Immigration Law

Innovative thinking and practical solutions

The difference a day can make: States devise their own remedies for criminal immigration reform

Posted in Immigration Criminal Issues, Immigration Policy, Immigration Reform

While the three branches of federal government fire off salvos on immigration reform, states are finding ways to tackle challenges to the federal criminal immigration landscape.

Earlier this year, California Governor Jerry Brown signed into law SB 1310, a bill that reduces the maximum possible sentence for a misdemeanor in California from 365 days to 364 days.  Although a seemingly inconsequential change for United States citizens, this single day has the potential to impact to lives of many noncitizens convicted of misdemeanor offenses.

The term “aggravated felony” refers to a subset of federal immigration offenses that will result in deportation.  To qualify as an aggravated felony, a state crime need not be “aggravated” or a “felony” because federal law does not take into account state law distinctions between felony and misdemeanor crimes. Aggravated felonies carry the harshest immigration consequences, including removal from the U.S. without a hearing and outright bars to relief from removal if a hearing is held.  When Congress initially created the term, it included only murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices.  However, over time Congress has expanded its reach and today it includes even minor crimes that carry a sentence of 365 days or more. As a result of this expansion, state law misdemeanors with a sentence of 365 days or more may be an aggravated felony under federal immigration law.

Therein lays the difference a day can make.  By reducing the possible maximum sentence to 364 days, noncitizens with minor criminal convictions are no longer subject to the aggravated felony provision and have the opportunity to seek relief from removal or a dismissal of charges altogether.  California is not the first state to make this small but incredibly impactful change.  In 2013, Nevada reduced its maximum sentence for a gross misdemeanor to 364 days, and in 2011 Washington State did the same.

In addition to changing legislation, states are also creating pilot programs to provide representation to individuals in removal proceedings.  In 2013, New York announced the creation of The New York Immigrant Family Unity Project, which will create a position in the New York Public Defender’s Office for an attorney who will only represent noncitizens in immigration court. In October 2014, Santa Clara County in California restored funding for a similar program.

With President Obama’s announcement of prioritizing “felons, not families” for deportation, 364 day sentence limits could become ever more important.

Keeping Immigration Site Visits Civil and Focused

Posted in H-1B, L-1 Visas

US Citizenship and Immigration Services (USCIS) empowers its Fraud Detection and National Security (FDNS) officers to make unannounced site visits to employers of H-1B and L-1 workers.  The stated purpose of these site visits is to ensure the employers and employees in these visa situations are complying with the applicable laws and rules that govern the visa category.

The inspectors conducting these site visits are supposed to limit their inquiries to the facts that relate to the particular visa petition under review.  Certainly it is legitimate to check on the existence of the employer and to determine whether the beneficiary of the visa petition is employed in the position described in the petition, at the worksite location identified in the petition, and at (or above) the salary promised in the petition.

But a site visit is not an excuse for an immigration inspector to engage in a fishing expedition or to treat the employer and/or visa beneficiary in a manner that is anything less than civil.  Unfortunately, as site inspectors fan out around the country to conduct these site visits, evidence is growing that a subset of the inspectors are using the site visits as an excuse to ask impermissible questions, particularly of the employers in these situations.  For example, companies report that inspectors have asked them how many green card holders they employ.  This is an inappropriate question.  It implies that the employer may lawfully ask the employee to prove his or her status as a green card holder when in fact, under most circumstances, it is not.  Asking this question in a site visit is improper for two reasons:  it is clearly beyond the scope of the facts relating to a single visa petition, and it could lead an unwitting employer to engage in actionable discriminatory behavior.  While the employment laws require that employers confirm through the I-9 process that an employee is authorized to work in the US, it is up to the employee to decide which of the documents listed on the I-9 they use for this purpose and US employers generally may not ask if their employees if they are green card holders.  (There is a limited exception for employers whose work requires employees to hold a national security clearance).  And most employers’ records will not contain this information.  Even if someone had a green card when he or she was hired, whether or not that person is still a green card holder or has since become a naturalized US citizen is none of the employer’s business.

