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Leaders of two of America's most prominent religious institutions, Rabbi Burton L. Visotsky of the Jewish Theological Seminary and Rev Bertram Johnson of the Riverside Church (both in New York) have issued a joint statement condemning Donald Trump's revised ban on entry to the US by citizens of six overwhelmingly (in some cases, more than 99 percent) Muslim countries.
Haaretz, one of Israel's leading newspapers, has also compared Trump's attacks on Muslims to the movement to keep Jewish immigrants out of the US in the late 19th and early 20th centuries.
In their joint article appearing the The Hill on March 12, Rabbi Visotsky and Reverend Johnson pointed to a recent statement to Fox News by White House policy adviser Stephen Miller that the new six country Muslim ban order will "have the same basic policy outcome" as the previous order, which was stayed by the 9th Circuit and other federal courts.
It would be very surprising if the federal courts, such as the US District Court in Hawaii which is now reviewing the new executive order, ignore or overlook Miller's statement in determining whether there is any material difference between the intent to discriminate against immigrants on the basis of religion in the new six country ban and the original, now revoked, seven country ban order.
In their statement, Rabbi Visotsky and Reverend Johnson also show clearly, in words which arguably go right to the heart of the matter more directly than the opinions of the 9th Circuit and other federal courts have done to date, why religious discrimination against Muslim immigrants also adversely affects the Constitutional rights of Muslim American citizens to the free exercise of religion
"This Muslim Ban 2.0 is the next in a series of actions by the adminstration that make Muslim Americans feel unwelcome in their own country."
And it is not only the rights of Muslim Americans that are affected. As the two distinguished religious leaders also state:
"That 'same basic policy outcome' violates the principles established in the Constitution. Our nation was founded on the freedom of religion and we must protect that freedom for all Americans today."
In other words, Trrump's new six country Muslim ban, no less that the first one, is a blow against the religious freedom of all of us in America today, regardless of what religion we may or may not belong to or practice.
As the grandchild of a another Jewish Rabbi, one who immigrated to America in the late 19th century, at a time of the same type of hostility toward Jewish immigrants that Donsld Trump and his top advisers are now showing toward Muslim immigrants, I can well understand and relate to the above statement by these two respected and courageous religious leaders.
The above cited article in Haarerz well describes the atmosphere of hatred and exclusion which Jewish immigrants to America had to face in the time of my immigrant grandparents.
This history, as well as America's history of prejudice and persecution toward Irish, Asian and, let us not forget, Mexican, as will as many other immigrant groups which were not from the "Nordic", Protestant, countries of Western Europe, is woven into the fabric of Trump's Muslim ban orders.
With regard to Jewish immigrants specifically, Haaretz, in an article written prior to last year's election, stated:
"The revered Senator Henry Cabot Lodge lobbied against Jewish immigration at the end of the 19th and start of the 20th centuries. He was the driving force behind the literacy test that was aimed at keeping Jews out.
The Israeli newspaper then contrasts Lodge's "restraint" with regard to voicing his antagonism toward Jewish immigration with Trump's openness in identifying which ethnic or religious immigrant groups he is most opposed to:
"But in a famous speech in 1897, Lodge refrained from specifying that it was the Jews who were bothering him the most; 120 years later, Trump has had no constraints in identifying Mexicans as murderers and pinpointing Muslims as problematic immigrants who had no intention of assimilating."
In its decision blocking Trump's first, seven country Muslim immigration ban, the 9th Circuit recognized that the history of that order, including Trump's election campaign statements and proposals, was relevant to understanding that order's real intent, and that this history could mot and should not be overlooked in making a final determination concerning the January 27 order's legality and Constitutionality.
One hopes that in the State of Hawaii's lawsuit against the replacement Muslim ban order, and in any other lawsuits that may be brought against that order, the courts will consider not only the immediate election campaign history of Trump's Muslim ban orders, but also their larger context of Trump's mass deportation executive orders targeting Latino, Asian and other minority immigrants.
And in order to gain a full understanding of both Trump's Muslim ban orders and his mass deportation orders, America's history of persecuting minority immigrants, going back at least to the time of the mid 19th Century Know-Nothings, cannot be lightly passed over.
David Bier, an immigration policy analyst at Cato Institute, writing in the New York Times on January 27, in response to Trump's original seven-country Muslim ban order, describes this history as follows:
"...a long and shameful history in this country of barring immigrants based on where they came from. Starting in the 19th century, laws excluded all Chinese, almost all Japanese, then all Asians in the so-called Asiatic Barred Zone. Finally, in 1924, Congress created a comprehensive 'national origins system' skewing immigration quotas to benefit Western Europeans and to exclude most Eastern Europeans, almost all Asians, and Africans.
Mr. Trump appears to want to reinstate a new type of Asiatic barred zone by executive order."
