U.S. consulates in India have been issuing more 221(g) refusals to IT professionals, which is when the Consular Officer temporarily denies a visa for lack of essential information or because the applicant is undergoing administrative processing (basically, that the security checks are taking a long time). More software engineers, programmer/analysts and other IT personnel are being denied visas, and given a questionnaire regarding information that the Consular Officer should already have, including questions regarding the particular project the applicant is going to work on, the technical description of the project, budget, timeline, current status, how many employees are assigned to the project, and detailed information about the other employees on the same project.
At the time an H-1B or L-1B application is filed, an IT company will have certain projects going, and will not be able to anticipate all their future projects, as these continuously change, so the Consular Officer may be looking for a way to deny a visa if the original project proposed for the H-1B or L visa applicant is no longer on-going, and the company intends to send the applicant to another project, perhaps without the LCA on file.
Additionally, administrative processing, including security checks with the various agencies such as the FBI, CIA, DEA etc., may also be quite time-consuming, depending on a variety of factors.
Another issue is the BAHA (Buy American, Hire American) proclamation which has been added into the Foreign Affairs Manual (FAM), so visa applicants need to be ready to explain how their position in the US will not take jobs away from US workers, and how they and their project will benefit the US economically. Due to the ongoing shortage of labor in the US, it should not be difficult to document the shortage of IT professionals.
Visa applicants need to be able to express themselves clearly to explain their qualifications, the job duties and the project, as well as answer questions about the company itself and their future salary and benefits. Applicants need to review the petition support letters carefully and be aware of the contents of those letters.
The good news is, a 221(g) refusal is not a final denial, applicants and their employers still have the opportunity to submit additional evidence and make the Consular Officer happy.
2019 will be a good year for immigrants who apply for their green card through their employer. While there will be some economic issues this year, including slowing growth and higher prices due to the trade wars, the good news is that the unemployment rate is likely to stay at historic lows. Employers are having a very hard time finding U.S. workers to fill positions. This means employers who file PERM labor certification applications will have an easier time convincing the US Department of Labor that there is a shortage of U.S. workers ready, willing and able to do the job.
Second, the U.S. Department of Labor and USCIS are not affected by the government shutdown. The U.S. Department of Labor is funded through September 30, 2019, and will be able to continue processing PERM labor certifications, as well as prevailing wage requests and labor condition applications at its normal rate. This means, the first step of the labor certification process, where the employer first obtains a prevailing wage determination and then files a PERM labor certification application, should go as smoothly as ever.
USCIS is funded by the USCIS filing fees that applicants have to pay, and so they are continuing to adjudicate Forms I-140 employer immigrant petitions as well as Forms I-485 applications for adjustment to permanent residency. USCIS is also not affected by the government shutdown.
Third, backlogs in employment-preference visa numbers for the worldwide categories are either nonexistent, or are very reasonable. The US State Department Visa Bulletin for February 2019 shows second, third and fourth employment preferences for the worldwide category as all current, as well as the other workers employment preference. That’s fantastic! No backlogs! The first employment preference for the worldwide category is backlogged to December 1, 2017, a little more than one year, which is not bad at all in immigration time.
Fourth, because they are having such a hard time finding qualified employees, employers are more likely to be willing to go through with the labor certification process, which for the employer is time-consuming and expensive. Thus, it will be easier for immigrants to find employers who are eager to sponsor them.
The government has taken an extremely broad view of the material support to a terrorist organization ground of inadmissibility, using it to deny many victims of persecution the opportunity to be granted asylum or other relief from deportation.
According to the Immigration and Nationality Act (INA) ground of inadmissibility under section 212(a)(3)(B)(i)(VIII), material support to a terrorist organization is defined as the following:
(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training–
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or
(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.
The definition of material support as a ground of deportability or removability is exactly the same as the definition for the ground of inadmissibility.
In immigration, the material support ground of inadmissibility has been applied to deny many Central Americans, Columbians, and others who are victims of guerilla and terrorist organizations, any relief from deportation or removal. The material support ground is interpreted so broadly, that even if you are forced while looking at the barrel of a gun of a terrorist ready to send you out of this world, you will still be found to have provided material support and will be ineligible for immigration benefits.
In Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018) the BIA held that a woman from El Salvador was not eligible for cancellation of removal because she had provided material support to a terrorist organization. This unfortunate woman was a victim of the guerillas, who kidnapped and enslaved her, and forced her to watch her husband dig his own grave before they murdered him. However, in spite of the fact that she was a victim of the guerillas, the BIA held that she was not eligible for cancellation of removal because she had provided material support, as she was forced to cook, clean and wash their clothes while a slave to them.
This provision of law, clearly intended to stop bad guys (and bad gals!) who support terrorists from coming to the US or getting immigration benefits, is being used to punish women, children, and other weak and vulnerable populations who have been the victims of terrorists and transnational criminal organizations, as a cudgel to deny them any kind of immigration benefits or relief from removal and deportation.
The BIA has made clear, time and again, that even though an individual provides material support involuntarily, while under duress, he or she is still barred under the material support ground of inadmissibility. See, Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016).
The definition of duress is the following: “threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment. “confessions extracted under duress”. Synonyms: coercion, compulsion, force, pressurization, intimidation, threats, constraint, enforcement, exaction. Informal: arm-twisting. See, google definition, https://www.google.com/search?q=duress+definition&oq=Duress+definition&aqs=chrome.0.0l6.3471j1j7&sourceid=chrome&ie=UTF-8
It is a sad state of affairs that several of the federal appellate courts have gone along with this interpretation. For example, in Hernandez v. Sessions, 884 F.3d 107 (2d Cir. 2018), the petitioner, Marleny Hernandez, a citizen of Columbia, a successful business woman, under threat from the FARC, provided food and other goods to the FARC every three months from around 1997 to 1999. As retaliation against her for having government officials as guests at her hotel, the FARC attacked and destroyed her hotel and store. The Second Circuit in Hernandez deferred to the BIA’s interpretation, as they found the statute to be ambiguous, and applied Chevron deference. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
As if it is not bad enough that the government applies the material support bar when the applicant was under duress, the BIA’s recent decision in Matter of A-C-M- makes clear that no matter how de minimus, small or trivial the support, the material support bar still applies.
What can one do in such a situation? There is an exception to the bar if one “did not know and should not reasonably have known, that the organization was a terrorist organization”. However, even if the immigration judge finds an applicant ineligible, all is not lost. First, even if it is found that the material support bar to asylum applies, the applicant is still eligible for deferral of removal under the Convention Against Torture. Second, in federal court one can argue that the plain meaning of the statute requires that support be material. The statute would not specifically state “material support” if the word material did not mean anything. If support was not required to be material, Congress would have left out that word, and just had the word support with no qualifiers. While the government may argue that the statute is ambiguous with regard to duress, there is no such ambiguity with regard to whether the support may be de minimus. It cannot be, as the support must be “material” and Chevron deference does not apply in this situation.
Another argument is that this interpretation of material support with no exception for duress or de minimus support is contrary to the non-refoulement obligation of the 1976 United Nations Protocol Relating to the Status of Refugees (the “Protocol”), to which the United States is a party.
Department of Homeland Security (DHS) has announced that it will initiate a wave of denaturalizations during 2019, which is provided for in ICE’s 2019 fiscal year budget. According to ICE’s FY2019 budget, their investigations are focused on citizens from “special interest countries”, i.e., Muslim countries, for example, Pakistan.
People who have naturalized to U.S. citizenship can be denaturalized, or stripped of their citizenship, in two ways. First, the U.S. Attorney’s Office may bring criminal charges against the individual under 18 U.S.C. 1425, for unlawful procurement of citizenship. Anyone convicted of violating 18 U.S.C. 1425 automatically will have their U.S. citizenship revoked by the same federal court hearing the criminal case. However, there is a ten-year statute of limitations on criminal prosecution for illegally obtaining citizenship.
