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The U.S. Supreme Court Allows President Trump’s Most Recent Travel Ban to take Effect

12/5/2017

By: Avi Friedman, Partner of ABIL Lawyer, Bernard P. Wolfsdorf
Wolfsdorf Immigration Blog

On Monday, December 4, 2017, the Supreme Court issued two orders staying lower courts’ (Maryland & Hawaii) preliminary injunctions of President Trump’s September 24, 2017 presidential proclamation/travel ban. Accordingly, President Trump’s most recent travel ban will go into effect while the appeals are pending. The Supreme Court encouraged the appeals courts to quickly decide whether the most recent travel ban was lawful.

As a recap, the September 24, 2017, Presidential Proclamation on Enhancing Vetting Capabilities & Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats indefinitely blocks the entry for certain individuals from eight countries: Iran, Iraq, Libya, Chad, North Korea, Syria, Somalia, and Yemen (Sudan had originally been included).

A summary on those who are impacted by the travel ban is below:

Travel Restriction for Nationals of Eight Countries – Chad, Iran, Libya, North Korea, Somalia, Venezuela, Syria, and Yemen

General Conditions

Only applies to individuals who are (i) outside of the U.S. on the day the travel ban goes into effect, and (ii) who do not have a valid visa on the day MB-4 goes into effect, and (iii) who have not obtained a waiver under Section 3(c) of the Proclamation
Does NOT apply to:

Lawful permanent residents (green card holders);
Individuals admitted or paroled into the U.S. on or after the effective date;
Those with a document other than a visa that allows them to travel to the U.S., if the document is dated on or after the effective date;
Dual-nationals traveling on a passport from a non-designated country;
Individuals granted asylum;
Refugees already admitted to the U.S.; or
Individuals granted withholding of removal, advance parole, or protection under the Convention against Torture

Previously-Impacted Countries – Restrictions Effective Immediately:

Iran

Effective immediately, immigrant and nonimmigrant entry are suspended for Iranian nationals except for those with F, J, or M visas.
Those with F, J, or M visas will most likely be subject to “enhanced screening and vetting requirements.”

Libya

Effective immediately, immigrants and nonimmigrants on business (B-1), tourist (B-2), business/tourist (B-1/B-2) visas are suspended except those with a bona fide relationship to the U.S.

Somalia

Effective immediately, immigrant visas are suspended for Somali nationals
Non-immigrant visas are permitted, subjected to heightened screening.
The bona fide relationship exemption ends October 18, 2017.

Syria

Effective immediately, immigrant and nonimmigrant entry is suspended for Syrian nationals

Sudan

Sudan was removed from the list of restricted countries in MB-4.
Sudanese visa holders who were impacted by earlier Muslim Bans should now be able to reapply for visa.

Yemen

Effective immediately, all immigrant visas and nonimmigrant business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas are suspended.

Newly Impacted Countries

Chad

All immigrant visas and with nonimmigrant business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas are suspended from entering the U.S.

North Korea

All immigrant and nonimmigrant visa holders are suspended from entering the U.S.

Venezuela

The entry of officials of government agencies of Venezuela involved in screening and vetting procedures and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended. Additionally, nationals of Venezuela who are visa holders are subject to additional measures.
Per Section 3(b)(v) of MB-4, certain Venezuelans traveling on diplomatic visas are not affected by this order.

Waivers:

If you are from one of the countries covered by the travel ban and do not yet have a valid U.S. visa, you cannot obtain a visa at this time unless you qualify for a waiver. Consular officers may, on a case-by-case and discretionary basis, grant a waiver to affected individuals for certain reasons. The person seeking admission must prove that:

denying entry to the U.S. would cause the foreign national undue hardship;
admission would not pose a threat to the national security or public safety of the United States;

and

entry would be in the U.S. national interest.

Travel Risks for those with Valid Visas:

If you are from one of the impacted countries and hold a valid visa, you may be able to apply for admission to the United States. The travel ban states that no visas will be revoked and that those with a valid visa are not covered by the ban. Nevertheless, travel outside the United States at this time carries risk. If you choose to travel, we recommend you consult with an immigration attorney so you understand the risks of departing the United States and seeking new admission.
For additional information, please review our prior blogs on the topic including “President Trump Issues New Travel Ban” https://wolfsdorf.com/blog/president-trump-issues-new-travel-ban/
and “President Trump’s New Travel Ban – Part 2: Update from Department of State” https://wolfsdorf.com/blog/president-trumps-new-travel-ban-part-2-update-department-state/

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Justifiable Outrage On Trump’s Muslim Travel Ban By A Client

