Foreign nationals may be denied immigration benefits based on mere allegations. Or, where do you go to get your reputation back? Part I.

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.

ICE Uses Big Data & Data Mining to Deport Immigrants & Undercut Sanctuary Cities. Foreign Nationals Are Not Safe Even in Sanctuary Cities.

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.

USCIS Clarifies One-Year Employment Abroad Requirement for L-1 Managers, Executives & Specialized Knowledge Transferees

In a November 15, 2018 memo, USCIS clarified the one-year of employment abroad requirement for L-1 Managers, executives, and specialized knowledge transferees, which is important for an U.S. company with a subsidiary, parent, affiliate or branch outside the U.S. which wants to bring its foreign employees to the U.S. to work.

USCIS has come out with a new policy memo on meeting the L-1 one-year foreign employment requirement, which covers L-1A managers and executives, as well as L-1B specialized knowledge transferees. The petitioning employer must employ the L-1 employee abroad for at least one continuous year out of the past three years prior to filing the L-1 petition with USCIS.

The L-1 employee must spend the one year physically outside the U.S. and second the petitioning employer and employee must meet all requirements, including the one-year of foreign employment.

Thus, the employer cannot file the petition prior to the date the employee reaches the one-year anniversary of employment with its foreign affiliate, subsidiary, parent or branch, even though USCIS may be taking a long time to process and adjudicate L petitions.

Also, if the employee takes a break in employment or stops working for the employer for more than two years during the three years before filing the L petition, then he or she cannot meet the one-year of work abroad requirement.

To meet the one-year requirement, the employer cannot count any days that the employee has spent in the U.S. Only time outside the U.S. counts towards the one year. Brief trips to the U.S. for business or pleasure would toll the time required for the one year. Thus, if the beneficiary came to the U.S. for ten days during the one year, the employer could not file until the beneficiary had been working abroad for 365 plus ten days so not until after the 375th day.

Additionally, time the employee spent working in the U.S. for the employer does not count towards the one-year requirement for work abroad. However, time spent working in the U.S. can be used to adjust the dates of the three-year period. For example, if the employee worked in the U.S. for the employer in H-1B or E-2 status, from January 2, 2017 to January 2, 2018, and the employer filed an L petition for the employee on January 2, 2018, the three-year period would be counted from January 1, 2014 to January 1, 2017 (rather than from January 1, 2015 to January 1, 2018, which would be the case if the employee had never worked for the employer in the U.S.).

However, periods of employment with the employer in the U.S. as a dependent or a student do not count and do not allow the adjustment of the three-year period. Similarly, periods of time in the U.S. working for an unrelated employer also do not adjust the three-year period.

Note on the New Labor Condition Application (LCA) form for H-1Bs, H-1B1s and E-3s

On November 19, 2018, US Department of Labor published a new Form 9035/9035E, Labor Condition Application (LCA), which must be filed and certified prior to filing any H-1B, H-1B1 or E-3 petition.

The new form requires the additional information of the worksite addresses, aside from the employer’s address and legal business name of the employer, as well as the legal business name of the third-party client site.

Otherwise, there is nothing new, except for H-1Bs where the employee has a US masters degree. For cases in which the beneficiary is qualifying as a US masters degree holder, the new form requires the employer to complete separate form, Appendix A, which requests: 1) the name of the university that awarded the beneficiary’s masters degree; 2) the field of study, or major; 3) the date of the masters degree; and documentation.

New H-1B Proposed Rule Unlikely to be Implemented in Time for 2020 FY H-1B Season

According to a new proposed rule published December 3, 2018, petitioner employers who want to file H-1B petitions subject to the cap, as well as US masters cap cases, would first have to electronically register with USCIS during a fixed registration period. USCIS would then randomly choose from among the registered employers only as many as would meet the H-1B cap visa quotas. Thus, only employers selected through the registration process would be able to file H-1B cap-subject petitions.

Only if there were fewer employer registrations than there are visa numbers available, would any employer be allowed to file a cap-subject H-1B petition, up until the visa numbers have been used up. Given the very high demand for H-1B visa numbers, this scenario is unlikely.

Employers not selected for registration would remain in a reserve system for that fiscal year, whereby if USCIS later decides it needs to increase the number of registrations to meet the cap or advanced degree exemption, USCIS would select additional employers from those in the pool of reserves.

This means that employers will save money by not having to prepare and file large (or small) numbers of H-1B petitions without knowing ahead of time whether one or more may be lucky enough to get a visa number. Only those employers whose registration is selected wil be able to go ahead and file H-1B petitions.

