Tag Archive for: Trump

Cyrus Mehta

Ethical Obligation of the Public Official Lawyer Who Falsely Undermines the Criminal Justice System after Trump’s Conviction

/0 Comments/in /by

By Cyrus D. Mehta and Kaitlyn Box

On May 30, 2024, Donald Trump was convicted of 34 counts of falsifying business records in New York, all in connection with his payment of hush money to adult film actress Stormy Daniels in advance of the 2016 election. Harvard law professor Laurence Tribe eloquently summarized on X the sense of justice that news of the convictions brought –  “Trump’s trial for 34 felony violations of NY law — violations w/out which he might well have lost the 2016 presidential election  — was a model of fairness that law students and trial judges will study for decades. There’s nothing here for any informed person to complain of.” Trump and his followers, however, promptly decried the trial as having been rigged, accusing Justice Juan M. Merchan, who presided over the trial, and the jury of being biased.

Trump quickly found ways to direct blame for the perceived unfairness of the trial at immigrants. In a disjointed monologue that he delivered outside of Trump Tower on the day after the trial, he stated that migrants are “coming in from mental institutions and insane asylums” and “[t]he Congo has just released a lot of people from jail – Congo, Africa – just released a lot of people, a lot of people, from their prisons and jails, and brought them into the United States of America.” (see here). He bafflingly added that these migrants originated “from places unknown, from languages that we … haven’t even heard of… [i]t’s not like Spanish or French or Russian.” He then concluded that New York City, where the trial was held, is corrupt and crime-ridden, stating “you have violent crime all over this city at levels that nobody’s ever seen before.” Republicans quickly followed suit in drawing parallels between immigrants and the supposed injustice of Trump’s convictions. Tucker Carlson stated on Twitter on May 30, 2024: “Import the Third World, become the Third World. That’s what we just saw. This won’t stop Trump. He’ll win the election if he’s not killed first. But it does mark the end of the fairest justice system in the world. Anyone who defends this verdict is a danger to you and your family.”

Other Republican leaders, too, denounced the outcome of the trial and questioned the impartiality of judge and jury. Marco Rubio, U.S. Senator for Florida, stated: “The verdict in New York is a complete travesty that makes a mockery of our system of justice. A political show trial conducted by an openly pro-Biden judge whose daughter makes money off the case, a jury from the most liberal county in America, absurd and ridiculous charges and outrageous jury instructions that guaranteed guilty verdicts. Biden and the Trump deranged left will stop at nothing to remain in power.” Senator J.D. Vance of Ohio issued a statement calling the verdict a “an absolute miscarriage of justice” and criticizing the “partisan slant of this jury pool”. Mike Johnson, Speaker of the House, said of the verdict “I do believe the Supreme Court should step in”.

These comments have the troubling potential to undermine confidence in the judicial systems of the United States. Trump and Carlson’s misguided criticism of the verdict and demonization of immigrants is, unfortunate though unsurprising. It is disappointing, though, that well-trained lawyers such as Rubio, Vance, and Johnson who are also elected officials would baselessly claim parroting Trump that the trial was biased. Pursuant to the state analogues to ABA Model Rules of Professional Conduct 8.4 (c) and (d), lawyers must not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “conduct that is prejudicial to the administration of justice”. Although these are broad provisions it is unlikely that Rubio, Vance or Johnson would be subject to discipline as their baseless accusations against the criminal justice system may be protected under the First Amendment. Still, Rule 8.4 has been used broadly by disciplinary authorities against lawyers especially when their conduct has been prejudicial to the administration of justice. Comment 7 to Rule 8.4 imposes greater obligations on lawyers who are public official, which states that “[l]awyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

Critics have every right to disagree with the verdict reached against Trump, or to support his right to an appeal, but it is concerning to see Republican leaders who are also lawyers make blatantly untrue statements that could create the perception that the trial, or American judicial system as a whole, are unjust and undeserving of respect.

It is ironic that Trump, who as president imposed travel bans against people coming from Muslim-majority nations, will now  face bans from 37 countries including major allies such as Canada, Australia, and  the UK because of his felony convictions, although if he becomes president again, it is likely that these countries will make exceptions while he will continue to act ruthlessly towards immigrants in his own country. And finally, one cannot help but snigger at Trump who falsely accuses undocumented immigrants of being criminals and “poisoning the blood of our country” when he is now a confirmed felon!

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Who Are the Undocumented Immigrants That Would Become Targets of Trump’s Deportation Army If He Got Reelected

/0 Comments/in /by

By Cyrus D. Mehta

If Trump gets reelected, he has hinted that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States.

“The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II, ” Balko states.

According to New York Times’s columnist Jamelle Bouie in  Trump’s Taste for Tyranny Finds a Target immigrants would be the most easy target for Trump to play out his autocratic fantasies. Trump has already said that undocumented immigrants are “poisoning the blood of this country.” The Supreme Court in Trump v. Hawaii allowed Trump to enforce his Muslim ban.

Stephen Miller, the architect of Trump’s anti-immigrant policies,  has stated on Charlie Kirk’s show how this deportation force would fulfill Trump’s fantasy. The  deportation force would comprise agents from Immigration and Customs Enforcement, the Drug Enforcement Administration, the Border Patrol and other federal agencies, as well as the National Guard and local law enforcement officials. They would look all over the  country for unauthorized and undocumented immigrants moving from state to state, city to city, neighborhood to neighborhood and, finally, house to house. These are people who in the view of Trump and Miller do not belong, not that because are not authorized but because they are also nonwhite and who are from what Trump once called “shithole” countries. By raiding workplaces and staging public roundups, this deportation force would create a climate of fear and intimidation.

Mistakes are bound to happen as legal immigrants and even US citizens may get caught up in the roundups. There could not be any notion of selective enforcement in these roundups, and those caught up in them would be because they appeared to be immigrants. There would be mass racial and ethnic profiling. And by the time this gets sorted out it may be too late if the person already got deported.

Moreover, one thinks of an undocumented immigrants as a person who entered the United States without inspection or who came to the US legally on a visa and overstayed. However, the term is broader to encompass persons who were previously unauthorized and who have been authorized to stay such as recipients of the Deferred Action of Childhood Arrivals (DACA) program, applicants for Temporary Protected Status (TPS),  those who have pending asylum applications and applications for other relief such as under the Violence Against Women Act (VAWA) or crime victim U visas. There are also those who are on supervised release or who have obtained stays of removal and eligible for employment authorization year after year. All these noncitizens would be lumped together as undocumented immigrants that would be red meat for Trump’s deportation force.

Since it would be beyond the capacity to quickly deport the people caught up in these roundups, especially since countries may not even be willing to accept them easily, there would be holding facilities that would serve as staging centers on land near the Texas border. This would not be too dissimilar from internment camps, which were set up in the United States to detain Japanese Americans after the attack by the Japanese military on Pearl Harbor in 1941.

