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  1. Could There Be a Long "Black Night" of Legal Immigration Petition Denials, Inaction or Revocations After the Election? Roger Algase

    The ancient Greek poet Hesiod, who some scholars think may have been a younger contemporary of Homer, wrote the following in his most famous work, Theogony:

    ek chaeos d'erebos te melaina te nux egenonto

    ("Out of Chaos...black night came into being.")

    Could there be a black night for legal immigration after Tuesday's election, coming up after what can only be described as a chaotic presidential campaign?

    Up to now, almost all of the focus on immigration policy during the presidential campaign has been on enforcement measures to secure the border against illegal immigration, or immigration by criminals and terrorists, and to bring about the departure of up to an estimated 12 million people who have entered the US illegally or overstayed their legal permission to be in this country.

    There has been much less discussion about reducing or terminating legal immigration, including work visas and both employment and family-based green cards.

    However, one of the two major party presidential candidates, who could very realistically be elected as our next president on November 8, has already promised to abolish two of the main pillars of legal employment-based immigration, namely H-1B work visas and labor certification green cards.

    He claims that these two programs hurt the wages and job opportunities of American workers. He has also suggested that all work visa programs should require US employers to recruit US workers first, which would effectively end whatever is left of employment-based immigration.

    But beyond that, in his much publicized Phoenix August 31 immigration address, this same candidate expressed a clear and openly stated distrust, if not outright hostility, toward immigration in general. He stated that current levels of immigration were far too high and needed to be reduced to "historical levels".

    This proposal has been estimated as likely to result in turning away 30 million potential immigrants who would otherwise be admissible under our laws, according to a recent article in The Atlantic mentioned in one of my recent Immigration Daily posts.

    This candidate also, in the same address, referred to "decades-old" and "outmoded" immigration laws (an evident reference to the 1965 immigration reform law which is the foundation of our current, race-neutral, immigration system) which he claims allegedly need to be revisited by a commission which he would appoint for this purpose.

    This candidate didn't say who would be on the commission, but it is not unreasonable to assume that it would be packed with strong opponents of "third world" immigration and people who have been calling for a "time out" on further immigration for many years - names such as Ann Coulter, Patrick J. Buchanan, and Kansas Secretary of State Kris Kobach come to mind, as well as leaders of well known restrictionist organizations such as CIS (Center for Immigration Studies), FAIR (Federation for American Immigration Reform) and Numbers USA.

    It would not be surprising if Senator Jeff Sessions, (R-AL) one the strongest opponents of all immigration in Congress, who has reportedly been advising Trump on immigration policy, were to find a place on this proposed commission.

    Given the antipathy that Donald Trump has shown toward most if not all forms of immigration, not only in his Phoenix speech, but in other campaign speeches in which he has warned that "uncontrolled" immigration could "destroy America", it is instructive to look at some of the possible legal steps that the president could take to halt all immigration, or at least major parts of immigration under our current system, without requiring any change in the law or permission from Congress.

    There are several such legal avenues to doing so, which I will discuss below.

    The first, and very possibly the easiest, would be to instruct the head of DHS to order the USCIS director to issue new policy guidance memos defining key terms in the statutes on which the various employment-based benefits are based in such a way that it would be all but impossible to approve most employment based NIV petitions such as H-1B, O-1, L-1, E-2, etc.

    This is would not all that difficult to do. One example is the January 8, 2010 H-1B policy memo by USCIS Associate Director of Service Center Operations Donald Neufeld, which defined the term "employment" in the H-1B statute and regulations in such a way that it would be difficult or impossible to approve H-1B petitions for employees working at remote sites.

    Another way of assuring denial of many, if not all, H-1B petitions is though the practice that many USCIS Service Center examiners are already adopting of defining the term "specialty occupation" in such a way that whatever job description is at issue in the petition is sure to fail to meet the definition.

    While going into detail on this issue is beyond the scope of this comment, I can give one example: recently some USCIS Service Center examiners have been denying H-1B petitions for what used to be the regularly approved H-1B specialty occupation of Market Research Analyst.

    The grounds for denial has been that since the US Department of Labor's Occupational Outlook Handbook (OOH). lists several fields of study (around half a dozen) as being related to the above job title, rather than just one or two, this position is not a specialty occupation because it allegedly does not require a bachelor degree in a specific field of study as a prerequisite.

