Drunk Driving (DUI or DWI) and Immigration

An arrest for DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) may have serious consequences for your immigration status, even if you are not convicted. If you are convicted of DUI or DWI, you may be barred from demonstrating good moral character for purposes of cancellation of removal or naturalization. Even worse, if your conviction constitutes a crime of moral turpitude, you may be found inadmissible or deported and removed from the United States.

The U.S. State Department may revoke your visa if you are arrested for DUI or DWI even if you have not been convicted. Remember, a visa is stamped in your passport and allows you to enter the U.S. in a certain nonimmigrant category, and is valid for a specific period of time. Once you are admitted to the U.S., you are then in a particular immigration status. The electronic I-94 states your immigration status and the period of time for which you are admitted. So a visa and an immigrant status are two different concepts.

If you are arrested for DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) in the U.S. and your case is pending in criminal court, the US State Department may revoke your visa even if you have not been convicted. The US government takes arrests for DUI and DWI very seriously. If you are already in the U.S., a visa revocation does not mean you automatically lose your immigration status. It means, if you depart, you will not be able to re-enter because you do not have a valid visa.

In general, the State Department may not revoke the visas of foreign nationals who are already in the US, or on their way, but DWI and DUI are an exception. The State Dept may revoke your visa if you have a DWI or DUI related arrest or conviction within the past five years. The State Dept is required to notify the foreign national of the intent to revoke the visa, give the foreign national the opportunity to show why the visa should not be revoked, and request the foreign national to present the travel document that contains the visa.

The State Dept may ask the foreign national to appear at the US Consulate where the visa was issued. If the foreign national does appear, most likely the Consular Officer will physically revoke the visa, as well as any other valid visas the foreign national may have. If the foreign national does not appear at the US Consulate, the State Department will still enter the information into their databases and notify DHS (Dept of Homeland Security), ports of entry such as airports and border crossings, and also the airlines of the visa revocation.

Should the foreign national want to apply for a new visa, he or she will be referred to a panel physical to be evaluated as to whether he or she has a drinking problem, and may be a danger to themselves or others. Even if an applicant is not inadmissible to the U.S. on criminal grounds, he or she may be found inadmissible on medical grounds.

If you are convicted of drunk driving, there are additional consequences. In a 2019 decision, Matter of Castillo-Perez, 27 I&N Dec, 664 (A.G. 2019), in a decision certified to himself, the Attorney General held that two or more convictions for DUI during the statutory period would create a rebuttable presumption that the foreign national lacks good moral character under INA §1101(f) for purposes of an application for cancellation of removal under INA §240(A)(b)(1). While the decision does not specifically apply to naturalization applications, an applicant for naturalization also has to show good moral character under INA §1101(f), and so it is possible USCIS will start using this same standard when deciding applications for naturalization to US citizenship. Similarly, in Ledesma Cosino v. Sessions (9th Cir 2017), https://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/30/12-73289.pdf, the Ninth Circuit held that substantial evidence supported the BIA’s finding that the applicant was a “habitual drunkard” and thus lacked good moral character for purposes of cancellation of removal. The BIA and the court took into account not only the applicant’s conviction but also testimony regarding at least a decade of alcohol abuse and cirrhosis of the liver.

Whether or not a conviction for DUI or DWI is a crime involving moral turpitude depends upon the particular state statute and its elements. In general, one single conviction for DUI or DWI does not constitute a crime involving moral turpitude, and does not make one inadmissible or removable (deportable) from the U.S. See, In re Torres Varela, 23 I&N Dec 78 (BIA 2001), https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3449.pdf

Arizona offense of aggravated driving under the influence, with two or more prior DUI convictions, is not a crime of moral turpitude. The specific statute under which the conviction occurred is controlling. Much depends upon whether the statute has a knowledge or intent requirement. The BIA has held that another Arizona statute, also involving multiple DUI convictions, is a crime of moral turpitude, because it prohibits driving under the influence knowing that one’s license has been suspended. Because of the knowledge requirement, that particular statute was found to constitute a crime of moral turpitude. See, Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3423.pdf.   The BIA reasoned as follows: “In our view, a simple DUI offense is such a marginal crime. However, when that crime is committed by an individual who knows that he or she is prohibited from driving, the offense becomes such a deviance from the accepted rules of contemporary morality that it amounts to a crime involving moral turpitude.”

