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    Published on 11-18-2015 04:02 PM

    On-Line Symposium on Texas v. United States: Commentary of Professor Stephen H. Legomsky


    This is the second installment of the ImmigrationProf blog on-line symposium on the Fifth Circuit's ruling on Monday in Texas v. United States, which enjoined the Obama administration's expanded deferred action program.  The author is Stephen Legomsky, John S. Lehmann University Professor Emeritus, Washington University School of Law, and former Chief Counsel, USCIS and former Senior Counselor to the Secretary of Homeland Security.


    Stephen H. Legomsky

    After an extraordinary delay that dissenting Judge Carolyn King rightly called “unjustifiable,” the Fifth Circuit on November 9 finally handed down its decision in Texas v. United States.  The ultimate outcome didn’t surprise anyone on either side of the DAPA debate.  The two judges in the majority had long ago signaled their feelings about DAPA generally and the legal issues it raises.

    Still, there were a few things about the decision that I think worth highlighting:

    The most obvious point is that the Fifth Circuit went even ...

    Published on 11-18-2015 03:48 PM

    Undocumented Immigrant Workers: Preventing Abuse and Enforcing Rights


    This spring, The New York Times garnered unprecedented attention with its expose on the horrific working conditions of New York City nail salons. Sarah Maslin Nir, "The Price of Nice Nails," (May 7, 2015). The report revealed that exploitation of its mostly undocumented female immigrant work force, which included subminimum wages, wage theft, and exposure to hazardous chemicals on the job resulting in cancer and miscarriages, was the lifeblood of the industry. The public outcry that followed had an immediate response from both New York city and state officials demanding change.

    While a myriad of laws exist at the state and federal level to ...

    Published on 11-17-2015 05:07 PM

    The Draft EB-5 Bill: The Good News and The Bad News


    The long-awaited draft EB-5 bill that is the combined work product of Senators Grassley and Leahy and Congressman Goodlatte has finally been made available to the EB-5 industry. All prior attempts to get access to this draft bill (including attempts by other Congressional and Senatorial offices) had been unsuccessful.

    It is noteworthy that the bipartisan coalition that had originally been formed to draft this bill, which included Democratic Representatives Polis and Lofgren, dissolved during the negotiations. The only Democrat remaining is Senator Leahy.

    This article will explore some of the most controversial parts of the draft bill. It is not intended to be an exhaustive analysis of the entire bill.

    The title of this blog is “The Good News and The Bad News”. The bad news is that, in this writer’s opinion and in the opinion of most other EB-5 advocates with whom I have discussed the bill, this draft EB-5 bill, if passed in its present form and without significant changes, would seriously jeopardize the continued viability of the EB-5 program. That is a dramatic statement, but I do not believe it is an overstatement. I believe that the result of this bill ...

    Published on 11-17-2015 04:58 PM

    If Broker Dealers Can't Raise Money For Most EB-5 Deals, Do You Need Them?


    Moderator: KURT REUSS

    Kurt Reuss: John, as a broker dealer in EB5, what about the argument that you probably don’t have the ability to raise money for an offering right now.

    John Leo: I would agree. Last year, we probably brought 30 investors into deals but to get these deals done you really have to go through China. That’s simply how this business is currently designed.

    Kurt Reuss: What is the role of a broker dealer and how do they provide compliance? And where in the process ...

    Published on 11-17-2015 04:35 PM



    On September 25, 2015 Liberal Leader Justin Trudeau released a statement in Brampton, Ontario which outlined proposed Liberal policy on Citizenship and Immigration. The statement was bold and fairly comprehensive and contained many good ideas to help fix the mess the Conservatives have made in the Citizenship, Immigration and refugee area and also the rather draconian measures the Conservatives took on “Homeland Security.” The text of Justin Trudeau’s statement is found here.[1]

    Justin Trudeau the leader of the Liberal Party of Canada said that, “A Liberal government will bring real change to Canada’s immigration system so it is focused on compassion, economic opportunity, and family reunification.” To quote now Prime Minister Justin Trudeau, “Immigration is critical to job creation and long-term economic growth for the middle class. In so many ways, Canada is what it is today thanks to the entrepreneurial spirit of those who chose to build their lives here,” … During the Harper decade, our immigration system has been mismanaged, politicized, and re-oriented away from welcoming those who choose to make Canada their new and permanent home. Liberals will reform our immigration system, and make family reunification a core priority of our government.”

