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  1. Immigration's Dark Side, Pt. 2 - Europe and South Africa. By Roger Algase

    Continuing news about the dark side of immigration, i.e. continuing intolerance and inhumanity shown toward immigrants, many of whom are fleeing from intolerable conditions in their countries of residence, by the actual or intended host countries, has been available in abundance during the weekend of April 18-19.

    First, there is an April 19 Reuters report:

    Hundreds drown off Libya, EU leaders forced to reconsider migrant crisis


    According to this article, as many as 700 migrants seeking refuge in Europe from North Africa were feared dead on Sunday after their boat capsized and sank of the Libyan coast, bringing to 1,500 the number who have died trying to reach Europe this year. The report quotes Pope Francis as follows:

    "They are men and women like us, our brothers seeking a better life, starving, persecuted, wounded, exploited, victims of war. They were looking for a better life, they were looking for happiness."

    Unfortunately, the response of anti-immigrant groups in Italy was less sympathetic, as the above article also reports:

    "The leader of the anti-immigrant Northern League party, Matteo Salvini, called for an immediate naval blockade of the coast of Libya while Daniela Santanche, a prominent member of Silvio Berlusconi's Forza Italia party said Italy's navy must "sink all the boats"

    Whether she knew it or not, Ms. Santanche was repeating the same inhuman sentiment that Virgil ascribed to the vengeful goddess Juno 2,000 years ago in Book 1 of the Aeneid, when Juno urges Aeolus, god of the winds, to sink the boats of the legendary first immigrants to Italy and founders of what was eventually to become the Roman empire:

    incute vim ventis summersasque obrue puppis /aut age diversos et disice corpora ponto.

    ("Put force into your winds, and sink their ships, or tear apart their [sailors'] bodies and scatter them into the sea.")

    One can only wonder what Virgil, arguably the greatest poet whom Italy has ever produced, would have thought if he could have heard someone who can arguably claim to have inherited the Roman tradition speaking with hatred toward innocent, defenseless refugees, which could truly equal, if not exceed that of Juno toward the legendary hero, Aeneas, and his fellow survivors of the Trojan War, as Virgil describes in the following line (also in Book 1 of the Aeneid):

    saevae memorem Iunonis ob iram

    ("Because of savage Juno's never forgotten rage")

    Reuters also quotes Maltese Prime Minister Joseph Muscat as follows: "

    "A tragedy is unfolding in the Mediterranean, and if the EU and the world continue to close their eyes, it will be judged in the harshest terms as it was judged in the past when it closed its eyes to genocides when the comfortable did nothing.

    An even more ominous sign of the fate that could have been awaiting some of the drowned immigrants if they had remained in Libya appears in a Huffington Post story of the same date:

    ISIS Video Purports To Show Killing Of Ethiopian Christians In Libya

    To be continued.
  2. H-1B Cap Crisis is Due to Anti-Immigrant Paranoia, Not H-1B Defects, by Roger Algase

    In the wake of the unprecedented number of skilled foreign workers who will be turned away from America because of the shortage of H-1B visas caused by the USCIS's receipt of almost 233,000 cap subject petitions this year, employers, skilled workers themselves, lawyers, and immigration advocates all over America are asking the same question. Carl Shusterman puts it succinctly in the title of his April 17 Immigration Daily post:

    H-1B Cap: Congress Needs to Do its Job


    But why can't Congress do its job in raising the H-1B cap? This year's visa cap train wreck may be unprecedented, but it was hardly unforeseen.

    While this year there were almost four times as many H-1B petitions as the annual 65,000 visas for workers who do not have a US master degree. last year there were almost three times as many. That also qualifies as a major train wreck by any standard.

    Nor was last year exactly the first in which the annual H-1B quotas were over-subscribed. This is a problem which Congress saw coming more than a decade ago and has stubbornly refused to do anything about ever since.

    The question everyone is asking is - why? Carl Shusterman points to alleged abuses in the H-B program, at least as identified by Senate Judiciary Committee Chairman Charles Grassley, a long time bitter foe of the entire H-1B program and opponent of other work visas as well.

    Carl Shusterman speaks for every reasonable H-1B observer when he writes:

    "Many of their concerns are valid. When a few H-1B companies use H-1B workers to displace US workers, I think we can all agree that this is wrong, and that the law needs to be changed to prevent this from happening."

    Nor would anyone who genuinely cares about finding a real solution to the visa shortage dispute Carl Shusterman when he continues:

    "But why can't the H-1B cap be raised and loopholes in the law be closed at the same time? That would be a reasonable compromise and Congress is supposed to be adapt at the art of compromise, especially when the H-1B program is so clearly in [our] national interest."

    The problem is that, like so much else in immigration today, the H-1B cap issue involves rational considerations only on the surface. But there is a lot else going on underneath.

