Dear Valued Clients and Friends: Our office is open and will stay open regardless of the Coronavirus. Please do not hesitate to contact us with any immigration issue or concern. We are happy to help you! We can handle employment/business immigration issues in an all-enforcement all the time environment, as we combine experience in business immigration with deportation, inadmissibility and litigation. Law Office of Heidi J Meyers, 11 Broadway, Suite 925 New York, N.Y. 10004, firstname.lastname@example.org, (212) 791-4007), cell (646) 508-5225
Drunk Driving (DUI or DWI) and Immigration
An arrest for DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) may have serious consequences for your immigration status, even if you are not convicted. If you are convicted of DUI or DWI, you may be barred from demonstrating good moral character for purposes of cancellation of removal or naturalization. Even worse, if your conviction constitutes a crime of moral turpitude, you may be found inadmissible or deported and removed from the United States.
The U.S. State Department may revoke your visa if you are arrested for DUI or DWI even if you have not been convicted. Remember, a visa is stamped in your passport and allows you to enter the U.S. in a certain nonimmigrant category, and is valid for a specific period of time. Once you are admitted to the U.S., you are then in a particular immigration status. The electronic I-94 states your immigration status and the period of time for which you are admitted. So a visa and an immigrant status are two different concepts.
If you are arrested for DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) in the U.S. and your case is pending in criminal court, the US State Department may revoke your visa even if you have not been convicted. The US government takes arrests for DUI and DWI very seriously. If you are already in the U.S., a visa revocation does not mean you automatically lose your immigration status. It means, if you depart, you will not be able to re-enter because you do not have a valid visa.
In general, the State Department may not revoke the visas of foreign nationals who are already in the US, or on their way, but DWI and DUI are an exception. The State Dept may revoke your visa if you have a DWI or DUI related arrest or conviction within the past five years. The State Dept is required to notify the foreign national of the intent to revoke the visa, give the foreign national the opportunity to show why the visa should not be revoked, and request the foreign national to present the travel document that contains the visa.
The State Dept may ask the foreign national to appear at the US Consulate where the visa was issued. If the foreign national does appear, most likely the Consular Officer will physically revoke the visa, as well as any other valid visas the foreign national may have. If the foreign national does not appear at the US Consulate, the State Department will still enter the information into their databases and notify DHS (Dept of Homeland Security), ports of entry such as airports and border crossings, and also the airlines of the visa revocation.
Should the foreign national want to apply for a new visa, he or she will be referred to a panel physical to be evaluated as to whether he or she has a drinking problem, and may be a danger to themselves or others. Even if an applicant is not inadmissible to the U.S. on criminal grounds, he or she may be found inadmissible on medical grounds.
If you are convicted of drunk driving, there are additional consequences. In a 2019 decision, Matter of Castillo-Perez, 27 I&N Dec, 664 (A.G. 2019), in a decision certified to himself, the Attorney General held that two or more convictions for DUI during the statutory period would create a rebuttable presumption that the foreign national lacks good moral character under INA §1101(f) for purposes of an application for cancellation of removal under INA §240(A)(b)(1). While the decision does not specifically apply to naturalization applications, an applicant for naturalization also has to show good moral character under INA §1101(f), and so it is possible USCIS will start using this same standard when deciding applications for naturalization to US citizenship. Similarly, in Ledesma Cosino v. Sessions (9th Cir 2017), https://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/30/12-73289.pdf, the Ninth Circuit held that substantial evidence supported the BIA’s finding that the applicant was a “habitual drunkard” and thus lacked good moral character for purposes of cancellation of removal. The BIA and the court took into account not only the applicant’s conviction but also testimony regarding at least a decade of alcohol abuse and cirrhosis of the liver.
