Category: News

Below is the first of 2 comments that we are submitting to U.S.C.I.S. on the new H-1B proposed regulation. Hopefully it will be of interest to the readers.

December 31, 2018

Samantha Deshommes, Chief,
Regulatory Coordination Division
Office of Policy and Strategy
U. S. Citizenship and Immigration Services
Department Of Homeland Security
20 Massachusetts Ave. Nw.,
Washington, DC  20529

Re:      DHS Docket number USCIS-2008-0014 – Comment on Flipping Selection Process of
Regular and U. S. Masters or Higher Graduates

Dear Ms. Deshommes,

The proposed revision to the H-1B rules attempts to change the present selection process by flipping the order of random selection to favor those with U. S. Masters degrees or higher. This is highly unwise as it is not merely a question of Bachelors versus Masters degree, but the potential exclusion of many with bachelor’s degrees who have years of experience that those with U. S. masters degrees do not have. Many with bachelor’s degrees from other countries have acquired overseas skills over the years in the STEM fields which are heavily in demand in the U. S. and other countries.

The proposed change in regulation mainly applies to those who have just acquired U. S. Masters degrees, many of whom have no other relevant experience than internships or externships. While they are desirable for the advanced knowledge that they have acquired, those with bachelor’s degrees and years of working in a particular field are oftimes more essential to petitioning organizations as they do not have as much of a learning curve as U. S. Masters graduates with little or no real life experience.

As such, U.S.C.I.S. should keep the random selection process as it now is.

Thank you for your courtesy and kind consideration.

Very Truly Yours,

Alan Lee, Esq.

as published in the Immigration Daily on December 3, 2018.

U.S.C.I.S.’s newly proposed rule of December 3, 2018, “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” does more than announce a proposed regulation, but also discloses many relevant statistics concerning H-1B numbers.

The rule itself proposes to put into place an employer preregistration system under which organizations would be forced to register within a 14 day period for the chance to submit a new cap-subject H-1B petition within staggered 60 day time frames to be designated by U.S.C.I.S. if the preregistration request is selected. The preregistration in effect would replace the current H-1B selection process under which 85,000+ petitions are selected in the first 5 business days of April. A second facet of the rule allows U.S.C.I.S. to flip-flop the selection process of the U. S. Masters cases and the regular cap cases in an attempt to enhance the chances of U. S. Masters candidates. U.S.C.I.S. estimates that reversing the current procedure of first randomly selecting the U. S. Masters cap cases and allowing the remainder to also be considered in a subsequent regular cap case selection, and instead allowing all the Masters cases to be placed in regular cap case selection, and then allowing the remainder to claim the Masters cap quota of 20,000+ numbers, would yield a further 5340 numbers or 16% more to the U. S. Masters cap cases.

The two parts of the proposed regulation are considered separate by U.S.C.I.S., and the second part can go into effect even if there are technical difficulties with implementing the preregistration system. It seems unlikely that the first part will come into being for this coming H-1B season because of many obstacles including complexity but principally the timing – the time for comments to close is January 2, 2019, it will take much time for the agency to go through the tons of comments that are expected, the regulation will have to go through OMB to become final, and H-1B season must start on April 1, 2019. Any idea of delaying the start of the H-1B season would be horrendous given U.S.C.I.S.’s present inability to handle the current load of this past year’s new H-1B petitions. Even now, many H-1B petitions submitted in the first week of April 2018 remain unadjudicated.

