United States is a nation of immigrants where foreign nationals (FNs) come from all parts of the world to pursue their dreams bringing with them their intellect, industriousness and talent. As the FNs settle in their new homes and seek various immigration benefits, some of them encounter surprises. Often, the consequences are severe and may jeopardize the long term career goals and unsettle families. Unfortunately, the damage is frequently self-inflicted by the eager and unassuming do-it-yourselfers. Also contributory is the fact that the law of immigration is complex and ever changing and is becoming increasingly restrictive lately.
VISITOR'S INTENT: A PROBLEM?
The visitor visa or B visa is granted for short term visits for pleasure or business. Visits with temporary purpose i.e. the person plans return to his or her country upon completing the purpose of the visit.
Visitor visa is considered to bring in the largest number of Non-Immigrants to the country and a rich source of wealth through tourism etc. Consulates however, have a vast discretion while deciding a visitor visa application and denials are frequent. Lately, complaints of B visa denials at the U.S. consulate have risen sharply with applicants unaware of the reasons of denials. As the U.S. government is making efforts to promote foreign tourism it is important to reconsider the consular discretionary power to deny the application for visitor visa.
Lately, visitor visa approval rates have risen. A well prepared visa application and proper responses at the consular interview can get an approval inspite of prior visa denial(s).
So, a well prepared visa application is the first step to get an approval and could achieve the purpose for these foreign visitors aspiring to come to the U.S.
Under the relevant rules, the Foreign National is permitted to visit U.S.
1. for a short term;
2. with a definite purpose in mind;
3. shall leave U.S. soon after accomplishing it; and
4. may not be gainfully employed.
Applicants could come to U.S. for meeting family members, pleasure tours, attending conferences or for independent research for a publication included, certain business trip, medical treatment or participating in amateur athletic events.
Grant of nonimmigrant visa (NIV) requires proof of "non immigrant intent" i.e. proof that the applicant will not stay in U.S. longer than necessary nor settle permanently. This is done by providing proof of sufficient connections to FN’s country i.e. the connections would work like magnet and pull him back to his home country e.g. ownership of home/ business, presence of immediate family members, a strong career or other interest in the home country etc.
The problem erupts when the FN attempts to engage in activities inconsistent with the purpose of his visa and may face denial of admission for holding a preexisting immigrant intent or intent inconsistent with the visitor's visa (which may be inferred from post admission conduct) leading to removal and may even entail future inadmissibility for fraud. Lately, parents intending to visit their son or daughter in U.S. are being denied visitor visa. It is alleged that the denial letter is handed without even asking any questions; despite the fact that the applicant had previously visited U.S under the same kind of visa. The frustration and anger of having spent the ever rising filing fee and the energy in attending the interview at the Consulate at an advanced age may outrun the desire to spend the grandparents’ day with an eagerly awaiting grandchild. The situation could be avoided by filing proper documents that show the FN has sufficient ties to the country of his nationality.
Visitors quickly changing status to students (F1) or other visa category are frequently denied the change of status on the ground that they entered U.S. holding the prohibitive intent (to be something other than a visitor). The situation needs a careful evaluation.
Spouses unsuccessfully try to obtain B visa to visit their newly married US Citizen (USC) spouse. Could it be just a visit? Marriage to the USC provides the obvious prohibitive immigrant intent.
Shortage of H-1B visas has sent people scurrying for alternative ways to seek admission; and B visa appears to be a convenient shelter. Nothing however changes the requirement of proof of "non immigrant visiting intent."
Issuance of visa at the Consulate is not an assurance that the foreign national would be admitted at the U.S border. It is therefore highly recommended to keep the supporting documents to be able to show to the immigration officials at the port of entry. The immigration officials have unquestionable authority to inspect the personal belongings and papers at the port of entry. Documents, cell phones and laptop computers have been the subject of border search. If the inspection reveals evidence of the prohibitive intent it may cause denial of admission at the port of entry despite visa approval stamp from the Consulate.
Travel abroad pending adjudication of extension of stay or change of status is another crucial situation that needs determination whether one could return on a new or the pre-existing visa. Although it would be separate topic to be addressed at another time it would suffice to say that the timing when to file the application and its outcome largely determine the right course.
