NOI 36: How NOT to Reform Immigration Laws in the U.S.

In today’s episode of Nation of Immigrants, we discuss a series of new or proposed regulations coming out of the Trump Administration that make it harder than ever for immigrants to come legally to the U.S.

Jacob Tingen: Here we are again for another Lawyer up Friday here at Nation of Immigrants. Thank you for tuning in. We’re going to talk about an interesting article that I found on Forbes, Trump plans far reaching set of new immigration regulations. We’re going to talk about what these regulations mean and kind of just, it’s a bird’s eye view of what’s happening on immigration from the Trump administration in particular. And so I’m excited to kind of go over it and then talk about how this is not the way that immigration law and policies should be put into effect. Let’s get started. Thanks again, Nation of Immigrants.

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President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law with your host Jacob Tingen.

Jacob Tingen: Okay. Well, so here we are talking about how not to reform our nation’s immigration laws. And I think it’s an important conversation to have because if there’s one thing that we agree on in immigration, everybody, is that something’s got to give, something has to change, something needs to be done. And the disagreements are on what exactly needs to be done. I get that and I understand that there are a wide variety of viewpoints. What’s important is people are also disagreeing about certain facts. We’ve talked about that on this show that there are, for example, there are a lot of accusations that many of the people coming across our southern border are merely economic migrants. Whereas many people of us who work with immigrants on a daily basis will tell you that it’s not just economic migrants. These people are fleeing for their lives. This is a life and death situation, not a money situation.

Jacob Tingen: But lately as I’ve been talking, I just want to point out what’s so bad if they are coming for economic opportunity. And I did read an interesting article the other day that proposed, it was by an economist that essentially proposed that what’s so bad about having borders that are a little more open? And maybe one of these days we’ll talk about that too. But what I wanted to tackle first was this article from Forbes, Trump plans far reaching set of new immigration regulations. I was curious to see if there was anything I hadn’t heard about. There were a couple of things that this article updated me on and I kind of wanted to walk down it and talk about each of these visas and these regulations and I think you’ll see a current theme and the author of the article did as well. He kind of adds a plug there at the end of the article.

Jacob Tingen: Let’s just kind of go down through it. Again, this is in a Forbes article, I’ll just give props to the author Stuart Anderson for putting all of this together. It’s interesting. H-1B visas is looking at some new rules and regulations. If you’re not aware of what H-1B visas are, it’s of those that has been highly criticized by Donald Trump. And the H-1B visas are essentially work visas. They’re considered non-immigrant visas because they’re not permanent. They don’t lead to a green card necessarily. However, they are a dual intent visa. You can come in on an H-1B visa and plan to stay forever. And companies frequently do sponsor immigrants who have come in on an H-1B. They ultimately sponsored them for a green card as well. That happens.

Jacob Tingen: What’s interesting is that this article cites that denials of H-1B petitions have increased from 6% to 24%. I can also tell you that RFEs or also known as requests for evidence, so occasionally they’d see a petition and then say, “Well, we need more evidence before we make a decision.” In the Trump years, requests for evidence in particular in H-1B petitions have increased something in the ballpark of three to 400% which is mind boggling. And we’re seeing that in our practice too, that evidence that has been sufficient in the past is apparently no longer sufficient. It’s a little crazy. We’ll get these requests for evidence for, you didn’t submit the right birth certificate, submit this other kind of birth certificate.

Jacob Tingen: And then frequently we’re just seeing blanket RFEs where they’re like, where after we learned what kind of birth certificate they want, we’re like, okay, well we’ll get all the birth certificates that are currently available. We’ll send them in and then we’ll still get the RFE back asking for a specific birth certificate. Just to give you an example. And we’ll look through the packet and say, “We sent that.” Then we respond to the RFE and we say, “We sent that, here it is again.” And then there’s no apology. There’s no my bad. They get through, they realize that, oh, it was a mistake. But anyway, H-1Bs.

