Why has USCIS been ignoring the US Supreme Court mandate and rejecting initial applications for DACA? The U.S. Supreme Court, in DHS v. Regents of the University of California, 140 S.Ct. 1891, 1915 (2020) held that the Trump Administration’s termination of DACA (Deferred Action for Childhood Arrivals or Dreamers program) was arbitrary, capricious and an abuse of discretion and violated the APA (Administrative Procedures Act).
According to the US Supreme Court decision, which is the law of the land, the DACA program is restored to its status prior to the termination. So, USCIS should have immediately begun accepting first-time applications for DACA and work authorization. However, USCIS has been rejecting new DACA applications, meaning the USCIS mailing room is not even feeing them in, but just mailing them back to the applicants. Thus, the USCIS mailroom is not even accepting them for processing. The Trump administration is showing an incredible disrespect for the rule of law in the United States.
However, the Maryland Federal District Court, in Casa de Maryland v. Department of Homeland Security, Civil No PWG-17-2942, issued an order on July 17, 2020, vacating the rescission of the DACA policy, and enjoining DHS from enforcing the DACA rescission.
Thus, those foreign nationals who entered the U.S. prior to their 16th birthday, have lived continuously in the U.S. since June 15, 2007, were physically present in the U.S. on June 15, 2012, and who meet all the other DACA requirements, should be able to file first-time DACA applications and have them accepted by USCIS. Should your application be rejected, you may be able to file in federal court against the Trump administration.
Copyright 2020 © Heidi J Meyers, all rights reserved.
The U.S. Supreme Court has opened the door to appeals of removal orders involving denials of adjustment to permanent residency, cancellation of removal, removability for having committed certain crimes and other issues in removal proceedings. The US Supreme Court made clear that the federal courts of appeals have jurisdiction over appeals of removal orders where the BIA (Board of Immigration Appeals) or the IJ (Immigration Judge) incorrectly applied the law to undisputed facts.
The U.S. Supreme Court’s holding in Guerrero Lasprilla v. Barr, No. 18-776 (Sup Ct Mar 23, 2020) seems simple – that federal courts of appeal have jurisdiction over questions of law which includes the application of the law to undisputed facts, in removal proceedings. This decision in a removal case in the context of whether the time limit to file a motion to reopen is subject to equitable tolling, can be applied to many decisions by the BIA and Immigration Judges formerly considered discretionary or “factual”, and not within the jurisdiction of the federal courts of appeals.
This means that if your applications for permanent residency or cancellation of removal are denied in removal proceedings, you can appeal your removal and deportation to the federal courts of appeals, and the court will have jurisdiction over the question of whether the Immigration Judge and the Board of Immigration Appeals (BIA) properly applied the law to the established facts in your case.
Justice Breyer, in a decision joined by all the justices except Thomas and Alito, discussed the meaning of the Limited Review Provision of the INA (Immigration and Nationality Act), 8 USC 1252(a)(2)(D), which provides that the federal courts can only review “constitutional claims and questions of law” in appeals of a final removal order. The Court held that “questions of law” includes application of the law to undisputed or established facts, and that the Fifth Circuit erred when it held that it lacked jurisdiction to review the petitioners’ claims of due diligence regarding equitable tolling of the time limits to file a motion to reopen. The Fifth Circuit had incorrectly labeled the dispute a “factual” issue, whereas the facts were not disputed. Whether a given set of facts meets a legal standard does present a legal inquiry. The federal courts of appeals have jurisdiction over “mixed questions of law and fact” in a removal proceeding. There is a presumption of judicial review in administrative actions, said the Court, citing Kucana v. Holder, 558 U.S. 233 (2010). Executive determinations are generally subject to judicial review. This presumption can only be overcome by clear and convincing evidence that Congress intended to preclude judicial review. The Government’s argument that the Limited Review Provision forbids judicial review of mixed questions of law and fact would be a barrier to any meaningful judicial review. The Court reviewed the Congressional history, and found that Congress enacted the Limited Review Provision in order to preserve federal court jurisdiction over removal orders as an effective alternative to habeas corpus, in response to the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001).
