Close to 100 Mexican Nationals Seek Return to the U.S. Under Lopez-Venegas v.Johnson Settlement Agreement

INTRODUCTION

In advance of the December 23, 2015 deadline, nearly 100 Mexican nationals who were identified by the American Civil Liberties Union (ACLU) sought relief under the settlement agreement reached in Lopez-Venegas v. Johnson, No. CV 13-03972-JACK (PLAx), (C.D. Cal, Mar. 11, 2015) [PDF version]. The settlement agreement was available to qualifying individuals who accepted voluntary return in Southern California between June 1, 2009 and August 28, 2014. In this post, I will receive the settlement agreement and the news about its outcome for qualifying individuals.

BACKGROUND

In June of 2013, the ACLU filed a class action lawsuit against the Department of Homeland Security (DHS) on behalf of three immigrants' rights organizations and eleven individuals who had accepted “voluntary return” to Mexico in lieu of being subject to immigration proceedings. The lawsuit alleged that San Diego border patrol agents had systematically failed to inform individuals of the potential adverse immigration consequences of accepting voluntary return, namely that it may subject individuals to the 3 and 10-year bars of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act (INA). On August 8, 2014, the plaintiffs reached a class action settlement agreement with DHS [see PDF] which was finalized on March 11, 2015.

THE LOPEZ-VENEGAS V. JOHNSON SETTLEMENT AGREEMENT

The scope of the settlement agreement was limited to Southern California. DHS agreed to make reforms to the voluntary return system in Southern California, and agreed to monitoring by ACLU attorneys through 2017. These changes were designed to ensure that individuals are fully apprised of the consequences of accepting voluntary return.

Secondly, the settlement agreement designated a limited class of individuals who had accepted voluntary return to Mexico in Southern California between June 1, 2009 and August 28, 2014. The requirements for qualifying as a class member are as follows (paraphrased from the final judgment):

• a. Based on the facts as they existed at the time of his or her Qualifying Voluntary Return, the Individual:

         - (i) Must have last entered the United States before his or her Qualifying Voluntary Return with inspection, and must have at the time satisfied the non-discretionary criteria for submitting an approvable adjustment of status application based on a bona fide immediate relative relationship (under section 201(b)(2)(A)(i));
         - (ii) Was the beneficiary a pending Form I-130, Petition for Alien Relative, based on a bona fide family relationship, which was either pending or approved at the time of the Qualifying Voluntary Return;
         - (iii) Satisfied the non-discretionary criteria to apply for cancellation of removal under section 240A(b); or
         - (iv) If his or her Qualifying Voluntary Return occurred on or after June 15, 2012, and he or she satisfied the non-discretionary criteria for relief under DACA.

Furthermore, an individual applying for relief as a class member must be physically present within Mexico at the time of the application. He or she must be inadmissible under section 212(a)(9)(B) of the INA due to the Qualifying Voluntary Return (unless he or she is seeking class membership under (a)(i)).

If an individual returns under the settlement agreement, it will be as if he or she had never accepted voluntary return. However, this does not guarantee that the individual will ultimately be able to adjust status and remain in the United States.

As part of the agreement, the government created a website providing notice of the settlement (www.salidavoluntariaacuerdo.com).

OUTCOME

Although the ACLU reportedly initially estimated that thousands of individuals may be eligible for relief, the number it ultimately identified was much smaller. The ACLU explained that this “reflects the high bar to qualify” as a class member under the agreement.

While the settlement agreement was limited in scope to Southern California, the facts of that led to the litigation show why it is crucial for an alien who is placed in the custody of immigration officials to request immigration counsel immediately. Immigration law is highly complex, and an individual should not assume that immigration enforcement agents will explain things such as the potential consequences of voluntary return. However, an immigration attorney's job is to protect the interests of his or her client. An experienced immigration attorney will be able to carefully study the situation before explaining the various options that may be available to his or her client.

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.

Lawyer website: http://myattorneyusa.com

Controversy Over New Visa Waiver Program Laws

INTRODUCTION: CONTROVERSY OVER CHANGES TO THE VISA WAIVER PROGRAM

On December 18, 2015, President Barack Obama signed the omnibus appropriations bill for 2016, which will fund the government through September of 2016. Among the most significant immigration provisions in the bill were changes to the Visa Waiver Program (VWP). Included in the omnibus bill was legislation that was passed by the U.S. House (H.R. 158) in order to address security concerns with the VWP. Please see my blog post about the legislation that has now been signed into law.