Second, the Office of Immigration Litigation (OIL) of the Civil Division of the Department of Justice may bring civil proceedings in federal court for denaturalization under 8 U.S.C. 1451(a). There is no time limit on bringing a civil denaturalization suit, and so a person could have been a U.S. citizen for decades prior to the commencement of denaturalization proceedings.
Once a person is denaturalized, they revert to being a permanent resident. However, their troubles are not over. ICE will then initiate removal proceedings against them and try to deport them.
In addition to the US Attorney’s Office and the US Department of Justice, ICE and USCIS are involved in investigations of possible denaturalization cases too. ICE attorneys from the Central Revocation Unit (CRU) of the Office of Principal Legal Advisor (OPLA) also pursue denaturalization cases and coordinate with the US Attorneys Offices and OIL.
ICE has decided to take the lead in denaturalization. In 2009, the Obama administration realized that in certain cases, fingerprint cards had not been digitized and checked against DHS records before naturalization. The Operation Janus program was created to compared those fingerprints against prior files, and ICE discovered that some people had removal orders, and created a list of cases for denaturalization.
According to the fiscal year 2019 ICE budget, ICE currently has 887 leads for the Operation Janice program, and they are focusing on denaturalization of individuals from “special interest countries”, meaning Muslim. More recently, ICE has created another new program, Operation Second Look, and are pulling naturalization files after running algorithms to try to select cases. There are now about 700 cases that they want to review for denaturalization.
In 2017, the Trump administration also created a new office within USCIS focused on denaturalization. The Trump administration as taken money away from the adjudications budget, about $207 million, and diverted it towards their denaturalization project. This loss of funding has caused a slow down in adjudications of naturalization cases, cause money being taken for other reasons.
DHS plans to hire 300 additional agents to investigate and prepare denaturalization cases, as well as 212 support staff.
In Maslenjak v. U.S., 582 U.S. __(2017), the Supreme Court held that not any misrepresentation is enough to convict someone of illegal procurement of naturalization in violation of 18 U.S.C. 1425(a). The government must prove that the defendant’s illegal act played a role in his or her acquisition of citizenship. Thus, violations of law that had nothing to do with obtaining citizenship cannot be used to convict someone of illegal procurement of U.S. citizenship.
You may be denied entry to the US based on mere allegations. This may come as a complete shock and surprise, because you may believe you have a clean record. However, if the US government suspects you of a wide range of activities or associations, your visa, entry or adjustment to permanent residency may be denied. What can you do under such circumstances? Or, where do you go to get your reputation back?
It may surprise you, but you may be prevented from entering the U.S. or getting a green card based on mere allegations, even if you have no criminal record. The U.S. State Department may deny your visa application, or CBP (Customs and Border Protection), may deny your entry into the U.S. without you being informed fully of the facts on which they base their denial. If you are already in the U.S., USCIS may deny your adjustment to permanent residency.
There are a number of grounds of inadmissibility (meaning, you are barred from entry to the U.S.) in the INA (Immigration and Nationality Act), which are based on mere suspicion or feared future behavior, although you may have no prior arrest record.
For example, anyone who the Consular Officer or the US Attorney General (the Department of Justice, and also includes Department of Homeland Security):
1) “knows or has reason to believe” is a drug trafficker or has aided drug traffickers, as well as the close family members of drug traffickers;
2) “knows or has reason to believe” has engaged or will engage in money laundering, or an aider or abettor of money launderers;
3) “knows, or has reasonable ground to believe, seeks to enter the” US to “violate or evade any law prohibiting the export from the United States of goods, technology or sensitive information”;
4) Suspected of being a gang member is included under “knows or has reasonable ground to believe” seeks to enter the U.S. to engage in “any other unlawful activity”;
5) An alien whose entry or proposed activities in the US, the US State Dept “has reasonable ground to believe would have potentially serious adverse foreign policy consequences”.
This is a partial list of basis for which a foreign national may be inadmissible to the U.S., based on “reason to believe” or a “reasonable ground”, will not be allowed to enter the U.S., or even if already in the U.S., not allowed to adjust status to permanent residency.
How to deal with these very nebulous grounds for denial of your immigration application when the US government is not providing any factual basis, or extremely minimal factual basis for the denial?
