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  1. New USCIS Memo Makes I--129 Employment-Based Extension Petitions More Difficult to Approve, in Another Example of RAISE Act Hypocrisy. Roger Algase

    Almost immediately on being confirmed as the new USCIS Director, L. Francis Cissna, whose career as a US government attorney has been less than immigrant-friendly, to say the least, announced a dramatic change in adjudications policy regarding extensions of already approved H-1B and other employment based I-129 petitions.

    Up to now, as an October 23 USCIS memo correctly states, extension petitions for already approved I-129 petitions with the same employer, without any change in job duties, have been routinely approved unless there was some glaring mistake in the original approval. As the new USCIS memo states:

    "The previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination."

    The memo continues, ominously:

    "The updated policy guidance rescinds the previous policy."

    The memo then concludes by saying that, in effect, even in a routine extension case, the petitioner will now need to relitigate the entire case, and show all over again that the offered position and beneficiary are qualified for H-1B approval.

    In the context of Trump's Hire American policy, mentioned in the memo, which policy is in open conflict with not only the H-1B law, but with the laws relating to many other employment-based non-immigrant visa categories (such as O-1, L-1 and R-1) which do not require a labor certification or giving preference to US workers, the new memo is an obvious invitation to USCIS adjudication officers handling I-129 extension cases to look for reasons to overturn previous approvals - all in the name of protecting "the interests of US workers" to quote from the memo.

    One can expect that the new memo will lead to a blizzard of RFE's and denials of routine employment-based extension petitions.

    That is the obvious intention of the new policy, which is clearly designed to discourage US employers from hiring or extending the employment of foreign workers in any category, including the highly skilled professionals whom the sponsors of the RAISE Act claim that they intend to favor by eliminating or drastically reducing key family and less skilled worker green card categories.

    The new memo, which could even be the prelude to large-scale attempts to revoke previously approved employment-based petitions before they come up for renewal (though there is no indication of this so far), shows exactly how hollow, if not fraudulent, the claim of the RAISE Act's supporters is that the purpose of that bill is, allegedly, to make America's immigration system more "merit-based".

    Under this new USCIS memo, immigrants with the most "merit" of all - the highly educated, highly skilled and professional workers who are doing the most to benefit our economy by making American employers more competitive and create more jobs for American workers, will be the ones who are hurt most of all.

    The only people who benefit will not be American workers - whom the Trump administration and its Congressional and state legislative allies are trying to devastate by union busting, opposition to minimum wage and equal pay legislation, and destroying their health insurance and environmental protections.

    The main beneficiaries of this memo will be Trump's white nationalist supporters who are looking for one more (of many) excuses to keep Asian, Middle Eastern, Latin American and other non-European immigrants out of the United States.

    The full memo is available at:

    http://www.pressreleasepoint.com/print/1231510

    Roger Algase
    Attorney at Law
    algaselex@gmail.com



    Updated 10-23-2017 at 11:51 PM by ImmigrationLawBlogs

  2. Court Rules for DOL in H-1B Backpay Lawsuit

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A New York federal judge, Edgardo Ramos, sided with the U.S. Department of Labor (DOL) in a lawsuit by private equity firm, Aleutian Capital Partners, arising out of an investigation into alleged violations of the H-1B visa program, the company liable for nearly $23,000 in back wages to two employees stating the DOL’s Administrative Review Board (ARB) properly ruled. See Aleutian Capital Partners v. Perez (S. D. NY 2017).

    Judge Ramos rejected arguments by Aleutian that it was exempt from meeting the requirement for financial analyst and H-1B participant Shakir Gangjee because the company exceeded two annual wage requirements of $60,000 through supplementary bonuses, which were “nondiscretionary payments” equal to 3 percent of Aleutian’s revenue each month. The judge found the ARB determined Aleutian did not provide documentation showing its commitment to making the bonus payments to Gangjee.

    Furthermore, Judge Ramos agreed with the ARB that the bonus structure was insufficient because Gangjee’s wages were contingent on the revenues of Aleutian.

