New Filings of DACA cases-USCIS Cannot Ignore the US Supreme Court

Why has USCIS been ignoring the US Supreme Court mandate and rejecting initial applications for DACA? The U.S. Supreme Court, in DHS v. Regents of the University of California, 140 S.Ct. 1891, 1915 (2020) held that the Trump Administration’s termination of DACA (Deferred Action for Childhood Arrivals or Dreamers program) was arbitrary, capricious and an abuse of discretion and violated the APA (Administrative Procedures Act).

According to the US Supreme Court decision, which is the law of the land, the DACA program is restored to its status prior to the termination. So, USCIS should have immediately begun accepting first-time applications for DACA and work authorization. However, USCIS has been rejecting new DACA applications, meaning the USCIS mailing room is not even feeing them in, but just mailing them back to the applicants. Thus, the USCIS mailroom is not even accepting them for processing. The Trump administration is showing an incredible disrespect for the rule of law in the United States.

However, the Maryland Federal District Court, in Casa de Maryland v. Department of Homeland Security, Civil No PWG-17-2942, issued an order on July 17, 2020, vacating the rescission of the DACA policy, and enjoining DHS from enforcing the DACA rescission.

Thus, those foreign nationals who entered the U.S. prior to their 16th birthday, have lived continuously in the U.S. since June 15, 2007, were physically present in the U.S. on June 15, 2012, and who meet all the other DACA requirements, should be able to file first-time DACA applications and have them accepted by USCIS. Should your application be rejected, you may be able to file in federal court against the Trump administration.  

Copyright 2020 © Heidi J Meyers, all rights reserved.

Good News For Federal Appeals of Removal Orders

The U.S. Supreme Court has opened the door to appeals of removal orders involving denials of adjustment to permanent residency, cancellation of removal, removability for having committed certain crimes and other issues in removal proceedings. The US Supreme Court made clear that the federal courts of appeals have jurisdiction over appeals of removal orders where the BIA (Board of Immigration Appeals) or the IJ (Immigration Judge) incorrectly applied the law to undisputed facts.

The U.S. Supreme Court’s holding in Guerrero Lasprilla v. Barr, No. 18-776 (Sup Ct Mar 23, 2020) seems simple – that federal courts of appeal have jurisdiction over questions of law which includes the application of the law to undisputed facts, in removal proceedings. This decision in a removal case in the context of whether the time limit to file a motion to reopen is subject to equitable tolling, can be applied to many decisions by the BIA and Immigration Judges formerly considered discretionary or “factual”, and not within the jurisdiction of the federal courts of appeals.

This means that if your applications for permanent residency or cancellation of removal are denied in removal proceedings, you can appeal your removal and deportation to the federal courts of appeals, and the court will have jurisdiction over the question of whether the Immigration Judge and the Board of Immigration Appeals (BIA) properly applied the law to the established facts in your case.

Justice Breyer, in a decision joined by all the justices except Thomas and Alito, discussed the meaning of the Limited Review Provision of the INA (Immigration and Nationality Act), 8 USC 1252(a)(2)(D), which provides that the federal courts can only review “constitutional claims and questions of law” in appeals of a final removal order. The Court held that “questions of law” includes application of the law to undisputed or established facts, and that the Fifth Circuit erred when it held that it lacked jurisdiction to review the petitioners’ claims of due diligence regarding equitable tolling of the time limits to file a motion to reopen.  The Fifth Circuit had incorrectly labeled the dispute a “factual” issue, whereas the facts were not disputed. Whether a given set of facts meets a legal standard does present a legal inquiry. The federal courts of appeals have jurisdiction over “mixed questions of law and fact” in a removal proceeding. There is a presumption of judicial review in administrative actions, said the Court, citing Kucana v. Holder, 558 U.S. 233 (2010). Executive determinations are generally subject to judicial review. This presumption can only be overcome by clear and convincing evidence that Congress intended to preclude judicial review. The Government’s argument that the Limited Review Provision forbids judicial review of mixed questions of law and fact would be a barrier to any meaningful judicial review. The Court reviewed the Congressional history, and found that Congress enacted the Limited Review Provision in order to preserve federal court jurisdiction over removal orders as an effective alternative to habeas corpus, in response to the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001).

Thus, people with removal or deportation orders can now appeal certain issues to the federal court of appeals that they formerly were not able to.

Copyright 2020 © Heidi J Meyers, all rights reserved.

Rights of H-1B Workers

As an H-1B employee, you have rights. H-1B employers are heavily regulated under both US immigration law and US employment law. If you are an H-1B worker, and are being taken advantage of by your employer, do not despair!

