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    Published on 08-17-2016 03:35 PM

    Controlling Immigration Means Controlling Everyone

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    October 01, 2015

    The governments of most European states are eager for foreigners to enter their countries and often boast of their success in attracting people to come in as tourists, whose spending boosts certain industries and swells state treasuries. They want high fee paying students, or wealthy investors willing to set up businesses, or specialist workers in short supply, be they engineers or footballers or nurses.

    Foreigners are welcome, if they are of the right kind, come for the right reasons, and stay for the right length of time. The more the merrier. Provided everything is kept under control. But control — even attempted control — comes at a cost. One of those costs is the freedom of citizens and residents.

    Here’s where immigration controls in liberal democracies and apartheid in South Africa after 1948 share some similarities. In both cases the effectiveness of the policies depends in the end on controlling not just outsiders ...

    Published on 08-17-2016 02:05 PM

    Donald Trump’s Shortsighted Immigration Plans Won’t Secure the Homeland

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    As any serious national security expert will tell you, trying to find a potential terrorist by treating all immigrants or Muslims as security risks is far too vague to be effective. Accurate intelligence and effective information-sharing across agencies is the key to national security—not profiling. Yet in a bombastic August 15 speech, Republican presidential nominee Donald Trump offered up blatantly bigoted and utterly pointless proposals on national security including ideas like instituting an “ideological screening test” and “extreme vetting” to determine which would-be immigrants to the United States (especially Muslims) harbor “any hostile attitude towards our country or its principles.”

    Leaving aside Trump’s nativist histrionics, it would be a serious mistake to embrace policies that conflate immigration enforcement and counter-terrorism efforts, implying that immigration enforcement is a way to catch terrorists. In reality, immigration enforcement is not designed ...

    Published on 08-17-2016 12:20 PM

    St. Kitts and Nevis Citizenship by Investment Program

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    ...
    Published on 08-16-2016 01:44 PM

    Humayun Khan and America’s Debt to Foreign-Born Service Members

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    Khizr and Ghazala Khan appeared at the Democratic National Convention in Philadelphia last week to honor their son Capt. Humayun Khan, who was killed in Iraq in 2004 while serving in the U.S. Army. The controversy that followed could not have been predicted with the Republican candidate attacking the Khan’s who have continued to forcefully call him out for his anti-Muslim and anti-immigrant comments. Yet, what is not controversial and undebatable is the long history immigrants, like Humayan Khan have had in the U.S. armed forces, and the debt America owes them and their families for their service.

    Immigrants have a long and proud history serving in the U.S. military. In fact, one of the first U.S. soldiers killed in combat in Iraq in 2003 was Lance Cpl. Jose Guitierrez who was born in Guatemala but enlisted in the U.S. army.

    Yet, the contributions of the foreign-born go way back. Several immigrant soldiers were critical to the efforts of the U.S. Continental Army against the British, including major-generals Lafayette of France and Casimir Pulaski of Poland. Some have estimated that one–fourth of all Union soldiers were immigrants during the U.S. Civil War.

    What these soldiers bring ...

    Published on 08-16-2016 01:29 PM

    I-9 Discrimination and Employer Audits: Lessons learned from the FBA I-9 Worksite Enforcement Conference

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    In our first article on the Chicago FBA Worksite Enforcement Conference in Chicago, we covered ICE Worksite Enforcement’s priorities, fines, criminal prosecutions, Electronic I-9’s, OCAHO discussions, honesty policies, and independent contractors. In this article, I will cover other subjects discussed at the conference, with a particular focus on immigration-related discrimination and Form I-9 audits. Let’s begin with the issue of discrimination.

    In recent years, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been vigorously investigating and prosecuting claims of discrimination that occur during the hiring process. Deputy Special Counsel Alberto Ruisanchez spoke about avoiding such discrimination complaints and emphasized that the OSC has more than just an enforcement role – it is also involved in outreach and educating the public (many of whom still have never heard of the OSC) through its employee hotline and policy work with “sister” agencies in shaping proposed regulations and / or ...

    Published on 08-16-2016 12:09 PM

    Close, But No Cigar! Meaning Of Affiliation For Purposes Of H-1B Cap Exemption

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    The annual numeric limitation on the issuance of H-1B visas has been written about extensively in prior posts.  It is no secret that the H-1B cap, as it is commonly referred to, has crushed the dreams of both prospective foreign employees and disappointed employers trying to secure high-skilled labor.  In an attempt to relieve pressure from the cap, Congress carved out certain exemptions to the H-1B cap, including for institutions of higher education and “related or affiliated nonprofit” entities.  Interestingly enough, due to a lack of clear guidance and improper rulemaking by USCIS, the meaning of the word “affiliation” still lies in murky waters.

    The origin of the H-1B cap exemption regulations traces its roots to the American Competitiveness in the Twenty-First Century Act (AC21) passed in October 2000. As a result, pursuant to § 214(g)(5)(A) of the Immigration and Nationality Act, the annual numerical limitations on issuance of H-1B visas do not apply to a non-immigrant alien who “is employed (or has received an offer of employment) at an institution of higher education (as defined in section 101(a) of the Higher Education ...

