WEBVTT - The $100,000 Visa for Skilled Foreign Workers 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:00:08.840 --> 0:00:11.959 A shooter with a rifle opened fire from a nearby 0:00:12.080 --> 0:00:16.599 roof onto a US Immigration and Customs Enforcement field office 0:00:16.680 --> 0:00:21.119 in Dallas today, killing one detainee and injuring two others 0:00:21.560 --> 0:00:24.360 before taking his own life. The head of the FBI, 0:00:24.560 --> 0:00:28.600 Cash Patel, released a photo on social media that shows 0:00:28.640 --> 0:00:31.720 a bullet found at the scene with the words anti 0:00:31.920 --> 0:00:36.159 ICE written in what appears to be marker. The acting 0:00:36.240 --> 0:00:39.560 Director of ICE, Todd Lyons, said, there's been a rise 0:00:39.600 --> 0:00:41.559 in threats against ICE agents. 0:00:42.280 --> 0:00:45.320 All of our officers have an increased presence now with 0:00:45.360 --> 0:00:49.040 security from Federal Protective Services just because, like I said, 0:00:49.360 --> 0:00:52.280 assaults in a threats on officer of one thousand percent. 0:00:52.680 --> 0:00:55.560 This was the third shooting this year at a Department 0:00:55.600 --> 0:00:59.960 of Homeland Security facility in Texas. Joining me is Immigrat 0:01:00.240 --> 0:01:03.880 attorney Leon Fresco, a partner at Hound and Knight. Leon 0:01:04.000 --> 0:01:07.199 I says it's officers are facing a more than one 0:01:07.280 --> 0:01:13.080 thousand percent increase in threats and assaults against them. Leon 0:01:13.160 --> 0:01:15.520 I says that it's officers are facing more than a 0:01:15.640 --> 0:01:21.640 thousand percent increase in assaults against them, including vehicles being 0:01:21.800 --> 0:01:27.120 used as weapons toward them, and doxing campaigns targeting officers 0:01:27.240 --> 0:01:28.240 and their families. 0:01:29.240 --> 0:01:34.640 These situations are terrible. The violence obviously has to stop 0:01:34.720 --> 0:01:37.960 against the ICE officers that are just there trying to 0:01:37.959 --> 0:01:38.640 do their job. 0:01:39.160 --> 0:01:40.479 In this particular. 0:01:40.080 --> 0:01:44.760 Instance, the individuals who ended up actually being shot were detainees, 0:01:45.480 --> 0:01:48.960 and so it's not clear what the shooter's intent is. 0:01:49.160 --> 0:01:52.040 But it's just a tough situation because it seems like, 0:01:52.240 --> 0:01:57.760 just in general, in every aspect of things, the default becomes, 0:01:57.880 --> 0:02:00.800 if I don't get my way through the police process 0:02:00.880 --> 0:02:04.640 or through some other manner, violence is the next mode 0:02:05.120 --> 0:02:10.200 of settling one's dispute, and everybody involved everywhere needs to 0:02:11.000 --> 0:02:14.560 end that ethos because you see, it's in all facets, 0:02:14.600 --> 0:02:19.119 it denies, it's in the detention facilities, it's in society generally. 0:02:19.680 --> 0:02:22.440 I think everybody on all side just needs to say 0:02:22.560 --> 0:02:27.000 violence is not the next stept of dispute resolution, for instance, 0:02:27.040 --> 0:02:31.359 like litigation. Litigation is another way people used to resolve disputes. 0:02:31.400 --> 0:02:34.240 It's not violent, and that just has to be taken 0:02:34.280 --> 0:02:36.040 up the table by everyone involved. 0:02:36.400 --> 0:02:41.320 Immigration advocates and others have called out aggressive tactics by 0:02:41.560 --> 0:02:46.080 ICE agents and on Saturday, California Governor Gavin Newsom signed 0:02:46.080 --> 0:02:50.320 a set of bills meant to check the Trump administration's 0:02:50.600 --> 0:02:55.640 aggressive immigration crackdown in California, including a first in the 0:02:55.720 --> 0:02:59.919 nation measure to prohibit officers from wearing masks and other 0:03:00.160 --> 0:03:04.200 is that limit their access to schools and hospitals. The 0:03:04.280 --> 0:03:07.760 question is whether a state law can be enforced on 0:03:07.880 --> 0:03:12.520 federal agents. Is that easily challengeable by the Trump administration? 