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  1. Honor the SC Church Shooting Victims. Pass Immigration Reform. By Roger Algase

    As the nation tries to recover from the despicable act of domestic terrorism by a hate crazed young white supremacist who murdered nine innocent black people at a church service this past week, there has been much discussion about what is the best way to honor the lives of the victims.

    (As an aside, I would like to mention that there is a story in my own family history relating to black-white relations in South Carolina. My grandfather, a late-19th century immigrant escaping from anti-Semitic persecution in Czarist Russia, was the Rabbi of a Jewish congregation in Beaufort, SC at the beginning of the last century. He was forced to leave his post and move to the North because his congregation objected to his personal friendship he had formed with a local black minister, whom my grandfather (horrors!) used to invite to his home (to play cards together, not to worship God, as my mother used to tell the story).

    To get back to the most recent horrible shooting, more than a hundred years later, I would like to suggest that the best way to honor the victims would be to pass immigration reform, including legalization and eventual US citizenship for the 11 million people now country without legal status. What? Where is the connection between the mass killing at an African-American church and immigration?

    True, there are no reports that any of the victims was an immigrant or that this was a church with significant immigrant membership. Nothing that the alleged killer has said or done indicates that he had any particular feelings about immigrants, one way or the other. So what does immigration reform have to do with this terrible hate crime?

    The last question answers itself. First there is denial. According to a news report following the mass murder, Fox News immediately tried to characterize the church killings as directed against religion, not against black people. This kind of spin is a deliberate. terrible insult to the victims, and to America, as the suspect has already confessed and made clear that he was motivated only by racial hatred against blacks.

    Second, and most fundamental of all, comes hate. In the church massacre case, it was hate against American-born US citizens of color (who, up until 150 years ago would be been ineligible for citizenship because of their color, according to the supreme law of this land).

    In the case of failure to pass Congressional immigration reform, and the bitter opposition to reform through executive action on the part of more than half the states in the Union who are suing to block the president's initiative, there can be no denying that one of the principal motives for supporting mass deportation of 11 million people is the negative stereotyping of Mexican, Central American and South American immigrants as "invaders". "criminals" "freeloaders", "job stealers" and "disease carriers" among white voters in key states. This is also behind the movement to take away American citizenship from the US-born children of these unpopular immigrants, which has been a prelude to persecution and expulsion in the past in other countries of the world.

    No lengthy explanation is needed to show that hate against unpopular immigrant groups, whether Irish, Asians, Italians, Jews, and many others in the past; or now, mainly Latino, Caribbean, Middle Eastern and African immigrants, has always been part of America's immigration history and still is, with only the targets changing.

    If we truly want to honor the memory of the church shooting victims in Charleston, South Carolina, let us overcome hate, not only against African-Americans, but against all people of color, including the 11 million immigrants in America who are forced to live as an underclass, with no rights or legal status, and in constant fear of arrest and deportation. Let us stop persisting in the polite and politically correct (on both sides) denial that prejudice against minority immigrants has anything to do with the frantic opposition to allowing them legal status. Let us enact immigration reform.

    And let us also outgrow and overcome the nativism and xenophobia which, even if it might not be specifically racially based (which is debatable) is making Indian, Chinese and other H-1B, L-1 and employment-based skilled and professional immigrants scapegoats for America's own economic difficulties or shortcomings. Let us also increase the caps on H-1B visas and put an end to the administrative "culture of no" which currently bars so many skilled, highly educated workers from our shores.

    Then, the tragic deaths of nine Americans who were murdered solely because of the color of their skin will have more meaning.

    Updated 06-21-2015 at 09:58 AM by ImmigrationLawBlogs

  2. SCOTUS Right Wing Trashes Marriage Rights In Visa Denial Case, Pt. 2. By Roger Algase

    This will continue my discussion of the Supreme Court's June 15 decision in Kerry v. Din which I began on June 16. One of my colleagues, in a personal communication, has suggested that the entire issue of whether a USC marriage partner has a Constitutional right that may be "burdened" by denying an immigration benefit to that person's spouse is irrelevant in the visa denial context.

