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  1. We aren’t doing enough to help Syrian refugees, but how much more can we do? by Nolan Rappaport




    According to the United Nations High Commissioner for Refugees (UNHCR), 65.3 million people around the world have been forced from their homes as a result of persecution, conflict, generalized violence, or human rights violations. This includes approximately 21.3 million refugees, more than half of whom are under the age of 18. On average, 24 people worldwide were displaced from their homes every minute of every day during 2015 – nearly 34,000 people per day. The conflict in the Syrian Arab Republic accounted for more than half of the new refugees in 2015. There also were increases in refugees from Afghanistan, Burundi, and South Sudan.

    The United States is not doing as much as it can to deal with this crisis. Under INA Section 207, the maximum annual number of refugee admissions is set by the President, and although section 207 requires a congressional consultation, it does not require congressional approval.

    Sec. 207. [8 U.S.C. 1157] (a) (1) Except as provided in subsection (b), the number of refugees who may be admitted under this section in fiscal year 1980, 1981, or 1982, may not exceed .... (2) Except as provided in subsection (b), the number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest. ....


    (b) If the President determines, after appropriate consultation, that (1) an unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the admission to the United States of these refugees cannot be accomplished under subsection (a), the President may fix a number of refugees to be admitted to the United States during the succeeding period (not to exceed twelve months) in response to the emergency refugee situation and such admissions shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after the appropriate consultation provided under this subsection .

    For FY2016, the Obama Administration initially proposed a refugee ceiling of 75,000 and held consultations with Congress on that proposal. This included an allocation of 33,000 for the Near East/South Asia, the region that includes Syria. The Administration subsequently announced that it had decided to admit 10,000 Syrian refugees in FY2016, which set the FY2016 refugee ceiling at 85,000. When asked if that increase was sufficient, Hillary Clinton said, “Now, look, we’re facing the worst refugee crisis since the end of World War II. And I think the United States has to do more. And I would like to see us move from what is a good start with 10,000 to 65,000...” But even 65,000 would be a small percentage of the total number of Syrian refugees, so it is difficult to predict how high she would want to go. As President of the United States, she would have unlimited authority to increase the ceiling on Syrian refugees. It is not clear, however, that a large increase would be in our best interests or in the best interests of the refugees.

    Although we could provide refuge to the entire population of Syrian refugees, our refugee program is not limited to providing refugees with a safe haven. According to Anna Crosslin, who has been honored as a White House Champion of Change for World Refugees, providing refugees with a safe haven in America is just the first step. We also must help them to thrive in the United States, not just to survive here, and self-sufficiency is an essential part of this. According to the following chart, which was prepared by the Senate Subcommittee on Immigration, Border Security, and Citizenship, 91.4% of the Middle Eastern refugees accepted by the U.S. between 2008 and 2013, received food stamps and almost 68.3% received cash welfare.

    OFFICE OF REFUGEE RESETTLEMENT ANNUAL REPORT TO CONGRESS
    Another problem is that the information needed to perform reliable background investigations on Syrian refugees is not available. The United States does not have diplomatic relations with Syria. Consequently, we do not have access to on-the-ground intelligence in Syria. This has been confirmed by government officials who would know of such sources. For instance, an FBI Assistant Director has said, “The concern in Syria is that we don’t have the systems in place on the ground to collect the information... All of the data sets, the police, the intel services that normally you would go and seek that information [from], don’t exist.” A U.S. Citizenship and Immigration Services official has stated that the government does not have access to any database in Syria that can be used to check the backgrounds of incoming refugees against criminal and terrorist records. And National Counterterrorism Center Director Nicholas Rasmussen has explained that, “the intelligence picture we’ve had of this [Syrian] conflict zone isn’t what we’d like it to be... youcan only review [data] against what you have.”

    The Administration has responded to these concerns by establishing a more elaborate screening process which takes between 18 and 24 months to complete. Frankly, I do not know how additional time helps if the sources being checked do not have the needed information. Moreover, the Administration has cut the processing time back to three months to meet President Obama’s goal of bringing 10,000 Syrian refugees here this year.

