The Citizenship Clause Debate

INTRODUCTION

Thanks in large part to the ongoing debates in the Republican Presidential primary, the concept of "birthright citizenship," specifically that any person born on U.S. soil is a U.S. citizen from birth, has become a subject of much public debate. For my part, I think that the way the Fourteenth Amendment to the U.S. Constitution has been interpreted for the past 150 years is correct, and furthermore, I am unequivocally opposed to any attempts to change the way that birthright citizenship functions. That being said, I think that the debates over the issue, both from the perspective of the Constitutional text and in terms of public policy, are fascinating. For these reasons, I would like to explain the debate, go over the history of the concept of birthright citizenship, share my position on the issue, and then explain why regardless of where you stand; the current practice of granting citizenship to any person born on U.S. soil is unlikely to change for the foreseeable future.

UNDERSTANDING THE DEBATE

There are two prongs to this debate.

The first prong is whether the Constitution itself actually requires that any person born in the United States be granted citizenship from birth. In order to understand where the two sides disagree on this issue, let us examine the Citizenship Clause found in section 1 of the Fourteenth Amendment to the United States Constitution:

ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES, AND SUBJECT TO THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE STATE WHEREIN THEY RESIDE.

Opponents to the idea that the Citizenship Clause guarantees citizenship to all persons born in the United States focus on the phrase "subject to the jurisdiction thereof." I will later explain why this clause does not, in fact, restrict citizenship for practical purposes for anyone born in the United States except those born to diplomats and other representatives of foreign governments.

The second prong is the matter of public policy. One's view of the true meaning of the Citizenship Clause does not necessarily control whether or not he or she thinks that granting citizenship at birth is a good policy or not. For example, a person could conceivably agree with me that the Citizenship Clause is being interpreted correctly, but then argue that it is not the best policy. Many opponents will cite, for example, that the United States is actually unusual in the practice of granting birthright citizenship to any person born in the United States, being one of only 30 countries in the world to do so as of thewriting of this post (of note, no country in Europe currently has the same policy as the United States with regard to birthright citizenship).

For those of us who think that the Citizenship Clause is being interpreted correctly, and that as a matter of policy, the current practice is the best policy, we would obviously prefer that, regardless of how interesting the debate is, that the current practices for birthright citizenship be left alone. But what of those who want to, at least to some degree, restrict the bestowal of citizenship upon birth? The opponents of the current practice generally seek change in one of the two following ways:

1. Some support amending the Constitution to change the current birthright citizenship practices. They may support this path because they think that the Citizenship Clause is being correctly interpreted, in which case the only way to change the law would be by amending the Constitution. Some may believe that the Citizenship Clause is not being interpreted correctly, but nevertheless think that amending the Constitution is necessary due to the challenges of convincing Courts to interpret the Citizenship Clause differently.
2. Those who believe the Citizenship Clause is not being interpreted correctly often advocate changing birthright citizenship via legislation. They may, for example, put restrictions on what type of parentage (for example, restricting birthright citizenship to children of parents with lawful permanent residency or U.S. citizenship) may confer citizenship to a child. Proponents of the legislative solution invite the litigation that would follow such a bill coming into law, and hope that federal courts will ultimately accept their view of the "subject to the jurisdiction thereof" language in the Citizenship Clause.

Now that we have examined the what the debate is about, let us explore the history of birthright citizenship and the important cases that address the concept.

UNDERSTANDING THE HISTORY AND CASE LAW

Birthright citizenship, or jus soli [right of the soil], is a concept that came to the United States via British common law.(1) (2) We can see this at play in the 1830 Supreme Court decision, Inglis v. Trustees of Sailor's Snug Harbour in City of New York,(3) in which the Court stated, "Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth."(4)

In order to understand the Fourteenth Amendment, in light of that it seemed generally agreed upon that persons born in the United States were citizens, it is important to be familiar with the now infamous decision rendered by the Supreme Court in Dred Scott v. Sandford.(5) By an eight to two majority, the Supreme Court held in Dred Scott that slaves and their descendants were, pursuant to the understanding of Citizenship at the framing of the Constitution, barred from U.S. Citizenship. In doing so, the majority held, among other things, that:

• "The words 'people of the United States' and 'citizens' are not synonymous terms… They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct of the Government through their representatives."
• [In explaining why slaves and their descendants were not considered members of the political body] "They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect…"
• But if [a U.S. citizen] ranks as a citizen in the state to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another state, the Constitution clothes him, as to the rights of person, with all the privileges and immunities to which belong to citizens of the state And if persons of the African race are citizens of a State, and of the United States, they would be entitles to all of these privileges and immunities in every state…"

The majority in Dred Scott made a distinction between "people in the United States" and citizens of the United States. It ultimately held that since, in the opinion of the Court, slaves and their descendants were not considered to be part of the political body when the Constitution was framed [that is, they lacked the universal power to hold office, vote, and generally lacked rights "which the white man was bound to respect"], that they could never be citizens, whether from birth or after manumission. The Court also discussed the Privileges and Immunities Clause found in Article IV, Section 2, Clause 1, of the U.S. Constitution, in arguing that the special privilege of U.S. citizenship was that a U.S. citizen would be treated, with the rights of a person and with all of the privileges and immunities of whichever state he was in and of all states.

After Dred Scott was superseded by the Fourteenth Amendment, the Supreme Court rendered a few decisions that are illumination as to how the Citizenship Clause should be interpreted.

Decided in 1872, the Slaughter-House Cases,(6) stated with regard to the phrase "subject to its jurisdiction" in the Citizenship Clause that it "was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."

Decided in 1884, the Supreme Court held in Elk v. Wilkins(7) that a man born to an Indian tribe was not a U.S. citizen, even after renouncing tribal membership, because Indian tribes were not "subject to the jurisdiction" of the United States government. Although this decision was superseded by the Indian Citizenship Act of 1924, which explicitly granted citizenship to persons born in Indian territory, it provides the most clear example of the Supreme Court holding that a person born in the United States was not a U.S. citizen from birth on account of not being subject to the jurisdiction of the U.S. government.

The most important case for understanding the Citizenship Clause was United States v. Wong Kim Ark,(8) decided in by the Supreme Court in 1898. In this case, the Court held that a child born in California to Chinese parents, who were citizens of China who were "domiciled" in the United States and were not officials of the Government in China, was a citizen by birth by virtue of the Citizenship Clause despite statutory limits on Chinese immigration. While Wong Kim Ark decision has prevailed since it was decided, the dissent in the case, while never having had the force of law, argued that "subject to the jurisdiction thereof" excluded persons who were citizens of a foreign power, in this case China, regardless of whether they were domiciled in the United States. The dissenters cited the Congressional debate surrounding the meaning of the Citizenship Clause in 1866, and its views are today accepted by some of those who argue that the Citizenship Clause has not been correctly interpreted.

THE DEBATE

What, ultimately, does "subject to the jurisdiction thereof" mean? In the National Review, legal scholar John C. Eastman argues that the phrase "domiciled" in Wong Kim Ark was crucial, and thus that restricting citizenship from birth from those born to persons who are not in the United States lawfully would neither require amending the Constitution nor reversing Wong Kim Ark. Furthermore, Eastman makes a distinction between "complete, political jurisdiction," and "partial, territorial jurisdiction." In illustrating the difference, Eastman explains that "partial, territorial jurisdiction" means that a person, so long as he or she is within our borders, he is subject to many of the criminal laws of the United States. However, in order to be subject to "complete, political jurisdiction," one would need to have the right to vote, serve on a jury, be able to be drafted into our armed forces, and be able to be prosecuted for treason.

On the surface, agree or not, one can see the appeal of the argument. Certainly, the law makes distinctions between those who are here legally and those who are here illegally in many areas. Furthermore, there is no question that the lure of citizenship from birth incentivizes foreign nationals to either come into the United States illegally, or to remain in the United States without documentation. However, legal scholar Ilya Somin argues the key point inthe Washington Post for why Eastman's argument, for whatever its merits, is ultimately incorrect in its interpretation of the original meaning of the Citizenship Clause: it does not clearly overturn the majority's logic in Dred Scott.

Note that the qualifications that Eastman uses for "complete, political jurisdiction," are similar to the arguments employed by the Supreme Court in Dred Scott to deny citizenship to slaves and their descendants who were born in the United States. Slaves and their descendants could not vote, serve on juries, or serve in militias, for example. Recall the Court's emphasis that citizenship was restricted to those who constituted the "political body" of the United States, which entails many of the points that Eastman makes in his definition of "complete, political jurisdiction." When we put the Fourteenth Amendment in its proper context, that it was explicitly enacted to provide Citizenship to those who were denied citizenship by the Dred Scott decision, it seems nonsensical to interpret the Citizenship Clause in such a way that may have left ambiguity as to whether former slaves and their descendants would be considered to not be citizens of the United States on account of status at birth. Rather, using Eastman's own definitions, I am quite comfortable with continuing to afford citizenship from birth to the children of those persons under, "partial, territorial jurisdiction."

