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  1. Half a million aliens a year enter as visitors and never leave and neither candidate has a solution to that problem.

    Congress asked the Department of Homeland Security (DHS) and its predecessor, the Immigration and Naturalization Service, for more than 20 years for a report on how many nonimmigrant alien visitors have overstayed their admission periods. DHS finally produced a report this year. It includes overstays who entered the United States as nonimmigrant visitors for business or pleasure through an air or sea Port of Entry in FY2015. DHS determined that 527,127 of them remained here when their admission periods expired. To put that number into perspective, the Border Patrol only apprehended 331,333 aliens making illegal entries on the Mexican border in FY2015.

    The report does not include nonimmigrant visitors for business or pleasure who entered at a land Port of Entry on the Mexican or Canadian borders, or nonimmigrant visitors who have other classifications, such as foreign government officials, aliens in transit through the United States, treaty traders and investors, students, international representatives, temporary workers and trainees, representatives of foreign information media, exchange visitors, intracompany transferees, NATO officials, or religious workers.

    Terrorists have come into the United States as nonimmigrant visitors. In her opening statement at a hearing on overstays, Martha McSally, Chairwoman of the House Border and Maritime Security Subcommittee, noted the following examples of terrorists who were overstays:

    • Mahmud Abouhalima, an Egyptian convicted of the 1993 World Trade Center bombing, worked illegally in the U.S. as a cab driver after his tourist visa had expired;
    • At least four of the 9/11 hijackers were nonimmigrant visitors who had overstayed their visas or had violated the terms of their visitor status;
    • More recently, Amine el-Khalifi attempted to conduct a suicide attack on the U.S. Capitol in 2012. He entered the United States in 1999 on a tourist visa and never left; and
    • A man who had returned to the United States despite being out of status on his student visa as an overstay, was arrested in the aftermath of the Boston Marathon bombing for helping to destroy evidence.

    The report also finds that 153,166 of the overstays came from a Visa Waiver Program (VWP) country, which includes a number of European countries. Terrorist attacks in Europe have raised concern about the possibility that terrorists will use the VWP to come to the United States. Congress responded to that concern by passing the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which placed additional restrictions on eligibility for travel to the U.S. without a visa under the VWP. It excludes aliens who have been present, at any time on or after March 1, 2011, (I) in Iraq or Syria; (II) in a country that is designated by the Secretary of State as a country, the government of which has repeatedly provided support for acts of international terrorism; or (III) in any other country or area of concern designated by the DHS Secretary. DHS has added three countries Ė Libya, Yemen, and Somalia.

    The Visa Waiver Improvement and Terrorist Prevention Act is not going to prevent terrorists from using the VWP to come here without visas. ISIS and other terrorist organizations have or can recruit citizens of VWP countries who will not be excluded by that Act. The door is still wide open.

    A new Administration will address the overstay problem in a few months, but I am not optimistic about the likelihood that either of the candidates for the presidency will be able to solve that problem.

    According to Donald Trump, ďIf we donít enforce visa expiration dates, then we have an open border Ė itís as simple as that.Ē He addresses this problem in Point 8 of his 10-Point Plan to Put America First. He promises to ensure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports. He also has promised to make individuals who refuse to leave at the time their visa expires subject to criminal penalties.

    A fully implemented entry-exit tracking system would make it possible to compile lists of overstays, and this would be useful for determining whether VWP countries should be allowed to remain in the program. The system, however, would not tell ICE where the overstays are located; and if ICE cannot find them, it cannot arrest them and put them in removal proceedings. From an enforcement standpoint, it would be more productive to concentrate on making the Visa Waiver Program more secure. For suggestions, see my article, ďIs the Visa Waiver Program as secure as it is supposed to be?Ē Trumpís other idea is not any better. Aliens who enter without inspection have been subject to criminal penalties for many years now, and I have not heard anyone claim that it has been an effective deterrent to such entries.

