Article “President Trump – In How Many Ways Does He Hurt This Country? – DACA And More” as published in the Immigration Daily on January 16, 2018.

As published in Immigration Daily on January 16, 2018.

I sit here on Martin Luther King Day wondering what to write and what good it will do. This past week has shown the President of the United States to be an out and out racist. Anyone with an ounce of brain matter knew that he was an inveterate liar second or first to Mr. Putin, but everyone hoped against hope that he was not a racist. That hope was blasted by Mr. Trump’s private White House immigration meeting on a Dreamer (“DACA”) compromise negotiation that included a bipartisan group of lawmakers. As reported by The Wall Street Journal, he asked why the U. S. would want to admit people from Africa, the source of many visa lottery applicants, and said “Why do we want all these people from these shithole countries here? We should have people from places like Norway” according to 2 people; and he also expressed dismay with granting legal status in particular to people from Haiti, saying “What do we want Haitians here for?” according to another person. The juxtaposition of his wishes to have people from Norway, an overwhelmingly white country, and his disdain for people of color as coming from shithole countries of Africa proves the case of racism coupled with his support of the neo-Nazis in Charlottesville, weak response to the disaster in Puerto Rico characterizing the American Latino islanders a burden and cavalierly lobbing paper towels like footballs to its desperate people, painting Mexicans as rapists and drug carriers, ending temporary protected status (TPS) programs for Haitians, El Salvadorans, Nicaraguans, and soon Hondurans, attempting mass deportations of people of color and hoping their U. S. family members follow, and saying previously that the Haitians in the U. S. “all have AIDS” and Nigerian immigrants would never “go back to their huts” in Africa once they had seen the United States. Although Mr. Trump attempted weakly to deny that he said “shithole countries” with backing from his sycophantic immigration hardline senators David Purdue (R-GA) and Tom Cotton (R-AR) after a day of no denial by the White House, the words cannot be walked back, and more truthful senators like Lindsey Graham (R-SC), Dick Durbin (D-IL), and Jeff Flake (R-AZ) stated the truth of what he said.

Where does that leave us? Unfortunately for the country, in a terrible place. It does no good to admonish Mr. Trump and tell him that he is wrecking the country when all he seems to care about is taking care of the wealthy and making the country not “great again” but “white again.” The Dreamers have received a short reprieve from a California federal judge’s ruling in the past week that DACA recipients must retain their work permits and protection from deportation while their lawsuit challenging the decision to end the program progresses. U.S.C.I.S.’s website on January 13, 2018, stated the procedure under which the agency would resume accepting requests to renew a grant of deferred action and that the DACA policy would be operated on the terms in place before it was rescinded on September 5, 2017. In the meantime, Mr. Trump tweeted the next day that DACA is probably dead and blamed the Democratic lawmakers for it. What should Democratic legislators do at this time? The answer is to meet force with force. Today they have leverage to shut down the government on January 19th as Republicans need Democratic support to keep the government running. Kicking the can down the road to March, the Trump administration deadline for DACA, is an exercise in futility as the Republicans even now attempt to undermine the present negotiators with a second set of mainly hardline negotiators.

For everyone else not blinded by his false promises, the country under Trump is becoming a slow-motion avalanche to disaster in which the inequality of income between top and bottom under his recent tax bill will expand greatly risking momentous social upheaval; the monies borrowed for funding the federal budget will be crippling especially in light of the anticipated giveaways to the military, recent tax bill deficit, monies for infrastructure spending, payments for weather disasters, and no curbing of the Social Security program; the deportation and threat of deportation that are causing many to hide leaving a huge hole in the profits of U. S. companies which will not be able to sell goods and services, especially large purchases of homes, cars, and large appliances, to the 11 million undocumented in this country; the real estate market that will begin to tank with urban blight in many cities because of overbuilding, the tax bill ending state and local tax deductions and capping mortgage deductions, and lack of immigrants buying and leaving the cities; the many jobs in hurting industries that are now and will continue to go wanting simply because they are very hard and Americans born here have been trained by TV to see themselves as stars rather than hard laborers; the 4.1% low rate of unemployment meaning that Americans can basically pick and choose from open jobs; the inflation that will come roaring back as the government begins running the printing presses wildly to cover the deficit spending; and the cost of goods that will skyrocket making any wage gains by the middle class passé as items like hamburger meat sell for $10 a pound and a loaf of bread for $12. On top of that, Mr. Trump has made the U. S. and American companies unpalatable to the African continent, which translates into less U. S. business with a continent rich in natural resources and providing no counterweight to China, which has made Africa a focal point of its foreign-policy. The U. S. State Department diplomatic corps will not be able to assist as it has been tremendously weakened by the slashing and other leaving of personnel and the constant undermining of Secretary of State Tillerson by Mr. Trump so that many doubt that he speaks for the Administration.

While Mr. Trump may have recently passed his medical, no information was available on the tests administered, much less whether any were given pertaining to his mental state. His temperamental attitude, constantly repeated phrases, and continual vacillation on decision-making are tremendously worrisome to many professionals in mental health, and especially as he has his finger on the nuclear football and has made outlandish threats against North Korea for its missile launches.

In this writer’s opinion, there will soon be a tipping point for America in which the momentum will be too great to stop the rolling catastrophe. The 2018 midterm elections offer the nation a chance to tell the Republicans that they should separate themselves from Mr. Trump as it appears that the party is in thrall to him and the red state base that he brings. Is that the solution? No, but at least it’s a start.

Article “No Surprises In January 2018 Visa Bulletin; Dangers In Leaving The U. S. For NIV Consular Interviews; Varied H-1B RFE Response Strategies” as published in the Immigration Daily on December 15, 2017.

As published in Immigration Daily on December 15, 2017.

January 2008 visa bulletin

A short summary of the bulletin is that the final action dates (A chart) for family and employment based cases generally advanced except for assumedly temporary unavailability of certain religious workers and regional center investment cases (tied in with the machinations of Washington’s budget bill), and that the filing dates (B chart) for both family and employment remained the same. So the rest of this part of the article will only talk about the A chart. Most countries in the world saw family-based advances in the F-1 category for unmarried adult sons and daughters of U. S. citizens from 2/1/11 to 3/15/11; F-2A for spouses and unmarried children under the age of 21 of permanent residents from 12/22/15 to 2/1/16; F-2B for adult unmarried children of permanent residents from 11/22/10 to 12/1/10; F-3 for married sons and daughters of U. S. citizens from 9/8/05 to 10/8/05; and F-4 for siblings of U. S. citizens from 6/8/04 to 6/22/04. On the employment-based categories, EB-1 for extraordinary aliens, outstanding professors and researchers, and multinational executives and managers remained current worldwide; EB-2 for those with advanced degrees or exceptional aliens remained current for all of the world except for China which moved from 7/1/13 to 8/8/13 and India from 11/1/08 to 11/22/08; EB-3 for skilled workers or professionals was current for most of the world except for China which moved from 3/8/14 to 4/15/14, India from 10/15/06 to 11/1/06, and the Philippines from 1/15/16 to 2/15/16; EB-W Other Workers was current for most of the world except for China which moved from 7/1/06 to 12/22/06, India from 10/15/06 to 11/1/06, and the Philippines from 1/15/16 to 2/15/16; EB-4 for special immigrants including ministers remained current with the exception of Mexico which moved from 4/22/16 to 6/1/16 and the 3 countries of El Salvador, Guatemala, and Honduras which went from current to 12/1/15; the other part of EB-4, certain religious workers, went from current for most of the world except for Mexico to unavailable worldwide; EB-5 direct cases remained current except for China which moved from 7/15/14 to 7/22/14; and EB-5 regional center cases went from current for most of the world except for China to unavailable worldwide.