Seeing that the Citizenship Clause has been correctly interpreted, that leaves amending the Constitution as the only way to restrict birthright citizenship. As I mentioned above, even ardent supporters of the current practice of jus soli, me included, fully recognize that it does create perverse incentives for people to both enter the United States and remain in the United States unlawfully. However, the solution to this problem is not, so to speak, to throw the baby out with the bath water. The Citizenship Clause in the United States Constitution is one of the crowning achievements of our Republic, the affirmation after the evils of slavery that all persons born in the United States, and subject to the laws of the United States, would acquire citizenship from birth. While acknowledging that it does encourage certain undesirable behavior, one would certainly be loath to argue that because certain people use reprehensible speech, that the First Amendment ought to be curtailed. Furthermore, not granting citizenship to children of those who are not in the United States lawfully would potentially create a subclass of people in the United States with no nationality. As is the case with many challenges relating to unlawful immigration, there is not necessarily an easy solution to the incentives to break our immigration laws created by the Citizenship Clause. However, rather than seek to overturn an understanding of citizenship that has existed in America since its founding, we should instead focus on immigration reform and more efficient enforcement of our already-existing immigration laws.

WHAT ARE THE CHANCES FOR CHANGE?

If you have found my arguments persuasive, you should be very glad to know that it is nearly impossible to see any scenario in which the current practice of granting citizenship upon birth to persons born in the United States will change in the foreseeable future. For reasons that I will explain, you may expect that today, tomorrow, and indefinitely, any person born in the United States, except to foreign diplomats, will be a citizen from birth.

The Constitutional Amendment approach is, quite frankly, not going to happen. Article V of the U.S. Constitution requires that, in order to amend the Constitution, two-thirds of both Houses of Congress must agree to submit an Amendment to the states, and then the legislatures of three-fourths, now 38 states, must approve of the Amendment. Barring a seismic change in public opinion and U.S. politics, there is no realistic scenario under which an Amendment will even be put to the states, much less be approved by 38 states.

That leaves us with the scenario in which a bill changing birthright citizenship is signed into law, and then subsequently adjudicated by federal courts. Compared to passing a Constitutional Amendment, this approach is far more plausible, but nevertheless, still very unlikely in my estimation. For one, while Republicans currently have sizable majorities in both Houses of Congress, and may plausibly control both Houses of Congress and the Presidency after the 2016 election, it is hard to envision a bill changing birthright citizenship being signed into law under the best of circumstances for its supporters.

While some elected Democrats have been open to the idea in the past,(9) the current crop of Congressional Democrats appears to be unanimously opposed to any such legislation. Furthermore, the Republicans, while currently in the majority, are two houses divided into four on this issue. In addition to being unable to count on any Democratic support, supporters cannot count on drawing enough Republican votes to pass a bill on the birthright citizenship issue. What is more, even if everything went perfectly for supporters of the measure, and such a bill was signed into law, I do not think, for reasons I explained in the previous section, that it would be at all likely that Courts would ultimately find the legislation to be consistent with Citizenship Clause of the Fourteenth Amendment.

It seems quite clear to me that any impartial view of the political landscape leads to the inescapable conclusion that there is no path to changing birthright citizenship in the near future. While it has been and will continue to be an interesting debate, it is likely that even if our next President disagrees with the current birthright citizenship practices, he or she will likely focus instead on immigration enforcement and reform to manage problems with our immigration system, acceding to the reality that any change to birthright citizenship is not in the cards.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

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[1]
Calvin's Case 7 Coke Report 1a, 77 Eng. Rep. 377. [decided in 1608: "yet it was resolved, that all those who were born under one natural obedience while the realms were united under one sovereign should remain natural born subjects, and no aliens; for that naturalization due and vested by birthright, cannot by any separation of the Crowns afterward be taken away: nor he that was by judgment of law a natural subject at the time of his birth, become an alien by such a matter ex post facto."] available at http://www.constitution.org/coke/Calvins_Case-7_Coke_Report_1a_77_ER_377.html
[2]
Legal scholar John Yoo adopts this as an important point as to why jus soli correctly applies to all persons born on U.S. soil, except for diplomats in his article for the National Review.
[3]
Inglis v. Trustees of Sailor's Snug Harbour in City of New York, 28 U.S. 99, 7 L. Ed. 617 (1830).
[4]
In so holding that persons born in New York during the British occupation during the Revolutionary War were not citizens from birth, but that people born in New York between the Declaration of Independence and the British occupation were citizens from birth.
[5]
Dred Scott v. Sandford, 60 U.S. 393, 15 L. Ed. 691, 15 L. Ed. 2d 691 (1857).
[6]
Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394, 1872 U.S. L.E.X.I.S. 1139 (1873)
[7]
Elk v. Wilkins, 112 U.S. 94, 5 S. Ct. 41, 28 L. Ed. 643 (1884).
[8]
United States v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456, 42 L. Ed. 890 (1898).
[9]
For example, see this article citing that the current leader of the Senate Democratic Caucus, Harry Reid of Nevada, in 1993 supported restricting birthright citizenship to the children of mothers who are U.S. citizens or lawful permanent residents, although he now holds the opposite position: http://www.washingtontimes.com/blog/watercooler/2010/aug/12/1993-flip-flop-senreid-introduced-bill-clarifying-/

Lawyer website: http://myattorneyusa.com

New USCIS Guidance on L-1B Adjudication

INTRODUCTION
On August 17, 2015, USCIS released a new Policy Memorandum titled "L-1B Adjudications Policy (PM-602-0111),"1 which builds upon previous agency guidance for adjudicating L-1B Intracompany Transferee Visa petitions, especially with regard to the requirement that the beneficiary possess "specialized knowledge" in order to be eligible. The memorandum notes that while "specialized knowledge" is a statutory term, it is not particularly well defined by statute for purpose of adjudicating L-1B Visa petitions. The following, found in INA § 214(c)(2), is the most clear statutory definition of "specialized knowledge" with which any USCIS guidance or regulations must conform:

"[A]n alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company."

While the memo does not change previous regulatory definitions of "specialized knowledge," it seeks to consolidate the already-existing definitions, add to them, and provide new guidance on how L-1B petitions should be adjudicated. I will explain the key points of the new memorandum in this post and further explain what they may mean for future L-1B Visa petitions.

SPECIALIZED KNOWLEDGE
Section IV of the memo instructs adjudicators to evaluate a beneficiary's eligibility for L-1B status by the "preponderance of the evidence" standard as opposed the more restrictive "clear and convincing evidence" or "beyond a reasonable doubt" standards. Thus, in order to have an L-1B petition approved, the petitioner must simply demonstrate that the beneficiary is more likely to be eligible than ineligible, rather than to remove any possible doubt that the beneficiary is ineligible.

In section V of the memo, it restates that in order to be eligible for L-1B status, the petitioner must show that:

• the beneficiary possesses "specialized knowledge";
• the position being offered involves that "specialized knowledge";
• the beneficiary has at least one continuous year of employment abroad, within the past three years, in a managerial, executive, or special knowledge capacity with the petitioning employer and/or any qualifying organization.

In section V.A. of the memo, USCIS attempts to provide a more clear definition than before of "specialized knowledge" and "advanced knowledge." Defining these terms is important because, if you will recall the statute, demonstrating that the beneficiary possesses one of these levels of knowledge is required in order to demonstrate eligibility for L-1B status. The following are USCIS' new definitions for "special" and "advanced" knowledge in the L-1B context:

• special knowledge, which is knowledge of the petitioning organization's product, service, research, equipment, techniques, management, or other interests in its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry;
• advanced knowledge, which is knowledge of or expertise in the petitioning organization's specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.

The new definitions are consistent with previously existing guidance that while the requisite knowledge, be it "special" or "advanced," must be of a high level, it does not necessarily have to be unique. Demonstration of "special knowledge" does not necessarily require that the knowledge be uncommon within the petitioner's organization, just that it is distinct or uncommon in comparison to the norm in the industry at large. Thus, demonstrating specialized knowledge will rely heavily on comparing the beneficiary's knowledge with the knowledge of the general employee in the industry. The definition of "advanced knowledge," however, does require that the beneficiary's knowledge be above the norm found within the petitioner's organization. Thus, in order to demonstrate "advanced knowledge," the petitioner will have to show that the beneficiary's relevant expertise in the qualifying areas is superior to other workers in his or her organization in addition to showing that the knowledge is uncommon in the industry as a whole.

