by Angelo Paparelli, Past ABIL President
Nation of Immigrators

The dysfunctional immigration world continues to spin dangerously out of control. 

Do-nothing House Republicans (and five pusillanimous Democrats) commit political seppuku with the passage of the ENFORCE Act  -- a going-nowhere bill which would authorize civil suits against the President to dissuade him from doing something to husband scarce prosecutorial resources and ameliorate the harsh consequences of deportation for noncriminal violators of immigration regulations.  As Rep. Luis Gutiérrez reminds us, prominent Republican House leaders advocated for the exercise of presidential authority and prosecutorial discretion before they turned against it -- the only difference being that this time they cannot suffer the insufferable, namely, that it be used by President Obama.

For their part, House Dems file a discharge petition seeking a vote on the Senate-passed comprehensive immigration reform bill, S. 744, while Minority Leader Nancy Pelosi admits that the votes are not there to prevail, thus making the effort look like a stunt pursued for political advantage. 

Provocateur Ann Coulter spews anti-immigration vitriol at the gathering known as CPAC, the Conservative Political Action Conference, as she attacked “MSNBC, where they are celebrating the browning of America," compared immigration reform to “rape,” claimed that immigrants would upend the Social Security and Medicare programs, and espoused vigilantism (“If you pass amnesty, that's it. It's over, and then we organize the death squads for the people who wrecked America”).

Elsewhere in the land, activists for comprehensive immigration reform fast, while undocumented immigrants are denied bar licenses in Florida, but allowed to practice law in California.

Meanwhile, a U.S. citizen child must travel to Rome for a visit with Pope Francis -- a true friend of legal immigration -- and gains the release of her dad from immigration detention. This happens just before the President and the Pope meet to discuss immigration, an act that would perhaps be more meaningful had the Obama Administration, in releasing its proposed FY 2015 budget, not reflected conflicting priorities and the malapportionment of heavier spending on immigration enforcement than on benefits and immigrant integration.

All this time, U.S. Citizenship and Immigration Services (USCIS) has continued since December to make do without a permanent leader.  Following the departure of Alejandro Mayorkas, the erstwhile and accomplished USCIS Director, appointed to serve as Deputy Secretary of Homeland Security, an acting director, career officer Lori Scialabba, has served as its interim leader and caretaker. While this beleaguered agency with a huge and hugely important mission and long-endemic problems has shown spunk and commendable results in some areas, such as public engagement, a new online "e-Request" form for simple-problem resolution, and the EB-5 immigrant-investor domain, growing problems only proliferate.

The President's nominee as new USCIS Director, Leon Rodriguez, a seasoned federal prosecutor and Director of the Office for Civil Rights of the Department of Health and Human Services, may be recommended on April 3 in an Executive Business Meeting of the Senate Judiciary Committee. Mr. Rodriguez, whose "grandparents fled anti-Semitism and poverty in Turkey and Poland in the late teens and early 20’s to come to Cuba where [his] parents were born," only later to seek refuge from the Castro regime in the U.S., has offered tantalizing insights into how, if approved by the Senate, he might tackle the daunting job of USCIS Director, especially in reply to Sen. Grassley's queries. 

In written answers to various Senators' questions, he reaffirms his belief in the proper use of prosecutorial discretion and the need to protect internal agency whistleblowers from retaliation, agrees to meet with union representatives of USCIS employees, expresses support for recent USCIS reforms of the EB-5 program and states that in limited circumstances it is incumbent upon the USCIS Director to intervene in a pending case when the "outcome of adjudication is wrong, or when adjudication may present a legal, factual, or policy issue of broad application."

Unfortunately, the Senators' written questions to Mr. Rodriguez ignored many problems and challenges facing USCIS.

One of the most pressing is the L-1 intracompany-transferee visa category and the ever mounting rates of denials by USCIS of  employer petitions seeking L-1B “specialized-knowledge” workers.  As reported in the latest USCIS dataset (released through a Freedom of Immigration Act request by the American Immigration Lawyers Association), although as recently as FY 2006 the agency denied only 6% of L-1B petitions, rejections for lack of specialized knowledge jumped to 34% in FY 2013, after accelerating to 30% in FY 2012 – a five-fold increase in the denial rate even though the agency has not published any new regulation changing the adjudication standard. In a press release accompanying its recent report ("“L-1 Denial Rates for High Skill Foreign Nationals Continue to Increase”), the National Foundation for American Policy (NFAP) observed:

The NFAP also noted an alarming nationality-based trend in L-1B denials adversely affecting Indian citizens (a pattern also observed and critiqued in this blog):

The agency has not offered an explanation of the deterioration in L-1B approval rates or the harsher and disfavored screening of petitions for Indian workers.  Could this be a form of "taking-the-law-into-your-own-hands" in the face of perceived loss of IT jobs by U.S. workers?  Is it an off-the-shelf government a la Oliver North?  Or, is there "a bias [because] there is a sentiment that Indians are taking away American jobs"? 

