Talk about U.S. Immigration

Independence Day 2011

Carmel, Indiana, Independence day fireworks display was awesome! As the bright light from the fireworks painted the night sky, watching the show from the street side was joyful. Perhaps the joy was multiplied because the street was crowded as people lined up peacefully to watch the open sky. Being in a crowd full of strangers was also pleasant.

It made me think about the importance of the day. I retraced my learning about colonial America’s efforts to gain independence and what persuaded the forefathers of this nation to fight for it. And as I thought deeper, I wondered if the younger generation realizes how valuable the day is.

Over two hundred years ago, the country declared freedom from tyranny and asserted the rights to speak and worship. Ability to speak and live your life peacefully as you wish without fear of retribution is of prime importance to each individual. In a perfect world, everyone would have this right, regardless of their citizenship status. The right would be recognized across the national frontiers, regardless of the place of residence.

Unfortunately, ideological differences across the world redefine individual rights within each country. What is considered a basic human right in one country may be prohibited in another. Some rights are accorded to certain individuals only depending upon whether the individual is a citizen of the country. Note that I am not addressing the right to vote but the right to basic needs of living.

Individual freedom and justice form the foundation of the U.S. government. It is the desire for these individual rights that led the forefathers to leave their country of origin and come to “new lands” which eventually became the United States. So, U.S.A. owes its existence to immigrants and should be a trend setter in recognizing peaceful individual rights as a necessity for all humans regardless of their citizenship status and whether or not they are naturalized.

Special Registration is unnecessary

Government does away with the NSEERS i.e. special registration requirement effective 4/28/2011. Nationals from the 25 designated countries, mostly muslim countries, were required to provide special identifying information while entering U.S. It is well known that some were deported for various offenses at the time of registering. The program started in 2003 initially with a few countries to this list and later on more countries were added to this list.

The recent government announcement recognizes that NSEERS registration did not provide any added security and was in fact a redundant measure. The government recognizes that there are many ways it could perform a background search on foraign nationals and it is no longer necessary to require the nonimmigrants from designated countries to follow special registration process.

I enjoyed reading this. Atleast one inconvenience is less in the world of immigration.

E-1 approval

I-140 approval rates for extraordinary ability workers for E1-1 and E1-2 category show stark discrepancy. Statistics from USCIS show that petitions for outstanding professor and researcher under E1-2 category have above 90% approvals rate, but the petitions for E1-1 extraordinary ability workers are not so readily approved. In 2005 just a little more than half of the petitions filed (55%) were approved while in 2010 almost two third of the petitions were approved (62%). It is good indicia that approval rate has gone up slightly for E1-1.

E1 employment preference category for greencard is designed to attract world’s best and brilliant talents of extra ordinary level. Understandable that the EB1 criterian to prove the extraordinary level is much higher than the standard for EB2 outstanding ability worker.

After the decision in Kazarian vs. U.S. denying the permanent residence to a researcher for failing the evidentiary requirements, there is some clamor for remedial measures and follow up actions from the USCIS. It is time for additional guidelines clarifying the evidentiary standards for adjudicating E1 petitions.

Same Sex Marriage Ban Is Not Good Law

Same sex marriage cases are placed on hold, declared U.S. Citizenship and Immigration Services but soon lifted the hold and began processing cases according the current laws.

The long awaited recognition for such marriages came in the form of abeyance. The Attorney General, Eric Holder, announced in February 2011 that his office would not argue before the 2nd Circuit, the federal court of appeals, that Section 3 of “Defense Of Marriage Act” (DOMA) is good law. The announcement comes following President Obama’s declaration that DOMA is unconstitutional in his opinion. The President was a constitutional law professor in Chicago Law School in his previous carreer.

The 2nd Circuit, faces the issue: whether laws regulating individual rights based on sexual orientation are suspect and therefore should be subject to a higher level of scrutiny. The President answers in the affirmative!

In his statement, the Attorney General stated that so far his office supported DOMA in other Circuit courts because the precedent in those courts suggested that the legislation would be subject to a simple scrutiny i.e. “whether a rational basis existed to enact the law.” This is the easiest standard to satify and most legislation would withstand this scrutiny as long as there is any rational basis to justify the legislation.

Identifying separation of powers between the different branches of the government the attorney general indicated that the law would be enforced because of the commitment of the executive branch of the government to uphold the laws of U.S. until DOMA was declared unconstitutional by the judiciary or repealed by the Congress. Awesome!

I-9 Verification and Document Abuse

Employer education is necessary for I-9 or employment eligibility verification process. Compliance in ignorance of what practices are allowed and what are not can result in employer adopting immigration related unfair documentary practices. The government mandated process is to be undertaken in case of new hires or rehires of employees which may cause employers to overstep their bounds who may end up following practices that could expose them to discrimination claims based on national origin.

Employers are required to ask for an identification verification documents. But frequently, employer representatives would determine that one is a foreign national and require documentation showing proof of legal immigration status. Such practices are prohibited as inherently discriminatory in nature. Requiring that a job aspirant provide document of U.S. citizenship and in the absence provide proof of lawful status are unfair and discriminatory employment practice under the Immigration and Nationality Act (INA).