    First, however, it is useful to consider what kind of compromises might be possible with regard to the H-1B cap if Congress were willing to look at this issue rationally.

    One such compromise was included in the late, lamented, bipartisan 2013 S.744 Senate immigration reform bill of blessed memory. Essentially, it would have raised the H-1B cap, while at the same time turning at least part of the H-1B program into a labor certification requiring a test of the market for US workers as a pre-condition for issuing an H-1B approval.

    This is, arguably, an extremely dangerous road to travel. In all likelihood, it would lead, probably sooner rather than later, into turning the entire H-1B program into another PERM. Imagine what would be left of H-1B if employers had to go through months of expensive recruitment, loaded with technical minefields, and wait many more months to receive the labor certification - or, in many cases, an invitation to wait two years or more for a BALCA decision, just to hire a temporary worker.

    That would be the end of the H-1B program.

    But, as I have indicated above, the main obstacle to finding a rational compromise on the H-1B issue is not that it is impossible to come up with reasonable solutions, but because of irrational attitudes toward immigration in general which are poisoning the entire H-1B well.

    Yes, there are no doubt some abuses in the H-1B program, as there are, unfortunately, in any immigration program. But that is not a reason for gutting H-1B as we know it, any more than it is an excuse for throwing out any other immigration program.

    If Senator Grassley and other diehard H-1B opponents were really interested in improving this program, as opposed to killing it, it would not be difficult to find reasonable ways to make whatever changes are needed to reduce the chances of abuse and add even more protections than there already are for the wage levels of US workers, while increasing the annual visa limit at the same time.

    Nor, despite the arguments of some, is the executive branch totally helpless to come up with at least some partial solutions to the H-1B visa shortage, as I will discuss in a forthcoming post.

    H-1B issues may seem to be light years removed from the issues facing Central American women and their children who are being traumatized and humiliated in our privately run, for-profit, immigration detention system with its 34,000 Congressionally mandated beds, influenced by lobbyists for a handful of well-heeled, influential prison companies that need to lock up as many immigrants as possible to maintain their profits.

    H-1B may seem even more removed from the plight of North African refugees who are drowning in their failed attempts to reach European countries that are unwilling to spend a single cent to rescue them - at least according to the Huffington Post reports mentioned in my two-part series: Immigration's Dark Side: Europe and America.

    (This series will also discuss the violence and terror directed against immigrants in today's South Africa - it is not only white countries that are engaging in fundamental human rights violations against immigrants.)

    But the same xenophobia, paranoia and scapegoating of minorities that are causing so many problems for other immigrants in America and elsewhere are also the main reason why finding a solution to the H-1B cap continues to elude the US Congress. If we ignore this reality, we are just kidding ourselves.
    Roger Algase is a New York lawyer and advocate for immigrant rights who has been practicing H-1B and other employment-based and family-based immigration law for more than 30 years. He is a graduate of Harvard College and Harvard Law School.

    Roger welcomes questions and comments at algaselex@gmail.com

    Updated 04-18-2015 at 12:14 PM by ImmigrationLawBlogs

    Tags: 11b1 Add / Edit Tags
  3. Immigration's Dark Side: Europe and America - Pt. 1, by Roger Algase

    Huffington Post reports on April 15 that another 41 refugees trying to reach Italy from North Africa were believed dead in a shipwreck in the Mediterranean Sea, in addition to at least 400 others missing and presumed to have died when their boat capsized while making the same journey earlier this week. The same report states that, according to the UN's refugee agency, 219,000 refugees and migrants crossed the Mediterranean last year, and 3,500 died trying.



    More Than 40 Feared Dead In New Mediterranean Shipwreck Tragedy

    Just by way of comparison, the above number of virtually unnoticed, ignored people who lost their lives seeking to escape from poverty and dangerous conditions in North Africa is greater than the total number of people killed in the September 11, 2001 terrorist attack on the World Trade Center.

    The Huffpost also reports:

    "...none of the 28 nations from the world's wealthiest trade bloc has pledged a single plane, a single ship or a single cent to add to the rescue effort."

    The report also attributes this, at least in part, to "a growing anti-foreigner electorate" in many EU countries.

    This gives a new and somber meaning to Virgil's line in the Aeneid 2,000 years ago, when he has the goddess Juno complain:

    gens inimica mihi Tyrrhenum navigat aequor ("People whom I despise are sailing on the waters of the Tyrrhenian [Mediterranean] sea.")

    Those people, as everyone familiar with the history of Europe knows, were also trying to reach Italy, according to legend. Virgil's lengthy poem, written toward the end of the 1st century BC, relates that they actually wound up in North Africa first, before eventually completing an arduous but finally successful journey to the Italian mainland, despite Juno's intense efforts to stop them from doing so at all costs.