Dangers of Leaving the United States for NIV interviews

Reports continue to pop up on the negative effects on adjudications of the Administration’s “Buy American Hire American” (BAHA) Executive Order which has found its way into the Department of State’s Foreign Affairs Manual which guides consular posts worldwide in nonimmigrant visa determinations. Cases involving applications from both new employer approved petitions and renewals have seen a spike in denials, administrative processing, lengthy questioning, and requests for further paperwork. Refusal rates have increased and telephonic investigations of local employers are up. As the risks attendant to consular interviews are now observably higher, persons who already have a change of status should well consider the factors before taking a trip back home which requires a new visa. Individuals with approved changes of status from U.S.C.I.S. should remember that a visa is not necessary to maintain legal status in this country. U.S.C.I.S. controls nonimmigrants in the country through I-797 approval sheets and paper or electronically retrieved I-94’s. A visa is usually only useful for traveling back and forth.

Varied H-1B RFE Response Strategies

Is there an immigration lawyer doing H-1B’s who does not have a response by now to U.S.C.I.S.’s barrage of RFEs attacking level I wages and the specialized nature of H-1B positions? I would wager not. The following just goes through some of the response strategies out there and a few of ours. At a meeting of the New York American Immigration Lawyers Association (AILA) Chapter last month, the observation was made that if U.S.C.I.S. gave an RFE just challenging the job as level I and you respond, then the agency would come back with the second RFE to say that the position was not a specialty occupation. Also that while the language in the OOH says that an occupation “typically” requires a bachelors degree, U.S.C.I.S. jumps on that by saying that not all people in the position have to have a bachelors degree. The panel pointed out the case, Residential Finance, for the proposition that even if an occupation’s requirements include disparate and various bachelors degrees, it is a specialty occupation if you can show that each field truly prepares one for the rigors of the duties. It recommended going to the unpublished AAO decisions in addition to citing Residential Finance to make a body of knowledge argument. One panelist viewed the language in the second part of the four-part regulatory criteria to prove specialized knowledge, “… In the alternative, an employer may show this particular position is so complex or unique that it can be performed only by an individual with a degree” as opening another avenue for response different from that of the fourth criteria to prove that “the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.” One agency specializing in working with attorneys and credentials evaluations proposed the solution of responding with an expert opinion letter explaining that level I does not mean that the job is entry-level, and then providing documentation that the job does require the level of specialization and higher education that meets H-1B requirements. AILA headquarters had earlier provided a practice pointer for responding to RFEs raising the level I or level II wage issue including arguing against the U.S.C.I.S. interpretation of DOL’s wage guidance of level I being only for those employees performing routine tasks requiring limited if any exercise of judgment by going through the entire wage guidance including walking the adjudicator through steps 1 through 5 of Appendix A; arguing that the regulations do not authorize U.S.C.I.S. to review the appropriateness of a wage level; that U.S.C.I.S. is misapplying the wage level system; that some positions are inherently specialty occupations regardless of the wage level; and that the wage level reflects the worker’s stature within the employer’s hierarchy, not whether the position falls within the regulatory definition of specialty occupation. Along with what I believe is a multitude of lawyers, we argue each of the 4 points of specialty occupation separately (if we can) pointing out exactly how the position fits within each of the points and supporting the first criteria that “a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position” with references to case law, the OOH itself, and dictionary definitions. We also use expert evaluation letters dependent upon the client organization’s wishes although cognizant that their use is also being attacked. In arguing level I, we point out in many pages that USCIS does not have statutory nor regulatory authority to adjudicate the levels of a wage, and support the view with statutory and regulatory language along with DOL’s own wage guidances over the years. There is probably no magic avenue or bullet to win the day, but the large volume of evidence shows that U.S.C.I.S.’s H-1B views as spurred on by BAHA are plainly wrong.

Alan Lee, Attorney-At-Law, Wins Two Immigration Administrative Appeals at AAO.

The law firm won two recent non-precedential decisions at the U.S.C.I.S. Administrative Appeals Office which sided with us in our appeals of I-601 denials. An I-601 approval is required to waive grounds of inadmissibility, which in these cases involved fraud or misrepresentation. The standard required for waiver approval is the establishment of extreme hardship to a U. S. citizen or lawful permanent resident spouse or parent. Following such a determination of extreme hardship, U.S.C.I.S. must also make a decision on whether a waiver should be approved in the discretion of the agency. The decisions may be of some interest to the readers. In the first one, Matter of L-C-, ID #553828 (AAO Nov. 2, 2017), a large factor in establishing extreme hardship was that although both applicant and qualifying spouse were Chinese, the spouse was born and raised in Hong Kong, and had no ties to mainland China, the home country of the applicant. Also that he maintained that he was unfamiliar with the language, culture, and customs of China. In the second case, Matter of P-Y-K-, ID #639671 (AAO Oct. 31, 2017), the AAO favorably balanced on the side of the applicant the negative factors on discretion of fraud or misrepresentation when procuring a nonimmigrant visa and subsequently entering the United States, the applicant’s failure to depart pursuant to a voluntary departure in 1987, her deportation order in 1993 (which we had previously reopened and terminated), and periods of unlawful presence and employment in the U. S. against a showing of many factors including her son’s service in the Armed Forces of the U. S. 

The full decisions can be read here: Matter of L-C-, and Matter of P-Y-K-.

Article “Visa Lottery Program In Trump World; Attestation Of Translation Dangers; DNA Testing Standards; Interviews For Employment Based Cases; Interpreter Acceptability At U.S.C.I.S. Interviews; Eb-5 China Case Backlog And Trump” as published in the Immigration Daily on November 6, 2017.

As published in the Immigration Daily on November 6, 2017.

1. Visa lottery program – Lashing out and politicizing tragedy, Mr. Trump predictably attacked the visa lottery (diversity visa) program which brought in Uzbekistan-born Sayfullo Saipov, accused of killing 8 and maiming about a dozen in Manhattan by use of a rental truck. Yet the President has remained virtually silent on the issue of even banning “bump stocks”, the rapid-fire enabler of the military rifles of the Las Vegas shooter who killed 58 and wounded 489 on October 1st , following his announcement on October 5th that he would consider a ban. And he laid blame for the visa program at the feet of Democratic Senator Chuck Schumer (NY) who, while sponsoring the bill that made the temporary program permanent in 1990, also called for its repeal as part of comprehensive immigration reform in 2013 – legislation that passed the Senate but was killed by the Republican House. Very few on either side of the aisle have a problem with eliminating the program, but quickly using the incident to promote his agenda was sickening and hypocritical. Mr. Trump has been advocating the RAISE (Reforming American Immigration for Strong Employment) Act, a bill by Republican Senators Tom Cotton (AR) and David Perdue (GA), which would eliminate the program along with cutting U. S. immigration by approximately half within the next 10 years. There is much opposition to this drastic reduction in immigration numbers, and Mr. Trump was eagerly opportunistic in seizing on the tragedy. The reasonable solution advocated by many has been the reassignment of the 50,000 visa lottery numbers to the family or employment-based categories, where they can be used to reduce backlogs and waiting time of persons waiting to immigrate to this country. One possible use could be in eliminating backlogs in otherwise oversubscribed country categories such as China’s EB-5 immigrant investor preference, India and China’s EB-2 (professionals with advanced graduate degrees or exceptional ability) and EB-3 (professionals, skilled workers, and other workers) categories, and Mexico’s family-based categories.

