by Cyrus D. Mehta
, ABIL Lawyer and Gary Endelman The Insightful Immigration BlogThe oath ceremony is often one of the most significant and profound in an immigrant’s journey towards American citizenship. It signifies the end of the immigrant experience and is the final threshold before one’s acceptance as a citizen. It is also a happy moment, and the ceremony is generally accompanied by a stirring speech from a judge or well-known public official. Still, the oath, as prescribed by section 337 of the Immigration and Nationality Act (INA), requires a serious commitment from the immigrant to forever renounce former allegiances, and also insists that the naturalization applicant take the oath without mental reservation or evasion. People may still wish to keep their former citizenship even while becoming American citizens for a number of reasons, such as ease of travel to the country to conduct business or to continue to access the country’s social security and healthcare system. Our blog examines the impact of the oath on the immigrant’s desire to retain his or her citizenship of the former country. At journey’s end, we suggest that, contrary to popular assumption or common understanding, American law is much more tolerant towards and accepting of dual citizenship than most of us, lay and lawyer alike, have ever believed.
The current format of the oath of allegiance
is as follows:
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"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God."
When a UK citizen takes such an oath and becomes an American citizen, what is the effect of this oath on his or her UK citizenship? The oath requires the intending citizen to “absolutely and entirely renounce and abjure all allegiance” to any country that he or she has been a citizen. At the same time, it does not seem that this individual is required to give up UK citizenship. Moreover, since the United States manifestly cannot alter the relationship that any subject or citizen has with the country of their birth or prior citizenship, the import of the naturalization oath lies exclusively as an expression of American attitude and belief. The requirement to renounce all allegiance to your former country does not mean that you have to cease being a citizen of that country. The concept of dual citizenship or dual nationality has long been recognized, and the State Department in recognizing dual nationality
states, “A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another.”
UK does not seem to mind when its citizens takes up the citizenship of another country, including American citizenship, which requires the taking of the oath of allegiance. German citizens, in order to retain their citizenship while obtaining the citizenship of another country, must file a Beibenhaltungsgenehmigung
prior to applying for American citizenship. Some attorneys have reported isolated instances of naturalization examiners denying the N-400 application on ground that such a person will not be able to take the US oath of allegiance without reservation. Moreover, the Beibenhaltungsgenehmigung asks for the applicant’s personal information such as name, address, date of birth, and the length of residence outside Germany. The form also asks about the applicant’s ties to Germany and detailed reasons why the applicant has to become a citizen of US or another country. No declaration of primary or exclusive allegiance to Germany is required nor does the German procedure demand or expect any act in derogation of US citizenship.
INA section 349 specifies several conditions under which a US citizenship may be lost. These include:
- becoming a naturalized citizen of another country, or declaring allegiance to another country, after reaching age 18;
- serving as an officer in a foreign country’s military service, or serving in the armed forces of a country which is engaged in hostilities against the US;
- working for a foreign government (e.g., in political office or as a civil servant);
- formally renouncing one’s US citizenship before duly authorized US officials; or
- committing treason against, or attempting or conspiring to overthrow the government of the US.
At no time is the newly minted naturalized American required to give up his or her foreign passport nor is the subsequent use of such passport a potentially expatriating act under INA 349. If Congress had wanted to make post-naturalization travel on a foreign passport a potentially expatriating act, it knew full well how to do so. Under the well-known doctrine of expressio unius est exclusio alterius (“ the express mention of one thing is the exclusion of all others”)
, such a conspicuous omission is a clear indication that the naturalized citizen does not endanger his or her American citizenship by future travel on a foreign passport, so long as she leaves and enters the United States on an American passport as required by INA 215(b).
The primary effect of recent developments in the US regarding dual citizenship has been to add the requirement that loss of citizenship can only result when the person in question intended to give up his citizenship. At one time, the mere performance of the above (or certain other) acts was enough to cause loss of US citizenship. In Kawasita v United States,
343 US 717, 753(1952) the Supreme Court held that dual citizenship is “ a status long recognized in the law…the concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not, without more, mean that he renounces the other… when one has a dual citizenship, it is not necessarily inconsistent with his citizenship in one nation to use a passport proclaiming his citizenship in the other…” The trend in US law in recent decades has clearly and consistently been in favor or accepting dual citizenship. Former INA 352(a)(1) deprived a naturalized citizen of citizenship for residence in country of birth within 3 years of naturalization, which was found unconstitutional by the Supreme Court in Schneider v. Rusk
, 401 US 815 (1971) and repealed in 1978. US citizens used to lose their citizenship for voting in foreign elections before the Supreme Court ruled otherwise in Afroyim v. Rusk,
377 US 163(1967) . In 1980, the Supreme Court in Vance v. Terrazas,
444 U.S. 252 (1980) reaffirmed that US citizenship could not be taken away from a citizen absent the voluntary performance of an expatriating act done with the intent to give it up. Even the State Department since 1990 has adopted an administrative premise
that a “routine” oath of allegiance to a foreign country that does not explicitly require the renunciation
of US citizenship will be presumed to have been performed with the intent to retain such citizenship.
Afroyim and Terrazas,
by making it more difficult to lose US citizenship, also served to cause the State Department to become more accepting of dual allegiance. Danny Terrazas had obtained a Certificate of Mexican Nationality. Even though he lost his US citizenship, the effect of his case was to make the USA more accepting of dual citizenship by making US citizenship more secure in a constitutional sense. This is further discussed at 7 FAM 1254(e):
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“In light of Terrazas, the Department now presumes that U.S. citizens who naturalize as citizens of a foreign state or who declare their allegiance to a foreign state intend, absent evidence to the contrary, to retain their U.S. citizenship (22 C.F.R 50.40(a) and 7 FAM 1222). A U.S. citizen may readily rebut this presumption by either signing the “Statement of Voluntary Relinquishment of U.S. Citizenship” contained in DS-4079 (“Request for Determination of Possible Loss of United States Citizenship”) or by executing a written statement under oath indicating that he or she naturalized as a citizen of a foreign state or declared his or her allegiance to a foreign state voluntarily with the intention of relinquishing U.S. citizenship.” 7 FAM 1254(e)
Readers may also want to consult 7 FAM 1222(a) which contains the post-1990 State Department presumption that naturalization in a foreign state, without more, is presumed by our State Department to have been done with an intent to retain USC status and will not therefore cause loss of US citizenship.
During the late 19th and early 20th centuries, the US ratified a series of expatriation treaties (the "Bancroft treaties", named after American diplomat George Bancroft). The intent of these treaties was to prevent dual citizenship by providing for automatic loss of citizenship by foreigners who obtained US citizenship, or by Americans who obtained foreign citizenship. As a result of the various Supreme Court decisions on dual citizenship, however, the Bancroft treaties became legally unenforceable, and all of them have by now been formally abrogated by the US. One of these treaties (the one with Sweden) is mentioned in the Supreme Court's decision in Perkins v. Elg
, 307 U.S. 325 (1939). The Bancroft treaties marked a rejection by the US of the common law doctrine of permanent allegiance that dates back to an old English case from 1608 called Calvin’s case
. Precisely because of its unique historical origins, born out of revolution and a rejection of the British monarchy, the US developed the notion of expatriation, that one can give up citizenship and acquire new allegiances.
