An Immigrant is Taking My Job!

Posted on Nov 18, 2016

Recently, someone sent me a picture that appeared to show First Lady Michelle Obama holding up a sign that said: “An Immigrant is Taking My Job.” It was probably photoshopped, but it really made me stop and think … “How True.”

More than ever before, I am now finding myself involved in deep discussions about U.S. Immigration law and policy. And of course, since I am an Immigration Lawyer, I am a lightning rod for questions and, understandably, clients, friends, and family are asking me what I think about all of the issues that have taken center stage in the political arena.

The photo-shopped picture of Michelle Obama is an interesting place to start. To me, it shows what I believe is an element of hypocrisy in our system. From my perspective, part of the objection that the anti-immigrant right wing has with undocumented aliens is that they have failed to obey the law and should not be rewarded for doing so; but rather, they should be made to follow our laws, leave and re-enter the U.S., and immigrate legally, just like everyone else did. I mean, we are a nation of laws, right? So why shouldn’t the immigrants have to follow our laws? In response, those who understand the nuances of U.S. Immigration law may reply, “Well, yes, and no.” In reality, its a very complicated question.

One reason why I think its a very complicated question is because our U.S. Immigration laws, while very limiting and unforgiving in some ways, can be very flexible and are not uniformly enforced against all classes of immigrants. There are countless factors that can influence an outcome in a particular case and which determine whether someone stays or has to go. Factors such as:

  1. The immigrants country of origin. ie. think Cuba or Syria, or a country that has temporary protected status, or refugees that we have not designated as threats to national security;
  2. The date and manner in which the immigrant entered the U.S.;
  3. The immigration status of the sponsor and whether the sponsor is a family member or employer;
  4. The timing of the filing of the application for immigration benefits;
  5. The availability of specific programs that grant status or benefits to a particular class or category of immigrants (such as TPS, NAFTA, DACA, the Seasonal Agricultural Worker Program, or 245(i) which is discussed below);
  6. The existence or non-existence of ties that the immigrant has to the U.S., both family and community ties;
  7. The financial position of the immigrant or the immigrant’s sponsor(s) and whether it’s perceived by the adjudicating officer that the immigrant will contribute to the U.S. economy or become a public charge (a financial burden); and
  8. The existence or non-existence of sympathetic factors, such as whether the immigrant has immediate family members with health issues, financial challenges, or other hardships that the immigrant can help to alleviate if they are allowed to remain in the U.S.

This brings me full circle back to the original point that I want to make in this blog. Perhaps I can best articulate that by reference to our future First Lady, Melania Trump, who, we all know immigrated to the U.S.

To be clear, I have nothing but good things to say about Melania. In addition to her striking and regal appearance, she appears to be very intelligent, is well spoken, and seems to have a big heart with a sense of compassion for others who are less fortunate. But what I do not know about her is exactly how she immigrated to the U.S. and what the circumstances were surrounding the manner in which she obtained her green card.

What I do know (from what has been released to the press) is that she is said to have entered the U.S. with an H-1B specialty occupation visa in the 1990s, as a fashion model. That’s all well and good. But in order for an H-1B visa holder to get a green card, they have to be sponsored, generally by either an employer or a family member. While the trail gets cold after that point and we have not been told whether it was an employer or family member that sponsored Melania, I would venture to guess that it was an employer that sponsored her, since the only family member that could have helped her out at that point would have been a U.S. citizen husband, and I have not heard anything about Melania being previously married before she married Donald in 2005. I have since read online that Melania obtained her visa through the EB-1 program which was designed for renowned academic researchers, multinational business executives or those in other fields, such as Olympic athletes and Oscar-winning actors, who demonstrated “sustained national and international acclaim”.

Coincidentally, I took up the job of being an Immigration Lawyer in 1995, which was right around this time in question. For one thing, it was a very different climate in terms of immigrant/anti-immigrant sentiment back then. It was actually a very low key kind of specialty and many people asked interesting questions about exactly what I did and how I worked to help immigrants. This all changed with the horrific attacks that occurred on September 11, 2001. But prior to this time, and up through and including April 30, 2001, there was a limited Amnesty that was offered through one paragraph of the Immigration and Nationality Act under Section 245(i).

In short, for a penalty fee of $1,000, Section 245(i) offered eligible immigrants a way to be excused from certain violations of U.S. immigration law, including: (1) entering without inspection … ie. crossing the border illegally; (2) overstaying a visa; (3) and working without proper authorization. Understand that 245(i) did not create eligibility; that had to be independently established by an otherwise approved and valid petition filed by a sponsor (usually a family member or employer). And on top of it, in order to eligible, the immigrant had to be otherwise admissible, meaning no disqualifying criminal offenses or prior instances of immigration fraud or illegality, proof of employment or financial sponsorship and a clean bill of health (ie. no communicable diseases of public significance), just to name a few. The 245(i) program sunset and expired on April 30, 2001; however, any immigrant who was the beneficiary of a petition that was approvable when filed on or before this date could take advantage of the benefits of this section. In fact, those beneficiaries are grandfathered under Section 245(i) and are technically still eligible to benefit under its provisions, even today.