However, it is important to keep in mind that the interpretation of DWI offenses may change, especially as under the current administration the Attorney Generals have made a habit of certifying decisions to themselves and attempting to change years of precedents.

Even if a drunk driving conviction does not constitute a crime of moral turpitude, it is still a strong negative factor, and may lead an Immigration Judge or USCIS examiner to deny your immigration application in the exercise of discretion.

All foreign nationals who have been arrested for DUI or DWI must realize that this is a very serious matter, and should immediately seek help to rehabilitate themselves, by regularly attending AA or other alcohol-related rehabilitation programs and ceasing to drink. If you find yourself in this situation you will also need both a competent criminal attorney and a competent immigration attorney.

Copyright 2020 © Heidi J Meyers, all rights reserved.

Court holds Trump Policy on Unlawful Presence for Foreign students and Exchange Visitors (F, J and M) Unlawful.

On February 6, 2020, in Guilford College et al. v. McAleenan, a federal district court issued a permanent injunction prohibiting the Trump Administration from implementing its new policy regarding unlawful presence for F-1 students, J-1 exchange visitors and M-1 students.

Up until the recent change in policy by the Trump administration, for more than two decades, F-1 students, J-1 exchange visitors and M-1 students who entered the U.S. were allowed to remain in the U.S. for “duration of status” or for however long their educational program or exchange program, along with any extensions, or OPT, lasted. Thus, when they entered the U.S., CBP (formerly INS) did not give them a specific date by which to depart the U.S.

If an F, J or M visa-holder fell out of status or violated the terms of their stay, they would start accumulating unlawful presence from the date after either a US government official or an immigration judge determined they were out of status. Here the concepts get a little difficult, as there is a distinction between being out of status and accumulating unlawful presence, the details of which we will not go into now.

The Court found that any minor violation, such as working one more hour per week than the hours authorized, or moving to a new dorm without filing a change of address, could result in drastic consequences of the student being subject to a three- or ten-year bar.

If a foreign national accumulates more than 180 days of unlawful presence and departs the U.S., he or she will be subject to a three-year bar to returning. If a foreign national accumulates one year or more of unlawful presence and departs, then he or she is subject to a ten-year bar to returning to the U.S. So, the consequences are very severe.

For decades, foreign students and exchange visitors would only accumulate unlawful presence after a determination by USCIS, ICE, CBP or the Immigration Judge. The foreign students and exchange visitors were put on notice when they started accumulating unlawful presence, and would have the opportunity to depart the U.S. before the three or ten year bar kicked in.

However, the Trump Administration abruptly changed this decades-long policy in August 2018. According to the new policy, USCIS would start the unlawful presence clock on the original date of the status violation, not on the date that a USCIS officer made the determination that the person was out of status. So, a USCIS officer reviewing the file would back-date the accumulation of unlawful presence to the date that he or she believed the foreign student or exchange visitor first fell out of status.

The Court found that the plaintiffs had standing to bring the lawsuit, as they had shown an injury traceable to the government’s unlawful conduct in issuing the August 2018 policy. The Court used the examples of two of the plaintiffs, Ye and Li, who entered the U.S. as students, and who both enlisted in the U.S. Army and are awaiting basic training. They had been recruited by the U.S. Army due to their valuable language skills, and the Army had advised them not to leave the U.S. while they were awaiting basic training. Should a government official go and make a retroactive determination that they have been out of status while they wait for basic training, they would be subject to the three or ten year bars, and all their dreams of joining the Army would be dashed. Because the Court held that at least two of the plaintiffs had standing, it did not need to adjudicate whether the rest of the plaintiffs had standing.

The Court held that 1) the August 2018 USCIS Policy Memorandum was a legislative rule and invalid for failing to follow the APA (Administrative Procedure Act)’s notice and comment procedures, and 2) the August 2019 USCIS Policy Memo conflicts with the INA (the Immigration and Nationality Act), and must be vacated.

