Employers & Foreign Nationals with Delayed Immigration Cases Can Go to Federal Court to get a Decision

Employers and their employees with H-1B, Ls or Os pending for many months or more than a year have the option of going into federal district court in order to get their petitions adjudicated by USCIS. Similarly, foreign nationals and their US citizen husbands or wives with marriage cases (or other relative petitions), as well as applications for adjustment to permanent residency, that have been delayed for years have the option of going into federal court. The employer or individuals, though an attorney, may file a petition for a writ of mandamus in the federal district court in order to force USCIS to promptly make a decision on the case. See 28 U.S.C. 1361.

The petition for a writ of mandamus may also be used effectively with large groups of immigrants negatively affected by US government processing delays. An example would be the preliminary injunction issued by the federal judge in Afghan and Iraqi Allies v. Pompeo, 1:18-cv-01388-TSC (D. District of Columbia) where the government was taking more than three to five years (since the case has been ongoing, it is now four to six years) to adjudicate SIV (Special Immigrant Visa) applications on behalf of Afghans and Iraqis who had worked on behalf of the US government, for example as interpreters for the US Armed Forces, in very dangerous conditions. These brave individuals had risked their lives in the service of the US government, how could the same US government delay their applications to come to the US for three or more years?

Regarding petitions for writ of mandamus filed by employers or individual family members, the US Attorneys Office often tries to settle these cases, and just have USCIS adjudicate the case and quickly issue a decision. Thus, it is an effective means to get an answer on a case where the government has been sitting and not doing its job. You will not see much published case law on writs of mandamus precisely for that reason, that the government is usually anxious to settle.

What do you need to be able to file for a writ of mandamus? First, you need a meritorious case that is thoroughly documented. The writ of mandamus only gets the government to adjudicate your case, the petition does not ask that it be approved. Basically, you are saying that it is the government’s job to adjudicate immigration cases, this case has been pending for an unreasonable amount of time, and the judge should tell the government to do its job and make a decision on the case.

Second, you need to show that you have made many efforts to get the USCIS or DHS to adjudicate your case – by writing letters, calling, making infopass appointments, etc., but the USCIS has still not given you an answer. One of the requirements for a writ of mandamus is to show “exhaustion of administrative remedies”. This means that, before going into federal court, you made every effort to repeatedly try to get the government to made a decision on your case, so you have “exhausted” every other avenue and going to federal court is a last resort.

Third, you need to show that the delay is “unreasonable”. How long a delay must be to be “unreasonable” depends on the particular facts of the case. In certain cases, the case may be delayed months or years past what USCIS has published is their current processing time (you can find processing times on their web site at USCIS.gov). However, the posted USCIS processing time may itself be unreasonable if it is contrary to Congress’s intention in the statute or longer than specified by federal regulations. A delay may also be unreasonable where the petitioner employer, beneficiary employee or family member petitioners or applicants may be harmed because of the delay. For example, with our brave Afghan and Iraqi interpreters and other personnel who worked for the US military and government, they or their family members may be gravely injured or killed by the Taliban or other anti-American groups while the US government dawdles in adjudicating their cases. Another example is an employer who needs an H-1B worker to start a project by a certain date, otherwise the company will suffer a great economic loss, not only on the particular project but perhaps also lose future business of the client.

Fourth, as mentioned above, you cannot ask the federal court for an approval, you can only ask under the writ of mandamus for a decision. Should the case be denied, you would have to file separately in federal court to challenge the denial.

Filing in federal court is complex and time consuming, and you will need a competent immigration attorney to assist you.

Copyright 2019 © Heidi J Meyers, all rights reserved.

BAHA (Buy American Hire American), and Increased Denials of Employment Visas

The Buy American and Hire American (BAHA) policy, in Executive Order No. 13877, issued by President Trump on April 14, 2017, mandated that the Department of State (DOS), Department of Justice (DOJ), Department of Labor (DOL) and Department of Homeland Security (DHS), all issue new rules to “protect the interests of United States workers”. These vague guidelines did not take account of the fact that protection of US workers was already written into the statute and the regulations in many ways. For example, for the H-1B, employers are required to pay at least the prevailing wage or the actual wage, whichever is higher, to foreign H-1B workers, and provide the same working conditions and benefits to US workers and foreign workers alike.

Aside from not taking into account the numerous protections of US workers already in immigration law, the Trump administration policy also failed to take account of the record low unemployment rates in the U.S. and shortages of US workers, particularly in the STEM fields.