    I do not mean to imply that this strategy of defining away a particular statutory or regulatory term so that it is virtually impossible to meet the definition works only with H-1B petitions.

    It can (and does) work with almost any kind of employment based petition - whether using such a strict and convoluted definition of the term "manager" for L-1A purposes that it becomes almost impossible to qualify as a manager, or defining the O-1 extraordinary ability standards in a way so that it becomes impossible to meet those requirements, a sufficiently creative USCIS official with knowledge of the specific requirements of any given employment-based NIV category (or I-140 immigrant petition category) can develop definitions of these standards that would put approval beyond the reach of most if not all petitioners.

    The above would not require any statutory changes or even issuing new regulations under the APA. However, it might require a change in a statute or regulations to insulate this strategy from federal court review, by making a decision to approve or deny any given NIV or immigrant employment based petition "discretionary". See Systronics Corp. v. INS 153 F. Supp 2nd 7 (D.D.C. 2001).

    One should not estimate the power of federal government agencies to effectuate wide changes in policy, which can have the effect of a major change in a regulation or statute but without going through any of the required procedures, simply by issuing policy memos.

    There is no reason why USCIS or DHS policy memos cannot be used to bring large parts of the legal immigration system to a halt under the direction of a president who might have this as his objective.

    Of course, policy memos, carefully and properly written, can also go a long way in the other direction, by liberalizing many aspects of the legal immigration system. One should not be surprised to see such memos being issued if the other major party candidate, Hillary Clinton, is elected president.

    Another, related strategy which might be used by a president determined to cut down or halt immigration from Latin America, the Middle East, Asia, and other areas of the world which he might oppose for various reasons, might be to announce through DHS or USCIS that new regulations are in process for the various visa categories I have mentioned above, and that no petitions for these benefits, including all NIV employment categories and I-140 green card petitions, will be accepted or acted upon until the new regulations are issued - which would never happen during his presidency.

    This might require the president to use his authority to suspend immigration of any type he chooses for just about any reason on "national interest" grounds under INA Section 212(f), which I have commented on previously. That authority is in the statute, and it gives the president virtually unlimited discretion.

    But why assume that a president who has shown as much hostility to legal immigration in general as Donald Trump did in his August 31 Arizona speech would stop at halting most or all new employment-based legal immigration?

    What about people who already have approved I-140 petitions and are waiting for their green cards? At least they are safe, are they not?

    Think again: the DHS also has very broad power to revoke previously approved green card (I-130 and I-140) petitions under INA Section 205, which reads as follows:

    The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.

    This provision has already become controversial under the Obama presidency, particularly concerning revocation of EB-1 extraordinary ability green card I-140 petitions - something thing I also commented on previously in Immigration Daily.

    Under a Donald Trump presidency, we might conceivably be hearing a good deal more about this provision.
    ________________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards.

    Roger's email address is algaselex@gmail.com


    Updated 11-06-2016 at 08:49 PM by ImmigrationLawBlogs

  2. Employer Successful in Greatly Reducing Penalties at OCAHO

    By Bruce Buchanan, Sebelist Buchanan Law

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    As previously stated, OCAHO has recently issued several decisions including U.S. v. St. Croix Personnel Services, Inc., 12 OCAHO no. 1289 (October 2016). In SCPS, OCAHO found in favor of the employer on eight of the 17 alleged violations, thereby reducing the penalty sought from $16,690 to $5,450.

    SCPS, based in Minnesota, was served with a Notice of Inspection and subpoena in September 2013 and thereafter provided 16 Form I-9s to Immigration and Customs Enforcement (ICE). ICE issued a Notice of Intent to Fine and then a Complaint alleging the 16 form I-9s were in violation of the Immigration Reform and Control Act for failure to timely complete sections 1 or 2 of the I-9 form plus failure to provide an I-9 form for one employee. In its Answer, SCPS admitted to nine violations – the one failure to prepare an I-9 form and eight of the 16 other violations. However, it denied the other eight violations, arguing they were timeliness violations and were beyond the five-year statute of limitations. Furthermore, SCPS asserted two of the eight individuals were owners, not employees; thus, no I-9 forms were required. Finally, it asserted the penalty amount was excessive and sought the minimum of $110 per violation.

