Tills Visa Law

Stephen K. Tills, Attorney at LAW

The New Jersey H visa sting

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.

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.

 

 

Trump’s Immigration Plan, Beyond the Wall

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.

 

The GOP and H visa confusion

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, peakload, 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.

Trump’s Immigration Plan

Donald Trump has issued his Immigration Plan in an on-line post:

https://www.donaldjtrump.com/positions/immigration-reform

 

Visitor Visa ~ overstays and consequences

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.

Department of Homeland Security (DHS)

Department of Homeland Security (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.

 USA Visitors Visa

USA Visitors Visa

UNLAWFUL PRESENCE is also charged to persons who have crossed the border illegally, if DHS has the evidence to prove it.
STUDENT VISA
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.
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Supreme Court will review Texas case

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: 

Deportation

People picket the Immigration and Customs Enforcement

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.S_K_Tills_US_immigration

Is Ted Cruz a Natural Born Citizen?

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?
ted-cruz
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.S_K_Tills_US_immigration

Immigration in Chaos

Wow, I don’t think many practitioners in the field of Immigration law would have foreseen the chaos of the last several years. Whether it is Presidential Action creating lawful status out of thin air for millions of people unlawfully present, only to have it blocked in Federal Court,

From left, Judge Thomas M. Reavley, Appellate Judges: Chief Judge Carolyn Dineen King, and Judge Emilio M. Garza (Fifth Circuit Court) taken at Baylor Law School ..by Alan Hunt

From left, Judge Thomas M. Reavley, Appellate Judges: Chief Judge Carolyn Dineen King, and Judge Emilio M. Garza (Fifth Circuit Court) taken at Baylor Law School ..by Alan Hunt

or the visa bulletin fiasco, or Central American families risking their lives after a pull back by Border Patrol, and on and on. And to think that the administration wants the Supreme Court in June, or October, to overrule the 5th Circuit, so that the Executive Actions can be implemented, with 6 or three months left in the administration?
WAIVERS
There have been a few positive changes.  Ex., People who have been present illegally in the U.S. for more than one year are barred for ten years from re-entering the U.S., if they leave.  If someone who crossed the border illegally, gets married to a U.S. citizen and wants to receive an immigration visa at a U.S. consulate abroad, he can’t because he is inadmissible for 10 years unless granted a waiver at the consulate.  The Obama administration made an administrative change in 2013 to allow that person to first file the waiver in the U.S. before departing, and thus know that he will likely be readmitted with the Immigrant visa with minimal delay.
waiver-APPS3
EXECUTIVE ACTION
There are other positives.  However, this administration wants the Supreme Court to overturn the Texas decision in this year’s term.   If the Supreme Court were to overturn the 5th Circuit decision, how can this administration expect U.S. CIS to be able to handle the millions of applications with only months left in the administration? How would that effect the adjudication of the other visa applications, those from U.S. employers, schools, churches, and family preference petitions? There is no guarantee the Presidential Action would survive after the next President takes office.

WORK VISAS FOR FOREIGN GRADS
Another Executive action effective January, 2016. There is the new rule proposal to unilaterally increase the number of work visas for foreign grads.
See the report from  Breitbart:   http://www.breitbart.com/big-hollywood/2015/12/30/obamas-agency-reveals-plan-give-work-permits-myriad-foreign-college-graduates/

WORK PERMITS
Does the U.S. economy require more foreign bachelor / advanced degree graduates in the U.S. to compete for jobs in the current economy?  This administration believes so:  ” The 181-page rule focuses primarily on giving work-permits to foreign college-grads who will compete against Americans for white collar jobs, despite the large number of American graduates now stuck in lower-wage positions and struggling to pay off college debts. The rule will also make each foreign graduate much cheaper for U.S. employers to hire than many U.S.-born college grads.”

Graduation Day!  U.S. College Graduates.

Graduation Day! U.S. College Graduates.

S_K_Tills_US_immigration

Inadmissible to the U.S. as a Muslim

Donald Trump suggested temporarily barring Muslims from visiting the U.S. due to the threats presented by radical Muslim extremists.  Is that legal?  What can cause people to be deemed inadmissible to the U.S.?

Under the Immigration and Nationality Act (INA), the inadmissibility grounds  precluding entry to the U.S. are found in section 212.

That section provides a number of reasons that foreigners can be denied entry:
212(a):
(1)  Health – communicable disease
(2)  Criminal:  having criminal convictions or if there is “reason to believe” that criminal acts were committed.
(3)  Security and related grounds: includes membership in communist / totalitarian party,  member of terrorist organization.
(4-6)   Prior Immigration violations, previous deportation, alien smuggling, etc..
(7) Misc grounds:   Practicing Polygamists, International Child Abduction, Unlawful Voters, Ineligible for Citizenship, Foreign Nationals who Evaded the Draft

world_religion

Membership in a certain religion cannot be the basis for denying  entry to the U.S.. But, anyone with ties to terrorism is barred under INA section 212(a)(3). . .

What can be done by an alien who is deemed inadmissible?  Depending on the basis of inadmissibility, they may be eligible to file a waiver application.  (not available for the terrorist ground)
S_K_Tills_US_immigration

The Fiance Visa,The DOS: online forms

After the terrorist attack in San Bernadino last week, Breitbart is among a few media sources that are questioning whether the female terrorist was admitted to the U.S. due to a failure in the fiancé visa application process.  The application process was changed by the Department of State in 2010 so that the first step is submission of an online application, DS-160, for all non-immigrant visas.
city-hall-california

The new online application began in January, 2010, and  was designed to allow for a preliminary review of the applicant and the desired visa category. (There are numerous categories of non-immigrant visas, with one type of visa for every letter of the alphabet ending at last check with W.)

In the San Bernardino case, the Islamic female was admitted to the U.S. as a fiancée, a “k” visa. She was most recently in conditional resident status, which she obtained after the marriage to her U.S. citizen spouse.

illegal-immigrationThere are reports that on her visa petition prior to entering the U.S. she gave a false address on the application. That information is required on the online form ds-160. (This form requires extensive background information and is time consuming. It has taken our office upwards of two hours to complete.)  If that is true, it does not explain how She was able to get by the in-person interview at the U.S. Consulate.  The primary objective of the consular interview is to assure that DOS (Department of State) is issuing the visa to a verified beneficiary of the visa petition.

The failure to find the erroneous address in the application resulted in an approval of the fiancé visa. It was missed again when she filed for her conditional green card after the marriage, although that process examines the bona-fides of the marriage which takes place in the U.S.
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