Jacob Tingen: There’s a summary of a forthcoming H-1B rule says they plan to revise the definition of specialty occupation to increase focus on obtaining the best and brightest foreign nationals via the H-1B program and revise the definition of employment and employer employee relationship to better protect US workers and wages. Essentially they’re just going for as much ground as they can cover and as many reasons as possible to deny H-1B visas. One of the interesting uses of the H-1B visa, it’s very popular in the tech sector. And so what’s interesting here is that there’s these internal documents and policy memos kind of implying that many of these tech companies would no longer be able to offer computer programmer positions because the H-1B is typically for specialty occupations or people with a bachelor’s degree, that kind of thing.

Jacob Tingen: And the argument in this internal memo is that well not all computer programmers have or even need a bachelor’s degree. And that’s true. Is it a specialty occupation or not? And so the government is arguing that it’s not in some of these documents, and it looks like that might be contributing to denial rates and potential policy changes in the area of H-1B visas. But what’s interesting is if you’re Google, you need somebody with degrees. You’re not just computer programming, you’re doing a lot more online than other people. And so it stands to reason that there’d be plenty of jobs available that require not just a computer programmer, not somebody who took a six weeks course, but somebody who has a degree in computer science. There’s definitely room for these companies to say, “Hey, no, I need these people with these specific degrees.”

Jacob Tingen: But it’s disheartening to see that our own government is fighting progress in an area where, why wouldn’t we want educated people? Now I know there are possibly some people that are listening that are saying, “Well H-1B is corrupt and people get around things, whatever.” Give me some concrete arguments. I’d be happy to talk about it in these videos. Leave some comments and I’ll address it later. The H-1B visa has been an area of conflict, but it’s just a starting point for today’s video and there’s a lot more to continue to discuss.

Jacob Tingen: H4 work authorization, so if you’re the spouse of someone here on an H-1B, you might have an H4 visa and typically in the past you’ve been able to work with an H4 visa. Hey, my husband’s here, or my wife’s here and she’s got a job, why can’t I work while I’m here as well? And that’s been allowed in the past. But the administration is looking at closing that loophole. Again, why would we care? If you’re already here with your family and and somebody got you a job, why can’t your spouse also work? Why can’t they contribute to society? Why can’t they help make ends meet? These policies don’t really truly make sense.

Jacob Tingen: Another area where there’s some regulations that are being looked at is the L1 visa. These are like intra-company transferees. It looks like USCIS in different policy agendas or memos is is looking at adding wage levels to L1 visas. Is looking at making it more complicated for people to get, people with specialized knowledge about the operation of a company into the US which is important for multinational companies or companies that want to become multinational. Or imagine this, companies who want to branch out to the US and then hire US workers and create American jobs.

Jacob Tingen: This is a common scenario that we see with people is they’ll come to us and say, “Hey, I’ve got a successful company in my home country. I’d like to bring my products and services to market in the US and it’s not like I’m going to be bringing a lot of employees over but I own the company or I’m higher up in our company and I want to open a manufacturing plant or I want to open an office and I want to hire US workers who speak English.” This is normal economic activity and yet it appears that the Trump administration is trying to depress that. It doesn’t make any sense.

Jacob Tingen: Another one that bugs me, but I understand is politically hot topic is student visas and how work relates to student visas. Currently if you graduate from college, you can typically get 12 to 24 months of OPT, optional practical training after you graduate. And these students need OPT because they get a degree and then they get experience in the US and then if they go back to their home countries, they go back with the degree and experience. And then if they get a job here, maybe they can stick around and stay. They can get a job, somebody can sponsor them. It gives them a window of time and opportunity. It looks like that and oh, and then also the agency itself has declared that there’s no negative impact on American workers by allowing students to stick around an extra 12 months to work.

Jacob Tingen: But even so, it looks like the administration is keying up, has a proposed rule and it looks like they’re attempting to prevent students from getting OPT, from sticking around afterwards. And they’re also trying to set a certain period of time for student visas. Currently student visas come over, student visa holders come over and they get duration of status for as long as their degree program takes. It looks like DHS is trying to say, “Well, you’ve got to finish a degree in three years or four years,” as if nobody ever took four and a half to five years to graduate from college. Or, we’ll see this often with some student visas and they’ll come in for one degree program and then decide, you know what? I’m going to get a Master’s degree or I’m going to get a PhD as well.

