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An end to the HIV bar?

2009-10-24T15:58:00.004-04:00

On September 15th USCIS headquarters released a memorandum on the controversial issue of HIV and immigration. Under the guidance set forth in the memorandum, USCIS adjudicators are to hold in abeyance any application for a waiver or benefit, including adjustment of status, filed by an HIV-positive applicant. This marks a far-reaching change, as for more than 20 years the policy has been to deny immigration benefits to HIV-positive immigrants, save the small number who met the criteria for a waiver.

The full memorandum is available here:

http://www.uscis.gov/USCIS/Laws%20and%20Regulations/Memoranda/2009%20Memos%20By%20Month/September/HIV_HHS%20Rule.pdf

Section 212(a)(1)(A)(i) of the Immigration and Nationality Act bars the admission of any alien "who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance." This bar extends to both non-immigrant visas, such as visitor visas or extraordinary ability visas, and applications for lawful permanent residence.

HIV was first added to the Health and Human Services (HHS) list of communicable diseases in 1987. As many readers will remember, the disease at that time was devastating many communities and was still shrouded in fear and mystery. At the time HIV was placed on the HHS list, the agency retained the authority to remove it at its discretion as science and medicine advanced our understanding of the disease. But a 1993 by a bill by Senator Jesse Helms stripped both HHS and the president of that discretion.

For all intents and purposes, the 1993 change to the law rendered HIV a permanent and insurmountable obstacle to legal immigration for most HIV-positive people. Waivers existed, but for most these existed only in the theoretical realm. For example, for an HIV-positive artist seeking adjustment of status based on extraordinary ability, hardship to a U.S. citizen or green card holding spouse, parent or child is required to even apply for a waiver. The non-immigrant seeking to merely visit Disneyland must submit to the whim of a consular officer who is subject to virtually no oversight in deciding whether or not to waive the HIV bar and allow the visit.

In July 2008 G.W. Bush reauthorized the U.S. President's Emergency Emergency Plan for AIDS Relief (PEPFAR). Included with the bill was an amendment that restored HHS with decision-making authority to designate HIV as a communicable disease of public health significance. This signified a major change to the law and laid the ground for the elimination of the bar altogether.

PEPFAR eliminated the statutory requirement that HHS must designate HIV as a statutory bar to admission. However, HHS did not simultaneously exercise its restored authority and remove HIV from its list. The bar will remain until it does, but on July 2, 2009 HHS published a proposed amendment to the federal regulations that would remove HIV from its list of communicable diseases of public health significance. The Obama administration has expressed its support for the amendment and it is likely that the amendment will become a final rule in early 2010. With that, the longtime bar will come to an end.

For HIV-positive immigrants and their loved ones, this is cause for guarded optimism. The USCIS policy memorandum suggests that the change is a fait accompli. But at the same time the agency makes it clear that in the interim it will not approve cases without a waiver. Further, there are still political obstacles to the final implementation of the rule.

For those affected by this issue, it is important to understand that as of this writing the HIV bar remains in place. Until it is formally eliminated, HIV-positive individuals seeking to visit or immigrate to the U.S. will still face the bar. Careful planning is essential. We will endeavor to keep our readers updated.

No Role for the Straw Man

2009-10-17T13:49:00.002-04:00

On October 7, 2009, USCIS issued a Fact Sheet clarifying the circumstances under which an agent can file a visa petition under the O-1 extraordinary ability and P-1 athlete and entertainer categories. Of particular interest is how the agency’s newest interpretation of the regulations will impact O-1 workers.

The O-1 visa regulations, which are found at 8 C.F.R. § 214.2(o), allow a U.S. agent to file an O-1 petition for a worker who traditionally engages in work that is considered self-employment and then arrange numerous jobs for that worker. Similarly, a U.S. agent can act on behalf of a foreign employer in order to sponsor an O-1 worker to work on the foreign employer’s behalf in the United States.

According to the regulations, an agent can be the “worker’s actual employer, the representative of the employer and worker, or a person or entity authorized by the employer to act for or in place of the employer.” Further guidance as to exactly what the term “agent” means in the O-1 context is conspicuously lacking. This lack of guidance has resulted in a broad interpretation of the term to include the “straw man” agent whose sole purpose is to sign off on the petition. Thus, the saxophonist’s drummer or the painter’s roommate suddenly becomes agents.

The benefit of the straw man agent is that under the guise of being represented by an agent, the O-1 worker has greater opportunities to freelance, which is otherwise not permitted. As we have seen, petitions involving a straw man agent often make no effort made to hide the ball from USCIS. We recently saw a petition in which the “agent” noted in bold at the top of his contract with the worker that he was acting as agent “for immigration purposes only.” USCIS approved the petition.