    ICE sought a baseline penalty of $935 per violation based upon an error of over 50%. Moreover, it aggravated the penalty by 5% ($46.75) but never disclosed what the aggravation was based upon. Therefore, OCAHO declined to aggravate the penalty.

    The major issue before OCAHO was whether eight I-9 forms were barred by the five-year statute of limitations. The evidence established SCPS failed to ensure the employees completed section 1 on their first day of employment and failed to complete section 2 within three business days of their hire dates.

    OCAHO carefully analyzed this issue and reviewed the eight employees’ dates of hire and the dates I-9 forms were competed. The complaint was filed on July 30, 2015; thus, any timeliness claims which occurred before July 30, 2010 were time-barred. OCAHO found the eight employees in question were hired between April 2, 1999 and October 1, 2007 and section 2 should have been completed within three days thereafter; thus, all eight allegations occurred before July 30, 2010. Based upon this analysis, OCAHO dismissed the eight allegations as time-barred. In so doing, it did not address whether the two owners had to have I-9 forms.

    Concerning the five statutory factors in assessing a penalty, small business, seriousness of violation, good faith/bad faith, employment of unauthorized workers, and history of violations, OCAHO found the violations were serious and a 5% aggravation was appropriate. However, it found SCPS was a small business, which should receive a 5% mitigation based upon this factor. The other three factors – lack of good faith, no unauthorized workers, and no history of violations, were treated as neutral.

    In conclusion, OCAHO found SCPS deserved leniency due to consideration of the public policy of leniency to small businesses. As such, OCAHO assessed a $650 penalty for the failure to prepare one Form I-9 and $600 per violation for the other eight violations for a total of $5,450.

    SCPS’counsel, DeAnne Hilgers, said “SCPS Personnel was willing to acknowledge liability where it was liable, but felt strongly about defending itself where it was not liable rather than capitulate. The court agreed with my client.”

    Thus, through litigation, SCPS was able to reduce the penalty by about two-thirds, which should be considered a major victory for the employer.
  3. Prominent Immigrant Rights Advocate Recanting Hillary Clinton Endorsement

    by , 11-04-2016 at 10:15 AM (Matthew Kolken on Deportation And Removal)
    Prominent immigrant rights advocate César Vargas has recanted his previous endorsement of Hillary Clinton. He writes:

    It took me a long time to write this. I had to dig deep into my being to come up with these words. I’m recanting my endorsement of Hillary Clinton for the presidency...

    I’ve seen how our heroes, activists, journalists, and celebrities have completely sold their souls to support something no person with an iota of morality would do. I’ve seen them say and do things to derail candidates who would have been a million times better for those less fortunate around us. It’s unfortunate most pretend to fight the establishment, to act like they love the people more than they love the struggle and the relevance that it brings them. I am not one of those and I won’t continue to be until the good Lord takes me.

    Yes, I am heartbroken, I am angry, I am defeated, but I will rise and continue to advocate for you, for my people, for those that don’t have a voice. But I refuse to be a pawn, a conduit of their oppression, of their disenfranchisement, of their brutalization, of their exploitation, of their lives and deaths. That’s what a Hillary Clinton endorsement means to me.

    César Vargas is a writer, director, strategist, and advocate. He founded UPLIFTT and was named one of 40 under 40: Latinos in American Politics. His op-eds and quotes can be found on the Huffington Post, Latino Rebels, Okayafrica, Okayplayer, NBC, Latino Magazine, Fox News, Sky News, NBC, Salon, The Hill, and the Guardian.

    Click here to read the entire article.
  4. Trump Could Turn New York Into a Ghost City Without Immigrants, While New Allegations of Visa Violations By His Wife Come to Light. Roger Algase

    Update, November 5, at 10:42 am:

    While Donald Trump in his August 31 Phoenix speech proposed draconian enforcement measures against immigrants who overstay their visas or otherwise violate the immigration laws in any way, there appears to be one immigrant who may have allegedly been involved in a more serious violation than mere overstay. I refer to his own wife, Melania Trump, whose alleged immigration violation Trump appears ready to reward by installing her in the White House as First Lady (of Fraud, if the AP's unproven allegations are true) if he is elected president.