Thus, people with removal or deportation orders can now appeal certain issues to the federal court of appeals that they formerly were not able to.
Copyright 2020 © Heidi J Meyers, all rights reserved.
As an H-1B employee, you have rights. H-1B employers are heavily regulated under both US immigration law and US employment law. If you are an H-1B worker, and are being taken advantage of by your employer, do not despair!
First, the H-1B employer is legally obligated to pay the USCIS filing fees for the H-1B petition and any extensions, and may not pass those costs on to the employee. Additionally, if payment of the attorneys fees by the employee would reduce the employee’s wage below the prevailing wage, the H-1B employer also is prohibited from passing those costs on to the beneficiary employee.
Second, the employer must pay you either the prevailing wage or the actual wage paid to other employees in the same position, whichever is higher, depending upon the geographic location and level of experience. The employer is also obligated to provide you with a copy of the LCA (Labor Condition Application) which is filed with your H-1B petition, and states the wage that the employer is obligated to pay you. The employer must provide the H-1B worker with a copy of the LCA when he or she reports for work. If your employer has not given you a copy of the LCA you can request it, or ask to review the public inspection file, which the H-1B employer must make available to anyone who requests it. So, for example, if your employer initially stations you in Iowa, at the prevailing wage for that locality, and then transfers you to say, New York City or Dallas Texas, your salary should be increased to meet the higher prevailing wage for those locations. Additionally, if there are other US workers in the same position, at the same level, you should be paid the same amount (assuming all other factors equal).
Third, the H-1B employer must offer you the same benefits and terms and conditions of employment as they offer their US worker employees. So, if you are a teacher and all the other teachers are provided with health insurance, disability insurance, 401K, you are entitled to the same benefits. The H-1B employer is also obligated to treat you the same as its other employees. So, for example, if the US workers in the same position are only expected to work 40 hours per week and leave at 5:00 p.m. everyday, but you as an H-1B worker are expected to stay late or work the weekends for the same pay, you would have a claim against your employer.
Fourth, if your employer benches you (meaning tells you to stay home in non-productive status), or furloughs you, promising to re-hire you in a certain period of time, the employer is obligated to continue paying you the obligatory wage during that time that you are not doing actual work. This also applies if the employer hires you, but does not put you on payroll because you are waiting to obtain your state license or permit. If your employer does not pay you during this time period, the employer is liable for not only back pay but also civil money penalties for each violation, and additional penalties if the employer committed fraud or willfully failed to pay you the wage.
Fifth, if your employer terminates you, the termination must be in writing. If an H-1B employer terminates you only verbally, and does not provide you a written termination, then you continue to have a claim against the employer for unpaid wages during that time.
Sixth, H-1B employers are prohibited from taking retaliatory actions against their H-1B employees for asserting their rights. Thus, if you complain the employer is prohibited by law from demoting you, terminating you, or taking other retaliatory action against you.
Seventh, if the employer terminates you, and you wish to return to your home country, your former employer is obligated to provide you with the airfare to return home. The employer may either purchase an airline ticket for you, or reimburse you for the expense of your return trip.
Finally, if you stay quiet and do nothing, USCIS may later find you out of status. For example, if the prevailing wage was $80,000 per year, and your employer only paid you $55,000 for the year, USCIS on any extension or change of employer application would likely find you to have fallen out of status, because it appears you were not employed for the whole year, or else that you were working only part-time and not full-time as specified.
If you believe your rights have been violated, and you are due back pay or compensation for health insurance etc., you may file a complaint with the US Wage and Hour Division, by filing the Form WH-4. See, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh-4.pdf.
Copyright 2020 ã Heidi J Meyers, all rights reserved.
