The other day, I saw the following headline on the NBC news site: Rep. Steve King: I drank from the toilet-fountain hybrid at border facility and it was ‘pretty good’. The article describes Rep. King’s recent visit to a migrant detention center where he explains that he “went into that cell where it was reported that they were advised they had to drink out of the toilet” and that drink was “pretty good.”
I’m sorry, what?
I’ve worked in this field, either as a lawyer or an advocate, for over 30 years now. Immigration has always been a hot topic, but never the proverbial third rail of politics as it is today (and has been for about the last three years). When I read the article, I thought it would be interesting (but ultimately found it to be rather sad) to take a sampling of other immigration-related articles that have been in the news cycle over the last month or so. Here a just a few:
- Many Moms Say Kid’s Health Worsened in Immigration Custody. According to the New York Times, a Dilley Pro Bono Project study found mothers who were detained this past summer reported that the health of their children worsened in custody, including bouts of fever, vomiting and diarrhea.
- Pentagon Details Programs Targeted for Cuts to Fund Border Wall. The Wall Street Journalreports that the Trump administration plans on diverting $3.6 billion from military-construction projects in 23 states, 3 U.S. territories and at least 19 countries to build or fortify portions of the President’s wall along the U.S.-Mexico border. Recall, of course, that the President has told us countless times that the wall would be paid for by Mexico.
- Chief of U.S. asylum office reassigned as White House pushes for tighter immigration controls.According to the Washington Post, in what appears to be a demotion, the head of the asylum office at U.S. Citizenship and Immigration Services (“USCIS”) is being removed from his job and reassigned, “a move that follows multiple White House-directed attempts to raise new barriers to those seeking humanitarian refuge in the United States.”
As I write this article, the articles above are just from the day before. Here are a couple more from August.
- Trump Administration to Divert Hurricane Relief Funds for Border Detention. Just days before Hurricane Dorian devastated the Bahamas, and was on track to impact coastal areas of the United States (although not Alabama), The Wall Street Journalreported that the Trump administration planned on using $271 million of Department of Homeland Security (“DHS”) appropriated funds, including some funds designated to help hurricane-stricken areas, to detain and remove immigrants who unlawfully cross the southern U.S. border.
- Fed Up With Immigration Backlog, Lawyers Head to the Courts. As a result of what I can only say feels like unprecedented backlogs and delays, Bloomberg reports that attorneys are turning to the federal courts in an effort to “unclog” massive immigration application backlogs, some lasting up to seven years for simple applications.
There are so many more. The new “public charge” rule,the immigration raids in Mississippi and the countless kids left parentless as a result of them, and so on and so on.
What have we become? Who have we become? The bad news seems endless, and with it, we see almost daily dramatic changes in DHS policy under the Trump administration which have and continue to undermine our legal immigration system that the agencies that were created to facilitate.
There are processing delays, changes impacting students and scholars, changes in the “public charge” ground of inadmissibility, not to mention the ever-present issue that U.S. employers undergo annually to hire coveted H-1B, H-2B or H-2A nonimmigrant workers.
We need to hold DHS and the President accountable for the hardship they are creating to families, vulnerable populations, and U.S. businesses around our great country. The public deserves no less.
I will be addressing this very critical change in a separate article.
As I write this article, we’re now into September, the end of summer is here, and my kids are heading back to school. One of my sisters-in-law is an elementary school teacher in the area, and invariably when we gather at family events, she tells me that her best and hardest working students are those from other countries. She also tells me that those kids’ parents support their kids and their education in ways she does not see with their U.S. citizen counterparts. As she states it, it just seems to mean more to them.
This always makes me think about immigration and education in America. There are so many ways to approach this. From elementary school through college and beyond, foreign students and their parents face a myriad of challenges, including simply attaining their educational goals, including accessing college.
All children, regardless of their immigration status, have a constitutional right to attend our nation’s public schools from kindergarten through high school. While a quality education can provide low-income Americans and immigrants with a path out of poverty, the challenges confronted by students who are not proficient in the English language create additional hurdles for immigrant students. Yet, as my sister-in-law always notes, they and their families work very hard to succeed. And this success can be measured.
