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  1. Trump's "Hire American" Executive Order is Clearly Against the Law in Many Instances. Why Hasn't it Been Challenged in Court? Roger Algase

    This post will begin a serious of comments devoted to the issue of whether current administration policies are consistent with the obligation of USCIS and other immigration agencies to provide fair decisions on employment-based petitions, based on the applicable laws and regulations, rather than on whether the president would prefer a specific result in keeping with his "Buy American, Hire American" executive order.

    As recent ilw.com articles by other attorneys have shown, this issue has been particularly acute this year in the area of H-1B petitions and the hurricane of RFE responses, in many cases of highly questionable competence and objectivity - something which I have also been facing and which I will write about more specifically in upcoming comments.

    But by way of introduction to this topic, I will start with a very basic question: Is the president's "Hire American" immigration policy consistent with the law?

    There are great number of employment based non-immigrant visas (I will leave a discussion of employment-based green card categories for later). A few of them contain requirements intended to benefit US workers specifically - notably in the H-1B prevailing wage and LCA regulations, and in the job creation requirements of E-2 and EB-5 investment visas.

    But, except for the H-1B regulations requiring "H-1B dependent" employers or "willful violators" to recruit US workers first, and for H-2B visas which specifically require a Labor Certification, there are no NIV categories which specifically require US employers to reject a foreign worker in order to "Hire American".

    Despite that fact that Trump's "Hire American" order has no basis in law as a general matter, and actually conflicts with the INA in instances such as the above, USCIS is now issuing RFE's and denials in petitions where the obvious motivation seems to be to prevent US employer from hiring foreign workers on any pretext imaginable, as in a November 15 Immigration Daily article by Cora-Ann V. Pestaina, Esq. dealing with refusal to accept valid expert opinion letters; or, in some of my own cases, outrageously incompetent, distorted or even self-contradictory USCIS interpretations of the crucially important OOH Handbook which make fair and objective H-1B adjudications all but impossible.

    Since the "Hire American" executive order is very arguably encouraging, if not actually directing, such skewed and distorted USCIS decision-making, isn't the time ripe for a court challenge of this order, just as the legality of his Muslim ban immigration order was challenged (on other grounds, of course), with a considerable amount of success to date?

    If the president is allowed to continue to write his own immigration laws or dictate immigration policies through executive orders, especially ones that contradict existing law, without going to Congress for authorization, America's immigration system will be in serious trouble. So will our democracy.
    ___________________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping clients from diverse parts of the world with H-1B petitions and other employment and family-based immigration applications for more than 35 years. Roger's email address is algaselex@gmail.com

    Updated 11-16-2017 at 04:26 PM by ImmigrationLawBlogs

  2. Courts Uphold Authoritarian Muslim Ban (in Part) as Trump Moves Toward Dictatorship by Pressuring DOJ to Investigate Hillary Clinton. Roger Algase

    The following comment has been expanded and revised as of November 16 at 2:00 am:

    vox.com is running two recent stories which may appear to be unrelated on the surface, but are in fact both part of the same larger authoritarian picture. This larger picture is the connection between governmental discrimination or persecution of immigrants based on race or religion, on the one hand, and loss of democratic freedoms on the other.

    The first of these two stories deals with November 13 decisions by the 4th and 9th Circuit federal appeals courts upholding the parts of the latest version of Trump's Muslim entry ban order which affect mainly tourists and refugees.

    Even though both orders contain large exceptions, namely for citizens of the six named countries (which include Niger, one of America's most important allies on the African continent in the war against radical Islamist terror!) who already have ties with the United States, the decisions are still a victory for the Trump administration.

    In effect, they uphold the doctrines, urged by the president in defending the various versions of the ban in the federal courts, that it is Constitutionally acceptable to discriminate against immigrants on the basis of their religion in principle (as long as the executive uses the magic words "national security" instead of religion); and even more dangerous for democracy, that, with only a few exceptions, the president has virtually unlimited power to determine which immigrants can enter the US without any effective interference by the courts.

    https://www.vox.com/policy-and-polit...-travel-ruling

    The second story deals with the response of the Justice Department to demands by Republican Representative Bob Goodlatte, Chairman of the House Judiciary Committee, who is known mainly for his sponsorship of anti-immigrant bills. One of his most recent, for example, would give state and local jurisdictions the power to enact their own immigration enforcement measures.

