B-1/Visa Waiver entries after Infosys $34 Million fine

B-1/Visa Waiver entries after Infosys after $34 Million fine

 
On October 30, the US Attorney’s office in Dallas, TX, and ICE in Dallas, announced at $34 Million settlement with Infosys, the IT consulting giant, for visa fraud and I-9 document violations.   This was the largest immigration fine ever imposed by the US government in history.   Those who claim that this administration is not serious about enforcement, should think again.   This company is very substantial, but $34 Million is a huge fine.

In that case, Infosys was accused of using the B-1 visa process in place of the H-1B visa category, in order to bring IT workers to the US, assign them to long term projects at significantly below market wages, and increase its profits as a result.   (These workers applied for B-1 visas because they were from India, which does not enjoy Visa Waiver privileges, as many other countries do.)  Infosys continues to deny the allegations, but it appears that the settlement was reached so that Infosys and its officers would not be charged criminally.   Infosys supplied these workers to a large number of third parties in the US, none of which appear to have been charged.
 
Under current B-1 rules (that also apply to visa waiver entries), foreign nationals can enter the US for brief periods to attend business meetings with colleagues, to conduct business negotiations, to meet with potential customers and solicit contracts for work to be done outside the US, etc.    They cannot engage in work that others would be paid to do.

In addition, we regularly assist US companies who are bringing employees to the US from related companies outside the US, where those foreign nationals are involved in a joint project between the two companies.   This kind of visit also is proper under the B-1/visa waiver system.   However, in this kind of situation, we recommend that the foreign employee have an “entry letter,” sometimes called a “back pocket letter,” to present if the employee is taken into Secondary Inspection at the time he or she arrives at the airport in the US.   At the very least, the foreign company employee needs to be prepared to answer a number of specific questions that can control the decision of the CBP officer, and can determine whether the foreign company employee is allowed to enter the US, and if so, for how long.

It is more than a little unfortunate that the Infosys case arose at this time, especially when we are hoping to see Congress enact immigration reform.  Whether the Infosys case will stop that debate is outside the scope of this note.   Two things are clear, however:  first, the B-1/visa waiver rules are still in place, which means that proper business visits are still allowed under those rules.   Second, CBP is going to be more vigilant than before in considering requests to enter on the B-1/visa waiver.   Where foreign employees are coming to the US, it is critical to prepare these employees for the  discussion with CBP that is certain to occur, and, in many cases, to give the employee a proper entry/back pocket letter for use if the discussion becomes difficult or unpleasant.

If we can assist you with this kind of entry, a support letter or other immigration issues, please let us know.

 

Gerry Chapman
 
Gerard M. Chapman
Chapman Law Firm
P. O. Box 1477
Greensboro, NC 27402
403-A North Elm Street
Greensboro, NC 27401
Phone: (336) 334-0034
Fax: (336) 334-0036
E-mail: gerrychapman@chapman-immig.com
Website: www.chapman-immig.com

USC put into deportation; retaliation by ICE after receiving proof of citizenship

Published 10/22/13 by The Courthouse News Service

  SAN DIEGO (CN) - Immigration officials imprisoned a U.S. citizen for seven months and when she sued for the abuse tried to revoke her citizenship in retaliation, the woman claims in court.
     Sharon Arlanza Yost sued the United States in Federal Court.
     Yost, 33, claims she "automatically acquired U.S. citizenship on April 28, 1993," through her mother, a Filipina who became a U.S. citizen in 1989 after marrying a native-born U.S. citizen, a member of the U.S. Navy who was stationed in the Philippines.
     She claims Immigration and Customs Enforcement arrested her on May 14, 2011, and imprisoned her until Dec. 7 that year, "based on their purported, but baseless, belief that plaintiff was a noncitizen subject to deportation from the United States."
     Yost claims she showed ICE agents "documentary evidence" that she is a U.S. citizen: that she had been was lawfully admitted as a permanent resident when she was 11 years and naturalized when she turned 13. But ICE "imprisoned her for almost seven months" anyway.
     While she sat in prison, Yost claims, ICE failed to investigate her claims to citizenship in violation of its own guidelines that require it to conduct an "immediate and careful investigation and analysis" of such claims.
     Nine days after ICE released her, U.S. Citizenship and Immigration Services "issued a Certificate of Citizenship confirming that Ms. Yost had acquired U.S. citizenship on April 28, 1993 - more than 18 years before she was arrested and detained by ICE," the complaint states.
     Yost hired an attorney and sought compensation under the Federal Tort Claims Act for her 208 days of unjust incarceration.
     Then ICE retaliated, she says: "Following the filing of that administrative complaint, DHS officers re-reviewed Ms. Yost's citizenship status and issued a notice of intent for administrative cancellation of citizenship under 8 U.S.C. § 1453. Presumably, as there is no other reasoned explanation and no valid legal basis for the notice, DHS issued this notice in response to, and in retaliation for, Ms. Yost's filing of a complaint under the FTCA [Federal Tort Claims Act]. That process is ongoing and is not at in issue in this action. However, even if DHS were to cancel Ms. Yost's citizenship certificate, such cancellation 'affect[s] only the document and not the citizenship status of the person in whose name the documents was issued,'" the complaint states, citing 8 U.S.C. § 1453.
     Yost seeks damages for negligence, false imprisonment, and negligent and intentional infliction of emotional distress. She also wants a trial by judge and the "right to conform the pleadings to the proof and evidence presented at trial."
     She is represented by Trina Realmuto with the National Immigration Project of the National Lawyers Guild of Boston.
     The ICE Office of Public Affairs responded to a request for comment with what appeared to be a form letter that did not directly address any of the allegations in Yost's lawsuit. 

