Article: Trump 6/22/20 Proclamation Suspending the Entry of Nonimmigrant Workers – Who is Affected and How.

As published in the Immigration Daily on June 23, 2020

The Trump proclamation is out and takes effect at 12:01 on June 24, 2020, which means one minute after the witching hour tonight. If you are in the US before that, you are mainly immune from the order – if you are outside, you may be affected by the order.

  1. This goes hand-in-hand with the order for the bar on immigrant visas, and so for both immigrant and nonimmigrant visas, the bar to entry is now through December 31, 2020. The language extending the immigrant bar and the new nonimmigrant bar has another kicker in saying that it may be continued as necessary after the expiration on December 31, 2020. It follows with the language that within 30 days of June 24, 2020, and every 60 days thereafter while the proclamation is in effect, The Sec. of Homeland Security shall in consultation with the Secretary of State and the Sec. of Labor recommend any modifications as may be necessary.
  2. Nonimmigrant visa entries are suspended for H-1B or H-2Bs and their dependents, J-1 interns, trainees, teachers, counselors, au pairs, or summer work travel program people and their dependents, L visa entrants and their dependents. Previously it had been thought that au pairs would be exempt from the bar.
  3. The bar applies only to people who are outside the United States on the effective date of the proclamation. It does not apply to individuals outside the US who have a valid visa by June 23, 2020. It also does not apply to those who have an official travel document other than a visa such as a transportation letter, or advance parole valid on June 23, 2020, or issued on any date thereafter permitting travel to the US.
  4. Exceptions are for LPR’s (although one would wonder why an LPR would be trying to come in on a nonimmigrant visa), spouses or children of US citizens, someone providing temporary labor or services essential to the United States food supply chain, and anyone whose entry would be in the national interest as determined by the Secretary of State, DHS Sec., or their respective designees. For purposes of determining any of the exceptions, it will be up to the consular officer to determine in his or her discretion whether a nonimmigrant has established eligibility.
  5. For purposes of determining whether a national interest applies, State, Labor, and Homeland Security Secretaries are to establish standards to define categories including those that are critical to defense, law enforcement, diplomacy, or national security; are involved with the provision of medical care to people who have contracted Covid-19 and are currently hospitalized; are involved with providing medical research at US facilities to help the US combat Covid-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.
  6. [This last criterion could open up the possibility of bringing in a hotshot L-1 boss or entrepreneur].
  7. From a look at the outlined sample categories, it is questionable whether many individuals with unrelated approved EB-2 NIW cases could qualify for an exception, e.g an NIW for establishing reading programs for special needs children.
  8. The proclamation will also make people applying for a visa go through more scrutiny as they will now have to be registered with biographical and biometric information, including but not limited to photographs, signatures and fingerprints.
  9. The proclamation intends to dampen enthusiasm further for those applying for H-1B’s and EB-2/EB-3 immigrant visas as it directs the Sec. of Labor in consultation with the Sec. of Homeland Security as soon as practicable and consistent with applicable law to consider promulgating regulations or take other appropriate actions to ensure that the presence of aliens who have been admitted or otherwise provided the benefit or who are seeking admission or benefit does not disadvantage US workers, which will likely mean making employers pay not just prevailing wages, but more for the privilege of sponsoring aliens and more checks and investigations into labor certifications and LCA’s.
  10. The proclamation also charges the DHS Sec. with taking appropriate and necessary steps to prevent aliens with final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for or charged with or convicted of a criminal offense in the US from obtaining eligibility to work in the US. Among others, such a regulation would affect persons under orders of supervision; possibly those who have conceded deportability at a master calendar hearing; and anyone who has been arrested for or charged for even disorderly conduct.

Article: Why Donald Trump Is Stumbling Badly And How He Can Save Himself And The Nation

As published in the Immigration Daily on June 15, 2020

As we look at the president casting about like a flounder in the current crises, the question is what is wrong with the president? Where is his teflon suit that protected him through many previous bouts with a critical public? Why have his blustering and twittering not vanquished his foes? It may well be that a great majority of Americans have finally seen in crises the measure of the man and are tired of his pathological lying, very little humanity, and laziness of mind and thought that does not allow him to grasp all sides of the problem but to seek convenient solutions. Does he have a way out? The article will explore the three perceived weaknesses and suggest how he may rehabilitate himself.

Pathological liar

The Washington Post calculated that through the beginning of June 2020, Mr. Trump had made 19,127 false or misleading claims since taking office; that only 35% of Americans said that he was honest and trustworthy and 62% said that he was not. If ever subjected to an impartial psychiatric evaluation, he would doubtless provide an endless funhouse of frights, strobe lights, revolving doors and mirrors. His immigration whoppers are already legend that Mexican immigrants are rapists; that they bring crime and drugs; that legal and undocumented immigrants contribute very little to the country and take far more in public benefits than they contribute; that they are a mass horde unfairly taking away desired jobs  from Americans; and that they are an invasion of violent, disease ridden brown people infiltrated by Islamic terrorists, murderers, drug runners and rapists massing south of the Rio Grande. Non-immigration related lies include insinuating that the former congressman and current MSNBC anchor, Joe Scarborough, murdered a female aide; President Obama not being born in the United States; Ukraine and not Russia interfering in the 2016 elections; Article 2 of the Constitution giving him powers to do whatever he wants as president; mistakenly asserting that Hurricane Dorian would strike Alabama last year against all meteorological evidence and then doubling down with an altered forecast chart and pressuring the National Oceanographic and Atmospheric Administration to back up his false claim; and proclaiming that the Mueller report totally exonerated him.

The president is supposed to be the moral leader of a country regarded by most of the world as a bastion of morality and decency. Yet the image of this president as a moral leader is risible. Children across the nation lie more easily now than ever as they see that there are no consequences to the president for his untruths. Concocting mountains out of very few incidents and making molehills where there are mountains of incidents are almost his stock in trade.

Very little humanity

Viewing Mr. Trump in his addresses to the nation or in his briefings during the coronavirus (the Administration stopped giving pandemic briefings in April) captures an inability to speak compassionately as he has been robotic in describing how devastating the death count has been to the people of the country. He has only been animated in talking about the hurt to the economy, or promising a cure within a year when the record for vaccine development is four years, or in excoriating Democratic governors for not reopening their states fast enough. He refuses to take blame or appear contrite for continually calling the coronavirus a hoax and not being fast enough to take action to head off the 116,000+ deaths in America that make this country first by far in the world in that unenvied category. In the current protests over police killings of blacks, his lack of sympathy for the largely peaceful demonstrations and the threat of using US active military forces have given great comfort to China and Russia – countries universally condemned for their use of the same tactics on their peoples – even though in this country, rights to free speech and peaceful assembly are guaranteed by the Constitution. Facing another anniversary of the Tiananmen Square massacre in 1989, Chinese officials were gleeful in pointing out that the Communist Party use of the army was thus justified by the president of the United States.

