Author: Alan Lee

As published in the Immigration Daily on October 19, 2020

In the last desperate days of the Trump presidency, it becomes increasingly clear that this administration sees the handwriting on the wall and is speeding up its actions to indelibly stamp the nation with Supreme Court confirmation hearings and regulations thrusting the nation further backwards on immigration, race relations, the environment, women’s rights, gay rights, foreign relations, and America’s role on the world stage. It hopes that, with the assistance of the Supreme Court, it will keep the Trump agenda largely intact even if Democrats sweep both houses of Congress and the presidency.

To reward Senate Republicans for their complicity during four years of a misguided and corrupt presidency would not be in the best interests of the country, and voters should vote a straight Democratic ticket across the nation.

The recent use of interim final regulations (IFRs) in the field of immigration instead of the regular process of beginning with a proposed regulation, going through a period of comment, review by the Office of Management and Budget (OMB) and final regulation with another small period of time before implementation, illustrates that this administration intends to continue piling on regulations until the day that Joe Biden takes office on January 20, 2021. The Bidens might have to call on the DC police and National Guard to evict the Trumps.

The Department of Labor (DOL) IFR, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” was published in the Federal Register on October 8, 2020, with an immediate implementation date. Its simple proposition is that wages on the OES system go up blindingly – that in calculating wages, DOL looked at all the wages in a certain occupation in the area of employment and recalculated OES level wages to a higher percentile of where all the wages fall. Level I went from what the 17th percentile is earning to what the 45th percentile is earning; Level II from the 34th percentile to the 62nd percentile; Level III from the 50th percentile to the 78th percentile; and Level IV from the 67th percentile to the 95th percentile. The orchestration of various premises to bring this about was fairly devious and moved in five said and unsaid steps: 1.) Mythologization of H-1B specialty occupation jobs almost to the point of being rare birds requiring more than a regular bachelor’s degree –a specialized bachelor’s degree. 2.) That without higher qualifications than a regular (as opposed to specialty) bachelor’s degree, an alien cannot obtain the visa. 3.) That the current wage system is not accurate since it takes into account wages paid to workers who almost certainly would not qualify to work in a specialty occupation. 4.) That an alien qualifying for an H-1B visa should be paid at the same level as a US worker with the same qualifications, and since most H-1B entry level individuals have a Master’s degree, they should be paid at the same rate as US workers with similar degree and experience. 5.) Entry-level H-1Bs should be paid the same rate as similarly qualified US workers regardless of the actual job that they are performing. This ignores a number of factors such as 1.) The H-1B registration process is skewed to accepting more US Masters and higher degreed individuals than those with bachelor’s degrees. The Trump administration expressed pleasure at changing the formula of H-1B selection, so it seems fairly incongruous to somehow try to imply that aliens and their employers are gaming the system in having Masters level individuals fill entry-level positions or that their possessing a Masters degree suggests that the position is anything other than entry-level. 2.) USCIS ignores its own regulatory list of H-1B amenable fields when it sides even further with DOL that many occupations in these fields can be adequately filled without a directly related specialized bachelor’s degree or its equivalent. 3.) To say that an H-1B candidate with a Master’s degree in an entry position should be paid as much as a US worker with a Master’s degree in a much more complex position defies logic. Extending that proposition to its logical conclusion, an alien just graduated with a PhD in chemical engineering with past experience in the home country who manages to grab a job as a junior chemical engineer would be paid at the same rate as a non-alien senior chemical engineer with a similar PhD. Such thinking is violative in spirit of §212(n)(1)(A) of the INA that employers pay H-1B workers the greater of the actual wage level paid by the employer to all other individuals with similar employment in question or the prevailing wage level for the occupational classification in the area of employment. The statute envisions a connection between the payment for “similar employment” and the occupational classification prevailing wage – not the DOL ignoring the specific job that is offered.

The Department of Homeland Security (DHS) IFR, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” was published in the Federal Register on the same day, but with an implementation date of December 7, 2020. As with the DOL rule, this regulation was rushed through the screening process and review waived by the OMB to ensure that it would appear before the election. The IFR redefines specialty occupation in a way in which very few individuals will be able to qualify by changing the degree requirement for the specialty position from being one that is “normal”, “common”, or “usual” to the occupation to one that is in a “directly related specific specialty” or its equivalent. According to the Occupational Outlook Handbook (OOH), the seeming “bible” of USCIS, however, very few professional occupations can be done by just holders of one specific degree. USCIS lists a number of fields amenable to H-1B occupations at 8 C.F.R. § 214.2(h)( 4)(ii) as:

Specialty occupation means an occupation which [(1)] requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which [(2)] requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

Yet for examples, the OOH holds forth that biomedical engineers can qualify to become biomedical engineers through a related engineering field & electrical or electronics engineers through a related engineering field (engineering); chemistry or materials scientists through a bachelor’s degree in chemistry or a related field (physical sciences); market research analysts through a bachelor’s degree in market research or a related field (social sciences); medical or health services manager through a bachelor’s degree in health administration, health management, nursing, public health administration or business administration (medicine & health); high school teacher through a bachelor’s degree with many states requiring them to have majored in a subject area (education); fashion designer through a bachelor’s degree in a related field such as fashion design or fashion merchandising (arts).

