SHOULD HAITIANS APPLY FOR TEMPORARY PROTECTED STATUS?

In the aftermath of the most devastating earthquake in Haiti, we lawyers are all trying to find ways to help. Assisting Haitians legalize their status in the United States is a good start, and there are pro bono clinics lined up already in New York. Haitians who can work legally can send more remittances to their loved ones in Haiti, which can be the most effective form of aid after this horrific tragedy. The AILA-NY Chapter and the New York City Bar Justice Center are holding a free clinic to assist Haitians on January 28, 2010, although the response from lawyers was so wonderfully overwhelming that it was closed in less than a day, http://www.aila.org/content/default.aspx?docid=31036

CUNY Citizenship Now!, the New York City Mayor's Office of Immigrant Affairs, the Legal Aid Society, the New York Immigration Coalition, the CUNY School of Professional Studies, and other advocacy groups are planning two TPS application assistance events in Brooklyn, New York on Saturday, January 30 and Saturday, February 6, 2010. See link for details:
http://www.cuny.edu/about/citizenship/volunteer/HelpHaitiByVolunteering.html.



For now, all of these pro bono projects are a work in progress. We need to gauge the need from the Haitian community too. The question everyone is asking is whether Haitians will come forward in large numbers and apply for Temporary Protected Status, which was announced on January 21, 2010 and which will continue till July 22, 2011? http://edocket.access.gpo.gov/2010/2010-1169.htm . TPS is only temporary and will last for 18 months. An individual who was not in status prior to the grant of TPS will again fall out of status after July 22, 2011, unless TPS is extended. This individual might justifiably fear that after the 18 month period, will Immigration and Customs Enforcement (ICE) deport me since I am already in the system? While this concern may be legitimate, it must be weighed against continuing to be out of status. An undocumented individual, or one who is out of status, is still at risk of being apprehended and ultimately deported. So it might be better to legalize through TPS, which also gives one the benefit of work authorization. If the application is too expensive - the total filing fees with an Employment Authorization Document costs $470 - there is a fee waiver, which the USCIS has indicated that it will consider generously and with compassion.



It is likely that TPS for Haitians will be extended beyond 18 months given the havoc the earthquake has wrought on the country. TPS has been extended for many years to nationals of other countries. For example, TPS for Salvadorans was announced on March 9, 2001 and is continuing until the present. TPS for Somalians was announced on September 16, 2001 and still continues till today. TPS for Sudanese was announced on November 4, 1997 and continues till today. The same with nationals of Honduras and Nicaragua, which have benefited from TPS for more than a decade. Liberians too enjoyed TPS, and when TPS expired for them, they were granted Deferred Enforced Departure, which they still get. We have never heard of mass deportations after the TPS program for a country has expired. See Immigration Policy Center Report on TPS, http://www.immigrationpolicy.org/just-facts/granting-refuge-temporary-protected-status-tps-haitians-united-states

Hence, there is a great advantage for a Haitian to apply for TPS within the 180 day period. Getting in now, within the 180 day period, will allow the individual to extend if TPS is extended for Haiti after the 18 month period. Note that an eligible candidate must have continuously resided in the U.S. since January 12, 2010. Anyone who has come after that date is not eligible. Finally, TPS is not available to those who have been convicted of a felony or two or more misdemeanors. If anyone falls in this disqualifying category, the Immigrant Defense Project Advisory is essential reading, http://www.immigrantdefenseproject.org/webPages/practiceTips.htm.

NEW USCIS MEMO ON EMPLOYER-EMPLOYEE RELATIONSHIP FOR H-1B PETITIONS: IS IT A WAY TO KEEP CERTAIN WORKERS OUT?

The Requests For Evidence hurled against IT consulting firms after they filed H-1B visa, then the raves and rants of Senator Grassley against allegedly abusive IT firms, followed by the BusinessWeek article on job shops giving prime time to the rabidly anti-immigrant Programmers Guild, along with attacks on the H-1B program by even our own allies at labor organizations, where even sophisticated IT firms are pejoratively called "body shops," have all been code for keeping the Indians out. See H-1B BIGOTRY, http://tiny.cc/KN180 .

And now the latest USCIS Memo by Donald Neufeld dated January 8, 2010 (Neufeld Memo), http://tiny.cc/z3ZU8 , which in one sudden swoop, and in violation of the public notice and comment procedures of the Administrative Procedure Act, guts the ability of IT consulting firms to file H-1B visas, is again a thinly veiled attempt to kill a successful Indian business model that American businesses have so readily embraced.