On the immigration front, his forced separation of families including children from parents recall the cruel practices of the most terrible authoritarian regimes. His MPP (stay in Mexico) policy reinforced by CDC directives forcing asylum seekers to remain in Mexico where they are preyed upon violates international asylum and refugee laws and accords. His refusal to allow noncriminal immigration detainees to be released from crowded facilities prone to Covid-19 while real criminals – both street type and white collar ones like Mr. Trump’s former associates Paul Manafort and Michael Cohen – are let out is a sickening spectacle. And his further handling of immigration detainees in allowing transfers between facilities without testing and even sending diseased detainees on flights back to their home countries when they were infected with the coronavirus in the US is miserable.

President Trump is lazy in mind and thought

It has not been an uncommon sight to see the president out on golf outings, vacations, parties and other social occasions. It is known that he  comes to the West Wing office late– as late as noon, and that he spends up to 60% of his working days in blocks of “executive time” tweeting, watching TV, especially the Fox network with its pro-Trump commentators and other conservative shows, and taking other built-in breaks.  With such an insular schedule, he is not well balanced in his thought processes.  It is well-known that he does not read his briefing papers and that the intelligence chiefs must spoon-feed him the information. The degree to which he is reliant upon the briefer who summarizes the presidential briefing papers for him was never better illustrated than when he blamed the briefer for telling him that he had nothing to worry about concerning the coronavirus in January. (He has thus far blamed China when the source of most of the infections and deaths in the US came not from China but Europe, the CDC, WHO, Obama and the briefer – but not himself). Yet had he taken the time to actually read the briefing papers, the nation would be better off in having a more informed president. His self-appointed coronavirus role of being the nation’s cheerleader is misplaced when the country needs a leader to coordinate efforts against the pandemic rather than one saying happy days are around the corner while at the same time that the states are on their own, not offering further federal assistance to the states, and then second-guessing and backbiting governors when they have struggled to solve their own states’ problems.

Had he read his briefing papers or even listened to the more urgent warnings of his advisors in February, one study showed that at least 36,000 American lives would have been spared as of May 3 when the fatalities were 65,307 if he had urged  social distancing one week earlier than he finally did on March 16.

In other situations not related to the coronavirus, he would have realized that some of his top-of-his-head decisions were absolutely the most dangerous and detrimental to the country – the killing of General Suleimani of Iran could very well have precipitated a huge escalation in attacks and at the very least signaled to the world that assassination of high governmental officials is an accepted tool of statecraft; his selling out the Kurds in Syria who had been instrumental and worked closely with US troops in destroying ISIS with belittling words that the Kurds did not help us in World War II and not in Normandy prompted the resignation of  Defense Secretary Jim Mattis. That move was further incomprehensible in ceding the Middle East to Russia and forcing nations to reconsider whether the US  was now a reliable partner and would live up to its treaties if they were attacked and to seek other alliances; and his cozying up to dictators and strongmen like Russia’s Putin, North Korea’s Kim, Hungary’s Orban, Egypt’s el-Sisi, Turkey’s Erdogan, and China’s Xi (before the trade disputes) while shunning traditional allies has left this country in a weakened state of not knowing whom the United States can truly count on in times of crisis as allied leaders even speak disparagingly of him behind his back.

How Donald Trump can Rehabilitate Himself

More than at any other time in his presidency, Mr. Trump has shown himself to be an inadequate president. The coronavirus has exposed the emperor as having no clothes not only to his critics, but to his Republican audience. His apparent willingness to sacrifice the older generation for a faster reopening of the economy will cost him dearly in the November elections. His latest polling numbers are bad across the board falling 13.2 percentage points among registered or likely voters with much loss of support among women and even white voters without degrees. He is down seven points among Republicans and independents and nine points among Democrats.  The downward spiral is set as a good portion of his supporters now understand that he has not been the man for the job. His current attempt to gin up his base by planning large rallies while the pandemic rages on and having supporters sign waivers of liability is extremely dangerous and his less zealous fans should give him the old Southern idiom, “That old dog won’t hunt.” He should now resign himself to the fact that he will be a one term president. Jim Mattis said it best on June 3 that “Donald Trump is the first president in my lifetime who does not try to unite the American people – does not even pretend to try. Instead, he tries to divide us.”

To rehabilitate himself in the eyes of most of the American people, Mr. Trump should try to use his remaining time in office to be a unifier of all the people in the States, including immigrants who make a net contribution to the nation culturally, economically, and socially. He should shut down or limit his twitter account as his stream of consciousness tweeting has ended up in many very ill considered remarks, e.g. “When the looting starts, the shooting starts.” In addresses and speeches, he should limit himself to the script instead of wandering off into uncharted waters. Such could also limit the self damage caused by remarks like suggesting Americans could  be injected with bleach. He should exhibit humility and sympathy for people regardless of how hard it is for him to do that and stop saying that his performance is “perfect” or that he has everything under “perfect control.” He should read his presidential briefing papers and reflect instead of just react to situations. Finally he should actually think of the long-term consequences and ramifications of his actions to this country. In this way, perhaps, his legacy will not ultimately be that of the worst president of these United States.

(Author’s note: If you like this article, please forward it to your friends).

Article:Recommendations for U.S.C.I.S. Reopening Offices During Covid-19

As published in the Immigration Daily on May 7, 2020

U.S.C.I.S. is now tentatively scheduling its reopening for June 4, 2020, and the public and legal community are rightfully anxious over what plan the agency has to safely protect the public, its employees and contractors, and still efficiently handle the business of immigration processing. Given the way that the Covid-19 crisis has been managed so far, there is far less than a firm conviction in the minds of all that this will be done right. The speed with which the government wishes to reopen the country apparently in disregard of the human toll (data projections of daily deaths doubling to about to 3000 daily by June 1 in a leaked White House internal document since disavowed as not being produced by or presented to the president’s coronavirus task force) makes one wonder whether the reopening will be carefully thought out or accomplished haphazardly.

