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Here we go again. On January 20, 2021, President Biden sent the U.S. Citizenship Act of 2021 to Congress. On February 18, 2021, Representative Sánchez (D-CA) introduced the U.S. Citizenship Act of 2021 in the House. On the same day, Senator Menendez (D-NJ) introduced an identical bill in the Senate.
From a macro level, the bill includes changes that will strengthen and improve our legal immigration system, reunify families who have been separated by years long visa backlogs, and provide a path to citizenship for Dreamers and other undocumented people residing in the United States while, at the same time, addressing the root causes of migration to the United States from Central America.
Let me focus on the one area which, in the Trump administration, caused so much consternation among the far right-wing of the Republican Party that it caused “the wall” to become one of the central pillars of Trump’s immigration policy.
President Biden’s immigration bill creates an earned roadmap to citizenship for undocumented individuals. Specifically, the bill allows individuals in the United States without status to apply for temporary legal status, with the ability to apply for green cards after five years, if they pass criminal and national security background checks and they pay their taxes. In addition, “Dreamers,” those in temporary protected status, and immigrant farm-workers who meet specific requirements are, under the legislation, eligible for green cards immediately. Furthermore, after three years, all those green card holders who pass additional background checks and also demonstrate knowledge of English and U.S. civics can apply to become U.S. citizens.
There are other requirements too, including a requirement that applicants must have been physically present in the United States on or before January 1, 2021 (although the Secretary of the Department of Homeland Security (“DHS”) can waive the physical presence requirement for those who were removed on or after January 20, 2017 (i.e., Trump’s inauguration day) if they were physically present for at least three years prior to their removal, in the interest of family unity and other humanitarian purposes). Finally, President Biden’s bill address some Progressive’s concerns by changing the word “alien”to “noncitizen” throughout our immigration laws and regulations.
As constructed, the Immigration and Nationality Act (“INA”) has three primary approaches to addressing unauthorized individuals in the United States: removal / deportation, deterrence (e.g., imposing criminal sanctions on employers who hire unauthorized or undocumented workers, etc.), and to a far lesser degree, legalization (which exists today in the form of, e.g., asylum and other humanitarian provisions of the INA, but not nearly at the level that’s needed to address all the individuals in the United States who are here without status).
This notion of a pathway to permanent residence (or possibly even U.S. citizenship) has been problematic for many or even most Republicans for as long as I can remember. I feel like I’ve written about it seemingly forever. The original “Dream Act” dates back to 2001. That year, the Development, Relief, and Education for Alien Minors Act (the original “DREAM” Act) was introduced in the 107th Congress. It provided a pathway to lawful permanent resident (i.e., “Green Card” or “LPR”) status for eligible individuals. In most cases, Green Card holders must first have resided in the United States for five years before they could naturalize. However, instead of the focus singularly being on the 11 to 13 million unauthorized individuals in the United States, and the diametrically opposite policy choices of somehow either removing all of them or “regularizing” them in the United States, the focus shifted to a subset of that overall population.
That is, the original bill in 2001 provided immigration relief to what was referred to as “unauthorized childhood arrivals” who, like the larger unauthorized population, were typically also unable to work legally and were also subject to removal from the United States. But many policymakers, and indeed the majority of the general population today, viewed and continue to view this portion of the unauthorized population more sympathetically than unauthorized immigrants on the whole because unauthorized childhood arrivals had arrived in the United States as children, generally through no fault of their own, and consequently, they were not seen as being responsible for their unlawful status.
Whether we continue to focus on the overall unauthorized population, or the subset of that population now commonly known as the Dreamers, the reality is the problem of any or all of them being here is not going to go away until we as a nation take steps to resolve the issues of why they came here in the first place and, now that they’re here, what we do with (and for) them.
From an economic standpoint, President Biden has history on his side that some sort of legalization program would be a boon for the U.S. economy; that is, the notion of legalizing unauthorized individuals is not only a humanitarian gesture, but it will also create an economic benefit to the United States. Studies show that individuals who are in the United States lawfully earn more than those who are unauthorized. What’s more is that these extra earnings generate more tax revenue for federal, state, and local governments; they also result in more consumer spending which sustains more jobs in U.S. businesses. There’s no shortage of substantive economic (and legal) arguments why President Biden should not fight, and fight hard, to get his legislation passed.