    This would not only bring back measures such as Arizona's infamous and discredited racial profiling S.B. 1070 law, but would lead to similar laws in every part of the nation, creating fear and chaos in immigrant communities coast to coast. Now, in yet another example of how discrimination and persecution directed again immigrants because of their race or religion of often lead to the overthrow of democracy and the institution of dictatorship, Goodlatte is demanding that the Justice Department appoint a second special counsel to investigate Hillary Clinton over allegations that no one up to now has ever found any reason to take seriously.

    https://www.vox.com/world/2017/11/15...nsel-goodlatte

    The obvious purpose is to retaliate against Clinton for running against Donald Trump for president (and, even worse, winning the popular vote by nearly 3 million votes). In this respect, Goodlatte is in effect acting as a surrogate for Trump, who is also trying to pressure the Justice Department to investigate Hillary Clinton as a distraction from his own problems with special counsel Robert Mueller.

    See: NY Times, November 14:

    'Lock Her Up' Becomes More Than a Slogan


    https://www.nytimes.com/2017/11/14/u...stigation.html

    While this may appeal to Trump's base, who kept shouting "Lock Her Up!" at his rallies, this is not the way democracies work. Democratic countries do not threaten to send political opponents of the ruling party to jail to punish them for losing an election. Dictatorships do.

    It is true that Goodlatte's pressure on the Justice Department to launch a criminal investigation of Hillary Clinton (over what?) is not directly related to immigration policy. It is also a fact that that DOJ chief Jeff Sessions, who, as Attorney General, is the loyal chief enforcer of Trump's draconian mass deportation agenda (which it would not be unfair or inaccurate to refer to as ethnic cleansing), may apparently be resisting these calls, as explained in the above news stories.

    Sessions' response shows that harsh governmental action against minority immigrants can still in some cases, still be consistent with adherence to the rule of law.

    But this is the exception. Far more often, singling out racial or religious minorities for persecution has led to dictatorship in the past. One only needs to look at the example of Germany in the 1930's.

    Moreover, Trump's claim of absolute power to ban foreign citizens from the US purely on the basis of his own will is one side of the same authoritarian coin that includes his push to lock up his opponent in last year's election on the other side of the same coin.

    What happened in Germany in the 1930's can happen here. Calling for a criminal investigation of Trump's presidential opponent at a time when his administration is ramping up measures against both legal and illegal immigration by non-white immigrants on almost every front, while claiming before the Supreme Court and lower federal courts that he has unlimited power to bar Muslim immigrants, or any other immigrants he chooses, from entering the United States, threatens to bring America closer to dictatorship.
    ____________________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants, from many different parts of the world, obtain work visas and green cards for more than 35 years. Roger's email address is algaselex@gmail.com


    Updated 11-16-2017 at 09:29 AM by ImmigrationLawBlogs

  3. Our immigration courts are drowning, expedited removal can bring relief. By Nolan Rappaport


    © Getty

    Trump has acknowledged that the immigration court’s enormous backlog cripples his ability to remove illegal immigrants in a timely manner, but his plan to deal with the backlog isn’t going to work.

    This chart from the Executive Office for Immigration Review's (EOIR) FY2016 Statistics Yearbook shows that the immigration judges (IJs) have not been making any progress on reducing the backlog.




    At a recent Center for Immigration Studies panel discussion on the backlog, Judge Larry Burman said, “I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020.”

    By the end of September 2016, the backlog was up to 516,031 cases. A year later, it had grown to 629,051.



    Even if the IJs did not get any new cases, it would take them more than two years to clear the backlog. Double the number of IJs and it would take a year, that is, if the backlog doesn’t increase while the new IJs are being recruited, hired, and trained.

    Trump’s backlog reduction plan.

    Read more at http://thehill.com/opinion/immigrati...n-bring-relief

    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.





  4. 60,000 Polish Nationalists Chant Anti-Immigrant Slogans, in Keeping With Trump's "Protect Western Civilization's Borders" Warsaw Speech. Roger Algase

    Update, November 13, 10:10 am:

    See also: Washington Post, November 13:

    Why neo-fascists are making a shocking surge in Poland

    (Available through Google.)

