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Law360 (January 15, 2021, 6:59 PM EST) --

Most of the chatter has focused on anticipated policy shifts in the humanitarian aspects of immigration asylum, the Deferred Action for Childhood Arrivals program, family separation and unification, and priorities in removal of the undocumented.

But if you believe that foreign professionals and skilled workers are good indeed, necessary for our economic recovery, you would add a number of doable and impactful changes to the immigration wish list for the Biden administration. While there are many to choose from, here are just six ways in which the new team in D.C. can address some of the damage wrought by the outgoing administration and clear some of the barriers preventing foreign talent's contributions to our recovering economy.

Repeal and reimagine the H-1B specialty occupation category.

In the past few years of the Trump administration, the H-1B category has been attacked in unprecedented ways. The definition of specialty occupation has been narrowly reinterpreted, and employers have been receiving overly burdensome requests for further evidence, unjustifiably claiming that the employer's degree requirements for the position were too broad and therefore, could not support a specialty occupation.

These assertions neglect to recognize the realities of today's workforce, require a response that costs employers significant time and money, and can still lead to the denial of an H-1B petition that is otherwise approvable.

This effort to undermine the H-1B category, and business immigration as a whole, led many employers to forgo sponsoring qualified applicants to avoid the high risk of receiving such a request and subsequent denial. If employers chose to proceed with sponsoring a candidate for an H-1B, they had to deal with a different and rather arbitrary standard created by U.S. Citizenship and Immigration Services, which was telling employers, the experts in their respective fields, what the degree requirements should be for their positions.

This movement deters U.S. employers from hiring the most qualified candidates they can find for their positions, creates unnecessary unpredictability and delays in the hiring process, and can lead to loss in productivity, growth and facilitation of jobs for U.S. workers.

While there isn't just one, single policy change that led to this shift in interpretation and application of the regulations, the "Buy American, Hire American" executive order and other similar anti-immigration policies encouraged USCIS to heavily rely upon their discretion to issue more requests for evidence and denials than ever before. On Oct. 6, 2020, the Trump administration sought to codify this extreme interpretation of the definition of "specialty occupation" as a final rule, which the court vacated due to lack of notice.

Striking down these policies and preventing the U.S. Department of Homeland Security from proceeding with this overly restrictive standard would help to liberate this visa category and others from the stringent requirements they currently face. This would open up the category to more employers, such as startups and smaller employers that still play a large role in the U.S. economy but have found the recent changes too difficult to overcome, leading to a smaller pool of qualified candidates.

If the overall purpose of business immigration policy is to feed and boost the U.S. economy, roadblocking U.S. employers on their path to growth would be counter to that goal.

Now we look to the Biden administration to not only prevent DHS from moving forward with a restrictive final rule, but to broaden the definition of specialty occupation to account for today's modern economy and employment marketplace, rather than remain artificially tethered to 20th century notions of the relationship between a very specific degree and a professional position.

Take a fresh look at prevailing wages for H-1B and labor certification.

Prevailing wages in connection to the labor condition application required for an H-1B, H-1B1 or E-3 visa, as well as labor certification Employment and Training AdministrationForm9089 applications, have historically served as a method of ensuring fair compensation for foreign workers and protecting the U.S. labor market.

However, the U.S. Department of Labor has broad discretion in setting the statistical methodology for the wage levels reported in its survey. This past fall, the DOL promulgated new regulations governing prevailing wages, which shifted the methodology to severely increase the wages. While the court struck down this proposed rule, the DOL has now published a new version of the regulations with a similar goal: to drive the wage levels up.

But arbitrarily raising the prevailing wage levels in a manner that does not align with the current marketplace data for these positions does not create jobs for U.S. workers. It does, though, prevent employers from utilizing the H-1B visa for positions where there are insufficient U.S. workers, particularly in the quantitative, science and technology areas.

We hope the new administration will keep this proposed rule from being published in its final form. Further, we suggest a reexamination of the prevailing wage survey and system, which, with each passing year, seems more and more out of step with the labor market.

Develop an H-1B selection system that does not bend toward the highest bidder.

