by David Isaacson, Partner with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

Kansas Secretary of State Kris Kobach, rumored to be a potential Secretary of Homeland Security in a Donald Trump Administration, met with Mr. Trump last Sunday, apparently to discuss some of his plans for the Department.  During a media photo opportunity, Mr. Kobach held a binder and stack of papers in such a way that a page was left partially visible and allowed an Associated Press photographer to capture some of the “Department of Homeland Security Kobach Strategic Plan for First 365 Days.”  Although there are many horrifying things about that plan, some of which this author may address further in future blogs, one aspect of Kobach’s plan that particularly caught my attention was the proposal to “Add extreme vetting questions for high-risk aliens: question them regarding support for Sharia law, jihad, equality of men and women, the United States Constitution.”  This blog provides an initial reaction to that proposal.

It appears that by “high-risk aliens”, Kobach was likely referring predominantly to aliens from countries with a large Muslim population, or perhaps just Muslims themselves.  In the immediately prior item of his outline, Kobach describes the NSEERS (National Security Entry-Exit Registration System) program he wants to “update and reintroduce” as “track[ing]” “all aliens from high-risk areas.”  In its original form, NSEERS applied to men over the age of 25 from 25 countries, all but one of which was a Muslim-majority country.  (Specifically, NSEERS included nonimmigrants from Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen, and the one exception, North Korea.)  Thus, Kobach evidently associates “high-risk areas” predominantly with Muslim countries.  It is not entirely clear whether by “high-risk aliens” he means to describe only those from the so-called “high-risk areas”, or whether he would cast a broader net.

Of the four questions that Kobach proposes to ask the “high-risk aliens”, the question about “support for  . . . the United States Constitution” is comparatively unobjectionable, other than with respect to the discriminatory context in which he apparently proposes to ask it.  Applicants for naturalization as U.S. citizens are already required by law to be “attached to the principles of the Constitution of the United States,” INA 316(a).  The Form N-400 Application for Naturalization already asks applicants, “Do you support the Constitution and form of government of the United States?”  One might perhaps take issue with Kobach’s apparent proposal to expand use of this question outside the naturalization context in which it was statutorily authorized, but it is the other three proposed questions that are truly problematic.

To ask Muslim immigrants about their “support for Sharia law” is rather like asking Jewish immigrants about their “support for Halacha”, or Catholic immigrants about their “support for canon law”, or other Christian immigrants about their “support for Biblical principles”.  While the Code of Canon Law of the Catholic Church has the advantage from an American perspective of having an English common name, many Americans may not realize that Sharia is merely an Arabic word for traditional Muslim religious law, just as Halacha – another word with which many Americans may not be familiar – is merely a Hebrew word for traditional Jewish religious law.  Different Muslims will have different interpretations of what “Sharia law” has to say about a particular subject, just as different Jews will have different interpretations of what “Halacha” has to say about a particular subject.  (Some subgroups of Muslims may entirely dispute the applicability of Sharia as historically understood, just as Reform Judaism differentiates between its approach to one’s relationship with God and the approach suggested by Halacha.)  Some may cite Sharia to justify horrific actions, but then again Yigal Amir claimed that his assassination of Israeli Prime Minister Yitzhak Rabin was justified by Jewish religious law; in neither case is it appropriate to charge all followers of the religion or some version of its laws with support for the horrific actions in question.   To ask about “support for Sharia law” sheds only very limited light on what the person being asked actually believes, even if we indulge the questionable assumption that anyone’s religious beliefs are the proper concern of the U.S. government.  Perhaps it would be a different story if Kobach proposed to ask a more nuanced question about whether those seeking to come to the United States believed that any and all religious law should be subordinate to democratically enacted civil law, but it does not appear that this is what he has in mind.