Immigration Reform and the Federal Prison Population

Immigration Reform and the Federal Prison Population

 

Last night (October 21) I attended a dinner for the Federal Bar Association, and the keynote speaker was US District Judge Tom Schroeder of Winston-Salem.  His main point was that we are on an unsustainable path regarding incarceration rates, and the statistics he gave were sobering, to say the least.  Among them:

 

About ½ of all federal inmates today are Hispanic

4 out of 5 of the Hispanic inmates are there due to non-drug related crimes

Most of those 80% are prosecuted for re-entry violations

It costs some $29,000 per year to house an inmate in federal custody

Federal correction expenses represent the second fastest growing part of the federal budget.

 

He also had a lot of other statistics about unwed mothers and fatherless children, but what struck me was the fact that, if immigration reform is passed, we could quickly erase 40% of the federal Hispanic jail population.

 

It is folly to make it a crime to re-enter the US in order to work and support a person’s family.  That is why the vast majority of the undocumented population is in the US:  working, saving some money, paying taxes, staying out of trouble, and raising their families.   In 1942 Congress recognized that it was vital to US national security to create a visa program (the Bracero Program) to allow essential Mexican workers to enter the US and staff our agricultural industry, our manufacturing industries and other industries that required manual labor.  US-born workers were overseas, fighting in World War II.   The economy, and the war effort, would have crashed without those essential workers.  The Bracero program lasted some 22 years, until Congress revamped the entire immigration system in 1965; unfortunately Congress left out a visa for those workers.

 

Fast forward to today:  it is vital to US national security to create a visa program (the RPI and W visa, as contained in S. 744) to allow undocumented workers to remain here, and for future essential workers to enter the US, so that they can staff our agricultural industry, our manufacturing industries and other industries that require manual labor. 

 

The difference between now and 1942 is that the threat to US security (and world security) was much more visible – the Axis powers.   But it is no less real today, where few if any US workers want to take hard yet important jobs on which our economy depends.   Work that is hard and dirty is no less important or honorable than work done in an air conditioned office.    We simply need to recognize that all work is valuable and reform our immigration laws to acknowledge that fact.

 

Gerry Chapman

Drop the quota, get to work, and pass immigration reform NOW!

Drop the quota, get to work, and pass immigration reform NOW!

 

In 2006, Congress imposed a quota on DHS, requiring that it keep an average of 34,000 detention beds filled per day; today the US deports some 400,000 people a year, an all-time high.

 

To meet that quota ICE has deported hundreds of thousands of mothers and fathers who have committed no crimes or only minor ones, ripping families apart and depriving US citizen children of one or both parents.  A recent report from TRAC Reports, Inc., confirms that in 2013, less than 15% of removal cases brought by ICE have been based on criminal activity.   This reflects a decrease from nearly 30% in 1992.   The figure has been decreasing steadily, and simply reinforces what most people admit:  the great majority of the undocumented population comes to the US to work, save and send money home.   In addition, a great majority of those in custody for criminal violations have broken one law: the one prohibiting illegal entries -- hardly dangerous criminals.   Even so, those who cross without permission now make up over 50% of all deportation cases. 

 

For decades our economy has welcomed manual laborers, while our immigration system has tried to shut them out.   For years various reforms have been introduced in Congress, only to die a slow death due to arguments for increased enforcement first.  Today we have more boots on the ground, more drones in the air, and more deportations than ever before.   Recently we also have seen an uptick in illegal entries, because the economy is starting to pick up again.  More enforcement has not worked; it only has cost us more money.   The winners are companies like Correction Corporation of America who have earned millions a year because the government has outsourced the prison business. 

