Current Immigration Topics


1. Job market tightening indicates nation needs more workers

Reuters reported on Christmas Eve, “U. S. jobless claims near 42 year low as labor market tightens,” a strong indication that inflation will haunt the nation in the coming year unless more workers can be found. The Reuters report showed that initial state unemployment benefits claims were at levels not seen since late 1973; that the national unemployment rate was still at a 7 ½ year low of 5%; that it has dropped 7/10 of a percentage point this year; and is at a range that many Federal Reserve officials see as consistent with full employment. The figure may actually be lower as this writer notes that with the rise of the Internet and the many self-businesses that can be conducted from home instead of the traditional workplace, a sizable population may or may not be disclosing their employment. Extrapolating from the report, more workers are needed to expand the economy and fill needed positions – otherwise the productivity of the nation will suffer as businesses will be constricted and not be capable of further growth without more manpower. Politicians of all stripes are encouraged to consider the report along with the reasons behind the Federal Reserve’s raising interest rates in December before thinking of placing more restrictions on nonimmigrant worker visa programs such as H-1 and L-1 and the permanent employment-based immigrant visa categories.

2. January visa chart letdown

In connection with the Reuters report of initial unemployment benefits claims being at a 42 year low and this nation being at what many consider full employment, the January visa chart is again a terrible letdown to those seeking U. S. jobs who are faced with or already in long employment-based quota waiting lists, especially those born in China and India. The concept of the current 2 visa charts every month, a “filing date” and a “final action date” chart was a brilliant idea, originating from the President’s Executive Action of November 20, 2014, to make optimal use of the numbers of visas available under law and to allow those people caught in the quota backlogs to file in advance for adjustment of status. Such a move once fully realized would ensure that all immigrant visas could be used which were assigned in an annual fiscal year instead of being wasted (over 200,000 over the years) and that applicants in the States could file I-485 applications ahead of time reaping the benefits of employment authorization, worker mobility (albeit limited), ability to travel in the interim, and to have their cases approved at the same time as those seeking consular processing abroad (currently I-485 applicants must wait at least 6 months longer than consular processing applicants for final approval). A promising start was made at the beginning of the 2 charts system in October 2015 with the Department of State (DOS) doing its part in the dates for the” filing date” charts for family and employment-based cases being flung out far ahead of dates for “final action date” charts only to see U.S.C.I.S. rein in the net, force DOS to change important “filing” dates, and since then act very conservatively in only allowing I-485s to be filed in employment-based cases where priority dates meet the “final action date” chart.

Such is again the case with the January 2016 chart in which under U.S.C.I.S. pressure, DOS has not dared to move the dates for filing forward for China and India since October 2015 for 2nd and 3rd preference employment cases (EB-2 dates for China and India remain 1/1/13 and 7/1/09, while EB-3 dates remain 10/1/13 and 7/1/05 respectively). In the meantime, final action dates continue to bounce up and down like ping-pong balls and are expected to again fluctuate wildly as DOS will not have enough forward vision from U.S.C.I.S. to set reliable immigrant visa dates. Also to be noted is the discouraging effect such long quotas and uncertainty has on the highly educated foreign students that the U. S. has trained, many of whom have left the U. S. rather than suffer such mind-numbing delays and restrictions under U. S. immigration law. Undoubtedly we have already watched the exit of a discouraged future Elon Musk (TESLA/Space X), Sergey Brin (GOOGLE), I.M. Pei (Architect , East wing National Gallery of Art, JFK Memorial Library) or Joseph Pulitzer (Pulitzer Prize).

3. Court order vacating STEM program developments.

Mitt Romney in his presidential run of 2012 thought so highly of those foreign students who had been trained here that he said, “If you get an advanced degree here, we want you to stay here – so we will staple a green card to your diploma… We want the best and brightest to enrich the nation through the jobs and technologies they will help create.” Yet in 2015 and 2016, the future of the best and brightest foreign students in the technologies that the U. S. most needs (Science Technology Engineering Math), the STEM fields, is endangered by a union challenging the legitimacy of the program. As strange as it sounds at a time when other nations would welcome the STEM graduates with red carpets and open arms, federal judge Ellen Huvelle in Washington Alliance of Technology Workers v. U. S. Department of Homeland Security vacated the STEM rule but stayed the vacatur until February 12, 2016, to allow DHS time to issue a regulation with a comment period. The U. S. government on December 22, 2015, asked the court to prolong the stay for another 3 months on grounds that it needed more time to review the 50,500 + comments received. The other side of the coin is that the plaintiffs further appealed the judge’s order to the DC circuit saying that DHS effectively created a rogue guest worker program when it instituted the STEM program in 2008, and the Washington Alliance filed its opening brief on Monday, December 21, 2015.