Will the scene outside the larger immigration offices resemble total chaos or manageable order with social distancing? Is there also a plan in place for the Application Support Centers (ASC’s)? Will U.S.C.I.S. be able to efficiently process cases, or will people have to wait an interminable period of time for their appointments? For cases already in the pipeline with medical and background checks soon to expire, slow processing will mean additional expense and updating medicals and even more pending time if additional security checks must be run either before or after interviews. The following are some immediate suggestions on how to reduce the number of individuals needing to go into the immigration offices that can be easily implemented:

  1. Stop the practice of interviewing every employment-based (EB) adjustment of status case. Interviewing without exception is a practice that only came into existence in October 2017, mainly in response to widely perceived fraud in EB-4 religious cases, not other EB categories. Before that time, U.S.C.I.S. only interviewed a small percentage of employment based cases. Unless the agency is able to point to a large number of fraud permanent resident employment cases caught through interviewing, it should drop the need for interviewing all and only selectively interview.
  2. In all adjustment of status cases, U.S.C.I.S. should give internal guidance and stop sending out interview letters for persons other than the principal applicant (and spouse in a marriage case). The principal applicant should be instructed to bring adequate documentation of relationship to the other immigrating members of the family.
  3. In petition cases involving non-spouse petitioners, the petitioner should be specifically instructed not to appear. If an interviewing officer has doubts concerning family members or a petitioner, he or she can schedule a further interview.
  4. For naturalization cases involving applicants qualifying under the three-year marriage to US citizen rule, some immigration offices expect a US citizen spouse to be sitting in the waiting room. The appointment letter should make clear that the US citizen spouse is discouraged from appearing.
  5. For ASC’s, many times the only purpose of an appointment is for the ASC to take a photograph – U.S.C.I.S. should return to the old ways of relying upon photographs submitted at the time of filing. In connection, it should change its instructions to require photographs for applications on which it has waived the requirement, e.g. I-90 applications to replace permanent resident card, N-400 applications for naturalization. It should make it a practice to always rerun the captured fingerprints instead of asking people to come in to take partials after their fingerprints are already on file. It should also stop asking or requiring children under the age of 14 or elderly applicants 79 or older to attend biometrics appointments.

In these ways and others, immigration offices can continue to efficiently process cases without backing up the immigration queue of cases ad infinitum.

The second question is how to protect members of the public and U.S.C.I.S. and contracted workers entering the premises.

  1. Although unproven as to whether they can be reinfected or infect others, the government should have as many security personnel as possible available out front who have already tested positive for antibodies to the coronavirus to first meet people coming into the buildings.
  2. Social distance the line.
  3. Take no-contact forehead temperature checks on everyone before they enter the building.
  4. Hand out masks and gloves to those entering the building.
  5. Do not ask members of the public to take off their shoes. A terrorist with a shoe bomb would cause minimal damage in a socially distanced office, would only be a blip on the news with everyone concentrated on the pandemic (which has so far taken a gruesome death count of 75,000 US citizens, permanent residents, nonimmigrants and undocumented), and could cause more damage infecting himself or herself and then others with the coronavirus.
  6. After each use, sanitize the bins into which people place their belongings to go through security.
  7. Increase the number of available bins and persons wiping them down so as to not make going through security a nightmare.
  8. Social distance the customers from the security clearance until they arrive at the designated room, including limiting the numbers on each elevator.
  9. In the interview room, maintain social distancing in the waiting areas by removing seating or (even easier) putting tape across a number of chairs to maintain social distance.
  10. Place receptionists, clerks and officers behind plexiglass or other barriers while working with or interviewing individuals.
  11. Ensure that all employees have adequate numbers of masks and gloves.
  12. Have firm instruction that interviewing officers must use masks and gloves while interviewing.
  13. Reconfigure the back room space to allow all U.S.C.I.S. employees sufficient social distancing space, erecting barriers between them, and creating more common walkways to avoid crowding.
  14. Ensure that both customers and officers/clerks/receptionists wear disposable gloves at all times.
  15. Give the people being interviewed disposable pens if they did not bring their own that they can either keep or drop in a box for sanitizing and reuse.
  16. Sanitize the index fingerprint screen after every interviewee places his/her prints or eliminate the need to do such.
  17. Install more hand sanitizers all over the building and make sure that they are filled quickly upon being emptied.
  18. Put more paper towels in the bathrooms and ensure that they remain available so that people do not have to touch objects with their hands alone.
  19. Think about changing bathroom doors where needed so that they swing both ways and there is no need to grab the knob to enter or exit.
  20. Clean the bathrooms open to the public on an hourly or two-hour basis.

These are some but clearly not all of the ways that a safe experience can be had by everyone entering the reopened immigration offices.

Hopefully U.S.C.I.S. has a good plan that incorporates many of the above features when it reopens.  And above all, everyone from the top of the agency down to the security guards should be merciful and use common sense in dealing with people working in the buildings and the general public. People with appointments should not be turned away or looked upon with disapproval if late given the delays attendant to the pandemic, including lack of reliable transportation. Persons with appointments cannot be expected to come early to avoid being late as they would not be welcome to take up seating in any eating establishment with limited capacity or to congregate for hours outside the federal buildings.

 

Article: The Importance of Setting the Record Straight on East Coast Infections – It’s the Europeans; Why not just excuse the LCA posting requirement during the Pandemic?

As published in the Immigration Daily on April 16, 2020

Setting the Coronavirus Record Straight for East Coast Infections as European and not Asian is Important