Viewing salary as the number one factor in determining whether a petition should be selected for the H-1B quota is a narrow-minded approach that fails to consider the true business need for highly skilled workers in entry level positions. Yet, the new USCIS rule published on Jan. 8 does just that. It ranks priority in selection based upon the Occupational Employment Statistics survey wage level, looking to select first from petitions with a Level 4 wage.

The major blind spot of this rule is that many U.S. employers aren't seeking to hire senior-level employees into new positions. Rather, expanding employers need workers in entry-level and mid-level positions, who would be proportionately paid entry to mid-level wages, to build a strong workforce and remain competitive within and outside of the U.S.

If employers are limited to hiring H-1B employees who are crucial to the success of many companies at the highest wage levels, this will cripple their growth efforts. Smaller businesses and startups may not be able to afford to pay the highest wages and would lose access to the highly skilled pool of foreign candidates.

Furthermore, F-1 students educated at U.S. universities may not be able to find jobs in the U.S. out of school as U.S. employers will be unable to pay the required salary, leading to fewer international students. This rule would then have an effect that is opposite to the one intended, which is to boost the U.S. economy by attracting and retaining highly skilled foreign workers.

Thus, we ask Team Biden to halt the implementation of the new H-1B selection rule and revisit through a statutory and regulatory lens the entire H-1B selection process to develop a system that enables and encourages smart and strategic hiring for U.S. businesses.

Repeal the ban on H, L and J visas. Immigrants don't take jobs; they make jobs.

Presidential Proclamation 10052, which restricts many new L, H and J visas, was recently extended until March 31, once again bringing disappointment and delays to U.S. employers who were hoping to finally bring over their highly skilled foreign professionals and, frequently, senior-level employees to the U.S.

Business plans have been placed on hold because it's difficult to proceed when the manager or executive leading the expansion effort can't get into the U.S. In turn, employers must also hold off on hiring anyone in connection to these stalled plans this includes U.S. workers. Due to COVID-19, it's become even more critical that businesses be allowed to proceed with their efforts to grow, oftentimes under the leadership and through the specialized knowledge of these foreign workers, creating more jobs for U.S. workers.

We encourage President-elect Joe Biden to use his executive authority to reverse this proclamation as soon as he assumes office.

Reinstitute in-country visa renewal, a doable alternative during consular COVID-19 closures.

COVID-19 exacerbated many of the drawbacks in the U.S. immigration system, not the least of which is the requirement for nonimmigrant workers in the U.S. to apply at a U.S. consulate abroad in order to obtain a visa stamp to facilitate international travel. Since consulates closed at the beginning of the pandemic, there have been extremely limited alternatives for those seeking to depart and reenter the U.S. if their visa stamps have already expired.

These circumstances separated families at their most vulnerable times and kept them apart through emergencies, as many could not go home in fear they would not be able to return to the U.S. Similarly, crucial professional meetings were canceled, and businesses suffered.

Reinstituting in-country visa processing, which for many years was available by mail through the U.S. Department of State in Washington, D.C., could largely solve this problem. This process is nearly identical to the drop-box method of visa renewal abroad, which has grown in popularity and effectiveness, especially during the pandemic.

If implemented, it could significantly ease the burden on under-staffed consulates. In addition, offering in-country visa renewals for those who have already obtained their initial visa stamp abroad would provide much-needed relief for nonimmigrants workers and their employers in the knowledge they would be able to depart and return to the U.S. as necessary.

It's clear that even with a vaccine rolling out around the world, the effects of COVID-19 will linger for years, and the delays caused by consulate closures will likely push through this year and into the next. At least while consulates cannot operate at normal capacity, the in-country visa renewal option would be a viable and humane alternative.

Provide premium processing for employment authorization documents.

Many workers and employers are plagued by the very long wait times for employment authorization cards. This simple adjudication process, which is often nearly automatic once a certain nonimmigrant status is confirmed, has become a source of suffering and frustration to so many.

Ideally, USCIS would marshal rulemaking and process changes to turn this into a brief process. But, in the meantime, we wish the administration would consider alleviating some of the economic angst by extending the premium processing program to cover these largely administrative adjudications.

