ICE Begins Workplace Inspections of Companies with F-1 OPT STEM Employees.

ICE has begun workplace inspections of employers who have F-1 OPT STEM workers. Thus, if a company has an employee with the two-year extension of OPT work authorization limited to those F-1 students with STEM (Science Technology Engineering and Math) degrees, the employer should be ready for a site inspection by ICE SEVP officers.

If an employer receives an email from ICE regarding a site inspection, the company should have its I-983 training plans organized, as well as supporting documentation, and be ready to show that the employer is complying with the training plan as well as with other OPT requirements.

During the visit, ICE officers may ask to speak directly with the company’s immigration manager, F-1 employee’s supervisor, as well as with the F-1 employee himself or herself.

The scope of the visit should be limited to the purpose of inspecting compliance with the training plan and F-1 OPT. ICE officers should not be allowed to wander around or investigate any other aspects of the company’s business, employees or employment practices. Receptionists should be advised to immediately contact the responsible manager when they arrive. The company representative who deals with ICE needs to keep a detailed record of the name, office location and phone numbers of the ICE agents, the questions asked and responses and documents provided by the company to ICE.

The company manager should be ready to explain the F-1 employee’s job duties, how the position relates to the F-1 employee’s degree and studies, how the F-1 employee is qualified for the position, the qualifications for similar positions, how the manager supervises the F-1 employee and how the training is carried out. If the employee is actually working at a third-party client site, the manager needs to explain how the employee is supervised and trained, even while at a third-party site.

Copyright 2019 © Heidi J Meyers all rights reserved.

New DHS Rule To Collect Social Media Data to Enter the US and to Apply for Permanent Residency, Naturalization, Asylum, and Advance Parole

Department of Homeland Security (DHS) has issued a proposed rule requiring collection of all social media sites used for the past five years, including user names, not only to enter the U.S., but also on numerous immigration applications, including those for permanent residency and naturalization.

This is a proposed rule, and DHS is accepting comments up to November 4, 2019. Thus, it is not yet in effect. The rule proposes gathering information on all social media use for the past five years of all applicants for entry into the US, as well as immigrants filing for other immigration benefits.

DHS will use the following list, a drop-down menu, for all ESTA and EVUS applications, requiring the applicant to reveal any use of the following social media sites: Ask FM; Douban; Facebook; Flickr; Instagram; LinkedIn; MySpace; Pinterest; QZone (QQ); Reddit; Sina Weibo; Tencent Weibo; Tumbler; Twitter; Twoo; Vine and Vkontakte (VK).

However, this list is subject to change, and DHS will change it as needed to keep up with new social media and people’s preferences. Applicants for adjustment and other immigration benefits are expected to reveal all social media use in the past five years, not limited to those particular web sites.

DHS’s definition of social media is very expansive and vague, and is not limited to those mentioned on the list: “Social media takes many different forms, including but not limited to web-based communities and hosted services, social networking sites, video and photo sharing sites, blogs, virtual worlds, social bookmarking and other emerging technologies.”

Not only will social media information be required for applications to enter the US on the visa waiver program, using ESTA, EVUS, and visa applications from abroad, but it will also be required for foreign nationals and permanent residents already physically present in the US., applying for permanent residence, naturalization, asylum, advance parole, petitions for family members of asylees, removal of conditions on residency (for those who obtained the green card based on marriage to a US citizen) and petitions by entrepreneurs to remove the conditions on permanent residence (EB-5).

For applicants for adjustment to permanent residency, this new rule coincides with the new public charge rule. As a result, foreign nationals applying for the green card now face a much more arduous and lengthy process, as not only will they be required to provide their credit score, credit report, the amounts of any school loans, credit card debt and any and every other liability, as well as financial information on all the members of their household, but they will also be required to provide information on all social media use and user names for the past five years. This clearly is a strategy on the part of the Trump Administration of ‘looking for bad’, basically making an exhaustive search to try to find some reason to deny applications, and at the same time gather impressive amounts of data on the U.S. citizens connected to each foreign national. Our tax-payer money will be used up searching each and every foreign national’s social media, credit report and voluminous amounts of irrelevant data, to try to bar ordinary law-abiding people from the U.S. rather than focusing resources on actual threats to our national security.

