Immigration Law Section

This section provides members the opportunity to exchange information with other immigration law practitioners and provides a newsletter to members on both federal and State immigration laws. It also provides annual CLE programming on immigration law.

Chair
Immigration Law Offices of Steven...
P.O. Box 60920
Nashville, TN 37206
Twitter: abogado_esteban
Facebook: sjsimmigrationlaw/
(615)750-3142
Immediate Past Chair
Olsen Law Firm
735 Broad Street, Suite 708
Chattanooga, TN 37402
(423)648-9390
Staff Coordinator
Tennessee Bar Association
221 4th Avenue N. Suite 400
Nashville, TN 37219
(615)383-7421

RAISE Act: Is it Good Immigration Policy for Employers and America?

 
On August 2, 2017, Senators Tom Cotton (R-Ark.) and David Perdue (R-GA) introduced Reforming American Immigration for a Strong Economy (RAISE) Act with the support of President Trump. Senator Perdue has stated this legislation will return to the United States’ “historically normal levels of legal immigration.” Is the RAISE Act a good idea for the United States – from an employer’s perspective and a moral perspective?
 
Key Points of RAISE Act
 
The following are the key points of the proposed RAISE Act:
1. Establish a Skills-Based Points System – It will replace the current employment-based green card visa process with a system that would prioritize applicants by points based on education, English-language ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative. Experience does not count for any points. Age is a crucial factor with the younger you are (not including a minor), the more points you get. The total quota of visas remains at 140,000 (this number would include spouses and children) per year for visas in EB-1, EB-2, EB-3 and EB-4 categories. Employment-based numbers are to be divided with a limit of 50% being available in each six-month period.   Applicants who apply will remain in the eligibility pool for 12 months and then will have to reapply.
 
2. Cut Total Immigrant Visas – It will reduce the annual distribution of green cards from 1 million to about 500,000. Although the sponsors state this level of visas returns the number to historical levels, it treats the number of immigrants in 1900 as the same as the number of immigrants in 2017, even though the U.S. population quadrupled during that time. To understand historical levels, one must control for the population of the country at that time.
 
3. Change meaning of Immediate Family - It will retain immigration preferences for spouses and minor children of USCs and permanent residents (LPRs) while eliminating preferences for USCs petitioning for parents, adult children or siblings and LPRs petitioning for adult children. Additionally, the age for an adult “child” for immediate relative sponsorship will be changed from 21 to 18.
 
4. Reduce the number of family-based green cards - Total family-based green card numbers will be reduced from a base 226,000 to about 88,000.  This number will likely use all the 88,000 numbers, meaning only immediate relatives, who are spouses and children under 18 of U.S. citizens, will be able to immigrate.
 
5. Grandfather in potential immigrants awaiting entry under immigration categories eliminated by RAISE Act if their entry into U.S. is scheduled to occur within 1 year of RAISE Act’s enactment. However, if one is “in line” and their number is not called within the one-year grandfathering clause, one permanently loses their place in line and may not ever be able to get back in line.
 
6. Parents of U.S. citizens - They will be eligible for a “W” non-immigrant visa for up to five years with the possibility of extending if the citizen child continues to reside in the US. Parents will not be eligible to be employed or eligible for any public benefits. 
 
7. Eliminate Diversity Visa Lottery - RAISE Act would eliminate the 50,000 visas allocated to this lottery.
 
8. Cap refugee admissions at 50,000 per year - The INA set a limit of 50,000 in the early 1980s for three years, but since then, the INA has permitted the President to set the level, which until 2017 was significantly higher than 50,000.
 
How Does Skills-Based System Work
 
Here’s how the skills-based points system works:
 
a. Applicants earn points based on education, English-language ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative;
 
b. Applicants must reach 30-point threshold to be eligible for employment-based visa; and
 
c. Eligible applicants enter pool of potential immigrants from which USCIS twice a year invites highest scorers to file full applications and undergo security vetting.
 
