Everybody’s Got That Somethin’…

I’ve been giving the Charlottesville protest/counter-protest a fair bit of thought lately, probably in part because the coverage of the events (and a certain President’s response) has dominated the mainstream news, Twitter, and Facebook, and in part because I live in South Alabama, where reminders of the Civil War abound.  In fact, my office sits less than a block from where a slave market used to sit.

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This just seems wrong.

I’m going to unequivocally state that white nationalism, Nazis, the alt-right, etc., are all categorically terrible things, and those who ascribe to such beliefs are worthy of scorn — and honestly, disbelief. It’s 2017, for heavens’ sake.  How is this still a thing?

But it got me thinking about outrage, in a general sense, and what really gets me truly angry, particularly in the world of immigration.  I could think of one right off the top of my head — when the U.S. government deports people that were adopted as infants or toddlers and brought to the United States, but the parents never completed the necessary paperwork for the child to become a citizen (or even a lawful permanent resident).  In many cases, and I can speak from personal experience with some of my own clients, the parents avoided the subject when the kids eventually grew old enough to inquire about their status.  At the end of the day, though, who suffers?  The “immigrant.”  And it’s not even fair to call them that.  If there was ever a population that truly had nothing to do with their lack of status, it’s this one.  It just breaks my heart that people could be so callous as to think it’s the right thing to do to send these people, even as adults, back to a country that they’ve never known.  It’s inhumane.  And then, try and act surprised when this happens.  That’s on you, America.

[Full disclosure: I just took a 5 minute break to calm down.]

DACA recipients often are not in a much better position, and my heart goes out to them too.  In both cases, the parents act (arguably) irresponsibly, and the children pay for it.  That’s just not right.  And yet, these aren’t the issues that find themselves in the national spotlight, at least not for long – and that is the bigger problem.  Where’s the collective outrage? What has to happen before meaningful change will come to an immigration system that severely punishes those most in need of assistance?  I can only hope that one day the climate in America will change so that the perversities of the U.S. immigration system will trigger outrage on the same scale as Charlottesville – where people are willing to risk their own lives and livelihoods to stop the injustice.

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You’ve Been Selected Out of 16 Million Applicants….Psych!

While there were many, many things that the Trump Administration did not consider when it rolled out the first version of the Muslim Travel Ban (like its constitutionality or general wisdom), I’m willing to bet that its impact on the Diversity Visa Program was among them.  The Diversity Visa Program is, literally, a lottery for immigrant visas that can only be entered into by individuals from underrepresented countries.  It is, as best, a long shot — 50,000 visas annually for about 16 million applicants.  That’s about 0.3125% of applicants.  There are better odds of Mississippi State winning a college football national championship in 2018.

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Yeah.  This guy.  Let that sink in.

As was to be expected, some winners of the 2018 Diversity Visa Lottery were from countries impacted by Travel Ban 2.0: The Trumpening. The program requires that winners receive their visas by September 30 or they lose their chance to immigrate. Travel Ban 2.0 is set to expire just days before the September 30 deadline, making it all but impossible for consulates the process the visas in time. Recognizing this inherent injustice, several winners have filed suit to force the consulates to process the visas as promised.

I certainly hope that the plaintiffs prevail in this one, as this seems like an unintended consequence of Travel Ban 2.0. But, when you govern by poorly thought out executive order, these things happen. Let’s hope that the U.S. District Court in D.C. can rectify the error.

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Decision Time on DACA

On June 29, 2017, the Attorney Generals of ten states, and perhaps in an effort to out-do the other states, the Governor of Idaho (Motto: Go big or go home!), sent a letter to President Trump demanding that he end DACA for “reasons.” In the event Trump refuses to do so by September 5, 2017, these states would challenge DACA’s legality in an unfavorable legal jurisdiction.  At the time, it seemed cute, but now that deadline is looming on the horizon.

Map of DACA States

Pictured: One state with legitimate concerns about immigration; nine attorney generals with political ambitions.

Trump has acknowledged that a decision on DACA will be made by him alone and that he remains unsure where he will come down. While no one except Trump (and maybe Twitter, since I haven’t checked in a few minutes), know what the President will do, ending DACA immediately seems to be off the table.  Even the AGs’ letter doesn’t demand an immediate end to the program. What’s most likely to happen is a sunset of the DACA program, with USCIS announcing that it will stop taking affirmative applications for the program at some future date certain.

I agree that this is the most likely outcome, particularly since (1) the Trump Administration will not want to defend an Obama-era program in court; and (2) Trump has been stepping up his anti-immigration game lately, having openly supported the RAISE Act, which would cut legal immigration to the United States by fifty percent (50%) and favor highly educated, English-speaking immigrants.