Whether or not a conviction for DUI or DWI is a crime involving moral turpitude depends upon the particular state statute and its elements. In general, one single conviction for DUI or DWI does not constitute a crime involving moral turpitude, and does not make one inadmissible or removable (deportable) from the U.S. See, In re Torres Varela, 23 I&N Dec 78 (BIA 2001), https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3449.pdf
Arizona offense of aggravated driving under the influence, with two or more prior DUI convictions, is not a crime of moral turpitude. The specific statute under which the conviction occurred is controlling. Much depends upon whether the statute has a knowledge or intent requirement. The BIA has held that another Arizona statute, also involving multiple DUI convictions, is a crime of moral turpitude, because it prohibits driving under the influence knowing that one’s license has been suspended. Because of the knowledge requirement, that particular statute was found to constitute a crime of moral turpitude. See, Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3423.pdf. The BIA reasoned as follows: “In our view, a simple DUI offense is such a marginal crime. However, when that crime is committed by an individual who knows that he or she is prohibited from driving, the offense becomes such a deviance from the accepted rules of contemporary morality that it amounts to a crime involving moral turpitude.”
However, it is important to keep in mind that the interpretation of DWI offenses may change, especially as under the current administration the Attorney Generals have made a habit of certifying decisions to themselves and attempting to change years of precedents.
Even if a drunk driving conviction does not constitute a crime of moral turpitude, it is still a strong negative factor, and may lead an Immigration Judge or USCIS examiner to deny your immigration application in the exercise of discretion.
All foreign nationals who have been arrested for DUI or DWI must realize that this is a very serious matter, and should immediately seek help to rehabilitate themselves, by regularly attending AA or other alcohol-related rehabilitation programs and ceasing to drink. If you find yourself in this situation you will also need both a competent criminal attorney and a competent immigration attorney.
Copyright 2020 © Heidi J Meyers, all rights reserved.
Court holds Trump Policy on Unlawful Presence for Foreign students and Exchange Visitors (F, J and M) Unlawful.
On February 6, 2020, in Guilford College et al. v. McAleenan, a federal district court issued a permanent injunction prohibiting the Trump Administration from implementing its new policy regarding unlawful presence for F-1 students, J-1 exchange visitors and M-1 students.
Up until the recent change in policy by the Trump administration, for more than two decades, F-1 students, J-1 exchange visitors and M-1 students who entered the U.S. were allowed to remain in the U.S. for “duration of status” or for however long their educational program or exchange program, along with any extensions, or OPT, lasted. Thus, when they entered the U.S., CBP (formerly INS) did not give them a specific date by which to depart the U.S.
If an F, J or M visa-holder fell out of status or violated the terms of their stay, they would start accumulating unlawful presence from the date after either a US government official or an immigration judge determined they were out of status. Here the concepts get a little difficult, as there is a distinction between being out of status and accumulating unlawful presence, the details of which we will not go into now.
The Court found that any minor violation, such as working one more hour per week than the hours authorized, or moving to a new dorm without filing a change of address, could result in drastic consequences of the student being subject to a three- or ten-year bar.
If a foreign national accumulates more than 180 days of unlawful presence and departs the U.S., he or she will be subject to a three-year bar to returning. If a foreign national accumulates one year or more of unlawful presence and departs, then he or she is subject to a ten-year bar to returning to the U.S. So, the consequences are very severe.
For decades, foreign students and exchange visitors would only accumulate unlawful presence after a determination by USCIS, ICE, CBP or the Immigration Judge. The foreign students and exchange visitors were put on notice when they started accumulating unlawful presence, and would have the opportunity to depart the U.S. before the three or ten year bar kicked in.
However, the Trump Administration abruptly changed this decades-long policy in August 2018. According to the new policy, USCIS would start the unlawful presence clock on the original date of the status violation, not on the date that a USCIS officer made the determination that the person was out of status. So, a USCIS officer reviewing the file would back-date the accumulation of unlawful presence to the date that he or she believed the foreign student or exchange visitor first fell out of status.
The Court found that the plaintiffs had standing to bring the lawsuit, as they had shown an injury traceable to the government’s unlawful conduct in issuing the August 2018 policy. The Court used the examples of two of the plaintiffs, Ye and Li, who entered the U.S. as students, and who both enlisted in the U.S. Army and are awaiting basic training. They had been recruited by the U.S. Army due to their valuable language skills, and the Army had advised them not to leave the U.S. while they were awaiting basic training. Should a government official go and make a retroactive determination that they have been out of status while they wait for basic training, they would be subject to the three or ten year bars, and all their dreams of joining the Army would be dashed. Because the Court held that at least two of the plaintiffs had standing, it did not need to adjudicate whether the rest of the plaintiffs had standing.