It is then no surprise that the outrageous singling out of Indians since the New Year waiting in the line at Newark and other airports by CBP officials is the result of the Neufeld Memo that may have filtered through CBP officialdom but not the public until January 13, 2010. On one fateful day, January 11, 2010, when Continental Airlines Flight 49 landed in Newark from Mumbai, India, we know that CBP officer Matt McGirr and his colleagues, hunted through the lines for Indian H-1B workers even before they showed up for primary inspection. Their minds were made up. No detailed questions were asked. The moment they found Indian H-1B workers who uttered that they were working at a client site in the IT field, their fates were sealed. They were subjected to expedited removal orders and sent back to India. Some were luckier and escaped the ER order, but still had to withdraw their applications for admission to the U.S. Nevertheless, they were all coerced into making statements under threat of being detained. CBP officials also made remarks as to why the H-1B workers, singled out for deportation, earned more than U.S. workers and should not be paid so much. The consequence of expedited removal is a 5 year bar from entering the U.S. It is hoped that higher and saner officials within CBP will realize that these ER orders were unwarranted and trampled upon the civil rights of Indian workers, erase them and allow them to continue to contribute their skills and expertise, which in turn benefit U.S. corporations.

But the damage will continue through this Neufeld Memo, which takes aim at mainly Indian H-1B IT workers at third-party client worksites. Essentially, the Neufeld Memo insists that there must be an employer-employee relationship at all times throughout the requested period of H-1B employment. The employer, according to the Neufeld Memo, must be able to establish the right to control over when, where, and how the H-1B worker performs the job, and the USCIS will consider the following in determining whether there is an employer-employee relationship, notwithstanding the fact that the IT consulting firm hired the individual and is on its payroll:

1) Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
2) If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
3) Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
5) Does the petitioner hire, pay, and have the ability to fire the beneficiary?
6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
7) Does the petitioner claim the beneficiary for tax purposes?
8) Does the petitioner provide the beneficiary any employee benefits?
9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
10) Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
11) Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

Under these criteria, an IT consulting firm, which does not have its own proprietary software, and which the H-1B worker will implement for a client under supervsion from the IT firm, will most likely be doomed when it files an H-1B visa. Indeed, the Neufeld Memo cites the example of a third party placement where “the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments.” Such an H-1B will fail since the petitioner, according to the Memo, has no right of control over the beneficiary. And even when such an IT company can demonstrate a right of control over its employee (even if the day to day assignments are overseen by the client), the USCIS will rely on the Neufeld Memo, which will give it sufficient leeway to deny the H-1B petition. In the recent past, it was necessary to show a link between the petitioner and the client company. Now the Neufeld Memo wants more – this esoteric right of control, and this will be impossible in the context of an IT consulting firm, which may not have its own proprietary product or methodology.

The USCIS cannot make law through a memo, which CBP officials have also started relying upon at airports to deport Indian H-1B workers in the IT industry. Clearly, the free market economy, which the U.S. hopefully still espouses, has recognized the value that these Indian IT consulting firms bring to U.S. business, and in turn, to the U.S. consumer. There is already a vigorous process in place that scrutinizes H-1B requests, and a de facto re-adjudication procedure when the worker requests an H-1B visa at a U.S. consulate in India. We do not need another restrictive memo, which will kill the spirit of innovation and entrepreneurship, which also brings with it expertise, that the U.S. so vitally needs. Indeed, there is a lot more in the Neufeld Memo that is troubling, such as the inability of a petitioning entity that is owned by the beneficiary to sponsor him or her. This aspect of the Memo also contravenes long established principles that a corporate entity is a separate legal entity and can sponsor a beneficiary for an H-1B visa. See USCIS GRAPPLING WITH THE RIGHT OF A CORPORATION TO PETITION FOR ITS OWNER FOR AN H-1B VISA, http://tiny.cc/OwSOX . This too will kill innovation and enterprise. Don’t we want more folks to come here to start another Google? I am not sure the officials at Department of Homeland Security get it. DHS' mission is to ensure national security and not to promote economic dynamism and make the U.S. the most attractive destination in the world for the hardworking, creative and innovative.

