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Live Thread For March 19th Listening Session

Discussion in 'General discussion about executive action' started by Ron Gotcher, Mar 19, 2015.

  1. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I take it to mean that they are going to try to give people stuck in the backlog as many rights (EAD, AP, job portability) as possible. I specifically asked about visa reinterpretation and was told that the Visa Office is handling that.
     
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  2. h1bperm

    h1bperm Junior Member

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    Thanks Ron. Good to hear that "they try to give people stuck in the backlog as many rights (EAD, AP, job portability) ".
     
  3. nov2010eb2

    nov2010eb2 Senior Member

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    Thanks Ron, Glad to hear about rights..., If they can give hints about time line that helps lot of folks like me
     
  4. s_gan

    s_gan Super Moderator

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    Agree.
     
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

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    While it may seem senseless to offer something like "pre-registration" at the same time that they are talking about statutory re-interpretation, keep in mind that these actions are being considered by different agencies. The USCIS is looking at pre-registration.This is something they can do within their statutory authority. At the same time, the State Department is looking at statutory reinterpretation, as this lies within their authority.

    Hopefully, both agencies will act. Still, if only one acts, a huge problem is solved.
     
  6. Kamakazee

    Kamakazee Super Moderator

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    Thanks Ron. That does make sense since the President directed the agencies to recommend policies to streamline legal immigration. So USCIS will look into what they can legally do (provide EAD/AP without PD current) and DOS will look into what they can legally do (recapture, statute reinterpretation). The only thing is what DOS is looking into can be implemented immediately and that ACTUALLY reduces the backlog. What USCIS is looking into has to go through rulemaking which is time consuming and does not actually reduce the backlog. People will be on EAD/AP for the next 2 decades.

    The only thing I am worried is that if only Pre-Registration happens, most people will lose the zeal to fight for actual backlog reduction. Most H4s have already lost interest after the rule came out. Few realize that their fate is tied to the primary H1B.
     
  7. Kamakazee

    Kamakazee Super Moderator

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    Another thing is - if recapture falls under DOS jurisdiction, why was recapture part of the questionnaire when USCIS/DHS asked for recommendations to improve legal immigration? Recapture is not even their jurisdiction, right?
     
  8. montyp80

    montyp80 Junior Member

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    As far as I remember the RFI was issued by USCIS/DHS/DOS and covered questions related to their respective agenda.
     
  9. NIW_limbo

    NIW_limbo Member

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    As President's directive of visa modernization, USCIS asked for suggestions that also included recapture. They categorically avoided discussing about recapture on 3/19 though.
     
  10. speedracer

    speedracer Guru

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    They completely avoided any commitment .. but DOS or USCIS or DHS.. all these agencies have been around for a decade and no one really did anything on their own to help reduce backlog.. they created the problem and they don't really want to solve it.. it is the WH that is pushing them to do something to help.. they are just collecting information and giving it to the WH and then something will come out of WH .. followed by implementation directions .. and these all agencies with just follow orders.. that's what they can do .. just follow direction .. they cannot just do things in current political climate..
     
  11. Kamakazee

    Kamakazee Super Moderator

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    Yes, my bad. I double checked it. DOS was also one of the agencies involved in the RFI.
     
  12. Rick D

    Rick D Active Member

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    I agree. While I totally welcome I140 pre registration, doing so without a corresponding backlog reduction may give rise to unforeseen complications. For instance, as you mentioned employees would lose zeal to push for anything more. But more importantly, employers would stop pushing for any GC reforms, since I-140 EAD effectively gives them the wage depression they would have otherwise got through increased GC quota and employee mobility.
    Secondly, although my interpretation might be wrong, it will increase EB3->2 porting, since a lot of people would be able to move jobs and can show the 5 years experience from a different employer. This will effectively make EB 2 backlogs even longer.
    Thirdly, EAD would not give any benefits to the children of applicants once they age out and do not have a GC.

    There might be other similar complications, which would be seen only after a while.

    So while this is definitely a much needed relief, I am sincerely hoping that there is going to be a backlog reduction as well.
     
  13. Rick D

    Rick D Active Member

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    Ron, Assuming (and this is a big assumption) that it was indeed a part of the recommendations to the WH, the only main reason that would make it not happen would be if the DOJ lawyers turn it down. Is that correct?