    Now, in the 21st century of our era, it is as if Juno were speaking, not just for herself, as in Virgil's immortal epic, but for many of the white countries of Europe when she uses the fateful words: gens inimica mihi.

    Meanwhile, here in America, a group of detained mothers at the privately run Karnes City, Texas, immigration family detention center has launched a second hunger strike in protest against the Obama administration's policy of detaining Central American women and children even though they may have legally valid asylum claims.

    In its April 14 article: Mothers Launch A Second Hunger Strike At Karnes City Family Detention Center, Huffington Post Latino Voices reports that some women and children have been detained at the facility for several months, and that signers of a petition to the ICE director calling for their release are facing retaliation by prison guards, including being locked up in isolation and denied the right to call their lawyers.

    According to the same report, the private prison industry is partly responsible for the large number of detentions. In response to lobbyists for the industry, Congress has mandated that 34,000 immigrants must be detained at all times.

    See also, Huffington Post Latino Voices:

    Some Hunger - Striking Mothers Were Put In Isolation At Karnes Immigrant Detention Center, Lawyers Say

    (April 2, 2015 - I do not have URLs for the above articles, but they should be accessible on the Huffpost website).

    Arguably the biggest disgrace of all to America in the immigrant family detention scandal, even more that the casual brutality and inhumanity meted out by the private prison guards to women and children who had looked to America as a refuge from the very real fears of violence and death that so many of them have experienced in the gang ridden countries of El Salvador, Guatemala and Honduras, is the evident stranglehold that private prison companies have over the immigrant family detention system.

    Huffington Post
    provides more details in a third article, dated April 15, entitled:

    "Bed Quota Fuels 'Inhumane' and 'Unnecessary' Immigrant Detention: Report"

    The Huffpost article, among other things, reports:

    "The [34,000] detention bed mandate was first inserted into the Homeland Security Appropriations Act of 2010. Today, private companies control about 62 per cent of the immigrant detention beds used by Immigration and Customs Enforcement, according to the report [by Grassroots Leadership, an Austin, Texas-based non-profit]...Of the ten largest immigrant detention centers in the country, nine are operated by private companies."

    But this is only the beginning of the disgraceful facts regarding control of America's immigration system by private companies whose profits depend on locking up as many immigrants as possible, and for as long as possible.

    To be continued in Part 2.

    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been helping employment-based and family-based immigrants overcome the obstacles of our immigration system and attain their goals of living and working in America legally for more than 30 years.

    Roger welcomes questions and comments at algaselex@gmail.com

    Updated 04-17-2015 at 12:57 PM by ImmigrationLawBlogs

  4. Over-Optimistic Reaction to 5th Circuit's Rejection of DACA Lawsuit? By Roger Algase

    There is some optimism among supporters of President Obama's November 20, 2014 executive action on DAPA and extension of DACA, based on speculation that an April 7 decision by a three-judge panel of the US Circuit Court of Appeals throwing out a lawsuit against DACA by the state of Mississippi and a group of ICE agents (Crane v. Johnson) based on plaintiffs' lack of standing could be a sign that a different panel of the same court might use similar reasoning in order to lift Federal District Judge's Andrew Hanen's injunction against implementation of the president's two more recent programs in Texas v. US.

    See, for example, Josh Gerstein's April 8 POLITICO article: Appeals Court Sides With Obama on Immigration Action


    The optimism over the decision throwing out the Mississippi lawsuit for lack of standing is based on the 5th Circuit opinion's statement that:

    "Neither Mississippi nor the Agents have alleged a sufficiently concrete and particularized injury that would give Plaintiffs' standing to block DACA."

    However, looking further into the above ruling in the Mississippi case, there could be reason to dampen any optimism over whether it might be a precedent for a similar ruling by the same 5th Circuit Court of Appeals throwing out the lawsuit by 26 states in Texas v. US for lack of standing as well. As quoted in the same POLITICO article, the court's ruling in the Mississippi lawsuit also states:

    "Mississippi submitted no evidence that any DACA eligible immigrants resided in the state. Nor did Mississippi produce evidence of costs it would incur if some DACA-approved immigrants came to the state." (Emphasis added.)

    Even the most optimistic DAPA/DACA extension supporter would have to find it not too difficult to distinguish the above conclusion from the facts in Texas v. US.

    In Texas, the chance of the court's concluding that there is no evidence of DAPA or DACA extension-eligible immigrants living in even a single one of the 26 plaintiff states is a virtual impossibility. Moreover, as the POLITICO article also points out, Texas presented at least some evidence of increased drivers' license costs which might result if the president's two latest initiatives were to be implemented.

