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

Waivers for permanent residents in removal or deportation if they were not eligible for their green card

Permanent residents in removal or deportation may be eligible for waivers, re-adjustment or other relief from removal, such as asylum, even if they were not eligible for their green card at the time they received it. Residents may also have a statute of limitations argument if ICE waits more than five years to place them in removal proceedings

Green card holders who have lived in the US for many years may be shocked to suddenly find themselves in removal proceedings, facing deportation, because they were not technically eligible for permanent residency at the time they entered. At the time they became a resident, they did not meet one of the requirements for their green card. If ICE has waited more than five years to initiate removal proceedings, they may argue that the statute of limitations pursuant to 8 USC 1256(a) has passed. Or, they may be eligible for a waiver under INA 237(a)(1)(H), which waives fraud at the time of becoming a resident, or under INA 212(k), if the inadmissibility was not known to, and could not have reasonably been discovered before the time of departure. Additionally, they may be eligible to re-adjust to permanent residency. Thus, even if you were not technically eligible to become a permanent resident, you still may be eligible for relief from removal and be able to stay in the US with your green card.

Let us take as an example, Analisa from Calabria Italy. Analisa’s permanent resident father petitions for his daughter as an adult unmarried child. They receive an approval on the I-130 relative petition. Because she is an adult, she must remain unmarried throughout the entire process to receive her green card. If she marries, her relative petition will be automatically revoked because there is no family preference category for married children of permanent residents. Any married child of a permanent resident is simply not eligible for the green card.

Her dear dad prepares the immigrant visa application forms and documents. He does it himself from the U.S., with minimal input from his daughter. Dad likes to be in charge. Since she had minimal involvement in the whole immigration application process, she was never informed that if she married, she would not be eligible for her green card.

She goes to the interview at the US Consulate and is issued an immigrant visa. Shortly before she comes to the U.S., she marries her childhood love, Giovanni, but does not tell her parents or family right away.

At the time she enters the U.S., she becomes a lawful permanent resident. She then petitions for her husband Giovanni, and he comes to the US also as a resident. They have two beautiful US citizen children. Seven years go by.

She applies for naturalization, and is fingerprinted. USCIS reviews her file, and refers her case to ICE.

Suddenly, Analisa is placed in removal proceedings for not having been in possession of a valid immigrant visa at the time she entered the US. The Notice to Appear in immigration court charges her with violating the Immigration and Nationality Act, INA Section 237(a)(1)(A), as being inadmissible at the time of entry or of adjustment of status or violates status: “Inadmissible aliens – Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable”. ICE also may or may not charge her with fraud.

First, did US ICE wait too long to put her into removal proceedings? Whether she has an argument that the statute of limitations has passed depends upon the jurisdiction in which she is living. If she resides within the Third Circuit, yes, her attorney can make a motion to terminate based upon ICE initiating proceedings after the statute of limitations.

According to the INA, 8 USC 1256(a), ICE would have had to initiate removal proceedings within five years of the date of Analisa’s becoming a permanent resident, based on her lack of eligibility at the time she was granted residency. Because it was seven years between the date she became a resident and the date ICE issued the Notice to Appear, the statute of limitations has passed and the Immigration Judge should terminate removal proceedings. However, this will work in the Third Circuit but not in other jurisdictions. So, if she resides in New York, most likely she will not win on a statute of limitations argument.

However, she would be eligible for a 212(k) waiver, if she can prove she really did not know she had to remain unmarried throughout the process, and that it would not have been reasonable for her to know. The other option is a waiver under 237(a)(1)(H) which waives fraud at the time of becoming a permanent resident, as long as the individual is the spouse, parent, son or daughter of a U.S. citizen or permanent resident. She may also be eligible for re-adjustment to permanent residency.

Thus, if you were actually not eligible for your green card at the time you received it, you still may be eligible for relief from removal and be able to remain permanently in the U.S. Of course, you will need a competent attorney to represent you in immigration court and for presentation of the waivers and any other applications you may be eligible for.