The District Court found that the August 2018 policy memo was a legislative rule under the APA. It changed prior policy, was inserted into the USCIS Adjudicator’s Field Manual, and was binding on USCIS officers. So, USCIS should have published the new policy rule in the Federal Register, and given the public notice and an opportunity to comment. Under the APA, the government is also required to provide a reasoned response to any comments. Simply issuing a memo and a press release did not comply with the law.

The Court also held that the new policy conflicts with the immigration statute. Congress first included the concept of unlawful presence (which differs from being out of status) in IIRIRA (the Illegal Immigration Reform and Immigrant Responsibility Act) n 1996. The Court found that the Trump Administration had improperly joined the two concepts of unlawful presence and status violations together, which conflicted with the meaning of the statute. Based on the statute, unlawful presence does not accrue until an adjudicator determines the person is out of status.

The Court granted a permanent injunction ordering that the Trump Administration return to the prior policy regarding unlawful presence for F, J and M visa holders. Where the government fails to comply with APA requirements in implementing new rules, a nationwide injunction is appropriate. The new Trump policy was vacated as unlawful applied to anyone who would be subject to it, not just the plaintiffs. Thus, the injunction is nationwide.

This means that USCIS and the Trump Administration must continue to follow prior policy on unlawful presence for F-1, J-1, and M-1 visa holders. The injunction applies throughout the United States. A great win for foreign students, exchange visitors, and universities!

NB – citation is Guilford College et al. v. McAleenan, 1:18CV891-LCB-JEP (2/6/2020 Dt Ct Middle Dt. North Carolina).

Copyright © 2020 Heidi J Meyers all rights reserved.

The New Travel Ban Still Allows Nonimmigrant Visas and Special Immigrant Visas, Depending on the Country

The Trump Administration’s new travel ban, or “Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry”, issued January 31, 2020 bans the issuance of immigrant visas (i.e., green cards processed from abroad by US Consulates or Embassies) to nationals of the following countries: Burma (Myanmar; Eritrea; Kyrgyzstan; Nigeria; Sudan; and Tanzania.

However, the ban allows immigrant visas based on the Special Immigrant Visa program for those who have advanced U.S. interests, and provides the example of those who have worked for a U.S. Embassy for 15 years or more. The ban also allows exceptions for Sudan and Tanzania, whose nationals may still be processed for all types of immigrant visas, except for those based on winning the diversity lottery.

Thus, nationals of Sudan and Tanzania may still receive green cards based on family or employment petitions, just not on the basis of having won the diversity lottery (green card lottery).

However, the ban does not apply to nonimmigrant (temporary) visas, thus nationals of Burma (Myanmar); Kyrgyzstan; Nigeria; Sudan; and Tanzania will still be able to apply for any nonimmigrant visa, such as B visitor for tourism/business, E-2 (only Kyrgyzstan), F-1 student, H-1B temporary professional, L managerial transferee or specialized knowledge worker, O-1A, O-1B aliens of extraordinary ability, P and so on.

The Proclamation only applies to foreign nationals of the above countries who: (i) are outside the United States on February 21, 2020, the effective date of the proclamation; (ii) do not have a valid visa on the effective date; and (iii) do not qualify for a visa or other valid travel document under section 6(d) of Proclamation 9645.

Applicants for an immigrant visa may apply for a waiver, under the prior travel ban, but the process is lengthy and there is a very low rate of approval.

For example, Achike is a US citizen, and he has petitioned for his wife, who is in Nigeria. The marriage petition has been approved, and the immigrant visa processing has been completed. His wife just needs an interview with the U.S. Consulate in Lagos in order to get her immigrant visa. If his wife is outside the U.S. on the effective date of the new travel ban and has not yet received her immigrant visa, she is banned from coming to the U.S.

However, as another example, another Nigerian national, Kesandu has been accepted into Boston University for Engineering. Even though the travel ban has already gone into effect, she can still apply for and receive her F-1 student visa

The Proclamation suggests that the ban on greencards for nationals from these six countries may be lifted at some time in the future should the governments of those countries comply with U.S. demands regarding information-sharing and electronically compatible documents.