During the Trump presidency, we’re becoming numb to the inflammatory rhetoric about immigrants, and it seems that the President’s focus for the 2020 elections will not be on traditional kitchen table issues, but rather divisive and misleading statements about America’s borders, asylum seekers, and the like. The undertone of all this is that some how immigrants pose both a physical and economic threat to native-born Americans. Nothing could be further from the truth.
Here are some facts:
- According to the Brookings Institution, children of immigrants tend to attain educational outcomes that are like those of native-born Americans, but with higher rates of college and postgraduate attainment (i.e., they are more likely to be highly educated).
- According to the Cato Institute, 43% of all recently-arrived immigrants are college graduates, compared to 29% of native-born Americans.
Fast-forward to what happens after these kids get out of college:
- A June, 2011 report from Partnership for a New American Economy states that 40% of Fortune 500 companies were founded by immigrants and their children, employing over 10 million people worldwide.
According to Inc., immigrants launch 20% of U.S. businesses despite being only 13% of the population.
There’s no shortage of data on the positive impact of immigration on our economy. And an argument can be made that it all starts with a quality education. While the federal government imposes significant restrictions on foreign students who wish to come to the United States to study (e.g., they most show that they have sufficient funds to cover all their expenses during their anticipated course of study), many states, including New York, are now becoming more progressive in enacting tuition equity laws for those foreign nationals already present in the United States.
Generally, these laws permit certain students who have attended and graduated from secondary schools in their state to pay the same tuition as their “in-state” classmates at their state’s public institutions of higher education, regardless of their immigration status. Some states, New York again also included, offer financial assistance to students who meet certain criteria, regardless of their immigration status.
These laws are being enacted to help young people (like Dreamers), who were brought to the United States by their parents, through no fault of their own, who have worked hard in school with the hope of going to college and often discover that they face obstacles preventing them from doing so, again not of their own making.
And, playing it forward from what my sister-in-law tells me, the students (and their parents) who benefit from these policies tend to be very goal-oriented, with very high academic standing. Why in the world would we want to hinder their academic success when the resulting benefits of their education are so positive for America? Among other things, immigration makes America great … and always has.
Plyler v. Doe, 457 U.S. 202 (1982).
As I write this article, the Saratoga thoroughbred racing season is just days away from its opening day. The trainers, veterinarians, farriers and jockeys can all be seen milling around the barns and training track. Downtown, the community is buzzing with visitors from all over the world, and the restaurants and other hospitality-based businesses are filled to capacity.
Meanwhile, in Washington, D.C., our president is planning large-scale enforcement actions and raids, apparently in ten major cities across the country. Media outlets are reporting that the raids will take place in Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco.
Although not a major city (size-wise anyway), the President’s proposed actions have people and businesses worried in my own hometown of Saratoga Springs. Unfortunately, it is now common to see U.S. Immigration and Customs Enforcement (“ICE”) conducting enforcement actions in our community. It started in earnest in the Spring of 2017, and it continues today. It is having a real impact on service-industry businesses. This time of year, it also impacts the race track’s back stretch workers.
The back stretch workers are absolutely essential to the horse racing industry. They do all of the little things to make our track experience enjoyable (and candidly they perform jobs that most U.S. workers don’t want to do.). A great many of these workers are foreign workers. And although most of these workers are here lawfully, certainly some are not. Likewise, in our restaurants and hotels, many of the back-of-the-house workers that you rarely if ever see are also foreign workers. And yes, I am sure some of them are not here lawfully.
President Trump’s enforcement actions and raids are happening amid a very tight labor market nationally. Saratoga Springs is fortunate to have very low unemployment. But with that comes issues associated with hiring and retaining enough workers to fill year-round labor needs, including the bump that employers need during track season.