How can foreign respiratory therapists work in the United States? The Coronavirus pandemic has created a shortage of respiratory therapists. Chronic low-level respiratory diseases were already the fourth-leading cause of death in the US before Covid-19. Respiratory therapists are essential in caring for patients who have trouble breathing. They test patients with lung capacity, and perform chest physiotherapy to remove mucus and fluid from the lungs. and Respiratory therapists are needed in order to use ventilators safely and properly. See, https://www.usnews.com/news/healthiest-communities/articles/2020-04-01/coronavirus-pandemic-exposes-need-for-respiratory-therapists
Unfortunately, the H-1B is generally not an option for Respiratory Therapists. Because the US Dept of Labor’s OOH (Occupational Outlook Handbook) states that Respiratory therapists need at least an associates degree, although some employers may prefer a bachelor’s degree, most Respiratory Therapist positions would not qualify for the H-1B since according to the US government, a bachelor’s degree is not required.
Additionally, Respiratory Therapists are not included in the list of occupations for the TN visa, so Canadians who are licensed RTs in Canada will not be able to get a TN visa on that basis.
However, Respiratory Therapists who are managing or supervising other RTs, or who have advanced certifications in a specialized area, may qualify for the H-1B if the employer can show that they only hire applicants who have at least a bachelor’s degree, and that the job duties are so complex and advanced that they require an employee with a specialized degree.
So how can a foreign RT come to the U.S. to work as a respiratory therapist in the U.S.? The foreign RT would have to have his or her educational credentials evaluated as the equivalent of a US degree in respiratory therapy. The foreign RT would also have to take the multiple choice part of the NBRC licensing exam. See the web site for the NBRC, https://www.nbrc.org/
While the NBRC has many testing centers outside the U.S., many countries lack testing centers so an RT abroad would have to travel to another country in order to take the test. Pakistan has two testing centers, one in Karachi and one in Lahore. Similarly, India has three testing centers, in Bangalore, Chennai and Mumbai. Many countries in Latin America and the West Indies do not have an NBRC testing center, for example, Barbados, Belize, Chile, Colombia, Dominican Republic, all lack testing centers. However, nationals from those countries may be able to travel to Buenos Aires Argentina or Mexico City Mexico in order to take the test. It may be easier to obtain a visa to travel to Argentina or Mexico than it is to get a B visa to come to the U.S. to take the exam, which is the other option.
Similarly, in the Middle East, Jordan and Kuwait lack test centers, but you may be able to travel to NBRC testing centers in Cairo Egypt or in Dubai UAE.
Coming to the U.S. temporarily to take the NBRC test is a valid basis for a B visa. However, if unable to get a B visa, a foreign RT who does not have an NBRC testing center in his or her home country should explore which other countries in his or her region do have test centers.
Foreign respiratory therapists may be eligible for the J-1 exchange visitor visa to work for one year as a J-1 intern if they have recently graduated from university, or for 18 months as a J-1 trainee. J-1 trainees must have a university degree or professional certification plus at least one year of work experience abroad, or else five years of work experience in the occupation abroad. These are often not the best option, due to the short duration and the fact that many J-1s also have a two-year foreign residency requirement. So, once the one year or 18 months is completed, depending on the country, the RT may have to return to his or her home country for two years.
Having gotten their educational credentials evaluated for US equivalency, passed the NBRC licensing exam and obtained the NBRC certification, the foreign RT may be sponsored for the PERM labor certification by a hospital or other health care employer. The hospital would have to advertise the job and show that there is a shortage of US workers in their geographical area to perform the job. Then the hospital would file an I-140 on the RT’s behalf, and the RT would go for consular processing and come to the U.S. as a green card holder. The PERM labor certification has more flexibility in terms of categorizing a position as professional. The recent proclamation by President Trump does not apply to health care professionals, and would likely not apply to RTs, depending on the hospital’s requirements.
Because of extreme backlogs in the third employment preference for India and China, however, the PERM is not such a great option for these nationals. Nationals of El Salvador, Guatemala, Honduras, Mexico, the Philippines, Vietnam, have a wait of more than three years, which can go by quickly.
Foreign national RTs who are already in the U.S. may have work authorization through other immigration benefits eligibility, such as through asylum applications, as the derivative of a spouse’s status, through DACA or TPS. They may also be sponsored by a hospital or other health care organization for their green card. Those already in the U.S. have an advantage, as they may apply for state licensure, and already be working for the employer hospital or health care organization with work authorization.
