USCIS Adds Restrictions Concerning Computer Programmers Qualifying for H-1B Visas

The H1-B immigration program has been in the news in recent months due to proposals to change it. We also see less sweeping amendments. For instance, in March, U.S. Citizen and Immigration Services (USCIS) released a policy memorandum, addressing the issue of whether computer programmers can qualify for visas.

The paper looked at whether a computer programmer qualifies as a “specialty occupation” for the purposes of H1-B visas. The memo rescinded a previous one in 2000 that said the position should generally be accepted by USCIS as a specialty occupation. Now a USCIS officer should only approve an H-1B petition for a computer programmer if the employer making the application provides enough evidence to demonstrate the job duties meet the requirements of a specialty occupation.

Visa restrictions for computer programmers

Computer programmers face more H-1B visa restrictions

What Constitutes a Specialty Occupation?

A specialty occupation requires two major components:

  • Practical and theoretical application of a body of highly specialized knowledge.
  • A bachelor’s or higher degree in the specific area (or its equivalent) as a minimum to enter the occupation in the United States.

In 2000, USCIS said the position of computer programmer generally qualifies as a specialty occupation making it eligible for an employer to submit a petition for an H1-B visa.

However, the new memo supersedes the older one. It notes computer programmer positions can be entry-level positions. They may only need an associate’s degree or a degree in a nonrelated field. In some cases, a computer programmer may be ineligible for a visa.

The petitioning employer must present evidence that the particular position being requested qualifies as a specialty occupation under the H-1B visa program.

The set of requirements for H-1B visas is complicated. A valid employer-employee relationship is determined by whether the employer in the United States is able to hire, fire, pay, supervise or control the work of the visa holding worker. The sole or majority owner of the petitioning company may establish a valid employer-employee relationship if he or she can show the petitioning entity has a right to control the visa beneficiary’s employment.

At Peek & Toland, PLLC, our visa immigration attorneys can help you with the application process. See more about visas here or call us at (512) 474-4445.

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Does Trump’s ‘Hire American’ Executive Order Impact Immigration Law?

In April, President Donald Trump issued his Hire American immigration order. The order issued on April 18 was called Buy American and Hire American.

Although the executive order does not directly impact immigration law, it could have a longer term impact.

The order mandates a number of executive agencies to propose new rules and issue new guidance “to protect the interests of United States workers in the administration of our immigration system.”

Trump's Hire American policy may impact immigration law

It also provides more details of the concepts of buying and hiring American.

The Definition of Hire American in Trump’s Executive Orders

The order is intended to create higher wages and boost employment rates for workers in the United States. It claims to protect their economic interests. It says the executive branch must rigorously enforce and administer the laws relating to entry into the United States of workers from foreign countries, including section 212(a)(5) of the Immigration and the Nationality Act.

Under the order agencies must issue guidance on hiring and buying American within 60 days of the date of the order. The officials and agencies asked to collaborate on guidance are.

  • The Secretary of Labor;
  • The United States Trade Representative;
  • The Secretary of Commerce;
  • The Director of the Office of Management and Budget;
  • The Federal Acquisition Regulatory Council.

Within 150 days of the date of this order, the United States Trade Representative and the Secretary of Commerce will assess the impacts of all United States free trade agreements and the World Trade Organization Agreement on what the government should buy and the operation of Buy American Laws. This includes their impacts on the implementation of domestic procurement policies.

Trumps’ executive order is relevant from the immigration standpoint due to the review of H-1B visas.

The order calls for a review of these skilled worker visas which allow 85,000 people from abroad – mostly computer workers – to apply.

In a recent article, The New Yorker branded Trump’s Buy American and Hire American executive order as hollow and lacking in real provisions.

It said the rhetorical significance of the H-1B provisions were more important than the actual provisions.

The unemployment rate for computer and mathematical occupations is just over 2 percent, meaning there is little prospect of American workers being deprived of a job. The number of jobs in these fields is growing by about 12 percent every year.

The executive order may force firms to pay more for H-1B visas and result in a crackdown on outsourcing, we point out on our website.

However, for now the questions outweigh the certainties about the immigration order. If you require the services of an Austin immigration lawyer, please call Peek & Toland, PLLC at (512) 474-4445.