Kobach’s proposed question about “jihad” suffers from a somewhat similar defect.  The word “jihad” literally means “struggle” or “effort”, and the BBC has said that “Many modern writers claim that the main meaning of Jihad is the internal spiritual struggle”, although there is also support for interpreting the word to mean a military struggle.  The Merriam-Webster dictionary recognizes multiple meanings of the word, ranging from “a holy war waged on behalf of Islam” to “a personal struggle in devotion to Islam especially involving spiritual discipline” to “a crusade for a principle or belief”.  We do not assume that supporters of Campus Crusade for Christ will use violence in their struggle to spread Christianity, nor do we ask Christian prospective immigrants their opinion of the medieval Crusades.  If Kobach had proposed to ask a more general question about support for the use of violence, or even the use of violence motivated by perceived religious conflict, that would be a different story, but his proposed inquiry only covers this single word.  Norwegian far-right terrorist Anders Behring Brevik believed that he was at war with Muslims.  Had we known this, does Kobach believe we should not have excluded Brevik if he had applied to come to the United States, but should have excluded any Muslim victims of his who supported internal spiritual struggle?

Even Kobach’s proposed question about “equality of men and women”, innocuous though it may seem and tied to an important American civic value though it may be, has a problematic dimension in the context of questioning that would apparently be directed towards religious beliefs.  A number of religions that Kobach presumably does not wish to target do not provide for strict equality of men and women, in the sense of the rights of men and women in a specifically religious context.  Less than a month ago, Pope Francis ruled out the possibility of a woman ever serving as a Catholic priest.  Female rabbis are extremely rare in Orthodox Judaism, with one first taking the title just this year, and with one main U.S. Orthodox rabbinical group having purported to ban the practice roughly a year ago, although female rabbis have been common in the Reform, Reconstructionist, and Conservative movements of American Judaism over the past several decades.  In many Orthodox Jewish interpretations of Halacha, ten men, not women, are required to make up a “minyan”, or quorum to say certain prayers, although the Committee on Jewish Law and Standards of the Rabbinical Assembly in the Conservative Movement has ruled that women can count towards a minyan.  Some Christians believe that wives should submit to their husbands.  Could followers of those beliefs truthfully say, under penalty of perjury, that they supported full equality of men and women?  While I vehemently disagree with those who would deny women full religious equality, and I personally favor a more gender-egalitarian approach, it seems to me that it would represent a major break with our own civic traditions for the U.S. government to exclude immigrants who hold the less egalitarian Christian or Orthodox Jewish beliefs discussed above—or the Muslim analogue of those beliefs.

Kris Kobach’s proposed “extreme vetting” questions would not be the first time the U.S. government has utilized a problematically worded question against a minority group.  In the Japanese-American internment camps of the Second World War era, even U.S. citizens of Japanese descent were asked whether they would “forswear any form of allegiance or obedience to the Japanese emperor, or any other foreign government, power, or organization?”  Many of these citizens “resented being asked to renounce loyalty to the Emperor of Japan when they had never held a loyalty to the Emperor.”  (The question might be compared in this respect to the old example of an unfair yes-or-no question, “have you stopped beating your wife?”)

The internment of Japanese-Americans during World War II has been widely recognized as a horrible mistake, and survivors of the camps were awarded restitution in 1988 as well as given a formal apology by the U.S. government.  However, one prominent supporter of Donald Trump recently made news by suggesting that the internment of Japanese-Americans was a “precedent” for a registry of Muslims.  That supporter had, in fact, raised the analogy in support of Mr. Kobach’s proposal to reinstate NSEERS, which is related to his proposed “extreme vetting” questions as discussed above.  The parallels are extremely troubling.  While it may seem that “extreme vetting” questions regarding aspects of religious belief are some distance away from actual internment of a minority group, it is important, as the Supreme Court said in West Virginia State Board of Education v. Barnette of a different attempt to enforce government-sponsored doctrine (regarding a mandatory flag salute), that we “avoid those ends by avoiding those beginnings.”  This is not a road down which the United States should travel.

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

The Department of Homeland Security issued final regulations on November 17, 2016 entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” to provide relief to high skilled workers born mainly in India and China who are caught in the crushing backlogs in the employment-based preferences. While the final rule does not make too many modifications from the proposed rule, I will highlight some of the provisions that can potentially alleviate the problems caused by the long waits. This blog’s focus is not to explain every aspect of the proposed rule, and refers readers to Greg Siskind’s excellent summary, but will analyze some of the most relevant provisions that affect backlogged immigrants.