Copyright 2020 © Heidi J Meyers, all rights reserved.
The grounds of inadmissibility, which include money laundering, apply to both foreign nationals outside the U.S. who are applying for a visa, as well as foreign nationals within the U.S. who are applying for adjustment to permanent residency. Not only that, but they may apply to permanent residents of the U.S. as well.
Foreign nationals outside the U.S. may be barred from entering the U.S. under 8 USC §1182(a)(2)(I), if the US State Department finds that there is “reason to believe” that the visa applicant “may have engaged in (or may intend to engage in) money laundering activity, as described in Section 1956 or 1957, no matter where the activity may have taken place, whether in the U.S. or abroad”, and must request a State Department legal advisory opinion. See, US Department of State cable, R 040059Z DEC 01, to all diplomatic posts, “Visa Provisions in USA Patriot Act Series: No.4 New Money Laundering Ineligibility Under 212(a)(2)(I)” (December 4, 2001).
The U.S. State Department will deny both immigrant visas (for the green card) and nonimmigrant visas (for temporary status) based on a “reason to believe” that the applicant has engaged in money laundering, or may do so in the U.S. at some point in the future. It does not matter if all the money laundering activity occurred outside the U.S., nor does it matter if the individual has never been accused of a crime or formally charged. The “reason to believe” standard allows consular officers to deny a visa based on the exercise of discretion and is subjective.
The same “reason to believe” standard is used by USCIS when adjudicating an application for adjustment to permanent residency for a foreign national who is already residing within the U.S. Similarly, an Immigration Judge will apply the grounds of inadmissibility to a respondent in removal proceedings who has applied for adjustment to permanent residency (or re-adjustment for those who are already permanent residents).
Much of the case law regarding the “reason to believe” standard is in the context of drug trafficking, under the ground for inadmissibility. No conviction is required, and not even a formal criminal charge. Even those who have been acquitted or had their conviction expunged may be found inadmissible for “reason to believe” money laundering. For example, in Mena-Flores v. Holder, 776 F.3d 1152 (10th Cir. 2015), the Tenth Circuit found substantial evidence supported the BIA’s holding that the applicant was inadmissible under INA §212(a)(2)(c) “reason to believe” he was an illicit drug trafficker, even though he had been acquitted of all charges.
This low standard for finding inadmissibility and denying a visa or adjustment of status to permanent residency, is in spite of the fact that most ‘hits’ regarding money laundering turn out to be false positives – i.e., the individual is not a money launderer at all and has been falsely accused. See, Reuters, ”Anti-money laundering controls failing to detect terrorists, cartels and sanctioned states” https://www.reuters.com/article/bc-finreg-laundering-detecting/anti-money-laundering-controls-failing-to-detect-terrorists-cartels-and-sanctioned-states-idUSKCN1GP2NV
In the banking context, according to a study by Price Waterhouse Cooper, “over 95 percent of system-generated alerts are closed as “false positives” in the first phase of review, with approximately 98 percent of alerts never culminating in a suspicious activity report (SAR).” Id. Banks at least have some incentive to correct their errors, since they must appeal to their customers and naturally want to do business. However, with the U.S. government in the immigration context, there is no incentive for government workers to investigate and determine if the computer-generated finding is correct or not. It is just very easy to deny a visa, or to deny an application for adjustment to permanent residency, regardless of whether the finding is erroneous. Because of the doctrine of consular nonreviewability, it is very difficult for a foreign national outside of the U.S. to get real review by a federal court. Similarly, because of USCIS directions to find a pretext for denial of adjustment, or denial in the exercise of discretion, it is very difficult for a foreign national to find out what the denial was based on. If the denial states that it is due to “reason to believe” money laundering, most likely USCIS will not inform the applicant of the details of the factual basis for denial. You will certainly need an experienced immigration attorney if you find yourself in such a predicament.