Formally, there are no new visa requirements, nor are there new grounds of denial. The broad, vague wording of the executive order and the foreign affairs manual leaves consular officers to their own devices. They are able to exercise their discretion to deny visas based on unarticulated, nonspecific accusations that the visa applicant may be taking a job from a US worker, or that a US worker may be available, at least inside the consular officer’s head, as the officials act lacking any kind of facts or proof that there would be a US worker to do the job.

At US Consulates abroad, the consular officers are often second-guessing USCIS approved petitions, in all the employment-based categories, including H-1B (temporary professional), L (specialized knowledge transferees and managerial/executive transferees), O (aliens of extraordinary ability), and P (athletes, entertainment groups, artists and entertainers who are culturally unique).

For E-1s and E-2s, of course, there is no separate USCIS petition needed and the applicant applies directly to the US consulate, but for all the other categories, the visa applicant would already have an approved USCIS petition for the particular category.

For example, for approved H-1B petitions, where the employers have already confirmed that they will be paying a Level I wage of $76,190 for a software developer to work in the NYC area, consular officers may question H-1B applicants as to why the employer would hire the foreign visa applicant rather than a US worker.

Because of the general, overall change in attitude to interpreting all visa requirements in a more restrictive way, and to “look for bad”, it is not possible to separate out the effects of the BAHA policy specifically in terms of percentages. In each and every way, consular officers are scrutinizing visa applications more closely, and denying visas at a much higher rate under the Trump administration.

For example, for E-2s, consular officers are scrutinizing escrow arrangements more closely, as well as complicated corporate structures and the source of the funds for the investment. E-2 renewals have become more difficult and the consular officer will check if the company has adhered to the business plan in terms of hiring US workers and business expansion.

With the L-1B applicants (specialized knowledge transferees), even though there is already an approved USCIS petition, consular officers are looking more closely at whether the visa applicant really has specialized knowledge, and applying a very high standard (a trend towards making L-1Bs into O-1s). For L-1As (executive or managerial transferees), the consulates are questioning functional managers who do not actually manage a large number of employees, as well as those applicants who only recently became managers or executives through a promotion. Lack of English skills and low salaries are also problematic.

Similarly, with O-1s (aliens of extraordinary ability), there is a trend for consulates to re-adjudicate approved USCIS petitions. Is the visa applicant really all that extraordinary?

Re-adjudication and closer scrutiny of already approved petitions is not limited to those consulates outside of Europe (i.e., not limited to non-white people). This is taking place also in European consulates including but not limited to, London and Madrid.

What can an employer do to increase the chances of approval? While it may seem bizarre for a prospective employee to know all about a company’s recruitment, advertising and ability to hire US workers, that is exactly what the prospective employee visa applicant needs to be prepared on. The visa applicant will have to be able to talk knowledgeably about the company’s recruitment practices and how they have not been able to find US workers, and to submit documentation backing this up.

The visa applicant should also be very familiar with the entire contents of the employment petition, and be able to talk and convince the consular officer of each element required for the particular visa category.  Since some time will have passed since the USCIS petition approval and the consular interview, the employer should also provide updated documentation.

The above is not intended as legal advice, and you should hire a competent immigration attorney for advice regarding your specific case.

Copyright 2019 © Heidi J Meyers, all rights reserved.

SOCIAL SECURITY NO-MATCH LETTERS, I-9 AUDITS AND THEFT OF SOCIAL SECURITY ID

During 2019, more than half a million employers have already received social security no-match letters. The Social Security Administration had discontinued sending “no-match” letters (Employer Correction Request Notices – EDCOR) in 2011, but during 2019, the SSA is determined to send no-match letters to each and every employer in the U.S. who reported at least one employee with a name and social security number that did not match its records.

While the Social Security Administration itself is not an enforcement agency, and cannot penalize employers who do not respond to no-match letters, if an employer fails to take corrective action after receiving a no-match letter, and ICE (Immigration and Customs Enforcement) does a Forms I-9 audit, the employer’s lack of action may be considered constructive knowledge that the employee lacks work authorization.