EXPEDITED REMOVAL OF H-1B WORKERS AT NEWARK AIRPORT

We have personally heard of H-1B workers from India employed by IT consulting firms being subject to expedited removal orders at Newark airport in New Jersey. The grounds seem to be rather spurious. Some H-1Bs have been removed because they were working at client work sites, and the position of the Customs and Border Protection officer was that the H-1B petition should have been filed by the client and not by the IT consulting company. Another affected H-1B worker reported that the CBP officer did not believe it was legitimate for the IT consulting firm to be making a profit by billing the client for the services of the H-1B employee. While we need to gather more facts, all of this makes no sense. It is legitimate for an employer to assign an H-1B worker to a client so long as it is indicated in the H-1B petition and that the underlying Labor Condition Application also covers the client location. In some cases, short term assignments may not be considered worksites and need not be covered in the LCA. There is no prohibition for an H-1B worker to make a profit through the services of an H-1B worker so long as he or she is being paid the higher of the prevailing or actual wage (the wage paid to similarly situated workers employed by the IT consulting firm). Moreover, the USCIS is pretty tough in its scrutiny of H-1B petitions filed by IT consulting companies before approving them. Also, the consul also further scrutinizes visa applicants before granting an H-1B visa.

Our colleague, Ron Gotcher, also reports similarly on his blog, http://imminfo.com/News/Newsletter/2010-1/newark_airport_beware.html, and notes one ridiculous instance of a CBP official telling an H-1B worker that only US citizens or permanent residents can work for state agencies.

Most H-1B workers report that they are forced to make their statements under threats of being detained. Furthermore, non-immigrants entrants who are subject to secondary inspection at an airport have no right to counsel. It is important for H-1B workers to stay calm and be truthful and not wilt to pressure. If there is a rogue element among CBP officials at Newark, everyone needs to protest and work with the highest echelons at CBP to correct the problem. Those who have been subject to erroneous expedited removal orders can informally work with the CBP to vacate the expedited removal order. Otherwise, such an order bars the individual from entering the US for a period of 5 years, and it is not fair to so harshly penalize an H-1B worker just because CBP at Newark decides that he or she is violating the terms of the visa.

CHRISTMAS BOMBER AND REVOCATION OF VISAS

It has now become acceptable wisdom that the State Department should have revoked the visa of the Nigerian, Mr. Abdulmutallab, who attempted to detonate a bomb on the flight to Detroit on Christmas Day. Here is an extract from a New York Times editorial, The System Failed (http://tiny.cc/FwCPz), dated December 29, 2009:

"What makes this so much worse is that officials had something they can’t always expect: fair warning. In mid-November, Mr. Abdulmutallab’s father, a prominent banker in Nigeria, went to the American Embassy in Abuja to ask for help and warn them of his son’s increasing “radicalization.” The State Department, working with other agencies, had the power to revoke the son’s visa or put a temporary hold on it. Officials say the warning was insufficient. That seems like a very bad judgment call."


On hindsight, when we have 20-20 vision, it may have been a bad judgment call on the part of the State Department for failing to revoke his visa. But is the State Department to bear the brunt of the blame? I don't think so. Take for example the case of someone, say a national of Nigeria, who possesses an F-1 student visa and is studying at Harvard University. He has a personal feud with his spouse and her family while on vacation in Nigeria. Her spiteful father decides that the best way to nail him is to falsely report to the US Embassy that he has become increasingly radical by associating with extremist Muslim clerics. After the drubbing that the US Embassy got with the Christmas bomber, they will likely take no chances and revoke his visa. He gets stuck and cannot return to study at Harvard even though the report was false and baseless.

In a world that is increasingly fearful of that one individual who can cause mayhem and destruction, it is all too tempting to take away immigration benefits or to deport foreign nationals on mere suspicions. Clearly, there can be other layers of safeguards before revoking immigration benefits on mere suspicions. The New Times editorial goes on to add:

"The embassy did pass on the father’s information, as required, to the National Counterterrorism Center and the son’s name was added to a database of 550,000 people with some alleged terrorist connections. Officials decided that the warning wasn’t enough to put him on the list of 14,000 people subjected to more thorough airport searches or to the 4,000-person “no fly” list. That was clearly a very bad call."

I agree that this was a very bad call. There was that one additional layer, the National Counterterrorism Center, which could have connected the dots and differentiated between the bomber and our hypothetical student at Harvard who got caught up in a family feud and became the victim of a false allegation. Even our hypthetical situation is an extreme case, and one fears that fearful consuls will refuse visas on very flimsy grounds. After all, our government had intelligence that Al Qaeda in Yemen was planning to use a Nigerian to attack the U.S. Clearly, the screening machines at the airports too failed when they could not pick up 80 grams of PETN on Mr. Abdulmutallab. We need smart intellegence to keep out terrorists, and not rely solely on immigration policy to do the job.

While we are all concerned about our safety and security, I urge our government to give pause, even after this incident, and not needlessly revoke visas, take away immigration benefits or refuse to grant immigration benefits on mere hunches and suspicions, and without probing further and connecting the dots.