In addition to the round ups, the second Trump administration would sign an executive order to withhold passports, social security numbers and other government benefits from  children born of undocumented immigrants in the United States never mind that the Fourteenth Amendment says the exact opposite. Under Trump’s deportation plan, there would be no distinction between undocumented immigrants and children born to an undocumented immigrant in the United States. If there are going to be protests and resistance from people against agents storming homes, schools and religious places, Trump will invoke the Insurrection Act to mobilize the miliary and crush the resisters as well as his political opponents.

According to Bouie, “what we are seeing here from Trump isn’t simply a distaste for liberal values; it is a taste for genuine tyranny and bona fide despotism, one that complements his endless praise for dictators and strongmen.” Trump has already likened immigrants to invaders, and he can invoke an emergency, and thus a constitutional crisis,  to go ahead with deportations without waiting for the courts to rule, and  when they do rule, Trump’s hope is that the courts will rule in his favor, especially the Supreme Court, which have historically given deference to the executive branch on matters involving national security. This has happened time and time again with respect to court challenges to the internment of Japanese Americans, against the unlawful detention and abuses of noncitizens after the September 11 attacks and most recently in allowing Trump’s travel ban to pass, which was a major part of his election campaign in 2016 to ban Muslims from coming to the US, and in this reelection campaign for 2024, Trump promises to create a tyrannical force to deport millions of immigrants.

On this Memorial Day, as we reflect upon the sacrifices our military personnel have made to free America and the world from fascism and tyranny, think about how Trump can so easily unravel all of this through a deportation force that rips families apart, tears lives and fractures America.

 

Cyrus Mehta

Will United States v. Hansen Come Back to Bite Trump?  

/0 Comments/in /by

By Cyrus D. Mehta and Kaitlyn Box*

Former President Trump was indicted on August 1, 2023 by Special Counsel Jack Smith for his efforts to overturn the 2020 elections. Although Trump believes his actions were protected by the First Amendment, a recent Supreme Court case involving an immigration statute, United States v. Hansen,  held that speech constituting fraud  is not protected under the First Amendment.  Will Hansen come back to bite Trump?

In two previous blogs, here and here, we have discussed the United States v. Hansen case, the central question of which was whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is unconstitutionally overbroad. Helaman Hansen, who ran an organization called Americans Helping America Chamber of Commerce (“AHA”) purporting to help undocumented immigrants become U.S. citizens through adult adoption, had been convicted of violating INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions.

Hansen’s convictions eventually were vacated by the Ninth Circuit, which held that the encouragement provision is overbroad and unconstitutional, as it prohibits a broad range of protected speech . Hansen and amici argued that the encouragement provision could punish even a lawyer who provides certain types of legal advice to a noncitizen, or an aide worker who advises an undocumented immigrant to take shelter in the U.S. during a natural disaster.  The government sought review by the Supreme Court, asserting among other arguments, that INA §274(a)(1)(A)(iv) is not facially overbroad because the terms “encourage” and “induce” in the encouragement provision are terms of art borrowed from criminal law that refer to specific and egregious conduct, namely facilitation and solicitation. The Supreme Court granted certiorari and, in its decision issued on June 23, 2023, held that the encouragement provision is not unconstitutionally overbroad because it uses “encourage or induce” “in its specialized, criminal-law sense—that is, as incorporating common law liability for solicitation and facilitation”.

In our previous blogs, we noted the troubling implications that Hansen could have for immigration lawyers and their ability to effectively advise their clients, as the plain language of the statute could be read to prohibit an immigration lawyer from advising an undocumented client to remain in the U.S. to avail of an immigration benefit that would be unavailable to the client if he left the country. We also noted that immigration lawyers might choose to adopt a practice of advising clients only about the risks and benefits of remaining in the U.S., though giving elliptical advice of this kind might not always constitute competent representation. In its decision, however, the Supreme Court read the encouragement provision to narrowly apply only to intentional facilitation and solicitation. By making it clear that the encouragement provision “stretches no further than speech integral to unlawful conduct, which is unprotected”, the Supreme Court’s decision may alleviate, at least in part, concerns that upholding the provision would have a chilling effect on competent legal advice.

Hansen has recently come back into the spotlight in relation to Donald Trump’s August 1, 2023 indictment on four charges under federal statutes – conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct a federal proceeding, and conspiracy against rights – stemming from the administration’s efforts to overturn the results of the 2020 presidential election. Trump’s supporters, including his lawyer John Lauro, have portrayed the indictment as an attack on Trump’s First Amendment right to engage in political speech. As Walter Olson points out in a Cato Institute essay, the indictment itself outlines many of the false claims that Trump made in the context of the 2020 presidential election, but does not explicitly “punish the former president for speech or advocacy as such”. Moreover, the Constitution’s generous protections of political speech do not extend to all types of speech, including speech constituting fraud, as analyses of the indictment have noted.  The Supreme Court’s holding in Hansen makes clear that the First Amendment does not protect speech that facilitates the commission of crimes under federal statutes. Helaman Hansen, too, had been charged with criminal solicitation under INA §274(a)(1)(A)(iv) and the Supreme Court ultimately rejected the idea that his conduct was protected by the First Amendment. The Supreme Court in Hansen, quoting Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003), clearly noted that “the First Amendment does not shield fraud[.]” In an Election Law Blog post, Ciara Torres-Spelliscy observes that “…the Supreme Court […] treats fraud as a different and unprotected category that is outside of the First Amendment’s protections.”

The Trump administration was characterized by overwhelming negative views on immigrants and the promulgation of draconian immigration policies, many of which are analyzed in our prior blogs. In his remarks to the Executive Office for Immigration Review in 2017, then-Attorney General Jeff Sessions once made a reference to “dirty immigration lawyers”, indicating that the administration held immigration lawyers in contempt, as well. It is thus ironic that the same Supreme Court decision that could leave immigration lawyers vulnerable to prosecution has the potential to snare Trump himself, as well. Hansen is a rather double-edged decision – although it could have problematic aspects for immigration lawyers, it may by the same token prove useful in striking down any claims by Trump that the misinformation he spread in an attempt to fraudulently overturn the 2020 election is protected as First Amendment speech.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Asylum Seekers are Legally in the US Notwithstanding the Political Stunts of Governors Abbott and DeSantis

/0 Comments/in /by

By Cyrus D. Mehta and Kaitlyn Box*

In a reprehensible political stunt, Governor Greg Abbott of Texas and Governor Ron DeSantis of Florida sent around 150 immigrants to liberal states by bus and plane last week. Some of these individuals were abruptly dropped out outside Vice President Harris’ residence in Washington, D.C., while others were transported to Martha’s Vineyard. These immigrants, many of whom had come from Central American countries, had recently presented themselves at the southern border to request asylum. Reports have emerged that some of the asylum seekers were promised that they would receive work authorization more easily if they agreed to be sent to one of these locations. Some individuals believed they were going to Boston, only to be transported to Martha’s Vineyard instead.

