OPINION: How the Immigration Landscape Changed in 2017

When Donald Trump won the election, many immigrants and their advocates feared the worst. Now that President Trump has been in office for over a year, I wish I could write that everyone’s fears were overblown, but that simply isn’t true. The administration’s actions have met and in some cases exceeded the worst fears of many immigrants and immigration practitioners.

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OPINION: Trump and Immigration: What to Expect

It is no exaggeration to say that President-Elect Trump made immigration a centerpiece of his campaign, ever since the summer of 2015 when he launched it with his famous speech labeling Mexican immigrants drug dealers and rapists although some might be “good people.” He called for a total ban on Muslim immigration to the US, and applauded the Supreme Court’s ruling upholding the injunction on President Obama’s expanded DACA/DAPA program. But now that he’s been elected, what can we expect from President Trump on immigration beginning next week on January 20?

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OPINION: Obama’s Mixed Legacy on Immigration

Obama’s election signaled a turning point in American politics and was welcomed by progressives everywhere as the culmination of generations of civil rights activism. Immigrant communities, particularly Latin American communities, were a major part of the Obama coalition, and looked forward to significant and long overdue reform of immigration laws that would provide a path to citizenship for the more than 12 million estimated undocumented immigrants in the United States.

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CNN: "Why we should expand the H-1B visa program"

Rosario Marin, the 41st US treasurer under President George W. Bush and current chair of the American Competitiveness Alliance, a coalition of organizations advocating for immigration reform, is calling for an expansion to the H-1B program. With an H-1B cap that is currently set at 65,000 per fiscal year with an additional 20,000 available to applicants who possess an advanced degree from a US educational institution, this year the government received over 236,000 H-1B petitions (about 3,000 more than last year), which means many presumably qualified applicants are forced to return to their home country or find other ways to remain in the US.

Describing herself as a proud and lifelong Republican, Marin says she is going against her party’s platform and calling for a “strong, sensible immigration reform” that includes expanding the number of H-1Bs issued per year. She says:

There is overwhelming demand from American companies—both large and small—for educated, skilled foreign workers to fill jobs in computer programming, coding, medicine and information technology. These are jobs that would be left largely unfilled if not for international workers, as our domestic workforce doesn't consist of graduates with these skills in the enormous numbers we require. This is why it will be critical for Congress and the next president to push for immigration reform that expands the H-1B program.

A naturalized US citizen herself, she argues that H-1Bs and immigrants are essential to the American economic system. “Without them, companies struggle to locate the specific people with the specific computer and science skills they need to grow, translating into an inability to expand, to create jobs, to scale up,” she writes. “The United States must work to address our shortage of students graduating with advanced science, math and technology skills, but until it does, American companies need high-skilled international workers, not only to compete, but to survive.”

Opponents of the H-1B claim American companies often use the H-1B program to replace higher paid American workers and “lease” out lower-paid foreign national H-1B workers through third-party companies. Another study reveals that the truth about STEM fields is more complicated. The Monthly Labor Review of the Bureau of Labor Statistics states there are both shortages and surpluses of STEM workers, depending on the particular job market segments and geographic location. The study shows that while there is no shortage in the academic job market, in the private sector, positions such as software developers, petroleum engineers, data scientists, and those in skilled trades are in high demand.  

In her opinion piece, Marin concludes: “Our power and influence is owed largely to having been the country that gave the world automobiles, personal computers, countless other inventions. And people—well-educated, highly skilled people, many of them immigrants—were behind each and every one.”

OPINION: United States v. Texas: Where Do We Go from Here?

By now, most people have heard about the decision last month by the US Supreme Court that effectively halted the Obama administration’s plans to defer deportations of and grant work cards to millions of undocumented immigrants present in the US. These programs, known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and expanded DACA (Deferred Action for Childhood Arrivals), would have effectively temporarily blocked the deportations of the millions of people whose children are US citizens or lawful permanent residents (Green Card holders), or who were brought to the US as children and were either in school or the military or had been. (A prior DACA program remains in effect.) These programs were announced by the president in November 2014 after years of Congressional inaction on comprehensive immigration reform, along with a number of other initiatives, most of which have proceeded.

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Behind the News Story: Business Insider: "Instagram Almost Lost One of its Cofounders Because He Couldn't Get a Work Visa"

Instagram is one of the world’s most popular social media networks, known for its easy-to-use interface for sharing photographs. Indeed, in December 2014, the company was valued at $35 billion, according to Citigroup analysts. Back in April 2015, Business Insider published an article claiming that the company “almost lost one of its cofounders because he couldn’t get a work visa.” A native of Brazil, Mike Krieger is a co-founder and the chief technology officer at Instagram. According to the article, Mr. Krieger had difficulty transferring his H-1B visa from his previous employer, Meebo, to Instagram in 2010. The process is said to have taken Mr. Krieger over three months—longer than it took to develop the first version of Instagram! Mr. Krieger said he almost was not able to work at Instagram because of the delay, and the article goes onto conflate Mr. Krieger’s visa delay with the annual H-1B cap and lottery.  