The tie-breaking factors, in descending order are education (the higher the degree, the better), English skills, and age.
 
Employer Issues with RAISE Act
 
Historically, the United States has valued the ability of companies to sponsor employees. So, would this legislation impact that ability of employers? Yes, because the perspective employee that an employer seeks may not have sufficient points to immigrate under the merit-based system. A points-based immigration system would take the decision of who counts as a qualified individual away from employers and give the government more influence. 
 
Furthermore, the RAISE Act fails to increase the number of employment-based green cards at a time when our nation needs to do so to compete to attract the “best and the brightest." The RAISE Act is also harmful to graduates from U.S. universities and would remove lower-skilled immigrants from the U.S. immigration system, even though these immigrants contribute positively to the U.S. economy. 
 
Family-Based Visa Issues
 
The United States has always valued the ability of families to sponsor family members. Often immigrants desire to sponsor their parents or adult children in order to keep the family unit together in the long term. This legislation would deny this ability to keep the family unit together permanently, which I think all would agree is contrary to our values. The Act's very narrow grandfather period is not enough and would unfairly penalize thousands of family-based immigrants who have been patiently waiting for years in a visa backlog. 
 
Conclusion
 
Although everyone agrees our immigration system is broken, the RAISE Act does not appear to be the tool to fix it. Instead, the RAISE Act would cause serious problems for employers seeking to hire foreign nationals through employment-based visas. Additionally, this bill is contrary to American values and those magical words on the Statute of Liberty - "Give me your tired, your poor, your huddled masses yearning to breathe free…”. Luckily, there is very little chance this legislation will ever become law.

Bruce E. Buchanan is a founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta. He is also “Of Counsel” to Siskind Susser, P.C. on employer immigration compliance matters. Bruce is a graduate of Vanderbilt University School of Law. Bruce co-authored a book, I-9 and E-Verify Handbook, 2d edition, which has recently been published. He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.
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Immaterial False Statement Does Not Equal Loss of Citizenship

 
In Maslenjak v. United States, 582 U.S.___ (2017), the U.S. Supreme Court, in an opinion written by Justice Elena Kagan, and joined by Chief Justice John B. Roberts and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, held a naturalized American citizen cannot be stripped of their citizenship in a criminal proceeding based on having made an immaterial false statement during the process of procuring naturalization. Justices Neil Gorsuch and Clarence Thomas concurred in part and concurred in the judgement. Justice Samuel Alito also concurred in the judgement. 
 
Petitioner Divna Maslenjak is an ethnic Serb, who resided in Bosnia during the Yugoslav civil war of the 1990s. In 1998, Maslenjak, her husband and their children applied for refugee status in the United States. During the application process, Maslenjak testified under oath that she and her family would be persecuted by Bosnian Muslims because they were ethnic Serbs, and by Serbs because her husband had evaded service in the Bosnian Serb Army and fled to Serbia. Years later, when Maslenjak filed for naturalization, she swore that she had never given false information to a government official when applying for an immigration benefit and she had never lied to a U.S. official to gain entry into the United States. 
 
Around the time that Maslenjak filed for naturalization, the Government confronted Maslenjak’s husband with records showing that he had not hid in Serbia during the civil war, but had in fact served as an officer in the Bosnian Serb Army, and his brigade participated in the Srebrenica massacre where roughly 8,000 civilians were killed. About a year later, Maslenjak’s husband was convicted of charges of making false statements on immigration applications. During her husband’s court proceedings Maslenjak admitted that she had known all along that her husband had fought in Bosnia during the 1990s and did not hide in Serbia as she had previously stated. 
 
A federal prosecutor (Government) charged her with “knowingly procur[ing], contrary to law, [her] naturalization,” in violation of 18 U.S.C. § 1425(a). The Government argued that Maslenjak violated § 1425(a) because she also violated 18 U.S.C. § 1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. 
 