 

It is time for Congress to reform our immigration laws.   We need a temporary work visa for manual laborers who perform the jobs that US workers either will not or cannot do.  If Congress will create such a visa, then workers who want to enter legally can do so, and the Border Patrol can use its resources to intercept people who want to harm us or engage in the illegal drug or gun trade.

 

We also need to face reality and create legal status for the current undocumented population.   Opponents of reform have said they will debate reform only if it is broken up into bite sized chunks, and not in the form of S. 744 (the comprehensive bill passed by the Senate this summer).  If this is how the House wants to do it, then so be it, but both sides need to stop bickering, get realistic and start working on a practical solution.   For heaven’s sake, do something!  

 

The current system is a disaster; families are hurting, communities are hurting, businesses (other than CCA) are hurting.   All members of Congress can find common ground in legislation that has been introduced in both houses of Congress.   With a good faith effort in Congress, all of us will win.

 

Gerry Chapman

IMMIGRATION PROPOSALS -- FALL 2013

 

IMMIGRATION PROPOSALS – FALL 2013

 

We are coming to the end of the Congressional year, with multiple immigration proposals begging for action.  For years, the needs of business have been ignored by Congress, in favor of a singular focus on border and interior enforcement.   That strategy has raised deportation totals to historic levels, but it has done nothing to support the needs of business, or the workers on whom they depend.  

 

Every year for over a decade, H-1B visa numbers have run out within a week of the April 1 filing date.   In each of those years, business owners and representatives of the US Chamber have lobbied and testified before Congress, asking for increased H-1B numbers, or at least a market-based formula to determine how many H-1Bs should be issued.   They also have asked for more employment-based green card numbers to reduce lengthy, multi-year backlogs.   Congress consistently ignored those pleas.

 

This year, the Senate finally acted.  S. 744, passed June 27, 2013, in a comprehensive, one-bill format, contains many pro-business provisions as well as multiple border and interior enforcement points.   The House has addressed primarily enforcement issues, using a several-bill structure that so far has not progressed to full House consideration.  One of the House bills does address a minor slice of the visa system: improved green card provisions for extremely high skill workers.    

 

The contrast between the two approaches is clear:  the Senate supports business needs; the House by and large continues to ignore them.

 

Below is a summary of business–related sections of S. 744, the bill introduced in the House, and two very recent developments in the House.

 

A.           Senate Bill S. 744 – passed June 27, 2013; no action in House

 

1.            Employment Based Immigrant Visas (green cards) – Section 2307

a.            Exempts advanced STEM grads, plus all immigrants in the highest-level green card categories, from numerical limits, thus eliminating backlogs for these applicants.

b.            Allocates green cards for those with BA/BS degrees up to 40%  of world-wide level (up from 28.6% now)

c.            Removes labor certification (PERM) requirement from cases for all STEM positions

 

2.            Employment Based Temporary visas – Section 4101

a.            Increases H-1B visas to 110,000 per year (from 65,000), with market-based formula providing later increases up to 180,000

b.            Sets aside additional 25,000 (up from 20,000) for grads of US masters and PhD programs, but restricts this set-aside to STEM grads

 

3.            New Investor Visas created – Sections 4801/02

               a.            Adds temporary and green card investor categories; similar to the current E-2 temporary visa; less demanding than the current EB-5 green card category

 

4.            Registered Provisional Immigrant (RPI) status and W Visas created – Sections 2101 and 4702

               a.            Creates RPI status for undocumented who can prove entry before 2012 and presence since then, payment of all back taxes, payment of $500 fine and standard USCIS filing fee, plus clean record

               b.            RPI status good for 6 years, with possibility of one 6 year renewal

               c.            After ten years, RPIs apply for green card; after 5 more, RPIs apply for citizenship

               d.            Starting in 2015, workers in manual labor jobs can be sponsored for W visa if US employer can show lack of qualified US workers; good for 3 years with chance to renew; can be transferred to new employer sponsor.  Initial limit of 20,000, with formula-based maximum of 200,000 per year

 

B.           House bills introduced this session

 

1.            SKILLS VISA ACT – Employment Based Green Cards

a.            Creates new green card categories for STEM PhD and Masters grads, and for grads of medical, dental and vet programs.

b.            Creates green card category for venture-based entrepreneurs

 

2.            Hispanic Caucus bill

Led by Chairman Ruben Hinojosa of Texas, the Caucus has been working with Minority Leader Nancy Pelosi to combine the essence of S. 744 with a border security bill passed by the House Homeland Security Committee in May with bi-partisan support.   Still being finalized, but should be introduced soon.