While the proposed rule claims that DHS and its agencies, including CBP, ICE, and USCIS, will respect the First Amendment rights to free speech and association for residents and US citizens who also appear on the immigrant applicants’ social media, in practice this is nothing but lip-service. It is obvious that individual CBP agents, consular officers, and other government examiners have broad discretion and already violate our rights to privacy and free speech and association.

Prior to this rule, CBP (Customs and Border Protection) agents have already been checking the social media of people seeking to enter the US, as has the US State Department when people apply for visas. The other agencies of DHS, including ICE and USCIS, also research immigrants’ social media use, although up to now that information has not been requested on immigration applications

For example, the recent incident this September 2019, in which an F-1 student was initially denied entry into the US not even on the basis of what he himself posted or said on social media, but rather because of what other individuals posted. This Harvard student, who happens to be Palestinian, was interrogated for hours by CBP and was denied entry because of posts by ‘friends’ on social media, deemed to have political opinions contrary to the US by CBP officers. While this decision was reversed because of the intervention of Harvard University, most foreign nationals do not have Harvard or another powerful institution to go to bat for them, and will merely be turned away with no recourse. See, https://www.theverge.com/2019/8/31/20837448/social-media-dhs-cbp-surveillance-us-border-ismail-ajjawi-harvard

CBP’s current practice also affects US citizens, not just foreign nationals, as CBP has been demanding social media information and performing searches of cell phones and other electronic devices of US citizens returning to the U.S. See, https://reclaimthenet.org/us-citizens-gbp-social-media/

Individuals and organizations have the opportunity to submit comments on this new proposed rule, up to November 4, 2019, and make their voices heard to protect our beloved US Constitution. You may send your comments, which must include Docket # DHS-2019-0044 at http://www.regulations.gov, by following the instructions for submitting comments. See 84 Fed. Reg. 171 at p 46557 (Sept 4, 2019), at https://www.govinfo.gov/content/pkg/FR-2019-09-04/pdf/2019-19021.pdf

As George Orwell described in the classic book 1984, “Always eyes watching you and the voice enveloping you. Asleep or awake, indoors or out of doors, in the bath or bed—no escape. Nothing was your own except the few cubic centimeters in your skull.” Our founders believed in limited government, as all-powerful governments turn oppressive.

Copyright 2019 © Heidi J. Meyers, all rights reserved.

New Public Charge Rule Will Harm Many Middle and Working-class Immigrants Who Have Never Taken Public Assistance.

The new Public Charge rule will harm many middle and working class immigrants who have never taken public assistance. The Trump administration’s new rule appears aimed to target all the middle and working class families and young people who believe in the American dream, and who decide to study hard, go to college, work hard, start businesses and advance themselves.

Up until this new rule, USCIS used an objective formula to determine public charge, which required a household income of 125% of the poverty level taking into account the number of individuals living in the household and total household income. Additionally, if the applicant was on some form of cash public assistance, he or she would have to go off that public assistance in order to get the green card. Because it relied on an objective, mathematical formula, the previous procedure to determine public charge was applied generally in a fair and uniform way.

The new public charge rule, more than 200 pages in the federal register, each page having three single-spaced columns, asks the USCIS officers to analyze multiple factors, and make a decision based on the “totality of the circumstances” whether to exclude an applicant based on public charge. The new system is subjective, and leaves a lot of discretion to individual officers, meaning that an officer can decide to deny someone a green card or change of nonimmigrant status, even though the applicant has never received public assistance.

Among the various factors, being younger than 18 or older than 61 is considered a negative factor. Since when have children been considered a “negative factor”? Children are an investment, they are our future. Also, many immigrants rely on their retired parents for childcare and running the household, freeing them up to work many hours. On the other hand, many people older than 61 continue to work. Lacking an employment history is a negative factor, which discriminates against housewives. Thus, the rule discriminates against women, children and the elderly, even if they have never taken public assistance.

Another negative factor is if the applicant does not speak English. Chris Cuomo, broadcast journalist on CNN (and son of former NY Governor Mario Cuomo) and Ana Navarro, Republican strategist and political commentator, have both pointed out that if English ability was the criteria, their parents and grandparents would never have been able to immigrate to the US and they would not be here today.