    Even assuming the existence of such costs, whether they would sufficient to give the state standing to argue in court in favor of mass expulsion of 11 million immigrants is an entirely different question, which one would hope that the 5th Circuit will look into more seriously than Judge Hanen did when he issued his injunction.
    Roger Algase is a New York lawyer and Graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping employment-based and family-based immigrants overcome the obstacles of our immigration system and attain their goals in America. Roger welcomes questions at algaselex@gmail.com

    Updated 04-09-2015 at 07:56 PM by ImmigrationLawBlogs

  5. H-4 Work Permits Are Here, But Why Not For Everyone? Pt 2. By Roger Algase

    In Part 1 (posted on March 7) of my comments on the new H-4 work permission which will be available shortly for spouses of certain H-1B specialty workers, I discussed the limitations on this policy, something that was initially downplayed in at least a few published comments in the wake of the euphoria that initially greeted the DHS's announcement of the new policy in the February 25 Federal Register.



    In essence, the new employment authorization will not be available to all H-4 spouses, but only to those whose H-1B husbands or wives are already well along in the green card process and who come within the relatively limited provisions of Sections 104 or 106 of AC21.

    To summarize the new policy, which was discussed in detail in my March 7 post, only H-4 status holders whose spouses are the beneficiaries of approved I-140 petitions under Section 104 or have already been approved for an extension H-1B status beyond the initial six years under Section 106 (as opposed merely to being eligible for the extension according to the language of that section) will be granted work permission (beginning on May 26).

    For all other H-4 spouses of H-1B employees, there is no change in the rules. As far as work permission is concerned, they are out of luck (unless they are eligible for H-1B or some other work permission in their own right, as at present).

    This raises the question: if granting H-4 spouses work permission is such a wonderful idea, as the DHS argues that it is, and justifiably so - see below- why limit this benefit to only a limited class of H-4 status holders? Let us look at the DHS's own justifications for adopting this restriction, as explained in the above cited 74-page Federal Register notice.

    The DHS begins with a general explanation for the new policy, under the heading: Purpose of the Regulatory Action: (page 8 of the 74-page notice)

    "The lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardships for the families of H-1B nonimmigrants. Such hardships may increase the longer these families remain in the United States. In many cases, H-1B non-immigrants and their families in the United States must wait for many years for employment-based immigrant visas to become available. These waiting periods increase the disincentives for H-1B non-immigrants to pursue LPR status and thus increase the difficulties that U.S. employers have in retaining highly educated and highly skilled non-immigrant workers."

    The Federal Register notice continues:

    "These difficulties can be particularly acute in cases where an H-1B nonimmigrant's family is experiencing economic strain or other stresses from the H-4 dependent spouse's inability to seek employment in the United States. Retaining highly skilled workers who intend to acquire LRR status is important to U.S. businesses and to the Nation given the contributions of these individuals to U.S. businesses and the U.S. economy. These individuals, for example, contribute to advances in entrepreneurship and research and development, which are highly correlated with overall economic growth and job creation."

    On page 16 of the above notice, the DHS adds additional emphasis to the arguments in favor of allowing H-4 dependent spouses to work:

    "The comments supporting the proposed rule largely underscored the socioeconomic benefits the rule would have for certain H-1B non-immigrants and their H-4 dependent spouses. For example, several commentators noted that while they knew about the restriction on H-4 employment before coming to the United States, they did not anticipate such a long wait for LPR status or the emotional toll that long-term unemployment would take on them and their families. Other commentators noted that they have not been able to apply for a social security card or a driver's license in certain states because they did not have an Employment Authorization document [EAD]." (Bold added.)

    With respect to the last sentence quoted above, the argument about inability to obtain a social security card or driver's license through lack of an EAD would not appear to make any logical sense, because H-1B principals do not receive EAD's but only I-797 petition approval notices from USCIS, and yet there are few, if any instances of their being unable to receive social security cards through lack of an EAD.

    The Federal Register notice continues (also on page 16):

    "Approximately 200 commentators noted that the current policy of allowing only the H-1B nonimmigrant to work often led to family separation or the decision to immigrate to other countries that authorize employment for dependent spouses."

    Given the strong arguments that the DHS presents above for allowing H-4 dependent spouses to work, what is the rationale for restricting this permission to the spouses of H-1B workers who are being sponsored for green cards, and who, even more restrictively, are already well advanced in that process?

    Are not H-1B workers who have not yet been sponsored for green cards, or who may never be, also benefiting the US economy with their high levels of skill and education? Do their families not suffer from the same economic pressures, possible family separation and other disincentives to accepting work in the United States as their peers who are being sponsored for permanent residence?

    These questions will be explored further in Part 3 of this three-part series.
    Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping employment-based and family-based immigrants overcome the obstacles of our immigration system and attain their goals in America. Roger welcomes questions at algaselex@gmail.com

    Updated 04-09-2015 at 11:44 AM by ImmigrationLawBlogs

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