NEW BOOK ON FIANCÉ AND MARRIAGE VISAS

GPI LAW attorney Amien Kacou recently served as editor for the 9th edition of NOLO's Fiancé and Marriage Visas: A Couple's Guide to U.S. Immigration, a popular self-help legal book by award-winning author Ilona Bray, J.D.

DAPA AND EXPANDED DACA ON ORAL ARGUMENT AT THE SUPREME COURT

On April 18, 2016, the U.S. Supreme Court heard arguments in a preliminary injunction suit brought by 26 states (led by Texas) against the Obama administration's 2014 DAPA and expanded DACA initiatives. These initiatives would offer approximately 4 out of 11 million unauthorized immigrants temporary relief from removal (protection from deportation) as well as temporary eligibility for employment authorization documents. More specifically, DAPA could benefit about 3.7 million parents of U.S. citizens and residents, while expanded DACA could benefit about 300,000 individuals who arrived in the U.S. as children -- in addition to the 1.2 million already eligible under the current DACA program.

Texas does not contest the President's claim that Congress has failed to allocate enough resources to deport 11 million people. Nor does it claim that the President, with record annual deportation numbers (around 400,000) achieved under his watch, has failed to properly use or exhaust allocated immigration enforcement resources. There is no challenge to the President's authority to re-organize those resources by prioritizing some immigration law violators over others (for example, serious criminals over DAPA-eligible violators), so that designated low-priority violators can be made officially immune from removal for a limited period of time (three years under the proposed initiatives).

Texas' core challenge to DAPA and expanded DACA is narrower: it claims that these initiatives would create, without Congress' authorization, brand new categories of "lawful status," as demonstrated by the issuance of employment authorization documents.

WHEN CAN REFUGEES BE KEPT OUT OF THE U.S. ON SECURITY AND OTHER GROUNDS?

A number of misconceptions have marred recent public debates on the prospect of admitting more Syrian refugees to the United States in light of the current Syrian refugee crisis. In particular, concerns over the potential terrorist threat posed by this population have been exaggerated. For one thing, the so-called Islamic State has been far more interested in bringing foreign fighters into Syria and Iraq to pursue palpable territorial stakes than in sending out operatives on improbable Al-Qaeda-style missions to the U.S. (Note that Islamic State-inspired attacks in Paris, France and in Garland, Texas were both perpetrated by homegrown -- respectively, French-born and U.S.-born -- terrorists.)

More importantly, the long and scrupulous U.S. refugees admissions process clearly presents the least efficient, least likely infiltration route for terrorist plotters. (It has been perceptively pointed out, for example, that it would be "far easier for terrorists to enter as tourists—or via smuggling networks.")

From a legal perspective, part of what makes this resettlement process (whether via U.N. referral or via family reunification) so arduous, besides its procedural and substantive complexities, is that it is particularly amenable to a patient and multilayered application (both formally by U.S. government agencies and informally by UNHCR and/or established voluntary organizations) of inadmissibility grounds (i.e., legal bases for keeping people out of U.S. soil). In the Syrian context, in particular, we can expect an especially strict application of the otherwise-overbroad inadmissibility ground of association with terrorism.

Nonetheless, waivers of inadmissibility might be available in limited cases. For more information on this and related legal issues, read my article on NOLO.COM.

GPI LAW IN THE NEWS

GPI Law attorney Amien Kacou's NOLO Q&A on using DACA advance parole to allow for adjustment of status in cases of illegal entry was quoted in a February 16 Epoch Times article.  You can read the article here.

LEGALIZING UNAUTHORIZED IMMIGRANTS: EU vs. US

As we begin yet another year disillusioned at the charade of comprehensive immigration reform in the United States, perhaps we might, in the proud tradition of Thomas Jefferson, gaze across the Atlantic for relative consolation. There, we might hope to find in, say, the 22,000 migrant deaths at the European Union's southern border since the year 2000 (as compared with "only" 6,000 deaths at the US-Mexico border) a reminder--albeit morbid--of why, despite its shortcomings, America is still the world's beacon: "a magnet for all who must have freedom, for all the pilgrims from all the lost places who are hurtling through the darkness, toward home."

But, then, what should we make of the fact that EU nations have actually legalized far larger proportions of their unauthorized immigrant populations than the United States in recent decades?