2. Attestation of translation – This office and those of other immigration lawyers have recently received (RFEs) Requests for Evidence from U.S.C.I.S. disallowing the consideration of submitted materials for lack of language on the translation attestations not strictly adhering to the regulatory language. The American Immigration Lawyers Association (AILA) received reports from its members of U.S.C.I.S. denials due to failure to submit a complying attestation of translation. The regulatory language requires that the translator certify that he or she is “competent” to translate and that the translation is “complete and accurate.” While the agency may have the right to require that attestations follow the regulatory language, it should in fairness have given warning that it would demand such strict adherence in future cases rather than imposing the requirement on already submitted petitions and applications – especially as it receives translations from every country in the world done by armies of translators and has never before been restrictive on the format of attestation as long as the language demonstrated that the translator had sufficient knowledge of English and the foreign language to make the translation and did it to the best of his or her ability. The language rejected in our case was from a translation service in China in which the translator identified himself as an English-language professor and PhD in translation theory and practice at a university; that he was also a translator with the translation service which is a professional translation company affiliated with the university; that he certified that he had made the translation from the attached documents in the Chinese language to the English language and that such was a true and correct translation to the best of his knowledge, ability and belief.

3. DNA testing standards – Do you know the percentage standard for passing a DNA test at U.S.C.I.S.? The agency referred to its standard in a State Department cable to consular officers encouraging Department of State officers to allow for submission of direct sibling to sibling and half sibling DNA test results as one way of establishing sibling relationships. (Unclassified 17 State 6984, 1/24/17, “Update to 9 FAM 601.11 Permitting Direct Sibling-to- Sibling and Half-Sibling DNA Testing as Evidence of Relationship”). The standard for passage is a probability of 99.5%. Anything less can be retested, but will not pass if it does not reach that probability. Relationships between parent and child, direct sibling to sibling relationships and with half siblings are deemed acceptable for testing, but not recommended for testing cousins, aunts/uncles, nieces/nephews, or other such extended relationships as those tests cannot reach the minimum 99.5% probability requirement. Also consular officers are not to use testing for exclusionary purposes, such as requesting DNA testing between marital partners on suspicion that they are blood relatives.

4. Employment-based case interviews – U.S.C.I.S. is reawakening its old policy of interviewing employment based (EB) cases, for which it began waiving interviews in 1992. Those practitioners old enough to remember Legacy INS EB interviews in those bygone days can recall many questions pertaining to the I-140 immigrant visa petition as well as those relevant to the I-485 adjustment of status application, sometimes even when the I-140 was approved. I-140s as well as I-485s were commonly adjudicated by the field offices. Since those days, however, the ascendancy of the service centers has resulted in service centers adjudicating I-140s instead of field offices. This is good news as the current practice will continue and most I-140 petitions will have been favorably adjudicated prior to shipment for field office interviews, thus making interviews less onerous for applicants. This was the direction of recent U.S.C.I.S. comments in the September 28, 2017, U.S.C.I.S. Ombudsman stakeholder call featuring Dan Renaud, Associate Director of Field Operations. The gist going forward was that EB green card interviews will be scheduled for all I-485’s filed on or after March 6, 2017. Interviews would start on October 2, 2017. I-140s will be adjudicated by service center operations, and if approved, the case is sent to the NBC (National Benefits Center) which is the hub of field operations and which will conduct pre-processing activities to ensure that the case is interview ready. Field offices will communicate interview availability to the NBC and the NBC will slot the cases for the interview. EB adjustment processing times should not be affected – impacted processing times will be for family-based and N-400 [naturalization] product lines. At interview, officers have been instructed and trained not to re-adjudicate the I-140. However, they can evaluate whether the evidence used to support the I-140 was accurate, bona fide, and credible. Applicants can be asked to explain where they will work, what they are going to do, and their educational background and experience so that the officers can assess the credibility of the evidence. Also that the employer still intends to employ the applicant and the applicant still intends to take up employment. Applicants can expect to be asked any question relating to the I-485 and family members should expect questions regarding their relationship to the principal and the bona fides of that relationship. If there is a new job that is “same or similar”, the field office can speak with SCOPS (Service Center Operations) and/or U.S.C.I.S. Central Office Headquarters to try and resolve the issue of whether the case can be ported to the new employment.

5. Interpreters at U.S.C.I.S. interviews – On May 1, 2017, U.S.C.I.S. implemented a formal policy that it had announced in January concerning the acceptability of interpreters at U.S.C.I.S. interviews. The issue is important as having an unacceptable interpreter on the date of interview can cause a case to be rescheduled, resulting in much more time, expense, and inconvenience to the applicant and whoever else is supposed to appear at the interview. With the 1/17/17 policy memorandum, “The Role and Use of Interpreters in Domestic Field Office Interviews”, in effect at this time, readers should be aware that in addition to the usual people who cannot translate (attorneys in the case or persons under the age of 14), those considered disfavored are individuals who are 14-17 years of age, witnesses, family members, or persons with financial connections to the person to be interviewed, e.g. business partners. Disfavored individuals can still qualify under a good cause exception, with the memorandum giving such examples as prejudicial delay (delay preventing the alien from qualifying for a benefit (aging out); harming someone with a documented, serious medical condition (pregnant with imminent birth); person living in rural, remote, sparsely populated areas where there are few individuals who speak the alien’s language; where there is a rare dialect or language; the alien has confidential medical conditions and may not want to share sensitive information with an unfamiliar interpreter; the alien has confidential/protected information such as a VAWA (Violence Against Women Act) applicant who may not want to disclose sensitive abuse information or personal information with an unfamiliar interpreter; and persons with certain physical or mental disabilities including developmental disabilities (aliens with these conditions may be more responsive to a familiar interpreter, such as their typical support person). Because of the hardship that having an interview rescheduled can bring to all parties, applicants should err on the side of caution in choosing whom they wish to bring as interpreter to a U.S.C.I.S. interview.

6. EB-5 China cases – Here is a conundrum for the President who is a real estate magnate in his other life and along with his son-in-law’s family, the Kushners, has made a pretty penny from EB-5 financing on his Trump organization projects. How can he help out the EB-5 Chinese nationals who have by and large propped up the program in the past decade and who will disappear as a class now and in the future because of the astounding immigrant visa backlog problem without appearing to be serving his own interests? Estimates range from 7-10 years on the length of time required for a China born investor filing a petition now to be cleared for a conditional two-year green card. This is not to mention the additional time that it will require for the applicant to wait for and then file an I-829 petition to remove the conditional basis of the residence status. Perhaps a reinterpretation of the EB-5 law to count only the principal applicants and not family members for visa numbers, or reassignment of the visa lottery numbers as suggested above would help. Or perhaps Mr. Trump is already ahead of everyone with his hard advocacy of the RAISE Act, which would eliminate the EB-5 program, but put in a 30 point employment-based system in which an investment of $1,350,000 and additional requirements would garner 6 points, and one of $1,800,000 with additional requirements 12 points. As part of the legislation, the cap on country visa limits would be eliminated so that China born applicants who qualify would no longer be blocked by an immigrant visa backlog. It should be remarked that the dollar figures are not as intimidating as they would appear since they are the same numbers being bandied around in U.S.C.I.S.’s proposed EB-5 rulemaking of January 13, 2017. So if you thought about it ahead of us, congratulations on your smart thinking and self-interest, Mr. Trump!

Article “New Travel Ban, Succeed Act, Detainer Problems For Administration, DOS 90 Day Rule For Misrepresentation, H-1B Premium Processing Resumption, And DOL On PERM And H-1B LCA’s” as published in the Immigration Daily on September 29, 2017.