Abbott and DeSantis’ action caused untold harm, placing individuals who were already vulnerable in a situation that was undoubtedly terrifying. Many of the asylum seekers were dropped off on the side of the road with nowhere to stay and few possessions. Some individuals had not been given food for hours. Because some of the asylum seekers had been issued Notices to Appear for immigration proceedings in Texas, Abbott and DeSantis effectively ensured that these individuals would have more difficulty attending their court dates by transporting them to a different part of the country. They also risk missing their court dates and be subjected to in absentia removal orders.

The governors’ cruelty stands in sharp contrast to the warm welcome the asylum seekers were given by the communities in Martha’s Vineyard and other locations. Individuals and community organizations rallied to provide the immigrants with food, clothing, and shelter. Immigration attorneys have also sprung into action to provide legal services. This heartwarming response illustrates that most Americans, unlike Abbott and DeSantis, want to welcome and support immigrants.

Though the asylum seekers who unwittingly become pawns in Abbott and DeSantis’ stunt happily found safety and compassion in the communities they were dropped into, this ploy was, at the very least, inhumane and could carry legal consequences for the two governors. California Governor Gavin Newsom has asked the Justice Department to investigate whether fraudulently inducing the asylum seekers to be transported across state lines could support charges of kidnapping under state law. Deliberately lying to and misleading vulnerable people could also render Abbott and DeSantis liable for fraud or severe emotional distress under the relevant state laws. It has even been suggested that luring the asylum seekers onto planes and buses with the false promise of work could constitute labor trafficking. Recently obtained documentary evidence confirms that idea that the asylum seekers were lured to Martha’s Vineyard and other locations with false promises. Lawyers for Civil Rights (LCR), a Boston-based legal organization that represents some of the asylum seekers, provided a brochure that was given to some migrants. The brochure erroneously states that the asylum seekers who were sent to Massachusetts would be eligible for numerous benefits, including “8 months cash assistance,” “assistance with housing,” “food,” “clothing,” “transportation to job interviews,” “job training,” “job placement,” “registering children for school,” and “assistance applying for Social Security cards”.

At first blush, one may also wonder whether the governors have violated INA § 274(a)(1)(A)(ii), which imposes severe criminal penalties on persons for knowingly or in reckless disregard transporting a noncitizen who has come to, entered, or remains in the US in violation of law. However, invoking this provision may be less than helpful, as it pertains only to individuals who have come to, entered, or remained in the U.S. in violation of law, and thus feeds into the narrative that asylum seekers like the ones transported by Abbott and DeSantis are in the United States “illegally”. It is important to recognize that it is not illegal for individuals to enter the United States to seek asylum. These individuals were lawfully released into the United States to pursue their asylum claims after an initial interview and processing by the Department of Homeland Security at the border. The asylum seekers involved in this situation did nothing wrong by seeking protection under U.S. asylum laws. Rather, it is Abbott and DeSantis who engaged in a despicable, and possibly illegal, act.

It is clear that the poisonous attitudes of Trump, who catapulted himself to the presidency while calling migrants “criminals” and “rapists”, are now being borrowed by his apprentices like DeSantis and Abbott as a ploy to whip up anger against Democrats prior to the midterm elections. This strategy is unlikely to succeed as the American tradition of welcoming immigrants remains robust, as demonstrated by the Martha’s Vineyard community. While the pathway for people seeking asylum should remain, our immigration laws need to be radically overhauled to provide more pathways for people to come to the U.S. legally to work and to unite with family members. Asylum should not be the only option for those seeking to come to the U.S. If asylum is the sole option, the system will get overburdened as it has already and will also encourage spurious claims, which in turn undermine genuine claims of persecution.  Both Democrats and Republicans need to work together in order to forge new pathways for immigration.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Overcoming a COVID Travel Ban Through the National Interest Exception

/0 Comments/in /by

By Cyrus D. Mehta & Kaitlyn Box*

Although the Trump era has ended, some of its draconian immigration policies continue to linger, including the COVID travel bans. On January 25, 2021, President Biden issued Presidential Proclamation 10143, entitled “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease”, which effectively extends many of the Trump administration’s COVID bans. Proclamation 10143 suspends the entry into the United States of noncitizens who were physically present in the Schengen Area, the United Kingdom, Ireland, Brazil, or South Africa within the 14 days preceding their attempted entry into the United States. As with the Trump-era COVID bans, Proclamation 10143 outlines several categories of individuals who are exempt from the ban, including certain relatives of U.S. citizens and LPRs, diplomats, members of the Armed Forces, and those working to treat or contain COVID-19. Importantly, “any noncitizen whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees” is also exempt from the ban.

The DOS further clarified this exception, issuing guidance which stated that “certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under the Presidential Proclamation (PP) covering travelers from the Schengen Area, United Kingdom, and Ireland”. F-1 and M-1 students who have valid visas may enter the United States without a national interest exception (NIE) waiver, while business travelers, investors, academics, J-1 students, journalists, and treaty traders must seek an NIE before traveling, whether they currently hold a valid visa or are seeking one. H-2A and certain H-2B travelers who have been present in South Africa may qualify for an NIE “if they are providing temporary labor or services essential to the United States food supply chain.”

Despite the exceptions, Proclamation 10143 still has enormous potential to snare unwary travelers. One might assume that a noncitizen flying back to the United States from a country not enumerated in the Proclamation would be exempt from the ban. However, if individuals have a layover, however brief, in a Schengen country’s airport in Frankfurt or Paris,  they become subject to the ban. Ideally, travelers want to ensure that they are not passing through the countries listed in the ban at all. Once this complication arises, though, the noncitizen can travel to a second country that is not subject to the ban and spend at least 14 days there before attempting to reenter the United States. Someone who lives in a country subject to the Proclamation, though, this might not be possible. It could cause an individual living in Brazil, for example, undue hardship to have to spend 14 days in a second country before coming to the United States. During the pandemic, each country has imposed its own travel restrictions and it may not be easy to hop from one country to another before entering the U.S.

The other way that a noncitizen subject to the ban may reenter the United States is by obtaining a national interest exception waiver. To do so, one needs to contact the relevant consulate, usually by email, to request a waiver. The email must state the noncitizen’s biographical details, contact information, and proposed itinerary. A copy of the noncitizen’s passport biographical page and visa page should be attached. Most importantly, an NIE request must outline the justification for the waiver. It may be especially helpful to demonstrate that the noncitizen is working in a significant role in critical infrastructure. One may reference the CISA guidelines for a list of essential infrastructure, which includes healthcare, education, transportation, financial services, and communications and IT, to highlight only a few industries. The consulate may approve or deny the waiver straight way, or may request that additional information be provided.

