Monique Kornfeld, Immagration Lawyer

Federal Court Partially Lifts Trump’s Refugee Ban

December 25th, 2017

A federal judge in Seattle partially lifted a ban on refugees imposed by the Trump administration. US District Judge James Roberts decided in favor of the American Civil Liberties Union (ACLU) and Jewish Family Service on December 23, 2017. In particular, Judge Roberts held that the ban does not apply to refugees who have a “bona fide” relationship with an individual or entity in the US.

Deportation of Half a Million People to Mexico in the 1930s Did Not Create Jobs

December 25th, 2017

In a report on the employment effects of repatriation of people of Mexican descent, economists surveyed the forced repatriation of people of Mexican descent to determine if immigrants really did take American jobs and drive down wages. They found that the mass expulsion didn’t create jobs and in fact did the opposite. The job markets shrank more in places that had expelled more Mexicans and Mexican-Americans and there was actually higher unemployment for the remaining residents in those places.

From 1929 to 1937, the US forced out between approximately 400,000 and 500,000 people of Mexican descent, in an attempt to protect American jobs during the Great Depression. Scholars estimate that at least a quarter or a third of them were American citizens — born in the US. Such compelled repatriation amounted to a period of odious civil rights violations, involving raids, checking public employee rolls for Mexican-sounding names and guards accompanying mentally ill patients to the border.

These expulsions reduced the labor force by one third in El Paso, Texas and by 15 to 20 percent in southern California. However, no tests were performed to determine if this ameliorated the local economy, according to Giovanni Peri, one of the economist authors. Therefore, the report’s authors evaluated census data from 1930, 1940, and 1950 to examine 893 cities around the US.

Their findings suggest that the mass expulsion didn’t create jobs but either had no effect or reduced employment and depressed wages. The Trump administration has pursued increased deportations from the US with Trump alleging that it would help boost jobs and wages for native Americans. Peri’s studies have disproved the perennial argument scapegoating immigrants as exacerbating unemployment.

You can read the full report: “The Employment Effects of Mexican Repatriations: Evidence From the 1930s”, By Jongkwan Lee, Giovanni Peri, and Vasil Yasenov.

Trump Administration’s Push to Merit-Based Immigration System in 2018

December 19th, 2017

The Associated Press reported on the Trump administration’s strategy to turn the public against the United States’ family-based immigration system in preparation for its agenda for a “merit-based” system in 2018. Already, the administration has executed its media campaign discrediting family-based immigration and there has been a concurrent increase in similar hostile messaging from anti-immigration groups.

The administration’s proposal to decrease family-based immigration would represent the most radical change to the US immigration system in 30 years. It would replace “chain migration,” whereby immigrants can sponsor their family members, and replace it with a points-based merit system that favors education and job potential.

This smear campaign to paint our current immigration system as dangerous and damaging to US workers, thereby instilling fear and rancor of immigrants in the public, is what is odious and deleterious – not our immigration system. The vilification of immigrants has been the fallback, since time immemorial, for xenophobes trying to distract the public from the real problems and issues of society. Globally and historically, such immigrant hostility has not only led to economic decline (as will happen with Brexit), intolerance and persecution.

Also, immigration is not a zero-sum game whereby we must take from on pot to add to another. The administration is ignoring the many benefits of family-based immigration, including enhanced integration and increased support networks, such as childcare. Also, we can and should be increasing immigration visa quotas so that foreign nationals can provide necessary labor to employers, create companies and jobs and boost our Social Security system.

USCIS Will Begin Accepting Applications Under the International Entrepreneur Rule

December 16th, 2017

On December 14, 2017, USCIS announced that it will begin implementing the previously delayed International Entrepreneur Rule (IER) and has provided instructions for filing for advance parole under the EIR program. However, USCIS also stated that the Department of Homeland Security (DHS) is in the final stages of drafting a rule to remove the IER.

The IER was published under the Obama Administration with an effective date of July 11, 2017, but it did not take effect because DHS issued a final rule on this date delaying the start date until March 14, 2018. DHS was seeking to give USCIS time to review, and if necessary, rescind the IER program regulations. However, on December 1, 2017, the US District Court for the District of Columbia in National Venture Capital Association v. Duke vacated USCIS’ final rule to delay the start date of the IER program.

The Obama administration published the IER to allow an unlimited number of foreign entrepreneurs to apply for parole in order to direct and grow start-up businesses in the US based on the use of American investment. The greatest advantage of the IER over the E-2 treaty investor visa is that it is not limited to countries that have certain treaties with the US. Among others, foreign nationals from India and China are not eligible for E-2 visas. Under the EIR, DHS may grant parole on a case-by-case basis to foreign entrepreneurs who demonstrate that their stay in the US would provide a significant public benefit through their business venture and that they warrant a favorable exercise of discretion. Foreign entrepreneurs granted parole will obtain employment authorization to work only for their start-up business. The spouses and children of the foreign entrepreneur may also be eligible for parole and spouses may apply for work authorization once in the US. IER parole may be granted for up to three entrepreneurs per start-up entity.