Since the VWP legislation was passed by the U.S. House, numerous concerns have been raised about its effects on persons who have visited Iraq, Syria, Iran, or Sudan and nationals of those four countries. The following are the two provisions at issue:

1. Any person who has been present in Iraq, Syria, Iran, or Sudan since March 1, 2011, will be ineligible to use the VWP. There are limited exceptions for those who were present for military or government service for a VWP country. There is also a discretionary waiver if DHS finds that granting a waiver would be in the law enforcement or national security interests of the United States.
2. Nationals of Iraq, Syria, Iran, or Sudan are ineligible to use the VWP.[1]

CONCERNS RAISED BY CONGRESS

While the VWP legislation passed Congress overwhelmingly, legislators expressed concerns with certain aspects of the legislation.

On December 11, 2015, thirty-three members of the U.S. House wrote a letter to Senate leaders urging them to consider changes to the VWP legislation so that it would not affect:

• Persons who are dual citizens because of ancestry;
• Humanitarian workers and journalists.

Furthermore, the House letter urged the inclusion of a “sunset provision” so that the changes would need to be re-authorized after a specified period of time.[2]

On December 13, a bipartisan group of four U.S. Senators wrote a letter urging changes to the legislation so that dual nationals who have not traveled recently to any of the four designated countries would not be affected.[3] The letter also noted how this provision could prompt reciprocal treatment of similarly situated U.S. citizen dual nationals.

CONCERNS RAISED BY IMMIGRATION ADVOCATES

Many immigration advocates oppose the new law. For example, in addition to citing the same concerns as the U.S. House letter, AILA criticized the legislation after it was passed by the House because it “could result in discrimination that will exclude people without consideration of legitimate risk factors.”[4]

INTERNATIONAL CONCERNS

The European Union has indeed expressed concerns about the new law's effect on dual nationals and its effect on the Iran nuclear deal. To that effect, the Iranian government stated that it believes the legislation violates the nuclear deal. In response to the Iranian concerns, Secretary of State John Kerry wrote a letter to Iran indicating that the legislation will not invalidate the nuclear deal, and that the Administration will use discretionary waivers and other tools to ensure that the new law will not affect Iranian business interests.[5] Secretary Kerry's letter has been criticized heavily by Congressional Republicans.

CONCLUSION

While most of the changes to the VWP appear to be beneficial, the concerns raised with regard to its effect on dual nationals of Iraq, Syria, Iran, and Sudan who have not traveled recently to those countries are valid. It is highly unfortunate that the Senate did not take the opportunity to improve the legislation by narrowing its scope in this regard.

However, Secretary Kerry's letter to Iran is deeply troubling. While there are a few real concerns with the final version of the legislation, those brought by a country which is designated on account of its government's sponsorship of terrorism are not among them. That the Administration decided to enter into a non-binding agreement with Iran without the support of the majority of the Congress or the majority of the American people should not, and does not, give the Iranian government a say in our immigration policy.

It is important to note that the Department of Homeland Security (DHS) has not announced how it will implement the new law yet. We will keep the site updated with news about the implementation of the new VWP laws and any legislative efforts to further modify the VWP statutes.

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. “Practice Alert: Changes to the VWP Enacted in the Consolidated Appropriations Act, 2016,” (Dec. 21, 2015), Published on AILA InfoNet at Doc. No. 15122130
2. “Thirty-Three Lawmakers Urge Congressional Leaders to Consider Improvements To Visa Waiver Bill Provisions,” (Dec. 11, 2015), Published on AILA Advocacy and Media at Doc. No. 15121700
3. “Senators Leahy, Durbin, Heller, and Flake Express Concern with Visa Waiver Program Legislation,” (Dec. 21, 2015), Published on AILA Advocacy and Media at Doc. No. 15122112
4. “AILA: Congress Should Reject H.R. 158 Until Its Visa Waiver Program Changes Are More Carefully Weighed,” (Dec. 8, 2015), Published on AILA Advocacy and Media at Doc. No. 15120800
5. Werner, Erica, “Republicans, administration spar on visa travel for Iran,” (Dec. 23, 2015), Associated Press, Dec. 23, 2015, http://bigstory.ap.org/article/0a7ad179bd4a4f1388a1febafccec59c/gop-administration-spar-new-visa-laws-impact-iran (link)

Lawyer website: http://myattorneyusa.com

Modular Container Systems and the “Totality of the Circumstances Test” for Certain Labor Certification Applications

Introduction

When seeking labor certification for an employment-based immigrant visa, the following relationships will subject the labor certification application to high scrutiny:

• The employee for whom labor certification is sought has a familial relationship with an owner or shareholder of the petitioner;
• The employee for whom labor certification is sought has a significant stake in the petitioner
• The employee for whom labor certification is sought is one of a small number of employees.

These situations are complicated because both call into question whether labor certification is being sought for a position that was clearly open U.S. workers prior to the filing for labor certification.  In determining whether the position was open to U.S. workers, immigration adjudicators will apply the “totality of the circumstances” test that was set forth in the Board of Labor Certification Appeals’ 1991 decision, Matter of Modular Container Systems Inc., 89-INA-228 (July 16, 1991) (en banc) [PDF].

