U.S. consulates in India have been issuing more 221(g) refusals to IT professionals, which is when the Consular Officer temporarily denies a visa for lack of essential information or because the applicant is undergoing administrative processing (basically, that the security checks are taking a long time). More software engineers, programmer/analysts and other IT personnel are being denied visas, and given a questionnaire regarding information that the Consular Officer should already have, including questions regarding the particular project the applicant is going to work on, the technical description of the project, budget, timeline, current status, how many employees are assigned to the project, and detailed information about the other employees on the same project.
At the time an H-1B or L-1B application is filed, an IT company will have certain projects going, and will not be able to anticipate all their future projects, as these continuously change, so the Consular Officer may be looking for a way to deny a visa if the original project proposed for the H-1B or L visa applicant is no longer on-going, and the company intends to send the applicant to another project, perhaps without the LCA on file.
Additionally, administrative processing, including security checks with the various agencies such as the FBI, CIA, DEA etc., may also be quite time-consuming, depending on a variety of factors.
Another issue is the BAHA (Buy American, Hire American) proclamation which has been added into the Foreign Affairs Manual (FAM), so visa applicants need to be ready to explain how their position in the US will not take jobs away from US workers, and how they and their project will benefit the US economically. Due to the ongoing shortage of labor in the US, it should not be difficult to document the shortage of IT professionals.
Visa applicants need to be able to express themselves clearly to explain their qualifications, the job duties and the project, as well as answer questions about the company itself and their future salary and benefits. Applicants need to review the petition support letters carefully and be aware of the contents of those letters.
The good news is, a 221(g) refusal is not a final denial, applicants and their employers still have the opportunity to submit additional evidence and make the Consular Officer happy.
2019 will be a good year for immigrants who apply for their green card through their employer. While there will be some economic issues this year, including slowing growth and higher prices due to the trade wars, the good news is that the unemployment rate is likely to stay at historic lows. Employers are having a very hard time finding U.S. workers to fill positions. This means employers who file PERM labor certification applications will have an easier time convincing the US Department of Labor that there is a shortage of U.S. workers ready, willing and able to do the job.
Second, the U.S. Department of Labor and USCIS are not affected by the government shutdown. The U.S. Department of Labor is funded through September 30, 2019, and will be able to continue processing PERM labor certifications, as well as prevailing wage requests and labor condition applications at its normal rate. This means, the first step of the labor certification process, where the employer first obtains a prevailing wage determination and then files a PERM labor certification application, should go as smoothly as ever.
USCIS is funded by the USCIS filing fees that applicants have to pay, and so they are continuing to adjudicate Forms I-140 employer immigrant petitions as well as Forms I-485 applications for adjustment to permanent residency. USCIS is also not affected by the government shutdown.
Third, backlogs in employment-preference visa numbers for the worldwide categories are either nonexistent, or are very reasonable. The US State Department Visa Bulletin for February 2019 shows second, third and fourth employment preferences for the worldwide category as all current, as well as the other workers employment preference. That’s fantastic! No backlogs! The first employment preference for the worldwide category is backlogged to December 1, 2017, a little more than one year, which is not bad at all in immigration time.
Fourth, because they are having such a hard time finding qualified employees, employers are more likely to be willing to go through with the labor certification process, which for the employer is time-consuming and expensive. Thus, it will be easier for immigrants to find employers who are eager to sponsor them.
The government has taken an extremely broad view of the material support to a terrorist organization ground of inadmissibility, using it to deny many victims of persecution the opportunity to be granted asylum or other relief from deportation.
According to the Immigration and Nationality Act (INA) ground of inadmissibility under section 212(a)(3)(B)(i)(VIII), material support to a terrorist organization is defined as the following:
(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training–
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or
(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.
The definition of material support as a ground of deportability or removability is exactly the same as the definition for the ground of inadmissibility.
In immigration, the material support ground of inadmissibility has been applied to deny many Central Americans, Columbians, and others who are victims of guerilla and terrorist organizations, any relief from deportation or removal. The material support ground is interpreted so broadly, that even if you are forced while looking at the barrel of a gun of a terrorist ready to send you out of this world, you will still be found to have provided material support and will be ineligible for immigration benefits.
In Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018) the BIA held that a woman from El Salvador was not eligible for cancellation of removal because she had provided material support to a terrorist organization. This unfortunate woman was a victim of the guerillas, who kidnapped and enslaved her, and forced her to watch her husband dig his own grave before they murdered him. However, in spite of the fact that she was a victim of the guerillas, the BIA held that she was not eligible for cancellation of removal because she had provided material support, as she was forced to cook, clean and wash their clothes while a slave to them.
This provision of law, clearly intended to stop bad guys (and bad gals!) who support terrorists from coming to the US or getting immigration benefits, is being used to punish women, children, and other weak and vulnerable populations who have been the victims of terrorists and transnational criminal organizations, as a cudgel to deny them any kind of immigration benefits or relief from removal and deportation.
The BIA has made clear, time and again, that even though an individual provides material support involuntarily, while under duress, he or she is still barred under the material support ground of inadmissibility. See, Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016).
The definition of duress is the following: “threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment. “confessions extracted under duress”. Synonyms: coercion, compulsion, force, pressurization, intimidation, threats, constraint, enforcement, exaction. Informal: arm-twisting. See, google definition, https://www.google.com/search?q=duress+definition&oq=Duress+definition&aqs=chrome.0.0l6.3471j1j7&sourceid=chrome&ie=UTF-8
It is a sad state of affairs that several of the federal appellate courts have gone along with this interpretation. For example, in Hernandez v. Sessions, 884 F.3d 107 (2d Cir. 2018), the petitioner, Marleny Hernandez, a citizen of Columbia, a successful business woman, under threat from the FARC, provided food and other goods to the FARC every three months from around 1997 to 1999. As retaliation against her for having government officials as guests at her hotel, the FARC attacked and destroyed her hotel and store. The Second Circuit in Hernandez deferred to the BIA’s interpretation, as they found the statute to be ambiguous, and applied Chevron deference. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
As if it is not bad enough that the government applies the material support bar when the applicant was under duress, the BIA’s recent decision in Matter of A-C-M- makes clear that no matter how de minimus, small or trivial the support, the material support bar still applies.
What can one do in such a situation? There is an exception to the bar if one “did not know and should not reasonably have known, that the organization was a terrorist organization”. However, even if the immigration judge finds an applicant ineligible, all is not lost. First, even if it is found that the material support bar to asylum applies, the applicant is still eligible for deferral of removal under the Convention Against Torture. Second, in federal court one can argue that the plain meaning of the statute requires that support be material. The statute would not specifically state “material support” if the word material did not mean anything. If support was not required to be material, Congress would have left out that word, and just had the word support with no qualifiers. While the government may argue that the statute is ambiguous with regard to duress, there is no such ambiguity with regard to whether the support may be de minimus. It cannot be, as the support must be “material” and Chevron deference does not apply in this situation.
Another argument is that this interpretation of material support with no exception for duress or de minimus support is contrary to the non-refoulement obligation of the 1976 United Nations Protocol Relating to the Status of Refugees (the “Protocol”), to which the United States is a party.