Once the projected number of employer registrations towards regular H-1B cap cases is reached, USCIS would then select employer registrations eligible for the US masters degree exemption. Thus, there would be a change in the order of meeting the cap quotas. In the past, USCIS has first selected US masters degree holders towards the 20,000 exemption, and then after has selected the regular 65,000 H-1B cap subject cases. DHS believes that this change will mean that more beneficiaries with a US masters degree (or higher) will be chosen in the H-1B lottery.

DHS predicts that this new procedure will increase the number of US masters degree holders who receive H-1B visa numbers by about 16%.

The new rule is unlikely to be effective in time for the 2020FY H-1B season. As you all may know, all H-1B cap-subject petitions should be filed by the first five business days in April 2019. The notice and comment period for the new rule is open until January 2, 2019, after which DHS has to review the comments and finalize the rule. Additionally, DHS will have to create a new online system for employer registration for cap-subject H-1Bs, which may then need to be tested prior to deployment. Also, the final rule will have to be published with an effective date.

Thus, employers should go ahead with preparing their H-1B petitions for this upcoming H-1B season to be ready to file by April 1, 2019, which is a Monday.

F-1 Foreign Students Need to Choose Their Majors Carefully, to Obtain the STEM Two-Year Extension of Work Authorization

F-1 foreign students with a degree in a STEM (Science, Technology, Engineering and Math) major are eligible for a total of three years of work authorization, while F-1 students with other majors are eligible for only one year of work authorization. However, there are various definitions of STEM, and USICE (US Immigration and Customs Enforcement) has their own list defining which are STEM degrees. Whether a degree qualifies as a STEM degree is not entirely intuitive, and F-1 students need to choose their majors carefully to make sure they qualify as STEM degrees.

USICE (immigration and Customs Enforcement) has a list of all degree programs which fall under STEM, and make a graduate eligible for a two-year extension of OPT (Optional Practical Training), for a total of three years of work authorization. Thus, graduates with STEM majors can seek a total of three years of work authorization, while those with all other majors can apply for only one year of work authorization after graduating. You can check whether a particular major makes you eligible for the additional two-years of work authorization by checking the list at https://www.ice.gov/sites/default/files/documents/Document/2016/stem-list.pdf. The list is quite broad, and starts out with Agroecology and sustainable Agriculture, and includes many fields such as Animation, Interactive Technology, Video Graphics and Special Effects, Artificial Intelligence, many IT and computer science majors, many Engineering majors, Architectural Drafting, CAD, Biopsychology, Behavioral Sciences, many fields in Psychology, a myriad of Veterinary majors, Management Science, among many others.

What may be surprising is that the list does not include most fields in healthcare, with a few exceptions. For example, the STEM list of majors does not include Nursing, Physical Therapy, Occupational Therapy, Dentistry, Speech Language Pathology, Chiropractic, or other healthcare fields. An MD (Medical Doctor) is not included in the STEM list. Thus, however obvious that these degrees are related to science and technology, they are not included on the STEM list, and so those graduates in the healthcare professions are eligible for only one year of OPT and will not be able to get the additional two-year STEM extension.

Biological and Biomedical Sciences, which are included in the STEM program, consist of the non-clinical biomedical sciences and biological sciences. Healthcare professions are not included in this grouping. So, for example, Radiation Biology, CIP Code 26.2209, which is the study of the effects of radiation on living organisms and biological systems, is included as a STEM degree but Radiologic Technology/Science, CIP Code 51.0911, which prepares you to provide medical imaging services to patients, is not a STEM degree.

What are the exceptions? Which healthcare fields would qualify as STEM majors? Various majors in Psychology, Veterinary Science, and Pharmaceutical Sciences all qualify as STEM majors. Pharmaceutical Sciences is a little tricky. Pharmaceutical Sciences, CIP Code 51.2010, qualifies as a STEM major, but Pharmacy, CIP Code 51.2099, does not. However, a Pharmaceutical Sciences degree does not equip you to practice as a pharmacist, rather to work in the fields of drug research and development, drug testing and analysis, or pharmaceutical sales and marketing. A Pharmaceutical Sciences degree does not qualify you to take the licensing exam to be a pharmacist, but a student who wants to be a pharmacist could initially get a bachelor’s degree in Pharmaceutical Science, which qualifies as STEM, and then get their Doctor of Pharmacy (Pharm. D.) which does not qualify as STEM. Because their bachelor’s degree is a STEM degree, the graduate would qualify for the three years of work authorization pursuant to STEM, even though his or her most recent degree was in a non-STEM field.   Thus, those wanting to go into a healthcare profession, but who also want the three years of work authorization through STEM, would have to obtain two degrees, one a STEM degree and one in the healthcare field of their choice. Regardless of which degree was the most recent, the graduate would be able to obtain the two-year extension of work authorization due to their STEM degree.

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