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Immigration Reform by Executive Action – Texas v. United States (The Latest)
Back to politics (disguised as a review of a 5th Circuit Court of Appeals decision).
Briefly, on May 26, 2015, a divided panel of the 5th Circuit Court of Appeals refused to lift a temporary injunction against the implementation of President Obama’s executive action regarding the new November 2014 DAPA program and the expansion of the June 2012 DACA initiative. The Department of Justice (“DOJ”) had asked the 5th Circuit to reverse Texas federal district Judge Andrew S. Hanen’s decision to temporarily block implementation of President Obama’s programs while the lawsuit worked it ways through the courts. The decision states, “[b]ecause the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”
For what it’s worth, I disagree (and I won’t repeat arguments I’ve previously made in this blog support of my position).
As a reminder, twenty-six states are suing the federal government over President Obama’s executive actions on immigration, and Judge Hanen issued an injunction on February 16, 2015 to enjoin DAPA and expanded DACA from taking effect while the lawsuit works its way through the courts. Pending the government’s appeal, the DOJ sought a stay of the injunction, arguing, among other things, that the nation’s immigration policy is the domain of the federal government, not the states. Judge Stephen A. Higginson, in dissent, wrote, “I would not affirm intervention and judicial fiat ordering what Congress has never mandated.”
It is my understanding that 5th Circuit will now hear oral arguments on July 10, 2015 in the Obama Administration’s attempt to lift (not stay) Judge Hanen’s preliminary injunction which blocked expanded DACA and DAPA from taking effect. In the meantime, the underlying case of Texas v. United States is still pending in the district court in Brownsville, Texas before Judge Hanen. The case is still in the early stages of discovery.
I find it interesting that a similar suit challenging President Obama’s actions filed by Maricopa County, Arizona Sheriff Joe Arpaio, Arpaio v. Obama, was dismissed by a Washington, D.C. federal court at the end of 2014. That case is currently on appeal before the D.C. Circuit Court of Appeals.
Speaking in dissent, Judge Higginson spoke to the “political nature of this dispute” and noted that the courts have no role in this dispute. The federal court in Washington, D.C. must have understood this when it quickly dismissed Sheriff Arpaio’s similar suit challenging DACA and DAPA.
I have previously argued in this blog and elsewhere that not implementing expanded DACA and DAPA means that our country will not derive substantial economic benefits that the overwhelming weight of the evidence clearly shows would result from their implementation. More importantly, though, the delay or failure to implement expanded DACA and DAPA means millions of families will continue to be forced to live apart, in uncertainty, and under the threat of possible deportation. Please, can we just get past all the politics and implement some meaningful immigration reform? Stay tuned.
“Crimmigration” and the Repeal of Silva Trevino
So I’m going to take a moment to move away from politics and instead discuss some positive developments in the world of “crimmigration.”
On April 10, 2015, former Attorney General Eric Holder vacated in its entirety the November 7, 2008 opinion of Matter of Silva-Trevino,[1] finding that because the Circuit Courts were split and at least two Supreme Court decisions cast doubt on its continued validity, the opinion was no longer useful in determining whether a particular criminal offense is a Crime Involving Moral Turpitude (“CIMT”) under the Immigration and Nationality Act (“INA”). What the heck am I talking about?
Back in 2008, then Attorney General Robert Mukasey issued the decision Matter of Silva-Trevino (commonly referred to as Silva-Trevino I), which allowed Immigration Judges to find a foreign national deportable from the United States on the basis of alleged facts never established (i.e., proven) in the foreign national’s criminal case which formed the basis of his or her removal (i.e., deportation) proceedings.
Since this decision, five Circuit Courts of Appeals have rejected Silva-Trevino I. Essentially what was happening was Immigration Judges were re-trying criminal cases in their own courts, and in doing so, they were considering (often unproven) facts that were outside of the foreign national’s Record of Conviction in his or her criminal proceedings.[2]
This was problematic on at least two levels. First, it created great difficulty for criminal defense lawyers to properly advise their clients regarding the potential immigration consequences of taking a plea to certain criminal charges. Second, many of the respondents in removal proceedings were individuals who were detained and without counsel, and who had previously given up their right to trial in their criminal proceeding and agreed to plead guilty with the intent of avoiding the immigration consequences presumably associated with their pleas.