Some reports suggest that President Trump’s immigration raids will focus on migrant family units with final orders of removal. Other reports have indicated that targeted individuals will be minors who came into the U.S. without their parents and have since turned 18, individuals who were ordered removed in absentia, and individuals who missed a court hearing and did not thereafter respond to letters mailed to their homes by the Department of Justice. The common theme seems to be the mass round-ups of vulnerable families from Central America who have fled to the United States to seek asylum and have since been ordered removed.
In this era of enforcement actions and raids, it is critically important that we remember that every person living in the United States, including those individuals who are undocumented immigrants or otherwise here unlawfully, have certain rights under our Constitution, whether they be in public, in their workplace, or in their home.
If you know someone who is undocumented or otherwise present in the United States unlawfully, and an ICE officer stops them on the street or in a public place, they have rights. First, they have the right to remain silent. They do not need to speak to the immigration officers or answer any of their questions. Second, they may refuse a search. If they are stopped for questioning but are not arrested, they do not need to consent to a search of themselves or their belongings. (An officer may “pat down” an individual’s clothes, however, if he or she suspects an individual has a weapon.) Finally, every individual has the right to speak to a lawyer. If an individual is detained or taken into custody, then he or she has the right to immediately contact a lawyer.
If an individual is in their home, and an ICE officer knocks on their door, in addition to all of the above rights, they do not have to open the door or let the officers into their home unless they have a valid search warrant signed by a judge. Finally, if an ICE officer comes to someone’s work place, they again must have a valid search warrant or the consent of the employer to enter non-public area.
The President’s enforcement plans are a monumental waste of time and resources and, as always, grounded in politics. We should all remain focused on real solutions to the immigration problem that has plagued our country for longer than I care to remember. The members of our community who are being arrested, detained and deported are mothers, fathers and children. They’re our neighbors. They’re the people who make your summer in Saratoga experience all that you want it to be for you and your families. Let’s stop playing games and starting working on real solutions. It’s about time.
Some of you know that I was engaged by the late Sr. Maureen Joyce, the then-CEO at Catholic Charities of the Diocese of Albany, in July 2000, to help Catholic Charities launch an immigration program that would serve low- and no-income individuals from a 14-county area in and around the Capital Region. Catholic Charities created the immigration program to foster and facilitate family unity, freedom, and citizenship for eligible foreign-born persons by providing low-cost and high-quality legal services. Catholic Charities also engages in public advocacy and community training and outreach to advance the fair treatment of our nations’ immigrants, and to protect the rights of such immigrant and refugees.
My initial task was to obtain accreditation for the agency with the Board of Immigration Appeals (“BIA”), which is part of the Executive Office of Immigration Review (“EOIR”), so that Catholic Charities could provide services to individuals who were in need of immigration assistance. Once we did that, I hired a staff of one, who works part-time. More recently, we’ve hired another individual, who also works part-time. My work for the agency is part-time. Although Catholic Charities is authorized by the BIA to charge fees for its services, to date we never have.
The Catholic Legal Immigration Network, Inc., commonly known as CLINIC, is the legal support arm for Catholic Charities’ immigration programs across the country. CLINIC was established in 1988 by the U.S. Conference of Catholic Bishops to support the rapidly growing network of community-based immigration programs like ours in Albany. CLINIC’s creation enables Catholic organizations across the country to get the necessary training and institutional support they need to provide low or no cost immigration legal services to those in need.
Here are just a few facts about CLINIC:
• In 2017, CLINIC’s network conducted an estimated 276,000 consultations, more than half of which became cases for network agencies.
• Also, in 2017, CLINIC’s network filed approximately 247,000 applications, petitions, motions, or waivers. Those applications served about 500,000 people, including the applicants themselves and their dependents.
• Volunteers accounted for more than 84,000 hours of assistance in 2017, enabling programs to provide legal services to a broader base.
• And finally, also in 2017, CLINIC supported nearly 5,400 community outreach presentations, which reached nearly 325,000 people, all of which provided necessary and importation information about legal rights and options.