What should an employer do upon receiving a no-match letter? The employer first needs to check its own records and see if there was a typographical error, or perhaps a name change. If it was merely a typo, the employer should contact SSA to make the correction. The employer should keep records of its contacts with SSA and attempts to fix the problem, to show ICE later on in case of audit. The employer should also keep a record once the SSA verifies the social security number and information.  The SSA has online resources to help employers who have received a no-match letter, https://www.ssa.gov/employer/notices.html

An ICE regulation (not in effect due to litigation) states that 30 days is a reasonable period of time for the employer to make corrections. However, the SSA no-match letters themselves state to look into the problem and make corrections online with their BSO (Business Services Online) within 60 days. The DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices recommends that employers provide employees a “reasonable period of time” to correct their information with SSA, without specifying how long is “reasonable”. The DOJ cautions that employers must not use a no-match letter as a basis to terminate, suspend or take any other adverse action against an employee. The employee must be provided the opportunity to fix the problem. See, https://www.justice.gov/sites/default/files/crt/legacy/2014/12/04/Employers.pdf

If it is not so simple as a typo or name change, the employer must request the employee to follow up with the appropriate agency, either the SSA or with DHS. One possibility is that the employee has been using an ITIN (Individual Taxpayer Identification Number). An ITIN is a number allowing a nonresident alien who lacks a social security number, to pay their taxes to the IRS. See, https://www.irs.gov/individuals/individual-taxpayer-identification-number. It is a legitimate number, but it cannot be used as a substitute for a social security number. If the work is already performed, then the worker would have to be paid as an independent contractor and issued a 1099 at the end of the year rather than a Form W-2.  The employer should consult a CPA or tax lawyer to figure out the best course. However the employer must keep in mind that an ITIN number does not give the employee work authorization, and that ICE may deem them to have had constructive knowledge that their worker lacked work authorization. The employer could end up having to pay very high fines for employing an unauthorized worker.

Many employers feel hard-pressed to find US workers. Rather than pay an undocumented person on the books, in addition to hiring unauthorized workers, the employers also pay the workers in cash and do not report part of their income to the IRS. This makes the situation even worse for the employer. Not only are they knowingly employing an unauthorized worker, but the employer may be charged with tax evasion and money laundering, and face criminal charges. For example, in 2016, two owners of a dry cleaners in New Jersey, were sentenced to more than one year prison and three years supervised release for failing to report the wages of undocumented workers and failing to pay payroll taxes, as well as for alien harboring, as they had the undocumented workers live in a house that they owned. See, https://www.irs.gov/compliance/criminal-investigation/examples-of-employment-tax-fraud-investigations-fiscal-year-2016 . So, it is always better to pay on the books and report all income to the IRS.

On the employee’s side, there are grave consequences to using someone else’s social security number and ID. Number one, if the employee mis-represents himself as a US citizen on the Form I-9, ICE can charge him with inadmissibility for which there is currently no waiver. See, INA 212(a)(6)(C)(ii)(I). Misrepresenting oneself as a U.S. citizen is a permanent bar to receiving any immigration benefit, other than perhaps withholding under the Convention Against Torture. Or, if the employee misrepresents himself as a permanent resident or as having work authorization, he again will be subject to another ground of inadmissibility for fraud and misrepresentation in procuring an immigration benefit. See, INA (212)(a)(6)(C)(i). There is a waiver available, however, only if the employee can show extreme hardship to a US citizen or permanent resident spouse or parent should they be deported from the U.S. Having US citizen children does not qualify you for a fraud waiver.

Second, the worst part about using someone else’s social security number is that you may be charged under federal criminal statutes. 18 USC 1546 applies to fraud and misuse of visa and immigration documents. 18 USC 1546(b) criminalizes the use of someone else’s ID, including for the purpose of showing work authorization.

A case currently pending before the U.S. Supreme Court, Kansas v. Garcia, Docket No. 17-834, involves several undocumented workers who used someone else’s ID in filling out I-9 forms. The lead respondent, Ramiro Garcia, a cook for a restaurant, Bonefish Grill, used someone else’s social security number when filling the I-9, W-2 and state K-4 Forms required upon hiring. The State of Kansas criminally charged Mr. Garcia with using a social security number belonging to another person in order to establish work authorization. A state jury convicted him of identity theft. The other respondents had similar stories.

The Kansas Supreme Court however, held that federal law expressly preempts state prosecutions of individuals who use another’s ID to show that federal law authorizes them to work, relying on the plain language of 8 U.S.C. 1324a(b)(5): “It is Congress’ plain and clear expression of its intent to preempt the use of the I-9 form and any information contained in the I-9 for purposes other that those listed in Section 1324a(b)(5)”. The Kansas Supreme Court held that federal law precludes a state from using not just the I-9 form but also all the information contained in the I-9 form as the basis for a state identity theft prosecution.

The question before the US Supreme Court is “(1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents” See, https://www.scotusblog.com/case-files/cases/kansas-v-garcia/

The third serious consequence is that workers who use another’s social security number or just an incorrect social security number, will not have their wages credited towards social security benefits later on when they retire. Thus, they will be missing out on a possibly large amount of money in their old age. They will also not be eligible for an exemption from the affidavit of support requirements, which provide that beneficiaries with at least ten years of social security-reported income are exempt from having the petitioner in a family petition filing an affidavit of support on their behalf.