    Published originally in Huffington Post.
    http://www.huffingtonpost.com/entry/580bf50ae4b0b1bd89fdb3c6?timestamp=1477337326836

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

    Updated 10-24-2016 at 04:49 PM by ImmigrationLawBlogs

  2. Letters of the Week: October 24 - October 30

    Please email your letters to editor@ilw.com or post them directly as a comment below.
  3. Jewish Refugees Were Excluded from US as "Bolsheviks" and "Radicals" in the 1930's. Syrians, DEJA VU? Roger Algase

    The following comment has been revised and expanded as of October 22, 11:24 am:

    In the light of concerns expressed by a number of lawmakers, officials and commentators over the possibility that Syrian refugees seeking admission to the US might be infiltrated to or sympathetic to ISIS terrorists, concerns which one of America's most respected federal appeals court judges, Richard Posner has quite recently dismissed as "nightmare speculation" (see Exodus Immigration v Pence, 7th Circuit, October 3, 2016), it is instructive to examine some of the objections which were made to the admission of Jewish refugees from Nazi Germany in the 1930's - objections which, in many cases, tragically, led to thousands of refugees who had been denied entry to America dying in Nazi concentration camps.

    One of the best known of these victims was Anne Frank, the author of the famous diary which stands as a worldwide symbol of resistance to every form of persecution and repression. As recently related in an article about Anne Frank's step sister, Eva Schloss, who survived the Holocaust and is still alive today, their father. Otto Frank, made vigorous and extensive efforts to obtain a US visa for himself and his family, only to be turned down, along with many thousands of other Jewish refugees, some of whom, as Eva Schloss suggests about Anne Frank herself, might otherwise still be alive today.

    http://www.huffingtonpost.co.uk/adam...b_9095980.html

    Why were so many Jewish refugees from Hitler denied visas to the United States, or, like the doomed passengers on the famous ship St. Louis, sent back to Hitler's gas chambers and death camps?

    One of the reasons was the unfounded, but widely suspected possibility of subversion. Case Western Reserve University Historian Peter Shulman describes this as follows in his FORTUNE November, 2015, article:

    How America's Response to Syrian and Jewish Refugees is Eerily Similar

    http://fortune.com/2015/11/21/syrian...ugees-america/

    "Behind these numbers lay a toxic fear of Jewish subversion. For decades, Jews had been linked to various strains of un-American threats: socialism, communism, and anarchism, of course, but also, paradoxically, a kind of hyper-capitalism. Many believed that the real threat to the United States lay not from abroad, but within. During Franklin Roosevelt's administration, Jews held so many influential positions that New Deal opponents spoke of the 'Jew Deal'."

    An exhaustive, detailed scholarly study of the mechanics of America's visa refusal and the forces behind the policy reasons that led to the denial of refuge in America to so many of Hitler's Jewish victims was published in CUNY Academic Works in 2011 by Barbara L. Bailin. See:

    The Influence of Anti-Semitism on United States Immigration Policy With respect to German Jews During 1933-1939

    I strongly recommend this outstanding research paper to any reader who has a serious interest in the subject of American immigration policy toward Jewish refugees in the period leading up to the Holocaust Nazi extermination, and who is not adverse to examining whether there is a comparison between that period and the situation facing Syrian refugees seeking to enter the United States today, as some highly qualified and reputable authorities are suggesting there is. See: New York Times:

    Comparing Jewish Refugees of the 1930's With Syrians Today

    http://nytimes.com/2015/11/20/us/com...ans-today.html

    and

    Anne Frank Today Is a Syrian Girl

    http://www.nytimes.com/2016/08/25/op...girl.html?_r=0


    My next post will discuss the section of Ms. Bailin's study dealing with the widespread claim, which many Americans and their representatives evidently believed, that:

    "German-Jewish Immigrants Were 'Infected With' Bolshevism and Held Radical Political Beliefs"


    As will be shown in my next, forthcoming, comment, Bailin's article, among its many other unique and valuable insights into this topic, also describes in detail the approximately two dozen questions that Jewish refugees had to answer on their US visa applications. It also describes the difficulties of obtaining required affidavits of support in order to overcome the ultra-restrictive interpretation of the Public Charge provision of the law that US officials who were ideologically opposed to Jewish immigration, and in some cases, overtly anti-semitic, used in order to deny the great majority of Jewish refugee visa applications.