Now to the numbers. There has always been question as to how many more H-1B petitions are selected than the announced 85,000 per year (65,000 for the regular cap and 20,000 for the U. S. Masters cap). Practitioners have variously attempted to guess the number as U.S.C.I.S. allows a number of petitions over 85,000 to be “wait listed” by estimating the number of petitions that will be denied, withdrawn, or otherwise found ineligible. The number is 12,198, the average for 5 years from FY 2013-17 according to the proposed rule. With an average selection of 97,198 petitions per year, and U.S.C.I.S. disclosures that it presently selects 13,495 over the usual 20,000 Masters cap candidates (33,495) leaving 63,703 regular cap selectees, rough estimates can be made when coupled with U.S.C.I.S. figures of an average of 192,918 petitions received (137,017 regular cap and 55,900 U. S. Masters) that historically, U. S. Masters comprise 34.46% and regular cases 65.54% of the selected cases; that when viewed through the prism of the 137,017 and 55,900 divided petitions, U. S. Masters were selected 60% and regular cases 46.5%; and that overall of the 192,918, U. S. Masters comprised 17.36% and regular cases 33%.

Under the proposal of flip-flopping the random selection process to give more numbers to the U. S. Masters cases, and using the same historical numbers, U. S. Masters would comprise 40% of the selected cases and regular cap 60%; that when broken down into their individual applied for categories, U. S. Masters would be selected at a rate of 69.47% and regular cases at 42.6%; and in looking overall at the historical average of 192,918 submitted petitions, 20% would be U. S. Masters and 33% regular cases.

The above numbers are approximate as U.S.C.I.S. only gave current statistics on the number of U. S. Masters cases selected and the author can only believe that the statistics are for one year. As FY 2017 is the most recent covered in the proposed rule, perhaps a better reading is done using that year. U.S.C.I.S. statistics show that it received 198,460 petitions of which 87,380 were from U. S. Masters and 111,080 from regular cases. It selected 96,301 petitions for the year. Using the same figures for selection of U. S. Masters cases, the percentage of U. S. Masters of the 96,301 selectees was 34.78% and regular cases 65.22%; that divided into the categories for which petitions were submitted, U. S. Masters were at 38.33% and regular cases 56.54%; and overall of the 198,460 submitted cases, U. S. Masters garnered 16.88% of the selections and regular cases 31.65%.

Would the numbers change dramatically given the proposed reversal of the random selection process? Not dramatically. Of the 96,301 selected cases for FY 2017, a flip-flopping would have left H-1B Masters at 40.32% and regular cases at 59.68%; that judged by the categories in which they applied, U. S. Masters would have been accepted at 44.4% and regular cases at 51.7%; and overall in the total 198,460 submitted petitions, U. S. Masters would have been picked at 19.57% and regular cases at 29%.

Looking forward, it would appear that the second part of the preregistration system proposed regulation is much more likely to be installed for this April than preregistration as it is an easy step to implement and U.S.C.I.S has made clear in the proposal that it can suspend the H-1B registration process merely through an announcement on its website while still reversing the order of counting the petitions towards the H-1B allocations. So it is entirely possible that the regulation could become final as late as March with only the second part coming into effect. Finally the author notes that those contemplating the filing of regular cap cases should not be discouraged as he was surprised to find that within the categories for which employers applied for their candidates, the approximate five-year average of selection for those applying under regular cap cases was 46.5%, and the most recent year given in the proposed regulation (FY-2017) showed a selection rate of 56.54%.

As published in the Immigration Daily on November 6, 2018.

In our article last week, ” Why the Migrant Caravan of 7000 (Whoops! 5000) Is Not Concerning ,” we laid out hypothetical numbers that even if 4000 came in, only approximately 668 would be left at the end of six months under the Trump no-tolerance policy, and asked what was the crisis. This week we have more statistics on this Trump-made crisis from the military itself which on October 27th made an estimate that only 20% of the 7000 would even reach the border. That would mean only 1400, and under the no-tolerance policy in which only 16.7% of the previous migrant caravan were left in the US after six months, only approximately 234 would remain after that time. So again, what crisis? Currently the caravan is still about 500 miles away from the border and already down to about 3500. Over 3000 have already applied for asylum in Mexico and many others have gone home. The migrants are now strung out between the city of Córdoba in Veracruz and Mexico City, and the remnants are not expected to arrive for at least 2 weeks traveling between 20-30 miles per day. Such would also be the fate of 2 smaller caravans of 1000-1500 just entering Mexico.