The Court held that 1) the August 2018 USCIS Policy Memorandum was a legislative rule and invalid for failing to follow the APA (Administrative Procedure Act)’s notice and comment procedures, and 2) the August 2019 USCIS Policy Memo conflicts with the INA (the Immigration and Nationality Act), and must be vacated.
The District Court found that the August 2018 policy memo was a legislative rule under the APA. It changed prior policy, was inserted into the USCIS Adjudicator’s Field Manual, and was binding on USCIS officers. So, USCIS should have published the new policy rule in the Federal Register, and given the public notice and an opportunity to comment. Under the APA, the government is also required to provide a reasoned response to any comments. Simply issuing a memo and a press release did not comply with the law.
The Court also held that the new policy conflicts with the immigration statute. Congress first included the concept of unlawful presence (which differs from being out of status) in IIRIRA (the Illegal Immigration Reform and Immigrant Responsibility Act) n 1996. The Court found that the Trump Administration had improperly joined the two concepts of unlawful presence and status violations together, which conflicted with the meaning of the statute. Based on the statute, unlawful presence does not accrue until an adjudicator determines the person is out of status.
The Court granted a permanent injunction ordering that the Trump Administration return to the prior policy regarding unlawful presence for F, J and M visa holders. Where the government fails to comply with APA requirements in implementing new rules, a nationwide injunction is appropriate. The new Trump policy was vacated as unlawful applied to anyone who would be subject to it, not just the plaintiffs. Thus, the injunction is nationwide.
This means that USCIS and the Trump Administration must continue to follow prior policy on unlawful presence for F-1, J-1, and M-1 visa holders. The injunction applies throughout the United States. A great win for foreign students, exchange visitors, and universities!
NB – citation is Guilford College et al. v. McAleenan, 1:18CV891-LCB-JEP (2/6/2020 Dt Ct Middle Dt. North Carolina).
Copyright © 2020 Heidi J Meyers all rights reserved.
The New Travel Ban Still Allows Nonimmigrant Visas and Special Immigrant Visas, Depending on the Country
The Trump Administration’s new travel ban, or “Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry”, issued January 31, 2020 bans the issuance of immigrant visas (i.e., green cards processed from abroad by US Consulates or Embassies) to nationals of the following countries: Burma (Myanmar; Eritrea; Kyrgyzstan; Nigeria; Sudan; and Tanzania.
However, the ban allows immigrant visas based on the Special Immigrant Visa program for those who have advanced U.S. interests, and provides the example of those who have worked for a U.S. Embassy for 15 years or more. The ban also allows exceptions for Sudan and Tanzania, whose nationals may still be processed for all types of immigrant visas, except for those based on winning the diversity lottery.
Thus, nationals of Sudan and Tanzania may still receive green cards based on family or employment petitions, just not on the basis of having won the diversity lottery (green card lottery).
However, the ban does not apply to nonimmigrant (temporary) visas, thus nationals of Burma (Myanmar); Kyrgyzstan; Nigeria; Sudan; and Tanzania will still be able to apply for any nonimmigrant visa, such as B visitor for tourism/business, E-2 (only Kyrgyzstan), F-1 student, H-1B temporary professional, L managerial transferee or specialized knowledge worker, O-1A, O-1B aliens of extraordinary ability, P and so on.
The Proclamation only applies to foreign nationals of the above countries who: (i) are outside the United States on February 21, 2020, the effective date of the proclamation; (ii) do not have a valid visa on the effective date; and (iii) do not qualify for a visa or other valid travel document under section 6(d) of Proclamation 9645.
Applicants for an immigrant visa may apply for a waiver, under the prior travel ban, but the process is lengthy and there is a very low rate of approval.
For example, Achike is a US citizen, and he has petitioned for his wife, who is in Nigeria. The marriage petition has been approved, and the immigrant visa processing has been completed. His wife just needs an interview with the U.S. Consulate in Lagos in order to get her immigrant visa. If his wife is outside the U.S. on the effective date of the new travel ban and has not yet received her immigrant visa, she is banned from coming to the U.S.