I’ve previously posted that Trump’s support for the RAISE Act seemed odd, since the measure did not seem to have the legs necessary to make it to law.  But, in the context of the upcoming DACA decision, it’s not hard to imagine that Trump is trying to walk a line.  He spends the next month talking about cracking down on immigration abuses and generally parroting campaign promises knowing that they will go nowhere but they resonate with the populace.  Then when he shows some mercy on DACA (by sunsetting the program and not calling for immediate deportation of everyone in it), his supporters won’t think he’s a turn-coat.

Of course, this is all just speculation on my part. Maybe Trump actually thinks the RAISE Act will fly.  Maybe he will call for an immediate end to DACA and for the deportation of over a million people to countries that they haven’t seen since infancy.  At this point, I’ll be surprised by nothing.  But, realistically, the most likely outcome is what was anticipated by many immediately following Trump’s election in October – don’t count on DACA’s survival or on the passage of comprehensive immigration reform.  Time will tell if we’re right.

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Trump Throws Support Behind Bill Seemingly Doomed to Fail

In a speech on Wednesday, August 2, 2017, President Trump vocalized strong support for the Reforming American Immigration for a Strong Economy (RAISE) Act, previously proposed by Senators Tom Cotton and David Perdue.  The RAISE Act would fundamentally alter immigration priorities in the United States, limiting access to family based immigrant visas, such as for brothers and sisters of U.S. citizens, in favor of employment-based visas.  The Act would also end the diversity visa lottery and place a limit on the number of annual refugee admissions.

President Trump stated that he believes the United States should implement a merit-based system that favors highly educated or skilled English-speakers.  In all, it is estimated that the RAISE Act would cut annual U.S. immigration by fifty percent (50%).

Politically, the Act likely has little chance of passing in the Senate and will face fierce opposition from immigrant rights groups, Democrats, and even some Republicans. However, President Trump’s willingness to support such legislation indicates that immigration remains a priority for the Administration.

From my perspective, I think the RAISE Act is incredibly short-sighted and amounts to simple social engineering.  Stuart Anderson, Executive Director of the National Foundation for American Policy, said it very well: “Just because you have a PhD doesn’t mean you’re necessarily more valuable to the U.S. economy. The best indication of whether a person is employable is if someone wants to hire them.”  Amen, Stuart.

I don’t entirely understand why Trump would come right out and support this bill, which is seemingly destined to go nowhere.  Assuming he had any political capital left to spend, why would he use it on this?  I would take solace in the fact that the bill will likely die, except I thought the same thing of Trump’s candidacy not too long ago….

The RAISE Act bears watching, but at this point, I don’t believe it’s anything to worry about.

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H&R Block Quits Immigration, Begrudgingly Shuffles Off To Do Taxes

A few months ago, I posted on how H&R Block was starting a new program to help immigrants fill out immigration forms.  Well,H&R Block decided that they didn’t want a piece of the immigration pie after all. Long story short, AILA threatened legal action for unauthorized practice of law and H&R Block decided it wasn’t worth the fight.

This really isn’t too terribly surprising. On the one hand, I’m happy that I no longer have to compete with H&R Block. On the other hand, there are almost certainly folks that H&R Block would have helped that may instead end up with a notario.  And I’m really not sure, but H&R Block is probably better than a notario….probably.  At least if something goes wrong, H&R Block has deep pockets!

 

 

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Oh Where, Oh Where, Has My G-28 Gone?

How is this still an issue?  When I re-started into immigration about four (4) years ago, I picked up an apparently straightforward I-751 case.  We completed the paperwork, filed it with a G-28 (on blue paper), and waited to get our receipt notice . . . and waited . . . and waited.  I’m still waiting. Four years later (after a divorce, an RFE, an amended petition, AILA liaison assistance, and two InfoPass appointments), and after having resent the G-28 to every employee of USCIS, my client had to tell me she was approved.

Here's a G-28 for you, and one for me . . . just kidding, here's another one for you!

Here’s a G-28 for you, and one for me . . . just kidding, here’s another one for you!

My favorite story, though, occurred more recently. I filed an asylum petition (with a G-28) and only got a biometrics notice, but it was clearly sent to me as “Representative’s Copy.” After 150 days, I filed the I-765 with a G-28 and got an email notification and receipt number. It ran outside of processing times, so I called USCIS Customer Service, was elevated to an officer, and was told that I had no G-28 on file — even though I was holding a “Representative’s Copy” notice and had received an email receipt to my work email address.  Either I’m the attorney or there’s a serious data breach at USCIS. The best part, though, is that now I have no idea if I’m actually attached to the asylum petition, and as practitioners know, they only correspond by mail. HA! Life is fun.