    Her impressive study also describes documents which the refugees were often required to obtain from their Nazi persecutors in order to file their usually unsuccessful US visa applications.

    But, some people might ask, what does any of this have to do with Syrian refugees today? Nicholas Kristoff, himself the child of a WW2 refugee, answers as follows in the second of the two New York Times articles cited above, the one dealing specifically with Anne Frank. He writes:

    "Some readers are objecting: But Jews weren't a threat the way Syrian refugees are!
    (Original italics) In the 1930's and '40's, though, a world war was underway and Jews were widely seen as potential Communists or even Nazis. There were widespread fears that Germany would infiltrate the US with spies and saboteurs under the cover that they were Jewish refugees.

    ''When the safety of the country is imperiled, it seems fully justifiable to resolve any possible doubts in favor of the country, rather than in favor of the aliens,' the State Department instructed in 1941. The New York Times in 1938 quoted the granddaughter of President Ulysses S. Grant warning about 'so-called Jewish refugees and hinting that they were Communists 'coming to our country to join the ranks of those who hate our institutions and want to overthrow them.'...

    The Times published a front page article about the risks of Jews becoming Nazi spies, and the Washington Post published an editorial thanking the State Department for keeping out Nazis posing as refugees...

    A State Department official, Breckenridge Long, systematically tightened rules on Jewish refugees. In this climate, Otto Frank was unable to get visas for his family members, who were victims in part of American paranoia, demagogy and indifference."

    Is there really such a difference between American attitudes toward Jewish refugees then and Syrian refugees now, especially since there have been few, if any, major crimes by the hundreds of thousands of refugees America has taken in for the past 40 years? See:

    http://www.theatlantic.com/politics/...rogram/416475/

    Many of the arguments we are hearing today against admitting Syrian refugees are, in the above words of historian Peter Shulman, "eerily similar" to those used in the 1930's against admitting Jewish ones.

    Yes, the Syrian government has been on America's list of state sponsors of terrorism for many years, since long before there was such a thing as ISIS, which the current government is not connected with and which is fighting against that government.

    Does this mean that Syrian refugees who are fleeing from the current brutal, Russian-backed Syrian government and/or its enemy, ISIS, are likely to be "definitely ISIS-aligned" as one of the two candidates warned at the October 19 presidential debate?

    Was Nazi Germany a "state sponsor" of peace and harmony among nations in the 1930's and 1940's?

    We also hear arguments, such as those coming from Republican members of the House Committee on Homeland Security, that our screening process for Syrian refugees is ineffective, because we allegedly cannot obtain information about them from inside Syria itself.

    Even if this were true, despite that fact that military dictatorships often have very extensive records about their citizens, just as the Gestapo was never short of information about the Jews; and American officials must surely have access to Syrian government databases (if not, there are no doubt plenty of alleged Russian DNC hackers we should be able to hire to do that job for us), does this mean that our intensive process of personal interviews and biometric screening taking up to two years is worthless, that it produces no reliable information about the refugees (most of whom are women and children) at all?

    The idea that the Syrian war criminals who have been bombing Aleppo into extinction (as the Nazis tried to do with Leningrad) and who have been accused of using chemical weapons and barrel bombs against their own people do not keep records or databases on their citizens would be laughable if the actions of the murderers and torturers in that government were not so horrible.

    The US State Department says the following about the Syrian government's ability to obtain information and keep records about individuals in that country:

    "Security personnel frequently place foreign visitors under surveillance. Hotel rooms, internet connections, and fax machines may be monitored. Taking photographs of anything that could be perceived as being of military or security interest may result in questioning, detention or confiscation of the images. Additionally, U.S. citizens should be aware that conversations on the topics of politics, religion and other social issues could lead to arrest."

    https://travel.state.gov/content/pas...try/syria.html

    Is information about refugees from inside Syria really entirely unavailable? True, Syrian government officials may not be all that cooperative about sharing their information with US government refugee screening agencies, so we might have to rely on Wikileaks instead.

