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January 18, 2016
January 8, 2016
INCLUDING EARLY ADJUSTMENT FILING IN PROPOSED DHS RULE IMPACTING HIGH-SKILLED WORKERS WOULD GIVE BIG BOOST TO DELAYED GREEN CARD APPLICANTS
A proposed DHS rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” has disappointed beneficiaries of I-140 employment-based immigration visa petitions who are caught in the crushing employment-based preferences. Everyone was waiting with bated breath about how the rule would allow beneficiaries to apply for an employment authorization document (EAD) based on an approved I-140 petitions. The proposed rule was announced on New Year’s Eve, December 31, 2015, but the balloon hastily deflated well before New Year. EADs would be issued in a very niggardly manner. This blog’s focus is not to explain every aspect of the proposed rule, and refers readers to Greg Siskind’s detailed summary, but suggests that the DHS also consider adding a rule to allow early filing of an I-485 adjustment application. Including a rule that would allow early filing of an I-485 application, along with some of the ameliorative provisions in the proposed rule, would truly make the rule positively impactful to those who are seeking relief.
Under the proposed rule, DHS will provide EADs to beneficiaries in the United States on E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status if they can demonstrate compelling circumstances. While compelling circumstances have not been defined in the rule, DHS has suggested that they include serious illness and disabilities, employer retaliation, other substantial harm to the applicant and significant disruption to the employer. Regarding what may constitute significant disruption; DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid. The EAD will be renewed if such compelling circumstances continue to be met, or if the beneficiary’s priority date is within one year of the official cut-off date.
As a result of these stringent standards, very few I-140 beneficiaries will be able to take advantage of this EAD provision. Furthermore, in order to keep the existing I-140 petition valid, the sponsoring employer must continue to offer the position to the beneficiary. While the recipient of an EAD can engage in open market employment, he or she must intend to work for the sponsoring employer upon the issuance of permanent residency. It is hoped that the final rule will provide a broader basis for beneficiaries of approved I-140 petitions to obtain EADs without needing to show compelling circumstances. INA 274A(h)(3) provides broad authorization to the DHS to issue work authorization to any non-citizen. While there is broad authority in the INA to issue an EAD, it is difficult to conceptualize how such a beneficiary may be able to port to another employer without a pending I-485 application. INA 204(j) requires an I-485 application to be pending for more than 180 days before a worker can change jobs in a same or similar occupational classification, while still keeping the I-140 petition and underlying labor certification intact. On the other hand, a new employer can re-sponsor a worker if he or she has an EAD through a new I-140 petition, while retaining the priority date of the old petition, upon which the worker can consular process for the immigrant visa if not in a valid nonimmigrant status at the time the final action date becomes current.
Although the centerpiece proposal is disappointing, there are some bright spots. I-140 petitions that have been approved for at least 180 days would not be subject to automatic revocation due to a business closure or withdrawal by the employer. DHS has invoked its discretion under INA 205 to retain an I-140 even if an employer withdraws it or the business closes. This assurance would allow workers who have pending I-485 applications for 180 days or more to safely exercise job portability under INA 204(j), although this dispensation is not possible if USCIS revokes the I-140 based on a prior error. Even those without pending I-485 applications could take advantage of this provision to obtain H-1B extensions beyond six years under the American Competitiveness in the 21st Century Act (AC 21). They would also be able to keep their priority dates if a new employer files another I-140 petition.
The proposed rule would also allow workers whose jobs are terminated a grace period of 60 days if they are holding E-1, E-2, E-3, H-1B, H-1B1, L-1 or TN status. There will also be automatic extensions of an EAD for 180 days, but will take away the mandatory processing time for an EAD within 90 days.
Notwithstanding the stingy circumstances under which the DHS proposes to issue EADs to beneficiaries of approved I-140 petitions, the proposed rule could be salvaged, and truly resurrected, if workers can file early I-485 adjustment of status applications. While the proposed rule has not touched upon this, the DHS must revisit the innovation that was made in the October 2015 Visa Bulletin by creating a filing date and a final adjudication date. Although the filing dates got substantially pulled back in the EB-2 for India and China shortly before the new visa bulletin took effect on October 1, resulting in a lawsuit, DHS has a chance to redeem itself through this rule to truly benefit high skilled workers.