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H1-B Petitions Fall But Still Exceed the Cap

The cap for H1-B petitions was reached again quickly in April. However, U.S. Citizenship and Immigration Services (USCIS) saw petitions fall to the lowest figure in five years.

The cap for skilled worker visas was reached on April 7 for the fiscal year 2018. USCIS then completed the H1-B lottery selection process on April 11.

USCIS said about 199,000 petitions were filed this year. It was the lowest number filed in five years. However, immigration services did not provide a breakdown of how many of the petitions were eligible for the advanced-degree exemption, known as the “master’s cap.”

USCIS has started to send its receipt notices by regular mail. There is not an email option in these cases.

H-1B visa petitions fell

H-1b Visa petitions fell this year

Applicants who are not selected in the lottery will be returned by mail along with the uncashed filing fee checks to the employer who was making the application.

Why Did Petitions Fall in April 2017?

The uncertainty about the future of the H-1B visa may have led to the reduction in applications this year.

Betsy Lawrence, the director of government relations for the American Immigration Lawyers Association told CNN.

“In an atmosphere of uncertainty, I suppose it is not surprising that fewer petitions were filed this year. Some IT firms in India announced they were reducing the number of lower-experienced workers they were filing petitions for, meaning more of those jobs will stay in India rather than being relocated to the U.S.”

At the start of the year, the government issued reminders that it is paying close attention to the future of the visa. USCIS promised a “more targeted approach” in visiting workplaces of H-1B petitioners. The Justice Department warned it was cautioning employers who are petitioning for H-1B visas not to discriminate against American workers. CNN reported the moves were intended to cripple outsourcing firms.

Further doubt was cast on the visa when President Donald Trump issued an executive order in April. Read more about the order on our website.

Although the volume of H-1B petitions for the 2018 financial year fell, the number is still more than double the annual allotment of 85,000, when the master’s cap is included. USCIS has a long backlog so applicants may have to wait several months before USCIS issues requests for evidence (RFEs) or approval notices.

Applying for H-1B visas is a difficult and time-consuming process. It makes sense to hire an experienced Austin immigration law firm. Please call us at (512) 474-4445.

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Why Federal Detainer Requests Violate the Constitutional Right to Due Process

Federal immigration detainer requests have been in the news recently as President Donald Trump moves forward with his agenda to enforce federal laws related to immigrants. But while local governments are under pressure to comply, there are strong arguments that federal detainer requests violate the constitutional right to due process.

By not complying with federal detainer requests, local governments risk being labeled as ‘sanctuary cities’ and losing federal money.

ICE detainers, or “immigration holds” are one of the main tools U.S. Immigration and Customs Enforcement (ICE) uses to apprehend people who are picked up by local and state law enforcement agencies and put them into the federal deportation system.

Detainer requests may violate the constitution

ICE detainer requests may not be constitutional

A detainer request is a written request to a local jail or other law enforcement agency to keep an individual for an additional 48 hours after their scheduled release date. This gives ICE agents extra time to make a decision whether to take the individual into federal custody for removal proceedings.

The American Civil Liberties Union is among the organizations warning the use of detainers to imprison people without due process raises constitutional concerns. In many cases, these individuals are held without any charges pending or probable cause of any violation.

In 2014, the Department of Homeland Security acknowledged ICE detainer requests had been held to be contrary to the Fourth Amendment.

The legal concerns have resulted in some jurisdictions saying they will not comply with detainer requests. Travis County is one of the most high-profile jurisdictions to refuse to comply.

A report by Virginia’s TV station found many jurisdictions in the Commonwealth felt unable to comply with the policy.

Ken Stolle, the sheriff of Virginia Beach, said ICE is notified when a non-citizen is picked up by law enforcement and given notice of the inmate’s release date.

Stolle said more inmates are being picked up under the Trump administration but he won’t hold inmates past their release dates.

Gabe Morgan, the sheriff of nearby Newport News said the system would be fixed if detainer requests were signed by a judge or a magistrate like every other warrant.

Last year, a federal district court in the Northern District of Illinois ruled the practice of issuing immigration detainers by ICE was invalid.

The court ruled detainers violate federal law. It said they exceed the government’s warrantless arrest authority. The justices said federal immigration authorities require warrant if they want to take custody of an immigrant held in a local jurisdiction.