First, is the difficulty obtaining details of the allegations or any purported evidence against you. If the US Consulate has denied your visa, and you do not have the basis for the denial in writing, you may request a written denial. USCIS when denying an application for adjustment to permanent residency may provide some minimal factual basis without providing any of the details.
The foreign national in such a situation may file FOIA (Freedom of Information Act) requests with all the DHS agencies and the US State Department, but even so, the responses are likely to be less than adequate with the various agencies claiming exemptions to FOIA and responding by a file with large numbers of the pages totally or partially blanked out, and so one does not receive any of the information one was searching for.
Second, is the difficulty of pinpointing the source of the derogatory information. This is because of the multiple databases to which the US State Department and DHS have access.
For just one example, if one is accused of association with a gang, there are myriads of local, state and federal databases that may be the source of the denial. ICE’s Homeland Security Investigations’ (HSI’s), National Gang Unit (NGU) develops intelligence on gang memberships, associates, activities and international movements.
The FBI runs the National Gang Intelligence Center (NGIC), which integrates intelligence from federal, state and local law enforcement. Alcohol, Tobacco and Firearms (ATF) is another federal agency with a gang database.
GangNet is another gang database that contracts with state and federal agencies in the US as well as Canada, and has personal information about suspected gang members, such as street address, physical description, identifying marks and tattoos, photos and nationality, etc.
Because this plethora of federal agencies is vacuuming up information from local police and other authorities both within the US and abroad, it may be extremely difficult to locate the source of the allegations against a person seeking admission into the US., or looking to obtain their green card.
The criteria for being included in a gang database is often very broad. For example, in California, a person “identified as a gang member by a reliable informant/source”, or “identified as a gang member by an untested informant” or seen frequenting gang areas or affiliating with gang members, may be included in their gang database. Thus, many young men from minority neighborhoods may be included in gang databases simply because they reside in or have to walk through the same neighborhoods, where there are gang members.
Persons included in gang databases are not provided notice or a way to challenge the determinations, and many databases do not purge information after the statutory period. Many people are included due to error by police or government workers.
Additionally, many databases have information on persons who have never been fingerprinted, and so it is not possible to show that there is no match with the individual for whom they have derogatory records.
Third, the foreign national will have to engage in a long and arduous process, first disputing the supposed information with whichever agency or department had initial responsibility and then proceeding up the chain of command. For example, if a visa is denied, the first step is following up with the US Consulate, and if that is not successful, then requesting a legal opinion from the US Department of State’s Visa office for a legal advisory opinion.
Fourth, after what is called “exhaustion of administrative remedies”, the foreign national may file a complaint in federal court. Exhaustion of administrative remedies just means you have tried your best to resolve the issue with the agency, and pursued any appeal. In federal court, you may include all related claims, so for example, in addition to challenging the denial of a marriage petition under the Administrative Procedures Act, you may also include a FOIA claim, if DHS failed to provide the entire file along with the derogatory information. If you have a good case, the U.S. Attorney’s Office may want to settle with you, and you may be able to get the result you wish.
If the foreign national is outside the U.S., he or she will need the US petitioner to file in federal court on their behalf, and it will be much more difficult to obtain a positive result, because of the doctrine of consular nonreviewability. For example, in the U.S. Supreme Court case, Kerry v. Din, 576 U.S.__ (2015), the wife, Ms. Din, filed on behalf of her husband in Afghanistan, who was denied an immigrant visa, with no explanation other than 8 U. S. C. §1182(a)(3)(B), the inadmissibility provision for “terrorist activities”. In that case, the husband knew the factual basis for the denial, because he himself had admitted to the US Consular Officer that he had worked for the Taliban as a clerk. Justice Scalia wrote the plurality opinion, which held that Ms. Din had no protected liberty interest in their marriage, and that the notice she received regarding why the visa was denied was sufficient. The Ninth Circuit, in Cardenas v. United States, 826 F.3d 1164, has held that Justice Kennedy’s concurring opinion in Kerry v. Din controls, and that all the US State Department has to give for a denial is a “facially legitimate and bona fide reason”. Of course, the Din case is different, because it was not just an allegation, but rather was definitely true and was admitted to by the applicant himself.