In some instances, an NIE waiver request may also be made to CBP rather than a consulate. CBP at JFK airport, for example, requires that a noncitizen first request a waiver through DOS. If 14 days have passed without a response from DOS, CBP will entertain the waiver request. The noncitizen may be required to demonstrate proof that they have attempted to follow up with DOS beyond the initial waiver request. CBP at JFK will also take NIE waiver request in emergency or humanitarian cases. Other ports of entry may have similar policies. For a list of the policies of other ports of entry on regarding the NIE, see Practice Alert: National Interest Exemption (NIE) and Satisfactory Departure (SD) Procedure Spreadsheet for Requests at CBP Ports and Preclearance Locations Due to COVID-19, AILA InfoNet at Doc. No. 20032043 (July 22, 2020).

The COVID bans are not the only Trump era immigration policies that remain in effect. Although Biden recently rescinded Proclamation 10014, which suspended certain green card applications, and restricted some nonimmigrant visa categories, Proclamation 10052 is very much alive. Proclamation 10052, an extension of Proclamation 10014, restricts the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the Proclamation, June 24, 2020, and are seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa. We have discussed both Proclamation 10014 and Proclamation 10052 in our previous blogs. Proclamation 10052 was extended to March 31, 2021 at the end of the Trump administration, and will continue to impose hardship and separate families until that date if it is not rescinded by the Biden administration. Notably, a noncitizen who has been in one of the countries listed in Proclamation 10143 without a visa since June 24, 2020 would be subject to both Proclamations. Proclamation 10052 also exempts “any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees”, but the national interest exceptions for H-1Bs and Ls in Proclamation 10052 have different standards from the NIE in the COVID ban.

As detailed in a prior blog, it is reiterated that there are better ways to curb the spread of COVID-19 than imposing travel bans. Given the number of exceptions to these bans, it is questionable how effective they could be at controlling COVID-19, since an exempt traveler is just as likely to have contracted COVID as a noncitizen who is covered by the Proclamation. Currently the United States requires travelers to provide a recent negative COVID test before entering. Even if a negative COVID test is not considered a sufficient safeguard against the spread of COVID-19, however, other measures could be imposed, such as requiring travelers to quarantine for a few days before entering the United States. As the vaccine becomes more readily available, noncitizens who provide proof of vaccination should also be able to freely enter the United States.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

The Real Threat to the US Economy is Trump’s Proclamation, Not the Nonimmigrant Workers it Bans

/0 Comments/in /by

By Cyrus D. Mehta and Kaitlyn Box*

President Trump has mastered the Dark Arts of immigration bans. On June 22, 2020, Trump signed yet another Presidential Proclamation further restricting immigration into the United States. The new proclamation is an extension of the previous proclamation issued on April 22, 2020 that suspends certain green card applications and limits highly skilled workers and several nonimmigrant visa categories. The proclamation is effective as of June 24, 2020 and expires on December 31, 2020. The proclamation may be modified during this period as deemed necessary.

The Proclamation supposedly cites a desire to preserve jobs for American workers and high unemployment rates in the face of the COVID-19 pandemic as a rationale for suspending the entry of certain green card applicants and highly skilled workers. It states without any foundation “American workers compete against foreign nationals for jobs in every sector of our economy, including against millions of aliens who enter the United States to perform temporary work.  Temporary workers are often accompanied by their spouses and children, many of whom also compete against American workers.  Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy.  But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers”. In reality, however, both this Proclamation and the April Proclamation that it expands upon are part of a broader strategy by the Trump administration aimed at curtailing all immigration.

Foreign nationals who were outside the United States on the effective date of the proclamation (June 24, 2020), do not have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on that date, and are seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa are barred. Additionally, accompanying or following to join dependents seeking to obtain H-4, L-2, or J-2 visas who were outside the U.S. on the effective date are also barred. However, if the principal H-1B, H-2B, J-1, or L-1 beneficiary is already in the United States, or otherwise exempt (see below), it is unclear at this time whether this bar will apply to dependents who will subsequently apply for H-4, L-2, or J-2 visas at the U.S. Consulate.

The Proclamation does not apply to: anyone who was inside the United States on June 24, 2020, individuals who are outside the United States and have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on June 24, 2020, Lawful permanent residents of the United States (green card holders), spouses and children of U.S. citizens, individuals seeking to enter the United States to provide temporary labor or essential to the United States food supply chain; and anyone whose entry would be in the national interest as determined by the Departments of Homeland Security and State. CBP headquarters has confirmed that Canadians entering as H, L or J nonimmigrants are exempt from the proclamation.

The Proclamation also seems to leave open the door for other measures aimed at restricting the entry of certain categories of immigrants, or even taking action against individuals who have already been admitted. Section 5(b) of the Proclamation states that: “The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1))”.  INA 212(a)(5) renders a foreign national who seeks to enter the United States to perform skilled or unskilled labor is inadmissible unless it has determined that there are not a sufficient number of US workers who are qualified for the same job and the employment of such foreign nationals will not affect the wages and working conditions of US workers. Most foreign nationals have already received labor certifications after their employers unsuccessfully conducted a recruitment of U.S. workers in the labor market.   Though this provision does not have any present effect, it seems to enable the administration to take further actions to limit the number of immigrant visa workers in the United States. One could even imagine the provision being invoked to rescind some individuals’ approved labor certifications and I-140 visa petitions, should the administration decide to do so in the future. This would have a devastating impact on the hundreds of thousands of people born in India who have been waiting for green cards in the EB-2 and EB-3 backlogs. Of course, such an action would be challenged in court since INA 204(j) has specifically allowed adjustment of status applicants whose applications have been pending for more than 180 days to “port” to new employers and still keep intact their labor certifications and I-140 visa petitions. Thus, there are provisions in the INA that contemplate that once the labor market has been tested, the test need not be repeated over and over again, even if the foreign national’s green card has been delayed due to  EB-2 and EB-3 backlogs.

Another insidious provision in the Proclamation, section 4(c)(ii), directs the DHS consistent with applicable law to “prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States.” While there are existing provisions in the INA that deem foreign nationals inadmissible for all of the above reasons, one who has been charged or arrested of a criminal offense should not be deprived of eligibility to work in the United States if the charges were dismissed or proved baseless, and the foreign national did not admit to the essential elements of a crime that would render him/her inadmissible.

The Proclamation stands to have a devastating impact on individuals in a variety of scenarios.  Due to numerous travel restrictions that have been put in place as a result of COVID-19, many individuals may have left the United States with a valid visa that has expired while that have been trapped outside the country. Under the new Proclamation, these individuals would not be able to reenter the United States. Family members of a principal visa holder are likely to be similarly impacted. One such situation arises when a principal visa holder was in the United States on the effective date of the Proclamation, but has dependent family members who are currently outside the U.S. without a valid visa. Because individuals who were inside the United States on June 24th, 2020 are exempt from the proclamation, David Isaacson is of the opinion that  family members of an individual who is in the United States are not “accompanying or following to join” an individual whose entry is suspended. Thus, spouses and children of an individual who is exempt from the Proclamation should arguably be able to reenter the United States, but one does not have any faith whether Trump’s State Department will agree with this perfectly reasonable interpretation. Indeed, although the proclamation clearly states that it will not apply to one who was present in the United States on June 24, 2020, the State Department seems to be indicating on Twitter that if such a person leaves, a visa will not be issued during the validity of the proclamation. This seems to be inconsistent with a plain reading of Section 3(i) that states that the proclamation will apply to an individual who “is outside the United States on the effective date of this proclamation.”