Former Attorney General Holder’s order vacating Silva-Trevino I and its accompanying opinion (commonly referred to now as Silva-Trevino II) cited Supreme Court case law which makes it very clear that any inquiry as to whether a criminal offense is a CIMT for immigration purposes in the future should not go beyond the Record of Conviction.[3]
What does all this mean in practice? Noncitizens can be deported from the United States if they have been convicted of a CIMT (and in some cases, if they’ve been convicted of two CIMT’s).[4] Examples of CIMT’s under various state case law include, without limitation, fraud and theft offenses, offenses in which intentional bodily harm is caused, and various sex-related offenses.
To determine whether a noncitizen has been convicted of a CIMT, immigration officials have generally looked to the “inherent nature” of the offense as opposed to what the defendant actually did in a particular case. Simply stated, the facts of the case are irrelevant. This approach is called the “categorical” approach.”
A few weeks before George W. Bush’s presidency ended, former Attorney General Mukasey issued Silva-Trevino I, which dramatically changed the playing field, and essentially allowed Immigration Judges in certain cases to examine evidence beyond the Record of Conviction to assess whether the defendant’s conduct which formed the basis of his or her conviction involved moral turpitude.
Silva-Trevino I first instructed Immigration Judges to use the traditional “categorical” approach to determine whether a conviction constituted a CIMT. Again, under this analysis, the defendant’s actual conduct was irrelevant. The only question that needed to be answered was whether the elements of the statute of conviction either necessarily fall within the case law definition of a CIMT or never do so. If the Immigration Judge was unable to determine that the prohibited conduct under the statute either always or never involved moral turpitude, then the Immigration Judge was instructed to review the Record of Conviction.[5] Again, the inquiry would end if the court was able to determine whether or not the defendant was necessarily convicted of a CIMT. If the modified categorical approach did not resolve the question one way or the other, then Silva-Trevino I allowed for the Immigration Judge to consider “any additional evidence the adjudicator determines is necessary or appropriate to resolve adequately the moral turpitude question,” whether or not it was contained in the formal Record of Conviction.[6]
As indicated earlier, five federal circuit courts rejected Silva-Trevino I, essentially holding that where immigration consequences are premised on a “conviction,” the immigration statutes are unambiguous in prohibiting an Immigration Judge (or any adjudicator for that matter) from considering simply alleged facts, including evidence outside the Record of Conviction.[7] Indeed, this is what Silva-Trevino II stands for; that is Attorney General Holder’s order prohibits an Immigration Judge from using evidence outside the record of conviction in determining whether an offense involves moral turpitude. Consequently, criminal defense attorneys are now able to assess whether an offense involves moral turpitude and to help their noncitizen client avoid such a designation. This is good news for all.
[1] Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).
[2] Immigration Judges were considering evidence outside of the Record of Conviction (e.g., the charging document, bill of particulars, verdict or judgment, sentence, minute entries, written plea [if there was one], jury instructions [if there was a trial], presentence report, or probation report) in order to determine whether a foreign national was removable from the United States on the basis of a conviction of a CIMT.
[3] Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015).
[4] See 8 U.S.C. §§ 1182(a)(2)(A), 1227(a)(2)(A)(i), (ii).
[5] This part of the inquiry is generally referred to as the “modified” categorical approach.
[6] Silva-Trevino I at 704.
[7] Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014); Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303 (11th Cir. 2011); and Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462 (3d Cir. 2009).
Immigration Reform by Executive Action – Were the President’s Actions Lawful?
Oranhall-Dreamstime.com
Some time has now passed since President Obama announced on November 20, 2014 his intention to go it alone to “fix” of our “broken immigration system.” Since that announcement, lawyers such as myself were hopeful that we could start working with clients on their applications for expanded relief under Deferred Action for Childhood Arrivals (“DACA”), and later this Spring under the President’s new “deferred action” program for the parents of U.S. citizens and lawful permanent residents (“LPR’s), commonly known as “DAPA”.
That all came to a screeching halt on February 16, 2015, when Texas federal district Judge Andrew S. Hanen granted a temporary injunction against the implementation of President Obama’s executive action regarding the DAPA program and the expansion of the President’s June 2012 DACA initiative. The injunction temporarily blocks President Obama’s executive action aimed at providing administrative relief from removal to millions of immigrants. President Obama has vowed to appeal. This, of course, begs the question of whether the President’s actions were lawful. I think they were.
A (Very) Brief History of Previous Exercises of Discretionary Relief
President Obama’s administrative action was but the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations. According to the American Immigration Council, since 1956, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together. So why all the fuss now?
