Current trends in Immigration

    Immigration policy adopted by the current government under President Trump is very stringent.  Immigration laws have remained the same, however, enforcement is the new policy.  So, while immigration applications are filed as before; the officers are using stricter scrutiny in approving the petitions, applications and waivers and exercise of discretion. 

    Removal (deportation) cases are especially at risk where the parties may be eligible for relief but deportation proceedings continue while the parties wait the processing times for the immigration relief. 

    Immigration Litigation is on the rise.

Travel Pending Change of Status

    Plan to travel after graduation / Optional Practical Training or filing application for Change Of Status (COS)?  Your return to the U.S. could be delayed.  Travel out of U.S with a pending COS application amounts to abandonment of the application.  Ask yourself, if you could wait outside to consular process your H-1B or another visa.

    USCIS' policy is to allow travel before taking up employment as H-1B.  However, because of SEVIS, border inspection issues and uncertainty about the gap in time between the end of F-1 and start of H-1B status; travel out of United States is risky before approval of your H-1B or other Change of Status.

    It would be different if the foreign national holding a valid visa to re-enter for the purposes consistent with that visa.  E.g.: an F-1 holder seeks to re-enter U.S. on his preexisting F-1 visa and continues the education program. F1 could change status later on to H1B.

    A valid visa is always required before entering into U.S.  Consular posts and CBP officers at the Port of Entry would be more closely scrutinizing requirements.  Learn how to avoid the risks before you travel.

    Returning to join work for optional practical training (OPT) after traveling abroad upon completion of the academic course or program or prior to the H-1B start date could be problematic.  You could have a problem reentering even with an approved change of status notice until the effective date of H-1B.

Read my blog on immigration here

Relief for Victims of Domestic Violence

    If you are married to a U.S. citizen or a lawful permanent resident in the U.S. and suffered domestic violence, you are eligible for immigration benefits.  A child or an elderly parent who is a victim of domestic violence may also be entitled to similar benefits. 

Voting Rights and Immigrants 

          This November brings the Presidential election.  We would have a new leader to steer the country.  Lots of excitement and expectations would be in the air and hopefully, lots of votes would be cast.  But the coming election also worries me as to how many people are casting votes not knowing whether they should or should not be doing so.

          As a general rule, voting in general elections is a right of the citizens of a country.  Many foreign nationals in the United States choose not to naturalize even after years of acquiring lawful permanent residence.  These residents, largely, have the same rights and duties as a citizen except for a few including the right to vote or serve as a jury that is special to citizens only. 

          Immigration and Nationality Law treats a foreign national who has voted in violation of any Federal, State or local constitutional provision, statute, ordinance or regulation as “inadmissible” and /or “deportable.”  A non-U.S. citizen voting in violation of any of those provisions would lose eligibility to seek admission into the United States and if (s)/he were already present in the country, becomes deportable. 

          In addition, registering to vote but not actually voting could impair the eligibility to naturalize if done in violation of lawful restrictions placed on such registration.  At the least, it would be either a false statement or a false claim to citizenship to receive a benefit; if the benefit (registering to vote) was restricted to citizens alone; both affecting the ability to naturalize.  Similarly, responding to a call to jury duty may jeopardize the naturalization prospects.  The jury pool is selected from various sources not necessarily considering the nationality of the person so selected.  Frequently, foreign nationals receive calls to perform jury duty.  Proper steps should be taken to avoid making false statements under oath as to one’s citizenship or exercising what may be considered as a right belonging to citizens only.

          The law expects a person making (or signing) the statement, about his U.S. citizenship or eligibility to vote, to take full responsibility for his actions and to serve with punishment for any mistake.  A foreign national making such mistake could face inadmissibility or deportation or both.  There exists a narrow exception for those, who, in addition to having each natural or adoptive parent as U.S. citizen, satisfy certain other conditions, events that are less likely to occur than winning a lottery.  As you guessed it, complexity controls.

          Many foreign nationals may encounter situations where they are invited, as a member of the general public, to register to vote in a federal or State or local election.  You may have to fill in a form and make a statement under oath and as I have noticed, often foreign nationals are not sure whether they are eligible to register or not.  Some hesitatingly approach the registration desk and express doubts about their eligibility.  It would be helpful if the eligibility criteria are displayed at the relevant places or even better if the person at the voting or registration desk is knowledgeable enough to advise you whether you could or could not vote or register.  Enquire if such advice is readily available and if not where could you find it.  Even then, it is your responsibility to follow the rules.  Reliance on statements of those who have no duty towards you does not excuse you from bearing the consequences of your erroneous statements.

          Young adults, although born outside but raised in the United States, frequently commit the mistake of registering and voting, either filled with a sense of excitement of being able to exercise a right which they believed rightly belonged to them or filled with a sense of duty to participate in the elections of the country in which they were raised as one of her own men or women.  Others may have voted in the local elections ignorant that citizenship was an eligibility requirement.  I would not call it a totally cavalier attitude.  Such actions may be the result of possessing a sense of belonging to and behaving as a part of the community, in which one is raised and highlight the widespread ignorance about the divides created and maintained by the nation’s immigration laws. 

          The moral of the story is: If you plan to vote in any election, check to see what the eligibility criteria are and act accordingly.  Know when your statements could be taken as false and above all, take the time to educate your children and encourage them to ask themselves before voting this election “are you a citizen yet?”

H1B in Indiana: Some Concerns

    Department of Labor (DOL) shared concerns about H1B employer abuse going on in Indiana.

    Concerns were similar to "benching" claims against an H1b dependent employer from out of state. If an employment contract included provisions containing liquidated damages for breach of contract and that the H1B wages were conditional upon availability of a suitable job.   

    The federal regulations require as a condition of hiring that the H1B employees be paid H1B wages from the time they present themselves for work.  Employer practices of "benching" are contrary to federal regulation but apparently were covered by the contract provisions.  Affected foreign nationals may have a lawful claim for back wages against their sponsoring employers if “benched.” 

    Benched foreign nationals usually resign from the H1 position and relocate to another job.  The employers promptly obtain a state court judgment against the foreign national, often exparte, for breach of contract. 

    Indiana breach of employment contract claim against a failure to pay required h1b wage a federal law violation is intertwined in one action.  The state courts can not decide on federal law.  Foreign national desiring to fix this issue may contest his case in a proper forum, i.e. the Federal Court.

    The affected individuals may choose to work with DOL and exchange information which may also be obtained at the U.S. Consulate where they apply for an H1 visa. 

    Unfortunately, abusive employment practices are not uncommon, but the Department of Labor must be contacted to help with these employment practices.  

Employment Eligibility Verification

    Employers are required to verify the employment eligibility of each individual they hire, whether the employee is a U.S. citizen or not.  Employment verification should be maintained in a document called employment eligibility verification form (Form I-9).  Beginning 11/26/07 employers were required to transition to the revised I-9 form and after 12/26/07 failure subjects employer to penalty. 

    Form has been revised multiple times and can be completed based on specific documents constituting evidence of identification or of employment eligibility or both.  Unfortunately, too many employers are still unaware of this requirement or are misinformed about how to complete employee verification. 

    Employers should use the appropriate I-9 forms in case of all new hires or rehire and retain it for three years from the date of hire or one year after termination of employment.  

GLOSSARY of terms