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by Chris Musillo
Musillo Unkenholt has received many emails and phone calls from people who have questions about the August 2016 Visa Bulletin. We have put together this FAQ for all readers of the MU Law Blog.
Q. Why do the August and September Visa Bulletins always have unusual progressions and retrogressions?
A. These two Visa Bulletins are the final two Visa Bulletins of the US Fiscal Year, which runs from October 1 – September 30. The USDOS must make sure that it uses all 140,000 employment based immigrant visas. If it does not use all 140,000 immigrant visas, then the visas do not roll over into the next fiscal year. On the other hand, the USDOS cannot use more than 140,000 immigrant visas or else they violate federal law. Essentially, the USDOS is trying to
Q. The Philippine and All Other EB2 retrogressed for the first time in many years. Does this mean that the Philippine EB2 and All Other dates will permanently be retrogressed?
A. No. This is a temporary retrogression that will only last until October 1, 2016. The DOS expects that the October Visa Bulletin will be Current for both Philippines and All Other EB-2.
Q. The India EB-2 seems stuck in 2004. For much of the year it was in 2008. When will it return to 2008?
A. Our sense is that October 2016 Visa Bulletin will show a much more favorable Indian EB-2 date, probably back to 2008.
Q. The Philippine EB-3 is unaffected by the August retrogression. Where do you think the Philippine EB-3 date is headed?
A. Our read is that the September 2016 Visa Bulletin may have an unusual date. Therefore you should not read anything into the September 2016 Visa Bulletin.
However, Fiscal Year 2017 looks very positive for Philippine EB-3. Our educated guess is that the Philippine EB-3 date will move at approximately a three-to-one ratio. In other words, the EB-3 date should move, on average, three months each Visa Bulletin.
Q. At what rate will the All Other EB-3 move in 2017?
A. The All Other EB-3 should remain Current or almost Current for the foreseeable future.
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.
Update, July 15, 1:00 pm:
It is now official that Trump has picked Indiana Governor Mike Pence, who evidently needs to brush up on his Charles Darwin in order to learn something about evolution, but who courageously opposed Trump's original plan to ban all Muslims in the entire world (including US citizens) from American on the basis of religion, to be his Vice Presdential running mate.
By rejecting Newt Gingrich, who announced on July 14 that he would like to deport Americans from their own country if they hold religious beliefs that Newt doesn't agree with, Trump enabled America to dodge a proto-fascist bullet. which would have been reminiscent of Germany's deporting Jewish citizens because of their religion under Adolf Hitler.
Hopefully, by picking reported creationist Mike Pence to be his running mate, Trump may be showing that he has evolved somewhat from his original anti-Muslim proposal, which Pence rightly called "offensive and unconstitutional" last December.
My initial post appears below:
The Hill reports on July 14 that Donald Trump has picked as his VP running mate Indiana Governor Mike Pence, who tweeted last December that Trump's proposed ban on Muslim immigration was "offensive and unconstitutional".
At least there will be one person on the Trump ticket who believes that upholding the First Amendment's guarantee of free exercise of religion is more important than pandering to bigotry against Muslim and other minority immigrants.
Rabid immigrant-hating columnist Ann Coulter, according to the Huffington Post, has also blasted Pence for allegedly being too "soft" on immigration, including having supported allowing legal foreign workers to come to the US. She says that picking Pence would be Trump's first "mistake".
This is another indication that picking Pence might inject a badly-needed note of sanity into Trump's campaign, as far as immigration is concerned. How long it would last is a different question.
Attorney at Law
Updated 07-15-2016 at 02:39 PM by ImmigrationLawBlogs
By: Bruce Buchanan, Sebelist Buchanan Law PLLC
Recently, the Office of Chief Administrative Hearing Officer (OCAHO) found Muniz Concrete & Contracting, Inc. (MCCI), based out of Texas, to be in violation of the Immigration Reform and Control Act Section 1324a for 32 violations. Due to these violations, OCAHO determined the appropriate penalty was $16,275 although ICE sought a penalty of $19,989.
The case started with a Notice of Inspection, served on September 27, 2013 and quickly followed with a Notice of Suspect Documents (NSD), Notice of Discrepancies, and a Notice of Technical or Procedural Failures. The Notice of Discrepancies listed 19 employees where ICE discovered a discrepancy related to their identity and employment authorization. Concerning the NSD, ICE found 45 employees had not proven valid work authorization and the company was told to give the employees an opportunity to present “new and better” work authorizations
and without such, they should be terminated because they did not have valid work authorization. MCCI terminated a number of employees after receipt of the NSD. ICE also found 84 technical errors for which MCCI was given 10 days to correct without facing a penalty.
Finally, ICE issued a NIF alleging three counts - knowingly employing two unauthorized employees, failure to prepare 10 Form I-9s, and failure to properly ensure completion or the completion of 20 Form I-9s.