Prosecutorial Discretion, the Immigration Law and Regulations, and the Supreme Court
DACA was established by executive action in June 2012, and was expanded by the President’s announcement in November 2014. DAPA was first announced by the President in November 2014. Prosecutorial discretion generally refers to the authority of the Department of Homeland Security (“DHS”) to decide how the immigration laws should be applied, and it is a legal practice that has existed in law enforcement for quite some time.
For example, the Immigration and Nationality Act (“INA”) and its implementing regulations are replete with examples where DHS will either refrain from an enforcement action, like electing not to serve and thereafter file a charging document (commonly known as a Notice to Appear) with the Immigration Court, as well as well as decisions to provide a discretionary remedies when an immigrant is already in removal proceedings, such as granting stays of removal, granting parole, or granting deferred action.
The INA itself authorizes the President’s legal authority to exercise prosecutorial discretion, including by prohibiting judicial review of three (3) types of actions involving the exercise of prosecutorial discretion (i.e., the decisions to commence removal proceedings, to adjudicate cases, and to execute removal orders).
Congress has also legislated deferred action in the INA itself as a means by which the executive branch may use, in the exercise of its prosecutorial discretion, to protect certain victims of crime, abuse, or human trafficking.
Notably, the INA also has a specific provision which recognizes the President’s authority to authorize employment for non-citizens who do not otherwise receive it automatically by virtue of their particular immigration status. See INA § 274A(h)(3). It is this provision, in conjunction with other regulations, that currently confers eligibility for work authorization under DACA (and would do so again under expanded DACA and DAPA).
Beyond this, memoranda issued by federal agencies authorized to implement and enforce our nation’s immigration laws recognize prosecutorial discretion too, including a seminal one issued by legacy-Immigration and Naturalization Service “INS”) Commissioner Doris Meissner in 1990 to her senior agency staff. There are earlier memoranda as well opining as to the legality of prosecutorial discretion too.
Finally, the Supreme Court held in Arizona v. United States that a “[a] principal feature of the [deportation] system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue [deportation] at all . . . .” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
As a result of all of the above (i.e., the INA and its implementing regulations, Supreme Court decisions, and agency memoranda), there have been at least thirty nine (39) instances since 1956 where a president has exercised his executive authority to protect aliens, generally in the interest of simply keeping families together.
So What Happens Now?
Our history is replete with examples of U.S. presidents, in the name of prosecutorial discretion, issuing directives that provided for deferred action (or whatever they may have called it at the time) to non-citizens of the United States, and indeed Judge Hanen, in his written decision, affirmed the executive branch’s right to exercise prosecutorial discretion.
Previous lawsuits against similar executive actions have failed in the past. Indeed a similarly politically motivated lawsuit was thrown out in December 2014 when Maricopa County Sheriff Joe Arpaio argued that President Obama’s announcements were unconstitutional. In 2012, the State of Mississippi challenged the legality of DACA in a case similar to the current Texas lawsuit, and that case was dismissed because the judge found the perceived economic hardship the state claimed was purely speculative.
As I have previously argued and substantiated in this blog, studies have shown that deferred action initiatives, apart from being the right thing to do, are economically beneficial to our country. In his decision, Judge Hanen cites the government’s “failure to secure the borders” and then goes on to support the plaintiffs’ position of supposed costs to the states without any evidence whatsoever in the record. The American Immigration Lawyers Association (“AILA”) and others have argued that Judge Hanen disregarded information submitted by the government and AILA as to the widespread economic and social benefits that the expanded DACA and DAPA programs would provide. They’re right.
Again, the Obama Administration has indicated it will appeal, and at the same time seek a stay to the enforcement of Judge Hanen’s order. I am cautiously optimistic that the government will prevail. In the meantime, it’s noteworthy to point out that those who have previously been granted DACA are not at all affected by Judge Hanen’s ruling. This ruling only delays the start of DAPA and the expansion of DACA.
Saratoga Race Course’s Back Stretch Workers: More Need for Immigration Reform
I am very fortunate to live in Saratoga Springs, New York. Last Friday was opening day at the Saratoga Race Course, and the weather cooperated. As a result, the crowds were out to watch racing at what I would argue is the country’s finest racing venue.