This move would increase funding to USCIS and provide stability and security for foreign workers and U.S. employers, allowing them to make plans for their business growth without worrying about losing key members of a project halfway through or being in a position where they're scrambling to rework their organizational structure, which can cause loss of jobs, downsizing, and additional pressure on the remaining employees.

We don't expect the incoming administration to fix the whole immigration system. Still, these suggested, achievable practical changes can make employment-based immigration work much better for U.S. employers and help build back our economy.

Pryor Cashman member Eugenia Joe contributed to this this article.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.

Read more:
6 Priorities For Employment-Based Immigration Reform - Law360

WASHINGTON, D.C. (WDVM) Back in June, the Trump administration drafted a proposal that would place more restrictions on asylum seekers seeking refuge in the united states at U.S. borders but how will this proposal impact LGBTQ immigrants specifically?

Members of the community say these changes could create barriers for them to be allowed into the country.

The rule received nearly 89,000 comments, which is a staggering number of comments, most of them in opposition, said Azadeh Erfani, Senior Policy Analyst at the National Immigrant Justice Center.

Erfani says one of the biggest concerns amongst LGBTQ activists is the regulation that immigrants would have to identify with social groups their first day in court. Activists believe that immigrants fearing persecution for their gender identity will have a difficult time coming out to the judge.

They have to disclose often times very intimate facts about themselves in order to really lay out the claims on their persecution, she said.

Senior Director for the Center for American Progress, Sharita Gruberg, says another concern is being denied for using false identification.

LGBTQ folks, particularly trans folks, in countries where theyre facing persecution, are not necessarily going to have access to the travel documents they need to officially enter a new country, said Gruberg.

And Geoffrey Louden who is the Chair of Center Global, says that LGBTQ immigrants may not have access to a support network back home due to anti-LGBTQ sentiment.

In addition to coming to the United States, uprooting their lives, not knowing anyone here, theyre also not able to find the support networks that other asylum seekers might necessarily know they have access to, he said.

The stricter legislation comes as a way to screen asylum cases easier and faster.

It basically tries to screen out cases before they reach their merits and what that means is that people are going to be denied their day in court, said Erfani.

However, conservatives say that the immigration system has been abused for years. Conservative activist Joe Visconti says tighter restrictions will prevent those who are falsely seeking asylum from entry.

The federal government does not allow illegal aliens to be harboredso thats what the wall is for, said Visconti. But the reality is Trump is trying to do a broad stroke to make a program that will make it much more difficult for people to fake that they are seeking asylum.

The solution to LGBTQ abuse and violence, he says, is to put pressure on the United Nations to address the abuse of the community in the countries they are fleeing from.

Many of them are coming from countries that oppose gaysthis is something that should be addressed, I think, with the United Nations, said Visconti. Trump is the easy blame. America is the easy blame, and we are not the policemen of the world, and were not the caretakers of the world.

Read more:
inFOCUS How will LGBTQ asylum seekers be impacted by Trumps immigration reform proposal? - WDVM 25

Texas and eight other Republican-led states will ask a federal court on Tuesday to rule the Deferred Action for Childhood Arrivals program unlawful, posing a fresh threat to the Obama-era program offering deportation protections to young immigrants that has been the subject of legal battles for the past few years.

The Trump administration first attempted to end the program, known as DACA, in September 2017, but it was blocked by federal courts. The Supreme Court ruled in June that it hadnt taken the proper steps to do so, and after several additional months of legal wrangling, the government began accepting new applications for the program for the first time in more than three years.

DACA, introduced in 2012, offers temporary protections to any immigrants in the country without legal authorization who were 30 or younger when the program was announced. President Obama created the program to protect these young immigrants, known as Dreamers, after their namesake bill the Dream Actwhich would have provided them a path to citizenshipfailed to pass Congress in 2010.