Jacob Tingen: And so basically they’re adding complication to the processes that allow people to come, live, study work here. I personally am of the opinion that it’s really just plain dumb to allow people to come here, get a high quality education, get a bachelor’s degree or oftentimes a Master’s degree and a PhD and then say, “You know what? You’re not welcome here. Goodbye.” Anybody who graduates from a college here in the US should have provisions available to them for them to stick around and potentially just get a green card. You’ve got a PhD? Sweet, our economy needs you. Stay. That’s not a radical idea.

Jacob Tingen: Okay. Another issue where regulations have actually come out, they were finalized yesterday, November, 21, 2019, EB-5 regulations. If you’re aware of the EB-5 visa, it is a visa, it’s called the millionaire visa. If you invest, I guess the new limits are 1.2 to $1.8 million, or is it 1.3 to $1.8 million? But basically if you invest more than a million dollars in a business here in the United States, and create the appropriate number of jobs, I think it’s now up to 12 jobs per amount of money invested in kind of entrepreneurial activity here in the US, then you can get a green card.

Jacob Tingen: Previous to that date, it was 500,000 to a million dollars and the job creation amount was 10 jobs. And so now that’s all changed leading to further areas of complication for EB-5. And then it looks like they’re looking at additional regulatory changes to the EB-5 regional center program. Regional centers are third party private entities that get regulatory approval to sponsor EB-5 projects. A lot of times these investors can pool their money together and as long as the underlying project creates enough jobs, they can all get the green card. For example, if you’re going to build a shopping mall or office buildings, hotels, there really are a variety of projects that people use EB-5 funds to develop. And this is one that’s very personal to me since I actually own a regional center with a partner in Utah. And so it’s been difficult for us to go through and watch these regulations unfold and see how they’re going to affect our business. And of course, if you’re interested in EB-5 visas or investing in a regional center, reach out.

Jacob Tingen: Okay. Finally, there are a couple of other regulations that are here. Family sponsorship. We’ve talked about public charge before and all the rules that are coming out from the Trump administration impacting the ability of families to sponsor family members due to the possibility that they might be considered a public charge and that that would prevent them from coming into the US. What’s interesting is that the public charge rule was blocked here in the US but I believe that the Department of State was able to initiate its own rule. And so if you’ve got a choice between adjustment of status and consular processing, I would do adjustment of status hands down. Because you want to avoid any issues or problems that might come up because of a potential public charge finding.

Jacob Tingen: And then additionally, the whole health insurance thing, which we also discussed. Which, I believe both of these were blocked by a court. Yeah, temporarily. These rules, they seek to limit legal immigration. And one of the big arguments coming out of the Trump administration and coming out of these conservative pundits is, hey, we’re just, we just want people to do it right. We just want people to do it legally. And then they turn around and make the legal system more constrictive, more difficult, more hard, all around generally. And so that that claim that they, oh, we just want you to do it legally rings false because it is. It’s just not true.

Jacob Tingen: All right. There’s also looking at regulation on asylum. We’ve seen this and they released some information about how they want filing fees to go up for certain kinds of applications. For the first time ever, we would be one of small number of nations that charges for asylum applications. Currently we don’t charge people to file an application to save their lives, but it looks like we might, and of course the argument will be well, but it’s a small charge. It’s only $50 but that’s where it begins. I haven’t practiced immigration law a decade yet, but I’ve already seen fees go up twice. It’s never pretty.

Jacob Tingen: Some of the application fees go up a great deal. It’s very surprising. And so, and that’s another thing that people need to understand. It’s not like tax payer dollars are funding the immigration program. Most of it is funded by, from my understanding, it’s funded by these application fees. But I guess part of the reason of the increasing the fees is just a reflection of the volume that they’re looking at. But at the same time I can’t help but feel that this $50 asylum fee is an intent to deny asylum protections to people.