RECENT ARTICLES ON ASYLUM

The following articles were published in the past few months on NOLO.COM:

• Qualifying for Asylum Based on Persecution for Your Race (available here)
• Qualifying for Asylum Based on Persecution for Your Ethnic Group (available here)
• Qualifying for Asylum Based on Persecution for Your Religion (available here)
• Qualifying for Asylum Based on Persecution for Imputed Political Opinion (available here)
• Can Asylum Applicant Claim Discrimination as Persecution? (available here)

RECENT ARTICLES ON REFUGEE STATUS

The following articles were published last month (in February 2014) on NOLO.COM:

• How to Get a Referral to the U.S. Refugee Admissions Program? (available here)
• Can a Refugee or Asylee Lose Status Once Conditions Improve in Home Country? (available here)
• How Can Refugee or Asylee Help Family Come to the U.S.? (available here)
• Can refugee brother and sister come to the U.S.? (available here)
• Can refugee apply to adjust status after one year has passed? (available here)

ARTICLE ON REFUGEE MARRIAGE RECOGNITION

GPI LAW attorney Amien Kacou has a second piece published in the Georgetown Journal of International Affairs Online. The article argues in favor of relaxing the application of marriage recognition rules (and marriage registration requirements, in particular) to family relationship determinations in the case of refugees.

ARTICLE ON IMMIGRATION "AMNESTY"

GPI LAW attorney Amien Kacou has a new online article published in the Georgetown Journal of International Affairs. The article, titled "The Equity of Immigration 'Amnesty'," is written in light of current U.S. immigration reform debates; it argues in favor of granting so-called "amnesty" to unauthorized immigrants as a matter of justice.

FOUR H-1B MYTHS

With this H-1B season having drawn to an early close (due to USCIS receiving an overwhelming number of petitions), and with legislative immigration reform still pending, the time seems opportune to dispel a number of myths about the program.

First, some general facts: the H-1B program was created in 1990 to allow U.S. employers to hire up to 65,000 foreign workers (plus 20,000 more with advanced degrees--starting in 2004) in specialty occupations (i.e., typically high-skill work) for a period of three years (renewable once--with shorter extensions available for workers with pending employment green card applications).

So far, about half of all H-1B workers seem to have come from China and India alone. And about half lived in the United States under a different status (often as students) before obtaining their H-1B visa.

The numerical cap (from which institutions of higher education, not-for-profit organizations and government-research organizations became exempt in 2000) was temporarily increased to 115,000 in fiscal years 1999 and 2000, and to 195,000 in fiscal years 2001, 2002 and 2003 (the only time when supply exceeded demand).

Systems analysis and programming occupations tend to account for over one-third of all petitions in any given year. And, more generally, STEM occupations tend to account for almost two-thirds of all petitions. Between five and ten percent are in higher education (mostly biology and life sciences).

Although the demand for H-1Bs tends to be distributed across a large variety of employers, nonetheless, a few large tech and consulting (or staffing) companies account for a disproportionate share (though less than 20%). They include US-based companies such as Microsoft and Deloitte, but also Indian companies such as Tata and Infosys.

The largest geographical concentration of H-1B employees is in the New York metro area (which, perhaps surprisingly, boasts numbers as high as the three great California tech centers combined). For more information, read this 2012 Brookings Institution report.

Now for the myths:

A BROAD ADMINISTRATIVE HISTORY OF US IMMIGRATION POLICY

The administrative history of US immigration policy arguably reflects a history of major shifts in political emphasis: from the economy, to culture, then (at least until recently) to security.

The first immigration office in US history was created under the Treasury Department during the economic depression of the late 1880s to enforce related group exclusions (Donovan, 2005). That office then became the Immigration and Naturalization Services (“INS”) in 1891, which developed a new variety of immigration services emphasizing the need for a somewhat more liberal “commercial”  immigration filter, before being transferred from one cabinet department to another throughout the twentieth-century (more so than any other large federal agency)--first to Commerce and Labor, then to Labor, then to Justice, and finally to Homeland Security, depending on the political winds and the prevailing concerns of the times (Donovan, 2005).

And yet, throughout that history, INS was somehow able to retain a fairly consistent identity--as a soft political punching ball. According to Wilson (2000, p. 158), the agency was “conspicuous for its weak sense of mission and low morale.” Many deemed it a unique model of the most terrible form of bureaucratic inefficiency, and its leaders were frequently fired or otherwise replaced. Still, it retained a sort of organizational “inertia […] in large part due to the lack of consensus about what specifically should be changed” about it (Donovan, 2005, p. 577).

Interestingly, this remained the case even after the 1960s, when the ideal of multiculturalism, following the civil rights movement, arguably led to a new liberalization of immigration policies: “the numbers of foreign-born grew so rapidly that many communities and states felt overburdened with the responsibility to absorb them all” (Donovan, 2005, p.36). And, as the number of immigrants grew, so did their political power base--while the functions of immigration enforcement and services continued to vary on a spectrum, somewhere between interest group politics and client politics, depending on larger public perceptions of the per capita costs and benefits of immigration (see Wilson, 2000).