1/30/2017

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by Farhad Wadia, Chief Executive Officer of Samuels Jewelers through Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

Editor’s Note: On Friday evening, January 27, 2017, we sent out a notice to our clients relaying the details of President Trump’s executive order blocking the entry of visa-holders, refugees, and LPRs from seven predominantly-Muslim nations, namely Iran, Iraq, Syria, Somalia, Sudan, Libya, Yemen. Among other things, we strongly discouraged clients or the employees of corporate clients from these countries from travelling outside the United States. Outraged by Trump’s actions, Farhad K. Wadia wrote to us this spontaneous, eloquent response. Mr. Wadia is the Chief Executive Officer of Samuels Jewelers, a multi-million dollar specialty jewelry chain. Under Mr. Wadia’s leadership, Samuels Jewelers has expanded to 123 stores across twenty-two states and now employs over 800 people. Mr. Wadia, who is a citizen of India, is also a proud lawful permanent resident. Note that there have been some clarifications to the EO since last Friday, the situation remains fluid as interpretations keep on changing.

This weekend, I was shocked to hear that President Trump had not only banned refugees and visitors from seven Muslim countries, but that Lawful Permanent Residents from these nations were also denied entry. Due to the uproar from protests this weekend, the White House has since rolled back on its policy denying entry to LPRs; however, many more people, including temporary workers and students, continue to suffer under this inhumane policy.

This Executive Action has already ripped apart families and shattered the dreams of professionals and students. Twice before in American history have such actions caused untold hardship and suffering to innocent people. The first of which was the U.S. refusal to admit Jews fleeing the Holocaust. Upon return to Nazi Germany, these people were violently persecuted and/or killed at concentration camps. The second was the internment of Japanese-Americans after the bombing of Pearl Harbor, causing immense trauma and untold misery. Trump’s recent actions join these events in the halls of infamy and serve as a degradation of American values.

Despite these spots on its history, America, has historically served as a beacon of hope and opportunity for citizens and immigrants alike. It has allowed me, an immigrant and now proud lawful permanent resident, the opportunity to grow a successful company, contribute to the American economy, and employ hundreds of workers. But I am no exception. America has given millions of people the opportunity to create new and better lives for themselves and become leaders in their communities. Immigrants to America have become influential politicians, doctors, teachers, business leaders, and scientists that have all made this country stronger.

Trump’s Executive Orders against immigrants and refugees stands in stark contrast to these cherished values. This is not the America that the world admires and respects, where the inscription on the Statue of Liberty reads: “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!” Trump has instead shut America’s door to those most vulnerable by blocking the admission of Syrian refugees, and has disrupted the lives of hundreds of visa holders seeking to continue their studies or careers.

These executive orders, in addition to the recent order heightening the status of Steven Bannon within the National Security Council, lead me to worry about the fate of America. Specifically in regards to immigrant workers, Mr. Bannon has been exceptionally discriminatory against Asian (citizen and noncitizen) workers in Silicon Valley. Relying on made-up statistics, Mr. Bannon has implied that there are too many Asian CEOs and workers in the tech industry. Stephen Miller and Jeff Sessions have both suggested rolling back employment-based immigration, even for the most talented workers that are capable of bringing ingenuity and success to the economy. I fear that this weekend’s actions are only the beginning of what is to come.

The suspension of immigration will only serve to hurt America. This country was built upon the backs of immigrants. Immigrants have made this country better. They have made this country stronger. Trump’s discriminatory orders will only reverse progress and growth, both economically and socially. America is better than this, and now is the time for the American people to stand up and fight against this injustice. As Martin Niemöller once wrote,

“First they came for the Socialists, and I did not speak out--
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out--
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out--
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.”

Let the American people take these words seriously, and refuse to allow Trump and his administration to degrade the values that this country was founded upon.

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The Lazarus Effect: How Comprehensive Immigration Reform Can Survive the House GOP and Come Back to Life

8/18/2013

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

“The only true test of leadership is the ability to lead and lead vigorously”
President John F. Kennedy

The Republican National Committee passed a resolution on Friday calling on Congress to pass immigration reform by the end of the year. Unlike the Senate Bill, s. 744, the Border, Security, Economic Opportunity and Immigration Modernization Act, which grants a path way to citizenship, the RNC resolution contemplates legalizing immigrants who came to the US above the age of 18, but only by granting them 2 year renewable work permits. For those who came to the US as minors, they would get a renewable 5 year permit. There is no pathway to citizenship in the RNC’s resolution.

This tepid resolution is completely at odds with BSEOIMA, which will dramatically reform the immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings, among many other beneficial provisions.