The adjudicator must also consider the applicant’s health, family status, assets, resources and financial status, education and skills. Even if you have never received public benefits, if you have applied for a public benefit and been denied, this must be revealed and is a negative factor. This brings up another point, which is that most permanent residents (with a few exceptions) are simply not eligible for any federal public assistance programs for the first five years of their permanent residency.

In particular, the new public charge rule seems aimed to target and deny immigration benefits to the Dreamers and other immigrants with the audacity to believe in the American Dream. The new Form I-944, Declaration of Self-Sufficiency requires information about any college loans an applicant has, as well as any credit card debt, mortgage or other liability. What young person who is not wealthy can get through college now without college loans? Many working class and middle class immigrants start their own businesses, and may have to borrow money. How can any middle class family purchase a house without a mortgage?  Not only that, the I-944 requires applicants to provide their credit scores. Since when do you need good credit to get a green card or to change your immigration status?

With a bewildering number of details and considerations, whether or not a person is determined to be a public charge and barred from the US or getting a greencard, may come down to a particular officer’s prejudices and outlook.

The broad effect will be that many immigrants who have never taken public assistance and who most likely would not take public assistance in the future, who are middle class or working class aspiring to the middle class, students, women, children and the elderly will be denied their green cards as a “public charge”.

Copyright 2019 © Heidi J Meyers all rights reserved.

Drug Convictions, the Categorical Approach and Deportability/Removability.

The Immigration Judge must use the categorical approach when analyzing whether a conviction for a crime constitutes a ground of removability under the INA (Immigration and Nationality Act). The facts are irrelevant, only the minimum conduct required to meet each of the elements of the statute is important.

There is a difference between the means used to commit a crime, and the statutory elements required for a conviction. For example, in a drug offense, if the statute refers to “a controlled substance” as an element, it does not matter which drug the defendant possessed or sold, as long as the particular drug is listed as a controlled substance, so the particular drug is a means and not an element. However, this depends upon the particular state statute involved, as different states may view means and elements differently.

If the lists of drugs on the state controlled substances statute and the federal controlled substances statute at the time of the crime are not the same, there is no categorical match, and most likely the respondent cannot be found removable for a controlled substances conviction, depending upon whether the state statute is considered “divisible” or not.

In removal proceedings based on criminal convictions, the U.S. Supreme Court in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) held that the facts of what the respondent actually did that resulted in the criminal conviction are irrelevant. The Immigration Judge is not allowed to look at the underlying facts at all. Moncrieffe clarified that the immigration consequences of a prior conviction turn on a legal issue, which elements the conviction necessarily involved, with any ambiguity “construed in the noncitizen’s favor.” 133 S.Ct. at 1693. “The reason is that the[Immigration and Nationality Act] asks what offense the noncitizen was ‘convicted’ of,…not what acts he committed.” Id. At 1685.

In Mellouli v. Lynch, 135 S.Ct. 1980, 575 U.S. ___(2015), although the defendant had admitted to police that he had in his possession Adderall, a federally-controlled substance, because the conviction itself did not specify what substance he possessed and because the state controlled substances law was not an exact match with the federal controlled substances schedules, he was not convicted of a removable offense under the INA.

While Mellouli was convicted under state law prohibiting possession of drug paraphernalia, it did not matter that he actually possessed a federally-controlled substance, because the state law was not a categorical match with the federal controlled substances schedule at the time of his conviction. Thus, the categorical approach applies to drug convictions.

In Mellouli, the U.S. Supreme Court rejected the Government’s argument that all that is required is a “substantial overlap” between the federal schedules in 21 USC 802 and the state’s controlled substances schedule. Id at 12–14. The Supreme Court found that it was the state schedule at the time of conviction that was significant, not at the time of removal proceedings or any point later in the future. Id. at 3.

In Mellouli, the respondent admitted that the drug he had was Adderall. Adderall is a controlled substance under both federal and Kansas state law. Id. at 3-4. However, even though Mellouli admitted he had a federally controlled substance in his possession, the U.S. Supreme Court held that he had not been convicted of a controlled substance violation under U.S. immigration law, because the Kansas state drug schedule and the federal schedules were not a perfect match at the time of conviction, and because the state’s amended complaint did not include as an element a substance controlled under the federal schedules.

According to the Second Circuit in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), the court held that the particular substance in question is not an element of the offense of NYPL 220.31 (Criminal Sale of a Controlled Substance Fifth Degree) under New York state law, and that each separate controlled substance is not a separate offense.

