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I was able to get a ticket and watch the Senate vote live from the Senate's gallery. Exciting to say the least. Just left and will comment later this evening. But time to celebrate the historic 2 to 1 vote in favor of reform. - Posted using BlogPress from my iPad
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The "Doctrine of Consular Non-reviewability" may be a concept unfamiliar to many yet it is very important for anyone outside the country desiring to enter the United States with a visa. When an individual is not on U.S. soil, he must go through the U.S. Department of State and visit a consulate abroad in their home country in order to attain a visa.
The problem confronting visa applicants is that no system of external oversight exists within a consulate for visa issuance decisions. This essentially
enables the consulate office to express bias and employ inconsistent standards.
Consular processing is required when the intending immigrant is not physically
located in the United States and therefore has to request a visa in order to
legally enter the country. It is disconcerting since this doctrine allows a
consulate to issue a denial without an explicit set of evidence present to
explain the outcome. This leaves visa applicants helpless without any chance
for appeal or external review.
A recent case in Afghanistan
brought attention to the issue regarding a couple, Fauzia Din, a U.S.
citizen and her fiancée, Kanishka Berashk. Mr. Berashk did have an approved
visa petition from USCIS based on marriage yet while waiting for his visa
interview, the situation changed. Unfortunately, his visa application was
denied and the only justification given was denial based on Section 212(a) of
the Immigration and Nationality Act (INA) which includes several
terrorism-related grounds for excluding non-U.S. citizens from the country. The
"terrorism-related grounds" were based on Mr. Berashk's job as a payroll clerk,
performing low-level administrative duties at the Afghan Ministry of Social
Welfare. This charge may seem absurd, yet since Afghanistan
was controlled by the Taliban at one point many Afghani citizens have faced
similar accusations from U.S.
government officials. The U.S. Department of State under the doctrine of
consular nonreviewability is not responsible for justifying its lack of action
or rejection of a visa application. Din filed a lawsuit against the U.S. government
to adjudicate her husband's visa application but the complaint was dismissed
due to the protections of consular denials from judicial review.
It is pertinent that an applicant and his attorney be fully
aware of the exact explanation of a denial for a visa application. Without this
knowledge, there is no opportunity to dispute incorrect information. Currently,
consular nonreviewability does not allow for the needed transparency. The U.S.
Department of State consistently defends this doctrine in the hopes of
"protecting our borders". It is of course appropriate that the United States
has this far-reaching authority in order to keep the country secure by deciding
who should be permitted to enter the borders. Yet, there are also regulations
in place, which define the limitations of this authority, and they must be
followed. Decisions must be evaluated, regardless if they are being made under
the roof of a consulate. A highly criticized doctrine such as this must be
amended because the justification for maintaining the status quo is simply too
weak and the complaints against it continue to rise.
North Carolina's E-Verify law, which was effective in part on October 1, 2011 for employers that employ 500 or more employees, is expanding on July 1, 2013, to cover employers that employ 25 or more employees. Additionally, the North Carolina legislature is considering several additions to the existing E-Verify legislation. Specifically, contractors and their subcontractors entering into a contract with a local government would be required to use E-Verify and an employer would not be penalized if it relied upon an employee's valid restricted drivers permit or valid restricted ID as part of its obligation to submit newly-hired employee data to E-Verify. This is an interesting situation given that Congress is currently debating an Immigration Reform bill, which would make E-Verify mandatory for all employers in the next four years. Thus, most legislatures have not been passing additional E-Verify legislation.
Who knows? But it's flattering being on a list like this. I know every lawyer on the list - a few are close friends - and I can certainly tell you that the others are superb. And kudos to my colleagues at Siskind Susser for inclusion in this edition of Who's Who in Corporate Immigration Law.