by Heidi Meyers | Dec 30, 2019 | Articles
For physicians, as well as for all other foreign nationals, obtaining a green card through the PERM labor certification process actually has three steps and three separate applications: 1) First, is the PERM labor certification, filed with the US Department of Labor; 2) Second, the petition for alien worker, Form I-140 filed with USCIS and 3) Third, the application for adjustment to permanent residency, Form I-485, also filed with USCIS when the priority date is current.
In the first step, the PERM labor certification, the employer has to show that there is a shortage of US workers to do the job. The United States does have a shortage of doctors. Partly because of our aging population, the US expects to have a shortage of 46,900 to 121,900 doctors by 2032, according to the Association of American Medical Colleges. See, https://www.cnbc.com/2019/09/06/americas-aging-population-is-leading-to-a-doctor-shortage-crisis.html.
The employer has to settle on a job description and requirements. However, the employer cannot include requirements which the doctor employee does not already have at the time the application is filed. So, the PERM cannot include requirements that the foreign national doctor anticipates obtaining later, even if in the near future. For example, if the PERM labor certification application includes the requirement that the doctor must be board certified or board eligible (BC/BE), these requirements necessarily include graduate medical training. However, if the physician beneficiary is still in graduate medical training when the PERM is filed, then the application will be denied because the beneficiary foreign national did not meet the employer’s requirements at the time of filing.
If the doctor has been educated abroad rather than in the US, he or she must have their degree recognized by the Educational Commission on Foreign Medical Graduates (ECFMG) and a state medical board as being equivalent to an MD from the United State.
Additionally, the position must be permanent. The US Dept of Labor does not consider graduate medical training positions to be permanent. An employer cannot file a PERM for residency or fellowship positions.
Then, the employer has to file a Prevailing Wage Request with the US Dept of Labor. The prevailing wage is the average wage paid to US workers in the same occupation in the same geographical area, with wages divided up by level of experience, from entry-level positions, Level I, to the most experienced positions, Level 4. The US Department of Labor uses different wages depending upon the doctor’s specialty. For example, there are different wage tables with widely varying wages for gynecologists/obstetricians, family and general practitioners, anesthesiologists, internists, psychiatrists, surgeons, podiatrists, as well as other specialties. It is currently taking the US Dept of Labor about three months to issue prevailing wage determinations.
The employer then has to advertise the job at the higher of either the prevailing wage or the actual wage. If the foreign national’s actual wage is higher than the the wage listed in the prevailing wage determination, the employer has to advertise the position using the higher actual wage. The employer has to place a 30-day job order with the State Dept of Labor, post a Notice of Filing in a conspicuous place in the workplace, and run two Sunday ads in the newspaper of general circulation, and the employer must choose the paper with the largest circulation for their area. Additionally, because it is a professional position, the employer has to use three additional forms of recruitment, which may include trade or professional journals, the Journal of the American Medical Association, among others, the employer’s web site, online job sites, employee recruitment firms, radio and TV ads, etc.
The employer then has to contact and interview all applicants who appear to be qualified for the position and have job related reasons for rejecting any US workers. The employer must wait at least 30 days after all recruitment is completed to file the PERM labor certification. Once the PERM is approved, the employer and physician employee may move on to the next step of filing the Form I-140 petition and if the priority date is current, the application for adjustment to permanent residency, Form I-485.
Copyright 2019 © Heidi J Meyers all rights reserved.
by Heidi Meyers | Sep 9, 2019 | Articles
ICE has begun workplace inspections of employers who have F-1 OPT STEM workers. Thus, if a company has an employee with the two-year extension of OPT work authorization limited to those F-1 students with STEM (Science Technology Engineering and Math) degrees, the employer should be ready for a site inspection by ICE SEVP officers.
If an employer receives an email from ICE regarding a site inspection, the company should have its I-983 training plans organized, as well as supporting documentation, and be ready to show that the employer is complying with the training plan as well as with other OPT requirements.
During the visit, ICE officers may ask to speak directly with the company’s immigration manager, F-1 employee’s supervisor, as well as with the F-1 employee himself or herself.
The scope of the visit should be limited to the purpose of inspecting compliance with the training plan and F-1 OPT. ICE officers should not be allowed to wander around or investigate any other aspects of the company’s business, employees or employment practices. Receptionists should be advised to immediately contact the responsible manager when they arrive. The company representative who deals with ICE needs to keep a detailed record of the name, office location and phone numbers of the ICE agents, the questions asked and responses and documents provided by the company to ICE.