First, the H-1B employer is legally obligated to pay the USCIS filing fees for the H-1B petition and any extensions, and may not pass those costs on to the employee. Additionally, if payment of the attorneys fees by the employee would reduce the employee’s wage below the prevailing wage, the H-1B employer also is prohibited from passing those costs on to the beneficiary employee.

Second, the employer must pay you either the prevailing wage or the actual wage paid to other employees in the same position, whichever is higher, depending upon the geographic location and level of experience. The employer is also obligated to provide you with a copy of the LCA (Labor Condition Application) which is filed with your H-1B petition, and states the wage that the employer is obligated to pay you. The employer must provide the H-1B worker with a copy of the LCA when he or she reports for work. If your employer has not given you a copy of the LCA you can request it, or ask to review the public inspection file, which the H-1B employer must make available to anyone who requests it. So, for example, if your employer initially stations you in Iowa, at the prevailing wage for that locality, and then transfers you to say, New York City or Dallas Texas, your salary should be increased to meet the higher prevailing wage for those locations. Additionally, if there are other US workers in the same position, at the same level, you should be paid the same amount (assuming all other factors equal).

Third, the H-1B employer must offer you the same benefits and terms and conditions of employment as they offer their US worker employees. So, if you are a teacher and all the other teachers are provided with health insurance, disability insurance, 401K, you are entitled to the same benefits. The H-1B employer is also obligated to treat you the same as its other employees. So, for example, if the US workers in the same position are only expected to work 40 hours per week and leave at 5:00 p.m. everyday, but you as an H-1B worker are expected to stay late or work the weekends for the same pay, you would have a claim against your employer.

Fourth, if your employer benches you (meaning tells you to stay home in non-productive status), or furloughs you, promising to re-hire you in a certain period of time, the employer is obligated to continue paying you the obligatory wage during that time that you are not doing actual work. This also applies if the employer hires you, but does not put you on payroll because you are waiting to obtain your state license or permit. If your employer does not pay you during this time period, the employer is liable for not only back pay but also civil money penalties for each violation, and additional penalties if the employer committed fraud or willfully failed to pay you the wage.

Fifth, if your employer terminates you, the termination must be in writing. If an H-1B employer terminates you only verbally, and does not provide you a written termination, then you continue to have a claim against the employer for unpaid wages during that time.

Sixth, H-1B employers are prohibited from taking retaliatory actions against their H-1B employees for asserting their rights.  Thus, if you complain the employer is prohibited by law from demoting you, terminating you, or taking other retaliatory action against you.

Seventh, if the employer terminates you, and you wish to return to your home country, your former employer is obligated to provide you with the airfare to return home. The employer may either purchase an airline ticket for you, or reimburse you for the expense of your return trip.

Finally, if you stay quiet and do nothing, USCIS may later find you out of status. For example, if the prevailing wage was $80,000 per year, and your employer only paid you $55,000 for the year, USCIS on any extension or change of employer application would likely find you to have fallen out of status, because it appears you were not employed for the whole year, or else that you were working only part-time and not full-time as specified.

If you believe your rights have been violated, and you are due back pay or compensation for health insurance etc., you may file a complaint with the US Wage and Hour Division, by filing the Form WH-4.  See, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh-4.pdf.

Copyright 2020 ã Heidi J Meyers, all rights reserved.

How Can Foreign Respiratory Therapists Work in the United States?

How can foreign respiratory therapists work in the United States? The Coronavirus pandemic has created a shortage of respiratory therapists. Chronic low-level respiratory diseases were already the fourth-leading cause of death in the US before Covid-19. Respiratory therapists are essential in caring for patients who have trouble breathing. They test patients with lung capacity, and perform chest physiotherapy to remove mucus and fluid from the lungs. and Respiratory therapists are needed in order to use ventilators safely and properly. See, https://www.usnews.com/news/healthiest-communities/articles/2020-04-01/coronavirus-pandemic-exposes-need-for-respiratory-therapists

Unfortunately, the H-1B is generally not an option for Respiratory Therapists. Because the US Dept of Labor’s OOH (Occupational Outlook Handbook) states that Respiratory therapists need at least an associates degree, although some employers may prefer a bachelor’s degree, most Respiratory Therapist positions would not qualify for the H-1B since according to the US government, a bachelor’s degree is not required.

Additionally, Respiratory Therapists are not included in the list of occupations for the TN visa, so Canadians who are licensed RTs in Canada will not be able to get a TN visa on that basis.