In our article of March 20, 2020, “Repeatedly Calling It a Chinese Virus Is Racist and a Deflection of Blame,” we asked that President Trump stop calling the coronavirus a Chinese virus as that was inflaming hatred towards Asians in a country with a history of prejudice, violence, and exclusion towards Chinese. There are now a plethora of articles in newspapers with detailed descriptions of discriminatory and violent acts against Asians including one by the Anti-Defamation League detailing 44+ reported incidents through April. Mr. Trump should be reminded that his assignation of blame will turn many Asian-Americans against him when it comes time to vote in November. He has a chance, however, to now change the narrative and remove most of the stigma from Asian-Americans. Recent studies by the Icahn School of Medicine at Mount Sinai and the NYU Grossman School of Medicine have identified the coronavirus laying waste to the country from the East Coast as originating in Europe through genetic analysis of viral samples. Dr. Anthony Fauci, the leading disease expert and director of the National Institute of Allergy and Infectious Diseases, said that “Given the travel and the air traffic from anywhere in Italy, but also particularly northern Italy, it’s just not surprising that unfortunately and inadvertently New York was seeded before they really knew what was going on.” While the coronavirus originated in China, it is now officially a misnomer to call it a Chinese virus where the major number of infections and deaths in the U.S. originated from Europe. As the number of deaths continues to mount in this country, Mr. Trump’s past insistence on referring to the virus as Chinese has even more significance as it continues to resonate and appeal to the dark nature of people to strike out, especially those who have lost someone close.  This country’s Asians are a ready target being perceived as vulnerable, non-violent, and easily identified by the color of their skin. Europeans on the other hand generally do not stand out except when they speak and there is not the ingrained prejudice against them as with the Chinese. So since Mr. Trump inadvertently or purposefully touched off a flame of resentment that burns to this day, we believe that he owes it to the Asian communities in the United States to make a clarification now.

Why not just excuse the LCA posting requirement for those working from home at this time?

In the Covid-19 related FAQs Rounds 1and 3 by the Department of Labor, the Department made clear that the Labor Condition Application (LCA) worksite notice would still have to be posted for H-1B workers remotely working from home. In the first FAQ of March 20, 2020, the Department said that where workers perform the work elsewhere in the same area of intended employment, the employer must provide either electronic or hardcopy notice at the new worksite locations meeting the content requirements for 10 calendar days unless direct notice is provided such as an email notice. It said that if the employer could not provide a hardcopy notice of the LCA filing due to the pandemic, the regulations allow electronic notice by any means ordinarily used to communicate about job vacancies to employees in the occupational classification in the area of intended employment, and such could include the employer’s website, electronic newsletter, intranet or email – that email notification is only required once and does not have to be provided for 10 calendar days. The FAQ also extended the time that such a notice would be considered timely to no later than 30 days after the worker begins work at the new worksite locations (normally notice is required to be posted prior to the worker moving on to the new site). In the third FAQ of April 9, 2020 (Second FAQ related to H-2A visas), the Department made four points advancing and not retreating from the notice requirement during this time of disease. 1.)  It expanded on employer requirements for situations that did not involve remote employment in the area of intended employment, and instead involved short-term placements of 30 or 60 days outside the area – that the employer could place the H-1B worker for up to 30 workdays in one year and up to 60 days if the person’s place of residence was inside the area of intended employment so long as the employer was in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA. There would also have to be no strike or lockout at the short-term placement location; and the employer would have to pay lodging costs, costs of travel, meals and expenses for both workdays and non-workdays.; 2.)  It defined the area of intended employment as within normal commuting distance to the place of employment with any place within the Metropolitan Statistical Area (MSA) deemed to be within normal commuting distance even if it crossed state lines; 3.)  It instructed that if an employer instead filed a new LCA for work sites outside the area of intended employment or materially changed the terms and conditions of employment, it would need to file an amended or new H-1B with U.S.C.I.S.; and 4.) It admonished that the employer’s treatment of H-1B personnel must not adversely affect the working conditions of similarly employed US workers and the employer had to offer the same flexibility to US workers similarly employed that it was offering to H-1B workers including telework from home within the area of intended employment or where the employer was offering to move H-1B employees outside of that area.

Although there is great interest in protecting the American job market, the insistence on maintaining the same notice requirements for new locations in the current time of crisis seems strained and the Department may still wish to reconsider its position. Where working from home is involved, one of the options is for the employer to post the notices at the H-1B holder’s house or apartment for 10 days. Is there any practical use in doing so where the two notices will likely only be seen by the employee, and perhaps spouse, children, and family dog if they exist? There is also the problem of employers in nonessential businesses even  being able to go into their offices where files are stored to  retrieve employee information or work on the notification procedures much less updating the public access package, especially when they are supposed to be sheltering in place in most parts of the country. As of the time of this writing, only five states, Arkansas, the Dakotas, Iowa and Nebraska are not under stay-at-home orders.  Common sense seems to dictate a waiving of requirements where attempting to comply places those in danger who must leave home to go to their businesses.

Article: REPEATEDLY CALLING IT A CHINESE VIRUS IS RACIST AND A DEFLECTION OF BLAME

As published in the Immigration Daily on Match 20, 2020

The US has had a long history of racism against Chinese, beginning with the 1871 Chinese massacre in Los Angeles, 1882 Chinese exclusion laws, 1921 and 1924 immigration laws establishing a national origins formula to further exclude Asians and others, yellow peril stories beginning in the early 1900s epitomized by the Fu Manchu character in the 1930s, and jingoistic mistrust of Chinese during the Cold War and now under a Trump administration at war with the Chinese over trade and which nation will lead in the 21st century.

Against this background, Mr. Trump is aggressively inflaming Americans against persons of East Asian origin in the country by repeatedly calling the novel coronavirus the “Chinese virus,” while another in his administration just referred to it as the “Kung flu.” Inflammation appears to be working even in a city as diverse and ethnically tolerant as New York as seen even in this law firm’s anecdotal experience of one of our Chinese-American staff member’s two incidents within the past week, one that she witnessed of a man on the New York subway threatening Asians wearing face masks when one coughed, and the other this morning of another man cursing her when she lightly coughed (right outside Penn Station) with her mask on.

This constant emphasis on blaming the Chinese has escalated tensions across the country and highlighted Asian businesses to such a negative degree that business owners have faced colossal losses even though just about all Chinese-American citizens, permanent residents originating from China, and visitors from China are virus free due to the China travel ban, and the riskiest populations are from Europe and the Middle East with Italy and Iran leading in current contagious spread. In New York City, much of the infection was spread by a Jewish attorney from New Rochelle.

While saying the term once or twice serves as a denial to the China made rumor that the new coronavirus was brought to China by the US military (obviously someone in China read about the origins of the Spanish flu of 1918), the world at large is already cognizant of its origins. Yet Mr. Trump is using a megaphone consistently to assign blame to a known fact.

To what end the blame? The answer is diversion from the horrible job that the president has done from the very beginning to contain the virus. From abolishing the National Security Council Directorate for Global Health and Security and Bio Defense to believing that he could “wall” off the coronavirus to saying that it was a “hoax” and not taking it seriously to not having a plan in place and failing miserably to listen to public health experts and coordinate government response early in the crisis, his handling of the situation has been haphazard and dumbfounding. While Hong Kong and Singapore have solved the coronaviruses in their countries through huge amounts of testing and contact tracing, the US has fallen so far behind that it appears the only viable strategy is social distancing and lockdowns.