Yet in the face of the dwindling numbers, Mr. Trump continues to pour on the rhetoric saying that he would send up to 15,000 troops to the border. At that rate, there would be more than 10 soldiers to greet each of the 1400 who finally made it to the nearest point on the Southwest border. How long would he keep our troops there? A 6000 troop deployment in the Bush administration between 2006-2008 cost the American taxpayers $1.2 billion. A conservative estimate of the cost of deployment from now to December 31st is $200 million. While the numbers are mind-numbing, $200 million recently supported more than 13,000 transitional housing beds for homeless veterans under the VA’s grant and per diem program. $200 million was also the funding amount by the Federal Railroad Administration for 28 projects in 15 states to implement positive train control (PTC) systems to automatically brake or slow down speeding trains.

In addition to the number of troops at the border, Mr. Trump’s call to arms has resonated with militia groups, who are preparing to mobilize to the border to defend against the migrants and further increasing the chances of confrontation and innocent lives being lost. The Trump vitriol has also not been lost on the Border Patrol, which feels more free to use intimidation, substandard conditions of confinement and violence in dealing with migrants on the border than at any time during the Obama years.

To the idea that migrants might throw rocks at the American troops, Mr. Trump initially said that if US troops faced rock-throwing migrants, they should react as though the rocks were “rifles.” The Nigerian Army used his words last week as justification for its estimated killing of more than 40 people and wounding of 100 by rock-throwing protester by posting the Trump video including his words, “They want to throw rocks at our military, our military fights back.” On November 2d, Mr. Trump reluctantly took back the words saying that migrants would not be shot if they threw rocks. However, the tone has been set.

Words are dangerous, especially coming from the leader of the most powerful country in the world. Yet Mr. Trump and his Republican Party seemingly have no regard for the truth or for the consequences of their lies. The Washington Post estimated that President Trump has made 6,420 false or misleading claims since he took office through October 30, 2018. Mr. Trump has been responsible for inflaming and encouraging the actions of all of the fringe right, including neo-Nazis, white nationalists, white supremacists, anti-Semites, Holocaust deniers, conspiracy theorists, and the Ku Klux Klan. His party is terrified of offending him and his base for fear that congressmen and senators running for election will be turned out of office. The actions of Mr. Trump and the inaction or collusion of the Republican leaders in not repudiating him are responsible for what happened in Charlottesville, the synagogue attack in Pittsburgh 10 days ago, and mailing of 15 pipe bombs to prominent Democrats including ex-presidents Obama and Clinton by an ardent Trump supporter. Mr. Trump’s foreign-policy record of divisiveness is no better in driving away long time allies and cozying up to some of the worst leaders in the world. His actions have unilaterally made the world less safe, and unleashed the worst acts of foreign leaders who believe that there will be no consequences or material rebuke from America.

Is there no further reason to get out and vote tomorrow for an entire Democratic slate? The old measure of trying to figure out whether this candidate is a little bit better than that candidate no longer applies in this fractured country with an abomination of a president holding his party in pocket.

As published in the Immigration Daily on October 26, 2018.

In the ever shrinking caravan of 7000 – now reportedly 5000 as many seek asylum in Mexico – ask yourself – would President Trump be concerned or would he put out the welcome wagon if this was a caravan of 7000 Norwegians rather than Hondurans, Guatemalans, and Mexicans? An honest answer would inform you that the concern is less with the numbers than with the color of the skins. Even if over half of them arrived at the US-Mexican border, what number would be allowed to remain here in 6 months under the Trump no tolerance policy? CBS reported that a study of the caravan of 1500 Central American migrants that reached the border in April 2018 revealed that only about 250 legally remain in the US pending immigration hearings and only three have been granted asylum. Extrapolating the figures means that only 16.7% are left, and so if 4000 wound up at the border this time seeking asylum, only 668 would be left here at the end of six months. So, what crisis?