Similarly, reports have surfaced of site visits where inspectors were less than civil in their tone and their questions posed to employers, particularly smaller, start-up companies.  This is simply unacceptable.  Many new businesses petitioning for an L-1 or H-1B worker face inappropriate hostility from the government – instead of having their petitions approved, they are besieged by unduly burdensome, repetitive requests for information, much of which was initially submitted to the government and conveniently overlooked or ignored by USCIS.  By the time USCIS grudgingly approves the visa petition, the company and its visa beneficiary often feel that they have been subject to such unduly heavy scrutiny that it borders on harassment.  It only adds insult to injury to follow the visa approval with a site visit where the inspector is not courteous.

There is nothing wrong with conducting site visits to check the facts: let’s keep the visits to that please.

Immigration Issues in the Massachusetts Governor Race

Posted in Immigration Policy, Massachusetts

On Tuesday evening, the candidates for Massachusetts governor met in their last debate ahead of Tuesday’s general election. Throughout the campaign season, Massachusetts Gubernatorial candidates Martha Coakley (D) and Charlie Baker (R) have outlined contrasting positions on several state-level immigration issues.

Baker supports allowing immigrants with work permits to obtain in-state tuition at public Massachusetts universities. However, he opposes giving in-state tuition to those without permits to work in Massachusetts after graduation. Coakley, on the other hand, supports extending in-state tuition benefits to the children of undocumented immigrants no matter their work status.

The two candidates also differ on the question of allowing undocumented immigrants to acquire driver’s licenses. Baker does not support providing driver’s licenses to undocumented immigrants, saying “No one’s ever been able to explain how you can document and verify someone who is undocumented.”

Coakley is more open to granting driver’s licenses to undocumented immigrants. She has said, “There are a lot of people who have been here a long time who can’t get to work, to a medical emergency, if they don’t have a license.” She has promised to work with law enforcement and members of the immigration community to resolve this issue.

Employers of foreign nationals working in Massachusetts remain concerned about the driver’s license debate as even those employees working in valid status are often unable to renew their driver’s licenses while waiting for USCIS to adjudicate their extensions.

U.S. Immigration Policy Catches Up with Assisted Reproductive Technology

Posted in Citizenship, Immigration Policy

On October 28th, US Citizenship and Immigration Services (USCIS) issued a new policy, clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act, to include a gestational mother who (a) gave birth to the child and (b) was the child’s legal mother at the time of birth under the law of the jurisdiction where the child was born.

In issuing this new policy, USCIS recognizes and provides a solution to a serious practical problem that has also been recognized and addressed by the Department of State, relating to the transmission of U.S. citizenship to children born abroad pursuant to assisted reproductive technology (ART)(also known as in vitro fertilization).  These births can occur in one of two ways:  either when a woman gives birth abroad after an implantation of an in-vitro embryo or after a birth abroad to a contractually engaged foreign surrogate.  This new policy is designed to ensure that in the former situation, the child born abroad will be eligible for any family-based immigration benefit that the mother is able to provide—including U.S. citizenship.

U.S. law requires a U.S. citizen parent to have a biological connection to a child in order to transmit U.S. citizenship to the child at birth.  In the context of ART, a father or mother must prove that they are the genetic parent of the child.  This can be proved by DNA testing after the baby is born.  The new policy expands the definition of “mother” to include a gestational and legal mother of the child at the time and place of the child’s birth (in addition to a genetic mother).

Until this policy was put in place, occasionally children born abroad pursuant to ART became stateless.  This is because some foreign fertility clinics have on occasion substituted alternate donor sperm and eggs for the U.S. parents’ genetic material, either purposefully when the U.S. citizen’s genetic material became non-viable, or accidentally, due to errors in the lab.  Tragically, sometimes the parents did not learn about these “switches” until they obtained DNA test results after the child’s birth.

In some jurisdictions, the  gestational mother who carried and gave birth to the child is not recognized as the parent of the child under the laws of that jurisdiction.  In this situation, such a child is eligible neither for a U.S. passport nor a passport of the country in which he or she was born, effectively rendering the child stateless or otherwise unable to leave the country of birth.  Today’s expanded definition of “mother” and “parent” is designed with the best interest of the child in mind, so such a child will not be a stateless person.

U.S. citizens who are considering a foreign surrogacy arrangement should carefully review the laws of the country in which the birth will take place to understand whether under local law the surrogate mother will be considered to be the legal mother of the child born through ART.  If the law of the place of birth gives a contracted surrogate any parental rights, it could raise questions about the child’s legal mother and in turn, the child’s citizenship.