The acceptance of dual citizenship represents a uniquely American return to the concept of permanent allegiance but in a new way. Under the Bancroft 19th century approach, the US embraced the right of its citizens to give up their old allegiances and become Americans. Indeed, the same Congress that defined citizenship in the 1866 Civil Rights Bill and the 14th Amendment, made the right of expatriation part of the corpus of US immigration law. Act of July 27, 2868, c h.249, Sect. 1, 15 Stat. 223 (now codified as INA 349(a)(6) and (7)) (“the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness.”) Now, in the 21st century, while expatriation remains a fundamental constitutional right, we are moving towards what may be called the “globalization of citizenship,” a more elastic but no less durable concept. Originally, common law denied the individual right to stop being a subject of the Crown. Now, the US embraces the right of naturalized citizens to retain their old allegiances while adding new ties to the USA. In effect, citizenship is shorn of its prior exclusivity and endowed with an expansiveness that it previously lacked so that a naturalized or birth right citizen can enjoy the privileges and protections of full membership in the American polity while still being able to retain traditional identities or benefit from the addition of new ones.
The final question is why do we need citizenship as a basis for defining the people of a country? There may come a time when a distinction between a citizen and a non-citizen may be as abhorrent as distinguishing people by the color of their skin. But until then, in a famous article by Alexander Bickel, Citizenship in the American Constitution, 15 Arizona Law Review 369 (1973), Professor Bickel makes a point very much in alignment with our question, namely that one of the key reasons for the stability of the American political system, one of the “secret sauces” as we would like to say, that has contributed to the acceptance and efficacy of our constitutional framework is the fact that traditionally citizenship does not play a supreme role nor endow its holders with rights and privileges far in excess of others. “It is gratifying,” he observes “that we live under a Constitution to which the concept of citizenship means very little.” Bickel at 367. “Had citizenship been that important to the Founding Fathers, surely they would have bothered to define it. Ironically, the surpassing relevance of citizenship lies not in the privileges it preserves or in the distinctions it enshrines but in what Bickel terms its “minimalist role.”” It is precisely such modesty that serves to broaden opportunity for all, to give non-citizens what Jefferson called a “stake in society” so that even those who are not citizens identify the nation’s success and well being with their own.
Immigration law does not evolve in a vacuum but mirrors the society writ large. So, for example, the 1952 Act was chock full of ideological grounds of exclusion in the depths of the Cold War. The 1965 abolition of the national origins quota as an international civil rights bill passed the year after the 1964 civil rights act and the same year as the voting rights act. The American Competitiveness in the 21st Century Act was passed at the height of Clinton prosperity So, with the growing acceptance of dual citizenship the fact that more Americans work abroad than ever before, that American business has gone global, that jet travel has long since become common and is no longer the province of the rich or powerful, that growing numbers of Americans go to college and beyond, that the world is increasingly flat with transfer of technology crossing national boundaries- all of this has made the world smaller, more of a global village. As this has happened, as our horizons have widened, the notion of dual allegiance has become more commonplace and more acceptable to Americans own sense of what kind of a people they are and what manner of nation we have become.
(Guest author Gary Endelman is the Senior Counsel of FosterQuan)
“California deserves whatever it gets. Californians invented the concept of life-style. This alone warrants their doom.” ― Don DeLillo, White Noise
“Political corruption, social greed, and Americanized quasi-socialism can ruin even the most wonderful places. California proved that.” ― Tiffany Madison
As a transplant from Michigan who has thrived in California since settling here in 1982, I've come to expect sneering and cynicism heaped upon this lovely, blessed state. The foregoing quotes
are of the genre
, California sniping, expressed most frequently as Jack Frost approaches elsewhere, biting the rest of the country into its perennial frenzy of Golden-State envy. We Californians are used to that kind of seasonally-induced, sour-grapes hurling.
But sometimes our state legislature and our governor, the monk formerly known as Moonbeam, take actions that all but invite ridicule.
Recent examples are plentiful, as my colleagues at Seyfarth Shaw, Dana Peterson and Coby Turner, noted in their Nov. 26 posting in the aptly titled, California Peculiarities Employment Law blog
("California Employees Have Even More Protections to be Thankful for This Year
Today's post will focus on just one section of one of two new laws critiqued in the Peterson-Turner post. Section 4 of Assembly Bill 263, effective January 1, 2014, adds this new provision (Section 1024.6) to the state's Labor Code:
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1024.6. An employer may not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.
The new section sounds innocuous. Of course no employer should be allowed to assail an employee who merely updates or tries to update "his or her personal information." The transgression seems apiece with that cardinal California sin of violating one's "personal space." The devil, however, is in the subtext.
Consider these common scenarios:
#1: An employer, aware that U.S. Immigration and Customs Enforcement (ICE) is increasingly auditing and penalizing employers for violations of the immigration-paperwork requirement to maintain proof of every new hire's identity and employment eligibility on Form I-9, decides to conduct a voluntary audit of its I-9 records. The employer discovers mistakes or finds copies of identity documents and work permits that, on second look, appear to be less than genuine. It wants to take corrective steps to mitigate any fines ICE might impose.
#2: An employer receives a Social Security Administration letter (a no-match notice) announcing that the employer's payroll tax contributions tied to particular employees' social security numbers (SSNs) contain information that conflicts with the SSA's own records associated with the earmarked SSNs. Or, an employer receives word from its health insurance carrier or pension administrator that the SSNs of certain employees do not square with SSA data. This employer likewise wants to fix the problem and minimize potential fines before ICE shows up.
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Assume that in scenarios #1 and #2, the employer first checks its own records and finds no reason such as a clerical error or typo to explain and resolve the discrepancy. The employer then approaches the affected employees, explains that a discrepancy has been noted, and asks the employee to provide an acceptable explanation with documentation that resolves the discrepancy and demonstrates that the individuals in question have the right to work in the United States. Failing the tender of acceptable evidence, the employee will be required to sign a new Form I-9 to verify identity and employment eligibility.
Rather than provide the requested documentation, each of the employees instead informs the employer that s/he has adopted a new name, a new date of birth, a new marital status, or other newly embraced "personal information" and then presents seemingly genuine and relevant original documents of identity and work authorization to confirm the change.
Today, before Assembly Bill 263 takes effect, an employer is allowed to terminate the individual's employment if the submission of inconsistent personal information violated company policies requiring that employees be truthful in all of their dealings with the employer. AB 263 takes away that power to sanction employee dishonesty. Moreover, since the law also prohibits employers "in any manner" from discriminating, retaliating or taking any "adverse action against an employee" who has updated his or her personal information, AB 263 may even prohibit an employer from investigating whether the newly provided personal information is accurate or likewise false or flawed.