Friday morning, at about 5:30 AM, the line outside the track was all the way down Union Avenue, with thousands of patrons trying to be the first ones through the gates. About a month or so ago, I saw a similar line, but this line was filled with hundreds of people hoping to get summer jobs at the track. Those jobs are for what I will call “front of the house” positions, like gate attendants who take your money, people who sell programs, and food and beverage providers. Of course there are many more.
Those who weren’t in that line, however, were the back stretch workers who do all of the little things to make our track experience enjoyable. These are the trainers, exercise riders, jockeys, grooms, farriers, veterinarians, muckers, jockey agents, and all the other positions associated with horse racing.
While many of these workers are U.S. citizens, quite a lot of them are foreign nationals from Central America. Many of them enter the United States annually on an H-2B nonimmigrant visa. Quite frankly, these are positions that U.S. workers do not want to fill, and unfortunately for those in the horse racing industry, they are stuck trying to navigate the incredibly cumbersome (and expensive) process of obtaining an H-1B nonimmigrant visa for these workers on an annual basis… and in 2012, it got a lot worse.
The H-2B nonimmigrant worker classification allows foreign nationals who are citizens of certain named countries (with some limited exceptions) to accept temporary non-agricultural employment in the United States, after the employer has obtained a temporary labor certification from the U.S. Department of Labor by establishing that there were no willing, able, and qualified U.S. workers available during the period of recruitment.
The H-2B classification allows foreign nationals to provide “temporary or seasonal” services or labor, provided the employment does not displace U.S. workers “capable of performing such services or labor” and as long as the H-2B employment will not adversely affect the wages and working conditions of U.S. workers.
The temporary job may be professional, skilled, or unskilled, and there must be a seasonal, peakload, intermittent, or one-time need for the temporary services or labor. Therein lies part of the problem with using the H-2B nonimmigrant visa for backstretch workers. Employers need to clearly show that their need is short-term; that is, regardless of whether or not the position by itself can be explained as not being a permanent one, the employer has to have only a temporary need for the worker (i.e., a seasonal, peakload, intermittent, or one-time need for the temporary services or labor).
This was not a particularly big issue until 2012, when the government changed its interpretation of the law, effectively making a program that is vital to the horse racing industry, and to our enjoyment of it 40 days a year in Saratoga Springs, that much more difficult. The government used to say that workers met the standards of “seasonal” and “temporary” because the same owner or trainer needed them in different locations at distinct times of the year. In 2012, however, the government’s interpretation changed, and its position now is that these backstretch workers are essentially year-round employees. Now, owners and trainers must file separate visa applications for each worker at each meet. Perhaps the larger stables can afford this, but the smaller ones cannot.
This is yet another example where immigration reform could be useful. Unfortunately, things in Washington are not looking promising. When our government cannot even resolve the current humanitarian crisis affecting all of the children arriving at our borders, what chance do the owners, trainers and backstretch workers have?
Capital Region Approved as EB-5 “Regional Center”, Inviting Foreign Investors
OK, now for something completely new and pretty exciting (at least in my world). U.S. Citizenship and Immigration Services (“USCIS”) recently approved an application for an EB-5 Regional Center in the Capital Region which was facilitated by the Center for Economic Growth (“CEG”) and Prime Regional Center, LLC, an affiliate of Prime Companies. The Regional Center will be in an area of Upstate New York that includes eight counties surrounding and including the Capital Region, as well as specific counties in the Southern Tier, Mohawk Valley and Central New York.
So, what’s a Regional Center? Good question! Employment-based immigration is organized in a “preference” system, and one of the preferences is commonly called “EB-5”. The EB-5 employment preference is for immigrant investors (i.e., for employment-creation). In general, this category provides, initially, conditional permanent residence for foreign nationals who invest $1,000,000.00 in a new commercial enterprise that employs at least ten (10) full-time U.S. workers. The foreign national is made a conditional permanent resident for a two (2) year period, at which time he or she may make an application to remove the conditions and grant permanent residence. In order to receive unconditional permanent residence, the foreign national must show that he or she has “substantially met the capital investment requirement.”
A foreign national may also be able to make a smaller investment of $500,000.00 if the investment is in a targeted employment area that includes rural areas with populations of less than 20,000, or locations that have experienced unemployment at 150 percent of the national average.
Certain EB-5 visas also are set aside for investors in what are called Regional Centers, which are designated by USCIS based on public or private proposals for promoting economic growth. A Regional Center is defined as any economic entity, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.