The U.S. Citizenship Act of 2021 is President Biden’s first, and may end up being his best (and only), effort to address these incredibly important issues. I hope that Americans, all of us, can get our acts together and support this sensible and reasonable solution to a problem that has vexed our policymakers for generations. The U.S. Citizenship Act of 2021 is legislation that builds upon the contributions of immigrants in and to the United States, reunites families, strengthens our economy, expands humanitarian protection programs, and importantly, provides legal status and ultimately citizenship for the 11 to 13 million unauthorized individuals, young and old, who currently live in the shadows. Let’s create some sunlight for them.
 There’s probably two subsets that have received attention, the second one being agricultural workers. I’ll save that discussion for a separate article.
Haven’t we been down this road before? Many times now? Will we be reading about Comprehensive Immigration Reform 2.0, 3.2, or Version 7? I don’t know how to characterize it anymore. Or are we instead heading into a period of Executive Orders to effectuate change because, despite the Democrats being in control of Congress, there’s no desire (seemingly) by Republicans to work with their Democratic counterparts across the aisle for meaningful, and yes, comprehensive immigration reform? Time will tell.
Suffice it is to say, we should all keep an eye on the news during the first 100 days of the Biden Administration to see what unfolds. The President’s campaign promises were bold. Candidates’ election promises almost always are. And then, with victory in hand, the cold reality of actually governing sets in.
I personally sat in front of my television and watched President Biden’s inauguration speech in real time. It gave me hope, not only after having watched the events unfold at the Capitol building two weeks earlier, but after four long years of dealing with Donald Trump and his evil minion Stephen Miller, the tone was actually postive. At long last, someone else would be occupying the White House, and the Democrats controlled Congress, slim as their margin in both houses may be.
So, with that, President Biden, on January 20, 2021, sent the U.S. Citizenship Act of 2021 to Congress. Highlights of the proposed legislation include changes to strengthen and improve our legal immigration system, reunifying families who have been separated by years long visa backlogs, and providing a path to citizenship for Dreamers and other undocumented people residing in the United States while, at the same time, addressing the root causes of migration to the United States from Central America. There’s so much more in the bill.
The bill is strikingly similar in so many respects to a predecessor bill introduced years ago by a bipartisan group of Senators, known then as the Gang of 8, during the second term of the Obama Administration. No surprise in the current environment, the only two remaining Republican Senators from that group are no longer interested in supporting President Biden’s proposal. Go figure.
So, as Senator Bob Menendez (D-NJ) and Representative Linda Sánchez (D-CA) lead the introduction of the U.S. Citizenship Act in their respective congressional chambers, President Biden is busy at work, signing Executive Orders which, in the immediate term, will reverse President Trump’s executive order excluding undocumented immigrants from the reapportionment count, preserve and fortify protections for Dreamers, reverse the Muslim Ban, repeal President Trump’s interior enforcement Executive Order, and stop construction on the border wall, among other actions.
Governing by Executive Order is of course not the preferred means, but as I wrote some time ago, according to the American Immigration Council, between 1956 and 2014, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together. So, here we go again.
President Biden has repeatedly voiced his commitment to ending the Trump administration’s inhumane and unfair immigration policies and, in doing so, laying out his own bold and expansive agenda that will ensure our immigration system reflects our values and undergoes the reform that we all agree is desperately needs. Day 1 of the Biden Administration has now come and gone. He has at least honored his promise to get the ball rolling by introducing the U.S. Citizenship Act of 2021 to Congress, and by signing a myriad of Executive Orders to lessen the toll of the Trump Administration’s terrible immigration policies. Let’s see where it goes from here.
 The Gang of 8, as they were known in 2013, included Senators Chuck Schumer, Dick Durbin, Lindsey Graham, Bob Menendez, Marco Rubio, and Michael Bennet. Also included in that group were the late Senator John McCain, and former Senator Jeff Flake.
Happy New Year everyone! What a year 2020 was! An understatement to say the least. I’m happy to see it left behind in the rear view mirror. Along with the fourth (and mercifully the last) year of the Trump Administration, we “welcomed” a once-in-a-lifetime pandemic to our shores and all the misery that came as a result of it.