Otherwise, mothers who meet the expanded definition but don’t have a genetic relationship with their child (because they became pregnant through an egg donor) will be able to petition for their child; will be eligible to have their child petition for them based on their relationship, and will be able to transmit U.S. citizenship, if they are U.S. citizens and if the other relevant requirements for transmission of U.S. citizenship requirements are met.

Israel Practice Event: Overcoming New Challenges in U.S. Visa & Immigration Law

Posted in Immigrant Entrepreneurs, Israel Business, Nonimmigrant Visas Tel Aviv

On Wednesday, October 29th, Doug Hauer, Member in our Boston office, will participate in a panel briefing for Israeli technology entrepreneurs & executives seeking to relocate employees to the U.S. Yael Biran, Managing Director, Mintz Levin Israel Business, will moderate the panel.

Topics covered will include:

  • Developments in visa processing at the U.S. Embassy in Tel Aviv
  • Solutions for overcoming B-1 visa challenges at U.S. consular posts in Israel
  • Understanding and navigating special administrative processing
  • Immigration risks in planning executive leadership teams for a U.S. office
  • Strategies for extending ‘New Office’ L-1 petitions for executives and managers, and specialized knowledge experts
  • Managing immigration related U.S. government ‘site visits’
  • The VC perspective on immigration and visa issues

Who Should Attend?
CEOs, CFOs, entrepreneurs, and investors in technology companies looking to relocate employees into the U.S.

Location
Herzog Fox & Neeman
Conference Center, 1st Floor
4 Weizmann Street
Tel Aviv

To register, click here.

Driver’s Licenses for DACA Beneficiaries

Posted in Arizona, DACA, Deferred Action

According to The Huffington Post, the State of Arizona and the US Federal Government are once again tussling over domain with regard to benefits based on immigration status. This round it’s driver’s licenses and DACA beneficiaries.

The Obama Administration, in a friend-of-the-court brief,

“urged a court to reject Arizona Gov. Jan Brewer’s appeal of a ruling that blocks the state from denying driver’s licenses to young immigrants who have avoided deportation under a change ordered by the president.”

According to the filing, these immigrants, who have avoided deportation under the Deferred Action for Childhood Arrivals (DACA) policy, are the only immigrants whose documents are not accepted by the Arizona state government for the purpose of obtaining a driver’s license.

Governor Brewer is asking the 9th Circuit Court to review the ruling.  The US Justice Department is arguing that no review is warranted.

“The [Arizona] state driver’s license policy was a reaction to steps the Obama administration took in June 2012 to shield thousands of immigrants from deportation and expand their legal rights. About 580,000 people have been approved to take part in the program, including about 20,000 in Arizona.

Brewer issued an executive order in August 2012 directing state agencies to deny driver’s licenses and other public benefits to young immigrants who get work authorization under the program.”

As the rules governing eligibility for driver’s licenses are determined at the state level, DACA does not automatically provide its recipients access to a state driver’s license.  Nonetheless, DACA recipients who obtain work authorization and Social Security numbers are eligible to obtain a license in almost every state.

Only Arizona and Nebraska adopted policies excluding DACA recipients from driver’s license eligibility. These policies in Nebraska are also under challenge in court.

Taking 221(g) Administrative Processing Too Far?

Posted in Consular Processing, Necessary Administrative Processing, Nonimmigrant Visas, Security Checks

The Obama administration has touted a number of new initiatives aimed at encouraging immigrant entrepreneurship and retention of high-tech workers in the U.S. These are commendable and this author applauds these efforts. However, a major obstacle causing seemingly unnecessary delays is “administrative processing” for nonimmigrant visa applicants under section 221(g) of the Immigration and Nationality Act. This law has been around for years and is an additional security clearance conducted by the U.S. Department of State before a visa can be issued. Until recently, administrative processing was reserved for only the most extreme cases. Now, however, 221(g) administrative processing is being used much more frequently.

There are legitimate reasons why an additional clearance may be needed. Most are related to concerns about possible terrorism or the misuse of technology while in the U.S. The absurdity of administrative processing is not the law itself, but the way it is applied at embassies and consulates abroad. Consider the following common scenario:

A foreign national graduated from a U.S. university after having previously been issued an F-1 student visa. That foreign national was one of the fortunate ones who managed to secure an H-1B visa from the extremely limited quota and now she happily holds H-1B visa status. That same foreign national has been living and working in the U.S. for a few years. Now, she wants to travel back to her home country, and even though her status has been changed in the U.S., she must apply for the H-1B travel visa at the U.S. consulate abroad in order to return after her international trip. Should be no problem right? WRONG!