    My original comment follows:

    In a demonstration may times the size of the one in Charlottesville, 60,000 white nationalists and their supporters marched through Warsaw, Poland over the weekend of November 11-12, though red smoke bombs and carrying signs with slogans such as "white Europe of brotherly nations".

    They also chanted: "pure Poland, white Poland" and "refugees get out". A banner read: "Pray for Islamic Holocaust."

    https://www.theguardian.com/world/20...dependence-day

    The reference to the Holocaust would have been serious enough anywhere, but it was even more pointed in a city which was one of the most infamous centerpieces of the Holocaust against the Jews, as Donald Trump pointed out in his own July 6 Warsaw speech discussed below.

    Certainly Trump's Warsaw speech, which was viewed by some observers of an endorsement of Poland's right wing, anti-immigrant government, which is also reportedly undermining the basic freedoms of its own people,

    http://www.latimes.com/world/la-fg-p...017-story.html

    was far more measured in tone than that hate slogans in this weekend's demonstration. But was his speech a more politely coded version of a similar message against immigrants from outside Europe? Here are some excerpts from the president's Warsaw speech, taken from the official White House transcript of his remarks:

    https://www.whitehouse.gov/the-press...nd-july-6-2017

    First, speaking of what he sees as a common bond between America and Europe, Trump says:

    "We write symphonies. We pursue innovation. We celebrate our ancient heroes, embrace our timeless traditions and customs..."

    Then he becomes more specific:

    "What we have...what we've inherited from our ancestors has never existed to this extent before. And if we fail to preserve it, it will never, ever, exist again. So we cannot fail."

    And what is it that Trump is so intent on preserving? To be sure, in one sense, his speech affirms the importance for protecting freedom, democracy and the value of each individual against threats, whether from Nazism and Communism in the past, or from radical Islamist terrorism now. No one who believes in democracy could disagree.

    But there is also a clear, thinly coded message to white nationalist supporters in the following words of his speech.

    "Because as the Polish experience reminds us, the defense of the West ultimately depends not only on means but also on the will of people to prevail...The fundamental question of our time is whether the West has the will to survive. Do we have the confidence in our values to defend them at any cost?

    And then, in what is very arguably the real message of Trump's Warsaw speech:

    Do we have enough respect for our citizens to protect our borders? Do we have the desire and the courage to preserve our civilization in the face of those who would subvert and destroy it?"


    While the speech is, on the service, couched in the language of defending freedom and democracy (no attacks here on a free press as the "enemy of the people" or attempts to undermine judicial independence by references to "so-called judges" or judges with "Mexican heritage" whose decisions he objects to), there is also an unmistakable white nationalist message which comes straight out of the playbook of a now departed Trump adviser, Steven Bannon, and a still current one, Stephen Miller (who is widely suspected of having written the speech).

    What else could Trump have possibly meant by his references to the "traditions", "customs", "ancestors", "values" and "civilization", of "the West" which must be "preserved" at all costs by "protecting our borders" ?

    Is this not getting uncomfortably close to the spirit of Blut und Boden ("Blood and Soil")
    which the Nazis originated as their slogan and the white nationalists also used in Charlottesvile?

    But what is most unsettling for the future of many millions of non-European immigrants who would like to come to the US in the future or who are already here now and would like to stay in this country and become a permanent part of society, is that when Trump is talking about "protecting borders" to preserve "Western Civilization" he is also laying out a clear blueprint for the foundations of his immigration policies.

    There is not only a direct line between Trump's Warsaw speech and the hate march of 60,000 smoke bomb throwing white supremacist supporters in Warsaw this weekend; but, much more importantly for America, Trump's speech also anticipates his support for the RAISE Act, his push to abolish the Diversity Visa green card lottery, and a host of other actions aimed at reversing America's policies of racial and religious equality for immigrants of the past 50 years.

    Trump's Warsaw speech was a loud and clear signal that he intends to take America back toward the direction of its pre-1965 white supremacist, Europeans only, immigration regime. There may still be some Americans, and even immigrants, who have not yet caught on to the the basic motivation behind Trump's anti-immigrant agenda (or who at least would like to pretend that they haven't caught on), but 60,000 white nationalist demonstrators in Poland should have had no trouble in understanding Trump's immigration goals.

    Even if the language of Trump's Warsaw speech was far more elegant than the openly racist anti-immigrant venom of this weekend's nationalist demonstrators, the ultimate objectives were very similar.