0:03:14.160 --> 0:03:16.920 Well, absolutely, This is going to set up a preemption 0:03:17.760 --> 0:03:23.200 situation where there's sort of two preemption issues. One that'll 0:03:23.240 --> 0:03:26.960 just be in the court, which is, if this law presented, 0:03:27.240 --> 0:03:30.400 does the state government ever have the ability to tell 0:03:30.440 --> 0:03:34.000 the federal government how or where it can enforce federal 0:03:34.120 --> 0:03:37.640 law within the context of a state. So that will 0:03:37.640 --> 0:03:41.080 be an issue that will be squarely and clearly tied 0:03:41.160 --> 0:03:43.760 up for the courts, which is different than the sanctuary 0:03:43.800 --> 0:03:46.880 city issue, because the sanctuary city issue is about whether 0:03:46.920 --> 0:03:50.440 a state or a city can be compelled to enforce 0:03:50.520 --> 0:03:53.480 federal law. That's different than the state or a city 0:03:54.080 --> 0:03:57.800 actually limiting the manner in which the federal government enforces 0:03:57.840 --> 0:04:01.240 its laws. So, for instance, could you amine a state 0:04:01.360 --> 0:04:04.720 or a local government saying in our state, we're not 0:04:04.760 --> 0:04:08.400 going to let the federal government come into somebody's house 0:04:08.400 --> 0:04:12.040 who committed federal tax violations. You're not allowed to do it. 0:04:12.080 --> 0:04:15.760 You have to follow this other procedure. So where would 0:04:15.840 --> 0:04:19.359 that end? And so you start asking those questions. But 0:04:19.520 --> 0:04:22.080 obviously the concern is a serious one. You want the 0:04:22.120 --> 0:04:25.680 police to identify themselves at all times, or ICE in 0:04:25.720 --> 0:04:28.640 this case, to identify themselves at all times, then not 0:04:28.760 --> 0:04:33.640 have a situation where ICE can can easily be impersonated 0:04:33.680 --> 0:04:37.040 by other bad actors who will aren't Ice. So everybody 0:04:37.200 --> 0:04:41.000 has some interest in coming into a more transparent process 0:04:41.000 --> 0:04:45.440 where it's clear that it is actual immigration enforcement officers 0:04:45.800 --> 0:04:48.920 who they are, and that when someone is apprehended, that 0:04:49.000 --> 0:04:53.440 person can be identified and known where they're being housed 0:04:53.440 --> 0:04:55.760 and where they're being stationed so that the attorneys can 0:04:55.800 --> 0:04:58.160 get to them. So all of that is important. So 0:04:58.200 --> 0:05:00.880 the courts one will decide what is the level of 0:05:00.880 --> 0:05:02.240 pre empsion. But the other thing I was going to 0:05:02.279 --> 0:05:06.200 say is to the extent that it's not preempted at 0:05:06.279 --> 0:05:09.880 the moment. The next question would be, well, what does 0:05:09.920 --> 0:05:13.320 someone do. Let's say you're at some state university and 0:05:13.480 --> 0:05:16.280 ICE shows up on campus. Do you literally call the 0:05:16.400 --> 0:05:20.120 university police? And what does the university police do? Do 0:05:20.240 --> 0:05:24.760 they actually arrest the ICE agents for violating the rules? 0:05:25.200 --> 0:05:27.640 This is where I think this gets very dicey, and 0:05:28.120 --> 0:05:30.440 I probably would say that that's not going to end 0:05:30.520 --> 0:05:33.320 up happening. That there's going to be state and local 0:05:33.360 --> 0:05:36.760 police that end up getting into confrontations with ICE or 0:05:36.839 --> 0:05:40.760 they start trying to arrest ICE agents. But theoretically that 0:05:40.920 --> 0:05:45.279 is contemplated under the statute, and so I think sooner 0:05:45.400 --> 0:05:47.039 rather than later, this is going to have to be 0:05:47.040 --> 0:05:49.880 addressed by the court so that you never even get 0:05:49.880 --> 0:05:51.960 close to an unfortunate situation like this. 0:05:52.560 --> 0:05:55.640 And in twenty eighteen, California had passed a law to 0:05:55.720 --> 0:06:00.560 restrict immigration arrest at superior court buildings, but that hasn't 0:06:00.600 --> 0:06:04.960 stopped the Trump administration from detaining people at those courts 0:06:05.000 --> 0:06:07.520 this year. It's the question of whether there's an ability 0:06:07.600 --> 0:06:08.600 to enforce or not. 0:06:09.600 --> 0:06:12.080 Right, That's the point is, whenever you write a law, 0:06:12.240 --> 0:06:14.080 that's only half of the game. 0:06:14.240 --> 0:06:15.720 The other half of the game is can. 0:06:15.640 --> 0:06:16.760 You enforce the law? 0:06:17.160 --> 0:06:18.680 And if you cannot enforce. 