The company manager should be ready to explain the F-1 employee’s job duties, how the position relates to the F-1 employee’s degree and studies, how the F-1 employee is qualified for the position, the qualifications for similar positions, how the manager supervises the F-1 employee and how the training is carried out. If the employee is actually working at a third-party client site, the manager needs to explain how the employee is supervised and trained, even while at a third-party site.
Copyright 2019 © Heidi J Meyers all rights reserved.
by Heidi Meyers | Sep 6, 2019 | Articles
Department of Homeland Security (DHS) has issued a proposed rule requiring collection of all social media sites used for the past five years, including user names, not only to enter the U.S., but also on numerous immigration applications, including those for permanent residency and naturalization.
This is a proposed rule, and DHS is accepting comments up to November 4, 2019. Thus, it is not yet in effect. The rule proposes gathering information on all social media use for the past five years of all applicants for entry into the US, as well as immigrants filing for other immigration benefits.
DHS will use the following list, a drop-down menu, for all ESTA and EVUS applications, requiring the applicant to reveal any use of the following social media sites: Ask FM; Douban; Facebook; Flickr; Instagram; LinkedIn; MySpace; Pinterest; QZone (QQ); Reddit; Sina Weibo; Tencent Weibo; Tumbler; Twitter; Twoo; Vine and Vkontakte (VK).
However, this list is subject to change, and DHS will change it as needed to keep up with new social media and people’s preferences. Applicants for adjustment and other immigration benefits are expected to reveal all social media use in the past five years, not limited to those particular web sites.
DHS’s definition of social media is very expansive and vague, and is not limited to those mentioned on the list: “Social media takes many different forms, including but not limited to web-based communities and hosted services, social networking sites, video and photo sharing sites, blogs, virtual worlds, social bookmarking and other emerging technologies.”
Not only will social media information be required for applications to enter the US on the visa waiver program, using ESTA, EVUS, and visa applications from abroad, but it will also be required for foreign nationals and permanent residents already physically present in the US., applying for permanent residence, naturalization, asylum, advance parole, petitions for family members of asylees, removal of conditions on residency (for those who obtained the green card based on marriage to a US citizen) and petitions by entrepreneurs to remove the conditions on permanent residence (EB-5).
For applicants for adjustment to permanent residency, this new rule coincides with the new public charge rule. As a result, foreign nationals applying for the green card now face a much more arduous and lengthy process, as not only will they be required to provide their credit score, credit report, the amounts of any school loans, credit card debt and any and every other liability, as well as financial information on all the members of their household, but they will also be required to provide information on all social media use and user names for the past five years. This clearly is a strategy on the part of the Trump Administration of ‘looking for bad’, basically making an exhaustive search to try to find some reason to deny applications, and at the same time gather impressive amounts of data on the U.S. citizens connected to each foreign national. Our tax-payer money will be used up searching each and every foreign national’s social media, credit report and voluminous amounts of irrelevant data, to try to bar ordinary law-abiding people from the U.S. rather than focusing resources on actual threats to our national security.
While the proposed rule claims that DHS and its agencies, including CBP, ICE, and USCIS, will respect the First Amendment rights to free speech and association for residents and US citizens who also appear on the immigrant applicants’ social media, in practice this is nothing but lip-service. It is obvious that individual CBP agents, consular officers, and other government examiners have broad discretion and already violate our rights to privacy and free speech and association.
Prior to this rule, CBP (Customs and Border Protection) agents have already been checking the social media of people seeking to enter the US, as has the US State Department when people apply for visas. The other agencies of DHS, including ICE and USCIS, also research immigrants’ social media use, although up to now that information has not been requested on immigration applications
For example, the recent incident this September 2019, in which an F-1 student was initially denied entry into the US not even on the basis of what he himself posted or said on social media, but rather because of what other individuals posted. This Harvard student, who happens to be Palestinian, was interrogated for hours by CBP and was denied entry because of posts by ‘friends’ on social media, deemed to have political opinions contrary to the US by CBP officers. While this decision was reversed because of the intervention of Harvard University, most foreign nationals do not have Harvard or another powerful institution to go to bat for them, and will merely be turned away with no recourse. See, https://www.theverge.com/2019/8/31/20837448/social-media-dhs-cbp-surveillance-us-border-ismail-ajjawi-harvard
CBP’s current practice also affects US citizens, not just foreign nationals, as CBP has been demanding social media information and performing searches of cell phones and other electronic devices of US citizens returning to the U.S. See, https://reclaimthenet.org/us-citizens-gbp-social-media/
Individuals and organizations have the opportunity to submit comments on this new proposed rule, up to November 4, 2019, and make their voices heard to protect our beloved US Constitution. You may send your comments, which must include Docket # DHS-2019-0044 at http://www.regulations.gov, by following the instructions for submitting comments. See 84 Fed. Reg. 171 at p 46557 (Sept 4, 2019), at https://www.govinfo.gov/content/pkg/FR-2019-09-04/pdf/2019-19021.pdf
As George Orwell described in the classic book 1984, “Always eyes watching you and the voice enveloping you. Asleep or awake, indoors or out of doors, in the bath or bed—no escape. Nothing was your own except the few cubic centimeters in your skull.” Our founders believed in limited government, as all-powerful governments turn oppressive.
