Newsletter: August 23, 2017

WHAT IS IT?

The Reforming American Immigration for Strong Employment Act (RAISE Act, Cotton-Perdue Act) – S.354 – seeks to greatly reduce legal immigration opportunities in the United States by eliminating family-based categories, redefining other categories and removing the diversity visa. Introduced by Sen. Tom Cotton (R-Ark.) and Sen. David Perdue (R-GA.), the Trump-backed bill seeks to replace the current employment-based system of visas with a strict points-based system which represents a stark departure from the demand—driven model of legal immigration. Under the RAISE Act, a maximum of 140,000 immigrant visas would be issued per fiscal year within the merit-based points system. Spouses and minor children of the main petitioner will also be counted against the cap.

The RAISE Act requires individual petitioners to accrue at least 30 assigned points to receive a visa. Points are given to individual candidates based on a variety of factors including age (with a preference for individuals in their mid-20’s to early 30’s), level of education, English proficiency, extraordinary achievement, type of job offer, and intention to invest in the U.S. economy. With this stringent points system, the RAISE Act seeks to increase the number of foreign high-skilled workers entering the country with the intention of improving the domestic U.S. economy.

WHAT ARE THE POTENTIAL RAMIFICATIONS?

If the RAISE Act were to pass, the replacement system would result in a drastic reduction of legal immigrants but will allow a higher proportion of high-skill immigrants entering the United States. The points system is likely to be a significant disadvantage to marginalized groups such as women, individuals who work in the informal economy (volunteers, charity organizations), individuals with family in the U.S. but lack formal education or work experience, older individuals, and applicants from less-developed countries.

Concerns arise regarding the impact a dramatic shift from an employment-demand driven model would cause to the U.S. economy. The current system allowed employers to select the workers they needed subject to government regulations. As the current system directly responds to the needs of employers, it has proven to be successful in facilitating economic growth and innovation within the United States.

The risk from switching between the existing demand-driven system to a human-capital based model lies in the fact that research has shown that an economy will not benefit from high-skill individuals if these individuals cannot find jobs that will match their skill set. The RAISE Act has the intended objective of increasing domestic economic competitiveness. However, without assessing the labor demand from employers, it is likely the large influx of high-skilled individuals will have little benefit on the U.S. economy.

Another issue that may be presented by the application of the RAISE Act is that it does not contain a dedicated path for less-skilled immigrants. As seen in recent headline news stories, the United States economy requires less-skilled immigrants to function as they play a fundamental role in filling jobs that the average American are unlikely to do. These jobs include food services, hospitality roles, construction, agriculture, elder care, and manufacturing. The Trump Administration’s current tough stance on immigration has already proven to have a negative impact in these industries with the significant reduction in seasonal workers. Crops all over the United States are left unharvested due to a lack of supply of low-skilled immigrant laborers and costs of domestic tourism are increasing for the same reasons. Implementation of the RAISE Act is likely to serve as another significant blow to these industries.

Recently President Trump has endorsed a bill (the RAISE Act) that will cut the amount of legal immigrants coming to the United States by half. The alleged purpose of the bill is to diminish the immigrants who give “little value” to the United States, specifically, those who get into the U.S. on a family-based green card. However, research has shown that many baby boomers are retiring and there are not enough young Americans in the labor market to replace all of the new job openings. Since 2000, the number of Americans who are retired have increased by 36% but the labor market has only increased by 12%.

Research thus far has also concluded that the U.S. needs workers to fulfill the demand for labor intensive jobs such as farming and factory work. A study done by the University of Pennsylvania shows that the immigration bill, if passed, will likely cost the U.S. economy 4.6 million jobs by 2040. With Trump supporting this bill his approval ratings are now at an all time low.

USCIS recently published guidance reaffirming that all nonimmigrants seeking to change their status to F-1, M-1, or J-1 must maintain their nonimmigrant status up to 30 days before their program start date – in other words, prospective F-1 students must extend their nonimmigrant status while their change of status request is pending with USCIS.

USCIS published a notice in late July stating that premium rush processing for certain cap-exempt H-1B petitions will resume “effective immediately.” Premium processing will resume for petitions that may be exempt from the cap if the petitioner is an institution of higher education, or a nonprofit related to or affiliated with an institution of higher education, or a nonprofit research or governmental research organization.