We will examine the totality of the circumstances test, its incorporation into Department of Labor (DOL) regulations, and its effect on certain labor certification applications.  To read about the totality of the circumstances test in-depth, please follow this link to read our full article.

The Totality of the Circumstances Test in Modular Container Systems

The decision in Modular explains that in one of the three labor certification application situations that we listed in the introduction, no single factor is determinative in ascertaining whether the position was clearly open to U.S. workers prior to the filing for labor certification.  Rather, adjudicators must consider the “totality of the circumstances.”  This means that it is possible for there to be several negative factors, but for the totality of the circumstances to still support that the position for which labor certification is sought was clearly open to U.S. workers.  To guide adjudicators, Modular established a non-exhaustive list of factors that should be considered in such cases (the “totality of the circumstances” test):

Whether the alien:

• is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;
• is related to the corporate directors, officers, or employees;
• was an incorporator or founder of the company;
• has an ownership interest in the company;
• is on the board of directors of the company;
• is one of a small number of employees;
• has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the labor certification application; and
• is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.

Furthermore, the totality of the circumstances test includes the consideration of:

• the employer’s level of compliance and good faith in the processing of the claim.

In addition, the Modular decision cited Hall v. McLaughlin, 864 F.2d 868 (D.C. Cir. 1989) in noting that the petitioning entity cannot have been established for the sole purpose of procuring immigration status for the alien (i.e., a “sham business” or “shell business”).

The “totality of the circumstances” test was subsequently incorporated into DOL regulations at 20 C.F.R. § 656.17(l).  The regulations require that where:

• the employer is a closely held corporation or partnership in which the alien has an ownership interest; or
• there is a familial relationship between the stockholders, corporate officers, incorporators or partners, and the alien; or
• the alien is one of a small number of employees.

The employer, in the event of the audit, must submit the following evidence to demonstrate that the job opportunity was clearly open to U.S. workers:

1. A copy of the articles of incorporation, partnership agreement, business, license, or similar documents that establish the business entity;
2. A list of all corporate/company officers and shareholders/partners of the corporation/firm/business, their titles and positions in the business' structure, and a description of the relationships to each other and to the alien beneficiary;
3. The financial history of the corporation/company/partnership, including the total investment in the business entity and the amount of investment of each officer, incorporator/partner, and the alien beneficiary; and
4. The name of the business' official with primary responsibility for interviewing and hiring applicants for positions within the organization, and the name(s) of the business' officials having control or influence over hiring decisions involving the position for which labor certification is sought.
5. If the alien is one of 10 or fewer employees, the employer must document any family relationship between the employees and the alien.

The totality of the circumstances test has stood the test of time.  See this section of our full article to read about subsequent BALCA decisions that have relied upon the precedent set by Modular. Furthermore, the totality of the circumstances test has even been applied to labor certification applications for domestic cooks (follow this link to learn more).

Conclusion

The “totality of the circumstances” test established by Modular, in conjunction with the DOL regulations in 20 C.F.R. § 656.17(l), offers guidance to petitioners seeking labor certification for aliens in one of the three situations we noted in the introduction.  However, it will still be difficult to have a labor certification application approved in one of those three circumstances.  Our full article notes multiple cases where labor certification applications for aliens on E2 Treaty Investor status were denied labor certification after BALCA applied the Modular precedent.

While we always advise employers seeking labor certification to consult with an experienced immigration attorney, this imperative is especially important when the petitioner has a relationship with the employee that would invariably subject the labor certification application to high scrutiny. An experienced immigration attorney will be able to assess the situation prior to the employer commencing the immigrant visa application process and help determine whether there is a realistic prospect for the ultimate approval of a labor certification application.

Please read our comprehensive article to learn more:

http://myattorneyusa.com/the-effect-of-modular-container-systems-on-labor-certification

Or follow this link to learn more about labor certification in general:

http://myattorneyusa.com/perm

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.

Lawyer website: http://myattorneyusa.com

Thoughts on the End of the Lindsey Graham Campaign and the State of the GOP Primary

THOUGHTS ON THE END OF THE LINDSEY GRAHAM CAMPAIGN

On December 21, 2015, Senator Lindsey Graham of South Carolina suspended his campaign for President (see his announcement here). As I noted in my candidate profile about the good Senator from South Carolina, I have always appreciated his good work in the United States Senate.

I believe that the primary purpose of Senator Graham's campaign was to advocate for a muscular foreign policy against some of the less-interventionist strains of thought in the contemporary conservative movement. To that effect, I believe that his campaign had a far more substantial effect on the Republican race, and the national debate, than one would think just by looking at his poll numbers. In each of the so-called “undercard” debates that he was a part of, Senator Graham made waves by explaining his educated and reasoned foreign policy perspective to a national audience. Conservatives of all stripes, including those who are less inclined to agree with Senator Graham, should take a moment to acknowledge his valuable contributions to a Republican campaign season that has too often been dominated by the sensationalist news coverage of Donald Trump's latest utterances.

