For employers and employees who have started preparing their H-1B petitions for filing on April 1st, it is not too early to start thinking of alternatives in case your petition is not selected in the H-1B lottery. This article is just a short overviews of possible options, and does not provide all the details of the requirements for each visa option.
Employers may file an H-1B petition on behalf of an employee, and at the same time may pursue filing petitions for other nonimmigrant visa categories, for example, an L-1A, L-1B or O-1A on behalf of that same employee. Or, go for the gusto and file straight for the geen card. The alternatives available depend upon many factors.
One of the complaints of commenters to the new H-1B rule, was that the new lottery system favors presumably young and inexperienced students over much more experienced foreign workers. If a company wants to sponsor a very high-level foreign worker, the O-1A or O-1B may be an option. The O-1 is for foreign workers who have extraordinary ability in their field, be it science, education, business, athletics, art or the motion picture and television industries or even “any field of endeavor”.
Just how “extraordinary” does the foreign worker have to be to meet the standard for the O-1? This depends upon the field. For the O-1A classification, if the foreign worker is to be employed in the fields of science, education, business, or athletics, the standard is extremely high, and it would have to proven that the individual is at the top of his or her field. The proof must include either receipt of a major international award, such as a Nobel prize, or by submitting at least three of six types of evidence, such as the following: nationally or internationally recognized prizes or awards; membership in an exclusive professional association that requires outstanding achievements to be a member; articles about the beneficiary in professional or major trade publications or media; the beneficiary has judged the work of others in the field; the beneficiary’s important original scientific, scholarly or business contributions; the beneficiary has written important scholarly articles; employment in a critical role for a distinguished organization; or a high salary.
However, for those who will be employed in the arts, the O-1B classification requires only that the artist be “prominent” in the field, and is a lower standard. The arts is defined very broadly, including but not limited to the following: fine arts; visual arts; culinary arts; performing arts; and architecture. The proof must include at least three of a list of six types of evidence, such as performed in a lead or starring role for distinguished productions, or distinguished organizations, critical reviews and articles in the media, a record of major commercial or critically claimed successes, recognition of achievements from experts in the field or a high salary.
Second, if the company in the US has a subsidiary, or offices abroad which already employ the foreign worker, the employer may be able to file an L-1B (specialized knowledge worker) or an L-1A (manager or executive) petition. Whether this is an option depends upon the relationship between the overseas company and the US company sponsor. The US company and the overseas company must be a parent/subsidiary, branch office of the same company or a joint venture. This is just a general description, the specific requirements are more detailed, and should the ownership or control of either company change, then the foreign worker may no longer be eligible for an L visa. According to the statute as written, the employee must have worked for the overseas company for at least one year out of the last three years, but in practice USCIS is extremely exacting and many more years of experience may be necessary in order to convince USCIS that the foreign worker really qualifies for an L visa. For a specialized knowledge worker petition, the employer must show that the employee has “special knowledge of the company product and its application in international markets” or “an advanced level of knowledge of processes and procedures of the company.” In order to qualify for L-1A status, the employer must show that the employee will be primarily performing managerial or executive duties, and not engaged in day-to-day operations that can be handled by less senior staff. This standard is especially difficult for a small company with few employees to meet.
Another option may be the E-1 treaty trader or the E-2 treaty investor. There must be a treaty providing for E visas between the U.S. and the foreign country of which the employer and employee are citizens. If the foreign country does not have any treaty with the U.S., it is not possible to file for an E-1 treaty trader or E-2 treaty investor. For example, India does not have such a treaty with the U.S. so its citizens cannot apply for either E-2 or E-1 status, while Pakistan does have a treaty, so Pakistanis may apply for either E-1 treaty trader or E-2 treaty investor. There is a long list of countries with which the US has bilateral investment treaties, for example, Argentina’s, Colombia’s and Italy’s provide for both E-1 and E-2 visas. Some countries have treaties which provide for only one or the other, for example, Albania’s and Egypt’s provide for only E-2 treaty investor. Here is the list of countries with which the US has treaties for E visas: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
The sponsoring company must have the nationality of the treaty country. In a small company, for example, the nationality would be determined by the individual owners of the company. For a publicly-traded company, if the company shares are listed exclusively on a particular stock exchange, that is a factor in determining the citizenship of the company, but the company would still have to provide additional evidence.