Because immigration is a hot discussion topic in the Congress, some state legislatures and also in public, many employers or their representatives, misguided of course, are resorting to unfair practices just to ensure that their workers are lawfully present in the United States rendering themselves vulnerable to discrimination claims.

The discriminated employee is entitled to compensation for the resulting loss including reinstatement and back wages while the employer would face civil penalty for adopting the prohibitory practice.

The Office of Special Council from the Civil Rights division of the U.S. Department of Justice (DOJ) reported a few settlements during the first quarter of 2011. Reportedly, the employer required the foreign national provide a permanent resident card aka green card as proof of lawful status or required an unexpired green card upon expiry of the previous card and discharged the employee or refused to hire someone for failure to do so. The DOJ report demonstrates that the dollar amount of civil penalty is not so high if the employer shows its willingness to make amends i.e. pay up the penalty and the compensation and educate its representative, generally the human resource personnel about the anti discriminatory provisions of the Immigration and Nationality Act.

More information on this may be found at www.usdoj.gov/crt/about/osc.
Worker hotline: 1-800-255-7688; Employer hotline: 1-800-255-8155

School faces threat of losing SEVP certification

On January 19, 2011, U.S. government issued notice of intent to withdraw Student Exchange Verification Program (SEVP) certification of Tri Valley University in California alleging violation of Federal Regulations relating to Student visa, curricular practical training (CPT) and reporting requirement under SEVIS. Federal regulation requires SEVP certification if a U.S. school is to be attended by foreign students with nonimmigrant visa.

Over 2500 students are affected by this threatened loss of certification of the California institution. Majority of the students are from India. Reportedly, their employment authorization is terminated forthwith. Students are finding themselves in a situation in which they may lose lawful status and end up in deportation proceedings instead of pursuing their academic goals.

An undated notification from U.S. Immigraion and Customs Enforcement (ICE) suggests that all student records at this educational institution are terminated on 1/18/2011 and that the former students from the institution should provide their contact information to SEVP which would then offer the student some options including the option to leave the country and return in future without a bar on re-admission. Unlawful presence in the U.S., for a specific period of time and departure thereafter, prohibits the foreign national from returning for a period of time except with a grant of waiver.

It is puzzling how the government would stop the bar on re-admission from taking effect without amending the regulations. While many are shocked at these development, some students were given ankle monitors and others received NTAs after reporting to ICE i.e. placed in deportation proceedings. It goes without saying that yet others are hopeful that SEVP would let them transfer to other educational institution upon reporting to SEVP. At present, it is unknown how many were able to successfully transfer to other schools or were able to apply for reistatement of their F1 status.

We anxiously await to hear a good outcome for the students caught in the trap when they thought they were pursuing their academic dream. As the government tries to discover information of wrongdoing by the institution, investigation should not result in students being victimized. It is important that a genuine offer is extended for reinstatement of student status.

Adjustment for Aging-out Child of Fiancee

Children of fiance(e) of a U.S. citizens who enter U.S. on K2 visa face problems legalizing their immigration status inside the country, upon turning twenty one. This is because the law does not show any considerations for growing older with time. Upon reaching the age of majority, K2 children lose eligibility to receive permanent residence status through adjustment of status.

The Child Status Protection Act does not expressly cover such situations. The law was enacted in 2002 to allow the aging out children continue to process their pending adjustment of status application along with the rest of their family. It was designed to prevent family separation caused solely by immigration law provisions. Before the enactment of this law, children upon turning twenty-one were removed as the child derivative beneficiary of their parent’s immigration application. They then had to show an independent basis to be eligible for immigration benefits. This happened purely by passage of time and most of the time children entering lawfully with their parents would lose authorization to stay in the United States upon turning 21. This is called aging out of children.

CSPA attempted to cover the situation but left out noticeable gaps in the remedy. Fiance(e)’s children who entered early in their age are considered fortunate because their adjustment applications is likely to be processed before they age out. Quite often K2 children enter United States just before reaching adulthood and aren’t so fortunate to lawfully be able to stay with their parent. Litigation is pending that just as other visa entrants, the aged out child of fiancee, a K2 visa holder should also be entitled to the protection of the Child Status Protection Act.

Duty of Employer terminating an H1B worker

Labor certification approved but H1B worker laid off. Some thoughts on Employer Liability to the H1B employee from the point of view of immigration law:

Employment is becoming highly uncertain these days. The freedom of “at will” employment contracts and the only requirement to follow the notice period in case of termination should be somewhat restrained in hiring and firing of a foreign national. Employer should have some extra obligations to keep the worker informed of the immigration case to prevent himself from facing unlawful presence issues. At times employers may consider employee’s personal situation in determining or give prior information so the employee begins to consider alternative employment. But there are situations when an employer conceals or fails to disclose information within its knowledge and the worker has no other recourse but to leave the country at the end of his employment.

Immigration law allows a non immigrant foreign national 15 days to depart U.S. at the end of H1B period but no time at all if he is terminated. He then becomes deportable and so would his dependants because of unlawful presence. Many of these people have property which does not sell in such a short time and have children in school. These reasons were cited in the recent leaked out internal memo to the USCIS director Mayorkas that contained a proposal to extend the H1B grace period.