As published in the Immigration Daily September 29, 2017.

1. The new travel ban announced on Sunday, 9/24/17, by the Trump administration drops Sudan from the earlier list of 6 (Iran, Libya, Somalia, Syria, Sudan, Yemen) and adds Chad and North Korea. Venezuela is on the list only for certain governmental officials and family members on B-1/B-2 visas, so there are many questions as to why it was even part of the travel ban except to promote the perception of less bias against Muslim countries. The bar affects countries differently banning all immigrants and non-immigrants from North Korea and Syria; immigrants and B-1/B-2 visitors from Chad, Libya and Yemen; immigrants and all non-immigrants except F, M, and J visa holders from Iran; immigrants and enhanced screening of all non-immigrants from Somalia. The new ban goes into effect on October 18. It does not apply to LPR’s, asylees and refugees and Convention against Torture (CAT) grantees; people admitted to or paroled into the U. S. or with documents other than a visa like a transportation letter, boarding foil, or advance parole document on or after October 18; dual nationals traveling on the passport of the non-designated country; and persons with diplomatic visas. Waivers can be granted where denying entry would cause the foreign national undue hardship, entry would not pose a threat to the national security or public safety of the U. S., and entry would be in the national interest.

2. The latest bill to give DACA members relief (4 already proposed – The Dream Act, The Recognizing America’s Children Act, The Bridge Act and The Enlistment Act), SUCCEED (Solution for Undocumented Children through Careers, Employment, Education and Defending Our Nation Act), was brought out by conservative Republicans on September 25, 2017. Introduced by Republican Senators Thom Tillis (R-NC), James Lankford (R-OK) and Orrin Hatch (R-UT), SUCCEED does the following for and to the Dreamers:

  • Allows a path to citizenship after 15 years – 10 as conditional residents split into two 5 year grants, and 5 more to become eligible for citizenship.
  • Does not allow conditional residents to petition for family members.
  • The standards to meet to apply are basically the same as under DACA but tougher in many respects – an applicant must be physically present since 6/15/12; younger than 16 years of age on initial entry (no longer says must be here continuously since 6/15/07); younger than 31 and having no lawful status on 6/15/12; cannot have felonies or significant misdemeanors including being sentenced to 90 days or more – but new features are that it splits applicants into 2 groups – if 18 or older, SUCCEED requires an applicant to have a high school diploma, GED certificate, high school equivalency diploma, or admission to an institution of higher education in the U. S., or has served, is serving, or has enlisted in the U. S. Armed Forces (DACA applicants can just be currently in school); and if under 18 is attending, or has enrolled in a primary or secondary school, or is attending or has enrolled in a post secondary school; been a person a good moral character since the date of initial entry (not part of DACA); and has paid or agreed to pay any applicable federal tax liability through a payment installment plan approved by the IRS (not part of DACA).
  • Fraud or misrepresentation is not forgivable (such is not considered a problem under DACA).
  • Forces each applicant for conditional permanent residence who is at least 18 years of age to sign an acknowledgment that he or she was notified and understands that he or she will be ineligible for any immigration relief or benefit other than those dealing with persecution – withholding of removal and a claim under the Convention against Torture (CAT) if he or she violates a term for conditional permanent resident status.
  • A grant of advance parole or conditional residence does not allow an individual to adjust status under §245(a).
  • In a non-DACA related provision, SUCCEED would make it almost impossible for persons coming here under a visa waiver program (WT) and nonimmigrant visa applicants to obtain benefits after violating their statuses as they would have to sign a waiver of rights of eligibility for ten-year cancellation of removal, adjustment of status, change of status, registry, any relief not in effect at the time that they sign the waiver of rights, and from contesting removal if the persons violate any term or condition of the status or visa. That means that the signer of the waiver would generally not even be allowed an appearance before the immigration court, but could be summarily deported by ICE.

3. Detainer problems for the Trump administration are cropping up as it attempts to have local law enforcement detain aliens through immigration holds. In Sanchez- Ochoa v. Campbell, 1-17: CV-03124-SMJ (ED Wash. 7/31/17), the federal district court in Eastern Washington issued a temporary restraining order against the government ruling that the Yakima County jail authorities had to immediately remove an immigration hold on an individual which prevented him from posting bail, thus violating his Fourth amendment right to be free from unreasonable seizures. The argument was that the hold which was placed on local inmates by federal ICE officers was enforced by a county jail without judicial review, a violation of civil rights under the Fourth amendment. The court found that the county had no authority to place an immigration hold against persons based on a civil immigration “warrant” – an administrative form issued by federal immigration officers. In the oral ruling after a lengthy hearing, Judge Salvador Mendoza Jr. emphasized that the Fourth amendment requires that an arrest warrant be approved by a neutral and detached judge – not by an employee of the executive branch. Other judges have said that holding people in criminal custody for a civil infraction violates the Fourth amendment protection against unreasonable seizures, and the administration’s demands violate the Tenth Amendment by forcing states to do the federal government’s bidding. More than a dozen people who were held on detainers brought lawsuits against local governments, and the majority of those who sued have been successful, resulting in settlement payments as high as $145,000.

4. The State Department’s recent doing away with the 30/60 day rule and in effect imposing a 90 day rule to judge whether people are misrepresenting their intent in coming to the U. S. will especially make it more difficult for those with visa waivers (WT) coming to the U. S. for 90 days maximum to adjust status through a marriage contracted after entry into the U. S since they only have 90 days to stay (no extension allowed) and U.S.C.I.S. in the past has given large problems to some who overstayed and later attempted to adjust status. But it should be remembered that the 30/60 day rule as well as the new 90 day rule are ones created by the State Department and not U.S.C.I.S., and that U.S.C.I.S. is the arbiter of the law in the field of immigration between the two agencies.

5. U.S.C.I.S. plans to make premium processing available for all classes of H-1B on October 3, 2017, according to information given to the American Immigration Lawyers Association (AILA) by the agency. As of September 18, 2017, U.S.C.I.S. resumed premium processing for all H-1B cap cases for FY 2018. It had already resumed premium processing for H-1B petitions for physicians under the Conrad 30 waiver program, interested government agency waivers, and cap-exempt H-1B’s.

6. American Immigration Lawyers Association (AILA)/Department of Labor (DOL) Wage and Hour Division (WHD) meeting 6/16/17:

  • WHD said that the 30 and 60 day window for employers to put H-1B workers on the payroll (30 if the H-1B holder is entering from overseas and 60 if in the U. S. pursuant to a change of status) is only applicable where the H-1B worker has not made himself or herself available to begin employment.
  • In an H-1B transfer where the alien is immediately available upon the filing, WHD looks to the specific facts of the case to determine whether or not the H-1B worker was available for employment at any point before the H-1B petition was approved. WHD said that it would give further consideration to AILA’s position that some employers are cautious and want to have the H-1B approved prior to the alien commencing employment, and it will determine whether this by itself is sufficient to demonstrate that the wage obligation does not commence on the basis of eligibility for H-1B portability alone.
  • AILA asked WHD to confirm that a bona fide termination has occurred even when the employer did not provide the H-1B workers with the reasonable cost of return transportation in the circumstances where the H-1B worker voluntarily resigned; applied for adjustment of status; had an H-1B change of employer petition filed by another employer; or the employer offered the reasonable return transportation costs to the H-1B worker but the worker did not accept them. WHD declined to confirm only saying that this will be a fact specific inquiry.
  • An LCA must cover “place of employment” which is not limited to the exact worksite stated on the LCA but includes all locations within normal commuting distance and the question to WHD was whether it had a fixed standard to determine normal commuting distance, to which WHD said that there is no fixed internal standard for determining normal commuting distance; that the specific facts of the case are important and WHD would look to whether the commuting distance is normal for the specific location of employment; and that helpful information would include documentation of whether other workers regularly make that kind of commute, whether the commute is reasonable for the industry and type of position, and whether there are roads, trains, or other infrastructure that would make the commute reasonable despite a longer distance.
  • On AILA pointing out the Labor Department’s prohibition against H-1B workers paying for any expenses including attorneys fees and premium processing fee, while U.S.C.I.S. guidance says that the H-1B workers are permitted to pay the premium processing fee, WHD said that it believed the premium processing fee, like any other H-1B filing fees, is normally an employer business expense despite the guidance from U.S.C.I.S. WHD said that it would consider the issue where the employee would want premium processing for personal reasons unrelated to the employer, such as to accommodate personal travel or purely for the employee’s peace of mind.

