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Update, March 8, 11:57 pm:
Ann Coulter served up more bigotry against brown immigrants in a speech at the right wing Republican Conservative Political Action Conference (CPAC), according to a March 8 POLITICO report: Coulter slams GOP pols on immigration.
POLITICO quotes Coulter as follows:
"And on top of that, something I think people haven't really noticed - well, certainly they've noticed on MSNBC where they are celebrating the browning of America, but if you don't celebrate it you're a racist - it is going to be people who are not from America who are in theory going to funding older white people who are getting to their Social Security, Medicare age. I don't think that can last."
In other words, Coulter is saying that white people will not be able to rely on their Medicare or Social Security if these programs depend on money being paid into the system by brown people.
I had always thought that money had only one color - green. But its seems that the Republican right wing has the idea that money earned or paid in by brown immigrants is not worth as much as money from white American workers.
No wonder the Tea Party-controlled House GOP leadership is so anxious to deport every last one of the 11 million plus mainly non-white immigrants who are in the US without legal status, and to scare the president away from using his administrative power to grant relief from removal which the courts have consistently upheld.
Question: why is President Obama letting himself be bullied and intimidated by Congressional right wing legislative circus tactics such as the one described below?
The following is my original post:
House Republican leaders are continuing to throw egg in the faces of immigration supporters who have been taking them at their word and believing in their good faith on immigration reform during the past eight months. Three influential GOP Representatives, Trey Gowdy (SC), Darrell Issa (CA) and Bob Goodlatte (VA), who is head of the House Judiciary Committee, are backing a bill known as the ENFORCE Act (H.R. 4138).
The Hill reports that this bill would allow the House or Senate to authorize legal action against the administration's alleged "willful neglect of the law".
What law are they talking about? According to The Hill, one of the main targets of the bill is the president's decision to delay deportation proceedings against noncriminal unauthorized immigrants.
See House targets Obama's law enforcement (March 7)
As I have mentioned previously, Goodlatte in particular is someone whom some starry-eyed immigration supporters were looking to not too long ago as a knight in shining white armor, who would (one day) report a package of "piecemeal" immigration reform bills out of his committee which would add up to real immigration reform.
Does anyone still think that Goodlatte, or any other House Republican leader from John Boehner on down, has any such idea?
Instead, what are we seeing from Sir Bob and his House Republican colleagues (one of whom, Trey Gowdy, was behind the notorious House GOP "SAFE" Act bill which would put Arizona's Sheriff Joe and bigoted Alabama officials back in the business of rounding up and incarcerating anyone who speaks Spanish or "looks" Latino on suspicion of being an "illegal immigrant invader")?
We are seeing nothing but more Republican immigration "enforcement" demagoguery and legislative stunts to pander to white Republican voters who want to kick every single brown immigrant (and their American children) out of the United States and close our borders so that no more will come in, legally or otherwise.
And how much longer will immigration advocates be naive enough to think that the president is serious about "bringing around" the House Republicans and their Tea Party puppet masters by deporting 2 million non-white men, women and children?
Maybe it is time for immigration supporters to throw away their rose-colored glasses and to pay more attention to how 11 million brown immigrants who are American in every way except their lack of legal status are being betrayed, not only by the Republicans, but by a president who continues to insist that he will somehow be able to make a deal with the GOP on reform, if only he deports enough million people first.
Updated 03-08-2014 at 10:57 PM by ImmigrationLawBlogs
In my March 6 post, I focused on the issue of how the USCIS defines a "specialty occupation" for H-1B purposes. This post will continue that discussion, in the light of what appears to be a senseless and deliberately distorted agency-wide policy, not just the mistaken views of a handful of rogue or inadequately trained Service Center examiners.
I say this because the USCIS argument that I am about to describe, which has been criticized in the strongest possible terms in a recent federal court decision which Service Center officers have evidently chosen to ignore (or may conceivably be under instructions from their superiors to do so), has been raised in three different RFE's I have received recently, two from the Vermont Service Center and one from the California Service Center.
(One of the three cases has since been approved; a second is being withdrawn for unrelated reasons, and the third is pending, awaiting my response).
First, I will frame the issue more precisely. As mentioned in my previous post, the H-1B regulations provide four criteria for determining whether a given position is an H-1B "specialty occupation".
While the regulations also provide that meeting any one of the four criteria is enough to qualify the offered position as an H-1B level job, in practice (at least based on my experience), USCIS examiners give the greatest weight to the first of the four criteria, which reads as follows, 8 C.F.R. Section 214.2(h)(4)(iii)(A)(1):
A baccalaureate or higher degree or the equivalent is normally the minimum requirement for entry into the particular position.
