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  1. The New Travel Ban, Asylum Seekers, and I-730 Petitions

    As you might have heard, the White House recently issued a new travel ban (official known as the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and this one looks more likely to survive a court challenge than previous bans. This time around, the "banned" countries are Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and certain government officials from Venezuela.


    Moose limb ban.

    Here I want to look at how the ban will impact asylum seekers, asylees (people who already have asylum), and I-730 petitions, which are petitions filed by asylees to bring their relatives (spouse and minor, unmarried children) to the United States. One caveat: Even though the latest travel ban seems more well-crafted than prior iterations, it likely will still be subject to court challenges, and it will have to be interpreted and implemented by various government agencies, so how individuals will actually be affected is not yet entirely clear. With that out of the way, here's how things look now:

    Asylum Seekers

    The short answer here is that asylum seekers who are already in the U.S. should not be affected by the new ban. Section 6(e) provides--

    Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.

    Also, it appears that asylum seekers who want to travel while their cases are pending, using Advance Parole, should be able to do so. Section 3(b) states--

    The suspension of entry pursuant to section 2 of this proclamation shall not apply to... any foreign national who has a document other than a visa -- such as a transportation letter, an appropriate boarding foil, or an advance parole document -- valid on the applicable effective date under section 7 of this proclamation [all bars will be in effect by October 18, 2017] or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission.

    The original travel ban (from January 2017) was intended to impact asylum seekers. Basically, USCIS was directed to adjudicate their cases up until the decision, but to hold the decision until the ban was lifted. That never actually went into effect. This new ban, which is more carefully tailored, does not seem to impose any restrictions or limitations on the asylum process or on asylum seekers, and so we can expect that such cases will proceed as before.

    Asylees

    People who have been granted asylum are asylees. I see nothing in the proclamation that would inhibit asylees' rights in the U.S. They should be able to work, travel (using an appropriate travel document), and eventually get their green card and their U.S. citizenship as before.

    I-730 Petitions

    When a person is granted asylum, she can file to bring her spouse and minor, unmarried children to the United States using a form I-730. Whether people from the banned countries will still be able to bring their "following to join" family members here may be problematic, at least as I read the President's order. Section 3(a) states--

    [S]uspensions of and limitations on entry… shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the applicable effective date under section 7 of this proclamation; (ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and (iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation [certain individuals whose visas were marked revoked or canceled by the first travel ban].

    Basically, this means that people outside the U.S. from a "banned" country cannot get a visa to come here. There are some exceptions to this rule in section 3(b), but none of them seem to apply to I-730 beneficiaries. The closest I can see to an exception for following-to-join asylees appears in section 3(b)(vi)--

    The suspension of entry pursuant to section 2 of this proclamation shall not apply to... any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

    Perhaps I-730 beneficiaries can argue that they fall within this exception, but frankly, I don't see it. If these beneficiaries do not meet an exception, they can apply for a waiver to allow them to join their asylee relative in the U.S., even though they are banned from coming here. The waiver process, discussed in section 6(c), seems complex, but the short answer is that waivers are granted in the discretion of the consular officer or other government official and are issued on a case-by-case basis. Further--

    A waiver may be granted only if a foreign national demonstrates to the consular officer's or CBP official's satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the national security or public safety of the United States; and (C) entry would be in the national interest.

    The proclamation gives some examples of when a waiver might be appropriate, including where the "foreign national has previously established significant contacts with the United States" or where "the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship." None of the examples specifically refers to asylees or I-730 beneficiaries, and so there is an open question about whether such people are able to join their asylee family members in the United States.

    We will have to see how the Trump Administration implements the ban with regards to I-730s. Hopefully, such people will be allowed to join their family members in the U.S. If not, you can bet that the matter will be litigated in court, and I imagine that the asylees would have a strong case. The United States has ratified the Protocol on the Status of Refugees, and so that treaty has the force and effect of law. The Protocol (and the Refugee Convention that is incorporated into the Protocol) essentially commits treaty countries to ensure family unity for refugees. See also INA 208(b). A Presidential proclamation cannot nullify this law, and so any attempt by the Trump Administration to block following-to-join relatives will likely not succeed, though of course the Administration can throw obstacles in the way of such people and cause plenty of hardship, stress, and uncertainty for this already-vulnerable group of individuals.

    So there you have it. Again, we will have to wait to see how the new ban is implemented and whether it will be affected by litigation. Hopefully, my concerns about I-730 beneficiaries will not come to pass, and asylum seekers, asylees, and their family members will not be harmed by the latest travel ban.