It is now clear that an agent must be “in business as an agent” in order file a visa petition. USCIS cites the example of the worker coming to the U.S. to give several performances, each for a different U.S. employer. In the past, one of the employers would sign off on the visa petition and act as “agent” for the others. As the Fact Sheet makes clear, this will no longer fly. Going forward either each employer will have to file a separate petition or the employers can arrange the performances through a single professional agent.

The Fact Sheet brings much needed clarification to what the term “agent” means in the O-1 and P-1 visa context. While it still leaves much to the imagination, one thing is clear: The straw man no longer has a role in the O-1 show.

When leaving is the best way to stay

2009-08-13T00:15:00.008-04:00

Mr. Ivanov comes to the United States on January 1, 2002 on an H-1B visa to work as a systems analyst for a small US tech firm. He proves to be a valuable employee and the firm decides to sponsor him for lawful permanent residence. The PERM application is approved and on December 1, 2007 the company files an I-140 petition on Mr. Ivanov's behalf. He concurrently files an an I-485 Application to Adjust Status. Things are going swimmingly. So confident is Mr. Ivanov that he will soon receive his green card that he decides to save the time and money of extending his H-1B visa after it expires on January 1, 2008. In August 2009 Mr. Ivanov's manager calls him in and drops the news that the firm's I-140 has been denied. On August 10, 2009 Mr. Ivanov receives a decision from the Texas Service Center denying his I-485. By this point he has been out of H-1B status for over 19 months.

What will become of Mr. Ivanov and his hopes for a green card? The answer is found in a whimsical USCIS memorandum issued in July 2008 interpreting the provisions of Section 245(k) of the Immigration and Nationality Act.

For the uninitiated, section 245(k) provides a "safe harbor" to many employment-based adjustment applicants by permitting an applicant to accrue up to 180 days of unlawful status without it resulting in the denial of his I-485. Without this provision, an alien who lets his nonimmigrant status lapse for even a day is ineligible for adjustment of status and must return home to apply for an immigrant visa and in so doing face the viscitudes of the US consulate.

In its July 2008 memo, USCIS adopts a generally restrictive approach to the facially forgiving language of 245(k). Of particular concern for Mr. Ivanov is the Service's interpretation of the phrase "failed to maintain lawful status" to include, retroactively, any period of time spent under a pending adjustment application where that application is ultimately denied and the applicant has failed to maintain valid nonimmigrant status during its pendency.

Under this interpretation, 181 days after his H-1B visa lapsed, Mr. Ivanov was no longer in the safe harbor of 245(k) and became ineligible for adjustment of status. Thus, even if his employer immediately filed a new I-140 and it was approved, Mr. Ivanov would not be eligible to adjust under a second I-485. The fact that USCIS granted him employment authorization and advance parole and otherwise allowed him to legally live and work in the US during this time has no bearing. One hand giveth, the other taketh away . . .

Applicants for adjustment of status routinely allow their nonimmigrant visas to lapse after the filing of the I-485, some from cost concerns, others, like our Mr. Ivanov, out of a false sense of security that the I-485 will be approved. USCIS routinely takes well over 180 days to adjudicate adjustment applications. For these reasons, applicants whose I-485s are denied are increasingly finding themselves in an unexpectedly dire situation.

Lest it be accused of lenity, USCIS has adopted the harsh practice of issuing a Notice to Appear (NTA) in removal proceedings to employment-based adjustment applicants whose I-485s are denied. Doctors, artists, and financial analysts are now routinely referred to the immigration court for removal proceedings. Worse still, many are finding that they cannot win these proceedings and are being ordered to depart the country.

Mr. Ivanov, who did his utmost to abide by US immigration law and had every expectation of soon becoming a lawful permanent resident, suddenly finds himself in the gallery of a courtroom with 50 other souls waiting for his deportation case to be heard by an immigration judge. Under the regulations, his employment authorization and advance parole are automatically terminated and cannot be renewed during the pendency of the removal proceedings and he will thus be unable to work legally.

Like most others, Mr. Ivanov has no viable claims for asylum, cancellation of removal or family-based adjustment. While an alien can renew a denied I-485 before the immigration judge, the judge, even if sympathetic, retains extremely limited power to reverse the USCIS denial. The result is likely to be a grant of voluntary departure allowing Mr. Ivanov up to 120 days to pack up and leave or face a removal order.