Both the "special" and "advanced" knowledge requirements put the onus on the petitioner to demonstrate that the beneficiary has particular expertise for the job that the petition is for. It is possible that certain beneficiaries may be able to demonstrate both "specialized" and "advanced" knowledge. In order to determine which type of knowledge is more likely to satisfy the requirements for L-1B status in a given case, an L-1B petitioner should consult with an experienced immigration attorney who may assess the circumstances of the beneficiary and determine which qualifications are more likely to meet the threshold for L-1B eligibility.

In section V.B., USCIS provides a non-exhaustive list of factors that adjudicators are advised to consider in determining whether a beneficiary's knowledge is specialized:

The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization's U.S. operations.The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer's productivity, competitiveness, image, or financial position.

• The beneficiary's claimed specialized knowledge normally can be gained only through experience with the petitioning organization.
• The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience.
• The beneficiary has knowledge of a process or product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization.
• The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization's competitiveness in the marketplace.

The memo cautions that this list is non-exhaustive and that no individual factor is a requirement in order to demonstrate L-1B eligibility by the preponderance of the evidence. However, these factors serve as a general guide for factors that adjudicators will look at across many L-1B petitions in order to establish whether a particular beneficiary is eligible. The following are other notes gleaned from section V.B. of the memo:

• The petitioner may support the application by demonstrating that significant economic cost or inconvenience would be incurred in imparting specialized knowledge to a different employee; however, depending on the facts of the case, the petitioner may demonstrate that the beneficiary has specialized knowledge without appealing to cost or inconvenience.
• Consistent with previous USCIS guidance, specialized knowledge need not be "proprietary or unique" to the petitioning organization.
• Determining whether the beneficiary's knowledge is not generally or commonly held within the petitioner's industry does not require a test of the U.S. labor market.
• In determining specialized knowledge for L-1B eligibility, the existence of "knowledge" takes precedence rather than the beneficiary's position or proposed pay.
• While specialized knowledge may be commonly held in the petitioning organization, the knowledge being commonly held may, depending on the facts, call into question whether the knowledge is, in fact, "specialized."
• That the beneficiary may be eligible for another nonimmigrant status [e.g., H1B or O-1], does not affect his or her eligibility for L-1B status.

EVIDENCE TO SUPPORT L-1B ELIGIBILITY
In section C of the memo, USCIS discusses evidence that may support the claim that a beneficiary possesses specialized knowledge. Pursuant to USCIS regulations found in 8 C.F.R. § 214.2(l)(3)(ii), the petitioner must submit "a detailed description of the services to be performed." Furthermore, pursuant to subsection (iv), the petitioner must submit evidence that the beneficiary's "prior education, training, and employment qualifies him/her to perform the intended services in the United States." In addition to those requirements, USCIS provides in the same section of the memo a non-exhaustive list of evidence that the petitioner may submit to support a beneficiary's eligibility for L-1B status:

• Documentation of training, work experience, or education establishing the number of years the individual has been using or developing the claimed specialized knowledge as an employee of the petitioning organization or in the industry;
• Evidence of the impact, if any, the transfer of the individual would have on the petitioning organization's U.S. operations;
• Evidence that the alien is qualified to contribute significantly to the US. Operation's knowledge of foreign operating conditions as a result of knowledge not generally found in the petitioning organization's U.S. operations;
• Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the petitioning organization's competitiveness in the marketplace;
• Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the petitioning organization's productivity, competitiveness, image, or financial position;
• Personnel or in-house training records that establish the beneficiary's claimed specialized knowledge normally can be gained only through prior experience or training with the petitioning organization;
• Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that cannot be transferred or taught to another individual without significant economic cost or inconvenience;
• Evidence of patents, trademarks, licenses, or contracts awarded to the petitioning organization based on the beneficiary's work, or similar evidence that the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization; and
• Payroll documents, federal or state wage statements, documentation of other forms of compensation, resumes, organizational charts, or similar evidence documenting the positions held and the compensation provided to the beneficiary and parallel employees in the petitioning organization.

Determining the evidence that will best support eligibility for L-1B status will always depend on the specific facts of the case. In certain cases, some of the suggested evidence may be inapplicable or may not, due to the specific situation, support the beneficiary's eligibility for L-1B status. However, it will always be easier to meet the "preponderance of the evidence" standard by submitting as much evidence that supports the beneficiary's eligibility as possible. An experienced immigration attorney may help a petitioner determine what types evidence in a given case most support a beneficiary's eligibility for L-1B status.

OFF-SITE EMPLOYMENT
Section VI of the memo provides guidance on how USCIS is to interpret the statutory requirement [found in INA § 214(c)(2)(F)] that in cases where an L-1B beneficiary would be working primarily at the worksite of an unaffiliated employer, the beneficiary will both "[not be] controlled and supervised principally [by the unaffiliated employer]" and "[will be placed] in connection with the provision of a product or service which has specialized knowledge specific to the petitioning employer is necessary." This provision is to prevent petitioning organizations from obtaining L-1B Visas for workers who will then effectively work for a different employer.

The memo explains that USCIS has interpreted the "control and supervision," provision, that is that the unaffiliated employer cannot control and supervise the L-1B employee, to require that the beneficiary must be controlled and supervised principally by the petitioning organization. In order to demonstrate this, the petitioning organization may show, among other things, that the petitioning organization will have the authority to dictate the manner in which work is performed, reward or discipline the beneficiary for performance, and provide the beneficiary's salary and benefits. In addition, the beneficiary must be otherwise eligible on account of having "specialized" or "advanced" knowledge, and must be using the requisite knowledge in his or her employment while on L-1B status.

READJUDICATION
In section VII of the memo, USCIS extends existing regulations that, when there is an application for extension of L-1B status involving the same parties and at the same place of employment with the same underlying facts, USCIS adjudicators should give deference to the prior determination of eligibility. The memo instructs USCIS officers to re-examine eligibility only when:

1. there was a material error with regard to the original approval of the petition;
2. there has been a significant change in circumstances since the original petition was approved;
3. there is new information that may adversely affect eligibility.

MY THOUGHTS ON THE MEMO
Since this memorandum generally focuses on consolidating past agency guidance and judicial precedent, it is unclear what significant effects, if any, it will ultimately have on L-1B adjudication. The memo did note that USCIS will continue to apply the preponderance of evidence standard, which places a lower burden on the petitioner than would a higher required standard of proof. However, the lower standard does not mean that petitioners can assume that their petitions will be successful, for when a claim is not well-supported, the petition may easily fail the preponderance of evidence test.

In looking for where the Memo may come into play, focusing on the new definitions provided for "specialized knowledge" and "advanced knowledge" promises to be instructive for assessment. The memo does not discuss in detail "advanced knowledge," but does include a robust description of factors that should be considered in determining whether a beneficiary has "specialized knowledge." Therefore, one section to focus on will be the extra provisions in section V.B. describing scenarios for determining whether specialized knowledge exists, particularly the provision about the potential negative effect on demonstrating specialized knowledge in situations where the knowledge is very widespread at the petitioning organization's U.S. operations. While in many scenarios, this will likely not lead to the denial of a petition, especially since specialized knowledge need not be relative to employees in the petitioning organization, the memo adds in a footnote that this may way negatively on an L-1B petition, if, for example, the beneficiary's knowledge is widespread at the petitioning organization in the United States and the proposed pay for the beneficiary is "substantially less" than the other employees.

Regardless of whether the memo ultimately has significant effects on how L-1B petitions are adjudicated, it does comprehensively bring previous immigration agency guidance together in one source and updates its guidance such that it is consistent with the most current laws and precedent. The memo should serve as a helpful guide for petitioners in determining the types of evidence they should provide USCIS so that their L-1B petitions are approved. However, given the complexity of L-1B adjudication and the fact-specific nature of each case, petitioning organizations are very well advised to retain an experienced immigration attorney to help make it more likely than not that they can obtain L-1B Visas for their intracompany transferees.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

• [1] USCIS Policy Memorandum, "L-1B Adjudications Policy (PM-602-0111)" [follow link to download a PDF of the memorandum]

Lawyer website: http://myattorneyusa.com

Rule on extra occupational practical training for F1 students with stem degrees is vacated

INTRODUCTION

In a decision with major ramifications for certain F1 students with STEM degrees who are engaging in occupational practical training [OPT], the United States District Court for the District of Columbia held in a memorandum opinion in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, [1] [hereafterWashington Alliance] decided on August 12, 2015, that a 2008 Department of Homeland Security [DHS] rule extending the length of OPT for certain STEM students is invalid because DHS enacted this new rule without first serving notice and providing an opportunity for public comment.