The centerpiece of the rule is to provide a basis to apply for an employment authorization document (EAD) to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and whose priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

It appears from the discussion in the preamble that compelling circumstances have to be out of the ordinary. The fact that the process may be taking a long time does not constitute a compelling circumstance. The DHS also stated in the preamble that mere unemployment would not rise up to the level of compelling circumstances, but more will have to be shown such as that the unemployment was as a result of a serious illness or employer retaliation. However, under the “other substantial harm” discussion, a beneficiary who loses a job based on the closure of a business where the beneficiary has been applying a skill set in high technology for years (such as artificial intelligence) and will not be able to establish that the same industry exists in the home country would be able to demonstrate compelling circumstances.  Interestingly, compelling circumstances could also include circumstances relating to a business startup, and that the beneficiary of an approved I-140 petition through the national interest waiver would be able to demonstrate compelling circumstances. Similarly, physicians working in medically underserved areas may also be able to demonstrate compelling circumstances.

Despite the extensive discussion of what may constitute compelling circumstances in the preamble of the rule, the plain language at 8 CFR 204.5(p)(iii) simply states:

When making a case for compelling circumstances, it should be argued that the plain language of the regulation takes precedence over the preamble. Until there are administrative interpretations, the term “compelling circumstances” is like a blank canvass, which can be colored with any sort of creative and credible argument. The applicant making the argument for compelling circumstances can invoke the U.S. Supreme Court’s opinion in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) for support that it is the plain language of the rule that governs:

Bowles v. Seminole Rock & Sand Co., 325 U.S.  410, 413-414 (1945)
In Samirah v. Holder, 627 F.3d 652, 659 (7th Cir. 2010), the Seventh Circuit distinguished other Federal Register text in a regulatory announcement from the regulation itself. The following passage from the decision is worth noting:

 Samirah v. Holder, 627 F.3d at 659 (emphasis added).

The EAD may be renewed on an annual basis if such compelling circumstances continue to be met, even if it is a different sort of compelling circumstance from the initial, or if the beneficiary’s priority date is within one year of the official cut-off date.

How will this work? The job offer supporting the I-140 petition must still be valid. In other words, there is no legal basis under the final rule to port to another job on a standalone I-140 petition. If the employer withdraws the job offer supporting the I-140 petition, the worker could have another employer offer a position, and sponsor the worker through a new labor certification and I-140 petition. The priority date from the old I-140 petition can be recaptured.

Unless the worker is maintaining a valid nonimmigrant status (or can seek the exemption under either INA 245(i) or 245(k)), he or she will not be able adjust status in the United States and would need to process the immigrant visa at an overseas US consulate. The worker’s stay under a compelling circumstances EAD will be considered lawful presence, and will not trigger the 3 or 10 year bars upon departure. Alternatively, the worker can leave and return to the United States in a nonimmigrant status such as an H-1B, and then file for adjustment of status here. It is unfortunate that the rule does not provide for routine travel through advance parole while on a compelling circumstances EAD. The applicant will need to show urgent humanitarian reasons or a significant public benefit in order to seek advance parole.  A person who returns to the United States under advance parole will not be able to adjust status under INA 245(k) as this provision requires a lawful admission in order to adjust status. A person on advance parole is considered paroled and not lawfully admitted into the United States.

Although the centerpiece proposal is disappointing as the basis for EAD need not have been cabined by compelling circumstances, there are some bright spots in the rule. I-140 petitions that have been approved for at least 180 days would not be subject to automatic revocation due to a business closure or withdrawal by the employer. DHS has invoked its discretion under INA 205 to retain an I-140 even if an employer withdraws it or the business closes. This assurance would allow workers who have pending I-485 applications for 180 days or more to safely exercise job portability under INA 204(j), although this dispensation is not possible if USCIS revokes the I-140 based on a prior error. Even those without pending I-485 applications could take advantage of this provision to obtain H-1B extensions beyond six years under the American Competitiveness in the 21stCentury Act (AC 21). They would also be able to keep their priority dates if a new employer files another I-140 petition. The ability to retain the original priority date is crucial for those in the EB queues, as they do not lose their place even if they move jobs and again get sponsored for green cards through new employers.