    Published on 08-15-2016 03:18 PM

    Fifth Circuit Holds Federal “Crime of Violence” Provision Not Void for Vagueness - En Banc Decision Creates Circuit Split

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    The application of the void for vagueness doctrine to “crimes of violence” continues to make its way through the federal courts (See here, here and here for prior Immprof Blog coverage of this issue).   On August 3, the Fifth Circuit Court of Appeals issued an en banc decision in United States v. Gonzalez-Longoria, in which a noncitizen who was criminally prosecuted for illegal re-entry received a sentencing enhancement due to the existence of a prior conviction found to constitute a “crime of violence.”   By reversing the Fifth Circuit’s prior Gonzalez-Longoria decision, issued on February 10, the court’s recent en banc opinion has created a circuit split on the application of the Supreme Court’s decision in Johnson v. United States (holding the residual clause of the Armed Career Criminal Act at 18 U.S.C. ...

    Published on 08-15-2016 01:28 PM

    2016 Provisional Unlawful Presence Waiver Rule

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    On July 29, 2016, the Department of Homeland Security published a final rule that expanded the availability of the provisional unlawful presence waiver. This waiver is available to individuals who would be eligible for a waiver under INA §212(a)(9)(B)(v). Under INA §212(a)(9)(B)(v), an individual who has accrued over 180 days of unlawful presence in the US is subject to a 3-year bar to readmission that is triggered upon departure from the US. A person who has accrued one year or more of unlawful presence is subject to a 10-year bar to ...

    Published on 08-15-2016 11:56 AM

    Is Australia abusing child asylum seekers?

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    ...
    Published on 08-12-2016 02:11 PM

    Waking Up to the Reality of Fascism

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    December 09, 2015

    Donald Trump is on a roll, breaking new ground in uses for state power.

    Closing the internet? Sure. “We have to see Bill Gates and a lot of different people… We have to talk to them about, maybe in certain areas, closing that Internet up in some ways.”

    Registering Muslims? Lots of people thought he misspoke. But he later clarified: “There should be a lot of systems, beyond databases. We should have a lot of systems.”

    Why not just bar all Muslims at the border? Indeed, and to the massive cheers of his supporters, Trump has called for the “total and complete shutdown of Muslims entering the United States.”

    Internment camps? Trump cites the FDR precedent: Italians, Germans, and Japanese “couldn’t go five miles from their homes. They weren’t allowed to use radios, flashlights. I mean, you know, take a look at what FDR did many years ago and he’s one of the most highly respected presidents.”

    Rounding up millions of people? He'll create a "deportation force" to hunt down and remove 11 million illegal immigrants. 

    Killing wives and children? That too. “When you get these terrorists, you have to take out their families.”

    Political Vocabulary

    This litany of ideas has finally prompted mainstream recognition of the incredibly obvious: If Donald Trump has an ideology, it is best described as fascism.

    Even Republican commentators, worried that he might be unstoppable, are saying it now. Military historian and Marco Rubio adviser Max Boot tweeted that “Trump is a fascist. And that’s not a term I use loosely or often. But he’s earned it.” Bush adviser John Noonan said the same.

    The mainstream press is more overt. CNN’s Chris Cuomo asked Trump point ...

    Published on 08-12-2016 11:36 AM

    Court Rejects Government Attempt to Redact Names of Immigration Judges

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    This summer, the District of Columbia Circuit Court of Appeals ruled in favor of the American Immigration Lawyers Association (AILA) in its lawsuit seeking the disclosure of unredacted versions of complaints filed against immigration judges. To date, the government has refused to turn over the names, locations, and genders of immigration judges against whom complaints have been made, shielding both the complaint process and the judges from public scrutiny.

    The lawsuit, in which AILA is represented by Public Citizen and the American Immigration Council, was brought against the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice that oversees the immigration courts. For years, EOIR’s internal complaint process has been widely criticized. A 2010 report by the American Bar Association highlighted EOIR’s lack of transparency, stating that information about the agency’s complaint process and disciplinary action taken is “generally not available” to the public. The secretive nature of the complaint process raises the question of whether EOIR is able and willing to appropriately discipline judges within its ranks.

    In an effort to obtain more information regarding EOIR’s complaint process, AILA submitted a Freedom ...

    Published on 08-12-2016 10:34 AM

    China 2016: Thoughts Following My Latest Visit to China

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    As is virtually always the case, things are changing in the China market. The China market of 2016 is very different than it was in 2015, which was very different than it was in 2014…you get the idea.

    In this blog, I will outline my most recent observations. I will not go into detail on any of them since many readers of this blog will be attending our seminar on September 9 in Philadelphia. We will be expanding on all of these topics during that seminar.

    1. Although there is some concern regarding the extension of the regional center program, the far bigger concern is the quota backlog. There is great interest in the possibility of recapturing unused employment-based numbers with some going to EB-5.
    1. There is justifiable concern – if not alarm – among Chinese agents regarding failed and fraudulent projects. Many agents are insisting that regional centers or developers have systems in place to ensure ongoing oversight of the flow and use of the investors’ money, of documentation of job creation, of identification of changes ...

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