Symposium Introduction

A profile of law professor and author John F. Murphy is presented, including information on his educational background, his teaching experience at institutions such as the Naval War College in Newport, Rhode Island, and his authorship of several books and monographs. Murphy\u27s selection as a recipient of the 2011 Louis B. Sohn Award for Public International Law is also mentioned

Symposium Introduction

A profile of law professor and author John F. Murphy is presented, including information on his educational background, his teaching experience at institutions such as the Naval War College in Newport, Rhode Island, and his authorship of several books and monographs. Murphy\u27s selection as a recipient of the 2011 Louis B. Sohn Award for Public International Law is also mentioned

Maury Roberts: Man, Editor, Teacher

Remarks made at the American Immigration Law Foundation dinner in honor of Maurice A. Roberts in Seattle, Washington on June 7, 1990

Foreign Farm Workers in the U.S.: The Impact of the Immigration Reform and Control Act of 1986

The enactment of the Immigration Reform and Control Act of 1986 ( IRCA ), popularly known as the Simpson-Rodino Act, was in large part spurred by Congressional desire to exercise more effective control over the influx of foreign farm workers in this country. This is not a new issue; the U.S. has admitted temporary foreign agricultural workers since 1917, and their entry has always been the subject of heated debate. Between 1942 and 1964 the bracero program allowed Mexicans to work temporarily in U.S. agriculture, but this program resulted in massive civil rights and labor violations and depressed wages in the Southwest. Since 1964, the U.S. has continued to admit foreign agricultural workers under the H-2 program of the Immigration and Nationality Act to perform temporary labor where a shortage of domestic workers exists. Knowledgeable estimates of the number of such aliens working in U.S. agriculture ranged from 300,000 to 1.2 million. Despite the magnitude of effect aliens have on the labor supply, disputes between growers and organized labor organizations contributed to the failure of immigration legislation in 1984 and its near derailment in 1986. In support of allowing the entry of foreign agricultural workers into the U.S., growers have contended that many American workers do not want to work in seasonal agriculture or to live in rural areas. If employer sanctions were to be instituted under the proposed legislation, growers wanted some assurance that they lawfully could obtain sufficient numbers of workers. Organized labor and farm worker rights organizations disputed the growers\u27 assertions by pointing to high unemployment rates among domestic farm workers. These organizations charged that growers were seeking to preserve a cheap labor force that had few legal rights. The Simpson-Rodino Act attempts to reconcile these competing claims by providing for the treatment of farm workers in three ways. First, it revises the existing H-2 temporary worker program as it applies to agricultural workers. Second, the new law provides temporary resident status for aliens who can prove they worked ninety days in U.S. agriculture between May 1, 1985 and May 1, 1986. These special agricultural workers ( SAWs ) later can become permanent residents. Third, the law allows additional replenishment agricultural workers ( RAWs ) to enter the U.S. as temporary resident aliens between 1990 and 1993 if there is a shortage of farm workers at the time. These replenishment workers also may eventually become permanent resident aliens if they work at least ninety days in U.S. agriculture for three consecutive years. This article analyzes each of the major provisions of IRCA that affect foreign farm workers. The article examines IRCA\u27s language and implementing regulations; points out ambiguities, gaps and unanswered questions; and provides practical pointers for immigration practitioners