The proposed rule provides key grace periods to nonimmigrant visa holders. It provides for a 10 day grace period at the start and end of the validity period, and  would also allow workers whose jobs are terminated a grace period of 60 days if they are holding E-1, E-2, E-3, H-1B, H-1B1, L-1 or TN status. The 60 day grace period is indeed a salutary feature. Up until now, whenever a worker in nonimmigrant status got terminated, they were immediately rendered to be in violation of status. There was also no grace period to depart the United States. So, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all times, that s/he had violated status. Derivative family members, whose fortunes are attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60 day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to find another employer who can file an extension or change of status within the 60 day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school.

On a related note, the final rule also provides whistleblowers who report H-1B violations with protection from retaliation. Evidence of such retaliation may be presented when submitting an extension or change of status application, which would be considered as an “extraordinary circumstance” under 8 CFR 214.1(c)(4) and 8 CFR 248.1(b) when considering granting a late filing.

There will also be automatic extensions of an EAD for 180 days if filed on the same basis as the initial EAD, but will take away the mandatory processing time for an EAD within 90 days. The lack of a 90 day mandatory processing timeframe may result in delays of the issuance of the initial EAD.

Another noteworthy feature is the ability of nonprofit organizations affiliated to universities to seek H-1B cap exemption. Till now, the USCIS has insisted on an affiliation based on shared ownership or control by the same board or federation, or where the nonprofit is attached to the university as a member, branch, cooperative or subsidiary. Under the new rule, it can also be demonstrated that the “nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity ad the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.” By way of example, if the nonprofit entity enters into an agreement to house students of the university as interns, it will now be possible for this nonprofit entity to show that it is affiliated to the university, and thus seek H-1B cap exemption status.

We had written a series of blogs when the proposed rule was published, such as here, here, and here.  In one blog we were concerned that beneficiaries of  I-140 petitions might not receive notice when USCIS revokes their I-140 petition. The USCIS has the authority to revoke the I-140, for example, when the “petition approval was in error” pursuant to 8 CFR 204.5(e)(2)(iv), and so should no longer confer a priority date.  USCIS would look to the I-140 petitioner for further information, even though that petitioner might lack any interest in providing it. A hostile petitioner who would have wished to withdraw a petition, or a petitioner which had innocently gone out of business, could give rise to a revocation by failing to respond to notice from USCIS, and in so doing undermine the exercise of the beneficiary’s ability to exercise §204(j) portability. This is not merely a theoretical concern. A recent precedential opinion of the U.S. Court of Appeals for the Second Circuit, Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015) and a host of other decisions require notification to be provided to either the I-140 beneficiary or the new employer. In the preamble to the final rule, the DHS acknowledges that several commenters raised this issue, but stated that it is unable to address these concerns in the final rule because they are outside the scope of this rulemaking, although DHS is considering separate administrative action outside the final rule to address these concerns. In the absence of a rule requiring notification to the beneficiary, those affected by revocations due to lack of notice should continue to invoke precedents such as Mantena v. Johnson when challenging revocations.

The rule also confirms the ability of the beneficiary of a labor certification that was filed 365 days prior to the end of the sixth year under section 106(a) of the American Competitiveness in the 21st Century Act (AC 21) to seek a one year H-1B extension beyond the sixth year. The rule also confirms the ability of the beneficiary of an approved I-140 petition to seek a three year extension beyond the sixth year if the priority date has not become current. What is new is that the extensions under both sections 106(a) and 104(c) of AC 21 cannot be sought if the beneficiary fails to file for adjustment of status or apply for an immigrant visa within 1 year upon the visa becoming available, i.e, when the priority date becomes current with respect to the final action date in the visa bulletin. In the event that the 1 year period is interrupted by the unavailability of visas, a new 1 year period shall start to run when an immigrant visa again becomes immediately available. USCIS may excuse a failure to file if the alien establishes that the failure to apply was due to circumstances beyond his or her control. Now here lies the problem. If the beneficiary is using an old I-140 petition of a prior employer for an AC 21 H-1B extension with a new employer, and the priority date on that old I-140 petition becomes current, the beneficiary must apply for adjustment of status within one year of visa availability. If the I-140 petition is no longer being supported by the job offer, and was being used to only seek an AC 21 extension, the beneficiary must have the new employer file a new labor certification and I-140, and recapture the old priority date. This process may take over a year. It is hoped that the USCIS exercises its discretion favorably in excusing the failure to file within 1 year when the beneficiary is in the process of having a new labor certification and I-140 processed on his or her behalf.