In Texas, Governor Greg Abbott has adopted a tough approach, signing legislation to penalize sanctuary cities and threatening to remove sheriffs who refuse to honor detainer requests.

The legality of detainer requests is a pressing concern to us as Austin immigration lawyers. If you need the services of a family immigration lawyer call us at (512) 474-4445.

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Mexican Arrivals Fall According to Study of Unauthorized Immigrants

Unauthorized immigrants make for lurid headlines but the idea of illegal immigration spiraling out of control is at odds with the figures, according to Pew Research Center estimates. The study found the number of unauthorized immigrants in 2015 was lower than at the end of the recession. Numbers of Mexican arrivals are falling and they may not be the majority soon.

The Pew Center research found the unauthorized immigrant population of the United States was 11.1 million in 2014. It stabilized since the end of the Great Recession. The number of immigrants from Mexico declined. However, the researchers noted an increase in illegal immigration from some other countries.

The number of undocumented immigrants from Mexico has steadily declined since 2007. However, Mexicans still accounted for 52 percent of unlawful arrivals. Undocumented immigrants from Central America, Asia, and sub-Saharan Africa increased between 2009 and 2014.

Mexican arrivals to the United States fall

Mexican arrivals to the United States fall

The center says Mexicans may now no longer make up the majority of unauthorized immigrants in the United States. Researchers estimate arrivals from Mexico made up half of unauthorized immigrants in 2016. This would be the first time in a decade that Mexican immigrants did not account for a clear majority of the undocumented population. This is part of a longer-term trend. Their numbers fell in recent years. In 2015, there were 5.6 million unauthorized immigrants from Mexico in 2015 and 2016, a fall from 6.4 million in 2009.

The study said most U.S. states saw no significant change in the size of their unauthorized immigrant populations from 2009 to 2014. Falling numbers of Mexican immigrants were a key factor in seven states where the undocumented immigrant population fell.

The Pew Center stated there were 11 million unauthorized immigrants in the United States in 2015. That figure represented a small but statistically significant fall from the Center’s estimate of 11.3 million for 2009.

Unauthorized immigrants represented 3.4 percent of the total population of the United States in 2015. The number peaked in 2007 at 12.2 million, when the group made up 4 percent of the population of the United States.

Increased stability and economic improvements in Mexico are seen as factors related to the fall in people heading north. At the same time, poverty and gang violence rose in some Central American countries and we have seen a rise in unaccompanied children and young families arriving in the United States from countries like El Salvador, Guatemala, and Honduras.

If you are an unauthorized immigrant, you are likely to be facing considerable pressures and may be concerned about possible deportation. Call our Austin cancellation of removal lawyers for help at (512) 474-4445.

Posted in Immigration

What The Ending of the DACA Program Means to Dreamers

Immigrants brought to the United States as children endured a rollercoaster ride in recent months as the future of the DACA program was debated. Although President Trump gave a safeguard about the program four months earlier, he suddenly announced the program would be rescinded this month.

Attorney General Jeff Sessions outlined the decision to end DACA at a press conference at the Justice Department on September 5. He argued that the program, originally created by President Obama, is unconstitutional and was an executive branch overreach.

The Obama administration announced the Deferred Action for Childhood Arrivals program in 2012, we noted on our website.

The DACA program includes almost 790,000 recipients. Its goal is to permit young people, most of them who lived the majority of their lives in the US, to work and contribute to their communities without fear of deportation.

Under the program, undocumented immigrants under 30, known as “Dreamers” gain the temporary right to live, work and seek education in the United States provided they pass background checks. They do not receive citizenship or legal status.

Four months ago, President Trump indicated the DACA program was safe. However, in August reports surfaced that he was considering scrapping it, noted CNN.

The Department of Homeland Security is providing a six-month window to consider pending requests, reported CBS. It will give Congress the chance to pass a legislative alternative to DACA. This means the program will end at different times for different recipients, expiring on a rolling basis.

Outlining the DACA pogram

THe DACA program is seen as part of the American Dream

For Dreamers, the decision comes as a bitter blow. People who have been in the United States for many years, often since they were young children, face losing the right to contribute to their communities and even the possibility of deportation to their birth nations.