    “The ARB’s interpretation is supported by the fact that Sec. 655.731(c)(4) requires employers seeking to make nondiscretionary payments to show ‘unequivocally’ that the required wage obligation was ‘met for prior pay periods’ and ‘will be met for each current or future pay period,” Judge Ramos wrote. “It is reasonable to conclude that such showing can be made only if the nondiscretionary payments are guaranteed and not contingent. Accordingly, the Court defers to the ARB’s interpretation.”
  3. Letters of the Week: October 23 - October 29

  4. Is Anti-Immigrant Hostility Turning Europe Back Toward Fascism? And What About America? Roger Algase

    An October 22 POLITICO article warns about the dangerous consequences that the growing European right-wing nationalist movement, fueled by fear and animosity toward immigrants fleeing war, terror and dictatorship in the Middle East and Africa could have for Europe in the wake of the recent elections in Germany, Austria and the Czech Republic, where another right wing billionaire, Andrej Babis, has just been chosen as prime minister.

    http://www.politico.com/story/2017/1...onalism-244031

    The POLITICO story begins:

    "Czechs this weekend elected a new prime minister who heaps scorn on the European Union and says his country shouldn't have to accept a single refugee. Germany just sent a radical far-right party to parliament for the first time since the days of Adolf Hitler. And Austrians just gave the anti-immigrant Freedom Party their [sic] biggest share of the vote since 1999...

    Nationalist parties now have a toehold everywhere from Italy to Finland, raising fears the continent is backpedaling toward the kinds of policies that led to catastrophe in the first half of the last century."

    But Europe is not the only continent which may have good reason for concern about a turn toward the 20th Century fascist policies which ultimately led to WW2, the Holocaust and the deaths of 60 million people.

    Prejudice and animosity toward Middle Eastern, Latin American, Asian and other non-white immigrants also helped to elect a US president who is now undermining democratic institutions by attacking and trying to control the courts, the news media, the voting system, and any other entity or person standing in the way of his taking absolute power. Meanwhile, in the latest development, his attorney general, Jeff Sessions, darkly hints that he may try to jail opposing journalists, and that he might also try to prosecute Sanctuary City officials who oppose Trump's mass deportation agenda.

    Regarding Sessions threat to send journalists to jail, while Trump calls for the licenses of media which run negative stories about him to be "revoked", see:

    https://www.salon.com/2017/10/18/jef...g-journalists/

    Certainly, the following statement by a frail, 90-year old Harry Belafonte at a speech in Pittsburgh on October 20 may admittedly be somewhat extreme. Commenting on the election of Donald Trump. Belafonte reportedly said:

    "...the country made a mistake and I think the next mistake might very well be the gas chamber and what happened to the Jews [under] Hitler is not too far from our door."

    https://www.theguardian.com/us-news/...overcome-trump

    But behind the obvious exaggeration (one hopes) of the above statement (and the fact that Trump is targeting Muslims, not Jews) there is a clear and unmistakable warning: Just as exploiting fear and prejudice against immigrants could be leading toward a resurgence of fascism in Europe, anti-immigrant sentiment in America could be turning this country in the direction of dictatorship here at home.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 10-22-2017 at 11:21 AM by ImmigrationLawBlogs

  5. Trump's Latest Muslim Ban Order is Only One Part of His Ongoing Attempt to Bring Back America's White Supremacist Immigration Legacy. Roger Algase

    The following will expand on my October 5 ilw.com post dealing with Trump's attempt to bring back America's long history of bigotry and discrimination against non-white immigrants in our legal system. This comment will discuss this issue mainly from the standpoint of the Muslim ban executive orders, based on a thorough and perceptive analysis of US immigration law history by Christopher Petrella, lecturer in cultural studies at Bates College in Lewiston, Maine.

    This article, entitled:

    Trump's travel ban is firmly rooted in our history of racist immigration policies

    was published on January 30, right after Trump's first Muslim Ban executive order. His subsequent Muslim ban orders, including his most recent one, now blocked nationwide by federal district judges in both Hawaii and Maryland, and which has, almost in the spirit of farce, entirely abandoned the "terror sponsorship" pretext for his two previous orders by adding countries which were never on any terror sponsorship list (including Chad, one of Americas best allies in fighting against terrorism in Africa), as well as many other immigration-related developments, make this article even more relevant and timely than it was when it appeared almost ten months ago.

    The link is:

    https://bangordailynews.com/2017/01/...tion-policies/

    Petrella begins with the following summary of his article's content:

    "While many of us are outraged over Trump's executive order - one indisputably tethered to white nationalism and Islamophobia - it is worth remembering that the president's actions do not constitute an aberration in America's immigration history."

    Petrella continues:

    "On the contrary, racial, national origin and religious immigration quota systems have long been integral to America's approach to regulating the freedom, movements and rights of non-white people and bodies. Such laws have been aimed at protecting the religious and racial purity of whatever is indexed in a given moment as best representing the most undefiled form of American nationalism.