The rush to deny people of darker skins entry into the country regardless of their plight is endemic to this administration, with President Trump attempting earlier this week to tar their images as suffering people by baselessly spouting that people from Middle East had joined the group, implying that they had intentions to commit terrorism, only to later give a grudging retraction that “There is no proof of anything, but there could very well be.”

It is generally a given that those who seek to enter the country illegally or take part in a long march like the one here are the younger people who have drive and endurance – the type of people who should be prized for their many future years of physical ability to build a country’s economy. The United States is at the crossroads of either continuing to be a great nation by accepting immigrants or becoming a second-class power through a declining workforce. The largest generation of US workers, the 76 million strong baby boomers, began to reach age 62 in 2008 and the youngest will reach 67 in 2031. By that time, Americans aged 65 and older are projected to be 75 million. At the same time, birth rates of American women have dipped to a 30 year low in which the fertility rate has sunk further below the replacement level. According to a report from the Centers for Disease Control, the rate has generally been below replacement since 1971. Who then will be on the bottom of the Social Security pyramid to support the retirees’ Social Security benefits? Who then will be in the labor force that drives the industry in this country? The Pew Research Center states that immigrants will play the primary role in the future growth of the working age population. Without immigration and the undocumented immigrants already in this country, the US may well become an aged population like Japan suffering from decades of stagnation, a cruel fate that China is attempting to stave off at present.

History is the ultimate arbiter, more reliable than the words coming from politicians’ mouths or any “fake facts.” At the end, it will honor a figure like the German Chancellor Angela Merkel who saw an aging German population and infused it with the new blood of refugees. It will dismiss President Trump as a figure who failed to put the good of the country before his narrow divisive views.

The annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., has again been chosen as a Super Lawyer for New York City in 2018. He is one of only 2 lawyers of Chinese descent in the 64 attorneys selected for the area of immigration law. This is the seventh time that Alan Lee has been selected, having previously been honored in 2011, 2013-2017.  He exclusively practices U. S. immigration and nationality law.

Please click here for the “Super Lawyers list for Immigration 2018“.

As published in the Immigration Daily on October 4, 2018.

 

With headlines blazing in The New York Times on September 28, 2018, “With what degree of certainty do you believe Brett Kavanaugh assaulted you? “100 percent” above the picture of Christine Blasey Ford, and “None of these allegations are true?” “Correct.” “No doubt in your mind?” “Zero. I’m 100 percent certain” above a picture of a defiant Brett Kavanaugh, who can you believe? Mr. Trump threw in his two cents in calling Ms. Ford’s testimony “credible” and Judge Kavanaugh’s “incredible.”

Does it matter to the Republican Party whether Dr. Blasey is telling the truth? Probably not to the vast majority. But in a closely divided 51-49 enate, a new call from Republican senators Jeff Flake (R-AZ), Lisa Murkowski (R-AK), and Susan Collins (R-ME) on the 28^th for a limited FBI investigation forced the Republican leadership to accede to a limited investigation of the accusations of sexual misconduct against the young Judge Kavanaugh. The order to the FBI by Mr. Trump afterwards was highly restrictive that the “supplemental” investigation “must be limited in scope and completed in less than a week.” After heavy criticism, Mr. Trump said on October 1st that the FBI “should interview anybody that they want within reason.” So far, however, it appears that as of Wednesday, October 3d, many potential relevant witnesses had not been interviewed, and Republicans were pressing for a vote on confirmation by the end of the week based on word from the FBI that it could finish its investigation by Wednesday.

The Republican strategy of not assailing Dr. Blasey as the Senate committee did Anita Hill in 1991 with all male questioning, and attempting to find an alternate ground of mistaken identity on the part of Dr. Blasey brings to mind the passage in Pride and Prejudice (pity those who have not read it or seen one of its multiple screen versions) in which sisters Elizabeth and Jane Bennet discuss Elizabeth’s new found information concerning George Wickham’s perfidious deeds:

What a stroke was this for poor Jane !  Most earnestly did she labour to prove the probability of error, and seek to clear one without involving the other.