    The greatest irony of all in Trump's Warsaw speech, however, was in his stirring description of the heroism shown by the Polish people of Warsaw in their uprising against Nazi tyranny in 1944, which he compared to today's fight for "the West" and its "civilization" , together with its "bonds of history, culture and memory" , which are now under threat from the "East" and the "South" - i.e. Asia, Africa, the Middle East and Latin America, where most of America's immigrants during the past half-century just happen to have come from under the post-1965 immigration system that Trump is now seeking to abolish.

    Aside from the fact that, while Trump had extensive praise for the uprising of the Polish people against the Nazis, but mentioned the equally important Jewish Warsaw Ghetto uprising only in passing, Trump left out one detail which he evidently did not think was worth mentioning, but which the world remembers, possibly more than any other single aspect of the horrible history of the Warsaw Ghetto.

    This was the 10 feet high barbed wire WALL which the Nazis built around the Warsaw Ghetto to seal off the Jewish population of that city, which was marked for extermination in the nearby Treblinka gas chambers, from the rest of that city's population.

    Even though some people might try to excuse his omission of this essential part of the history of the Nazi occupation of Warsaw, which was just as essential as the Berlin Wall was to the Communist opposition of that city later on, as merely being a lapse by an inept or uncaring speech writer, this omission RAISES (no pun intended) a very uncomfortable question for Trump and his followers.

    Was Trump's failure to make even the slightest mention of the Warsaw Ghetto Wall in his lengthy and detailed description of the fight against the Nazis in wartime Poland because of his plans to build his own WALL, that would be three times higher and more than 2,000 miles longer than the Warsaw Ghetto one, in order to WALL off Mexican and other Latin American immigrants from the United States?

    Or did he leave this key part of Warsaw's wartime history out in deference to right wing politicians in nearby Hungary and other parts of Europe who are calling to build their own Walls against Muslim and other immigrants from the Middle East and points beyond?

    Either way, it is not hard to understand why Trump would not have been eager to mention the Warsaw Ghetto Wall in his speech in that city.

    Of course, Trump's Warsaw speech is very far from being the only indication of his agenda of reversing America's demographic trend toward ethnic, religious and linguistic diversity by cutting off or reducing immigration from non-white areas of the world. Subir Grewal ("Subir") an independent progressive writer, predicted Trump's whites only immigration agenda in an article which appeared right after Trump took office as president after losing the popular vote a year ago to Hillary Clinton, (despite evidence of Russian interference on his behalf which is still under investigation by Robert Mueller) called:

    Make America White Again - the dream that drives the Bannon-Trump administration

    http://www.dailykos.com/stories/2017...administration

    While the title may be out of date, and the "Miller-Sessions-Trump" administration may be more appropriate now in matters relating to immigration, Subir's well researched and comprehensive article remains very current, even more so than when it was published just over 10 months ago, on February 2.

    Even though Subir is not an immigration lawyer or academic, his article is even more pertinent than it was when it actually appeared, because Trump's entire immigration agenda as president has been unfolding almost exactly as Subir predicted.

    This important article merits a separate discussion, which will appear in my forthcoming comment.
    _____________________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants, from many different parts of the world, obtain work visas and green cards for more than 35 years. Roger's email address is algaselex@gmail.com





    Updated 11-16-2017 at 09:30 AM by ImmigrationLawBlogs

  5. Report: In Trump's Latest Immigration Power Grab, DHS Secretary Threatens to Resign Over WH Pressure to End TPS for 86,000 Hondurans. Roger Algase

    The Washington Post, CNN and other news outlets are reporting that during Trump's Asian trip, White House Chief of Staff John Kelly called DHS Acting Secretary Elaine Duke from Japan to pressure her to end TPS for 86,000 Honduran immigrants, many of whom have been living in the US for decades.

    According to The Post, Kelly put forceful pressure in Duke to end the TPS designation now, instead of postponing a decision for six months to give her more time to review the situation. The same story also states that Kelly told Duke that the delay in making a decision

    "prevents our wider strategic goal [on immigration]."