For E-1 treaty traders, the company must prove that the beneficiary is being admitted “solely to carry on substantial trade, including trade in services or trade in technology, principally between the United States and the foreign state of which he is a national” INA 101(a)(15)(E)(i). The beneficiary must be coming to the U.S. for an executive or supervisory position, or possess skills essential to the firm’s operations in the U.S.
For E-2 treaty investors, the company must prove that the E-2 investor is coming to the U.S. “solely to develop and direct the operations of an enterprise in which he ahs invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital” INA 101(a)(15)(E)(ii). In addition to the investor who provides the capital for and runs the business, an E-2 company may sponsor other E-2 employees for executive or supervisory positions, or where the employee has specialized skills essential to the business, if US workers are not available to do the job.
The above options are all good ones, as the sponsoring employer may continue to employ the foreign worker for long periods of time, and there are no limits on visa numbers. For the O-1A, O-1B, E-1 and E-2 visas, there is no limit on extensions. For L-1A there is a limit of seven years, while for L-1B there is a limit of five years.
As mentioned above, this is only a short overview. Should you need detailed advice, you will need to retain a competent immigration attorney.
In Part II, we will discuss possible options for temporary visas which provide only for short periods of employment, or for a status that does not allow employment, but allows for training or certain types of business activities.
Copyright 2019 © Heidi J. Meyers all rights reserved.
In 2019, DHS is still accepting applications for waivers of old removal, deportation and exclusion orders for people who never departed the U.S., are still here and are eligible for their green card but for their old deportation order. Applicants must show all the positive factors in their favor, such as U.S. or permanent resident spouse, parents or children, work history, medical issues of any family members, the applicant’s important role in taking care of the family, military service of any family members, bad conditions in the native country, etc. The positive factors must outweigh the negative factors including having an outstanding deportation order and never having left the U.S.
So, for example, if an applicant has an immediate family member who is a U.S. citizen, and obtains an approved relative petition, the applicant may then apply to waive the old deportation order. Once he or she receives an approval of the I-212 waiver, the applicant is then eligible to file an I-601A provisional unlawful presence waiver based on a U.S. citizen or permanent resident parent or spouse who would suffer extreme hardship should they not be allowed to live in the U.S. Those who have only US citizen children will not be able to qualify.
With both the approved I-212 waiver and the approved I-601A waiver in hand, the individual is then ready to go ahead with immigrant visa processing, get an interview date at the US Consulate in his or her home country, and proceed abroad for the interview for an immigrant visa, and then return to the U.S. as a lawful permanent resident.
Copyright 2019 © Heidi J. Meyers all rights reserved
The final H-1B regulation published January 2019, prioritizes F-1 students and others who have completed a U.S. masters degree. This aspect of the rule will be in effect as of April 1, 2019, for this year’s H-1B season. However, the registration requirement will not be implemented until later.
Employers may file an H-1 petition up to six months prior to the start date of the sponsored employee. Demand has consistently been higher than the H-1B visa numbers available. H-1B visa numbers for new beneficiaries (new employees who have not had an H-1B visa number within the past six years) are limited to 65,000 for beneficiaries with a bachelors degree or equivalent, plus an additional 20,000 visa numbers for those with US masters or higher degrees. That means there are only 85,000 total H-1B visa numbers for cap-subject cases each fiscal year. Because the new fiscal year starts on October 1st, employers must file any new, cap-subject H-1B petitions within the first five business days of April. Thus, for this year, employers have between Monday April 1st , 2019 to Friday April 5th, 2019 to file for a start date of October 1st, 2019. Filing means that the petition must be received by those dates.
USCIS then runs a lottery to determine which H-1B petitions will receive a visa number. Those petitions that do not receive a visa number are returned to the employers. Receiving a visa number does not mean that the petition will be approved. It just means that USCIS will take the filing fees, review the petition and adjudicate it. Thus, those receiving visa numbers may still have their H-1B petitions denied.
