My kids are of the age where I am still watching movies like Minions. Truth be told, I like them. Indeed, on some level, particularly with respect to their soundtracks, I think they’re made with adults in mind. According to Merriam-Webster, the definition of a “minion” is “a servile dependent, follower, or underling,” generally to someone powerful (or someone who perceives him or herself to be powerful). The origin of the word is French.
I’ve used the word “minion” in these articles from time to time, generally with reference to Stephen Miller, the President’s policy advisor who reportedly is the primary architect of the President’s restrictionist immigration policy, including the President’s recent proclamations restricting entry of some foreign nationals to the United States.
On April 22, 2020, the President signed a proclamation temporarily suspending the entry of certain “immigrants” into the United States in light of the COVID-19 pandemic. Exactly two months later, on June 22, 2020, the President signed yet another proclamation continuing his original proclamation and also now suspending the entry of certain “nonimmigrants” into the United States. As I’ve previously noted, the practical effect of these proclamations is not much since most embassies and consulates around the world are working at drastically reduced operations and visa issuance has all been suspended in any event since mid-March. So why did the President put out this second proclamation? As always, politics as usual. Red meat to his base.
It has always amazed me, however, that Mr. Miller, himself a descendent of immigrants, could be advocating for such restrictionist positions. According to published accounts, Mr. Miller’s family arrived through Ellis Island from what is now Belarus. His relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century. According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket. He peddled street corners and worked in sweatshops. And by all news accounts, he worked hard and became very successful. It’s a great American success story.
Is Mr. Miller ashamed of his immigrant past? I am open to any reasonable explanation as to why Mr. Miller advocates for these anti-immigrant positions.
The President’s most recent proclamation essentially blocks access by U.S. companies and others to certain nonimmigrant workers until at least the end of 2020, including H-1B, H-2B, J-1 and L-1 nonimmigrants (and their family members). As reported in one of my local newspapers, the Albany Times Union, the President’s proclamation will negatively impact employers, families, colleges and universities, health care facilities, and seasonal businesses. The President’s proclamation will also delay America’s economic recovery from the COVID-19 pandemic.
The H1-B is a visa that allows a foreign national to work temporarily for a U.S. employer in a specialty occupation position such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. The H-2B is a visa that allows a person to work in the United States for a U.S. employer in a seasonal field outside of agriculture, like a hotel worker in a resort community. The J visa refers to, among several other possibilities, an exchange visitor and under the President’s most recent proclamation is limited to those working in specific capacities, like as a camp counselor, teacher, au pair, or pursuant to the J-1 summer work travel program. Finally, an L visa refers to intracompany transferees who work in positions that require specialized knowledge or who are working in an executive or managerial capacity.
The continued use and availability of these visas to a large cross-section of U.S. businesses and industries is absolutely essential to a successful economic recovery from the COVID-19 pandemic.
The premise behind the President and his minion’s policy is to protect U.S. workers, particularly as we work (no pun intended) our way through the economic consequences of the COVID-19 pandemic. The White House has said that these proclamations will protect or create over half a million jobs. (Although significant, it’s a drop in the bucket when you consider the overall job loss since March 2020.)
But the President and his minion’s basic premise is still fundamentally flawed. And I’ve written about this ad nauseum in this space over the last several years. Bottom line. Immigrants, whether those here temporarily or those who strive to be here permanently, are a positive influence on the U.S. economy. You can find any number of resources that support this premise, but for those who may suspect my views, feel free to check out The George W. Bush Presidential Center’s “Economic Growth Initiative”, which does an excellent job debunking all these ridiculous myths about the negative impact of immigrants on our nation and our economy.
Forget right and left. Let’s move forward, all of us, together.
Whether you’re from a red state or blue state, one thing is undeniably true, all politics aside: over 103,000 human beings have died in the United States since the end of February as a result of the disease caused by the novel coronavirus (or COVID-19). That’s a massive amount of human loss in a very short period of time. I find that very hard to process.
Not that there’s any equivalency, there’s also been a vast amount of change in our personal and professional worlds. On the personal side, many if not most of us are working remotely, if we’re working at all, and our professional lives are now often interwoven with our personal lives as we manage work-life in a family setting. For some of us, that will soon be changing.
I have been fortunate to be able to go to an office every day. There’s no one else here. So while my work life is a bit lonely, I can say for sure that I am able to get work done without four boys running, yelling, complaining, laughing, and sometimes even crying in the background. Those of you who know me personally know that my wife is the mother of the year, every day of the year.
And what of my work? Immigration law is challenging enough in “normal” times, with the law itself, not to mention the myriad of changes that happen often daily. During this COVID-19 pandemic, however, the changes have not only been often, they’ve been dramatic as well.
Although the “real” news has reported the President’s Proclamation restricting immigrant visa issuance, as a practical matter, all visa processing by the Department of State (“DOS”), as well as the adjudication of many immigration benefits here inside the United States by U.S. Citizenship and Immigration Services (“USCIS”), have practically stopped (or at least are now very delayed and backlogged). In addition, entry into the United States along our northern and southern borders, including by asylum seekers coming from the south (despite being told otherwise), has also been restricted. Thousands and thousands of low risk noncitizens are also in immigration detention despite the reported very high risk of COVID-19 transmission in jails, prisons, and federal detention centers that U.S. Immigration and Customs Enforcement (“ICE”) uses to hold noncitizens. Finally, the COVID-19 pandemic has led to the suspension of almost all non-detained immigration court hearings, and has also limited the normal functioning of those other courts that remain open.