As I reflect back on 2020, there’s no doubt that the human toll, and specifically the death toll, was awful. Most experts say it’s going to get worse before it gets better. That said, I think the toll on our collective mental health has been equally as bad, and some might argue worse.
And as bad as it’s been for you and I, imagine the uncertainty of being an immigrant in America, whether you’re here lawfully or not. Combine that with a pandemic that has thus far taken the lives of almost 350,000 souls in the United States, and infected (as far as we know) more than 20 million, it’s not hard to imagine the stress that immigrants are under during these incredible times.
Trump’s legacy will include many things. It will also be long-lasting. The mark he has left on U.S. immigration policy will be indelible in some cases. Plain and simple, President Trump and his minions like Stephen Miller have been more hostile to U.S. immigration policy and the immigrants that policy is meant to serve than any other administration I can think of, making it unnecessarily more difficult for people to visit friends and families, and to live or work in our communities.
I recently saw an interview that Ken Cuccinelli, Acting Director of U.S. Citizenship and Immigration Services (“USCIS”), gave on FOX News in 2019. I quote: “First of all, I see USCIS as a vetting agency, not a benefits agency,” Cuccinelli said. He went on to say, “[w]e have benefits that we give when people meet legal thresholds but it’s on them to prove they’ve done it and it’s our job to make sure those are going to people who have in fact met those thresholds, and we’re protecting America by screening people trying to come in and stay here a long time.”
I don’t disagree that USCIS must do its job responsibly, and vetting an applicant for an immigration benefit like permission to work or getting Green Card is part of that process. But that’s part of how USCIS effectuates its mission, which is to adjudicate benefits for foreign nationals. Mr. Cuccinelli’s viewpoint is symptomatic of the larger Trump Administration view that immigration is a bad thing for our country.
Over the past four years, we have recommended to our clients, contrary to our practice pre-Trump, that if they are eligible, they should apply for citizenship in the United States. I think it’s a very personal thing for someone to give up citizenship to their original country in order to become one in ours. We’re apparently not the only ones who make this recommendation now. According to the Migration Policy Institute, the number of naturalization applications filed annually has increased in recent years.
Most credit this to the President’s anti-immigration rhetoric during the 2016 election cycle which continued into and throughout his administration. No one was spared. Legal immigrants, undocumented immigrants, asylum seekers, and applicants for citizenship. Also not spared were individuals seeking to extend their temporary status in the United States where that benefit had previously been “vetted” by USCIS. Go figure. These are but a few of dozens and dozens of examples.
Citizens of the United States have so many more protections under our law than someone who is not. Hasn’t that proven to be the case over the past four years (at least within the immigration context)? But still, how did we arrive at this point?
We’re now into a New Year, and in a couple of weeks, we’ll have a new president. Although we may be in the midst of a dark winter as far as COVID-19 is concerned, even with COVID-19 we can now start seeing the hint of a light at the end of the tunnel. President-elect Biden has a lot of work ahead of him, if nothing else, to try to get our immigration system back to where it was before President Trump was sworn in (imperfect as it was even back then). I hope he’s up to the task.
I went to bed around 9:30 p.m. on election night. I just knew that the results would not be final that evening, and watching the news through the night was going to do nothing but stress me out (and it was). I was also having this strange sensation of “deja vous all over again” from election night four years earlier.
When I started writing this article, Vice President Biden had taken a small but meaningful lead in the Commonwealth of Pennsylvania which, if it held, would bring him over the 270 electoral votes that he needed to become President-elect of the United States. The wind was at his back.
The wind kept up and yesterday morning (again, as I write this), the major news organizations called the race, and Joseph R. Biden will become the 46th President of the United States. It’s been a long four years (for me anyway, and for many of the clients we represent).
About a week before the election, NBC News and other news outlets were reporting that the Trump Administration, through its immigration minion-in-chief, Stephen Miller, was setting out an aggressive and hardline immigration agenda for the President’s second term. I couldn’t bear to read it, but of course I had to and did. Mr. Miller’s proposed second term agenda included the following:
(a) the Administration would expand its policies that now require asylum seekers in the United States to first seek protection from other countries, which currently includes Guatemala, El Salvador, and Honduras, to now include the rest of the world.