MCCI argued that under OCAHO case law, the fine amount was too high. ICE responded it simply utilized the fine matrix. Since there were 32 substantive violations out of 89 Form I-9s, it determined MCCI should be penalized $605 per violation because the percentage was between 30 and 39%. ICE enhanced the base penalty by 5% for the seriousness of the violations and another 5% for the hiring of six unauthorized workers. Furthermore, ICE charged the minimum of $375 each for knowingly employing the unauthorized workers.
ICE asserted MCCI had constructive knowledge of the unauthorized status of two employees because their work authorization cards had expired. ICE failed to provide any analysis of why it set these penalties at the lowest level. OCAHO found “knowingly” continuing to employ an unauthorized worker was more serious than paperwork violations; thus, it increased the penalty to $800 each (still 25% of the possible $3200 penalty).
On the ten violations for failure to prepare an I-9 form or failure to timely prepare one, there was little dispute of the facts. Same applies for the 20 alleged substantive paperwork violations – no employee signature; no A numbers for lawful permanent residents, no box checked as to status; or only a list C document recorded in Section 2.
There were two faults within ICE’s analysis of the penalties. One, it refused to consider a 5% mitigating factor even though MCCI was clearly a small employer with about 50 employees. Two, it did not provide any definitive evidence of the unauthorized status of some employees. Instead, it relied on the fact that the individuals were listed on the NSD. But, as we all should know by now, being listed on a NSD is not proof of unauthorized status.
Based upon the overall facts of the case, ICAHO decided to reduce penalties for Counts II and III. Though, as previously stated, it increased the penalty for the two Count I violations. OCAHO ordered MCCI to pay a fine of $16,275, a reduction of about 13%.
The Black Lives Matter movement has helped bring attention to the problem of police violence in the African-American community. To me, the problem is a symptom of broader issues in our society: Institutionalized racism that has reduced educational and economic opportunities for African Americans, the American penchant for punishment over prevention, police culture and the militarization of many police forces. Regardless of the root causes, many individuals are fearful that they—or their family members—will be harmed or killed by law-enforcement officers because of their race. As an asylum attorney, I've received inquiries from several such people. They want to know whether they are eligible for asylum under international law.
Who knew that the road to safety would be this long?
To qualify for asylum, an applicant must demonstrate that she meets the definition of a “refugee.” According to the 1951 UN Convention Relating to the Status of Refugees, a “refugee” is “any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”
The first thing to notice is that in order to qualify for asylum, an applicant must be “outside the country of his nationality.” In other words, you cannot be a refugee, as that term is defined under international law, unless you leave the United States.
Assuming you reach another country and apply for asylum, you will need to show that you were persecuted in the past or that you have a well-founded fear of future persecution. Although the term has never been clearly defined, “persecution” is generally considered “an extreme concept, marked by the infliction of suffering or harm… in a way regarded as offensive.” People who have been harmed by the police (and survived) may be able to demonstrate past persecution, depending on the severity of the harm. Imprisonment, by itself, is probably not a severe enough harm to constitute “persecution” (though perhaps solitary confinement is). Physical violence may be enough, depending on what happened. Physical violence that has resulted in severe injuries, or sexual violence, probably does rise to the level of “persecution.”
If you have been persecuted in the past, and if the persecutor was motivated to harm you because of your race (or other protected ground, like political opinion), then you would likely be considered a refugee under international law.
For people who have not been harmed in the past, but who fear future harm, the situation is more complex—and the likelihood of obtaining asylum is probably lower. One path to asylum involves a “pattern and practice” of persecution against a specific group. Where the entire group--for example, Tutsis in the 1994 Rwanda genocide--faces persecution and the asylum applicant demonstrates that she is a member of that group, she can receive asylum. To demonstrate a “pattern and practice” (at least under U.S. law), the applicant would have to show that the persecution is systematic, pervasive or organized. I have not seen evidence that the persecution of Blacks in America is organized. However, one could argue that it is systematic (in a "now we see the violence inherent in the system" sort-of way) and/or pervasive (i.e., widespread). Both these points strike me as relatively weak given the high standard necessary to prove "pattern and practice," but I suppose different fact-finders might reach different conclusions depending on the evidence presented (how often does violence need to occur for it to be considered "pervasive," for example?). One Canadian court that examined the matter found African Americans do not face a pattern and practice of persecution in the U.S. and denied asylum to a Black man who feared persecution by the police (the court found that he had not suffered "past persecution," and this made his case more difficult).