    This is because State Department procedures do not provide for a right to appeal from visa denials. At the most, they allow the applicant to ask for discretionary review of the denial (or to reapply, which in the context of this case, would have obviously been futile). See 9 FAM 41.121 PN 1.2-7

    This argument, however, overlooks the central issue in the Din case. This issue was whether the above State Department policy, compounded by the fact that the USC spouse was not given any explanation about the factual reasons for the denial, making it even harder for her to articulate a basis for discretionary review, deprived her of a Constitutional right, based on her marriage relationship.

    If it did, then the Constitution would take precedence over whatever procedures the State Department has in place limiting the right to review the visa denial, unless the Supreme Court determined that the Constitution has no place whatsoever in visa related matters.

    In that case, FAM would be the supreme law of the land, not the United States Constitution. But nothing in Justice Scalia's opinion supports that view. if Justice Scalia had intended to hold that visa denial decisions are beyond the reach of the US Constitution, there would have been no reason for him to go to such great lengths to discuss whether or not the USC spouse's marriage rights were protected by the Constitution in this particular case.

    Instead, Justice Scalia could have simply, in one or two sentences, held that it it not matter whether or not Ms. Din had a Constitutionally protected right to live with her husband in the United States, because visa denials, if not immigration matters in general, are beyond the reach of the Constitution. But Justice Scalia did not so state.

    There is such a doctrine (or at least used to be not so long ago), known as "Plenary Power" over immigration. As I have pointed out elsewhere, this doctrine was developed back in the days of the notorious Chinese exclusion laws to make it easier for Congress and the executive to exclude or expel racial minorities without interference from the courts.

    While no longer as extensive as it once was, the Plenary Power doctrine still has an interesting half life, or afterlife, as shown in Justice Kennedy's concurring opinion which I will discuss in the next installment of this series. Plenary Power may even provide a stronger legal basis for upholding President Obama's executive actions on immigration than most people realize.

    Justice Scalia's plurality opinion, however, did not rely on the Plenary Power doctrine as a basis for his decision. Instead, his opinion went to great lengths to argue that Ms. Din did not have a Constitutionally protected right in her marriage relationship in the first place. If she had had such a right, Justice Scalia's opinion, while admittedly dictum on this point, implied that she might have also had the right to review her husband's visa denial.

    In Justice Scalia's words:

    "Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage. they both implicitly concede that no such right has been infringed in this case." ​ (Bold added.)

    This at least leaves the door open to a possible future decision that in a case where a visa applicant (or a petitioner on that person's behalf) is able to show that he or she has a Constitutional right which is being infringed by a visa denial, the State Department would be required to review the denial.

    This is certainly the view of the dissent in the Din case, which was signed by all four liberal Justices, and will be discussed in a future post dealing with this important case.

    Justice Scalia also may appear to have been less than totally comfortable with his conclusion that there no Constitutionally protected marriage right that was infringed, or "burdened" by the visa denial. He admits that the right to enter into marriage is protected by the Constitution, by citing Loving v. Virginia 388 U.S.1 (1967) in which a unanimous Supreme Court overturned a state ban on interracial marriages on Constitutional grounds.

    But Justice Scalia tries to distinguish Loving on the grounds that:

    "...the Federal Government here has not attempted to forbid a marriage."

    True enough, the federal government did not forbid Ms. Din from marrying her husband. The government only forbade her from living together with her husband in the United States, her country of citizenship. Arguing that preventing her from living with her husband in her own country is not an infringement of her marriage rights is standing on very thin ground indeed.

    In my next post, I will discuss Justice Kennedy's concurring opinion, which, unlike Justice Scalia's, does rely on what might be called a modified or limited version of the Plenary Power doctrine, as I have mentioned above. It will be instructive to see what Justice Kennedy has to say about it.
    Roger Algase is a New York lawyer who has been helping skilled, professional and family-based immigrants with work visas and green cards for more than 30 years. He is a graduate of Harvard College and Harvard Law School, and a member of the bars of New York and New Jersey, as well as various federal district and circuit courts and the United States Supreme Court.