    The author, after briefly referring to two earlier examples of racially motivated immigration legislation - the Naturalization Act of 1790 and the infamous Chinese Exclusion Act of 1882, proceeds to discuss the racial ideology which formed the basis of the Johnson-Reed Immigration Act of 1924:

    "The history of U.S. immigration law is squarely based in the ideology of racialized nationalism. In 1920, Harry Laughlin, an eminent eugenicist...testified to the U.S. House Committee on Immigration and Naturalization that 'the character of a nation is determined primarily by its racial qualities.'...The Immigration Act of 1924 was established for the express purpose of limiting the influx of 'dangerous' and dysgenic' Italians, Arabs, eastern European Jews, Asians, and other not-fully-white 'social inadequates.'"

    Petrella then squarely connects this shameful history of legal racial discrimination in our immigration system with the Trump administration by pointing out an obvious link - which I have written about in many previous ilw.com comments, but which all but a few other commentators have passed over (at least so far as I have seen):

    The Immigration Act of 1924 - a piece of legislation recently praised by Sen. Jeff Sessions, Trump's nominee for U.S. Attorney General, dramatically limited the number of immigrants allowed entry into the United States..."

    The RAISE Act, which both Trump and Attorney General Sessions now support so vigorously, unquestionably has the same purpose.

    Petrella then points out the openly racist character of the 1924 act:

    "At the urging of [Madison] Grant [another prominent racial eugenicist of the period] and others, the act did not include any provision whatsoever for immigrants from Asian countries."

    Petrella then concludes:

    "The omission of race-based, national origin and religiously motivated immigration policy history from mainstream discourse leaves us with the false impression [given by] present debates over the so-called exceptional nature of Trump's travel ban from several Muslim nations [that it] has very few precedents in the United States, when in fact there are many in the not so distant past."

    And, near the end of his article, Petrella writes:

    "To responsibly address our relationship to the past - and to eschew the same white supremacist and xenophobic mistakes - contemporary debates about Trump's ban must remind us that we have been down this road before, to disastrous ends."

    In the nearly nine months since the above article was written, America has seen not only two more versions of the Muslim ban, which numerous federal district and circuit judges have struck down again and again, and which awaits an uncertain fate in the Supreme Court, but many other administration policies which are obviously intended to reduce immigration from non-white parts of the world.

    These include the president's support for the RAISE Act and his open attacks on "Chain Migration" (i.e. family-based green card sponsorship from Latin America and other non-European parts of the world); his assault against primarily Asian H-1B and other skilled immigration through policies such as his "Hire American" executive order and the latest USCIS policy requiring personal interviews in all employment-based adjustment of status cases; his "extreme vetting" for even the most routine visa applications; his drastic reductions in refugee admissions, attempts to make asylum more difficult, expanded use of expedited removal and dramatic increase in arrests and incarceration of non-criminal immigrants; cancelling DACA, albeit with some lip service toward support for continuing that program through legislation - if Congress agrees to pass a law to help DREAMERS that would include draconian anti-immigrant proposals which Trump is insisting must be included - the list could go on and on.

    This is without even mentioning Trump's ongoing rhetorical attempts to stir up hatred and fear toward racial and religious minorities by stigmatizing Latino immigrants as "M-13 gang members", his demonizing all Muslims throughout the world as "radical Islamic terrorists"; and last but not least, his attempt to degrade and humiliate, not only Latin American, but by extension all non-white immigrants, by building his centerpiece Mexican Border Wall, in the same tradition as, though obviously for a less sinister purpose than, those of the Communist Berlin Wall and the Nazis' Warsaw Ghetto Wall.

    As Petrella states in his article's final sentence:

    "Rejecting and resisting the idea of a Muslim ban must be one of the many steps in denaturalizing the linkage between whiteness and Americanness, between the history of racial, national and religious exclusion and the full flourishing of U.S. democracy."


    One could, with ample justification, make the same statement, not only about Trump's Muslim ban, but also about the rest of his entire anti-immigrant agenda, almost without exception.
    _________________________________
    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 primarily concentrated in H-1B specialty occupation and O-1 extraordinary work visas, J-1 training visas, and green cards through Labor Certification (PERM) and through opposite sex or same sex marriage and other family relationships. Roger's email address is algaselex@gmail.com

    Updated 10-22-2017 at 11:38 AM by ImmigrationLawBlogs

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