Copyright 2020 © Heidi J Meyers, all rights reserved.

H-1B Registration Process for Spring 2020

Employers who wish to file cap-subject H-1B petitions for this fiscal year, must first comply with the registration process, which runs from March 1st to March 20th 2020. The employer must first create an account through myuscis.gov, prior to March 1st.

The purpose of the registration period is to allow employers to file basic information about the Company and basic biographic data about each proposed beneficiary, and then to have USCIS run the lottery and select which registrants will receive H-1B visa numbers.

Once a registrant is selected and receives a visa number, the employer will then be able to file an H-1B petition on his or her behalf.

In order to register a potential beneficiary, the employer simply has to provide: 1) the employer’s legal business name; 2) any dbas (doing business as) trade names; 3) FEIN (federal employer identfication number; 4) primary U.S. office address; 5) name, title and contact information of the responsable employee or executive who will be signing the papers.

Only very basic information about the beneficiary will be required: 1) complete name; 2) gender; 3) does the beneficiary hold a master’s or higher degree from a U.S. institution, and eligible for the advanced degree exemption?; 4) country of birth and country of citizenship; 5) Passport number.

No information about the job offer is required, so no need to submit any job titles or job descriptions. The employer also does not need any certified LCA (Labor Condition Application) prior to registering. Registrations may be edited prior to the end of the registration period, if there are any typographical errors or changes to make.

When the registration is submitted online, the authorized signatory is certifying under penalty of perjury that all the information is true and correct. The employer has to pay a $10 registration fee for each potential beneficiary (registrant).

However, even though no certified LCA is required to register, it may be a good idea to get your LCAs certified prior, as once a registrant is selected to receive a visa number, the employer will then need to be ready to file an H-1B petition, which of course requires a pre-certified LCA.

Attorneys may submit registrations on behalf of employers. Attorneys also need to créate their own account with myuscis.gov.

If a registrant, meaning a beneficiary, is selected through the lottery, the employer should be able to file an H-1B petition on April 1st or the first business day after. USCIS has stated that it intends to notify employers no later than March 31st 2020 if their registrant has been selected. However, if an employer is unable to file the H-1B petition during the first week in April, it is not a tragedy, as the USCIS rule provides that USCIS will set a 90-day window to file the actual H-1B petitions, once the registrants who will receive H-1B visa numbers are selected.

Copyright 2020 © Heidi J Meyers, all rights reserved.

Interfaith marriage, religious minority marriage & US immigration

In order for the U.S. State Dept or DHS (Department of Homeland Security) to recognize a marriage for immigration purposes, the marriage must be legal in the place where it is contracted. Not only that, there must be documentary proof the marriage actually took place, unless the country recognizes common law marriage. Religious minorities in certain countries have difficulty obtaining proof of the legality of their marriage. Certain countries also ban interfaith marriages. This creates immigration issues for religious minorities as well as for interfaith couples.

The danger that religious minorities and interfaith couples face in their home countries may also make them eligible for asylum, and is a strong factor in favor of a grant of cancellation of removal.

Example 1: Hindu marriage in Pakistan. Our first example is a Hindu couple, Vishnu and Adhiti from Punjab Pakistan. Vishnu marries his wife Adhiti in Pakistan in 1999. There was no procedure for registration of Hindu marriages in Pakistan prior to the change in the law in 2017.

In 2015, Vishnu goes to the U.S. on a B visa and in 2016, he changes status to H-1B. He misses his beloved Adhiti and their two children. Adhiti goes to the U.S. Embassy in Islamabad to apply for an H-4 visa. She has no certificate from the Hindu temple that married them. Adhiti contacts the Hindu temple where they were married, but the elderly Hindu priest has died and there is no one to help her.

The U.S. Embassy denies her H-4 visa because she lacks any proof of legal marriage. The fact that they have two children does not convince the consular officer. Pakistan does not recognize common law marriage, and because of the Pakistan government’s prior lack of recognition of Hindu marriage, they have no marriage registration from the government. Not only do they not have any government-issued marriage certificate, they also do not have any certificate from the temple which performed their marriage. So they do not have documentary proof that they are actually married.