    His practice is focused on H-1B specialty worker, O-1 outstanding achievement and L-1 intracompany transferee work permits, and J-1 training visas; as well as green cards through labor certification, extraordinary ability and opposite sex or same sex marriage. Roger's email address is algaselex@gmail.com

    Updated 06-17-2015 at 07:22 PM by ImmigrationLawBlogs

  3. SCOTUS Right Wing Trashes Marriage Rights In Visa Denial Case. By Roger Algase

    On June 15, the Supreme Court's right wing majority dealt a heavy blow to the basic Constitutional right of a US citizen to maintain a lawful marriage relationship by upholding a consular visa officer's denial of an immigrant visa to her husband, a citizen of Afghanistan, without an adequate explanation. In two separate opinions, the five right wing justices ruled that the visa denial did not violate the US citizen spouse's right to due process of law.

    Justice Breyer, in an carefully written and well reasoned dissent on behalf of the Court's four liberal justices, argued (against the plurality opinion of Justice Scalia) that the right of a US citizen to live together with her/his spouse without having to leave the US is a fundamental Constitutional right that is protected by the due process clause of the 14th Amendment.

    Justice Breyer's dissent also rebutted the argument of Justice Kennedy in a concurring opinion (joined in by Justice Alito) that even if the US citizen wife had a due process right based on her marriage that was protected by the Constitution, the pro forma reason given by government for the visa denial was sufficient to satisfy due process requirements.

    This case, once again, highlights the tension between fundamental constitutional rights of US citizens and the "plenary power" of Congress and the executive branch to decide who will be admitted to the United States and who will not. It also, needless to say, highlights the ideological differences between the Court's right wing majority and its liberal minority.

    In this case, Kerry v. Din, a US citizen, Fauzia Din, had filed an I-130 immediate relative petition on behalf of her husband, Kanishka Berashk, an Afghan citizen and former civil servant under the Taliban regime. The petition was approved, but a US visa officer denied Berashk an immigrant visa under a statute making non-citizens who have engaged in "terrorist activities" excludible from the US.

    No explanation was given as to what "terrorist activities" Barashk had allegedly engaged in (other than, presumably, having formerly been employed by the Taliban government). Ms. Din claimed that the lack of a more detailed explanation for the denial deprived her, without affording her due process of law, of her claimed right to request the U.S. State Department to conduct a discretionary review of the visa denial.

    Justice Scalia, in a plurality (not majority) opinion joined in by Chief Justice Roberts and Justice Thomas, argued that Ms. Din had no constitutionally protected marriage rights that were being infringed by denying her husband a visa. In taking "originalism" back to an even earlier point in time than usual, Scalia was not content to rest on the normal argument of this school of thought that only the literal language of the Constitution, as written in the 18th century, should be controlling.

    Instead, Justice Scalia went back a full 800 years (exactly) from the present to see if marriage rights were among those protected by the Magna Carta, issued in 1215. Not surprisingly, they were not listed in that document, for the obvious reason that the Magna Carta had nothing whatsoever to do with marriage issues. The Magna Carta was only concerned with defining the relationship between the king and his feudal barons.

    If Justice Scalia had been more seriously interested in the legal history of marriage rights, he could have looked back to ancient Roman doctrine of ius conubii, which (according to Aldolf Berger's Encyclopedic Dictionary of Roman Law - 1953) was eventually extended to recognize the marriage rights of foreign, not only Roman, citizens.

    However, deciding a 21st century Constitutional issue by looking at a list of rights contained in a 13th century document to see which ones were specifically mentioned as being protected cannot be called serious legal scholarship, because it ignores the fundamental meaning and purpose of this "Great Charter".

    That purpose was not to enumerate specific rights as worthy or not worthy of protection, but in the words of Justice Breyer's dissent:

    "These procedural protections help to guarantee that government will not make a decision directly affecting an individual arbitrarily but will do so through reasoned application of a rule of law. It is that rule of law, stretching back at least 800 years in Magna Carta, which in major part the Due Process clause seeks to protect." (Emphasis added, citation omitted.)

    Moreover, even if not mentioned in that 800-year old document, marriage rights have been recognized by the Supreme Court in our own time as among the most fundamental legal and human rights known to our law. In Justice Breyer's words:

    "As this court has long recognized, the institution of marriage, which encompasses the right of spouses to live together and raise a family, is central to human life,.."

    To be continued in Part 2.
    Roger Algase is a New York lawyer who has been helping skilled, professional and family-based immigrants with work visas and green cards for more than 30 years. He is a graduate of Harvard College and Harvard Law School, and a member of the bars of New York and New Jersey, as well as various federal district and circuit courts and the United States Supreme Court.

