrender the high ground that America now occupies.
    Opponents of the H-1B talk a lot about the "global economy" but act as if we lived solely in a domestic one. We want a seamless movement of trade and ideas across national boundaries but seem to believe that people must stay behind. Give us your money and intellectual capital but be sure to remain where you are!  Despite the obvious advantages of a realistic H cap,   Congress is not likely to provide this.There is no reason not to campaign for more H numbers but there is also an equally pressing imperative to consider ways to improve the H that do not involve more numbers.  Perhaps, we should begin asking whether  we need a different kind of H-1B visa.
    With that in mind, please consider the following modest proposals. If you do not like any or all of them, feel free to throw away this list and suggest your own.
    1. The Congress has endorsed the concept of H-1B portability in AC 21, but it has only taken a few baby steps along this road. Let's take some giant ones. Why not allow the H-1B alien to file the petition much as he or she can now file a national interest waiver or an extraordinary ability petition? The H-1B approval would then truly belong to the H-1B worker and not to the employer who loses any leverage that the market would not otherwise provide. Armed with such a weapon to guard against any unreasonable employer demands , the H-1B alien has not need for the LCA shield. It would then be irrelevant and all associated with it liberated. While its motives are honorable, the practical effect of DOL's command and control mentality  has been to deter H-1B compliance by creating a system that is poorly understood and unevenly administered. Its' Byzantine complexity benefits only lawyers and bureaucrats, but does little to protect American workers and imposes unnatural strains upon the wage structure of the vast majority of honest employers.
    2. Ban any H-1B dependent employers.  Why should those with a more diversified work force be burdened by over-regulation aimed at a relative few?  If the latter are the problem, Congress can ban them from sponsoring anyone for an H, thus restoring rationality for everyone else and undercutting whatever dim justification for the LCA remains. No employer who is H-1B dependent should be able to file an H petition. End of story.
    3. Require all H sponsors to prove the alien beneficiary is the most qualified applicant they can hire. Impose the same recruitment obligation that H-1B dependent employers now confront upon all H sponsors. There should be one key difference. Allow the employers to use the same recruitment they have already done to select the alien at time of initial hire and mandate acceptance of the "best qualified" standard that now only applies  to university selections. No one in the real world ever thinks of minimal qualifications.  Would you want to drive your car over a bridge designed by a minimally qualified engineer or allow a minimally qualified surgeon to perform open-heart surgery on your mother? The question literally answers itself. It is perfectly fair to ask that employers explain their choice not to hire an American if they are allowed to  use real world standards when doing so.
    4. Create a Blanket H-1B.  Create a blanket H-1B visa that can be applied for directly at a US Consulate, much as it is now possible to apply for a Blanket L visa. Eligibility for this Blanket H should depend on the number of approved H  petitions in the past year; the percentage of full-time equivalent H workers in their employ ( no eligibilty for H dependent employers) and documentation of  demonstrated ability to pay the prevailing wage. No employer who is guilty of a willful or material H wage violation can apply.  Get rid of the LCA and this no longer prevents the rational from being enacted into law. H-1B portability under AC 21 would still remain, but the Blanket H allows the H-1B worker and employer to bypass the USCIS entirely.
    5. Create an H-1B lottery. If the concept of a Blanket H seems to favor established employers or those with a multi-national presence, why not allow potential H-1B beneficiaries to register for an H-1B lottery much as people now register for the Diversity Visa lottery?  Take the 65,000 H-1B cap together with the 20,000 cap exempt allotment for advanced US degrees and let folks register on line for H numbers during a specified application period.  The H lottery winnder come in for 3 years and get to work for anyone they want. They win, they pay all fees involved and the visa belongs to them. The best employers will still get the top talent.
    6. Create a Schedule A occupational list for the H-1B. Does the economy have the same need for all H-1B occupations? Of course not!  Prepare a list of occupations deserving of H approval. Annual revisions of the list will keep it current. For those occupations not on the list, they can still get an H visa but only for shorter duration and with no exemption from the intending immigrant presumption found in Section 214 (b) of the INA. There is nothing particularly radical about this notin  this is precisely how Congress structured the 6,800 H visa numbers reserved for Singapore and Chile under their respective free trade agreements.
    7.  Since everyone agrees that America's future depends upon science, mathematics, technology and engineering, why not exempt those with a US graduate degree in these disciplines from the H cap? Following one year in this special H category, they could self-petition for adjustment of status to lawful permanent residence.
    8. If there is a national consensus on the need for more STEM degree holders, there is no such consensus regarding liberal arts .  While it is certainly true that employers have a real need for such expertise,  is there a valid reason why only those with a Master's or Ph.D. degree in non-STEM disciplines should qualiy for H-1B visas? I recognize this is not going to go down easy with some, perhaps many, of my brethren, but this concession to H-1B critics could go far to proving our concern for the larger national interest, particularly in a depressed economy, and could significantly increase the chances for concessions on many of the proposals outlined above.
    9. The only reason to have the H-1B category, or any employment-based visa, is to benefit the US economy. The fact that someone has a relevant college degree may prepare them to do that and it is a factor that the USCIS should consider. Yet, it is not the only or even the primary criteria that can or should be used. In addition to education, fluency in English, age, specialized expertise in a shortage occupation or one of national importance are all of equal or greater moment in determining what contribution the visa applicant can render to the USA. Until now, advocates of a point system have limited its application to the immigrant visa context. It can and should be used to determine the allocation of H-1B visas as well.  If we want to enrich the nation and create new sources of wealth, something that would really help the very US workers that DOL wants to protect, the impose a points system to govern H-1B adjudication and let that decide who wins and who loses.  Take the data put out by the Bureau of Labor Statistics, the Federal Reserve and/or the Conference Board, to name but a few of the many possible sources of information, and revise the criteria by which the USCIS would rule on H-1Bs every fiscal quarter to guard against ossification.
    10. If we have to have an H cap, why have a one size fits all approach? What about an H cap on a country-by- country basis  with an oversubscribed country able to borrow unused H numbers from an under- utilized country ?  This would facilitate diversity of H migration  and diminish much of opposition to the H visa itself as all but the most partisan critics would realize that considerations of national interest predominated in the setting of H visa limits.
    This is pre-eminently a time for innovation. Try something and, if that does not work, well then try something else.  In a global economy, all forms of capital, including intellectual capital, flow to their optimum destination according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary only serve to enrich our foreign competitors while we all lose. The USCIS and DOL do care about American workers but they do not effectively express such concern through policies that make US companies less competitive and the US itself less desirable as a place for the world's creative elites to lvie and work. There is a better way where everyone benefits.  For those of faint heart who doubt this can be done,  let us return to the message that President Abraham Lincoln sent to Congress on December 1, 1862, outlining his plans for the emancipation of all African slaves. They are no less true  now than they were then:
    "The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise to the occasion. As our case is new, so we must think anew , and act anew. We must disenthrall ourselves, and then we shall save our country"
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