Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

Humanitarian Parole – Reuniting Families During Trying Times

The Immigration and Nationality Act generally requires visitors and immigrants into the U.S. to obtain a visa. Humanitarian parole enables those who are otherwise unable to obtain a visa to enter the United States for up to one year, provided they convince the government that exigent circumstances exist such that this special permission is warranted. Typical applications for humanitarian parole involve life-threatening medical emergencies, the reunification of young children with families, or the emergent need to attend to a close relative who either is dying, or has recently passed away.

The attorneys at Kuck Casablanca have extensive dealings with the Humanitarian Parole Board, and have experienced extraordinary success in obtaining parole for people in dire circumstances. As such, the attorneys at Kuck Casablanca have served as mentors for immigration attorneys nationwide on the process and strategies surrounding applications for parole. Recent successful cases have resulted in the reuniting of families dealing with brain cancer and leukemia.

If at first you didn’t succeed, try again, and try with the assistance of Kuck Casablanca. There is no limit on the amount of times a person may apply for humanitarian parole. Any time there is an update in the circumstances surrounding the need for humanitarian parole, a person should re-file with the updated information. Though this could become costly ($305 per application), for those who have the resources and an anxious desire to enter the United States, persistence could definitely pay off.

Your Bond Means Nothing to Me…

Time after time the phone in my office rings with the same story. “My husband / fiancĂ©/ brother/ friend/ cousin was just arrested…we went down and paid the bond at the jail but we told that we couldn’t get him out because immigration has a hold on him. Is there any way we can get him out…?”

My hear sinks with each phone call and I gear myself up to give them the bad news. “Well the problem is immigration will not consider giving him a bond until all his criminal issues are resolved. Once all his criminal issues are taken care of, meaning his charges are dismissed or he is found guilty and serves his time in jail, immigration then has 48 hours to come pick him up and place him in their custody. Once he is in immigration custody immigration might consider giving him a bond. A lot of it depends on what happens during his criminal case. When immigration is considering giving someone a bond they look at their criminal history, ties to the community, possible relief under immigration law and whether they are a threat to society. If he has any United States citizen or permanent resident family members we should go ahead and file a petition for him, but right now, you really should be concentrating on the criminal aspect of his case. The better his criminal case goes the easier it will be for me to ask for a bond from immigration.” And I try to finish with the good new “But…if immigration does not pick him up within 48 hours after this criminal case is resolved than we can file a writ to get him out of jail. Good luck! And let me know how the criminal side goes!”

But here is my question…why can’t ICE consider giving them a bond while their criminal proceedings are still pending? I’m not talking about if the client is charged with trafficking drugs or murder. But what about if a client is charged with a simple DUI or driving with an expired license and would be eligible for some for of relief under immigration law? If the client is charged with driving without a license, chances are, the most severe thing the client will be convicted of is DRIVING WITOUT A LICENSE! That is not a dangerous crime. The client is not a threat to the community! The client is as eligible for a bond while he is in criminal state custody as he would be in immigration custody. This is particularly true if the person has a legal entry, is married to a United States Citizen and has a bunch of little ones as home.

I can not tell you how it breaks my hear trying to explain to a client why the low bond that the criminal judge sets means nothing for their case. I hate to hear the United States Citizen mom saying “but who will stay with the kids? This has disrupted our whole lives! He is going to lose his job. The economy is awful right now! How will we make it?”

So here is the thing Immigration and Customs Enforcement, why don’t you consider giving a guy who is charged with a small traffic violation and who has relief under immigration law a bond while he is still in state custody? You can use the same discretionary standards that you always use. It is ridiculous to have the client’s life completely disrupted for a simple DUI. The client is now well aware that they need to take care of their immigration status. In fact, the whole family is aware…they is why they are calling my office. Give us a break guys. If the guy could get a bond from the judge to be released into your custody, and he has relief under the law, why not consider giving him a bond as well? This would make all of our lives so much easier. Crazed family members wouldn’t call me and I wouldn’t be forced to call you guys so often. Think about it…You know it makes sense.

I must end because my phone is ringing. Probably a family member of another person who is detained under the 287 (g) program. Now where is that number for Immigration and Customs Enforcement again …?