Copyright 2020 © Heidi J Meyers all rights reserved.

Out of Status Foreign Doctors with DACA, TPS or Asylum Applications, Part 1.

There are many medical doctors in the U.S. who are out of status. Some foreign-born doctors have grown up in the U.S., and attended high school, college and medical school here. They may be out of status, but have been granted DACA (Deferred Action for Childhood Arrivals), TPS (Temporary Protected Status), or have pending asylum applications. All three, DACA, TPS, and asylum, allow the beneficiary to receive a work authorization card which is renewable. Thus, the aspiring doctor will have a social security number and will be work-authorized. However, DACA, TPS and having an asylum application pending are not considered a legal status, they are considered to be out of status, although not accumulating unlawful presence (NB – a grant of TPS may be considered an admission, if the applicant is residing in the 9th or 6th Circuits. More about that in Part 2).

Other foreign doctors (called IMGs, International Medical Graduates) have attended medical school abroad, had careers as doctors abroad, and then come to the U.S. For whatever reason, they are also out of status, although they may also have work authorization through TPS or asylum applications.

Like all doctors, foreign-born doctors must take and pass the US MLE, which has three steps: Step 1 tests whether the doctor understand concepts fundamental to medical practice; Step 2 CK, tests clinical knowledge; Step 2 CS, tests clinical skills; Step 3 tests whether you can use medical knowledge to manage patient care in an ambulatory setting. Step 1 may be taken abroad, but the two parts of Step 2 and Step 3 must be taken in the U.S.

If you attended medical school abroad, then you will need to obtain an ECFMG certificate. However, even if you were born abroad, as long as your medical education was here in the US, you will not need an ECFMG certificate. For example, Lisa was born in India, and came to the U.S. before turning 16. She has DACA, work authorization and a social security number. She attends Weill Cornell Medical School. She does not need the ECFMG, even though she does not have the green card, as she is attending a US medical school. On the other hand, Amel, who attended medical school in Egypt at the University of Cairo and practiced as a medical doctor in Egypt and Saudi Arabia, will need an ECFMG certificate because her medical education was abroad not in the U.S.

Many foreign-born doctors come to the U.S. on a J-1 visa to work as medical residents in hospital residency programs, and are sponsored by the ECFMG. This avenue, however, is not open to foreign doctors living out of status in the U.S., even though they may have work authorization.

In general, out of status doctors here in the U.S. will not be eligible for a J-1 visa to participate in a residency program. The J-1 visa requires that the applicant prove that he or she has a temporary intention in coming to the U.S., and that he or she will return to their home country at the end of the program. The J-1 will also have a two-year foreign residency requirement.

Additionally, a J-1 requires a Statement of Need from the home country, that the country needs doctors in the particular specialty and that the applicant will be returning to their home country when the program is completed. Obviously, asylum applicants, DACA and TPS beneficiaries will not be able to meet this requirement.

A medical doctor in the U.S. who has DACA, TPS or an asylum application will not be able to prove that their intention in staying in the U.S. is only temporary. They will not be able to show that they have a residence abroad which they have no intent of abandoning. Thus, the J-1 is not an option.

Out of status doctors on DACA, TPS or with an asylum application, however, may be eligible for the H-1B visa if they have not accumulated 180 days or more of unlawful presence. In order to qualify for the H-1B visa, the medical doctor must have either a state license, or they must prove eligibility for a state license but for lack of a social security number.

There is a difference between being out of status, and accumulating unlawful presence. It is an extremely complex area of law, so we will not go into the details, but will provide a couple of examples. For example, our aspiring medical doctor Lisa came to the U.S. as a young child. She applied for and received DACA and her work authorization before her 18th birthday. Unlawful presence only starts accruing after one’s 18th birthday. Since she has had DACA and work authorization since prior to her 18th birthday, she has not accumulated unlawful presence. She is now in medical school. She would be able to apply for an H-1B to work as a medical resident in a residency program. Once the H-1B petition is approved, she would be able to obtain an advance parole through DACA and go abroad to apply for the H-1B visa. Even if her H-1B visa is denied, she may still return to the U.S. on the advance parole through her DACA.