The Regional Center program is for generally good for investors who have the means to invest the capital (i.e., not less than $500,000.00), but who do not wish to actively manage the business. Foreign national investors who choose to invest through a Regional Center must demonstrate that a “qualified investment” is being made in a new commercial enterprise located within an approved Regional Center, and show, using reasonable methodologies, that ten (10) or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the Regional Center. The typical investment will be $500,000.00 (plus additional fees and expenses associated with getting into the program, which can range from $20,000 to $70,000, plus or minus, plus professional fees), which may or may not be returned to the investor at the end of the proverbial day.
In a statement about the approval of the Capital Region’s EB-5 Regional Center, New York Governor Andrew Cuomo said, “As the State works to attract businesses and jobs from across the nation, we must also look overseas to lure global investors and entrepreneurs to start and grow their companies in New York. … With this approval, the Capital Region will be more attractive than ever before to businesses from overseas interested in expanding their investments here in the United States.”
We can only hope.
Basically, an EB-5 Regional Center allows wealthy foreign national investors to essentially “buy” a Green Card for themselves and their families (although not without a lot of hoops to jump through and significant financial risks too). The EB-5 program has been around for quite some time now, but not until the Regional Center portion of the EB-5 program gained traction with the immigration bar and the economic development community and their lenders did it start being used as it was intended; that is, to stimulate the U.S. economy through job creation and capital investment by immigrant investors by creating a new commercial enterprise or investing in a troubled business.
This is truly an exciting opportunity for the Capital Region!
US Employers Apply for Visas for Foreign Nationals in Specialty Applications : H-1B Cap Reached in 7 Days
On April 7, 2014, U.S. Citizenship and Immigration Services (“USCIS”) made the following announcement:
“U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.”
O.K., I know what you’re thinking. “Here he goes again.” Sorry, I can’t help myself. This one is a no brainer.
As a reminder, for those employers who wish to hire foreign nationals as H-1B nonimmigrant workers, unless the position is exempt from the annual cap, there is an annual cap of 65,000 nonimmigrant visas that are available in each government fiscal year (plus an additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education).
So, in response to the cap being reached pretty much right away, the American Immigration Lawyer’s Association (“AILA”) issued a statement through their President, Doug Stump:
“There is a serious flaw in the laws governing H-1B visas. Instead of reacting to market needs, we discard the applications of tens of thousands of potentially job-creating immigrants every year. … I’m frustrated that we are still in this position. During the recession, we saw that the demand for H-1Bs slowed. The problem is that now that the recovery has been consistent for a few years, it’s become increasingly clear that keeping the same cap we’ve had on these visas for more than ten years is absolutely the last thing we should be doing.”
He’s frustrated? Imagine having to counsel a client that after paying you your legal fees, there’s a chance that all the work that you’ve done for them will go for naught because the government has set up a random lottery system to select which H-1B petitions will be selected and which ones will be rejected. That’s right, a random lottery system. (For you litigators out there, at least when you pick a jury, you have some sort of say in the process, but this is a complete crap shoot.)
Yes, that’s what happens when you receive more than twice the amount of petitions than there are visa numbers available. Indeed USCIS announced that it received approximately 172,500 H-1B petitions during the FY2015 filing period. As a result, it then performed a computer-generated random selection process, which it completed on April 10, 2014, to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.
Mr. Stump went on in his statement:
“The H-1B process is a complicated one. The petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation. This is a process that involves a lot of hoops to jump through as it is. If a company files an H-1B petition, the least we should do is consider the request and either approve or reject it on its merits. It isn’t rational to cap these visas arbitrarily and throw out thousands of applications without even a glance.”
I could not agree more. Clients start calling me in January to start preparing for H-1B filing season (which begins on April 1 each year). The simple fact is, there’s a lot of time and expense that goes into preparing an H-1B petition. This is all well-documented, and any Google search will confirm this. So, to go through all this effort and then have USCIS simply reject your client’s petition because the computer did not select it is absolutely ridiculous.
Yes, I know, it’s the law. But it’s a bad law. Again, AILA President Stump:
“Having the talent we need to do the skilled and specialized work that so many companies require in the globally competitive marketplace is vital to our economy and national interests. We need our legislators to take this issue seriously when they move forward on immigration reform because our legal immigration system is in desperate need of an overhaul in order to bring it into the 21st century.”