However, as another example, another Nigerian national, Kesandu has been accepted into Boston University for Engineering. Even though the travel ban has already gone into effect, she can still apply for and receive her F-1 student visa
The Proclamation suggests that the ban on greencards for nationals from these six countries may be lifted at some time in the future should the governments of those countries comply with U.S. demands regarding information-sharing and electronically compatible documents.
Copyright 2020 © Heidi J Meyers all rights reserved.
Out of Status Foreign Doctors with DACA, TPS or Asylum Applications, Part 1.
There are many medical doctors in the U.S. who are out of status. Some foreign-born doctors have grown up in the U.S., and attended high school, college and medical school here. They may be out of status, but have been granted DACA (Deferred Action for Childhood Arrivals), TPS (Temporary Protected Status), or have pending asylum applications. All three, DACA, TPS, and asylum, allow the beneficiary to receive a work authorization card which is renewable. Thus, the aspiring doctor will have a social security number and will be work-authorized. However, DACA, TPS and having an asylum application pending are not considered a legal status, they are considered to be out of status, although not accumulating unlawful presence (NB – a grant of TPS may be considered an admission, if the applicant is residing in the 9th or 6th Circuits. More about that in Part 2).
Other foreign doctors (called IMGs, International Medical Graduates) have attended medical school abroad, had careers as doctors abroad, and then come to the U.S. For whatever reason, they are also out of status, although they may also have work authorization through TPS or asylum applications.
Like all doctors, foreign-born doctors must take and pass the US MLE, which has three steps: Step 1 tests whether the doctor understand concepts fundamental to medical practice; Step 2 CK, tests clinical knowledge; Step 2 CS, tests clinical skills; Step 3 tests whether you can use medical knowledge to manage patient care in an ambulatory setting. Step 1 may be taken abroad, but the two parts of Step 2 and Step 3 must be taken in the U.S.
If you attended medical school abroad, then you will need to obtain an ECFMG certificate. However, even if you were born abroad, as long as your medical education was here in the US, you will not need an ECFMG certificate. For example, Lisa was born in India, and came to the U.S. before turning 16. She has DACA, work authorization and a social security number. She attends Weill Cornell Medical School. She does not need the ECFMG, even though she does not have the green card, as she is attending a US medical school. On the other hand, Amel, who attended medical school in Egypt at the University of Cairo and practiced as a medical doctor in Egypt and Saudi Arabia, will need an ECFMG certificate because her medical education was abroad not in the U.S.
Many foreign-born doctors come to the U.S. on a J-1 visa to work as medical residents in hospital residency programs, and are sponsored by the ECFMG. This avenue, however, is not open to foreign doctors living out of status in the U.S., even though they may have work authorization.
In general, out of status doctors here in the U.S. will not be eligible for a J-1 visa to participate in a residency program. The J-1 visa requires that the applicant prove that he or she has a temporary intention in coming to the U.S., and that he or she will return to their home country at the end of the program. The J-1 will also have a two-year foreign residency requirement.
Additionally, a J-1 requires a Statement of Need from the home country, that the country needs doctors in the particular specialty and that the applicant will be returning to their home country when the program is completed. Obviously, asylum applicants, DACA and TPS beneficiaries will not be able to meet this requirement.
A medical doctor in the U.S. who has DACA, TPS or an asylum application will not be able to prove that their intention in staying in the U.S. is only temporary. They will not be able to show that they have a residence abroad which they have no intent of abandoning. Thus, the J-1 is not an option.
Out of status doctors on DACA, TPS or with an asylum application, however, may be eligible for the H-1B visa if they have not accumulated 180 days or more of unlawful presence. In order to qualify for the H-1B visa, the medical doctor must have either a state license, or they must prove eligibility for a state license but for lack of a social security number.