Copyright 2019 © Heidi J Meyers, all rights reserved.

New State Dept Public Charge Rule in Effect Shortly and Will Apply to Almost All Immigrant Visa Applications

On October 11, 2019, the US Department of State (“State Dept”) published a new public charge rule, to go into effect in 60 days, which applies to almost all immigrant visa applications. See, 84 Fed.Reg. 198, at 54996-55015. The new State Dept rule closely tracks the DHS public charge rule, which is currently enjoined by a federal court. For the time being, all applicants for adjustment who apply within the US to USCIS for their greencards are still subject to the old rule, which relies on the affidavit of support and a mathematical formula.

Even though the federal court has prohibited DHS from implementing their public charge rule until a final decision on the case, the State Dept is a separate government agency, and the federal court injunction does not apply to it. The State Dept processes immigrant visas for foreign nationals outside the U.S. Once they have an interview at the US Consulate abroad and receive their immigrant visa, they then enter the US as permanent residents.

The Consular Officer (“CO”) must consider all positive and negative factors in the “totality of the circumstances”, to determine if the applicant is likely to become a public charge “at any time”. The State Dept rule closely tracks the new DHS rule, and creates positive and negative factors for the Consular Officer to consider. Factors include the following:

1) Health and health insurance are prominent among the factors. Having health insurance (or prospect of obtaining private health insurance) or the “financial resources to pay for reasonably foreseeable medical costs” is repeatedly underlined as important, when discussing various factors. The State Dept considers as a heavily weighted negative factor, should the applicant require “extensive medical treatment or institutionalization or the condition will interfere with the alien’s ability to provide care for him-or herself, to attend school or to work” and lacks health insurance or the resources to pay for medical care. Chronic medical conditions or existing medical conditions will also require an applicant to obtain health insurance, to avoid it being a strongly negative factor.

In addition to the State Dept rule, President Trump’s Presidential Proclamation, issued October 4th, to take effect November 3, 2019, requires all immigrant visa applicants to prove they will be covered by health insurance within 30 days of their entry into the U.S.

2) Age, being between the ages of 18 and 62 is a positive factor, while being under 18 or over 62 is a negative factor. The support provided to a minor by a parent or legal guardian may offset this negative factor. The CO must consider whether the applicant’s age makes him or her unlikely to obtain work or create higher potential health care costs.

3) Education and skills. The applicant’s level of education, work history, any job skills, certifications or licenses and English proficiency.

4) The size of the household, “family status”. Aside from a few vague words, it is unclear how consular officers are to judge different family sizes. How many children can a family have before it is ‘too big’? Would a single parent household be considered ‘too small’? Again, because the language is vague, different COs will interpret it in very different ways.

5) Assets, resources and financial status. The rule restates the prior test, which is whether household income is at least 125% of the poverty level, as well as how to counts assets towards the income requirement.

However, this part of the rule is made more complicated because in another section, having an income of at least 250% of the federal poverty level is considered a heavily weighted positive factor. Will the 250% become the new standard, rather than the 125%? It is unclear how to reconcile these two aspects of the rule.

6) Not working or being a fulltime student if you have work authorization, lacking a work history, lacking prospects of future employment, are all negative factors. Being a primary caregiver for a family member is considered a positive factor, and it is unclear how these two factors should be balanced one against the other.

7) Public benefits. Not only if the applicant has actually received public assistance, but also whether they have ever even applied (including those who were denied public benefits and never actually received them).

A heavily-weighted negative factor is if the applicant has received or been approved to receive, one or more public benefits for more than 12 months in the aggregate during any 36-month period, or two benefits during a six-month period beginning October 15th 2019, or 36 months prior to adjudication of the applicant’s immigrant visa, whichever is later.

In the past, only cash public assistance was considered. Now the State Dept will consider many forms of non-cash public assistance including any federal, state, local or tribal cash assistance; SSI (Supplemental Security Income); TANF (Temporary Assistance for Needy Families); Food stamps – supplemental nutrition assistance program; Public housing and Section 8.

There are exceptions that allow pregnant women (up to 60 days after giving birth) and children under 21 to receive Medicaid, emergency medicaid, Medicaid received by the disabled; school-based services up through high school. There is an exemption from the public benefit definition for enlisted members of the US Armed Forces, or in the Ready Reserve, and their immediate family members

8) Applying for a USCIS fee waiver is a negative factor. Thus, if you have applied for a USCIS fee waiver in the past, this may be considered a negative factor. Only fee waiver applications after the October 15th effective date will be considered.