Suppose the employee(s) in fact lacked the right to work in the U.S. and had merely purchased a new set of papers from the local fraudulent-document purveyor. Under federal immigration statutes and regulations, an employer may not hire or continue to employee an individual whom the employer "knows" lacks the right to work in the United States. Knowledge of a person's unauthorized employment status can be actual or constructive, as provided in 8 CFR § 274a.1(l):
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The term knowing includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.
In other words, an employer who is aware of certain unexplained facts (such as an "update" of "personal information"), but turns a blind eye to circumstances that seem suspicious or at least worthy of further inquiry, will be treated as knowing the facts that a reasonable investigation would have revealed. Thus, if the workers were indeed unauthorized but the employer did not investigate the circumstances out of fear of violating the no-adverse-action prohibition of AB 263, ICE would likely fine the employer on two separate grounds. The fines would be not just for a deficient I-9 but also for the more serious "knowing-continuing-to-employ" offense.
What should the employer do? Depending on the facts at hand, the better approach would likely be to follow federal immigration law which probably preempts and trumps AB 263. See, Arizona v. United States
, the Supreme Court case which tossed out almost all of Arizona's SB 1070 on federal-preemption grounds. Employers presented with personal-information updates should be prepared to defend against state charges under AB 263 by maintaining that merely conducting a reasonable investigation of the facts to determine if an employee is authorized to work in the U.S. is not a form of discrimination, retaliation or adverse action under the new California law. But since California is indeed peculiar, employers should also be prepared to fight the good fight if organized labor, state authorities or the courts disagree. At least the weather is nice.
by Cyrus D. Mehta
, ABIL Lawyer The Insightful Immigration BlogThere are a number of unfortunate cases where the parent abandons lawful permanent resident (LPR) status by staying outside the United States resulting in the child’s LPR status also being abandoned. Should should the child’s LPR status be deemed abandoned even if the child had no intention to abandon that status?
The answer, unfortunately, is “Yes,” but there might still be grounds for putting up a fight. There is a precedent decision of the Board of Immigration Appeals, Matter of Zamora
, 17 I&N Dec. 395 (BIA 198), which holds that if the parent abandons his or her LPR status while the child is in the custody and control of the parent, then the parental abandonment may be imputed to the child. The reasoning in Matter of Zamora
is based on the premise that a minor child cannot legally possess an intent to remain in the United States distinct from his or her parent’s intent. Even the State Department’s Foreign Affairs Manual acknowledges that a child under the age of 16 years is not considered to possess a will or intent separate from that of the parent with regard to a protracted stay abroad. 9 FAM 42.22 N5.
Essentially, an LPR must be returning from a temporary visit abroad under INA § 101(a)(27) in order to avoid a charge of abandonment. The term “temporary visit abroad” has been subject to much interpretation by the Circuit Courts. The Ninth Circuit’s interpretation in Singh v. Reno
, 113 F.3d 1512 (9th Cir. 1997) is generally followed:
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A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.”If as in (b) “the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.
Therefore, when an LPR is unable to establish that the trip abroad was temporary under the formula established in Singh v. Reno
, and thus deemed to have abandoned that status, it would be imputed to the child. I question whether it is good policy as there may be a number of situations where a child may possess a separate intention from that of the parent. The Ninth Circuit Court of Appeals in Khoshfahm v. Holder,
656 F.3d 1147 (9th Cir. 2011), while affirming Zamora
, raised this possibility by citing the example of LPR parents who leave the country, but leave their child in the US to attend school or live with a relative. Under the principle set forth in Zamora
, the parents’ length of stay abroad, along with a lack of continuous intent to return to the US, could result in a finding that they had abandoned status, but it would be unreasonable to impute the parents’ abandonment to the child who never left the US. There are other situations too, where say an abusive parent who is an LPR takes the child abroad and does not allow the child to return back to the US. This would result in an unfair outcome, and is inconsistent with prevailing immigration policy. The Violence Against Women Act ensures that battered spouses, children and other relatives do not need to depend on the abuser’s status to apply for immigration benefits by enacting INA sections 204(a)(1)(A) and (1)(B), which allow battered spouses of US citizens and permanent residents to self-petition for permanent residency even when the abusive spouse either refuses to sponsor or has withdrawn support on a previously filed I-130 petition. The intent of an abusive parent can also be considered as analogous to the fraudulent conduct of a parent, which is not imputed to the innocent child. See Singh v. Gonzales
, 451 F.3d 400, 409-410 (6th Cir. 2006).
The argument to not attribute any abandonment by the parent on the child is further bolstered when the parent legally ceases to be a custodial parent, possibly due to the abusive relationship, and this is supported by the State Department guidance at 9 FAM 42.22 N5(c), which provides:
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In the case of LPR children who you believe spend more than one year outside the United States as a result of an abduction by a non-custodian parent, please contact Overseas Citizen’s Services, Office of Children’s Issues (CA/OCS/CI) and the Post Liaison Division (CA/VO/F/P) to determine the proper course of action. While a returning resident visa is the preferred way for the child to return to the United States and be admitted in the proper status, a non-custodial parent may not be willing to cooperate in order to complete the returning resident visa process. CA/OCS/CI, CA/VO/F?P, and CA/VO/L/A can advise you on options in coordination with DHS to allow the child to travel back to the United States.
The Ninth Circuit in Khoshfahm
also held that a child can have his or her own intent upon reaching 18th, which is like the State Department’s policy, although the State Department cuts off the age at 16. Thus, a child should be able to establish his or her own intent independent o the parent’s intent after 16 or at least by 18.
It was thus heartening to find an unpublished decision
by Immigration Judge Philip J. Montante, Jr. on AILA InfoNet at Doc. No. 13112247 (posted 11/22/13), which held that the abandonment of LPR status by a divorced parent could not be imputed to the child who was under the age of 18 where the divorce decree specifically required the child to travel to the US to visit her father resided in order to maintain her US residency. The child was also able to demonstrate that she visited her father in the US several times. Hats off to attorney Eric Schulz in Buffalo, NY, who was the attorney for the child respondent!
When an LPR child finds himself or herself in such a situation and has been outside the US for more than a year without a valid reentry permit, the child may be eligible to apply for an SB-1 visa as a returning legal permanent resident at a US consular post. Alternatively, the child can also arrive at a port of entry in the US and be prepared to submit a Form I-193 waiver under INA section 211(b) as a returning legal permanent resident who has a valid Form I-551 (green card) but has been outside the United States for more than one year. This is risky, however, because If the child is not waived into the US, then the child will be issued a Notice to Appear, alleging that he or she is an immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the INA. The NTA will most likely charge the child as being subject to removal pursuant to INA section 212(a)(7)(A)(i)(I). Although the child will be subject to a removal hearing before an Immigration Judge, where an alien has a colorable claim to returning resident status, the government bears the burden of proving abandonment of lawful status “by clear, unequivocal and convincing evidence.” See e.g. Matadin v. Mukasey
, 546 F.3d 85 (2d Cir. 2008).