USCIS published instructions on how to apply for parole under the IER. Entrepreneurs applying for parole under this rule must demonstrate that they:

•possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation;
•play a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business;
•will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:

(1) the start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
(2) the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
(3) they partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

The foreign entrepreneur must file the Form I-941 along with the filing fee of $1,200 and the biometrics fee of $85. The spouse and children must file the Form I-131 for the travel document and the spouse files the Form I-765 for the employment authorization document.

DOS Issues January 2018 Visa Bulletin: EB3 Remains Current for Worldwide Category

December 16th, 2017

The Department of State (DOS) posted the Visa Bulletin for January 2018, which provides the visa number availability for family-sponsored and employment-sponsored preference categories, as well as for the diversity visa lottery cut-offs. As of December 2017, USCIS has not announced whether in January 2018 it will accept adjustment of status applications based on the filing dates or the final action dates chart. However, unless otherwise indicated on US Citizenship and Immigration Service’s USCIS)website at, individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Final Action Dates” for determining when they can file such applications.

According to the final action dates chart, the EB2 category for India is at November 22, 2008, and for China is at August 8, 2013. The EB1 category across the board remains current. The EB3 worldwide category remains current and the EB3 category for China is at April 15, 2014, and at November 1, 2006, for India.

Extension of Temporary Protected Status for Honduras

December 14th, 2017

The Department of Homeland Security has extended temporary protected status (TPS) designation for Honduras through July 5, 2018. It was due to expire on January 6, 2018, but because the US government did not make a determination that the conditions in Honduras no longer qualify it for TPS status, the designation was automatically extended by law for six months.

Termination of Temporary Protected Status for Nicaraguans

December 14th, 2017

The Department of Homeland Security has terminated the designation of Nicaragua for temporary protected status (TPS). The termination will become effective January 5, 2019, which is 12 months following the end of its current TPS designation.

USCIS Announces Applying for Work Authorization and Social Security Number Simultaneously

December 14th, 2017

The most recent version of the Form I-765 application for work authorization issued in July 2017 allows foreign nationals to simultaneously apply for the employment authorization document (EAD) and a social security number. This is based on a new information-sharing partnership between US Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA).

To work lawfully in the US, foreign workers in most categories need both the EAD from USCIS and a Social Security Number (SSN). Before the concurrent application for both, foreign nationals needed to apply for an SSN at a local Social Security office after obtaining an EAD. EADs are the primary evidence for many foreign nationals to evidence their employment authorization in the US. SSNs are used to report their wages to the US government and determine the worker’s eligibility for government benefits.

PERM Labor Certification Recruitment and the Disqualification of Applicants

December 10th, 2017

The PERM labor certification application is the first stage for most immigrants in an employment-based case for legal permanent residency. The PERM process is designed to protect US workers by requiring employers that sponsor foreign nationals to offer at least the prevailing wage for the position and then conduct a test of the US labor market (by running ads and placing postings) to determine if there are any qualified, willing, able and available US workers.

The Department of Labor (DOL) requires that the employer be willing to hire a U.S. worker if one is qualified and available, although it will not force the employer to hire such worker if one is located. This requirement is intended to assure that a fair test of the labor market is conducted. Therefore, the employer may not discourage U.S. workers who apply for the job, or tell them that the job is already filled by the foreign national or that recruitment has been undertaken strictly for labor certification purposes. Nor may the foreign national participate in interviewing or evaluating US job applicants, because that participation gives the appearance that a fair test of the labor market is not contemplated.

In the six months prior to filing an application, employers are required to place a job order with the state’s unemployment bank and run two newspaper advertisements in Sunday papers in the area of intended employment in a paper of general circulation most appropriate for the profession. Employers of professionals are also required to conduct three additional types of recruitment from a supplemental list of recruiting methods (e.g. job fairs, employer’s web site, job search website other than the employer’s, on-campus recruiting, newsletters or journals of trade or professional organizations, private employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers; and radio and television advertising).

Documentation of recruitment is not to be submitted with the application, but must be maintained in a file that will be available to the DOL in the case of a request by a Certifying Officer (CO) or an audit. The two advertisements as well as the job order must be placed more than 30 days but less than 180 days before filing the application.

Minimally Qualified Applicants

Should no available, able, willing, qualified, available U.S. worker applicants respond to the ads and other recruitment efforts, then the employer files the labor certification application with the DOL. US workers include:

• U.S. citizens and nationals;
• legal permanent residents;
• certain temporary and permanent residents who entered the US before 1982 and were granted adjustment of status;
• special agricultural workers granted adjustment of status; and
• refugees and asylees.

Aliens who are in F-1 status and hold optional practical training (OPT) and H-1B workers are not considered U.S. workers.