On a related note, the final rule shot down suggestions, as provided in our blog, that if there were two H-1B spouses, and only one spouse was the beneficiary of a labor certification or an I-140 petition, then both spouses can obtain AC 21 extensions as there is clearly a legal basis. The other spouse would have to now change to H-4 status, and separately apply for an EAD as an H-4 spouse, which will result in delays.

The rule also confirms the ability of an I-485 adjustment of status applicant to be able to port to a same or similar job if the I-485 has been pending for 180 days or more, but it now for the first time requires the applicant to complete Form I-485 Supplement J, with supporting material and credible documentary evidence to demonstrate that either the employment offer by the petitioning employer is continuing or “the applicant has a new offer of employment from the petitioning employer or a different employer, or a new offer based on self-employment in the same or similar occupational classification as the employment offered under the qualifying petition.” Interesting, the rule confirms what was previously confirmed in a 2005 USCIS memo by William Yates, but never completely followed, is the ability of an adjustment applicant to even port off an unapproved I-140. Of course the petition must be ultimately approved, but the rule states that it can be approved without regard to establishing the original employer’s continuing ability to pay after filing and that the I-140 petition was approvable at the time of filing. In defining same or similar occupation, the rule says it “means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.” The rule broadly defines “same or similar occupation” without regard to similarities in SOC codes that was indicated in a USCIS Memo on Portability, which again would provide flexibility for a backlogged beneficiary to easily port to a new job. One should argue that a promulgated rule takes precedence over a policy memo, which insists on determining same or similar through the SOC codes of the old and the new job.

The final rule is not perfect, but does provide several benefits to high skilled workers. It would have been preferable if EADs could have been issued to beneficiaries of I-140 petitions without demonstrating compelling circumstances. Until Congress acts, there can be other administrative reforms, as we commented,  such as moving the filing dates in the visa bulletin much ahead of the final action dates so that more beneficiaries of approved I-140 petitions can file I-485 adjustment of status applications. Once an I-485 is filed, one can exercise job portability under INA 204(j) and also obtain an EAD and travel benefits. Life as a pending adjustment of status applicant is preferable to life on a compelling circumstance EAD. The rule will also take effect on January 17, 2016, three days ahead of the inauguration of President Trump. Although Trump as a candidate promised to do away with regulations from the Obama administration, it will be difficult for the new administration to repeal this rule as it applies only to immigrant workers who are already here and in the pipeline for the green card. They will anyway get the green card, and have been in the United States legally. The United States must be an attractive destination for high skilled foreign workers. Our immigration system does not meet this objective as workers from countries like India and China have to wait decades for the green card.   Even if the rule survives the Trump administration, much more will need to be done to alleviate the backlogs for skilled immigrant workers who have contributed so much to the United States.

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

Our role as immigration lawyers has never become more important since the morning of November 9, 2016. Notwithstanding his conciliatory speech after his upset win, President elect Donald Trump will have to deliver on some of his campaign promises that got him votes such as building a wall, extreme vetting and cancelling Obama’s executive actions such as the Deferred Action For Childhood Arrivals (DACA) program.

We are already getting a glimpse of the people who are being selected to be part of the immigration transition team. Kris Kobach has joined the team. He is avowedly anti-immigrant and was the architect of state enforcement laws, including Arizona’s notorious SB 1070, which includes the notorious “show me your papers” provision. SB 1070 authorizes local law enforcement to ask people for proof of their immigration status when there is “reasonable suspicion” that they might not be in the country legally. Kobach also coined the idea of “self-deportation” through attrition, which assumes that undocumented immigrants will leave on their own if the laws are applied harshly against them.