Challenging H-1B Denials in Federal Courts: Trends and Strategies

The denial rate for H-1B petitions has quadrupled over the past few years, increasing from six percent in fiscal year (FY) 2015 to twenty-four percent in FY 2018. After President Trump issued his ‘‘Buy American and Hire American’’ executive order in April 2017, U.S. Citizenship and Immigration Services (USCIS) has effectively raised the standard of proof on H-1B petitions. USCIS has used several reasons to deny H-1B petitions, including claims that the employer failed to show that a position qualifies as a ‘‘specialty occupation,’’ impermissibly assigned employees to third-party worksites, or failed to pay the required wage. Under USCIS’s recent approach, many H-1B petitioners are virtually faced with a ‘‘preordained denial’’ regardless of how well they respond to requests for evidence (RFEs) or appeal their denial to the USCIS Administrative Appeals Office (AAO). More and more H-1B petitioners have challenged the legality of H-1B denials by filing complaints in federal court. Many have succeeded in getting their H-1B denials reversed. We have compiled a spreadsheet of over fifty federal court cases brought against USCIS in the last two years concerning H-1B denials. This article presents the litigation trends we have observed and offers strategies for immigration attorneys considering litigation to challenge an H-1B denial. The bottom line: sue

The Odyssey of the J-2: Forty-Three Years of Trying Not to Go Home Again

We wrote this article to address one question: Should a J-2 nonimmigrant exchange visitor be subject to the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act (INA) if the J-1 principal is so subject? In trying to answer that question, the authors confronted additional issues that seem to have gone unresolved for close to half a century. If a J nonimmigrant is subject, be it J-1 or J-2, where can he fulfill the foreign residence requirement: in the country of his nationality or the country of his last residence? Does he have a choice? Where does a J-2 fulfill? In her J-1 spouse\u27s country of nationality or last residence or her own? Can she combine periods that she spends in both? And how can she fulfill it? Do any periods of stay in the foreign residence count, or must there be a certain quality to periods spent in the foreign country? If a J-1 fulfills the two-year rule overseas but the J-2 remains in the United States, is the J-2 still subject? If so, why? And finally, who gets to decide if the alien is even subject in the first place? The article is intended to serve several purposes: (1) to lead to an understanding of how J-2 nonimmigrants became subject to the foreign residence requirement; (2) to sort out where and how the two-year obligation may be fulfilled; and (3) to provide the legal rationale and justification for a new regulatory scheme that would render the J-2 exempt from the two-year foreign residence requirement. Our research found that there is very little in the legislative history and nothing in the INA that compels the conclusion that a J-2 is subject to the two-year foreign residence requirement. In fact, a strong argument exists that the J-2 is clearly not subject. For these reasons, we recommend that the State Department and the U.S. Citizenship and Immigration Services (CIS) change their current interpretations to exempt J-2s from the two-year foreign residence requirement. We decided to write this article after listening to the remarks of a senior State Department official at a recent immigration law conference. That official was very clear in his view that the foreign residence requirement should not be imposed on J-2 nonimmigrants. This article looks at the legal premises and processes we engage in, examines the legislative history of the exchange visitor program, reviews the questions about J-2s that have been raised in liaison meetings between the American Immigration Lawyers Association (AILA) and the Department of State and the United States Information Agency (USIA), provides excerpts from some of the statements about fulfillment issues that have been made by representatives of those governmental agencies at a variety of AILA conferences since 1998, and analyzes case law, legal opinions, and relevant regulations. In so doing, it necessarily takes a long, hard look not just at the J-2 classification, but also the status to which it appends, the J-1