In the final rule, DHS changes the procedure by which H-1B cap-subject petitions are selected in the lottery in order to favor F-1 students and others who hold a masters or higher degree from a U.S. college or university. Thus, employers who already employ an F-1 student (assuming he or she has a US advanced degree) on OPT have a higher chance of obtaining an H-1B visa number for their employee, than an employer sponsoring an employee abroad whose education was also abroad. The final rule reverses the selection process that USCIS used in the past. Now, USCIS will randomly select H-1B petitions for the regular cap first (the 65,000 visa numbers that may go to any beneficiary with at least a bachelor’s degree or equivalent, including foreign degrees, and also combining education and experience). After filling up the 65,000 H-1B visa numbers, USCIS will then select from among the remaining pool of petitions the additional 20,000 H-1B petitions that are reserved for beneficiaries with a US masters degree or higher (say, F-1 students with a PhD, MD or JD from a US university). USCIS estimates that this new procedure will result in an increase of 16% in the proportion of H-1B visa holders with an advanced US degree.
DHS believes that this rule is merit-based, and is consistent with the policy of “Buy American and Hire American” (BAHA). The rule does not make it easier to hire foreign nationals. Because the rule is expected to result in a greater number of beneficiaries with a US masters or higher degree, it is in line with the executive order’s goal to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries”.
DHS will also implement a new registration system for employers, however, this is suspended for this FY2020 H-1B cap season. DHS needs to perform user testing of the new online system. DHS anticipates starting the registration system in time for the FY2021 H-1B cap season. All employers must file a registration for each potential employee, and then wait to see if USCIS selects it before filing an H-1B petition. If USCIS does not pick the employer’s registration, the employer is not allowed to file an H-1B petition on behalf of that beneficiary.
Each fiscal year, USCIS will announce the start date of the registration period on its web site at least 30 days prior to the start of the registration period. The registration period will be for a minimum of 14 calendar days. The registration period will begin at least 14 days before the first day of petition filing and last at least 14 days. So, at least for two weeks. USCIS will then determine the end of the registration period, depending upon how many registrations it receives. USCIS may continue the registration period past two weeks, or reopen the registration period for an additional period of time.
Each registration must include the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number. SEVIS information is not required. USCIS may decide later on to include additional information required for registration. USCIS will check the system for duplicate registrations. Establishing eligibility is not required to file a registration. The registration period is not intended to replace the adjudication process or to assess whether the beneficiary is eligible for the position.
The required information is intended only to identify the beneficiary and limit potential fraud and abuse of the system. DHS is considering ways to allow employers to correct typos in their registrations. Employers will be able to edit a registration until it is submitted. Employers may also delete a registration and re-submit it prior to the close of the registration period.
DHS regulations already forbid the filing of multiple H-1B cap subject petitions by related corporate entities for the same beneficiary, unless there is a legitimate business need.
USCIS will then select sufficient registrations towards the H-1B cap, eliminate duplicate registrations, identify the employer and proposed employee, and to match registrations with subsequently filed H-1B petitions.
In sum, employers and foreign professional may proceed as usual in preparing and filing H-1B petitions this fiscal year. Since the registration process is postponed, the only procedure changing is USCIS’s manner of choosing which H-1B cap petitions receive visa numbers, so that a greater proportion will go to beneficiaries who are F-1 students with advanced degrees.
Copyright 2019 © Heidi J. Meyers, all rights reserved.
U.S. consulates in India have been issuing more 221(g) refusals to IT professionals, which is when the Consular Officer temporarily denies a visa for lack of essential information or because the applicant is undergoing administrative processing (basically, that the security checks are taking a long time). More software engineers, programmer/analysts and other IT personnel are being denied visas, and given a questionnaire regarding information that the Consular Officer should already have, including questions regarding the particular project the applicant is going to work on, the technical description of the project, budget, timeline, current status, how many employees are assigned to the project, and detailed information about the other employees on the same project.
At the time an H-1B or L-1B application is filed, an IT company will have certain projects going, and will not be able to anticipate all their future projects, as these continuously change, so the Consular Officer may be looking for a way to deny a visa if the original project proposed for the H-1B or L visa applicant is no longer on-going, and the company intends to send the applicant to another project, perhaps without the LCA on file.
Additionally, administrative processing, including security checks with the various agencies such as the FBI, CIA, DEA etc., may also be quite time-consuming, depending on a variety of factors.
Another issue is the BAHA (Buy American, Hire American) proclamation which has been added into the Foreign Affairs Manual (FAM), so visa applicants need to be ready to explain how their position in the US will not take jobs away from US workers, and how they and their project will benefit the US economically. Due to the ongoing shortage of labor in the US, it should not be difficult to document the shortage of IT professionals.