    If they thought it was at all possible in the first place, and were looking for a legal cover though the study, things, at least on the outside, have developed exactly in that direction since November, haven't they?
     
  14. s_gan

    s_gan Super Moderator

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    that is because most of the guys asked about pre-registration, portability . Only at the end someone asked about statute re-interpretation.
     
  15. Ron Gotcher

    Ron Gotcher Attorney at Law

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    As I've written in the past, I believe that the studies and requests for comments are cover for what they planned to do all along.
     
  16. EB2Aug2011

    EB2Aug2011 New Member

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    Hi Ron,

    Access the link - http://resources.regulations.gov/public/component/main?__dmfClientId=1427816779702&__dmfTzoff=240

    Select DHS and click Go
    Navigate to Page 5
    You will notice there is a proposed rule - 'Implementation of AC21, the VWPPA, and the ACWIA'. Click the link next to it that will take you to the actual regulation. It has action date set to Oct-2015.

    Is this the I140 EAD and AC21 rule?

    this is the content of the rule:

    http://resources.regulations.gov/public/custom/jsp/navigation/main.jsp 1/1
    Agenda
    Home > Agenda
    Return to Rule List Publication Period Fall 2014
    Department of Homeland Security ( DHS ) RIN: 1615‐AB97
    U.S. Citizenship and Immigration Services ( USCIS ) Publication: 201410

    Title: Implementation of AC21, the VWPPA, and the ACWIA

    Abstract: The American Competitiveness in the 21st Century Act (AC21), Public Law 106‐313, was enacted in October 2000, along with
    two other laws, the Visa Waiver Permanent Program Act (VWPPA), Public Law 106‐396, and a law to increase the fee for certain H‐1B
    petitions, Public Law 106‐311. An earlier piece of legislation, the American Competitiveness and Workforce Improvement Act (ACWIA),
    Public Law 105‐277, was enacted to place certain conditions on the employment of H‐1B workers. Together, these laws make significant
    changes to the H‐1B classification. Public Law 106‐313 increased the numerical H‐1B cap to 195,000 for fiscal year 2000‐2002 and the
    percentage of the fees that the Department of Homeland Security (DHS) receives to 4 percent. It exempts certain aliens from the
    numerical cap, provides for the "portability" of employment authorization, and in certain circumstances extensions of stay for certain
    aliens who have permanent residence applications pending. Public Law 105‐277 imposes penalties for employers violating certain
    representations and prohibits retaliation against H‐1B workers who disclose these violations. Finally, on November 2, 2002, the President
    signed into law Public Law 107‐273, the 21st Century Department of Justice Appropriations Act which codified a provision that amends
    section 106(a) of AC21. This regulation clarifies several interpretive questions raised by these laws and ensures that DHS practice is
    consistent with them.
    Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule
    Major: Undetermined Unfunded Mandates: Undetermined
    CFR Citation: 8 CFR 103; 8 CFR 202; 8 CFR 204; CFR 205; 8 CFR 214; 8 CFR 245; 8 CFR 248 (To search for a specific CFR, visit the Code
    of Federal Regulations )
    Legal Authority: PL 105‐277; PL 106‐313; PL 107‐273; INA 101(a)(15)(H); PL 106‐396; 8 USC 1184(g)(5)
    Legal Deadline: None
    Timetable:
    Action Date FR Cite
    NPRM 10/00/2015
    Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: Undetermined
    Federalism: Undetermined
    Energy Affected: No
    Related RINs: Duplicate of 1615‐AA55
    Agency Contact: Kevin J. Cummings
    Chief, Business and Foreign Workers Division
    Department of Homeland Security
    U.S. Citizenship and Immigration Services
    Office of Policy and Strategy, 20 Massachusetts Avenue, NW., Washington, DC 20529‐2140
    Washington , DC 20529‐2140
    Phone: 202 272‐1470
    FAX: 202 272‐1480
    E‐Mail: kevin.j.cummings@uscis.dhs.gov
    Home Privacy Notice Site Map
     
  17. Shane

    Shane Junior Member

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    Not sure if above refers to visa modernization or I140 EAD/AP?
     
  18. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Good find.
     
  19. don012001

    don012001 Junior Member

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  20. Ron Gotcher

    Ron Gotcher Attorney at Law

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    No, these rules deal with clarification of existing statutes that have gone without any regulations for years.
     

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