“This will not do,” said Elizabeth . “You never will be able to make both of them good for any thing. Take your choice, but you must be satisfied with only one.

Here we must certainly be satisfied with only one, and the evidence points to Dr. Blasey. From all accounts, she has led a respectable life since birth and even passed a polygraph test administered by an ex-FBI agent. Judge Kavanaugh has indeed led a respectable life after graduating from Yale University, but many reports indicate that he led a life of heavy drinking and partying at his Catholic prep school in Georgetown and at Yale. It may well be that he forgot about the episodes of which he is now accused because of the heavy fog of alcohol. Thus he could be telling the truth in his own mind. Yet that should not do for a person aiming to be confirmed to the highest court in the land. Possibly the fact that he was a jock, good in sports and captain of his high school basketball team, persuaded him that he could take more liberties than the normal high school and college student, and any restraints were further lowered by his prodigious alcohol intake. His bland testimony that “I did not drink beer to the point of blacking out” stands in stark contrast to a number of statements by his classmates, one of whom said “I definitely saw him on multiple occasions stumbling drunk where he could not have rational control over his actions or clear recollection of them,” and another that he was “frequently, incoherently drunk,” and that when he was, he became “aggressive and belligerent.” Most of us who drank in college saw the difference in people who drank, some of whom just became happier and others mean drunks.

Given the above, the least that should happen in an FBI investigation no matter how limited in time and scope should be interviewing or attempting to interview all people from high school and college days who might be able to shed light on the actions or inactions of Mr. Kavanaugh and Ms. Blasey. Such an investigation should also canvass the further sexual allegations against Judge Kavanaugh by Deborah Ramirez, a fellow classmate at Yale, and Julie Swetnick. It should be noted that even if Ms. Swetnick could not identify him as one of the sexual assaulters, it should be disqualifying for confirmation if her assertion that he was there is to be believed as it appears that he did nothing to stop the episodes from occurring.

Other than the character issues, the stakes are high in the confirmation process as Judge Kavanaugh has demonstrated a conservative bent that would shift the court to the right for many years if confirmed. His record on matters relating to immigration is short, but discouraging to those who believe in immigrant rights. As pointed out by the American Immigration Council in its September 5, 2018 article, “Brett Kavanaugh’s Record on Immigration Raises Questions,” he has dissented in 3 cases stating his belief that the immigrant should have lost – in Agri-Processing Co. v. National Labor Relations Board in 2008, he said that undocumented immigrants should not be entitled to labor law protections because they were not legally permitted to be employees; in Fogo de Chao Holdings v. U. S. Department Of Homeland Security in 2014, he suggested that hiring Brazilian chefs under L-1 specialized knowledge visas was the restaurant just trying to cut labor costs masquerading as specialized knowledge; and in Garza v. Hargan in 2017, he accused the majority of a radical expansion of the law and that the DC circuit court had created a new right for unlawful immigrant minors in U. S. government detention to obtain immediate abortion on demand.

As published in the Immigration Daily on September 17, 2018.

 

Where did the America go of honor, charity to strangers, and love of country? It’s missing. Terrible things are happening on the immigration front. Countless lives are being upended by the present Administration’s policies running roughshod over the entire terrain of immigration, regardless of whether people are legal or illegal. The abuses run from forced separation of children from their parents, deporting people to certain death who fail credibility interviews which now have incredibly heightened standards, allowing people on the southern border to bake in the sun for days on end to make a claim for asylum, changing asylum standards to exclude those basing claims on gang and domestic violence, dragging out the immigration process to resemble the old slow ways and days of the 1980s and 1990s, putting a target on H-1B specialty occupation petitions by sending out astonishing numbers of requests for evidence and denials, denying record numbers of L-1 intra-company transferee petitions, and changing rules by fiat making it more difficult for all legal non-immigrants to change status to student, punishing F, M, and J students who may have fallen out of status in the past even due to the fault of the school, discouraging all who think to apply for adjustment of status to permanent residence if they have no backup legal status as a denial will result in a Notice to Appear (NTA) in the immigration court as to why they should not be removed (presently on hold as U.S.C.I.S. figures out how to implement the rule), and denying cases filed on 9/11/18 and after without opportunity to correct through a Notice of Intent to Deny (NOID) or Request for Evidence (RFE) if required papers or forms are missing in an application.