INA 245(a)(3) allows for the filing of an I-485 application for adjustment of status when the visa is “immediately available” to the applicant. The Department of State (DOS) has historically never advanced priority dates based on certitude that a visa would actually be available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the DOS was absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007. Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 are still waiting and have yet to receive their green cards even as of today! Another example is when the DOS announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007) . It was obvious that these applicants would not receive their green cards during that time frame. The DOS then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007, also known as the class of 2007, are still waiting today.
These two examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the DOS, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future. The Visa Bulletin in its new reincarnation, notwithstanding the pulling back of the filing dates prior to October 1, 2015, now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as "eligible applicants" who "are able to take one of the final steps in the process of becoming U.S. permanent residents." These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. While it is acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever, DOS and DHS can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary. So long as there is one visa kept available, the proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).
The author has proposed the following amendments to 8 C.F.R. § 245.1(g)(1) in the past with Gary Endelman (who has since become an Immigration Judge), shown here in bold, that would expand the definition of visa availability:
An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“final action date”). An immigrant visa is also considered available for submission of the I-485 application based on a provisional priority date (‘filing date”) without reference to the final action date. No provisional submission can be undertaken absent prior approval of the visa petition and only if all visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current final adjudication date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.
If early adjustment filing consistent with INA 245(a)(3) is included in the final rule, imagine how many more workers will benefit from it. Having an actual rule in place, as proposed, will prevent the shenanigans that obstructionists in the USCIS have engaged in by arbitrarily holding back the filing date, and in recent months, not even recognizing it for purposes of filing I-485 applications. While an EAD of an approved I-140 will also be beneficial, being able to port off a pending adjustment application under INA 204(j) would allow the retention of the earlier I-140 petition (and underlying labor certification), without the need for an employer to file a new labor certification and I-140 petition. The filing of the I-485 application would also be able to protect a child from aging out under the Child Status Protection Act, which an EAD off an approved I-140 would not be able to do. Folks whose filing date would not be current could still take advantage of the EAD based on an approved I-140, but for those who can file an early I-485, they would incur many more benefits, including the ability to exercise true portability and eventually adjust to permanent residence in the United States.
December 31, 2015
By Cyrus D. Mehta
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2015. We will continue to provide insightful commentary on contemporary immigration issues in 2016, and wish all of our supporters and well wishers a very happy New Year! While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them.
- WHEN IS A VISA “IMMEDIATELY AVAILABLE” FOR FILING AN ADJUSTMENT OF STATUS APPLICATION?
- IT'S DEJA VU ALL OVER AGAIN: STATE DEPARTMENT MOVES FILING DATES BACK FROM PREVIOUSLY RELEASED OCTOBER VISA BULLETIN
- OPPORTUNITY KNOCKS IN DISAPPOINTING DECISION VACATING STEM OPTIONAL PRACTICAL TRAINING RULE FOR FOREIGN STUDENTS
- THE PROPOSED USCIS GUIDANCE ON JOB PORTABILITY: GOOD, BAD OR UGLY?
- SAVE THE CHILDREN UNDER THE NEW VISA BULLETIN
- MYTH OR REALITY: IS THE DHS TRULY SERIOUS ABOUT VISA MODERNIZATION FOR THE 21ST CENTURY?
- EXTENSION OF STEM OPTIONAL PRACTICAL TRAINING FOR FOREIGN STUDENTS UNDER PRESIDENT OBAMA’S EXECUTIVE ACTIONS?
- WHO IS ‘LAWFULLY PRESENT’ UNDER THE AFFORDABLE CARE ACT?
- GODOT HAS ARRIVED: EARLY ADJUSTMENT OF STATUS APPLICATIONS POSSIBLE UNDER THE OCTOBER 2015 VISA BULLETIN
- EVERY COUNTRY EXCEPT THE PHILIPPINES: NEW DEVELOPMENTS IN OPT-OUT PROVISION UNDER THE CHILD STATUS PROTECTION ACT
December 30, 2015
HOW ONE EMPLOYEE’S COMPLAINT CAN LEAD TO A FULL BLOWN INVESTIGATION OF AN H-1B EMPLOYER’S LCA RECORDS
A recent U.S. Court of Appeals decision in Greater Missouri Medical Pro-Care Providers, Inc. ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014), is worth noting as it addressed the issue of how much latitude the DOL has to investigate an H-1B employer’s H-1B documents and records.