Attorneys representing LPR children who have been deemed to have abandoned their LPR status through imputation should, where the facts warrant, be prepared to chip away at the principle set forth in Zamora
. It is no longer fair to reflexively impute the abandonment of a parent’s LPR status onto a child, especially in situations where the child has expressed an intent contrary to the parent.
(This blog is for informational purposes only, and should not be considered as a substitute for legal advice)
E-Verify's New Lock ~ Like it or Not, This is a Big Deal!
By Nici Kersey
At around 3:00 eastern time on Monday, my (obnoxiously self-important) inbox exploded. Ping! Ping! Ping!
it said. Look at me! I’m bringing you important messages about stuff! Ping! Ping! Ping! Who died?
I thought, then wished I could un-think. Maybe it’s good news
. I’ve been selected as an extra for the next Hunger Games
movie? Or maybe Cookie Monster did something awesome
on Facebook (again
Nope. This time, it was USCIS with an exciting announcement about E-Verify’s latest enhancement.
One e-mail was from USCIS. The dozens of other messages were from colleagues, clients, and friends spreading the news. It’s like E-Verify got implants,
I thought, then wished I could un-think.
Yes, the most exciting news in my social circle (aside from new photos circulating of Angelo that suggest he may be starting a town car service) has to do with E-Verify. I know that this is lame. Despite the rare incidents (like one of my clients semi-publicly calling me “Chick Norris”) that make me feel hip and cool, I have embraced my nerdiness. Here
’s the announcement. (The E-Verify announcement. Not the Paparelli Town Car Grand Opening announcement.)
The enhancement “enables USCIS to lock a SSN that appears to have been misused, protecting it from further potential misuse in E-Verify.”
What does this mean? It means that E-Verify is actually getting better at doing what it’s supposed to do: verify employment authorization. Since its inception, one of the biggest weaknesses of the system has been that it cannot detect identity theft. So long as an employee provided someone
’s real data, E-Verify would return an “employment authorized” result, even if that data belonged to the person’s brother, cousin, father, my
daughter, or a complete stranger.
Will that still happen? Sure. But not as often. It’s not yet clear what the criteria are for locking an SSN, which is why my implants analogy is appropriate: Will the enhancement pass as genuine, actually improving E-Verify, or will it prove to be more trouble than it’s worth, getting in everyone’s way?
If 25 people suddenly get jobs in the Chicago area, and they all have the same name and SSN, the latest announcement suggests that E-Verify would lock that SSN and would require each employee who used it to either come forward with proof that he/she is the “Real Slim Shady
” (viewer discretion is advised) or to effectively abandon his/her job.
But will it go too far? Our bank locks my husband’s debit card every time he tries to make a purchase more than 5 miles from our home. This prompts mass hysteria, as we move so frequently that the security questions he is asked by the bank seem like advanced existential philosophy questions. The name of the street where your doctor’s office is located? Neighbor’s dog’s name? Your boss’s favorite holiday dish? (I’m going to start answering every security question with the word Pumpkin
The e-mails from my colleagues were mixed. One said, “This will be all kinds of fun,” dripping with sarcasm. Most clients were excited about the news, though they aren’t looking forward to the increase in mis-matches that they will have to resolve. All of my fake ID vendor buddies, of course, hated the news. (Dear NSA, I hope you are well. This is a joke. Love always, Nici.) Like it or not, this is a big deal.
It means that we are one step closer to a national ID card and a system in which we can “lock” our own SSNs and identities so that others cannot use them to obtain credit and/or jobs.
It means that people may find out sooner when their own identities have been compromised. Calls to the FTC
will probably increase.
It confirms that the federal government continues to work toward enforcement and deterrence, even if comprehensive immigration reform really has died. (We’re not getting any carrots here, just sticks.)
It proves that we are (still) moving toward a law requiring that employers use E-Verify nationwide.
It means that it will become more expensive to get a good
fake identity. Those ID sellers who care about their reputations (yes, their reputations for being really good criminals) will have to work harder to satisfy the market, and fake cards are likely to become more expensive. (And there will be a greater demand for cheap, bad cards too, as people may have to buy several cards/identities before one works.)
It may also add to the increasing paranoia of people like my father, who looked into having OnStar removed from his vehicle due to his concern that the government might be using it to spy on him. I implore you to not tell him about this
, or my next visit home may find my parents cooking all of their meals over an open flame in the back yard.
For employers, I offer the following suggestions:
- If you already use E-Verify, consider a training session for your team to ensure proper use of the system and to update them on this new development. Focus on non-discrimination training.
- Review your immigration policies and update them as appropriate.
- Make sure you have a protocol in place for handling “tips” about your employees’ work authorization (or lack thereof), as this is likely to lead to calls/e-mails/letters from the “Real Slim Shady” alleging that one of your employees is working under his name. (If your workforce is unionized, however, first check the collective bargaining agreement and talk to your labor counsel -- Seyfarth Shaw's are the best, and Angelo can introduce you.)
- Continue to monitor E-Verify requirements. Consult with immigration and labor counsel about the pros and cons of registering before it becomes mandatory.
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Thanks for reading, and have a lovely Thanksgiving.
by Cyrus D. Mehta
, ABIL Lawyer The Insightful Immigration BlogIn Delays for Overseas Spouses of US Citizens Seeking Green Cards I reported about the slowdown in the processing of I-130 petitions filed by US citizens on behalf of immediate relatives, such as spouses, minor children and parents, who are outside the United States. As a result of widespread concern about the delays, the USCIS seems to have reacted positively and sent the following e mail to its stakeholders:
From: U.S. Citizenship and Immigration Services [mailto:firstname.lastname@example.org]
Sent: Wednesday, November 20, 2013 3:38 PM
Subject: USCIS Message: Update on the processing times of Form I-130s filed by U.S. citizens for their eligible immediate relatives
U.S. Citizenship and Immigration Services (USCIS) has received communications from the public expressing concerns regarding extended processing times for Form I-130, Petition for Alien Relative, filed by U.S. citizens for their eligible immediate relatives. USCIS provides information below in response to the concerns expressed.
USCIS is ever-mindful of the need to process a U.S. citizen’s immediate relative Form I-130 carefully and expeditiously. The need is defined by the immigration system’s goal of preserving family unity. It is for this fundamental reason that USCIS has been focused on addressing delays in the processing of these Forms I-130 for several months.
Through concerted efforts, USCIS is now adjudicating U.S. citizens’ immediate relative Forms I-130 filed as early as February 2013. This is a significant step forward, as previously published guidance reflected the processing of these Forms I-130 filed in October 2012. Furthermore, USCIS expects the processing of these Forms I-130 to be increasingly timely in the ensuing weeks, culminating in the return to an average processing time of five months for these Forms I-130 by May 2014.
