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  1. Could FY 2018 H-1B "lottery" be run to disadvantage Asian workers and lead to wider measures against Asian immigrants? Roger Algase

    When USCIS announced several weeks ago that premium processing for Fiscal Year 2018 cap subject H-1B petitions would be suspended for the six month period between the beginning of the acceptance period for these petitions on April 3, 2017 and the beginning of the new fiscal year on October 1, 2017, there was something of at least a mini-uproar in the media.

    At the time, I regarded this as overblown, if not just merely a tempest in a teapot, and I suggested that the ostensible reason for this temporary suspension of Premium, namely to shift agency resources over to reducing the unconscionably long backlogs in regular H-1B processing, now taking as long as eight months from filing, made sense and should be taken at face value.

    However, on March 15, 2017, USCIS came out with another announcement which was remarkable, not for what it says, but what it leaves out, compared to last year's similar. but not identical. announcement,

    This year's announcement, for the reasons discussed below, may be a cause for much greater concern for the future viability of the H-1B program, as well as increased hardship and lack of fairness for cap subject H-1B petitioners and prospective H-1B employees in this year's expected "lottery".

    Remarkably, what could be a crucial difference in this year's USCIS announcement compared to the ones for last year and previous years when the pathetically small cap subject annual quota limit of 65,000 visas (85,000 for US master's degree holders) was also oversubscribed (as this years almost certainly will also be) has gone almost entirely unnoticed by the media, and even by most, if not all H-1B experts. This is at least according to my own Internet research.

    To borrow the youngest child's traditional question from the coming Jewish Passover season, What makes this year's USCIS H-1B cap "lottery" announcement different from all other previous H-1B "lottery" announcements?

    The answer, my child, is that all of the previous lottery announcements stated that USCIS would accept all petitions arriving at the agency during the entire first business week of the application period, not just on the first day, which this year is on Monday, April 3.

    This year's announcement, as will be seen below, omits this promise and says merely that USCIS will accept petitions beginning on April 3, and will notify the public when the cap has been reached.

    Judging by previous years, it is almost inevitable that the cap will be reached on the first day of acceptance. So what will happen with estimated thousands, or tens of thousands of other cap subject H-1B petitions which will almost certainly arrive later that week, between April 4 and April 7, due to factors beyond the petitioners' control, such as bad weather, inevitable flight delays, or other similar reasons.

    Will they be rejected and returned?

    But that is not the only thing that could make this H-1B cap year different from all other such years. In all other years, USCIS announced that if the cap was oversubscribed, there would be a "computer-generated lottery system" (to quote last year's announcement, see below).

    This year's announcement says nothing about a lottery, leaving open the possibility that USCIS might be planning to use a different selection system about which nothing has been announced whatsoever, and which, conceivably, could be used to "rig" the H-1B filing selection system for or against certain types of H-1B petitions, just as has been proposed in certain bills that are introduced in Congress with some regularity, but have never been passed.

    Will the heavy hand of the Trump administration, which has not exactly shown a welcoming attitude either to the H-1B visa as a whole, or to the highly skilled South Asian professional workers who make up a large percentage of the beneficiaries of this visa, try to tilt the scales of the selection process in order to pick the immigration priorities which Trump and two of his top immigration advisers, Stephen Bannon and Jeff Sessions (not to mention other top advisers such as Kris Kobach and Stephen Miller) have previously made clear that they subscribe to?

    This possibility cannot entirely be ruled out.

    To be continued in a forthcoming comment.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping skilled and professional immigrants from diverse parts of the world obtain work permits and green cards.

    Roger's practice has been heavily concentrated in H-1B for most of the above period, and it is now. His email address is

    Updated 03-29-2017 at 11:03 AM by ImmigrationLawBlogs

  2. Maryland immigrant rape case shows US failure to track alien youth. By Nolan Rappaport

    © Montgomery County Police

    On March 16, 2017, two young men from Central America allegedly pushed a 14-year-old girl into a boy’s bathroom at a high school in Montgomery County, Md., and then raped her in one of the stalls. Some claim that Maryland’s sanctuary policies led to this brutal crime.

    Maryland’s policies towards illegal immigration have made the state a popular destination for undocumented immigrants. It has been estimatedthat 250,000 undocumented immigrants lived in Maryland in 2014. But Maryland is not a sanctuary state … yet.

    When President Donald Trumpissued an Executive Order declaring that sanctuary jurisdictions will lose federal funds, the County Council for Montgomery County responded with a statement assuring county residents that “County police do not enforce federal immigration law.” The Council also noted that, “executive orders are subject to public scrutiny and legal challenges.”

