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  1. #1
    Super Moderator Newmexican's Avatar
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    May 2005
    Heart of Dixie

    Obama’s latest plan to rewrite immigration law

    October 19, 2015, 10:00 am
    Obama’s latest plan to rewrite immigration law
    By Ian Smith

    The Obama administration is about to power up a massive new executive action on immigration and it’s far scarier than anyone could have imagined. Last November, when Homeland Security released its ten memos commandeering immigration policy from Congress, Secretary Johnson included a vague plan aimed at benefiting the tech industry, innocuously titled “Modernizing the Employment-Based Immigrant Visa System.” But a secret memo recently leaked on an immigration law blog now reveals that this ‘modernization’ plan will not only fast-track hundreds of thousands of work permits to employment visa-applicants in violation of longstanding U.S. worker protection laws, but will enable hundreds of thousands of illegal aliens to also receive work permits despite their unlawful status. As the full details leak out from the narrow clique of immigration lawyers and lobbyists advising the President, labor advocates are scrambling to warn the public.

    Under our current system, most guest workers wishing to remain permanently in the U.S. must arrange for their employer to “sponsor” them by filing an I-140 application, putting them in a queue for a green card. When a temporary (“non-immigrant”) guest worker reaches the front of the immigrant visa queue, they are allowed to submit an application to “adjust” their “status” to that of permanent resident alien. Getting to this stage is key. By regulation an adjustment-of-status applicant automatically receives a coveted work permit or “EAD”. An EAD allows the alien to work anywhere in the country and apply for welfare. It’s the central reason foreigners line up to come here and it’s what Obama’s attempting to distribute to illegal aliens under the DACA and DAPA programs. And for those on guest-worker visas, EADs allow them to stay in the country even when their “temporary” visa (like an H-1b) runs out.

    The wait-time between filing an I-140 application and being allowed to file for adjustment-of-status (getting you the golden EAD) is regulated by the State Department and depends not only on one’s filing date, but also on one’s country of origin. But for the millions of aspiring alien workers from overpopulated countries like India, per nation visa quotas have meant a typical wait of 8 to 10 years to get their EADs—Non-skilled workers from any country are also given lengthy wait-times, as there has never been a shortage of poor Americans who need employment. This per-country wait-time is now what Obama’s unilaterally arranging to slash. From now on, filing an adjustment-of-status application won’t be necessary to receive an EAD and any alien who merely has an I-140 petition that’s been approved for a year can obtain the prized work permit.The new executive action will cut the line of people waiting to get an EAD dramatically, a backlog of hundreds of thousands of people who would otherwise have to wait patiently in line. This action will be a major encouragement to come here by any means possible, with a likely surge of thousands of EAD applications hitting an already backlogged USCIS in the first week alone. For the weak labor market faced by most American workers, it’ll be like a dam bursting.

    This is a major coup for the axis of open immigration and Big Tech lobbyists. Big Tech would prefer to hire millions of temporary workers on H-1Bs over American workers because their visas are tied to their employer making them docile and unlikely to unionize. But flooding the labor market with current and future computer technicians, even with workers who’ll have greater flexibility, is much more important—it also gets rid of H-1B renewal and administrative costs.

    Perhaps the most striking part of Obama’s move: illegal aliens will also be able to get EADs. All one needs to file an I-140 petition is an official ID; proving lawful presence isn’t required. The thousands of business-owners around the country who knowingly hire illegal aliens can cynically sponsor petitions whether or not the underlying applicant is legal. Ultimately, the USCIS bureaucrats will reject his or her adjustment-of-status application (after 10 plus years), but they’ll still be able to get that golden EAD.

    Generally, I-140 petitions require aliens to submit a so-called Labor Certification showing that the petitioning employer has advertised for the position in a newspaper. This is meant to ensure that foreigners are not hired over American workers. As immigration attorneys have admitted, however, they show employers how “to do exactly the opposite”, for instance, by creating deceiving advertisements or disqualifying American interviewees on false pretences.

    Filing costs for I-140 visa petitions are not cheap; with attorney costs, they can be several thousand dollars. But petitioning for an illegal alien-employee, with a promise to take the cost off his wages, could create a beneficial indentured servant relationship for employers. Larger employers may also file the petitions en masse if they feel a big crackdown coming (highly unlikely, of course). Furthermore, what’s to stop open-borders advocates, like La Raza, MALDEF, or LatinoJustice (where Justice Sotomayor was a board member) from creating a fund to finance the petition costs on behalf of employers? What about those groups’ billionaire-backers, like George Soros, Paul Singer, or the Ford Foundation?

    The legal authority proffered by DHS in the leaked memo is predictably a deliberate misinterpretation of the law. These are the same DHS attorneys of course who, with help from immigration attorneys, produced the 2010 memo “justifying” the DACA executive amnesty program. They claim that two provisions of the Immigration & Naturalization Act, §205 and §274A(h)(3), give DHS Secretary Johnson discretion to issue unlimited numbers of EADs. Note that this is the same argument they’re employing in an attack against Texas’s amnesty injunction. The organization I work for, the Immigration Reform Law Institute, has eviscerated this argument in briefs submitted in support of Texas. Additionally, DHS has claimed the same authority for a separate move that would give work permits to spouses of H-1B-holders. We’re in the process of litigating against that rulemaking, which, if we’re successful, will be utterly disastrous for Obama’s amnesty as well as this new rule change.