As background, an employer seeking to employ a temporary foreign worker in H-1B (also H-1B1 or E-3) nonimmigrant status must, as the first step in the petition process, file a Labor Condition Application (LCA) with the Department of Labor (DOL) and receive certification. The LCA is completed on electronic Form 9035 and submitted through the DOL’s iCERT system. The LCA collects information about the occupation including the occupational title, the number of immigrants sought, the gross wage rate to be paid, the starting and ending dates of employment, the place of employment, and the prevailing wage for the occupation in the area of intended employment. The LCA contains special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent. The employer must also state that its employment of nonimmigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment. An employer is permitted to file the LCA no more than six months before the initial date of intended employment. See 8 U.S.C. § 1182(n)(1)ID); 20 C.F.R. §§ 655.730-733.
Once the LCA is filed, the DOL must approve it within 7 days unless the application is incomplete or obviously inaccurate. 20 C.F.R. §§ 655.740(a)(1)-(2). Within one day of the LCA filing, the employer must maintain a public access file accessible to interested and aggrieved parties. The file must be available at either the principal employer’s place of business or at the employee worksite. 20 C.F.R. § 655.760(a). An aggrieved employee has 12 months after the latest date on which an alleged violation was committed to file a complaint with the DOL Wage and Hour Division (WHD). 20 C.F.R. § 655.806(a)(5).
In Greater Missouri, the employer hired numerous physical and occupational therapists from the Philippines on H-1B status. As required, the employer filed LCA applications for the desired workers. One H-1B employee, a physical therapist from the Philippines, filed a complaint alleging that she had personally paid all the fees, including attorney’s fees, to file and to extend her H-1B status and that the employer failed to pay her during a nonproductive period of over one year when she was reviewing for her licensing exam. The employee also questioned whether the H-1B employer was legally permitted to charge her a fee for “breach of contract” due to her early termination of her employment.
Upon review of the employee’s complaint (forwarded to the DOL by the Missouri state regulators), the DOL treated it as an “aggrieved party” complaint and the DOL investigator concluded that there was “reasonable cause” to investigate the charge that the H-1B employer had attempted to require the employee to pay a penalty for ceasing her employment early. Based only on the determination that this one charge was worth investigating, the DOL investigator launched a full scale investigation and sent a letter to the H-1B employer requesting all of its H-1B documents and records. The DOL investigator also interviewed the aggrieved employee and the employer’s other H-1B workers.
Based on its investigations, the DOL found that the employer improperly failed to pay wages to employees who it had placed in nonproductive status (benched); made improper deductions from employee wages for H-1B petition fees; and required or attempted to require improper penalty payments from some employees for early termination. The employer was ordered to pay over $380,000 in back wages to 45 employees.
The employer fought back by requesting a hearing before an Administrative Law Judge (ALJ). The employer argued that the applicable statute and regulations limited the DOL’s investigation to the specific issues of the complaint that was filed and only to that aggrieved party’s LCA. The employer also argued that the statute and regulations impose a 12 month time limit for investigating violations. However, the ALJ held that the 12 month time limit only refers to when a complaint can be filed and does not refer to the scope of remedies that can be meted out. The ALJ issued a decision ordering the employer to pay back wages, fees for illegal fee deductions and amounts to employees for illegally withholding paychecks. When the ALJ failed to hold in the employer’s favor, the employer petitioned for review before the Administrative Review Board (ARB).
The ARB held that the DOL indeed had the authority to investigate alleged violations involving H-1B workers who did not file complaints but also held that violations that occurred outside of the 12 month period prior to the filing of a complaint are not actionable. However, the ARB affirmed the order for employer to pay awards. The employer took the case up to the District Court which affirmed the ARB’s decision and payment of awards. The employer then appealed to the US Court of Appeals. The DOL did not appeal the District Court’s ruling that violations that occurred outside the 12 month period are not actionable.
In the end, the Court of Appeals held that the DOL’s initial investigatory authority is limited to the complaint that was filed and to those specific allegations and the DOL was not authorized to launch a comprehensive investigation of the employer based only on a single allegation by one employee. The Court of Appeals recognized that additional violations could come to light in the course of the DOL’s investigation of a single complaint and that the DOL may need to modify or expand its investigation based on reasonable cause. However, the Court of Appeals found that this was not how the investigation proceeded in the instant case. The Court of Appeals held that the awards cannot stand because the ARB’s finding of violations and the resulting awards were based entirely on the DOL’s unauthorized investigation of matters other than the allegation in the aggrieved party’s complaint. The US Court of Appeals reversed the judgment of the District Court.