7. DOL confirmed that as of July 11, 2017, the PERM upload feature audit response is now functional and AILA’s DOL liaison committee strongly recommends that attorneys use the upload feature rather than email, as it improves efficiencies at DOL and provides immediate confirmation of an audit submission.

8. 2016 Annual Report of the Office of Foreign Labor Certifications:

  • Top 5 states with labor certifications approved were California 27,547, Texas 15,593, New Jersey 9166, New York 8453, and Washington 6473.
  • Top 5 job titles with the most labor certifications granted were software developers, applications 41,147, computer systems analysts 10,642, software developers, systems software 7868, electronics engineers, except computer 3563, computer and information systems managers 2935.
  • Top 5 countries for labor certification grants were India 65,095, China 9932, South Korea 8349, Canada 3999, and Mexico 2149.
  • Top 5 employers with the highest number of PERM certifications were Cognizant Technology Solutions U. S. Corporation 4243, Microsoft Corporation 3326, Intel Corporation 1944, Google Inc. 1739, and Amazon Corporate LLC 1603.
  • The H-1B program saw 1,198,782 LCA grants overall and the top 5 employers with approvals were Deloitte Consulting LLP 163,625, Cognizant Technology Solutions U. S. Corporation 97,472, Pricewaterhouse Coopers LLP 54,093, CapGemini America, Inc. 47,224, and WIPRO Limited 32,243.

Article “DACA and What Lies Ahead” as published in the Immigration Daily on September 6, 2017.

As published in the Immigration Daily on September 6, 2017.

President Trump’s ending of the DACA (Deferred Action for Childhood Arrivals) program on September 5, 2017, was hardhearted in act and tone. Given a choice between fighting to preserve the program in court against an alliance of 9 attorney generals threatening to sue to end the program or caving in to his Attorney General Jeffrey Sessions who would not defend against a suit and pressure from his white nationalist base, Mr. Trump chose the latter. Although the ending of the program provides 6 months for Congress to pass legislation to save the Dreamers and work permission (those expiring by March 5, 2018, have one month until October 5, 2017, to apply for a new two-year permit), Mr. Trump clearly put the onus on Congress. His later day vacillating tweet that if Congress could not legalize DACA in 6 months, “I will revisit this issue!” appeared to be another of his empty threats as he already gave up his authority to continue the program. It remains to be seen how enthusiastic he will be in fighting for saving legislation, but early indications are that he will do little for the Dreamers. Instead of conciliatory expressions of regret and hope, the President took the opportunity to slam former President Obama for creating the program through executive authority; emphasized that he stands by his “America First” agenda; stated that “We must also have heart and compassion for unemployed, struggling and forgotten Americans”; called the program an “amnesty first approach”; and his press secretary Sarah Huckabee Sanders said that Mr. Trump would support Dreamer legislation, as long as Congress passed it as part of a broader immigration overhaul to strengthen the border, protect American jobs and enhance enforcement.

In other words, the chances of Dreamer legislation passing unscathed and alone are not good as the Republicans can be relied upon to hold the bill hostage for other items on their anti-immigration wish list. Mr. Trump himself in his official statement on the ending of DACA put forth his views:

Before we ask what is fair to illegal immigrants, we must also ask what is fair to American families, students, taxpayers, and job seekers.

Congress now has the opportunity to advance responsible immigration reform that puts American jobs and American security first. We are facing the symptom of a larger problem, illegal immigration, along with the many other chronic immigration problems Washington has left unsolved. We must reform our green card system, which now favors low skilled immigration and puts immense strain on U. S. taxpayers. We must base future immigration on merit – we want those coming into the country to be able to support themselves financially, to contribute to our economy, and to love our country and the values it stands for. Under a merit-based system, citizens will enjoy higher employment, rising wages, and a stronger middle class. Senators Tom Cotton and David Purdue have introduced the RAISE Act, which would establish this merit-based system and produce lasting gains for the American People.

The RAISE legislation would chop off family-based immigration for parents of U. S. citizens, adult children of U. S. citizens and permanent residents, and brothers and sisters of U. S. citizens, as well as terminate the visa lottery program. Its effect would be to lower U. S. legal immigration by half within 10 years.

There is less incentive for Congress to act within the 6 months because of Mr. Trump’s vacillating tweet. Democrats would be harder pressed to agree to significant anti-immigration measures given the justification that the President would take up the topic again anyway. Mr. Trump can also justify to himself a Pontius Pilate washing of the hands attitude having given his empty threat instead of taking a leadership role and working with Congress to ensure the passage of Dreamer legislation. For without heavy pressure from above, even the heavy to-do list of Congress may stymie the passage of Dreamer relief as Congress must deal with the consequences of Hurricanes Harvey and now Irma, Mr. Trump’s repeated sorties in resurrecting repeal and replace of the ACA, tax legislation, infrastructure spending, and stopgap measures to fund the federal government if a compromise cannot be reached by the end of September.

While expressing great sympathy and empathy with the DACA recipients, immigration proponents and all those opposed to the Trump agenda should look hard to establish the tone for elections in 2018 and 2020. The 2018 midterm elections provide an opportunity to stymie Mr. Trump’s rogue style of governing if one or both houses of Congress can be regained. 2020 presents the chance to rid the nation of his presidency. The difficulty is that while Mr. Trump’s popularity is sagging tremendously according to the polls, many of his supporters decry or say nothing about him in public and vote for him in private. They see the choice as clinging to the lifestyle of conservative and/or center values that they were born with and going with a Pied Piper promising to take them back 20 years ago when their lot was better or looking with horror at a future of liberal values including rebellion against the police and other authorities, gender bending, attacks against the establishment, gay rights, the expansion of blacks and other minorities’ rights, and global trade agreements enhancing the fortunes of many in the nation but not them.

To capture enough votes in this populace, Democrats must go back to center left and not farther to the left. The Party must lower the volume on the left, and Democrats must appear more attuned to the concerns of those in small town America. Statue bashing for one should stop as it leads to confrontation and confuses many who regard the statues only as sign posts to American history. Protest must continue as people must be continually made aware of what is worth fighting for, but unhelpful confrontations like in colleges between students and teachers over professors’ remarks should be de-escalated as they seem to be part of an unwarranted leftist movement against free speech. In the recent cases involving Evergreen State College in Olympia, Washington, and Yale University, the scenario appeared to be the extreme left attacking the moderate left.