The same day USCIS made its announcement that the H-1B cap had been reached, the White House issued the following statement regarding the U.S. Department of Homeland Security:
“The Department of Homeland Security (“DHS”) will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness. These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers. These measures build on continuing DHS efforts to streamline, eliminate inefficiency, and increase the transparency of the existing immigration system, such as by the launch of Entrepreneur Pathways, an online resource center that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States.”
The issue of “trailing spouses” is an important one, and locally here in the Capital Region, we have a great resource in Tech Valley Connect, a not-for-profit that, among other things, assists foreign national trailing spouses. But what about the fact that USCIS received more than twice the amount of petitions than there were H-1B numbers within just a few days of being able to file?
We desperately need to increase the number of cap-subject visas available for H-1B nonimmigrants. And that’s not going to happen without strong leadership in the White House, and the support of Congress. The time is still now.
Can’t We Just Deport Justin Bieber?
OK, so my apologies ahead of time to those of you who have children who like Justin Bieber or enjoy his music. My children are still (mercifully) way too young to know who he is or the shenanigans he gets himself involved in.
What I did not know until his recent arrest in Miami is that the young Mr. Bieber is not a U.S. citizen; rather, I am informed that Mr. Bieber is in the United States as a nonimmigrant (perhaps in an O-1 nonimmigrant status, which status is reserved for foreign nationals of extraordinary ability). In Mr. Bieber’s case, the standard for an O-1 nonimmigrant is actually a lower standard; that is, instead of proving to U.S. Citizenship and Immigration Services (“USCIS”) that he’s an alien of extraordinary ability, because he’s an “artist or entertainer” (so they say), the standard is showing that he’s an alien of “distinction.” But I digress.
My understanding is that Mr. Bieber and R&B singer Khalil Sharieff were arrested on January 23 while drag-racing in Miami Beach. According to news reports, Mr. Bieber was charged with driving under the influence (“DUI”), resisting arrest and using an expired driver’s license. He has pleaded not guilty to all charges.
Some news outlets also reported that Mr. Bieber initially resisted arrest, cursed at police officers, and also told police that he had consumed alcohol, pot and prescription drugs (this all according to the police). His next appearance in court is May 5.
Of course, the arrest (and related arrogance) of a young pop star consumed the media for days, if not weeks. What was more interesting to me, however, is when some media outlets started reporting that people were calling for Mr. Bieber to be deported (actually, officially called “removed”) from the United States.
For example, a petition was lodged with the White House to have Mr. Bieber deported. The petition was created the day of his arrest, and it urged the White House to revoke Mr. Bieber’s permission to be in the country.
We the people of the United States feel that we are being wrongly represented in the world of pop culture. We would like to see the dangerous, reckless, destructive, and drug abusing, Justin Bieber deported and his green card revoked. He is not only threatening the safety of our people but he is also a terrible influence on our nation’s youth. We the people would like to remove Justin Bieber from our society.
First off, as noted above, I don’t believe that Mr. Bieber has a “green card”. But apart from that, over 100,000 people have signed on to the petition. Even Sen. Mark Warner, a Democrat from Virginia, is on board. “As a dad with three daughters, is there someplace I can sign?” he asked with a laugh, when prodded by the hosts of Chesapeake-based FM99’s “Rumble in the Morning.” The White House is obligated to respond to petitions that reach more than 100,000 names. Still waiting on their response at this point.
OK, so this all got me thinking. Could Justin Bieber actually be removed from the United States as a result of this incident?
Immigration consequences attach to foreign nationals who have been “convicted” of certain crimes, as well as sometimes even to foreign nationals who admit to committing certain crimes for which they were not convicted, or whom the government has “reason to believe” are involved in certain criminal activities. Because Mr. Bieber (I presume) is lawfully in the United States, he would be subject to the grounds of deportability under section 237 of the Immigration and Nationality Act (INA), as amended, and possibly even the bars to a finding of good moral character at under section 101(f) of the INA.
I’ve had an opportunity to review Mr. Bieber’s Complaint / Arrest Affidavit (and I must admit, it makes for some very interesting reading if you don’t mind the “f” bomb).
Mr. Bieber was charged with violating section 316.193 of Florida Statutes, which generally relates to DUI offices. This section of law includes several subsections, and it’s not clear from the Complaint / Arrest Affidavit under which subsection he was charged. Nevertheless, as no one was hurt or (thankfully) killed in the incident, it seems reasonable to conclude that he was charged under a subsection that would not result in his being convicted of, e.g., an aggravated felony (for immigration purposes)[1] or a crime involving moral turpitude.[2] The other two charges likely do not have negative immigration consequences as well. So, he appears safe, as far as these charges go anyway.