    See:

    https://apnews.com/37dc7aef0ce44077930b7436be7bfd0d

    The latest AP report states:

    "Melania Trump was paid for 10 modeling jobs in the United States worth $20,056 that occurred in the seven weeks before she had legal permission to work in the country, according to detailed accounting ledgers, contracts and related documents from 20 years ago provided to the Associated Press."

    If this report is true, it might well mean, as I have explained before in a previous post about Melania Trump, that she could have allegedly lied about her intended activity in the US, not only to get a visitor visa in the first place, but again on entering the US.

    It would not also be unreasonable to speculate that she would have at least had an incentive to lie again when she applied for her green card (based on a marriage to a man other than Trump about which details have never been revealed).

    On the green card application, there is a question about whether one has ever tried to obtain a visa though fraud or misrepresentation. No one knows how Melania Trump answered that question.

    When she became a US citizen, there could have, allegedly, been another problem: the citizenship application has a question about whether one has ever committed a crime that one has not been charged with. Visa fraud, is, of course, a crime (even though merely overstaying a visa, which Donald Trump has vowed to put an end to, is not).

    No one knows how Melania answered that citizenship question.

    I am emphatically not in any manner suggesting or implying that Melania Trump should be investigated or prosecuted for any alleged (and so far unproven) visa or immigration fraud, either criminally and/or though revocation of her US citizenship and subsequent deportation.

    I am only suggesting that, in appropriate cases (perhaps several million of them, through a sensible legalization plan of the kind that Hillary Clinton - whom Trump wants to lock up because she might have sent some emails which might have been classified and might have been hacked - has proposed), Trump might wish to show the same kind of tolerance or latitude for immigration violations committed by immigrants who are not beautiful European models such as his wife, but who may have different skin colors or religions, and may come from other parts of the world than mainly white Europe.

    One might want to remind Donald Trump that many of these Latino, Asian, Muslim and other non-European immigrants also have American citizen husbands, wives or children, even if these family members are not running for president.

    My original post appears below:

    Last night (November 3), my wife and I, who are both big fans of Korean cuisine, decided to have dinner at one of the many new Korean restaurants which seem to be constantly opening in Manhattan's "Koreatown". For those who do not know or have never been to New York, this refers to the single block on 32nd street between Fifth Avenue and Broadway, just off Herald Square, one of the busiest and most active locations in New York, or anywhere in America, just about any time of the day or night.

    In Herald Square itself, one can stand on any street corner for five or ten minutes and have good chance of hearing up to a dozen foreign languages being spoken from all parts of the world as people go by on their way to the countess stores, large and small, eating places and other businesses run by and/or employing people seemingly from every country on earth, in this booming center of American prosperity.

    Herald Square, along with Times Square about ten blocks away, may be one of the largest areas in New York which owes its prosperity in large part to immigrants from over the world, but there are countless others - Union Square, St. Mark's Place, Columbus Circle, West 72nd street ("Verdi Square") and East 86th Street (Yorkville - once a mainly German neighborhood), to name only the few which I am most familiar with - throughout not only Manhattan but all of the five boroughs of New York City.

    Walking along 32nd street's Koreatown, I was struck especially by the number of young, well dressed people, most likely students or business and professional workers, walking by the restaurants and the stylish boutiques, most of which were still open even though it was after 9:00 pm. Since this was Koreatown, most were from Asia, and one could hear not only Korean but also Chinese, being spoken everywhere along the block as well as both of America's national languages, English and Spanish, together with other languages from various parts of the world.

    The restaurant where my wife and I were lucky enough to find a table and order our favorite bibim bap Korean dish, together with kimchee and other Korean appetizers, and delicious Korean beer with a brand name I had never heard of, was jammed with young people, mainly from Korea, but, by appearance, from many other nationalities as well, including, of course, the United States, as Korean food ia also popular with many other Americans besides myself.

    Being an immigration lawyer, I could not help wondering what kind of visas they were here with, or how they had obtained their green cards. Some customers, no doubt, were visitors, especially since South Korea is now a visa waiver country. Very possibly, the South Asian man in a business suit at the table next to mine who was busy working away at his laptop while he ordered might have had an H-1B visa.

    Along this line of speculation, I started asking myself how much chance he would have of renewing that visa (assuming my guess were correct), or even keeping the one he might (hypothetically) have now, if the Republican presidential candidate, who has promised to abolish the H-1B visa category (along with labor certification green cards - see below) were to win next Tuesday's election.