There is a difference between being out of status, and accumulating unlawful presence. It is an extremely complex area of law, so we will not go into the details, but will provide a couple of examples. For example, our aspiring medical doctor Lisa came to the U.S. as a young child. She applied for and received DACA and her work authorization before her 18th birthday. Unlawful presence only starts accruing after one’s 18th birthday. Since she has had DACA and work authorization since prior to her 18th birthday, she has not accumulated unlawful presence. She is now in medical school. She would be able to apply for an H-1B to work as a medical resident in a residency program. Once the H-1B petition is approved, she would be able to obtain an advance parole through DACA and go abroad to apply for the H-1B visa. Even if her H-1B visa is denied, she may still return to the U.S. on the advance parole through her DACA.
For our medical doctor Amel, however, the situation is different. Suppose she applied for asylum within a few months after coming to the U.S. on a B visa. She has had work authorization through the asylum. She also would not have accumulated unlawful presence if she applied for asylum while her B status was still valid, but her problem is that she could end up stuck outside of the U.S. if she goes abroad to apply for the H-1B. As an asylum applicant, she will not be able to obtain an advance parole, so if her H-1B is denied, she will end up stuck outside the U.S. and not be able to return.
However, it is not necessary to qualify for the H-1B to participate in a residency program, as long as you have work authorization.
The ERAS (Electronic Residency Application Service) asks very detailed questions regarding the applicant’s immigration status. The application not only asks about current work authorization, it also asks very detailed questions about whether or not the applicant needs J-1 or H-1B sponsorship, and it requires answers regarding the applicant’s specific immigration status. Thus, our aspiring doctor Lisa must disclose on the application that she has work authorization through DACA.
By law, employers in the U.S. are not supposed to discriminate against job applicants based on their immigration status. In addition to discrimination based on immigration status, hospitals cannot require more or different documents than what is specified in the Form I-9, which is called document abuse. In particular, employers, including hospitals, are not supposed to discriminate against job applicants because they hold a work authorization card with an expiration date. If a hospital refuses to hire an applicant because he or she has an EAD (employment authorization document) with an expiration date, this is illegal discrimination and the applicant would have a claim against the hospital. See, https://www.justice.gov/crt/types-discrimination
Moreover, it is questionable that the online application system itself requires such detailed information regarding immigration status on the form. Providing this detailed information is required. It is questionable whether the application itself, the software system, encourages and fosters employment discrimination.
Copyright 2020 © Heidi J Meyers, all rights reserved.
Immigration Options in the Restaurant Industry
Because the restaurant and hospitality industry relies so heavily on immigrants, and because US workers are in short supply, immigration issues arise often. We will review some of the immigration options for the restaurant industry.
Immigration Options for Chefs.
A chef who has national or international renown may be eligible for the O-1B as an alien of extraordinary ability. Under the O-1B classification, chefs are considered artists. The restaurant would have to define the area of extraordinary ability, for example, as a Pastry Chef, or as a Chef of Japanese cuisine, and prove that the chef has distinction in his or her field. Thus, it is a lower burden of proof than that for the O-1A which requires you to show that the alien is one of a few at the very top of his or her field. So, it is not necessary to be a Yotam Ottolenghi or a Jacques Pepin for an approval as an O-1B. The O-1B is a temporary status, which may be approved for up to three years, and may be extended.
Another option is Chef as an E-2 employee with specialized knowledge or essential skills for a business owned by a majority of E-2 treaty nationals of the same country. The country of citizenship must have a treaty with the U.S. providing for E-2 treaty investor status. For example, if a restaurant is owned by three Canadian citizens, the restaurant may sponsor a chef who is a Canadian citizen to come and work in the US restaurant. As long as the owners are not also lawful permanent residents or U.S. citizens, this will work. It does not matter if the owners are also dual citizens of another, third country. So, for example, if one owner is a dual citizen of both Canada and Albania, the second owner is a Canadian/Italian citizen and the third is a Canadian/Colombian citizen, the restaurant will still qualify for E-2 treaty investor status through the joint Canadian citizenship. The beneficiary employee must also have Canadian citizenship. The E-2 is temporary, may be approved for two years, and is renewable.
Because the options to come in temporary status are limited, the restaurant may also sponsor a chef directly for the green card, even though the beneficiary chef does not currently work for the restaurant and is not in the U.S. Thus, the restaurant may go through the labor certification process, get an approved I-140 and then have the beneficiary come from abroad through immigrant visa processing to work for the restaurant as a chef.
Owner and Manager starting a business in the U.S.