Charles Kuck on NPR–Immigration Reform and State Immigration Legislation

I was fortunate to be invited to speak on the Salt Lake City affiliate of National Public Radio last Friday. We had a chance to discuss the national picture on immigration reform, as well as some of the Utah specfic legislation that was pending before their state legislature. Most of that legislation was sponsored by politicians wanting their 15 minutes of fame at the expense of immigrants, but one of the bills was quite interesting–a proposal for a Utah-specific temporary/guest worker program. Listen to the program for the details of my discussion: http://kcpw.org/article/7475

Keep Your Domestic Violence and Marriage Fraud Out of the Charlotte Immigration Court

Charlotte, North Carolina opened its new immigration court on November 4th, 2008. We have an experienced immigration judge who has been adjudicating cases for over the past 10 years. She is fast and she is smart. She is also a former prosecutor who has NO TOLERANCE for domestic violence or marriage fraud. If your case has either of these two issues, hire a lawyer and get it taken care of LONG before you enter into her court room.

If you have a conviction for domestic violence, find a lawyer and get it reopened and plead down to anything else. Disturbing the peace, disorderly conduct, jay-walking, whistling under water…anything…! Or make sure that you get lawyer that can explain that there was never an actual conviction for domestic violence.For example, the lawyer will explain that you were charged with domestic violence and took some anger management classes but you never actually admitted any guilt. Under this scenario you do not have a “conviction” for domestic violence. Have your lawyer ready to address this issue in court EVEN before you address what your case is actually about.

Marriage Fraud. Not so easy to prove. Plenty of people take YEARS to get a divorce because it is such an emotionally messy issue to deal with. Plenty of people have relationships after marriage but just don’t take the time and effort to tie up those legal loose ends to get a divorce. That is until they or their significant other end up in immigration court.

“Does your current wife know of your recent divorce and that you married her a day after your divorce was final?”

“Yes your honor, my wife is standing right here behind me.”

“Mmmmhmmmm….”

Please be ready to submit photos, statements from friends and family from ANYONE who knows that you have a real relationship. This is particularly true if you have only been married a few days. Again, just because a marriage is new does not mean that it is not REAL. Just be ready to prove it.

The Charlotte immigration court is a great place to practice. If you have any relief under the law the judge will be more than happy to explore with you and give you plenty of time to find a lawyer. Just be aware of these issues that the judge finds troublesome. And I will end with the two words that she tells everyone in her court at the conclusion of their case.

“Good Luck.”

Persecutors of Others? Really?

In the early 1990s thousand of thousands of people immigrated to the United States from El Salvador due to the civil war that was raging in the country. People were dying by the thousands, and innocent civilians were being forced to take sides in the conflict, or face death themselves. Young men were forced, against their will, to enlist in the Salvadoran armed forces. Many of the young men fled to the United States after spending a short time in the military.

A vast majority of Salvadorans came to the United States and sought political asylum, claiming fear of returning to El Salvador. Because of the enormous amount of asylum applications received from the fleeing Salvadorans, the Asylum Office of U.S. Citizenship & Immigration Services only recently began calling people for their asylum interviews (first step in the process of gaining asylum), nearly 20 years after the applicants came to the United States.

Even more shocking than the delay is that many asylum applications are being denied by the Asylum Office and referred to immigration court on the basis that the applicant was a persecutor of others (INA § 208(b)(2)(A)(i)) for having been a member of the Salvadoran army, and being witness to atrocities, and is barred from receiving asylum, this despite the fact that many of the applicants never fired a gun or captured anybody, and some applicants abandoned the military and escaped to the United States to avoid further military service. Unfortunately, in many instances immigration courts are echoing the Asylum Office’s decision that the applicant was a persecutor of others, and are finding them ineligible for asylum, ordering the applicants removed from the United States to El Salvador.

Hope may be on the horizon for these people forced into conflict and did not participate in harming others. The Supreme Court granted certiorari in Negusie v. Mukasey to decide whether a person who was compelled, against his will, to assist or take part in persecution is barred from asylum. Though the case involves an Eritrean citizen who worked as an armed prison guard, it will without doubt be applicable to Salvadorans.

Hopefully the Supreme Court will interject reason and common sense and resolve this issue once and for all. USCIS’s (and consequently many immigration courts’) current position that service in the military automatically equals persecutor of other resulting in a bar from asylum is absurd and the result is unjust.

The Effect on H-1B, L, and TN Visa Holder of Termination and Corporate Downsizing

Immigration Issues Related to Corporate Downsizing

We are frequently asked what obligation does an employer have when it terminates a foreign national employee, and what options are available to the foreign national employee if he is terminated. This is some guidance to employers in dealing with immigration matters during the downsizing process. Employers terminating foreign employees should also consider arranging for immigration counsel to advise foreign employees on the consequences of termination as one of the services provided to workers being terminated.