Only a permanent and reform-minded USCIS Director, ushered forcefully through the Senate, even if Democrats are forced to deploy the "Nuclear Option," would have the clout to address this disturbing trend in lawless adjudication.  Only an outsider with legal background sufficient to master the complexities of the Immigration and Nationality Act and a history of facing and overcoming entrenched bureaucratic lethargy and resistance, could fix the many daunting challenges still unaddressed at USCIS.  Let's hope that Mr. Rodriguez is just such an individual and that his nomination is swiftly approved.

by Cyrus D. Mehta, ABIL Lawyer and Gary Endelman
The Insightful Immigration Blog

Unlike many, if not most countries, the long reach of Uncle Sam’s tax laws extend far beyond geographic boundaries to affect citizens and lawful permanent residents (LPR) on an extraterritorial basis. Status not physical presence triggers the tax obligation. The need for LPRs living abroad to comply with US tax regimes is another example of how,  since enactment of the Immigration Reform and Control Act of 1986, immigration has become increasingly and inextricably intertwined with all other aspects of American life and law. Beyond that, lawful permanent residence is not only a legal status but an economic one as well with tax implications that intimately affect the maintenance of such status and the fiscal consequences of its continued exercise. The impact of the individual health care mandate under the Affordable Care Act (ACA), also popularly known as Obamacare, upon LPRs who reside overseas is the most recent example of a growing tension between a domestically focused immigration policy and the increasingly global nature of both individual and national economic conduct in the global economy of the 21^st century.

A number of LPRs, also known as green card holders, temporarily live outside the United States for a variety of legitimate reasons. In a globalized world, LPRs may more readily find employment assignments in other countries or they may need to be outside the United States to look after a sick relative. 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 interpretation by the Circuit Courts, and although the LPR may remain outside the United States for an extended period of time, the visit may still be considered temporary so long as there is an intention to return. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:

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.

For a more extensive review on this subject, we refer you to our article, Home Is Where TheCard Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849, July 1, 2008.

With the deadline period for enrollment on March 31, 2014, a number of non-citizens, including LPRs,  are eligible for health care benefits under the ACA.  The ACA requires all “applicable individuals” including LPRs to maintain “minimum essential health coverage,” and the failure to do so will result in a penalty when they file their federal income tax returns for year 2014 onwards. The “minimum essential coverage” is required on a monthly basis, but only during those months that qualify people as applicable individuals.”  On March 26, HHS released guidance which clarifies that many consumers who were unable to enroll through the marketplace before the March 31 deadline are eligible for a special enrollment period (SEP). The SEP gives qualifying consumers additional time to get health coverage without being assessed a penalty. To be eligible for the SEP, the consumer must have experienced one of the barriers identified in the guidance. These barriers include experiencing errors related to immigration status and being transferred between the marketplace and state Medicaid/CHIP agency. The additional time available to apply depends on the specific barrier and when it is resolved.

An LPR residing outside will need to purchase health insurance under the ACA.  There are circumstances under which LPRs can still be deemed to be maintaining minimum essential coverage even when they are outside the United States if they meet the Internal Revenue Service test for shielding their foreign income from US taxation.

Under 26 CFR 1.5000A-1, "An individual is treated as having minimum essential coverage for a month--

(i) If the month occurs during any period described in section 911(d)(1)(A) or section 911(d)(1)(B) that is applicable to the individual".

In turn, section 911(d)(1) provides:(d) Definitions and special rules
For purposes of this section--

(1) Qualified individual

The term “qualified individual” means an individual whose tax home is in a foreign country and who is—

(A) a citizen of the United States and establishes to the satisfaction of the Secretary that he has been a bona fide resident of a foreign country or countries for an uninterrupted period which includes an entire taxable year, or

(B) a citizen or resident of the United States and who, during any period of 12 consecutive months, is present in a foreign country or countries during at least 330 full days in such period.

Section 911 of the Internal Revenue Code allows certain US citizens and LPRs to shield their foreign income from US taxation by virtue of living outside the United States. The foreign earned income exclusion for 2013 is $97, 600.

Since the full consequences of decisions on Obamacare will not become plainly evident until April 2015, any interpretations advanced now must be necessarily both preliminary and tentative, subject to modification if and when the IRS provides future guidance. It is this continuing involvement of the IRS, as well as the byzantine complexity of the ACA itself, that commends a healthy dose of modesty to all commentators. LPRs who are eligible to take the section 911 exemption because they are not physically present in the United States for a full 330 days within a 12 month consecutive month period are treated as having minimum coverage for that 12- month period. It is still not clear whether  LPRs would have to elect to claim the foreign earned income exclusion by filing Form 2555 with  their tax returns so that they be deemed to have minimum essential coverage or whether the IRS will develop a special form for that purpose.

While it is true that only a US citizen can claim the bona fide resident of a foreign country exception, an LPR, if s/he is also tax resident in a county with which the US has an income tax treaty, can use the bona fide residence test pursuant to the treaty’s nondiscrimination provisions to also claim the foreign earned income exclusion. The bona fide residence test can be utilized even if the individual has not been physically present in the United States for 330 or more days.   If that is the case, can a non US citizen of a treaty country also claim minimum coverage under the ACA?

For example, the nondiscrimination provision of the US-India tax treaty, states in relevant part:

Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected. This provision shall apply to persons who are not residents of one or both of the Contracting States.

This language in the US-India tax treaty would seem to apply to the ACA health mandate exemption, since it is taxation or a requirement connected therewith. After all, the Supreme Court in National Federation of Independent Businesses v. Sebelius, especially Chief Justice Roberts’ opinion, upheld the constitutionality of the health mandate in the ACA by characterizing it as a tax. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” according to Chief Justice Roberts. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” the Chief Justice further opined.  While the commerce power apparently has its distinct limits for the Roberts Court, the power to tax does not. For this reason, Solicitor General Donald Verelli, who suggested the possible utility of such reasoning to the Court, may turn out to have singular, if unexpected importance.