USCIS has focused on these Forms I-130 for the very reason that affected members of the public have expressed their concerns; the importance of family unity. Last month, in an effort to expedite the adjudication of these cases, USCIS began transferring stand-alone Forms I-130 filed by U.S. citizens for their immediate relatives from USCIS’s National Benefits Center to its Nebraska, Texas, and California Service Centers. This shift improves USCIS’s ability to adjudicate the cases in a timely manner.
When You Receive a Notice of Transfer of Your Case
If your case was transferred, USCIS will send you a notice listing the transfer date and where your case will be processed. Your original receipt number will not change and this will not further delay the processing of your case. USCIS will take action on your case within 60 days of the transfer date listed in your notice.
How to Track the Status of Your Case
We have recently updated the USCIS website at www.uscis.gov<http://www.uscis.gov/> with processing times for Form I-130 cases filed by U.S. citizens for their eligible immediate relatives. Please check the processing times<https://egov.uscis.gov/cris/processTimesDisplay.do> for your petition before inquiring about your case. If your case is transferred to another USCIS office, you should refer to the processing times for the office that has received your case.
You can check the status of your case at www.uscis.gov<http://www.uscis.gov/> by entering your receipt number in the “Check Status<https://egov.uscis.gov/cris/Dashboard/CaseStatus.do>” field. Additionally, you can sign up to receive automatic case status updates<https://egov.uscis.gov/cris/jsps/selectusertype.jsp;jsessionid=bacEczm0-YrdshKqQwGgu> by email as your case is processed. If you have not received a decision on your case within the published processing time, you may submit an inquiry using e-Request<https://egov.uscis.gov/e-request/Case.do> or contact the National Customer Service Center (NCSC) at 1-800-375-5283. For TDD hearing impaired assistance, please call 1-800-767-1833. When making any case status inquiries, you should reference your original receipt number and indicate that your case was transferred to a new location.
If you have filed a Form I-130 and you receive a request for evidence or any other type of communication from USCIS, please read the notice carefully to ensure that you respond to the same service center that sent you the notice.
If you move while your case is pending, you can change your address on the USCIS website<https://egov.uscis.gov/crisgwi/go?action=coa> or contact the NCSC so that USCIS can notify you of any further action on your case. It is important that you notify USCIS of any change of address as soon as possible after moving.
We appreciate the concerns that members of the public have expressed on this important subject. We are mindful of those concerns and are addressing them with great diligence.
USCIS Public Engagement Division
It is indeed welcome news that USCIS is endeavoring to speed up the processing of I-130 petitions of US citizens, and restore the original processing times of five months or less. While the granting of immigration benefits is contentious in today’s political environment, seldom dispute the ability of a US citizen to swiftly bring into this country a foreign national whom he or she has married overseas. The number of US citizens who can file I-130 petitions on behalf of spouses has recently expanded after Section 3 of the Defense of Marriage Act was declared unconstitutional in United States v. Windsor
, thus enabling US citizens to also file I-130 petitions on behalf of same sex spouses. These spouses were unjustly deprived of a benefit for years on end as a result of an unconstitutional statute, and they should not be required to wait that much longer for the I-130 petition to get approved.
The last few weeks have witnessed severe shocks to the health care system known as Obamacare. The President has issued mea culpas
for the not-ready-for-prime-time web site, Health.gov
, and for his campaign promise to Americans that if they liked their health insurance plan, they could "keep it. Period."
Americans who've lost their preferred health plan have also experienced shocks, of the sticker variety, when they learn the price of replacement coverage. Viewers of Washingtonian pratfalls who look at Beltway antics through the prism of immigration are neither surprised nor amused. There is no surprise to immigration stakeholders that a government web site intended to transform the way benefits requests are managed would fail, for we can spell "Transformation
" and "ELIS
" -- two immigration software programs with scads of dollars spent and little tangible product to justify the pathetic bang for the buck.
We are also little amused about promises broken, like the one where a newly elected President would address comprehensive immigration reform during his first year in office
. When it comes to immigration, the President's effort might better be dubbed, IfOnlyObamaCared. To be sure, he's tried the bully pulpit with no tangible success in the recalcitrant House.
But squawking is not PIPsqueaking -- a pragmatic and tangible way for the President to grant the 11 million undocumented among us respite from deportation through expanded use of Parole-in-Place or PIP, the discretionary power of the President under Immigration and Nationality Act (INA) § 212(d)(5)(A) to transform an unauthorized noncitizen in the U.S. into an individual with legal status
PIPsqueaking for the undocumented is a low-decibel measure that would position the undocumented to qualify for green cards through adjustment of status in the future under any of the otherwise available family- or employment-based immigrant visa categories. All that's required would be to grant PIP concurrently with another § 212(d)(5)(A)
benefit known as "advance parole" and with the issuance of an employment authorization document or EAD. This would allow the undocumented to work and pay taxes and to travel abroad for legitimate business or personal reasons, and then after reentering the U.S. to be essentially cleansed of such prior immigration violations as entry without inspection or failure to depart when required.
A PIP/advance-parole/EAD three-step wouldn't fix everyone's status violations (it wouldn't absolve those who have accepted unauthorized employment unless they are the spouse of a citizen or otherwise fall within a forgiveness provision). But it would go a long way to help the undocumented live in this country, under humane conditions, by giving them a chance to earn a living, buy a house or car, purchase insurance and care for their kids.
To its credit, the Obama Administration has approved PIP for citizens of the Commonwealth of the Northern Mariana Islands
whose work permits would otherwise have expired. More broadly, just last week the President's immigration-benefits agency, U.S. Citizenship and Immigration Services (USCIS), to its credit, issued a policy memorandum authorizing PIP benefits for the undocumented relatives (parents, spouses and children) of "active members of the U.S. Armed Services
, [as well as] individuals serving in the Selected Reserve of the Ready Reserve and individuals who have previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve." USCIS approved PIP eligibility while mindful that active and former U.S. military personnel "face stress and anxiety because of the immigration status of their family members in the United States." Thus, the USCIS memo decreed:
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Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.
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The President's choices are clear. He. . . . can use his substantial executive authority over immigration policy and make interim changes that alter the facts on the ground. He can establish by rulemaking a registration system that allows the undocumented to come forward, be screened for criminal history and security threats, and grant them temporary work permission until Congress gets to the heavy lifting on CIR.
Had he exercised more mojo than compromise on health care, he would have instead pushed for a simpler "Medicare for all" program that would not have required entanglement and enmeshment with insurance companies that cancel policies. Nor would he have needed a highfalutin web site for Americans seeking insurance to career through the myriad choices of coverage under the new health-care exchanges.
Had he pushed on immigration reform earlier in his first term, he'd not be facing the dirge of mourners for the failure of comprehensive immigration reform today. America loves to give second chances. This is Barack Obama's. PIPsqueak your way to immigration salvation, Mr. President.
by Cyrus D. Mehta
, ABIL Lawyer and Gary Endelman The Insightful Immigration BlogOn November 15, 2013, the USCIS issued a Policy Memorandum formalizing the granting of parole to persons who are present in the United States without admission or parole and who are spouses, children and parents of US citizens serving in the US military or who previously served in the US military. While parole traditionally applies to those who seek to come to the United States, the expansion of this concept to those already here is known as “parole in place”.