Premium processing will also resume for petitions from certain qualifying cap-exempt institutions, organizations, or entities.

On August 16th, the Trump administration terminated the Central American Minors Parole (CAM) program. Enacted in 2014 as a response to the influx of children seeking asylum in the U.S. from Central America due to rising gang violence, the Obama Administration had given each qualifying child a two-year waiver from deportation to prepare their amnesty petitions. Minors along with certain family members were given the opportunity to apply for refugee status and possible resettlement within the U.S.

With the CAM program’s cancellation, almost 3000 children and their family members are now subject to deportation.

Trump ran his campaign promising to speed up deportation and crack down on immigration. Despite his promises and stricter enforcement policies, Trump is actually deporting an average of 16,900 immigrants a month compared to the average 20,000 immigrants being deported monthly under the Obama administration. Furthermore in 2012 the average number of immigrants being deported monthly was as high as 34,000, double of Trump’s current averages. Although data shows that number of deportation orders have gone up by 31%, there is a significant backlog of cases held in immigration courts as they are having trouble enforcing the orders.

Federal prosecutors are now investigating the real estate firm owned by the family of senior adviser Jared Kushner over the firm’s use of the EB-5 program which offers visas to qualified foreigners who invest at least $500,000 into the U.S economy. Legal representatives of the Kushner Companies deny any wrongdoing for their use of the program and argue that they have complied with all rules and regulations related to the program.

Currently the Kushners are seeking $150 million in investment funding through the EB-5 program for developing high-rise apartment building in Jersey City. At a recent Beijing event, Kushner Companies promised a high return of investment and allegedly promised green cards to investors in the project.

In a Supreme Court brief, the Trump Administration recapped their arguments defending the stalled travel ban citing the broad powers bestowed upon the executive by the Constitution. The brief stated that it is a mistake to investigate the President’s motive in decisions regarding national security citing its inappropriateness and necessity for the security of the United States from terrorist attacks. The Department of Justice argued that a lack of dismissal of the case would “invite impermissible intrusion on privileged internal Executive Branch deliberations” and that opponents of the administration are seeking “up to 30 depositions of White House staff and Cabinet-level officials.”

The travel ban barred people from six Muslim-majority nations from entering the United States. In June, the U.S. Supreme Court ruled that the ban can continue on a limited basis but could not bar individuals with a “bona fide relationship” to the United States. The Supreme Court is expected to hear oral arguments for the case in October.

A recent joint-study by Cornell University and the University of California at Berkeley has found that immigrants significantly contribute to paying for public expenditures and share the same burden as the average taxpayer of paying back public debt. The report also states that current evidence does not support the notion that an influx of immigrants cost native-born taxpayers money in the long run. Furthermore there is no evidence that stricter immigration enforcement would generate any savings for existing taxpayers. The report contends that, under the most likely future situations, immigrants are not a significant fiscal drain to current taxpayers.

This report is considered a far departure from the current rhetoric of the Trump administration and refutes many claims in support of the new immigration bill made by the President in recent months.

Mynor Espinoza, an undocumented immigrant from Guatemala who was living in Hartford Connecticut, was summoned to fill out routine paperwork on behalf of his undocumented son. Instead of a routine procedure Espinoza was immediately arrested by ICE. And Espinoza is not the only one, so far there have been four reported “child baiting” cases in Connecticut alone where ICE requests known undocumented residents to come to ICE offices under the guise of filling paperwork to protect their children.

Many immigrants believe that the ICE can only deport an individual when they commit a serious crime however, this is no longer the case. The law technically says that ICE can deport any person living in the country illegally without need of a significant cause. Recent deportation cases have arisen from simple traffic violations and routine checks, a departure from Obama-era deportations.

From July 23rd-26th ICE arrested 650 illegal immigrants, however 457 of these immigrants were not originally targets in the raid. This is due to a change of policies by the Trump administration. Under the Obama administration, ICE officials would not always arrest non-targets during a raid, especially if there were children present. On the other hand, under the Trump administration’s new enforcement policies, previously untargeted immigrants are now amenable to deportation by ICE officers.

Trump’s country club, Mar-a-Lago in Palm Beach, Florida are moving forward with plans to hire new cooks, waiters, and housekeepers and are looking to immigrants to fill these positions. These plans come as a surprise due to the President’s strong support for a proposed bill that would cut legal immigration in half.