In effect, Trump, in his original seven Muslim country order, as in essence unchanged in his new six Muslim country ban order affecting some 100 million people, 99 percent (or close to it) of whom belong to that religion, is trying to bring back America's long and shameful history of barring immigrants from the US on the basis of race and religion.
And Trump is not even trying to do this by Congressional action, which might at least provide a fig leaf of "legality" under the Plenary Power doctrine set forth by the Supreme Court in the dark and shameful time of the Chinese Exclusion laws.
Instead, Trump is trying to wipe out 50 years of non-discriminatory immigration policies mandated by the landmark 1965 immigration reform law, which abolished the discriminatory 1924 national origin immigration quotas, by one -man executive fiat.
Bier also alludes to the authoritarian nature of Trump's ban, which, according to mostt if not all news reports, was drawn up without any input, or even knowledge, by Congressional leaders in either party, or even Trump's own national security or foreign affairs experts:
"...Mr. Trump asserts that he still has the power to discriminate, pointing to a 1952 law that allows the president to 'suspend the entry' of 'any class of aliens that he finds are detrimental to the interests of the United States."
"But the president ignores the fact that Congress, the restricted this power in 1965, stating plainly that no person could be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth or place of residence.'...
Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between 'the issuance of a visa' and the 'entry' of the immigrant. But this is nonsense. Immigrants cannot be legally issued a visa if they are barred from entry. This all orders under the 1952 law [INA Section 212(f)] apply equally to entry and visa issuence, as his[January 27] order acknowledges."
"While presidents have used their power dozens of times to keep out certain groups of foreigners under the 1952 law, no president has ever barred an entire nationality of immigrants without exception."
Herein lies tha biggest danger of all in both Trump's original Muslim ban order and in is slightly scaled down, essentially cosmetically changed one, which, as quoted above, still seeks to achieve "the same basic policy outcome".
The danger is that by claiming that he has the right to a vast expansion of the unilateral power to exclude immigrants that was actually conferred by Congress or has been used by any previous president, Trump is taking one more giant step toward imposing authoritarian, one man rule in America.
This can only remind us of how another chief executive in a different country used a different set of enactments, aimed against the same ethnic/religious group that Senator Henry Cabot Lodge was so anxious to keep out of America, as a stepping stone to solidifying absolute power in his country just over 80 years ago.
These enactments, promulgated in Germany in 1936, were known as the Nuremberg Laws.
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, without regard to ethnicity, religion or nationality, obtain work visas and green cards in this land of freedom and equal opportunity for all.
Roger's email address is email@example.com
Updated 03-13-2017 at 09:04 AM by ImmigrationLawBlogs
by Chris Musillo
The Department of State has just issued the April 2017 Visa Bulletin. This is the seventh Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month's Visa Bulletin.
April 2017 Visa Bulletin
Final Action Dates
Applications with these dates may be approved for their Green Card (Permanent Residency card).
MU Law Analysis
All Other: The EB-2 has been current for many years. The EB-3 progression continues, moving an additional two months. Consular processed EB-3 are effectively current.
China: The China EB-2 date again moved up one month. The China EB-3 again date progressed nearly six months, just as it did in the March 217 Visa Bulletin. The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.
India: EB-2 India moved up about 3 weeks, while EB-3 India stayed essentially the same, unfortunately.
Mexico: Mirrors All Other in all aspects.
Philippines: EB-3 moved ahead by nearly six more months. The Philippine EB-3 number essentially cleaned out most of the 2010, 2011, and 2012 EB-3 visas in less than 6 months. This is what we have expected. (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").
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 and follow us on Twitter.
The State of Hawaii is the first state to file a lawsuit in Federal District Court against Donald Trump's revised order banning entry to the US by citizens of six overwhelming Muslim countries (at least some, if not all of which are more than 99 per cent Muslim), and which also provides for additional countries, almost certainly Muslim ones as well, to be added to the banned list later on.
According to the latest reports, at least four other states, including New York, are planning to join the lawsuit, which has been filed in the United States District Court for the District of Hawai'i and is entitled:
State of Hawai'i and Ismail Elsikh v. Donald J. Trump (et al), Civil Action No: 1:17-cv-00050-DKW-KJM
For a link to the full complaint, go to:
The complaint sets forth the full history of Trump's Muslim ban orders based on Trump's campaign statements and other statements by his top advisors and makes clear beyond any possible doubt that the motivation for the orders was to exclude Muslims from the United States based on their religion only.
It then goes on to show how the discrimination against Muslim immigrants on the basis of their religion adversely affects the rights of Muslim US citizens, including but not limited to the individual plaintiff (a Muslim Imam), his family and members of his congregation. Details of this portion of the complaint will be discussed below.
Finally, the complaint describes how the interests of the State of Hawaii itself, as a center of religious and ethnic diversity, and with an economy dependent in large part on tourism, are damaged by the ban.
For the following reasons, it is virtually certain that the federal courts, including but not limited to the district court in the above case, will strike down the new Muslim ban order, despite the fact that it cures some of the more obviously egregious aspects of the original ban, such as the exclusion of lawful permanent residents ot the US coming from the affected countries.