On the launch pad are three proposed rules which cannot be done by fiat, but that the Administration will try to ramrod through shortly – a public charge rule designed to bar lower income immigrants and the ability of their sponsors to file for them (read mostly Hispanics and blacks from other countries, not Europeans), an asylum rule to enshrine by regulation the disallowance of asylum for victims of domestic or gang violence and bar from asylum those who enter the country illegally and are convicted of illegal entry (read Hispanics), and a rule to stop employment authorization for H-4 spouses of H-1B specialized occupation aliens which is currently in final clearance and review. It should be noted that, at least with these three, the public will have a notice and comment period before the rules can be implemented.

And yet this collective misery is absolute music to the Administration and Trump supporters across the United States. In this case, one man’s trash is another man’s treasure. Events that shock the sensibilities of many concerned citizens besides the attack on immigration such as those on the environment, regulations enacted to prevent economic disasters, opposing health care and abortion rights, championing underfunded tax cuts giving great advantage to the rich, and tolerating rampant corruption in his administration for as long as possible for loyalists are met with great cheer and leaves one to wonder whether there will ever be a last straw with Trump supporters before the midterms,

Yet moderates and independents who voted for Mr. Trump and the Republicans in 2016 should consider whether it is time to assert American values in a repudiation of the Republican Party which has lost its soul to Donald Trump, a vainglorious amoral man without love of anything besides himself, perhaps his family, and his business empire. A man who denies reality, has told 5000 lies as commander-in-chief, plays the sycophant to Vladimir Putin, toadies up to other dictators for no discernible national advantage, brushes away time-honored allies, supported the Russian denial of interference in the 2016 elections over the assessments of US intelligence agencies, begins trade wars which are economically sapping the country, has extramarital affairs and lies to cover them up, and believes that his federal agencies including the Department of Justice should be used to hound his political opponents and give him political advantage rather than impartially dispense justice. Besides a mean and malevolent spirit, the best reason for which things should not continue in their present state is his lack of interest in any complicated issue as remarked upon by many in the White House who have variously been quoted as calling him an “idiot,” has the attention span of a child,” “brain of a kindergartner,” “anti-trade and antidemocratic,” “f_ _ _ _ _ _ moron” and “The Big Problem: The president did not understand the importance of allies overseas, the value of diplomacy or the relationship between the military, the economy and intelligence partnerships with foreign governments.”

Hopefully the America of men and women who have given their lives for love of country will return and we can begin to see the end of the enthrallment with a president who acts more like a crooked used-car dealer, grifter, and circus barker selling sideshow tickets to see the unicorn and three headed giraffe.

Reprinted with permission.

As published in the Immigration Daily on July 24, 2018.

 

Commie loving, pinko… President?! In the 1950s and 60s, they would have run you out of town on a rail. Selling out US intelligence in favor of Russian denial was lunatic and treasonous from a President, regardless of how you walked it back after pressure from your base. Your rise to power was unfortunately fueled by Russian involvement with or without the complicity of you and your campaign, and the fears of white America that its place in the sun would be replaced by a more diverse America. To that end, your base of conservatives and whites including evangelical church leaders has tolerated your sexual misbehavior towards many women, your adultery, and your endless lying. Your agenda has been not to make America great again, but white again.