(b) the Administration would aggressively crack down on sanctuary cities by punishing those cities that prevent law enforcement from turning undocumented immigrants over to Immigration & Customs Enforcement (“ICE”).
(c) the Administration would expand what is commonly known as the “Muslim travel ban” by taking an applicant’s “ideological sympathies or leanings” into account during the visa interview process.
(d) the Administration would seek to “curtail” H-1B nonimmigrant specialty occupation visas, get rid of the current lottery process during the initial allocation process and replace it with a system that prioritize visas for those being offered the highest wages.
Please, enough already. This morning the American Immigration Council reported that there have been over 900 changes to the U.S. immigration system over the past 4 years. 900!!! Imagine trying to keep up on your practice area or trade when there’s that much change on an almost day-to-day basis.
As I’ve noted before, it amazes me that Mr. Miller, himself a descendent of immigrants, advocates 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.
And yet Mr. Miller became the poster-child for President Trump’s anti-immigrant policy. It just makes no sense (to me anyway). Well, I hope the door doesn’t hit him in the ____ on his way out of the White House. His days are over.
Not to overdramatize this, I do have a short-term concern about what the President will do between now and inauguration day (not on the legal front in terms of contesting the election, but more so on the executive order policy front and what further damage he and Mr. Miller can do to U.S. immigration policy).
Many of the 900 changes that President Trump has implemented over the past four years have been through the stroke of his pen (i.e., executive action, etc.) as opposed to actual legislation (given the fact that the House of Representatives is controlled by the Democrats). Assuming the wind at Vice President Biden’s back continues to blow, I presume (or at least I am hopeful) that it will be easier for him to unwind all of the terrible wrongs that President Trump has performed over the last four years.
Just this morning, the New York Times reported that President-elect Biden, on Day 1, would begin a “yearslong effort to unwind President Trump’s domestic agenda and immediately signal a wholesale shift in the United States’ place in the world.” I am tired of this election season. I am also tired of what I’ve watched and listened to from the White House over the last four years. Our country is deeply divided, and President-elect Biden will now, and for the foreseeable future, have to govern in President Trump’s America. I look forward to Day 1.
In terms of the President’s income taxes, Twitter (and other more mainstream media) has been of course alight with all sorts of buzz as to how much you pay in income taxes relative to the President, how much I pay, and so on. But the one Tweet that did catch my eye, and it quickly became more than one, is how much in income taxes undocumented immigrants pay to the federal government each and every year. According to this Tweet (and it was from someone who I do not follow, but who was re-tweeted by someone I do follow), undocumented immigrants paid $27,000,000,000.00 in taxes in 2017. (I have no idea whether this Tweet is factually accurate.) President Trump, according to the New York Times’ article, paid a mere $750.00 in federal income taxes. So I’ve done some digging.
Let me paint a picture for you. Often I will have a potential client in my office who is looking for a way to lawfully stay in the United States. While assessing his or her circumstances, more often than not they will tell me that they’ve worked in the United States for a number of years (sometimes many many years) and have always paid taxes. They’re also able to document that for me too. They pay taxes for any number of reasons, including just wanting to do the right thing.
Undocumented immigrants pay taxes either using an Individual Taxpayer Identification Number (“ITIN”), which over the years has evolved in terms of who was eligible to obtain one. Some, of course, use other people’s Social Security Numbers. Some use fake Social Security Numbers. The takeaway, however, is that they’re paying taxes into a system that most will not get any benefit from.
Current data is difficult to come by. In a 2014 Internal Revenue Service (“IRS”) Nationwide Tax Forum, the IRS estimated that individuals using ITIN’s paid over $9 billion in withheld payroll taxes annually. According to the IRS, in 2015, 4.4 million people paid $23.6 billion in total taxes using an ITIN. Because undocumented pay into a system that they are not eligible to collect benefits from when they retire, in 2010, $12 billion more was collected from Social Security payroll taxes of undocumented workers than were paid out in benefits.
According to the Institute on Taxation and Economic Policy (“ITEP”), undocumented immigrants paid $11.6 billion in state and local taxes in 2013, which includes $7 billion in sales taxes, $1.1 billion in state income taxes, and $3.6 billion in property taxes.
