BASIS FOR INADMISSIBILITY
Because there is no statute of limitations, detrimental reliance, unclean hands , or other black letter Criminal law principals applied to U.S. Immigration law. A person who has committed a criminal conviction that is a basis of inadmissibility to the U.S. is inadmissible regardless of when it was committed or how many times they have since entered the U.S.. Our office has seen numerous cases involving clients with relatively minor offenses committed twenty to thirty years prior to their stop at a U.S. port of entry.
NO STATUTE OF LIMITATIONS
U.S. Immigration law is Administrative law, not Criminal law. Many of the legal principals that protect the rights of criminal defendants don’t apply to Immigration law. There is no statute of limitations for instance, precluding the prosecution of an offense after a substantial lapse in time. The one constitutional protection most often available to visa violators is for due process violations under the 5th amendment, and to a lesser extent the 4th amendment’s protection against undo searches and seizures. (Stops / arrests made by ICE and Customs officers are legal unless they are “Egregious” in nature)
BCBP uses several databases to determine a visitors admissibility. Most often an inspector checks the Treasury Enforcement Communications System (TECS) for any recent posts such as warrants , lookouts, or other reports by a law enforcement agency. If there is no recent activity for the visitor, inspectors usually look no further into the visitors background. But if a more extensive check of TECS is conducted, a more complete history of arrests and convictions may be revealed.
For those visitors found inadmissible due to a criminal history, they are usually refused entry and referred for a hearing before an immigration Judge, and told that they may file an application for a waiver of inadmissibility. If the criminal record is historic, the visitor is likely to receive a waiver.
JUNE 23, 2016
Today, the Supreme Court let stand the 5th Circuit Appeals Court’s Stay of President Obama’s Executive Actions, DACA II and DAPA. So, those programs will not be implemented while the litigation in Federal Court continues. The Supreme Court Justices voted 4 in favor of the Stay and 4 opposed, with no 9th vote due to the death of Judge Antonin Scalia. The tie leaves the 5th Circuit decision unchanged. The Court avoided inserting itself into the political skirmish that has followed the Obama Immigration policy by issuing a compact Decision:
“The judgment is affirmed by an equally divided Court.”
The House has submitted a bill for consideration called the Visa Integrity and Security Act of 2016 (VISA). Several proposed changes stand out.
1, all visa petitions will require a complete background check of the Petitioner, as well as the Beneficiaries of the application. Currently, a full background check is conducted only on the Beneficiaries.
2, a “Security Advisory Opinion” would be required for all visa applicants from countries currently associated with Islamic extremism, e.g., Iran, Iraq, Libya, Somalia, Syria, Sudan, Yemen.
3, a person’s Social Media information will be reviewed as part of the background checks.
4, All visa applicants abroad will be required to have an in-person interview with a consular official.
5, DNA testing will be required for all visa applications based solely on blood relations, i.e., sibling petitions or Parent-child preference petitions. Currently DNA testing is done only where the records of birth and family heritage are insufficient or from a country lacking in reliable record-keeping.
U.S. Immigration and Customs Enforcement (ICE) set up a fake university in New Jersey called the Northern New Jersey Univ. (NNJU) to catch people involved in fraudulent visa trafficking. The operation took slightly less than 3 years. In that time, the operation ensnared 21 individuals who are now charged with conspiracy to commit visa fraud and related violations. It also resulted in more than one thousand students receiving fraudulent masters degrees and specialty work visas.
H VISA TERMINATED
What then should be the treatment given to the students by ICE (and U.S. CIS which grants visas) who were enrolled in the school, obtained degrees, and have been hired in their field?
We know that students are being contacted by ICE and will be issued Notices to Appear before an Immigration Judge. We also know the former students are being notified by prospective employers that the job offers are invalid and their H visas terminated.
