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POLITICO is reporting that more and more Republican "elite" politicians are gravitating toward supporting Senator Ted Cruz (Texas) for president as the last, best, hope to stop Donald Trump from getting the nomination. See:
This is despite the fact that some of Cruz' immigration proposals are even more extreme than Trump's. Take H-1B for example.
As mentioned in my recent post, Trump did a sudden about face on H-1B right after the Detroit Republican debate, and withdrew all of the sensible and realistic things he had just said about helping educated professionals stay in the United States. Instead, he came out with a denunciation of H-1B which sounded as if it could have been written by Senator Jeff Sessions (R-Ala.) or Senator Charles Grassley (R-Iowa).
However, Cruz had already gone beyond that, by proposing a 180-day moratorium on all H-1B visas. As a lawyer who has been representing H-1B clients for some three decades and who understands how much H-1B workers are contributing to our society (including some who are being paid six-figure salaries - what a myth all the talk about "cheap foreign labor" is compared to the reality in most H-1B cases), I think that Cruz' H-1B proposal is certainly extreme and irrational.
But at least it is constitutional and does not violate the spirit (if not the letter) of the First Amendment and the essence of American democracy, as does Trump's proposal for a "temporary", but indefinite, ban on admission of all Muslims from anywhere in the world to the US.
Therefore, ill-considered and unreasonable as Cruz' proposed moratorium on H-1B visas is, it is still not a threat to the foundations of our democracy and America's tradition of religious freedom, as Trump's ban on Muslims would be.
If one, for example, happens to be a Muslim skilled or professional worker who wants to work in the US in H-1B status, it would make sense to hope for a Democratic victory this fall. If either of the two Republican front-runners becomes president, it would not necessarily be good news for such an applicant.
Attorney at Law
Updated 03-09-2016 at 05:05 PM by ImmigrationLawBlogs
Update: March 8 at 7:35 am:
For a comprehensive look at the negative implications of Trump's proposal to weaken, if not entirely disregard, the laws banning torture, not only for immigration policy but for the survival of America's democracy itself, see an excellent article by WilliamSaletan in slate.com called Donald Trump's barbarism. The link is:
And for a frightening report on how Trump is ramping up his efforts to suppress any signs of dissent at his rallies in order to make them resemble genuine fascist gatherings rather than what normally passes for political meetings in America, read POLITICO: Donald Trump rallies: Crack down on protesters
These two reports are only the latest-signs-of growing-concern-across the political spectrum that Trump's attacks on Mexican and other immigrant minorities, and his calls for mass deportation, a border wall, and the banning of more than a billion Muslims throughout the world from entering the US purely on the basis of their religion could be the curtain raiser for a full scale assault on American democracy itself.
It has happened before elsewhere, such as in the expulsion of Jews from Nazi Germany which ultimately led to the full scale Holocaust. To paraphrase the title of a 1936 Sinclair Lewis novel which is being quoted by more and more commentators now, It can happen here.
Donald J. Trump can make it happen.
My original post follows.
The Hill reports on March 6 that Donald Trump has pledged not to violate the laws banning the use of torture, but that he wants to "increase" and "strengthen" these laws because the methods that the US is using now against terrorist groups such as ISIS are "too weak". He made it clear that it was not the prohibitions against torture that he wants to strengthen, but the methods of torture themselves:
"I happen to think that we should use something stronger than we have right now...
We've become very weak and ineffective ...
When the ISIS people...hear we're talking about waterboarding like it's the worst thing in the world, and they've just drowned 100 people and chopped off 50 heads...They must think we're a little bit on the weak side...
You're not going to win if we're soft and they're - they have no rules."
I will skip over the question whether the concept that using torture against real or perceived opponents makes a nation strong is associated with democracy or some other, more authoritarian form of government, because there are many excellent discussions of this issue elsewhere on the web, and this question is beyond the scope of the instant discussion.
However it is worth pointing out that Trump's above quoted remarks concerning ISIS' alleged use of drowning as a method of execution appear to be one more example of his tenuous connection with the truth when speaking about immigration-related issues. And drowning, above all else, has now become an immigration-related issue.
Yes, ISIS has reportedly posted a video showing that it drowned five of its opponents, and no one would dispute that this terrorist group specializes in using the most cruel and barbaric methods imaginable for murdering its victims. But, as the world knows only too well, thousands of Syrian refugees fleeing from ISIS, as well as from Assad's brutal dictatorship in Syria, have drowned trying to reach safety in Europe.
And these are the same refugees whose children Trump has boasted that he would be willing to look in the face and say "No, you can't come to America. (And on this point, most of Trump's opponents in his own party are no different from him.)
It would seem that Mr. Trump's interest in saving people from drowning is highly selective and limited, in that it only extends to people who have been unlucky enough to have been caught while fighting against ISIS, rather than the millions of people who are fleeing from it.
But, again setting aside larger questions such as whether lowering itself to use torture against its opponents, which would arguably put America closer to the same level as ISIS itself, is consistent with this country's values and identity, it is worth looking at the anti-torture laws which Trump would like to change. It turns out that there are quite of few of these, both international and US.