Mr. Trump is clearly not an advocate of Harry Truman’s famous desk sign, “The Buck Stops Here,” but an advocate of buckpassing. Repeated and continual use of the “Chinese virus” term is an attempt to deflect blame. Yet we do not need a president in this crisis to throw off blame and in so doing put the lives and property of Asians in this country at peril, but a president who accepts the blame without caring whether he is reelected or not, and moves the country forward to solve the predicament.

Article: Is Mr. Trump an Unstoppable Freight Train?

As published in the Immigration Daily on February 21, 2020

Barreling along, President Trump today appears to be an unstoppable force on his way to reelection in November. That is the view from here. Despite his moves towards an imperial presidency, cozying up to Russia and largely allowing it free reign throughout the world, inhumane treatment of vulnerable groups here and abroad, and corrupt or highly questionable moves to gain political advantage towards his reelection, he is gaining in popularity while the Democrats are in disarray with candidates destroying each other on debate stages.

Yet it is dispiriting that in this country founded on constitutional principles, honor and decency, Americans will choose to reelect a president without any of the above.

In this administration, all decency appears to be lost in dealing with vulnerable groups with a president who only respects the strong. The treatment of undocumented immigrants including separation of families in the border regions and in the interior, stigmatizing them as criminal rapists, murderers, and drug traffickers when the vast majority are law-abiding, attempting to suppress their representation by adding a citizenship question to the census to intimidate them from being counted, speaking of them in racist and other pejorative terms, dropping refugee admissions to record lows, and making immigrant entries a wealth test through the new public charge law, etc., all points to an innate lack of decency and refusal to make America a shining beacon as compared to the rest of the world.(Although we do not minimize the impact of immigrant crime upon its victims, we note that much higher percentages of crimes are committed by Americans upon Americans as a percentile of the population, and that Mr. Trump is adept at making a mountain out of a statistical mole hill).

Mr. Trump exhibits no honor as seen in his attack on Gold Star family members and decorated veterans who dare to criticize him, his abandonment of this country’s Kurdish allies who paid more than 7000 lives to support US efforts against ISIS and invitation to Turkey to invade their lands, his misappropriation of military funding to build his border wall, and his inveterate lying –staining the office of the presidency with a whopping 16,241 false or misleading claims since taking office as reported by the Washington Post on January 20, 2020.

Constitutional principles such as separation of powers are anathema to this president who believes that Congress is beneath him, that the presidency and the executive branch are higher than the other two branches of the US government, and that all executive branch members have no greater duty than giving their personal loyalty to him.

One would think that with such highly negative factors, Mr. Trump could not stand a good chance of reelection. Yet Democrats are up against numbers like those in the Gallup poll in January 2020 showing that a record high 90% of Americans are satisfied with their personal lives, that American confidence in the US economy is at a 20 year high, and that a record 49% of Americans approve of Mr. Trump’s performance as president.

Immigration is a topic on which all Democratic candidates hew center left or left and generally agree upon – the difficulty is the other policies such as healthcare, taxes, and redistribution of wealth and that no candidate can win an election without the undecided of this country which will not vote for those that they consider too far to the left. Conversely those who support candidates on the far left of these issues may not vote for the candidate who only projects center left (such as many of Sen. Bernie Sanders’ supporters who stayed home rather than vote for Mrs. Clinton in 2016).

Where do the Democrats go from here? With the number of candidates still campaigning against each other, the bloodletting, backbiting and divisiveness will only get worse while Mr. Trump sits on the sidelines without opposition – only having to occasionally snipe at the growing Democratic fiasco on Twitter.

Article: Coronavirus China Travel Ban Reveals Prejudice Against Parents And Six Nation Ban Hodgepodge Thinking

As published in the Immigration Daily on February 5, 2020

The White House proclamation of January 31, 2020, on the suspension of persons entering the US from China emphasizes the Administration’s view that parents of US citizens and permanent residents are not worthy of entry to this country. The “Proclamation on Suspension of Entry As Immigrants and Nonimmigrants of Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus” excludes persons attempting to enter the US with certain exceptions including spouses and children of US citizens and permanent residents, but bars parents except where they have a US citizen or LPR child who is unmarried and under the age of 21.

One may ask why parents are largely excluded when the Immigration and Nationality Act classifies parents of US citizens over the age of 21 “immediate relatives,” the most favored category in the immigration scheme. Immediate relatives always have visa availability, do not have to wait in any backlogs, and those who violate their legal periods of stay in the US are still allowed to adjust status to permanent residence in this country. In addition, many grounds of removal are waivable for immediate relatives.

The privileged position of immediate relative parents, however, is a thorn in the side to the Administration, which strongly promoted and endorsed the 2017 Reforming American Immigration for Strong Employment (RAISE) Act which would have eliminated the parent category if passed. Mr. Trump himself came under subsequent criticism as his derogatory “chain migration” phrase was discovered to have been the vehicle for the immigration of his parents-in-law. Currently parents are largely the targets of the Administration’s collateral attacks on their privileged status –the new public charge rule due to be implemented on February 24, 2020, and the enjoined presidential proclamation requiring immigrants to show the ability to obtain health insurance within 30 days of entry to the US.

Barring the parents of adult US citizens and permanent residents makes little sense, especially in light of the rigid screening and quarantine process in place for persons from China who enter the country. Even if the current precautions fail to detect the coronavirus, this group of immediate relatives generally stays at home and is not as active as others, thus further reducing the chances of transmission.

Concerning the new six-nation terrorism ban against Eritrea, Kyrgystan, Myanmar (Burma), Nigeria, Sudan and Tanzania announced on the same day,“Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry,”this appears to be a mess of illogical thinking not furthering any strategic goal other than keeping out mostly persons of color who wish to immigrate. The measure makes no sense if the goal is to keep out people who may have terroristic tendencies as there is no ban on nonimmigrant entries. So persons from these six countries could still come to the US under visitors visas or more permanent nonimmigrant visas allowing them years to remain in this country cooking up plots if they were so inclined. In looking at the ban, four countries, Eritrea, Kyrgystan, Myanmar and Nigeria are entirely banned from sending immigrants to this country except for special immigrants who have provided assistance to the US government, and visa lottery immigrant (DV) entrants are barred from Sudan and Tanzania. The logic behind this ban is entirely elusive. The announced purpose of the travel bans is to punish countries that are unwilling or unable to improve their information sharing to assist the United States in assessing national security and public safety threats. Yet the halfway measures show that national security is not the true purpose of the ban.