    His practice is focused on H-1B specialty worker, O-1 outstanding achievement and L-1 intracompany transferee work permits and J-1 training visas; as well as green cards through Labor Certification, extraordinary ability and opposite sex or same sex marriage. Roger's email address is algaselex@gmail.com

    Updated 06-17-2015 at 06:56 PM by ImmigrationLawBlogs

  4. DAPA Injunction Hurts Minority Americans, Not Only Immigrants. By Roger Algase

    In my May 28 Immigration Daily post, I pointed out that the federal district court's temporary injunction against President Obama's DAPA program, which was recently upheld by the 5th Circuit Court of Appeals, is limited in its scope.

    It only stops the administration from granting affirmative benefits, such as work permits to the affected immigrants. But the injunction does not stop the administration from deferring deportation of "low priority" immigrants, including non-criminal parents of US citizens.

    Nevertheless, as I mentioned in my previous comment, there has been a good deal of confusion and misunderstanding among the public and in the media about what the injunction means. For example, the Washington Post is running a June 7 article entitled: "Obama Administration stops work on immigrant program."

    The story begins:

    "A series of legal setbacks have [sic]halted the government's intensive preparations to move forward with President Obama's executive actions shielding millions of illegal immigrants from deportation..."

    The rest of the article describes how the government has put hiring new staff and opening new facilities to process the expected millions of DAPA applications on hold.

    Reading the above sentence, it is easy to get the impression that all efforts to protect the estimated 4 million unauthorized immigrant parents of American children who would be covered by DAPA from deportation have been blocked. Nor is it at all clear whether DHS is in fact deferring deportation for DAPA beneficiaries, as it is still allowed to do under the injunction.

    At the very least, this confusion and misunderstanding are enough to spread fear and uncertainty through immigrant communities across America about whether deportations of DAPA-eligible people will proceed or not.

    In addition, the fact that the 4 million affected people are barred by the injunction from getting social security numbers or work permits puts them under a hardship which increases their incentive to "self-deport". This was no doubt one of the reasons for bringing the lawsuit in the first place, as well as issuing the injunction against going ahead with DAPA.

    However, it is important to bear in mind that the injunction against proceeding with DAPA, as well as the entire lawsuit against it, are having a devastating effect on millions of American citizens as well, not only on immigrants. Who are the people that DAPA was primarily mean to help in the first place? By definition, they are American children, who were meant to be protected against having their parents deported.

    Not only were these children meant to be protected against having their families broken up and losing one or both of their parents to deportation. but they were also intended to benefit from having their parents able to support them. By blocking the ability of their unauthorized immigrant parents to obtain work permits, the injunction against DAPA is contributing to the impoverishment of millions of American children.

    And it is not only the American children of DAPA beneficiaries who are being hurt. Many of the people who would benefit from DAPA are married to lawful permanent residents, US citizens, or legal temporary visa holders. These US citizens or legal immigrants are also affected by the fear that their spouses may be deported, and/or the hardship resulting from their lack of work permission.

    Nor is it merely a coincidence that millions of the American children and spouses being hurt by the federal court's injunction against DAPA belong to Hispanic or other minority communities and are among the less well off part of our population. While our immigration laws may be blind to factors such as color and class on the surface, it is no secret which groups of people are being hit hardest by current enforcement policies.

    Nor is it any secret which Americans, not only immigrants, the lawsuit by 26 states to block DAPA and expansion of DACA is designed to hurt the most. Even though it does not specifically block the administration from "prioritizing" deportation, the injunction against proceeding with the rest of these two programs is hurting Americans of color, and low income Americans, just as much as the unauthorized immigrants it was ostensibly aimed at.
    Roger Algase is a New York immigration lawyer who has been helping businesses, professionals and skilled workers with employment visas and green cards for more than 30 years. He is a graduate of Harvard College and Harvard Law School and is a member of the bars of New York, New Jersey, various federal courts and the US Supreme Court.