Therefore, it remains uncertain whether any measure that the House passes can get reconciled with BSEOIMA, which truly reforms the immigration system. The intransigence in the GOP controlled House, while frustrating the hopes and aspirations of all those who believe that a reformed immigration system will benefit America, also further foreshadows doom for the party in future elections. What caught our attention was a statement by Senator Rubio on the anniversary of the Deferred Action of Childhood Arrivals (DACA) program, one of the main Republican architects of BSEOIMA, when he warned his party members in Congress that if they did not pass a reform bill then President Obama could extend the administrative relief for young people to everyone through administrative action.

The authors have since 2010 been advocating the ability of the President to ameliorate the plight of non-citizens trapped in a broken system through administrative measures. We have also proposed that the President can resolve the crisis in the backlogs in the employment and family based preferences by not counting derivative family members. It was thus heartening to know that Rubio also acknowledged the President’s ability to pass an executive order, although he sees this more as a threat for his party. First, if Obama provides ameliorative relief to millions of immigrants, it will benefit the Democrats in future elections, just as DACA benefited the President in his reelection in November 2012. Second, if the President were to expand DACA to a broader group of undocumented people, and allow them to apply for work authorization and travel permission, this might be better than the GOP immigration reform proposal, if it got passed into law as part of a compromise with the Senate. Such an executive order will not be accompanied by a needless and expensive militarization of the border (which is also a feature of S. 744), along with mandatory E-Verify that will bog down business large and small. It will not include draconian provisions that the House might likely pass in exchange for legalization, such as authorizing enforcement of immigration law by state police or criminalizing undocumented status.

This is not to say that a Presidential executive order is a substitute for comprehensive immigration legislation. The President will not be able to grant permanent residence to the undocumented, only work authorization and travel permission, and the family and employment based preferences will continue to have a limited supply of visas. Still, in the absence of Congress passing a comprehensive bill to reform the broken system, something is better than nothing. As we have already commented, if we do not count family members, that in itself would dramatically reduce waiting times in the family and employment preferences. Many of the people who will be legalized under an executive order may be able to ultimate get permanent residence through existing pathways. It is true that the President will not be able to increase badly needed H-1B visas through executive fiat, but it may be possible to give employers greater access to the unlimited O-1 visa by broadening the definition of “extraordinary ability” to allow many more accomplished foreign nationals to work in the US. While an executive order will not include a new start up visa, if the current Entrepreneurs Pathways initiative is implemented faithfully, many entrepreneurs can start companies in the US under existing work visa categories.

While the authors support the passage of S.744, it is tempting to add that executive action can avoid the economic illiteracy that plagues the H-1B wage provisions embraced by the Senate as the price of passage and avoid the misguided tendency of House Republicans to extend this inflationary regime to other categories such as the TN. Unlike S. 744, it will not discourage employers from hiring foreign nationals by mandating artificially inflated wages for foreign nationals, a feature of S. 744 that sharply conflicts with expanded H-1B quotas and more generous provisions for employment-based migration. It will not cripple start-up companies who badly desire key foreign personnel but will under the new law be unable to afford them. It will not price American companies out of the green card sponsorship market, divert precious funds that would otherwise be invested in cutting-edge research or dry up surplus capital that would be better spent on equipment modernization. Executive action will be devoid of the hugely inflationary wage rules adopted by the Senate as part of the deal making that resulted in the passage of S. 744, thereby encouraging more employers to refrain from moving jobs offshore or to low wage labor markets out of the United States. As a result, when compared to S. 744, action now by President Obama might make it more, not less, likely that companies will sponsor foreign workers for green cards.

The President always has this ace up his sleeve, which is the ability to grant relief through an executive order, to force Congress to pass immigration reform. If Congress in fact fails to pass immigration reform, the President can actually bring about immigration reform, which may look better than any of the reform proposals being floated by the GOP in the House. Of course, a future President can get rid of such administrative measures, but this usually does not happen as it would be politically too dangerous to further alienate the Latino vote. It is more likely that a future Congress will bless such administrative measures like the way BSEOIMA did with DACA recipients. So, in light of all the uncertainty regarding the passage of a comprehensive immigration bill, a Presidential executive order, or the potential for one (as Rubio presciently realized) may not be such a bad thing.