Still, though, how does this remain a problem at USCIS? The left hand continually has no clue that it even has a right hand, let alone what it’s up to. For something as critically important as client representation, this is a huge deal. But USCIS has yet to dedicate any resources (so far as I know) to actually remedy the problem. In fact, they went the other way, bumping the G-28 from 2 pages to 4, because more paper will certainly fix the problem.

Something needs to change, as I know I’m one of thousands of attorneys who’ve experienced this precise problem.  And who knows how many clients have suffered because of it? That’s just unacceptable.

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A Little Extra Marriage Never Hurt Anybody, Right?

On February 16, 2015, DHS announced that it would soon be permitting the H-4 spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status to apply and receive work authorization.  So far, at least, it appears that this program, which will become effective May 26, 2015, has not been impacted by the preliminary injunction issued in the U.S. District Court for the Southern District of Texas in Brownsville.

You mean I missed one?

On the whole, I believe this is a good thing.  It seems wrong to tell H-1B nonimmigrants that they can come work in this country, that their spouses can come with them, but that their spouses cannot work.  What does the U.S. Government expect their spouses to do?

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Parkour, anyone?

That being said, the decision to extend work authorization does raise an interesting point.  First, could this potentially lead to an increase in marriage fraud?  Before, there was no real incentive to marry an H-1B nonimmigrant, aside from your traditional notions of love, etc.  Immigration benefits for the spouse were years away. Now, however, marriage to an H-1B nonimmigrant can lead directly to work authorization.  It is not exactly like a new spouse has hit the jackpot, as there is still no path towards a green card themselves, except potentially through the H-1B spouse if he or she seeks an employment-based immigrant visa.  But, it is, nonetheless, an incentive to marry.

This may prove particularly problematic in certain countries where arranged marriages are the norm. How can one distinguish that from a sham marriage? It’s quite possible that an individual can be approved for an H-1B (to start October 1), and then have several months to “shop” for a spouse, armed with the promise of status in the U.S. and an ability to work.

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Hey, baby. I got an EAD with your name on it.

I’m sure I’m just being cynical, but the H-4 can then divorce the H-1B, marry a U.S. citizen, and adjust status. Obviously, fraud could be alleged upon diligent review of the case, but is USCIS really going to catch someone who is not obvious about it? I guess we shall see.

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Everybody’s An Attorney!

With expanded DACA set to kick off in a couple of days, and DAPA on the horizon, it’s really no surprise that non-attorneys (and even non-immigration attorneys) are trying to get a bite of the apple. They figure that there are millions of potentially eligible individuals that will need help and gladly pay for it. And so, we get folks like H&R Block trying to do immigration work.

On the one hand, I really have no problem with this. Free market, baby. If H&R Block and others can actually do this work and provide value to immigrants, then everybody wins. Now if they can’t, that’s a horse of a different color, but bad legal advice can just as easily come from an attorney. I don’t think I’d want any heavy-handed bans in place, for instance.

My guess is it would be this color.

My guess is it would be this color.

On the other hand, as a practicing immigration attorney, who makes a living actually doing immigration, learning immigration law, and keeping up with the changes in the same, it grinds my gears a bit to have potential clients get swooped up by Johnny-come-latelys looking to make a quick buck. It’s particularly hard to put up a wall around your practice, though, when you’ve got a machine like H&R Block, with all of its advertising budget and none of a lawyer’s advertising restrictions, making headlines for venturing outside of its customary tax zone. Small practitioners and small firms don’t stand a chance unless they already have a built in pipeline of clients. It’s frustrating to say the least.

Since law school, I’ve had a real beef with the lawyer ethics rules regarding advertising, and this situation presents a perfect example of why.  H&R Block can say pretty much whatever they want, with no oversight, in their ads.  They can target whomever they want. There are literally no limits on their campaign. Meanwhile, lawyers have to get advertising approved in advance by the state bar and have a billion disclaimers plastered all over everything. To top it all off, we can’t just come out and say: “H&R Block may get it right. But we’re better than H&R Block. We will get it right.”

Does this rule really help the consumer? Absolutely not. It helps established firms and practitioners beat off new competition by restricting the public’s ability to meaningfully compare firms and attorneys. I don’t see that as a positive. The rules, particularly in regard to advertising, reek of paternalism and the belief that the public just isn’t smart enough to make an informed decision in regard to legal services if — heaven forbid — two attorneys said that they were the best lawyers in town!