Often, employers are considerate to these foreign nationals because their life in U.S. is dependant upon their job. But not always. If the employer desires to hire the foreign national permanently it sponsors the worker by filing an employment based immigration petition after certification from the Department of Labor. The process is laborious and time consuming and the employer must file labor certification before filing the employment based petition I-140.

Porting to another employer is possible if the foreign worker waited for a specific period. Porting prevents tying of the foreign worker to the sponsoring employer. It was introduced by the government as an ameliorative measure to prevent exploitation of foreign workers. The employee could freely change jobs and is not required to stay with their sponsoring employer until approval of his permanent residence status.

Porting is not favored by employers and may be a reason for delay in employer filing the required immigration papers or conveying the government approval to the employee. Such a worker then stays with the employer. In the event of loss of employment he is then required to find a new employer who could sponsor him for a new non immigrant status. The entire process of job hunting coupled with loss of immigration status becomes very stressful.

Detrimental reliance under an implied contract theory may provide a basis for the action. In my opinion, filing for the labor certification and not conveying the approval to the employee when his layoff is pre-determined may be bad faith at least in relation to foreign nationals whose presence in the country is determined by their employment. By filing the labor certification or PERM the employer creates an expectation in the worker that he would be hired if the government approved. If at a later date employer decides not to hire the worker for such a position it can’t file a false employment application with the government but it certainly falls short on the foreign national’s expectation. Atleast, let the worker know that an approval of the labor certificate is granted so that if allowed by law the worker could port to another employer. Withholding such information appears spiteful.

Employer’s duties to the two parties under a badfaith contract would be conflicting and so he must pay for choosing to wrong one of the two and here it is the EX Employee. Perhaps one could also argue that the employer took away employee’s opportunity to reduce his losses in lost ability to look up for alternative H1-B employment may be a 7th yr. extension and/or a new sponsor for his new I-140, Employment Based Permanent Residence Petition.

U.S. Embassy in China allowing Forum Shopping

Visa applications by Chinese residents could now be made at any of the Consular sections in China irrespective of the place of residence of the applicant. The Consular sections at Chengdu, Guangzhou, Shanghai, and Shenyang or at the U.S. Embassy in Beijing could now entertain such applications from anywhere in China. This welcome change could help Chinese residents avoid the strict standards imposed at some centers.

Generally, foreign nationals are required to apply for a non immigrant visa at a specific consular post abroad having jurisdiction over the foreign national’s place of residence. This is done to prevent forum shopping at a Consular post i.e. prefer a post that is likely to grant favorable result.

Consequently, forum shopping is now allowed in China.

Immigration in Arizona

Arizona State Legislature recently passed an immigration Bill that empowers local police officers to determine immigration status based upon reasonable suspicion and arrest a person if he couldn’t produce an immigration document, even if legally immigrated but couldn’t show the officer proof of it. For the first time in history, a State Bill makes it a crime to be an undocumented immigrant. The New Bill, if signed into law by Governor Jan Brewer would affect even tourists or temporary visitors to Arizona.

The Bill silently authorizes racial profiling, unconstitutional so far and could lead to police questioning and arrest. U.S. Constitution requires that police have reasonable suspicion of a crime to stop anyone for questioning. Predominantly, a different physical appearance, race, color or accent would raise a suspicion that a person is from another country and might be undocumented. Consequently, police could stop anyone who fits this criteria and demand proof of lawful presence. The Bill winks at the acts squarely opposing the set principles of the U.S. Constitution.

Obviously, Constitutional challenges against the Bill are lying ahead if it became the law. Immigration, historically, had been federally controlled both for legislative and enforcement purposes. Precedent is well set that States aren’t allowed to determine immigration status nor could punish for lack thereof. Historically, the States could only report to the federal government if a local law enforcement officer discovered an immigration violation by someone, only if the person was originally taken into custody for some crime or violation. The person remained in custody until transferred to the Immigration and Customs Enforcement (ICE) which investigated for immigration violation. Lengthy detention by the State detention centers, if ICE didn’t take over, may breed litigation. The present Bill seems to circumscribe all precedents. It is the most draconian legislation in immigration history. Litigation is almost a certainty that would reestablish fundamental principles of the Constitutional Law which I hope are seriously followed by the Legislatures accross the country before attempting to legislate on immigration.

The Bill is a symbol of hate legislation and screams for Comprehensive Immigration Reform by Congress. What a waste of the tax money! Iimmigration is always easy to legislate. No bad immigration Law or Bill would put its sponsors out of their seat in the Legislature because the subjects sought to be regulated have no voting power to change anything at all. It is important to remember that immigrants, legal and illegal, are in the country to work and earn their living. There are others who form part of the family of U.S. citizens. Generally, one would see some favorable legislation for these family based immigrants. What we really need is a federal immigration reform that is remedial in nature in place of punitive State legislations on immigration waiting to be overturned.

The American Immigration Lawyers Association urged that the Governor Jan Brewer veto the unconstitutional bill. Untill then, beware if you have travel plans to Arizona.