Visa applicants need to be able to express themselves clearly to explain their qualifications, the job duties and the project, as well as answer questions about the company itself and their future salary and benefits. Applicants need to review the petition support letters carefully and be aware of the contents of those letters.
The good news is, a 221(g) refusal is not a final denial, applicants and their employers still have the opportunity to submit additional evidence and make the Consular Officer happy.
2019 will be a good year for immigrants who apply for their green card through their employer. While there will be some economic issues this year, including slowing growth and higher prices due to the trade wars, the good news is that the unemployment rate is likely to stay at historic lows. Employers are having a very hard time finding U.S. workers to fill positions. This means employers who file PERM labor certification applications will have an easier time convincing the US Department of Labor that there is a shortage of U.S. workers ready, willing and able to do the job.
Second, the U.S. Department of Labor and USCIS are not affected by the government shutdown. The U.S. Department of Labor is funded through September 30, 2019, and will be able to continue processing PERM labor certifications, as well as prevailing wage requests and labor condition applications at its normal rate. This means, the first step of the labor certification process, where the employer first obtains a prevailing wage determination and then files a PERM labor certification application, should go as smoothly as ever.
USCIS is funded by the USCIS filing fees that applicants have to pay, and so they are continuing to adjudicate Forms I-140 employer immigrant petitions as well as Forms I-485 applications for adjustment to permanent residency. USCIS is also not affected by the government shutdown.
Third, backlogs in employment-preference visa numbers for the worldwide categories are either nonexistent, or are very reasonable. The US State Department Visa Bulletin for February 2019 shows second, third and fourth employment preferences for the worldwide category as all current, as well as the other workers employment preference. That’s fantastic! No backlogs! The first employment preference for the worldwide category is backlogged to December 1, 2017, a little more than one year, which is not bad at all in immigration time.
Fourth, because they are having such a hard time finding qualified employees, employers are more likely to be willing to go through with the labor certification process, which for the employer is time-consuming and expensive. Thus, it will be easier for immigrants to find employers who are eager to sponsor them.
The government has taken an extremely broad view of the material support to a terrorist organization ground of inadmissibility, using it to deny many victims of persecution the opportunity to be granted asylum or other relief from deportation.
According to the Immigration and Nationality Act (INA) ground of inadmissibility under section 212(a)(3)(B)(i)(VIII), material support to a terrorist organization is defined as the following:
(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training–
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or
(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.
The definition of material support as a ground of deportability or removability is exactly the same as the definition for the ground of inadmissibility.
In immigration, the material support ground of inadmissibility has been applied to deny many Central Americans, Columbians, and others who are victims of guerilla and terrorist organizations, any relief from deportation or removal. The material support ground is interpreted so broadly, that even if you are forced while looking at the barrel of a gun of a terrorist ready to send you out of this world, you will still be found to have provided material support and will be ineligible for immigration benefits.
In Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018) the BIA held that a woman from El Salvador was not eligible for cancellation of removal because she had provided material support to a terrorist organization. This unfortunate woman was a victim of the guerillas, who kidnapped and enslaved her, and forced her to watch her husband dig his own grave before they murdered him. However, in spite of the fact that she was a victim of the guerillas, the BIA held that she was not eligible for cancellation of removal because she had provided material support, as she was forced to cook, clean and wash their clothes while a slave to them.
This provision of law, clearly intended to stop bad guys (and bad gals!) who support terrorists from coming to the US or getting immigration benefits, is being used to punish women, children, and other weak and vulnerable populations who have been the victims of terrorists and transnational criminal organizations, as a cudgel to deny them any kind of immigration benefits or relief from removal and deportation.
The BIA has made clear, time and again, that even though an individual provides material support involuntarily, while under duress, he or she is still barred under the material support ground of inadmissibility. See, Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016).
