Committee Newsletter, Vol. 1, Issue 1 TABLE OF CONTENTS ARTICLES >> Obama s Final Days: The End of the Wet Foot, Dry Foot Policy...... 2 By: Josie Cardoso-Rojo Description: Cuban nationals who attempt to enter the U.S. illegally and do not qualify for humanitarian relief will be processed in the same manner as other immigrants; upon reaching a U.S. port of entry or border, Cuban nationals will be placed into removal proceedings and will have to seek relief in immigration court. The Future Woes of Executive Orders in the Immigration Context. 3 By: E. Nicole Kozycki Description: The promise of repeal of DACA would leave more than 700,000 without work authorization and eligible for immediate deportation, but would also have dramatic negative effects on the long-term U.S. economy. Law Update: The New National Interest Waiver (NIW) Analytical Framework under Matter of Dhanasar.. 5 By: Harvey Zeytuntsyan Description: On December 27, 2016, the AAO issued its decision in Matter of Dhanasar, striving for clarity, flexibility, and better utilization of the National Interest Waiver ( NIW ). The decision vacated and replaced Matter of New York State Department of Transportation ( NYSDOT ) which had articulated the three NIW prongs guiding petitioners and immigration attorneys for many years. NEWS AND ANNOUNCEMENTS >> USCIS Filing Fee Increase and Form Updates... 7 Call for Article Submissions 7
Page 2 ARTICLES Obama s Final Days: The End of the Wet Foot, Dry Foot Policy By: Josie Cardoso-Rojo Co-Vice Chair of the Immigration and Naturalization Law Committee Just days before he leaves office, President Barack Obama repealed the wet foot, dry foot policy that has given Cubans preferential treatment since the mid-1990s. 1 It is speculated that this change in policy was prompted by the surge of Cuban arrivals in the last 18 months, shortly after Cuba and the U.S. restored diplomatic relations. The policy, originally established by President Lyndon B. Johnson as the open door policy, allowed any Cuban who entered the U.S. to stay. President Bill Clinton later modified the policy by requiring that Cubans reach American soil in order to stay and apply for lawful permanent residence. 2 Those intercepted at sea would be sent back to Cuba; hence the name wet foot, dry foot. 3 The policy was implemented as a means of weakening the Castro regime by welcoming Cubans fleeing repression and persecution. However, in recent years, the law has led many Cubans to seek economic as opposed to political or humanitarian refuge in the U.S. Effective as of January 12, 2017, Cuban nationals who attempt to enter the U.S. illegally and do not qualify for humanitarian relief will be processed in the same manner as other immigrants; upon reaching a U.S. port of entry or border, Cuban nationals will be placed into removal proceedings and will have to seek relief in immigration court. Furthermore, the Department of Homeland Security is no longer prevented from using expedited removal proceedings for Cubans apprehended at or near the border. 4 The Obama administration also eliminated the Cuban Medical Parole Program, thereby preventing Cuban medical professionals in medical missions from defecting and obtaining visas to the United States. In exchange for these foreign policy changes, the Cuban government has agreed to repatriate over 2,700 migrants with final orders of deportation as well as other Cuban nationals on a case-by-case basis. 5 It should be noted that this change of policy only affects migrants who have not yet arrived. Even though the Obama Administration has urged Congress to repeal these measures, The Cuban Family Reunification Parole Program and Cuban Adjustment Act of 1966 remain unaffected by 1 Statement by the President on Cuban Immigration Policy, https://www.whitehouse.gov/thepress-office/2017/01/12/statement-president-cuban-immigration-policy 2 CNN Politics, U.S. ending 'wet foot, dry foot' policy for Cubans, http://www.cnn.com/2017/01/12/politics/us-to-end-wet-foot-dry-foot-policy-for-cubans/ 3 Id. 4 DHS Fact Sheet, Changes to Parole and Expedited Removal Affecting Cuban Nationals, https://www.dhs.gov/sites/default/files/publications/dhs%20fact%20sheet%20final.pdf 5 See Statement by the President on Cuban Immigration Policy