    Originally posted on the Asylumist: www.Asylumist.com.
  2. NEW STREAMLINED PROCESS TO OBTAIN SIMULTANEOUS EAD AND SSN

    by , 10-05-2017 at 01:20 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Maria Schneider

    Effective October 1, 2017, the US Citizenship and Immigration Service (USCIS) and the Social Security Administration (SSA) have instituted a new information-sharing partnership allowing foreign nationals to apply for an EAD (Employment Authorization Document) and a SSN (Social Security Number) at one time and on one form.

    This should be helpful for those lawfully in the US and who are eligible for work authorization via an EAD, but who have previously not had social security numbers. H-4/EAD, L-1/EADs, and spouses and children applying for I-485/EADs are some examples of people who will benefit from this new process.

    EADs are documentation of the individual’s work authorization and can be shown to employers to satisfy the I-9 and e-verify tests. EADs permit the foreign national to work for a finite period of time, listed on the EAD card. SSNs are used to report wages to the government and to determine the individual’s eligibility for certain government benefits.

    Under the previous system, foreign nationals had to first obtain an EAD and then go to their local SSA Office and apply for an SSN separately. The revised EAD Application (Form I-765) allows applicants to apply for an SSN or a replacement SSN card without visiting the SSA Office. The USCIS will now transmit the SSN data to the SSA for processing. Applicants will receive their EAD from the USCIS and their SSN card from the SSA within two weeks.


    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook, Twitter and LinknedIn.
  3. Asplundh Tree Experts Agrees to pay $95 Million for Illegal Hiring

    BY: Bruce Buchanan, Sebelist Buchanan Law

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    Asplundh Tree Experts has agreed to pay $95 million concerning the employment of undocumented workers. This is the largest monetary penalty ever levied by Immigration and Customs Enforcement (ICE) in an immigration case. Based on Asplundh Tree Experts Company’s guilty plea in federal court, the Court imposed a sentence of $80 million forfeiture money judgment. Pursuant to a separate Civil Settlement Agreement, Asplundh will pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law.

    Asplundh, an industry leader in tree trimming and brush clearance for power and gas lines, headquartered in Willow Grove, Pennsylvania, pleaded guilty to unlawfully employing aliens, regarding a scheme in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States.

    Court documents show the hiring system was developed after a 2009 I-9 inspection by Homeland Security Investigations (HSI), which revealed Asplundh employed workers who were ineligible to work in the country. Asplundh fired at least 100 of them, but a regional manager, Larry Gauger, later instructed supervisors to hire some of them back by accepting fake forms of identification, including permanent resident cards or Social Security cards. Gauger knew the dismissed employees within his region were being re-hired under different and false names and false identity documentation and encouraged his supervisors and general foreman to continue this practice.

    Thereafter, the investigation revealed Asplundh decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available. This decentralized model tacitly perpetuated fraudulent hiring practices that, in turn, maximized productivity and profit.

    The amount of the $80 million forfeiture was determined by a review of Asplundh’s payroll, which showed the employment of thousands of undocumented immigrants over four years. Asplundh had a workforce of approximately 30,000. Investigators determined that Asplundh used the fraudulent techniques to hire at least 10 percent of its workforce — or about 3,000 to 4,000 workers — in a four-year span, and earned $800 million in profits during that stretch. The presiding Judge, Josh A. Davison, said the idea of a forfeiture is to seize illegal gains, so the government reasoned that the illegally hired 10 percent of the workforce generated 10 percent of the profits. Thus, 10% of $80 million is $80 million.

    Prior to the company’s guilty plea, regional manager Gauger has pleaded guilty and is scheduled to be sentenced in October 2017, along with two supervisors, Juan Rodriguez and Jude Solis, who pleaded guilty in the same conspiracy.

    This case is another example of the U.S. government cracking down on employers who violate the immigration laws.
  4. Judge won't release Iraq War veteran fighting deportation

    by , 10-05-2017 at 10:58 AM (Matthew Kolken on Deportation And Removal)
    Via ABC News:

    An immigration judge in Washington state declined to release an Iraq War veteran from custody Wednesday while he fights the government's efforts to deport him.

    Chong Kim, a South Korean immigrant and green card holder from Portland, Oregon, struggled with drug addiction, homelessness and post-traumatic stress following his time in Iraq in 2009 and 2010, leading to convictions for burglary and other charges.


    Kim's lawyer and friends have said he has done well since completing a substance abuse treatment program run by the Department of Veterans Affairs early this year.


    But immigration agents arrested him in April and brought him to a detention center in Tacoma, Washington. They plan to deport him because of his convictions.