    Hillary Clintonís immigration policies would make this situation even worse by completely removing the possibility that an alien who overstays would be deported. She has promised to focus enforcement resources on detaining and deporting individuals who pose a violent threat to public safety. At a Democratic Presidential Debate on March 9, 2016, she said that if she is elected, she will not deport any undocumented alien children and she will only deport undocumented adult aliens who have criminal records. This would attract aliens from the VWP countries who would like to live and work in the United States but are not eligible for Lawful Permanent Resident status. They could come here freely with an online computer registration certificate and a passport without being concerned about deportation for overstaying. The same would be true of the other groups of nonimmigrant visitors. They all would be free to remain in the United States with impunity when their authorized periods of admission end.

    This article was published originally on Huffington Post.

    About the Author
    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

    Updated 10-31-2016 at 05:55 PM by ImmigrationLawBlogs

  2. How Would Clinton's and Trump's Immigration Proposals Affect U.S. National Security? Roger Algase

    Update: October 31, 12:50 pm:

    The Hill reports that at an October 30 rally in Albuquerque, New Mexico, Donald Trump made the following statement about Hillary Clinton's immigration policies:

    "[Hillary Clinton] wants to let people just pour in...You could have 650 million people pour in...You triple the size of our country in one week."

    He didn't say what the source of this information was. Perhaps in one of Hillary Clinton's emails which even the FBI has overlooked and which is known only to Donald Trump?


    A Happy Halloween to all Immigration Daily Readers!

    My original post appears below.

    The following comments have been revised as of October 31 at 6:00 am:

    In the light of media speculation over an October 28 FBI letter concerning purported newly discovered emails which, according to the letter, might or might not be related to the FBI's previous investigation of alleged but unproven "national security" lapses involving Hillary Clinton, it is instructive to look at the immigration proposals of the two presidential candidates to see what effect they might have on America's national security.

    What does "national security" mean? It can mean many things, but one thing is axiomatic: America's national security begins with supporting and upholding our Constitution, as was emphasized by 50 Republican former national security officials who publicly expressed doubts about Donald Trump's adherence to or belief in that document in a recent statement. See New York Times, August 8:

    50 G.O.P. Officials warn Trump Would Put Nation's Security 'at Risk'

    I will begin by looking at the alleged national security implications of Hillary Clinton's immigration proposals, especially her support of legalization for certain unauthorized immigrants.

    Hillary Clinton's legalization proposals have come under criticism as allegedly favoring "amnesty" and "open borders", and inviting or enabling criminals, drug dealers and terrorists to come into into the United States.

    Typical of this rhetoric is the inflammatory language about the alleged dangers of Hillary Clinton's immigration proposals contained in the statement of the unabashedly pro-Trump Border Patrol Union. See:

    Trump himself has also accused Hillary Clinton of being a "co-founder and MVP of ISIS", and (at the October 19 presidential debate) of bringing untold numbers of Syrian refugees into the US who are "definitely ISIS-aligned".

    In his August 31 Phoenix, Arizona speech on immigration, Trump was also quoted by the Los Angeles Times as saying about Clinton that:

    "She doesn't know what she's doing except open borders and let everybody come in and destroy our country."

    Allegations such as those quoted above do not need or deserve any further comment.

    Regarding the possible effect of Trump's immigration proposals on America's national security, Trump claims that by engaging in mass deportation of mainly Latino and other nonwhite immigrants on a scale previously unheard of in US history, by building a Wall with Mexico and by banning most, if not all, Muslim immigrants on the basis of either religion (his original proposal), or national origin (his more recent version), he would protect America's national security against a lot of "bad hombres".

    For those who do not know Spanish, I will translate Trump's above words with the Latin term gens invisum, which Virgil uses in Book I of the Aeneid to mean a despised race or nationality.

