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Monday, April 17, 2017



According to the Washington Post, in the first month alone of Trump’s presidency, immigration arrests by Immigration and Custom’s Enforcement agency (ICE) have spiked sharply causing fear to spread in the immigrant community.
It’s not just those with criminal records that have been the target of these arrests, but arrests of non-criminal immigrants have more than doubled to 5,441. Reports of ICE at the state and local courthouses have sparked prosecutors to state that it is harder to pursue cases and ICE presence actually interferes with the course of justice.  ICE Spokeswoman Jennifer Elze said that the agency “focuses its enforcement on individuals who pose a threat to national security, public safety and border security.  However as DHS Secretary Kelly has made clear, ICE will no longer exempt classes or categories of removable aliens from potential enforcement.” President Trump’s executive order make all undocumented immigrants subject to removal, repealing the removal priority policy previously in place under President Obama. Those in the US without legal status are being counseled to be prepared, know what ICE can and cannot do, and what to do if they are caught up in a raid or encounter Immigration Enforcement Officers.
Undocumented parents are advised to proactively take steps to ensure that in the event they are arrested, their children will be cared for by relatives or trustworthy neighbors for the short and long term. 

Thursday, April 13, 2017



On March 31, 2017, a three-judge panel for the Ninth Circuit Court of Appeals in Ramirez v. Brown decided aliens granted TPS are eligible to adjust status incident to a grant of TPS status.  The Ninth Circuit joins the 6th circuit in this finding.  See Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548 (6th Cir. 2013).)  So what does this mean?   

It means that those currently in TPS status who live under the 9th circuit's  jurisdiction presumably can apply to adjust their status based on the filing of an I-130 Alien Relative Petition or I-140 Employer Petition without leaving the U.S.  However, in practice, this remains to be seen.  The argument rests on whether someone granted TPS by US Immigration Service has been "inspected and admitted".   The 9th circuit concluded that those with TPS have been "inspected and admitted".   Interesting to note, however, section 244(f)(4) of the INA governing TPS does not state that an alien granted TPS "shall be considered as having been admitted, and maintaining, lawful status as an immigrant."  Rather, only that persons with TPS are "in and maintaining" such status - -  a difference in the language and interpretation of section 245(a) of the INA. (Emphasis added. See also section 245(a) of the INA.) The circuits across the United States demonstrate this split on the issue.  Such application of section 244(f)(4) of the INA to section 245(a) was expressly rejected by the Eleventh Circuit in Serrano, 655 F.3d at 1264.   Rather, according to that circuit, TPS is not a status but only a temporary protection due to conditions rendering it dangerous for those from those countries to return there. 

Undoubtedly, the 9th Circuit, holds sway over more aliens in TPS status than any other circuit with California having the lion's share of TPS-ers from El Salvador and Honduras.  Given the high number of individuals this decision impacts, it is very likely the conservatively-weighted Supreme Court (5-4) will decide the issue once and for all. 

Friday, April 7, 2017

FY2018 H1B Cap Reached Today


U.S. Citizenship and Immigration Services announced today it has reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018.  USCIS has apparently also received a sufficient number of H-1B petitions to meet the 20,000 visa master’s degree cap.  U.S. companies seeking to employ a foreign worker in occupations requiring specialized knowledge use the H-1B program.  

Any application submitted to date not selected for adjudication will be rejected and returned by mail.  Duplicate applications will also be rejected.   USCIS will continue to accept non Cap petitions as well as those previously counted against the cap and who still retain their cap number.  Other H1B petitions USCIS will continue to accept and process petitions filed include those seeking to extend H1B status; Petitions submitted to change the terms of employment; Petiotions with a change of employer, and petitions for current H-1B workers seeking to work concurrently in a second H-1B position.

Monday, January 30, 2017


Unauthorized Immigrants with Criminal Convictions - REMOVAL PRIORITY

During an interview on CBS’ 60 Minutes, President Trump was asked about his pledge to deport illegal immigrants, and he responded: “What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, we have a lot of these people, probably two million, it could be even three million, we are getting them out of our country or we are going to incarcerate. But we’re getting them out of our country, they’re here illegally.”   In a policy that dates back to the Obama Administration, undocumented aliens with criminal records will remain an enforcement priority into the future under this new president. 