However, there remains uncertainty about what will happen in Congress and the decision will impact different DACA recipients in various ways. The issue took a new twist this week when Trump was reported to be hashing out a DACA deal with Democratic leaders on Capitol Hill that might save aspects of the program.

The main scenarios are as follows according to the CBS article.

  • Initial DACA requests and applications for Employment Authorization Documents (EADs) received as of Sept. 5, the date of the announcement will be adjudicated by U.S. Citizenship and Immigration Services (USCIS) on a case-by-case basis.
  • USCIS will automatically reject all initial DACA requests and associated EADs received after Sept. 5.
  • USCIS will adjudicate requests for renewing DACA benefits and associated applications for EADs on an individual, case-by-case basis if received before Sept. 5.
  • Dreamers whose DACA status expires between Sept. 5, 2017, and March 5, 2018, will be eligible for adjudication of renewal requests, but only if documentation is received by Oct. 5, 2017.
  • Individuals whose DACA protection expires on March 6, 2018, or a following date who have not already submitted a renewal application, would be subject to deportation on March 6, 2018, or a later date.
  • USCIS will continue to process lost, stolen or destroyed EADs, to give Dreamers replacement documents for the remainder of the time that they’re valid.

USCIS will close all pending applications for Advance Parole associated with the DACA program. This is a permit allowing a non-citizen to reenter the United States after traveling abroad.

USCIS will honor the validity period of a previously approved Advance Parole. But if a person doesn’t have a previously approved parole application and travels outside the country, his or her departure would automatically terminate their deferred action under DACA.  Customs and Border Protection are unlikely to allow them to re-enter the U.S.

A wide range of legislators, non-profits and other agencies urged Trump not to end DACA, reported USA Today.

In a Facebook post , former president Barack Obama branded Trump’s choice to end the program “cruel,” “wrong” and contrary to common sense.

Trump’s initial stance to retain the DACA program met opposition from Republican states, spearheaded by Texas.

Texas Attorney General Ken Paxton, along with nine other state attorneys, issued an ultimatum to the Trump administration in July, threatening to take legal action. Paxton referred to the failure of the Obama administration to extend DACA after the former president’s executive orders were deadlocked at the U.S. Supreme Court. Paxton wrote:

“The courts blocked DAPA and Expanded DACA from going into effect, holding that the Executive Branch does not have the unilateral power to confer lawful presence and work authorization on unlawfully present aliens simply because the Executive chooses not to remove them.”

The action by Texas put additional pressure on the president to announce a new policy on DACA before a potential court challenge.

Government officials say from August and December, 201,678 people are set to have their DACA and associated EADs expire.  Of this group, 55,258 have requests for renewal pending with USCIS. Next year, more than 275,000 will see their DACA and EADs expire and more than 300,000 in 2019.

Although the government has reiterated its policy that anyone who is illegally in the United States could be deported, DHS officials made it clear criminals who are undocumented will still be the priority for removal.

These are difficult times for the so-called Dreamers in Texas and elsewhere. However, there is still an element of uncertainty about what will happen in Congress. If you need help with an issue related to the DACA program or another issue, please call our experienced Austin family immigration attorneys at (512) 474-4445.

Posted in Deferred Action, Immigration Reform

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EB-5 Regional Centers Are Subject to Inspections

The EB-5 regional program brings significant investment into the US from overseas. However, critics say it’s open to abuse.  Now, under a new program, EB-5 regional centers are receiving more regular site visits.

The visits are a result of United States Citizenship and Immigration Services (USCIS) seeking to make sure regional centers are fulfilling their purposes under the EB-5 program.

USCIS closed some regional centers in 2016 and site visits have now become increasingly important to make sure the centers are in compliance with the EB-5 program.

The Fraud Detection and National Security (FDNS) division of USCIS has also started to carry out site visits for EB-5 projects.

EB-5 regional centers are subject to inspection

EB=5 regional centers are subject to inspection

There are some inherent pitfalls in these visits for centers and it’s prudent to ensure an immigration attorney is present.

It’s vital that sites subject to inspections also appoint a trained, designated contact as well as a backup contact to engage FDNS on arrival.

The point of contact is usually the principal of the regional center or the commercial enterprise. He or she should be properly trained in the protocols of site visits and be armed with key information related to the project.