    But even assuming that banning members of an entire nationality, race or religion (as was done, for example, under the Chinese exclusion laws, and by America's refusal to accept more than a small number of Jewish immigrants who were trying to flee Hitler in the 1930's - the parallel with today's attitudes toward Syrian refugees which I have discussed in previous comments), might keep out some bad people, it is also important to consider the national security issues raised by adopting immigration policies that would tend to undermine the values, or even in some cases, the specific provisions, of the US Constitution mentioned above.

    These are discussed in depth in a July 13 statement by ACLU Executive Director Anthony D Romero as reported in the Washington Post, see:

    ACLU Director: We will defend the constitution against a President Trump

    See also the companion ACLU report:


    Director Romero's statement about the potential danger that Trump's immigration-related proposals could pose to the Constitution, which is the undisputed foundation of America's national security, begins as follows:

    "Donald Trump's proposed policies, if caried out, would trigger a constitutional crisis. By our reckoning, a Trump administration would violate the First, Fourth, Fifth and Eighth amendments if it tried to implement his most controversial plans."

    Romero then turns specifically to immigration:

    "On immigration policy, there is simply no way a Trump administration could deport more than 11 million within two years of taking office. To achieve such a feat, Trump's deportation machine would have to arrest 15,000 people a day on immigration charges, seven days a week, 365 days a year."

    Romero then discusses the effect of such actions on constitutional rights:

    "The only way to accomplish this would be to shred the Fourth Amendment's protections against unreasonable searches and seizures. To carry out such an order, immigration agents would have to engage in suspicionless interrogations and arrests, unjustified traffic stops, warrentless searches of workplaces and homes, and door-to-door raids in immigrant neighborhoods. There can be little doubt that agents would relay on racial profiling and target people of Latino and Hispanic descent disproportionately, violating their right to equal protection of the law regardless of their race or national origin."

    He continues:

    "After rounding up undocumented immigrants...that would inevitably include U.S. citizens by mistake - the Trump administration would run face-first into the due process protections afforded every person inside the United States under the Fifth Amendment. It is inconceivable that 11 million undocumented immigrants could go before a judge in any reasonable amount of time...

    And if Trump keeps them locked up, as he has proposed, he'll deprive these people of their liberty - possibly for years, without due process of law. The Southwest border under Trump's proposals would become a police state."

    At this point, with all due respect to Mr. Romero and the ACLU, I would offer one point of disagreement with his last quoted sentence. There are unauthorized immigrants who have settled in every part of the United States.

    It is not only the Southwest border area that would become a police state in a Trump administration.

    (I am sorry - I am unable to find a working link for the above Washington Post story - please look it up on Google.)

    To be continued in Part 2 of this series.
    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 obtain work permits and green cards, based solely on their qualifications and without regard to their ethnic background or religious affiliation, in accordance with the race-neutral immigration system which America has had in place for the past half century, since 1965, and which may now be in danger as well.

    Roger believes that any attack on the constitutional rights of immigrants puts the freedom and national security of all Americans, including protection against authoritarian governmental power, at risk.

    His email address is

    Updated 10-31-2016 at 01:27 PM by ImmigrationLawBlogs


    by , 10-28-2016 at 08:28 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Maria Schneider

    In a recent decision, USCIS demanded FCCPT issue Type 1 Certificates ONLY to graduates of university programs whose diploma reads “Master’s Degree” and who have at least 202.1 credit hours. Any graduate of a program that is equivalent to a US Master’s Degree will no longer be eligible to enter the US and practice Physical Therapy. In 2017, applicants will need a DPT to obtain a Type 1 Certificate.

    Type 1 Certificate renewals will not be subject to this new ruling. Renewal applications do not examine education, but only licensure and verification of English proficiency. PTs with a current Type 1 can renew the Type 1 Certificate without being subject to the new standard. However, if the Type 1 expires, the PT will have to make a new application and will be subject to the new standard.