    Unlike the DACA executive amnesty program being challenged in the courts, USCIS is apparently opting to go through the normal regulatory process (although no details are up yet), complete with an opportunity for the public to submit comments.

    If enough patriotic American workers and their families flood the comment database, the agency may react like the ATF did when their proposed rule banning “green tipped” bullets was deluged with angry comments forcing them to rescind the proposal. If Americans care about their sovereignty like they do about their guns, Obama’s new immigration re-write won’t see the light of day.

    Smith is an investigative associate with the Immigration Reform Law Institute.

  2. #2
    Super Moderator Newmexican's Avatar
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    May 2005
    Heart of Dixie
    This is the above referenced Blog post.

    White House Proposal Would Grant Work Cards to Backlogged Employment Green Card Applicants

    ]By Greg Siskind
    On May 15, 2015

    The White House has appeared to have received the legal go ahead to proceed with implementing a proposal hinted at in the President’s executive action remarks in November 2014. One of the more popular proposals aimed at retaining skilled workers in the US is the creation of a “pre-registration” process that would allow those sitting in employment-based green card backlog lines to obtain a work authorization document continue working legally in the US while awaiting the green card. I’ve obtained a legal memorandum that I am trying to authenticate that lays out the proposal and its legal support.
    Entitled “Authority to Modify Certain Procedures Related to Petitions for Employment-Based Immigrant Visa Petitions”, the document sets out the background for the proposal noting that in the Secretary Jeh Johnson’s November 20, 2014 memorandum, he was directing USCIS to consider “regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.”

    The memorandum notes that the USCIS has a working group on I-140 Executive Action initiatives and that the memorandum provides a legal assessment of two proposals under consideration. The are the following:

    1. USCIS would amend its regulations regarding the revocation or continued validity of approved I-140 petitions in cases where an employer withdraws the petition or terminates its business. Current regulations make such a revocation by USCIS automatic. The new rule would consider these I-140 petitions to remain valid for a beneficiary when “certain criteria are met.”
    2. USCIS would issue a new rule providing employment authorization to beneficiaries (and their derivative spouses and children) of approved employment-based immigrant visa petitions.

    The memorandum notes that the proposals ARE permissible as long as they are made through notice-and-comment rulemaking.

    The memorandum notes as well that while I-140 beneficiaries would be able to change jobs without fear of losing their underlying immigrant visa petition, most beneficiaries would be unable to adjust status in the US since they would no longer hold non-immigrant status. Consular processing would generally be the route to permanent residency (which, the memorandum notes, may have the side benefit of deterring fraud or misuse of the program).

    Regarding the legality of the proposals, the memorandum first cites to the DHS Secretary’s broad authority under INA Section 205 to establish the criteria for revoking the approval of any petition approved by him under the Immigration and Nationality Act. Thus, amending USCIS regulations to provide that an employer withdrawing or terminating its business will no longer automatically result in an I-140 revocation is permissible.

    The memorandum also notes that the DHS Secretary has broad authority to approve employment authorization under INA Section 274A(h)(3) to various classes of immigrants and that adding the class of “beneficiaries of approved employment-based immigrant visa petitions (and their derivative dependents)” would be a permissible regulatory change.

    The memorandum then notes that these changes would be consistent with prior congressional actions including the adjustment portability provisions of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

    The I-140 revocation proposal envisions a system where approved I-140s continue to remain valid for the beneficiary despite the employer’s withdrawal of the petition or the termination of the business as long as 1) more than one year has passed since the approval of the petition and 2) the beneficiary has a job that is in the same or a similar occupational classification as the one in the I-140. This is very similar to the INA Section 204(j) provision for adjustment portability. The proposal would not alter other rules governing revocation such as those governing revocations for fraud or willful misrepresentation.

    Regarding the second proposal on EADs, the new system would extend employment authorization to the beneficiaries of approved employment-based immigrant visa petitions regardless of whether they have filed their applications for adjustment of status. The memorandum doesn’t note whether this provision would be limited to I-140 petitions or would also include I-360 petitions for religious workers.

    The memorandum concludes by re-stating that USCIS has the authority through notice-and-commenting rulemaking to make both of these changes.

    Here’s what I don’t know –

    1. Who this memorandum was written by or directed to. It seemingly is intended for someone in a senior role vetting the implementation of the executive action proposals.
    2. The timing. The memorandum doesn’t mention whether drafting has begun or when a notice of proposed rulemaking may be released. The fact that rulemaking is needed means that we’ll be waiting many months – my guess is about a year – before we actually see this proposal take effect.
    3. Whether other proposals are still in the running including recapturing unused green cards from prior years or not counting derivatives in the green card quotas.
    4. Whether this document is even real. I received this six page document anonymously and while it is very detailed and written in a way that suggests a great deal of inside knowledge about what is happening at the agency, I can’t yet verify its authenticity.

    Despite these uncertainties, I do believe those in employment-based green card category backlogs should view this document as very good news. Hopefully, the regulatory process will be fast-tracked and these proposals will become law sooner rather than later.

    Greg Siskind

    Partner at Siskind Susser, PC - Immigration Lawyers
    Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at

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