However, finding that vacating the rule suddenly would cause substantial hardship to F1 students already taking advantage of the rule, and would result in a major labor disruption for those employing them; the Court stayed the vacatur of the DHS rule until February 12, 2016.

WHAT WAS THE RULE?

Regulations in 8 C.F.R. § 214.2(f)(10)(ii)(A) provide that F1 students are permitted to engage in OPT after completing a course of study and all of the requirements for a bachelor's, master's or doctoral degree program, provided that the OPT is “directly related to the student's major area of study.” Pursuant to 8 C.F.R. § 214.2(f)(10), a student can be authorized for up to 12 months of OPT, which must be completed within a 14-month period following the completion of the course of study. Note that these regulations are unaffected by the decision in Washington Alliance.

However, in 2008, DHS issued a new interim rule: 73 Fed.Reg. 18,946, Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. The new rule effectively allowed certain F1 students with qualifying STEM degrees to obtain authorization for up to 17 additional months of OPT, bringing the maximum amount of OPT for qualifying F1 students to 29 months.

The eligibility rules for the 17-month OPT extension are found in 8 C.F.R. § 214.2(f)(10)(ii)(C)(1)-(4):

The student has not previously received a 17-month OPT extension after earning a STEM degree;

The degree that was the basis for the student's current period of OPT is a bachelor's, master's, or doctoral degree in one of the degree programs on the current STEM Designated Degree Program List, published on the SEVP Web site at http://www.ice.gov/sevis.;

The student's employer is registered in the E-Verify program, as evidenced by either a valid E-Verify company identification number or, if the employer is using a designated agent to perform the E-Verify queries, a valid E-Verify client company identification number, and the employer is a participant in good standing in the E-Verify program, as determined by USCIS;

The employer agrees to report the termination or departure of an OPT employee to the Designated School Officials [DSO] at the student's school or through any other means or process identified by DHS if the termination or departure is prior to the end of the authorized period of OPT. Such reporting must be made within 48 hours of the event. An employer shall consider a worker to have departed when the employer knows the student has left its employment or if the student has not reported for work for a period of 5 consecutive business days without the consent of the employer, whichever occurs earlier.

The decision in Washington Alliance noted that DHS's rationale for the new rule was that, because the H1B visa category is oversubscribed, it is often extremely difficult for F1 students with degrees in qualifying STEM programs to obtain H1B Visas. Citing the rule, the Court found that DHS had reasoned that, as a result of the difficultly in procuring H1B Visas for these qualified applicants, U.S. employers were at a “competitive disadvantage.” Crucially, the decision cited DHS's justification for issuing the new rule without notice of its proposed enactment and without a request for public comment: “[t]o avoid a loss of skilled students through the next round of H-1B filings in April 2008.”

WHY WAS THE RULE HELD TO BE INVALID?

• The plaintiffs argued:
• That the OPT program exceeded DHS's statutory authority.
• That DHS acted “arbitrarily and capriciously in promulgating the rule.”
• That DHS lacked good cause to waive the notice and public comment requirements in promulgating the rule.

To understand what may happen next, it is important to understand why the Court rejected the plaintiffs' arguments (points one and two) and why DHS ultimately lost the case (point three).

In addressing points one and two, the Court applied Supreme Court precedent — the decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). As to point one, the Court concluded that, because the statutes regarding F1 student employment are ambiguous, Chevron requires that deference be afforded to DHS's interpretation. For point two, the Court examined the regulatory history regarding F1 practical training, and it found that DHS's regulation was “reasonable” and not “arbitrary and capricious,” noting that it was similar to many previous INS and DHS regulations regarding F1 employment, and that Congress had not sought to change statutes in order to change DHS's OPT policies.

However, with regard to point three, the Court found that DHS had not provided sufficient justification under existing precedent to waive the notice and public comment requirements for the new regulation. Furthermore, the Court held that the seriousness of DHS's waiving of the notice and public comment period without demonstrating the proper grounds to do so rendered the regulations invalid.

WHAT HAPPENS NOW?

While the Court cited various precedents in holding that the proper remedy for DHS's violation was to vacate the rule, it also concluded that issuing an immediate vacatur would be “seriously disruptive,” citing a 2008 DHS estimate that of the 70,000 F1 students then engaged in OPT, about one third had STEM degrees that would qualify them for the 17-month OPT extension. The Court accepted DHS's argument that an immediate vacatur would force thousands of F1 students with suddenly invalid OPT extensions to “scramble to depart the United States,” which would also impose a costly burden on companies employing them. Accordingly, the Court stayed its vacatur for six months from the date of the decision (February 12, 2016). Because the Court did not find the rule to be invalid on any grounds aside from DHS's improper waiving of the notice and public comment period, it noted that DHS may resubmit the rule with time for proper notice and for public comment.

The most we can say for the time being with regard to the effects of Washington Alliance is that a student who is already engaged in OPT under the 17-month extension should not have anything to worry about, provided that his or her OPT ends before the February 12, 2016 end-date of the stay. F1 students finishing 12 months of OPT will be in an uncertain situation with regard to an extension, since DHS has not yet issued new guidelines in response to the adverse decision. F1 students who were previously hoping to obtain the 17-month extension for OPT will have no choice but to wait for DHS' response to the decision. F1 students in this situation should ensure that they keep up to date with developments on the OPT extension issue with their Designated School Officials.

Because the Court issued the vacatur on account of DHS's waiving of the notice and public comment requirements, and not for DHS exceeding its authority, it is entirely possible that DHS may submit the rule for proper notice and public comment, and have it approved prior to the end of the stay.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

-------------------------------

[1] Washington Alliance of Technology Workers v. DHS, Civil Action No. 2014-0529 (D.C. 2015) published on AILA InfoNet at Doc. No. 15081364 (Aug. 12, 2015)

Lawyer website: http://myattorneyusa.com

Permissible and Impermissible Activities for B1 Temporary Business Visitors

Pursuant to INA § 101(a)(15)(B), B1 Temporary Visitor Visas are available for foreign nationals who are coming to the United States to conduct business, but not to perform skilled or unskilled labor or engage in employment. Furthermore, in order to be granted a B1 Visa, an applicant must demonstrate to the satisfaction of a consular officer that, pursuant to regulations found in 8 C.F.R. § 41.31(a), he or she can complete the purpose of the business visit in the time allotted by a B1 Visa and that the applicant will exit the United States and has a place to return to at the expiration of B1 status.

Upon obtaining a B1 Visa, both B1 business visitors must ensure that they do not engage in “employment.” Engaging in employment, rather than permissible business activities, may subject the B1 business visitor to inadmissibility from the United States. Accordingly, American entities must ensure that they do not enter into any arrangements with B1 business visitors, since doing so may subject the employer to sanctions under statutes that prohibit employing aliens who lack employment authorization.

While the line between “business” and “employment” is sometimes blurry, regulations and immigration agency guidance help clarify what is permissible and what is not. Pursuant to regulations found in 8 C.F.R. § 41.31(b)(1), “business” is defined as including “conventions, conferences, consultations, and other legitimate activities of a commercial or professional nature.” It excludes “local employment and labor for hire.”

The Foreign Affairs Manual (FAM) goes into more detail, specifying in 9 FAM 41.31 N11.1 that a B1 business visitor may not receive a salary or remunerations from an American source for services rendered in the United States, but may receive an allowance or reimbursement for expenses incidental to his or her stay (provided they do not exceed the expenses that the allowance or reimbursement is intended to cover). Furthermore, at 9 FAM 31.31 N8, the manual lists five activities that B1 business visitors are explicitly allowed to engage in while they are in the United States on B1 status:

1. “Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);
2. Negotiate contracts;
3. Consult with business associates;
4. Litigate;
5. Participate in scientific, educational, professional, or business conventions, or seminars;”

This list is not necessarily intended to be exhaustive. There are other limited scenarios in which someone may be eligible for a B1 Visa. If a B1 applicant appears to be seeking a B1 Visa for something that is not clearly permitted in regulations, consulate officers are instructed by 9 FAM 41.31 N7 to seek an advisory opinion from a superior. Essentially, such requests will be considered on a case-by-case basis.