To appease your base of non-college graduate whites who were stuck in the economy, you have taken a great many steps to ensure that the country marches relentlessly towards fuller than the optimal rate of employment, thus forcing employers to find and pay higher wages for workers. But it is obvious to even a non-economist that high inflation will be the price to pay for your ruinous actions of trade tariffs, and chasing the undocumented from the country. With trade tariffs, the price of goods coming into the country for US consumers will be higher. With the inflated wages to be paid US workers, US employers are raising prices on their goods, so the US consumer can expect no relief in buying domestic goods. The continual cycle of employers looking for workers, workers demanding higher wages, and employers having to raise prices to compensate is one guaranteed to lead to spiraling inflation and loss of earning power. There are not enough U. S. workers to go around, and the relief valve of immigrants is being hounded out of the country by you and your cohorts by any means, legal or illegal. To you, the only good nonwhite illegal is a deported one, and it is highly doubtful that you recognize that the Constitution applies to them also. The future augers worse for workplace replenishment as U. S. women are not reproducing at sufficient rates to replace the present population.

The problem, Mr. President, is that you are unconcerned about the long-term effects of your policies – you only look to the short-term like a burglar in a house before the police come as you have doubts that you legitimately belong in the White House and are trying to do is much to promote your agenda before the voters come for you in the midterms and 2020. Part of your strategy is keeping up stock market prices as long as you can so that voters approve of your performance. You believe in the Roman concept of panem et circenses – bread and circuses to keep the crowds happy. In your case, the bread appears to be stock prices and employment and the circus is your daily media circus. The Federal Reserve is the independent institution tasked with monitoring the economy and taking the proper steps to ensure that it does not seize up or move too fast. It recognizes that where there are strong signals of inflation (2.9% climb in June numbers), it should tap the brakes by raising interest rates and making money harder to borrow for companies thinking to expand or to start new projects. Yet such a move almost always rattles the stock markets, causing the Dow to tumble. With the midterms so close, you insinuated yourself last week in the Fed deliberations to express your displeasure on its decision to raise rates, an unwarranted and dangerous move made not for the welfare of the country but for yourself. Your displeasure was especially threatening as you have already nominated 5 members to the Fed board.

Mr. President, although it is now late in the game, could you do and act like you promised on the night of your election that you would be a President for all Americans?

As published in the Immigration Daily on June 21, 2018.

 

Democrats and liberal minded people hope that the child separation issue at the border will be the tipping point against Mr. Trump as the nation recoiled at images of crying children and children behind wire fences. They hope that this time the nation as a whole sees Donald Trump for what he really is – a mendacious accidental president who will stoop to the very abyss to get what he wants. That mendacity was on full display and exposed by his finally signing an executive order on June 20, 2018, halting the separation of migrant families and the ripping of children from the arms of their parents after a string of lies as to who was to blame, why he couldn’t do it, and why Congress had to act to protect them as part of a huge immigration bill bent on curbing U. S. immigration. Yet that unfortunately is a forlorn hope.

Mr. Trump once remarked that he could stand in the middle of Fifth Avenue and shoot someone and he wouldn’t lose voters. The period of time from now to the midterms is 4 ½ months, sufficient time in his eyes and those of the Republican Party for voters to forget what they would likely call his “hiccup.” They are banking on short memory of the public. The news cycle is ever churning with new news and issues appear and disappear in the flash of an eye. That is even more so with this president who dominates the media waves almost every day with his twitters and other messages. Who remembers Charlottesville? Who will remember Marjorie Stoneman Douglas? Mr. Trump is like a magician diverting the audience’s eyes while working the other hand.

The polls paint an alarming picture to his opposition. Trump’s job approval rating in early June was 45% in Gallup polling, tying his personal high. This was roughly equivalent to the approval rating of Presidents Obama, Clinton, Reagan, and Carter in their second year. His approval rating among black men at the end of April rose from 11% to 22% according to a Reuters poll. Among the total black community, it also nearly doubled from 8.9% to 16.5%. Why? It could well be because the black unemployment rate is hitting record lows – in May, that rate fell to 5.9%, the lowest since the government started keeping track in 1972. Many Asian-Americans, especially small business owners, are supporting Mr. Trump as they feel that the current business climate is heading in a positive direction and 87% believe that the new tax law will have a positive effect on the economy.