    Click here for the rest of the story.
  5. Trump's Push to Cut Legal Immigration as Part of DACA Deal Recalls America's Long History of Discrimination Against Immigrant Minorities. Roger Algase

    Update, October 6 at 12:54 pm:

    POLITICO
    reports on October 5 that, in a new tweet, Trump has accused the Democratic candidate for Governor of Virginia, Ralph Northam, of "fighting for the violent M-13 gangs & Sanctuary Cities"

    http://www.politico.com/story/2017/1...northam-243525

    This latest attempt by the president to demonize Mexican and other Latino immigrants as violent criminals is straight out of the more than a century-old playbook of vilification directed against racial and religious minorities on the part of white supremacist immigration opponents as described in more detail below.

    However, it is not only the rights of immigrants that are in danger from these open appeals to racial and religious hatred on the part of powerful politicians and other influential public figures, such as Donald Trump in the case of Mexican and Muslim immigrants, and the notorious anti-semitic automobile magnate, Henry Ford, in the 1920's and 1930's with his invective against the Jews.

    As the example of Germany in the 1930's shows, demonizing and scapegoating conducted against an unpopular minority, in that case also the Jews, can lead to the end of democracy and the institution of fascism or some other form of authoritarian rule.

    We must not let this happen in America.


    My earlier comments appear below.

    This comment has been updated and revised as of October 5 at 1:18 pm.

    POLITICO reports on October 5 that Trump's top immigration adviser, Stephen Miller, who even though still quite young, is already well known for his white supremacist views

    https://www.alternet.org/right-wing/...ps-white-house

    is drafting a proposal that would cut legal immigration in half as Trump's price for agreeing to sign a legislative fix for DREAMERS whose dilemma Trump himself created by cancelling the DACA program.

    http://www.politico.com/story/2017/1...ts-daca-243493

    This latest reported assault on legal immigration in the Trump administration makes a review of America's shameful history of actions to bar immigration by targeted groups, whether Jews, Italians, Eastern Europeans, Africans and Asians a century ago, or Muslims, Latin Americans (and still Africans and Asians!) today, all the more important in order to understand the roots of Trump's war on non-white immigrants and the direction in which it could be leading.

    Decades ago, while I was a Harvard Law School student. one of my professors referred to the old adage that a page of history was worth a dozen pages of law (or was it a hundred? - I have forgotten the exact quote). The point was, of course, that in order to understand the real meaning of a law or judicial decision, it is essential to pay attention to its background and context.

    In the same way, anyone who wants to understand the real meaning and purpose of Donald Trump's immigration agenda has to take America's long history of scapegoating and rejecting unpopular immigrant minorities into account, even if the targets of prejudice have changed.

    Today, much of the commentary concerning the Donald Trump administration's immigration policies deals with detail in isolation, as if America had never faced these questions before:

    Will or will not the federal courts interpret Trump's Muslim ban executive orders (whichever updated version may be in vogue at the moment) to allow Muslim grandparents of US citizens to enter the United States? Is Trump deporting more immigrants than President Obama did, or is Trump actually deporting fewer immigrants but only arresting and incarcerating more than Obama did?

    Now that Trump has pulled the rug out from under nearly 800,000 young people in the US who are mainly from Mexico and other parts of Latin America by rescinding President Obama's DACA protections, will our current president seriously try to persuade Congress to grant relief for these deserving immigrants who are American in all but their documents, and who were brought to this country through no fault of their own?

    Does it make any sense to troll Facebook or other social media to try to find connections to Muslim or other foreign terrorists while a home grown, native-born white American weapons addict guns down 59 victims and sends more 500 others to the hospital with injuries?

    Was the DHS making the best use of its resources by rounding up and arresting 498 mainly Hispanic and other non-white immigrants, including 317 "criminal aliens" whose most frequently charged offense was DUI (in 86 cases). not to mention the acute danger to America posed by one immigrant who was arrested as a "Peeping Tom", instead of concentrating on making more effective arrangements to protect more than 3 million Hispanic US citizens who, at that time, were awaiting the worst hurricane in Puerto Rico's entire history?

    These are all important questions, but they, along with dozens of others of today's immigration policy issues, cannot be fully understood purely on their own terms. In order to understand and deal with these issues meaningfully and comprehensively, we must look at America's immigration past.

    To do this, I will turn to an article which is not by a law professor but by a journalist.

    Despite the fact that it originates from outside academia, and that it also contains an incomplete and faulty understanding the issues involved in this administration's war on H-1B and other skilled immigrants, this article, which appeared on August 5 in The Daily Beast, by Jack Schwartz, a former Newsday book editor, contains one of the best descriptions of the connection between immigration in the Trump era and America's past history of prejudice against immigrant minorities that can be found anywhere. See:

    https://www.thedailybeast.com/stephe...ing-immigrants

    In response to an unconscionable attempt by Trump's white supremacist White House immigration adviser, Stephen Miller, to downplay the significance of the State of Liberty as a beacon of American freedom and immigration diversity, Schwartz writes:

    "...a sea change had occurred in the national origins of America's immigrants. In the 40 years between 1880 and 1920 more than 20 million immigrants arrived in this country. Millions of Italians, Jews and Slavs arrived in the port of New York alone..."