According to a May 24, 2004 paper published by Human Rights News, there are at least a dozen international and US laws, conventions and declarations prohibiting the use of torture. See the list in the following link:
These provisions will be discussed in more detail in a future post. But even assuming that Trump is elected president, and is able to persuade a torture-friendly Congress and/or Supreme Court (most unlikely) to weaken existing protections against torture in US law, how will he be able single-handedly to change international conventions to which the US is a party, such as the Geneva Convention and the Convention Against Torture, or Article 5 of the Rome Statute of the International Criminal Court making widespread or systematic use of torture a crime against humanity?
And if Trump is allowed to set out on the path of using waterboarding and other forms of torture against enemies overseas, how long will it be before these odious practices are used against domestic scapegoats, including Latino and Muslim immigrants and even US citizens, as well as political opponents in both parties.
The history of governmental use of torture in other countries, as well as Trump's own campaign statements endorsing the use of violence and other forms of retaliation against people who criticize or disagree with him, indicate that torture, once used against any real or perceived opponents, would not take very long to claim its victims in all sectors of American society.
To be continued in Part 2.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards.
Roger believes that fair and equitable immigration laws and policies depend on a fundamental respect for human rights. His email address is firstname.lastname@example.org
Updated 03-08-2016 at 06:35 AM by ImmigrationLawBlogs
At the March 3 Republican presidential debate, front runner Donald Trump created some surprises by deviating from the hard line immigration policies that have earned him the support of bitter immigration opponents such as Sen. Jeff Sessions (R-AL) and Kansas Secretary of State Kris Kobach (R), not to mention David Duke, the former KKK leader whom Trump has now finally disavowed.
In response to questions from Fox News' Megyn Kelly, whom Trump has apparently made peace with after their dust-up last summer, Trump stated that he has "changed" and "softened" his position on H-1B skilled worker visas":
"I'm changing, I'm changing",
Trump said. He continued:
"We need highly skilled people in this country, and if we can't do it, we'll get them in. But, and we do need [them] in Silicon Valley, we absolutely have to have [them]...
We do need highly skilled, and one of the biggest problems we have is people go to the best colleges...They'll go to Harvard, they'll go to Stanford, they'll go to Wharton, as soon as they get finished they'll get shoved out...
They want to stay in this country...They want to stay here desperately, they're not able to stay here...
For that reason we absolutely have to be able to keep the brain power in this country."
However, just as some hope might have been arising that a "kinder, gentler", more rational and immigrant-friendly "inner" Donald Trump was beginning to emerge, at least with regard to H-1B, Trump posted the following statement on Facebook a few hours later:
"Megyn Kelly asked about highly skilled immigration. The H-1B program is neither high-skilled nor immigration: these are temporary foreign workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay. I remain totally committed to eliminating rampant, widespread, H-1B abuse and ending outrageous practices such as those that occurred at Disney in Florida when Americans were forced to train their foreign replacements. I will end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions."
Well, maybe that last sentence needs a little qualification. Evidently, there are a few exceptions - Trump's own foreign workers, a topic that also came up at the March 3 debate. Trump was asked by Senator Marco Rubio why he hired so many foreign workers at his hotel in Florida when there were "hundreds" of Americans looking for similar jobs.
Trump's answer that these were only seasonal jobs that Americans don't want, and, besides, all the other hotels in the area were doing the same thing, according to perfectly legal procedures, could just as well been written by almost any pro-immigrant organization (except that these organization would have no doubt explained this more coherently than Trump).
Will the real Donald Trump on H-1B please stand up?
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 with work visas and green cards for more than 35 years.
A large part of Rogers' practice focuses on H-1B filings, His long experience with these cases has enabled him to avoid many of the pitfalls that can often lead to H-1B RFE's or denials.
Roger's email address is email@example.com
Updated 03-09-2016 at 12:25 PM by ImmigrationLawBlogs
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision in Matter of First Tek Technologies, Inc. that reiterated that job orders and advertisements conducted to fulfill the additional recruitment steps for a labor certification case are not subject to the advertisement content requirements specified in 20 C.F.R. § 656.17(f). The employer filed an Application for Permanent Employment Certification for the role of “Programmer / Analyst.” The case was audited and the Certifying Officer (“CO”) denied the case on the basis that the employer’s job order and the advertisement conducted through a job search website “did not include a travel requirements listed on the ETA Form 9089.” The CO cited 20 C.F.R. § 656.17(f) as the basis for the denial. 20 C.F.R. § 656.17(f) applies to “advertisements placed in newspapers of general circulation [and] professional journals.” In reviewing prior case history, BALCA determined that the Matter of Chabad Lubavitch Center and Matter of Symatec Corporation cases established that job orders and advertisements conducted to fulfill the additional recruitment steps are not required to “comply with the detailed content requirements of section 656.17(f).” Thus, the denial was overturned. The content requirements for the advertisements that are conducted as part of a recruitment effort for a labor certification case involve many nuances. The Hammond Law Group is happy to assist employers in drafting appropriate advertisements that meet the Department of Labor’s requirements. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/.