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OPINION: Visa Bulletin Debacle

Those of us practicing immigration law in the summer of 2007 experienced something that we thought would never happen again. The US State Department (DOS) released a Visa Bulletin that reported every employment-based preference category as “current.” This meant that everyone with an approved labor certification, no matter the prior backlog of priority dates, could file their adjustment of status (i.e. “Green Card”) applications with US Citizenship & Immigration Services (USCIS). Clients and attorneys cheered for joy and started preparing the paperwork. Clients who were abroad when the announcement was made flew back to the US (since an applicant has to be physically present in the US when applying for the adjustment). Clients got medical exams, paid for translations, paid attorneys, and everyone worked overtime to put together these numerous and extensive applications. And then…the State Department took the Visa Bulletin back! 

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Top 4 Myths about Immigration

Although Paul Ryan, the newly-elected House of Representatives Speaker, ruled out working with President Obama on comprehensive immigration reform, the call for reform continues, this time from Robert Reich, political economist and former labor secretary. Reich along with MoveOn.org released a short video addressing four common myths about immigration.

Myth: Immigrants Take Away American Jobs

Not true, Reich says. “Immigrants add to economic demand, and thereby push firms to create more jobs,” he says. Although Reich doesn’t cite it in the video, a study using US census data backs this claim. The report, by the National Bureau of Economic Research, shows that each immigrant creates 1.2 local jobs for local workers, with most of these created jobs going to native workers. In addition, immigrants appear to raise “local non-tradeables sector wages” as well as attract native-born workers from elsewhere in the country.

Myth: We Don’t Need Any More Immigrants

To counter this claim, Reich ties the importance of immigration to funding for American retirees. Twenty-five years ago each retiree in America was matched by five workers. Now it’s three workers for each retiree. “Without more immigration,” Reich says, “in fifteen years the ratio will fall to two workers for every retiree, which is not nearly enough to sustain our retiring population.” More specifically, it’s estimated that undocumented immigrant workers in particular are paying an estimated $13 billion a year in social security taxes for a total of over $100 billion in the last decade.

Myth: Immigrants Are a Drain on Public Budgets

Not so, Reich says. Immigrants pay taxes. The Institute on Taxation and Economic Policy shows that undocumented immigrants paid over eleven billion in state and local taxes in 2012. If comprehensive immigration reform were passed, their combined nationwide state and local tax contributions would increase by another 2.2 billion. Although a study by anti-immigration group, Center for Immigration Studies, concluded that fifty-one percent of households headed by immigrants—legal or undocumented—receive some kind of welfare, this report was criticized for its research methods, and other reports show that immigrants pay more into public benefits than they receive back.

Myth: Legal and Illegal Immigration Is Increasing

The number of undocumented immigrants living in the US has declined from 12.2 million in 2007 to 11.3 million now, according to the Pew Research Center. Other reports confirm this decrease in immigration as well.

Reich concludes: “Don’t listen to the demagogues who want to blame the economic problems of middle class and poor on new immigrants, whether here legally or illegally.” He concludes: “We need to pass comprehensive immigration reform giving those who are undocumented a path to citizenship. Scapegoating them and other immigrants is shameful. And it’s just plain wrong.”

OPINION: Nothing to Fear But Fear of Immigrants: America’s Worst Immigration Laws and What Current Politicians Can Learn from Them

Some of the unpleasant rhetoric surrounding the presidential campaign involves suggestions that the immigration laws should be changed seemingly based on fears and prejudices. While these debates bring me uneasiness, it certainly isn’t a unique occurrence in our country’s history that fear-based immigration laws are passed reflecting our country’s mores at the time. 

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OPINION: L-1B Careful: the Difficulties of the Specialized Knowledge Visa

If there is anything a seasoned immigration lawyer is sure of, it is to tread carefully with the L-1B visa petition. The L-1B visa is for intra-company transfers of employees who have been working for the foreign parent, subsidiary, or affiliate branch for at least one year. The transferee must be coming to the US branch office of the company to work in a position that requires “specialized knowledge” (whereas an L-1A is for an executive or manager). What exactly “specialized knowledge” means has been a subject so frequently discussed in immigration case law, US Citizenship & Immigration Services (USCIS) memoranda, lawyer forums, conferences, and office water cooler chats, that a person could read for days straight and end up just as confused as they were when they started. After all that, the reader may see no correlation between what they just read and how USCIS currently adjudicates L-1Bs.

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