Any one of these changes would be dramatic for our clients in ordinary times. But all four of them at once? And during a pandemic when everyone is stressed out from being cooped up indoors for months, perhaps out of work, and perhaps also losing a family member to coronavirus?
Add to all this that President Trump, and his minions like Stephen Miller, have used the COVID-19 pandemic to pursue policy changes, mostly by regulation and proclamation, that his administration has failed to accomplish by legislation or in the courts during his presidency (e.g., eliminating the ability for noncitizens to pursue asylum at our southern border).
While we’re all impacted by COVID-19, I would argue that its impact on noncitizens, and particularly those who hold essential worker jobs, is far worse than the average person. Thus far Congress has at least endeavored to provide benefits or some form of relief to U.S. citizens and noncitizens who are lawfully in the United States. But many immigrant are affected differently (e.g., many immigrants are not eligible to receive direct payments and support, and many others are not able take advantage of the increased availability of health care services), and many noncitizens who are here in the United States, whether lawfully or otherwise, right or wrong, are the very essential workers that you and I rely on every day of our lives (e.g., health care workers, grocery store workers, dairy workers, and the list goes on and on).
These are stressful times. Both foreign and U.S. workers in all of our communities are suffering the impacts of COVID-19, whether economic or otherwise, and if large parts of the population are intentionally being excluded from the federal government’s economic support, this will have a widespread impact on everyone. We all deserve better.
So between COVID-19 (2.0) and COVID-19 (3.0), President Trump signed a proclamation (not an executive order as many have reported) temporarily suspending the entry of certain immigrants into the United States in light of the COVID-19 pandemic. What exactly does this mean? Practically, not much. Most embassies and consulates around the world are working at drastically reduced operations and visa issuance has all been suspended in any event since mid-March. So why did he do it? Politics as usual.
First, some details. The President’s proclamation suspends the entry of any individual seeking to enter the United States as an “immigrant” who (a) is outside the United States on the effective date of the proclamation (the proclamation went into effect at 11:59 pm (ET) on April 23, 2020), (b) does not have a valid immigrant visa as of April 23, 2020, and (c) does not have a valid official travel document as of April 23, 2020, or issued on any date thereafter. The proclamation is in effect for sixty days.
The following individuals are exempt from the President’s proclamation: (a) lawful permanent residents (i.e., Green Card holders); (b) individuals, and their spouses and children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional, to perform medical research or other work essential to combatting COVID-19, as determined by the Department of Homeland Security (“DHS”) and the Department of State (“DOS”); (c) individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program; (d) spouses and children under the age of 21 of U.S. citizens, including prospective adoptees on certain types of visas; (e) individuals who would further important U.S. law enforcement objectives (again, as determined by DHS and DOS); (e) members of the U.S. Armed Forces and their spouses and children; (f) Afghan and Iraqi nationals who were translators/interpreters or employed by the U.S. government and their spouses or children seeking entry pursuant to a Special Immigrant Visa; and (g) individuals whose entry would be in the national interest (also as determined by DHS and DOS).
But here’s the thing. As I alluded to at the outset, most routine visa services at U.S. embassies and consulates across the world have been suspended since March 20, 2020. (1) U.S. Citizenship and Immigration Services (“USCIS”) has, until at least June 4, 2020, suspended in-person services (although it does continue to accept and process applications and petitions, which are processed at its “service centers”, which are not accessible to the general public). The U.S. borders with Canada and Mexico are closed for non-essential travel until, at this point, at least May 20, 2020. And, with few exceptions, the entry of individuals who were in countries such as China, Iran, the United Kingdom, and Ireland, during the 14-day period immediately before their desired date of entry into the United States, has also been suspended. (2)
Interestingly, though for purposes here, individuals who hold nonimmigrant visas (i.e., temporary visas like tourist visas or some work visas) are not prohibited from coming to the United States under the Proclamation. Why not? The President’s proclamation requires a review of temporary visa programs within thirty days and seeks recommendations to stimulate the U.S. economy to ensure “the prioritization, hiring and employment” of U.S. workers. And there you have it. “It’s the economy stupid!”
In the face of all the criticism about how he personally has handled (or mishandled) the COVID-19 pandemic, I am surprised it took so long before he resorted to distraction, blame, and fearmongering. Instead of focusing on the public health crisis that we’re all dealing with on a daily basis, the President has cloaked the proclamation as a means to “put unemployed Americans first” amid the massive job losses that all workers (both U.S. and foreign born) are experiencing as a result of COVID-19. It’s nothing more than a political ploy. It’s fodder for his political base.
I have written about, and substantiated, on a number of occasions, that immigrants create jobs, are innovators and entrepreneurs, and meet important U.S. workforce needs. A study written by Madeline Zavodny, an economics professor at the University of North Florida, for the National Foundation for American Policy, concluded, “The results of the state-level analysis indicate that immigration does not increase U.S. natives’ unemployment or reduce their labor force participation. Instead, having more immigrants reduces the unemployment rate and raises the labor force participation rate.” (3)
When the proclamation was announced, and even days before with the lead-up, I was getting panicked calls from current and potential clients about what impact the President’s proclamation would have on their cases or situation. This is nothing more than a distraction to what I personally believe is the real issue. The President’s concern over the election.