    And only four days after the young girl allegedly was raped by undocumented immigrants, the Maryland House of Delegates passed House Bill 1362to restore community trust in Maryland Law Enforcement by clarifying the parameters of local participation in federal immigration enforcement efforts.”


    Published originally on the Hill.

    About the author.
    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

    Updated 03-28-2017 at 11:57 PM by ImmigrationLawBlogs

  3. ICE Stigmatizes Mexican and Other Mainly Hispanic Immigrants by Publishing List of Mostly Minor Criminal Offenses. Roger Algase

    Update: March 24, 3:03 pm.

    For more information on the topic discussed below, see David Nakamura, reporting in the Washington Post on March 24:

    Blame game: Trump casts immigrants as dangerous criminals, but the evidence shows otherwise

    (Sorry, I do not have a direct link. Please go to Google to access.)

    The WP article describes an intense and concerted attempt by the Trump administration to brand mainly Mexican and other Latin American immigrants as criminals, something which has a very dangerous and disturbing 20th century historical precedent discussed below.

    Meanwhile, while ICE continues to focus on how many Mexican and other Latin American immigrants are being charged with or convicted of crimes such as DUI, traffic violations, minor drug offenses or possession of "obscene material" (see my discussion of the ICE report described below), two thirds of Americans surveyed want an independent commission to investigate the link between Trump's campaign and Russia, according to the latest poll.

    Which of these two issues, Trump's alleged ties with Russia, or the number of petty crimes that may have been convicted by Mexican immigrants, are more important for the safety of America and the survival of our democracy?

    My original comment follows:

    In my comment on March 3, I wrote about the disturbing parallels between Donald Trump's February 25 executive order requiring DHS to publish lists of crimes which immigrants have been convicted for or charged with committing, and lists of crimes allegedly committed by Jews which appeared in Germany prior to 1945, especially in the notorious newspaper Der Stuermer, whose publisher, Julius Streicher, was executed as a war criminal after the end of WW2. See:

    I am not the only commentator who has made this comparison. See David Jose Camacho, writing in The Guardian, March 22:

    Trump's weekly list of 'immigrant crimes' is as sinister as it sounds

    Nor was the extreme case of Germany prior to 1945 by any means the only example of targeted ethnic groups being stigmatized as "criminals". America also has a long and well documented history of branding Italian, Irish, Jewish and other unpopular immigrant groups as criminals in order to justify prejudice and discrimination against them.

    What is most noteworthy about at least the first of the weekly lists announced by ICE pursuant to Trump's executive order, however, is how trivial most (but not all) of the offenses on the list actually are.

    It is almost as if the purpose of Trump's crime list publication order was to show that while Mexican and other Hispanic and Caribbean immigrants may have a high rate of traffic offenses and possession of drugs (or, horror of horrors, even "obscene" material - that is also on the list!), most of the offences listed in at least the first ICE weekly report, for the period January 28 to February 3, 2017 were not for violent or dangerous crimes.

    This is a far cry from Donald Trump's campaign attacks on Mexican and by extension other Latino immigrants as 'criminals" and "rapists". and his mass deportation executive orders as president ostensibly targeting "criminal aliens".

    The full 35 page ICE report can be accessed by following the link on the word "report" in the above cited article in The Guardian. A more detailed discussion of the report follows below.

    The report, ostensibly, is not intended to be a crime list per se, but a list of counties in various US states ("non Federal jurisdictions") which have released non-US citizens (described in the report by the pejorative term "aliens" which first appeared in America's laws more than 200 years ago, when attitudes toward residents or immigrants of non-European ancestry were quite different from what they are now) which have released non-US citizens convicted, or even merely charged, with various crimes despite ICE detainers which had been placed on them.

    On the surface, therefore, the report is directed against the various law enforcement agencies around the country which refuse to honor federal detainers.

    But when one looks at the actual list of convicted or alleged crimes by the individuals who were released, it is apparent that ICE did not omit listing the country of origin in each case, so it would be clear which countries and parts of the world the "aliens" accused or convicted of crime on the list come from.

    Not surprisingly, in view of Trump's campaign speeches, the defendants listed (by offense, not by name) are overwhelmingly from Mexico and Central America.

    So what kind of offenses are included in the list? I looked at a random sampling of 10 pages from the list (6 though 15), showing a total of 110 cases where a foreign citizen was released despite a federal detainer. By far the most frequently listed offense was DUI.

