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Could There Be a Long "Black Night" of Legal Immigration Petition Denials, Inaction or Revocations After the Election? Roger Algase

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The ancient Greek poet Hesiod, who some scholars think may have been a younger contemporary of Homer, wrote the following in his most famous work, Theogony:

ek chaeos d'erebos te melaina te nux egenonto

("Out of Chaos...black night came into being.")

Could there be a black night for legal immigration after Tuesday's election, coming up after what can only be described as a chaotic presidential campaign?

Up to now, almost all of the focus on immigration policy during the presidential campaign has been on enforcement measures to secure the border against illegal immigration, or immigration by criminals and terrorists, and to bring about the departure of up to an estimated 12 million people who have entered the US illegally or overstayed their legal permission to be in this country.

There has been much less discussion about reducing or terminating legal immigration, including work visas and both employment and family-based green cards.

However, one of the two major party presidential candidates, who could very realistically be elected as our next president on November 8, has already promised to abolish two of the main pillars of legal employment-based immigration, namely H-1B work visas and labor certification green cards.

He claims that these two programs hurt the wages and job opportunities of American workers. He has also suggested that all work visa programs should require US employers to recruit US workers first, which would effectively end whatever is left of employment-based immigration.

But beyond that, in his much publicized Phoenix August 31 immigration address, this same candidate expressed a clear and openly stated distrust, if not outright hostility, toward immigration in general. He stated that current levels of immigration were far too high and needed to be reduced to "historical levels".

This proposal has been estimated as likely to result in turning away 30 million potential immigrants who would otherwise be admissible under our laws, according to a recent article in The Atlantic mentioned in one of my recent Immigration Daily posts.

This candidate also, in the same address, referred to "decades-old" and "outmoded" immigration laws (an evident reference to the 1965 immigration reform law which is the foundation of our current, race-neutral, immigration system) which he claims allegedly need to be revisited by a commission which he would appoint for this purpose.

This candidate didn't say who would be on the commission, but it is not unreasonable to assume that it would be packed with strong opponents of "third world" immigration and people who have been calling for a "time out" on further immigration for many years - names such as Ann Coulter, Patrick J. Buchanan, and Kansas Secretary of State Kris Kobach come to mind, as well as leaders of well known restrictionist organizations such as CIS (Center for Immigration Studies), FAIR (Federation for American Immigration Reform) and Numbers USA.

It would not be surprising if Senator Jeff Sessions, (R-AL) one the strongest opponents of all immigration in Congress, who has reportedly been advising Trump on immigration policy, were to find a place on this proposed commission.

Given the antipathy that Donald Trump has shown toward most if not all forms of immigration, not only in his Phoenix speech, but in other campaign speeches in which he has warned that "uncontrolled" immigration could "destroy America", it is instructive to look at some of the possible legal steps that the president could take to halt all immigration, or at least major parts of immigration under our current system, without requiring any change in the law or permission from Congress.

There are several such legal avenues to doing so, which I will discuss below.

The first, and very possibly the easiest, would be to instruct the head of DHS to order the USCIS director to issue new policy guidance memos defining key terms in the statutes on which the various employment-based benefits are based in such a way that it would be all but impossible to approve most employment based NIV petitions such as H-1B, O-1, L-1, E-2, etc.

This is would not all that difficult to do. One example is the January 8, 2010 H-1B policy memo by USCIS Associate Director of Service Center Operations Donald Neufeld, which defined the term "employment" in the H-1B statute and regulations in such a way that it would be difficult or impossible to approve H-1B petitions for employees working at remote sites.

Another way of assuring denial of many, if not all, H-1B petitions is though the practice that many USCIS Service Center examiners are already adopting of defining the term "specialty occupation" in such a way that whatever job description is at issue in the petition is sure to fail to meet the definition.

While going into detail on this issue is beyond the scope of this comment, I can give one example: recently some USCIS Service Center examiners have been denying H-1B petitions for what used to be the regularly approved H-1B specialty occupation of Market Research Analyst.

The grounds for denial has been that since the US Department of Labor's Occupational Outlook Handbook (OOH). lists several fields of study (around half a dozen) as being related to the above job title, rather than just one or two, this position is not a specialty occupation because it allegedly does not require a bachelor degree in a specific field of study as a prerequisite.

I do not mean to imply that this strategy of defining away a particular statutory or regulatory term so that it is virtually impossible to meet the definition works only with H-1B petitions.

It can (and does) work with almost any kind of employment based petition - whether using such a strict and convoluted definition of the term "manager" for L-1A purposes that it becomes almost impossible to qualify as a manager, or defining the O-1 extraordinary ability standards in a way so that it becomes impossible to meet those requirements, a sufficiently creative USCIS official with knowledge of the specific requirements of any given employment-based NIV category (or I-140 immigrant petition category) can develop definitions of these standards that would put approval beyond the reach of most if not all petitioners.