I am not at all suggesting that our government should not be doing something to control the entry of any individual into the United States who may have been, during the 14-day period immediately before their desired date of entry into the United States, in an area that is severely impacted by COVID-19. Not at all. But the President’s policy of limiting immigrants from entry into the United States has no rational basis. He’s not saving American jobs; he’s also not making us any safer or more secure. To restore our country’s health, physically, mentally and economically, we need to keep our focus on moving forward together. We are stronger together.
The United States is facing a public health crisis, and a resulting economic crisis, unlike any that we have ever faced in our lifetimes. We need a better and more organized public health response. This will get our society back on track and our people back to work. Everything else, especially the President’s proclamation, is a distraction from this priority.
(1) U.S. embassies and consulates continue to provide urgent and emergency visa services as their resources allow. And, the DOS, at this point, continues to process visa applications for farm workers and medical professionals assisting with COVID-19.
(2) Importantly, asylum seekers are not prohibited from coming to the United States.
(3)Madeline Zavodny, “Immigration, Unemployment and Labor Force Participation in the United States,” National Foundation For American Policy, NFAP Policy Brief , May 2018.
This time that we all find ourselves in is surreal to say the very least. Nothing is as it should be, and we truly have no idea when the old normal will be new again. Yet certain aspects of our lives must continue to move forward, including in my case, the work that needs to be done for my clients. As complex as the world of immigration is, it is made unbelievably more so when COVID-19 (Coronavirus) changes the landscape almost moment to moment.
The Departments of Homeland Security and State have taken some steps towards flattening the curve (e.g., cancelling in-person appointments, cancelling visa interviews, etc.). Far more aggressive action is needed, however, to ensure the safety of all our federal employees, our immigrant clients, and their representatives.
Although the Executive Office of Immigration Review (“EOIR”) has suspended all immigration hearings for non-detained aliens, they inexplicably continue to go on for detained aliens, at great risk to the very same people I’ve noted who need to be protected. The EOIR should close all the immigration courts, yet continue to ensure reasonable and safe (e.g., telephonic or video) access to counsel for detainees. Equally as important, the Department of Homeland Security (“DHS”) needs to ensure and protect immigrants from falling out of status during this awful COVID-19 pandemic.
For example, U.S. Citizenship and Immigration Services (“USCIS”) should extend all filing deadlines, excuse late filings and grant automatic extensions of stays for individuals whose authorized period of stay is set to expire. Likewise, the U.S. Department of Labor (“USDOL”) should relax its rules so individuals who are laid off or furloughed can maintain their lawful status.
I can’t tell you how many calls I’ve received over the last week or two from corporate clients asking questions about what to do about particular employees, some of whom are here, for example, on H-1B nonimmigrant (or other similar) visas and who would or will be adversely impacted if they were laid off or furloughed. Our immigration law, unfortunately and not surprisingly, is not very forgiving in these situations.
For example, employers who hire individuals who work for them on H-1B nonimmigrant visas, know that USDOL’s regulations require that they continue to abide by the labor conditions to which they agreed when they filed the H-1B petition with USCIS. These are the terms set forth in what is called the Labor Condition Application (“LCA”) filed with the H-1B petition. These concern payment of the required wage, full-time vs. part-time employment of the employee, and notice to employees in the area of intended employment.
As we all know, because of the COVID-19 outbreak, many local and state governmental authorities are instituting shelter-in-place, work-from-home, or stay-at-home orders to facilitate social distancing. In addition, the economic fortunes of many companies have fallen dramatically since the COVID-19 outbreak, including many small businesses that have all but shut down. This has prompted many employers to reevaluate their business operations. Consequently many employers are asking what happens to their foreign workers if they furlough, layoff, reduce hours, or they otherwise become unproductive during this crisis.
USDOL regulations require H-1B employers to pay the wage set forth in the LCA. Given that, how are employers able to place an H-1B worker in non-productive status while at the same time maintain compliance with the applicable DOL regulations requiring provision of the required wage irrespective of non-productive work status? The short answer is, they can’t.
“Non-productive status” is defined as any time during the validity of the LCA and H-1B petition where an employee is unable to work. When an employee is in a non-productive status due to a decision of the employer (e.g., due to a lack of work), under the regulations, the employer is still required to pay the required wage.
Likewise, an employer cannot furlough, layoff, bench, or otherwise render an H-1B worker non-productive and, as a result, stop offering the required wage, if the employee is not able to work from home during a COVID-19 pandemic initiated “stay at home” order from federal, state, or municipal government authorities. If an employer did so, it would risk liability such as fines, back wage obligations, and, in serious cases, debarment from the USDOL’s temporary and permanent immigration programs.
As I explained to a client the other day, an employer could seek to convert a full-time H-1B worker to part-time, but this would require not only the filing of a new LCA to reflect this change, but also the employer would then be required to file an amended H-1B petition with USCIS (expending additional fees along the way). Although the H-1B worker would be permitted to commence part-time employment upon USCIS’s receipt of the amended H-1B petition, before this happens the employer would need to make the decision to undergo this effort, which is no inexpensive effort in normal time, let alone these times.