There are many “perks” of being member organization of CLINIC. For me, the biggest perk is being able to work with, and be supported by, a group of seriously talented immigration lawyers and advocates. Last month, and each year for nearly the last twenty, I have attended CLINIC’s Annual Convening. Among other things that takes place at the Convening, attorneys and advocates gain insight and premier education about immigration law, program management and advocacy. The Convening moves around the country each year. This year we were in Pittsburgh. In the past, we’ve been to Tucson, Portland, New Orleans and of course Washington, D.C. Regardless of the location, I come home every year so incredibly impressed by the level of knowledge that the attorneys and advocates who teach the programs have, and their incredible commitment to protect the dignity and the rights of the immigrants that they and we serve. I marvel at how much they know and how much I still have to learn. I am so incredibly grateful for their incredible passion and commitment.
CLINIC’s staff trains close to 10,000 people a year, in topics ranging from the basics of immigration law to the nuances of representing clients in detention and removal / deportation proceedings. It’s hard work and it’s very complex. They make it seem easy, and more than anything, it’s clear that they love what they do. It’s very motivating. When I return each year, I am energized to keep trying, to perhaps do just a little more.
In these very tumultuous and politically troubling times, CLINIC’s work, and ours at Catholic Charities in Albany, is more important than ever. Given the current political climate, the current make-up of Congress, and the fact that President Trump has shamefully shown no humanity to almost all immigrants except for perhaps “the best and brightest”, the work of CLINIC, its member agencies, and frankly all not-for-profit immigration programs across the country, needs your support. We all need to do our part.
Now that the midterm elections have come and gone, and we’re fully two years into the Trump presidency, it seems like an appropriate time to take a look at various pieces of the President’s immigration “agenda”, if you can call it that.
For far longer than I care to remember, I have hoped that our immigration system would be reformed. Immigration “reform” has seen various fits and starts over the past 30 or so years, whether in Congress or the Executive Branch, but nary have these two branches of government, or Congress between its two houses, been able to get on the same page for meaningful reform.
As a result, we’ve seen various changes to our immigration system by means of executive action or regulatory changes.
President Trump relies on executive action seemingly weekly, admittedly as did his predecessors in the Oval Office as well. According to an American Immigration Council study published in 2014, since 1956, 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. That number seems to be growing exponentially during the current administration. President Trump is using this authority, although in his case, he’s using executive authority to eviscerate the asylum process.
For example, in November 2018, the President issued a proclamation that, in combination with a rule promulgated by the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”), bars individuals from seeking asylum if they entered the United States from Mexico between official ports of entry. This proclamation is entirely inconsistent with current law that states that all persons arriving to the United States, whether at or between ports of entry, have the right to seek asylum. Perhaps not all persons who apply for asylum are eligible for that relief. That’s a different issue. But law says that everyone deserves a full and fair opportunity to pursue it. This proclamation is currently subject to legal challenge.
Before that, in April 2018, the President, through his then Attorney General, implemented a “zero tolerance policy”, which resulted in, and continues to result in, the widespread separation of parents and children arriving together at the U.S. southern border between ports of entry. The President’s policy mandates the prosecution for illegal entry of everyone apprehended between ports of entry, including those seeking asylum in the United States.
Because of the public outcry associated with this policy, in June 2018, the President issued an Executive Order addressing the family separation crisis that he created, by expanding the use of family detention. Recent news reports have suggested that the Trump Administration did not then have enough information to reconnect parents with their kids, except for a very few.
More recently, in January 2019, DHS announced its new “Remain in Mexico” policy, which would force individuals arriving at the U.S. southern border who are fleeing violence and persecution in their own countries to remain in Mexico pending their asylum hearing before a U.S. immigration judge. This new policy dramatically changes the well-established process for applying for asylum at the U.S. southern border. It also makes it substantially more difficult for asylum seekers to receive a fair and meaningful review of their claims as required under U.S. law.
And finally, and most recently, in April 2019, the President issued a memorandum ordering further changes to U.S. asylum policies; most notably, a requirement that asylum seekers actually pay a fee just to apply for protection. This proposed change would be the first time in our history that individuals seeking asylum would have to pay to apply for asylum. Asylum seekers are fleeing violence and persecution in their home countries. They arrive at our border with little more than the clothes on their backs and whatever they might be able to carry in their two hands. Forcing them to pay a fee, even if nominal, would be an insurmountable challenge to many asylum seekers, thus leaving them unable to seek the very protection that U.S. law is supposed to afford them.