Page 3 President Obama s decision. As such, Cuban nationals present in the U.S. may still apply for lawful permanent residence. Nevertheless, Cuban nationals who arrived with visas on or after January 12, 2017, are facing delays as Customs and Border Patrol (CBP) determines whether they can admit these nationals due to the implications. 6 If CBP were to inspect and admit these nationals, they would be eligible for adjustment of status, even after the expiration of their visitor visas, so long as they reside in the U.S. continuously for at least one year. 7 Josie Cardoso-Rojo is an immigration attorney in New York City. Her practice focuses on family immigration and removal defense, particularly concerning asylum seekers who have suffered persecution due to gangs in Central America. The Future Woes of Executive Orders in the Immigration Context By: E. Nicole Kozycki Co-Vice Chair of the Immigration and Naturalization Law Committee President Obama on multiple occasions throughout his Presidency attempted to unilaterally pursue positive change in the immigration context through executive orders as allowed by the Constitution. These written directives are issued to achieve certain measures by executive branch officials and agencies without approval by Congress or other legislative bodies. 8 Certainly, the most prominent and widely known executive order was for Deferred Action of Childhood Arrivals, also known as DACA. While not technically a law or published statute, DACA allowed United States Citizenship and Immigration Services (USCIS) to issue employment authorization and a promise of deportation protection to over 741,546 previously undocumented immigrants who came to the U.S. as minors and met other stringent requirements. 9 An important purpose behind this executive order was to secure some economic benefit to the United States from those individuals who came to this country as children with their parents, some legally and most illegally, who have received their education in the U.S. and can be employed and fruitful individuals who contribute to the economy. Aside from the economic benefit, there are simply not enough resources to deport every illegal alien in the country. A system to set aside those who are a very low priority for deportation, such as educated individuals with little to no 6 NBC Miami, Cubans Landing at Miami International Airport Face New Delays, http://www.nbcmiami.com/news/local/011417-airport-delays-cuba-policy-erika-6pm_miami- 410738215.html 7 USCIS, Green Card for Cuban Native or Citizen, https://www.uscis.gov/green-card/other-waysget-green-card/green-card-cuban-native-or-citizen 8 With the Stroke of a Pen: What Executive Branch Actions Can President-elect Trump Undo on Day One? CRS Reports & Analysis. 22 November 2016. 9 Magana-Salgado, Jose. Money on the Table: The Economic Cost of Ending DACA Policy Brief. Immigrant Legal Resource Center. December 2016.
Page 4 criminal history, eases the burden on the enforcement agencies tasked with deportation review and procedures. Along with the benefit of swift and effective policy directives issued by the President, is the pitfall that such a directive can just as expeditiously be repealed by a new administration. Presidentelect Donald Trump has vowed on numerous occasions and on his officially published plan for immigration to immediately terminate DACA, triple enforcement power for deportation of illegal immigrants, and begin immediate deportation of every individual without lawful status. 10 Promised within the first hour of his presidency, this action can be done at any point in the next four years of his presidency, and will remain a cause of worry for both approved DACA holders and their employers. The practical effect of ending DACA is that not only would each person become deportable immediately, but also their employment authorization that was effective pursuant to the DACA approval would immediately be revoked. The economic consequences of this would be drastic and devastating. The Center of American Progress estimates that ending DACA would reduce the nation s GDP by $433.4 billion over a decade. 11 It is further estimated by the Immigrant Legal Resource Center that ending DACA would reduce Social Security and Medicare tax contributions by $24.6 billion over a decade, half of which would have been paid by employers. 12 Immediately ending employment for such a large amount of people would have dramatic turnover implications for employers, especially small businesses that would have to hire and train new workers with little to no notice. Looking forward, not only are there looming possibilities that President Obama s executive orders would be repealed, but President-elect Trump after taking office can pursue similar executive orders that may, instead of providing benefit for the immigrant population, only hinder their chance of productive life and assimilation into a country where many have lived for decades. It is unknown what the future for immigration reform may be under the incoming administration, but only time will tell past the first hour promises that have been made thus far. E. Nicole Kozycki primarily practices immigration law with ancillary representation in entertainment, contract, and corporate law matters as they relate to immigration issues. 10 Immigration: Donald J. Trump s Vision. www.donaldjtrump.com/policies/immigration 11 Wolgin, Philip E. The High Cost of Ending Deferred Action for Childhood Arrivals. Center for American Progress. 18 November 2016. 12 Magana-Salgado, Jose. Money on the Table: The Economic Cost of Ending DACA Policy Brief. Immigrant Legal Resource Center. December 2016.