USCIS should suspend (or even waive) the requirement that employers must file an amended or new H-1B petition when a new LCA is required due to a change in an H-1B worker’s employment as a result of the COVID-19 outbreak. Not only is there legal authority for USCIS to do this, it’s also clearly the right thing to do. These are unprecedented times. Our government needs to show some leadership (and heart) so as not to make a terrible situation worse on all employers affected by COVID-19 and their foreign-born employees.
Tags: Coronavirus, COVID-19, Immigration.
Last night I received an email from Microsoft’s Office365 Message Center providing me with preparedness information for COVID-19 (Coronavirus) and guidance regarding best practices for Microsoft Teams. Well, I don’t use Microsoft Teams (and candidly I don’t even know what it is let alone know what it does), but I did take that admonition as an opportunity to think about the Coronavirus and the immigration consequences of it.
According to the Center for Disease Control, COVID-19 is a “respiratory disease caused by a novel (new) coronavirus that was first detected in China and which has now been detected [as of this writing] in 70 locations internationally, including in the United States.” On January 30, 2020, the World Health Organization declared the outbreak a “public health emergency of international concern (PHEIC)”. One day later, Health and Human Services Secretary Alex M. Azar II declared a public health emergency (PHE) for the United States.
When President Trump came into office, one of the first things his administration did, which of course was alarming at the time (and still is) was create the Travel Ban. The Travel Ban is now in its third iteration (if you’re counting). Most recently, however, the White House announced two (2) presidential proclamations, each addressing the entry to the United States of certain immigrants and nonimmigrants who pose a risk of transmitting Coronavirus.
On January 31, 2020, the President issued Proclamation 9984, which suspends and limits entry into the United States, as immigrants or nonimmigrants, of all individuals who were physically present within the People’s Republic of China, not including Hong Kong and Macau, during the 14-day period preceding their entry or attempted entry. On March 4, 2020, the President issued a second proclamation (Proclamation 9992) that, with few exceptions, suspends and limits entry into the United States, as immigrants or nonimmigrants, persons who were physically present in the Islamic Republic of Iran during the 14-day period preceding their entry or attempted entry. My sense is there will be more.
The scope of both proclamations are actually broader than their titles would suggest. For example, under the President’s January 31, 2020 proclamation, U.S. citizens who traveled from the Hubei province in China within 14 days of arriving to the United States will also be subject to up to 14 days of mandatory quarantine. In addition, U.S. citizens returning to the United States who had visited other parts of China, outside of Hong Kong, Macau, and the Hubei province, will be subject to monitoring at certain ports of entry, and potentially self-quarantined at home.
Importantly, from an immigration perspective, the President’s first proclamation also states that it does not affect an individual’s eligibility to apply for political asylum, or other relief, including withholding of removal, or protection under the United National Convention Against Torture (CAT). The proclamation also does not apply to U.S. citizens or lawful permanent residents (i.e., Green Card holders).
Earlier this week, there was an article in the Albany Times Union indicating concern by the Lake George, New York hospitality sector that hotels, restaurants and other businesses were not going to be able to fill a thousand or more necessary jobs that are typically filled by foreign students who participate in the J-1 Exchange Visitor Summer Work Travel Program. Related to this, the Department of State’s Office of Academic Exchanges (which is the office that administers the J-1 Exchange Visitor Visa Program) provided information for exchange visitors currently in the United States whose travel may be affected by COVID-19. Specifically, the Department of State indicated that U.S. Citizen and Immigration Services (“USCIS”) could exercise its discretion to extend or change the status of foreign nationals in the United States who are in J-1 exchange visitor status, and in some cases provide student work authorization, for those individuals who cannot depart the United States because of what’s going on in their home country.
And finally, on March 3, 2020, USCIS confirmed that, out of an abundance of caution, it temporarily closed its Seattle Field Office after one of its employees exhibiting flu-like symptoms confirmed having been potentially exposed to COVID-19.
So, clearly events are very fluid, both from a medical perspective (which this article is not about) and otherwise. COVID-19 is having far-reaching impacts, including in my little piece of the world. This article is not about whether the President or his Administration’s response has been appropriate, timely or otherwise. It is meant simply to be factual and to provide timely guidance for those who may be impacted.
 Indeed, in addition to U.S. Citizens and lawful permanent residents, the Proclamation does not apply to: (a) spouses of a U.S. citizen or lawful permanent resident; (b) parents or legal guardians of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21; (c) siblings of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21; (d) children, foster children, or wards of a U.S. citizen or lawful permanent resident, or prospective adoptees seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications; (e) foreign nationals traveling to the United States at the invitation of the United States Government for a purpose related to containment or mitigation of the virus; (f) nonimmigrants under section 101(a)(15)(C) or (D) of the Immigration and Nationality Act (8 USC 1101(a)(15)(C) or (D)), as a crewmember or any alien otherwise traveling to the United States as air or sea crew; (g) nonimmigrants on an visas related to foreign government officials or the immediate family member of an official), (h) foreign nationals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee; (i) foreign nationals whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or (j) foreign nationals whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.
Although it feels like it’s never stopped, election season is now officially in full swing. I’ve spent the last three years whinging about our current president’s immigration policies. My feelings are no doubt clear. But where do his challengers stand on important issues like the right to counsel, the travel ban (which is now in version 3.0), legalization, and so on. What follows is the beginning of a periodic look at the Democratic candidates on these and other important issues. Let’s start with the right to counsel.
