TIME: “US and Australia Might Be Close to a Deal on Refugee Swap”

The United States and Australia are arranging a deal to “swap” refugees from each country’s extraterritorial refugee centers. Australia has approximately 1,800 asylum seekers in camps on the islands of Nauru and Papua New Guinea, many of whom have fled conflict or extreme economic poverty from countries including Pakistan, Iraq, Iran, Sri Lanka, and Afghanistan. Critics have labeled these camps Australia’s “Guantanamo Bay,” and alleged that refugees have been mistreated in the camps. Australia announced at President Barack Obama’s global migration summit that it would exchange their own migrants for those in US-backed detention camps in Costa Rica.

The resettlement process will be administered with the United Nations refugee agency UNHCR, and US authorities will conduct their own assessment and review of refugees along with security checks. The need to resettle these refugees has become a priority for the Australian government because of Papua New Guinea’s order to close the Australian-run detention center and ruling stating that the refugees were held there illegally. Australia has a strict policy to never settle asylum seekers who arrive by sea, in order to deter human smugglers bringing over refugees to Australia by boat, typically from Indonesian ports. The refugee exchange with the US will be a way around this law, and will allow the government to deal with the refugees at these detention centers and potentially close them.   

Australian Prime Minister Malcolm Turnbull says that the responsibility to “stop the boats” has fallen to his government, and that this refugee swap wouldn’t be repeated or extended to asylum seekers not already in camps, although the Australian government has previously arranged with other foreign governments to accept asylum seekers. “Our priority is the resettlement of women, children and families. This will be an orderly process [and] it will not be rushed,” Turnbull says in the Wall Street Journal. 

UN Special Rapporteur on the Human Rights of Migrants Francois Crepeau, who says that refugees at the detention centers on Nauru have experienced cruel, inhuman, and degrading treatment or punishment, welcomes the refugee exchange with the US.  “We don’t know how it’s going to develop, but I certainly hope that it develops in a way that offers refugees and asylum seekers solutions, and if it succeeds at emptying Manus and Nauru, I think this will be a great achievement,” Crepeau tells reporters in Canberra, Australia.

The refugee agreement could potentially be opposed by President-elect Donald Trump, who during his campaign called for tighter immigration controls and spoke of banning Muslims from immigrating to the US. Mark Krikorian, executive director of the anti-immigration Center for Immigration Studies, predicts a "firestorm" of opposition from anti-immigration activists regarding the refugee exchange. "It's so difficult to justify," he tells Fairfax Media. "I don't expect any Republicans will defend it. I can't see a lot of Democrats defending it either. My sense is that when the word gets out on this, it'll be dead on arrival." Other governmental figures are more optimistic the deal will go through. Senior Australian government minister Christopher Pyne believes the deal can be finalized during Obama’s term. "There certainly is time—two and a half months is plenty of time—and if that's the case, it will be a great achievement for the Turnbull government," Pyne tells Nine Network television.

Regarding the pending deal, Amnesty International says in a statement that it is concerned about the lack of information provided by the Australian government around the timeline of the deal as the exact numbers of people who will be given the opportunity to settle in the US.

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

US Citizenship & Immigration Services (USCIS) has published a final rule to “modernize and improve” certain aspects of some employment-based nonimmigrant and immigrant visa programs. Proposed earlier this year, USCIS says these amended regulations will better “enable US employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.” The new rule is scheduled to go into effect on January 17, 2017. We will be discussing these changes, some of which are quite complex, in depth in a later post. In the meantime, however, here is a summary of the highlights.