Although this must seem antithetical to the instincts of many liberals, many must know in their hearts that their stridency is taken with alarm by many in the center and is anathema to them and to conservatives who wonder what and where their place would be in a nation with such values. As for the Dreamers, one hopes that they will continue to dream and work towards a peaceable nonviolent solution to their status. Acts of violence out of frustration would damn them at a time when they have the sympathy and ear of most Americans.

Article “Why The Trump/Republican Party Grand Plan Won’t Work – A Prelude To 2018 And 2020” as published in the Immigration Daily on July 28, 2017.

As published in Immigration Daily on July 28, 2017.

In the wake of the Democratic presidential victory in 2012, Sen. Lindsey Graham (R-SC) ruefully observed that the Republican Party was not generating enough angry white guys to stay in business for the long term. Donald Trump proved him wrong in the short-term in 2016 with the base that he turned out on fears of blacks taking over America’s culture; that he would reverse unfavorable trade deals and create millions of jobs; get rid of Obamacare and cover everyone more cheaply; and that he would deport criminal aliens and build the great wall between the U. S. and Mexico. He took advantage of the Bernie Sanders supporters’ unwillingness to switch to Hillary Clinton, lulled many Hispanics with his rhetoric concentrating on criminal aliens, blacks with the message of what did they have to lose in voting for him, and the LGBT community with assurances that he would be their friend.

Six months into the presidency, many of the people who voted for Mr. Trump have come to the realization that he is a flimflam man promising everything to everybody without hope of delivering on most of the promises. Without drastic reversal of policy, Republican chances in the 2018 midterms and 2020 presidential election appear to be sealed. The health care bills brought forth by the Republicans have been disastrous in the eyes of the American public as all of them refute Mr. Trump’s promise and most would deny coverage to 20+ million Americans who would have it under Obamacare, the “skinny” repeal and replace would delete 16 million, and repeal without replacing would be even more devastating (32 million) in placing American healthcare in the same sorry position it was in was before the institution of the Affordable Care Act.

The aim of driving the undocumented from the country is part of the Republican Party grand design that has the objective of allowing the angry white guys with their families and supporters to keep control with a minority of the U. S. population (non-Hispanic whites projected to be under 50% by 2043) by expunging those who would have children and are U. S. citizens by birth. Now and in the future, the children of the undocumented become eligible voters, most of whom in the past 20 years have voted Democratic. The thinking goes that if the undocumented can be driven out, their future children would not be U. S. citizens, and any present U. S. children would possibly leave with their parents. To that end, regardless of the drastic present and foreseeable damage to the economy and GDP caused by zero population growth and fear of arrest limiting the undocumented from going out and spending money for anything other than necessities, the Trump administration is moving forward with plans to expedite removals without hearings for all those found in the country who cannot prove that they have been here for more than 90 days, making all of the undocumented ICE targets by designating anyone unlawfully here as lawbreakers, sending those arrested to faraway detention centers where family/community support and legal representation are scarce, having bills introduced against sanctuary cities, handing out stiffer criminal penalties for illegal reentry, and prosecuting good Samaritans for providing assistance to the undocumented. To that end also, Republicans are moving for tighter identity rules at polling places nationwide, although there is no evidence of any widespread voter fraud. Such rules are designed to depress the votes of blacks and other minorities who generally vote Democratic.

Unfortunately for the Republicans, many of Mr. Trump’s moderate white voters who took a chance on him are beginning to see his broken promise on affordable healthcare legislation and many disapprove of his focus on mass deportation rather than just the removal of violent criminal aliens which he emphasized during his campaign. They see his ineffectiveness in U. S. companies still sending job overseas, his inability to reverse trade deals or the Iran nuclear deal, ineffectualness in dealing with China and North Korea, spouting untruths on almost a daily rate, creating chaos in the White House, cozying up to the Russians, and having no strategy for dealing with Syria or the rest of the Middle East. Blacks who voted for Mr. Trump or abstained from voting altogether have realized that they have a lot to lose under this presidency as the situation for violence in Chicago remains unabated and law and order in all its true colors gains ascendance over civil rights. Hispanics believing that the focus of Mr. Trump was only on criminal aliens have learned a huge lesson as he has widened the focus of enforcement to include all of the undocumented. Liberals from the Bernie Sanders camp and from the LGBT community who refused to vote for Mrs. Clinton have now seen the wrecking ball tear through many of their dreams. Finally Mr. Trump cannot expect further offers of assistance, official or unofficial, from Russian sources as they are all under intense scrutiny.

Republicans should realize that the unexpected and shocking confluence of events that propelled Mr. Trump and their party to victory in 2016 will not be repeated in 2018 or 2020 and that they will lose barring huge changes in direction.

The President and the Republicans are now desperately gyrating around many versions of healthcare legislation and not particularly caring which one passes, as long as one can pass with the Republican brand on it. But the light of day numbers by the CBO of how many tens of millions more would be left without healthcare are largely scuttling the misbegotten efforts of Mitch McConnell (S – Ky.) and his cohorts. They fail to understand that the ship has already sailed, and any version that they pass even after their disastrously defeated vote-a-rama last night will ultimately hurt them with their base, many of whom will be more attentive to the loss of healthcare benefits to themselves and a massive number of Americans than to a 7-year-old Republican Party pledge to end Obamacare.

This leaves a mess for the Republican Party, which after initial jubilation in late 2016 now finds itself tied fast to a scandal-ridden unstable President. At present, most members lack the moral courage to stand against Mr. Trump for fear of his inciting their constituents against them. But sooner rather than later, they will have to change their tune and band together in resistance against Mr. Trump if they are to have any chance in future elections.

Article “Economic Growth and Stifling the Buying of Goods and Commodities by the Undocumented” as published in the Immigration Daily on July 14, 2017.

Does anyone really believe that President Trump really knows what he’s doing with the economy? Last week’s revelation of the February memo by Matthew Albence, head of ICE Enforcement and Removal Operations (ERO) that all undocumented immigrants are to be targeted instead of just those who have committed crimes – “effective immediately, ERO officers will take enforcement action against all removable aliens encountered in the course of their duties” – promises to further shrink the economy all by itself as undocumented immigrants refuse to venture forth except for essential trips. Anecdotal evidence already suggests that many undocumented immigrants have gone from reaching out into communities to closing in amongst themselves. When the purchasing of consumer goods and commodities by 10-11 million individuals out of the US total population of 320 million (over 3%) is severely compromised by fears of arrest, and when long-term purchases of washers, refrigerators, ranges, TVs, vehicles and homes are no longer seen as practical, there is a blow to the economy. Big-box stores and manufacturers are starting to feel the cruel pinch as the undocumented shop less often and closer to home. It should also be remembered that the 3+% purchase more than their share as the vast majority of them, 85.9%, in a 2012 study, were between 18-54 years, prime ages for establishing families and purchasing cars, homes, and all the other accoutrements of living. A 2016 study, “The Economic Impacts of Removing Unauthorized Immigrant Workers” by the Center for American Progress, found that a policy of mass deportation would immediately reduce the nation’s GDP by 1.4% and ultimately by 2.6%, and reduce cumulative GDP over 10 years by $4.7 trillion.

This is already being reflected in the economic numbers of growth as cited in The New York Times article of July 6, 2017 “Hopes of ‘Trump Bump’ for U. S. Economy Shrink As Growth Forecasts Fade” that the Federal Reserve Bank of Atlanta now expects second-quarter GDP growth figures to come in at 2.7%, more than a full percentage point below where it was in May, and a decline even since the beginning of the week. This is happening at a time of almost full national employment when with all cylinders firing, GDP would be expected to rise.