Thereafter, a trial in federal court took place. The District Court’s jury instructions stated to obtain a conviction under § 1425(a), the Government did not need to prove that Maslenjak’s false statements were material to the decision to approve her citizenship application. The jury convicted Maslenjak. The Sixth Circuit Court of Appeals affirmed the conviction, holding if Maslenjak made false statements, then she violated §§ 1015(a) and 1425(a).   
 
The Supreme Court held that the jury instructions provided by the District Court were in error because the jury needed to find more than just the fact that Maslenjak made a false statement. Accordingly, the Court vacated the judgement of the Sixth Circuit Court of Appeals and remanded the case. 
 
The Government argued that § 1425(a) applies to any violation of the law committed “in the course of procuring naturalization,” even if that violation of the law would not have impacted the decision to approve or deny the naturalization application. Maslenjak, on the other hand, argued that an applicant for naturalization “procures” citizenship “contrary to law” only if the predicate crime “contribut[ed]” to grant of citizenship. 
 
The Court disagreed with the Government’s position, explaining that its argument “falters on the way language naturally works.” In the majority opinion, Justice Kagan provided the example of an applicant for naturalization who fills out her naturalization application in a government office with a knife hidden in her purse, a knife that is not mentioned or used. The hypothetical applicant violated the law prohibiting bringing weapons to a federal building and “has surely done so in the course of procuring citizenship,” however, the hypothetical applicant has not obtained citizenship “contrary to law,” because the violation of the law banning weapons in federal buildings is merely coincidental with the acquisition of citizenship. 
 
The Court reasoned that by following the Government’s logic, it would open “the door to a world of disquieting consequences,” where a lie would always provide a basis for the Government to rescind citizenship, and therefore create a “profound mismatch between requirements for naturalization” and requirements for denaturalization. In 1988, the Court distinguished between lies told for a material purpose and lies told out of embarrassment, fear or a desire for privacy: “[w]illful misrepresentations made for other reasons, such as embarrassment, fear or a desire for privacy, were not deemed sufficiently culpable to brand the applicant as someone who lacks moral character,” a requirement for naturalization. Kungys v. United States, 485 U.S. 759, 780 (1988). By the Government’s logic, the Court held, an applicant who misrepresents that he belonged to a support group out of embarrassment or a desire for privacy, may simultaneously be granted citizenship despite the misrepresentation but then be stripped of that citizenship because of the representation. 
 
In practice, the Court suggested that its ruling in Maslenjak requires that a jury deciding whether a defendant acquired citizenship through a lie must decide how “knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” In other words, a jury must determine if knowledge of the real facts would impact the defendant’s statutory eligibility for naturalization. For example, if a defendant lied about the amount of time he had spent in the United States prior to filing his application for naturalization, and if the truth would make him statutorily ineligible to naturalize, the lie would be material and therefore the Government would be able to rescind citizenship. 
 
The Court also noted that materiality also applies to a lie, which standing alone, would not lead to a denial of naturalization, but “could have led to the discovery of other facts” which would lead to such denial. In those cases, the Government would have to demonstrate that having truthful information would have allowed immigration officials to investigate further and this additional investigation would have led to the discovery of information that would render the applicant ineligible for naturalization. The defense to such alleged material misrepresentation would be for an applicant to show eligibility to naturalize. 
 
In his separate opinion concurring in part and concurring in judgment, Justice Gorsuch agreed with the majority that the “plain text and structure of the statute before us require the Government to prove causation as an act of conviction: The defendant’s illegal conduct must, in some manner, cause her naturalization.” Justice Gorsuch objected to the majority providing guidance on how the requirement to show causation could be applied other cases. Justice Alito, while concurring in the judgement of the majority, wrote in a separate opinion that a naturalization applicant’s lie has to be material, but “does not require proof that a false statement actually had some effect on the naturalization decision.”

Aga Haupt is the founding partner of Haupt Immigration Law. She received her J.D. from University of Mississippi in 2005. Aga may be reached at 615-679-0069 or aga@hauptimmigrationlaw.com.
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