The president of course has shown the ability to have his travel bans enforced in cases that have gone as high as the Supreme Court. Yet one might wish for logic rather than just bias and/or playing to Mr. Trump’s base in an election year.

Article: Watch Out For The Public Charge Rule!

As published in the Immigration Daily on January 22, 2020

At this time, favorable court decisions staying implementation of the public charge regulation finalized in August 2019 with implementation date of October 15, 2019, have been whittled from three circuits to one and the Trump administration recently filed an emergency application with the Supreme Court on January 14, 2020, to the remaining injunctions of the US Southern District Court of New York. This may very well be the last prelude before the rule becomes law affecting an estimated 382,000 intending immigrants and intimidating countless others and their US dependents from applying for benefits to which they are rightfully entitled.

The public charge rule expands disallowed benefits to include food stamps (SNAP), section 8 housing vouchers, section 8 project-based rental assistance, public housing under section 9 of the US Housing Act of 1937, and Medicaid with certain exceptions.  The public charge determination will be made on a judgment of the totality of circumstances rather than through just consideration of the ability of the immigrant to have support meeting the poverty guideline levels with such factors as age, health, family status, education and skills, assets, resources, and financial status along with whether the person is proficient in English or other languages in addition to English taken into consideration. I-864 affidavits of support in family-based cases will be scrutinized for the strength of the relationship including whether the sponsor lives with the alien, and whether the sponsor has submitted affidavits of support for other individuals.  And heavily weighted positive factors are whether the alien’s household has income, assets, or resources, and support of at least 250% of the federal poverty guidelines for the household size, or the alien is legally employed with an annual income of at least 250% of the federal poverty guidelines, or he or she has private health insurance without the subsidies of the Affordable Care Act. (It should be noted that under the just published 2020 poverty guidelines, Federal Register, volume 85, number 12, pp. 3060-3061, 1/17/20, 250% of the poverty guidelines in the 48 contiguous states and DC for a family of three would be $54,375 and for four $65,500 qualifying the regulation as an attack on the poor).

Nationwide stays by district courts in the Fourth and Ninth circuits were overturned by recent Court of Appeals rulings in Casa de Maryland, Inc. v. Trump, No. 19-2222 (4th Cir. December 9, 2019) and City & County of San Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019), but the ones issued by the Southern District Court of New York were upheld by the Second Circuit on January 8, 2020, in State of New York, et al v. United States Department of Homeland Security, et al., No. 19-359, and Make the Road New York, et al., v. Ken Cuccinelli, et al., No. 19-3595.

Against this backdrop, the Administration moved the Supreme Court to dissolve the stays pending disposition of a petition for writ of certiorari arguing that it should be allowed to move forward with the rule since there is a reasonable probability that four justices would consider the issue sufficiently meritorious to grant certiorari, there is a fair prospect that a majority of the court will conclude that the decision below was erroneous, and a likelihood that irreparable harm would result from denial of the stay. The government especially pointed to the Ninth Circuit decision language that “DHS has shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay” (of the district court’s order). The government also heavily groused over the fact its policies could be held hostage on a nationwide basis by the ruling of a single district court although the Republican party had no such doubts when the shoe was on the other foot and a single district court judge in Brownsville, Texas, effectively bottled up the past administration’s program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in 2015. (See Texas v. US, No. 1:14 CV-00254 (SD Tex. April 7, 2015)).

The government’s application at the Supreme Court is now with Justice Ruth Bader Ginsburg who will first review the application. She can rule on the request alone or as some think most likely, refer it to the full court. But even if Justice Ginsburg rules against the government, the regulation could still be implemented after the Second Circuit decides on the merits of the suits. That court set an expedited briefing schedule on the merits with the last brief due on February 14 and oral argument to be scheduled promptly thereafter.

A comment must be made on the Administration’s application argument that irreparable harm will ensue unless the preliminary injunctions are lifted since they force DHS to grant status to those not legally entitled to it and DHS has no practical means of revisiting public charge determinations once made. One wonders why this is irreparable harm given the almost weekly changes of established policy by this administration, essentially turning previously welcome individuals into pariahs without any changes in their circumstances. In other words, what is the real harm of allowing the status quo to continue pending a final decision on the merits as we are not contemplating the admission of criminals or security threats?

Addenda – Since the writing of this article on January 22, 2020, the Supreme Court ruled for the Trump administration 5-4 on January 27, 2020, lifting the stays of the District Court of New York. The next actions in court will be the Fourth, Ninth, and Second Circuit Courts of Appeals deciding on the actual merits of the public charge rule. Rulings could take two months or more. In the meantime, the Department of Homeland Security is moving forward with implementing the rule and will apply it to applications and petitions postmarked or submitted electronically on or after February 24, 2020.

Article: Intersection Of The RELIEF Act And FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT OF 2019

As published in the Immigration Daily on January 2, 2020

There has been recent action with these two pieces of legislation aimed at reducing immigrant visa backlogs, which will hopefully continue with rapid pace when Congress again begins its work.

S 2603, the Resolving Extended Limbo for Immigrant Employees and Extended Families (RELIEF) Act, which is widely regarded as the best hope for equitable expansion and distribution of immigrant visa numbers, has gained a House companion bill, HR 5327, introduced by Representative Donna Shalala (D-FL) on December 5, 2019. The RELIEF Act would eliminate green card backlogs within five years, among other favorable provisions.

There is even more action in the flawed Fairness for High Skilled Immigrants Act of 2019, HR 1044/S386, as Sen. Dick Durbin (D-Ill.) reached a compromise on December 18 with Sen. Mike Lee (R-UT), S386’s sponsor, under which he would drop his opposition to S386 in return for the ability of employment based applicants to file for early adjustment of status under the EB-1, EB-2, or EB-3 categories if the visa petition has been approved or pending for more than 270 days, regardless of whether the priority date is available. (Such information is contained in a draft of the amended bill which is being circulated around Washington). The adjustment of status application could not be approved until an immigrant visa becomes available. The early filing comes with the ability to gain employment authorization for three years at a time, to change employers, and travel freely as well as protection for children who age-out after the adjustment of status application is filed. Sen. Durbin is a pivotal figure as it was his earlier opposition to S 386 that stopped the bill from being passed by unanimous consent in the Senate and he is the sponsor along with Sen. Patrick Leahy (D-Vermont) of S 2603.