First, the purpose and intent of the new ban, no less than the first one, is obviously to discriminate against immigrants and visitors based on their religion. As will be shown below, the "national security" justification for the ban is so thin as to verge on being a fraud on the court. See:
Second, the basic Constitutional guarantees of free exercise of religion and prohibition against establishment of religion are affected by the ban in a way that retrains and intimidates Muslim US citizens from the free exercise of their religion.
Third, contrary to the arguments which the Trump administration unsuccessfully brought before the 9th Circuit Court of Appeals in connection with the now revoked original seven Muslim country the courts have the power, and the duty, to look behind the ostensible reasons for the presidential finding under INS Section 212(f) that entry to the US from the banned Muslim countries is against the interests of the United States.
It is true that this section gives the president wide power over entry into the United States by foreign citizens. But we are not (yet) at the point where Adolf Hitler could say, as he did:
"For 24 hours, I was the Supreme Court of Germany."
To be continued.
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, and from a variety of ethnic and religious backgrounds, obtain work visas and green cards.
Roger's practice is primarily concentrated in H-1B specialty occupation and O-1 extraordinary ability work visas, J-1 training visas, and in green cards through labor certification (PERM) and through opposite sex or same sex marriage. His email address is firstname.lastname@example.org
Updated 03-10-2017 at 06:16 PM by ImmigrationLawBlogs
By Bruce Buchanan, Sebelist Buchanan Law
The U.S. Department of Labor’s Administrative Review Board (ARB) found a consulting company was not obligated to offer or pay a fired H-1B employee’s airfare to India, her home country, because she took no initiative to leave the United States. See Vinayagam v. Cronous Solutions (ARB Case No. 15-045 Feb. 14, 2017).
Cronous, a consulting company, took several months to place Vinayagam. Eventually, it placed her with another company as a contract worker, where she worked for a few months before Cronous’ contract expired. Several months later, Cronous shut down its business and notified Vinayagam of her termination and her need to immediately leave the United States. Vinayagam stated she needed to be paid all the salary owed for her time she was “benched” (available for employment but not employed) and requested airfare to India. Cronous’ representative said he would check on that matter.
Thereafter, Cronous sent a letter to the USCIS asking for revocation of its approval of the I-129 petition. Two months later, the USCIS did so. Cronous continued to pay Vinayagam until the revocation was approved.
Vinayagam continued to reside in the United States for another 1 ½ years seeking other employment and unsuccessfully petitioning for a change of status to B-2 - visitor. She conceded she made no effort to leave the United States.
Vinayagam filed a complaint with the Department of Labor (DOL) on underpayment of wages and a lawsuit in federal court. The parties resolved the lawsuit with Vinayagam receiving $45,000 in back pay for the period of February 2008 to February 2009. Vinayagam asserted at the DOL that she was entitled to back pay continuing until September 28, 2010 because Cronous did not offer or provide payment of return transportation costs upon her discharge.
As most readers know, normally an employer who discharges an H-1B employee must offer to pay the employee’s airfare to his/her home country. Other conditions which employers must meet to affect a bona fide termination of an H-1B employee are express termination of employment relationship with the H-1B employee and notification of the USCIS of the termination in order that the I-129 petition can be revoked.
The ARB determined Cronous had ended its obligation to Vinayagam by paying her wages through February 2009 and notifying her of her termination. It did not need to pay her costs home or offer to do so because Vinayagam voluntarily chose to remain in the United States without a valid visa, sought employment with other employers, and unsuccessfully sought to change to a B-2 visa.
In this case, the employer was successful in not offering return transportation costs based on these particular facts. Your company may not be so lucky if it fails to offer the return transportation costs. Therefore, employers should always offer these return transportation costs when discharging an H-1B employee.
by Maria Schneider
On Monday, March 6, 2017, President Trump issued an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” This Executive Order will go into effect on Thursday, March 16, 2017. Among other provisions, the Executive Order states individuals from six designated countries who are outside the United States and do not currently have a valid visa are not eligible to travel to the United States for 90 days.
Please note that Iraq has been removed from the list of countries effected by this Executive Order. This Executive Order does not apply to:
lawful permanent residents (green card holders)dual nationals who travel to the US on a passport issued by the non-designated countryindividuals who hold a valid visa on the effective date of the Order. No visas will be revoked.foreign nationals traveling on diplomatic visasindividuals granted asylum or refugee status in the US before the effective date of the order
The US Department of Homeland Security and US Department of State have discretionary authority to issue visas on a case-by-case basis to nationals of the six named countries when denial of entry would cause undue hardship.
Nationals from countries not named above can travel abroad but should expect additional delays and scrutiny at the airport when re-entering. Please note that the situation is fluid and may change at any time. If you have any questions, please contact our office.
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 and follow us on Twitter.