In Matter of Duckett, 19 I&N Dec. 493 (BIA 1987), the Board of Immigration Appeals held that activities that further international commerce and business are permissible under B1 status. Regulatory memoranda have made clear that B1 business visitors may not perform work that is part of the United States labor market.[1]

Despite all of the regulations on what constitutes permissible activities under B1 status, it is oftentimes unclear whether a specific activity is permissible. In general, both U.S. employers and B1 temporary business visitors should exercise extreme caution with regard to avoiding activities that would constitute unauthorized employment. Employers should consult with an experienced immigration attorney if they are unsure a specific relationship with a B1 business visitor crosses the line to employment, and if so, they should seek an employment-based visa for the B1 business visitor. B1 business visitors should also exercise extreme caution in choosing their activities when in the United States under B1 status, for violating the terms of a B1 Visa by engaging in unauthorized employment may result both in removal and subsequent difficulties in reentering the United States. When in doubt with work-related questions and B1 status, always ask an experienced immigration attorney for guidance.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

-------------------------------------------------
Source: Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 877, Print. Treatises & Primers.

[1] Ira J. Kurzban. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. ALIA Publications, (2014) 877, citing Memo, Williams, Regional Director Western Region, WRINS 70/20 (undated, c. 2000), published on ALIA InfoNet at Doc. No. 03040190

The Many Problems of E-Verify

I recently came across a terrific paper courtesy of the Cato Institute that I would like to share with you, “Checking E-Verify: The Costs and Consequences of a National Worker Screening Mandate,” by Alex Nowrasteh and Jim Harper. The article uses ample facts, figures, and other evidence from seeing E-Verify in practice to argue a point with which I agree wholeheartedly: E-Verify is a terrible system. I encourage anyone who is interested in immigration law and policy to follow the link and download the free article to read in full, but I would like to share some of the key points and my thoughts on them with you here.

The goal of E-Verify is to cut down on the number of aliens working in the United States without employment authorization. In order to accomplish this goal, E-Verify must make it significantly more difficult for unauthorized workers to find employment in the United States, and thus take away the incentive to cross into the United States or stay in the United States without authorization. To be certain, these are important goals in order to maintain the integrity of the immigration system. However, sounding like a good idea does not make something a good idea, and E-Verify has been shown not to accomplish the goals set out for it.

Before E-Verify, the Immigration Reform and Control Act (IRCA) implemented in 1986 the Form I-9, Employment Eligibility Verification. Alien employees are required to provide an employer with documentation such that the employer may complete the I-9, and then the employer must assess the documentation and make a determination if the employee is, in fact, work-authorized. However, Nowrasteh and Harper note that both the I-9 system and the subsequent E-Verify system “conscripted employers into immigration law enforcement.”[1] While employers have a legal obligation not to employ unauthorized workers, it is important to remember that very few employers, well-intentioned or otherwise, are immigration law experts or qualified to assess the veracity of a prospective employee's documentation. Nowrasteh and Harper note the I-9's system's inadequacy by citing that in that in the first seven years of the I-9 requirement, “roughly half of all the unauthorized immigrants hired in the United States were hired by employers who complied with I-9 requirements.”[2] Furthermore, they add that many employers either ignored the I-9 requirements entirely and simply paid unauthorized employees at a slightly lower wage to offset the potential cost of fines, or circumvented the requirements by using subcontracted labor wherein the subcontractor assumed any liability for employing unauthorized workers.[3]

E-Verify was created as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to improve on the I-9 system. Since its inception, four states have mandated its use statewide for certain periods and many other states have either mandated it in limited areas or made its use voluntary. Because of this, we now have concrete evidence with which to assess E-Verify's actual effectiveness.

After an employer enrolls in E-Verify, the employer must run a new employee's government identification information, notably including the social security number (SSN), through E-Verify. If E-Verify finds that the information is valid and not already in use, the employee will be allowed to start work. However, if E-Verify finds a discrepancy, it will return a tentative nonconfirmation (TNC). The employer then has a legal obligation to inform the employee, who will have ten days to begin an appeal. However, Nowrasteh and Harper note that this is onerous because it is very difficult for employees to access their information to determine the basis of the discrepancy. Employees often must file Privacy Act requests with both the Department of Homeland Security and the Social Security Administration to try to find where the issue lies. Nowrasteh and Harper note, that in 2009, the average wait time for a Privacy Act request was a stark 104 days.[4]

Furthermore, Nowrasteh and Harper cite an independent audit of E-Verify in 2012 that indicated E-Verify had a 0.3% total false positive rate in 2010, with the rate being 0.2% for U.S. citizens and 2% for immigrants with lawful status.[5] While those numbers may sound low, the authors note that if E-Verify was mandated nationally and maintained the same false TNC rates, 1.2 million workers would have been issued false TNCs, with some taking many months to resolve.[6] Furthermore, there is little reason to assume that these numbers would improve were E-Verify to be implemented on a much larger scale.

Nowrasteh and Harper also show that E-Verify's only problem is not false-positives. In fact, they note that since E-Verify only makes a comparison between a name and SSN entered in to its database, it is extremely susceptible to fraud and identity theft. For example, they note that E-Verify often cannot identify when an employee is using an SSN that belonged to a person who is long-since dead. They cite a recent audit of E-Verify that revealed that 54% of unauthorized workers who were run through E-Verify were cleared.[7]

The four states in which E-Verify has been mandated-Alabama , Arizona, Mississippi, and South Carolina-are noted for the emphasis that their state governments place on immigration enforcement. These four states are noted for the emphasis that voters and their government put on immigration enforcement. Nevertheless, the states have been generally ineffective in actually making employers comply with the E-Verify mandates. Nowrasteh and Harper show that in fifteen combined years among the four states (from 2008-13) when they had E-Verify mandated, only South Carolina in 2011 and 2012 exceeded 59% recorded compliance with the mandate, and even South Carolina dropped to 54.9% in 2013.[8]  They add that these numbers are likely vast overestimates, since they do not include when employers hired unauthorized workers with no paper trails.[9]

Nowrasteh and Harper cite that prior to E-Verify being mandated in Arizona in 2008, a Mexican immigrant could expect to make 253% more on average working undocumented in the United States than staying in Mexico. In 2012, that number was reduced to 240%, hardly denting the incentive for working in the United States illegally.[10] Across all four states, the unauthorized employment rate among men declined by 3% and women by 7% while E-Verify was mandated, but the wages for unauthorized employment increased by 3.5%.[11] In effect, Nowrasteh and Harper argue that if the supply of unauthorized workers is slightly decreased, the demand for unauthorized workers slightly increases, thus having at best a negligible effect on the incentive to work in the United States without authorization.

These are just some of the key points from this well-reasoned article, and I certainly encourage you to read in its entirety. Without knowing how it works, E-Verify may sound appealing. However, knowing how E-Verify works in practice and studying its ineffectiveness where it has been used most, it is impossible for me to see how “more E-Verify” is the solution to any immigration problem. I certainly hope that our elected officials carefully study how E-Verify has failed instead of rushing to make it part of a large immigration reform package.

Fortunately, we here at Grinberg and Segal are acutely aware of all of the trials that may into play come with E-Verify and the I-9 process, so if you have any immigration issues related to those issues or otherwise, please do not hesitate to schedule a consultation so that we may evaluate your problem and provide you with expert counsel.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

—————————————

[1] Nowrasteh, Alex and Jim Harper. “Checking E-Verify: The Costs and Consequences of a National Worker Screening Mandate.” Cato Institute Policy Analysis, no. 775 (July 7, 2015) 2
[2] Id., citing Douglas S. Massey, Jorge Durand, and Nolan J.Malone, Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration (New York: Russell Sage Foundation, 2002), p. 119.
[3] Nowrasteh and Harper 3
[4] Id. at 4, citing Government Accountability Office, “Employment Verification: Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain,” GAO-11-146, December 2010, p. 34.
[5] Nowrasteh and Harper 15, citing Westat Research Corporation, “Evaluation of the Accuracy of E-Verify Findings,” July, 2012, pp. XV, 24-25, 51-54.
[6] Id.
[7] Nowrasteh and Harper 7, citing Westat Research Corporation, “Findings of the E-Verify® Program Evaluation,” December 2009, p. 44.
[8] Nowrasteh and Harper 8, citing John Stark, “E-Verify and Agriculture-Arizona Perspective,” Bellingham Herald Politics Blog, September 30, 2011, http://blogs.bellinghamherald.com/politics/politics/e-verify-and-agriculture-arizona-perspetivec/.
[9] Nowrasteh and Harper 9
[10] Id. at 10, citing Annie Gasparro, “Chipotle Faces New Pressure from Probe of Workers' Immigration Status,” Wall Street Journal, May 21, 2012, http://professional.wsj.com/article/BT-CO-20120521-712511.
html?mg­reno64-wsj; Maricopa County Sheriff's Office, “Sheriff's Deputies Continue Search for Pei Wei Restaurant Employees Using False Identification,” news release, March 8, 2011; and Maricopa County Sheriff's Office, “Popular Asian Diner Chain Subject of Identification Theft Operation by Sheriff's Deputies,” press release, March 4, 2011.
[11] Nowrasteh and Harper 10, citing Pia M. Orrenius and Madeline Zavodny, “How Do E-Verify Mandates Affect Unauthorized Immigrant Workers?” Dallas Fed Working Paper no. 1403 (2014), pp. 13-14, 24.