    Type 1 Certificates are valid for five years from the date of issue. MU strongly advises PTs to timely renew their Type 1 Certification so that they can continue to maintain their immigration status and their ability to work in the US.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.
  4. Stop the Deportation of the Workers in the Buffalo Restaurant Raids

    by , 10-27-2016 at 09:31 AM (Matthew Kolken on Deportation And Removal)

    On Tuesday, October 18, 2016, the Department of Homeland Security (DHS) raided several Mexican restaurants in and around the City of Buffalo, detaining at least 25 people connected to the restaurants. This petition requests that DHS exercise discretion in terminating their deportation proceedings.

    Sixteen of the twenty-five individuals arrested have not been charged with any crime. At least four of these workers have been placed in deportation proceedings despite appearing to be the victims Ė not the perpetrators Ė of their employerís criminal scheme. The criminal complaint states that these workers were working 16 hours per day, 6 days per week and being paid as little as $500. This amounts to far less than the minimum wage and no overtime pay.

    DHS claims that it raided these restaurants in part to protect workers from exploitation. In addition, DHS has recognized that effective ďenforcement of labor law is essential to ensure proper wages and working conditions for all covered workers regardless of immigration status.Ē Revised Memorandum of Understanding between the Dept. of Homeland Sec. and Labor Concerning Enforcement Activities at Worksites (Dec. 7, 2011).

    Consequently, we request that DHS exercise discretion and terminate the deportation proceedings against the workers who were not criminally charged in the raids. DHS has broad prosecutorial discretion to enforce immigration law, and to exercise discretion to terminate deportation proceedings. According to DHS guidance, this is an appropriate circumstance to do so - and as early in deportation proceedings as possible. DHS has ruled that termination of deportation proceedings is appropriate when individuals are victims of certain crimes, or are victims of civil rights and labor violations. Memorandum, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011). ICE has made clear that it is generally preferable to exercise such discretion as early in the case or proceeding as possible to preserve government resources.

    The arrest and deportation of these low-wage workers is both out of line with the clear enforcement priorities of DHS and a gross misuse of government resources. The individuals arrested during the raids are hardworking members of the community. Their families have been severely impacted by the raids; some of the children of those arrested have been placed into the custody of Child Protective Services. DHS should not target contributing members of the community and their families when they have committed no crimes and are, in fact, the victims of unfair labor practices. Justice can be carried out in this case by terminating these workers' deportation proceedings and allowing the Department of Labor to investigate the allegations of abusive labor practices. We ask that DHS take these steps immediately.

    Click here to sign the petition.
  5. Justice Department to announce significant law enforcement action

    by , 10-27-2016 at 07:49 AM (Matthew Kolken on Deportation And Removal)
    WASHINGTON Ė Assistant Attorney General Leslie R. Caldwell, U.S. Attorney Kenneth Magidson of the Southern District of Texas and other law enforcement officials will hold a press conference TODAY, THURSDAY, OCTOBER 27, 2016, at 11:00 a.m. EDT, to announce a significant enforcement action.

    Assistant Attorney General Leslie R. Caldwell of the Criminal Division
    Kenneth Magidson of the Southern District of Texas

    U.S. Immigration and Customs Enforcementís Homeland Security Investigations Executive Associate Director Peter T. Edge
    U.S. Treasury Inspector General for Tax Administration J. Russell George
    Department of Homeland Security Inspector General John Roth

    Press conference announcing a significant law enforcement action.

    11:00 a.m. EDT

    Department of Justice

    7th Floor Press Conference Room
    950 Pennsylvania Avenue, NW
    Washington, DC 20530



    NOTE: All media must present government-issued photo I.D. (such as driverís license) as well as valid media credentials.
    Media must enter the department at the visitorís entrance on Constitution Avenue NW between 9th and 10th Streets. Media may begin arriving at 10:00 a.m. EDT and cameras must be pre-set by 10:45 a.m. EDT. Press inquiries regarding logistics should be directed to the Office of Public Affairs at (202) 514-2007 or
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