The new State Dept rule changes the public charge determination from an objective mathematical formula based on household size and total income, to a subjective decision, “in the opinion of” the CO, using numerous factors, and no clear path on how to apply or balance one factor against another. This will lead to unpredictable, subjective, wildly different decisions and a huge increase in denials of immigrant visas based upon the public charge ground of inadmissibility. It is another way to deny many meritorious immigrant applications, separating families and punishing immigrants for their very existence.

Copyright 2019 © Heidi J Meyers, all rights reserved.

You can be deported from the US for smuggling your own child, and even if you were paid nothing?

You can be barred from the US for smuggling, even if of your own child, and even if you were not paid. The Trump administration is going after ordinary immigrants with both criminal and civil smuggling charges, even if they are not connected to professional criminal smugglers. However, there is a waiver.

In 2017, the Trump administration hatched a plan to prosecute the parents and family members of children who were smuggled to the US. There are various criminal grounds under which one can be prosecuted for smuggling. See, for example, “Documents detail ICE campaign to prosecute migrant parents as smugglers”, https://theintercept.com/2019/04/29/ice-documents-prosecute-migrant-parents-smugglers/. Oddly enough, the Trump administration, in a cruel twist, has focused on individual parents and family members, and has not devoted much in the way of resources to stopping professional criminal smuggling networks. See, “Despite Trump’s tough talk about migrant smugglers, he’s undercut efforts to stop them”, https://www.propublica.org/article/trump-migrant-smugglers-border-patrol-homeland-security-undercut-efforts-to-stop-them

This article will not review the criminal charges for smuggling, we will only review the charges of inadmissibility and deportability/removability for smuggling. Many parents and other family members have been charged by ICE with smuggling, in order to deny them immigration benefits and deport them from the U.S.

The ground of inadmissibility for smuggling, Section 212(a)(6)(E) of the Immigration and Nationality Act (INA) bars from the US any foreign national “who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law”. The statute does not require any remuneration. If you help a friend or relative enter the US illegally, you may be charged with smuggling even though you did not get paid anything and received no compensation. The statute is very broad and covers ordinary people, not just professional smugglers. Notice that the statute includes smuggling “at any time”; there seems to be no time limit to how far in the past the smuggling occurred.

There is also a ground of deportability for smuggling, which does have time limits. The ground of deportability would apply to people who have already entered the U.S., as well as to permanent residents. The ground of deportability (also called removability), Section 237(a)(1)(E), states: “any alien who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable”. Again there is no element of remuneration. However, there is a time limit. If someone has been residing in the U.S. for more than five years, has not traveled, and then commits smuggling, the individual is not deportable.

The U.S. Consulates have been aggressive in questioning applicants for immigrant visas about any possible smuggling issue, particularly if they brought their children to the U.S. Unfortunately, many would-be immigrants who have previously lived in the U.S. for long periods of time, obtained an unlawful presence waiver and then traveled abroad for their interview with the US Consulate to get their immigrant visa and come back as a permanent resident are shocked to find their immigrant visas denied because of a smuggling charge.

It is enough to sustain a smuggling charge if the parent paid a smuggler, or made arrangements, to bring their child to the U.S., even though the parent himself did not actually transport the child across the border. See, for example, Ramos v. Holder, 660 F.3d 200, 203-206 (4th Cir. 2011).

However, smuggling charges have not been sustained if the applicant did not have any plan prior to the smugglee’s entry to bring the person to the US. For example, the AAO held in an unpublished decision that an applicant who picked up his brother after the brother had already entered the US. did not commit smuggling. See, In re [name redacted], 2014 Immigration Reporter LEXIS 4288 (AAO Oct. 22, 2014). The BIA has also held that where the person picks up a smugglee near the border, “the focus is on whether there was pre-arrangement”. See, In re Maria Isabel Guzman-Sanchez, A087-118-694 (BIA Oct. 23, 2013).

The good news is that there is a waiver for this ground of inadmissibility, Section 212(d)(11), which is discretionary and may be granted for “humanitarian purposes, to assure family unity, or when it is otherwise in the public interest”, in the case of a permanent resident who has traveled out of the US, and who is otherwise admissible as a returning resident. It also waives inadmissibility for foreign nationals with an immediate relative petition (through their U.S. citizen child, spouse or parent), if the smuggling was only of their spouse, parent, son or daughter.

There is a similar waiver of the ground of deportability for permanent residents, INA 237(a)(1)(E)(ii) and (iii). So, it is possible to overcome a charge of smuggling.

Copyright 2019 © Heidi J Meyers, all rights reserved.

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