The Trump Administration’s stance against legal immigration has caused significant issues to the hotel and tourism industry in the United States. With jobs typically fulfilled by seasonal immigrant workers, the hotel and tourism sector has suffered a lack of supply for necessary staff. Encountering similar issues, once the Mar-a-Lago country club proves they have attempted to hire American employees they will start a broader search and hiring process and will begin issuing work visas to immigrants.

On August 3rd, the Justice Department sent letters to four sanctuary cities, one of them Chicago, with high statistics of gun violence and told them that they would withhold public safety grants unless they cooperated with ICE’s new strict immigration enforcement rules. In the past Chicago has used their $33 million dollars in grant money to buy almost 1,000 new police cars since 2005 as well as new radios and SWAT equipment. The Mayor of Chicago recently stated Chicago is done being “blackmailed by President Trump’s Justice Department” and is now pursuing legal action against the federal government.

An undocumented immigrant residing in Ohio was deported as a consequence of a traffic violation. Morelos was then slated to be deported across the border into the Mexican state of Tamaulipas, an area so violent that the U.S. State Department issued a travel advisory against the area.

Despite the issued government warnings, Morelos was still deported to the violent state and was subsequently kidnapped and held for ransom by the Zetas cartel upon arrival in Tamaulipas. The Zetas view deportees as prime targets for kidnapping as they know they have someone in the U.S. who can pay a hefty ransom in exchange for the lives of the kidnapped. With the recent uptick in deportations, there are growing concerns as to the safety of deportees as similar kidnapping incidents are on the rise. In the past month, 10 other deportees in similar circumstances as Morelos have died after being deported to Tamaulipas. Morelos was fortunate that her husband was able to afford the ransom payments, other similar incidents have resulted in captives being harvested for organs or being sold as slaves in the illegal human trafficking market.

An undocumented mother and her newborn son were arrested at the U.S.-Mexico border and held in detention for 21 months before being released. This case has sparked controversy because the boy has learned how to walk and talk while locked up. They were detained in the Berks Family Residential Center in Pennsylvania where there are at least three other cases of detained minors who have been detained for more than 600 days. By policy, all children are supposed to be released after three weeks. Advocates say that they will continue to work on freeing mothers and children who have been detained for beyond the allowed three weeks but ultimately want to end the detention of young minors and their mothers altogether.

In a recent interview with an Arizona newspaper, McCain expressed his concern with the Trump administration’s support of the Cotton-Perdue bill which seeks to reform immigration. McCain noted that a border wall will not be enough to stop in the inflow of undocumented workers into the United States and that investment into technology and efficiency would be more effective.

McCain also further mentioned that he supports a merit-based system for immigrants but warns that the United States also needs low-skilled workers to do “work that Americans won’t do.”

After President Trump’s election, California state lawmakers began drafting regulations to counter the President’s stricter immigration policies. California’s lawmakers began releasing plans to blacklist companies involved with Trump’s border wall project, plans to increase protection for undocumented children in public schools, and prevent the use of local and state enforcement resources by the ICE.

However, despite these preemptive actions, the Legislature has encountered surprising opposition to their plans. The California State Sheriffs’ Association is seeking to pressure lawmakers to defeat the bill and is asking Governor Jerry Brown not to sign the bills into law. The association believes that undocumented immigrants pose a significant problem to the state and that a balanced and more careful approach to dealing with undocumented individuals is needed rather than widespread leniency.

As the Trump Administration continues to enforce stricter immigration policies, the Department of Homeland Security is now seeking to procure a software tool to support their new “Extreme Vetting Initiative.” According to public documents, ICE is in the market for tools that can be used to predict the criminality of people who are attempting to enter the country. As quoted from the documents, ICE wants software that “automates, centralizes and streamlines the manual vetting process… [and] make determinations via automation if the data retrieved is actionable.”

Nawlaw and lawyers throughout the United States are now seeing a surge in USCIS Requests for Further Evidence regarding H-1B (specialty occupations) involving “Wage Level 1” positions. USCIS is now arguing that a Level 1 wage evidenced that the position is not complex or specialized than similar positions within the occupation. According to USCIS, “Level 1 (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited if any, exercise of judgment.”

Nawlaw, together with immigration legal practitioners throughout the U.S, wholeheartedly disagrees with this notion.