Hillary Clinton won the majority of votes in America, yet lost the election. In the midterms, the Republicans behind Trump do not have to win the majority, just enough in the various states (many of them red) to win the elections. What do conservatives and the base of white Americans adore about Mr. Trump? They love his appointing of conservative federal judges including the Supreme Court justice Neil Gorsuch and cannot wait until one of the more elderly justices like Ruth Ginsburg or Anthony Kennedy retire or pass away; the new tax law that gives benefits to most in the red states; the constantly chipping away of Obamacare; the massive rescinding of regulations across the board, including banking and the environment; the emphasis on restructuring trade deals with allies and foes alike; his support of law enforcement even in the most questionable circumstances against the minorities; his crackdown on illegal immigration as a whole; and most of all, for the stock market’s rise to unprecedented highs and the record low unemployment rate in the country.

And so for those who would celebrate the comeuppance of Mr. Trump and think that Americans will carry the image of children living in tent cities behind wire fences to the polls in November, think of this article as the dash of cold water in the face. Democrats and liberal minded people must in the vernacular “put the pedal to the metal” and get out the vote to win the midterms rather than relying on incidents like the child separation issue to carry the tide. They should also not become more confident if polling numbers reflect better circumstances for the Democrats as many Trump followers do not acknowledge their support in public, only in the ballot box.

Attached a non-precedent decision of the AAO (U.S.C.I.S.’s Administrative Appeals Office), Matter of Y-M-C-, ID #151-8339 (AAO May 25, 2018), which we worked on, withdrawing the U.S.C.I.S. New York Field Office Director’s unfavorable decision and remanding to him for a further judgment as to whether the applicant deserves conditional approval of the I-212 application as a matter of discretion. (Form I-212 is an application for permission to reapply for admission into the U. S. after deportation or removal. Our client had been ordered deported long ago but not left the U. S.). The Acting Director had denied the application on the basis that the applicant had filed a false I-102 (Form I-102 is an application for replacement or for an initial nonimmigrant arrival-departure document) and that, because he was also inadmissible under §212(a)(6)(C)(1) of the Act, the section for fraud or misrepresentation, there would be no purpose in granting the applicant permission to reapply for admission while he remained under that ground of inadmissibility. (The conditional I-212 application was filed as part of the I-601A process, and the I-601A only forgives the unlawful presence grounds of §212(a)(9)(B)(i)(I) or (II) – the 3 and 10 year bars for being in the U. S unlawfully for 180 days or one year respectively). We contested the client’s inadmissibility under the 6(C)(1) section on appeal.

The AAO pointed out that the applicant was not seeking to adjust status inside the United States, and that it is the consular officer’s responsibility to determine an applicant’s inadmissibility and to have an applicant file a form I-601 if required – accordingly, the Director’s finding of inadmissibility under §212 (a)(6)(C)(1) of the Act was premature, and the matter had to be remanded for him to determine whether the applicant merited conditional approval of his application as a matter of discretion.

The case shows that in a conditional I-212 matter in which the applicant must make final application for an immigrant visa to an American consular officer overseas, U.S.C.I.S. should not automatically deny the application as having no purpose where there is another possible ground of inadmissibility, but leave that decision to the consular officer, and confine itself to deciding whether the applicant should be granted or denied the I-212 as a matter of discretion. Although not a precedent decision of U.S.C.I.S., the decision should be given greater weight as it is well reasoned and in line with the agency’s 2016 I-601A instructions that Service officers should leave questions of inadmissibility to the U. S. consulates and secondarily to CBP (Customs and Border Protection).

The full decisions can be read here: Matter of Y-M-C-.