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  1. New Initiatives Intended to Make Immigration Easier for Entrepreneurs

    by , 08-02-2011 at 09:02 PM (Greg Siskind on Immigration Law and Policy)
    The Obama Administration released new FAQs today on H-1B visas and EB-2 green cards that are intended to make it easier for entrepreneurs to qualify in the two visa categories. That's good news, though reading the documents makes me REALLY skeptical  change will come. For example, on the H-1B memo released today, USCIS is backtracking from the blanket statement in the 2010 Neufeld memo which basically reversed decades of USCIS practice of allowing self-employed professionals to take advantage of the H-1B category if they could demonstrate they would have enough funds to be paid the prevailing wage. I work on a lot of doctor cases and this was a common way for doctors to take on small town medical practices, particularly in states that outlaw hospitals directly employing doctors. No more since the 2010 memo. So when I heard about today's memo, I was hoping for a real reversal. But USCIS is still hung up on a notion of "control" that is precisely opposite of entrepreneurship. Entrepreneurs want to be the boss, not the bossed, and the new H-1B memo only solidifies USCIS' wrong-headed thinking.
    And let's face it - USCIS backed itself in to a corner when it decided to target Indian staffing companies last year. They decided to nail them by focusing on the concept of "control" and saying that placement of professionals at third party cites wouldn't qualify for H-1B employment in many instances because the sponsoring employer wasn't actually controlling the day to day employment. Unfortunately, by taking a rigid view on "control" of employment, entrepreneurs are basically out of luck when it comes to using the H-1B.The new memo merely says USCIS can look at the totality of the circumstances, but I don't see any change without an outright revocation of the Neufeld memo or some new interpretation on "control" that clearly exempts self-employment.
    The EB-2 memo really says nothing new. It merely restates long standing law that entrepreneurs are eligible for national interest waivers. There is helpful language, however, that states that
    The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers.   The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.
    But EB-2 is meaningless for Indians and Chinese in long backlog categories. And good luck getting USCIS examiners to view the memo in the spirit it is offered. Expect to be challenged that the job creation is not "national" enough or expansive enough. Those who practice in the EB-1 area know that examiners operating under a culture of no can come up with a million reasons to deny a case when there are no bright line tests limiting their discretion.
    We're also seeing some additional reforms to the EB-5 visa category which are encouraging, though some fundamental problems with the program that make it unattractive will need to be addressed legislatively. For starters, if someone invests their life savings in a US business, gets a temporary green card and then the business is unable to generate or sustain the jobs after two years, the green card can be revoked. And loans to US businesses are out as are investments where any kind of guaranteed return on investment is provided. A lot of other countries have more attractive programs.
    Finally, I would have liked to have seen the White House also take on the serious internal bias against small business petitioners that we see at USCIS. Most entrepreneurs start small business and as long as USCIS officials think small businesses are presumed fraudulent, this is all lip service.
  2. The American Immigration Council Applauds the Department of Justice for Responding to Alabama’s Punitive Anti-Immigrant Law

    by , 08-02-2011 at 10:18 AM (Matthew Kolken on Deportation And Removal)
    The following is a press release issued by the American Immigration Council relating to the suit filed by the Department of Justice challenging Alabama's new immigration law.
    For Immediate Release
    August 2, 2011

    Washington, D.C. - On Monday, the Department of Justice filed suit against the state of Alabama to block the implementation of HB 56, which is set to take effect September 1. HB 56 is similar to but far more punitive than Arizona's SB 1070. The law includes provisions that require local school districts to check and report on the immigration status of all children enrolling in public schools. It also transforms local police into federal immigration officers, and creates criminal consequences for anyone who provides housing, transportation, or employment to undocumented immigrants.

    Alabama is the second state, after Arizona, that the Department of Justice has sued for overstepping its authority to regulate immigration. Lawsuits have also been filed in Utah, Indiana and Georgia by immigrant rights and civil liberties groups. So far, the courts have prevented each state from implementing the central provisions of their anti-immigrant laws. In truth, all these laws have done is inflict long-lasting damage to these states' reputations, businesses, and budgets.

    The Department of Justice has taken the right step to not only preserve the federal government's exclusive authority to regulate immigration, but to take a stand against laws that will result in profiling, discrimination and the violation of fundamental constitutional rights. States must not continue down this dangerous and punitive path. The recent debate surrounding the enactment of HB 56 was reminiscent of a darker time in our nation's history--one that we must not revisit. Furthermore, as noted by U.S. Immigration and Customs Enforcement, HB 56, like Arizona's SB 1070, will overload the federal government with referrals and divert ICE's scarce resources from the agency's highest priorities--national security, public safety, and border control.  Alabama's draconian law will also discourage immigrant parents from enrolling their children in public schools, according to a high-level official from the U.S. Department of Education. 