In Harbin, the Second Circuit asked whether the offense was divisible or indivisible, and set out a procedure to determine this question. First, the Second Circuit looked at the text of the statute. The Second Circuit found that “a controlled substance” was an element of the statute, but not the particular drug, according to the statute’s plain meaning.

Second, the Second Circuit in Harbin looked at the statute’s penalty provisions. Because the penalties were the same regardless of which particular controlled substance was involved, that was another indication that the statute was indivisible.

Third, the Harbin court found that New York State case law did not help the government’s position. The Second Circuit in Harbin pointed out that the prosecutor must name the particular drug involved, so that the defendant 1) is on notice of the charges; and 2) is not at risk of being retried for the same incident, i.e. no double jeopardy. Thus, although the prosecutor must prove the particular drug involved, this is so one can determine to which class or schedule it belongs, and not because each specific drug is a separate offense. Id. at 66. Additionally, the government may have to prove the particular substance involved to show the chain of custody, not because each drug is a separate element. Id. at 66-67.

The Second Circuit made an analogy to murder cases, in which the government has to prove that there was a particular victim, e.g., John Smith, even though the victim’s identity, John Smith, is not an element of the crime, making it a separate crime from the murder of anyone else. Similarly, in drug cases, the government may be required to prove which drug was involved, even though each drug is not a separate element.

The analysis of criminal statutes and their immigration consequences is extremely complex and time-consuming, and reasonable people can differ on their interpretation. The litigation of these removal cases may end up taking many years. Another factor is that if the respondent (the person in removal proceedings) has other immigration issues such as immigration fraud or an illegal entry, this may make their situation even more complex. Those with a long immigration history (which is often the case with foreign nationals who have criminal issues) have an even more complex immigration situation.

However, there is hope for people with immigration issues and criminal convictions, given the decision of the Second Circuit in Harbin as well as recent decisions of the US Supreme Court in criminal immigration cases.

Copyright 2019 © Heidi J Meyers all rights reserved.

EB-1 Outstanding Professor or Researcher, Requirement of a Tenured, Tenure-Track or Permanent Position

In order to qualify to apply for EB-1 as an Outstanding Professor, first, your position must be as a professor in a tenured or tenure-track position. The title of the position does not necessarily indicate whether it is tenured or tenure track or just temporary. For example, at Cornell University, Assistant Professor positions are generally not tenure track and are considered temporary. At the University of Washington, Associate Professor positions are tenure-track, while some Assistant Professor positions are tenure-track and others are not. Each college and university has its own policies regarding job titles and requirements for tenure track and tenured positions, so you need to read the individual college’s policy in detail. Some temporary positions may convert to tenure-track in the future. You are not eligible to apply as an Outstanding Professor if your position will convert to tenure-track at some point in the future. At the time of filing the I-140, your position must already be tenure-track. For example, if at the time of filing an EB-1 I-140, Professor Thinksalot is not in a tenure-track position, even if later on, while the EB-1 is still pending, her position becomes tenure-track, her EB-1 will be denied.

It has become more difficult to qualify for a tenure-track or tenured position. See, for example, The Chronicle of Higher Education, “How to be Strategic on the Tenure Track”, https://www.chronicle.com/article/How-to-Be-Strategic-on-the/244863

Aside from whether or not you will qualify for EB-1, there are other immigration considerations in deciding whether to take a non-tenure track position with a nonprofit or public college or university. One extremely important consideration is that you will be eligible for a change of status to H-1B at any time of the year, without have to worry about not getting an H-1B visa number, as there are no restrictions on visa numbers for professional positions with a nonprofit or public university or college. If you were unable to get an H-1B visa number applying through a private firm, then this may be a great option to stay in the US and further your career.  Thus, while the salary may be quite a bit lower in academia than working for a private company, the security of definitely receiving an H-1B visa number and being able to remain in the US legally may outweigh any loss in salary.

Additionally, while you will not qualify as an EB-1 Outstanding Professor if the position is not tenure track, you may still qualify for a green card through a PERM labor certification special handling application as a professor, if you do classroom teaching, or possibly for a national interest waiver.