0:06:18.360 --> 0:06:21.520 Whatever law you've written, and that law's meaningless and so 0:06:21.640 --> 0:06:24.680 there's two levels of enforcement. So the first is will 0:06:24.720 --> 0:06:27.599 the courts allow it to be enforced? But the second is, 0:06:27.680 --> 0:06:30.320 even if the courts allow it to be enforced, what 0:06:30.560 --> 0:06:34.200 actual human beings in California are actually going to try 0:06:34.200 --> 0:06:37.039 to enforce this law? And I think until both of 0:06:37.040 --> 0:06:39.839 those issues are addressed, I think you would say it's 0:06:39.880 --> 0:06:43.000 highly unlikely that the state would be able to take 0:06:43.040 --> 0:06:46.159 matters into its own hands, as has been attempted here. 0:06:47.880 --> 0:06:52.120 President Donald Trump signed a proclamation on Friday that will 0:06:52.160 --> 0:06:55.880 require a one hundred thousand dollars annual fee for H 0:06:56.000 --> 0:07:00.320 one B visas, which enables skilled workers from overseas to 0:07:00.440 --> 0:07:05.200 temporarily work in the United States. Commerce Secretary Howard Lutnick 0:07:05.320 --> 0:07:08.040 said all big companies are on board. 0:07:09.000 --> 0:07:12.160 So the whole idea is no more with these big 0:07:12.200 --> 0:07:16.880 tech companies or other big companies train foreign workers. They 0:07:16.920 --> 0:07:19.000 have to pay the government one hundred thousand dollars, then 0:07:19.000 --> 0:07:22.600 they have to pay the employee. So it's just non economic. 0:07:22.800 --> 0:07:26.080 If you're going to train somebody, you're going to train 0:07:26.240 --> 0:07:28.760 one of the recent graduates from one of the great 0:07:28.880 --> 0:07:33.600 universities across our land. Train Americans. Stop bringing in people 0:07:33.640 --> 0:07:37.160 to take our jobs. That's the policy here, one hundred 0:07:37.200 --> 0:07:40.280 thousand dollars a year for H one B visas, and 0:07:40.480 --> 0:07:44.040 all of the big companies are on board. We've spoken 0:07:44.080 --> 0:07:45.280 to them about the Golden Card. 0:07:45.320 --> 0:07:47.200 They love us, they love it, they really love it. 0:07:47.240 --> 0:07:47.880 They need it. 0:07:48.360 --> 0:07:51.840 I've been talking to immigration attorney Leon Fresco of Holland 0:07:51.840 --> 0:07:55.000 and Knight. An immigration issue that's gotten a lot of 0:07:55.040 --> 0:08:01.040 attention is President Trump signing a proclamation on frey that 0:08:01.160 --> 0:08:04.840 will require one hundred thousand dollars annual fee for H 0:08:05.000 --> 0:08:09.080 one B visas, which allows skilled workers from overseas to 0:08:09.200 --> 0:08:13.160 temporarily work in the United States. I mean, what's the 0:08:13.200 --> 0:08:15.960 fee like now at. 0:08:15.760 --> 0:08:19.480 The moment if an employer wins the lottery, Because that's 0:08:19.480 --> 0:08:21.360 the first step of this is that there are more 0:08:21.400 --> 0:08:24.640 people who want, more businesses that want H one B 0:08:24.880 --> 0:08:28.360 employees than there are slots. And there's eighty five thousand 0:08:28.440 --> 0:08:31.880 slots per year, and there's usually a demand of between 0:08:31.920 --> 0:08:35.760 four hundred and five hundred thousand people that employers want 0:08:35.760 --> 0:08:38.319 to hire for these slots. And that's just on day 0:08:38.400 --> 0:08:40.680 one of the programs. Over the rest of the year, 0:08:40.720 --> 0:08:44.040 there'd be people who would apply, but they can't because 0:08:44.040 --> 0:08:45.280 the slots are all gone. 0:08:45.600 --> 0:08:47.199 But the point is. 0:08:46.960 --> 0:08:49.640 That if you then win the lottery and you get 0:08:49.679 --> 0:08:51.480 one of those slots. 