However, Respiratory Therapists who are managing or supervising other RTs, or who have advanced certifications in a specialized area, may qualify for the H-1B if the employer can show that they only hire applicants who have at least a bachelor’s degree, and that the job duties are so complex and advanced that they require an employee with a specialized degree.

So how can a foreign RT come to the U.S. to work as a respiratory therapist in the U.S.? The foreign RT would have to have his or her educational credentials evaluated as the equivalent of a US degree in respiratory therapy. The foreign RT would also have to take the multiple choice part of the NBRC licensing exam. See the web site for the NBRC, https://www.nbrc.org/

While the NBRC has many testing centers outside the U.S., many countries lack testing centers so an RT abroad would have to travel to another country in order to take the test. Pakistan has two testing centers, one in Karachi and one in Lahore. Similarly, India has three testing centers, in Bangalore, Chennai and Mumbai. Many countries in Latin America and the West Indies do not have an NBRC testing center, for example, Barbados, Belize, Chile, Colombia, Dominican Republic, all lack testing centers. However, nationals from those countries may be able to travel to Buenos Aires Argentina or Mexico City Mexico in order to take the test. It may be easier to obtain a visa to travel to Argentina or Mexico than it is to get a B visa to come to the U.S. to take the exam, which is the other option.

Similarly, in the Middle East, Jordan and Kuwait lack test centers, but you may be able to travel to NBRC testing centers in Cairo Egypt or in Dubai UAE.

Coming to the U.S. temporarily to take the NBRC test is a valid basis for a B visa. However, if unable to get a B visa, a foreign RT who does not have an NBRC testing center in his or her home country should explore which other countries in his or her region do have test centers.

Foreign respiratory therapists may be eligible for the J-1 exchange visitor visa to work for one year as a J-1 intern if they have recently graduated from university, or for 18 months as a J-1 trainee. J-1 trainees must have a university degree or professional certification plus at least one year of work experience abroad, or else five years of work experience in the occupation abroad. These are often not the best option, due to the short duration and the fact that many J-1s also have a two-year foreign residency requirement. So, once the one year or 18 months is completed, depending on the country, the RT may have to return to his or her home country for two years.

Having gotten their educational credentials evaluated for US equivalency, passed the NBRC licensing exam and obtained the NBRC certification, the foreign RT may be sponsored for the PERM labor certification by a hospital or other health care employer. The hospital would have to advertise the job and show that there is a shortage of US workers in their geographical area to perform the job. Then the hospital would file an I-140 on the RT’s behalf, and the RT would go for consular processing and come to the U.S. as a green card holder. The PERM labor certification has more flexibility in terms of categorizing a position as professional. The recent proclamation by President Trump does not apply to health care professionals, and would likely not apply to RTs, depending on the hospital’s requirements.

Because of extreme backlogs in the third employment preference for India and China, however, the PERM is not such a great option for these nationals. Nationals of El Salvador, Guatemala, Honduras, Mexico, the Philippines, Vietnam, have a wait of more than three years, which can go by quickly.

Foreign national RTs who are already in the U.S. may have work authorization through other immigration benefits eligibility, such as through asylum applications, as the derivative of a spouse’s status, through DACA or TPS. They may also be sponsored by a hospital or other health care organization for their green card. Those already in the U.S. have an advantage, as they may apply for state licensure, and already be working for the employer hospital or health care organization with work authorization.

Copyright 2020 © Heidi J Meyers, all rights reserved.

Immigration Consequences of Money Laundering

The grounds of inadmissibility, which include money laundering, apply to both foreign nationals outside the U.S. who are applying for a visa, as well as foreign nationals within the U.S. who are applying for adjustment to permanent residency. Not only that, but they may apply to permanent residents of the U.S. as well.

Foreign nationals outside the U.S. may be barred from entering the U.S. under 8 USC §1182(a)(2)(I), if the US State Department finds that there is “reason to believe” that the visa applicant “may have engaged in (or may intend to engage in) money laundering activity, as described in Section 1956 or 1957, no matter where the activity may have taken place, whether in the U.S. or abroad”, and must request a State Department legal advisory opinion. See, US Department of State cable, R 040059Z DEC 01, to all diplomatic posts, “Visa Provisions in USA Patriot Act Series: No.4 New Money Laundering Ineligibility Under 212(a)(2)(I)” (December 4, 2001).