The situation is more complicated when reversed, however, with a principal visa holder, for example an H-1B, abroad and his/her H-4 spouse is in the United States. It is unclear how the Proclamation would apply to the H-4 spouse in this situation. Even if the H-4 spouse currently is in valid status, they would only be able to remain in the United States for a limited period of time before being deemed to be in violation of their status. The USCIS allows dependents of nonimmigrant visa holders to remain in the United States while the principal is temporarily outside the country. At the same time, USCIS prevent the “parking” of dependents in the United States for extended periods of time if the principal nonimmigrant worker only comes for occasional work visits.    Thus, if the H-1B is stranded abroad for several months until the end of the ban, which could potentially be extended beyond the end of 2020 depending on who wins in the presidential election this November, the H-4 spouse may no longer be considered to be in valid status. If the principal H-1B spouse’s job has been terminated, this would imperil the status of the H-4 spouse and children even sooner.

As with the April Proclamation, Trump relied on section 212(f) of the Immigration and Nationality Act (INA) to ban nonimmigrant workers. Although Trump also derived authority from 212(f) to issue the travel bans, the third iteration of which was upheld by the US Supreme Court in Trump v. Hawaii, there may be a basis to distinguish the latest Proclamations from the travel bans (see Building the Case to Challenge Trump’s Immigration Bans). The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice (see also  Reflecting on the Supreme Court DACA Decision in Comparison to Trump’s Immigration Bans. In its recent decision on DACA, the Supreme Court held that the administration has to factor in reliance interests before rescinding a benefit under the APA). This most recent Proclamation represents another attempt by the administration to draw artificial distinctions between certain categories of immigrants. The J visa category, for example, is impacted only “to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program”. Other categories of J visas were exempted from the proclamation, including the student and alien physician categories. The Proclamation also excludes other categories of nonimmigrant visas, including treaty trader (E-1) and investor (E-2) categories, entirely. Lawsuits are bound to be filed not just by H-1B visa holders separated from their families, as they would be the most sympathetic plaintiffs, but also by large multinational corporations whose highly placed executive who would otherwise be able to enter on the L-1A visa has been banned.

In conclusion, this proclamation disproportionately impacts Indians the most as they are the largest users of the H-1B visa. It is no coincidence that in 2016 Steve Bannon, who was then a strategist  to Trump and chairman of Brietbart News expressed concern that too many  CEOs of successful Silicon Valley tech companies were immigrants from Asia. Many of them came to the United on an H-1B, which has been targeted by this proclamation. This sort of hostility against immigrants has been expressed frequently by Trump and his senior advisor Stephen Miller. Brietbart News, from which Miller and other xenophobes in the Trump administration draw inspiration, has consistently railed against Indian immigrants and H-1B visa holders.  The proclamation will not protect American jobs by cruelly separating the H-1B worker from the H-4 spouse and children, many of them who have been in the US for many years waiting for their green cards in the EB-2 and EB-3 backlogs. Nor will this proclamation bring back American jobs when it bans a specialized knowledge intracompany transferee on an L-1 visa who had in depth knowledge of a company’s products and can help it to grow in the United States, which in turn would create more jobs.   While the proclamation flunks the economic test, for the xenophobe it is a dream come true as it incorporates an exhaustive wish list for restricting immigration under the cover of the pandemic that would otherwise have been impossible to pass through Congress.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Using a Sledgehammer to Crack a Nut: Trump Proclamation Bans Chinese Students and Researchers Linked to China’s “Military-Civil Fusion Strategy”

/0 Comments/in /by

President Trump has issued a proclamation limiting Chinese students wishing to study in the United States to undergraduates under certain conditions, and limiting Chinese researchers. The proclamation states that the People’s Republic of China (PRC) uses some Chinese students, mostly post-graduate students and post-doctoral researchers, to operate as “non-traditional collectors of intellectual property” in the United States. President Trump said that he therefore has determined that the entry of certain PRC nationals seeking to enter the United States “pursuant to an F or J visa to study or conduct research in the United States would be detrimental to the interests of the United States.”

The proclamation specifically bans nonimmigrants who enter on an F or J visa “to study or conduct research in the United States, except for a student seeking to pursue undergraduate study, and who either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy”.  The proclamation defines the term “military-civil fusion strategy” as actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.

President Trump has again relied on INA 212(f) to issue this ban on Chinese nationals who enter the US on an F or J visa who are associated with the vague Chinese “military-civil fusion strategy.” This is another case of Trump using 212(f) to rewrite immigration law. Given the vagueness of linking students to China’s military-civil fusion strategy, it would empower consular officers, and even CBP officials, to deny a visa or admission to just about any graduate student or researcher from China as the proclamation does not set any parameters. Trump’s proclamation will unfortunately also result in needless stereotyping. Just as so many people were branded as communists during the “red scare” under the McCarthy era, graduate students from China will also be associated with China’s military-civil fusion strategy. Although the ban is thought to impact 3,000 out of 360,000 Chinese students, many more can be impacted for mere suspicion of being linked to Chinese military-civil fusion strategy.

While there is evidence that the Chinese military has sponsored military scientists to study abroad described as a process of picking flowers in foreign lands to make honey in China, the overall benefits that Chinese graduate students and researchers bring to US universities far outweigh the supposed perils of benefiting China’s military progress. American universities will get adversely impacted if they cannot attract students from China in their graduate and doctoral programs who pay the full freight in tuition fees. When Chinese researchers study in the US and write research papers, they adopt the US model and their papers are peer reviewed before being selected for publication in English that can be accessed by anyone, and not just by the Chinese military. Moreover, 90% of Chinese students are still in the US a decade since they came.

Moreover, there are enough provisions in the INA that would allow a consular officer to deny a visa. In addition to denying an F-1 visa under the usual INA 214(b) for demonstrating immigrant intent, an applicant for a student or research visa can also be denied for security grounds under INA 212(a)(3). Thus, Trump’s latest Chinese ban is akin to using a sledgehammer to crack a nut. It also bypasses Congress authority to amend the INA. In fact, there is a proposed bill sponsored by Senators Cotton and Blackburn that would be even more sweeping by prohibiting t0 Chinese nationals from receiving visas to the United States for graduate or post-graduate studies in STEM fields. The fact that it will be unlikely for these Senators to pass such a draconian bill through both houses of Congress does not justify Trump’s proclamation that rewrites the INA.