Another person who has joined the transition team is Danielle Cutrona who is Senator Jeff Sessions’ counsel on the Judiciary Committee. Senator Sessions is opposed to both legal and illegal immigration. He believes that even legal immigrants are bad for the United States.  When you have these sorts of people inducted into the immigration transition team, one can only imagine that they will want to implement as much as Trump’s vision on immigration, which he articulated in a fiery anti-immigration speech in Phoenix, Arizona:

1. Begin working on an impenetrable physical wall on the southern border, on day one. Mexico will pay for the wall.
2. End catch-and-release. Under a Trump administration, anyone who illegally crosses the border will be detained until they are removed out of our country.
3. Move criminal aliens out day one, in joint operations with local, state, and federal law enforcement. We will terminate the Obama administration’s deadly, non-enforcement policies that allow thousands of criminal aliens to freely roam our streets.
4. End sanctuary cities.
5. Immediately terminate President Obama’s two illegal executive amnesties. All immigration laws will be enforced – we will triple the number of ICE agents. Anyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws and to have a country.
6. Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.
7. Ensure that other countries take their people back when we order them deported.
8. Ensure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports.
9. Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.
10. Reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.
    

It may not be possible for Trump to implement his entire vision, as he would also need the cooperation of both houses of Congress. For example, Congress would have to agree to provide funding for Trump’s wall. However, when Kobach was asked about the wall, Kobach answered that there is “no question” that it would be built. “The only question is how quickly will get done and who helps pay for it.” Still, one is hearing that there is hedging on the election promises and the wall may no longer get immediate priority. While it would be nice to hope that all that Trump said was election blather, he has also been advised by the Center for Immigration Studies (CIS) whose goal and mission is to severely curtail immigration. If you take a look at their talking points to the next President on how to severely restrict immigration through administration actions, you will know what I mean. It is a scary 79-point list that if implemented will totally gut the system the way we know it.   Therefore, it would be a mistake to wait and see rather than taking action right away.

The low hanging fruit  is to cancel DACA (although I would prefer if they rather built the wall but left DACA untouched). There are hundreds of thousands of young people who have received benefits under DACA and have done extremely well in their careers. It would be a tragedy if DACA was rescinded, which is easy to do, since the policy was based on a memo of the Obama administration. Still, it will look bad on the Trump administration and the Republican party if this happens since jeopardizing the lives and careers of DACA recipients will generate much sympathy. Also, DACA recipients are active and know how to mobilize to protect themselves. Indeed, it is because of their effective activism that they were able to convince the Obama administration to implement DACA in the first place. Needless to say, DACA recipients should consider alternatives as soon as possible. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule (and since it is a regulation in the federal register, it cannot be cancelled as easily as DACA), which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  And even if DACA is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

Vulnerable immigrants need advocates more than ever before to defend and protect them. We have a new and renewed mission, and this should propel us forward and give us a new purpose. Trump’s immigration advisors will likely appoint hostile judges, officers and leaders in charge of immigration policy. He will be harsh in the enforcement of the immigration laws, and is likely to restrict business immigration in favor of an America first policy. There is a possibility that the Obama administration’s prosecutorial discretion policies may also get cancelled and people will be more susceptible to deportation. The proposed extreme vetting can become a nightmare, and for some, it could be a proxy for not being allowed to come into the United States at all. Immigration lawyers need to be strategic regarding advising clients to apply for citizenship and travel out of the US.  We will use our legal acumen and every skill to protect our clients and our client’s businesses. We will be the shield for them against all the hateful anti-immigration rhetoric that is bound to manifest itself even more from his supporters. We will do what we do best with a renewed sense of purpose.

Finally, we sincerely hope that Donald Trump as a President with respect to his immigration policies will be different from Donald Trump as a candidate. A new President elect should herald optimism in everyone rather than cause fear to hundreds of thousands of vulnerable immigrants. There has been no statement from Trump to allay their fear. Why should we think that Trump has changed after all the hateful rhetoric he spewed against immigrants and refugees? Just like a leopard does not change its spots, a bigot will always remain a bigot. The fact that Kobach and Cutrona have joined the team only heightens such fears. After 9/11, although we feared the worst, there were no drastic limits or moratoriums due to the resilience and strength of the immigration movement. 11/9 poses yet another grave challenge, but we are ready to brace for the fight to defend immigrants in the age of Trump and xenophobia. And prevail we must as the cause is righteous and just.