Jacob Tingen: I read another article that I didn’t want to spend the day talking about how different hardliners, immigration hardliners have been appointed to different positions inside our asylum adjudication organization here in the US and how that’s leading to a lot of results. I personally have seen some strange results coming out of the asylum office. Cases that I know for a fact are very strong cases, not getting the due process that I think they should get. But that shouldn’t be surprising since one of the regulations that is being talked about or proposed is that they want to prevent people from having automatic reconsideration of their application. If you file in the asylum office with an asylum application and then it gets denied, today you can automatically appeal to have a judge hear your case. It just happens automatically. It just gets referred to the court, but they want to end that. They want to allow the asylum officers to just deny and that’d be the end of it. At least that’s my understanding based on what I’ve been reading here in the news.

Jacob Tingen: And of course there are other rules that are being looked at and that are being talked about. And here on this show I try to stay abreast of a lot of these different developments. I’m happy to continue to talk about some of these things, but what’s interesting is that this article says this, this is how it ends. “The Trump administration’s regulatory agenda on immigration is ambitious and far reaching. It’s an attempt to lock into place changes to immigration policy that cannot be easily undone regardless of the outcome of the 2020 presidential election.” There is one glaring omission from the Trump administration’s regulatory agenda. And here’s the kicker. Any measure to make it easier for foreign born individuals to work, stay or live in the United States.

Jacob Tingen: And that’s a problem and it’s transparently wrong. Any claim that he has that, oh, it’s just I like when people come legally or I’m doing this for the American economy. There are mountains of reasons that neither of those things are true. It’s transparent that this, all of these regulations are meant to keep immigrants out. And for whatever reason, the conclusion that many people are drawing and the conclusion that I’m beginning to draw as well is that there must be some kind of racial or national impetus against having immigrants come into our country or at least poor immigrants. And so this is a problem. The title of today’s episode, again, how not to create immigration law and policy in the US is this.

Jacob Tingen: Obama also took a lot of executive action and exercised a lot of executive power over immigration. And now we see the Trump administration using every single tool in their toolbox, regulatory changes, policy changes, proclamations, just general tone and stance, over zealousness of ICE officials and ICE officers. We’re seeing an attack on our immigration system from every angle possible. And the thing is, is this is the power that we’ve given the executive branch. I am concluding and appropriately so, I am concluding that a lot of these actions overreach because they do. And a lot of these things have been blocked in court because they should be. But what’s interesting is, is that in a very real way, sometimes these issues get to courts and judges say, “Hey look, this is the power of the executive branch. This is the power that Congress gave to the president.”

Jacob Tingen: And so that’s my point. This is how not to create us immigration law and policy. It should not be created by the president. I understand that immigration of course, entails certain national security issues and those kinds of things, but that’s not the purpose or intent behind any of these regulations. And so I think it’s time for Congress at a minimum, to just take power away from the executive branch on the issue of immigration. They don’t even need to change any of the laws. But they could start with saying, “You know what? The president doesn’t have the power to do this anymore.” Because it seems, and it seems pretty clear to me that the president or the executive branch just has way too much power in this particular area. And the way that they’re going about enforcing immigration laws is transparently anti-immigrant and anti poor immigrant, which again goes to the heart of these public charge rules that were coming out.

Jacob Tingen: And again, just that shockingly insensitive reinterpretation of the poem of the Statue of Liberty, “Give me your tired, your poor who can stand on their own two feet.” And that kind of thing that Ken Cucinelli said. No, America stands for hope no matter your economic circumstance.

Jacob Tingen: That’s it for Nation of Immigrants. If you like what you’re hearing, please subscribe here on YouTube, Facebook, Twitter, find me on my personal website at jacobtingen.com where you can also click on the podcast link and choose to donate. We’re going to use those funds to help support immigrants’ legal funds. And yeah, so I enjoy doing this. I enjoy having you around. I enjoy seeing your comments. I’d like to see more of you and then soon here, probably around the turn of the year, we’re also going to be starting a new series of videos where we talk not just about immigration issues, but legal issues generally as part of an initiative we’re doing, the firm, kind of excited about some of these things. Thanks again for listening in to Nation of Immigrants and we will see you around. Have a great Thanksgiving. We’ll see you in about a week or so. Thanks.

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President Obama: America is a nation of immigrants.

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