So, the best strategy for someone outside the U.S., may be to try to find the source of the incorrect allegation, and have it corrected.
Applicants who are already in the U.S. are in a much stronger position to contest their cases in federal court. We will further discuss this topic in Part II.
In my last article, we discussed how the accumulation of big data and information sharing between DHS and state and local law enforcement make it extremely difficult for an applicant for immigration benefits or their sponsor to find out the source of derogatory information, and to attempt to correct incorrect data, or assumptions based on a small piece of data. A new study released by the National Immigration Project (NIP) and the Immigrant Defense Project (IDP), entitled Who’s Behind ICE? The Tech and Data Companies Fueling Deportation, (October 2018) paints a picture of the vast amounts of data accumulated, integrated and wielded as a weapon against immigrants.
The study points out how these huge information-sharing systems and databases, which include not only mass information accumulated from every level of government agency in the U.S., as well as from the Mexican government, but also from the mass personal information it buys from private companies, undercuts the efforts of sanctuary cities to try to protect immigrants from ICE and the deportation machine.
The tech company, Palantir, has built ICE’s case management software (called Integrative Case Management – ICM), which allows officers to review data from all local up to federal government agencies, and create profiles of not only foreign nationals, but also their family, friends, associates and employers. At the same time, we have the highly sophisticated surveillance technology being used by local police, and data mining from utility bills, DMV records, business and property data, health insurance information, cell phone records, biometrics, and social media accounts. Now biometrics includes not just a person’s fingerprints, but also facial recognition and irises (eyes), as well as scars, tattoos and palm prints.
Additionally, ICE runs the SEVIS system, which tracks F-1, J-1,and M-1 students and exchange visitors as well as their educational information, employment, etc. and CBP keeps track of all arrivals and departures via air, land, and sea ports. Add to that all the information gathered during secondary inspections by CBP, as well as tracking of vehicles crossing the border. Regarding foreign nationals who do not arrive via ports of entry, CBP operates the Integrated Fixed Towers (IFT) system which provides surveillance for detection, tracking, identification and classification of illegal entries. Not to mention the day and night cameras fixed to towers along the border recording videos.
Thus, we have seen in the past one year, retaliatory ICE raids to arrest and deport immigrants targeting sanctuary cities, as DHS can easily work around the laws of sanctuary cities restricting the cooperation of city employees with ICE and DHS. Living in a sanctuary city does not protect you from ICE and the deportation machine.
On a national scale, we must organize against these vast invasions of privacy by not only DHS but also other government agencies, as well as the connections between government and large IT companies such as Amazon. Sanctuary cities need to be aware of how their policies and efforts to protect immigrants and minorities are being circumvented.
However, you have the right to request any derogatory information from DHS and you may go to federal court in case of the denial of an immigrant petition. According to federal regulations, the USCIS must provide the applicant or petitioner with any derogatory evidence in the file and allow them the opportunity to rebut it. Both beneficiary and petitioner have the right to inspect the record of proceeding. Thus, you may try to get USCIS to provide you with the derogatory information prior to any denial or adverse action. If you are in removal proceedings, you may cite the case of Dent v. Holder, 627 F.3d 365 (9th Cir. 2010), a Ninth Circuit case which holds that a respondent in removal proceedings has a right to their entire immigration file and should not have to use FOIA procedures to try to get a complete copy of their file from DHS.
If, for example, a marriage petition is denied by USCIS, the petitioner may then file an appeal with the Board of Immigration Appeals (BIA). If the BIA upholds the USCIS decision, you may file an action in the US District Court to challenge the denial. On the other hand, should an employment-based immigrant visa petition be denied, you may appeal directly to federal court, and an appeal to the AAO (Administrative Appeals Office) is not required. When filing in federal court, you may add any claims that are closely related, such as if DHS has withheld documents in your file from you under the FOIA (Freedom of Information Act). The federal courts have jurisdiction to review denials of I-130 family petitions and I-140 employment petitions and make a new decision.