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    by , 01-25-2017 at 01:14 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    Sens. Grassley (R-IA) and Durbin (D-IL) have reintroduced their H-1B bill. They have introduced a version of this bill for the last several Congressional sessions. The last version of the bill only attracted 5 co-sponsors, and never had any significant traction in Congress. This term, competing and related House bills have been offered by Rep. Issa and Rep. Lofgren.

    It remains unclear how this one differs, if at all, from the last versions, since the text of the bill has not yet been released. The last version of the bill included several significant changes to the H-1B process. That bill creates a preference system for the H-1B lottery, which prioritized H-1B workers in this order:

    • Masters (or greater) degree in STEM from a US university
    • Companies who offer a Level 4 wage for that H-1B worker
    • Masters (or greater) degree in any other major from a US university
    • Companies who offer a Level 3 wage for that H-1B worker
    • Bachelor’s degree in STEM from a US university
    • Bachelor’s degree in any other major from a US university
    • Schedule A occupation
    • Good corporate citizens

    Other components of the bill included:

    • H-1Bs must pay at least a level 2 wage for all H-1Bs
    • Require a posting on USA for 30 days prior to filing an H-1B
    • Employer must certify that no US worker has been displaced and that the employer has attempted to recruit US workers
    • 50/50 employers are barred from the H-1B process
    • H-1B limited to 3 years, unless the H-1B worker has an approved I-140
    • Additional burden for employers who place workers at third-party worksites.
    • Increased investigative power for DOL
    • Changes to the L-1 program

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.
  2. Work Permits for Asylum Seekers - Some Good News

    The new Administration has raised anxieties in immigrant and asylum seeker communities. In part, this is because of President Trump’s rhetoric (and rhetorical style) during the election. And in part, it’s because we just don’t know what to expect from a Trump Administration. Rumors have been flying: Will there be some sort of Muslim ban? Will the President repeal DACA? Or will he (and Congress) create a permanent legalization for DACA recipients? Mr. Trump will be issuing some executive orders later today banning Syrian and other refugees from coming to the U.S., and restricting visas for people from certain Middle Eastern countries. How this will all play out, we shall see.
    Filling gaps is a good thing.
    But amidst the uncertainty, there is some good news related to work permits—or Employment Authorization Documents (“EADs”)—for asylum seekers.

    First, last fall, the government started issuing two-year EADs instead of one-year EADs to people with pending asylum cases. This was a helpful development. It saves money since applicants now only have to apply for a new card every other year. It also makes it easier to obtain and retain employment, since employers feel more confident hiring people who have a longer period of authorized employment. In addition, many states issue driver’s licenses that correspond to the dates on the EAD, so a two-year card means a two-year license. All this helps ease the wait for people seeking asylum.

    Second, last week the government issued new (and long anticipated) regulations “to help prevent gaps in employment authorization”:

    DHS is providing for the automatic extension of expiring EADs (and underlying employment authorization, if applicable) for up to 180 days with respect to individuals who are seeking renewal of their EADs (and, if applicable, employment authorization) based on the same employment authorization categories under which they were granted.

    This means that when you file to renew your EAD, your card will be automatically extended for 180 days once you receive the receipt (it usually takes three or four weeks to get the receipt). This is an important development, since USCIS has been taking months to process EAD renewals, and people were losing their jobs and driver’s licenses while they waited for their new EADs.

    The automatic EAD extensions apply to refugees, people with asylum, and people who have pending asylum or withholding of removal cases, among others. You can see the new regulations here (see page 82491, the second to last page of the PDF) and here (page 82455, footnote 98, which lists the categories of people eligible for the automatic EAD extension).

    Also, remember that you can apply for a new EAD up to 120 days before the old card expires. Even with the most recent change, it is still a good idea to apply early for your new card, so you receive the replacement EAD as soon as possible.

    And here’s one last tip for today. If you cannot afford to pay for the new EAD (fees recently went up), you can request a fee waiver from USCIS, which—if granted—allows you to obtain a new EAD without paying the fee. To apply for a fee waiver, use form I-912, available here.

    I have written many times about the affirmative asylum backlog. It has been a real disaster for asylum seekers—especially those separated from their family members. The recent changes to the EAD process, during the waning days of the Obama Administration, have at least made one aspect of the wait easier, and for that, we can be thankful.

