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  1. New Rule Spells Potential Trouble for Asylees

    There’s a new State Department rule in town about misrepresentation, and it could signal trouble for certain asylum seekers and others who enter the country on non-immigrant visas and then seek to remain here permanently or engage in other behavior inconsistent with their visas.

    The State Department has a long tradition of blocking visas for people facing persecution (if you don't believe me, Google "Breckinridge Long").

    To understand the problem, we first need to talk a bit about non-immigrant visas (“NIV”). To obtain an NIV, you have to promise to comply with the terms of that visa. One common NIV requirement is that you must intend to leave the U.S. at the end of your period of authorized stay (some NIVs are exempt from this requirement, most notably the H1b and the L, which are known as "dual intent" visas). Another common NIV requirement is that the visa-holder should not work in the U.S. without permission. If you breach these requirements, there are often—but not always—immigration consequences.

    For example, up until the rule change, if an alien entered the U.S. on a B or F visa, or on the Visa Waiver Program, and then filed to “adjust status” (i.e., get a green card) within 30 days of arrival, the alien was presumed to have had an “immigration intent” at the time of entry, and thus USCIS would assume that she lied about her intention to leave the U.S. at the end of her authorized stay (in government-speak, this is called a misrepresentation). If she violated her status between 30 and 60 days after arrival, USCIS might still decide that she misrepresented her intentions when she got the visa (this was known as the 30/60 day rule). If she filed for the green card on day 61 or beyond, she would generally be safe. There are exceptions and caveats to all this, but you get the picture.

    Enter the new rule, which appears in the State Department’s Field Adjudications Manual (at 9 FAM 302.9-4(B)(3)):

    [If] an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry… you [the consular officer] may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

    This change specifically affects people applying for visas at U.S. consulates, but it seems likely that USCIS could adopt the rule as well, which would mean that people who come to the United States on certain NIVs and who engaged in “non-status-compliant activity” within 90 days of arrival will be presumed to have lied in order to obtain their visas. All this means that the 30/60 day rule is dead, at least so far as the State Department is concerned, and probably for USCIS as well.

    This is all pretty boring and confusing, you say. What does it have to do with asylum seekers?

    The issue is, if a person comes to the United States and applies for asylum within 90 days of arrival, he might be considered to have lied about his “immigration intent” in order to obtain a U.S. visa. In other words, requesting asylum (and thus asking to stay permanently in the United States) is not consistent with coming here on most NIVs, which require that you promise to leave the U.S. at the end of your authorized stay.

    This problem is not just academic. I’ve recently heard from a colleague whose client came to the U.S., won asylum, and obtained a green card. But when the client applied for citizenship, USCIS accused him of a “misrepresentation” because he entered the country on an NIV and then sought to remain here permanently through asylum. This example comes amidst several cases—including one of my own—where USCIS seems to have pushed the boundaries of the law in order to deny citizenship to asylees. It also seems part of a larger pattern to "bury lawyers and their clients in requests for more and more documentation, and clarification on points that were already extremely clear in the initial filing."

    I should note that the above examples are not related to the new State Department rule (probably), though if USCIS implements a similar rule, it would potentially expose many more asylees (and other USCIS applicants) to the same fate.

    It’s a little hard to understand what USCIS is trying to do here, or why they are doing it. For one things, there is a waiver available to refugees and asylees who commit fraud (the waiver forgives fraud and allows the person to remain in the United States). Also, when a person fears persecution in her country and qualifies for asylum, low-grade misrepresentations are routinely forgiven. So the likelihood that any asylee would ultimately be deported for having lied to get a visa is close to zero. In other words, USCIS can delay the process, and cause these asylees a lot of stress and expense, but in the end, they will remain here and most likely become U.S. citizens (eventually).

    Perhaps this is the Trump Administration’s implementation of “extreme vetting.” If so, it’s more appearance than substance. It looks as if something is happening, but really, nothing is happening. Except of course that USCIS is mistreating people who have come to the United States and demonstrated that they have a well-founded fear of harm in their home countries. So—like a Stalinist show trial—such people will admit their “misrepresentations” (in many cases, for the second, third or fourth time), go through the hassle, stress, and expense of the waiver process, and then end up staying here just the same.

    It’s too bad. USCIS can do a lot of good—for immigrants and for our national security. But unfortunately, their current path will not lead to improvements in either realm.