The invocation of executive action would allow the undocumented to remain in the United States with the opportunity for employment authorization and seek to utilize existing avenues for transition to lawful permanent resident status. It puts them in the same position as everyone else who seeks the green card. From this perspective, executive action would be consistent with the compromise proposal advocated by House Judiciary Committee Chair Robert Goodlatte ( R-Va.). Many of the undocumented already have, or will, over time, acquire adult US citizen children; others may marry American citizens and still others could attract employer sponsorship. Keep them here, allow them to come in from the shadows, and let the undocumented regularize their status through the disciplined utilization of existing remedies. Not only is this a solution that does not require the House GOP to abandon dysfunctionality as their prime governing philosophy, something they are manifestly loath to do, but, even if Congressional ratification subsequently is felt necessary or desirable, this is precisely the path to legalization that Represenative Goodlatte has already outlined.

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The President Has Spoken -- Can DHS Make the Immigration DREAM Come True?

6/17/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The portents were plentiful, reaching back 30 years. Yet none but a clairvoyant could have predicted the aftermath on June 15, 1982 when the Supreme Court in Plyler v. Doe provided undocumented children with a guarantee of education through high school. Three decades to the day, a mixed-race president (whose Kenyan father was hounded out of the U.S. as a student by the immigration authorities for dating a white woman) would provide paperless kids with a tenuous legal status and the right to work.

It took a long time coming but the crystal ball became as vivid as a 3D film on an IMAX screen:

Undaunted by ten years of Congressional failure to enact legislation, DREAMers became activists, forming United We Dream and countless other grass roots initiatives.
Over 90 law professors, scholarly colleagues in the immigration bar, and this blogger (here, here,here, here, here, here and there), provided the legal justification.
A Pulitzer winning journalist and my client, 31-year-old Jose Antonio Vargas, revealed his undocumented status in a New York Times Magazine article, formed Define American and toured the country speaking out on the pressing need for a solution to the immigration problems of his youthful compatriots who, like him, are citizens except on paper.
Vargas and fellow DREAMers -- just hours before the fateful change was announced -- appeared on the cover of Time Magazine and in this moving video:

Dismissing interruptions from an impudent, pull-up-the-gangplank journalist who immigrated from Ireland, and outcries from foes on the right (perhaps the most ironic from the author of the Bush torture memo assailing Obama's executive overreach), President Obama finally projected a modicum of courage. In a Rose Garden address, he announced that giving deferred action and work permits to DREAMers in the exercise of executive discretion is the "right thing to do."

The task now falls to the Homeland Security Department's immigration components, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), to review the anticipated flood of cases for deferred-action eligibility and issue work permits to a population of DREAMers estimated by the Pew Hispanic Center at 1.4 million.

Are they up to the job?

The challenge will be daunting. No new money has been appropriated. Existing agency personnel cannot possibly receive training and handle the workload without a funding mechanism.

Will the applicant tide overwhelm available resources? Can the foreseeable backlogs be avoided? How do those who want deferred action get it, given that DHS has consistently maintained that this act of prosecutorial discretion cannot be requested but must be conferred?

Here's what should be done:

ICE and USCIS should publish regulations and OMB should approve them on an expedited basis. Many informal pronouncements have been issued since Friday. The White House released a transcription of the President's Rose Garden announcement. DHS Secretary Janet Napolitano published a memorandum to the heads of her component agencies, a press release and an FAQ. ICE issued an implementing memo. While helpful, these are no substitute for the publication of regulations that comply with the Administrative Procedure Act and a host of other federal laws requiring regulatory analyses and opportunities for public comment. As Leland Beck urges in the Federal Regulations Advisor blog, "[w]ithout a regulation, the fragility of DHS’ policy position is clear – as a regulation may only be changed by another regulation, so a policy pronouncement may be changed by the whim of another policy pronouncement." Given that presumptive GOP nominee Mitt Romney has declined to say whether a President Romney would reverse the DHS actions on DREAMers, the Office of Management and Budget (OMB) should insist that ICE and USCIS engage in formal rulemaking but insure that the process is completed within the 60 days mandated by President Obama and Secretary Napalitano.
USCIS should use the EAD application process as the platform for deferred action requests. USCIS already issues Employment Application Documents (EADs) to persons granted deferred action under the authority of 8 CFR § 274.12(c)(14). This regulation states that a foreign citizen "who has been granted deferred action, . . . [can receive an EAD] if the alien establishes an economic necessity for employment." The application is made on Form I-765 and requires a filing fee of $380 (although fee waivers are possible). Since Secretary Napolitano has announced the deferred-action criteria "to be considered" for persons in the defined DREAMer class, USCIS should treat the Secretary's directions as a presumptive grant of deferred action as to those who submit evidence to show economic hardship and satisfy the deferred-action standards (entry to the U.S. before age 16, no older than 30, presence here for five years, presence on 6-15-2012, background checks, and absence of disqualifying criminal history). By using the EAD application form to adjudicate deferred-action requests of persons never in removal proceedings, USCIS would streamline the process and receive $380 per application to pay for the cost of adjudication. In addition, ICE and USCIS should agree that USCIS -- as the adjudication agency -- should make a preliminary decision on deferred action, subject to an internal ICE veto, before approving or denying an EAD.
USCIS should deploy officers trained in adjustment of status to adjudicate the deferred action EAD applications. USCIS has trained adjudicators on hand to determine the key eligibility criteria to qualify for DREAMer classification. Comparable criteria, involving essentially the same analysis, apply under the green card application process known as adjustment of status for persons seeking forgiveness from ineligibility under Immigration and Nationality Act § 245(i). Given the unavailability or retrogression of most employment-based immigrant visa quotas that begins next month, these officers will likely have time on their hands quite soon. Additional adjudicators from the USCIS Fraud Detection and National Security Directorate (FDNS) -- once trained on DREAMer eligibility adjudications -- can be assigned to augment the adjustment adjudicators. If needed, USCIS can also hire and train more adjudicators -- assuming that $380 per EAD application is sufficient. If the current EAD filing fee is insufficient to cover the cost of deferred action EAD adjudications -- a proposition I doubt given my insider sources with knowledge of filing-fee economics -- USCIS can make its case by publishing a proposed rule seeking to justify a higher fee.
USCIS and ICE should apply the spirit of the new policy to deserving persons who fall outside its terms. There is no reason why the policy announced on Friday capped DREAMer eligibility below age 30 (other than that the age was reduced from less than 35 in the last failed Congressional effort). Authority for the exercise of prosecutorial discretion and the grant of deferred action still exists and can appropriately apply to many others because -- as Secretary Napolitano stated in her memo to agency leaders: "Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here."
Newly legal DREAMers, their supporters and the American people must push President Obama and Congress to enact Comprehensive Immigration Reform (CIR). As Fareed Zakaria has demonstrated in his compelling CNN special report, America's success in the global economy hinges on CIR. Like a balloon held under water, CIR must eventually emerge. Possibly ephemeral deferred action status and evanescent work permits are insufficient. They are revocable, and offer no path to citizenship and no route to full integration into American society. The undocumented parents of citizens and DREAMers alike also need to be allowed out of the shadows. We must reform a system that New York's Mayor Michael Bloomberg calls "national suicide."

As Martin Luther King, Jr., the quintessential Dreamer, reminds us, "the arc of the moral universe is long but it bends toward justice." Let's make sure our leaders are forced to shorten the arc and bend it quickly to reach its destination, equal justice under law.

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Stop the Immigration Profiling

3/3/2012

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Angelo Paparelli, ABIL Immediate Past President and Ted J. Chiappari
Nation of Immigrators

Surprising as it may be to Italian-American youth of today, with a Cuomo as governor of New York and a Scalia and an Alito as Supreme Court justices, this kid of 1950s' Detroit hated his Italian name and resented his father for having conferred it. "Angelo Alfredo Paparelli" was too much ethnicity to bear. I'm not named "Angelo" because of my father's fondness for heavenly creatures, nor was I given the middle moniker "Alfredo" for his love of a certain pasta sauce. Under the Italian naming tradition of primogenitore, my name was predestined. The first-born male would take the first name of the paternal grandfather and the middle name of the father, and that was that.

I hated my name, not for any dislike of Italy, but because I yearned to be accepted as an American, just like the Nelsons and Cleavers on TV. My supposed TV role model, alas, was Private Dino Paparelli of the depressingly-titled You'll Never Get Rich series (later known as The Phil Silvers Show), with the dim-witted Dino as one member of a crew of conniving Army motor-pool conscripts who regularly hoodwinked their WASPish officers.

I remember precisely when my name went from personal abhorrence to appreciation. The scene: Cass Tech High School, near Downtown Detroit, during auditions for The Solid Gold Cadillac. When the director called my name to audition, a beautiful blonde senior named Barbara exclaimed: "Angelo Paparelli! What a wonderful name!" I didn't get the part, but I had a more valuable epiphany. My name could be Ishkabibble or Geronimo -- it didn't matter. I was just as American as former Michigan Governor G. Mennen Williams, who had a house in Grosse Pointe, and the Boyd and Williams families of Black Americans in my neighborhood; no more or less American than the Poles of Hamtramck, the Mexicans who lived near Briggs (now Tiger) Stadium, the Jews of Oak Park, the Arabs of Dearborn, or the lesbians who frequented the bar around the corner. This epiphany probably had something, at least subliminally, to do with my becoming an immigration lawyer.