While Senator Graham is no longer a part of the Republican field, I look forward to his continuing to influence the national debate from his seat in the United States Senate.

EFFECT OF GRAHAM'S DEPARTURE

There have been reports that some Republican Senators, Representatives, and donors (especially in South Carolina) have held back from making an endorsement in the race out of respect for Senator Graham. Furthermore, the 2008 nominee, Senator John McCain of Arizona, actually endorsed the Graham campaign. It will bear watching to see whether Congress members who have held back on making an endorsement jump into the fray. For that matter, it will bear watching whether Senators Graham and McCain decide to make endorsements.

STATE OF THE RACE

Senator Graham's departure reduces the Republican field to a still substantial thirteen candidates. To read what I think about nearly the entire Republican and Democratic Presidential candidates, please see my Presidential candidate profiles.

Let us look at the Republican poll averages for the national race and the first three voting states courtesy of Real Clear Politics as of December 23, 2015:

NATIONAL [1]

1. Donald Trump - 35.1%
2. Senator Ted Cruz - 18.1%
3. Senator Marco Rubio - 11.5%
4. Ben Carson - 10.0%
5. Jeb Bush - 4.4%
6. Governor Chris Christie - 3.9%

IOWA [2]

1. Senator Ted Cruz - 30.2%
2. Donald Trump - 26.2%
3. Senator Marco Rubio - 12.3%
4. Ben Carson 10.0%
5. Jeb Bush 5.2%

NEW HAMPSHIRE [3]

1. Donald Trump - 28.3%
2. Senator Ted Cruz - 12.0%
3. Senator Marco Rubio - 12.0%
4. Governor Chris Christie - 11.3%
5. Jeb Bush - 8.0%

SOUTH CAROLINA [4]

1. Donald Trump - 33.7%
2. Senator Ted Cruz - 19.3%
3. Senator Marco Rubio - 12.7%
4. Ben Carson - 11.3%
5. Jeb Bush - 7.3%

It is always important to remember that history teaches us to read these poll averages with a large dose of caution. Many voters are still not paying much attention to the race, and many polls both do not screen for “likely” voters and have significant margins of error. Nevertheless, I have three thoughts to share with regard to the current state of the polls:

• I. Senator Ted Cruz of Texas has emerged as the top challenger to Donald Trump at the moment. While most national polls (unfortunately) still show Trump with a large lead, Senator Cruz has opened up a meaningful lead in recent Iowa polls. It would be fascinating to see how a Cruz win in Iowa, especially a wide win, would affect Trump's support in New Hampshire and beyond.
• II. Senator Marco Rubio of Florida appears to still be the favorite among candidates who would be appealing to the Republican “establishment,” as he now sits in the top-3 in all four of the polls that we are looking at. However, while Senator Rubio looks reasonably strong everywhere, he does not look particularly strong anywhere (like Senator Cruz does in Iowa). It will bear watching whether the Rubio campaign has invested enough in any of the first couple of states in order to pick up an early win.
• III. Finally, my top choice, Governor Chris Christie of New Jersey, appears to be making his move in New Hampshire. Governor Christie has invested substantial resources into the Granite State, and between that and his stellar debate performances, has moved himself back into the conversation in a big way. I believe that with a strong showing in New Hampshire, Governor Christie would have a chance to become the “establishment” favorite and compete seriously to win the nomination. None of this seemed likely when I wrote my candidate profile for Governor Christie, so I am excited to see that it looks like voters are finally giving him their consideration.

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. http://webcache.googleusercontent.com/search?q­cache:W008qqHthAQJ:www.realclearpolitics.com/epolls/2016/president/us/2016_republican_presidential_nomination-3823.html+&cd=1&hl­en&ct­clnk&gl­us
2. http://webcache.googleusercontent.com/search?q­cache:Ae-dWp_VRPUJ:www.realclearpolitics.com/epolls/2016/president/ia/iowa_republican_presidential_caucus-3194.html+&cd=1&hl­en&ct­clnk&gl­us
3. http://webcache.googleusercontent.com/search?q­cache:9UltFupj0RcJ:www.realclearpolitics.com/epolls/2016/president/nh/new_hampshire_republican_presidential_primary-3350.html+&cd=1&hl­en&ct­clnk&gl­us
4. http://webcache.googleusercontent.com/search?q­cache:-BS_mLBY09QJ:www.realclearpolitics.com/epolls/2016/president/sc/south_carolina_republican_presidential_primary-4151.html+&cd=3&hl­en&ct­clnk&gl­us

Lawyer website: http://myattorneyusa.com