Sites should draw up a protocol to help anybody who is likely to come into contact with an FDNS agent including front desk staff.

Many people at centers are uncertain about these visits because they only started recently.

The site visits are not confined to businesses affiliated to regional centers alone. Any EB-5 direct investments, whether they are ‘stand-alone’ or non-regional center affiliated “collectives will be checked through the process of an in-person visit and an inspection. USCIS sets out the procedure for the compliance visits on its website.

Key Tasks of the Inspection Team for EB-5 Regional Center Visits

The work of the inspection team includes:

  • Reviewing applications, certifications, and other records;
  • Looking around the site;
  • Reviewing public records and pertinent information on the regional center;
  • Verifying relevant information such as supporting documents that are with applications as well as annual certifications
  • Interviewing site personnel to confirm all the supporting information provided with applications and certifications is correct.

The EB-5 program allows overseas investors who bring at least $1 million into the United States or $500,000 if the money is invested in high-unemployment or rural areas, to gain a green card.

However, high profile scandals in recent years have made headlines. In Vermont, a ski resort was accused of misusing more than $200 million in investor funds in a Ponzi scheme.

As experienced Austin, Texas, visa immigration lawyers, we can provide help over compliance issues. Contact us via this link.

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New Innovation Centers Are Planned in US Amid H-1B Visa Review

New restrictions on skilled foreign workers coming to the United States are likely to put the squeeze on H-1B visas. But that has not stopped an Indian-based IT firm from setting up new innovation centers in the United States and planning to hire 10,000 workers.

Vishal Sikka, the Infosys chief executive recently said his company is committed to hiring 10,000 American technology workers over the next two years.

He said Infosys is making a three-decade-long “investment across the US.”

Infosys has pledged to seek out experienced tech professionals and recent graduates from universities and community colleges. It is looking to staff four new hubs in the United States.

The company says it will focus on innovation and technology, as well as serving client in manufacturing, financial services, retail, healthcare, and energy.  The initial hub is slated to open in Indiana in August. Infosys says it should create 2,000 jobs by 2021.

Amid H-1B visa review, innovation centers are planned

Innovation centers are planned

Despite the size of the potential job creation, Indian firms like Infosys and Tata Consultancy Services are under fire in the U.S. The Trump administration has accused them of bringing foreign workers from overseas on temporary H-1B visas and undercutting local jobs.

These IT firms rely on the H-1B visa program. Trump recently ordered federal agencies to hold a wide-ranging review of the program in an executive order. A report in said Indian IT firms have been accused of using the visa to send engineers from India to the US. They are paid less than their American counterparts, allowing the firms to keep down their operating costs, the report stated.

Although companies like Infosys have been accused of taking bulk visas, India’s IT industry body Nasscom claimed in a recent statement that Tata and Infosys – the country’s biggest IT companies – received 7,504 approved H-1B visas in 2015. That was just 8.8 percent of the total such visas given out.

In April, we detailed Trump’s executive order on H-1B visas. Companies are likely to end up paying more for skilled worker visas and a crackdown is likely on off-sourcing companies.

However, the executive order was short on details and leaves it up to the heads of departments to draw up recommendations to implement the order.

Trump has pledged to end the present system to allocate the visas which is a random lottery.

If you are seeking to use the H-1B visa program to bring a skilled worker over from another country, you should be aware of the potential pitfalls. It’s likely to become harder to apply for these visas in future. Contract Peek & Toland, PLLC for assistance at (512) 474-4445.


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Temporary Visa Crackdown Threatens U.S. Resorts

The Trump administration promised a crackdown on a wide range of visas including temporary visas for overseas workers. However, many hotels and other tourist facilities have been left facing an acute shortage of workers due to the temporary visa crackdown.

Those impacted include hotel owners, restaurateurs, and landscapers around the United States.

The San Francisco Chronicle reported these businesses are struggling to find seasonal help and being forced to turn down business in some cases because the government has clamped down on visas for temporary foreign workers. Critics say lowly paid jobs that attract foreign workers undercut local wages.

Temporary visa crackdown hits hotels

Hotels may be hit in temporary visa crackdown

The visas in question are H-2B temporary visas, a category for workers holding down seasonal, non-agricultural jobs. We outline these here on our website.