The years of legal and political fighting over the program, which has become a flashpoint in the larger debate over immigration reform, have created a sense of whiplash for the 640,000 young immigrants who depend on the program for work permits and protections against deportation. President-elect Joe Biden has said he will fully reinstate the program, while conservative states fight to overturn ita mirror image of the fight throughout President Trumps term in office, when the White House sought to end its protections but was met with court challenges by states to preserve them.

Juan Carlos Cerda and his fiance, Juana, both Dreamers, are accustomed to their immigration status disrupting their lives. For the past year, they have wanted to buy a home together, but struggled to find a lender willing to make them a loan. On Saturday, they finally moved into that homea two-story brick house in Fort Worth, Texas.

See more here:
Texas Challenges Legality of DACA in Latest Bid to End the Program - The Wall Street Journal

WETHERSFIELD, Conn. A Wethersfield Man is celebrating 1000 consecutive days advocating for the rights of immigrants and dreamers.

In 2018, Alan Dornan grew furious with the injustices he was seeing in the world when it came to immigrants and the rights of dreamers. I just suddenly heard this voice in my head that said, walk!

And so, 1000 days ago, the then 78-year-old Alan Dornan picked up his sign, and began walking. He walked 2 miles every single day with his sign until he was no longer able to do so. Suffering from scoliosis and other back issues, but changed his commitment to sit on the corner for 90 minutes every day.

Alan is passionate about advocating for the dreamers and immigrants and is a Member on the Immigrant and Refugee Coalition Board.

Alan will continue to fulfill his commitment until he can no longer do so.

Last year, Dornan said hes fighting for those without a voice, and said he will use his platform to make a difference for as long as he can.

Dornan said, Congress needs to pass comprehensive immigration reform that includes permanent legal status and a pathway to citizenship for the 11 plus million undocumented immigrants in America.

At that time, his neighbors said no matter where you stand on the issue seeing his strength makes them proud.

Tammy Dube said, It doesnt matter if its rain, if its icy he walks and its amazing to see him.

Tammys husband, Paul, further explained, You got to respect him for what he believes in and its a good thing that he does that, but its a human respect thing for another human and I wish more people could be like him.

Excerpt from:
81-year-old Wethersfield man has been out 1,000 straight days for immigration rights - FOX 61

Right: My passport picture before immigrating to the US. (Luis Manuel Diaz)

The ongoing struggle for racial justice. The future for immigrant families. The health and well-being of all Americans. The very fate of our fragile planet. The United States faces a crossroads in 2020. Seeking out the stories flying under the national radar, The Nation and Magnum Foundation are partnering on Whats At Stake, a series of photo essays from across the country through the lenses of independent imagemakers. Follow the whole series here. This installment was produced with support from the Economic Hardship Reporting Project.

Some of the earliest memories I have of the United States after immigrating from Mexico are the long drives to the supermarket my father and I used to take. As soon as we entered the car, my father would put on his favorite CD, by Los Tigres Del Norte, and immediately La Jaula De Oro would start to play. This nortea anthem laments that the journey of migration, the opportunities that await in America, and the struggle to live the American Dream all come with great costs: Although this cage is made of gold, Los Tigres sing, it does not stop being a prison. As my dad nodded along, I could tell this was a lesson my father had learned himself, creating a life away from the country of his youth. But for me, it ended up taking a few years of living here to fully understand the complexity of the lyrics, and the pull they had on my father.

Like many other young immigrants and first-generation Americans, young Latinxs have seen and experienced what the pursuit of the American Dream can do to a body. Seeing our parents overworked, mistreated, and ridiculed while they are simultaneously expected to remain grateful for the scraps this country offers them has for decades shaped how our communities live in this country. There has been Latinx activism and organizing in this country for as long as the United States has existed, but for my generation of Latinx youth, things seem different: As a group, we seem to be throwing off the heavy burden this places on our shoulders and are confronting head-on the oppressive systems that shape our lives.

Nikki, in red, and Chanty. Our generation is more outspoken, Nikki explains. We honor our cultural background but we are also more likely to stand up for what we believe in and to teach the older generation where their views may be biased. (Luis Manuel Diaz)

Latinx youth of my generationIm 24have become more vocal than ever before, organizing around issues that affect our communities and pushing our friends, family, and neighbors to get involved in shaping our political future. I think we are more outspoken than the generations that came before, says Nikki. We honor our cultural backgrounds but we are also more likely to stand up for what we believe in and to teach the older generation where their views may be biased.