On the other hand, it could be argued that the ACA statutes refer only to section 911 and not to treaties.  Also, the treaties define the scope of their application, which may have to be revised to include the ACA penalty. The US-India treaty, for example, applies to the following US taxes:

“In the United States, the Federal income taxes imposed by the Internal Revenue Code (but excluding the accumulated earnings tax, the personal holding company tax, and social security taxes), and the excise taxes imposed on insurance premiums paid to foreign insurers and with respect to private foundations (hereinafter referred to as "United States tax")”

Therefore, unless the IRS provides more specific guidance, it is not clear at this time whether an LPR who takes the bona fide residence exception for purposes of shielding foreign income can also be deemed to have the minimum essential coverage.

LPRs who seek to claim a section 911 type foreign earned income exclusion to get out of the mandate under ACA should beware of adverse consequences on their LPR status. Living outside the United States for 330 days or more in itself could lead to a finding of abandonment if the LPR cannot successfully establish that his or her visit abroad was temporary under Singh v. Reno, supra. Even if LPRs assert that their trip abroad was temporary, claiming a section 911 benefit to avoid the health insurance coverage under Obamacare could bolster the government’s charges that they abandoned their status. As we discussed in The Taxman Cometh: When Taking a Foreign Earned Income Exclusion On Your Tax Return Can Hurt Your Ability To Naturalize, taking a section 911 exemption can also impair the applicant’s ability to show that he or she did not disrupt continuity of residence during the relevant 5 or 3 year period. INA § 316(b) states that an absence from the United States of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. Indeed, utilizing the bona fide residence exception, if it is allowed for LPRs under the ACA, would be more perilous than the physical presence exception as the individual must declare a residence in a foreign country. Another issue worth noting for people who claim bona fide residence under tax treaties is that they must file Form 8833 to do so.  Page 4 of the instructions to that form warns that this sort of bona fide residency claim for an LPR under a tax treaty triggers the exit tax for Long Term Residents (LTR):

If you are a dual-resident taxpayer and a long-term resident (LTR) and you are filing this form to be treated as a resident of a foreign country for purposes of claiming benefits under an applicable U.S. income tax treaty, you will be deemed to have terminated your U.S. residency status for federal income tax  purposes. Because you are terminating your U.S. residency status, you may be subject to tax under section 877A and you must file Form 8854, Initial and Annual Expatriation Statement. You are an LTR if you were a lawful permanent resident of the United States in at least 8 of the last 15 tax years ending with the year your status as an LTR ends.

LPRs who live outside may wish to seek other ways to claim minimum essential coverage under the ACA if they do not wish to risk jeopardizing their green cards or their ability to naturalize in the future. For instance, LPRs who have health insurance provided by foreign insurers may qualify as having minimum essential coverage if the coverage is recognized by the Secretary of Health and Human Services. Coverage under group health plans provided through insurance regulated by a foreign government may also be recognized as minimum essential coverage, depending on specific circumstances and whether those plans have received U.S. approval. There are also the following statutory exemptions:

Religious conscience. Membership of a religious sect that is recognized as conscientiously opposed to accepting any insurance benefits. The Social Security Administration administers the process for recognizing these sects according to the criteria in the law.

Health care sharing ministry. Membership of a recognized health care sharing ministry.

Indian tribes.  (1) Membership of a federally recognized Indian tribe or (2) an individual eligible for services through an Indian care provider.

Income below the income tax return filing requirement. If the individual’s income is below the minimum threshold for filing a tax return. To find out if you are required to file a federal tax return, use the IRS Interactive Tax Assistant (ITA).

Short coverage gap. Going without coverage for less than three consecutive months during the year.

Hardship. Suffering a hardship that makes one unable to obtain coverage, as defined in final regulations issued by the Department of Health and Human Services.

Affordability. Unable to  afford coverage because the minimum amount the individual must pay for the premiums is more than eight percent of household income.

Incarceration. Being in a jail, prison, or similar penal institution or correctional facility after the disposition of charges against the individual.

Not lawfully present. Not being a U.S. citizen, a U.S. national or an alien lawfully present in the United States.

LPRs can also avail of the short coverage gap exemption. In general, a gap in coverage that lasts less than three months qualifies as a short coverage gap. If an individual has more than one short coverage gap during a year, the short coverage gap exemption only applies to the first gap.

LPRs who fail to maintain the required minimum essential coverage must pay a penalty known as the “individual shared responsibility payment.” In general, according to the IRS, the payment amount is either a percentage of your income or a flat dollar amount, whichever is greater.  The individual will owe 1/12th of the annual payment for each month he or she (or dependents) do not have coverage and are not exempt. The annual payment amount for 2014 is the greater of:

1 percent of household income that is above the tax return threshold for the indvidual’s filing status, such as Married Filing Jointly or single, or

the family’s flat dollar amount, which is $95 per adult and $47.50 per child, limited to a maximum of $285.

The individual shared responsibility payment is capped at the cost of the national average premium for the bronze level health plan available through the Marketplace in 2014. The individual will make the payment when he or she files the 2014 federal income tax return in 2015.

For example, a single adult under age 65 with household income less than $19,650 (but more than $10,150) would pay the $95 flat rate.  However, a single adult under age 65 with household income greater than $19,650 would pay an annual payment based on the 1 percent rate.

If an LPR chooses to pay the penalty instead of purchasing insurance, and fails to pay the penalty or delays in making the payment,   this would need to be disclosed on an N-400 application relating to whether the applicant owes any taxes. This too could jeopardize the naturalization application, and would bring the penalty section of the ACA directly into the context of immigration issues. Furthermore, an LPR opting for the penalty over health insurance may create the impression, whether intentional or unintended, that he or she may not be maintaining ties with the US, further bolstering the government's charge of abandonment of LPR status.