The Odyssey of the J-2: Forty-Three Years of Trying Not to Go Home Again

We wrote this article to address one question: Should a J-2 nonimmigrant exchange visitor be subject to the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act (INA) if the J-1 principal is so subject? In trying to answer that question, the authors confronted additional issues that seem to have gone unresolved for close to half a century. If a J nonimmigrant is subject, be it J-1 or J-2, where can he fulfill the foreign residence requirement: in the country of his nationality or the country of his last residence? Does he have a choice? Where does a J-2 fulfill? In her J-1 spouse\u27s country of nationality or last residence or her own? Can she combine periods that she spends in both? And how can she fulfill it? Do any periods of stay in the foreign residence count, or must there be a certain quality to periods spent in the foreign country? If a J-1 fulfills the two-year rule overseas but the J-2 remains in the United States, is the J-2 still subject? If so, why? And finally, who gets to decide if the alien is even subject in the first place? The article is intended to serve several purposes: (1) to lead to an understanding of how J-2 nonimmigrants became subject to the foreign residence requirement; (2) to sort out where and how the two-year obligation may be fulfilled; and (3) to provide the legal rationale and justification for a new regulatory scheme that would render the J-2 exempt from the two-year foreign residence requirement. Our research found that there is very little in the legislative history and nothing in the INA that compels the conclusion that a J-2 is subject to the two-year foreign residence requirement. In fact, a strong argument exists that the J-2 is clearly not subject. For these reasons, we recommend that the State Department and the U.S. Citizenship and Immigration Services (CIS) change their current interpretations to exempt J-2s from the two-year foreign residence requirement. We decided to write this article after listening to the remarks of a senior State Department official at a recent immigration law conference. That official was very clear in his view that the foreign residence requirement should not be imposed on J-2 nonimmigrants. This article looks at the legal premises and processes we engage in, examines the legislative history of the exchange visitor program, reviews the questions about J-2s that have been raised in liaison meetings between the American Immigration Lawyers Association (AILA) and the Department of State and the United States Information Agency (USIA), provides excerpts from some of the statements about fulfillment issues that have been made by representatives of those governmental agencies at a variety of AILA conferences since 1998, and analyzes case law, legal opinions, and relevant regulations. In so doing, it necessarily takes a long, hard look not just at the J-2 classification, but also the status to which it appends, the J-1

Recruiting for the Future: A Realistic Road to a Points-Tested Visa Program in the United States

For over 40 years, lawmakers and academics have been debating whether the United States should adopt a merit-or skills-based approach to labor immigration and a points-based program for selecting foreign workers. Despite having bipartisan support, efforts to adopt such a program thus far have been unsuccessful. This idea is now back at the center of public debate, having been given new life by President Trump. He has called for “merit-based” immigration reforms that would make the United States more effective at attracting the world’s “best and brightest” and make it more competitive in the global marketplace for highly skilled foreign workers. The President’s public embrace of this goal has not been accompanied, however, by any detailed policy proposal or administration-backed bill introduced in Congress. This report capitalizes on this atmosphere of renewed interest by harnessing the current administration’s enthusiasm, providing evidence-based policy guidance, and mapping out a path forward that avoids the policy gridlock and political pitfalls that have beset past efforts to implement a points-based immigration program in the United States. This path forward is presented in the form of a legislative program. The authors recommend that the U.S. create a small pilot program that would allocate 50,000 green cards each year to candidates selected through a novel points-based selection program. Alongside this small pilot, the authors recommend creating a number of administrative supports meant to ensure that this program is effective, flexible, and transparent. Included are guidelines and financial support for U.S. Citizenship and Immigration Services (USCIS) or another executive agency to gather linked long-term data on the employment outcomes of admitted foreign workers; provisions requiring periodic review of the program by relevant congressional committees; and the establishment of a standing advisory board consisting of immigration experts and stakeholders. In designing these proposals, the authors sought to incorporate lessons from both the successes enjoyed by those countries that have already implemented points programs and the failures endured by those involved in past efforts toward comprehensive immigration reform here in the United States. Lessons from the former led the authors to embrace a two-stage selection process and criteria designed to balance both the short-and long-term needs of the U.S. economy. Lessons from the latter led the authors to adopt a more targeted and incremental approach to immigration reform, resulting in a policy proposal that is modest in its size, scope, strategy, and structure. The points-tested visa program laid out in this proposal would be temporary by design, initially authorized for just ten years, and would increase the number of green cards issued each year by only 4%. This program is designed to supplement, not displace, existing employment-related and family-based immigration categories. As such, this proposal does not call for any changes to existing immigration categories. Finally, the proposal embraces a piecemeal and incremental approach to legislative strategy, recommending that the pilot program be introduced in Congress as a standalone bill rather than as part of a comprehensive immigration reform package. For all these reasons, the authors believe that the policy recommendations presented in this report are legislatively achievable and would be programmatically successful