The foreign national employees referred to here do not include lawful permanent residents or U.S. citizens. Foreign national nonimmigrant workers usually fall under the H-1B, L, E, O, and TN temporary work visa categories. The most common nonimmigrant work visa, H-1B, is used for an “alien who is coming to perform services in a specialty occupation”. L visas are used for intra-company transferees that enter the U.S. to render services “in a capacity that is managerial, executive, or involves specialized knowledge. E visas are used for “treaty traders and investors” as well as Australian specialty occupation workers. O-1 visas are used for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the science, education, business or athletics. TN visas are used for Canadian and Mexican citizens to engage in business activities at a professional level as listed in the North American Free Trade Agreement.

Nonimmigrant work visas are generally issued for the specific employment with a particular employer. A foreign employee is authorized to remain in the United States as long as they are employed with the particular employer noted in the visa application. If the foreign employees are laid off, they immediately lose their visa status, and must pursue one of four options outlined below.

The immigration laws define a “lay off” as an action taken by an employer to cause the loss of a worker’s employment. A lay off does not include:

  • Loss of employment for inadequate performance;
  • A loss of employment for violation of workplace rules;
  • Voluntary departure or retirement;
  • The expiration of an employment grant or contract.

When downsizing, a corporation laying off foreign workers, you must comply with the affirmative duties under immigration law with respect to those foreign workers. For most employment-related visa types, the employer has an affirmative responsibility to notify the U.S. Citizenship and Immigration Service (USCIS) Service Center which approved the petition underlying the foreign national’s visa, when terminating a foreign worker’s employment. The employer’s payment obligation under the immigration law ends when there is a bona-fide termination of employment AND the employer also notifies the USCIS. The notice to the Immigration Office fulfills the requirements for bona-fide termination of employment.

These affirmative responsibilities are particularly important because employers that do not comply with these obligations violate the immigration rules and are subject to various penalties, including back wages. We include some brief explanations of the affirmative responsibilities employers incur when laying off foreign national employees:


Laying Off H-1B Foreign Workers

a. The employer must offer to provide the H-1B workers return transportation to their home country at the employer’s expense. This is an airfare cost only, and only for the foreign national employee. It is not for his spouse, children, home furnishing or dog.

b. The employer must notify the USCIS of the termination of foreign workers’ employment;

Laying Off Other Nonimmigrant Foreign Workers

a. Notify the USCIS of the termination of foreign workers’ employment.

The employer should also ensure that the foreign national worker understands his or her options upon termination. Essentially, there exist four options in most cases for the foreign national employee:

1. The employee can leave the United States immediately. Remember, there is no grace period currently in place for any nonimmigrant work visa (H, L, E, O, TN) unless the employee has completed the fully authorized term of employment;

2. The employee can file for a change of status to visitor visa status (B-2), with proof of intended departure date, verification of support pending departure, and a valid reason for remaining (e.g., packing household goods, etc.). This application for change of status to visitor should occur prior to the expiration of any time period of severance, and is best filed while the employee is still employed. This request to remain can be for up to six (6) months;

3. The employee can file to change employers and remain in that visa status. This means, obviously, that the employee must already have an offer of employment from another employer. The same process is in place that obtained the current nonimmigrant status for the employee. The employee must also file this change of employer petition while still in lawful status (e.g. during a severance period or while still employed); and

4. The employee can enroll in or return to school. This means the employee enrolls in a university to seek a degree, typically a higher degree, and seeks to change status to that of a student visa holder (F-1). Obviously, there are serious costs associated with this option, as the employee must pay tuition and related expenses, and typically will not be allowed to work, unless the employee enrolls in a degree program that allows Curricular Practical Training (CPR). Again, this change of status petition must be filed while the employee is still “in status,” as noted above.

Layoffs and terminations are difficult for all parties involved. Properly managed, both the employer and employee can come through this situation fully protected and compliant with all federal immigration laws. If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys.

H-1Bs and US Workers – The Banks and The Bailout

The Associated Press ran an absolutely poorly researched piece on H-1B visas and the Banks receiving Bailout money from the Federal Government on Sunday. The article implied that as the Banks were taking bailout money they were simultaneously firing US workers and hiring cheap foreign labor. After I finished laughing out loud, I began to weep. I was stunned that a veteran reporter at the AP would be willing to draw this conclusion from the biased numbers drawn up by a group opposed to immigration in general and to H-1B visa holders specifically. The piece makes no effort to talk to an independent source, or to check the information against publicly available data.