    The report also says that Duke threatened to resign. For CNN's similar report and link to the Washington Post article, see:

    http://www.cnn.com/2017/11/09/politi...nts/index.html

    CNN also quotes a source as saying the following about Duke's reaction to the pressure from the White House to make a decision based on its political immigration agenda, rather than objective facts concerning conditions in gang-ridden Honduras, one of the most dangerous countries in the world, and the effect that a decision would have on tens of thousands of immigrants who have been living in the US legally for years and are mostly well integrated into American society:

    "I think she's very distraught and disappointed at Kelly and the whole apparatus...It's like, 'Why do I keep doing this if you guys are just going to beat me up?'"

    There are a few important points about this story. First, according to the above news articles, the dispute over TPS is not just a matter of government officials disagreeing with each other over some policy issue or other, but an obvious attempt by the White House to destroy any independence that an agency such as the DHS may still have, and force it to make decisions based on political considerations rather than the merits.

    This has extremely dangerous implications for immigration, because it could mean that DHS agencies such as USCIS would be making decisions on petitions and applications for immigration benefits of every variety based on Trump's immigration agenda, rather than according to the law. There are clear and very disturbing signs that this is already happening in an entirely different area of immigration law which is also under attack in the Trump Era more than ever before, namely specialty worker H-1B petitions.

    I will have more to say about that issue in the context of this year's H-1B RFE blizzard (or given the sorry record of this administration in terms of climate change denial and lack of effective assistance to non-white American citizens victims in Puerto Rico, "hurricane" might be a better word) in a forthcoming comment.

    To be sure, political goals and immigration agency actions have hardly been strangers to each other during any presidential administration. But turning the DHS into a mere extension of presidential power over immigration would have dangerous implications which go beyond immigration itself, and could destroy the foundations of democracy and the rule of law in America.

    For a further discussion of this issue in relation to the White House attempt to dictate TPS policy to the DHS, see: The Atlantic:

    Trump Battles Constraints on His Power

    https://www.theatlantic.com/politics...-power/545486/

    Furthermore, no one who has been following the president's immigration policies since taking office 10 months ago can have any doubt as to what the immigration "goal" is the Kelly referred to according to the above news report. It is, by every sign that we have seen so far, nothing short of the ethnic cleansing of millions of non-white immigrants from the US through mass deportation, and the whitening of our legal immigration system by eliminating or vastly reducing virtually every visa category which has benefited immigrants from outside Europe - as exemplified, most recently, by Trump's shameful attempt to demagogue the NYC terror attack a pretext for pushing to eliminate the Diversity Visa and to enact the RAISE Act, which is heavily skewed toward immigration from Europe.

    As an additional, but not unimportant note, it is becoming harder and harder to overlook the sheer cruelty, amounting almost to a sadistic delight in inflicting suffering on minority immigrants which has characterized so much of Trump's immigration policy (DACA aside - he does seem to have some genuine concern for the almost 800,000 young victims of his own policy in this regard, but some might see only a cynical motivation to use them as a bargaining chip for his harsh immigration agenda instead).

    For example, one remembers Trump's comments expressing delight at the way that his first Muslim ban order was initially being implemented, despite the terrible chaos and suffering that was experienced by hundreds, if not thousands, of Muslim immigrants during that phase.

    Nor, according to Salon.com writer Heather Digby Parton, is physical sadism toward non-citizens (though not exactly immigrants!) unknown in John Kelly's own background as commandant at Guantanamo. Parton writes about the horrifying torture that Kelly, according to her article, inflicted on inmates there in the course of a hunger strike. See:

    John Kelly wants mass deportation - and given his record, that's no surprise

    https://www.salon.com/2017/11/10/joh...s-no-surprise/

    Reading about the way that Kelly allegedly tormented his victims at Guantanamo according to this horrifying report, one almost has to ask if this story is really about something that took place under the control of the United States of America, or whether the writer was describing some well known locations in a certain country in Central Europe during the 1930's and early 1940's - places with names such as Dachau and Buchenwald.

    If today, the rights of immigrants, who may happen to have a skin color or religion that is out of favor with the current president and his administration, are subject to the arbitrary whim of one-man rule with unmistakable overtones of cruelty and sadism in implementation of a white supremacist agenda, what kind of rights and freedoms can the American people look forward to tomorrow?
    _____________________________________
    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 many different parts of the world, obtain work visas and green cards for more than 35 years. His email address is algaselex@gmail.com



    Updated 11-16-2017 at 09:24 AM by ImmigrationLawBlogs

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