The President continues to use whatever means he can to gut our asylum protections, and in his view, to deter the flow of refugees to our southern border. The last two years of executive actions and policy changes has significantly impacted families who are doing nothing more than seeking safe passage under long-standing U.S. asylum protections. It needs to stop.
Given the current political climate, the current make-up of Congress, and the fact that President Trump has shamefully shown no humanity to those who seek protection under U.S. asylum law, the only way meaningful change will occur is at the ballot box. That’s less than two (long) years away. We now need to do our part.
The regulations would also require applicants to pay a fee to apply for work authorization for the first time. Currently, asylum applicants can apply for their initial period of work authorization without paying a fee but are required to pay for subsequent renewals.
My wife was listening to the news the other day about the border crisis (yes, it’s real, but certainly not in the way our President describes it) and suggested that I write about it. She’s right, I should write about it. And I will. But first, my New Years Eve debacle has one further (and hopefully final) chapter to it. (I feel like I need to finish the story.) I will be brief.
So, it’s bad enough that as the clock struck midnight on New Years Eve many of my colleagues and I were sitting at our offices or at our homes in front of our computers preparing to file temporary labor certification applications with the U.S. Department of Labor (“USDOL”) for our clients that participate in the H-2B visa program. As the New Year rang in, there were applications for approximately 97,800 workers that were about to be filed with the USDOL for a total of 33,000 H-2B visa numbers, and because of the “unprecedented volume of simultaneous system users”, the USDOL’s computer system completely hemorrhaged and shut down.
Eventually, a week later, the USDOL fixed their computers, and all the applications were filed. Shortly thereafter, U.S. Citizenship and Immigration Service (“USCIS”) announced that it had received enough petitions to meet the congressionally mandated H-2B cap for the second half of the government’s fiscal year for 2019. That means if an employer was not able to file its petition with USCIS on or before February 19, 2019, which was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2019, then the employer was out of luck for 2019. Some of my clients were affected.
Fast forward to last week. The Department of Homeland Security (“DHS”) and the USDOL announced, after consultation with each other and after weighing several factors, including whether U.S. workers would be harmed, that an additional 30,000 H-2B visas would be allocated for the remainder of FY2019. Sounds great, right? Well it is, sort of.
The problem is, the additional visas will be available only to applicants who have held H-2B status in at least one of the past three fiscal years (2016, 2017 and 2018). These are called “returning workers.” So that means foreign nationals who have not participated in the H-2B visa program in the past three fiscal years, or even ever, are precluded from coming being sponsored by U.S. employers who have established a need for temporary workers (e.g., seasonal, peak load, etc.). Again, I have clients that are affected.
Case in point. I have two clients that are not only participating themselves for the first time in the H-2B visa program, but had identified a number of workers that were qualified to do the work their companies needed them for, but none of those foreign workers had ever participated in the H-2B visa program before.
Of course they could try to identify other workers that will meet the guidelines of the governments new rule (which has not even been published yet). But that takes time and can be expensive. And for what purpose? If the government is going to provide additional visas for the H-2B program, what sense does it make to limit the availability of those visas to foreign nationals who have been issued H-2B visas in the past? Seems pretty arbitrary to me?
The H-2B program is an absolutely necessary program for many, many employers who have seasonal or peak load business needs. The process for participating in it, however, is unnecessarily cumbersome, now seemingly arbitrary, and desperately needs to be reformed. Please, Congress, get to work and fix this.
Some of you will recall my post-New Years Eve rant about the H-2B nonimmigrant visa program, and specifically the mayhem that ensued as the clock struck midnight on New Years Eve when the U.S. Department of Labor’s (“USDOL”) servers had a meltdown. As the New Year rang in, there were applications for approximately 97,800 workers that were about to be filed with the USDOL and, because of the “unprecedented volume of simultaneous system users”, the USDOL’s computer system completely hemorrhaged and shut down. There was, according to the USDOL, over thirty times the user demand this past New Years Even compared to the previous year. Doesn’t that tell you something about the need for the H-2B visa program.