Source: Nowrasteh, Alex and Jim Harper. “Checking E-Verify: The Costs and Consequences of a National Worker Screening Mandate.” Cato Institute Policy Analysis, no. 775 (July 7, 2015): Accessed August 14, 2015. http://www.cato.org/publications/policy-analysis/checking-e-verify-costs-consequences-national-worker-screening-mandate

Lawyer website: http://myattorneyusa.com

Extreme Hardship Waivers

WHAT IS EXTREME HARDSHIP?

Extreme Hardship is a legal standard utilized in U.S. immigration law. It applies to some situations when certain unlawful activities of the noncitizen have made him or her inadmissible into the United States. From a practical perspective, when a noncitizen is inadmissible, he or she would not be eligible to obtain a favorable immigrant visa adjudication at an American Consulate or adjustment of status from within the United States.

The phrase “extreme hardship” carries a specific meaning in U.S. immigration law. It refers to a standard utilized by adjudicators to determine whether deportation, or in the modern system, removal of the noncitizen from the United States, would cause extreme hardship to a qualifying relative. Depending on the specific ground of inadmissibility, a U.S. citizen (USC) or lawful permanent resident (LPR) spouse, parent(s), or son(s) or daughter(s) may be qualifying relatives.

Extreme hardship waivers are discretionary. This means that if an immigration adjudicator decides against granting an extreme hardship waiver, an appellate agency or court has very limited authority to review the decision. These limitations were intended by Congress to ensure finality in decisions by concentrating authority over extreme hardship waivers in immigration adjudicators.

TYPES OF EXTREME HARDSHIP WAIVERS 

There are multiple extreme hardship waivers available. Extreme hardship waivers of inadmissibility for unlawful presence are available pursuant to INA § 212(a)(9)(B)(v). INA §212(h)(1)(B) authorizes waivers of crimes of moral turpitude, multiple criminal convictions, and a single offense of simple possession of 30 grams or less of marijuana. At the discretion of an immigration adjudicator, certain offenses may even be waived even if they constitute aggravated felonies under statute. However, waivers of inadmissibility stemming from certain violent or dangerous crimes instead requires showing “exceptionally and extremely unusual hardship,” which presents a higher bar to demonstrate than regular extreme hardship.

Extreme hardship waivers of inadmissibility related to fraud and misrepresentations in order to procure immigration benefits exist under INA §212(i). Suspension of Deportation, a now outdated form of relief that existed prior to 1997, used the same standard of extreme hardship.

By contrast, Cancelation of Removal relief for both LPRs as well as nonresidents utilizes the “exceptionally and extremely unusual hardship standard,” except in the case of relief for battered spouses and children of USCs and LPRs, who may instead only have to demonstrate extreme hardship.

THE LEADING PRECEDENT: MATTER OF CERVANTES 

Understanding applicable precedents is the best way to understand the meaning of the phrase “extreme hardship.” This is because Congress often writes laws in broad strokes sufficient to formulate the policy, and leaves the power to fill in the details to the executive branch. In the case of “extreme hardship,” Congress did not define what exactly constitutes “extreme hardship,” thus leaving the details to immigration administrators and federal courts.

The leading administrative case on extreme hardship is the Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999). Cervantes arose in the context of the INA §212(i) waiver adjudication. The Board of Immigration Appeals (BIA) decided this case in 1999, and Cervantes has remained precedent ever since. Cervantes is about a young man from Mexico who lived in the United States for many years. In 1995, Cervantes, then twenty-four years of age and mired in immigration proceedings, married an LPR. His wife, who shortly after the marriage became a Naturalized US citizen, served as a qualifying family member for purpose of Cervantes's eventual extreme hardship waiver application. The government charged Cervantes with inadmissibility for fraud or misrepresentation of a material fact and put him in removal proceedings. As part of his defense against removal, Cervantes requested adjustment of status based on an approved visa petition filed by his USC wife. Because he had previously been caught using false documents, he was deemed inadmissible and thus ineligible for adjustment of status. To resolve the problem, Cervantes also requested a waiver of inadmissibility pursuant to INA §212(i), asking the Court to waive his inadmissibility so that he could adjust status.

An immigration judge denied Cervantes’ request for a waiver, thus setting the stage for Cervantes to appeal to the BIA. After hearing the case, a majority on the BIA dismissed the appeal. The BIA decided that Cervantes's family had not demonstrated that they had managed to develop meaningful financial ties to the United States. The majority held that the lack of such ties was an important factor in its evaluation of whether Cervantes warranted a waiver.

The BIA further explained that Cervantes's wife was well aware prior to marrying Cervantes that he was in the midst of deportation proceedings. The BIA highlighted the fact that Cervantes's wife was of Mexican origin and had relatives who were then living Mexico, thus mitigating the extreme hardship claim. The BIA also noted that during the proceedings, Cervantes’ wife never mentioned that she would suffer extreme hardship if she and her husband moved to Mexico. Given all these factors, BIA found that Cervantes's wife would not experience extreme hardship in the event that she followed her husband to Mexico.

WHY IS CERVANTES IMPORTANT? 

Matter of Cervantes is very important for several reasons. First, it reinforced the factors that should be considered when evaluating an application for an extreme hardship waiver. Despite being decided in 1999, Cervantes is still good law on evaluating extreme hardship claims. The reason for its longevity is that between the majority and the dissenting opinion, the BIA did an excellent job of explaining the concept of extreme hardship as well as providing guidance to understanding of how it works in the context of removal proceedings. The BIA noted that extreme hardship can be viewed narrowly, but not so narrowly that it should be nearly impossible to demonstrate. Since Congress clearly created the extreme hardship waiver to prevent USC and LPR qualifying relatives from suffering extreme hardship in the event of an alien’s removal, the BIA noted that the waiver should be granted provided that extreme hardship can be successfully demonstrated.

Second, due to the BIA’s status among immigration adjudicators, its precedent opinions are binding so long as they stand.

Third, and perhaps most important, the BIA explained in Cervantes that the meaning of extreme hardship and provided clear way for immigration judges to approach the issue. It provided clarity for how “extreme hardship” as a concept would be implemented in the context of inadmissibility waivers. The Board followed federal case law and held that, although extreme hardship was not a rigid concept which could be defined strictly in regulatory terms and that it must be viewed instead on a case-by-case basis, there are general factors that should always be considered when making an extreme hardship determination. The BIA also opined, at the very least in the dissenting opinion, that the cumulative effect of all these factors on the qualifying relative should be determinative in deciding whether the noncitizen seeking a waiver should be allowed to remain with his or her family in the United States.

Fourth, an opinion authored by then-BIA member Lory Diana Rosenberg, which concurred with the majority in-part but dissented with regard to its decision to deny Cervantes an extreme hardship waiver, arguably sheds even more light on what factors should be considered, and how they should be weighed, than dud the majority opinion. Ultimately, Judge Rosenberg’s opinion is at least as important to read as the majority opinion because it provides a detailed overview of the factors relevant to extreme hardship law as it stood when Cervantes was being decided. Judge Rosenberg’s opinion does a good job emphasizing that some factors not mentioned in the majority opinion were very important for any adjudicator to consider, at least in the view of the Ninth Circuit Court of Appeals and the U.S. Supreme Court. It is also worth mentioning, as the dissenting opinion noted, that the relevant inquiry should not be whether any particular factor, or a group of factors, creates extreme hardship for the qualifying relative, but instead whether the cumulative effect of all relevant factors creates extreme hardship for the qualifying relative. This is a very important distinction the majority regrettably did not address. Had it done so, it would have likely concluded, as Judge Rosenberg did, that Cervantes warranted a waiver. Fortunately, since Cervantes was decided, the factors noted by Judge Rosenberg and her approach to weighing them have steadily gained support among immigration adjudicators, and judges. Some of the specific factors Judge Rosenberg noted include the economic conditions in the country where the qualifying relative would follow his or her noncitizen family member; the extent of the family ties of the qualifying relative in the United States; overall family situation; length of residence in the United States; the ability to raise children in the foreign country in question; the education and professional skills of the qualifying relative especially in the context of his or her employability in the foreign country; other factors not noted but possibly applicable to a specific case.