Our immigration laws are very complex. If you’re not an attorney, or if you’re an attorney but don’t practice in the area of immigration, you might be surprised to see the back-and-forth that immigration practitioners themselves engage in on various professional listservs about the meaning of a statute, rule or agency memorandum. If we as practitioners in our own specialized field often cannot understand or come to agreement as to what the Congress has written, or a Court has decided, do we really expect a pro se respondent to?
The law guarantees an individual facing removal from the United States with the right to counsel. The law does not, however, guarantee that legal counsel be paid for by the government if someone cannot afford it. The data is very clear that having legal counsel is the most decisive factor in determining whether someone will obtain a grant of legal relief before an Immigration Judge. Indeed even Immigration judges say that cases before them are resolved far more expeditiously when people are represented by counsel.
Yet only a small fraction of those who are in removal proceedings are represented by an attorney. My personal opinion is the government should establish a right to legal counsel, paid for by the government when necessary, to all people facing removal. So that’s my opinion; what do the candidates believe?
When he was mayor of New York City, Mike Bloomberg pledged $2 million to provide training for lawyers who wish to represent immigrants in immigration court. Thus far, however, he has not publicly stated whether or not he supports the right to counsel at government expense at a national level. In a piece written in 2017 for his media company, he wrote that “speedier case handling must also make a provision for the adequate legal representation that judges have called for.” He’s right.
In 2019, Senator Amy Klobuchar cosponsored S. 2113, the Stop Cruelty to Migrant Children Act, which would mandate that the Department of Homeland Security (“DHS”) provide access to counsel for all people detained in facilities administered by Immigration & Customs Enforcement (“ICE”), Customs and Border Protection (“CBP”) and Health and Human Services (“HHS”).
In a response to a survey put out by the American Immigration Lawyers Association (“AILA”), Mayor Pete Buttigieg stated that he would “urge Congress to pledge funds and to work with legal service providers and state and local governments to create a system to substantiate this guarantee, building off of the success of programs like the New York Immigrant Family Unity Project.”
In response to the same AILA survey, Senator Bernie Sanders stated the following:
Currently, our immigration adjudication system is so broken that immigrants often do not receive notice of their hearings, notices are received in a language the recipients do not speak, and immigrants are sometimes even marked absent for hearings that did not even physically take place. Navigating the immigration system without legal counsel is next to impossible. To ensure that people can actually access their legal counsel, Bernie will adopt community-based alternatives to detention. When Bernie is in the White House, immigrants will have access to counsel, as well as other supportive services as they wait for their hearings.
His immigration platform, available on his website, goes further; it states that he will “ensure justice and due process for immigrants, including the right to counsel and an end to cash bail, create a $14 billion federal grant program for indigent defense, ensure access to translation and interpretation services throughout every stage of the legal process,” and “end the use of video conferencing for immigration cases.”
Interestingly, to me anyway, former Vice President Joe Biden has no public stated position on access to counsel for those in removal proceedings.
And finally, to round out the discussion, not only does President Trump oppose access to counsel in removal proceedings, his administration’s policies have made simple access to counsel so much more difficult. By way of example, his administration’s Remain in Mexico policy has made it incredibly difficult for asylum seekers to obtain information about legal service providers and, for those who have counsel, to meet with and have access to their counsel.
Providing meaningful access to counsel not only ensures that immigrants are treated fairly and appropriately in removal proceedings, but it will also makes their removal proceedings more efficient. Indeed, if more individuals are represented in removal proceedings, the currently untenable backlogs would be reduced as well.
The landmark case Gideon v. Wainwright required state courts to provide counsel in criminal cases for defendants who could not afford lawyers. Unfortunately, the immigration law, unlike criminal law, does not provide a right to counsel. While immigrant detainees are allowed to hire their own lawyers, more often than not, they cannot afford counsel. Those who cannot are often the most vulnerable in our population, including children, the mentally disabled, victims of sex trafficking, refugees, and even torture survivors. We can do better, and we should provide those who need free representation the most the right to receive it.
 See, e.g., “Access to Counsel in Immigration Court,” American Immigration Counsel, Ingrid Eagly, Esq. and Steven Shafer, Esq., Special Report, September 2016.
 AILA Doc. No. 19093005. (Posted 9/30/19)
 AILA Doc. No. 19093005. (Posted 9/30/19)
Readers of this space know that the practice of immigration law has always presented my colleagues and I with unique and interesting challenges. Over the last three years, however, I would describe most of the challenges practitioners encounter as completely unnecessary. Let me give you an example.
A prospective client walks through my door, tells me her story, and to keep it short and simple, I determine that she’s out of status, has a prior removal order, but if those things weren’t true, she would be able to stay in the United States because she has some other relief that could be available to her (e.g., she originally had a lawful entry and she’s married to a U.S. citizen), but for the previously stated adverse factors.
Generally our advice to this individual might be, let’s get the paperwork prepared and filed for the “relief” that we think you’re eligible for with, e.g., U.S. Citizenship and Immigration Services (“USCIS”) (but for the adverse factors), and then let’s go to the Immigration Court, ask the Immigration Judge (“IJ”) to reopen her prior removal order (for whatever reasons we can come up with, including, possibly, the fact that our prospective client has relief available to her, again but for the adverse factors), and assuming the IJ did reopen the case, then ask the IJ for a continuance (and to place our client’s matter on the Court’s “status docket”) in the Immigration Court proceeding so we can wait for what we think will be a favorable decision by USCIS.