2013 IMMIGRATION REFORM = DREAM + STEM - DV?

The prospect of US immigration reform in 2013 is becoming increasingly clear for at least two categories of aspiring immigrants: DREAMers (a somewhat larger group than current DACA beneficiaries--as described in my last post--including mostly unauthorized immigrants who arrived in the US as minors, often from Latin America) and STEMs (a smaller group including foreign students--often from Asia--who graduate from US universities with advanced degrees in the fields of science, technology, engineering and mathematics).

Although, lately, DREAMers have received more news coverage (and understandably so, considering their numbers, their activism and the compelling "humanitarian" dimension of their story), current government debates suggest that STEMs stand to benefit from equal (if not stronger) bipartisan support in gaining (perhaps even faster) access to permanent residence visas. For example, last September, House Republicans and Senate Democrats introduced very similar bills offering new green cards to 55,000 STEMs per year.

This consensus is consistent with the fact that, as the US Department of Labor has acknowledged, the US faces a serious education and workforce deficit in STEM fields, with dire consequences for global competitiveness and growth, whereas, for instance, according to the Kaufman Foundation of Entrepreneurship, the proportion of new Silicon Valley firms that had at least one key founder who was foreign-born declined from an incredibly high 52% between 1995 and 2005 to a still very high 43.9% between 2006 and 2012 (24.3% for engineering and technology firms in the country at large).

However, the Republican STEM bill, which passed the House last week (quickly following President Obama's re-election with a large share of the Hispanic vote), also included a trade-off in the form of provisions eliminating the Diversity Visa (DV) program--the reason for which Senate Democrats rejected it this week. The DV program, an annual lottery administered by the State Department, provides about 50,000 permanent residence visas to citizens of countries with traditionally low immigration to the US--especially from Africa.

DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA): Two Months In

On August 15, 2012, USCIS (the immigration services branch of DHS) officially began processing requests for deferred removal action under the Obama administration's most recent--and, so far, most significant--prosecutorial discretion and/or humanitarian immigration relief initiative: DACA. (On a minor note: while the administration has convincingly defended the legality of the program on the basis of the principle of prosecutorial discretion, it is interesting to point out that the USCIS website currently categorizes it under the humanitarian label--which normally applies to cases such as asylum, Temporary Protected Status, humanitarian parole, etc.).

Under the new policy, individuals currently in the United States may obtain every two-year a temporary work permit and (basically) a temporary promise from the federal government that they will not be placed in removal proceedings for being present in the country without legal status, if: they arrived before turning 16; they have "continuously resided" in the country since June 15, 2007; they were under 31 and were physically present in the country illegally on June 15, 2012; they have finished high school, have gotten a GED or have been honorably discharged from the military; and they have no significant criminal record and do not threaten national security or public safety. (For details, see here.)

Between 1.2 and 1.7 million individuals (about 70% of whom are from Mexico, and 740,000 of whom may have been employed illegally) are expected to meet these criteria--primarily in California, Texas, Florida and New York/New Jersey. (With reference to the DREAM Act proposal, let's call them "quasi-DREAMers.")

According to the New York Times, as of September, USCIS wouldn't "say how many people had applied, but rough estimates put it at about 150,000 [...], with a fraction having won deferrals." And, as of September 28, that "fraction" stood at only 29 agency-confirmed approvals (for the total number of requests).

MISSION, ORGANIZATION, CONSTRAINTS AND CHALLENGES OF THE DEPARTMENT OF HOMELAND SECURITY

While Executive Order 13228 had created the Office of Homeland Security to focus solely on terrorism, the Homeland Security Act of 2002 (“HSA”) established the Department of Homeland Security ("DHS") to focus mainly on terrorism. The plain language and structure of the Act made this priority clear: the first three clauses describing the new agency's primary mission referred solely to terrorism, whereas other “natural and manmade crises and emergency planning” were mentioned only once, subsequently, as part of “all functions of entities transferred to [DHS].”

That transfer of entities resulted in the largest and most complex reorganization of the federal government since the Defense Department was created in 1947 (Brook and King, 2007; Moynihan, 2005). With an annual budget exceeding $36 billion, DHS would bring together 180,000 employees from twenty-two originating agencies with very different tasks, cultures and management systems into a coherent whole (Government Accountability Office [GAO], 2007; Donovan, 2005).

Among those agencies were newer organizations, including the Transportation Security Administration (“TSA”), which had been recently created under the Department of Transportation to remedy airport security failures attributed to state and local airport owners and operators (Haynes, 2004). There were also old, well-established or otherwise “independent” organizations such as the Secret Service, the Coast Guard, the Federal Emergency Management Agency (“FEMA”) and the Immigration and Naturalization Service (“INS”). Some of those agencies, such as INS, were broken up into separate entities, while others acquired new functions, sometimes stripped from outside agencies, in order to form new entities like Customs and Border Protection (“CBP”).