Of course, there are more considerations than simply immigration is deciding whether to take a position as a non-tenure track professor. Here is a nice article on tenure versus temporary or contract positions in academia, overview of different employment policies colleges and universities may have, and your considerations (outside of immigration) in deciding whether to take a contract position initially.https://www.apa.org/careers/resources/academic/non-tenure

The other option, the EB-1 Outstanding Researcher, requires an offer of permanent employment, which may be tenured or tenure-track, but is not required to be, as long as it is permanent. However, USCIS has clarified that even though many researchers have employment contracts valid for only one year, because the position depends upon funding from grants received yearly, it still may be considered a permanent position for the purposes of an EB-1 Outstanding Researcher. The university or college would have to show it intends to continue to seek funding and that it is reasonable to expect funding to continue, in order to prove that the Researcher position is permanent.

Copyright 2019 © Heidi J. Meyers all rights reserved.

O-1s for Highly Qualified Fashion Designers, Performance Artists and Others in the Arts

The O-1 may be an option for those who did not get an H-1B visa number. Unlike H-1Bs, which have a shortage of visa numbers, there is no limit to the visa numbers for the O-1 category. Because it is for those with “extraordinary ability”, it generally is not suitable for those who have just graduated from university, or young people just starting out in their career. The O-1 allows those who have shown extraordinary ability in the sciences, education, business, athletics, the arts, or in the motion picture and TV industries to come to the U.S. temporarily for up to three years initially, and then may be extended.

Thus, suppose you are a fashion designer with national or international renown who did not get an H-1B visa number in the visa lottery this year, you may still apply for an O-1. Additionally, there is no requirement for the O-1 to prove that the beneficiary is a “professional”, thus there is no requirement that the O-1 applicant have a four-year bachelor’s degree that is closely related to his or her field.

For example, musicians who lack a bachelor of music or others who cannot show both that the position is a professional position and that they have the requisite degree and so are not eligible for an H-1B, may be eligible for an O-1 because as long as you can show the requisite degree of success in your field, you may obtain an O-1 even if you have no formal degree, or the job itself is not professional.

This article will focus on O-1s in the arts, which have an easier legal standard to satisfy than O-1s in the sciences, business and education. Federal regulations define “arts” very broadly to include the following:

1)  fine arts, i.e., painting, drawing, etc;

2)  visual arts, i.e., industrial design, graphic design, fashion design, fashion modeling, interior design, photography, are just some examples;

3)  culinary arts, i.e., top French chefs; top pastry chefs, etc., and

4)  performing arts, i.e., singers, composers, musicians, actors, dancers, directors, choreographers, etc.

You may be eligible for an O-1 even if you are not the principal creator and performer, but essential to the production, including directors, set designers, lighting designers, sound designers, choreographers, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.

The legal standard for an O-1 in the arts is somewhat lower than the exceptionally high standard in the fields of business, sciences and education. While in the areas of business and science, you have to prove that you are one of the few at the very top of your field, in the area of arts, you instead must prove “distinction”, meaning “renowned, leading, or well-known in the field of arts”.

One advantage of the O-1 over the H-1B, is that you do not need a single employer to be the petitioner. The O-1 allows you to use a US agent as the petitioner. The U.S. agent may be: the actual employer of the beneficiary; the representative of both the beneficiary and the employer; or a person or entity authorized by the employer to act in its place. The agent and beneficiary must have a written contract, and if there are a series of events or performances in various locations or with various employers, a detailed itinerary with dates, locations, etc.

O-1s also generally require a written advisory opinion from a peer group, union, labor and or management organization. To give you an idea of the various organizations suitable for an O-1B advisory opinion, USCIS has a non-exhaustive list, at https://www.uscis.gov/working-united-states/address-index-i-129-o-and-p-consultation-letters.

If one has not been nominated for, or received, significant national or international prizes, such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award, the beneficiary must show at least three of the following:

1)  they have performed a lead or starring role in productions with a distinguished reputation;

2) leading or critical role for organizations or establishments with a distinguished reputation;

3) they have national or international acclaim as shown by critical reviews or articles in major newspapers, trade journals, etc;

4)  major commercial or critically acclaimed success;

5)  significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field;

6)  high salary or substantial remuneration.

7)  A catch-all category, so the beneficiary can submit “comparable evidence” if the list above is not directly applicable to their field.

Copyright 2019 © Heidi J Meyers, all rights reserved.

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