While this was ultimately a victory for the H-1B employer and it is good to note that the DOL does not have sweeping authority to investigate allegations of violations that fall outside of the 12-month statute of limitations, this case is nevertheless a cautionary tale for all H-1B employers. Even a single complaint from one disgruntled employee could lead to a comprehensive investigation of the employer’s H-1B practices. Even though the Court of Appeals in Greater Missouri found that the DOL had overstepped in its initial investigation, the court also pointed out that the DOL may modify its investigation of a single complaint if other violations come to light. Greater Missouri also highlights the fact that once allegations are made, the employer bears the burden of proof to prove that it has complied with the LCA attestations. Therefore, the importance of excellent record keeping cannot be overstated.
Going into 2016, it would be a good idea for any H-1B employer that is not 100% confident in its LCA records, and its ability to withstand a DOL audit of those records, to conduct a self-audit on behalf of the employer and bring to light any issues that the employer can immediately correct and ensure that it is in compliance. Such a self-audit will give the employer the confidence that it needs should the DOL ever launch an investigation and will help the employer to avoid the potential financial and reputation damage that could come from such an investigation. When it comes to DOL investigations, the proactive approach is always best.
December 23, 2015
ARE WE TRYING TO PENALIZE FAILURE TO SERVE IN THE SYRIAN ARMY? HOW RECENT CHANGES TO THE VISA WAIVER PROGRAM GO TOO FAR
Section 203 of Division O of the recently enacted Consolidated Appropriations Act, 2016, which funds the U.S. government for the remainder of the current 2016 fiscal year (through September 2016), also adds new restrictions on use of the Visa Waiver Program (“VWP”) that exists under section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. §1187. The title of Section 203 is “RESTRICTION ON USE OF VISA WAIVER PROGRAM FOR ALIENS WHO TRAVEL TO CERTAIN COUNTRIES”, and it appears to have been inspired by reports that the November 2015 terrorist attacks in Paris were carried out by French and Belgian nationals, many of whom had traveled to Syria. However, the text of the law as enacted goes further than the title. In particular, the amendments that Section 203 makes to INA 217 apply to certain people who may never have been to any of the countries with which Congress was concerned in enacting the bill, if they are nationals of one of those countries as well as a VWP country. As this post will explain, this portion of Section 203 could have an unfair and at times truly bizarre impact.
The VWP allows citizens of certain countries designated by the Secretary of Homeland Security (formerly by the Attorney General), in consultation with the Secretary of State, to enter the United States as visitors without the need to apply for a visa at a U.S. consular post abroad. A list of currently eligible countries is available on the Department of State website and from CBP as well. VWP entrants are limited to 90-day admissions pursuant to INA §217(a)(1), must waive various rights to contest removal under INA §217(b), and must apply for advance clearance through the Electronic System for Travel Authorization (ESTA) run by U.S. Customs and Border Protection (CBP), but the ability to visit without going through the consular visa application process is still an attractive option for citizens of qualifying countries.
New section 217(b)(12) of the INA, as enacted by section 203 of Division O of the Consolidated Appropriations Act, 2016, adds the following requirements for use of the VWP:
(12) NOT PRESENT IN IRAQ, SYRIA, OR ANY OTHER COUNTRY OR AREA OF CONCERN.—
(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C)—
(i) the alien has not been present, at any time on or after March 1, 2011—
(I) in Iraq or Syria;
(II) in a country that is designated by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or
(III) in any other country or area of concern designated by the Secretary of Homeland Security under subparagraph (D); and
(ii) regardless of whether the alien is a national of a program country, the alien is not a national of—
(I) Iraq or Syria;
(II) a country that is designated, at the time the alien applies for admission, by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or
(III) any other country that is designated, at the time the alien applies for admission, by the Secretary of Homeland Security under subparagraph (D).
(B) CERTAIN MILITARY PERSONNEL AND GOVERNMENT EMPLOYEES.—Subparagraph (A)(i) shall not apply in the
case of an alien if the Secretary of Homeland Security determines that the alien was present—
(i) in order to perform military service in the armed forces of a program country; or
(ii) in order to carry out official duties as a full time employee of the government of a program country.
(C) WAIVER.—The Secretary of Homeland Security may waive the application of subparagraph (A) to an alien if the Secretary determines that such a waiver is in the law enforcement or national security interests of the United States.