According to this memo, military preparedness can be potentially adversely affected if active members of the military worry about the immigration status of their spouses, parents and children. The memo makes a similar commitment to veterans who have served and sacrificed for the nation, and who can face stress and anxiety because of the immigration status of their family members. Such persons can now formally apply for parole in place (PIP) through a formal procedure pursuant to the ability of the government to grant parole under INA section 212(d)(5)(A). PIP would allow them to adjust status in the US rather than travel abroad for consular processing of their immigrant visas and thus potentially triggering the 3 or 10 year bars. As a quick background, an individual who is in the US without admission or parole cannot adjust status through an immediate relative such as a US citizen spouse, parent or son or daughter. This person is inherently inadmissible under INA section 212(a)(6)(A)(i), which provides:
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An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
Section 212(a)(6)(A)(i) renders an alien inadmissible under two related grounds: 1) an alien present in the US without being admitted or paroled or 2) an alien who arrives in the United States at any time or place other than as designated by the Attorney General.
The grant of PIP to a person who is present in the US without being admitted or paroled can wipe out the first ground of inadmissibility in section 212(a)(6)(A)(i). PIP would then also allow this person to adjust status in the US under section 245(a) - as the person needs to have been “inspected and admitted or paroled” – without needing to leave the US. The ability to adjust status through PIP would obviate the need to travel overseas and apply for the visa, and thus trigger the 3 or 10 year bar pursuant to INA section 212(a)(9)(B)(i) and (ii). Since there will be no departure triggering the 3 and 10 year bars, this person would no longer need to file a waiver or an advance provisional waiver
by demonstrating extreme hardship to a qualifying US citizen relative to overcome the 3 and 10 year bars before leaving the US.
So far so good, but how does one overcome the second ground of inadmissibility in section 212(a)(6)A)(i), which relates to “an alien who arrives in the United States at any time or place other than as designated by the Attorney General?” The memo skillfully interprets this clause as relating to an alien who is in the process of arriving in the US without inspection. Thus, the second ground only applies to an alien who is presently arriving in the US while the first ground applies to an alien who already arrived in the US without admission or parole. If the second ground is interpreted as applying to an alien who arrived in the past, then it would make the first ground superfluous, according to the memo. It would also then make the 3 year bar under INA section 212(a)(9)(B)(i) superfluous as a person who at any point arrived, if used in the past tense, at a place or time other than designated by the Secretary of Homeland Security would be permanently inadmissible rather than inadmissible for only 3 years. Thus, if the second ground of inadmissibility is no longer applicable with respect to an alien who has already arrived in the US, then the grant of PIP would allow such a person to adjust in the US by overcoming the first ground under INA section 212(a)(6)(A)(i).
The extension of PIP to the families of current or former military service men and women is a proper recognition of their contribution to the nation and an attempt to benefit those who have given so much to the rest of us. While such logic is compelling, why not expand its application to other instances where aliens have served and strengthened the national interest or performed work in the national interest? How about granting PIP to families of, outstanding researchers striving to unlock the mysteries of science and technology, those with exceptional or extraordinary ability, and key employees of US companies doing important jobs for which qualified Americans cannot be found? And there is also a compelling interest in ensuring family unification so that US citizens or permanent residents may feel less stressed and can go on to have productive lives that will in turn help the nation. All such people do us proud by making our cause their own and the need of their loved ones to come in from the shadows is real and present. Indeed, the non-military use of PIP was advocated by top USCIS officials several years ago in a memo to USCIS Director Mayorkas
, a memo leaked by its critics who wished successfully to kill it.
In the face of inaction on the part of the GOP controlled House to enact immigration reform, granting PIP to all immediate relatives of US citizens would allow them to adjust in the US rather than travel abroad and risk the 3 and 10 year bars of inadmissibility. Such administrative relief would be far less controversial than granting deferred action since immediate relatives of US citizens are anyway eligible for permanent residence. The only difference is that they could apply for their green cards in the US without needing to travel overseas and apply for waivers of the 3 and 10 year bars.
The concept of PIP can be extended to other categories, such as beneficiaries of preference petitions, which the authors have explained in The Tyranny of Priority Dates
. However, they need to have demonstrated lawful status as a condition for being able to adjust status under INA section 245(c)(2) and the memo currently states that “[p]arole does not erase any periods of unlawful status.” There is no reason why this policy cannot be reversed. The grant of PIP, especially to someone who arrived in the past without admission or parole, can retroactively give that person lawful status too, thus rendering him or her eligible to adjust status through the I-130 petition as a preference beneficiary. The only place in INA section 245 where the applicant is required to have maintained lawful nonimmigrant status is under INA section 245(c)(7), which is limited to employment-based immigrants. Family-based immigrants are not so subject. What about INA section 245(c)(2)’s insistence on “lawful immigration status” at the snapshot moment of I-485 submission? Even this would not be a problem. For purposes of section 245(c) of the Act, current regulations already define “lawful immigration status” to include “parole status which has not expired, been revoked, or terminated.” 8 C.F.R. section 245.1(d)(v). Indeed, even if one has already been admitted previously in a nonimmigrant visa status and is now out of status, the authors contend that this person should be able to apply for a rescission of that admission and instead be granted retroactive PIP. Thus, beneficiaries of I-130 petitions, if granted retroactive PIP, ought to be able adjust their status in the US.
There is also no reason why PIP cannot extend to beneficiaries of employment I-140 petitions. If this is done, would such persons be able to adjust status to lawful permanent resident without leaving the USA? In order to do that, they not only need to demonstrate lawful status, but also to have maintained continuous lawful nonimmigrant status under INA section 245(c)(7), as noted above. Is there a way around this problem? At first glance, we consider the possibility of using the exception under INA section 245(k) which allows for those who have not continuously maintained lawful nonimmigrant status to still take advantage of section 245 adjustment if they can demonstrate that they have been in unlawful status for not more than 180 days since their last admission. We would do well to remember, however, that 245(k) only works if the alien is “present in the United States pursuant to a lawful admission.” Is parole an admission? Not according to INA section 101(a)(13)(B). So, while retroactive PIP would help satisfy the 180 day requirement imposed by INA section 245(k)(2), it cannot substitute for the lawful admission demanded by section 245(k)(1). Even if an out of status or unlawfully present I-140 beneficiary who had previously been admitted now received nunc pro tunc
parole, the parole would replace the prior lawful admission. Such a person would still not be eligible for INA section 245(k) benefits and, having failed to continuously maintain valid nonimmigrant status, would remain unable to adjust due to the preclusive effect of section 245(c)(7). Similarly, an I-140 beneficiary who had entered EWI and subsequently received retroactive parole would likewise not be able to utilize 245(k) for precisely the same reason, the lack of a lawful admission. Still, the grant of retroactive PIP should wipe out unlawful presence and the 3 and 10 year bars enabling this I-140 beneficiary to still receive an immigrant visa at an overseas consular post without triggering the bars upon departure from the US. Thus, while the beneficiary of an employment-based petition may not be able to apply for adjustment of status, retroactive PIP would nevertheless be hugely beneficial because, assuming PIP is considered a lawful status, it will wipe out unlawful presence and will thus no longer trigger the bars upon the alien’s departure from the US.