However, if the young Mr. Bieber did admit to police that he abused drugs, this could be a big problem for him. The INA that provides that “[a]ny alien who is, or at any time after admission has been, a drug abuser or addict is deportable.”
Of course, I don’t wish any ill-will on Mr. Bieber, but if all this was the case, my children might not ever ask me whether they can see him at the Times Union Center or SPAC as they’re growing up!
[1] The term “aggravated felony” is defined at section 101(a)(43) of the INA, and now includes some 50 different offenses. While some of these offenses, such as murder, rape, and kidnapping, would sound like aggravated felonies to the layperson, a good number of the offenses in the definition do not readily appear heinous enough to be termed “aggravated felonies,” and based upon case law, some DUI violations can be considered aggravated felonies.
[2] The Board of Immigration Appeals (“BIA”) defines a Crime Involving Moral Turpitude as “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”
Team USA Sochi 2014 and the Influence of Immigration
I always enjoy watching the Olympics, both summer and winter. Sure, they’re a bit over the top, not to mention exorbitantly expensive to host these days. And the Olympics have seen their share of tragedy too, both human and political. But did you know that there’s a long history of first and second generation immigrant athletes representing the United States on Team USA? (Did you also know that some former Olympic champions were previously in the United States unlawfully?) The U.S. Skating Team is especially influenced by immigrant athletes and coaches. For example:
- Simon Shnapir, who came to the United States from Russia, will be representing the United States in Sochi in pairs skating with his partner, Marissa Castelli.
- Marina Zueva, previously a Russian ice dancer, retired in the late 1970’s to become a choreographer. She moved to the United States in 1991 and has worked with many elite skaters including current members of Team USA.
- Oleg Epstein, Marina Zueva’s former partner, is also an immigrant from Russia. He has choreographed Gracie Gold and ice dancers Davis and White and is currently a coach and choreographer for siblings Maia and Alex Shibutani.
- Although the “Shib Sibs,” as the Shibutanis are commonly known, are first generation Americans, their mother is an immigrant from Japan who met their father when they were both studying music at Harvard.
- Rafael Arutyunyan, born in Soviet Georgia, competed as a skater for the USSR early in his career. After immigrating to the United States, he has coached many successful U.S. skaters including Michelle Kwan. He is currently one of Ashley Wagner’s coaches.
- Igor Shpilband, a former ice dancer for the USSR, defected to the United States in 1964. He is both the coach and choreographer for ice dancers Madison Chock and Evan Bates.
- Finally, Yakuto Sato, a former Japanese figure skater who placed seventh at the 1992 Winter Olympics and fifth at the 1994 Winter Olympics, is, interestingly enough (considering where the Olympics are being held) the only foreign-born Team USA skating coach without a Russian background. She currently works as a coach and choreographer at the Detroit Skating Club, where she coaches Olympic hopeful Jeremy Abbott.
Considering the Olympics are being held in Sochi, Russia, I suppose it’s a bit ironic that all but one of the individuals noted above is of Russian descent. Nevertheless, it does not mean we support our Team USA any less. We wish them all great success.
Coke Super Bowl Ad “America Is Beautiful” : Stunned by the Intolerance and Bigotry
I was actually stunned Monday morning, the morning after the Super Bowl, not because the Broncos had been blown out by the Seahawks, but because of the unbelievable reaction to Coca-Cola’s 60 second Super Bowl advertisement. And when I say stunned, I mean I was really stunned.
Last night my wife was reading to me some of the posts that were showing up on YouTube, right below the link to Coke’s advertisement. As I type this blog, 9455 comments have been posted, and that number is increasing every time I check it. I don’t spend a lot of time online, and virtually no time on social media sites, but I am told this is a ridiculously high number of comments. I thought about giving some examples here, but honestly, I can’t even dignify any of them by re-posting them.
Are we not a nation of immigrants? Are we not a melting pot? Was the Super Bowl not played just a few miles south of the largest melting pot in the world? Has anyone taken a walk and looked around Herald Square recently (where ESPN set up camp just outside of MACY’s for the week before the Super Bowl)? Has anyone looked at the faces of the thousands of people that walk around Time Square every day (which also happened to be right in the middle of Super Bowl Boulevard)? Isn’t Ellis Island, right in New York harbor, where many of our grandparents landed when they came to America, very likely speaking languages other than English?