    As every schoolchild in America knows, and has known for generations, the Statue of Liberty, with its world-famous poem by Emma Lazarus inscribed at the bottom, is a symbol of welcome to immigrants from all over the world.

    Schwartz writes:

    "There is a subtext to Miller's admonition
    [that the Emma Lazarus poem was not part of the original Statue of Liberty, but was added a couple of decades later - what difference on earth does that make?!] That the Statue of Liberty does not celebrate a land of immigrants but is rather a memorial to Republican virtue. The object is to divorce the idea of liberty from foreign taint. Implicit in this message is that our liberties are threatened by alien incursions. It is at the heart of a nativist agenda that hearkens back to the anti-Irish Know-Nothing agitation of the 19th Century and continued spasmodically throughout our history."

    Schwartz continues, with a reference to one of the most popular anti-immigrant strategies used by nativist of the early 20th Century to try to keep out Jews, Italians and Eastern European immigrants, a strategy that is being revived today in the English-language preference provisions of the proposed RAISE Act, a measure that would drastically cut immigration form outside Europe, and which Trump has expressed such vigorous support for:

    "Although thwarted by presidential vetoes, nativists finally succeeded in passing a literacy test for immigrants in 1917, a prologue to the racially motivated quota system of the 1920's that stifled immigration from Southern and Eastern Europe."

    Schwartz also adds:

    "President Trump's proposal to cut legal immigration in half in keeping with this history of nativist resurgence. In fact Miller, by embracing the idea that immigrants be required to speak English, is doing the restrictionists one better. They had only insisted that immigrants be literate in at least one tongue, not limited to English. Miller has upped the ante."

    Rebutting the common restrictionist myth that the white European immigrants of 100 years ago learned English faster and assimilated to American culture more easily than the Latin American, Asian, Middle Eastern and African immigrants of today, Schwartz writes:

    "It was assumed that they would learn English once they arrived, as most arrived. But not all...Immigrants to the Lower East Side learned English in fits ad starts...Italian coal miners read newspapers such as Il Martello and Jewish garment workers poured over The Forverts. The foreign language press was a staple of immigrant communities many of whose members had little or no English. It was their children who fully assimilated."

    While today's anti-immigrant white supremacists promote the myth of white immigrants of the late 19th and early 20th centuries supposedly having easily fit into and been accepted by American society, the reality was very different. Schwartz writes the following about one leading anti-immigrant figure of that period:

    "Prescott Hall, a leader of the immigration Restrictionist League in the early 20th century, outraged by President Taft's veto of an immigration bill imposing literacy tests on immigrants, declared: 'To hell with Jews, Jesuits and steamships.''

    Schwartz also comments, accurately and in a matter of fact manner:

    "Updating this to replace the aforementioned with Mexicans and Muslims, we have a fairly concise picture of Trump's immigration policy."

    Anyone who thinks for a moment that Latin American, Asian or other non-white immigrants present unique challenges to "threats" to American society today that white, European, immigrants were never accused of presenting in the past by the immigration opponents of that earlier time; or that there is anything new about Donald Trump's relentless attacks against non-white immigrants and his ongoing attempts to exclude and expel them from America today, will be quickly disabused by Schwartz's following additional comment:

    "As the social scientist Robert Mayo Smith succinctly put the case in 1890: 'It is scarcely possible that by taking the dregs of Europe we shall produce a people of high social intelligence and morality.'

    What followed was a nativist campaign vilifying immigrants: Italians were a criminal element. Jews were subversives...Demonization was critical to the nativist agenda.

    The specifics changed with the times and the targets but the nature remained the same."

    And the fundamental nature of anti-immigrant prejudice remains the same now as it was then, even though Mexicans and Muslims have now replaced the Jews and Italians of a century and more ago as the objects of vilification and hatred by immigration restrictionsts today.

    For anyone who is willing to to pay even the slightest attention to America's immigration history, there is nothing new under the sun in Donald Trump's immigration agenda.
    ___________________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards.

    Roger's practice is focused primarily on H-1B specialty occupation, O-1 extraordinary ability and J-1 trainee visas; and on green cards through Labor Certification and through opposite sex or same sex marriage. His email address is algaselex@gmail.com

    Updated 10-06-2017 at 03:29 PM by ImmigrationLawBlogs

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