Should, however, the students be authorized to file for “U” visas, based on being a victim of a criminal conspiracy? Or, should they not be treated as innocent victims but instead seen as having partaken in an obviously fraudulent scheme to obtain fake degrees and work visas?
Should the students be authorized to re-apply in a valid degree program with an authorized school and have their student status “re-instated”? Under the INA, students are limited to applying for reinstatement by having no more than a single semester lapse in student status, due to circumstances beyond their control.
A quick review of Donald Trump’s plan for immigration involves proposals for enforcement beyond simply having Mexico pay for a new wall.
For instance, his plan would make the use of “E-verify” nationwide. Presently, E-verify is available for employers to use voluntarily to confirm the identity and the employment eligibility of workers. Because unauthorized employment can result in significant fines to employers, E-verify is a valuable resource to employers in industries that employ foreign nationals on a large scale. E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.
In terms of general enforcement efforts, Trump calls for the return of all criminal aliens to their home countries, and sanctions against countries who refuse to accept them. Aliens apprehended crossing the border must be detained until they are sent home, no more catch-and-release. A tracking system should be developed for visitor visas, and those who overstay should face a criminal charge.
Trump would propose to end birthright citizenship and would end Federal funding of sanctuary cities. He would involve ICE officials in the crackdown of gangs to deport alien members of criminal gangs, such as MS-13.
As to employment of aliens and the effects on the economy, Trump proposes limiting the number of unskilled workers who compete with minorities for jobs in this country. Instead, he would limit the issuance of J-1 visas and develop a jobs program for inner city youth. As for workers in specialty occupations, those with advance degrees, he wants a higher prevailing wage to discourage large employers, such as Disney, from the preferential hiring of foreign workers as a cost-saving tool.
As for public benefit eligibility, Trump proposes to require that all visa applicants be able to certify that they will not require taxpayer assistance during their visit. He would cut back on funding the process for admitting refugees and asylum seekers, and use the funds to benefit inner city youth in high-crime neighborhoods.
Many of Trumps proposals would require an act of Congress, not just an Executive Order. In terms of the politics, it would probably be considered a conservative proposal that contains ideas attractive to progressives who should favor increasing the employment opportunities of youth and minorities in inner cities.
H -VISA STATUS
I don’t think the average GOP voter has been able to grasp the GOP candidates’ discussion of the pros / cons of using foreign workers in “H” visa status. That’s because there are two categories of H workers and their skills and educational requirements are completely different. Ted Cruz and Marco Rubio criticized Donald Trump for having workers for 5 months at the Trump resort in Mara Lago, Florida. Those are temporary seasonal workers in jobs that require no high school / college degree, the H-2B visa. To petition for these workers an employer must satisfy the Department of Labor and the U.S. CIS that they need to fill the position due to a seasonal, peak load, or one-time occurrence. Trump spoke about “the season” in Palm Beach from November to March where there is a need for hospitality workers, and the difficulty of finding U.S. workers willing to accept temporary or part-time positions.
The other category of “H” visa that was referenced in the debate is for workers in specialized fields who have advanced degrees, 4 year college degrees or higher, the H-1B. Trump spoke about those foreign students graduating from top graduate schools like Harvard, and Wharton, as those high skilled workers that he thinks should have a chance to remain in the U.S. and work for U.S. companies. Disney World in Florida was criticized recently when they were found to have required their U.S. citizen employees to train their foreign replacements who had H-1B visas. Although the U.S. employer must pay the Dept of Labor’s “prevailing wage” to the H-1B worker, the overall cost for these skilled workers is less than the cost of hiring U.S. citizens with comparable skills.
Donald Trump has issued his Immigration Plan in an on-line post:
A recent report (Jan, 2016) from DHS to the U.S. Congress shows the number of visitors who have overstayed their visas. More than half a million aliens overstayed their visitor visas in the United States in 2015 alone, with more than 482,000 of those individuals believed to still be residing illegally in the United States, according to a separate report issued this month by DHS.