The definition of duress is the following: “threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment. “confessions extracted under duress”. Synonyms: coercion, compulsion, force, pressurization, intimidation, threats, constraint, enforcement, exaction. Informal: arm-twisting. See, google definition, https://www.google.com/search?q=duress+definition&oq=Duress+definition&aqs=chrome.0.0l6.3471j1j7&sourceid=chrome&ie=UTF-8
It is a sad state of affairs that several of the federal appellate courts have gone along with this interpretation. For example, in Hernandez v. Sessions, 884 F.3d 107 (2d Cir. 2018), the petitioner, Marleny Hernandez, a citizen of Columbia, a successful business woman, under threat from the FARC, provided food and other goods to the FARC every three months from around 1997 to 1999. As retaliation against her for having government officials as guests at her hotel, the FARC attacked and destroyed her hotel and store. The Second Circuit in Hernandez deferred to the BIA’s interpretation, as they found the statute to be ambiguous, and applied Chevron deference. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
As if it is not bad enough that the government applies the material support bar when the applicant was under duress, the BIA’s recent decision in Matter of A-C-M- makes clear that no matter how de minimus, small or trivial the support, the material support bar still applies.
What can one do in such a situation? There is an exception to the bar if one “did not know and should not reasonably have known, that the organization was a terrorist organization”. However, even if the immigration judge finds an applicant ineligible, all is not lost. First, even if it is found that the material support bar to asylum applies, the applicant is still eligible for deferral of removal under the Convention Against Torture. Second, in federal court one can argue that the plain meaning of the statute requires that support be material. The statute would not specifically state “material support” if the word material did not mean anything. If support was not required to be material, Congress would have left out that word, and just had the word support with no qualifiers. While the government may argue that the statute is ambiguous with regard to duress, there is no such ambiguity with regard to whether the support may be de minimus. It cannot be, as the support must be “material” and Chevron deference does not apply in this situation.
Another argument is that this interpretation of material support with no exception for duress or de minimus support is contrary to the non-refoulement obligation of the 1976 United Nations Protocol Relating to the Status of Refugees (the “Protocol”), to which the United States is a party.
Department of Homeland Security (DHS) has announced that it will initiate a wave of denaturalizations during 2019, which is provided for in ICE’s 2019 fiscal year budget. According to ICE’s FY2019 budget, their investigations are focused on citizens from “special interest countries”, i.e., Muslim countries, for example, Pakistan.People who have naturalized to U.S. citizenship can be denaturalized, or stripped of their citizenship, in two ways. First, the U.S. Attorney’s Office may bring criminal charges against the individual under 18 U.S.C. 1425, for unlawful procurement of citizenship. Anyone convicted of violating 18 U.S.C. 1425 automatically will have their U.S. citizenship revoked by the same federal court hearing the criminal case. However, there is a ten-year statute of limitations on criminal prosecution for illegally obtaining citizenship.
Second, the Office of Immigration Litigation (OIL) of the Civil Division of the Department of Justice may bring civil proceedings in federal court for denaturalization under 8 U.S.C. 1451(a). There is no time limit on bringing a civil denaturalization suit, and so a person could have been a U.S. citizen for decades prior to the commencement of denaturalization proceedings.
Once a person is denaturalized, they revert to being a permanent resident. However, their troubles are not over. ICE will then initiate removal proceedings against them and try to deport them.
In addition to the US Attorney’s Office and the US Department of Justice, ICE and USCIS are involved in investigations of possible denaturalization cases too. ICE attorneys from the Central Revocation Unit (CRU) of the Office of Principal Legal Advisor (OPLA) also pursue denaturalization cases and coordinate with the US Attorneys Offices and OIL.
ICE has decided to take the lead in denaturalization. In 2009, the Obama administration realized that in certain cases, fingerprint cards had not been digitized and checked against DHS records before naturalization. The Operation Janus program was created to compared those fingerprints against prior files, and ICE discovered that some people had removal orders, and created a list of cases for denaturalization.
According to the fiscal year 2019 ICE budget, ICE currently has 887 leads for the Operation Janice program, and they are focusing on denaturalization of individuals from “special interest countries”, meaning Muslim. More recently, ICE has created another new program, Operation Second Look, and are pulling naturalization files after running algorithms to try to select cases. There are now about 700 cases that they want to review for denaturalization.
In 2017, the Trump administration also created a new office within USCIS focused on denaturalization. The Trump administration as taken money away from the adjudications budget, about $207 million, and diverted it towards their denaturalization project. This loss of funding has caused a slow down in adjudications of naturalization cases, cause money being taken for other reasons.