0:08:51.200 --> 0:08:53.559 It costs about five thousand. 0:08:53.280 --> 0:08:58.719 Dollars in fees to take that worker into your employee. 0:08:58.760 --> 0:09:01.960 So there's fees for the application. There's fees to get 0:09:01.960 --> 0:09:05.320 a decision in fifteen days that most employers use because 0:09:05.320 --> 0:09:07.720 they don't want to wait a year or two to 0:09:07.760 --> 0:09:09.839 get an answer. So they said they get what's called 0:09:09.880 --> 0:09:13.760 premium processing. And there's two other fees. One that's a 0:09:13.920 --> 0:09:16.640 fee to fight fraud in the system, so the money 0:09:16.960 --> 0:09:21.320 literally goes toward fraud investigators to make sure that nobody's 0:09:21.360 --> 0:09:24.480 gaming the system. And then there's another fee that actually 0:09:24.520 --> 0:09:29.199 goes toward the Department of Labor to train American workers 0:09:29.240 --> 0:09:32.320 to do high skill jobs. And so all of those 0:09:32.360 --> 0:09:35.920 fees aed up to five thousand dollars, and the idea 0:09:36.000 --> 0:09:40.120 would be that this proclamation, if enacted, would raise that 0:09:40.280 --> 0:09:43.840 fee to one hundred thousand, but it's not clear where 0:09:43.880 --> 0:09:45.760 that money would go to. It would just go to 0:09:46.240 --> 0:09:49.600 the treasury, and then within the treasury it can be 0:09:49.640 --> 0:09:52.640 allocated just I suppose for deficit reduction. 0:09:53.559 --> 0:09:57.640 Besides bringing that money into the treasury, what's the underlying 0:09:57.720 --> 0:09:59.080 purpose of this. 0:09:59.640 --> 0:10:04.560 The purpose of that fee is ostensibly to say that 0:10:05.120 --> 0:10:07.880 if an employer is using the H one B program 0:10:07.960 --> 0:10:12.480 not to hire a super skilled, highly talented employee where 0:10:12.480 --> 0:10:15.800 money isn't an object, but as instead trying to hire 0:10:15.800 --> 0:10:20.040 an employee for the purposes of undercutting the wage of 0:10:20.080 --> 0:10:23.319 a US national that it otherwise would have hired. This 0:10:23.440 --> 0:10:26.160 takes that off the table because you would never do this. 0:10:26.720 --> 0:10:29.280 You would never pay an extra one hundred thousand dollars 0:10:29.679 --> 0:10:33.120 to undercut the wages of an American. So the only 0:10:33.160 --> 0:10:36.360 reason you would pay one hundred thousand dollars is because 0:10:36.440 --> 0:10:38.960 you were hiring the best of the best, and money 0:10:38.960 --> 0:10:42.439 is no object. You really need this individual. 0:10:42.640 --> 0:10:45.720 The problem is the. 0:10:45.000 --> 0:10:49.359 Language of that proclamation is under the travel ban authority. 0:10:49.400 --> 0:10:51.920 We've talked about this many times on the show. There's 0:10:51.920 --> 0:10:55.959 a statute called IA Immigration Nationality Act, Section two twelve 0:10:56.480 --> 0:11:01.440 that basically gives the president almost unfettered authority to ban 0:11:01.720 --> 0:11:05.440 the entry of anyone the president thinks it's not in 0:11:05.480 --> 0:11:08.720 the interests of the United States to allow their entry. 0:11:09.400 --> 0:11:12.720 But the problem with that statute is it applies to 0:11:12.800 --> 0:11:16.760 banning entry. So the question is if you are a 0:11:16.800 --> 0:11:21.040 foreign student who's now attending Harvard or who's attending Stanford 0:11:21.160 --> 0:11:25.240 or MIT or cal Tech or something, and you now 0:11:25.360 --> 0:11:28.199 want to after you graduate, get an H one B 0:11:28.480 --> 0:11:32.520 because you've been hired by Nvidia or you've been hired 0:11:32.559 --> 0:11:37.840 by Facebook or Intel or Google or something. You've already 0:11:37.960 --> 0:11:40.680 entered the country, so this doesn't apply to you. 0:11:41.400 --> 0:11:41.840 And so the. 0:11:41.920 --> 0:11:45.319 Question is, does everybody know that here, does the administration 0:11:45.559 --> 0:11:48.360 think that those people are going to have to pay 0:11:48.520 --> 0:11:53.120 the one hundred thousand dollars fee or does it