Even if they did have a temple certificate and were able to satisfy the U.S. Embassy, this would not satisfy USCIS for any applications later on. USCIS would request proof of legal marriage recognized by the government, which depends upon the law of the country where the marriage was contracted.

However, Pakistan’s parliament passes the Hindu Marriage Act, and it is signed into law in 2017. The Act applies retroactively to Hindu marriages that took place prior to the Act, and makes them legal.

After the Hindu Marriage Act goes into effect, Adhiti goes to the local marriage registrar and fills out the Shadiparat (Certificate of Hindu Marriage). She completes the Shadiparat form with her and her husband’s basic information, and where and when she was married. Both Adhiti and Vishnu sign the form, along with two witnesses and the local registrar issues them a marriage certificate. See, Pakistan Act No. VII of 2017 “An act to provide for the solemnization of marriages by Hindu families and for matters ancillary and incidental thereto”, http://www.na.gov.pk/uploads/documents/1491458181_468.pdf See also, Sara Raza, “The Hindu Marriage Act 2017: A Review”, Lums Law Journal Vol 4., https://sahsol.lums.edu.pk/law-journal/hindu-marriage-act-2017-review

They will then have adequate proof of their marriage. Thus, after the change in the law in Pakistan in 2017, Vishnu would be able to have his wife to come to the US. on the H-4 visa.

Let’s change the scenario a little. Suppose Adhiti is desperate to come to the U.S. prior to the change in the law. Is there another option for her? Yes, there is the B-2 visa, which is an option for unmarried partners. According to the Foreign Affairs Manual, 9 FAM 402.2-4(B)(5), the B-2 visa is appropriate for co-habiting partners, and members of the household of the principal, if the principal has a long-term nonimmigrant status. See, https://fam.state.gov/fam/09FAM/09FAM040202.html. For example, the principal may have H-1, L-1, O-1, F-1, J-1, A, G, or NATO status. For any of these long-term nonimmigrant statuses, the cohabiting partner may apply for B-2 status if he or she is not eligible as a derivative.

So, she may apply for a B-2 visa by proving to the U.S. Embassy that she and Vishnu have been living together and have a long-term relationship. Because they have two children, this should be easy to prove.

The B-2 is also an option for gays who are unable to marry in their home countries, or for other permanent couples who for whatever reason do not believe in the institution of marriage.

Example 2: Christian marriage in Morocco. In June 2018, Reuters reported on the marriage of a convert to Christianity, Loubna and her husband Kamal in Morocco. Kamal is also Christian. Because of threats from people in their conservative home town, they had to have their wedding ceremony in the office of a human rights organization in the capital of Rabat. See, https://www.reuters.com/article/us-morocco-religion/christians-want-marriages-recognized-in-morocco-idUSKCN1J4231. Morocco does not recognize Christian marriages as legal, only those of Muslims and Jews. Because Loubna and Kamal’s Christian wedding is not recognized as legal by the Moroccan government, neither Loubna nor Kamal would qualify for derivative immigration status if one was granted any kind of nonimmigrant visa or the green card.

This scenario is similar to our first scenario. Supposing Loubna got an L-1A as an executive or managerial transferee, to come to the U.S., her husband Kamal would not qualify for a derivative L-2, but he would be able to qualify for a B-2 visa as her cohabiting partner.

Example 3: marriage of a Hindu and a Christian interfaith couple in India. In India, interfaith marriages are regulated by the Special Marriage Act, 1954. The Act requires that an interfaith couple must publish the intention of their marriage with the government for at least 30 days prior to the wedding. Both Indian nationals, Christian Mary and Hindu Ramesh love each other and wish to marry. Due to fear of religious extremists who oppose interfaith marriage, attacking them and their families to prevent their marriage, they are too scared to go through the process of publishing their marriage for 30 days prior to the wedding. Instead, they have a simple Hindu ceremony and do not register their marriage with the government.