DHS plans to hire 300 additional agents to investigate and prepare denaturalization cases, as well as 212 support staff.
In Maslenjak v. U.S., 582 U.S. __(2017), the Supreme Court held that not any misrepresentation is enough to convict someone of illegal procurement of naturalization in violation of 18 U.S.C. 1425(a). The government must prove that the defendant’s illegal act played a role in his or her acquisition of citizenship. Thus, violations of law that had nothing to do with obtaining citizenship cannot be used to convict someone of illegal procurement of U.S. citizenship.
You may be denied entry to the US based on mere allegations. This may come as a complete shock and surprise, because you may believe you have a clean record. However, if the US government suspects you of a wide range of activities or associations, your visa, entry or adjustment to permanent residency may be denied. What can you do under such circumstances? Or, where do you go to get your reputation back?
It may surprise you, but you may be prevented from entering the U.S. or getting a green card based on mere allegations, even if you have no criminal record. The U.S. State Department may deny your visa application, or CBP (Customs and Border Protection), may deny your entry into the U.S. without you being informed fully of the facts on which they base their denial. If you are already in the U.S., USCIS may deny your adjustment to permanent residency.
There are a number of grounds of inadmissibility (meaning, you are barred from entry to the U.S.) in the INA (Immigration and Nationality Act), which are based on mere suspicion or feared future behavior, although you may have no prior arrest record.
For example, anyone who the Consular Officer or the US Attorney General (the Department of Justice, and also includes Department of Homeland Security):
1) “knows or has reason to believe” is a drug trafficker or has aided drug traffickers, as well as the close family members of drug traffickers;
2) “knows or has reason to believe” has engaged or will engage in money laundering, or an aider or abettor of money launderers;
3) “knows, or has reasonable ground to believe, seeks to enter the” US to “violate or evade any law prohibiting the export from the United States of goods, technology or sensitive information”;
4) Suspected of being a gang member is included under “knows or has reasonable ground to believe” seeks to enter the U.S. to engage in “any other unlawful activity”;
5) An alien whose entry or proposed activities in the US, the US State Dept “has reasonable ground to believe would have potentially serious adverse foreign policy consequences”.
This is a partial list of basis for which a foreign national may be inadmissible to the U.S., based on “reason to believe” or a “reasonable ground”, will not be allowed to enter the U.S., or even if already in the U.S., not allowed to adjust status to permanent residency.
How to deal with these very nebulous grounds for denial of your immigration application when the US government is not providing any factual basis, or extremely minimal factual basis for the denial?
First, is the difficulty obtaining details of the allegations or any purported evidence against you. If the US Consulate has denied your visa, and you do not have the basis for the denial in writing, you may request a written denial. USCIS when denying an application for adjustment to permanent residency may provide some minimal factual basis without providing any of the details.
The foreign national in such a situation may file FOIA (Freedom of Information Act) requests with all the DHS agencies and the US State Department, but even so, the responses are likely to be less than adequate with the various agencies claiming exemptions to FOIA and responding by a file with large numbers of the pages totally or partially blanked out, and so one does not receive any of the information one was searching for.
Second, is the difficulty of pinpointing the source of the derogatory information. This is because of the multiple databases to which the US State Department and DHS have access.
For just one example, if one is accused of association with a gang, there are myriads of local, state and federal databases that may be the source of the denial. ICE’s Homeland Security Investigations’ (HSI’s), National Gang Unit (NGU) develops intelligence on gang memberships, associates, activities and international movements.
The FBI runs the National Gang Intelligence Center (NGIC), which integrates intelligence from federal, state and local law enforcement. Alcohol, Tobacco and Firearms (ATF) is another federal agency with a gang database.
GangNet is another gang database that contracts with state and federal agencies in the US as well as Canada, and has personal information about suspected gang members, such as street address, physical description, identifying marks and tattoos, photos and nationality, etc.
Because this plethora of federal agencies is vacuuming up information from local police and other authorities both within the US and abroad, it may be extremely difficult to locate the source of the allegations against a person seeking admission into the US., or looking to obtain their green card.
The criteria for being included in a gang database is often very broad. For example, in California, a person “identified as a gang member by a reliable informant/source”, or “identified as a gang member by an untested informant” or seen frequenting gang areas or affiliating with gang members, may be included in their gang database. Thus, many young men from minority neighborhoods may be included in gang databases simply because they reside in or have to walk through the same neighborhoods, where there are gang members.