The ACA is connected to immigration issues, and it behooves a careful practitioner to review the provisions of the ACA as they apply to non-citizens, and LPRs in particular. The interconnectedness of all these issues to the authors is the larger and more widely significant point, such as how seeking an exemption from the health insurance mandate can trigger potential loss of LPR status,  invocation of the exit tax, or the ineligibility to become a US citizen in the future. No longer can any of these decisions be made in a vacuum without consideration of the broader consequences.  The practice of immigration and tax law must invite the collaboration of experts from both disciplines.

by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

Imagine for a moment that, since you were nine, your parents had told you that you were a U.S. citizen.  And not just told you: your father filed papers with the U.S. government, and obtained official proof of your citizenship.  You grew up in the United States from age nine onward as a U.S. citizen, attended school and college here, and got a job here.  Imagine further that more than twenty years later, the government suddenly told you that your parents had been wrong: you were not a U.S. citizen after all, and thus you had no right to be here.

Surely, you would think after recovering from your initial shock, this must be because your father did something improper back when you were a child.  Perhaps he had been lying to the government, and to you, all along?  Perhaps the papers he filed with the government to obtain proof of your citizenship were fraudulent?  Surely he must have done something wrong, for the government to take away your citizenship after all these years.  Surely they would not simply take away the citizenship you had always thought you had, unless there were some fault on your family’s side.

But if that was what you thought, it is you who would be wrong.  This is the story of Abdo Hizam, who the State Department decided in 2011 was not actually a U.S. citizen, even though they had repeatedly documented him as a citizen since 1990.  According to the State Department, it was the government, not Hizam or his father, who made the mistake; and yet it is Hizam, not the government, who must pay the price.  On March 12, 2014, the Court of Appeals for the Second Circuit, in the case of Hizam v. Kerry, ruled that the State Department was right, and that Hizam has no legal remedy.

Abdo Hizam was born in 1980.  As recounted in a 2012 New York Times article, his father, a naturalized U.S. citizen, worked at that time at a Chrysler plant in Michigan, while his mother was living in Yemen.  In 1990, as explained in the Second Circuit’s opinion, Hizam’s father submitted an application for a consular report of birth abroad (“CRBA”) for his son, which even the government agrees was entirely truthful, and which was granted, documenting Hizam as a U.S. citizen.  A CRBA has “the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction” according to 22 U.S.C. §2705.

Also in 1990, Hizam’s maternal grandparents, who like his father lived in Michigan, visited Yemen and brought Hizam back to the United States. After moving to the United States with his grandparents, Hizam grew up here and built his life here.  As the Second Circuit explained:

Hizam v. Kerry slip op. at 7.

When Hizam in 2009 sought to obtain CRBAs and U.S. passports for his own children, the State Department began a review of his citizenship status that ended in the cancellation of his passport and CRBA on the ground that he was not a U.S. citizen.  As the Second Circuit explained:

Hizam v. Kerry slip op. at 8.

The problem, it appears, was that Hizam’s father’s CRBA application for him had been adjudicated based on the wrong version of the relevant statute.  Generally, the law governing the acquisition of citizenship by a child is that in effect at the time of the child’s birth.  The law had changed between the time of Hizam’s birth and the time that his father applied for his CRBA (in 1986 to be precise), however, and the consular officer seems to have applied the new version of the statute, in effect at the time of the application, rather than the old version, in effect at the time of Hizam’s birth.  To quote again from the Second Circuit’s opinion:

Hizam v. Kerry slip op. at 6-7.

Hizam sued for the return of his CRBA, and won in the district court, but was rebuffed at the Second Circuit.  The Court of Appeals concluded that the statute authorizing the State Department to revoke CRBAs was not impermissibly retroactive, and, perhaps more startlingly, that the State Department’s long delay in correcting its error, even though undeniably prejudicial to Hizam, did not entitle him to any remedy despite the compelling equities of his case.  As the Court explained:

Hizam v. Kerry slip op. at 20-21. The Court quoted the State Department’s representation that it “has brought the matter to the attention of [USCIS], and will continue to support other lawful means to provide relief to Hizam, including a private bill in Congress should one be introduced.”  Id. at 22.  If no private bill is introduced, there is no obvious route back to citizenship or even lawful permanent residence for Hizam, absent further factual developments not evident from the Second Circuit decision.

It is worth pausing at this point to discuss some of the “several other avenues to citizenship” that the Court acknowledged Hizam “could have pursued but are now foreclosed to him.”  Hizam v. Kerry slip op. at 21.  Had Hizam and his father been notified of the problem before Hizam turned 18, for example, Hizam’s father could have sought expedited naturalization of his son under INA §322, 8 U.S.C. §1433.  That provision, as it existed in the years before 2000, allowed a U.S. citizen parent to apply for expedited naturalization of a child if, among other things, the parent had been physically present in the United States for the period of five years, two after the age of fourteen, that would be required to transmit citizenship automatically to a child born after 1986.  See See 8 U.S.C. §1433(a)(5) (1999).  (Under current law, INA §322 applies only to children residing outside the United States with their U.S. citizen parents, likely because under INA §320, a child under the age of 18 who is residing inside the United States as a lawful permanent resident in the legal and physical custody of a U.S. citizen parent becomes a U.S. citizen automatically, without the need for a separate application other than to provide evidence of the status they have already come to possess.)  Or, if the problem had been discovered after Hizam turned 18 but before he turned 21, his father could perhaps have sponsored him for lawful permanent residence as the immediate relative of a U.S. citizen.  See INA §201(b)(2)(A)(i) (describing “children . . . of U.S. citizens”) as immediate relatives; INA §101(b)(1) (describing a “child” in part as “an unmarried person under twenty-one years of age”).  Now, however, neither of those options are available.