The proclamation also contemplates revoking the visas of affected Chinese students and researchers who are already in the US. Under other circumstances, when a nonimmigrant’s visa is revoked while in the US, they can continue to maintain status, but will need to obtain a new visa upon departing the US. Chinese students subject to the ban will likely not be able to apply for new F-1 or J-1 visa unless they qualify for one of the limited exceptions.

Finally, the proclamation leaves open the possibility of further restrictions as it also calls for agency review of “nonimmigrant and immigrant programs” and recommendations for “any other measures requiring Presidential action that would mitigate the risk posed by the PRC’s acquisition of sensitive United States technologies and intellectual property.”

Cyrus Mehta

How the Founding Values of Two Great Nations – United States and India – Can Get Hollowed Out Through Tweaks in their Immigration Laws

/0 Comments/in /by

Until President Trump of the United States and Prime Minister Modi of India came to power, it was unimaginable that democratically elected leaders could cynically tweak immigration laws to undermine the founding values of their nations.

America has unquestionably been viewed as a nation of immigrants and a beacon of liberty for the world’s persecuted until Trump came on the scene. Trump cruelly reduced refugee admissions to a trickle and toughened asylum laws. He has separated children from parents fleeing violence in Central American countries and virtually eliminated their ability to legally claim asylum under US immigration law. Most recently, our colleagues have been able to witness firsthand that the tent courts under Trump’s Remain in Mexico policy, are totally and shockingly lacking in due process. Worse still, Trump fulfilled his campaign pledge by imposing a travel ban on countries with mostly Muslim populations in the name of national security. All of these actions, and many more architected by Trump’s openly xenophobic Senior Advisor Steven Miller, have undermined American ideals symbolized by the Statue of Liberty. Even the new public charge rule has been designed to keep out less wealthy immigrants from countries that Trump derisively called “s-hole countries”. Trump’s then acting USCIS chief Cuccinelli uglily distorted   the famous Emma Lazarus poem associated with Lady Liberty by saying, “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.”

Modi’s Hindu nationalist Bhartiya Janata Party got a second five year term after winning a thumping parliamentary majority in May 2019. India is the world’s largest democracy and 900 million people were eligible to vote in the last general election. Voter turnout in that election was the highest at 67%.  While campaigning for the BJP, Amit Shah, now India’s powerful Home Minister, likened unauthorized immigrants from Bangladesh as termites and vowed to throw them in the Bay of Bengal. Soon after resuming power, the BJP revoked the autonomy of Kashmir in August, the only Muslim majority state in India, and detained its political leaders. Continuing on the same Hindu nationalist trajectory, the BJP pushed through the Citizenship Amendment Act (CAA) that amends the Citizenship Act of 1955. The CAA provides for a pathway to citizenship for Hindus, Christians, Sikhs, Buddhists, Jains, and Parsis who came to India from Pakistan, Bangladesh or Afghanistan on or before December 31, 2014, even illegally, but excludes Muslims. Most of the immigrants who are in India since that time are Muslims. It is also interesting to note that CAA excludes Jews and potentially atheists, although if there are any who are affected, they may be very few in comparison to the millions of Muslim immigrants who have been living in India for decades. The BJP justifies the CAA as a means for sheltering persecuted minorities in neighboring countries, although this makes little sense as Muslims have borne the brunt of persecution in those countries especially the Ahmadiyya and Shia from Pakistan and the Rohingya from Myanmar.

The CAA is far more pernicious when viewed in conjunction with India’s controversial National Register of Citizens, which is part of the Indian government’s efforts to identify unauthorized immigrants in the northeastern state of Assam who allegedly came from neighboring Bangladesh, even though they have lived in Assam for decades. When the NRC was published in August, about 2 million people were not able to establish that they were in India since 1971. Most of them were Muslims and some of them were Hindus. The CAB will protect Hindus who are not on the NRC by affording them citizenship while Muslims who cannot prove that they are citizens will ultimately be kept in massive detention camps and ultimately deported.  Home Minister Amit Shah, who like Steve Miller in Trump’s administration, is the mastermind behind these cruel and divisive policies, plans to extend the NRC across the country that will catch many more million Muslims suspected of being in India illegally. One should note that many of the affected Muslims live in abject poverty and have hardly preserved documents to establish their entry into India by a cutoff date many decades earlier. Many have also been valiant survivors of cyclones that ravage those eastern parts of India that might have washed away their homes, meagre belongings and documents.

Although Muslims have been subjected to discrimination and violence under the BJP administration, and the excellent profile of Modi in the New Yorker reveals why,  the CAA takes this discrimination to a new level as it completely contradicts India’s founding ideal as a plural and secular nation. As the Economist has aptly commented, “To accept religion as a basis for speedier citizenship is to cock a snook at India’s own founding fathers, who proudly contrasted their vision of an open, pluralist society against the closed, Islamic purity of next-door Pakistan.”

Although Trump’s Muslim ban was successfully blocked by lower federal courts, the US Supreme Court in Trump v. Hawaii upheld a watered down version of it in a 5-4 decision. Chief Justice John Roberts, in writing the majority opinion, found that Section 212(f) of the Immigration and Nationality (INA) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.” Although Trump made various utterances regarding his animus towards Muslims during his campaign and even after he became president, the majority found the third version of the Executive Order to be neutral on its face and that it did not violate the Establishment Clause of the First Amendment of the US Constitution. Several of Trump’s other immigration policies such as his blocking of asylum seekers and public charge rule are still being reviewed by the courts.

CAA’s legitimacy will also soon be tested in the Indian Supreme Court. Article 14 of India’s Constitution provides, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” It remains to be seen whether India’s Supreme Court strikes down CAA as unconstitutional or whether it will affirm a law that is blatantly discriminatory against Muslims just as the US Supreme Court upheld Trump’s Muslim ban. It is also rather strange to use religion as a litmus test for citizenship. How does one prove one’s religion, especially when he or she may be not openly practicing it? The fact that Muslims can apply for Indian visas, OCI status or citizenship under other provisions of the Citizenship Act is beside the point. CAA’s blatantly discriminatory intent will subject millions of Muslims to statelessness, detention and deportation while those of other religions even if unauthorized will get a smooth ride to Indian citizenship. It is no surprise that CAA has resulted in massive protests across India and an unjustified harsh police response.

While leaders like Trump and Modi tweak immigration laws for political advantage, they not just undermine the founding values of their nations but also cause great havoc and distress to millions of people. People who vote for them may perceive certain advantages, such as economic or otherwise, but they must also realize that those perceived benefits are hollow if the soul of the nation is eviscerated through cynical manipulation of the immigration laws.