    Trudeau made a number of express promises. He said, “We will immediately double the number of applications allowed for parents and grandparents to 10,000 each year. To help make that happen, and to restore processing times to levels that existed before the Harper decade, we will nearly double the budget for processing family class applications.”

    In addition, Trudeau promised to provide greater access to applicants who have Canadian siblings; to restore the maximum age for dependents to 22 from 19, to allow more Immigrants to bring their children to Canada. Trudeau also said, “A Liberal government will also change the rules so that spouses immigrating to Canada receive immediate permanent residency, getting rid of the current two-year waiting period.”

    All of these proposals are very good and will help undo the Conservative policies that were very hostile to new Immigrants to Canada.

    There is much to complain about the Conservative government’s policies towards new comers and especially to refugees. Trudeau has promised to bring in 25,000 Syrian refugees to Canada before the end of 2015. This goal will be difficult to achieve but the attitude of the new government toward refugees is a signal that Canada is returning to its noble humanitarian ways where Canada accepted refugees from Vietnam, Uganda, and other war torn countries and countries of persecution. These actions will go a long way towards restoring Canada’s reputation as a fair and compassionate country.

    The Conservative changes to Canada’s refugee policy also need to be reviewed. The distinction between the Designated Countries and Non-Designated countries should be changed.[2] ...

    Published on 11-16-2015 04:42 PM

    Fifth Circuit Affirms Injunction of Obama's Expanded Deferred Action Program



    Judge Jerry Smith

    The big news is that the U.S. Court of Appeals for the Fifth Circuit late yesterday issued an opinion in Texas v. United States.   The court, in a 70 page opinion by Judge Jerry Smith (and joined by Jennifer Walker Elrod), summarized its ruling as follows:

    "The government appealed and moved to stay the injunction pending resolution of the merits. After extensive briefing and more than two hours of oral argument, a motions panel denied the stay after determining that the appeal was unlikely to succeed on its merits. Texas v. United States, 787 F.3d 733, 743 (5th Cir. 2015). Reviewing the district court’s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive [Administrative Procedure Act (APA)] claims; and they have satisfied the other elements required for an injunction."

    In synthesizing the essence of the case, the majority stated that "[a]t its core, this case is about the Secretary[ of the Department of ...

    Published on 11-16-2015 04:33 PM

    Dear USCIS: Digitize the Form I-864, Affidavit of Support, Please



    The Washington Post reports that the U.S. Citizenship an Immigration Services has spent more than $1 billion trying to replace its antiquated paper-based approach to managing immigration with a system of online forms. But a decade in, all that officials have to show for the effort is a single online form (I-90, used for renewing or replacing green cards). The other 94 forms can be filed only on paper.

    USCIS did not even complete a basic plan until nearly three years after the initial $500 million contract had been awarded to IBM, reports the Post. And the approach to adopting the technology was outdated before work on it began.

    A USCIS spokesman says, “we are confident we are moving in the right direction.” But until progress is made immigrants and their lawyers will ...

    Published on 11-16-2015 04:19 PM



    Although the Fifth Circuit in Texas v. USA ruled against the Administration on November 9, 2015 by upholding the preliminary injunction against implementation of President Obama’s program to grant deferred action to certain groups of undocumented persons, the ruling may impact other executive actions that President Obama had announced on November 20, 2014, especially relating to skilled immigrants. It is thus important for the the Supreme Court to reverse this erroneous decision to not only allow the Administration to implement Deferred Action for Parental Accountability program  and the expanded Deferred Action for Childhood Arrival program (collectively referred to as DAPA in the decision), but to also allow the Administration to grant other kinds of administrative relief such as interim employment authorization to immigrants who face great hardship and are deprived of the benefits accorded to them under the Immigration and Nationality Act . 

    The majority’s ruling in the Fifth Circuit went even further than Judge Hanen’s decision in the lower district court by holding that DAPA was not authorized under any INA provision. Judge Hanen’s ruling suggested that if the Administration had followed the notice and comment procedure under section 553 of the Administrative Procedures Act, DAPA could have survived judicial scrutiny. The Fifth Circuit, on the other hand, held that since DAPA implicated “questions of deep economic and political significance,” Congress would have expressly authorized DHS, which it did not do. Hence, DAPA was a substantive APA violation under section 706(2) as it was not authorized under the INA. Thus, promulgating a rule at this juncture will not help to save DAPA.  