    But how cooperative would the Gestapo have been about sharing their information about Jewish refugees with US authorities in the 1930's, if America had been willing to accept them?

    Are the above and other similar arguments for refusing to accept Syrian refugees anything more than the "nightmare speculation" that Judge Posner refers to above?

    To the contrary, these arguments show signs of being a replay of the xenophobia and paranoia of the 1930's that denied refuge to many thousands, if not hundreds of thousands, of Jews seeking refuge from Hitler's concentration and death camps, just as Anne Frank's family tried to do, only with Islamophobia instead of anti-semitism as the main motivating force today.

    When it comes to attitudes toward Syrian refugees, there is good reason to believe that what we are seeing is DEJA VU from the 1930's all over again.
    ___________________________
    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 visas and green cards.

    Roger's practice is focused on work authorization through specialty occupation (H-1B) or extraordinary ability (O-1) employment; and on J-1 trainee visas as well as green cards through Labor Certification (PERM) and opposite sex or same sex marriage. His email address is algaselex@gmail.com

    Updated 10-22-2016 at 04:46 PM by ImmigrationLawBlogs

  4. DOES A RELEASE AND SETTLEMENT PREVENT AN H-1B WORKER FROM BACK WAGES ?

    by , 10-20-2016 at 07:38 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    When an H-1B employee separates employment from an H-1B employer, the H-1B employer often seeks a Settlement and Release. The employer’s goal is to put the matter to rest. It does not want the H1-B employer to file a private lawsuit seeking back wages or to file a Complaint with the Department of Labor.

    H-1B employers also often are seeking to collect on liquidated damage provisions, which allow the employer to recoup the costs associated with the separation of the employment relationship. Costs such as reputational loss, replacement costs, and travel costs are usually recoverable under the H-1B rules

    H-1B employer and employees often seek a “global settlement,” which settles all outstanding claims between the parties.

    A 2015 Department of Labor decision, Gupta v. Headstrong, 2014-LCA-00008, confirms the appropriateness and enforceability of these settlement agreements. In Gupta, the Administrative Law Judge held that the Settlement and Release extinguish all of the h-1B employee’s claims to back wages. Notably in Gupta, the two parties were the employer and the employee. The DOL was not a party to that lawsuit.

    It remains an open question whether an H-1B employer can legally prevent an employee from filing a Complaint with DOL following a proper Settlement and Release. The DOL does not want to see any hindrance on an employee’s ability to file a Complaint to their agency.

    Nevertheless, an H-1B employee who fairly settles a back wage claim and who subsequently or concurrently files a complaint with the DOL solely on a back wage claim (and who continues to assert to the Department that the back wage claim remains unsettled following a settlement on those same claims) may be committing fraud before a government agency.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us onFacebook and follow us on Twitter.
  5. Company Agrees to Pay $195,000 to Settle Immigration Discrimination Claim

    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, has reached a settlement with American Cleaning Company (ACC), a maintenance and janitorial company based in Brighton, Massachusetts, resolving claims that the company discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).

    The OSC’s investigation found that from January 15, 2009 until September 30, 2015, ACC routinely required workers, who were not U.S. citizens, to produce specific documents for the I-9 form and E-Verify processes, even though U.S. citizens were permitted to choose whatever valid documentation they wished to prove their work authorization. Under the INA, all workers, including non-U.S. citizens, must be allowed to choose whichever valid documentation they would like to present to prove their work authorization. It is unlawful for an employer to limit employees’ choice of documentation because of their citizenship or immigration status.

    Under the terms of the settlement agreement, ACC will pay $195,000 in civil penalties, train its human resources staff on the anti-discrimination provision of the INA through OSC webinars, and review and revise its employment policies and procedures related to nondiscrimination to conform to INA’s anti-discrimination requirements. Furthermore, ACC agreed to eliminate or revise the section of its website entitled “Immigration Compliance” to be consistent with E-Verify requirements, for a three-year period submit any changes in employment policies concerning nondiscrimination on the basis of citizenship, immigration status, or national origin to the OSC for their review, and submit written reports to the OSC, if requested to do so, over a three-year reporting period.

    Updated 10-19-2016 at 09:28 AM by BBuchanan

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