For our medical doctor Amel, however, the situation is different. Suppose she applied for asylum within a few months after coming to the U.S. on a B visa. She has had work authorization through the asylum. She also would not have accumulated unlawful presence if she applied for asylum while her B status was still valid, but her problem is that she could end up stuck outside of the U.S. if she goes abroad to apply for the H-1B. As an asylum applicant, she will not be able to obtain an advance parole, so if her H-1B is denied, she will end up stuck outside the U.S. and not be able to return.

However, it is not necessary to qualify for the H-1B to participate in a residency program, as long as you have work authorization.

The ERAS (Electronic Residency Application Service) asks very detailed questions regarding the applicant’s immigration status. The application not only asks about current work authorization, it also asks very detailed questions about whether or not the applicant needs J-1 or H-1B sponsorship, and it requires answers regarding the applicant’s specific immigration status. Thus, our aspiring doctor Lisa must disclose on the application that she has work authorization through DACA.

By law, employers in the U.S. are not supposed to discriminate against job applicants based on their immigration status. In addition to discrimination based on immigration status, hospitals cannot require more or different documents than what is specified in the Form I-9, which is called document abuse. In particular, employers, including hospitals, are not supposed to discriminate against job applicants because they hold a work authorization card with an expiration date. If a hospital refuses to hire an applicant because he or she has an EAD (employment authorization document) with an expiration date, this is illegal discrimination and the applicant would have a claim against the hospital. See, https://www.justice.gov/crt/types-discrimination

Moreover, it is questionable that the online application system itself requires such detailed information regarding immigration status on the form. Providing this detailed information is required. It is questionable whether the application itself, the software system, encourages and fosters employment discrimination.

Copyright 2020 © Heidi J Meyers, all rights reserved.

Immigration Options in the Restaurant Industry

Because the restaurant and hospitality industry relies so heavily on immigrants, and because US workers are in short supply, immigration issues arise often. We will review some of the immigration options for the restaurant industry.

Immigration Options for Chefs. 

A chef who has national or international renown may be eligible for the O-1B as an alien of extraordinary ability. Under the O-1B classification, chefs are considered artists. The restaurant would have to define the area of extraordinary ability, for example, as a Pastry Chef, or as a Chef of Japanese cuisine, and prove that the chef has distinction in his or her field. Thus, it is a lower burden of proof than that for the O-1A which requires you to show that the alien is one of a few at the very top of his or her field. So, it is not necessary to be a Yotam Ottolenghi or a Jacques Pepin for an approval as an O-1B. The O-1B is a temporary status, which may be approved for up to three years, and may be extended.

Another option is Chef as an E-2 employee with specialized knowledge or essential skills for a business owned by a majority of E-2 treaty nationals of the same country. The country of citizenship must have a treaty with the U.S. providing for E-2 treaty investor status. For example, if a restaurant is owned by three Canadian citizens, the restaurant may sponsor a chef who is a Canadian citizen to come and work in the US restaurant. As long as the owners are not also lawful permanent residents or U.S. citizens, this will work. It does not matter if the owners are also dual citizens of another, third country. So, for example, if one owner is a dual citizen of both Canada and Albania, the second owner is a Canadian/Italian citizen and the third is a Canadian/Colombian citizen, the restaurant will still qualify for E-2 treaty investor status through the joint Canadian citizenship. The beneficiary employee must also have Canadian citizenship. The E-2 is temporary, may be approved for two years, and is renewable.

Because the options to come in temporary status are limited, the restaurant may also sponsor a chef directly for the green card, even though the beneficiary chef does not currently work for the restaurant and is not in the U.S. Thus, the restaurant may go through the labor certification process, get an approved I-140 and then have the beneficiary come from abroad through immigrant visa processing to work for the restaurant as a chef.

Owner and Manager starting a business in the U.S.