 In a policy that dates back to the Obama Administration, criminal aliens will remain an enforcement priority into the future under the new president.  According to DHS, there are 1.9 million noncitizens identified by DHS as removable criminal aliens, in other words noncitizens identified for deportation from the United States based on a criminal conviction.   This includes those with green cards or are otherwise in the US on a legal visa but who have run afoul of our criminal laws and are in removal proceedings.   The immigration enforcement system has already been retooled to focus on this particular group of aliens.  In FY 2008, convicted criminals represented 31 percent of all removals carried out by U.S. Immigration and Customs Enforcement.  The number has steadily risen and accounted for 59 percent of removals in FY 2015, the most recent year for which ICE has released removals data.  

It is not known exactly if and when President Trump will begin to shift his attention from criminal aliens to encompass the removal of all of the undocumented.  However, given the growing inhospitable climate towards immigrants, exacerbated under Trump, anything is possible.  Most vulnerable would be those currently on deferred action such as DACA recipients, those whose authorized stay has expired and students who have fallen out of status or whose I-20 have been terminated in the SEVIS system.
One thing is certain.  When ICE, the US immigration enforcement division, decides to move in on someone, it will move very swiftly placing people in detention or reinstating a prior removal order.  For those with prior removal orders, no trial is necessary for ICE to enforce your removal.  Given the reality, immigrants who have criminal records as well as immigrants who lack legal status, particularly those with prior removal orders show have a back up plan for the care of their families, particularly children, in case of their removal.  

As Trump Takes Office, Immigration Enforcement and Policy Poised to Undergo Major Changes

Article from Migration Policy Insitute by Sarah Pierce and Randy Capps
Often a flashpoint, immigration became a central theme in 2016 as Donald Trump successfully secured the Republican presidential nomination and the White House, sketching a vision of immigrants and refugees as threats requiring heightened scrutiny and the construction of walls to deter entry. The differing visions on immigration presented by Trump and his general election rival, Hillary Clinton, were stark, with the Democrat promising to consolidate and build upon the Obama administration record of relative tolerance toward immigrants and Trump pledging more enforcement against the unauthorized, stricter screening of legal immigrants, and reductions in overall immigration. Before the 2016 campaign, President Obama had used his executive authority to implement significant changes, including providing work authorization for nearly 750,000 young unauthorized immigrants.
While Obama was stymied by Congress in terms of getting broader legislative immigration reform, President-elect Trump may benefit from a different dynamic considering that his fellow Republicans will hold majorities in both the Senate and House. In addition, if he holds to his campaign pledges, Trump is likely to reverse some of Obama’s most significant executive actions on immigration and implement new administrative policies soon after his inauguration on January 20.
The Trump View of Immigration as Security and Economic Threat
During his campaign Trump repeatedly associated immigrants with crime, security threats, and job competition for U.S. workers. His views resonated with many as parts of the country struggle to recover from the Great Recession and with recent terrorist attacks at home and abroad fanning fears over border security, refugee admissions, immigration from Muslim countries, and radicalization of immigrants and their children. Aiming to address these concerns, Trump made it a fixture of his stump speeches to pledge construction of a wall along the U.S.-Mexico border, deportation of millions of unauthorized immigrants, reversing Obama executive orders such as the Deferred Action for Childhood Arrivals (DACA) program, reducing refugee resettlement and ending Syrian refugee admissions, and implementing “extreme vetting,” especially for immigrants and refugees from countries viewed as harboring terrorists.
Trump’s best known campaign promise was his pledge to build a “big, beautiful” wall along the nearly 2,000-mile border with Mexico. While one-third of the border is already fenced, the pledge suggests Trump intends to devote substantially more resources to border security—even as in postelection statements he walked back his earlier promise, suggesting fencing could substitute for the wall in some areas. In a major August 2016 immigration policy speech, Trump proposed increasing the Border Patrol by 5,000 agents—or about 20 percent. This focus on border security would not represent a major policy shift, as border enforcement resources have increased with bipartisan support throughout the Clinton, Bush, and Obama administrations.
Though he initially pledged to create a “deportation force” that would deport all 11 million unauthorized immigrants, Trump later modulated his stance to focus on those with criminal records. This also represents continuity with the Obama administration, which has increasingly prioritized the removal of noncitizens with criminal convictions. (The criminal share of removals rose from 31 percent in fiscal 2008 to 59 percent in fiscal 2015.) A focus on increased deportations, however, (READ MORE HERE)

Monday, November 21, 2016

Tech Worker Visas Face Uncertain Future under Trump, Sessions

Tech Worker Visas Face Uncertain Future under Trump, Sessions

SAN FRANCISCO (Reuters) - The main U.S. visa program for technology workers could face renewed scrutiny under President-elect Donald Trump and his proposed Attorney General, Senator Jeff Sessions, a long-time critic of the skilled-worker program.