What are the consequences of overstaying a U.S. visitor visa?
Most visitors to the U.S. arrive with a basic tourist visa, B-2 visa, which often is valid for 10 years and permits multiple entries to the U.S.. Each entry is limited to 6 months or less, and is indicated on the I-94, or stamped passport, given to the visitor by BCBP at the time of admission. Exceeding the time limit on the I-94 / passport results in an overstay.
If known by DHS or the State Department, the overstay would result in that visa being cancelled, and the person forced to file a new visa application.
IS THAT ALL? ..not necessarily.
(i) If the overstay results in more than 6 months of “unlawful presence” in the U.S., then the person becomes inadmissible to the U.S. for 3 years.
(ii) If the unlawful presence is more than 1 year, the person is inadmissible for 10 years.
UNLAWFUL PRESENCE is also charged to persons who have crossed the border illegally, if DHS has the evidence to prove it.
However, not all visas are granted with a specific period of time authorized, but instead, as in the case of student visas, for “duration of status“. Student visa holders maintain lawful status by maintaining a full-time student curriculum at an authorized School. Unlawful presence for students is only commenced following a formal finding of a violation by DHS or an Immigration Judge. In most cases, students depart the U.S. or apply for “reinstatement” of student status and avoid a lengthy period of unlawful presence.
CHALLENGING OBAMA’S IMMIGRATION ACTION
The Supreme Court announced today (January 19,2016) that it will review the U.S. v. Texas decision, and analysts believe it will issue a decision in June. In granting the Writ, the Court stated:
The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: “Whether
the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.” . . . . . (The Constitution requires the President to “take Care that the Laws be faithfully executed.”)
order list: 577 U.S.
Review will not be limited to whether the preliminary injunction was warranted, but whether DAPA, ACA II, etc. were a proper exercise of executive power.
In the Republican Presidential primary contest, the issue of Ted Cruz’s eligibility was raised, since he at one time was a Canadian citizen by virtue of his birth in Canada. Like the U.S., Canada grants citizenship to persons born on Canadian soil. In Ted’s case his mother was a U.S. Citizen, so he was entitled to be a U.S. Citizen as well. Thus, until he renounced his Canadian citizenship in 2014, he was a dual citizen of the U.S. and Canada. But, can he become President of the U.S. since the constitution requires that the President must be a natural born citizen?
As Article II, Section 2 of the Constitution declares: “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President . . ..”. According to the Washington Post’s Ruth Marcus, the intent of the citizenship requirement was, in the words of Founding Father John Jay, to “provide a strong check to the admission of Foreigners into the administration of our national Government.” (In the middle two sentences, the Framers exempted themselves from this requirement, since many were only first or second generation citizens.)
The result of that analysis would be that anyone who is born to a U.S. citizen parent, or born on U.S. soil, is eligible to be President. Whereas, a person who became a citizen by naturalization would not be eligible.
In Ted’s case, what was the process for his Parents to make him a citizen of the U.S. after his birth in Canada? They would have filed an “Application for Consular Report of Birth Abroad”. That form, the DS-2029, is filed in the U.S. consulate with territorial jurisdiction over the place of birth. It results in the issuance of the FS-240, Report of Birth Abroad. Here is a recent announcement from a U.S. consulate regarding an update to the form:
The Department of State is pleased to announce the introduction of a redesigned Consular Report of Birth Abroad (CRBA, or Form FS-240). The redesigned CRBA, which is an official record confirming that a child born abroad to a U.S. citizen parent or parents acquired U.S. citizenship at birth and serves as proof of citizenship, has been updated with a variety of state-of-the-art security features to help prevent fraud and identity theft. provided by the usembassy.gov.
Presidential candidate Donald Trump recommends that Cruz file a Petition for Declaratory Judgment in Federal Court to get an official Judicial determination on the issue. But, instead, maybe he just has to produce the FS-240. We’ll see.