(D) COUNTRIES OR AREAS OF CONCERN.—
(i) IN GENERAL.—Not later than 60 days after the date of the enactment of this paragraph, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall determine whether the requirement under subparagraph (A) shall apply to any other country or area.
(ii) CRITERIA.—In making a determination under clause (i), the Secretary shall consider—
(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;
(II) whether a foreign terrorist organization has a significant presence in the country or area;
(III) whether the country or area is a safe haven for terrorists.
Although INA §217(b)(12)(A)(i), consistent with the title of new INA §217(b)(12), bars use of the VWP only persons who have actually been present in Iraq or Syria or another country of concern, after March 1, 2011, other than as a government employee or military member of a VWP country, new §217(b)(12)(A)(ii) goes significantly further than that. Quite apart from whether someone was present in Syria, Iraq, or another covered country after March 2011 – or has ever been present there – they will be excluded from use of the VWP if, in addition to being a citizen of a VWP-qualifying country, they are also a national of Iraq, Syria, or another covered country. The only exception will be if a waiver is granted to a particular person under INA §217(b)(12)(C) on the basis that “such a waiver is in the law enforcement or national security interests of the United States”.
The other covered countries besides Iraq and Syria, pursuant to new INA 217(b)(12)(a)(i)(II)-(III) and (a)(ii)(II)-(III), include those designated as state sponsors of terrorism by the State Department under several named laws, as well as any countries the Secretary of Homeland Security may later designate under §217(b)(12)(D). The State Department’s list of designated state sponsors of terrorism currently includes Iran, Sudan, and Syria. Syria is already named in INA §217(b)(12)(a)(i)(I) and (a)(ii)(I), but the other two are not. So in total, new INA §217(b)(12)(A)(i) currently applies to nationals of Syria, Iraq, Iran, and Sudan.
According to the Refworld web service of the Office of the UN High Commissioner for Refugees (UNHCR), Article 3.A. of the Syrian nationality law provides that in addition to other sources of nationality, “Anyone born inside or outside the country to a Syrian Arab father” has Syrian nationality. Article 10 of that same law allows a Syrian Arab to forfeit Syrian nationality upon acquiring foreign nationality, but only “provided that a decree has been issued, based on his request and upon recommendation by the Minister [of the Interior], allowing him to abandon his nationality after having fulfilled all his duties and obligations towards the state.” Thus, it appears that one who is born to a Syrian father, and may never have been to Syria, cannot simply avoid or give up Syrian nationality because he no longer wants it, particularly if he has not “fulfilled all his duties and obligations towards the state.” It seems likely, particularly in light of the similar Iranian provision discussed below, that this requirement to have fulfilled one’s "duties and obligations towards the state" is a reference, at least in part, to military service obligations.
Iranian nationality law, as reported by Princeton University’s Iran Data Portal, similarly provides for automatic acquisition of nationality through one’s father and does not allow loss of nationality at will. Article 976, Section 2, of the law bestows Iranian nationality on “Those whose fathers are Iranians, regardless of whether they have been born in Iran or outside of Iran.” Pursuant to Article 988, Iranian nationality can only be abandoned by those who “have reached the full age of 25”, and then only if “the Council of Ministers has allowed their renunciation of their Iranian nationality”, they have undertaken to transfer all rights they possess or may inherit to land in Iran, and “they have completed their national military service.” Those born to Iranian fathers who are under 25, have not completed their military service, do not wish to give up land in Iran, or incur the displeasure of the Council of Ministers, are evidently stuck with their Iranian nationality whether they want it or not.
Iraqi nationality law as reported by Refworld is not quite as bad in this regard, but Article 10(I) of that law does require a written renunciation of one’s Iraqi nationality before even one who has acquired a foreign nationality will lose his or her Iraqi nationality. It is unclear how a child could meaningfully execute such a renunciation, and an adult who becomes a citizen of a Visa Waiver Program country may never have thought to do so, even if he or she had no intention of going back to Iraq and never did.
Sudanese nationality law, as reported by Refworld, makes it easier to give up nationality than in the case of Iran or Syria, but not as easy as in the case of Iraq. Section 4(1)(b)(i) includes among those who are Sudanese nationals anyone whose “father was born in Sudan.” Under Section 10(a), the President of Sudan “may decide to revoke Sudanese nationality from” anyone over the age of majority who is proven to have “made a declaration renouncing his Sudanese nationality”, but the President is specifically given the power to “reject such a declaration if it was made during any war which Sudan participated in.” The law does not clarify whether the President can simply “decide” not to revoke nationality from one who has made a declaration of renunciation even absent such a war.
