Knowledge Library EXPERT SPOTLIGHT—Immigration policy should be ‘nuanced for fairness,’ says attorney Charles M. Miller
Thursday, August 24, 2017

EXPERT SPOTLIGHT—Immigration policy should be ‘nuanced for fairness,’ says attorney Charles M. Miller

The Trump Administration’s immigration policies should "respect our immigrant heritage and the constitutional rights of foreigners who live in the U.S." notes Charles M. Miller, one of the authors of Wolters Kluwer’s Immigration Law in the Workplace. Mr. Miller helped to establish the immigration law specialty in the United States. After serving as General Attorney for the Immigration and Naturalization Service, Mr. Miller left government service to start the Miller Law Offices, Studio City, California, a U.S. News and World Report top-tier immigration law firm. Mr. Miller wrote the treatise, together with co-authors Marcine A. Seid and S. Christopher Stowe, Jr., in order to provide employers with the latest information concerning the Department of Homeland Security's worksite enforcement program, as well as other immigration-related issues that affect employers on a daily basis.

Miller spoke with Wolters Kluwer about his deep knowledge of immigration law, which is getting a higher profile under the Trump Administration’s recent activity.

Tell me about some of your professional triumphs: a big court win, or an instance where your advice averted a potential disaster.

Immigration law is deeply personal to the foreigners who seek a new home in the U.S. Success is measured on a case-by-case basis. So we celebrate saving a medical researcher and his physician wife from an abrupt departure and arranging for their last-minute green cards. We are glad when we protect a registered nurse from being removed and win her discretionary waiver relief that put her on the path to U.S. citizenship. Success means working with the State Department to reach a policy of opening consular processing to refugees from countries without a U.S. embassy. Success is the recognition of religious workers as legitimate employees. It's representing the transgendered U.S. citizen wife in her successful immigrant petition for her husband. It's reuniting families.

Future success will be measured when the political pendulum swings back to a humane, smart immigration law that protects the American worker while allowing immigrants the ability to make a career and a home in the U.S.

What do you find most enjoyable about the practice of immigration law?

It makes a difference in peoples’ lives. I am proud to represent responsible corporate clients. Their foreign employees are part of their corporate families. These people make positive contributions to their employer, their communities and to our country. They deserve to have a smooth immigration process.

I particularly enjoy my current role in our law firm with my wife Terri now that our sons Sam and Seth have joined us.

What do you find most frustrating or tedious?

Most frustrating is the controversy about H1-B specialty workers [H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation, which requires theoretical and practical application of a body of specialized knowledge, along with at least a Bachelor's degree or its equivalent.] There are a very limited number of H-1B visa numbers available, and the category is always over-subscribed. There are only 65,000 available annually nationwide. While the system can be misused by some employers, we feel that the H-1B is already highly regulated. Our fear is that overregulation could further restrict the employment of foreign professionals, which would be a disaster to our IT, healthcare, and other industries.

Our firm handles the H1-B process for our clients. For specific needs, we work with our clients to plan an employer strategy to help the client get the workers it needs

What’s the most unusual aspect of immigration law you’ve confronted?

Travel bans are usually over-broad and sweep up innocent persons in their net. For example, in the 1980s it was surreal to have U.S. governmental action against expatriate Iranians, the very persons who had requested the protection of the U.S. government.

In 1979 the Iranian Revolutionary Guard seized the U.S. Embassy, took consular officers hostage and seized the visa issuance stamps and equipment. For a period of time Iranian travel to the U.S. was halted. While the U.S.-Iranian tensions were high, the U.S. Iranian community was targeted for continuing government scrutiny. President Carter signed an Executive Order requiring Iranian students then living in the U.S. to report to an immigration office.

While the U.S. government has continually designated Iran as a state sponsor of terrorism since 1984, there is a large, vibrant, patriotic U.S. expatriate Iranian community. Many of those persons began as students and had well-founded fears of persecution from the Iranian government as religious minorities and political dissidents. Asylum cases were initially denied and then reopened as the political situation for minorities and dissidents within Iran deteriorated.

Today in the U.S., the children of those refugees are entrepreneurs, doctors, scientists and lawyers—productive members of our communities. America is better off because they came here and stayed. I am proud to have played a part in that process.