    Originally posted on the Asylumist:
    Tags: asylum, fraud, uscis Add / Edit Tags

    by , 09-19-2017 at 09:10 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    USCIS has resumed Premium Processing Service (PPS) for H-1B cap-subject petitions. Presently, H-1B cap-subject petitions, H-1Bs for cap-exempt employers (e.g. research entities and universities), and H-1Bs for doctors are the only H-1B petitions that may use PPS. H-1B transfers, amendments, and extensions currently are prohibited from PPS.

    USCIS’ press release said that it “plans to resume premium processing for all other remaining H‑1B petitions (i.e. H-1B transfers, amendments, and extensions) not subject to the FY 2018 cap, as agency workloads permit.” The press release did not commit to a time frame for the resumption of PPS for these types of H-1B petitions. However, in a June 2017 AILA Q & A, USCIS HQ indicated that it “anticipates” resuming H-1B PPS processing on or before October 4. This comment did not delineate between H-1B cap petitions and other types of H-1B petitions, such as transfers, amendments, and extensions.

    The USCIS may have decided to prioritize H-1B cap-subject petitions in order to allow some F-1/OPT students to continue to work without work authorization beyond October 1. Certain F-1/OPT students’ will lose work authorizing on October 1 if their H-1B cap-subject petition is not approved before October 1. Please check with your MU attorney or staff member if you have questions.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook, Twitter and LinknedIn.
  3. Effects of Temination of DACA on Employers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Since President Trump’s announcement rescinding DACA (Deferred Action for Childhood Arrivals), media focus has been on the 800,000 DACA recipients – as it rightfully should be. However, there is going to be another entity impacted - employers of those 800,000 DACA recipients.

    Not only do employers need to be concerned about the loss of valuable employees, but employers need to be concerned with staying in compliance of immigration laws. It is fundamental immigration law that employees cannot legally work without proof of their identity and work authorization. Thus, when DACA recipients’ Employment Authorization Card (EAD) expire, employers will need to discharge DACA recipients, unless they have found another way to obtain work authorization (which is very unlikely).

    But before employers start discharging employees, one needs to be careful not to do so prematurely. During the period of DACA’s work authorization, even beyond March 5, 2018, when the USCIS will no longer approve DACA renewals, DACA employees can be authorized to legally work. It all depends on the EAD’s expiration date. Although no renewal EAD will be issued after March 5, 2018, this doesn’t mean all DACA recipients are not eligible to work after March 5, 2018.

    As an example, DACA employee Jose has an EAD which expires on March 4, 2018, so he can renew his DACA status and EAD (if the renewal is filed by October 5, 2017). Thus, he will be eligible to work until about March 2020. On the other hand, another employee, Mohammed, has an EAD pursuant to DACA, which expires on March 6, 2018. Unfortunately, March 6, 2018 is the date his employment must terminate. Thus, employers must be observant of the EAD’s expiration date.

    How does an employer even know whether the EAD is through DACA, TPS, or withholding of removal? There is a code on the front of the EAD card. For DACA, the code is C33. This code is different than codes for TPS or withholding - A10, A12 or C19.

    Some employers may ask why can’t I just discharge DACA recipients now. First, they are probably very good employees – as so many of them are proud to be legally working for the first time in their lives. Second, hopefully Congress is going to pass the DREAM Act or some other legislation that will provide for lawful employment for DACA recipients; thus, employers won’t have to face the issue. However, if an employer chose to discharge a DACA recipient based on his DACA status, it is very unlikely that the discharge would be unlawful under the anti-discrimination provisions of the Immigration and Nationality Act.

    Some small employers may be thinking I’m just going to look the other way and not terminate DACA recipients when their work authorization expires. Although I can understand employers not wanting to hurt their DACA employees, employers need to consider their own situation. If an employer continues to employ a worker after his work authorization expires, is not renewed, and no other work authorization is provided, they are subject to “knowingly” employing an undocumented worker. The fines for such a first offense range from $539 to over $4000, with a fine of over $3,000 being the most likely. If you have five DACA employees that you retain without work authorization, you are looking at a fine of $15,000 before Immigration and Customs Enforcement (ICE) has even looked at your Form I-9s for substantive violations. So, your heart may tell you to keep DACA recipients without work authorization; but, listen to your head, which is filled with dollar signs for fines and penalties.

    For the answers to many other questions related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, available on Amazon at
  4. Letters of the Week: September 18 - September 24

  5. Trump's Support for "Larger", "Tougher", Muslim Ban Recalls 1920's Ban Against Jewish Immigrants. Will the Supreme Ct. Take Note? Roger Algase

    The following is a revised and expanded September 18 version of my original September 16 comment:

    On September 15, Donald Trump tweeted the following with respect to his six-country Muslim ban which is still under consideration by the Supreme Court:

    "The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!"