    "Other states considering copycat laws should be forewarned," said Benjamin Johnson, Executive Director of the American Immigration Council. "The federal government and civil society will not stand by while states create a hostile environment for immigrants and their communities throughout our nation. The impact of these laws will not be endured by undocumented immigrants alone. They are a threat to the civil rights and civil liberties of all residents of Alabama. Abandoning the values and principles on which this country was built is not the answer to our ongoing immigration problems. We must demand that our federal government end its filibuster on immigration reform efforts and get to work fixing our immigration system."
    ###

    For more information contact Seth Hoy at 202-507-7509 or shoy@immcouncil.org

     
  3. Immigration Thought Leadership - Needed Now More Than Ever

    by , 08-02-2011 at 08:07 AM (Angelo Paparelli on Dysfunctional Government)




    Writing for The Hill, pundit Kathy Kemper just published a thoughtful piece on "Debt and immigration."  In it she contrasts American policy-makers' obsession with the financial Sword of Damocles, set to behead us on August 2, with Norway's all-consuming focus on the aftermath of a xenophobic madman's gutless acts of murder and mayhem. 
    Americans, it seems, can think only of financial insecurity (apparently because Casey Anthony remains in hiding), while Norwegians grapple with societal insecurities and aspirations, and ultimately, the proper response to racial and religious hatred.
    Kemper reasons that security is about more than fiscal rectitude and the age-old debate over spending on guns versus butter:   
    In reality, defending the homeland requires a continuous flow of the world's best: individuals who understand the changing constellation of threats to our nation; discern which among those will grow more important in the years to come; and design "hard" systems and "soft" policies to respond to them dynamically.
    There are at least two other reasons why immigration is so crucial:
    (1) ?It keeps our nation young. Indeed, if -- and it's a big if -- we're able to sustain our immigrant inflow, we should be able to avoid the demographic challenges that beset the EU and ?Japan (and which, within another decade or two, will begin to take a toll on China).
    (2) America, above all, is an idea, perhaps the most important component of which is openness: openness to people, to ideas, to risk taking. An America that closes itself off will guarantee its decline. Harvard University's Joe Nye has argued that "the greatest danger to America is not debt, political paralysis or China; it is parochialism, turning away from the openness that is the source of its strength and resting on its laurels."
    If, as Kemper rightly posits, America is an idea, then to keep our mental synapses firing, we as a nation need many more immigration thought leaders. 
    In the immigration sphere, thought leaders are not likely or often found in the halls of Congress.  Rather, they are all around us -- in our schools, coffee shops, law offices, think tanks and foundations.  They are Tweeters, bloggers, artists, activists, journalists and especially, DREAMers.  While they can be sighted in many places across the country, their numbers are insufficient to turn the tide of anti-immigrant hate speech, jingoism and Fortress-America messaging that passes as the "fair and balanced" offering of competing ideas. 
    Immigration thought leadership is about speaking truth to power, about setting aside any pretense of faux objectivity, as Paul Krugman opined today in "The Centrist Cop-Out":
    Some of us have long complained about the cult of "balance," the insistence on portraying both parties as equally wrong and equally at fault on any issue, never mind the facts.
    I've thought quite a bit about the scarcity of immigration thought leadership (especially when my muse escapes me on any given Saturday as I scrounge for a fresh topic to post on dysfunctionality in our visa and entry policies).  Recently, Martindale-Connected, the social media site for lawyers, offered me the chance to ruminate on thought leadership via podcast (available here) and in writing here: "5 Steps to Go From Thoughtful Lawyer to Thought Leader on Social Media Sites (and Other Places)."
    The five steps I described apply to any form of thought leadership, but especially to immigration and to budding thought leaders with no "Esq." after their names:

    Thought Leadership Requires a Provocative and Enduring Topic. Blogging and article writing often serve as the centerpiece of many a thought-leadership strategy. More than a few lawyers who blog or write law-related articles, however, make the mistake of using the medium as merely a way of reporting on key cases and new statutes in order to demonstrate expertise in the subject. Thought leadership demands more. Thought leaders do not merely report new legal developments; they shed light on fundamental problems, offer critical analysis, discuss practical implications in the real world, and suggest solutions. Thought leaders are never boring. They take adverse possession from other lawyers over a particular area of law and own it by developing a voice and overcoming the fear of being too controversial. They select a topic that interests them (so that their passion remains on display), and a subject with legs that will generate eyeballs. One way to do this is by focusing on the actions of the government, federal or state, executive, legislative or judicial. As my blog www.NationOfImmigrators.com, illustrates, government officials are always doing something controversial that upsets someone. A controversial topic is one that readers naturally want to understand. The thought leader's writings help them, over time, to understand the controversy and make up their own minds. Thought leaders are not afraid of controversy, but they always remember that they need not become the controversy.
    Thought Leaders Are Remarkable and Grow a Tribe. Seth Godin is a maven of thought leadership. Among many of Seth's suggestions, two stand out: A) Be remarkable; and B) Build a tribe. Thought leaders generate conversations. They are worthy of discussion among existing and prospective clients, colleagues, government officials and adversaries. They are remarkable. They are never boring or lackluster, and are not afraid of tooting their individual horns tastefully, for unless they do, they know that there might not be any music. Given these characteristics, thought leaders necessarily draw people to them. They form a tribe around their chosen topic, a community of interest, not necessarily all of like mind, that wants to know and learn more. Ask yourself, Attorney: Is your writing dull and soporific? Do you reflect your passion in your posts? Do you offer a point of view? Do you go outside your comfort zone in expressing yourself in visible ways? Are you operating from a Rolodex of disconnected people or have you built a network of thoughtful and interested members who see you as a thought leader? Do you share with your tribe the interesting thoughts of others? Do you connect tribe members with each other?
    Thought Leaders Understand and Use Leverage. Thought leaders do not write single articles. They mount visibility campaigns around each and every article they author. Thought leaders know (no matter what a publisher says) to keep the copyright on their writings so that they can be repurposed in other publications, perhaps with an updated or tailored introduction to suit the new audience, or perhaps not. They Tweet and post status updates in Facebook and LinkedIn about every one of their articles, speeches, case victories (with client consent) or significant activities, offering link-backs to their analytical writings and their online profiles. They also regularly post links to new government announcements, new cases and statutes and the writings of others, usually also with a link to their own analysis of the latest development and its impact, and suggested strategies. They join and actively participate in Martindale Connected. They post articles on Google Knol and search for article directories to find additional opportunities and venues through which to post.
    Thought Leaders are Disciplined and Reliable. No flash in the pan, thought leaders understand that consistent messaging, over time, with predictable regularity, is the only way to gain visibility and mindshare. Rain or shine, they write, post, update, Tweet and repeat the cycle, over and over. Too many lawyers think that one article every six months is enough to produce results. It is not. Thought leaders recognize that building a tribe means being responsible to your community. It is less a job than a calling. Nothing is worse for one's reputation as a thought leader than a blog with a stale posting, months old, or the occasional posting, months apart.
    Thought Leaders are Ethical and Responsible. Publicity without propriety does not a thought leader make. Thought leaders respect the rules of professional responsibility, refrain from misrepresenting the truth or engaging in personal attacks, label their writings as "attorney advertising" where required by state ethics rules, and do not take public positions that conflict with the interests of their clients. Thought leaders are not empty suits. They provide excellent client service and zealous advocacy, for these attributes are not only inherently important but also create the environment from which new insights and thoughts with which to exhibit leadership sprout.

    If we Americans are to maintain our unhaughty claim of Exceptionalism, that is, our heritage as a perpetually vibrant and constantly replenished nation of immigrants, then we must produce many more thought leaders who can win what Kemper describes as the "debate over immigration [which] gets to who we are and, more importantly, who we will be." The growing ranks of immigration thought leaders, however, must not, as Krugman warns, make "nebulous calls for centrism, [the] big cop-out. . . that only encourages more bad behavior."  Rather, in my view, they must call out extremism wherever it surfaces and help direct our people to embrace the nation's true saving grace -- more enlightened and just immigration policies.
  4. HOUSE PASSES H-1C REAUTHORIZATION

    by , 08-02-2011 at 07:30 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo
    The House of Representatives just has passed a reauthorization of the H-1C visa program. HR 1933 was first introduced by Rep. Lamar Smith (R-TX) this past spring. Rep. Smith quietly has been securing votes since the bill's introduction. The H-1C expired in December 2009.
     