Fifth, Judge Rosenberg's dissenting opinion contains a landmark explanation of why selectively not weighing certain factors, not weighing certain factors enough, or excessively weighing other factors, invariably leads to an arbitrary decision that is a disservice both to the applicant and to the system of immigration laws as a whole. She argued, quite convincingly, that if the majority had properly weighed all of the factors in the case, it would have granted Cervantes’ request for a waiver.

LASTING EFFECTS OF CERVANTES

BIA made several consequential legal conclusions in Cervantes decision. First, the Board, as the highest administrative tribunal for removal and deportation issues, decided that the meaning of the extreme hardship was not fixed. This holding makes sense since the specific facts of each extreme hardship claim are unique. A factor that may support extreme hardship in one case may not support extreme hardship in another case, and vice versa.

However, the BIA reasoned that, while each case is unique, this does not preclude there from being certain uniform factors that should always be considered. To identify these factors, the Board turned to accumulated existing precedent which governed the now-defunct suspension of deportation relief. The Board also looked at precedent from waiver adjudication under INA §212(c), which was the inadmissibility waiver of certain criminal conduct and convictions, subsequently replaced by the INA § 212(h) waiver. The majority eventually identified five general groups of factors that should always be taken into account when considering an extreme hardship claim:
qualifying relative's ties to the United States, including financial and other;
qualifying relative's ties outside the United States including financial and other;
political and economic condition in the country of return which might cause hardship to the US relative;
financial impact of departure on the qualifying family member;
health conditions of the applicant and his family, especially if the needed medical care is not available in the country of return.

APPLYING CERVANTES IN SUBSEQUENT CASES 

Matter of Cervantes still stands today because the decision was sound. It has been cited in a multitude of extreme hardship cases since it was decided. For example, Julie C. Ferguson cited in her book “AILA’s Focus on Waivers Under the Immigration & Nationality Act,” Matter of [name and A-number redacted] (AAO Jan 9, 2008), a decision by the Administrative Appeals Office (AAO) to overturn the denial of an INA § 212(i) waiver application by the consular officer-in-charge in Athens, Greece, based on extreme hardship that would be suffered by his wife in the event of his removal to Lebanon.[1]

After reviewing the facts of the case closely and applying the factors and methods from Cervantes, the AAO found that the applicant's wife would suffer extreme hardship both if she was forced to stay in the United States and take care of the couple’s child alone, and if she followed her husband to Lebanon in the event of his removal.[2]

Evidence demonstrated that the wife suffered from depression, panic attacks and anxiety disorders. She was at risk of recurrence since her mother experienced similar problems and she lost her father at a young age. She also suffered from hair loss and could not stay home alone because she was lonely and scared. Her son suffered from asthma and often required medical attention, including hospitalization. All of these factors about her son's health contributed to even more stress for the wife. The case record also showed that during previous travel to and from Lebanon, her son required medical care. The medication that he needed was not available in Lebanon, and the family would not have health insurance to cover these medical expenses. The case record contained reports about adverse conditions in Lebanon that would contribute to extreme hardship for the wife. The applicant also included a Department of State travel advisory encouraging Americans to avoid traveling to Lebanon. Based on the evidence, and in light of precedents including Matter of Cervantes, the AAO found that the applicant and his wife would experience extreme hardship if his waiver of inadmissibility was denied.[3]

Many years have elapsed since the important Cervantes decision. Over these years, the BIA and federal courts have developed a long list of factors that are applicable to demonstrating extreme hardship. While factors do not weigh the same in every case, Cervantes and other precedents paint a picture on what may be used to support an extreme hardship waiver application.

Please visit the myattorneyusa.com website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

------------------------------------
Source:   Ferguson, Julie C. AILA’s Focus on Waivers Under the Immigration & Nationality Act. Washington D.C. AILA Publications, 2008. 142-43, Print. ALIA’s Focus Series

[1] J. Ferguson, AILA’s Focus on Waivers Under the Immigration & Nationality Act (AILA 2008) 142, describing Matter of [name and A-number redacted] (AAO Jan 9, 2008), published on AILA InfoNet at Doc. No. 08011562 (posted Jan. 15, 2008)
[2] Id. 

[3] Ferguson 143, describing Matter of [name and A-number redacted] (AAO Jan 9, 2008), published on AILA InfoNet at Doc. No. 08011562 (posted Jan. 15, 2008) [for the section]

Marriage Fraud

INTRODUCTION

Although increasingly limited, there are still several ways for a foreigner to gain lawful permanent resident (LPR) status in the United States. Because of the complexity involved in gaining LPR status, great commitment is required on the part of the applicant to see the process through, as well as readiness to be subjected to lengthy wait periods, rigorous government examination, and numerous setbacks. The process becomes even more convoluted if it involves an immigrant who overstayed his or her visa, or came into the United States without having been inspected, admitted, or paroled. These individuals are generally referred to as undocumented immigrants or aliens. Because of their lack of valid immigrant status, many of them cannot travel internationally or obtain state-level identification (such as a driver license or state-issued non-driver license ID). Furthermore, they cannot obtain lawful employment and may even experience difficulty paying their taxes due to the lack of a Social Security number.

On the other hand, entering the United States from abroad presents insurmountable challenges for many aliens. This is because a non-USC or LPR returning to the United States from a brief and casual trip abroad and presenting him or herself at the U.S. port of entry is considered an applicant for admission. That means that the permissibility of that person to enter the United States is closely examined. Applicants for admission who have accrued certain amounts of unlawful presence in the United States (time spent without proper authorization) would be legally restricted from entering the United States by inadmissibility bars. 180 days or less of unlawful presence would, upon reentry, result in a three-year bar, whereas those 365 days or more of unlawful presence would result in a ten year-bar. These bars were created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) — a major immigration law overhaul enacted by the Congress and signed into law by President Clinton in 1996. Congress instituted the bars as a means of deterring visitors who wished to stay past the date of their authorized stay, as well as those enter or attempt to enter the United States without inspection. Ironically, over the years since the enactment of the IIRIRA, the bars have often had the opposite effect from what Congress intended, as they have encouraged many immigrants who violated their immigration status, or who gained it in an improper way to begin with, to remain in this country since the inadmissibility bars only attach upon departing the United States.

In light of the difficulties obtaining LPR status, and the imposition of inadmissibility bars, immigration privileges extended to spouses of U.S. citizens (USC) are very attractive. This is because because an immigrant petition by a USC spouse would make the foreigner potentially eligible for adjustment of status, even in cases where a foreigner had overstayed a nonimmigrant visa. Since inadmissibility bars only apply if someone subject due to accrual of unlawful presence departs the United States, adjusting status from within the United States is a legally available option. As a result, some individuals are incentivized to engage in sham marriages to circumvent immigrant laws; sometimes without fully realizing the potentially severe consequences that they will be subject to if the fraud is discovered.

AVAILABILITY OF WAIVERS

An affirmative finding of marriage fraud made by USCIS or an immigration judge, if not challenged and allowed to stand, renders the foreigner removable and inadmissible at the same time. What is more, inadmissibility stemming from the affirmative finding of marriage fraud attaches for life with no possibility of a waiver.

In contrast, there are certain waivers are available for inadmissibility resulting from overstaying a nonimmigrant visa. To obtain a discretionary waiver of inadmissibility for overstaying, the immigrant would have to show that he or she has a spouse or parent who is a USC. Furthermore, since these bars of inadmissibility only attach upon exiting the United States, those who overstayed their visas would not need to leave the country when they are petitioned for by their genuine USC spouse or adult child. This process is called adjustment of status. Others, if they qualify, may obtain LPR status from outside of the United States after obtaining inadmissibility waivers, and then be permitted to enter the United States on a lawfully issued immigrant visa. Recent Provisional Stateside Unlawful Presence Waiver regulations substantially simplified these processes for qualified foreigners and shortened the minimum the waiting time outside of the United States.

SOME OF THE REASONS FOR IMMIGRATION FRAUD BASED ON MARRIAGE

It is important to understand these special waiver provisions of the Immigration and Nationality Act (INA) which excuse overstay for immediate relatives of USCs in adjustment of status process, because this is where the crux of the fraudulent marriage problem occurs.

Let us imagine for a moment the mindset of an undocumented immigrant who has overstayed his or her nonimmigrant visa. The promise of living in the Unites States, the land of opportunity, is remarkably attractive. There are only two apparent options for the undocumented immigrants: to leave the United States and become subject to either the three or ten-year bar of inadmissibility, or to continue living illegally in the United States. However, with some very limited exceptions, an undocumented immigrant cannot obtain employment authorization, and thus would have great difficulty earning a living. The undocumented immigrant could at any moment be taken into custody and subjected to deportation or removal proceedings. Hence, it appears that there is no real hope for the undocumented immigrant.