Owners/managers who wish to start a restaurant business in the U.S., if they are from a country with a bilateral trade agreement with the U.S., may also come to the U.S. as an E-2 treaty investor, if they are coming to develop and direct a company which is a restaurant. They must have a five-year business plan and schedule to increase their hiring of U.S. workers.

For a company that has a very large chain of restaurants, a manager who has worked outside of the U.S. for at least one year for the company, and who is transferred to the U.S. to start a new business/restaurant or manage an existing business/restaurant, it may be possible to obtain an L-1A as a managerial or executive transferee. If it is to open a new business, the L-1A will be approved for only one year. An L-1A for an already existing business may be approved for up to three years, and is renewable for a total of seven years.

Culinary Interns or Trainees

The restaurant may also be able to obtain J-1 Culinary Trainees or Interns for 12 to 18 months. The J-1 intern will be able to work for no more than one year, and must be enrolled in a university or post-secondary program outside the U.S., or have graduated within the past 12 months. Thus, these are young people between the ages of 18 and 25 who are fresh out of school. The J-1 trainee would be able to work for up to one year and a half, and must already have a post-secondary degree outside the U.S., and at least one year of experience in his or her field. This is a good way to temporarily employ enthusiastic young people with a degree in culinary arts or in hotel or restaurant administration. The restaurant/employer would not be the actual sponsor, there are particular J-1 agencies or organizations which are the actual “sponsor”, and the J-1 trainee or intern is placed with a particular employer. The J-1 is not available for unskilled positions.

Hotel Manager TN

A TN as a Hotel Manager, Food and Beverage Dept, may also be possible if a restaurant is an integral part of a hotel, and the candidate is a Canadian or Mexican citizen and has a baccalaureate or licenciatura degree in Hotel or Restaurant Management or Administration, or a Post-Secondary diploma or certificate in Hotel/Restaurant Management and three years experience in Hotel/Restaurant Management.

Temporary or seasonal workers

Restaurants may also be able to obtain temporary or seasonal workers on the H-2B, for positions that are truly seasonal or temporary. For example, many restaurants and hotels have a certain season where they make the most money and have the most customers. During their peak season, they desperately need many additional hands, waiters and so forth. However, after a few months and the season ends, there is no longer work available and these employees are laid off.

Employers have to first file a labor certification showing they could not find U.S. workers qualified, willing and able to perform the job at the prevailing wage for that particular occupation in that geographic location. The employer would have to run a two-day print ad, including one Sunday, in a newspaper of general circulation. Once the labor certification is approved, the employer would then be able to file an H-2B petition with USCIS. These cases are problematic because of the shortage of visa numbers, and also due to timing and processing constraints, as the windows to get a prevailing wage, then advertise, then get the approved labor certification from Dept of Labor and then file with USCIS before the visa numbers run out and in time before the season starts.

It may make sense to apply directly for the green card 

           If a restaurant has an ongoing problem obtaining qualified, competent and reliable workers, it may make more sense to go through the labor certification process and apply directly for the green card. Because of the short-term nature of the above temporary statuses, and because of increased time and effort in the visa process, a restaurant may do better to investing its time and effort in bringing future employees to the U.S. as permanent residents.

Most cases would involve obtaining a prevailing wage determination from the US Dept of Labor, then advertising the job, running at least two Sunday print advertisements in a newspaper of general circulation, placing a 30-day job posting with the state dept of labor, and a notice in the work place for at least two weeks. Professional positions requiring a bachelor’s degree would require at least three additional forms of recruitment. The restaurant would have to interview any candidates who appeared as if they might be qualified for the job, and have job-related reasons for rejecting any U.S. workers. After all recruitment is performed, the restaurant then files the PERM labor certification with U.S. Dept of Labor.

Once the restaurant receives an approved PERM labor certification, the restaurant may file an I-140 for an immigrant preference visa. Once the I-140 is approved, the beneficiary may go for immigrant visa processing and come to the U.S. as a permanent resident. Or, if the beneficiary is already here in the U.S. in legal status, he or she may apply for adjustment to permanent residency.

Copyright 2020 © Heidi J Meyers, all rights reserved

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