Out of status and visa overstay are other common ails of B visa entry that justify the Consulates requiring a stronger proof of non-immigrant intent. Prolonged unlawful presence might place a bar on readmission.
Despite these complex situations many visitor visa applications will still be made regardless of prohibitive intent earning a denial.
Travel Pending Change of Status
Read on H-1B, J-1 waiver and more . . . here
Relief for Victims of Domestic Violence
If you are married to a U.S. citizen or a Lawful permanent resident in U.S. and are subject to domestic violence, you may be eligible to immigration benefits. A child or an elderly parent who is a victim of domestic violence, may also be entitled to similar benefits.
Fiance(e) or Spouse: K Visa
K-1 & K-2:Fiance`(e`): A foreign national planning to marry a U.S. Citizen (USC) may be able to bring his or her fiance`(e) and fiance(e)'s minor children into U.S. under the K-1 and K-2 nonimmigrant visa respectively. These foreign nationals may later seek permanent residence through Adjustment of Status if the fiance(e) marries the U.S. Citizen petitioner after coming to the U.S.
It is better that the fiance(e)s weigh the pros and cons of their situation and contemplate the possibility of changes in the circumstances that may prevent them from ever marrying. The condition of marrying the petitioning USC is mandatory and failure to take appropriate steps often results in separation of families.
On the other hand, a foreign national may find himself or heself in a relationship with an abusive USC fiance`(e) thinking that the only alternative is "to leave the country if they had to leave the abusive spouse." Immigration Law treats victims of abuse with compassion is a lesser known fact.
Often, the foreign national spouse may feel forced to stay in a relationship ridden with abuse for lack of resources to free himself or herself from the situation and seek help. The victims of domestic violence and their dependents can self petition for their immigration status. However, these people seldom seek help because of lack of awareness of their rights.
K-3 & K-4:Spouse: Spouses and children of U.S. citizens (USC) may apply for a nonimmigrant visa upon filing for permanent residence. This category was initially assigned to fiance`(e)s under the "LIFE ACT, 2000" but was later extended to the spouse and children. The underlying purpose of the Act being promotion of family unity. Using this visa the USC and his foreign national spouse and children may stay together as a family in the U.S as they await processing of their immigrant visa.
Although, this visa offers benefits like employment authorization it is subject to several limitations. If certain conditions are satisfied, beneficiaries may receive extension and travel autorization.
The down side is that occurrence of specific events may trigger termination of status of the K-3/K-4 visa holder leading to the possibility of going out of status.
Although, the USC petitioner for a K visa undergoes a criminal background check and the Government is required to provide the FN information and resources on domestic violence issues; the fact that the FN is aware of such behavioral pattern of the USC does not affect the FN's eligibility to seek relief under any other provision of law e.g. the FN (here the spouse or child) may be able to self-petition as victim of abuse under Violence Against Women Act, although, VAWA supports a wider category of self petitions.
Employment Eligibility Verification
All employers are now required to verify the employment eligibility of each individual they hire, U.S. citizen or otherwise and should maintain a document called employment eligibility verification form (Form I-9). Beginning 11/26/07 employers were required to transition to the revised I-9 form and after 12/26/07 a failure would entail penalty on the employer.
Form I-9 was revised based on a change in the rules relating to what documents constitute the evidence of identification or of employment eligibility or of both. As a result of the new guidance issued by USCIS, employers are required to use the revised I-9 forms in case of all new hires or expiring employment authorization document (EAD). This means that the revised form need not be used for current employees whose EAD holds good for sometime but is to be used when their EAD is about to expire.
E-Verify and the Immigration Conundrum
Over the years, immigration laws have undergone a lot of changes, but with recent enforcement measures the issue of "illegal immigration" has become prominent. 'Illegal Immigrants' known as 'undocumented aliens' like all other foreign nationals come into U.S. in search o jobs and a better livelihood but mostly woth no entry documents. Geographical priximity with the neighboring countries and the economic necessity of U.S. businesses coupled with its inability to find sufficient willing indigenous workforce has been the major factor for this incessant inflow of undocumented labor.