Yesterday (as I write this, it was just yesterday), that last part became unnecessarily more difficult. In a decision by the Board of Immigration Appeals (“BIA”) issued on January 22, 2020, the BIA held as follows:
In assessing whether to grant an alien’s request for a continuance regarding an application for collateral relief, the alien’s prima facie eligibility for relief and whether it will materially affect the outcome of proceedings are not dispositive, especially where other factors—including the uncertainty as to when the relief will be approved or become available—weigh against granting a continuance.”
Matter of Mayen, 27 I&N Dec. 755 (BIA 2020) (Emphasis added.)
This impacts foreign nationals in many kinds of situations. The example I gave is just one. Here’s another, and no doubt more compelling. Sadly sometimes the prospective client that shows up at your office has been the victim of a crime, such that this individual might be eligible for a “U” nonimmigrant visa. U visas provide temporary and sometimes permanent legal status to victims of an enumerated list of “qualifying criminal activities” who have suffered substantial physical or mental abuse, and possess information concerning that crime, and who have been, are being, or are likely to be helpful to law enforcement or government officials.
There are many “qualifying criminal activities” including domestic violence and sexual assault. Here’s the problem. Let’s say my prospective client has a very compelling case to receive a U visa. The problem is the adjudication backlog at USCIS. Right now, the time that it takes for USCIS to process U petitions is more than 4 years, and that assumes that USCIS simply approves (or denies I suppose) your client’s petition. If USCIS sends you a Request for Evidence (“RFE”), which can often be the case, the adjudication time will be substantially longer.
So, back to my prospective client. The quick reaction and consensus of my colleagues and I will be that some or many IJ’s will use the BIA’s decision in Matter of Mayen as a means to unclog their docket. Attorneys will then be forced to unnecessarily appeal adverse decisions of these IJ’s to the BIA, the BIA will likely affirm the IJ’s decision, and then our clients will be forced to appeal further to a U.S. Circuit Court of Appeals and, depending on where the client resides, hopefully get a favorable decision. This is all just so unnecessary.
We can debate, and meaningfully debate at that, all day long as to whether Democrats or Republicans have better policies as it relates to immigration and even immigration reform. What we’re talking about here, though, is about being practical and being fair. IJ’s have the ability to meaningfully assess whether a respondent before them has a prima facie right to obtain relief before USCIS so he or she can lawfully remain here. Assuming this is true, what difference will it make then to the Court if a respondent’s case is put on a separate status docket and the Court checks in with that respondent “periodically” to see how their case with, e.g., USCIS is going? In my view, it makes (or should make) no difference.
Practicing immigration law is very rewarding. And of course it’s challenging too. All fields of law have their challenges. That’s alright. What’s not alright, however, is creating obstacles to lawyers and litigants that are truly unnecessary (and unfair). Let’s solve the underlying problem through meaningful immigration reform. Let’s not punish individuals who would have (more) rights in the United States “but for” delays at USCIS that are not of their own creation. Seems fair to me.
I recently sat for an interview with a reporter who is doing a series of articles on changes in immigration policies with a specific focus on our immigration court system. As I was speaking with this person, our conversation veered outside that lane, and we started talking about changes in immigration policy more broadly. We’ve seen a lot over the past year, but since Donald Trump became our president, the changes in U.S. immigration policy, whether planned or otherwise, have been dramatic. It’s probably not surprising when you have someone like Stephen Miller being the puppeteer for the marionettes.
Some have called it the “invisible wall.” The what? Yes, the invisible wall. While the President has been very public about his desire to construct a physical wall on our Southern border, slowly but surely, he and his minions are quietly and deliberately restricting and slowing the pace of legal immigration by building an “invisible wall.” We’ve seen travel bans, extreme vetting directives, the slowing or stopping of the admission of foreign workers and entrepreneurs into the United States, the ending or reduction of programs for vulnerable populations, and, most recently, obstacles to the naturalization of foreign-born soldiers in the U.S. military.
The most significant change has been processing delays at U.S. Citizenship and Immigration Services (“USCIS”). Most readers of this article are familiar with the H-1B nonimmigrant visa program which, for many employers, requires a petition to be filed on or about April 1 each year for a employment start date of October 1 of the same year. Well, I recently had a case for a client where we filed their petition on April 1, 2018, and their petition was “finally” approved in November, 2019. That’s a year and a half. I will grant you that this is an extreme example, but the point remains. Case processing delays and applications backlogs at USCIS are out of control. These unprecedented processing delays affect individuals, families, and American businesses throughout the nation.
Most of my personal practice involves employment and business-related immigration. I work with employers to facilitate their access to talent in what is now a very tight job market. I work with companies that are on the cutting edge of science; colleges and universities who are educating our future entrepreneurs and investors; and health care professionals in rural areas that supply health care to underserved communities. Processing delays and case unpredictability does not help businesses in my community and beyond solve their very real staffing needs and challenges.