However, there is the enticing marriage petition. As detailed above, if the immigrant were to marry a USC, he or she would, if petitioned for by the USC spouse, avoid grounds of inadmissibility caused by the accrual of unlawful presence. The inadmissibility bars would simply not attach since the immigrant would have never left the United States in order to seek LPR status. The alien would instead qualify for the limited exception reserved for the immediate relatives, which makes the immigrant potentially eligible for LPR status if his or her spouse's immigrant visa petition is approved. In addition, there would seem to be no apparent repercussions from obtaining adjustment of status through the spouse’s petition, since the adjustment of status ineligibility rules found in section 245 of the INA do not attach if the undocumented immigrant is the immediate relative of a USC.

Critically, however, many of these undocumented immigrants do not fully realize that seeking immigration benefits on the basis of a sham marriage is a federal crime. On an administrative level, USCIS is chiefly concerned with the validity of the marriage because of the privileged position immediate relatives of USCs enjoy under United States immigration law. USCIS puts a very high priority on making sure that the marriage was not entered into as a means of fraudulently gaining immigration benefits. Since the law squarely places the burden on the applicant to demonstrate not only the legal validity, but also the bona fide (i.e. good faith) nature of the marriage, USCIS immigrant visa interviews are a major force in detecting and preventing immigration fraud.

THE PROCESS OF MARRIAGE-BASED APPLICATIONS AND IMMIGRATION FRAUD INVESTIGATION

A set of forms and supporting documents, as well as the filing fees, need to be filed with USCIS's lock box. Given the amount of information that needs to be provided, and the complexity of the application, persons filling marriage-based applications are strongly recommended to retain an experienced immigration attorney.

Shortly after USCIS receives the application packet, and provided that the applications had been correctly prepared, USCIS will send receipt confirmations for each application included in the packet along with a notice to the immigrant regarding a biometrics appointment. If the fingerprints and background check are clear, the applicant is notified of a new appointment, this time for an interview before an immigration officer at a USCIS local office. The immigrant is required to appear at this interview with his or her spouse. At this interview, the immigration officer carefully reviews the petitions and applications that were previously submitted. Any questions that the immigration officer has regarding the application and the validity of the marriage are addressed during the interview. If the marriage is bona fide and this is evident throughout the interview, the couple should expect the application to be approved. Upon approval, the non-citizen should receive his or her permanent resident card within a month or so.

Difficulties in these marriage applications arise when the validity of the marriage is unclear, and consequently challenged by USCIS. Immigration officers and officials in the USCIS's fraud unit, where suspicious cases are referred, are very experienced professionals and, thus, familiar with all of the tactics that are used by unscrupulous applicants who enter into a marriage solely to circumvent immigration laws. Nevertheless, although USCIS does not keep official statistics on the frequency of marriage fraud, the agency indicates that fraud does happen and often goes undetected given the complexity determining whether it occurred. This frequency of marriage fraud causes USCIS officers to be on alert and scrutinize carefully every case, often turning the interview into a dramatic experience for the couple.

IMMIGRATION FRAUD BASED ON MARRIAGE

Although fraud is knowingly committed by a statistically large number of applicants, the statistics are even higher for cases in which “immigration consultants” or “advisers” are involved. These individuals are dangerous because they:

• are not lawyers and thus not authorized by law to give legal advice, 
• are often confused about the substance and requirements of the law, and 
• provide deficient assistance to applicants in properly filling out forms in otherwise legitimate cases. 

These consultants assume various names. In some communities they are known as “immigration services,” while in others as “travel agencies,” “notaries,” or “paralegal services.” Due to language barriers and misplaced trust, it is often very easy for the foreigners to become victims of these individuals, who file on their behalf misleading or fraudulent applications. The results are often catastrophic for the foreigner, who is always the one to bear the brunt of the penalties. This is because, ultimately, the applicant who signed the form. The name of the preparer is often not even indicated on the form. The applicant may face adverse consequences ranging from minimal repercussions (if lucky) to landing in removal proceedings in immigration court due to being accused of material representations or even outright fraud. In other words, the applicant can, and often will, find him or herself facing deportation from the United States with very limited avenues to successfully fight it. It is important to bear in mind that if a legal finding of marriage fraud is made and subsequently upheld, it renders the applicant ineligible for most forms of immigration benefits for life, resulting in a nightmare for the applicant and his or her family.

Marriage fraud can be committed in several ways. It is not uncommon for a USC friend to “help” a non-citizen gain immigration benefits through a marriage in which no genuine marital relationship exists. In other cases, there are USCs who enter into fraudulent marriages in exchange for financial compensation. There are even criminal organizations, disguised as legitimate businesses, in which brokers set up meetings with non-citizens to facilitate entering into fraudulent marriages for a fee. Even some attorneys have been disciplined for their unethical practices by the Bar Association, Grievance Committee, Executive Office for Immigration Review, and USCIS. Others attorneys have been subject to criminal investigations and ultimately convicted of marriage fraud.

While an immigration attorney's primary duty is to zealously represent his or her client, immigration attorneys also have an ethical responsibility to recognize red flags in a marriage case in order to avoid knowingly presenting a fraudulent case to a tribunal. For example, an experienced immigration attorney will ask: Are there any inconsistencies in a couple's marital situation? Do both parties share the same address? Has the petitioner requested LPR status for any other immigrants in the past? If an immigration attorney analyzes all of the facts and reaches the inescapable conclusion that a marriage is fraudulent, he or she will likely not take the case or will withdraw from representing a client. At the same time, an immigration attorney has an ethical duty to his or her client to give the benefit of the doubt and not jump to premature conclusions. This ethical obligation becomes especially significant given the effect that the recent economic downturn has had on many families. In many bona fide marriages, one party may have to work far away from the couple’s primary home and spend significant amounts of time away. In some other cases, the parties in a marriage may have to maintain separate households while one or both pursue educational opportunities. An immigration attorney will consider all of these circumstances, while giving the benefit of the doubt, in determining whether he or she can represent the client. However, these circumstances, even in a wholly legitimate marriage, may make proving the bona fide nature of a marriage to the satisfaction of immigration adjudicators a daunting task.

DIFFICULTIES IN MARRIAGE CASES UNRELATED TO MARRIAGE FRAUD

As touched upon in the last paragraph, apart from fraud, there are other variables that can complicate proving the bona fide nature of the marriage. Although it may seem unlikely, if there are previous marriage-based petitions and applications by either the beneficiary or the petitioner, these previous marriages will also be examined. Convincing an immigration officer that all of the prior marriages were genuine is a burden placed upon on the applicant.

If the applicant has prior criminal convictions on record, this will be another difficult hurdle to clear in marriage-based immigration cases. For criminal convictions, it is essential that all certificates of dispositions and complaints are readily available. Certain convictions result in an automatic bar against immigration benefits or permanent residence in the United States. This is one area where it is extremely important to consult with an experienced immigration attorney prior to filing for adjustment of status with USCIS.

Prior or current proceedings in immigration court will also present difficulties for applicants. USCIS will examine any immigration court proceedings with utmost scrutiny, since immigration court proceedings may incentivize someone to enter into a sham marriage. USCIS will attempt to confirm that the marriage was not entered into under false pretenses by subjecting both parties in the married couple to separate interviews.

USCIS has safeguards in place designed to detect and deter marriage fraud. If the marriage has not reached its two-year anniversary, the beneficiary of permanent resident status will be afforded conditional permanent resident status (CR) for two years. To become a LPR, the CR must jointly file a petition to remove the conditions within 90 days of the expiration of CR. There are several exceptions from the joint-filing requirement that apply when a marriage was entered into in good faith, but ultimately was terminated; when the CR was subjected to battery or extreme cruelty, or when the CR would incur “extreme hardship” upon removal. The joint-filing exception is also available if the USC spouse dies within the two years.

Fortunately, the conditional residency period has had a positive effect in reducing the number of fraudulent marriage applications submitted to USCIS. There also has been a drastic decrease in the number of prosecutions for marriage fraud since the conditional residency period was instituted.

In some cases, USCIS may issue a denial in a case where the marriage is actually bona fide. In this event, there is still hope. The applicant may seek an appeal or reconsideration of the ruling. Furthermore, the applicant may present his or her case to an immigration court and ask for a review of the denial.

Ultimately, the best way to avoid an initial denial is to be as well prepared as possible for what you may be asked during the interview. An experienced immigration attorney will be aware of the type of questions that will be asked and what you may need to focus on clarifying given the facts of your situation. These are areas where the hard work, diligence, and attention to detail of an experienced immigration attorney pay off.