One small consolation for Mr. Hizam is that he likely qualifies as inspected and admitted to the United States, should he in the future, for example, enter into a bona fide marriage with a U.S. citizen and seek adjustment of status under INA §245(a) as an immediate relative of that U.S. citizen.  Under the rule of Matter of F-, 9 I&N Dec. 54 (Reg. Comm’r 1960, Asst. Comm’r 1960), one who innocently enters the United States under a claim of U.S. citizenship that turns out to be incorrect is inspected and admitted, even though one who enters under a knowing false claim of U.S. citizenship is not.

The BIA recently restated “the long-standing rule that an alien who enters the United States by falsely claiming United States citizenship effectively eludes the procedural regularity of inspection by an immigration officer.”  Matter of Pinzon, 26 I&N Dec. 189, 191 (BIA 2013). But since Matter of Pinzon cited Matter of F- with approval, see Matter of Pinzon, 26 I&N Dec. at 191, the best reading of Matter of Pinzon appears to be that “falsely claiming United States citizenship” within the meaning of that case implies doing so intentionally, knowing the claim to be false.  This would be consistent with the conclusion of the State Department and the DHS General Counsel that inadmissibility under INA §212(a)(6)(C)(ii)(I), which refers to “Any alien who falsely represents, or has falsely represented himself or herself to be a citizen of the United States for any purpose or benefit under this Act . . . or any other Federal or State law,” applies only to “a knowingly false claim”, as explained at Note 11(b.)(1) of Volume 9, section 40.63 of the State Department’s Foreign Affairs Manual.  In normal English usage, we would not describe someone who says something which they fully believed to be true as having “falsely” claimed it—rather, we might say that they had done so “incorrectly”, or “erroneously”.  An innocent but erroneous claim to U.S. citizenship is neither a ground of inadmissibility, nor a basis for invoking the exception to inspection and admission recognized by Matter of Pinzon. Thus, it can still qualify as an inspection and admission under Matter of F-.

Still, to say to someone in Hizam’s position that he has been inspected and admitted, but has no right to remain in the United States unless he may seek adjustment of status as the immediate relative of a U.S. citizen, is extremely harsh.  Being well over the age of 21, and married, he is no longer the immediate relative of his U.S. citizen father.  See INA §201(b)(2)(A)(i); INA §101(b)(1).  And because Hizam’s father believed him to be a U.S. citizen, he had no reason to file a petition for his son before his son turned 21 and got married.  See INA §201(f)(1) (providing that age for purposes of qualifying as an immediate relative is determined on the date of filing of the petition).  As noted above, had the State Department corrected its error any time within more than 10 years after the error was made, Hizam could easily have become a Lawful Permanent Resident; now he cannot.  And had the State Department corrected its error less than 8 or so years after it was made, Hizam could easily have become a U.S. citizen under INA §322; now he cannot do that either.  Hizam’s father could theoretically file a petition for him under the Family Third Preference for married sons and daughters of U.S. citizens, as established by INA §203(a)(3), but the latest Department of State Visa Bulletin indicates a wait time of well over ten years before an immigrant visa number is available based on such a petition.  (To be precise, the Visa Bulletin indicates that those who had petitions filed on their behalf before July 15, 2003, should be able to seek immigrant visas based on those petitions in April of 2014.)

If the decision in Hizam v. Kerry is not overturned (either by the Second Circuit sitting in banc or by the Supreme Court), Congress should give serious consideration to addressing this problem by legislation.  With respect to Hizam himself, the problem can perhaps as the State Department suggested be solved by a private bill, granting him citizenship or at least lawful permanent residence.  But the problem is a broader one. Those who, through no fault of their own or of their parents, are incorrectly told by the U.S. government that they are U.S. citizens, and who in reliance on that advice live in the United States and/or forego other opportunities which would exist to gain citizenship or lawful permanent residence, should also be eligible for U.S. citizenship, or at least for lawful permanent residence.

If Congress will not allow favorable determinations of U.S. citizenship to stand when they are made due to government error, it could at least amend INA §322  to give those who miss their opportunity to naturalize as children due to such error another chance. Currently, that statute provides in relevant part that a parent who is a citizen of the United States and meets the relevant residence requirements may apply for the naturalization of a child who is “under the age of eighteen years,” INA §322(a)(3), and “is residing outside of the United States in the legal and physical custody of the applicant,” INA §322(a)(4). This author would suggest the addition of a new subsection of §322, providing that a person who is over the age of eighteen years (and who therefore may not be in anyone’s custody) may be naturalized under INA §322, upon appropriate application by that person, if at some time prior to the person reaching the age of eighteen years his or her parent was advised by the U.S. government, without any misrepresentation on the parent’s part, that their child was already a U.S. citizen, and this erroneous advice was not corrected until after the child reached the age of seventeen years. (Some margin for error before the age of eighteen would have to be allowed, since being advised a day before your child’s eighteenth birthday that he or she was not actually a U.S. citizen, as you had previously supposed, would not provide sufficient time to get the child sworn in before age eighteen.)