A conviction for money laundering described in 18 USC §1956 or §1957 may also constitute an aggravated felony under 8 USC §1101(a)(43)(D) if the amount of the funds exceeded $10,000. A foreign national convicted at any time after admission is deportable under 8 USC §1227(a)(2)(A)(iii). This includes permanent residents. In Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), reviewing a similar aggravated felony provision, which also specified a greater than $10,000 monetary loss, 8 USC §1101(a)(43)(M)(i), an offense which involves fraud or deceit and the loss to the victim exceeds $10,000, the US Supreme Court held that the $10,000 amount did not refer to an element of the crime in the statute, but rather required an examination of the particular facts of which the defendant had been convicted. In Nijhawan, even though the statute did not require any particular amount of loss, the defendant had stipulated that the loss exceeded $100 million. Thus, in interpreting those aggravated felonies which specify a particular amount of loss, courts do not use the categorical approach, but rather look at the particular amount of loss that the individual was convicted of, or pled guilty to.
If you are convicted of an aggravated felony, you do not qualify for cancellation of removal for permanent residents, nor do you qualify for cancellation of removal for non-permanent residents. An aggravated felony conviction also bars you from eligibility for asylum. However, you still may be eligible for withholding of removal and relief under the Convention against Torture, if you can show that you have a clear probability of being persecuted should you be returned to your home country, or that you would probably be tortured (for any reason) if returned to your home country (these have their own complex legal requirements which we will not review now). Additionally, if convicted for money laundering, but not drug trafficking, you may be eligible for a 212(h) waiver in conjunction with an adjustment application as relief from removal. Again, these are very complex legal issues that may take years of litigation in immigration court as well as in federal court in order to sort them out.
Copyright © Heidi J Meyers, all rights reserved.
Due to the Coronavirus, and worldwide economic standstill, we are already seeing the beginning of large numbers of layoffs. More than a million workers in the US could lose their jobs by the end of March 2020. See, for example, https://www.washingtonpost.com/business/2020/03/19/unemployment-insurance-today-coronavirus/ Goldman Sachs and Morgan Stanley have declared that a global recession is underway, see https://www.bloomberg.com/news/articles/2020-03-17/morgan-stanley-economists-say-global-recession-now-base-case. What if you are a foreign worker who is laid off? What if you are an employer who must layoff foreign national employees?
The good news is that many foreign workers in temporary status will have slightly less than two months to find another job and file a new petition with USCIS. Employees in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status who lose their jobs due to layoffs or reduction in force, have 60 days (slightly less than two months) to find another job and file a change of employer or change of status petition with USCIS. The 60 days only applies if the worker has a valid E, H, L, O or TN petition. If the petition expires before the 60 days, the worker only has the time up until the petition expiration date. An individual may benefit from the 60-day grace period more than once; however, this grace period only applies one time per authorized nonimmigrant validity period. See, 8 CFR §214.1(1)(2). The whole purpose of the federal regulation is to “enhance worker mobility and ease the burdens nonimmigrant workers face when employment ends, either voluntarily or as a result of being laid off or terminated”. See 81 Fed.Reg. 82466 (Nov. 18, 2016)
Example: Ravi is a software developer on H-1B working for an IT company. Ravi has been happy with his job, and the employer has been paying him the prevailing wage and providing benefits. Unfortunately, due to the recession, his employer goes out of business and Ravi loses his job. At the time he loses his job, he still has six months left on his approved H-1B petition. Thus, Ravi has 60 days from the date he loses his job to find another H-1B employer, and to file a new H-1B petition for a change of employer with USCIS before the end of the 60 days.
Additionally, these temporary workers also have a 10-day grace period past the date of the petition validity (but, double-check that the I-94 is expiring on the same date!). So, suppose, an L-1, O-1 or TN employee is almost at the date of the expiration of his or her petition, and the employer has advised them that they are not renewing or extending the employee’s status. The L-1, O-1 or TN employee has a ten-day grace period after the expiration of stay to either file a petition for a change of status or extension of stay, or else to depart the U.S. See 8 CFR §214.1(1)(3).
This is also an option for H-1B workers, although H-1B workers have the advantage of being able to start work for the new employer immediately upon the filing of a change of employer petition, pursuant to H–1B portability, 8 CFR § 214.2(h)(2)(i)(H).