The U.S. government realized that to stop the chronic problem of illegal immigration it must first check the employment of the unauthorized aliens. Foreign nationals assuming employment without the "employment authorization document" or the "lawful permanent resident status" are called "unauthorized aliens". Border fence construction, seeking the help of the other governmental agencies and ICE raids and removal of the illegal immigrants are some of the various government efforts in checking the number of the unauthorized aliens.
Congress enacted "Immigration Reform and Control Act, 1986 (IRCA), prohibiting the knowing employment of unauthorized aliens and imposed fines and penalties for such violations. Under the Act, employers are required to conduct an "employment eligibility verification" of all the employees and maintain the employees' details in the I-9 form. It is felt that the verification process is largely circumvented through production of false identity documents and the monetary punishments under the IRCA were not sufficient deterrant for employers to hire unauthorized workforce. The 'Basic Pilot Program' now called e-verify was started as an internet based system to help employers verify the identity of their workers by matching the records of the Social Security Administration (SSA) and those of the Department of Homeland Security (DHS). An employer handbook provides guidance on the procedure to be followed.
DHS issued a "no match regulation" wherein, employers were to be issued a no match letter. The letter could come either from the SSA stating that the employer's records did not match employee name and social security number or from the DHS that the employee's immigration status or employment authorization document did not match the respective agency records. The rule requires discrepancies to be resolved within a specific time frame, failing which the employer must terminate the employee or risk fines and penalties. Employers could follow the 'safe harbor procedures' to avoid violation of their legal obligation.
In September '07, the SSA was to despatch no match letters to thousands of employers notifying them of the discrepancies. However a Federal District Court granted injunction and the issue went to the 9th Circuit Court in appeal. The suit alleged that the name discrepancy could occur due to not just because of fraudulent identity documents but also due to clerical mistakes, change of names after marriage or divorce or use of multiple surnames. Due to these honest mistakes foreign born naturalized citizens and lawful permanent residents also run the risk of losing their jobs or may get caught in the bureacratic red tape. According to the Equal Employerment Opportunity Commission (EEOC) these provision give employer an opportunity to violate Title VII and the anti discriminatory provisions. Also, employers are prone to discriminatory charges if they decline certain documents of identity or selectively subject some of the employees to the verification process. Although DHS is providing guidance on what identity documents to use, employers are likely to stay confused as to what procedure to follow. In a recent guidance, DHS suggests that employers are not to turn a blind eye to a suspicion of immigration violation.
Courts have repeatedly held that the immigration is a federal legislation, however, inability of the Congress to bring forth a comprehensive immigration reform in the last year has encouraged the State and the Local Governments to legislate on the subject. Although, participation in the federal E-verify program is voluntary, State laws mandate such participation and most impose licensing sanctions after issue of warning for repeatedly hiring unauthorized workers. It is largely feared that as employers accross the nation participate in the e-verify program under the State law mandatory requirement, the system may breakdown.
An Arizona District Court has upheld the Arizona state law that imposes licensing sanctions against the businesses for hiring unauthorized aliens. Several States have passed licensing sanction statutes and others are considering them. The Indiana Legislature has also joined the band wagon and an "Immigration Bill" is being discussed in the Legislature. The "Senate Bill 335" seeks to impose a three tier punishment upon the employers for "knowingly" hiring illegal immigrants: first, warning then, suspension and lastly, revocation of their business license. The Indiana law enforcement department would be responsible to enforce immigration laws. The important issue would be the training of the state law enforcement in the laws of immigration and meeting the cost of training and administration.
H1B in Indiana: Some Concerns
This issue concerns some newly arriving physiotherapists in Indiana but may apply to H1B job in general anywhere. The American Immigration Lawyers Association (AILA), Indiana Chapter, in its October 2012 quarterly meeting, shared concerns with representatives of Department of Labor (DOL) about H1B employer abuse going on in Indiana.
Concerns were similar to "benching" claims against an H1b dependent employer from out of state. The employment contract included provisions containing liquidated damages for breach and that the H1B wages were conditional upon availability of a suitable job.
The federal regulations require as a condition of hiring that the H1B employees be paid H1B wages from the time they present themselves for work. Employer practices of "benching" are contrary to federal regulation but apparently were covered by the contract provisions. Affected foreign nationals may have a lawful claim for back wages against their sponsoring employers if “benched.”