The visa application itself is stressful enough requiring completion of a number of bureaucratic steps, not the least of which is an interview at the U.S. embassy or consulate abroad. However, if this visa applicant is subject to 221(g) administrative processing, the delay in completing the administrative processing security clearance and issuance of the visa can be anywhere from a few weeks to several months.

Imagine the disbelief of the employee’s U.S. manager when told that this employee, who previously attended a U.S. university in valid F-1 student status and has been working in the U.S. for this employer for several years, must wait outside the U.S., potentially for months, until the H-1B visa is issued.

It can be difficult to answer the reasonable follow-up questions posed to us as immigration lawyers:

“But she’s been living the U.S. for a long time. Why is this only now an issue for the government?”

“If our government is that concerned about this person’s eligibility for a visa, why did it previously issue her a student visa and allow her to live in the U.S. for so long?”

And of course, “When will she be able to return to the U.S. to continue working?”

If administrative processing isn’t reigned in to limit security clearances to real security issues, skilled foreign nationals will add this to their growing list of reasons to move out of the U.S. and provide their services—and economic benefits—in other countries.

2016 Diversity Visa Lottery Registration Begins Today

Posted in Diversity Lottery, Green Card, Immigrant Visa

It’s that time of year again. The Department of State will begin accepting requests to register for the 2016 Green Card Lottery. Online registration begins today, October 1, 2014 and will conclude on November 3. The lottery, officially known as the Diversity Immigrant Visa Program (DV-2016), is a path for foreign nationals who meet the eligibility requirements to secure permanent resident status in the United States.

Facts about the Green Card Lottery for 2016

  • Online registration begins on the US Department of State’s website on October 1, 2014 and ends on November 3.
  • There is no fee to register for the Green Card Lottery.
  • 50,000 green card entries from those who meet the eligibility requirements will be selected.
  • Being selected does not guarantee a person will get a green card — applicants still need to  meet the standards for admissibility and to file a visa application and supporting documentation with USCIS within the designated time period.

For more information about the Diversity Visa Lottery Program and how it all works, read this advisory Susan Cohen recently wrote that sums up what foreign nationals need to know.

Free Webinar: Auto Dealer Industry Wage & Hour Compliance – October 8, 2014

Posted in Employment Law

Wage and hour lawsuits and governmental investigations targeting auto dealerships are on the rise.  Join my colleague James Nicholas, the Chair of Mintz Levin’s Wage & Hour Class Action Practice, for a free educational webinar on October 8 that will address the latest trends in compliance affecting auto dealerships and how you can develop and implement effective strategies for minimizing your exposure to these types of claims.  The full invitation with registration information can be found here.

6 Little Known Facts About H-1B Visas

Posted in H-1B, Immigration Policy, Nonimmigrant Visas

It is almost October 1st, when thousands of new H-1B visas will become effective with the onset of the US government’s 2015 fiscal year.  In light of this, here are six little known but important facts about H-1B visas:

  1. H-1B visas are available for part-time as well as full-time positions.
  2. People can hold multiple, concurrent, H-1B positions, as long as each employer has filed and has ultimately received an approval for its petition.
  3. Entrepreneurs can set up companies that can file H-1B visa petitions on their behalf, as long as they can prove they have an arms-length relationship with their company.
  4. If someone has worked in H-1B visa status for less than 6 years, and has taken a number from the H-1B visa quota, he/she is not subject to the quota for subsequent H-1B employment, even following an intervening period in a different visa status (such as a student visa) or following departure from the US.
  5. If someone is the beneficiary of a cap-subject H-1B petition approval effective October 1st, he/she is no longer subject to the quota and is eligible for approval of a new H-1B visa petition filed by a different employer.  This is true regardless of whether the person is inside or outside the US.
  6. Even when the H-1B visa quota has been exhausted, for-profit employers may obtain H-1B visa petition approvals for some employees under certain circumstances. For example, where the individual is also employed in H-1B status by an H-1B quota-exempt employer, such as a university, OR where the work will further the university’s educational purpose and will be performed on campus.