The IFR quotes INA §214(i)(1)’s second requirement of specialty occupation being attainment of a bachelor’s or higher degree in the specific specialty or its equivalent and then describes very restricted circumstances under which any equivalency would be found such as electrical engineering and electronics engineering study for the position of an electrical engineer. However, this is a mean-spirited interpretation of “equivalent” in today’s world of education in which cross subject majors are taught all the time. Use of the words “normal”, “usual”, and “common” more accurately describe the equivalent education that should be looked at to qualify for a specialty occupation.

The rate of denial for new H-1Bs is currently 29% through the second quarter of FY 2020 and only anticipated to increase tremendously under the IFR.

It is expected that multiple lawsuits will be filed against the two IFRs, and there is a report that multiple technology companies have already filed suit on October 16, 2020, against the Department of Labor in a New Jersey federal court. Both rules are expected be challenged as not having gone through adequate review, especially the effect upon impacted parties, and one of the arguments certain to be used against the DHS rule is its improper chain of succession invalidating any actions by the current DHS Secretary, Chad Wolf.

The DHS rule is not retroactive and will only be applied to petitions filed on or after the effective date of the regulation, including amended petitions or petition extensions. It is not to be applied to pending petitions nor to previously approved petitions either through reopening or a notice of intent to revoke.

Of some comfort is the thought that a Joe Biden presidency will be more reasonable to the immigration needs of US businesses, but it is a long time to January 20, 2021, and to however long it will take him and his administration to get around to H-1B questions. Without the Senate, the Democrats will have a difficult time trying to reverse four years of Trump actions in immigration and other areas. Joe Biden will have a lot on his plate immigration-wise as a July 2020 Migration Policy Institute report catalogued 400+ executive actions taken in 3 ½ years by the Trump administration in the field of immigration.

Please see attached AAO decision Dated September 24, 2020

We at the law firm are pleased to release a copy of our recent win at the Administrative Appeals Office (AAO) in a non-precedent provisional I-212 decision which decided in favor of our client on three points:

1. After-acquired equity – The equity of our applicant’s wife being a permanent resident was downgraded in the District Director’s decision as an after-acquired equity and entitled to less weight as his wife had entered the United States with permanent residence following the applicant’s deportation order. We pointed out that the decision conflated the wife’s date of entry with the date of marriage in mistakenly reducing the weight of equities of extreme hardships faced by the spouse and the AAO agreed stating that the record reflected that the applicant had married his spouse 25 years prior to his deportation order and that their four children were born prior to the deportation order.
2. Standard of adjudication – The District Director found it unlikely that the applicant could establish extreme hardship to his spouse to qualify for a provisional waiver. The AAO pointed out that extreme hardship to a qualifying relative is not a requirement for permission to reapply for admission, and that positive factors may include the applicant’s respect for law and order, family responsibilities, and hardship to the applicant and other US citizen or lawful permanent resident relatives. The AAO further thought that the Director’s considering the unlikelihood that extreme hardship to the spouse could be established in a later I-601A application in his decision was not within the province of the Director as “[a] provisional waiver application is a separate application for relief, and pursuant to the regulation at 8 CFR §212.7(e)(4)(iv), an individual inadmissible under section 212(a)(9)(A) of the Act for having been removed must obtain permission to reapply for admission before applying for a provisional waiver.” The AAO added a footnote that the applicant could seek the I-212 permission “[i]rrespective of whether a waiver under section 212(a)(9)(B)(v) for unlawful presence will be needed after the applicant departs and regardless of whether he obtains a provisional waiver.”
3. Correct consideration of evidence – Besides the Director’s error on the weight to be given to the equity of the permanent resident wife, the AAO took issue with his not fully considering evidence of significant positive equities in the record such as the applicant’s living in the United States for 30 years, having no apparent criminal history, payment of taxes, assisting community and family members, and the applicant’s statement that if forced to leave the United States, he could never have his entire family together again, that he loved his family and would do anything for them, provided care for his wife, used his construction skills to assist friends and neighbors, and helped his son in his restaurant. Also that the submitted evidence included the spouse’s medical report and psychological evaluation showing that she suffered from a host of medical and psychological problems and the spouse’s statement that the applicant did everything he could to keep her healthy and comfortable, and that she would suffer emotionally if she returned to China because she would miss her family members in the US and feared returning to the country where she was forcibly sterilized. The AAO also noted that the Director’s decision did not consider submitted evidence regarding the applicant’s claimed hardships to his US citizen and lawful permanent resident children and grandchildren as well as to himself which included affidavits of the applicant’s US citizen son and grandson.