The above regulation does not say that the degree (or equivalent) must be in a particular specialty. However, the AAO (Administrative Appeals Office) of the USCIS has long held that this is the way that the regulation should be interpreted, and this interpretation is now so well accepted that it would be pointless to challenge it.
The question, therefore, is: what does the provision that the position must require a degree in a "specific specialty" mean? Does it literally mean that the degree normally required for the position must be in one particular field, and one field only, or can the degree be in any one of a limited number of fields normally considered as related to the offered H-1B position?
If the former is the correct interpretation, then few H-1B petitions indeed would be approvable, and we would not have to worry very much about the annual cap on H-1B visas. Only a very limited number of occupations have an exact one-to-one correspondence between the duties of the position and the title of the required degree.
Examples are occupations such as law, medicine and engineering. If only lawyers, doctors and engineers could qualify for H-1B approval, however, it is highly unlikely that the 65,000 annual limit (or 85,000, for US advanced degree holders) on new H-1B visas would ever be reached. One of the most contentious issues in all of employment-based immigration law would all but disappear from discussion sites such as this one.
Therefore, for many years, USCIS and its predecessor INS have followed a common sense approach which recognizes that a specialized body of knowledge may be acquired though more than just one type of degree. For example, in order to work as an accountant, one can have a bachelor or higher degree in either accounting or finance. One can also have the above degree in business administration, with a heavy dose of coursework in accounting, finance or economics.
There are also similar varieties of degrees which can qualify someone for a job in economics, graphic design, as a writer/editor, computer software developer, or in numerous other positions which are nevertheless traditionally recognized as H-1B specialty occupations.
In the past, USCIS has rarely used the absurd argument (in most instances) that if there is more than one single bachelor or higher degree major that could qualify someone of a particular job, but there instead several different but related fields of bachelor degree level study that would be acceptable to an typical employer hiring for the position, then the job is not a specialty occupation.
But this respect for reason and reality on the part of USCIS H-1B examiners appears to be vanishing. An example is the position of Market Research Analyst, formerly one of the longest and best-recognized H-1B positions of all. This will be discussed in my next post.
To be continued.
Roger Algase is a graduate of Harvard College and Harvard Law School. During his more than 30 years as a New York immigration lawyer, he has been helping H-1B and many other business and professional immigrants deal successfully with our complex immigration system. His email address is firstname.lastname@example.org
Updated 03-08-2014 at 12:56 AM by ImmigrationLawBlogs
There are many challenges faced by employers filing H-1B petitions on behalf of their employees. One of the biggest, which is on everyone's mind as we approach April 1, is the fact that unless the economy is exceptionally weak, which does not seem to be the case this year, there will most likely not be enough H-1B visas available to ensure that all cases will accepted for filing.
Last year, according to statistics, only approximately 60 percent of petitions for employees subject to the annual H-1B cap were accepted for filing, while the other 40 per cent were rejected for lack of visas. While there is wide support in both parties for increasing the number of H-1B visas, the broader politics of immigration reform makes it unlikely that this problem will be fixed any time soon.
Another challenge, which is being discussed in a series of Immigration Daily articles by two distinguished immigration attorneys, David Nachman and Rabindra K. Singh, is that of dealing with the complicated and punitive US Labor Department regulations concerning H-1B prevailing wages, posting and record keeping.
My post today will discuss a third, and no less important challenge - getting an H-1B case approved. In order for an H-1B petition to be approved, it is not enough to show that the sponsored employee has a bachelor or higher degree (or the equivalent) in a particular specialty occupation.
It is also necessary to convince the USCIS Service Center that the offered job (which for some reason USCIS officers like to call the "proffered position" - borrowing a word which I always thought was connected mainly with criminal law) qualifies as a specialty job.
There is already a large literature of USCIS, Legacy INS and federal court decisions about this issue, and claiming that a given position does not normally need someone with a bachelor or higher degree in a particular specialty in order to qualify is a favorite, classic, argument used by USCIS examiners to deny many H-1B cases.
As most readers no doubt already know, there are four criteria for a specialty occupation listed in the H-1B regulations, which can be stated as follows. (The following is not the exact language of the regulations, only a summary. Also, the term "bachelor degree" should be understood as including work experience and/or education equivalent to a bachelor degree - another complicated issue which will not be discussed further in this post):
1) The position normally requires a bachelor or higher degree in a particular specialty.