know that, Look, 0:11:53.200 --> 0:11:55.600 those people have entered, so they're not subject to one 0:11:55.640 --> 0:12:00.400 hundred thousand fee. If the people already here, it's understood 0:12:00.440 --> 0:12:03.000 and everybody gets it, and it's clear that if the 0:12:03.040 --> 0:12:06.320 people already here as students in US universities are not 0:12:06.720 --> 0:12:09.640 subject to the one hundred thousand feet then this is 0:12:09.679 --> 0:12:13.880 going to apply to a lot fewer people than what 0:12:14.480 --> 0:12:18.680 I think the people who are initially cheering this proposal 0:12:18.760 --> 0:12:22.120 on on the restriction AST side would have thought it's 0:12:22.200 --> 0:12:25.120 going to apply to significantly fewer people and what it 0:12:25.200 --> 0:12:28.960 actually will turn out. The most likely scenario is that 0:12:29.040 --> 0:12:33.040 this will basically only lead to a de facto ban 0:12:33.880 --> 0:12:37.839 on the ability of what are these famous Indian contractors 0:12:38.360 --> 0:12:43.680 like Whipro, Tata, Infoss, etc. Who hire more people from 0:12:43.720 --> 0:12:47.960 India directly than they do from US universities. Those people 0:12:48.000 --> 0:12:50.560 will end up being effectively banned because they will not 0:12:50.920 --> 0:12:54.160 pay one hundred thousand for those workers. And so if 0:12:54.160 --> 0:12:57.600 this survives litigation, that's probably who's going to be banned here, 0:12:58.080 --> 0:12:58.800 leon does. 0:12:58.679 --> 0:13:03.320 The Trump administration have the authority, the statutory authority to 0:13:03.880 --> 0:13:07.680 impose this one hundred thousand dollars fee because isn't the 0:13:07.720 --> 0:13:11.800 fee supposed to cover the costs of processing the application? 0:13:12.760 --> 0:13:15.920 So this is very interesting because there's a very similar 0:13:16.000 --> 0:13:20.320 type of litigation with regard to asylum, where there's a 0:13:20.320 --> 0:13:23.560 whole set of asylum statutes and then there's another one 0:13:23.559 --> 0:13:26.280 that says, yeah, but you can deny asylum for any 0:13:26.360 --> 0:13:29.480 discretionary reason, and that the courts have been fighting this 0:13:29.559 --> 0:13:31.840 out and they're still fighting it out. Which card Trump's 0:13:31.840 --> 0:13:34.520 the other card? Does the eight trump the joker? Does 0:13:34.559 --> 0:13:38.440 the joker trump the eight? Same situation here, you have 0:13:39.000 --> 0:13:43.360 a large exhaustive set of H one B statutory regime 0:13:44.000 --> 0:13:47.959 that's very clear and that you cannot change by regulation 0:13:48.160 --> 0:13:51.200 or presidential proclamation or anything else. So you would think 0:13:51.200 --> 0:13:54.480 that that would win. But you also have another statute, 0:13:54.559 --> 0:13:57.240 which is the IA two twelve F that says that 0:13:57.320 --> 0:14:00.559 the president can ban anyone that the president wants for 0:14:00.840 --> 0:14:05.640 issues of public interest, and can set any conditions upon entry. 0:14:05.320 --> 0:14:07.840 That the president wants. So the president is. 0:14:07.840 --> 0:14:10.360 Saying, well, here's a condition I'm setting upon entry. 0:14:10.720 --> 0:14:13.320 So, for instance, in twenty twenty, twenty twenty. 0:14:13.120 --> 0:14:16.280 One, there actually was a ban on these H one 0:14:16.320 --> 0:14:20.040 be holders under the COVID protocol. Those folks were banned 0:14:20.080 --> 0:14:22.400 and they couldn't come in the country. And so this 0:14:22.560 --> 0:14:24.880 is just the same thing. It's a ban, but rather 0:14:24.920 --> 0:14:27.680 than being a complete and total ban, it's a ban 0:14:28.080 --> 0:14:31.200 which you can circumvent by paying one hundred thousand dollars fee. 0:14:31.720 --> 0:14:35.280 And so when the courts analyze this, which card will 0:14:35.320 --> 0:14:39.600 be the Trump card? Will it be the banning statute 0:14:39.840 --> 0:14:42.200 that says, no matter who you are, if you're any 0:14:42.240 --> 0:14:45.960 foreign national of any kind, the president can set these 0:14:46.240 --> 0:14:49.040 conditions and terms for letting you in the country. Or 0:14:49.080 --> 0:14:52.240 will it be the large H one B statutory scheme 0:14:52.840 --> 0:14:56.400 under the idea that you can't have an exception that 0:14:56.560 --> 0:15:00.040 swallows the entire rule of immigration law so that the 0:15:00.080 --> 0:15:04.000 president can just rewrite the entire immigration code with the 0:15:04.080 --> 0:15:08.160 INA to twelve authority. So that's really the question for 0:15:08.240 --> 0:15:11.880 the course is can the president basically use INA two 0:15:11.960 --> 0:15:16.040 twelve F authority to rewrite the entire immigration code in 0:15:16.080 --> 0:15:17.600 the way the president wants to? 0:15:18.320 --> 0:15:19.960 Or is that overdoing it? 0:15:20.640 --> 0:15:23.680 And when there's a statutory regime like the H one 0:15:23.800 --> 0:15:26.520 B which is very extensive and lays out how many 0:15:26.600 --> 0:15:29.520 days the government has to make a decision, et cetera, 0:15:29.560 --> 0:15:33.120 et cetera, it's very detailed, unlike most statutes, does that 0:15:33.240 --> 0:15:34.680 actually win the debate? 0:15:34.800 --> 0:15:36.120 And we're gonna have to wait and see. 0:15:37.080 --> 0:15:40.840 The President also wants to change the lottery system. Can 0:15:40.880 --> 0:15:42.800 you explain what he's trying. 0:15:42.600 --> 0:15:43.160 To do there? 0:15:43.600 --> 0:15:47.000 Yes, this is very simple. What happens is every March, 0:15:47.880 --> 0:15:50.240 there's four hundred thousand people that want to get an 0:15:50.360 --> 0:15:53.400 H one B visa. There's eighty five thousand slots. They 0:15:53.440 --> 0:15:56.160 have a lottery. It's a blind lottery. Eighty five thousand 0:15:56.240 --> 0:15:59.560 people win three hundred and twenty five thousand loose. They 0:15:59.720 --> 0:16:03.520 want to change that to basically weight the system. 0:16:03.600 --> 0:16:05.480 So what they want to do is they. 0:16:05.360 --> 0:16:07.520 Want to find out what kind of job are you 0:16:07.600 --> 0:16:11.000 coming to do, where are you coming to do the job, 0:16:11.280 --> 0:16:13.200 and how much are you going to be paid? Because 0:16:13.200 --> 0:16:17.240 the Department of Labor has surveys and they'll say, oh, 0:16:17.400 --> 0:16:22.480 the average, the average lawyer in San Francisco makes two 0:16:22.600 --> 0:16:26.000 hundred and fifty thousand dollars a year, but in the 0:16:26.120 --> 0:16:29.680 top twenty five percent, that lawyer will make three hundred 0:16:29.720 --> 0:16:32.840 and fifty thousand, or the bottom twenty five percent that 0:16:32.960 --> 0:16:35.600 lawyer will make one hundred thousand, and so they put 0:16:35.600 --> 0:16:38.560 those as levels. Level four is the top level, Level 0:16:38.560 --> 0:16:40.880 one is the bottom level. So what they want to 0:16:40.880 --> 0:16:44.600 do is to say, if you will agree upfront that 0:16:44.720 --> 0:16:48.040 you will pay your worker the level four wage for 0:16:48.120 --> 0:16:52.800 that occupation in that location, your worker will get four 0:16:53.160 --> 0:16:56.960 lottery balls essentially instead of one. And if you pay 0:16:57.000 --> 0:16:59.800 the level three ways, your worker will get three lottery 0:16:59.800 --> 0:17:03.840 bus And if you pay the level two wage, your 0:17:03.840 --> 0:17:06.800 worker will get two lottery balls. And if you only 0:17:06.800 --> 0:17:09.879 want to pay the initial level one wage, which is 0:17:09.920 --> 0:17:12.920 the bottom twenty five percent, your worker will get one 0:17:13.040 --> 0:17:16.960 lottery ball. And that's how they'll allocate the lottery with 0:17:17.080 --> 0:17:21.080 the hope and the intention that the eighty five thousand 0:17:21.200 --> 0:17:25.160 plus will be allocated towards the highest paid individuals as 0:17:25.160 --> 0:17:29.320 opposed to just a random allocation. Now that obviously there's 0:17:29.359 --> 0:17:32.199 going to be companies who pay level one wages who 0:17:32.240 --> 0:17:34.800 will try to sue and make the same types of 0:17:34.880 --> 