But it is also a certainty that with the unemployment rate at almost full employment (4.3% in May and 4.4% in June), the day of reckoning will come when there will be a sharp upsurge in wages and with it an attendant sharp increase in inflation. The two go hand-in-hand although the veteran head of the Federal Reserve, Janet Yellen, appears ready to make moves to hold inflation in check even as her job is rumored to be in danger by Mr. Trump. The relief valve of hiring undocumented immigrants is almost closed because of the attention and penalties attached to the act of hiring. The purchasing power of raised wages will sooner or later be eroded by the passing on of costs or shrinkage of packages such that a loaf of bread may in the near future cost $6, a gallon of milk $8, and a pound package or 2 liter bottle further reduced in size.

Mr. Trump’s “Americans First” and “Hire Americans” slogans ring hollow and hollower given the state of the economy at almost full employment. There are pockets of unemployment, most in the red states, but the answer cannot seriously be to bring back antiquated factory and coal mine jobs in the Rust Belt and red states as those factory jobs are even now being shipped overseas and most factory line people replaced by robotics and coal technology replaced by a mixture of cleaner fuel alternatives. Such as the Blacks in the country migrated north for jobs in the first half of the 20 th century, those in the South or in other parts of the country without full-time jobs should consider moving to where employers are dying to hire people. In a June report by U.S. News & World Report, the 10 best states to find a job based upon unemployment rate, growth of available jobs, and percentage of people either looking for work or working were Utah, Colorado, North Dakota, Massachusetts, South Dakota, New Hampshire, Nebraska, Minnesota, Iowa, and Vermont. As Mr. Trump is discovering, being tough on trade does not work when you do not hold the cards and other countries or regions can retaliate (bar or put stiff tariffs against for example soybean farmers in Illinois, Iowa, Indiana and Nebraska or bourbon makers in Kentucky and Tennessee) or bring suit against the U. S. in the World Trade Organization (WTO).

In addition, the Republican playbook to boost the economy appears in trouble at this time. It was initially to push health care legislation and then use health care savings to fund huge tax breaks to companies and the wealthy which would then allow them to invest heavily into projects to promote further hiring of U. S. workers along with helping to fund public works projects to rebuild the transportation infrastructure of the country. However, the latest numbers released by the Congressional Budget Office (CBO) on June 26 on the Senate’s June 11 “Better Care Reconciliation Act” health plan estimated $321 billion in deficit reduction from 2017 to 2026, but the savings would be achieved on the backs of 22 million less insured people by 2026 than would be insured under Obamacare. The fury caused by the CBO numbers forced many Republican senators to forgo holding town hall meetings, marching in parades, or otherwise meeting angry constituents during the Fourth of July recess. Many of the people affected by the bill are in red states.

In the wake of setbacks across the board caused by the firing of FBI director James Comey and Mr. Trump’s further entanglements in what could turn out to be Russia-gate, the Republican Party is looking for any victory whatsoever, and willing to settle for less savings on the healthcare bill to take the attention off of the burgeoning Russian scandal which threatens the legitimacy of the Trump presidency. And if it cannot accomplish even that, it is willing to take a defeat on a final vote just so it can say to its base that it tried very hard to fulfill its seven-year promise to repeal and replace Obamacare. To this end, the Republicans put forth a revised Senate bill on July 13 which would add $45 billion to combat opioid addiction, $70 billion to the states to help drive down premiums, and a provisional section to allow insurance companies to sell cheap insurance plans not covering much as long as they sold one policy that did. It would further keep Obamacare’s taxes on investment income and payroll for high earners, which The New York Times estimated would account for $231 billion over a decade. Of the 50 (out of 52) Republican senators required to vote “yes” on the legislation, two as of the time of this writing have already come out against it, Senators Rand Paul of Kentucky and Susan Collins of Maine.

It should be noted, however, that even if the Republicans push through their health care legislation package, their plan for economic success hinges upon “trickle down” economics in which the monies given to companies and wealthy individuals result in additional investment with job creation and better wages “trickling down” to the masses. Unfortunately “trickle down” has been disproven as an economic theory through the presidencies of Ronald Reagan and George H.W. Bush (Mr. Bush to a lesser extent). Although Mr. Reagan managed to grow the economy, that was due not only to lowering taxes for businesses and wealthy individuals, but also increasing government spending by 2.5% a year, a move almost tripling the federal debt and stoking inflation fears that contributed to a later recession under President Bush. It may well be that – as demonstrated over and over again over the course of this new presidency – that the Republicans are more interested in short-term results than in the long-term health of this country.

And in another nonsensical move, the Administration on July 11 rolled out a federal regulation to delay the date while planning to rescind the new international entrepreneur rule due to come into effect on July 17, 2017, which would have provided a period of parole of up to 5 years for the best and brightest entrepreneurs to implement ideas to strengthen the country’s technological advances. The Administration step astounded executives of successful startups as the entrepreneur rule was designed to not only advance innovation, but also create U. S. jobs.

The path to true growth has many components, but taking steps to damage the purchase of goods and commodities by a sizable share of the nation’s population is not helpful where other options lack promise and the Administration stifles an initiative designed to create jobs and keep the U. S. competitive with the rest the world in cutting-edge technologies.

Article “Lees’ Second Generation Arthur Lee, Esq. Joins the Law Firm of Alan Lee, Attorney at Law” as published in the Sing Tao Daily on May 27, 2017.

 

The second generation of Lees, Arthur Lee, Esq, with excellent scores passed the bar license examination and has become an associate in the law firm of Alan Lee, Attorney-at-Law.

Arthur Lee, Esq. (see photo) is the son of Alan Lee, a well-known attorney in New York.  He has been an intern at Alan Lee, Attorney-at-Law, since 2013 and is already familiar with immigration law and is dedicated to serve the Chinese community.

Arthur Lee, Esq. has also worked at the immigration law clinic at Brooklyn Law School where he worked with the Vera Institute of Justice.

He is a cum laude graduate in 2016 from the Brooklyn Law School’s inaugural two-year accelerated law program and he also served as an editor in the Brooklyn Journal of Corporate, Financial & Commercial Law (2015-2016). He was admitted to the bar in April of this year and is licensed to practice before New York state and federal courts.

Alan Lee, Esq. who has served the Chinese community for many years, has more than 30+ years of experience in immigration law, proficient in I-601 waiver, H-1B, L-1, O-1, TN, F and K visa etc., as well as family based immigration, extraordinary ability, National Interest Waiver (NIW) and other immigration cases. Its legal business also covers investment immigration, political asylum and naturalization and so on.

Alan Lee, Esq. Attained the AV Preeminent Rating

Alan Lee, Esq. is an immigration attorney in U.S. immigration and nationality law and has practiced in this exclusively for more than 30 years. The Martindale-Hubbell Law Dictionary has given him the AV preeminent rating which is the highest possible rating in both legal ability and ethical standards. 

Alan Lee, Esq. is also on the Bar Register of Preeminent Attorneys, and on the New York Super Lawyers lists (2011-2012, 2013-2014, 2014-2015 and 2015-2016). He was awarded twice by the government of the Republic of China in 1985 for his outstanding contribution in immigration and Human Rights Affairs. He also was selected for Who’s Who in American Law and has appeared as an expert witness on immigration matters in court.

His articles are widely published in a number of Chinese newspapers and published in many immigrant publications such as Immigration Daily. In 2004, Alan Lee, Esq.’s case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged INS’ policy of over 40+ years of revoking approved immigrant visa petitions under a nebulous standard of proof.  As of now, Alan Lee, Esq.’s has over 1,400 legal writings in newspapers and journals on immigration law.