Page 5 Law Update: The New National Interest Waiver (NIW) Analytical Framework under Matter of Dhanasar. As we wrapped up the 2016 year, anticipating the changes that might come for immigration practitioners, immigrants, and the nation as a whole, the Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Services (USCIS) issued a precedent decision that appears to reinforce and support the utilization of an important waiver for accomplished experts and talented individuals whom the United States strives to retain. On December 27, 2016, the AAO issued its decision in Matter of Dhanasar, striving for clarity, flexibility, and better utilization of the National Interest Waiver ( NIW ). 13 The decision vacated and replaced Matter of New York State Department of Transportation 14 ( NYSDOT ) which had articulated the three NIW prongs guiding petitioners and immigration attorneys for many years. The National Interest Waiver ( NIW ) is a discretionary benefit that is available for the employment-based second preference ( EB-2 ) immigrant visa category. 15 By default, the EB-2 is an employer-sponsored immigrant visa category that requires a permanent job offer and a labor certification issued by the Department of Labor (DOL) before a U.S. employer can petition on behalf of a foreign national worker. 16 The NIW enables a useful and faster path to permanent residence for individuals whose expertise and contributions are within a field or area that is important to the United States. These individuals may be experts who have contributed to important advances within their field, and the effect of imposing the job offer and labor certification requirements on them would frustrate their ability to continue making important contributions within the United States. Thus, the Immigration and Nationality Act empowers USCIS to waive the job offer and labor certification requirements of the EB-2, when it is in the U.S. national interest to do so. 17 However, unlike other immigrant visa categories, such as the employment-based first preference for extraordinary ability individuals ( EB-1A ), not much additional guidance is provided by the statutes and associated regulations on what is in the national interest. Decisional law has shaded the contours of the waiver over time, including the often-cited NYSDOT decision. 18 That decision articulated three prongs that have guided immigration attorneys and petitioners who pursue the EB-2 through the NIW. However, this changed on December 27, 2016, when the AAO articulated a new analytical framework for national interest waivers and vacated NYSDOT. Matter of Dhanasar appears to relax some of the requirements of NYSDOT and states its aim to enable the NIW to better serve its purpose. 13 26 I&N Dec. 884 (AAO 2016). 14 22 I&N Dec. 215 (1998). 15 Immigration and Nationality Act (INA) Sec. 203(b)(2)(B) [8 U.S.C. Sec. 1153(b)(2)(B)]; 8 CFR Sec. 204.5(k)(4). 16 8 CFR Sec. 204.5(k)(4). 17 INA Sec. 203(b)(2)(B) [8 U.S.C. Sec. 1153(b)(2)(B)]. 18 E.g., Matter of, EAC-92-091-50126 (AAU July 21, 1992) (articulating factors that were considered to be in the national interest, such as economic improvements, education or training improvements, health care improvements, affordable housing, environmental improvements, and natural resource conservation).