The U. S. has always needed STEM workers and will need them even more now that the economy has heated up. Any further negative rulings against the STEM program by either Judge Huvelle or the DC circuit court would be a self-inflicted dagger wound to the body politic.

4. San Bernardino – fiancée and visa waiver programs

In the wake of the shootings in San Bernardino, California, on December 2, 2015, by a self-proclaimed radicalized Muslim couple, the visa waiver program was amended as part of the Appropriations Bill on December 18, 2015, to exclude all nationals (not merely citizens) of Syria, Iraq, Iran, or Sudan or other designated countries alleged to be supporting terrorism or anyone from any country who had traveled to those countries since March 1, 2011, with few exceptions although DHS may waive exclusion if it would be in the law enforcement or national security interests of the United States. A review is also being carried on of the fiancée program with politicians finger-pointing at DHS for slipups in approving the petition and DOS and DHS for not screening the fiancée’s social media postings which would have revealed that she had been radicalized. The implications of screening social media postings go far beyond the fiancée program as the same concerns are applicable to all entrants to the country, whether visiting, doing business, working temporarily, or staying here permanently. No one knows what the ultimate cost to the country would be if everyone was so screened, and the articles that this author has seen seemingly have no realistic idea, but our guess is that the ultimate cost would be in the hundreds of billions of dollars not only in terms of the actual dollars spent implementing such screening and the errors by various officers exercising such authority, but for the amount of trade and tourism dollars ultimately lost by people who either would not want to see their backgrounds so intensely investigated to enter this country, or risk being among those with higher rates of rejection, or could not afford to wait for the inevitable additional delays attendant to such screenings. It should be noted that such screenings would probably not have stopped an incident like San Bernardino as the American husband had already been radicalized and according to press reports, plotted with his neighbor Enrique Marquez to carry out shootings on a college campus and create mayhem on the LA freeways in 2012.

5. Supreme Court Acts on Texas v. USA

The Deferred Action for Parental Accountability (DAPA) Program appears to be alive and kicking with the Supreme Court handing a setback to the 26 suing states on December 1, 2015, in denying their request for an extension of time for briefing for 30 days and only allowing 8 (United States v. Texas, 15-674). The significance of the time differential is that the 8 days restriction allows the justices to consider taking up the case in this term which ends in June 2016 rather than in 2017. The court will meet in January to consider whether it should be placed on this term’s docket, and if so allowed, the case will likely be decided in June 2016. If favorable to the government, the Administration would have time to implement the program in the last months of President Obama’s term. The DAPA program is part of the President’s Executive Actions of November 20, 2014, to bring temporary relief to long-term undocumented residents of the U. S. who meet the conditions of having been continuously present since January 1, 2010; were illegal as of November 20, 2014; were physically present in the U. S. on November 20, 2014, and when making the request for DAPA privileges; are not enforcement priorities under the priority enforcement program (PEP) of DHS; and have a U. S. citizen or permanent resident child or son or daughter of any age who was either born here or became a permanent resident or U. S. citizen by November 20, 2014. Such parents would be eligible for employment authorization and deferral from removal for a period of 3 years.

6. EB-5 regional investor program reprieved in current form, but beware!

The EB-5 program was extended without change as part of the Appropriations Bill package signed into law by the President on December 18, 2015. The date of extension is until the end of the fiscal year, September 30, 2016, although the time can be cut short if a bill is passed into law before that date or a significant executive action is taken. There was much dissatisfaction with the program being extended in such fashion since there were many issues that members of Congress believed had to be resolved given the weaknesses and lack of oversight in the program. Potential investors are encouraged to act expeditiously rather than wait for further developments. The future of the program will become increasingly restrictive with the amount of required investment going steeply higher for both direct (individual) and regional center programs, and potentially many amendments to the regional center program in areas of more scrutiny for investor and regional center fraud, gerrymandering of districts to form desired $500,000 targeted employment areas (TEAs), limits to state authority in designating areas as TEAs, use of temporary workers to fulfill the hiring requirement, percentage of permanent staff to be required versus temporary workers to meet the required hiring count, and who can be directly or indirectly involved in running or managing a regional center, etc.

Reprinted with permission.

About The Author

Alan Lee, Esq. the author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.