Thus, many citizens of VWP countries who lack any continuing meaningful ties to a country of concern, or never had any such ties, may be affected by the prohibition of INA §217(b)(12)(A)(ii). Children born to a Syrian, Iraqi, Iranian, or Sudanese father, who are too young to have signed written statements giving up their citizenship, will be barred from the VWP. Adults who have lived their entire lives in VWP countries, but were born to Syrian or Iranian fathers, and could not give up their citizenship under Syrian or Iranian law because they did not fulfill their military service obligations to Syria or Iran, will be barred from using the VWP. This is a rather bizarre result, since one doubts that Congress would have wanted to penalize people for not serving in the Syrian or Iranian military, had the issue been thought through. Perhaps the Secretary of Homeland Security could issue some sort of collective waiver under §217(b)(12)(C), on the basis that it would be in the national security interests of the United States not to encourage service by nationals of VWP countries in the Syrian and Iranian militaries, but that would be a rather cumbersome way to deal with a problem that should not exist in the first place.
Lest this discussion of what one might call involuntary nationality be thought overly academic, it is worth noting that U.S. immigration law does recognize, in at least one other context, the possibility that a person can be penalized for the existence of a nationality which the U.S. government believes them to hold but which they have never sought to use. In Matter of B-R-, 26 I&N Dec. 119 (BIA 2013), an asylum applicant who had been born in Venezuela, and was a citizen of Venezuela, was denied asylum after the Department of Homeland Security (DHS) “submitted evidence that [he] was a citizen of Spain by birth, because his father was born in Spain and was a citizen of that country.” 26 I&N Dec. at 120. Since the applicant in Matter of B-R- did not contest on appeal that he was a citizen of Spain as found by the Immigration Judge, and since he had not argued that he had unsuccessfully attempted to avail himself of the protection of Spain, he was held to be ineligible for asylum because he lacked a fear of persecution in Spain. Matter of B-R-, 26 I&N Dec. at 122 It would seem, under the logic of Matter of B-R-, that INA §217(b)(12)(A)(ii) will apply equally to those who are citizens of Syria, Iraq, Iran, or Sudan solely because of the status of their fathers.
It is true that those barred from the VWP by their Syrian, Iraqi, Iranian or Sudanese dual nationality will not actually be barred from visiting the United States. Rather, persons barred from the VWP on account of their dual nationality will be able to apply for nonimmigrant B-1 or B-2 (or combined B-1/B-2) visas at a U.S. consular post, just like those who are not citizens of VWP countries. But to subject citizens of friendly nations to this additional hurdle solely because of their paternity and possibly failure to satisfy obligations to Syria or Iran, as §217(b)(12)(A)(i) in effect does in some cases, is inappropriate. People who were born in Belgium or France or the UK or some other VWP country and have never left, or have lived in a VWP country for decades and never traveled to a country of concern, should not be precluded from using the VWP because of who their fathers were.
Moreover, because visa waivers are often offered on a basis of reciprocity, INA §217(b)(12)(A)(ii) could have a mirror-image effect on innocent U.S. citizens with the requisite parentage. European Union regulations, for example, as pointed out by NIAC Action (the sister organization of the National Iranian American Council), already provide for the imposition of visa requirements on citizens of countries who have themselves imposed visa requirements on EU nationals. So it is possible that the restrictions imposed by U.S. law on citizens of VWP countries who have dual citizenship in a country of concern, and may be unable to get rid of it, could be imposed by EU countries on U.S. citizens who have such dual citizenship.
Before INA §217(b)(12)(A)(ii) and the rest of Section 203 of the Consolidated Appropriations Act became law, AILA warned against hastily enacting its language in the form of what was then H.R. 158 unless the bill were modified and clarified in a variety of respects (including the nationality provision and other aspects such as legitimate travel to the countries of concern by journalists and humanitarian workers and so on). It is unfortunate that Congress did not heed this warning. The statute should be amended, whether by this Congress or by a future Congress, so that it does not bar from the VWP nominal citizens of covered countries who have not recently been to those countries. Other changes to the language produced by the same rushed process that gave us the above-discussed absurd results, although outside the scope of this blog post, may also be warranted.