    He represents immigration clients located throughout the United States and overseas. His email is algaselex@gmail.com

    Updated 06-08-2015 at 01:26 PM by ImmigrationLawBlogs

  5. Holocaust Museum: Rohingya Persecution Could Lead To Genocide. By Roger Algase

    Genocide is a powerful word which brings back memories of the Holocaust, with its gas chambers and extermination camps aimed at wiping out every single Jewish man, woman and child from the face of the earth. Burma does not have gas chambers or a "final solution" for its Rohingya population.

    But Burma's state sponsored persecution of and incitement to violence against this Muslim minority by extremist, well politically connected Buddhist monks may be indications of impending genocide none the less.

    Who says so? The U.S. Holocaust Museum does, according to a May 7 Washington Post report: U. S. Holocaust Museum says this Muslim community could face genocide

    I quote from the Washington Post story:

    "The official American institution memorializing the Holocaust sounded the alarm this week on the threat of a genocide facing beleaguered Rohingya of Burma, one of the world's most neglcted communities. A report published by the Simon-Skjodt Center for the Prevention of Genocide, a wing of the US Holocaust Memorial Museum, charted the persecution, violence and systematic discrimination endured by this Muslim minority, and warned that it was a 'population at grave risk for additional mass atrocities and even genocide'.


    For the full report, see:


    See also the Israeli newspaper Haaretz: Holocaust researchers warn against impending genocide in Burma (May 4)


    Not only the Holocaust Museum, but also one of the world's best known Holocaust survivors, George Soros, has repeated the same theme. The Guardian, in its May 31 article, writes:

    Burma rejects 'unbalanced' Rohingya remarks by Nobel Prize winners


    "Others who criticized Burma's policies in Oslo included philanthropist George Soros, who escaped Nazi-occupied Hungary and said that there were 'alarming' parallels between the plight of the Rohingya and the Nazi genocide."


    What are these warning signs of a possible impending genocide against the Rohingya?

    The Holocaust Museum report, entitled: Early Warning Signs Of Genocide in Burma, lists no fewer than 19 of these indications, with possible parallels to the Nazi persecution of the Jews (mine, these are not specified in the report) in brackets.

    I will list only the first 8:

    - Physical violence targeted against Rohingya people, homes and businesses [Pogroms?]

    - Physical segregation of the Rohingya from members of other ethnic groups [Ghettos?]

    - Blockage of humanitarian assistance, especially healthcare [ Concentration camps?]

    - Deplorable living conditions for those displaced from their homes [Concentration camps?]

    - Rampant and unchecked hate speech against Rohingya and other Muslims [Julius Streicher and Der Stuermer?]

    - Restrictions on movement [Ghettos?]

    - Stripping of citizenship [The 1935 Nuremberg laws, among many other anti-Jewish measures, stripped the German Jews of citizenship. The Rohingyas' citizenship was taken away in Burma by law in 1982]

    - Destruction of mosques, onerous processes for Rohingya to maintain or fix mosques, and other restrictions on freedom of religion [Some historians believe that the actual Nazi genocide against the Jews, as opposed to "mere" persecution, began with Kristallnacht, in November, 1938, when synagogues throughout Germany were destroyed.]

    Whether one agrees or not with the comparisons that I (not specifically the report) have suggested may exist with Nazi Germany, no objective person reading this report could possibly claim that the thousands of Rohingya who are now trapped on boats seeking to escape from Burma are anything other than refugees, or that only Burma's internal affairs are at issue.

    There is another disturbing parallel. Just as almost all countries of the world, including but not limited to the US and Canada, were reluctant to take in more than a small number of the desperate Jewish refugees fleeing Nazi persecution in Europe, few if any countries appear to be interested in providing refuge to the Rohingya.

    See The New York Times: The latest on Rohingya: Australia Won't Take in Migrants (May 21)


    And how many Rohingya has the US taken in so far? How many does it plan to? Given the scale and intensity of the persecution they have suffered to date, and signs of a possible impending genocide of the members of this group who are still living in Burma, these are questions well worth asking.
    Roger Algase is a New York Attorney and graduate of Harvard College and Harvard Law School who has been helping skilled and professional immigrants obtain work visas and green cards for more than 30 years. Roger believes that the most important service an immigration lawyer can provide, in addition to thorough knowledge of the law, is devotion to the welfare of his or her clients. His email address is algaselex@gmail.com

    Updated 06-01-2015 at 09:45 AM by ImmigrationLawBlogs

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