Liz with her boyfriend Nay. Latinos have a lot of work to do when we talk about racism, Liz says. Theres a lot anti-blackness in our culture and we can do better by simply talking to and educating our family and friends. (Luis Manuel Diaz)

Part of the shift has come from the recognition that the category Latinx is not a monolith: Our communities are composed of many races, religions, and nationalities. We come from different countries, different backgrounds. Its a category that includes wealthy Cuban refugees alongside poor Indigenous Central American migrants, White Latin Americans alongside Afro-Latinxs. This diversity creates tension, and our generation is working to address the racism, colorism, and xenophobia that exists in many of our communities. Latinos have a lot of work to do when we talk about racism, Liz told me. Theres a lot of anti-Blackness in our culture and we can do better by simply talking to and educating our family and friends. Understanding that we all have racial bias, that there are learned behaviors that have been passed down from generation to generation, that white supremacy is a global issue and not specific to America, drives a lot of our organizing. I want for everyone to come together, to become allies, because at the end of the day we are far more similar than we are different. says Liz.

Left: Storefront display of traditional Mexican regional clothing, ceramics, and religious figurines. Right: Berenice, in brown, and Yasmine. (Luis Manuel Diaz)

Then theres the topic of immigration: Every four years, the presidential candidates make big promises about immigration, saying theyll be the one to finally pass overdue policy reform, or threatening to shut the borders to Latinx immigrants. But the last comprehensive immigration reform and amnesty legislation was passed almost 35 years ago, so undocumented immigrants can be forgiven for not giving much weight to candidates promises. The DACA program passed under Obama, which provided a path to citizenship for undocumented people brought to the country as minors, has so far survived the Trump administration, but it is far from the comprehensive immigration reform this country needs. As Berenice, a DACA recipient, told me, To some, citizenship may not be much, but citizenship for others is the security blanket that many aspire a whole lifetime to obtain and only a few get. Though being undocumented doesnt define you as a person, it does set boundaries as how big you can dream. Yasmine, a DACA recipient, adds, Theres so much uncertainty living in the US as an undocumented person. We cant allow ourselves to dream too much because it can all be easily taken away. Or as Berenice explained, I feel like I am in constant limbo. Not knowing the future of DACA has kept me from looking into opening my business.

Right: Kristian with his mother and four generations of women in pictures on the wall. Right: Mural of St. Jude, patron saint of lost causes. (Luis Manuel Diaz)

Living as an immigrant in the United States these past four years under Trump has created a lot of fear and uncertainty within our communities, and we see the toll this has taken on our parents. Growing up, our parents seem like the strongest people in the world, but when we become adults oursselves, we begin to understand how great the burdens placed upon them were, and how much they struggled with them. Young undocumented are at front of immigration reform, but we cant forget about our parents, grandparents and neighbors, Kristian, a former Dreamer explains. They deserve protection as well.

Bianca two weeks before giving birth to her daughter. I want my little girl to know and learn about her family's history, how both of her grandparents immigrated to the US for a better future. I want her to feel empowered by her roots. (Luis Manuel Diaz)

Now that my generation is growing up, were entering the workforce, taking care of our parents, our brothers and sisters, and some of us have started a family of our own. Were thinking of the future, not just for ourselves, but for those who will come after us. I want my little girl to know and learn about her familys history, how both of her grandparents immigrated to the US for a better future. I want her to feel empowered by her roots and not made to feel less than, says Bianca. We feel the responsibility to keep our cultures and traditions alive and to not let them be consumed by assimilation. While honoring our parents and ancestors, we want to create a new Latinx identity in this country, one thats founded on mutual respect and equity. We finally have the power to become the role models that we desperately wanted to see growing up.

Yasmine, left, and Berenice hugging their mother. (Luis Manuel Diaz)

Go here to see the original:
The Latinx Future Will Not Look Like the Latinx Past - The Nation