0:17:36.840 arguments here again it's going to be the fifty to 0:17:36.880 --> 0:17:42.440 fifty argument. Is there regulatory authority under and here there's 0:17:42.720 --> 0:17:46.160 another catch all provision in what's called IMA Section two 0:17:46.240 --> 0:17:49.840 fourteen that says that in non immigrant visas, which is 0:17:49.880 --> 0:17:53.280 what H one B is, the president by regulation can 0:17:53.320 --> 0:17:55.840 set the terms and conditions. And so that's what the 0:17:55.880 --> 0:17:58.880 president is trying to do here. But there's also, again 0:17:58.960 --> 0:18:04.159 as I indicated, pre this very long statutory authority for 0:18:04.600 --> 0:18:06.840 H one B. What you can do what you can't do, 0:18:07.520 --> 0:18:10.080 which every time somebody tries the thinker with it, they 0:18:10.119 --> 0:18:13.359 lose in court. So the question is who wins there? 0:18:13.440 --> 0:18:16.959 Does the president win under the catch all authority or 0:18:17.160 --> 0:18:20.840 does the companies that are going to sue win because 0:18:20.880 --> 0:18:22.959 they say, no, this has to be done by Congress, 0:18:23.119 --> 0:18:24.600 it cannot be done by regulation. 0:18:25.080 --> 0:18:29.159 Let's turn out to what's happening in immigration courts with bonds. 0:18:29.600 --> 0:18:33.679 For decades, immigration judges have granted bonds to immigrants and 0:18:33.760 --> 0:18:37.280 detention who the court determined would show up for future 0:18:37.320 --> 0:18:41.320 hearings and were not public safety threats. But now the 0:18:41.400 --> 0:18:45.840 Trump administration, specifically the Board of Immigration Appeals, which has 0:18:45.840 --> 0:18:49.520 a majority of Trump appointees on it, has made a 0:18:49.560 --> 0:18:54.680 new policy binding on all immigration judges that they can't 0:18:54.720 --> 0:19:00.320 grant bonds to people who cross the border unlawfully. See 0:19:00.440 --> 0:19:03.560 is being challenged in federal court by civil rights and 0:19:03.720 --> 0:19:07.800 immigration advocacy groups. What do you think their chances are? 0:19:08.119 --> 0:19:11.919 So, here's what's complicated about this case. You have a 0:19:12.080 --> 0:19:18.640 situation where previously, if someone was placed in deportation proceedings 0:19:18.680 --> 0:19:22.200 after being here for some amount of time, then they 0:19:22.240 --> 0:19:24.520 could make an argument that they could be released on 0:19:24.760 --> 0:19:28.480 bond while those proceedings were pending. Because the whole point 0:19:28.520 --> 0:19:32.480 of the immigration system is it's not a criminal system, 0:19:32.640 --> 0:19:36.840 it's a civil system, and so typically the law does 0:19:36.880 --> 0:19:41.560 not favor detention for civil anything. It's detension is meant 0:19:41.560 --> 0:19:45.840 for criminal proceedings. And even most criminals when they're going 0:19:45.840 --> 0:19:49.440 through criminal proceedings have bond that they can either apply 0:19:49.560 --> 0:19:54.359 for or not. Now what's complicated here is the law 0:19:54.960 --> 0:19:57.320 was that Again, like I said, everybody used to be 0:19:57.359 --> 0:20:01.119 able to apply for bond, with two exception if you 0:20:01.160 --> 0:20:04.720 had certain criminal convictions. The Supreme Court has said you're 0:20:04.720 --> 0:20:08.800 not eligible for bond, because the statutory authority says you're not. 0:20:09.520 --> 0:20:13.560 And secondly, if you just arrived into the US, meaning 0:20:13.800 --> 0:20:16.920 you were apprehended at the airport, or you were apprehended 0:20:17.280 --> 0:20:20.480 trying to cross the border right at that moment, then 0:20:20.520 --> 0:20:23.560 the idea was, look, we detain you. We keep you 0:20:23.600 --> 0:20:26.720 in detention at least subject to having enough beds. We 0:20:26.760 --> 0:20:30.000 don't reward this effort across the border by letting you out. 0:20:30.440 --> 0:20:33.080 We keep you in detention until we decide if you 0:20:33.440 --> 0:20:35.840 have a case to remain or if you don't have 0:20:35.840 --> 0:20:38.280 a case to remain, you get booted out. But the 0:20:38.440 --> 0:20:43.600 question is what happens with people who crossed the border illegally, 0:20:44.040 --> 0:20:46.960 but we didn't realize it until five years later, ten 0:20:47.040 --> 0:20:50.800 years later, et cetera. And so historically those people were 0:20:50.840 --> 0:20:54.120 allowed to get bond hearings because the idea was they 0:20:54.119 --> 0:20:57.520 were already here, they were circulating. 