Thank you for following our posts on the Insightful Immigration Blog. In case you are wondering why there are no new posts here, we moved from Blogger to WordPress on January 13, 2016, and can be found at blog.cyrusmehta.com, where we continue to post on The Insightful Immigration Blog.We do hope you like the new format, and feel free to send us any feedback or comments.
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
TOP 10 POSTS ON THE INSIGHTFUL IMMIGRATION BLOG IN 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
by
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;
and
(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.
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