Alternatively, if Congress is reluctant to allow expedited naturalization of someone in Hizam’s position who is over the age of 18, it should amend the registry statute, INA §249, which currently allows the creation of a record of lawful admission for permanent residence of persons of good moral character who have resided in the United States since prior to January 1, 1972. That statute could be altered to include persons of good moral character who have entered the United States after January 1, 1972, on a U.S. passport which was issued to them without any misrepresentation by them or anyone acting on their behalf, but who are later determined not to be U.S. citizens.

If even this remedy is considered too extreme, then at the very least, INA §201(f)(1) should be amended to state that a child’s age, for purposes of qualifying as an immediate relative, is determined either (A) on the date of filing of a petition by that child’s parent, or (B) on the date the child or the child’s parent is informed by the U.S. government, due not to any misrepresentation by either of them but to government error, that the child is a U.S. citizen (and that there is therefore no point in filing a petition). This would not help Mr. Hizam himself, due to his marriage, but it could help others in similar positions.

What should not happen, in any case, is for the law to remain the way it evidently is today, according to the Second Circuit’s decision.  It is unfair and outrageous to place someone in a position where, through no fault of their own or their parents, they can spend decades in the United States under the impression that they are a U.S. citizen, and then be told that they actually lack not only U.S. citizenship but any straightforward way of even gaining the legal right to reside in this country.

by Hannah Little, Partner of ABIL Lawyer, Steve Garfinkel
Garfinkel Immigration Law Firm

What is the H-1B Visa?

The H-1B visa is a temporary visa for employers seeking to fill a specialty occupation with a qualified foreign national.  A specialty occupation is one which, by prevailing practice in the U.S., generally requires the possession of at least a baccalaureate degree or its equivalent as a minimum, entry level-credential. 

The H-1B petition may be approved for a maximum initial period of 3 years and may be extended for an additional 3 years longer under certain circumstances. Petition approval authorizes the foreign national’s employment in the position and location stated on the petition.

H-1B Cap and the Cap Lottery

On Tuesday, April 1, 2014, US Citizenship and Immigration Services will begin to accept H-1B cap petitions to request an employment start date of October 1, 2014.  There is a statutory cap that limits approval of new H-1B petitions in a fiscal year and the cap is currently set at 65,000.  There are an additional 20,000 H-1B visas allotted for persons with an advanced degree from the U.S.

Demand for the H-1B visa is currently high.  USCIS received approximately 124,000 H-1B petitions during the last filing period, including petitions filed for the advanced degree exemption. U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.  On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps. For cap-subject petitions not randomly selected, USCIS rejected and returned the petition with filing fees.

A greater volume of petitions are anticipated for FY2015 as a result of the improving national economy and pent-up demand from last fiscal year. Therefore, USCIS will likely implement the “lottery” to randomly select the H-1B petitions which will be accepted for FY 2015.

This is problematic for many employers as the H-1B category is often the only nonimmigrant visa category available for a U.S. company to use to employ a foreign national. Many companies, especially in the technology industry, are lobbying Congress for more H-1B visas to allow more skilled foreign workers to enter the U.S. to increase our country’s competiveness.

Petitions Exempt from the H-1B Cap

Foreign nationals who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

Also exempt from the cap are petitions involving a change in employer from a cap-subject employer to a new employer, an amendment, or an extension of stay.  However, an H-1B petition for change in employer filed by a foreign national previously employed by an H-1B cap-exempt employer is not exempt from the H-1B cap.

Finally, a foreign national who has already been counted against the cap within the past 6 years and applies for an H-1B with a new employer is not subject to the cap.

Will There Be Any Changes to the H-1B System?

If Comprehensive Immigration Reform happens, it is likely that it will incorporate changes to the H-1B system.  Last year, the U.S. Senate passed a bill which, among other things, would have increased the H-1B cap to 115,000 per year, with the potential to increase to 180,000 depending on the U.S. unemployment rates.  However, the bill was not passed by the U.S. House of Representatives.  It is unlikely that a comprehensive immigration reform bill will pass this year and therefore, we do not anticipate any changes to the current H-1B system.  For the foreseeable future, employers and prospective H-1B workers will have to continue to cross their fingers and hope they get lucky in the lottery.

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

In Kovacs v. United States, the United States Court of Appeals for the Second Circuit reversed a lower district court’s decision denying a writ of error coram nobis to vacate a 1999 guilty plea to misprision of felony on the ground that his lawyer rendered ineffective assistance.

While the outcome of the Second Circuit’s decision is extremely beneficial for the petitioner Stephen Kovacs, who would otherwise suffer adverse immigration consequences, it does not appear that his attorney Robert Fink rendered ineffective assistance. When Kovacs, a lawful permanent resident, took the guilty plea for misprision of felony in 1999 it was not considered a crime involving moral turpitude, and would not have then resulted in adverse immigration consequences. Indeed, after taking the plea in 1999, Kovacs, an Australian national, continued to travel internationally without incident when in 2009 immigration officials questioned his ability to reenter the country on the ground that misprision of felony is considered a crime of moral turpitude.

The writ of coram nobis is an extraordinary remedy that is sought to correct errors, such as a criminal conviction, based on the following three factors: 1) there are circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting the writ. See Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996).

Kovacs’ key argument for why he deserved to be granted the writ of coram nobis is that his attorney at that time, when he took the guilty plea for misprision of felony, was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). A claim of Strickland ineffectiveness involves a demonstration that: 1) the defense counsel’s performance was objectively unreasonable; and 2) the deficient performance prejudiced the defense.