The new rule will:

• Establish two grace periods of up to ten days each for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide “a reasonable amount of time” for them to prepare to begin employment in the US and afterwards to depart the country or take actions to extend, change, or otherwise maintain lawful status. Similar grace periods are currently available to individuals with H-1B, O, and P classification, and extending a similar grace period will promote “stability and flexibility” for highly-skilled workers;
• Establish a grace period available to certain individuals (and their dependents) in high-skilled nonimmigrant classifications, including H-1B, H-1B1, O-1, E-1, E-2, E-3, L-1, and TN classifications, for up to sixty consecutive days during each period of petition validity (or other authorized validity period) when their work ceases. This grace period will enable these nonimmigrant workers to seek new nonimmigrant employment and extend or change their nonimmigrant status while remaining in the US;
• Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence;
• Streamline the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status, increase job portability, and provide stability and flexibility for workers to better enable US employers to employ and retain highly-skilled workers who are beneficiaries of an employment-based immigrant visa (Form I-140) petitions, also while allowing these workers to accept promotions, change positions within the same company, change employers, and seek other employment;
• Improve job portability for certain approved I-140 beneficiaries by maintaining a petition’s validity under certain circumstances “despite an employer’s withdrawal of the approved petition or the termination of the employer’s business."
• Allow certain high-skilled individuals in the US under E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization if:
  • They are the principal beneficiaries of an approved I-140 petition;
  • An immigrant visa is not authorized for issuance for their priority date; and
  • They can demonstrate that there are “compelling circumstances” to justify DHS issuing an EAD card in its discretion;
• Clarify various policies and procedures related to the adjudication of H-1B petitions, including providing H-1B status beyond the standard six year period of admission, determining cap exemptions, counting workers under the H-1B cap, portability, licensure requirements, and protections for whistleblowers; and
• Clarify and improve DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers in order to enhance USCIS’ consistency in adjudication.

Importantly, the final rule will automatically extend the employment authorization and validity of employment authorization documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs, sure to be welcome news for EAD holders. Closely-related, the rule would also eliminate the regulatory provision that requires USCIS to adjudicate the application for employment application within ninety days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the ninety-day timeframe. As mentioned, a more thorough and in-depth review of these changes are forthcoming on this blog. Stay tuned.

A Very Autumnal London

Near Cavendish Square, London.

After the excitement of the American election season, I traveled to London (which is still dealing with the aftershocks of our own unexpected pro-Brexit vote) for work meetings. Today I enjoyed a very autumnal walk around Cavendish Square in the West End of London (okay, okay, it's true, I was just looking for the Pret). Cavendish Square, among other notable facts, appears in Robert Louis Stevenson's novel Dr Jekyll and Mr Hyde as the home of Dr Lanyon, Jekyll's former best friend. The Embassy of East Timor is also in the Square. I could have found out many more interesting facts about this square but it was getting cold. And my favorite Pret sandwich awaited...

TIME: “8-Year-Old Indian Lion Actor ‘Disappointed’ After Being Denied US Visa to Attend Film Premiere”

Joining a long list of individuals who have been denied visas for entry into the US or had problems with customs and immigration when entering the US, eight-year-old Mumbai actor Sunny Pawar has twice been denied a visa to attend the US premiere of the film Lion. Sunny plays a significant role in this film starring Dev Patel and Nicole Kidman about a lost Kolkata boy who is separated from his family and is eventually adopted by an Australian couple. The movie is based on the nonfiction book A Long Way Home by businessman Saroo Brierley, who rediscovered his childhood life and home in India as an adult in Australia.

According to the film’s distributor, the Weinstein Company, the US Consulate in Mumbai denied the visa Sunny needed to travel to America for the film’s premiere twice without offering an explanation. “We have been back and forth to the embassy many times and have not yet been able to get our Visas,” Dilap Pawar, Sunny’s father, tells TIME.  The family and the Weinstein Company say they began the visa application process a month ago, and after the first interview, the family was still hopeful even though the visa had been denied. They were still hopeful at the second interview about Sunny’s chances for coming to the US to join the film’s promotional efforts and attend the premiere on November 25.

The consular officer requested an additional itinerary, stating that “we are trying are [sic] best to get you to the United States as soon as possible. Congratulations Sunny! on the success of your film.” Given the time constraints, Sunny will likely miss his chance. “It doesn’t look like we will make it in time for the Los Angeles premiere,” Pawar says in his statement. “Me and Sunny are very disappointed. I know it will bring him such joy to see the movie and see his friends from the cast. We hope we can make it there soon—we will do whatever we can.” 