From the employer’s point of view, whenever terminating an H-1B worker, the employer must put the termination in writing, and is then obligated to notify USCIS that the company has terminated the employment of the H-1B worker. While a written termination is not required under federal immigration regulations for the E-1, E-2, O-1, L-1, or TN, it is always good practice to put terminations in writing, so there is no dispute later on as to salaries, etc owed to terminated foreign workers. Employers who “bench” their H-1B workers in nonproductive status are liable for payment of wages during the total time that the H-1B worker was not working, if the termination was not in writing.
Additionally, H-1B employers affirm when they sign the H-1B petition, that they will pay for the return airfare for the employee should they be terminated, to return to their home country. This provision has not been enforced much though.
If the H-1B employer does not currently have enough work, but wants to retain the foreign worker, they may file an amended H-1B petition for a part-time position. That way, the employer will be able to retain the worker in H-1B status without paying them whatever the full-time prevailing wage or actual wage is. The H-1B employee will be able to maintain legal immigration status, work some hours each week and at least have some income rather than sitting idle with no income.
Regarding E-2 treaty investor businesses, the employer needs to think of laying off foreign workers first, and trying to keep US workers on the payroll. Remember, continued extensions of E-2 treaty investor status depend upon sticking to the five-year plan for increasing the hiring of US workers and providing them with full-time employment. Thus, the foreign investor and business owner in E-2 status should first terminate foreign employees before laying off any US workers. Should the E-2 investor lay off US workers, the investor/employer is at risk of not being able to extend the E-2, due to a determination that the investment is only “marginal”. See 8 CFR §214.2(e)(15).
L-1 employers and employees need to be concerned not only about layoffs here in the US, but also about layoffs abroad, and company closures abroad. USCIS and the US Consulates abroad will deny L-1As and L-1Bs, should the related company abroad go out of business, or appear due to layoffs and decreased revenues, to be about to close its doors. The foreign related company must continue doing business for the length of the L-1’s stay in the US. Doing business is “the regular, systematic, and continuous provision of goods and/or services”. See 8 CFR §214.2(l)(1)(ii)(G)
Example: Fiorella has her degree in Fashion Design. She first worked for several years for a fashion design company in Milan, and then the parent Italian company transferred her to their subsidiary in New York as an L-1B, specialized knowledge worker.
Due to the Coronavirus epidemic and resulting lockdown in Milan, the Milan-based company goes out of business. While the US company is still in business, Fiorella is not able to extend her L-1B status because the parent company abroad is no longer doing business. However, at the time she needs to renew or change her status, no H-1B visa numbers are available either. So the H-1B is not an option. Luckily for her, the company advises her that they will not be able to extend her L-1B a few months before the I-94 expiration date.
Fiorella then decides to start her own fashion company. In her spare time at home, she has been making her own sketches and patterns, sewing and going to Fabscrap to get fabric, buttons, sequins, etc. So she already has some samples ready, for which she can advertise on line and get orders. As a citizen of Italy, she is eligible for E-2 treaty investor status. Through a combination of her savings, and a gift from her family, she is able to come up with $80,000 to start her own business, which she does. She incorporates her business, gets a business bank account, rents commercial space and she is ready to go. Of course, she needs a business plan and a schedule for hiring US workers. She may be able to obtain an E-2 visa, as a treaty investor, to develop and direct her new business (of course, she needs to be careful not to engage in work prior to any change in status or getting a visa).
There are actually successful fashion design companies that started up during the last recession in 2008-2009. See, “What 5 Successful Designers Learned Launching During the Great Recession”, https://fashionista.com/2018/08/fashion-designers-brands-recession-business
For all companies sponsoring foreign workers, it is a concern if revenues drop and there are layoffs, as the petitioning employer always has to convince USCIS and the US Consulate abroad that there is a real job waiting for the foreign worker, that the petitioning employer will remain in business for the time of the petition, and will be able to pay the foreign worker appropriately.
Copyright 2020 © Heidi J Meyers, all rights reserved.