The Second Circuit agreed that Fink’s representation of  Kovacs, when he took the guilty plea for misprision of felony, was ineffective under the Strickland test. The Court relied on United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), which held that an affirmative misrepresentation of the deportation consequences of a guilty plea fell outside the range of professional competence and thus met the Strickland test.

There is, however, surprisingly no discussion in the Court’s decision on why Fink’s assistance of Kovacs was ineffective in 1999. It was only in 2006 when the Board of Immigration Appeals in Matter of Robles, 24 I&N Dec. 22 (BIA 2006) determined that a misprision of felony conviction under 18 U.S.C. §4 was a crime involving moral turpitude. In 1999, when Kovacs took the misprision plea, the BIA’s holding in Matter of Sloan, 12 I&N Dec. 840 (A.G. 1968, BIA 1966), established that misprision of felony was not a crime involving moral turpitude. Matter of Sloan was only overruled by Matter of Robles many years later! Robles also retroactively applied to non-citizens previously convicted of misprision of felony.  Any competent and diligent attorney in 1999 could have relied on Matter of Sloan in advising the non-citizen client to take a plea for misprision for felony as it did not have adverse deportation consequences at that time. To make this more bizarre, the Ninth Circuit in Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir.2012),  ultimately overturned the BIA in the same case by holding that misprision is not categorically a crime involving moral turpitude because it does not require a specific intent to conceal the felony, but only knowledge of the felony. Therefore, based upon an analysis of minimal conduct necessary to be implicated under the misprision statute, the Ninth Circuit held that such conduct is not inherently base, vile or depraved to be considered morally turpitudinous.   Even if a Circuit Court has overruled a BIA decision, it would only be inapplicable within the jurisdiction of that Circuit Court, which in Robles-Urrea is the Ninth Circuit, but the overruled BIA decision is still applicable everywhere else in the country.

The grant of a writ of coram nobis is undoubtedly a wonderful outcome for Kovacs whose circumstances were very sympathetic, but the question is whether his attorney was ineffective in 1999, and affirmatively misrepresented the deportation consequences so as to be judged to have rendered ineffective assistance. This did not appear to be the case on the part of his attorney under Matter of Sloan, the precedential decision at that time. Moreover, the holding in Matter of Sloan is still considered good law in the Ninth Circuit.  Perhaps there may have been some sort of strategic collusion here that is not readily apparent to an objective reader of the decision.  Fink may have wanted to help his former client and did not come in the way. The government also may not have wanted to impede the retroactive applicability of Matter of Robles. When an attorney’s incompetence is not so clear cut, the non-citizen affected by the criminal conviction may consider seeking alternative remedies such as challenging the retroactive holding of the BIA. It may sometimes be impermissible for an agency to make a retroactive ruling that affects reasonable reliance interests. See Heckler v. Community Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 n.12 (1984),  Miguel-Miguel v. Gonzales, 500 F.3d 941, 950-953 (9th Cir. 2007),  Lehman v. Burnley, 866 F.2d 33, 37-38 (2d Cir. 1989). If the plea occurred before the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), then  non-citizen LPRs who have been convicted of  crimes involving moral turpitude can still be admitted if their trips overseas were brief, casual and innocent. See Vartelas v. Holder, 132 S. Ct. 1479 (2012).  If the conviction occurred after the passage of IIRIRA, then a non-citizen may still seek a waiver under INA 212(h) to overcome the inadmissibility caused by the crime of moral turpitude.

This is not to suggest that non-citizens should be reluctant to seek to vacate their criminal convictions based on ineffective assistance of counsel. In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court allowed a non-citizen’s plea to be vacated upon ineffective assistance of counsel when his attorney did not advise him about the immigration consequences of his plea. Later, in Chaidez v. United States, 133 S. Ct. 1103 (2013), the Supreme Court clarified that Padilla would not be applied retroactively to criminal cases that were already final when Padilla was decided. However, Chaidez’s preclusion against retroactivity is inapplicable when the attorney affirmatively misadvised the non-citizen about the immigration consequences of the criminal plea, as was the case in Kovacs, rather than fail to provide any advice. Still, that advice ought to have been wrong before an ineffective assistance claim can pass muster. While an attorney who is found to have rendered ineffective assistance in the criminal context will likely not be disciplined, one would not want to be publicly found by a Court of Appeals to have been incompetent and rendered ineffective assistance several years later just because the law changed retroactively. An attorney, besides being expected to thoroughly research the prevailing law at a given point in time, ought not to be expected to gaze into a crystal ball to determine whether the law can change many years later in order to avoid being ambushed by an ineffective finding!

by Angelo Paparelli, Past ABIL President
Nation of Immigrators

Imagine you're the general counsel of Coca Cola (or of any other company that takes great pains to safeguard the internal secrets that endow the organization with competitive advantages over other firms in the same industry).  On your desk lands a letter from a U.S. senator in the minority party asking that your company turn over "voluntarily" a raft of legitimately sought business information as well as sensitive business secrets (in the case of Coke it would be its secret formula). What do you do?

This is the dilemma faced by America's EB-5 regional centers -- organizations approved by U.S. Citizenship and Immigration Services (USCIS) to accept $500,000 or $1 million from foreign investors, each of whom hopes to create 10 full time jobs for American workers and thereby obtain a green card.  The senator in question is Tom Coburn, M.D., whose "oversight efforts," he maintains, "are meant to shed light on various challenges facing the federal government that should be addressed by agency management and congressional oversight."

A conceptual successor to Sen. William Proxmire, who until retirement in 1988, released his "Golden Fleece Award," Sen. Coburn publishes "Wastebook," which highlights what he asserts reflect the "Most Egregious Spending of 2013."