Sunny joins such prominent actors and individuals as Shah Rukh Khan, the “King of Bollywood,” and India's Prime Minister, Narendra Modi, who have been either denied a visa or had trouble entering the US. Attorney David Boies, working with the Weinstein Company on this case, tells TIME in a statement: “Lion is a true story of love, inclusiveness, and human commitment unbounded by race, religion, or ethnicity. The government’s preventing the 8-year-old star of that movie from visiting this country shows how much we need to be reminded that those are our nation’s core values.”

Nicole Quenqua, head of publicity at the Weinstein company, also says of Sunny: “His performance is heart-shattering, and we want him to be a part of this. He’s never even seen his little face on the humongous movie screen or seen the reaction to his work. We’ve been promoting the film without him and it feels very incomplete.” The US Consulate in Mumbai did not respond to TIME’s request for comment.

Democracy in Action

Empire State Building in red, white, and blue.

“We must not remain inactive. We have no choice but to use this moment as an opportunity to give rise to new movements built on respect and empathy, and to really listen to those who feel unheard. We can only do this if we embody and enact the values that are essential to nurture our societies: generosity, inclusion, the empowerment of everyone. If we, collectively, do this, we can work towards a future that is sustainable and trust-driven for all.”

 - Olafur Eliasson

The Guardian: “Typecast as a terrorist”

Riz Ahmed, a Pakistani-British actor and rapper who struggled as a young actor to find work beyond two-dimensional stereotypical roles and who faced nearly constant interrogation and difficulty flying internationally after acting in such films as The Road to Guantanamo and Four Lions, says that airports and auditions are quite similar. In both, he is trying to play a fully realized three-dimensional character to an audience—producers and casting agents and immigration and security officers—who can’t get past the color of his skin and his “Muslim-sounding” name. Ahmed says:

You see, the pitfalls of the audition room and the airport interrogation room are the same. They are places where the threat of rejection is real. They are also places where you are reduced to your marketability or threat-level, where the length of your facial hair can be a deal-breaker, where you are seen, and hence see yourself, in reductive labels – never as “just a bloke called Dave”.  

Ahmed’s difficulty at airports—he was once illegally detained at Luton Airport where British intelligence officers insulted, threatened, and attacked him—echoes the treatment that many other Asians receive when traveling internationally, including actor Shah Rukh Khan, the “King of Bollywood,” who has been repeatedly detained at US immigration and who famously said: "Whenever I start feeling too arrogant about myself, I always take a trip to America. The immigration guys kick the star out of stardom."

After Ahmed’s experience at Luton airport—where he was illegally detained after having just won a film award for a movie about illegal detention—he wrote a song called “Post 9/11 Blues,” which included lyrics such as: “We’re all suspects so watch your back / I farted and got arrested for a chemical attack.”

In an airport holding pen, Ahmed explains, with few exceptions there are twenty slight variations of his own face, “like a Bollywood remake of Being John Malkovich. It was a reminder: you are a type, whose face says things before your mouth opens; you are a signifier before you are a person; you are back at stage one.” He adds: 

The holding pen also had that familiar audition room fear. Everyone is nervous, but the prospect of solidarity is undercut by competition. In this situation, you’re all fighting to graduate out of a reductive purgatory and into some recognition of your unique personhood. In one way or another you are all saying: “I’m not like the rest of them.”

With his passport stamped with visas and entries to such countries as Afghanistan, Iran, and Saudi Arabia, Ahmed found himself being questioned again and again. These “airport auditions” included such questions as “Did you become an actor to further the Muslim struggle?” and although so far they have always been successful in the end, “they involved the experience of being typecast, and when that happens enough, you internalize the role written for you by others. Now, like an over-eager method actor, I was struggling to break character.”

As he becomes better known (he has been featured recently in Rogue One: A Star Wars Story, HBO’s The Night Of, and the latest Jason Bourne movie), his experience at US airports becomes smoother. Now he is often able to find the additional airport baggage search and questioning “hilarious rather than bruising.”  

“But this isn’t a success story,” he says. “I see most of my fellow Malkoviches still arched back, spines bent to snapping as they try to limbo under that rope. These days it’s likely that no one resembles me in the waiting room for an acting audition, and the same is true of everyone being waved through with me at US immigration. In both spaces, my exception proves the rule.”