    If this restaurant was typical of most others on the block and throughout New York, many, if not most, of the servers might well have been F-1 students earning some badly needed cash to help pay for their tuition - that is, if they were still attending school at all, something which cannot necessarily be assumed.

    Nor have I ever known of a restaurant customer asking a waiter or waitress whether he or she has optional practical training or some other kind of work permission as the food was being served.

    And this got me thinking: suppose that a hypothetical US president and administration were to carry out the proposals with respect to both legal and illegal immigration set forth in the August 31 Phoenix, Arizona immigration address by the Republican candidate, Donald Trump.

    It would not take very long for the lights to go out and the people to disappear from West 32nd Street and much of neighboring Herald Square, and from prosperous business centers throughout New York City - and America.

    In Part 2, I will take a look at the details of Trump's immigration proposals to see exactly how New York City's transformation from one of the greatest cities of the world into a virtual ghost town could be accomplished if these proposals were ever to go into effect.
    _____________________________
    Roger Algase is a native-born New Yorker and a graduate of Harvard College and Harvard Law School. He has been practicing business and skilled worker immigration law in New York for more than 35 years.

    Roger especially enjoys Korean, Indian, Chinese and Japanese food, among other international cuisines. His email address is algaselex@gmail.com







    Updated 11-05-2016 at 05:02 PM by ImmigrationLawBlogs

  5. Auto Accident with A Foreign National: How can this affect the claims process?


    It is no secret that thousands of foreign nationals arrive in the United States each day. Many of these visitors are Canadian and Mexican nationals who regularly cross the border to work or shop in the U.S. There are also those who arrive on tourist or student visas, who will either rent a car from a car rental agency, or perhaps purchase a car to use while in the country.
    No matter the reason, business or pleasure, all vehicles operated on public highways in the United States are required to be insured to at least the minimum amount of coverage required by law in the state that the vehicle is registered.

    Foreign Nationals and Rented Vehicles

    Responsibility for insurance rests with the registered owner of a vehicle. At border control checkpoints, the border control officers will request that the driver of a vehicle produce a driver’s license of a type recognized as valid in the United States, a valid vehicle registration, and proof of insurance that provides international coverage. If any of these items cannot be produced, then the vehicle will be denied entry. In the case of a car rental agency it is required to assure itself that a person renting a vehicle has:
    ● a driver’s license that is valid to operate a motor vehicle in the United States
    ● a valid entry document such as a passport, visa, or other identification issued by a government agency
    ● vehicle insurance that has a provision for international coverage

    If the vehicle renter cannot provide evidence of insurance, then the renter is required to purchase temporary coverage that is valid for the rental period from the rental agency. Failure to assure itself that a driver has proper insurance could expose the rental agency to full liability for damages in the event of an accident.

    Foreign Nationals and Borrowed Vehicles

    Many foreign nationals enter the country to visit friends or relatives, and it is not uncommon for a relative to loan a car to a visitor. In these cases, it is the responsibility of the vehicle owner to have valid insurance that will also cover the driver of the vehicle who is not the owner or is not specifically named in the policy.

    Accidents Where a Foreign National Is at Fault

    In the case of a foreign national who is determined to be at fault in an auto accident, and is appropriately insured, any insurance claims will be the responsibility of the company that issued the policy, and should be handled as if the foreign national were a US citizen. If, however, the operator of a vehicle is a foreign national and is not insured, the issue becomes more complicated.
    The car rental agency that rented the car, and failed to assure itself of valid insurance coverage, becomes liable for any damages that occurred while the vehicle was beyond its immediate control where “immediate control” means the vehicle is physically present on the rental lot and the agency has the vehicle’s keys. If a rented vehicle is not returned on time, the agency is still liable.
    If a vehicle was personally loaned to the foreign national, and the vehicle’s insurance was not in effect for that driver, the person loaning the vehicle becomes liable. If the loaner of the vehicle is a US citizen or legal resident, the loaner can be sued in a “court of competent jurisdiction,” be it a state or (rarely) federal court.

    If you have been involved in an auto accident with a foreign national, contact a DC personal injury lawyer to help you with these complex issues. Thanks to our friends and contributors from Cohen & Cohen, P.C. for their added insight into this issue.
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