In order for this to be a different scenario from our first example, suppose they both depart India and enter the U.S. If both are physically present in the U.S., and one obtains immigration status, the other will not qualify as a derivative because they are not legally married. Their marriage is not recognized in the place where it occurred. The easiest solution is to just get married again here in the U.S.

Example 4: Marriage of a Muslim woman and non-Muslim man in Algeria. Fatima, a Muslim young woman from Algeria, comes to the U.S. on an F-1 student visa to attend college. On the college campus, she meets Bob, your average American white male from Iowa, who is a Lutheran protestant. They fall in love. Brimming with idealism, they decide to go to Algeria together for Bob to meet Fatima’s parents and to propose marriage. Fatima’s parents advise her that although they think Bob is a very nice person, he is not suitable for marriage. The parents, although, do ask Bob if he has considered converting to Islam. Bob cannot contemplate praying five times per day, nor fasting for even one day, let alone a whole month. Furthermore, he has been eating ham since he was young and is not about to give it up. Bob answers no, he is not willing to convert, but that he loves Fatima and would work hard to make her happy. The parents are then implacably opposed to their marriage.

Regardless of the position of the parents regarding their daughter’s potential interfaith marriage, Algerian law forbids the marriage of a Muslim woman to a non-Muslim man. Thus, it is not legally possible for them to get married in Algeria. Even if they were to find a sympathetic Imam to perform the marriage, it still would not be legal.

Meanwhile, Fatima’s F-1 student visa has expired and she needs to apply for a new one. Fatima and Bob discuss that once she gets her F-1 visa renewed, they will be able to marry in the U.S. However, this is problematic. In order to qualify for the F-1 visa, one must prove that one’s intention in coming to the U.S. is only temporary, and that the F-1 will return to his or her home country at the end of their stay. If Fatima plans to marry Bob, a U.S. citizen, and stay permanently in the U.S., she could later be accused of immigration fraud.

The solution here is for Bob to file a fiancée petition, with USCIS, and demonstrate that he and Fatima have a genuine relationship, that they are not marrying for immigration purposes, and they plan to spend their lives together. Bob must prove they plan to marry within 90 days of Fatima’s entry into the U.S. He may have to show their specific plan for the wedding. Once USCIS approves the K-1 fiancee petition, it will be forwarded to the U.S. Embassy in Algiers for an interview.

Here, the B-2 will not be appropriate, because they are students and have not lived together. Anyway, Fatima objects to living together until after they marry.

Example 5: Interfaith marriage of a Christian and a Jew in Israel. Israeli Jewish Uri falls in love with Anastasia, an Orthodox Christian who is also Israeli. Because interfaith marriage is illegal in Israel, and Anastasia does not want to convert, they travel to Cyprus, and have a big fat wedding with all the family and friends. They get a legal marriage certificate from Cyprus.

Anastasia later on becomes eligible to immigrate to the U.S. through her U.S. citizen mother. Uri will be her derivative and will be able to immigrate at the same time and they will both become permanent residents. It does not matter that both are Israeli citizens and that both live in Israel where interfaith marriage is illegal. Because their interfaith marriage was legal in Cyprus, where it occurred, the US State Dept and DHS will consider them to be legally married.

Example 6: Muslim marriage in UK, which is not registered. It is perfectly legal for Muslims to marry each other in England, but unfortunately many Muslim marriages are not registered with the government. Sixty percent of Muslim women in the U.K. who have had a traditional Muslim wedding ceremony with a Nikkah, have not had their marriages legally registered with the government. This is not a problem of British law, which does not discriminate against Muslim marriage. It is a problem of the Muslim community not registering the marriages civilly. See, https://www.theguardian.com/world/2017/nov/20/women-uk-islamic-wedding-legal-rights-civil-ceremony-marriage Apparently, more than 90% of mosques are not registering Muslim marriages under civil law.