    Other listed offenses included, "Traffic Offense", "Failure to Appear" "Violation of a Court Order", "Probation Violation" and "Indecent Exposure".

    Yes, ICE actually attempted to deport a Central American immigrant for Indecent Exposure - maybe on the same plane as the South American immigrants convicted of "Possession of Obscene Material" and of a "Traffic Offense", respectively!

    This is not to say that all of the charges or convictions listed were minor. There were a number of Assault, Aggravated Assault and Sex Assault cases as well, as well as Domestic Violence cases. Clearly, not every immigrant on whom ICE has put a detainer is necessarily a candidate for sainthood.

    But one thing is clear from the above sample. America now has a sitting president (the first one I am aware of in my lifetime, which has included 13 presidents so far) who is now under investigation by the FBI himself - for his alleged ties to Russia.

    Clearly, this president wants Americans also to be aware of the potential danger to our society and our country posed by Mexican immigrants charged with DUI, traffic offenses and "Possession of Obscene Material".
    Roger Algase is a New York Immigration lawyer and a graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards for more than 35 years. Roger's email address is

    Updated 03-24-2017 at 04:07 PM by ImmigrationLawBlogs

  4. Entry Ban Order Causes Even More Harm to Muslim US Citizens' Rights to Equal Protection Against Discrimination and Safety Threats. Roger Algase

    Update: March 22 as of 2:57 pm:

    POLITICO reports that Donald Trump has sent warm greetings to the people of Iran for their Now Ruz holiday, the Iranian New Year. He praised Iran's multi-religious heritage and also commended"many Iranians who have come to our country in recent decades to make a new start in a free land."

    If Trump's latest ban on entry to the US by some 100 million citizens of six (formerly seven) almost 100 per cent Muslim countries is upheld by the federal courts, there will not be very many more Iranians coming to America to "make a new start in a free land", since Iran is on the banned list.

    My original comment appears below.

    Much of the debate over the original and current versions of Trump's executive orders barring an estimated 100 million citizens of six 99 per cent Muslim countries from entering the United States without any showing that they have terrorist connections or individually present any threat to America is focused on the alleged lack of Constitutional protections for the rights of foreign citizens seeking to visit, study or work in this country temporarily.

    In a recent post, I introduced the thorny and complicated subject of the "Plenary Power" over immigration doctrine which the Supreme Court devised back in the 1880's to make it easier to discriminate against Chinese immigrants by keeping them out the the US on purely racial grounds, just as Trump is now trying to keep Muslims from the affected Middle Eastern and African countries out for primarily religious reasons. I will have more to say about "Plenary Power" in a future comment.

    However, there has been less discussion about the specific ways in which Trump's Muslim ban is harming the Constitutional rights of Muslim US citizens to religious freedom and equal protection of the law, by making them in more subject to discrimination and threat of violence in reality, not just as a matter of personal feeling, as alleged, for example in the complaint filed in federal district court by the State of Hawaii and the individual Muslim plaintiff in that case.

    Now comes a report by the Institute for Social Policy Understanding which adds substance to these fears, just as the Supreme Court, just over 60 years ago, found that there was a substantive basis for the feelings of African-American children that they were not equal to white children caused by the school segregation laws of that time.

    The above report includes four key findings, all of which are at least in part the result of Trump's presidential campaign demonizing and scapegoating Muslims around the world, including American Muslims, as potential terrorists, which undeniably played a major influence in the genesis of Trump's Muslim entry ban orders.

    These findings are as follows:

    1) Muslim children face the most religious-based bullying in school.

    2) Muslim Americans are more scared for their personal safety than any other religious group.

    3) Muslims are facing additional screening at the border more than any other religious group.

    4) More Muslims report religious-based discrimination than any other group.

    Much as the supporters of Trump's ban on entry to the US by some 100 million people for no reason other than they happen to live in six overwhelmingly Muslim countries, none of whose citizens has ever been found to have committed an act of terrorism in the US (yes, some of these countries have terror group problems to be sure, but so do many other Muslim and non-Muslim countries that are not on the banned list) would like to pretend that only the rights of foreign citizens are affected by Trump's executive orders, the reality is that these orders, taken together with Trump's consistent attacks on Muslims both before and after taking office as president, are doing irreparable harm to the rights of millions of Muslim US citizens.