Page 6 In Matter of Dhanasar, the AAO reviewed the denial of an EB-2 self-petition filed by an aerospace engineering researcher and educator, who had concurrently requested an NIW. 19 It found that the petitioner, who had several Master of Science (M.S.) degrees, a Ph.D. in engineering, and was working on air and space propulsion systems, merited approval of an NIW. 20 At the time of filing, the petitioner was a postdoctoral research associate who had presented a strong record of achievements in the field, including scholarly publications, citations by others, membership in professional associations, and recognition from experts in government, academia, and industry. 21 In the course of finding for the petitioner, the AAO set forth the new analytical framework for the NIW, requiring demonstration by a preponderance of the evidence: (1) that the foreign national s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. 22 The AAO explained that the first element is forward-looking and concerned with the proposed endeavor. 23 The second element focuses on the foreign national and includes consideration of education, knowledge, expertise, record of success, progress toward achievement of the proposed endeavor, interest by relevant parties (e.g., investors), and plans for future activities. 24 Finally, the third element takes into consideration the practicality of the job offer and associated requirements; whether, despite the availability of U.S. workers, the nation would still benefit from retaining the petitioner; as well as the urgency of the issue or national interest area. 25 Most notably, the new analytical framework under Matter of Dhanasar replaces substantial intrinsic merit from NYSDOT with substantial merit in the first element and makes clear that national importance is not a strict geographic requirement. 26 While a past history of demonstrable achievement with some degree of influence on the field as a whole 27 that was articulated in NYSDOT is not expressly required under the new framework, it appears that such past history can still be referenced to show that the foreign national is well-positioned to advance their proposed endeavor. Finally, the new framework makes clear that the petitioner is not required to compare themselves to U.S. workers nor does it require showing harm to the national interest if a waiver is not granted to meet the third element. However, in finding for the petitioner in Matter of Dhanasar, the AAO appears to refer to the satisfaction of the first two elements to conclude that the petitioner has also successfully addressed the new third element. Thus, while we know what the petitioner is not required to show to meet the new third element, it appears time will have to tell us what it actually requires. Overall, Matter of Dhanasar helps bring additional clarification 19 Matter of Dhanasar at 891. 20 Id. 21 Id. at 891-92. 22 Id. at 889. 23 See id. 24 See id. at 890. 25 See id. at 890-91. 26 Id. at 887. 27 Id. at 888 (quoting NYSDOT).
Page 7 to the NIW elements and suggests that USCIS recognizes the vital importance of this waiver as a tool for retaining talented and accomplished experts who are making important contributions in the United States. Harvey Zeytuntsyan is a business immigration attorney admitted in California and Massachusetts and currently practices in Boston. NEWS AND ANNOUNCEMENTS USCIS Filing Fee Increase and Form Updates Currently practicing immigration attorneys should be aware that as of December 23, 2016, USCIS increased the filing fees for almost all immigration benefit requests filed with the agency. Any requests or submissions received after the effective date will be returned for having insufficient fees provided. Also of note on the same day, USCIS released updated forms for many popular benefit requests, including Form I-129, Form I-130, Form I-140, Form I-485, among others. Previous versions of some forms will be accepted until February 21, 2017, but the USCIS website for each benefit should be consulted prior to filing to ensure compliance with recent updates. Call for Article Submissions Those with a desire and experience in legal writing are encouraged to contribute through a law update, practice pointer, or brief article that would be helpful to immigration attorneys in the earlier years of their practice. The Committee accepts draft article submissions of at least 100 words. Authors should include a brief two to three sentence by-line that briefly mentions their practice area focus and any other relevant information regarding their background. Authors cannot advertise, promote, or include slogans or service marks in their by-line. If interested in writing a more lengthy and informative article on a matter of law, please email us with a proposed topic and scope of coverage. Attribution. Authors may rely on primary and secondary sources. Primary sources must be references to appropriate laws, regulations, as well as official agency guidance (binding and nonbinding). Secondary sources can include scholarly journal articles, treatises, and other reputable and reliable sources of legal analysis. Authors should provide brief references to the source of law as well as secondary sources. Authors are not required to follow a particular citation format, however we ask for consistency of formatting style. References should only appear in footnotes. Note: The articles and content in this newsletter are intended to be informative and helpful to law practitioners. However, they are not intended to be a substitute for legal or other professional services. For legal advice, the services of a competent professional should be sought.