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On April 19, the American Bar Association filed an amicus brief with the U.S. 4th Circuit Court of Appeals asking that Court to uphold the decision of a Federal District Court in Maryland staying enforcement of Donald Trump's revised executive order banning travel to the US by citizens of six overwhelmingly Muslim countries.
For the ABA announcment and a link to the full brief, see:
The announcement states that a brief will also be filed with the 9th Circuit Court of Appeals urging that Court to uphold a similar order by a Federal District Judge in Hawaii.
The ABA's 4th Circuit brief makes the following arguments against Trump's executive order imposing the ban:
1) The EO violates the Establishment Clause of the First Amendment,
2) The EO violates the equal protection guarantee of the Fifth Amendment,
3) The EO violates federal immigration laws, including the Immigration and Nationality Act of 1965.
The ABA brief also argues that the federal courts have jurisdiction to review the president's executive order because its history shows that the order is not "facially legitimate and in good faith", according to the standard enunciated in the two landmark Supreme Court cases of Kleindienst v. Mandel (1972) and Kerry v. Din (2015).
It is impossible to overestimate the significance of this litigation over Trump's latest Muslim ban executive order.
If this executive order is upheld, and especially if the courts decide that the presidential order cannot be reviewed by the judiciary, Donald Trump will be free, like a monarch more than the president of a constitutional democracy, to issue future executive orders without restraint banning immigration, not only from additional Muslim countries, as is the obvious intention based on the language of the EO itself and its predecessor seven country ban, but from any country or area of the world which Trump and his top immigration advisers, Jeff Sessions, Stephen Bannon, Stephen Miller and Kris Kobach, regard as "detrimental" to US interests.
One does not have to have unusually prescient powers to guess which countries and areas of the world those might just possibly happen to be, given the admiration that some of these top advisers, if not Trump himself, have shown for the infamous northern Europeans only Immigration Act of 1924.
(However, there is certainly no reason to expect a travel ban against citizens of Russia or of at least one other Eastern European country that comes to mind, while Donald Trump is the president.)
More details about the ABA's arguments, as well as some thoughts about how the newest Supreme Court Justice, Neil Gorsuch, might react based on his opinion in a 2016 10th Circuit deportation case, if the Muslim country ban issue ever goes to the Supreme Court, will be discussed in my forthcoming detailed analysis of the ABA's brief.
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 receive work permits and green cards for more than 35 years, without regard to ethnicity, religion or national origin. Roger's email address is email@example.com
Updated 04-20-2017 at 12:34 PM by ImmigrationLawBlogs
An April 19 article in The Hill by David W. Kreutzer, an analyst with the Heritage Foundation, justly criticizes the annual H-1B lottery as being completely ineffective for the goal of attracting the most talented foreign workers to America. No one can argue with him, but he has the wrong solution, which is to auction off H-1B visas to the employers who are willing to pay the highest salaries to the workers they are sponsoring for this visa.
"An auction would have at least two advantages. First, it would allow businesses that have the hardest time finding existing residents to fill their jobs to move to the front of the line. If the foreign employee they have identified is really that critical, they will be wiling to pay more than a firm that only seeks to get a more generic employee on the cheap. Second, it provides a measure of how much value an additional high-skilled worker is worth."
This suggestion also echoes Donald Trump's April 18 speech at the signing of his H-1B executive order stating that H-1B visas should be limited to skilled foreign workers with the highest salaries, instead of being available to those who are being paid the prevailing wages for US workers, as under current law.
The obvious problem with Kreutzer's suggestion, however, is that it would in effect limit this visa to employees of the largest companies which can afford to pay salaries at the very top of the wage scale, such as their highest ranking managers and executives. H-1B, therefore, would be turned into another version of the L-1 visa.
However, startups or even well-established smaller companies which are able to pay prevailing wages, i.e. wages equal to those being paid to American workers, to their foreign employees, as required by the current H-1B law, but cannot afford to pay salaries at the very top of the wage scale, would lose out under this proposal.
Foreign workers who have high-level skills but who are being hired for entry-level or less experienced level jobs, such as recent college graduates who are beginning their careers, or who are in an early stage in their careers, would also be frozen out under this suggestion.
It would, essentially, be a poison pill leading to the end of the end of the H-1B program as we know it - one more weapon in the restrictionist arsenal of the officials and opinion leaders inside and outside the Trump administration who would like to take America back in the direction of the northern Europeans only Immigration Act of 1924 which Trump and some of his top advisers have, directly or indirectly, praised as a model for America nearly 100 years later.
Clearly, however, Kreutzer does not agree with this restrictionist goal. He also writes:
"Saying that all immigration kills jobs for those who are already here simply does not comport with America's history. The market for skills and abilities is international. It is foolish to think that we cannot benefit from bringing the most creative and ambitious people to the United States."
But how to select H-1B foreign workers in a way that will really benefit America, in keeping with our history and traditions as a nation of immigrants? Certainly, not by the annual charade and farce of an H-1B lottery.