    Originally posted on the Asylumist:
  3. Farewell to The Deporter-In-Chief

    by , 01-25-2017 at 08:33 AM (Matthew Kolken on Deportation And Removal)
    And so it ends.

    President Obama’s presidency will be remembered as a historic time for our country, but not for the reasons you may be thinking. To the contrary, his legacy is pockmarked by sweeping anti-immigrant enforcement policies that will be remembered as an unwashable stain on the history of the United States. The only thing remotely close is when Roosevelt rounded up Japanese Americans in internment camps. And I’m not exaggerating.

    In Obama’s last year in office his deportation force apprehended 530,250 immigrants nationwide, conducting 450,954 removals and returns. In total, he deported more immigrants in his tenure than all Presidents of the 20th century combined. Refugee mothers and children spent their second Christmas together in one of Obama’s deportation internment camps for immigrant families. Their pleas for a pardon fell on deaf ears as criminals with gun crimes were set free.

    According to Syracuse University’s Transactional Access Clearing House (TRAC) Obama’s prioritization of the deportation of refugee mothers with children created a backlog of 102,342 deportation court cases, surpassing the 100,000 case mark for the first time. TRAC determined that pending priority cases involving unaccompanied children reached 75,582 in December 2016. Combined with family cases, deportations involving women and children now account for one third (33%) of the immigration court's overall backlog.

    As for the backlog, on day 1 of Trump’s Presidency there are currently a record breaking 533,909 pending Obama deportation cases. The first person to be deported as a result of a Trump interior enforcement action will likely not take place until after the midway mark of his first term in office.

    To add salt, the Obama administration’s parting gift to immigrant communities was a Supreme Court argument seeking to overturn a lower Court ruling that provided certain immigrants a defense to removal, and which if accepted, will make it even easier for subsequent administrations to effectuate deportations with no relief available.

    But that’s not all.

    Immigration was Obama’s major focus of federal criminal law enforcement efforts, comprising 52 percent of all federal prosecutions in FY 2016. In the last 12 month cycle ending in September 2016, federal prosecutions of immigration related crimes were tallied at 69,636. Conversely, federal criminal prosecutions for gun related offenses were only 5.8% of all charged federal crimes. In plain language, Obama talked the talk on guns, while mostly doing nothing, and walked the walk on immigration, focusing the majority of Department of Justice resources prosecuting and convicting immigrants for the crime of trying to get back to their families.

    Make no mistake about it, this was Barack Obama’s anti-immigrant America. Only there were no Million Mom Marches for jailed refugee mothers, and Democrats stood mostly silent as Obama conducted deportation raids against toddlers.

    Civil rights activist César Vargas, founder of UPLIFTT (United People for Latinos in Film TV and Theater), was less diplomatic in his insightful analysis of the Obama years. He astutely observed that “if a Republican had done what Obama did to Latinos you would've been calling for a civil war. But now you're out here protesting inaugurations and calling legitimate wins illegitimate.” He cautioned people not to fall for “party line” politics.

    And that’s exactly the problem.

    Democrats spent the past eight years ignoring Obama’s horrendous human rights violations because he had a ‘D’ at the end of his name. Some on the Left did far worse than sticking their head in the sand by actively undermining those brave enough to voice the truth.

    As for turning the page, the same people that sat on the sidelines cheerleading for Obama as his policies devastated immigrant communities are now up in arms because Trump has indicated that he wants to focus immigration enforcement resources on deporting serious criminals. I wonder where we heard that before? Mind you, when Obama said it hypocritical Democrats in the immigration law community called it “smart” immigration enforcement.

    So what does the future hold?

    I predict that Trump’s election may end up being the very best thing that could have happened for certain immigrants. Specifically, DREAMers. So far no executive action has been taken to reverse Deferred Action for Childhood Arrivals (DACA), and it has already been reported that President Trump has expressed a willingness to work with Congress to craft legislation that will provide legalization for immigrants benefiting from it. Work WITH Congress? What a novel concept, and likely more effective than demagoguing Republicans for 8 years, which parenthetically was the central component of Obama’s failed immigration reform strategy.

    But let’s be honest. Achieving immigration reform was never Obama’s goal. His goal was to win elections by casting Republicans as anti-immigrant, which is probably his only lasting achievement on the immigration front.

    So, let us raise a glass and bid farewell to the Deporter-in-Chief. Don’t let the door hit you on the way out.