H-1B visas admit 65,000 workers and another 20,000 graduate student workers each year. The tech industry, which has lobbied to expand the program, may now have to fight a rear-guard action to protect it, immigration attorneys and lobbyists said. 

Trump sent mixed signals on the campaign trail, sometimes criticizing the visas but other times calling them an important way to retain foreign talent. 

Sessions, however, has long sought to curtail the program and introduced legislation last year aiming to make the visas less available to large outsourcing companies such as Infosys. Such firms, by far the largest users of H-1B visas, provide foreign contractors to U.S. companies looking to slash information technology costs.

“Thousands of U.S. workers are being replaced by foreign labor,” Sessions said at a February hearing.
A spokesperson for Sessions did not immediately respond to a request for comment. A Trump transition team spokesperson declined to comment.  Read the rest of the article HERE.

For years the H1B program has been slowly meeting its death with fewer and fewer skilled workers successfully obtaining an H1B visa.  This is due in large part to the shrinking number of available H1Bs to begin with, and the high, often questionable use of the H1B visa program by companies like InfoSys, Tata Consultancy Services, both based in New Delhi that pay its workers below average wages.  In 2013, the Justice Department settled a visa fraud case with Infosys for $34 million.  Misuse by such firms hurt everyone, most notably small and medium size businesses with a real need for qualified workers.   While reform that increases oversight of such unsavory practices is welcome, it could come at a steep price for legitimate US businesses.  



Immigrants without legal status in the US have reason to be afraid.  President-elect Trump has vowed to make it a top priority to deport millions of undocumented immigrants from the US.  And with his proposed attorney general Alabama Senator Jeff Sessions to enforce our laws, things are about to get uncomfortable.   While admittedly the Obama administration has deported more than its fair share of undocumented immigrants, per his 2014 Executive Order, President Obama re-prioritized targeting immigrants for removal in the following order:  Priority 1 (threats to national security, border security, and public safety including criminal aliens);  Priority 2 (misdemeanants and new immigration violators); and Priority 3 (other immigration violations including those with prior removal orders).   The prioritizing of the removal of the undocumented in this manner largely left families who did not fall into these categories sighing with relief although the administration re-iterated its right to removal all immigrants illegally residing within US borders. But since the election of Donald Trump, things are about to change.  President-electTrump and proposed Attorney General Sessions (Alabama Senator-R) have pledged to remove any and all immigrants in the US without legal status.  The new administration will likely re-allocate resources to increase activity within as well as at the US borders.  

This should be a wake up call to the millions of undocumented who up to now have lived relatively unmolested, particularly those living and working in sanctuary cities like San Francisco to take whatever steps are available to become legal. while the opportunity still exists.   Admittedly, many undocumented have no avenue to legalize their status without a blanket amnesty.  But others who have US citizen spouses and children or, thanks to President Obama's 2016 executive action expanding the Provisional Waiver program, Lawful permanent resident spouses and children should take immediate steps to apply for legal status before the incoming president attacks that avenue too.  While it seems counter-intuitive, even foolish, that anyone who has a way to legalize their status has not yet done so, there unfortunately exists a prevailing view in some immigrant communities they are untouchable, or can't be deported.  Or that ICE only goes after criminal aliens.  But things are about to dramatically shift and not in a good way for them. 

We are already receiving calls from family members whose loved ones are being picked up by ICE in raids, including family without criminal backgrounds.  When ICE comes knocking is definitely NOT the time to decide to try to take steps to legalize your status.  With US immigration law, time is always of the essence.  All the more so if you or your loved one already has an outstanding removal order in play.  Given all that is at risk, impacted immigrant families should take steps now to seek competent immigration counsel to excercise their options, if any.  In the meantime, it is best to prepare for what is sure to be coming down the pipeline.