In April, 2019, USCIS responded to a February 2019 letter sent by 86 Members of the House of Representatives who had expressed concern (and demanded accountability) about USCIS’s processing delays. In its response, USCIS revealed that in Fiscal Year (“FY”) 2018, the agency’s “gross backlog”, that is, its overall volume of delayed applications and petitions, reached 5,691,839 cases. That number is staggering, and according to USCIS, marks a 29 percent increase since FY2016 and a 69 percent increase since FY2014. What’s more, this backlog rose from FY2017 to FY2018 despite a substantial decline in application rates and an increase in its budget during that period. That’s right, USCIS had more resources with which to process fewer new cases, yet its gross backlog still grew. I’m sorry, what?
According to a recent article in the Washington Post, there an estimated 800,000 foreign nationals who are working legally in the United States who are also waiting for a green card. Most of those in the queue are Indian nationals. According to the article, an Indian national who applies for a green card today could expect to wait up to 50 years to receive it.
What about citizenship applications? Since 2016, the processing time for citizenship applications has almost doubled, increasing from about 5 ½ months to over 10 months as of March 31, 2019.
Lawyers are now more than ever taking matters into their own hands. While it used to be the case that lawyers waited to sue the government until a client’s application or petition was denied, or perhaps waited until a case was “outside normal processing times” to sue, but processing times are so out of whack immigration attorneys have no choice but to sue.
It’s difficult enough explaining the ins and outs of our immigration system and processes to clients. Tack on the substantial costs involved in pursuing some immigration benefits (without the prospect of litigation to simply move the case along), and top it off with significant delays, and you can see why many in Congress and the media have called the delays we’re experiencing as being at crisis levels. These delays and backlogs have real impacts on individuals, families and businesses. It impacts our overall economic growth. We deserve better.
As we usher out 2019 and bring in a new year (and a new decade), let’s resolve to pass meaningful and comprehensive immigration reform, be a lot more compassionate to those of our southern neighbors who are fleeing their home countries in search of a better and safe life, and work a little harder to poke some holes and even knock down that invisible wall that’s been erected over the past three years.
 “Historical National Average Processing Time for All USCIS Offices,” USCIS, March 2019, https://egov.uscis.gov/processing-times/historic-pt.
I don’t know who Rep. Salud Carbajal (D-CA) is, but the quote that was attributed to him recently in the wake of the 40 or so members of the House of Representatives introducing bipartisan legislation that would allow thousands of undocumented farm workers with a path to legal status in exchange for farms’ mandatory participation in a system to verify employee immigration status, was spot on (i.e., “This is a big freaking deal”)!
Of course, it’s not a panacea, but it is for sure a step in the right direction. At its top line, the , introduced by Rep. Zoe Lofgren (D-CA) and some 40 plus of her Republican and Democratic colleagues, expands both permanent and temporary immigration for agricultural purposes, and, very importantly, legalizes illegal farmworkers already present in the United States. Most pundits expect that it will pass the House of Representatives by a broad bipartisan margin, perhaps before Thanksgiving. Of course, I have no idea what will happen once it hits the Senate.
What exactly am I talking about? The H-2A nonimmigrant visa is available to foreign workers who are seeking to enter the United States to perform agricultural labor or agricultural services of a temporary or seasonal nature. Agricultural is defined to include farming in all its branches (including dairy farms), the raising of livestock, and any practices (including forestry and lumbering) incident to or in conjunction with farming operations, including preparation for market and delivery to storage or to carriers for transportation. Although the definition of farm includes dairy farms, the current H-2A nonimmigrant visa program only allows employers to hire workers for “temporary or seasonal” services, and dairies end up being disqualified because they need assistance throughout the entire year.
I can’t tell you how many referrals I get from colleagues, or calls from potential clients, practically begging me to help them bring in foreign workers (and yes, in some cases, to figure out a way to “legalize” individuals that may be currently working for them) so they can work in jobs that … wait for it … American workers don’t want to do (e.g., getting up at 3:00 in the morning to milk a cow). According to the U.S. Department of Agriculture, New York farms employ about 55,000 people; nationally, half of agricultural workers are believed to be undocumented.
Unfortunately, the proposed legislation maintains and incorporates into the law the current and overly bureaucratic regulatory structure of the existing H-2A program, and it also mandates what some argue is a flawed and ineffective E-Verify employment verification system. But I repeat, it’s a start and importantly, it’s a bipartisan effort in a time when such efforts seem very few and very far between,
So, what would this legislation do?
- It would increase the number of “green cards” for permanent agricultural workers. Specifically, it would create 40,000 new green cards for agricultural workers; it would allow H-2A nonimmigrant workers to be sponsored for green cards; after ten (10) years, it would allow H-2A workers to apply directly without the new of an employer to sponsor them; and it would allow for indefinite extensions of H-2A nonimmigrant status for those waiting for a green card (where there may be a backlog in their immigrant category).
- It also would somewhat improve the current H-2A nonimmigrant visa program. Specifically, it would freeze the minimum wage in 2020, prohibit increases in the middle of contracts, and limit annual wage increases to no more than 3.25 percent; after 2030, it would mandate the creation of a new minimum wage calculation; it would create a single online portal for H-2A employers to file job orders, labor certifications, and H-2A petitions; it would provide a longer grace period for H-2A workers to find another employer; it would create a pilot program for “portable” H-2A workers; it would reduce what is known as the 50 percent rule to 33 percent of the job period (currently, H-2A regulations require employers to hire U.S. workers who apply through 50 percent of the contract period—in other words, even after the H-2A workers arrive and begin working); and it would extend the H-2A visa validity period from 1 to 3 years.