0:20:56.840 --> 0:20:57.920 In the United States. 0:20:58.280 --> 0:21:02.280 They presumably hadn't committed any criminal offenses other than the 0:21:02.280 --> 0:21:07.639 initial offense of crossing illegally. But now the administration is saying, look, 0:21:08.520 --> 0:21:11.879 this original thing that says that if we apprehend you 0:21:12.680 --> 0:21:16.040 crossing the border, we have to keep you detained forever, 0:21:16.480 --> 0:21:19.760 while where the proceedings are pending, there's no bond that 0:21:19.840 --> 0:21:22.840 applies whether it took us one minute or whether it 0:21:22.880 --> 0:21:25.159 took us five years to cut you. So that's the 0:21:25.280 --> 0:21:28.879 change in the interpretation. So this doesn't apply to someone 0:21:28.880 --> 0:21:31.400 who came legally and overstated their visa. They can still 0:21:31.400 --> 0:21:34.600 get a bond during their removal hearing. But this applies 0:21:34.640 --> 0:21:39.119 to the person who crossed illegally and they were never apprehended. 0:21:39.640 --> 0:21:41.600 And so this is really going to come down to 0:21:41.840 --> 0:21:46.760 more I think of a constitutional due process argument rather 0:21:46.880 --> 0:21:52.200 than a statutory argument, because the statute, interestingly, I think 0:21:52.240 --> 0:21:55.600 it's fifty to fifty. But what happened was it was 0:21:55.760 --> 0:22:00.000 always interpreted in the way that you get bond because 0:22:00.040 --> 0:22:01.520 people were worried. 0:22:01.160 --> 0:22:03.120 About the fact that how could someone. 0:22:02.840 --> 0:22:07.320 Have been here five years or ten years and circulating 0:22:07.320 --> 0:22:11.120 amongst the United States, not committing any crimes, etc. And 0:22:11.160 --> 0:22:15.200 then for a civil proceeding you would deny them bond, 0:22:15.600 --> 0:22:18.000 when if this were a criminal proceeding, they would be 0:22:18.040 --> 0:22:21.480 eligible for bond. What would be the constitutional authority to 0:22:21.560 --> 0:22:26.400 keep someone mandatorily detained like that, And so they always 0:22:26.400 --> 0:22:30.639 interpreted the statute in a cautious manner to say, no, no, no, 0:22:30.680 --> 0:22:33.000 give those people a bond hearing, and if they are 0:22:33.119 --> 0:22:36.560 dangerous or if some other reason exist, been fine, you 0:22:36.600 --> 0:22:39.000 can deny them bond. But if they're not dangerous, you 0:22:39.080 --> 0:22:40.880 have to let them out because they had already been 0:22:40.920 --> 0:22:44.639 out for such a long time. So ultimately the courts 0:22:44.640 --> 0:22:46.439 are going to have to struggle with not what the 0:22:46.520 --> 0:22:52.480 statute means, because the statute actually probably supports the argument 0:22:53.160 --> 0:22:56.919 that if someone processes the border illegally, whenever they're found, 0:22:57.320 --> 0:23:01.879 you have to detain them, but really the constitutionality of 0:23:01.920 --> 0:23:05.520 that concept, because the issue is that someone's really been 0:23:05.520 --> 0:23:09.200 here for that long. Is it constitutional to have them 0:23:09.240 --> 0:23:13.560 detained with no bonds for a civil proceeding when the 0:23:13.680 --> 0:23:18.040 constitution ab whores any kind of civil detention period, And 0:23:18.119 --> 0:23:20.639 so I think that's going to be the main question here. 0:23:21.040 --> 0:23:24.840 Always a lot of questions and not that many clear 0:23:24.960 --> 0:23:29.119 answers in our immigration law system. Thanks so much, Leon. 0:23:29.920 --> 0:23:33.600 That's Leon Fresco of Holland and Knight, And that's it 0:23:33.680 --> 0:23:36.240