    One of the INA provisions relied on by the government to implement DAPA is INA section 274(h)(3), which provides: 

    As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General. 

    While the ability to of INA 274A(h)(3) to provide authority to the Administration was  completely overlooked in Judge Hanen’s decision (and his flawed decision is discussed in David Isaacson’s excellent blog entitled IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA), ...

    Published on 11-13-2015 03:26 PM

    Understanding Where We’re at and What Comes Next in DACA/DAPA Case



    Last night, a divided panel of the Fifth Circuit Court of Appeals denied the federal government’s appeal of the preliminary injunction that has halted implementation of President Obama’s 2014 deferred action initiatives. These initiatives—namely, the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of Deferred Action for Childhood Arrivals (DACA)—could provide as many as 5 million immigrants with temporary relief from deportation. The Fifth Circuit’s decision means that the deferred action initiatives remain suspended, and the lives of millions remain in limbo.

    But yesterday’s decision is not all bad news. What was hailed as a “win” for Texas and the 25 states challenging the federal immigration policies actually signals an important and hopeful turning point in the case. Most significantly, the decision has cleared the way for the Obama Administration to take this case to the U.S. Supreme Court. And today, the White House announced that it will take aggressive steps to seek Supreme Court review. Prompt action means that the Supreme Court could hear the case this term—likely with oral arguments being held next spring—and issue a decision before the term ends in June 2016. If that happens, it would be possible for the immigration agencies to implement DAPA and expanded DACA before the current Administration leaves office.

    Many had expected that the Fifth Circuit would issue its decision at the end of the summer or earlier in the fall, setting the stage for Supreme Court ...

    Published on 11-13-2015 03:20 PM

    ‘Substantially the Same’ – An Update


    One key issue that has arisen in Canadian immigration law since 2012 is the requirement that an employer be able to later demonstrate that it has provided ‘substantially the same’ (“STS”) wages and working conditions to foreign employees as those set out in the initial offer of employment (which formed the basis of an LMIA and/or work permit approval). Failure to adhere to STS standards could mean that the government would impose sanctions on the employer, including restricting the ability to hire further foreign workers. Effective December 1, new regulations will also bring about potential monetary penalties. (Please see http://www.kranclaw.com/2015/07/further-consequences-to-employers-for-immigration-non-compliance/).

    Any deviation of wages or working conditions for foreign workers from terms ...

    Published on 11-13-2015 03:06 PM

    Why does the US discriminate against immigrants from big countries?


    Fifty years ago last month, America shed a system of racially biased immigration limits for individual countries. Although it was a great step forward, Congress then replaced that discriminatory system with per-country immigration limits that were — and still are — arbitrary and economically damaging. In 2011, the House already passed a bill to repeal them. Now is the perfect time for Congress to finish the job.

    Per-country quotas restrict individuals from any single country seeking to come to the U.S. to no more than 7 percent of the green cards available in any category in any year. This restriction favors those from small countries at the expense of those from larger ones. By treating nationality as the relevant factor, India is treated equally with Luxembourg, but Indian immigrants are massively disadvantaged.

    Equality in theory, inequality in practice. It is a system of expedited processing for people from less populous countries; it is arbitrary and unfair. The large countries that are most disadvantaged — the Philippines, India, China and Mexico — are all non-European nations that, until recently, had little ethnic representation in the U.S.

    While the issue is ignored, the lines for visas have stretched to absurd lengths. Adult children of U.S. citizens from Mexico, Philippines, India and China can expect seven- to 21-year waiting periods. Workers from China, India and the Philippines with a college degree ...

    Published on 11-12-2015 02:55 PM



    “Extreme hardship” is an extremely important concept in immigration law which governs a range of reliefs that can be given by the Department of Homeland Security (DHS), immigration judges, Board of Immigration Appeals, and federal courts. Waivers of inadmissibility depend on the term being proven to cause such to certain qualifying U. S. citizen or permanent resident nuclear family members in situations relating to 3 and 10 year bars for staying illegally in the country for 180 days and one year respectively, fraud or misrepresentation, crimes involving moral turpitude, and even occasionally aggravated felonies. Currently U.S.C.I.S. is undergoing a review of the term and the various factors that should be considered for placement in its policy manual. Such review was undoubtedly spurred by DHS Secretary Jeh Johnson’s memorandum to U.S.C.I.S. Director Leon Rodriguez on November 20, 2014, the date of the President’s executive actions, “Expansion of the Provisional Waiver Program” in which he called ...

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