Pakistani national currently working on a TN visa as a management consultant for a large computer consulting company asks:
All my projects thus far have been in the US. I really haven’t left the US except for a couple of personal trips to Canada. Now, my company wants to staff me on a project in Canada starting Aug 21st. This entails me traveling to Canada on Monday and returning to NYC on Thursday. My wife works for the City of NYC on her Cap Gap, F1 awaiting H1B (picked in lottery), so I need to be able to come home every weekend. Does this violate my TN visa since I won’t be servicing a US client while I’m in the US Thu-Mon? Might it result in my TN getting canceled at the border? I will still be paid by the US entity while on this project. Is this ok? Will I have to enter the US as visitor? Do you think I will have trouble entering the US every weekend? Might I be eligible for another visa instead of a TN? What do you recommend I do?

Answer: Although federal regulations governing TN visas do permit this since it is not specifically addressed, it may raise questions with the CBP officer conducting yours inspection(s) so be prepared to explain this unusual mechanism. Hence, you will not be required to re-enter the U.S. as a visitor. The TN is still the best visa given these unusual circumstances.

Architectural firm recently interviewed a foreign national currently on an H-1B visa and asks:
Is there is any way to hire an H-1B on a provisional/trial basis without actually seeking an H-1B transfer?

Answer: Unfortunately, federal regulations do not permit any sort of interim unauthorized employment in this manner. And, there is no grace period with respect to a change of employers and employment is not permitted even during authorized grace periods.

A one person tech company now seeks to hire a foreign national currently on optional practical training (OPT) and asks:
Is this feasible?

Answer: Yes, federal regulations do not limit the size of a company for OPT purposes. In fact, even self-employment is now permitted with respect to OPT.

B-2 visitor from Ukraine asks:
I am planning to seek a change of status to student. At what point can I apply for on-campus work permission?

Answer: Almost immediately after you receive approval of your change of status application. According to federal regulations, an F-1 student may begin working as much as 30 days before the start of a program of study. They should inform the DSO before they begin work.

Recently approved condition resident from India who has been given a temporary green card stamp but has not received the actual card asks:
Can I safely travel on vacation to Aruba?

Answer: Yes, the temporary green card stamp does authorize travel abroad while waiting for the physical card.

Green card applicant from Italy who has been given work authorization and advance parole asks:
Can I travel on holiday to Cuba?

Answer: Yes, but you should check to insure that there is no change in State Department policy insofar as Pres. Trump has indicated that he may reverse the recent policy adopted by former Pres. Obama.

An O-1B visa holder from Canada asks:
My son is now 16 years of age and would like to seek summer employment in the U.S. next year when he is 17. What type of visa would he be eligible for? And, can he participate in community and/or volunteer programs?

Answer: The J-1 visa is the best option since USCIS does not generally permit volunteering in the U.S. except for medical students studying abroad. As for secondary school students, they are permitted to travel to the United States to study at an accredited public or private high school and live with an American host family or at an accredited boarding school. College and university students enrolled full time and pursuing studies at post-secondary accredited academic institutions located outside the United States can come to the United States to share their culture and ideas with people of the United States through temporary work and travel opportunities. Secondary school students, on the other hand, may travel to the United States to study at an accredited public or private high school and live with an American host family or at an accredited boarding school. And, must be at least 15 years of age, but not more than 18 years and six months of age as of the program start date, or not have finished more than 11 years of primary and secondary school, not including kindergarten; and not have previously participated in a secondary school student academic year or semester exchange program or attended school in the United States in either F-1 or J-1.

H-1B for Indian National working as a Financial Analyst for a Renowned Fine Jewelry Company
EB-1 Green Card for an Italian National working as a Robotics Engineer/CEO for a Technology Start Up
EB-2 for a Canadian National working as a Financial Analyst for an International Investment Banking Firm
B-2 Extension (6 Months) for an Irish National visiting the United States
H1-B for a Russian National working as a Financial Analyst for an International Investment Banking Firm
H1-B for a Singaporean National working as a Business Associate for an International Investment Banking Firm
H1-B for an Israeli National working as a Financial Analyst for an International Investment Banking Firm
H1-B for a French National working as an Educator for an International School

Newsletter: August 23, 2017

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Neil A. Weinrib & Associates