2) The requirement of a specialty bachelor or higher degree for the position is normal in the industry in question,
3) The employer itself normally requires a specialty bachelor or higher degree for the position or similar positions.
4) The duties of the position are so specialized and complex as to be normally associated with attainment of a specialty bachelor or higher degree.
All of the above requirements are equal in theory, in the sense that if any single one of them is met, the job must be accepted as a "specialty occupation" qualifying for H-1B. However, just as George Orwell famously wrote in his 1945 novel Animal Farm that "All animals are equal, but some animals are more equal than others", it also turns out that all H-1B specialty occupation criteria are equal too, but some criteria are more equal than others.
The one that is most "equal" of all is the first criterion, namely that a specialty bachelor or higher degree has to be the normal requirement for the offered position. In my experience, and based on a reading of numerous Service Center and AAO decision, if USCIS doesn't agree that this first criterion has been met, then Lots of Luck in convincing the agency that any of the other three criteria applies either.
In deciding whether a specialty bachelor or higher degree is the "normal requirement" for any given job, the USCIS places very heavy reliance on a US Department of Labor publication known as the Occupational Outlook Handbook ("OOH"), which in a entry called "How to Become One", lists educational and work experience requirements for hundreds of different jobs.
The only problem is that this publication, which is updated every two years, is not written as a manual for immigration officers. It is intended as a general guide for people choosing or thinking of changing careers.
Therefore, its comments about what kind of education or experience may be required for a particular position do not always have the kind of precision that is required to make a legal judgment about whether a particular requirement of an H-1B regulation has been met. To the contrary, the language of the OOH can often rival that of the ancient Delphic or Sybiline oracles in obscurity.
However, even when the language of the OOH is clear, it can be distorted or just blatantly ignored by USCIS officers who may appear to care more about showing how "tough" they can be in H-1B cases in order to appease public anti-H-1B sentiment driven by right wing (and sometimes also left wing) propaganda about "protecting American jobs" against "cheap foreign labor" (by well educated H-1B professionals who may be earning six figure annual salaries)!
I will discuss some examples of this in recent RFE's I have received in a few of my own pending H-1B cases in my next post. These examples will focus on the absurd way in which immigration officers are distorting the plain language of the requirement that the job must require a bachelor or higher degree "in a related specialty" past the point of no return.
To be continued.
Roger Algase is a graduate of Harvard College and Harvard Law School. In more than 30 years as a New York immigration lawyer, he has been helping H-1B, labor certification, extraordinary ability, marriage-based and other business and professional immigrants deal successfully with our complex immigration system. His email address is email@example.com
Updated 03-08-2014 at 01:07 AM by ImmigrationLawBlogs
Update - March 4, 10:07 pm:
Senator Bob Menendez (D-NJ) also spoke out against Obama's deportation policy at the same Tuesday night La Raza dinner mentioned below.
The Hill quotes the Senator as follows:
"The current deportation apparatus is an outrage and its a tragedy."
Menendez also stated:
"Just two weeks ago, my office had to ask ICE to reconsider the unfair deportation of a New Jersey man with no criminal record and three US citizen children - one of whom is very ill and is in medical need of his father...Does anyone think that an upstanding citizen and New Jerseyan like Carlos before a criminal is deported?"
Of course, some people will be quick to point out that the individual involved is facing deportation precisely because he is not a citizen - of the US. But the more profound reason for the deportation proceedings against him is that there are still all too many Americans who cannot handle the idea of America's becoming a truly multiracial society.
But one can also ask whether America's first non-white president should be the one to carry out this racially motivated deportation agenda more vigorously than any other president has done before him.
The following is my original post:
If the Republicans are being hypocritical by claiming that they are holding up immigration reform because President Obama "cannot be trusted" to enforce the law, the president is being equally hypocritical, if not even more so, by arguing that he is deporting two million people in order to "bring Republicans around" to supporting reform.
This, in effect, is what Janet Murguia, President of the National Council of La Raza, is saying in a speech which will be given Tuesday night at at NCLR's Capital Awards dinner, according to a report in POLITICO, National Council of La Raza leader calls Barack Obama 'deporter-in-chief (March 4).
POLITICO quotes Murguia as follows:
"We respectfully disagree with the president on his ability to stop unnecessary deportations...He can stop tearing families apart. He can stop throwing communities and businesses into chaos. He can stop turning a blind eye to the harm being done. He does have the power to stop this. Failure to act will be a shameful legacy for his presidency."