"It is even more foolish to think that we can identify the most creative and ambitious by flipping coins."
Nothing could be more true. What is the only fair and rational solution then? Certainly it is not to impose further restrictions on to abolish H-1B visas, as has been suggested by Jeff Sessions and other politicians who are not otherise known for supporting minimum wage laws, labor unions, health insurance or other measures that would raise wages and living standards of American workers in general, but who only seem to care about American working people as a means to keep out immigrants.
The obvious solution is to increase the number of H-1B visas in order to meet the demand. Unfortunately the chances of this happening in what Sessions has called the "Trump era" of restricted immigration and mass deportation are virtually nil.
Kreutzer's full article can be found at
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping H-1B and other mainly skilled and professional immigrants receive work visas and green cards for more than 35 years. Roger's email address is firstname.lastname@example.org
Updated 04-19-2017 at 08:49 AM by ImmigrationLawBlogs
New York announced last week that it is allocating $10 million in its FY2018 budget for creating a legal defense fund to provide lawyers for immigrants facing deportation.
Legal defense funds will not stop President Donald Trump from deporting millions of undocumented, noncriminal aliens. Lawyers are needed for removal proceedings before an immigration judge, and he will not be using the immigration court system.
As of the end of January 2017, the immigration court’s backlog was 542,411 cases. Even if no additional cases are filed, that backlog represents more than a two-and-a-half-year workload for the court's judges.
His plan for bypassing immigration court proceedings is described in the Executive Order he issued on January 25, 2017, “Border Security and Immigration Enforcement Improvements.” Section 11(c) of the Executive Order directs the Secretary of Homeland Security to use expedited removal proceedings to the full extent of the law. In expedited removal proceedings, an immigration officer can order the removal of an alien summarily without a hearing before an immigration judge.
Federal court review is available, but it is restricted to cases in which the alien makes a sufficient claim to being a United States citizen or to having lawful permanent resident status, or to having been admitted previously under specified circumstances, such as with refugee status.
Expedited removal proceedings were authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
In FY 2013, approximately 193,000 persons were deported from the United States through expedited removal proceedings. This is 44 percent of the 438,000 removals that year.
Read more at --
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.
Update: April 21, 1:30 am.
For another view supporting my contention that Donald Trump's repeated verbal assaults on the H-1B program, followed by his April 18 executive order directing a further "study" of the program, which is highly popular with skilled and professional immigrants from India and China in particular, can only be fully understood in the context of his other executive actions against Hispanic and Muslim immigrants, see Michael Pearlberg in The Guardian, April 20:
Are Trump's H-1B visa reforms just a dog-whistle for his base?
Update: April 18, 5:16 pm.
As expected, Donald Trump has signed an executive order on April 18 which, according to late breaking news reports (as I have not yet seen the actual order itself), calls for inter-agency studies aimed at finding ways of changing the H-1B program to achieve Trump's stated objective of granting such visas to "only the most skilled and highly paid applicants".
If this goal is ever achieved, and if the H-1B program is limited only to foreign workers who are at the very top of an employer's salary scale, this means in effect that this visa may be available only to top executives in the future, not to highly skilled college graduates or professional workers who are at an earlier stage in their careers, and are not yet earning the huge salaries which Trump seems to be most attracted to.
To the contrary, it now appears from Trump's latest executive order and his accompanying remarks, which also blamed H-1B immigrants for taking away jobs from American workers, that predominantly Asian immigrants, especially the most talented and highly educated, are now the scapegoats for American job losses or low wages, just as Hispanic immigrants are for being made scapegoats for crime; and Muslim immigrants, even if they have no connection whatsoever with militant Islam or are trying to escape from the threat to their own safety by jihadist organizations, are scapegoats for the threat of terrorism in Donald Trump immigration paradigm.
Therefore, far from protecting the salaries and jobs of American workers, as is the stated goal of Trump's order, H-1B "reform" (if it ever happens, as governmental studies famously often lead nowhere), limiting H-1B visas to those who are at the very top of their organizational hierarchies, could turn out just to be another strategy to reduce the number of non-European immigrants in America, as some of Trump's top advisers, not to mention Trump himself, have indicated as their ultimate goal. See below.
An updated New York Times report on this latest executive order is available at
My original comment follows:
Just as Donald Trump infamously launched his presidential campaign by attacking Mexican immigrants as "criminals" and "rapists", his first immigration executive order sought to open the door to mass deportation of Mexican, other Latin-American, and mainly non-European immigrants in general.
Then, just as candidate Trump's next openly ethnic/religious attack on immigrants called for a worldwide ban on entry into the US by Muslims (including, initially, even US citizens, according to his spokesperson Hope Hicks, as reported at that time), Trump's next immigration executive order as president sought to begin making that promise reality by a drastic blanket ban on entry to the US by approximately 150 million citizens of seven almost 100 percent Muslim countries.