The U.S. State Department will deny both immigrant visas (for the green card) and nonimmigrant visas (for temporary status) based on a “reason to believe” that the applicant has engaged in money laundering, or may do so in the U.S. at some point in the future. It does not matter if all the money laundering activity occurred outside the U.S., nor does it matter if the individual has never been accused of a crime or formally charged. The “reason to believe” standard allows consular officers to deny a visa based on the exercise of discretion and is subjective.

The same “reason to believe” standard is used by USCIS when adjudicating an application for adjustment to permanent residency for a foreign national who is already residing within the U.S. Similarly, an Immigration Judge will apply the grounds of inadmissibility to a respondent in removal proceedings who has applied for adjustment to permanent residency (or re-adjustment for those who are already permanent residents).

Much of the case law regarding the “reason to believe” standard is in the context of drug trafficking, under the ground for inadmissibility. No conviction is required, and not even a formal criminal charge. Even those who have been acquitted or had their conviction expunged may be found inadmissible for “reason to believe” money laundering. For example, in Mena-Flores v. Holder, 776 F.3d 1152 (10th Cir. 2015), the Tenth Circuit found substantial evidence supported the BIA’s holding that the applicant was inadmissible under INA §212(a)(2)(c) “reason to believe” he was an illicit drug trafficker, even though he had been acquitted of all charges.

This low standard for finding inadmissibility and denying a visa or adjustment of status to permanent residency, is in spite of the fact that most ‘hits’ regarding money laundering turn out to be false positives – i.e., the individual is not a money launderer at all and has been falsely accused. See, Reuters, ”Anti-money laundering controls failing to detect terrorists, cartels and sanctioned states” https://www.reuters.com/article/bc-finreg-laundering-detecting/anti-money-laundering-controls-failing-to-detect-terrorists-cartels-and-sanctioned-states-idUSKCN1GP2NV

In the banking context, according to a study by Price Waterhouse Cooper, “over 95 percent of system-generated alerts are closed as “false positives” in the first phase of review, with approximately 98 percent of alerts never culminating in a suspicious activity report (SAR).” Id. Banks at least have some incentive to correct their errors, since they must appeal to their customers and naturally want to do business. However, with the U.S. government in the immigration context, there is no incentive for government workers to investigate and determine if the computer-generated finding is correct or not. It is just very easy to deny a visa, or to deny an application for adjustment to permanent residency, regardless of whether the finding is erroneous. Because of the doctrine of consular nonreviewability, it is very difficult for a foreign national outside of the U.S. to get real review by a federal court. Similarly, because of USCIS directions to find a pretext for denial of adjustment, or denial in the exercise of discretion, it is very difficult for a foreign national to find out what the denial was based on. If the denial states that it is due to “reason to believe” money laundering, most likely USCIS will not inform the applicant of the details of the factual basis for denial. You will certainly need an experienced immigration attorney if you find yourself in such a predicament.

A conviction for money laundering described in 18 USC §1956 or §1957 may also constitute an aggravated felony under 8 USC §1101(a)(43)(D) if the amount of the funds exceeded $10,000. A foreign national convicted at any time after admission is deportable under 8 USC §1227(a)(2)(A)(iii). This includes permanent residents. In Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), reviewing a similar aggravated felony provision, which also specified a greater than $10,000 monetary loss, 8 USC §1101(a)(43)(M)(i), an offense which involves fraud or deceit and the loss to the victim exceeds $10,000, the US Supreme Court held that the $10,000 amount did not refer to an element of the crime in the statute, but rather required an examination of the particular facts of which the defendant had been convicted. In Nijhawan, even though the statute did not require any particular amount of loss, the defendant had stipulated that the loss exceeded $100 million. Thus, in interpreting those aggravated felonies which specify a particular amount of loss, courts do not use the categorical approach, but rather look at the particular amount of loss that the individual was convicted of, or pled guilty to.

If you are convicted of an aggravated felony, you do not qualify for cancellation of removal for permanent residents, nor do you qualify for cancellation of removal for non-permanent residents. An aggravated felony conviction also bars you from eligibility for asylum. However, you still may be eligible for withholding of removal and relief under the Convention against Torture, if you can show that you have a clear probability of being persecuted should you be returned to your home country, or that you would probably be tortured (for any reason) if returned to your home country (these have their own complex legal requirements which we will not review now). Additionally, if convicted for money laundering, but not drug trafficking, you may be eligible for a 212(h) waiver in conjunction with an adjustment application as relief from removal. Again, these are very complex legal issues that may take years of litigation in immigration court as well as in federal court in order to sort them out.

Copyright © Heidi J Meyers, all rights reserved.

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