This vast collection of agencies was bound to create internal problems.

ORIGINS OF THE DEPARTMENT OF HOMELAND SECURITY

As one commentator put it, 9/11 provided a “visceral answer” to the question, “what objective reality does the term homeland security refer to?” (Bellavita, 2008, p. 3). Prior to that event, the topic of terrorism had no special status in security discourse and procedures (Mabee, 2007). But “9/11 not only became crucial in a securitization process concerning terrorism, it also solidified the idea of a new environment of threat, that would need unprecedented kinds of action [and] the development of new security institutions”(Mabee, 2007, p. 390).

The event also provoked a new focus on transnational actors as security threats (that is, as potential terrorist threats)--a shift that would come to deeply affect immigration policy and enforcement, directly and indirectly (Mabee, 2007).

At the same time, beyond the visceral sense, the attacks brought little clarity or consensus on the analytical definition of homeland security (Bellavita, 2008). And, accordingly, if a new homeland security institution was to be created, it was unclear whether its mandate should also include natural disasters and other hazards (limited or not by state and local jurisdictions), or even traditional national security functions served by pre-existing agencies. On the one hand, “there just is not that much terrorism in the United States to warrant spending the billions of dollars” the United States would come to spend on homeland security concerns (Bellavita, 2008, p. 3). On the other hand, too large a concept or institution of homeland security would seem to make bitter turf wars with well-established organizations (such as the Defense Department or the FBI) unavoidable.

ON THE "IMMIGRANT REPRESENTATION CRISIS"

In December 2011, the New York Times published an article and an editorial on the findings of the 2011 New York Immigrant Representation Study Report (which found that there is an "immigrant representation crisis in both quantity and quality," at least in removal proceedings--as opposed to USCIS/benefits proceedings).

Although the study focused on New York, it might well signal an even bigger problem in the nation at large. (In terms of quantity of representation, for instance, apparently, 43% of immigration proceedings nationwide occur without representation--compared with about 26% in New York.)

The key "crisis" factors included:

• Lack of a legal right to counsel in removal proceedings, and the (natural) absence of public funds allocated to that purpose;
• DHS detention and transfer policies;
• "Distinctive characteristics of the population facing removal:" language barriers, lack of financial resources, lack of familiarity with the legal system and "general vulnerability to unscrupulous lawyers;" and
• Deficient performance by lawyers.

With regard to the last factor, in particular, one survey revealed:

"New York immigration judges rated nearly half of all legal representatives as less than adequate in terms of overall performace; 33% were rated as inadequate and an additional 14% were rated as grossly inadequate. The epicenter of quality problems is in the private bar, which accounts for 91% of all representation and, according to the immigration judges surveyed, is of signficiantly lower quality than pro bono, nonprofit, and law school clinic providers."

This immigration judge survey on lawyer performance was based on questions about the "general quality of representation," attorney preparation, knowledge of the law and familiarity with the facts of the case.

SELLING EB-5 PROGRAM SHORT

In December 2011, the New York Times raised suspicions about the value of the EB-5 Immigrant Investor Program, which grants permanent US residence to business creators with a capital of either $1 million dollars in general, or $500,000 in high unemployment or rural areas (so-called "targeted employment areas"), provided their investment creates or preserves, directly or indirectly, at least 10 full-time jobs (excluding non-immigrant workers) within two-years of their admission to the US. The paper reported that critics of the program describe it as a "cash-for-visas scheme," and that state officials sometimes "stretch the rules" (including by gerrymandering--i.e., redrawing census maps) to qualify projects for the lower $500,000 capital requirement.

PROSECUTORIAL "TRIAGE"

In November 2011, DHS took another concrete step to match its recent call for a more systematic policy of prosecutorial discretion. It would begin reviewing all removal cases before immigration courts (about 300, 000 cases) and start a nationwide training program for ICE agents (including DHS attorneys). This is a positive step; in fact, the immigrant defense community was becoming impatient, as the NYT reported (see here), because the policy was being implemented without much consistency.

H-1B/H-2B/PERM: Prevailing Wage Determinations Backlog

Prevailing Wage Determinations (PWDs) are normally issued by the U.S. Department of Labor's (DOL) National Prevailing Wage Center (NPWC) in order to help employers ascertain their special "minimum wage" requirement in hiring certain foreign citizens. It is a required step in some cases (when hiring qualifying foreign citizens for permanent employment (PERM)), but only an optional one in others (for instance, when hiring qualifying foreign citizens for H-1B (specialty occupation) temporary employment).

ANOTHER GOOD NEWS: USCIS says sole owners can self-petition for H-1B

In an effort to "promote startup enterprises and spur job creation," USCIS has announced that "entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H1-B visa, if they can demonstrate that the company has the independent right to control their employment."