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Letters of the Week: Mar 30 - Apr 03

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  1. Taher's Avatar

    For the Eb5 pitfall article, shouldn't it say at least 1,000,000 in capital? It says 100,000 (?)
  2. ImmigrationLawBlogs's Avatar
    As another April 1 rolls around, with its disproportionate impact on educated, highly skilled H-1B applicants from Asia, who will in all likelihood be turned away in larger numbers than those from any other part of the world, it is easy to see why ID's March 30 editorial calls for abolishing the visa waiver program on the grounds that it discriminates in favor of Europeans and against Asian would be visitors. But this is only part of the problem of discrimination and hate influencing immigration policy. And calling the 21st century an "Asian" century as a replacement for previous European centuries is only a partial solution, and a very limited one at that. At least as far as US immigration policy is concerned, it would be more accurate to call this new century an Asian, African, Middle Eastern and Latin American century.

    The visa waiver program itself also includes not only Europe, but two major Asian countries, Japan and, more recently, South Korea. Another Asian country, Singapore, also has preferential treatment regarding H-1B visa availability. since it (along with Chile) is included in the H1B1 visa program.

    Nevertheless, discrimination unquestionably exists, especially at the consular visa issuance level, as the ID editorial correctly points out. This is why there might appear to be a certain tongue in cheek quality in the editorial's suggestion that European visitors should be turned over to US consulates in London, Paris and Berlin to be given the same harsh treatment that visitor visa applicants now receive from US visa posts in India, China and Southeast Asia.

    Of course, that will never happen - most visa applicants at European consulates will sail right through - as is now generally the case, though I have known of a few notable exceptions.

    While discrimination in admitting visitors is certainly a problem, the larger issue affecting American immigration policy today is not one of Asia vs. Europe (since visitors and immigrants alike should be equally welcome from both areas - and from the rest of the world), but the influence of discrimination and hate against all non-white minorities in many aspects of our immigration system - including enforcement as well as admissions.

    This is particularly evident in the differing public reactions to governmental action which discriminates against LGBT people from that which harasses and persecutes immigrant minorities.

    Compare, for example, the entirely justified outrage by community, business and political leaders of all stripes (with the notable and unfortunate exception of all of the most likely Republican 2016 presidential candidates) against Indiana's vicious new "Religious Freedom Restoration Act" (RFRA), which seeks to restore only discrimination against gays, and has nothing whatsoever to do with religious freedom. Indiana is now being swamped with boycott threats, event cancellation, business activity reductions, etc., as should be the case.

    19 other states which have similar laws are now attempting to distinguish themselves from Indiana by showing that they also have protections for LGBT people in place.

    But in the immigration area, 26 states have joined in a lawsuit aimed, not at allowing some businesses to refuse service to certain people, but seeking the mass expulsion of 11 million men women and children from America, almost all of whom just happen by "coincidence" to be people of color.

    This real purpose of this lawsuit has as much to do with "executive overreach", or "separation of powers" as Indiana's new RFRA law has to do with religious freedom - i.e., nothing at all.

    Where is the outrage over the existence of this lawsuit, not to mention its initial success in the courtroom of a Texas federal judge with a sorry record of anti-immigrant bias in his previous actions?

    Why are the states which joined in this meretricious lawsuit not being boycotted and condemmend by all decent and well-meaning people throughout America? Why are the officials in these 26 states responsible for bringing this lawsuit (regardless of its eventual outcome in the courts) not being showered with the same expressions of scorn and opposition that Governor Pence of Indiana is for signing that state's anti-gay discrimination law?

    America has a very big problem of prejudice and hatred in our immigration system today. While ID's editorial should be commended for focusing on one aspect of this much larger and more pervasive problem, limited measures such as changing or abolishing the visa waiver program would only be, at most, the beginning of a solution.

    Roger Algase
    Attorney at Law
    Updated 03-31-2015 at 09:00 AM by ImmigrationLawBlogs
  3. Jose Monge's Avatar
    At last !

    Finally someone has had the guts to tell it like it is. The bureucracy,
    federal, state, and local has become the new fifth power in USA. They just
    don't care because they get paid no matter what and can't get fired unless
    they kill someone. How convenient it was for them to have had 9/11 to
    whitewash everything they do...
  4. Stephen Kain's Avatar

    Is a new editor writing your Editorials? Wow. Today's is remarkable and
    last week the editorial about the anti-immigrationists at the California
    Service Center and the mistreatment of Mr. Mayorkas in the examination of
    the EB5 issues was a clear expression of demonstrated prejudice or decided
    lack of professional training. In my 33 years of Immigration practice, your
    comments about the culture within USCIS/INS are spot on. Although we are
    able to find some professional officers in our local offices, there are many
    with negative and often abusive attitudes to the applicants they are tasked
    with servicing. We prepare our clients for these abusive tactics so that
    they maintain their calm and manners in the face of such often petty
    mistreatment. Keep exposing it and consider a regular blog for
    practitioners to tell about their clients' negative experiences in
    interviews. The more the lack of professionalism and training in the
    Service is exposed, the better the chances for more professional decision
    making and treatment for our clients.