Although a non-precedent decision, the AAO decision is instructive in addressing points of law at the intersection of a provisional I-212 application for permission to reapply for admission and a later contemplated I-601A application for provisional unlawful presence waiver.

As published in the Immigration Daily on September 23, 2020

With the passing of Justice Ruth Ginsburg this past week, immigrants have lost one of the great champions of immigrant rights. A liberal justice, she consistently voted for the rights of immigrants and in the increasingly more conservative Supreme Court, formed a bloc with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the Court’s major 5-4 decisions on immigration. A couple of the major ones in which she participated on the losing side were United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam) in which the Court tied 4-4 to sustain the Texas court decision barring  President Obama’s DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) program which would have given legal protections and work authorization to the parents of citizens and permanent residents; and DHS et al. v, New York, et al., 140 S. Ct. 599 (2020) in which the court by 5-4 vote allowed the new public charge rule to be implemented in February 2020 by staying the preliminary injunction of a New York federal court. Recently, however, she took part in the 5-4 winning vote in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020) in which the Court rebuffed the Trump Administration’s attempt to end the DACA (Deferred Action for Childhood Arrivals) program. Although that decision was decided on procedural grounds that the Court indicated might be overcome by another suit after the government complied with proper procedure, there was no assurance that such could actually be done in a 5-4 court in which Chief Justice John Roberts exercised the swing vote. Justice Roberts, a conservative with centrist bend, had earlier frustrated the Administration by providing the swing vote in National Federation of Independent Business v. Sebelius, 567 US 519 (2012), a decision upholding the Affordable Care Act, and Department of Commerce v. New York, 139 S. Ct. 2551 (2019), which denied Mr. Trump the right to add a citizenship question to the U.S. Census.

However, with the appointment of another conservative justice, the tide will move further to the right, and consistent 6-3 or 5-4 losing votes can be expected in most cases dividing the nation, including those on immigration. Justice Roberts will lose his position in these highly contested cases as the deciding vote. President Trump has already vowed to nominate a replacement within this week and Senate Majority Leader Mitch McConnell (R-Kentucky), has stated that he will bring the nomination to the floor of the Senate – both defying Justice Ginsburg’s dying wish that her replacement be made by the next President.

The effect on the 700,000+ Dreamers in the DACA program will be momentous, and the reelection of Donald Trump will ensure that they will either be used as the ultimate bargaining chip for a Trump administration to ram through its entire program of immigration restructuring or failing that, all be subject to removal proceedings with both legal protections and work permits revoked or no longer extended. Already since the Supreme Court’s decision, the Administration has moved to reject all new applications for DACA benefits and restrict renewals to one year instead of the present two years.

The unpalatable nature of a Trump immigration scheme is already being seen in his taking advantage of the pandemic to issue proclamations, executive orders and regulations barring nationals of disfavored countries even as the US leads the world by far in infections, and restricting qualified and approved workers from other lands from entering even though studies have shown that they would benefit the country and add more jobs. It is known that Mr. Trump’s chief takeaway from his DACA defeat is his belief that the Court’s decision gives him the authority to create such a program for merit-based immigration. On July 10, 2020, he said, “We are working out the legal complexities right now, but I’m going to be signing a very major immigration bill as an executive order, which Supreme Court now, because of the DACA program, has given me the power to do that.” Previously his son-in-law, Jared Kushner, drafted a merit-based immigration plan that did not move forward, but an idea of its contents was in Mr. Trump’s May 16, 2019, speech in which he said that it would eliminate all current family and employment-based preference categories and replace them with new “Build America” visas awarded by points. In Mr. Trump’s America, huddled masses and refugees need not apply, only the rich and highly skilled. This country could take a lesson from Germany and its Chancellor Angela Merkel that took in over a million refugees in 2015 in a program now seen as highly successful in building a stronger Germany from what was then an aging population.

For Dreamers and all immigration proponents – indeed all who support civil rights, voting rights, the environment, women’s rights, LGBTQ rights, honor, civility, truth, corruption-free government, a rational foreign policy, decision making other than from gut instincts, and all the other parts of the American system that Mr. Trump has damaged and will in his next four years destroy for a generation– the only solution appears to be a political one in getting out the vote and voting.