Persons included in gang databases are not provided notice or a way to challenge the determinations, and many databases do not purge information after the statutory period. Many people are included due to error by police or government workers.
Additionally, many databases have information on persons who have never been fingerprinted, and so it is not possible to show that there is no match with the individual for whom they have derogatory records.
Third, the foreign national will have to engage in a long and arduous process, first disputing the supposed information with whichever agency or department had initial responsibility and then proceeding up the chain of command. For example, if a visa is denied, the first step is following up with the US Consulate, and if that is not successful, then requesting a legal opinion from the US Department of State’s Visa office for a legal advisory opinion.
Fourth, after what is called “exhaustion of administrative remedies”, the foreign national may file a complaint in federal court. Exhaustion of administrative remedies just means you have tried your best to resolve the issue with the agency, and pursued any appeal. In federal court, you may include all related claims, so for example, in addition to challenging the denial of a marriage petition under the Administrative Procedures Act, you may also include a FOIA claim, if DHS failed to provide the entire file along with the derogatory information. If you have a good case, the U.S. Attorney’s Office may want to settle with you, and you may be able to get the result you wish.
If the foreign national is outside the U.S., he or she will need the US petitioner to file in federal court on their behalf, and it will be much more difficult to obtain a positive result, because of the doctrine of consular nonreviewability. For example, in the U.S. Supreme Court case, Kerry v. Din, 576 U.S.__ (2015), the wife, Ms. Din, filed on behalf of her husband in Afghanistan, who was denied an immigrant visa, with no explanation other than 8 U. S. C. §1182(a)(3)(B), the inadmissibility provision for “terrorist activities”. In that case, the husband knew the factual basis for the denial, because he himself had admitted to the US Consular Officer that he had worked for the Taliban as a clerk. Justice Scalia wrote the plurality opinion, which held that Ms. Din had no protected liberty interest in their marriage, and that the notice she received regarding why the visa was denied was sufficient. The Ninth Circuit, in Cardenas v. United States, 826 F.3d 1164, has held that Justice Kennedy’s concurring opinion in Kerry v. Din controls, and that all the US State Department has to give for a denial is a “facially legitimate and bona fide reason”. Of course, the Din case is different, because it was not just an allegation, but rather was definitely true and was admitted to by the applicant himself.
So, the best strategy for someone outside the U.S., may be to try to find the source of the incorrect allegation, and have it corrected.
Applicants who are already in the U.S. are in a much stronger position to contest their cases in federal court. We will further discuss this topic in Part II.
In my last article, we discussed how the accumulation of big data and information sharing between DHS and state and local law enforcement make it extremely difficult for an applicant for immigration benefits or their sponsor to find out the source of derogatory information, and to attempt to correct incorrect data, or assumptions based on a small piece of data. A new study released by the National Immigration Project (NIP) and the Immigrant Defense Project (IDP), entitled Who’s Behind ICE? The Tech and Data Companies Fueling Deportation, (October 2018) paints a picture of the vast amounts of data accumulated, integrated and wielded as a weapon against immigrants.
The study points out how these huge information-sharing systems and databases, which include not only mass information accumulated from every level of government agency in the U.S., as well as from the Mexican government, but also from the mass personal information it buys from private companies, undercuts the efforts of sanctuary cities to try to protect immigrants from ICE and the deportation machine.
The tech company, Palantir, has built ICE’s case management software (called Integrative Case Management – ICM), which allows officers to review data from all local up to federal government agencies, and create profiles of not only foreign nationals, but also their family, friends, associates and employers. At the same time, we have the highly sophisticated surveillance technology being used by local police, and data mining from utility bills, DMV records, business and property data, health insurance information, cell phone records, biometrics, and social media accounts. Now biometrics includes not just a person’s fingerprints, but also facial recognition and irises (eyes), as well as scars, tattoos and palm prints.
Additionally, ICE runs the SEVIS system, which tracks F-1, J-1,and M-1 students and exchange visitors as well as their educational information, employment, etc. and CBP keeps track of all arrivals and departures via air, land, and sea ports. Add to that all the information gathered during secondary inspections by CBP, as well as tracking of vehicles crossing the border. Regarding foreign nationals who do not arrive via ports of entry, CBP operates the Integrated Fixed Towers (IFT) system which provides surveillance for detection, tracking, identification and classification of illegal entries. Not to mention the day and night cameras fixed to towers along the border recording videos.