- It also would legalize existing farmworkers. Specifically, it would provide a renewable legal status to illegal farmworkers with 180 days if proven farm worker experience; it would provide a renewable legal status to spouses and minor children of those same legalized farmworkers; it would provide permanent status to a worker that has ten (10) years of experience on U.S. farms prior to the enactment of the bill; and it would provide H-2A nonimmigrant status for other illegal workers.
The H-2A visa program, like its H-2B cousin for non-agricultural temporary workers, is an absolute necessity for U.S. employers across so many agricultural industries. Simply put, U.S. workers do not wish to perform the jobs that H-2A nonimmigrants fill. It has been a problem for longer than I’ve been practicing law. In an era where Congress can fairly be described as dysfunctional, the introduction of this important legislation provides a glimmer of hope to those employers.
 20 CFR §655.103(c).
There’s been no shortage of things to write about over the past two-and-a-half years, either substantively or otherwise. The Trump Administration’s (or Stephen Miller’s) decision to change the “public charge” rule ranks up there as one of the most important things that I’ve had an opportunity to address. Assuming no litigation to stop the change, the proposed change to the “public charge” rule will dramatically expand the number of immigrants that the Department of Homeland Security (DHS) could deem ineligible for lawful permanent residence (i.e., for Green Cards) or admission to the United States on account of income level and prior use of certain public benefits.
As often is the case in these articles, a little context is in order.
Under the Immigration and Nationality Act (INA), an individual may be denied admission into the United States or denied the ability to become a Green Card holder if he or she is “likely at any time to become a public charge.” An individual who has previously been admitted to the United States may also be subject to removal / deportation from the United States based on a separate public charge ground of deportability. There are certain exemptions to these provisions (e.g., for refugees and asylees).
DHS and the Department of State (DOS) are the agencies that implement the INA’s public charge provisions. DHS addresses whether to make a public charge determination when an individual applies to become a Green Card holder in the United States. DOS, on the other hand, makes its own public charge determination when its consular officers review applications for immigrant visas (the document that allows an individual to enter the United States as an LPR).
Although the INA does not itself define what the term “public charge” means, DHS guidance has defined it to mean a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionaliz[ed] for long-term care at government expense.” Historically, in determining whether an individual meets the definition for public charge inadmissibility, a number of factors must have been considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge. Also important in the consideration is whether the petitioner who, e.g., sponsored his or her qualifying family member, submitted a sufficient “affidavit of support”.
On August 14, 2019, DHS published a final rule governing the INA’s public charge grounds of inadmissibility. It goes effect on October 15, 2019. If not prevented from going into effect, the rule will have a chilling effect on families throughout the country who choose to forgo essential services to avoid imperiling their immigration status. (Candidly, the very announcement of the new rule has already had this chilling effect.)
The new rule dramatically changes the standard by which DHS determines whether an applicant for a Green Card or admission to the United States is “likely at any time to become a public charge.” Under the new rule,DHS removes the consideration of whether an individual is primarily dependent on public benefits, and now redefines public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period. This rule will severely punish individuals for seeking basic needs and will no doubt put families at risk of separation.
As alluded to earlier, under current law, a petitioner (e.g., family member) for someone applying for a Green Card or admission as an immigrant is typically required to file an “affidavit of support”, which wasn’t always outcome-determinative as to whether an individual would likely at any time in the future become a public charge, but was very helpful in swaying that determination in favor of the applicant. Not so any longer under the new rule. Under the new rule, DHS adjudicators will apply a complex totality of circumstances test that weighs the individual’s age, health, family status, education and skills, and assets, resources, and financial status, all while taking into account a broad range of positive and negative factors. DHS has also indicated in the final rule that it interprets “likely at any time” to mean that it is “more likely than not” that the individual at any time in the future will receive one or more public benefits defined by the rule.
There are many consequences to this new rule. The new rule is far more restrictive than current policy, and no doubt will result in higher denial rates for those applying for Green Cards that are subject to public charge determinations. Moreover, the new multi-factor test will leave too much discretion to DHS adjudicators and likely will also produce inconsistent and unpredictable decisions.
As bad as all that is, and it’s bad, more importantly the announcement of the new rule, and its implementation, has created and will now exacerbate a chilling effect felt throughout immigrant communities. According to the Urban Institute, about 14% of adults in immigrants families indicated that they or a family member opted not to participate in a non-cash public benefit program in 2018 because of their concern over jeopardizing their green card eligibility. Again, this new rule will punish individuals for seeking very basic needs.
This new rule is yet another brick in what has come to be known as Trump’s (or dare I again say Stephen Miller’s) “invisible wall”, which has been nothing more than far-reaching policies and practices restricting legal immigration to and in the United States. Enough is enough.
INA §212(a)(4); 8 U.S.C. §1182(a)(4)(A).
See“Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).
An exception to this would be the lack of an “affidavit of support,” if one is required for an individual to become an LPR or to be admitted to the United States.
Seee.g., 8 U.S.C. §1183a.
8 C.F.R. §212.21(a).
The new rule defines a public benefit as (1) Any federal, state, local, or tribal cash assistance for income maintenance, including: (a) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.; (b) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.; (c) Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); (2) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c; (3) Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f; (4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f); (5) Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and (6)
Public housing under section 9 of the U.S. Housing Act of 1937.