    HR 1933 looks similar to past iterations of the H-1C visa. Notably it appears to only apply to 14 hospitals in the U.S., many of which are in Rep. Smith's home state of Texas. Only 300 RN positions per year are authorized under the H-1C. The H-1C also includes wage protections for U.S. workers.


    Because the H-1C is applicable to only 14 hospitals, the visa has never been used widely and is not expected to materially impact the processing of any immigrant (EB-3) visas. That having been said this is good news for those nurses whose visas expired under the previous H-1C.

    Next, the bill must be introduced in the Senate.   Once introduced the Senate must pass the bill.  Pres. Obama is expected to sign the bill if it can garner enough votes in the Senate.

     
    Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.
  5. It’s time to HALT Representative Lamar Smith

    Danielle Beach-Oswald is the current President and Managing Partner of Beach-Oswald Immigration Law Associates in Washington, DC. Ms. Beach utilizes her 19 years of experience in immigration law to help individuals immigrate to the United States for humanitarian reasons. Born in Brussels, Belgium, Ms. Beach has lived in England, Belgium, Italy and Ivory Coast and has traveled extensively to many countries. Ms. Beach advocates for clients from around the world who seek freedom from torture in their country, or who are victims of domestic violence and trafficking. She has also represented her clients at U.S. Consulates in Romania, China, Canada, Mexico, and several African countries. With her extensive experience in family-based and employment-based immigration law Ms. Beach not only assists her clients in obtaining a better standard of living in the United States, she also helps employers obtain professional visas, and petitions for family members. She also handles many complex naturalization issues. Ms. Beach has unique expertise representing clients in immigration matters pending before the Federal District Courts, Circuit Courts, Board of Immigration Appeals and Immigration Courts. She has won over 400 humanitarian cases in the United States. Her firm's website is www.boilapc.com.
    Despite being in a position to be a catalyst for immigration reform, Chairman of the House Judiciary Committee, Representative Lamar Smith (R-TX) has proposed one of the most egregious overhauls of the American immigration system, Hinder the Administration's Legalization Temptation Act, "HALT".  The controversial aspects of the bill include ending waivers of inadmissibility, removing cancellation of removal and adjustment of status in spite of potential hardship to a US citizen family member, suspending the Temporary Protected Status program, prohibiting the voluntary departure of immigrants, prohibiting the deferral of deportations, and severely limiting the government's ability to parole a citizen into the United States.  This fails to advance any reform agenda but instead aims at creating chaos and conflict within the existing system.
    Representative Smith's legislation is highly politicized as it doesn't seek to make these changes permanent, but rather only limit the Obama's administrations powers in these areas.  The powers that Representative Smith seeks to limit would all be restored on January 22, 2013, the official end of President Obama's current term.  Representative Smith believes that these executive powers "cannot be trusted to the Obama administration."  Representative Smith's measure is partly in response to John Morton's Memo authorizing the use of prosecutorial discretion for ICE Officials in their prosecution of detained immigrants. 
    Although Congress has ultimate authority in many immigration matters, Representative Smith's bill would specifically strip this president of many key components of discretionary relief that have been used by presidents of both parties.  Early in his administration, President Bush granted Temporary Protected Status to allow Salvadorians in this country the ability to remain here after a devastating earthquake impacted their country.  Most recently, the Obama Administration has granted Temporary Protected Status to Haitians in this country following the devastating Haitian earthquake of January 12, 2010.
    The New York Times noted on July 12 the recent hypocrisy in Representative Smith's bill when it reported that in 1999, Representative Smith was one of several members of Congress to write a letter to then Attorney General Janet Reno stating that "True Hardship cases calls for the exercise of discretion" and certain deportations have led to "unjustifiable hardship" for families. 
    Representative Smith has also ignored the increase in deportation numbers during the Obama administration.  During the Obama administration, ICE has deported annually over 55% more undocumented individuals than the annual averages for the Bush administration. 
    This isn't Representative Smith's only bill that fails to forward any proper reform of America's immigration system.  Representative Smith has a separate House Bill that also seeks to have mandatory use of E-Verify.  Although he claims the bill is a "jobs bill", Representative Smith fails to acknowledge that 3.6 million authorized workers would have to spend countless hours navigating through government databases because of problems with E-Verify.  Representative Smith's E-Verify bill will also cost small businesses $2.6 billion. 
    Rather than using his position of power in the House Judiciary Committee to work with this administration to champion immigration reform, Representative Smith has shown that when it comes to immigration reform he is the one who needs to be halted.
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