Copyright 2019 © Heidi J. Meyers, all rights reserved.
by Heidi Meyers | Sep 5, 2019 | Articles
The new Public Charge rule will harm many middle and working class immigrants who have never taken public assistance. The Trump administration’s new rule appears aimed to target all the middle and working class families and young people who believe in the American dream, and who decide to study hard, go to college, work hard, start businesses and advance themselves.
Up until this new rule, USCIS used an objective formula to determine public charge, which required a household income of 125% of the poverty level taking into account the number of individuals living in the household and total household income. Additionally, if the applicant was on some form of cash public assistance, he or she would have to go off that public assistance in order to get the green card. Because it relied on an objective, mathematical formula, the previous procedure to determine public charge was applied generally in a fair and uniform way.
The new public charge rule, more than 200 pages in the federal register, each page having three single-spaced columns, asks the USCIS officers to analyze multiple factors, and make a decision based on the “totality of the circumstances” whether to exclude an applicant based on public charge. The new system is subjective, and leaves a lot of discretion to individual officers, meaning that an officer can decide to deny someone a green card or change of nonimmigrant status, even though the applicant has never received public assistance.
Among the various factors, being younger than 18 or older than 61 is considered a negative factor. Since when have children been considered a “negative factor”? Children are an investment, they are our future. Also, many immigrants rely on their retired parents for childcare and running the household, freeing them up to work many hours. On the other hand, many people older than 61 continue to work. Lacking an employment history is a negative factor, which discriminates against housewives. Thus, the rule discriminates against women, children and the elderly, even if they have never taken public assistance.
Another negative factor is if the applicant does not speak English. Chris Cuomo, broadcast journalist on CNN (and son of former NY Governor Mario Cuomo) and Ana Navarro, Republican strategist and political commentator, have both pointed out that if English ability was the criteria, their parents and grandparents would never have been able to immigrate to the US and they would not be here today.
The adjudicator must also consider the applicant’s health, family status, assets, resources and financial status, education and skills. Even if you have never received public benefits, if you have applied for a public benefit and been denied, this must be revealed and is a negative factor. This brings up another point, which is that most permanent residents (with a few exceptions) are simply not eligible for any federal public assistance programs for the first five years of their permanent residency.
In particular, the new public charge rule seems aimed to target and deny immigration benefits to the Dreamers and other immigrants with the audacity to believe in the American Dream. The new Form I-944, Declaration of Self-Sufficiency requires information about any college loans an applicant has, as well as any credit card debt, mortgage or other liability. What young person who is not wealthy can get through college now without college loans? Many working class and middle class immigrants start their own businesses, and may have to borrow money. How can any middle class family purchase a house without a mortgage? Not only that, the I-944 requires applicants to provide their credit scores. Since when do you need good credit to get a green card or to change your immigration status?
With a bewildering number of details and considerations, whether or not a person is determined to be a public charge and barred from the US or getting a greencard, may come down to a particular officer’s prejudices and outlook.
The broad effect will be that many immigrants who have never taken public assistance and who most likely would not take public assistance in the future, who are middle class or working class aspiring to the middle class, students, women, children and the elderly will be denied their green cards as a “public charge”.
Copyright 2019 © Heidi J Meyers all rights reserved.
by Heidi Meyers | Sep 5, 2019 | Articles
The Immigration Judge must use the categorical approach when analyzing whether a conviction for a crime constitutes a ground of removability under the INA (Immigration and Nationality Act). The facts are irrelevant, only the minimum conduct required to meet each of the elements of the statute is important.
There is a difference between the means used to commit a crime, and the statutory elements required for a conviction. For example, in a drug offense, if the statute refers to “a controlled substance” as an element, it does not matter which drug the defendant possessed or sold, as long as the particular drug is listed as a controlled substance, so the particular drug is a means and not an element. However, this depends upon the particular state statute involved, as different states may view means and elements differently.