In terms of disqualifying US workers, it should be emphasized that the applicant must be able to reasonably perform the job duties. Thus, even if the applicant satisfies the minimum education and experience requirements, or has alternative qualifications equivalent to the minimum requirements, he or she can still be ineligible for the position. Also, an employer company can request references to determine if the applicant is truly qualified for the position. Further, the applicant must be willing to fill the job and all its attendant terms, including the salary. Therefore, if an applicant wishes a higher salary he is not considered a “willing” applicant for the PERM labor certification process and he can be disqualified.

It should be emphasized that the DOL will consider a candidate minimally qualified, even if he does not satisfy the actual minimum requirements, if he could acquire the skills necessary to perform the job in a reasonable period of on-the-job training. Thus, for applicants who do not meet the explicit requirements on the labor certification, the employer should document how each such applicant could not be trained on the job within a reasonable period of time.
In terms of ascertaining whether an applicant is minimally qualified, an employer may disqualify a PERM applicant if there is no reasonable possibility that the applicant meets the employer’s job requirements based on his resume alone. Where the applicant’s resume is silent regarding a major requirement, i.e., a college degree, and the resume omits any relevant experience and no evidence is provided showing requisite training in the job opportunity, then the employer can reject the applicant for a lawful, job-related reason.

Substantially Equivalent Alternative Requirements

When an employer’s alternative requirements are substantially equivalent to the primary requirements and the alien only meets the alternative requirements, the employer must indicate that applicants with any suitable combination of education, training or experience are acceptable. Alternative and primary requirements must be substantially equivalent in terms of whether the applicant can reasonably perform the job duties.

Responding to US Workers Applying for the Position

The employer should respond in a reasonably prompt fashion to any applications from US workers responding to any ads, postings or notices for the PERM position. If attempts to contact the applicant through the phone or e-mail are unsuccessful, then the employer should send a letter via certified mail or mail sent by overnight delivery to the applicant.

Proper Standards of Disqualification

Regarding the interview process and proper standards of disqualification of candidates, as long as the job requirements are within the limits prescribed by the regulations, the rejection of US workers who do not meet all those requirements is lawful and job-related. It is important that employers not to ask illegal questions, that is, questions regarding marital status, gender, sexual orientation, health or handicap, religion, age, ethnicity, race, or citizenship status. Regarding the applicant’s work authorization, the employer should ask only if the applicant has the right to work permanently in the US. Also, the employer should not reject a job applicant for subjective reasons, for example, because it finds the applicant to be unattractive, insufficiently outgoing, or has a personality conflict with the applicant. Moreover, the employer must not add job requirements that were not included in the job advertisement. Furthermore, the employer must not reject U.S. workers whose qualifications exceed the job’s requirements. Finally, the employer must not reject a job applicant because he has requested a higher salary than what is being offered unless the employer has actually made the job offer already.

Also, the employer should ask the following questions of each applicant:

• Does the applicant meet the minimum education, experience and training requirements for the position, or a suitable alternative combination thereof?
• Can the applicant reasonably perform the job duties as listed in the labor certification application?
• Is the applicant willing and able to accept the job offer (salary, relocation, etc.)?
• Do the applicant’s references support a job offer?
• Does the applicant have the right to work permanently in the U.S.?

Regarding the last question, this is the only legal question the employer may ask regarding the applicant’s national origin, citizenship or immigration status and whether that person is a US worker. The employer may not discriminate on the basis of national origin.

Recruitment Report

Employers under PERM will need to prepare a recruiting report that describes recruitment steps undertaken and the result achieved, the number of hires and, if applicable, the number of US workers rejected, categorized by lawful job related reasons for such rejections. The Certifying Officer (CO), after reviewing the employer’s recruitment report, may request the US workers’ resumes or applications, sorted by the reasons the workers were rejected.

A Divided Supreme Court Shields Trump’s DACA Documents

December 10th, 2017

By a five to four vote, the US Supreme Court held that that Trump administration can temporarily shield documents regarding its decision to rescind the Deferred Action for Childhood Arrivals (DACA), a program that protects some 800,000 young undocumented immigrants from deportation. The Supreme Court will hear further arguments in the matter.
The decision arose from five consolidated cases in California accusing the administration of violating the law when it rescinded DACA. Four states (California, Maine, Maryland and Minnesota) and Janet Napolitano, the president of the University of California and the Secretary of the Department of Homeland Security under President Obama who signed the original DACA document in 2012, filed suit.

The Court of Appeals for the Ninth Circuit found that the administration’s decision to terminate DACA based only on 256 pages of publicly available documents inadequate to shed light on a decision of great magnitude. The government argued that the decision was a departure from the separation-of-powers doctrine and the deference that the judiciary normally accorded to federal agency actions. The government also stated that it would be an unreasonable burden to review approximately 21,000 page of documents.

Writing for the Supreme Court’s dissent, Justice Stephen Breyer expressed concern that its abandonment of nonintervention in this discovery-related dispute would not only disrupt litigation but lead to more requests for the Court to address banal discovery disputes. He also noted that in order to have effective review the administrative record must contain all of the relevant documents.