There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done. The holistic approach to parole for which we argue is a prime example of this second approach. The term “status” is not defined anywhere in the INA. By ordinary English usage, “parolee status” is a perfectly natural way of describing someone who has been paroled. Parole is a lawful status in the sense that, by virtue of the parole, it is lawful for the parolee to remain in the United States, at least for the authorized period of time under prescribed terms and conditions. We credit David Isaacson for suggesting that there are other instances in the INA where lawful status does not automatically equate to nonimmigrant status: for examples, asylum status under INA Section 208 and refugee status under INA section 207 are lawful statuses, even though strictly speaking, neither an asylee nor a refugee is a nonimmigrant according to the INA Section 101(a)(15) definition of that term. The Executive can easily revise the memo for military families to declare parole under INA section 212(d)(5) a status because it has already declared parole a lawful status for NA 245(c)(2) purposes under 8 C.F.R. 245(d)(v), asylum a lawful status under INA section 208, and refugee a lawful status under INA section 207. See
8 C.F.R. 245.1(d)(iii)-(iv). In all three cases, people are allowed into the United States in a capacity that is nether legal permanent residence nor, strictly speaking, nonimmigrant. True, INA section 101(a)(13)(B) does say that parolees are not “admitted”, but is one who enters without admission and is granted asylum under INA 208 ever been “admitted” per the statutory definition of that term? Yet, such a person has a lawful status.
One of the biggest contributors to the buildup of the undocumented population in the US has been the 3 and 10 year bars. Even though people are beneficiaries of immigrant visa petitions, they do not wish to risk travelling abroad and facing the 3 or 10 year bars, as well as trying to overcome the bars by demonstrating extreme hardship to qualifying relatives, which is a very high standard. Extending PIP to people who are in any event in the pipeline for a green card would allow them adjust status in the US or process immigrant visas at consular posts, and become lawful permanent residents. These people are already eligible for permanent residence through approved I-130 and I-140 petitions, and PIP would only facilitate their ability to apply for permanent residence in the US, or in the case of I-140 beneficiaries by travelling overseas for consular processing without incurring the 3 and 10 year bars. PIP would thus reduce the undocumented population in the US without creating new categories of relief, which Congress can and should do through reform immigration legislation.
There is no doubt that the memo for military families is a meaningful example of immigration remediation through executive initiative. Yet, it is one step in what can and should be a much longer journey. In the face on intractable congressional resistance, we urge the President to take this next step.
(Guest writer Gary Endelman is Senior Counsel at FosterQuan)
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The key word in the embassy report apparently is the term “relinquishment.” That means, a knowledgeable source told us, that she did not “formally renounce her U.S. citizenship under 349(a)(5) Immigration and Nationality Act, but took Swiss citizenship with the intent to lose her U.S. citizenship.” As opposed to formal renunciation — a much more complex process, we were told — there are no “tax or other penalties for loss of citizenship in this fashion.”
Unfortunately, there are several problems with this story.
- Why did the U.S. embassy issue a report to the press about this? What happened to personal privacy? The Department of State is required by law to report the names of all expatriates to Internal Revenue Service, which publishes them quarterly in the Federal Register, but that is a far cry from issuing a report to the press about a celebrity.
- Relinquishment, which is terminating U.S. citizenship based on proof that you have performed an expatriating act with the contemporaneous specific intent to expatriate, is generally more complex than renunciation, not less. A big trap for the unwary is using your U.S. passport for any purpose after the expatriating event. That contradicts the intent to relinquish that is required for the expatriating act to cause loss of citizenship.
- The tax consequences of relinquishment are identical to those of renunciation. The effective date of relinquishment for tax purposes is the date you tell the U.S. government about it, not the date of the expatriating act, so it is not retroactive for tax purposes. An “exit tax” applies to most expatriates who have a net worth of $2 million or more, or who are not fully tax compliant.
- There is a section of the immigration law that attempts to banish tax-motivated expatriates from the United States. When the Office of General Counsel of the former Immigration and Naturalization Service was asked to confirm that this section does not apply to relinquishment they said don’t count on it. The bills that Senators Reed and Schumer have introduced to expand the scope of this section apply equally to renunciation and relinquishment, and if passed they will be retroactive to expatriations with an effective date of 2008 or later.
So it is not correct to say that there are no "tax or other penalties for loss of citizenship" by relinquishment rather than renunciation. The penalties are the same either way.
The times they are a-mournin' for proponents of immigrant rights and immigration reform. While Pope Francis shows the world how to love
by embracing and praying with a tumor-scarred man, immigrants-rights activists and immigration-reform pragmatists are at war among themselves over tactics in the battle to achieve just solutions to our nation's dysfunctional immigration problems. They who should be allies hurl vitriol and worse at one another
, as Republicans in the House and outside the chamber say that even piecemeal solutions won't occur before the current session
ends, but may surface in 14 months
. Meanwhile, as the House fiddles and change-agents fuss, the "Great Chopper" that is America's immigration bureaucracy continues to disaggregate lives, businesses and dreams, turning them into mourning mush. No, I'm not talking about the immigration-prison/deportation industrial complex
which whirs at grotesquely efficient and fevered speeds -- that topic is grist for another post.
Rather, today's blog riffs on the theme of immigration inanity played out in my last post
and in several others ("Immigration Good Behavior -- a Riddle Riddled with Riddles
," "Immigration Absurdity: You Can Work Here But You Can't Be Here
," and "Immigration Indifference - The Adjudicator's Curse
Today's asininity is all about abandonment, an immigration-agency notion confected, mostly without stakeholder input, by work-shirking bureaucrats rather than through the orderly, judicially-envisioned modus operandi
of enacted legislation and promulgated regulations.
Immigration abandonment holds that a foreign entrant who applies to extend or change nonimmigrant visa status in the U.S.
, and who has paid almost 300 bucks in filing fees just to make the ask, will not receive a decision on the merits but instead be peremptorily denied if s/he leaves the U.S. before an often dilatory adjudicator gets around to considering the application.
Immigration abandonment also plays out in the process of applying for a green card. Although the latter form of short-changing is moistened with the sprinkled holy water of an actual agency regulation (8 CFR § 245.2(a)(4)(ii)(A)-(D)), an adjustment of status applicant -- like his nonimmigrant cousin -- is still treated as having relinquished the desire to become a permanent resident if s/he leaves the U.S., however temporarily, without special dispensation, notwithstanding that the departing individual has no desire to forswear permanent residence and despite the payment of up to $2,070 in application fees.