Sen. Coburn, the Ranking Member of the Senate's Homeland Security and Governmental Affairs Committee, has apparently issued to every one of the 440 USCIS-approved Regional Centers a letter seeking a reply by March 7, 2014 responding to each of the items below:  

• Any approval from USCIS to participate in the EB-5 program regarding the regional center and its business plan, including any subsequent recertification;

• The total annual amount of investment and the number of individuals by country of origin making investments through the regional center since it has been in operation;

• The name, address, and a description of each business in which the regional center has made an investment of funds and the number of jobs created by each investment;

• Any fees charged to EB-5 applicants or received by the regional center, including amount and description;

• A list of any current or former corporate officers of the regional center, including title, position, and dates of employment, and

• The name and address of any individual or entity -- either foreign or domestic -- that the regional center has an agreement with to provide legal, accounting, recruiting or consulting services, as well as a description of the service provided.

The letter comes as little surprise to close watchers of the EB-5 scene, particularly observers who paid attention to the Senate debate ultimately leading to the approval of President Obama's nomination of the former USCIS director, Alejandro Mayorkas, to serve as Deputy Secretary of the Department of Homeland Security (DHS).  In seven pages of dense, three-column text published on December 20, 2013 in the Congressional Record (pp. S9072-S9079), the EB-5 regional center program figured more prominently than any other subject managed by Director Mayorkas during his four-year term at USCIS.  In the course of debate Republicans claimed that whistleblower complaints alleging improper intervention by Mr. Mayorkas into an EB-5 regional center adjudication, which triggered a long-simmering investigation by the DHS Office of Inspector General, should be concluded before a vote on the nomination.  For his part, Mr. Mayorkas denied the allegations, testifying at an earlier committee hearing that he made the decision to approve the regional-center designation request solely based on the facts and the law.  Democrats argued that the OIG investigation had become politicized and had produced no credible evidence of wrongdoing by Mr. Mayorkas.

Recognizing that the Mayorkas nomination would be approved by the majority party, Sen. Coburn nonetheless urged postponement of the vote:

Undeterred by the approval of the Mayorkas nomination, Sen. Coburn apparently has determined that he will go directly to the source, circumvent USCIS and the DHS OIG, and seek extensive information from every approved regional center as well as from its trade group, the Association to Invest In the USA (IIUSA).  

While regional centers might consider ignoring the request, coming as it does from a single senator of the minority party, that path is fraught with risk.  Yet, voluntarily complying is also risky.  Sen. Coburn's letter offers no assurance that the information provided -- much of which may be viewed as proprietary and a trade secret -- will be treated in confidence.  This is unlike similar information submitted to USCIS when filing a request for designation as a regional center, or when providing updated information on an annual basis on Form I-924A.  As the IIUSA reported in its Feb. 20 reply to Sen. Coburn:

Indeed, FOIA (5 U.S. Code § 552(b)(4)), expressly exempts from disclosure to third parties information submitted to Executive Branch departments and agencies that are "trade secrets and commercial or financial information obtained from a person and privileged or confidential [information]."  in turn, Presidential Executive Order 12,600 provides for pre-disclosure notice and an opportunity to object if an individual or business submits "confidential commercial information" to a federal agency and a third party requests it under FOIA.

Some may wonder why regional centers are concerned.  After all, the thinking goes, it comes with the territory, when dealing with a government program, that requests for data and documents ought be expected.  Aside from the lack of FOIA protection or other assurance of confidentiality from Sen. Coburn, the requests he makes involve clearly competitive data that may make it materially more difficult for one regional center among 440 others to attract qualified foreign investors.  His request asks for such internal, sensitive data as a regional center's "business plans," and a listing of the parties with which it conducts its business (including law firms), together with a "description of the service provided" -- a subject that could well involve attorney-client privileged information.  Moreover, were these parties to be identified, presumably other regional centers might seek out their finite services as well, and thus impair their ability to serve existing center clients.  Why should Sen. Coburn, even if unwittingly, allow one regional center to leverage and exploit competitive commercial information amassed by another center?

Even more disturbing, the Senator's request comes at an unhelpful time when -- as reports of the latest Stakeholder Engagement of February 26, 2014 confirm -- USCIS has moved aggressively to strengthen and improve the EB-5 program by increasing security concerns, program integrity, predictability and transparency.

Sen. Coburn's request also may undermine the robust economic benefits that the EB-5 program has spawned if current and prospective regional centers conclude that participation in the EB-5 is unwise because it will result in the sharing of competitive secrets with third parties.  A FY2012 study by IMPLAN Group, LLC – the originators of the widely accepted IMpact PLANning (“IMPLAN”) econometric model which measures and forecasts economic impact  -- found in peer-reviewed studies vetted by university economists associated with the Association for University Business Economic Research (AUBER) that the EB-5 program produced an economic impact which has increased dramatically over the prior two years.  IMPLAN's FY 2012 study found that the EB-5 program had contributed more than $3.39 billion to U.S. GDP, supported over 42,000 U.S. jobs, and generated over $712 million in federal/state/local tax revenue.

While Sen. Coburn certainly is not prohibited from asking for information on the EB-5 program, he should temper his use of the requested information with a measure of caution and prudence. One especially helpful step he could take would be to assure all regional centers that he will exercise restraint and refrain from releasing confidential competitive information which would needlessly harm law-abiding regional centers that are doing precisely what Congress intended, namely, helping to create much-needed American jobs through the prudent use and management of foreign investors' funds.