    A summary and link to the full report is available at

    In a summary of the report, entitled:

    American Muslim Poll 2017: Muslims at the Crossroads,

    the authors, Dalia Mogahed and Youssef Chouhoud, refer to the "deeply divisive presidential election cycle" and an uptick in "negatively charged rhetoric and discriminatory acts" against "not just Muslims already in the United States, but also toward those who year to make America their home."

    Even if Trump had not threatened during the presidential campaign to put US Muslims and their places of worship under surveillance, his targeting of an estimated 100 million people for exclusion from the US for no other reason than they happen to live in countries with almost 100 per cent Muslim populations (which, like many other countries not on the list, have had to deal with the presence of terrorist supporters or organizations in their midst), is adding to the fear, hatred and suspicion with which millions of innocent American Muslims are being regarded by their co-US citizens (and by US border control agents).
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards for more than 35 years. Roger's email address is

    Updated 03-22-2017 at 01:57 PM by ImmigrationLawBlogs

  5. Is Muslim Ban Only First Step Back to Europe-Only Immigration? No Africans Granted Visas for US-Africa Business Conference. Roger Algase

    In another ominous indication that Donald Trump's attempts to ban more than 100 million citizens of six 99 per cent Muslim countries from coming to the United States have very little to do with national security, and a great deal to do with changing America's immigration demographics back toward the Europeans - only policies of the 1924 Johnson-Reed Immigration Act (which Trump's AG Jeff Sessions praised in a 2015 immigration manifesto, and which Senior White House Adviser Stephen Bannon's Breitbart News has also supported), The Guardian reports that every single one of the between 60 and 100 African applicants for visas to attend an annual conference on US-African business and trade at the University of Southern California was refused a visa, even though none of their approximately a dozen different countries of origin was covered by the ban (which the federal courts have temporarily blocked from taking effect in any event).

    The internationally renowned UK newspaper writes:

    "The African Global Economic and Development Summit, a three-day conference at the University of Southern California (USC), typically brings delegations from across Africa to meet with business leaders in the US to foster partnerships. But this year, every single African citizen who requested a visa was rejected, according to organizer Mary Flowers."

    The Guardian

    "The problems for the trade summit mark the latest example of restricted travel to the US under Trump, whose controversial immigration policies and rhetoric have impacted a wide range of industries and communities. Soccer players, musicians, doctors, tech workers, protesters and others from across the globe have been denied access to the U.S., which has also experienced a slump in immigration since Trump's inauguration."

    With regard to the countries of origin for the applicants who were denied visas, The Guardian writes:

    "Rejected participants at the trade summit came from Nigeria, Cameroon, Angola, Ethiopia, Sierra Leone, Guinea, Ghana, South Africa and more, according to Flowers."

    Even though Trump's latest six Muslim country ban is not currently in effect, The Guardian also reports than none of the rejected applicants were from any of the three African countries (Lybia, Somalia and Sudan) that were on the banned list.

    According to the same report, many of the applicants who had already registered for the conference, which took place with only 50 to 75 participants instead of the 150 to 200 who usually attend, were refused visas after only short interviews even when they brought extensive documentation, such as bank statements and property records.

    According to the same article, The State Department has refused to give any explanation for or to discuss its actions in banning visitors to the US from an entire continent.

    It appears that the issue of arbitrary bans on entry to the US from parts of the world which may be out of favor with the Trump administration has escalated beyond entry from only half a dozen countries, for which there may have been at least the illusion of a pretext, however contrived, for a blanket exclusion.

    According to the report, Mary Flowers also stated:

    "I don't know if its Trump or if its the fact that the embassies that have been discriminating for a long time see this as an opportunity, because of the talk of the travel ban, to blatantly reject everyone...These trade links create jobs for both America and Africa. It's unbelievable what's going on."

    There was a famous saying in ancient Rome.

    Ex Africa semper aliquid novi - "There is always something new out of Africa."

    One could update that saying to add that there is always something new from Africa - except visitors to an America in the Donald Trump era in which immigrants of color are feeling increasingly unwelcome.

    For those who still believe in and support America's ideal of non-discrimination on the basis of race, religion or national origin which has been the basis of our immigration laws for the past half century, there is another Latin saying, taken from Cicero's famous address against Cataline before the Roman Senate, which might well be addressed to our 45th president and the nationalist advisers at the top of his hierarchy:

    Quo usque tandem abutere...patientia nostra?

    "How much longer will you continue to abuse our patience?"
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been representing mainly skilled and professional immigrants from diverse parts of the world for more than 35 years. His email address is

    Updated 03-23-2017 at 04:06 AM by ImmigrationLawBlogs

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