HR 1044/S386 comes with a small price to the Indian community as the draft bill would prohibit employers with 50 or more employees from having over 50% on H-1B or L-1 visa statuses. All subsidiaries or group related companies that are part of one group would to be treated as a single employer as long as they are filing taxes under one entity as per §414 of the IRC. (Indian companies have dominated the H-1B market in past years garnering approximately 75% of all H-1B visas in 2016 and 2017).

Although the draft compromise makes the legislation better, it does not solve the huge problem of immigrant visa backlogs, which are more readily tackled by the RELIEF Act. It should be emphasized that the draft compromise like the original bill does not add any immigrant visa numbers. It merely reshuffles the numbers to natives of India to the detriment of the rest of the world, including China. (See our article, “Amended HR 1044 in S386 Happening Now Amid a Flood of Concerns”, The Immigration Daily, September 23, 2019). To those who would say that HR 1044/S386 benefits China-born also, one only has to point out that the China backlog under both EB-2 and EB-3 categories is less than 50,000 while the Indian backlog is over 600,000. India and China are not in the same boat, but the one piece of legislation that would make an equitable sharing of immigrant visas for everyone is the RELIEF Act.

Yet the political realities of the situation must be considered. Discussing his compromise with Sen. Lee on the Senate floor, Sen. Durbin pointed out that although he favored his own bill, it would not pass in the Senate at this time; that the President did not agree, and that most Republicans in the House and Senate also did not agree. It may well turn out that this compromise is the only game in town for a long time.

The question is then whether the immigrant community at large should continue to oppose HR 1044/S 386 in favor of the status quo or support it despite its inequitable sharing of immigrant visas and H-1B strictures – (in effect turning H-1B’s into a recruitment based program in which employers test the American job market using a searchable Internet website for posting positions administered by the Department of Labor, pay a fee for applying for a labor condition application (LCA), and prevailing wage challenges are placed directly under the jurisdiction of DHS).

It’s a closer call.

Article: S.2603, The Relief Act, In The Season Of Hope; Two Proposed Regulations Likely To Become Law; December Visa Chart Movement And Prognostication; Stockwell Lives

As published in the Immigration Daily on December 3, 2019

1. S.2603, The Relief Act, in the season of hope.

S.2603, the Resolving Extended Limbo for Immigrant Employees and Extended Families (RELIEF) Act is the best hope for equitable expansion and distribution of immigrant visa numbers. The bill (introduced by Senators Dick Durbin (D-Ill.) and Patrick Leahy (D-Vt.) on October 16, 2019)would eliminate the family and employment green card backlog over five years in the order in which the applications were filed; keep families together by classifying spouses and children of LPRs (lawful permanent residents) immediate relatives and exempting derivative beneficiaries of employment based petitions from annual green card limits; protect aging out children qualifying for LPR based on a parent’s immigration petition; lift the country caps; and extend the “hold harmless” clause from HR 1044 exempting immigrant visa petitions approved prior to enactment from the lifting of country caps to petitions approved for five years after enactment.Yet there is opposition as Sen. Mike Lee (R-Utah), the sponsor of S.386 (Senate counterpart of HR 1044), the Fairness for High Skilled Immigrants Act which would skew employment based second and third preference immigrant visas to India-born without adding significant numbers and therefore backlog the rest of the worldincluding China-born in these categories, reportedly refused a broader debate on his own bill to address green card backlogs. At this time, it appears that the best that can be hoped for is a relenting by the Republicans who hold the Senate to allow S.2603’s proposals to be considered in conjunction with S.386. Pressure on the Republican leadership is the best way to bring about this result, and so communication with Republican senators and espousing such consideration is strongly encouraged.

2. One of two proposed regulations about to be law – fees.

USCIS is an agency funded by the fees that it collects, and so it will be collecting more. It is almost a certainty that after a period of time for comment, new and for the most part higher fees are the order of the day.The proposed regulation with deadline for written comments by 12/16/19 – “US Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Requests Requirements,” Federal Register, Vol. 84, No. 220, 11/14/19, includes the following fee changes:

  • I-129 form $460 fee raised by category – for H-1 $560; for L-1 $815; for O-1 $715; for TN $705.
  • Premium processing will be changed from 15 calendar days to 15 business days.
  • $85 biometrics fee will be eliminated in most situations.
  • I-485 base fee for everyone including children will be $1120 including the biometrics (a drop from the present $1225 for applicants between the ages of 14-78). However,I-765 EADs (employment authorization documents) and I-131 advance paroles will be separately charged with EADs costing $490 and advance paroles $585. So an I-485 filing with EAD application will be $1610; I-485 with advance parole application $1705, and a combination of the I-485 with EAD and advance parole applications $2195.
  • N-400 naturalization applications will go up from $725 to $1170; N-336 requests for hearing on naturalization decision from $700 to $1755; and N-470 applications to preserve residence for naturalization purposes from $355 to $1600.
  • I-589 asylum applications will be $50 and applicants will have to pay $490 for initial EADs.
  • DACA (Deferred Action for Childhood Arrivals) renewals will go up from $495 to $765.
  • I-212 applications for permission to reapply for admission into the US after deportation or removal will be increased from $930 to $1040.
  • I-290B administrative appeals or motions will rise from $675 to $705.
  • I 539 applications to extend/change nonimmigrant status will go up from $370 to $400.
  • I-601 applications for waiver of the ground of excludability will go from $930 to $985.
  • I-601A applications for provisional unlawful presence waivers will move from $630 to $960.
  • I-751 petitions to remove conditions on residence will go from $595 to $760.
  • I-765 applications for employment authorization will rise from $410 to $490.
  • The USCIS immigrant fee which is paid after successful immigrant visa interview at the consulates or embassies will drop from $220 to $200.
  • Biometrics services where applicable will drop from $85 to $30.

The relative certainty of the fee hikes being implemented is reflected in the fact that the author cannot recall ever seeing a request for higher fees rejected in over 30 years of practice. There will undoubtedly be an outcry over the proposal for asylum applicants to pay $50 to file I-589 applications, but USCIS undoubtedly foresaw such a controversy, and so pitched a low fee just to get its foot in the door.