Alan Lee, Esq. holds a bachelor’s degree of UCLA, and a juris doctorate graduate of the Cleveland-Marshall College of Law where he was awarded the Sidney A. Levine award for best writing in 1976-1977.  He is a member of the American Immigration Lawyers Association and has successful litigated cases before the federal courts, Board of Immigration Appeals, Appeals Adjudication Unit, Board of Alien Labor Certification Appeals, and the Regional Commissioners of Legacy INS. 

Mr. Lee became a member of the Ohio bar in 1977 and the New York bar in 1982 and later he became a registered attorney to practice before the New York Southern, Eastern and Western district courts and Second Circuit Court of Appeals.

Alan Lee, Attorney at Law welcomes readers to contact and telephone. The telephone number is: 1 (212) 564-9496; Fax: 1 (212) 268-1679. Address: 408 Eighth Avenue, Suite 5A, New York, NY 10001. Website: www.alanleelaw.com.

Article “Late to the Party, the Trump Administration Weighs in On H-1B’s With 5 Pronouncements” as published in the Immigration Daily on April 27, 2017.

As published in the Immigration Daily on April 27, 2017.

From the date of inauguration, January 20, 2017, to the beginning of the cap H-1B filing period was only 70 days. As the clock ticked down to the last days of March, everyone in the H-1B community including petitioners and beneficiaries breathed again as no edicts, proclamations, abolishment by fiat, new regulations, legislation or other acts of Congress were put forth to change the rules for H-1B season. This author believed that such might be the case given the tight timeline between January 20 and April 1 and the competing items on Mr. Trump’s agenda.

The probability is that legal immigration reform will take a backseat to the crackdown on undocumented immigrants as the latter is more headline grabbing and red meat to the populist base that elected Mr. Trump. As the swearing-in of the new president is on January 20th and legal immigration is the lesser concern, the upcoming H-1B season in April will likely see little change from last year’s. (“What Should You Do About Your Immigration Situation in a Donald Trump Presidency,” Alan Lee, Immigration Daily, 11/14/16).

U.S.C.I.S. conducted the H-1B lottery selections on April 11 and received 199,000 H-1B petitions this year. Last year it received 236,000 during the filing period. It may well be that all the criticism about the H-1B program reduced the number of petitions filed by companies afraid of bad publicity.

The Trump machine while late to the party has now put forth 5 pronouncements on H-1B enforcement of which all should be aware since they will impact upon all H-1B filings including those in the recent cap season:

1. Executive Order, 4/18/17 “Presidential Executive Order on Buy American and Hire American” in which “the Secretary of State, Attorney General, Secretary of Labor, and Secretary of Homeland Security shall as soon as practicable and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse… Shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

(While guidance can possibly revoke or rescind prior guidance or give guidance in an unclear area, guidance can also be the subject of lawsuits where it changes prior policy without going through the Administrative Procedure Act’s requirement of notice and comment.).

2. 3/31/17 policy memorandum of U.S.C.I.S., PM-602-0142 that although the Occupational Outlook Handbook and the 12/22/00 Terry Way (former Nebraska service center director) memorandum, “Guidance Memo on H-1B Computer Related Positions” supported the computer programmer occupation as professional, the guidance is being rescinded and a new position adopted that “an entry-level computer programmer position would not generally qualify as a position in a specialty occupation because the plain language of the statutory and regulatory definition of ‘specialty occupation’ requires in part that the proffered position have a minimum entry requirement of a U. S. bachelor’s or higher degree in the specific specialty, or its equivalent.” Note 6 of the memorandum says that “If a petitioner lists a position as a Level I, entry-level position, for example, such an assertion will likely contradict the claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation. In general, a petitioner must distinguish its proffered position from others within the same occupation through the proper wage level designation to indicate factors such as the complexity of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties.”

(This is a specific attack on level I computer programmer positions, but the prelude to a general strategy to force H-1B petitioners to abandon use of wage level I in favor of higher wage levels. It is incongruous in promoting the unnatural state in which an employer may be forced into paying an unwarranted salary to hire a freshly minted graduated alien with a baccalaureate degree for an occupation that requires the particular type of baccalaureate degree – which is the sole requirement for a specialized occupation as per the H-1B rules).

3. U.S.C.I.S. press release, “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse,” 4/3/17, that U.S.C.I.S. will take a more targeted approach in making site visits across the country to H-1B petitioners and the worksites of H-1B employees, and focus on:

• Cases where U.S.C.I.S. cannot validate the employer’s basic business information through commercially available data;
• H-1B dependent employers (those who have a high ratio of H-1B workers as compared to U. S. workers, as defined by statute); and
• Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

(U.S.C.I.S. threatens through FDNS (Fraud Detection and National Security) audits to discourage the use of H-1B workers for companies that are already dependent on them in having a large percentage in their workforce, and consulting companies that send their workers to outside sites under contracts with end-users. In the other situation of employers not disclosing business information through commercially available data, H-1B petitioners should take the opportunity to update their company information in the Dunn & Bradstreet (D&B) database as U.S.C.I.S. explores that through its VIBE (Validation Instrument for Business Enterprises) program to check on organization bona fides).

4. Department of Justice press release, “Justice Department Cautions Employers Seeking H-1B Visas Not to Discriminate against U. S. Workers”, 4/3/17, warning that “U. S. workers should not be placed in a disfavored status, and the department is wholeheartedly committing to investigating and vigorously prosecuting these claims.” The release also notes that the Division’s Immigrant and Employees Right Section (IER), formerly known as The Office of Special Counsel for Immigration Related Unfair Employment Practices, is responsible for enforcing the antidiscrimination provision of the INA, which statute prohibits among other things citizenship, immigration status, and national origin discrimination in hiring, firing or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation.

(This is an example of the Trump administration repurposing an agency’s mission which was previously to protect the rights of aliens. It is akin to changing the main purpose of the Civil Rights Division of the Department of Justice to protecting the civil rights of white Americans instead of blacks and other minorities).

5. U.S.C.I.S. press release, “Combating Fraud and Abuse in the H-1B Visa Program,” that it has established an email address dedicated to receiving information about suspected H-1B fraud or abuse; that anyone (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) can email ReportH-1BAbuse@uscis.dhs.gov to submit tips, alleged violations, and other relevant information about potential H-1B fraud or abuse. (In the world of alternative facts and the absence of reality, H-1B employers and aliens have turned out to be the enemy, and not among those perceived to help build the nation. The positive effects of H-1B workers have been largely discounted by this administration bent on demonizing employers as overseers of underpaid foreign minions whose employment was bought at the expense of Americans thrown out of work. The same playbook was followed by the administration in demonizing immigrants and calling for the creation of a new agency to protect victims’ rights where immigrant crime was involved even though the percentage of immigrants violating the criminal laws has been and remains tremendously less than that of native born Americans).

A collective breathing out of relief followed by a sigh of exasperation in an unbalanced presidency making up scenarios in any way that it can (loosely attached or unattached to fact) is now a familiar pattern – one that unhinged leaders, e.g. Putin, Duterte, Assad, all understand and ascribe to, but dispiriting to most of the rest of the world leaders who hoped for better from the United States. Aliens on H-1B’s are capped at 85,000 per year except for those being petitioned for by colleges and universities, nonprofit organizations affiliated with institutions of higher education, nonprofit research organizations and government research organizations. They represent a very small portion of the 254,414,000 full-time and 5,553,000 part-time workers in the nation in March 2017 as per the Bureau of Labor Statistics. With these figures, the unemployment rate declined to 4.5% in March which by many measures of economics is almost full national employment. So President Trump, where is the problem?