I’m quite sure that many of the people who posted their slurs on YouTube don’t even know that our own government allows some immigrants to pass a test to become a U.S. citizen without even speaking a word of English. That said, it does not mean the immigrants don’t wish to learn or become proficient in English. Indeed, the opposite is true. According to the Pew Hispanic Forum, the development of English language proficiency among non-English speaking immigrants today mirrors that of 19th and early 20th century, when our ancestors of Italian, German, and Eastern European decent came to America (many through Ellis Island). While first generation, non-English speaking immigrants predictably had lower rates of English proficiency than native speakers, 91 percent of second generation immigrants are fluent or near fluent English speakers. And by the time we get to the third generation, that number goes up to 97 percent!
I’ve spent the last year writing about the virtues of immigration in general, and the positive outcomes that will result if Congress is able to pass, and the President actually signs, legislation dealing with Comprehensive Immigration Reform (“CIR”). Last July the U.S. Senate passed the Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act.” Finally, last week, in the wake of the President’s State of the Union Address, House Republicans released their standards for immigration reform. The standards include enforcement, reforming the legal immigration system, and addressing the undocumented immigrant population. And for those of you who think that all immigrants should speak English, you’ll be pleased to know that the House Republicans’ standards for immigration reform includes a requirement that the path to legalization include a requirement that illegal immigrants “develop proficiency in English and American civics” as a pre-condition to becoming legalized. (And that we need CIR to fix our broken immigration system.)
I read a great piece in Forbes about Coca-Cola’s advertisement. Writes Tom Watson, “Coca-Cola’s … America, The Beautiful Super Bowl ad was among the most talked about spots of the otherwise disappointing (unless you’re a Seahawks fan) contest – and it was an ad with a clear purpose. Yet it was not in any way, explicitly political. The ad illustrated the stakes of immigration reform and took pride the impact of immigration on U.S. culture.”
We are a nation born of immigrants. I would also remind people that immigrants have a long and proud tradition of serving in the U.S. military, and that there are thousands of men and women in uniform today who were not born in the United States and who are willing to sacrifice everything for our country. Let’s show them, their parents, their brothers and sisters, their children, and their friends and neighbors, some respect.
A New Year and New H-1B Filing Season for Specialty Occupations
So, yes, this is actually what I am thinking about on New Year’s Day. The start of the H-1B filing season is actually upon us. Since Comprehensive Immigration Reform (“CIR”) did not pass in 2013, the Gang of Eight’s plan to raise the H-1B visa cap never came to be (or I’d like to say has not come to be yet). As such, immigration practitioners are once again left to have difficult conversations with their clients who wish to hire foreign nationals into what are called “specialty occupation” positions.
A little primer is in order. An H-1B nonimmigrant visa (or status) is a temporary visa (or, as noted, a status) that may be granted to a foreign national who will perform services in a “specialty occupation.” A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation in the United States. Representative examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
In order to determine whether a particular position would be considered a specialty occupation, the regulations require that the position must meet one of the following four (4) criteria: (1) a bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; (2) the degree requirement is common in the industry in parallel positions among similar organizations or, alternatively, that the particular position is so complex or unique that a degree is required; (3) the employer normally requires a degree or its equivalent; or (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a degree.
The U.S. government operates on a fiscal year basis that begins each year on October 1 and runs through the following September 30. For those employers who wish to hire foreign nationals as H-1B workers, unless the position is exempt, there is an annual cap of 65,000 nonimmigrant visas that are available in each fiscal year (and the additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education).
Importantly, the earliest date by which an employer may petition for a prospective H-1B worker is the April 1 preceding the October 1 beginning of the U.S. government’s new fiscal year. Assuming that the offered position is not an exempt position (i.e., a position that is cap exempt), the timing of an employer’s H-1B petition is critical. This is because in recent years the H-1B cap has been reached within days of April 1. Therefore, late filing may cause an employer to miss the opportunity to participate in the H-1B program in a given fiscal year.
Because there are some prerequisites to filing an H-1B petition with USCIS (e.g., obtaining a prevailing wage determination, filing a Labor Condition Application with the U.S. Department of Labor, etc.), now is the time for employers to start thinking about whether they wish to participate in the H-1B visa program.
INSIGHT INTO IMMIGRATION 