If the lists of drugs on the state controlled substances statute and the federal controlled substances statute at the time of the crime are not the same, there is no categorical match, and most likely the respondent cannot be found removable for a controlled substances conviction, depending upon whether the state statute is considered “divisible” or not.
In removal proceedings based on criminal convictions, the U.S. Supreme Court in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) held that the facts of what the respondent actually did that resulted in the criminal conviction are irrelevant. The Immigration Judge is not allowed to look at the underlying facts at all. Moncrieffe clarified that the immigration consequences of a prior conviction turn on a legal issue, which elements the conviction necessarily involved, with any ambiguity “construed in the noncitizen’s favor.” 133 S.Ct. at 1693. “The reason is that the[Immigration and Nationality Act] asks what offense the noncitizen was ‘convicted’ of,…not what acts he committed.” Id. At 1685.
In Mellouli v. Lynch, 135 S.Ct. 1980, 575 U.S. ___(2015), although the defendant had admitted to police that he had in his possession Adderall, a federally-controlled substance, because the conviction itself did not specify what substance he possessed and because the state controlled substances law was not an exact match with the federal controlled substances schedules, he was not convicted of a removable offense under the INA.
While Mellouli was convicted under state law prohibiting possession of drug paraphernalia, it did not matter that he actually possessed a federally-controlled substance, because the state law was not a categorical match with the federal controlled substances schedule at the time of his conviction. Thus, the categorical approach applies to drug convictions.
In Mellouli, the U.S. Supreme Court rejected the Government’s argument that all that is required is a “substantial overlap” between the federal schedules in 21 USC 802 and the state’s controlled substances schedule. Id at 12–14. The Supreme Court found that it was the state schedule at the time of conviction that was significant, not at the time of removal proceedings or any point later in the future. Id. at 3.
In Mellouli, the respondent admitted that the drug he had was Adderall. Adderall is a controlled substance under both federal and Kansas state law. Id. at 3-4. However, even though Mellouli admitted he had a federally controlled substance in his possession, the U.S. Supreme Court held that he had not been convicted of a controlled substance violation under U.S. immigration law, because the Kansas state drug schedule and the federal schedules were not a perfect match at the time of conviction, and because the state’s amended complaint did not include as an element a substance controlled under the federal schedules.
According to the Second Circuit in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), the court held that the particular substance in question is not an element of the offense of NYPL 220.31 (Criminal Sale of a Controlled Substance Fifth Degree) under New York state law, and that each separate controlled substance is not a separate offense.
In Harbin, the Second Circuit asked whether the offense was divisible or indivisible, and set out a procedure to determine this question. First, the Second Circuit looked at the text of the statute. The Second Circuit found that “a controlled substance” was an element of the statute, but not the particular drug, according to the statute’s plain meaning.
Second, the Second Circuit in Harbin looked at the statute’s penalty provisions. Because the penalties were the same regardless of which particular controlled substance was involved, that was another indication that the statute was indivisible.
Third, the Harbin court found that New York State case law did not help the government’s position. The Second Circuit in Harbin pointed out that the prosecutor must name the particular drug involved, so that the defendant 1) is on notice of the charges; and 2) is not at risk of being retried for the same incident, i.e. no double jeopardy. Thus, although the prosecutor must prove the particular drug involved, this is so one can determine to which class or schedule it belongs, and not because each specific drug is a separate offense. Id. at 66. Additionally, the government may have to prove the particular substance involved to show the chain of custody, not because each drug is a separate element. Id. at 66-67.
The Second Circuit made an analogy to murder cases, in which the government has to prove that there was a particular victim, e.g., John Smith, even though the victim’s identity, John Smith, is not an element of the crime, making it a separate crime from the murder of anyone else. Similarly, in drug cases, the government may be required to prove which drug was involved, even though each drug is not a separate element.
The analysis of criminal statutes and their immigration consequences is extremely complex and time-consuming, and reasonable people can differ on their interpretation. The litigation of these removal cases may end up taking many years. Another factor is that if the respondent (the person in removal proceedings) has other immigration issues such as immigration fraud or an illegal entry, this may make their situation even more complex. Those with a long immigration history (which is often the case with foreign nationals who have criminal issues) have an even more complex immigration situation.
However, there is hope for people with immigration issues and criminal convictions, given the decision of the Second Circuit in Harbin as well as recent decisions of the US Supreme Court in criminal immigration cases.
Copyright 2019 © Heidi J Meyers all rights reserved.