In the absence of a "pattern and practice," an African-American asylum seeker could still obtain asylum if he demonstrates a reasonable possibility of persecution based on his race (or other protected ground). In interpreting international law, U.S. courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average African American would be able to show that he faces a 10% chance of persecution by the police. Indeed, in 2015, there were about 46.3 million African Americans in the United States. During that same year, 102 unarmed African Americans were killed by police. This is obviously far less than 10% (it's about 0.0002%). Of course, if we focus on young men, and include other harm (aside from killing), the likelihood of persecution is higher, but I still suspect that it would be difficult to show a 10% chance of harm.
Although the average African American would probably not meet the standard for asylum, some African Americans--those who have received specific threats and, of course, those who were previously persecuted--might be able to prove that they face a likelihood of harm and thus meet the definition of "refugee."
Even for people who are deemed “refugees,” this may not be the end of the story. You still may not qualify for asylum in a new country if that country believes you can relocate to a safe place within the United States, or if the persecutor (here, the police officer) was a rogue actor and the U.S. government is able and willing to protect you. Of course, you could also be denied asylum for a host of other reasons, depending on the specific laws of the country where you are seeking refuge.
In the end, it seems that most African Americans would not qualify for asylum, but some might: Those who have been persecuted in the past, and those who have been threatened with harm. If you are actually thinking about seeking asylum, it would be a good idea to talk with a lawyer in the new country before making any plans. While I doubt that many African Americans will actually leave the U.S. to seek asylum abroad, the fact that some people are considering this option speaks to the sad state of affairs in our country.
Originally posted on the Asylumist: www.Asylumist.com.
Update, July 15, 6:52 am:
Newt Gingrich, who may possibly still be under consideration for VP by Donald Trump as of this writing, has now Trumped Trump in proposing to bring anti-Islamic fascism to the United States.
Trump, as everyone knows, proposed last December to ban all Muslims around the entire world from entering the United States, including American citizens, which would have been in direct violation of the First Amendment to the US Constitution.
While Trump has now apparently walked back this proposal by stating that he would limit the ban to citizens of countries with a history of terrorism (i.e. mainly Muslim countries), Gingrich now has gone beyond Trump's original proposal in reaction to the July 14 terrorist attack in Nice, which has killed over 70 people and reportedly injured hundreds of others.
Gingrich wants to test everyone in America of Muslim descent or background to see if that person "supports" Sharia law. All such persons, evidently including American citizens, would be deported.
The fact that expelling American citizens of any ethnicity or religious affiliation from their own country purely because of their beliefs is the essence of fascism, does not seem to be a problem for Newt.
It will be interesting to see whether Trump, when he announces his VP choice later today as expected, selects Mike Pence, who has been critical of Trump's original Muslim ban proposal, or Newt Gingrich, who wants to go beyond it by exiling American citizens from their own country because of their political or religious beliefs.
It looks as if the Muslim students described in my original post below may have been right.
My original post follows:
Anyone who thinks that Donald Trump is only concerned about "cracking down" on illegal immigration and poses no threat to minority legal immigrants or US citizens should think again.
This is according to a July 12 Huffington Post article describing the fears of Muslim students in the Philadelphia area that they will be deported or incarcerated if Trump becomes president solely because of their religion.
The Huffpost story also contains a link to a Southern Poverty Law Center report showing that two thirds of teachers surveyed generally, not just in Philadelphia, reported that their Muslim students were afraid of being sent out of the United States or rounded up and incarcerated under a Trump administration.
One Philadelphia Muslim student voiced her fears that Muslims in the United States would be sent to Japanese internment-style camps;
"They could keep us right here and put us all in the same place and make us suffer. I see that as a lot more plausible than shipping us out into the ocean. Round up all the Muslims, start with where...I don't like to think about that."
Another Muslim student mentioned in the same story said:
"I fear he is going to send us back to Muslim countries outside the U.S."
To be sure, Trump has never expressly advocated rounding up Muslim US citizens or legal immigrants and sending them to internment camps or expelling them from the United States.
But by singling out Muslims in general, inside and outside the U.S. as potential terrorists and dangers to America because of their religion, he has given the 3 million Muslims who are now in the US, one percent of our total population according a Pew Research study also cited in the above article, reason not only to worry about an increase in discrimination and hate crimes, but also grounds for fearing that much worse could be in store for them in a Donald Trump presidency.
Some Americans may wonder why there should be so much fuss about what would happen to "only" one percent of America's population. Why should the great majority of us who are not Muslims worry about what might happen to the comparatively small percentage of America's immigrants and US citizens who belong to that religion?
This is the same kind of thinking that many Germans had about Nazi threats and attacks against the Jews beginning in the 1920's. As long as non-Jewish Germans were not being targeted, most people didn't care what happened to the Jews.
That is, until all of the German people lost their freedom in the 1930's. By then it was too late to speak out or stand up against dictatorship and persecution.
Could it be happening here?
Attorney at Law
Updated 07-15-2016 at 05:53 AM by ImmigrationLawBlogs