How has the day-to-day practice of immigration law changed since you started?

In the 1990s, the system changed. First, the Immigration Act of 1990 amended the Immigration and Nationality Act and made it easier for professionals to emigrate here (this was real immigration reform). But by 1996, Congress implemented an "unlawful presence bar" to punish aliens who spent time in the U.S. unlawfully—that is, without a visa, green card, or other official permission from the U.S. immigration authorities, by preventing them from returning to the U.S. for three years or ten years, depending on the length of their unlawful stay in the U.S. Immigrants must remain in legal status or there will be a three-year or ten-year bar from re-entering the U.S. This bar still interferes with immigration today because the existing law is so intricate and unforgiving for even the most law-abiding of foreigners.

I always advise employers and other practitioners that deadlines are important—they must maintain a database of reminders in order to guard against violating the law because of missed deadlines. Our firm uses an intricate (and proprietary) database for this purpose.

What has been the effect of the focus on immigration policy over the last few years, and what do you think can be expected now under the Trump administration?

Immigration restrictions that are not based on facts will not succeed.

President Trump’s Executive Order to Buy American, Hire American was more of a political statement than a well-defined policy. [On April 18, President Donald Trump issued an executive order declaring it the policy of the United States to "buy American and hire American." This means that it is officially the policy of the executive branch "to maximize, consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States." It also means that it is now the policy of the executive branch to "rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act."]

President Trump seems convinced that there are many abuses in H1-B visa classification and wants to protect workers from foreign competition, but this process already is highly regulated. It is important for American employers to be able to hire the best and brightest to continue our national edge in technology. Based on agency implementation of the executive order, H-1B and L-1 employers will have agency site visits, so they need to be sure that their files and records are in order to prepare for the investigators. [On June 6, Secretary of Labor Alexander Acosta announced actions aimed at increasing protections for U.S. workers while more aggressively confronting entities committing visa program fraud and abuse. The move came after "a thorough review of the U.S. Department of Labor’s foreign worker visa programs."]

Immigration compliance responsibilities will continue regardless of the administration that is in power. Congress will ultimately need to pass meaningful bipartisan immigration reform that addresses the concerns of all of the national stakeholders. But treatment under the U.S. immigration laws needs to be nuanced for fairness.

What would you do if you weren’t practicing law?

Writing non-fiction books based on actual cases or joining the barbeque competition circuit.

Charles Miller has served as Co-Director of the Stanford Law School Worksite Immigration Compliance Symposium. He previously served on the California State Bar's first Specialty Advisory Commission, both as member and chairman. He has served as a member of the California Board of Legal Specialization administering the California State Bar's legal specialties. Mr. Miller has been the recipient of the American Immigration Lawyers Association's Jack Wasserman Memorial Award for excellence in immigration litigation. He has served as the Co-Chair of the AILA's National Verification and Documentation Liaison Committee, AILA's Board of Directors, and as its Southern California Chapter Chair. Mr. Miller has been favorably mentioned in Best Lawyers in America since 1991.

Mr. Miller founded the Miller Law Offices in 1979 after serving as a General Attorney for the legacy U.S. Immigration and Naturalization Service. He is a California State Bar Certified Immigration Law Specialist and helped to establish immigration law as a field of legal specialization in California, serving the State Bar’s Specialty Advisory Commission both as chairman and member.

Mr. Miller was recently named one of the 2017 "Lawyers of the Year" in Immigration Law by Best Lawyers Business Edition and has also been honored by Best Lawyers in America (from 1991 through the present) and by Super Lawyers. He has a Martindale-Hubbell Peer Review Rating of AV Preeminent® (5.0), representing the highest level of professional excellence. Together with firm partner Terri Senesac Miller, Mr. Miller has received the Jack Wasserman Memorial Award from the American Immigration Lawyers Association (AILA). His past service to AILA includes membership on its Board of Directors, Southern California Chapter Chair, chair of its Visa Office Liaison Committee, and chair of its Compliance Auditing Standards Task Force. He has served as the co-chair of AILA’s national Verification and Worksite Enforcement Liaison Committee.

Mr. Miller has written and spoken nationally on cutting-edge issues in immigration law.

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