What does this mean in the context of my original point? It means that, because of the unique timing of her acquisition of her green card, there exists the possibility that Melania filed under this ameliorative program and sought the benefits of being excused for a violation … such as, for instance, falling out of status, or working for an employer (without permission) after the expiration of the underlying H-1B visa … under Section 245(i). While we will probably never know the full story here, what Melania has shared with us is her Immigration Lawyer’s letter who confirmed that she, in fact, did go through the correct legal process in arriving in the USA and getting her green card.

By now, you are probably asking yourself, if she followed the correct legal process, then isn’t that consistent with the current position of the Trump Administration on Immigration, ie. that we are a nation of laws and when it comes to immigrants, they need to follow our law or leave. Well … again, yes, and no.

Yes, because I am sure that she followed the law in place AT THAT TIME.

No, because, in my mind, the question of whether she used Section 245(i) to excuse a violation of the U.S. immigration law is still unanswered. In other words, she may have used one law to excuse a violation of another.

While I am not a conspiracy theorist, I do believe that if there was truly nothing to hide there, that the Trump campaign would have shared the full story with us back when this was a campaign issue. As an aside, I feel the same way about her husband’s income tax returns. Again, we will probably never know the full story here. Why should the Trump administration release the details at this point? The irony is that we MAY, for the first time in U.S. history, actually have a First Lady who violated U.S. Immigration law at some point in the past (BUT WAS EXCUSED).

U.S. Immigration law is not a binary system where immigrants are either “legal” or “illegal”. In fact, I take objection with the use of the term “illegal” in this context because that, in my mind, refers to a violation of criminal law, and violation of U.S. Immigration law is civil, not criminal; but that’s for another blog post. Rather, Immigration law has a vast grey area in between where adjudicators sometimes have to make very difficult decisions, apply exceptions, and pass judgment on waivers (ie. applications to be excused from violating a law or being unqualified in one way or another). It happens all the time. Moreover, with international protocols and treaties involving the treatment of refugees and asylees, including the issuance of humanitarian parole (ie. allowing otherwise unqualified individuals to enter and remain in the U.S. on a case by case basis), our U.S. Immigration law and policy should be seen and understood as very flexible and accommodating, which is applied on a case by case basis … depending upon all of these above factors, and, now more than ever, upon the political climate and timing of the application in question.

With all of these examples of discretionary favorable treatment being given to classes or groups of immigrants over decades and decades of changes that our country has endured, why does the Trump Administration need to take such a hard line approach to immigrants, draw a line in the sand, and suddenly lose the compassion and humanity that is part of what made America great in the first place?

I get it that the Trump Administration wants to continue the policy of the Obama Administration in finding and deporting dangerous criminal aliens. I also understand that the new Administration wants to implement new procedures at the border to protect us from terrorists and immigrants that are bent on coming into the U.S. to do us harm. It’s probably not a bad thing to have better intel on who comes and goes into and out of the U.S.

But what about the “dreamer” who just finished college, started a new job, is paying taxes, and is building a family with the benefit she received through the DACA program?

What about the family that did not have to get torn apart by the deportation of a husband and father who was able to make use of the I-601 stateside waiver … leave and return to the U.S. as a permanent resident … without having to face the uncertainty of exclusion at the border for 10 years due to a technical violation?

What about the aspiring fashion model who arrived in the U.S. with an H-1B visa but fell out status because her employer did not file her H-1B extension application on time?

Are we really going to close the doors of opportunity for all of them, shut down the limited pathways that currently exist which help them bridge the gap to an unqualified legal status, and force them all to leave the U.S. and come back legally … the way everyone else supposedly did … just to make the point that we are a nation of laws? Will this really make America Great again?

Or should we try to strike a balance based upon enforcement priorities, available resources, and existing programs and policies that have a firm historical basis in humanitarian considerations and compassion toward all people, regardless of their race, nationality, or religious beliefs, as we have always done?

I believe in America and I believe that it already is great. Embarking upon the path of trying to root out and deport all 11,000,000 undocumented aliens while simultaneously attempting to secure our borders will only drive a deeper wedge in between the opposing factions that took sides during the run-up to the election and will waste time and valuable resources that could be put to better uses.

Again, only time will tell how the next chapter of this unfolding story will read.

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