This is not a political blog, and I will leave it to the pundits and politicians to opine on whether the results of the March 1 "Super Tuesday" primaries brought Donald Trump closer to becoming the president of the United States or not, or whether there is any chance left of stopping him from becoming the Republican nominee.
Anyone who is interested in that kind of speculation can easily find it in dozens, if not hundreds, of other places on the Internet. Nor it my intention to speculate on which of Trump's campaign promises concerning immigration he will try to keep if he become president.
How many unauthorized Latino and other minority immigrants would he actually deport? Will he really build the Wall and make Mexico pay for it? How long would an attempt to impose his ban on entry by Muslims continue?
Would the Muslim ban include American citizens returning from overseas, in direct violation of the free exercise of religion guaranteed by the First Amendment to the Constitution?
If anyone other than Trump himself were asked these questions, the only possible answer would be the same one that Tevye gave in the iconic Broadway musical "Fiddler on the Roof", namely:
"I'll tell you - I don't know."
Very possibly, Trump himself doesn't know what he would do, and in any event, he has frequently praised the perceived advantages of being unpredictable. Again, this kind of speculation can easily be found on many sites other than this one.
My concern in this post is not with the details of which immigration policies might or might not be carried out under a Trump presidency, but with how the decisions about which policies to adopt would be made.
Up to now, and ever since the time of Supreme Court decisions upholding the Chinese exclusion laws beginning in the 1880's (to be brought back more than 130 years later in the form of a Muslim exclusion law under President Trump?), the legal doctrine concerning enacting and enforcing immigration laws and regulations has been that these are the province of the "political" branches of the government, i.e. Congress and the Executive, with little or no interference from the judicial branch, i.e. the courts.
Leaving aside for now the issue of the role of the courts in reviewing immigration policy, which is arguably greater than it may have have been during the dark period of racial prejudice in our history that gave rise to the Chinese exclusion laws (but see US v. Wong Kim Ark, 1898), where the Supreme Court invalidated an action of the executive branch in excluding the US-born child of Chinese citizen parents as contrary to the Constitution), the main focus today is on the balance between the two political branches of the government in making and executing laws and regulations relating to immigration.
Without any doubt, the ongoing case of Texas v. US, which the Supreme Court has now agreed to review, constitutes a major test of this balance, involving the extent to which the president can determine immigration policy by executive action without the consent of Congress.
But what happens if America one day has a president who believes that the will of the American people regarding immigration (among other policy determinations) resides entirely in his own person, and that Congress is either irrelevant or just another inconvenient opponent to be crushed or eliminated?
Is such a thing possible in America? There may be a hint of what the answer could be under a Donald Trump presidency in the Huffington Post's report concerning Trump's reaction on March 1 to criticism from his fellow Republican, House Speaker Paul Ryan, over Trump's perceived lack of forthrightness in disavowing the support of David Duke, the former Ku Klux Klan leader.
The Huffpost reports their exchange as follows. First, Ryan:
"If a person wants to be the nominee of the Republican party, there can be no evasion and no games...They must reject any group or cause that is built on bigotry."
And here is Trump's answer:
"Paul Ryan, I'm sure I'm going to get along great with him. And if I don't, he's going to have to pay a big price. OK?"
To anyone who has been paying even the slightest attention to the presidential campaign so far, it will be obvious that this is not the first threat of retaliation (or, in the case of protesters at his rallies actual violence that he has encouraged his security people to use) that Trump has made against anyone who disagrees with or opposes him.
But to engage in this kind of bullying and threats against a well-regarded, highly respected Speaker of the House from his own party (who, it will be remembered, is himself third in line for the presidency), is, arguably, taking the idea of government by intimidation to an entirely new, and very troubling, level.
What could government under a president who combines a belief in his own infallibility as the sole representative of the will of the people with a willingness to govern by raw power be like? It could be called many things, but democracy would not be one of them.
Andrew J. Bacevich writes the following in salon.com on March 2:
"Should Trump or a Trump mini-me ultimately succeed in capturing the presidency, a possibility that can no longer be dismissed out of hand, the effects will be even more profound. In all but name, the United States will cease to be a constitutional republic. Once President Trump inevitably declares that he alone expresses the popular will, Americans will find that they have traded the rule of law for a version of caudillismo."
If Trump is elected, could Congress become cowed and intimidated into total irrelevance, and immigration laws and policies be determined entirely by presidential decree? And if this were to happen, would there be any greater respect or deference for immigration decisions by the US Supreme Court, or would these too be brushed aside as "unrepresentative" opinions by "a bunch of unelected lawyers wearing robes"?
America might soon have a chance to find out.
Roger Algase is a New York immigration lawyer and graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from many different parts of the world and diverse ethnic and religious backgrounds obtain work visas and green cards.
Roger's email address is firstname.lastname@example.org
Updated 03-09-2016 at 02:33 PM by ImmigrationLawBlogs