 

3.            Goodlatte Proposal expected soon

As early as September 30, Rep.  Bob Goodlatte, Chair of the House Judiciary Committee, is expected to announce several reform bills.   No clear signals on what the bills will address, or if they will be different from the enforcement bills introduced earlier this year in the House.

Gerry Chapman

Keeping the momentum going! Now is the time to keep pushing Congress to have a full debate!

The Syrian conflict and the budget crisis have gotten most of the press and attention of late.  Many who support immigration reform have started to wonder if we should pause and wait for next spring to push again.

Will those recent events determine our course of action, or should we keep pushing?   The choice is easy – we must keep moving forward.   We have the momentum now, but if we take a step back, we will lose it completely in the face of upcoming 2014 elections. 

This summer saw an unprecedented number of rallies, Congressional visits and the like – all geared toward one goal (common-sense immigration reform) and one objective (getting substantive debate in the House started).   The reports are uniformly encouraging about the breadth of the effort, the level of energy involved, and the results to date.

We must continue to be proactive, despite the fact that other important issues are taking some attention away from immigration reform.  At least for the short term, the Syrian conflict will become less pressing; the latest proposal from Russia, if accepted by the US, will let the administration back down and still save face.  (I am not a supporter of Asaad, but just identifying the political realities.) 

I also believe that the budget “crisis” has a longer life span than it needs to, because among other things, both the Democrats and the Republicans see it as an easy way to make the other side look bad.   

Even though the budget is a critical issue, we cannot let that issue take all of the attention away from the need for reform; in fact, if we want to strengthen the income side of the budget, immigration reform is one of the few steps we as a nation can take that will increase federal revenue.

If we let Congress off the hook now so that these other issues can be “resolved” first, we’ve sealed our own fate.   If not these issues, then some others will be put on the Congressional slate and used as an excuse to avoid dealing with immigration. 

WE MUST NOT LET CONGRESS OFF THE HOOK!!!

If people had told MLK that he should not march on Washington because most people saw other things as more important than civil rights, he’d have thanked them for their opinion and gone right ahead.  No difference now; we need to keep pushing and not let up.

Tomorrow I will visit the office of our local Congressional member with the officers of three local companies that employ a lot of local workers, and whose jobs depend on the health of those companies.   That House member has been in office for 24+ years.   We have written him, discussed the issue with him and so far not gotten very far. 

However, I believe that tomorrow’s visit will be different.  Instead of having one or two immigration lawyers make the visit, we are taking people who have substantive stories as business owners and who will tell this Congressional office that the local labor force cannot supply the workers that they need, and that they have tried to find sufficient numbers of reliable and skilled workers over and over again, but it’s not happening.  We (being us immigration lawyers) have given this message to this office (and many others) repeatedly, but no one is hearing us.   We think the new voices will make a difference.

This the time to keep pushing and keep being heard,  and not let up until Congress has had a full debate and a final vote on a comprehensive immigration bill.  

Gerry Chapman

 

INTERPLAY BETWEEN IMMIGRATION, HEALTH CARE AND OTHER SOCIAL SERVICES, OR WHY IS 31 THE MAGIC NUMBER?

 

In 2012, the Obama Administration created the Deferred Action program for young children who had come to the US before age 16 and who could meet several other requirements.  One of those: to prove that the applicant was under age 31 on June 15, 2012.  (Our firm has had the same experience that many others did:  people in their early 30’s who had entered long before their 16^th birthday, and who met all other requirements, but were 31 or older on June 15, 2012.)

 

More recently, the Senate passed a reform proposal (S.744) that would make substantial changes in the family based system.  One of those changes would be to limit the 3^rd Preference (married sons and daughters of US citizens) to beneficiaries who are under 31 when the case is filed.   That reform proposal also terminates the 4^th preference category (for brothers and sisters of US citizens) completely.

 

What is going on here, and why is 31 such a popular number?   At first blush, the number 31 has no particular relevance to any other immigration requirement or category.   There is more to it than that.  What apparently is happening is this:  the 4^th preference is badly backlogged – 23 years for nationals of the Philippines; 17 years for Mexicans; 12 years for the rest of the world.   If US citizens are in their 30’s when they file those cases, the beneficiaries do not arrive in the US until many of them are in their late 40s and early 50s.   As permanent residents, they have to wait to become eligible for Medicare and Medicaid, but their numbers do add to the overall burden on government assistance once they become eligible.  

 

Whether this is a wise choice or not, the Senate clearly has taken this fact into consideration in drafting S. 744, and when the House takes up the bill (we hope), that issue is almost certain to color the debate as it goes forward.

 

Other policy concerns are having a big impact on the immigration debate (criminal law issues, tax issues, etc.) as well, but the age of beneficiaries in the family based system is having the most obvious effect so far.

 

Gerry Chapman