Once ensconced in my chosen vocation, I learned, however, that immigration law is not ecumenical. I discovered that until 1952, non-whites could never become citizens (although native-born Blacks were Americans from day one under the 14th Amendment's birthright citizenship clause). As my colleague Prof. Kevin R. Johnson notes in "THE 'NEW' CIVIL RIGHTS: IS THE 'NEW' BIRMINGHAM THE SAME AS THE 'OLD' BIRMINGHAM?," a paper he'll discuss with me at a Chapman University Sociology conference next week:

During the post-Civil War period, the largest groups of immigrants affected by the whiteness prerequisite for citizenship came from Asia. Asian immigrants perpetually were denied the opportunity to naturalize and become U.S. citizens (and thus were perpetually disenfranchised from the political process). [FN]

[FN] See, e.g., Ozawa v. United States, 260 U.S. 178, 190 (1922) (finding that Japanese immigrant was not eligible for naturalization); United States v. Thind, 261 U.S. 204 (1923) (same for immigrant from India).

Indeed, it was not until 1965 that the National Origins Formula which effectively barred Asians from immigrating, was abolished with the passage of the Hart-Cellar Act.

Over the years, I've seen the immigration color and national-origin barriers resurface repeatedly. If you're a Cuban and arrive at Florida's shores, we release you to family, let you stay and give you a green card under the Cuban Adjustment Act; not so, if you're a Haitian.

In the late 1980s, if you sought an L-1B work visa from the UK or France to work for a car company, you were in like a swoosh; but if you hailed from Japan and were destined for a job in the auto industry, the U.S. Consulate in Osaka persuaded INS that an extralegal moratorium on L-1B issuance was necessary.

Today, if you were born in Mexico, China or India, you face decades of waiting for your date with immigration destiny -- your green card priority date. Although this may change with enactment of a bill enjoying bipartisan support -- The Fairness for High Skilled Immigrants Act -- nothing will happen to eliminate this disparate treatment by place of birth until a certain senator from the Cornhusker State lifts his hold on the legislation. And Osaka Redux: The U.S. consular posts in India and the latter-day INS, USCIS, now have been unmasked as inexplicably denying a much larger percentage of L-1B visas and petitions for Indian citizens, while those from Europe sail through.

Even though Congress remains in suspended animation until November's elections, immediate corrections are nevertheless possible. The Obama Administration can help eliminate these unlawful barriers. A simple but emphatic executive order would do the trick.

The President should declare that -- unless affirmatively mandated by law -- the federal immigration agencies shall:

Judge people seeking immigration benefits or relief from removal as individuals, based on the merit or demerit of their factual and legal circumstances.
Refrain from profiling people by color or national origin.
Apply neutrally phrased legislation even-handedly, without regard to any personal agenda of the adjudicator to serve as an unappointed line of defense against an influx of applicants from a particular country or with a certain complexion.

The President's order should require the Secretaries of State, Labor, Justice and DHS to produce a formal plan in 90 days to investigate and eliminate racial and national-origin profiling, discipline or dismiss any immigration officials who are found to have engaged in prohibited profiling, and publish periodic progress reports. Under the order, claims of racial or national-origin profiling should be jointly investigated and violations enforced by the DHS Office of Civil Rights and Civil Liberties and the Justice department's Civil Rights Division.

As I write this blog, urging one more measure to make America a truly welcoming country, I sense my father is smiling from the grave. He (very likely) and I (absolutely) are chuckling as we recall Mark Twain's wisdom:

When I was a boy of fourteen, my father was so ignorant I could hardly stand to have the old man around. But when I got to be twenty-one, I was astonished at how much the old man had learned in seven years.

By the way, for those of you who've met me and are wondering why I have Americanized the pronunciation of my name, sounding out the letter "a" like the "BAA" of bleating sheep, just ask Antonio Mendoza in this classic Saturday Night Live sketch:

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Faint Immigration Praise

2/4/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

“Damn with faint praise, assent with civil leer And, without sneering, teach the rest to sneer"
~ Alexander Pope, poet, satirist, and translator, “Epistle to Dr Arbuthnot”

I hesitate to criticize the Obama Administration's immigration reform measures, having urged long ago that half a loaf, at least for now, will perforce suffice. Hastily announced but untimely in manifestation, the slew of executive half-measures the President's team has lately proposed to improve the functioning of America's broken immigration system seem reminiscent more of vaporware than tangible solutions.

With less than a year to go on his term, executive orders and departmental or agency press releases are spewing forth as if from a Gatling gun.

Will these concepts really make a difference? Or are they merely pheromones to attract progressive, young or Hispanic voters in November?