Many of these frustrated foreign national resigns their H1 position and relocate to other jobs. The employer then obtains a state court judgment, often exparte, for breach of contract. It appears at the outset that the contract not to pay wages to an h1b worker until availability of employment is against federal law but may perhaps be appropriately challenged in another forum, the Federal Court.
DOL representatives suggested that the affected individual should provide DOL with necessary information against the concerned employer. Additionally, foreign nationals should note that some helpful information can also be obtained at the U.S. Consulate where they apply for H1 visa.
Unless challenged, exploitative employment practices would continue to grow and embolden the abusive employers.
Voting Rights and Immigrants
This November brings the Presidential election. We would have a new leader to steer the country. Lots of excitement and expectations would be in the air and hopefully lots of votes would be cast. But the coming election also worries me as to how many people are casting votes not knowing whether they should or should not be doing so.
As a general rule, voting in general elections is a right of the citizens of a country. Many foreign nationals in the United States choose not to naturalize even after years of acquiring lawful permanent residence. These residents, largely, have the same rights and duties as a citizen except for a few including the right to vote or serve as a jury that are special to citizens only.
Immigration and Nationality Law treats a foreign national who has voted in violation of any Federal, State or local constitutional provision, statute, ordinance or regulation as “inadmissible” and /or “deportable.” A non-U.S. citizen voting in violation of any of those provisions would lose eligibility to seek admission into the United States and if (s)/he were already present in the country, becomes deportable.
In addition, registering to vote but not actually voting could impair the eligibility to naturalize if done in violation of lawful restrictions placed on such registration. At the least, it would be either a false statement or a false claim to citizenship to receive a benefit; if the benefit (registering to vote) was restricted to citizens alone; both affecting the ability to naturalize. Similarly, responding to a call to jury duty may jeopardize the naturalization prospects. Jury pool is selected from various sources not necessarily considering the nationality of the person so selected. Frequently, foreign nationals receive calls to perform jury duty. Proper steps should be taken to avoid making false statements under oath as to one’s citizenship or exercising what may be considered as a right belonging to citizens only.
The law expects a person making (or signing) the statement, about his U.S. citizenship or eligibility to vote, to take full responsibility for his actions and serves with punishment for any mistake. A foreign national making such mistake could face inadmissibility or deportation or both. There exists a narrow exception for those, who, in addition to having each natural or adoptive parent as U.S. citizen, satisfy certain other conditions, events that are less likely to occur than winning a lottery. As you guessed it, complexity controls.
Many foreign nationals may encounter situations where they are invited, as a member of general public, to register to vote in a federal or State or local election. You may have to fill in a form and make a statement under oath and as I have noticed, often foreign nationals are not sure whether they are eligible to register or not. Some hesitatingly approach the registration desk and express doubts about their eligibility. It would be helpful if the eligibility criteria are displayed at the relevant places or even better, if the person at the voting or registration desk is knowledgeable enough to advise you whether you could or could not vote or register. Enquire if such an advice is readily available and if not where could you find it. Even then, it is your responsibility to follow the rules. Reliance on statements of those who have no duty towards you does not excuse you from bearing the consequences of your erroneous statements.
Young adults, although born outside but raised in the United States, frequently commit the mistake of registering and voting, either filled with a sense of excitement of being able to exercise a right which they believed rightly belonged to them or filled with a sense of duty to participate in the elections of the country in which they were raised as one of her own men or women. Others may have voted in the local elections ignorant that citizenship was an eligibility requirement. I would not call it a totally cavalier attitude. Such actions may be the result of possessing a sense of belonging to and behaving as a part of the community, in which one is raised and highlight the widespread ignorance about the divides created and maintained by the nation’s immigration laws.
The moral of the story is: If you plan to vote in any election, check to see what the eligibility criteria are and act accordingly. Know when your statements could be taken as false and above all, take the time to educate your children and encourage them to ask themselves before voting this election “are you a citizen yet?”
Protecting your immigration interest is my commitment.
Disclaimer: The information contained herein is of general interest only and is not a legal advice from me to you. The reader is advised to seek an independent legal advice on relevant matters of interest. Unless you have a written agreement with me for a fee you do not have a contractual relationship with me. The content posted herein may not be updated timely and carries no assurance of accuracy.
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