Owners/managers who wish to start a restaurant business in the U.S., if they are from a country with a bilateral trade agreement with the U.S., may also come to the U.S. as an E-2 treaty investor, if they are coming to develop and direct a company which is a restaurant. They must have a five-year business plan and schedule to increase their hiring of U.S. workers.
For a company that has a very large chain of restaurants, a manager who has worked outside of the U.S. for at least one year for the company, and who is transferred to the U.S. to start a new business/restaurant or manage an existing business/restaurant, it may be possible to obtain an L-1A as a managerial or executive transferee. If it is to open a new business, the L-1A will be approved for only one year. An L-1A for an already existing business may be approved for up to three years, and is renewable for a total of seven years.
Culinary Interns or Trainees
The restaurant may also be able to obtain J-1 Culinary Trainees or Interns for 12 to 18 months. The J-1 intern will be able to work for no more than one year, and must be enrolled in a university or post-secondary program outside the U.S., or have graduated within the past 12 months. Thus, these are young people between the ages of 18 and 25 who are fresh out of school. The J-1 trainee would be able to work for up to one year and a half, and must already have a post-secondary degree outside the U.S., and at least one year of experience in his or her field. This is a good way to temporarily employ enthusiastic young people with a degree in culinary arts or in hotel or restaurant administration. The restaurant/employer would not be the actual sponsor, there are particular J-1 agencies or organizations which are the actual “sponsor”, and the J-1 trainee or intern is placed with a particular employer. The J-1 is not available for unskilled positions.
Hotel Manager TN
A TN as a Hotel Manager, Food and Beverage Dept, may also be possible if a restaurant is an integral part of a hotel, and the candidate is a Canadian or Mexican citizen and has a baccalaureate or licenciatura degree in Hotel or Restaurant Management or Administration, or a Post-Secondary diploma or certificate in Hotel/Restaurant Management and three years experience in Hotel/Restaurant Management.
Temporary or seasonal workers
Restaurants may also be able to obtain temporary or seasonal workers on the H-2B, for positions that are truly seasonal or temporary. For example, many restaurants and hotels have a certain season where they make the most money and have the most customers. During their peak season, they desperately need many additional hands, waiters and so forth. However, after a few months and the season ends, there is no longer work available and these employees are laid off.
Employers have to first file a labor certification showing they could not find U.S. workers qualified, willing and able to perform the job at the prevailing wage for that particular occupation in that geographic location. The employer would have to run a two-day print ad, including one Sunday, in a newspaper of general circulation. Once the labor certification is approved, the employer would then be able to file an H-2B petition with USCIS. These cases are problematic because of the shortage of visa numbers, and also due to timing and processing constraints, as the windows to get a prevailing wage, then advertise, then get the approved labor certification from Dept of Labor and then file with USCIS before the visa numbers run out and in time before the season starts.
It may make sense to apply directly for the green card
If a restaurant has an ongoing problem obtaining qualified, competent and reliable workers, it may make more sense to go through the labor certification process and apply directly for the green card. Because of the short-term nature of the above temporary statuses, and because of increased time and effort in the visa process, a restaurant may do better to investing its time and effort in bringing future employees to the U.S. as permanent residents.
Most cases would involve obtaining a prevailing wage determination from the US Dept of Labor, then advertising the job, running at least two Sunday print advertisements in a newspaper of general circulation, placing a 30-day job posting with the state dept of labor, and a notice in the work place for at least two weeks. Professional positions requiring a bachelor’s degree would require at least three additional forms of recruitment. The restaurant would have to interview any candidates who appeared as if they might be qualified for the job, and have job-related reasons for rejecting any U.S. workers. After all recruitment is performed, the restaurant then files the PERM labor certification with U.S. Dept of Labor.
Once the restaurant receives an approved PERM labor certification, the restaurant may file an I-140 for an immigrant preference visa. Once the I-140 is approved, the beneficiary may go for immigrant visa processing and come to the U.S. as a permanent resident. Or, if the beneficiary is already here in the U.S. in legal status, he or she may apply for adjustment to permanent residency.
Copyright 2020 © Heidi J Meyers, all rights reserved
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.