No representation is made that either shark is a better dancer.

No representation is made that either shark is a better dancer.

I do believe that good lawyers do more than simply sell a defined service, but too many lawyers fail to realize that this actually is a business. By putting handcuffs on attorneys in the name of creating a level playing field, the state bar actually tips the scales heavily in favor of non-attorneys, like H&R Block, when they can step in and technically not be practicing law. The advertising rules are terrible in my mind regardless, but the fact that it puts all attorneys at a competitive disadvantage damages consumers because it makes it more likely that they will seek non-attorneys for their legal needs. And honestly, that’s just a roll of the dice.

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Is the GOP a Lost Cause?

I’ve been meaning to write this post for a few days now (or maybe a week even). I saw a tweet from Matthew Kolken, an immigration attorney with his own blog, that got me thinking.  He said:

To which I responded:

For starters, I’m not a Republican.  I’m not a Democrat. I’m a libertarian, but I’m not a Libertarian. So if you bash a political party — any political party — I’ll probably agree with you to some extent. I state this so you know that my criticism is relatively objective and not driven by my political affiliation. All of that being said: The GOP is insane.

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Insane in the semipermeable membrane.

Republicans know — 100% know — that they need the Latino vote. Even if it is not critical now, it will be absolutely necessary over the long-run. They don’t have to get them all, but if 95-plus percent of Latinos vote for Democrats based on immigration issues, then it doesn’t matter how good you think your fiscal policy is.  You’re probably going to lose.

And yet, some Republicans, such as Alabama’s Senator Sessions, insist on impeding immigration reform at every opportunity. I understand if you want sensible reforms — secure the border first and all that jazz — but to not think that any immigration reform is needed is simply burying your head in the sand. Immigration is a HUGE problem that is not going away. The system is terrible in so many ways. Immigration attorneys could probably come up with 100+ reforms before they even reached the issue of “illegal” aliens. At least give reform the ol’ college try.

Belushi

Try harder.

Nope. As Bush the Elder stated (or maybe it was just Dana Carvey): “Not gonna do it.” The GOP simply isn’t interested.

As we head toward the 2016 election, the problem is only going to get worse. The GOP primaries are going to push everyone to the right, and the eventual candidate likely won’t stand a chance with Latinos in the general election. The sole chance that the GOP has of bringing Latinos into the fold is if it embraces its libertarian wing. As it stands now, the GOP has done everything it can to silence the libertarians, making many of them enemies. Look what they did to poor Ron Paul and his many followers, most of whom represent a young demographic that was previously the exclusive domain of the Democratic Party (or maybe the Green Party). Part of me feels the GOP has already missed its chance here.

Rand Paul is the only potential presidential candidate that has libertarian leanings, but he fell a bit further from the tree than most libertarians would like. His stance on immigration is moderate only by GOP standards, which is disappointing. But the overall point is more to the party than the presidential candidate. A true libertarian-leaning GOP party would be in favor of opening the borders, not closing them – of getting government out of the way. If businesses need international employees, hire them without all the red tape. If someone from Peru wants to work in the U.S. as a plumber, architect, or lawyer, I say welcome. I would be floored if the GOP ever went that far, but by closing the party to new ideas on immigration, it almost guarantees that most Latinos will vote for Democrats.

No immigration solution is going to be perfect (or even close), but the GOP has to at least try to find common ground unless it plans on simply writing off the Latino vote going forward. I don’t hold out much hope that it will happen, though. Only time will tell.

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Is a Law Blog Beneficial?

Yesterday, Above The Law ran a story on whether or not it was necessary to actually attract people to your law blog.  Ironically, the original link was to a blank story.  Maybe they were trying to make a point. But, eventually, the story showed up in full.

The article raises a good question for legal bloggers: What’s the point of all of this?  Is it to generate traffic and new business leads or is it to provide credibility? Or is it merely because you like to wax poetic on the law?  You have to know your goal before you start writing or you’ll never know if you’re doing a good job.

I believe I come down on the side of credibility. Unless you have a high volume blog with a huge platform, I don’t believe a blog will generate new business.  But, the first thing I do with any attorney I come across (or really anything that is recommended to me), is to Google it. I want to be wowed by what I find.  I want that blog/website to seal the deal. But maybe that’s just me?

I’d be curious to hear what other legal bloggers think on this topic. Are we just shouting into the void?

daleks

The Void: Where You’ll Find My Blog and Daleks

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