    Updated 01-25-2017 at 09:44 AM by MKolken

  4. Report: Trump will bar immigrants from certain Muslim countries. Deja vu 1924 "National Origin" quotas all over again? Roger Algase

    Reuters reports on January 25 that President Trump is set to announce visa restrictions against immigrants from seven mainly Muslim countries in the Middle East and Africa, and a "temporary" ban on refugees from all over the world in the name of "National Security".

    For those who are familiar with the notorious racial/religious "national origin" visa restrictions in the 1924 Johnson-Reed immigration Act, a law which Trump's pick for Attorney General, Jeff Sessions, praised by implication only two years ago as described in my recent Immigration Daily comment, this should bring back some uncomfortable memories. See my January 16 Immigration Daily comment:

    Could America Turn Back Toward The Coolidge Era "Nordics-Only" 1924 Immigration Quotas in the Coming Years?

    As anyone who is familiar with American immigration history knows well, one of the main purposes of the 1924 law was to keep Jews and Catholics out of the United States, not by banning immigrants specifically on the basis of religion, which could have raised possible First Amendment problems affecting not only the freedom of religion of foreign citizens, but that of their American co-religionists, but on the basis of the countries they lived in.

    Under the 1924 law, immigration quotas for white, Protestant countries of Northern Europe were generous, while those for Catholic Southern Europe, and Eastern Europe with its large Jewish population, were reduced to the vanishing point, along with the quotas for immigrants from the Middle East, Asia and Africa.

    Is the president's expected announcement to be a first step toward adopting a template for US immigration policy in which "National Security" become the pretext for a return to the pre-1965 "Eugenics" ideology which favored immigrants from "Nordic" countries as good for America, and those from most or all other countries as dangerous or undesirable on ethnic or religious grounds?

    The link to the Reuters report is

    Roger Algase
    Attorney at Law

    Updated 01-25-2017 at 07:14 AM by ImmigrationLawBlogs

  5. OCAHO Finds No Document Abuse

    By Bruce Buchanan, Sebelist Buchanan Law

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    An individual’s claim of document abuse by a company was dismissed by Office of Chief Administrative Hearing Officer (OCAHO) because the company was abiding by E-Verify laws in declining a List B document without a photograph. See Johnson v. Progressive Roofing, 12 OCAHO no. 1295 (Jan. 2017).

    Michael Johnson was hired by Progressive Roofing and thereafter presented his documents in the process of completing his I-9 form – voter registration card (List B document) and two List C documents- a birth certificate and a social security card. Progressive Roofing told Johnson that the documentation was insufficient because the voter registration card did not contain a photograph. Although unclear whether Progressive Roofing explained the insufficiency, the company was enrolled in E-Verify which requires a List B document, if presented, to contain a photograph. (Alternatively, an employee may present a List A document.)

    Johnson filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (since renamed the Immigrant and Employee Rights Section) alleging document abuse for the company’s failure to accept his List B and C documents. OSC dismissed the charge for insufficient evidence of a violation but advised him of the right to file his own complaint with OCAHO. Johnson did so, alleging the same violation. Thereafter, Progressive Roofing filed an Answer and Motion for Summary Decision asserting it did not violate the law because it was following E-Verify practices and procedures by requiring a List B document containing a photograph or List A be presented. Johnson did not respond to the company’s motion.

    OCAHO explained document abuse occurs when an employer requests more or different documents than necessary or rejects valid documents and does so for the purpose of discriminating on the basis of citizenship status or national origin. Thus, document abuse takes two elements, an act and intent. It has not been a strict liability offense since the amendments to 8 U.S.C. §1324b(a)(b) in 1996.

    OCAHO found Johnson did not establish a prime facie case of discrimination because Progressive Roofing was an enrolled participant in E-Verify, which requires any List B document presented to contain a photograph, and did not request more or different documents than required by law. Assuming arguendo, Johnson established a prime facie case, Progressive Roofing met its burden by showing it had a legitimate nondiscriminatory reason for requesting a List B document with a photograph – to be in compliance with federal law. Finally, Johnson did not allege this defense was pretextual. Therefore, OCAHO dismissed Johnson’s complaint.

    This decision reminds employers that the use of E-Verify requires following certain rules, including only accepting List B documents with a photograph. In rejecting Johnson’s List B document, Progressive Roofing was merely following the applicable law.
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