One week later – on a Monday – in the middle of the afternoon during a normal workday – the USDOL finally got its act together and most of the H-2B filings that were supposed to be filed on New Years Eve were filed. So, what happened after that?
Well, for one thing, U.S. Citizenship and Immigration Service (“USCIS”) recently announced that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of the government’s fiscal year for 2019. That means if an employer was not able to file its petition with USCIS on or before February 19, 2019, which was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2019, then the employer was out of luck for 2019.
This is yet another example of a visa program that is desperately in need of reform and is woefully mismanaged.
In what can only be described as a glimmer of marginal and limited hope for some of our clients, on February 15, 2019, President Trump signed an omnibus spending bill which includes a provision providing limited cap relief to H-2B employers during FY2019. The Secretary of Homeland Security, Kirstjen Nielsen, has yet to announce how many additional H-2B visas will be made available for the remainder of FY2019.
The second thing that happened is the USDOL updated its procedures for processing H-2B applications. That is, the USDOL has proposed a rule that for all H-2B applications filed on or after July 3, 2019, which is the earliest an employer can start the H-2B process for FY2020, applications will be randomly ordered for processing based on the date of filing and the start date of work requested.
Some of you will recall previous rants of mine related to the H-1B program, and specifically USCIS’s use of a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. I counsel my clients who we file H-1B petitions for with USCIS to “keep their fingers crossed.” Imagine that a client hires you, pays you your fee, and you tell them to “keep their fingers crossed” that USCIS simply selects their petition – in a lottery system. The system is ridiculous.
Politics aside, the United States is experiencing a strong economy with record-low unemployment. The H-2B program’s congressionally mandated cap of 66,000 visas is entirely inadequate to meet the seasonal needs of the many businesses that participate in the program. And for all the nay sayers who say “Hire American”, this program requires employers to recruit for available U.S. workers. In most cases, they’re aren’t any for these positions. And quite candidly, if everyone would allow for a moment of truth, U.S. workers simply do not want to do the jobs that are generally utilized in the H-2B program. It’s just that simple.
According to the H-2B Workforce Coalition, if Congress does not take immediate steps to raise or eliminate the H-2B cap, over 70% of seasonal positions for the second half of fiscal 2019 will go unfulfilled due to cap limitations.
Our government must come up with a better and more equitable system within which employers can hire the help that they need. The H-2B program is an absolutely necessary program for many many employers. The process for participating in it, and the ability to participate in it, however, needs to be totally reformed.
Recall that the H-2B visa program requires employers (or their attorneys) to sit by their computer at the stroke of midnight (on the east coast anyway), on New Years Eve, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company.
USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.
My annual ritual. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having increasingly more difficult conversations with their clients who wish to hire foreign nationals into what are called “speciality occupation” positions. Last year, after President Trump signed an Executive Order on April 18, 2017 entitled “Buy American, Hire American” (“BAHA”), the conversations became very different from previous years. This year it seems even worse. Let me explain.
The purported purpose of the “Hire American” portion of BAHA is to create higher wages and employment rates for U.S. workers, and to protect their economic interests by rigorously enforcing and administering the laws governing entry of foreign workers into the United States. President Trump specifically highlighted the H-1B visa program, directing the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled and highest-paid foreign workers.
As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field.
Notwithstanding what you read in President Trump’s “fake” tweets, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First and foremost, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
An executive order cannot modify existing statutes or regulations. However, BAHA does clearly direct the above-referenced agencies who administer immigration programs to approach their administration obligations from an enforcement standpoint rather than as providing a service to those parties that they regulate. Consequently, a number of agency memoranda have either been issued or repealed since BAHA was signed by the President.