In May, The Chronicle reported the United States caps the number of H-2B visas at 66,000 each fiscal year.

Some of the workers in the hotel and leisure industry return year after year. Congress allowed them to do so in the past without being counted toward the limit. However, no exception was passed for 2017 at the end of 2016, after the presidential election. A temporary visa crackdown might prove serious.

Lawmakers outlined a spending bill that would allow the homeland security secretary to boost the number of H-2B visas in the present fiscal year to almost 130,000.

But even if the measure passes, it will take weeks for the visas to be processed. Many of the visas would not arrive in time for Memorial Day and perhaps even not until after the Fourth of July, the report stated.

Foreign workers are in demand for jobs in the hospitality industry like housekeepers, cooks, and dishwashers because the positions are often low wage and Americans are not willing to do them.

President Trump has hired seasonal workers at his Mar-a-Lago resort by using the H-2B visa program.

Each visa costs at least $1,000 in government fees, travel, and other expenses. The employer foots this bill.

We outline the types of visa used in the hospitality industry here. The tourism industry also makes use of J-1 visas for students and L visas for managers.

Some areas have been hard hit by the shortage of temporary workers.

The San Francisco Chronicle quoted Sarah Mace Diment, the manager of the Beachmre Inn Ogunquit, Maine. She was forced to reduce the number of rooms available during spring vacation week in April. She cited a shortage of eight housekeepers, who are paid $10 to $12.50 an hour. None of her H-2B visa requests were granted, she said.

If you are seeking to hire foreign workers on H-2B visas, there are certain rules to follow. For example, employers must advertise for U.S. workers first. An Austin immigration lawyer can help you. Please call Peek & Toland, PLLC at <a href=\"5124744445\">(512) 474-4445</a>.

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Border Walls Runs Up Against Eminent Domain Issues in Texas

The building of a wall between the United States and Mexico is a key part of President Donald Trump’s immigration strategy.

However, the building of the wall in Texas is complicated by the fact that many of the parcels of land it would cross are privately owned.

Recently, the Texas Tribune reported on how a group of Texas lawyers launched a campaign to make sure property owners are properly compensated if the Trump administration opts to seize land for the wall.

The group is called the Texas Civil Rights Project. It says it will focus its work to make sure lower-income landowners who may lack the expertise to fight the complex imminent domain process don’t lose out.

Eminent domain issues are raised over the border wall

Border wall faces eminent domain issues

The U.S. Department of Homeland Security is expected to progress plans to build the wall over the next few months.

However, the government has backtracked on Trump’s original plan for a coast to coast barrier.

Homeland Security Secretary John Kelly said a coast-to-coast barrier isn’t likely to happen. The government will instead change its focus to a combination of technology and a physical wall.

The Homeland Security Department said in a memo that the Texas’ Rio Grande Valley area would likely be home to nearly 36 miles of new construction when the building phase of the wall begins.

Landowners in the Texas border areas have recent experience of fighting the federal government over eminent domain issues.

In 2006, under the federal Secure Fence Act, the government said it would build about 700 miles of a steel barrier on the border with Mexico. Hundreds of lawsuits were filed by Rio Grande Valley property owners.

They sought compensation for land varying in size from parcels of land varying in size from jus an acre to several hundred. A few of those lawsuits are still pending. Those bringing the actions include landowners, local irrigation districts, and estate managers.

Although Trump promised to build a “great wall” during the election campaign to reduce the influx of unauthorized immigrants from Mexico, there are question marks over Congressional funding.

In May, the federal government said it will narrow the list of companies bidding to build prototypes of a U.S.-Mexico border wall, USA Today reported.

However, some bidders are skeptical about whether a 1,900-mile border will be built.

Michael Hari whose Illinois-based company, Crisis Resolution Security Services has submitted a design said it has not been a serious process from the outset. He said:

“Right from the get-go there were conflicts, there was not enough time given to it, to develop a reasonable process that would result in a wall getting built.”

The Trump administration’s tough stance on immigration appears to be reducing illegal immigration without a wall.

At Peek & Toland, PLLC we help many immigrants to establish a foothold in the United States. Please contact us for a consultation at (512) 474-4445.


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