As we all now know, this ban caused immense hardship, suffering, disruption and chaos to thousands of Muslim visitors, students, temporary workers and even initially, permanent residents, not to mention their American citizen family members, employers, universities, research facilities and other US sponsors.
As everyone in America now also knows, this ban was somewhat scaled back by a second version only because of pressure from the federal courts, not because of any change of heart on the part of the Trump administration.
In fact, one of Trump's top advisors, Stephen Miller, stated that the second version of the Muslim entry ban was meant to accomplish the same policy objective as the first version - i.e. making Muslim visitors and immigrants unwelcome in the United States, just as Jews were unwelcome in the 1930's; and placing Muslim US citizens in a separate and unequal category as targets of suspicion and prejudice, again, just as Jewish immigrants and US citizens were in America for a large part of 19th and 20th century history.
Then, after his attacks on Latino and Muslim immigrants, candidate Trump's next target was H-1B skilled workers, a very large percentage of whom, as again everyone in America knows, come from India, China and other countries of South Asia and East Asia. Disregarding the fact that Trump has made extensive use of this visa in his own businesses, he promised to abolish this program entirely, castigating it as a source of "cheap labor" to "take jobs away" from American workers, just as Mexican immigrants were sources of "drugs and crime" and Muslim immigrants were all potential "terrorists" who are "filled with hate" toward America.
With this history, it should come as no surprise that Trump is now, according to both the New York Times and the Washington Post, planning to sign an executive order aimed against the H-1B program. See:
See also: Washington Post, April 17:
After a series of flip-flops, Trump prepares to deliver on a key campaign pledge
(Sorry, I do not have a link. Please go to Google to access this story.)
Unlike the previous two executive orders, where the executive branch can claim to have broad powers over both deportation and entry of foreign citizens into the US, it is not clear how much the president can actually accomplish on his own to make changes in the H-1B program without the consent of Congress.
According to the above reports, the main focus of any planned executive order will be, according to the Post:
"...to ensure that the H-1B visas are awarded to the most skilled and highest paid workers".
This could mean many different things, and there would not be any point in speculating further until there is a signed order, if any.
However, one thing is clear: whatever the content of the order may be, it is likely to be both broad and vague enough to cause confusion and chaos in the H-1B system, and to intimidate US employers from sponsoring skilled foreign workers, or such workers from applying for jobs in the United States, just as Trump's previous immigration executive orders have created so much confusion and fear in their respective areas.
That indeed, might be the main purpose of any H-1B executive order that the president may sign, and its principal, if not the only, result.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping skilled and professional workers obtain H-1B and other work visas and green cards for more than 35 years. Roger's email address is
Updated 04-21-2017 at 12:39 AM by ImmigrationLawBlogs
POLITICO reports that the government could conceivably shut down later this month in a dispute over whether to include a cutoff in funding to Sanctuary Cities in the new federal budget, as Donald Trump is evidently insisting.
If there is a shutdown, as we all know from previous experience, USCIS would continue operations, since it is funded by user fees, but the DOL and DOS would both shut down, resulting in a halt in labor certification and H-1B filing as well as visa processing.
Moreover, a dispute over cutting off funding for Sanctuary Cities (and other sanctuary jurisdictions), which immigration advocates are arguing would violate the 10th Amendment, even as A.G. Jeff Sessions darkly hints at criminal prosecutions against Americans who "harbor" or "assist" unauthorized immigrants - which could conceivably include mayors or other officials of sanctuary jurisdictions - might not be the only immigration-related issue leading to a shutdown.
Funding for Trump's super-expensive Mexican border Wall and for possibly even more expensive expansions in his projected "Deportation Force" could also lead to a government shutdown.
But something as drastic as a federal government shutdown, even a short one (and there is no guarantee that this or any other shutdown would be short, especially given the president's apparent insistence on pursuing his ultra-restrictionist immigration agenda) does not only have its roots in the immediate events leading up to it.
In the case of immigration restriction, America has a very long history of taking extreme measures to discriminate against or exclude ethnic or religious groups which have been unpopular with the public and political leaders at any given time.
As everyone knows, this history goes back at least more than 150 years, to the time of the anti-Irish Know Nothings in the mid 19th Century, continuing with the Chinese exclusion laws of the 1880's and 1890's, not to mention the 20th century of racial/religious exclusion against most non-"Nordic" immigrants, continuing right up until 1965.
Anyone who thinks that this dark history is entirely behind us, and that it has no relevance to Trump's 6 (formerly 7) country Muslim immigration ban, to his mass deportation agenda, or to the other disputes going on over immigration policy today, in what A.G. Jeff Sessions, who has himself recently had high praise for a 1924 immigration law that was one of the most racially restrictive in this country's entire history, now calls the "Trump era" of immigration, would do well to read the two excellent very recent articles on this history cited below:
If Trump's nationalist policies do lead to a federal government shutdown over immigration, and let us hope there will not be one, these two insightful articles could go a long way toward explaining the reasons why.
Attorney at Law
Updated 04-18-2017 at 02:17 AM by ImmigrationLawBlogs