Thus, we have seen in the past one year, retaliatory ICE raids to arrest and deport immigrants targeting sanctuary cities, as DHS can easily work around the laws of sanctuary cities restricting the cooperation of city employees with ICE and DHS. Living in a sanctuary city does not protect you from ICE and the deportation machine.
On a national scale, we must organize against these vast invasions of privacy by not only DHS but also other government agencies, as well as the connections between government and large IT companies such as Amazon. Sanctuary cities need to be aware of how their policies and efforts to protect immigrants and minorities are being circumvented.
However, you have the right to request any derogatory information from DHS and you may go to federal court in case of the denial of an immigrant petition. According to federal regulations, the USCIS must provide the applicant or petitioner with any derogatory evidence in the file and allow them the opportunity to rebut it. Both beneficiary and petitioner have the right to inspect the record of proceeding. Thus, you may try to get USCIS to provide you with the derogatory information prior to any denial or adverse action. If you are in removal proceedings, you may cite the case of Dent v. Holder, 627 F.3d 365 (9th Cir. 2010), a Ninth Circuit case which holds that a respondent in removal proceedings has a right to their entire immigration file and should not have to use FOIA procedures to try to get a complete copy of their file from DHS.
If, for example, a marriage petition is denied by USCIS, the petitioner may then file an appeal with the Board of Immigration Appeals (BIA). If the BIA upholds the USCIS decision, you may file an action in the US District Court to challenge the denial. On the other hand, should an employment-based immigrant visa petition be denied, you may appeal directly to federal court, and an appeal to the AAO (Administrative Appeals Office) is not required. When filing in federal court, you may add any claims that are closely related, such as if DHS has withheld documents in your file from you under the FOIA (Freedom of Information Act). The federal courts have jurisdiction to review denials of I-130 family petitions and I-140 employment petitions and make a new decision.
In a November 15, 2018 memo, USCIS clarified the one-year of employment abroad requirement for L-1 Managers, executives, and specialized knowledge transferees, which is important for an U.S. company with a subsidiary, parent, affiliate or branch outside the U.S. which wants to bring its foreign employees to the U.S. to work.
USCIS has come out with a new policy memo on meeting the L-1 one-year foreign employment requirement, which covers L-1A managers and executives, as well as L-1B specialized knowledge transferees. The petitioning employer must employ the L-1 employee abroad for at least one continuous year out of the past three years prior to filing the L-1 petition with USCIS.
The L-1 employee must spend the one year physically outside the U.S. and second the petitioning employer and employee must meet all requirements, including the one-year of foreign employment.
Thus, the employer cannot file the petition prior to the date the employee reaches the one-year anniversary of employment with its foreign affiliate, subsidiary, parent or branch, even though USCIS may be taking a long time to process and adjudicate L petitions.
Also, if the employee takes a break in employment or stops working for the employer for more than two years during the three years before filing the L petition, then he or she cannot meet the one-year of work abroad requirement.
To meet the one-year requirement, the employer cannot count any days that the employee has spent in the U.S. Only time outside the U.S. counts towards the one year. Brief trips to the U.S. for business or pleasure would toll the time required for the one year. Thus, if the beneficiary came to the U.S. for ten days during the one year, the employer could not file until the beneficiary had been working abroad for 365 plus ten days so not until after the 375th day.
Additionally, time the employee spent working in the U.S. for the employer does not count towards the one-year requirement for work abroad. However, time spent working in the U.S. can be used to adjust the dates of the three-year period. For example, if the employee worked in the U.S. for the employer in H-1B or E-2 status, from January 2, 2017 to January 2, 2018, and the employer filed an L petition for the employee on January 2, 2018, the three-year period would be counted from January 1, 2014 to January 1, 2017 (rather than from January 1, 2015 to January 1, 2018, which would be the case if the employee had never worked for the employer in the U.S.).
However, periods of employment with the employer in the U.S. as a dependent or a student do not count and do not allow the adjustment of the three-year period. Similarly, periods of time in the U.S. working for an unrelated employer also do not adjust the three-year period.