    Stephen R. Kain
  5. Chetan P. Tanna's Avatar
    Great comments!

    Great comments! I loved your article on VWP. : )
    Updated 03-31-2015 at 01:42 PM by IDBlog
  6. Smart John's Avatar
    Eliminate visa waiver program

    Worst column ever! You have some serious issues to work through.
  7. Mr. Parker's Avatar
    April Fools isn't until tomorrow

    Surely the upcoming April 1st prompted the abolish vwpp thing. If not, you lost another supporter.
  8. Nolan Rappaport's Avatar
    Why are some countries excluded from participating in the Visa Waiver Program? Contrary to what some people have been saying, it has nothing to do with discrimination against non-European countries. The standard is set forth in the Visa Waiver Program statutory provisions, the key one being the following requirement, which bases eligibility on how many citizens of the country in question asked for a visitor's visa and were refused. The underlying idea is that if most of the people from the country are able to get visas, the visa requirement is unnecessary and can be waived. Typically, countries that can't satisfy this requirement have large numbers of poor, unemployed people who apply for visitors visas and are refused because the consulate officer knows they aren't tourists. They are coming here to work.


    (i) the average number of refusals of nonimmigrant visitor visas for nationals of that country during--

    (I) the two previous full fiscal years was less than 2.0 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during those years; and

    (II) either of such two previous full fiscal years was less than 2.5 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during that year; or

    (ii) such refusal rate for nationals of that country during the previous full fiscal year was less than 3.0 percent.
  9. ImmigrationLawBlogs's Avatar
    I was just wondering if it might have occurred to Nolan that visa refusal rates might just happen to be lower in white European countries than elsewhere (for some unknown, totally mysterious, unfathomable reason, of course) so that using low visa refusal rates as the criterion for admitting a particular country to the VWP could result in self-perpetuating prejudice, or may have already done so.

    Roger Algase
    Attorney at Law
  10. Nolan Rappaport's Avatar
    Roger, the refusal rate requirement for participation in the Visa Waiver Program is not a sneaky way of excluding non-European countries. It is a completely objective basis for determining which countries should be allowed to participate in the program.

    The purpose of requiring visitors to have a visa is to restrict to the extent possible the admission of aliens visitors to bona fide visitors who can be expected to go home after a temporary stay in the United States. This is accomplished by interviewing and checking the applicants on an individual basis to determine which ones appear to be bona fide visitors. The ones who pass this test are given visas. The ones who do not appear to be bona fide visitors are refused. Some countries have high refusal rates because a substantial percentage of their citizens who apply for a visitor's visa are not able to establish that they are bona fide visitors. Other countries have a very small percentage of citizens who are refused a visitor's visa. The purpose of the Visa Waiver Program is to waive the visa application process for countries that have small refusal rates. Very few applications from those countries are denied, so it is thought that it is a waste of time and resources to require their citizens to apply for a visitor's visa if they want to visit the United States.
  11. ImmigrationLawBlogs's Avatar
    On the surface, of course, Nolan is right. Whether to issue or refuse a visa is, at least in theory, governed by objective requirements which do not include race or national origin of the applicant.

    In reality, as everyone who has dealt with the visa issuance system knows full well, the decision whether to issue or refuse a visitor visa is highly subjective on the part of the US visa officer concerning matters such as whether he/she believes that the visa applicant has ties to his/her home country, and other evidence of non-immigrant intent.

    Once the officer has made his/her decision in that regard, it is almost impossible to overrule it. It seems to happen with a great deal of regularity that applicants from Europe are trusted by US visa officers to return home after a visit to a much greater extent than those from any other part of the world. This is why European countries (in general) have lower visitor visa refusal rates.

    If anyone wants to go around with blindfolds and pretend that this has nothing to do with racial bias at all, or that someone applying for any kind of visa in, say, Mumbai, Shanghai or Lagos is going to get the same treatment as someone applying in London, Paris or Berlin, that person is free to do so. That does not make it true.

    Roger Algase
    Attorney at Law
    Updated 04-01-2015 at 09:10 AM by ImmigrationLawBlogs
  12. Nolan Rappaport's Avatar
    Roger says, "If anyone wants to go around with blindfolds and pretend that this has nothing to do with racial bias at all, or that someone applying for any kind of visa in, say, Mumbai, Shanghai or Lagos is going to get the same treatment as someone applying in London, Paris or Berlin, that person is free to do so. That does not make it true."

    One of my responsibilities as an immigration counsel on the House Immigration Subcommittee was to help people who had problems with the State Department or DHS. Over the course of the seven years I spent there, I handled a substantial number of complaints from people who couldn't get their friends/relatives/etc into the country on visitor's visas. Without any exceptions I can recall, I was not able to help. The people who had been refused visitor's visas were unemployed, didn't own property of any kind in their countries, and couldn't establish that they had enough money to afford a trip to the US as a tourist. In many cases, their only relatives were in the US. Do you really believe that racial bias is the only basis for concluding that someone in that situation isn't really planning to come to the US for a vacation?

    Roger, what is the basis for your claim that State Department consulate officers deny visitor's visas on the basis of racial bias?
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