The article notes that the banks benefiting from bailout monies “requested visas for more than 21,800 foreign workers over the past six years for positions that included senior vice presidents, corporate lawyers, junior investment analysts and human resources specialists. The average annual salary for those jobs was $90,721, nearly twice the median income for all American households.” Unfortunately, that statement simply is not true. Even more telling is this quote from the article “During the last three months of 2008, the largest banks that received taxpayer loans announced more than 100,000 layoffs. The number of foreign workers included among those laid off is unknown.”

We have to ask, once we think about this: Which banks? How is the layoff number related to this article, if we do not know how many H-1B workers were laid off, perhaps the banks laid off all the H-1B workers? Then what would be the point of the article?

Now, taken on its face, a normal person (someone who does not deal with H-1B visas all day long) would say, “That is a crime!” “We should take our bailout money back!” But this article is based on so little accurate information that it screams for a deeper examination. First, the “21,800 foreign workers” over the past five years is simply not true. This is either stated out of ignorance or with an intention to misstate the truth, The 21,800 number ACTUALLY refers to Labor Condition Applications that were filed by these banks with the Department of Labor, NOT the number of H-1B petitions filed by the Banks with the U.S. Citizenship and Immigration Service (the reporter fails to actually disclose how many and which banks in particular were included in this fanciful number).

Supposing the reporter knows how to count, then what is a Labor Condition Application? It is a precursor document to the H-1B and MUST be filed each time an H-1B visa employer has an H-1B worker who MOVES locations, CHANGES jobs, EXTENDS his visa OR files a New H-1B petition. It does NOT reflect 21,800 visas! Misleading, heh. The reality is that the number MIGHT BE closer to 6,000 H-1B visa applications over 6 years for ALL banks operating in the United States, even owned foreign banks). But, we are not given this information in the article, either because it would have supposedly been too difficult to obtain the actual number of H-1B workers approved in any given year for these banks, or because the number was perhaps unavailable. In fact, the reporter said this: “It is unclear how many foreign workers the banks actually hired; the government does not release those details.” Wrong!

Ten minutes. That is the amount of time it took to get this information. All this reporter had to do was Google “top H-1B employers” to see who actually is petitioning for H-1b workers. In 2007, of the top 200 H-1B employers, the first bank listed is Citibank (54) (387,000 employees), with 322 H-1B Visas approved; Bank of America (95) (210,000 employees) had 236 H-1B visas approved; HSBC Bank USA (125) (335,000 employees worldwide) had 203 H-1B visas approved; and Deutsche Bank (154) (78,000 employees worldwide) had 170 H-1B workers approved. There are no other banks in the top 200 users of the H-1B program. So, less than 1/10 of one percent of the employees of these companies in 2007 was on an H-1B? Can we say drive-by journalism? Or, perhaps, there is an ulterior motive here. It appears the old playbook is coming out: Economic downturn, need to distract from the problem, blame the foreign workers! Hike! Let’s face reality. H-1B workers actually create jobs for U.S. citizens.

The reality is that until Congress gets its act together, does a proper study on H-1B visas numbers, comes to agreement on a appropriate amount of H-1Bs, tied to an employment rate rise or fall, we will keep allowing our elected representatives and those with an agenda against immigrants to demagogue an issue rather than deal with real problems.

A few key points to keep in mind:

  1. H-1B petitions track the economy. When hiring is down, the number of H-1B petitions goes down, and vice versa. The program is self-adjusting when the economy goes down, but there is no corresponding escalator when the economy improves – that’s the real problem.
  2. According to the Bureau of Labor Statistics, there remains a shortage of native born students graduating with advanced degrees to fill highly specialized positions, especially in the scientific, technological, engineering and mathematic fields and these fields are projected to grow and be our future. Our own innovative industries need to have access to foreign professionals who have these skills and expertise.
  3. In economic downturns like today, there are specialized needs and skills sets in demand that will result in new H-1B petitions. At their highly-skilled level, you can’t fill professional positions without the necessary expertise and training. Employers rely on the H-1b visa to retain highly educated professions in the US and to keep us competitive in the global market. We are competing for the best and brightest with other countries that actually have the foresight and understanding to streamline work visas and immigration.
  4. As the economy returns, the US will need access to the talent and skills that foreign nationals (many of whom were educated in the US) can bring. It’s short-sighted and counter-productive to artificially limit access to this talent in the future. This is the law reform that companies have been advocating for and deserve to have enacted.
If you believe Congress needs to address the H-1B shortfall, and understand the need for United States employer to have the flexibility to hire those key foreign national workers that create jobs for United States Citizens, send a message to your Congressman and Senator today. It takes only 30 seconds and does make a difference.