In 2018, practitioners saw how BAHA would play out in real time. Quite simply, as a result of BAHA, employers, their current / prospective employees and their attorneys are being besieged by requests for evidence (“RFE’s”) from USCIS. According to The Wall Street Journal, “the administration is more closely scrutinizing applications for the high-skilled visa program known as H-1B, sending back more than one in four applications between January and August [of 2017] via “requests for further evidence,” according to data from [USCIS], which administers the program. A year earlier, fewer than one in five were sent back.”
In terms of my own practice, and anecdotally what I am hearing from virtually every colleague of mine that practices in this area, these RFE’s are making requests that we’ve never seen before, including questioning the prevailing wage classification and level selected on the underlying LCA associated with the H-1B petition, and also questioning whether the position requires at least a Bachelor’s degree in a specific educational specialty.
Specifically, USCIS is taking the position that a Level 1 wage, as a general matter, cannot support a claim that the offered position is in a “specialty occupation.” Alternatively, the RFE’s often claim that if a position is sufficiently complex to be considered a “specialty occupation”, then it cannot have a Level 1 wage associated with it. Some RFE’s make both arguments and then ask the employer-petitioner to essentially prove the impossible.
And, where at first we starting seeing these RFE’s in specific types of case (e.g., software developers, computer systems analysts), we are now seeing them issued in a wider array of occupations, including engineers (e.g., civil, mechanical, industrial, etc.), lawyers, dentists, teachers, physicians, and accountants/auditors.
Mercifully for our clients we have been able to successfully overcome these RFE’s, but now without a lot of extra time and effort put into the case that, given the existing regulatory framework and case law, seems absolutely unnecessary. These RFE’s have added substantial expense and uncertainty to the H-1B process. The result is that it discourages immigration without making any formal policy change. This needs to change.
You can’t make this stuff up. This is the world that I and a few other local colleagues of mine work in.
So, I asked my wife what she wanted to do to bring in the New Year (not that we usually do anything more than have dinner with some close friends), with the caveat that no matter what it was, I had to be home … in front of my computer … at midnight … because I had work to do. That’s right, many of my colleagues and I (on the East coast anyway) were at our offices or at our homes in front of our computers working as the clock struck midnight. And then mayhem ensued, and I promise you, it was not fireworks or noisemakers. Let me explain.
One of the visa programs that some of my clients use is the H-2B nonimmigrant visa program. The H-2B nonimmigrant visa allows foreign nationals who are citizens of certain named countries (with limited exceptions) to accept “temporary” non-agricultural employment in the United States (e.g., landscape workers, ski resort employees, etc.). Before doing so, however, the sponsoring employer must first obtain a temporary labor certification from the U.S. Department of Labor (“USDOL”) by establishing that there were no willing, able, and qualified U.S. workers available during a recruitment period.
Like some other visa programs, there is an annual numerical limitation for this visa program; specifically there are 66,000 H-2B visas that are available in each government fiscal year. Also like some other visa programs, there are more companies filing applications for a temporary labor certification from the USDOL than there are visa numbers available.
Of the 66,000 worker positions that are available annually, 33,000 are allocated to each half of the fiscal year. This allows industries that traditionally have opposite seasons (e.g., summer beach resorts v. winter ski resorts) to have a “fair” chance at participating in the H-2B program to obtain necessary temporary workers. Because of the incredible demand associated with the H-2B program (indeed even our President allegedly uses this program for his resorts), H-2B applications are now date and time stamped to the millisecond in order to establish the order of submission. Applications are processed by the USDOL in the order that they’re received. And for the second half of the government’s 2018 – 2019 fiscal year, the period for filing a temporary labor certification with the USDOL commenced one millisecond past midnight on New Years Eve.
As the New Year rang in, the USDOL later reported that there were applications for 97,800 workers that were about to be filed by an “unprecedented volume of simultaneous system users.” The USDOL noted there were 22,900 server login attempts on January 1, 2019 versus a mere 721 attempts in the same period on January 1, 2018. Not surprisingly, the government’s online filing system crashed. The exchange that went on over the next couple of hours, well past midnight, on the American Immigration Lawyer Service’s (“AILA”) H-2B attorney Listserv, bordered on a combination of sad, pathetic, and ridiculous. It was also really so unnecessary.