The clear take away is that undocumented immigrants are paying a substantial amount of incomes taxes (both state and federal), as well as other types of taxes too (e.g., property taxes, sales tax, etc.), including, according to one report, tens of thousands of dollars by prior employees of one or more of Trump’s own companies.
We can debate all day long whether the President’s position that he’s practicing smart tax avoidance, using lawful means to deduct legitimate business expenses, losses, etc., is appropriate. There is, however, something that does not sit well with me (anyway) when undocumented immigrants are paying so much into a system that they will likely never benefit from, and our President is paying in so little.
Let that sink in.
 National Taxpayer Advocate, Annual Report to Congress, Vol. 1, Internal Revenue Service, 2015, 199-200, https://taxpayeradvocate.irs.gov/Media/Default/Documents/2015ARC/ARC15_Volume1.pdf.
 “Effects of Unauthorized Immigration on the Actuarial Status Of the Social Security Trust Funds,” by Stephen Goss, Alice Wade, J. Patrick Skirvin, Michael Morris, K. Mark Bye, and Danielle Huston (Actuarial Note, No. 151, April 2013), Social Security Administration, Office of the Chief Actuary, Baltimore, Maryland.
 “Undocumented Immigrants’ State & Local Tax Contributions”, by Lisa Christensen Gee, Matthew Gardner, and Meg Wiehe, Washington, DC: Institute on Taxation and Economic Policy, February 2016, http://www.itep.org/pdf/immigration2016.pdf, p. 2.
I started writing this blog in 2013. I’ve actually enjoyed writing (just about) every piece. It gives me time to step away from my daily practice, put “pen to paper”, and educate some of you on the complexities of my world (i.e., my law practice).
Since 2016, this article has also given me the opportunity to vent, perhaps a lot, and maybe even too much. Many of you have noticed. As if the practice of immigration law is not complex enough, it became unbelievably more so, unnecessarily in my opinion, when Donald Trump was elected as our 45th U.S. President.
Right now, the field for 2020 is narrowed down to two. The race has been fully joined. Donald Trump versus Joe Biden. What does that mean for “immigration”? A lot!
Let’s reflect back to the President’s inaugural speech. “We, the citizens of America, are now joined in a great national effort to rebuild our country and to restore its promise for all of our people.” These were just about the first words uttered by President Trump in his inaugural address. Almost four years later, given the President’s rhetoric on the campaign trail (both then and now), I continue to find it ironic that he in the same sentence speaks how “the citizens of America” would restore our country’s promise “for all of our people.”
Hindsight is 20/20. “All of our people” does not mean everyone that’s here. Nope, citizens only for our President. “Every decision on … immigration … will be made to benefit American workers and American families.” Well he’s held true to that statement. Fewer (and in some case almost no) rights for almost everyone else, whether they are lawfully living in the United States or not.
You might recall that President Trump quoted the Bible in his inaugural speech; specifically, “how good and pleasant it is when God’s people live together in unity.” I agree. “All of our people” should be able to remain here and live here in unity.
Joe Biden strikes me as a person of profound compassion. Among other things, his platform advocates for immediately reversing the Trump Administration’s cruel and senseless policies that separate parents from their children at our border. His platform also advocates for ending President Trump’s detrimental asylum policies, reversing Trump’s public charge rule, ending the so-called “national emergency” that bleeds federal dollars from real national security concerns to build a wall (that Mexico was supposed to pay for), and protecting Dreamers and their families. Mr. Biden also advocates for rescinding the President’s travel and refugee bans, commonly referred to as “Muslim bans.” He also advocates for restoring sensible enforcement priorities (at our border and within the U.S.).
Equally as important, Mr Biden’s platform calls for modernizing America’s immigration system, including creating a roadmap to citizenship for the nearly 11 to 13 million people who are present in the United States, have been living in the country for years, but are without status and often are here through no fault of their own. I’m all for that.
Of course, he cannot do it alone. He’ll need lots of congressional support in order to accomplish any of this. For starters, though, we must do our part. We need to vote. We need to vote like our country depends on it. Because it does.
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.