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Immigration Law

Q&A With LexisNexis Expert Stephen Yale-Loehr

"Professor Stephen W. Yale-Loehr is one of the nation's pre-eminent authorities on U.S. immigration and asylum law. A prolific scholar, he has written many law review articles and is the author or co-author of four standard reference works. He was editor-in-chief of The Cornell International Law Journal and he co-authors a bimonthly column for The New York Law Journal. He is co-author of Immigration Law and Procedure, a 20-volume immigration law treatise published by LexisNexis. He is of counsel to the Ithaca firm Miller Mayer LLP. Upon receiving his Cornell J.D. cum laude, Professor Yale-Loehr clerked for Chief Judge Howard G. Munson of the U.S. District Court for the Northern District of New York. He is the 2001 recipient of the American Immigration Lawyers Association's Elmer Fried Award for Excellence in Teaching and the 2004 recipient of the AILA's Edith Lowenstein Award for excellence in advancing the practice of immigration law.

Q: What is the most challenging case you have worked on and what made it challenging?

A: Dan-el Padilla Peralta was a brilliant student at Princeton who won a prestigious scholarship to attend Oxford University for two years. Because he was in the U.S. illegally, however, normally he would be barred from returning to the U.S. for 10 years if he left for Oxford University.

I devised a strategy for Dan-el to apply for a certain kind of waiver that would allow him to return to the U.S. after he finished his studies at Oxford University. The waiver strategy was risky because he could only apply for it from outside the U.S. He had no assurance that the government would grant the waiver. I coordinated an effort by Princeton students, alumni and faculty to put pressure on the U.S. government to show why Dan-el deserved the waiver. Among other things, we got a front-page story about his case published in The Wall Street Journal. Dan-el also appeared on CNN and other media outlets. Having him go public about his undocumented status was risky, but it paid off. The government eventually granted Dan-el a waiver. He has now finished a Ph.D. in classics at Stanford University and is about to publish a memoir about his immigration experience.

Q: What aspects of your practice area need reform and why?

A: Our whole immigration system is broken, both substantively and procedurally. I practice both business immigration law at Miller Mayer in Ithaca, New York, and co-direct an asylum clinic at Cornell Law School. On the business side, the fact that employers have to go through a lottery to select foreign national employees to work for them on an H-1B temporary visa makes no sense. This year it is estimated that only one-third of employers will get the H-1B workers they need because of increased demand. Congress has not reformed our immigration system since 1990. During that time, the world has changed — so must our immigration system.

On the asylum side, people fleeing persecution are treated like criminals by being detained when they enter the U.S. Proving the elements of an asylum claim is difficult, but asylum applicants don’t have the right to an attorney to assist them. Too many asylum cases are being denied on the basis of minor inconsistencies in a person’s testimony.

Procedurally, the multitude of immigration agencies unduly complicates the system. For example, the U.S. Department of State, U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection disagree over when a person should be granted a certain type of waiver to enter the U.S. In some cases, the USCIS will approval a person’s eligibility for a certain visa category, only to have a State Department consular officer second-guess the USCIS' determination and refuse to issue the visa. Moreover, consular denials can’t be reviewed in federal court.

It also takes longer than ever to get anything adjudicated. That hurts everyone: companies waiting to bring in needed talent, families seeking to reunite with loved ones and asylum seekers detained longer than appropriate.

I collaborated a few years ago on "Green Card Stories," which profiles 50 recent immigrants. The book dispels the myth that it is easy and quick to immigrate to the U.S. The wait for eligibility can range from a few years for the spouse of a green card holder to more than 20 years for the brother or sister of a U.S. citizen. Some Indian nationals filing employment-based petitions must wait more than a decade to get their green cards. And for unskilled workers, there is simply no functioning employment-based system that allows them to immigrate.

The irony is that despite how difficult it is for individuals to legally immigrate to the U.S., nearly all economic indicators point to America’s need for more immigration. According to the Pew Research Center, immigrants accounted for half of the growth in the U.S. labor force, in both skilled and unskilled labor, during the 1990s. Between 1990 and 2005, immigrants started 25 percent of the nation’s highest-growth companies, employing 220,000 people in the U.S. Immigrants are 30 percent more likely to start a business than U.S. citizens. Immigrants co-founded over half of Silicon Valley companies since 1995. Furthermore, a Duke University study found that immigrants patent inventions at twice the rate of nonimmigrants.

Immigrant workers will become even more valuable as America’s aging baby boomers strain the country’s need for health care, Social Security and basic labor. It is estimated that Social Security and Medicare will serve twice as many people in 2030, from 40 million to 80 million. The U.S. has been closing the door and hanging up a “Not Welcome” sign just when we need immigrants the most.

For all these reasons, Congress needs to reform our broken immigration system.

Q: What is an important issue relevant to your practice area and why?

A: Although I practice general business immigration law, I specialize in the EB-5 green card category for foreign investors who create jobs for U.S. workers by investing at least $500,000 in the U.S. Qualifying a person for EB-5 status is one of the most complicated subspecialties in immigration law. A sophisticated knowledge of corporate, securities, tax, investment and immigration law are all required. Despite its complexity, I love this practice area.

Done correctly, an EB-5 investment is a four-way win. First, it creates jobs for U.S. workers. Second, it is an economic development tool that costs U.S. taxpayers nothing. Third, it gives project developers access to capital to projects that otherwise might not get off the ground or completed. Fourth, it provides green cards to high net worth foreign nationals, who further stimulate the economy when they move to the U.S. by buying homes here and paying U.S. taxes.

Q: Outside your firm, name an attorney in your field who has impressed you and explain why.

A: Angelo Paparelli is a partner at Seyfarth Shaw LLP's Los Angeles office. He is one of the most creative immigration lawyers I know. He knows the substantive and procedural aspects of immigration law inside and out. He also finds time to write a weekly immigration blog that is always both interesting and witty. He founded the Alliance of Business Immigration Lawyers, an invitation-only global alliance of leading business immigration lawyers established to promote best practices in client service and law firm management. In all respects Angelo is at the cutting edge of immigration law, from substantive knowledge to commentary to law firm management.

Q: What is a mistake you made early in your career and what did you learn from it?

A: After I clerked for a federal judge I starting working in the international trade group at a large Washington, D.C., law firm. My work on international antitrust and anti-dumping cases was intellectually challenging, but it didn’t fulfill me personally. One day a partner asked me to take on an immigration case. I said yes. No one in the firm did immigration then, but I learned through mentors in the local immigration bar. It was a simple case of transferring a foreign executive and his family to the U.S., but I found it fulfilling to help a family’s dreams of immigrating to the U.S. Moreover, the family was extremely grateful for my efforts. I didn’t get that kind of personal satisfaction from my international trade work.

From that point on I wanted to practice immigration law, but it took me two years to leave the big D.C. law firm. I was scared of making a career change, especially because it would mean a pay cut and going out on my own rather than being able to rely on the support of a large law firm. Eventually, I made the jump and I'm glad I did. The bottom line: Do what your heart says — don’t be scared or work just for the salary." - Law360, Apr. 3, 2015.