    The above is an unmistakable reference to Trump's original, December 2015 call for a world wide ban on entry by Muslims into the United States. That proposal, as well as his "watered down" Executive Order versions issued after taking office as president, have brought on a storm of condemnation from across the political spectrum, including many leaders in Trump's own party.

    Certainly, Trump's original world-wide ban proposal, if not the later versions, was just about as "large". "tough" and "specific" as one can imagine.

    Therefore the president's latest tweet raises a serious question as to whether he has ever given up the idea of a world-wide Muslim entry ban as his ultimate goal.

    Trump's comment also brings back disturbing memories of a period, beginning almost 100 years ago, when America did in fact impose what a amounted to virtually a world-wide ban on members of another unpopular religious group of the period - adherents of the Jewish religion and everyone else who had Jewish ancestry.

    As every student of America's immigration history and of American history in general knows well, this ban was accomplished through enacting the 1924 Johnson-Reed "national origins" quotas immigration act. This law, in effect, limited immigration to populations from northern Europe, known as "Nordics" in the racially motivated parlance of that time, and drastically reduced immigration quotas for Eastern and Southern Europe where most of the world's Jewish population lived (as well as virtually eliminating immigration quotas for all other areas of the world outside the "Western Hemisphere").

    Just as Trump's call for a ban on Muslim immigrants grew out of ongoing attempts by US politicians and media figures to exploit prejudice against all of the world's 1. 6 billion Muslims in general, using 9/11 and subsequent attacks by jihadist extremists an excuse, the 1920's ban against Jewish immigrants was based on widespread anti-semitism.

    Jews in general were accused of being racially, religiously and culturally inferior, and of being "Bolsheviks" or belonging to an "international Zionist conspiracy". They were attacked by politicians and in the media as being dangerous, disloyal and unfit to assimilate into American society, just as Muslims are now being accused of not only being potential terrorists but of wanting to "impose Sharia law" in the United States.

    Anti-semites of that time also had a famous and wealthy businessman, Henry Ford, as one of their leading exponents - but far from the only one. For more on Henry Ford's attacks against the Jews and their influence on the 1924 Johnson-Reed Immigration Act, see:


    The effects of America's 1924 ban on Jewish and other non - "Nordic" immigration were pervasive, reaching far beyond the boundaries of the United States itself. They included inspiring the racist, and ultimately genocidal ideology of Adolf Hitler and his Nazi followers.

    Noted Columbia University Professor Jeffrey Sachs describes these effects in chilling detail in his March 19 article:

    The Muslim ban and American history

    He writes, concerning the enactment of the 1924 immigration law which imposed an almost complete ban on Jewish immigration to the US:

    "During this process, there was an attentive and approving observer abroad, Adolf Hitler. Hitler praised the new U.S. immigration policy in 'Mein Kampf', writing among other things that 'There is currently one state in which one can observe at least the weak beginnings of a better conception...The American Union...simply excludes the immigration of certain races.'"

    No one can possibly have any doubts about which people were included among the "races" which the future German Fuehrer was referring to in the above passage.

    Professor Sachs also writes concerning the history of the above law:

    "in fact, in the 1930's, the Nazi lawyers looked to various aspects of U.S. racial legislation - including the immigration codes based on country of national role models for Germany's race-based citizenship, which of course culminated in the Nuremberg Codes."

    Trump's Muslim ban cannot be fully understood in any of its various versions without reference to this supremely shameful part of America's past, which every scholar of that period with any amount for credibility agrees added to the death toll of 6 million Jews in Hitler's gas chambers and ovens during the Holocaust.

    Ironically, even though few if any commentators make any reference to this, by barring almost all immigration from Asia, the Middle East and Africa, the 1924 Johnson-Reed Act also excluded virtually the entire Muslim world from immigrating to the US as well. Admittedly, that "Muslim ban" of almost a century ago was not as "specific" as the one which Donald Trump is now trying to impose.

    In about three weeks from now, the US Supreme Court will hear oral arguments concerning the legal validity, or lack of it, regarding the latest, six-country version Trump's Muslim ban order. Will the nation's highest Court be willing to consider the dark history behind Trump's Muslim ban in rendering its decision?

    (Disclaimer: My comments should not be taken as a suggestion that Trump is in any way anti-Jewish or supports any form of genocide. Nothing could be further from the truth.)

    Roger Algase
    Attorney at Law

    Updated 09-18-2017 at 01:00 PM by ImmigrationLawBlogs

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