The above would not require any statutory changes or even issuing new regulations under the APA. However, it might require a change in a statute or regulations to insulate this strategy from federal court review, by making a decision to approve or deny any given NIV or immigrant employment based petition "discretionary". See Systronics Corp. v. INS 153 F. Supp 2nd 7 (D.D.C. 2001).

One should not estimate the power of federal government agencies to effectuate wide changes in policy, which can have the effect of a major change in a regulation or statute but without going through any of the required procedures, simply by issuing policy memos.

There is no reason why USCIS or DHS policy memos cannot be used to bring large parts of the legal immigration system to a halt under the direction of a president who might have this as his objective.

Of course, policy memos, carefully and properly written, can also go a long way in the other direction, by liberalizing many aspects of the legal immigration system. One should not be surprised to see such memos being issued if the other major party candidate, Hillary Clinton, is elected president.

Another, related strategy which might be used by a president determined to cut down or halt immigration from Latin America, the Middle East, Asia, and other areas of the world which he might oppose for various reasons, might be to announce through DHS or USCIS that new regulations are in process for the various visa categories I have mentioned above, and that no petitions for these benefits, including all NIV employment categories and I-140 green card petitions, will be accepted or acted upon until the new regulations are issued - which would never happen during his presidency.

This might require the president to use his authority to suspend immigration of any type he chooses for just about any reason on "national interest" grounds under INA Section 212(f), which I have commented on previously. That authority is in the statute, and it gives the president virtually unlimited discretion.

But why assume that a president who has shown as much hostility to legal immigration in general as Donald Trump did in his August 31 Arizona speech would stop at halting most or all new employment-based legal immigration?

What about people who already have approved I-140 petitions and are waiting for their green cards? At least they are safe, are they not?

Think again: the DHS also has very broad power to revoke previously approved green card (I-130 and I-140) petitions under INA Section 205, which reads as follows:

The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.

This provision has already become controversial under the Obama presidency, particularly concerning revocation of EB-1 extraordinary ability green card I-140 petitions - something thing I also commented on previously in Immigration Daily.

Under a Donald Trump presidency, we might conceivably be hearing a good deal more about this provision.
________________________________
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 from diverse parts of the world obtain work visas and green cards.

Roger's email address is algaselex@gmail.com


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Updated 11-06-2016 at 08:49 PM by ImmigrationLawBlogs

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Comments

  1. Unregistered222's Avatar
    Can't wait till this happens. Just saw several US-graduated software engineers in Florida who have been thrown out of the job with the pink slips right ahead of thahnksgiving. How nice

    They are being replaced by cheap and uneducated H-1Bs They are mad as hell and will vote for Trump. Excellent candidates for this commission...

    TRUMP 2016.
  2. MKolken's Avatar
  3. ImmigrationLawBlogs's Avatar
    I don't know if Matt has ever handled an I-140 revocation case, but I have. It was an EB-1 extraordinary ability petition, which the USCIS Texas Service Center initially approved and then, about a year and a half later, sent an NOIR for and then ultimately revoked for no other reason that they had decided that the self-petitioner wasn't really as great in her field as the TSC had originally thought she was.

    There was no allegation by the TSC of any new adverse information or that the initial submission contained anything that wasn't true.

    It took another year of motions and appeals, and a lengthy AAO decision, to get the original I-140 approval reinstated. The effect on the petitioner was unsettling, to say the least, because it took away the security that someone who has a justified case, has broken no laws and has played by the rules should be entitled to upon receiving a USCIS petition approval.

    I wrote about this case at some length in Immigration Daily at the time, about 2 or 3 years ago. I will look up the dates and post them as soon as possible in case any readers want more details.

    Matt might well point out, of course, that this happened under President Obama, not under a hypothetical (and let us hope that it stays that way, so that America can continue to be a demcoracy rather than a fascist dictatorship run by a madman who cares more about getting revenge on his opponents and consolidating his power than about anythig else) president Trump.

    But if Trump becomes president and is serious about achieving the big reductions in legal immigration which he promised in his Phoenix Arizona speech, this would certainly be one possibly very effective way to go about it, especially if he loads up the AAO and the federal courts with immigrant-haters such as himself - which he would without any question try to do from the moment of taking office.

    Roger Algase
    Attorney at Law
    Updated 11-07-2016 at 10:23 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    The best thing about a Hillary presidency is that Trump would go back to being a businessman and we would not have to put up with any more of Roger's outrageous claims about him and the harm he would do if elected. On the other hand, if Trump wins.......

    Nolan Rappaport
    Updated 11-07-2016 at 05:19 PM by ImmigrationLawBlogs
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