In the case of the green card applicant, immigration abandonment can lead -- at best -- to delay and squandered filing fees, and -- at worst -- to ineligibility. The immigrant visa quota may have closed or retrogressed in the interim, thereby precluding immediate reapplication for adjustment of status. Or, the factual basis or legal grounds to adjust status may no longer exist; the American Dream of permanent U.S. residence and ultimately citizenship thus evaporating into the ether created by work-avoidant immigration officials.
The consequences may be equally or more tragic in the nonimmigrant context whenever a temporary entrant seeks to extend/change visa status in the United States but needs to depart the U.S. while the application is pending. To understand why, the reader must first consider the supposed rationale and contorted logic served up by U.S. Citizenship and Immigration Services (USCIS) in this typical formulation:
The astute reader will have noted some whopping non sequiturs in the USCIS's explanation. Submission of either a timely request to extend/change status or an untimely request caused by extraordinary circumstances beyond the applicant's control (as permitted by regulation) is a reflection of behavior demonstrating a desire and intent to play by, rather than flout, the rules. Moreover, departing the U.S. need not necessarily be construed as a failure to maintain the "previously accorded nonimmigrant status." It may signify nothing more or less than a departure from the country. What the USCIS's immigration-abandonment ploy really reveals is an agency's acceptance of money under false pretenses in return for a promised service (the adjudication of a request for an immigration benefit) that is never delivered. Some would call that fraud. It is worse than fraud, however, because it also involves a waste of government resources and the utter disregard of a very relevant statute.
The statute is Immigration and Nationality Act § 212(a)(9)(B)(iv) [8 U.S. Code §1182(a)(9)(B)(iv)]. This law allows a law-abiding foreign citizen to avoid temporarily the imposition of the penalties of visa voidance and the three- and ten-year bars to reentry for his or her "unlawful presence (UP)" in the United States.
UP arises when an individual stays in the country longer than officially permitted, as specified in a government document containing a date-certain deadline imposed by the Attorney General or his statutory successor, the Secretary of Homeland Security. This statutory postponement or "tolling" of any period of UP is allowed in the following situation:
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Tolling for good cause.--
In the case of an alien who--
has been lawfully admitted or paroled into the United States,
has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General [or Secretary of Homeland Security], and
has not been employed without authorization in the United States before or during the pendency of such application,
[then] the calculation of the period of [UP] time specified . . . shall be tolled during the pendency of such application, but not to exceed 120 days.
When USCIS takes money without providing a decision on the merits of the change or extension of status application, then a consular officer deciding whether to issue or refuse a nonimmigrant or immigrant visa must do what the USCIS adjudicator failed to do. The consular officer must determine whether the change/extension of status application was in fact "nonfrivolous" in order for UP to be tolled.
The failure of one officer to do his or her duty thus engenders government waste when another officer in a different department must deploy scarce resources and review the application (for no additional fee). Had the USCIS not relied on the immigration-abandonment notion as a way to shirk work, and had the adjudicator approved the application, the approval would essentially confirm that the application to extend or change status was indeed "nonfrivolous," as that term is defined:
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To be considered nonfrivolous, the application must have an arguable basis in law and fact and must not have been filed for an improper purpose (e.g., as a groundless excuse for the applicant to remain in the U.S. to engage in activities incompatible with his/her status). To find an application nonfrivolous, it is not necessary to determine that the INS [USCIS] would have ultimately ruled in favor of the alien. 9 Department of State Foreign Affairs Manual § 40.92 N5 “Tolling” for Good Cause
* * *
So, no matter whether Congress dithers and dallies, and reformers on the left bicker and bite, the USCIS -- the adjudicative arm of the Great Chopper -- must be retooled. The agency must do its job and decide applications for which fees have been fully paid on their merits. USCIS must abandon immigration abandonment.
, ABIL PresidentMusings on Immigration
Belief is a powerful, motivating force. A force that can literally compel action, both for good or evil. For me, knowledge of and belief in a power greater than myself motivates virtually all that I do. I believe that we have a responsibility as human beings to be kind to others, to assist when able, to lift when necessary, and to reach out when required. As lawyers, and particularly as immigration lawyers, I believe that the need for the actions of assisting, lifting and reaching out are even more acute.
We live in a time of great political turmoil. Regardless of which of the major political parties with which you affiliate, we can all acknowledge that not enough is being done, not only by the government, but by society in general, to lift the lives of our fellow citizens. Part of the reason we see this failing by government and by ourselves is that many people demonize “the others,” seeking to blame “the others” for the problems with which they themselves have to deal. As a result, the topic of “Immigration” has become a great political lightening rod, a catalyst for debate on the evils versus the good of “the others.” The debate on immigration reform has sharpened the line between those who are distrustful, and perhaps even afraid ofnew immigrants, and those who believe that immigration is good for our society and our country.
What I have observed over that last several years is that most of us love the individual immigrant; the one who has benefited us with scientific discoveries, or has helped in our yards, or with our children. Concerns seem to come when more than one of these favored immigrants congregates with others and creates an impact on the local community. Is this not the very definition of fear? Being afraid of what is new, being concerned with change to who we are as a country?
Fortunately, we are a country that always seems to overcome these bouts of xenophobia, with an increased tolerance of, and perhaps even a greater affection for immigrants. We honor and revere those immigrants who came before during those times of great waves of immigration, but as a society we typically fail to recognize at the time it happens, the net benefits that come to America with those who seek to share with us in this great American Experiment.
I believe, and so remain optimistic that soon, as a country, we will come to the realization that immigration is not the cause of our myriad problems, but rather, one of the important solutions. I believe we will soon come to our senses as a country and understand that by fixing our immigration system, both by adjusting the legal aspects that merit reform, and by forgiving those who have forged a future in this country through their hard labor, we will resume our path forward. More importantly, we will do so without demonizing millions of people for choosing to improve their lives. These same people who entered into and lived in the United States with the tacit approval of the government, should, in fact, pay a price for disobeying the law, but with the understanding that they have and will contribute to this country.
I believe that we as immigration lawyers have a very specific obligation to help shape the public debate, clear up misunderstandings, and clarify for the American people the realities of our immigration system. This must be done not only through the media, but through reaching to our neighbors, and our friends. The voices of the anti-immigration movement, like all other negative cries, are easily heard and believed. Compare it to negative political advertising—scare tactics. These are used because they work. It is much harder to get a positive message across. Yet, I believe that such a positive message is one most Americans yearn to hear and understand. We have the obligation to spread that positive message.
I also believe we have an affirmative and very substantial obligation to assist the immigrant. We have to reach out; we have to assist, we have to lift up our clients. How we act on behalf of a client, how hard we try, how bold we are in their defense is the lesson that our client will pay forward as she becomes part of the great American Experiment.
Ultimately, I believe that being an Immigration Lawyer is more than a career choice, or an area of law to practice. I believe it is a calling, one that each of us who are immigration lawyers has chosen. One that actually changes lives and affects the courses of life of millions of Americans for generations to come. I believe that service to our fellow man, as immigration lawyers, is simply service to our own belief in the greater powers to which we each individually answer.