 

 

Cyrus Mehta

Fallout from Trump’s Muslim Ban: Requiring Use of Social Media on Visa Application Forms

/0 Comments/in /by

On May 31, 2019, the State Department added new questions to visa application forms, DS-160/DS-156 Nonimmigrant Visa Application and Form DS-260, Immigrant Visa Application. Visa applicants now have to disclose the social media platforms that they have used within the previous five years and provide their user names or handle for each platform. This information needs to be provided through a drop down list of common social media platforms, although some of the platforms listed are defunct. Applicants are instructed to not provide the passwords for these accounts.  Additional questions requesting the applicant’s current e mail and phone number, as well as a list of additional e mail addresses and phone numbers used in the past five years also now appear on the forms. If applicants are unable to provide the precise details, they can insert “unknown”, but this could result in additional screening or delays during the visa process.

The new policy has caused worldwide concern as it is expected to affect 710,000 immigrant visa applicants and 14 million nonimmigrant visa applicants.

This policy has its genesis in President Trump’s travel ban of January 27, 2017 executive order 13769, which banned nationals from seven Muslim countries  from entering the US- Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. After this executive order was blocked by courts, the Trump administration issued a repackaged March 6, 2017 executive order 13780, which banned nationals from six of the seven countries subject to the original executive order. Iraq was taken off the list.   After even the March 6, 2017 executive order was found unconstitutional by the fourth and ninth circuit courts of appeals, the March 2017 executive order was subsequently revised through a third proclamation 9645 dated  September 24, 2017, which was upheld by the Supreme Court in Trump v. Hawaii.  Chief Justice John Roberts, in writing the 5-4 majority opinion, found that Section 212(f) of the Immigration and Nationality (INA) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.” There has already been much criticism of this decision. Although Trump made various utterances regarding his animus towards Muslims during his campaign and even after he became president, the majority found the third version of Trump’s ban on its face and that it did not violate the Establishment Clause of the First Amendment of Constitution.

Section 5 of the March 6, 2017 executive order provided the basis for the new social media screening policy:

Implementing Uniform Screening and Vetting Standards for All Immigration Programs. (a) The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry. This program shall include the development of a uniform baseline for screening and vetting standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.

Section 5 of the September 24, 2017 proclamation further provided:

Reports on Screening and Vetting Procedures. (a) The Secretary of Homeland Security, in coordination with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies shall submit periodic reports to the President, through appropriate Assistants to the President, that:

(i) describe the steps the United States Government has taken to improve vetting for nationals of all foreign countries, including through improved collection of biometric and biographic data;

(ii) describe the scope and magnitude of fraud, errors, false information, and unverifiable claims, as determined by the Secretary of Homeland Security on the basis of a validation study, made in applications for immigration benefits under the immigration laws; and

(iii) evaluate the procedures related to screening and vetting established by the Department of State’s Bureau of Consular Affairs in order to enhance the safety and security of the United States and to ensure sufficient review of applications for immigration benefits.

Subsequently, in March 2018,  the State Department provided  60 day notices in the federal register regarding its intent to include social media information in  the DS 160 and DS 260 visa applications. Although AILA provided  comprehensive comments in response to the notices expressing concern about  how these questions would discourage individuals from applying for a visa, rendering it impossible to respond accurately to questions relating to temporary telephone numbers as well as concerns about how it will be used, the State Department nevertheless went ahead and introduced these additional questions on  May 31, 2019.

The new questions on social media thus stem from the same executive order that caused worldwide consternation against the US when it banned millions of people from mainly Muslim countries in keeping with Trump’s earlier campaign pledge to ban Muslims. Although the September 24, 2017 executive order was upheld by the Supreme Court, the US has suffered worldwide reputational damage due to the indiscriminate banning of persons solely because because of their nationality. Countries like Iran and Yemen have been particularly affected as many thousands of their nationals have legitimate ties with the US.  Thousands of families remain separated as a result of what is widely come to be known as Trump’s Muslim ban.

Justifying the new questions on social media, a State Department official stated, “As we’ve seen around the world in recent years, social media can be a major forum for terrorist sentiment and activity. This will be a vital tool to screen out terrorists, public safety threats, and other dangerous individuals from gaining immigration benefits and setting foot on U.S. soil.”  But social media has never been a reliable indicator in determining whether someone is a threat to US or not. A post that was written many years ago could also be taken out of context and be easily misunderstood or misinterpreted, resulting in a denial of the visa. This would also create a chilling effect on people and some may feel that participating in a political online discussion could hinder their visa approval hopes.

There is also no ground of inadmissibility in the INA that should apply if one legitimately opposes the United States, its polices or even President Trump. Even if one wishes to come to the US as a visitor for pleasure to participate in a peaceful protest that in itself should not be the sole basis for denying a visa. Under 22 CFR 41.31(b)(2) pleasure is defined as “[l]egitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment and activities of a fraternal, social or service nature.” Clearly, being part of a peaceful protest with like-minded people could constitute activities of a “fraternal” or “social” nature. 9 FAM 402.2-4(A)(3) also contemplates as visitors for pleasure “[p]articipants in conventions of social organizations.”  Still INA 214(b) provides unbridled discretion to a consular officer to refuse most nonimmigrant visas as such an applicant “shall be presumed to be an immigrant” until it is established that he or she is entitled to the nonimmigrant status under INA 101(a)(15).  The consular officer need not provide a reason for the refusal. Even if the visa applicant can demonstrate his or her ties with the home country, the visa can still be refused if all the activities in the US are not consistent with the visa. See 9 FAM 302.1-2 (B)(6). Furthermore, if the social media profile is not consistent with an applicant’s employment history that is required for the eligibility of a visa, such as an L-1 intracompany visa that requires one year of prior employment with a qualifying entity abroad, it could be used as a basis for denial, and even a recommendation to the USCIS to revoke the underlying visa petition.

Unfortunately, there exist grounds of inadmissibility that may trigger upon a review of one’s social media. One  ground is under INA 212(a)(3)(A)(i), which allows a consular  to find inadmissible one, if there are reasonable grounds to believe that he or she seeks to enter the US to engage principally or incidentally in “any other unlawful activity.” Still, one’s legitimate expression of free speech on social media should not lead to the inference that this person will engage in unlawful activity in the US. Then, there is also the extremely broad ground of inadmissibility for terrorist activity under INA 212(a)(3)(B)(II) that allows a consular officer to render the applicant inadmissible if there is a reasonable ground to believe that he or she is engaged or is likely to engage in terrorist activity. Even with respect to this ground, one’s expression of free speech that is generally protected under the First Amendment, however objectionable it may be to the consular officer, ought not to lead to an inference that the applicant will engage in terrorist activity.