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

The United States has always prided itself as a nation of immigrants. Unfortunately, however, there has been disturbing rhetoric against immigrants and refugees in the current presidential election season. This has been exemplified in racist taunts and epithets against Hamdi Ulukaya, a Turkish immigrant of Kurdish descent, who is the founder of the highly successful Chobani business that makes Greek yogurt and employs about 2,000 people, some of whom are refugees. Chobani’s annual yogurt sales are $1.5 billion.   According to a recent New York Time article, false stories have been published by right wing news outlets like Brietbart News and WND claiming that Mr. Ulukaya wants “to drown the United States in Muslims.” Some articles have also drawn a connection, again falsely, between Chobani hiring refugees and a spike in tuberculosis. This has led to unfortunate calls on Facebook and Twitter to boycott Chobani.

The Alliance of Business Immigration Lawyers, better known as ABIL,  of which I am a member, has in a press release rightly condemned such xenophobic attacks against a successful immigrant entrepreneur who has created jobs in the United States. It is already difficult for a foreign entrepreneur to obtain legal status in the United States under the current broken immigration system, and to then be successful and create thousands of jobs. Mr. Ulukaya is a shining example of an immigrant entrepreneur who has overcome these obstacles to benefit the United States. “Foreign born entrepreneurs like Mr. Ulukaya must be welcomed rather than attacked in such a shameful and despicable manner,” ABIL’s President Steve Garfinkel stated.  “These attacks go against the grain of what America represents – a nation that has always welcomed those to its shores who wish to better themselves and contribute to the country.”

The attacks against Chobani’s founder is only one such unfortunate incident. Donald Trump has used hateful rhetoric against immigrants from the start of his campaign. While every prior Republican nominee in recent times has spoken in glowing terms about immigrants being an asset to America, Trump emphasized only on the dark aspects, and hyped up fears of immigrants being a threat to the American people. This is despite the fact that studies have proved that newcomers are less likely to commit crimes than the native population. Trump was also fond of reading the lyrics from Al Wilson’s 1968 R&B hit song “The Snake” in his campaign rallies.  While this is a catchy tune, Trump has now corrupted the song by associating it with his opposition to Muslims. He first called for a ban on Muslims entering the United States, including Syrian refugees, and recently modified it by calling for a suspension of immigration from areas of the world when there is a proven history of terrorism against the United States or its allies. When Trump kicked off his campaign on June 16, 2015, he gave  a speech in which he called immigrants from Mexico rapists and criminals. “When Mexico sends it people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people,” he said. He has been proudly proclaiming till the very end that he would build a big wall on the Mexico-US border, and that Mexico would eventually pay for it.

It is no small wonder that there has been a surge of early Hispanic voters in states like Nevada and Florida that could potentially lead to Trump’s defeat.  Regardless of one’s party affiliation, it is hoped that the results of this election affirm that all immigrants be respected for the benefits they bring to the United States, whether as entrepreneurs or as hard working employees. The results should also speed up much needed and urgent reform of the immigration system that can tap into the talents of more immigrants like Mr. Ulukaya who bring growth and prosperity to America.  Finally, the recent revelation that Melania Trump was paid for modeling assignments in the United States while she was still on the B visa, and prior to obtaining the H-1B visa, goes to show that the line between legal and illegal immigrants is fuzzy at best. Someone in legal status can fall out of status and someone who is illegal can suddenly become legal. This is not a black and white issue as Trump and his anti-immigrant enablers have seen it.  The following extract from the Supreme Court’s decision in Plyler v. Doe, 457 US 202 (1982), which held that undocumented children could not be deprived of a public education:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

The lessons from these elections should point lawmakers to recognize that putting up a wall is not a solution; rather the best way to reduce illegal immigration, and reforming the system as a whole, is by providing more pathways to legal immigration into the United States. It would also be a good idea for any future presidential candidate to express compassion towards immigrants and refugees, consistent with America being great because of its immigrants, rather than engage in hateful rhetoric. It does not pay during election time.