Suppose Aisha and Muhammad Rehman have a Muslim marriage contract, a Nikkah at a mosque in London and have had a shadi. In order for one to be the derivative of the other for U.S. immigration purposes, all they have to do is register their marriage civilly.

Thus, should your status as an interfaith or minority religious couple make a difficult or impossible to legally marry in your home country, you may have a number of options. First, get married in another third country where it is legal. Second, the partner can come to the U.S. on a B-2 visa if he or she is unable to get derivative status from the principal’s long-term nonimmigrant status. Third, if both partners are here in the U.S., just get married again (the kids love it!). You can call it a renewal of vows. Fourth, if one partner is a U.S. citizen, he or she can sponsor the other for a K-1 fiancee visa, and they then marry within 90 days of entry.

Finally if you face danger in your home country due to your status as an interfaith couple or religious minority, you may be eligible for asylum, withholding of removal or relief under the Convention Against Torture in the U.S. Additionally, the fact that you will be in danger if you return to your home country due to your status as an interfaith couple or religious minority, will be a strong factor in favor of a grant of cancellation of removal.

Copyright 2019 © Heidi J. Meyers all rights reserved.

Does government collection of social media data violate First Amendment rights to freedom of expression and association?

Two organizations of documentary filmmakers are suing the US State Department and DHS for violating their First Amendment rights and placing them in fear for their lives, in order to stop the government’s requirement that all visa applicants provide all their social media identifiers, including pseudonymous ones, during the past five years. This requirement applies even to those foreign nationals who have lived in the US for many years and who travel abroad to obtain a visa and return to the US. The US government is also retaining this private information, and sharing it with other government agencies, possibly for years to come, so it is an ongoing violation of rights.

The Doc Society is a non-profit “committed to enabling great documentary films and connecting them to audiences globally” See, https://docsociety.org/. The International Documentary Association supports nonfiction filmmaking and filmmakers, and provides educational seminars, promotes collaboration and sharing of ideas among the filmmaking community, as well as tours for American films. See, https://www.documentary.org/programs.

They allege that the requirement of providing all social media information violates their First Amendment expressive and associational rights. It chills protected speech by forcing them to provide access to the government of “their personal, creative and political activities online”, and putting their lives in danger, as well as their family’s lives. Complaint, p. 2. See, https://www.brennancenter.org/sites/default/files/2019-12/Complaint%20Doc%20Society%20v%20Pompeo.pdf

Many of their member filmmakers live in authoritarian countries, and their work draws attention to human rights abuses as well as political and social issues, and is often critical of their own and other governments. They also use their protected speech to connect with other filmmakers, artists and advocates.  “In recent months, authoritarian and other rights-abusing regimes, including some U.S. allies, have used information gleaned from social media to identify, locate and detain human rights advocates, journalists and political dissidents-and even, in some instances, to have them killed” Complt, p. 4.

U.S. officials may disclose their social media identifiers to foreign governments, or fail to protect their social media from being inadvertently disclosed to third parties. Moreover, once the US government has all their social media identifiers, including their pseudonymous one, they may be subject to continuing, ongoing surveillance by the US government of their political and artistic activities.

This also harms American-born filmmakers, because it makes it much more difficult for them to discover and spotlight the talent and work of filmmakers abroad and to learn about issues foreign filmmakers face. It deprives American-born filmmakers of being able to hear the speech that foreign filmmakers would have otherwise shared on social media. It also means that they will no longer be able to attract many filmmakers and others from abroad to come to the US and participate in their events, screenings and conventions, causing an ongoing large loss of revenue.

In addition to violating the First Amendment of the US Constitution, the complaint also alleges that the requirement to provide social media information violates the APA (Administrative Procedure Act), and is arbitrary and capricious.

The case was filed in the U.S. District Court for the District of Columbia, Doc Society and International Documentary Association v. Michael Pompeo, Sec of State and Chad Wolf, Acting Sec of DHS, Docket No., 1:19-cv-03632, on December 5, 2019 and is currently pending.

Copyright 2019 © Heidi J Meyers, all rights reserved.

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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