Then, there is the possibility that if the information on social media use is not submitted accurately on the visa application due to a misunderstanding, the issuance of the visa can be held up, or worse, the applicant can be rendered inadmissible for fraud or willfully misrepresenting a material fact pursuant to INA 212(a)(6)(C)(i). Someone who inadvertently forgets to reveal a social media handle from over 4 years ago can argue that the misrepresentation was neither willful nor material. According to 9 FAM 302.9-4(B)(4), the “term ‘willfully’ as used in INA 212(a)(6)(C)(i) is interpreted to mean knowingly and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise.” Even if an applicant willfully misrepresents, it must be a material misrepresentation. A misrepresentation is material if “[t]he misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she be inadmissible.” See 9 FAM 302.9-4 (citing Matter of S- and B-C, 9 I. & N. Dec. 436, at 447).   Unfortunately, even when one can overcome a finding of inadmissibility, it is a very difficult and protracted process to convince a consular officer to reverse an unfavorable determination. Moreover, deleting social media handles prior to completing a visa form will serve no benefit whatsoever, as the question asks for use of social media in the past 5 years without regard to whether one is using them presently or not. It will also lead to further suspicion and thus delays and denials.

The additional questions on visa forms relating to social media are a logical extension of Trump’s Muslim ban – rather it is more like going down the proverbial slippery slope. The countries affected by the ban were few but the added instruction on the forms to profile and suspect people based on their social media use will impact millions more. It remains to be seen whether other countries will also impose similar questions on their visa forms. Such copycat actions can be used to retaliate against American visa applicants or by other countries who want to screen out nationals of countries they find undesirable.  The questions will dissuade applicants from visiting the US temporarily for legitimate purposes.  These questions will also unfortunately result in unfounded and arbitrary denials of visa applications of those who are coming to the US both temporarily and permanently, thus depriving US educational institutions of foreign students and US businesses from increased business through tourism. Those legitimately sponsored for permanent residency by family members, employers or through investment will also be adversely impacted. The policy is also going to create a chilling effect on people as  some may feel participating in a political online discussion could hinder their visa approval hopes. It would hope that people are not denied a visa based on a tweet that’s deemed to be against American policies that is consistent with free speech protected under the First Amendment. Otherwise, the only loser will be America, whose standing has already been diminished after the implementation of the Muslim ban.

 

Cyrus Mehta

Don’t Always Suck Up to Buy American Hire American

/0 Comments/in /by

President Trump’s Buy American Hire American Executive Order (BAHA) has little relevance in an economy where the unemployment rate is 4% and the Labor Department has reported that there is a record high of 7.3 million job openings.  BAHA has however been deployed to make life harder for legal immigrants who do their best to remain in status while pursuing lawful permanent residence. They also benefit the United States as their employers need them and follow the law in filing appropriate visa applications.   For example, H-1B visa renewals that were routinely approved previously are now being denied in the name of BAHA. The USCIS has recently released new H-1B data that reflects an increase in requests for evidence and denials in 2019, again pursuant to BAHA.

BAHA aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. BAHA highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries. BAHA, however, is merely an executive order. It should not take precedence over the Immigration and Nationality Act.  Still, the USCIS uses BAHA as justification to refuse otherwise approvable H-1B petitions. Some of these H-1B denials are absurd. The author recently heard that the USCIS denied a petition filed on behalf of a pathologist by an established pharmaceutical company.

Following BAHA, the State Department also swiftly made changes to the Foreign Affairs Manual regarding guiding consular officials in issuing nonimmigrant H, L, O, P and E visas. The changes relating to H and L visas are reproduced below as examples:

9 FAM 402.10-2 Overview of H Visas

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(H) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040210.html

9 FAM 402.12-2 Overview of L visas

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(L) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040212.html

Based on these FAM changes, here have been several anecdotal reports of consular officers asking visa applicants as to how their employment will further BAHA by creating jobs for American workers or not depressing their wages. Some have been questioned whether their employers first tried to hire American workers even when such recruitment is not required under the specific visa. Such questioning is entirely inappropriate and not consistent with the law under which the visa petition was approved.

For example, the remuneration of an intracompany transferee on an L-1 visa can emanate from a US or a foreign source. See Matter of Pozzoli, 14 I&N Dec. 569 (RC 1974). The L visa also does not mandate a certain wage or a test of the U.S. labor market.  An E visa treaty trader or investor does not need to be paid wages. Still, under BAHA, this may be viewed as suspect if it does not create higher wages and employment rates for US workers. BAHA was not in existence when Congress created the L, E, H-1B or O visa provisions in the INA. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.).  There is also no indication in the plain text of INA 101(a) (15) (L) that the purpose of the L visa was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Therefore, if Congress desired the same purpose for the L or the O visa, as it did for the H-2B visa, it would have said so. Even with H-1B visas, unless an employer is a dependent employer, there is no obligation on the part of the employer to recruit for US workers. Regarding wages too, if an employer is legitimately hiring a worker for an entry level position in an H-1B specialty occupation, the employer is under no obligation under the law to pay the highest level wage.

As a result of all visa applications being viewed through the prism of BAHA, attorneys feel the need to advise their clients to answer questions of consular officials relating to BAHA. Some attorney are also indicating in H-1B and other visa petitions (both nonimmigrant and immigrant) as to how the beneficiary will further BAHA. While it may be tempting for us as attorneys to invoke BAHA as if it is a deity with magical powers, it may also lead us down a rabbit hole. Apart from not being law and only an executive order, BAHA sets no standard for the attorney to guide the client. If the attorney indicates that the H-1B worker’s entry into the US will create more jobs, there is no metric to establish this. The only metric we have under current immigration law include specific labor market tests under the permanent labor certification program, the H-2A and H-2B programs and the H-1B program for dependent employers or willful violators. These rigid criteria have not been followed in other visa petitions such as an L-1 or an H-1B (for a non-dependent employer or an employer who is not a willful violator), and they do not need to.

If a client is asked inappropriately regarding whether the position will impact American workers or not, the client should be prepared to answer that the visa petition met all the criteria under the statutory and regulatory provisions, and was approved accordingly. There is no need for the client, or the attorney, to improvise on why the applicant’s employment in the US will result in more jobs for US workers.  Advancing the client’s cause under BAHA will lead to more questions from the adjudicating official, which could be arbitrary and cannot he held up to an objective legal standard.

This is not to say that an applicant should never make a BAHA argument in his or her favor. There may be some instances where the argument in favor of BAHA is clear cut or the official asks specific questions where an answer may be readily available.  The purpose of this blog is to caution against the talismanic invocation of BAHA, when there is no metric or standard, under which an adjudicating official can be held up to. BAHA has also been used most effectively to deny immigration benefits. If an official infuses the adjudication process with BAHA, resulting in a denial, it could be grounds for appeal. Even at the consular level, which is generally immune from administrative or judicial review, a denial of a visa application based on BAHA would potentially allow the applicant to seek an advisory opinion from the Visa Office if the denial was contrary to the statutory provision.  If the applicant already conceded that the official could ask for extraneous evidence under BAHA and provided it, it may be harder to appeal such a denial. Therefore, in the opinion of this author, it is best to not always suck up to BAHA.