Consider how much has been said but so little done:

Prosecutorial Discretion is announced as a measure to spare low-level immigration violators and slam dangerous foreign felons. So far the record deportations continue almost unabated and the few granted PD are permitted to remain at the pleasure of the President but without deferred action and its benefit of work permission.
Stateside waiver processing for immediate relatives of U.S. citizens whose hardship can be proven as extreme is revealed in a seemingly humanitarian Notice of Intent and an FAQ. But no rules or procedures have yet been published, and the risk of death-by-visa-waiting remains as high as ever.
An interdepartmental push to improve visa processing and promote tourism is inscribed in an Executive Order, with special focus on increased consular officers in Brazil and China. Still, nothing is said about tourists and business visitors from India whose rupees are as easily converted to dollars and spent in our malls. Worse yet, no reforms are made by the State Department that would moderate consular absolutism and encourage visa officers -- by amendment of the Foreign Affairs Manual -- to extend a welcome mat more often to foreign visitors with lucre to spend.
A DHS grab bag of small measures are announced with the goal "to retain highly skilled workers." These ethereal proposals will likely affect only a tiny slice of the job-creating nonimmigrant population. The list of unrealized hopes includes a nebulous assemblage of H-4 dependents married to H-1B workers "who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S." It also makes note of the leisurely first convening on February 22 of an "Information Summit [at an undisclosed location] in Silicon Valley, CA [where is that? I can't find the city on my California map], that will bring together high-level representatives from the entrepreneurial community, academia, and federal government agencies [first announced on August 2 of last year as step one of the Entrepreneurs in Residence program] to discuss how to maximize current immigration laws' potential to attract foreign entrepreneurial talent."

Desultory blather and high-falutin' promises will not jumpstart job creation. Deeds not words -- published forms, specific eligibility criteria and actual procedures to request new benefits -- are what real administrative reforms require.

There are many bold steps that could be taken to improve our dysfunctional system even while Congress remains comatose. Gary Endelman and Cyrus Mehta suggest a Presidential tweak in the interpretation of green-card counting procedures that would eliminate backlogs and do far more than merely granting spousal work permission "to retain highly skilled workers" ("Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of A Pen"). Other proposals have been offered in this blog ("Executive Craftsmanship: Job Creation through Existing Immigration Laws," "The Immigration Appeaser-in-Chief Should Try Some New Ammunition" and "Immigration Reform with the Stroke of a Pen"). When it comes to executive action on immigration, the nation needs a profile in courage not a silhouette of timidity. The first Tuesday in November is fast approaching. Time waits for no President.

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Executive Craftsmanship: Job Creation through Existing Immigration Laws

9/4/2011

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by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The dog days of August are behind us, yet the economic doldrums persist. Unemployment remains unchanged and unacceptably high at 9.1%. The White House forecasts that it will stay there through the New Year and then likely drop only a tenth of a percentage point for all of 2012. Congress returns this week to Washington. Vituperation in lieu of legislative action will soon begin. The media kerfuffle over the timing of the Obama-Jobs speech enraged most citizen observers. Meantime, pundits are asking about the content of the President's speech: Will he go large to appease dispirited Progressives? Or, will he propose modest measures that "the Left [won't] understand" in the hope of winning bipartisan support.

American politicians and special interests seem to have forgotten the "vigorous virtues [of self-reliance, personal responsibility, industriousness and a passion for freedom]," as David Brooks, op-ed columnist for the New York Times, observes. Brooks argues, convincingly, that as a result of this forgetfulness (I would call it blind and callous indifference) a "specter [is] haunting American politics: national decline."

The descent, however, is not inevitable. It can be reversed. A largely unseen, silent, law-abiding yet shackled group within our midst embodies all of the vigorous virtues. They are the sojourners from abroad who are yoked to the constricting terms and conditions of a U.S. employer's work visa petition. These hard-working souls are prohibited by law and dubious agency interpretations from using their ideas, talents, capital and energy to start companies and hire American workers.

Fortunately, no act of Congress is required to unleash these innovators, entrepreneurs and job creators and empower them to work their magic.

The White House already knows it possesses the authority through executive action in immigration matters. The Administration's recalibration of its immigration enforcement priorities has evoked little public outcry. Disinformation, however, is spreading but failing to gain much traction. The "Backdoor Amnesty" dog has no legs and won't hunt.

If unauthorized immigrants with positive equities warrant legitimate administrative relief, as they clearly do, why not reward the more deserving foreign citizens who have patiently waited and played by the rules?