3. Second of two proposed regulations more than likely to be law – asylum EADs.

Another proposed regulation more than likely to become law after the period of comment and expected future court challenges upon final rule passage is “Asylum Application, Interview, and Employment Authorization for Applicants”, Federal Register, Vol. 84, No. 220, 11/14/19,with deadline for comments by 1/13/20, which includes the following:

  • The time to file for an EAD is increased from 180 days to 365 days, and the discussion of the proposed rule on page 62389 refers to a separate rulemaking proposal for the elimination of the requirement to adjudicate the EAD application within 30 days.
  • Those filing asylum applications after the one-year deadline are not eligible for C8 employment authorization unless they qualify for an exception for late filing or are unaccompanied alien children on the date that the asylum application was first filed.
  • Ineligible are also persons convicted of any aggravated felony, felony in the US or any serious nonpolitical crime outside the US, convicted in the US of certain public safety offenses including domestic violence or assault; child abuse or neglect, controlled substances, or driving or operating a motor vehicle under the influence of alcohol or drugs regardless of how the offense is classified by the state or local jurisdiction; and DHS will consider on a case-by-case basis in its discretion aliens who have been convicted of any nonpolitical foreign criminal offenses, or have unresolved arrests or pending charges for any nonpolitical foreign criminal offenses, or who have unresolved domestic charges or arrests that involve domestic violence, child abuse, possession or distribution of controlled substances, or driving under the influence of drugs or alcohol. For this purpose, DHS will require applicants to appear at an ASC (Application Support Center) to provide biometrics for initial and renewal applications.
  • Employment authorization will end when there is a denial in the asylum office, but will not where the case is referred to the immigration court, and will terminate after a denial by the immigration judge, but will be available to an alien during the appeal process at the BIA (Board of Immigration Appeals), but prohibited during federal court appeals unless the case is remanded for a new decision.
  • Persons who come into the United States illegally will not be eligible for C8 employment authorization unless they are able to establish good cause – a reasonable justification for entering the US illegally as determined by an adjudicator on a case-by-case basis. In those situations, the alien must have presented himself or herself without delay to DHS, indicated to a DHS officer an intent to apply for asylum or expressed a fear of persecution or torture, and otherwise had good cause for the illegal entry or attempted entry. Examples of reasonable justifications provided include requiring immediate medical attention or fleeing imminent serious harm.

In looking at the proposed rule, the main scope of challenge may be that it unfairly restricts the right of the persecuted to seek meaningful asylum as it denies applicants the right to legally work for at least a year or more after filing for asylum, in effect making them rely upon their own resources, those of family and friends or charitable organizations, or forcing them to seek unauthorized work to survive. The counterargument is that the rule will shut off to a large extent the magnet of economic well-being as a major reason for coming to the US. Looking at the proposed regulation as a whole, and that it mainly forestalls rather than completely stops the right of employment authorization, it is the author’s opinion that it is more likely than not that the proposal will ultimately be implemented. However, that does not mean that interested parties should not oppose the proposed rule through comment and later court challenges.

4. December visa chart movement and prognostication.

As we move into the third month of the fiscal year 2020, the visa chart for December 2019 generally shows advances of one – two months in the final action date chart for family based categories except for Mexico, and employment-based categories generally advanced with worldwide moving one and ½ months for EB-1 extraordinary aliens/outstanding researchers/multinational executives or managers to 7/15/18, and becoming unavailable for fourth preference certain religious workers and fifth preference regional centers as there is not as yet new enabling legislation. EB-1 China moved 3 ½ months to 5/15/17 while India’s EB-1 remained at 1/1/15. EB-2 advanced degree individuals from China moved three months to 6/22/15 while India advanced two days to 5/15/09. EB-3 skilled workers/professionals for China-born remained at 11/1/15 and India stayed static at 1/1/09. EB-5 non-regional center investment immigration from China advanced two weeks to 11/15/14 while India advanced three weeks to 1/1/18. USCIS confirmed that it will be using the dates of filing chart for both family and employment cases for December. Dates of filing for worldwidefamily-based cases generally advanced between three weeks-2 ½ months. For employment-based categories, EB-1 worldwide became current, EB-5 for China moved four months to 5/15/15, and the rest of the chart was the same as the filing dates for November without movement. Charlie Oppenheim, Chief of the Department of State Visa Control and Reporting Division, is warning that both EB-3 and EB-2 worldwide could backlog as early as January 2020, and the American Immigration Lawyers Association advises members to file any EB-2 and EB-3 worldwide adjustment of status applications before the end of December.

5. Stockwell lives.

USCIS issued a policy alert on November 21, 2019, that while sections 245(d) and 245(f) of the INA bar an alien lawfully admitted to the United States for permanent residence on a conditional basis from adjusting status under INA 245(a), the Board of Immigration Appeals in Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991),held that INA 245(d) did not prohibit an alien whose CPR (conditional permanent resident) status had been terminated from adjusting his or her status under INA 245(a), and was updating guidance to ensure consistent application of I-485 applications to register permanent residence or adjust status filed by applicants whose CPR status was terminated. Mr. Stockwell had adjusted status before the immigration court after being granted CPR status, terminating the marriage one year later, marrying a second US citizen whose visa petition was approved, and being served by an order to show cause and notice of hearing as an alien whose conditional permanent resident status had been terminated. The immigration judge and the BIA both agreed that the implementing regulation clearly applied the bar in section 245(d) only to aliens currently holding conditional permanent resident status. In the USCIS policy manual guidance, the Service reiterated that the bar to adjustment only applied to an alien in the United States in lawful LPR status; referred to Matter of Stockwell’s holding; and stated in a footnote that “The same is also true if the alien loses his or her CPR status, for example, through abandonment, rescission, or the entry of an administratively final order of removal.” The guidance notes that it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate the alien’s CPR status before the alien may file a new adjustment application, and that USCIS may adjust the status of an alien’s CPR status which was previously terminated if 1.) the alien has a new basis for adjustment; 2.) the alien is otherwise eligible to adjust; and 3.) USCIS has jurisdiction over the adjustment application. A further footnote states that if an alien’s adjustment application was denied before the effective date of this guidance on November 21, 2019, the alien may file a new adjustment application (unless he or she is still able to timely file a motion to reopen or reconsider) for USCIS to adjudicate his or her application based on the guidance.

This is the season for hope, and it would be fitting if positive action on S.2603 in Senate hearings with S.386 could be taken before adjournment or shortly after Congress comes back into session in January.