The most obvious way Mr. Ivanov could have avoided this situation was to have maintained his H-1B visa even though he had a pending I-485. Current regulations allow for nearly unlimited extensions of H-1B visas and most nonimmigrant visas now allow the holder to have "dual intent" so that he or she can pursue lawful permanent residence while simultaneously maintaining non-immigrant status. The cost of seemingly endless visa extensions may seem onerous, but they may prove to be far lower than the cost of not doing so.

Because USICS usually issues the Notice to Appear and I-485 denial simultaneously, it is too late to avoid the consequences once the denial is issued. But with careful planning and some tough decisionmaking, there may be another solution, albeit a drastic one.

Experience shows that in most problematic adjustments cases, USCIS issues a Request for Evidence (RFE) alerting the applicant to potential grounds for denial and affording him the opportunity to redress the issues. The same generally applies to I-140 petitions filed by employers. If an RFE is issued in connection with either, the applicant should immediately sit down with counsel and get a realistic assessment of the chances of approval versus denial. If the assessment is bleak, the applicant may be better off departing the country rather than wait for the denial and accompanying NTA to arrive in the mail.

The Board of Immigration Appeals has held that where an alien departs the United States prior to the issuance of the Notice to Appear, neither the Department of Homeland Security nor the immigration court have jurisdiction over the alien and as such any removal proceedings against him are moot. However, once the Notice to Appear is drafted, signed and dated, it is too late and the immigration judge can issue a removal order even if the alien departed the US after learning of the denial.

By preserving proof of the date and place of departure, the alien or her attorney can file a motion to terminate the removal proceedings. DHS district counsel will usually not oppose a well-documented motion to terminate based on lack of jurisdiction due to departure prior to the issuance of the Notice to Appear. If this motion is granted, the removal proceedings are deemed void ab initio.

In the event the alien departs after reviewing the RFE, but the I-485 is nevertheless approved, he should be able to return as a lawful permanent resident provided that the absence was not too extended.

In the confounding logic of USCIS, time Mr. Ivanov spent under his pending I-485 is considered time during which he "failed to maintain status," but not as "unlawful presence" for purposes of the 3 and 10 year bars for unlawful presence. Thus, had he departed at the time the I-140 RFE was issued, he would have been able to pursue an application for the green card at a US consulate. He would not be subject to the 3 or 10 year bar and would be able to truthfully answer no to any questions as to whether or not he had ever been in removal proceedings.

But for Mr. Ivanov hindsight is 20/20. Instead of returning home and waiting for approval of his employer's second I-140, he will wait months for a hearing before the court. Unlawful presence will begin to accrue. Should he somehow miss a court hearing, he will be unceremoniously ordered removed in his absence. He will not be permitted to work legally. If the judge grants him voluntary departure, the DHS may demand that he post a voluntary departure bond to ensure that he leaves on time. Once home, he will have to check in at the US consulate. The next time he applies for a visa he will face a suspicious consular officer who will take a keen interest in the fact he was in removal proceedings back in the States.

Of course, the facts of every case are unique and any decision to depart the country and potentially abandon an adjustment application should be an informed one made after consultation with an experienced attorney. But in some cases, leaving the country may be the best way to stay.

Welcome to the Jones Casado, LLP blog

2009-03-02T18:02:00.000-05:00

Welcome to the Jones Casado, LLP blog. We hope that you will come to regard our blog as an informative source of information regarding US immigration law and policy. We will keep the blog updated with important developments and provide illustrative examples, using individual case studies, of how the US immigration system works in practice.

Nearly two months into the Obama administration, the President has publicly addressed a wide array of issues, from Afghanistan to job creation to health care reform. Conspicuously absent from the president's dialogue thus far is immigration reform. Both sides of the immigration divide agree that the status quo is in urgent need of reform. Now the question is will President Obama push for that reform and, if so, in what form?

Even in the waning days of the Bush administration rumors circulated of a compromise bill aimed at appeasing both sides of the debate. On the one hand, the plan would provide for some form of legalization for many of the millions - by some accounts as many as 20 million - people unlawfully present in the country. This legalization would be balanced with a significant tightening of our porous Mexican border and intensified enforcement of the all but ignored laws prohibiting the employment of unlawful aliens.

Some inside the Department of Homeland Security have told us that this basic outline for reform is a fait accompli lacking only the details and allocation of resources. Yet at the same time, the country is troubled by what some say is the worst economy since the Great Depression, making any kind of legalization a tough sell both in Congress and the public square. Like so many other issues this administration inherited, there is no easy solution for immigration reform.

Nevertheless, the issue of immigration reform is certain to again become a hotly contested national debate. We will follow this issue closely and keep our readers updated regarding any developments we learn of.