It is becoming more and more obvious that the Republican House leadership has no intention of passing immigration reform any time in the near future, but is merely waiting for a Republican- controlled Senate to be elected this fall. This would remove reform entirely from the Congressional agenda, to be replaced in all likelihood by the traditional GOP enforcement only proposals, including ones that would put Arizona, Alabama, and many other red states back in the immigrant persecution business.
Reform does not stand still. Either it moves forward or it goes backward. Therefore, the focus is increasingly turning to the president and his refusal to use the broad executive powers over immigration enforcement which the courts have upheld many times, and for many decades, in order to slow down or end the mass expulsion of millions of brown immigrants.
How much longer can the president continue to get away with pretending that he has no power to stop, or at least slow down, the deportations? Probably not much longer than the Republicans can continue to succeed in getting away with their hollow pretense that they are serious about reform, but just "need more time" to "get it done the right way" (i.e. never and no way).
On a related matter, as we now go into the homestretch in this year's H-1B season, we should be asking ourselves whether President Obama is not also competing for the title of "Denier-in-Chief" for skilled worker petitions.
My upcoming posts will take a closer look into one of the strategies which USCIS using to delay or deny meritorious H-1B cases - namely arguing that the offered H-1B position does not require a bachelor degree (or the equivalent) in a particular specialty in order to qualify for the position.
In some recent RFE's which I have received, the USCIS has carried this argument to absurd lengths, calling into question not only some Service Center H-1B examiners' objectivity and willingness to follow federal court decisions, but even their ability to read basic English.
Just as the president should not be allowed to get away with the false argument that he has no power to stop or limit the deportations, immigration officials should not be allowed to mislead the public into thinking that lack of H-1B visas, serious as this problem is, is the only reason why many H-1B petitions are not being approved.
To be continued.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping H-1B and other business and professional immigrants deal successfully with our complex immigration system. His practice also includes O-1 and EB-1 extraordinary ability petitions, PERM labor certifications, and green cards based on opposite or same sex marriages, among other immigration cases. His email address is firstname.lastname@example.org
Updated 03-04-2014 at 09:08 PM by ImmigrationLawBlogs
With all the polling coming out showing that a majority of American voters in both parties now support some type of legal status (albeit with conditions - but that has always been part of the bargain) for 11 million out-of-status immigrants, and that support for a pathway to citizenship is also growing, one might think that even the Republican House leaders who have been holding up reform for the past eight months would be paying some attention.
And, indeed, there is reason to believe that the Republican leaders are now heeding the voices of the people on immigration reform. The only question is: whose voices? And of which people?
The answer, according to a February 23 article in technicalcrunch.com is that they are heeding the voices of Iowa Republicans, especially those in the district of Representative Steve King (R-Iowa), whose vile racist attacks on Latino immigrants have earned him the condemnation of all decent Americans, including many influential Republicans.
According to its above article: A New Poll Showing Why Immigration Reform Probably Won't Pass This Year, TechCrunch ran a poll (with Google Surveys) in Steve King's district and found that 53 per cent of Republicans in the district would not vote for a candidate who favored an eventual path to citizenship for undocumented workers.
First, does this mean anything at all? A pathway to citizenship is a separate issue from the issue of legalization. The first, obviously, involves the eventual right to vote, one of great sensitivity to Republicans who are justly concerned about their abysmal standing with minority voters whom they are doing everything possible to antagonize.
The second issue primarily involves relief from the deportation mill which is now about to claim its 2 millionth deportee under our nation's Deporter-in-Chief , Barack Obama, who still claims with a straight face that he supports immigration reform.
According to every poll I have seen, significantly more Americans support relief from deportation and some sort of legal status for unauthorized immigrants than support a special pathway to citizenship for them. But suppose for the purposes of argument that every one of the 53 per cent of Republicans in Steve King's district who are against a pathway to citizenship is also opposed to any kind of legalization or relief from deportation for 11 million people.
Is Steve King's district typical of America in general? Of course not. The same article states that national polls show that a majority of the American public supports a path to citizenship (not just legalization) for the approximately 11 million immigrants who are in this country without legal authority.
Then why is there so much attention to Steve King's district, or Iowa in general? That question answers itself.
"A relative minority of conservatives have persuaded the leadership in the House of Representatives that it's too political [sic] dangerous to pass a [reform] bill this year, even though it's broadly popular."
And Iowa, of course, is where presidential primaries begin. Is America really a democracy or not? Immigration supporters may be asking that question more and more often as 2014 passes by without immigration reform and we come closer to 2016.
Updated 03-01-2014 at 07:25 PM by ImmigrationLawBlogs