Readers of this piece know how much I long for meaningful reform to our immigration system. There are many substantive examples that I’ve written about over the past few years. This is not one of them. This is a procedural reform, somewhat selfishly written for sure (as anyone who knows me knows that I can barely stay up to 9:00 pm on a normal day), but it’s important.
What kind of program requires employers (or yes, even their attorneys) to sit by their computer at the stroke of midnight, on New Years Eve no less, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company? And in today’s day and age, what kind of government is so ill-equipped to handle the unprecedented volume that they themselves created? Was the system not adequately stress tested? Was no one monitoring it (perhaps in light of the current government shut down)?
As annoying as this whole debacle has been, it’s not missing New Years that bothers me. Everyone who knows me knows that I’m usually sleeping at the stroke of midnight in any event. It’s that our government can’t come up with a better and more equitable system within which employers and their counsel can work to get things done. It really is ridiculous. The H-2B program is an absolutely necessary program for many employers. The process for participating in it, however, is unnecessarily cumbersome and needs to be reformed
For those companies (or their attorneys) filing outside of the eastern time zone, the filing time was an hour earlier for each time zone west you go.
 At that time, the USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.
The midterm elections have come and gone. No one could (or should) disagree, no matter what your political affiliation is, that the politics leading up to and even since the election were and continue to be toxic, at best. Case in point was and is the President’s use of the “caravan” of migrants that trekked across Central America (that he claimed were going to invade our southern border) as the impetus to issue an “asylum ban”.
Specifically, on November 9, 2018, the President issued a proclamation that, in conjunction with a rule promulgated by both the Department of Homeland Security and the Department of Justice, bars any individual from seeking asylum who enters the United States from Mexico between official ports of entry. The proclamation will remain effective for 90 days (and can be extended) or until the establishment of a so-called “safe third country” agreement with Mexico.
Advocates not surprisingly (and in my view appropriately) are up in arms, arguing that the President’s action eliminates fundamental due process protections for asylum seekers. They specifically argue that U.S. law clearly states (and it does) that all persons arriving to the United States, no matter where they enter from, have the right to seek asylum. It is true that not everyone is eligible for asylum, but nevertheless, under current U.S. law, everyone has the right to pursue it no matter whether they seek asylum at a port of entry or otherwise.
Specifically, section 208(a)(1) of the Immigration and Nationality Act (“INA”) provides that “any alien who is physically present in the United States or who arrives in the United States … whether or not at a designated port of arrival … may apply for asylum[.]” This seems pretty clear to me.
As a result of the President’s actions, several immigration advocacy organizations sued in U.S. District Court in San Francisco to halt the asylum ban. In a ruling issued on November 19, 2018, U.S. District Judge Jon S. Tigar temporarily blocked the President’s policy of denying asylum to migrants who cross the southern border into the United States without inspection, saying the policy likely violated federal law on asylum eligibility. Really? No kidding.
Judge Tigar wrote that “[w]hatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”
The Trump Administration appealed, and just recently, the 9th Circuit Court of Appeals, in a 2-1 decision, also refused to immediately allow the Trump Administration to enforce the ban.
The asylum ban represents yet another effort by the President to turn away those seeking protection under our asylum laws. Since taking office, the Trump Administration has detained more asylum seekers, it created the infamous policy that separates asylum-seeking families in connection with its “zero-tolerance” policy, and former Attorney General Jeff Sessions issued the decision Matter of A-B-, which restricts the ability of domestic and gang violence survivors to obtain asylum.
Writing for the 9th Circuit, Judge Jay Bybee, a nominee of Republican President George W. Bush, stated, “Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office.’
Collectively, all of the President’s measures undermine our country’s longstanding commitment to protect those fleeing violence and persecution. Since its inception, the United States has been a beacon for those pursuing freedom and protection against persecution. The President and Congress can ensure the integrity of our borders while still upholding these fundamental truths. They just need to do it thoughtfully and lawfully.