The President should therefore continue trying to jump start job-creation and allow the next generation of Apples, Googles and as yet unimagined supercompanies to take root in American soil and thrive. The White House's early steps "to Promote Startup Enterprises and Spur Job Creation" have been criticized, however, in this blog and elsewhere, as overly narrow and unhelpful. These missteps are not failures. They are merely invitations to persist, as the iconic American innovator, Thomas Edison, reminds us ("I have not failed. I've just found 10,000 ways that won't work").

Here then are my suggestions to President Obama for administrative reform of the legal immigration system, as presented to attendees at an outstanding event convened on August 31 in Los Angeles by January Contreras, the USCIS Ombudsman ("Listening Session to Explore Small and Start-Up Business Immigration Issues"):

Instruct U.S. Citizenship and Immigration Services (USCIS) to rescind the January 8, 2010 "Neufeld Memorandum" on employer-employee relationships and replace it with a regulation expressly allowing immigration self-sponsorship by owner-entrepreneurs in a broad array of work visa categories for employment on company premises and at customer sites.
Instruct USCIS and the State Department to issue -- on an expedited basis -- replacement or initial regulations interpreting the following laws in the expansive and job-creating spirit that Congress intended: The Immigration Act of 1990, the American Competitiveness and Workforce Improvement Act of 1998, and the American Competitiveness in the Twenty-First Century Act of 2000. These regulations should, e.g., broaden eligibility for all categories of the L-1 Intracompany Transferee visa, particularly for start-up operations, function managers and specialized knowledge personnel.
Instruct USCIS to focus on improving the quality of adjudications by improving the corps of adjudicators who make employment-based immigration decisions:
- Impose stricter hiring requirements, including the minimum of a relevant bachelor's degree (if it takes that to receive an H-1B visa, the same should apply to grant one), strong writing and analytical skills.
- Cause the Small Business Administration to provide training to adjudicators on the characteristics, contributions and challenges of small businesses and startups.
- Review performance metrics and institute sanctions for improper issuance of Requests for Evidence, Notices of Intent to Deny and Revocation notices, while rewarding positive behaviors.
Instruct USCIS to grant nonimmigrants in lawful immigration status the benefits of “parole in place” and open-market work authorization upon submission of proof that they will open a business, buy a home, hire U.S. workers or devise an innovative technology, good or service.
Instruct USCIS to allow beneficiaries of approved employment- or family-based immigrant visa petitions whose place in the visa queue is backlogged to apply for adjustment of status (thereby entitling them to open-market work permits until they reach the front of the visa line and can receive green card approval).
Instruct USCIS to allow Premium Processing of employment-based Administrative Appeals Office appeals and all Motions to Reopen or Reconsider along with the tolling of unlawful presence penalties and the grant of employment authorization during the pendency of non-frivolous filings.
Instruct the Labor Department to add entrepreneurs and investors to the pre-certified Schedule A labor certification exemption, and allow an entity owned by such individuals to self-sponsor for green card status.
Instruct USCIS to publicize its 2008 Notice prohibiting internal retaliation against small businesses, define “retaliation” broadly and pursue violations aggressively.
Instruct USCIS to eliminate the Directorate, Fraud Detection and National Security (FDNS), and instruct U.S. Immigration and Customs Enforcement (ICE) to exercise all investigative and enforcement functions involving alleged immigration benefits fraud and immigration-related national security concerns.
Instruct ICE to investigate only those small business violations based on articulable and reasonable cause that a violation of the INA has occurred. Stop the guilty until proven innocent approach currently in use.
Instruct USCIS to appoint an Associate Director who reports directly to the Director and who is solely responsible for promoting and facilitating the grant of employment based immigration benefits and reporting actions by USCIS personnel that impede, impair or deny the grant of such benefits to deserving parties. This Associate Director would also have authority to intervene under the Homeland Security Act when the State Department takes actions that unreasonably interfere with or deny immigration benefits to startups and small businesses.
Require strict compliance by all immigration agencies with the notice-and-comment requirements of the Administrative Procedure Act and the small-business-impact analysis required under the Regulatory Flexibility Act, and phase out the practice of issuing guidance by policy memorandum.
Instruct and empower the Small Business Administration’s Office of Advocacy to review and recommend changes to DHS, DOL and DOS rules that adversely affect job creation, entrepreneurship, investment and innovation by small businesses and start-ups.

As we await the President's address to a joint session of Congress, many anticipate that at least one proposal will be to rebuild our nation's existing infrastructure -- the roads, bridges, waterways, and rails. Let's hope he also includes legitimate administrative fixes to our creaking and crotchety LEGAL immigration infrastructure. American citizens looking for jobs deserve nothing less.

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