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  1. The Mentally Incapable and Political Asylum; By Danielle Beach-Oswald

    Although it has long been established that immigrants have a right to legal counsel without any cost imposed on the government, the situation for one detained immigrant in York, Pennsylvania shows that it's time for the government to do much more to help those with mental health problems seek political asylum in the United States.
    Matter of M-A-M, decided by the Board of Immigration Appeals in May 2011, stated that aliens in immigration proceedings are presumed to be competent if there is no indicia of incompetency.
    To determine competency, an individual must be able to have a rational and factual understanding of the nature and object of the proceedings and must be able to participate in his defense. When the Judge finds an indicia of incompetency, the immigration Judge must make further inquiry to determine whether he or she is competent for the purposes of immigration proceedings. If it is determined that the alien lacks sufficient competency to proceed, the immigration judge must evaluate " appropriate safeguards". Clearly, the terminology here allows for tremendous discretion, but something must be done rather than inaction.
    An Associated Press Article on October 17th detailed the story of Derrick Cotterel. Mr. Cotterel, a Jamaican national, worked in agriculture for 10 years. Following a pay dispute with his employer, Mr. Cotterel was arrested and it was determined that he had overstayed his original visa. Judges in the York Immigration Court attempted to understand his case for political asylum, but given his severe language problems stemming from mental health issues, he faced tremendous difficulties in his case for political asylum. Although his asylum was eventually denied, it is now on appeal with the help of ACLU. Lawyers working on his appeal are making every effort to make sure that he receives the appropriate assistance, including a speech and language professional, to help him in his communications with the court. The Associated Press also noted how the ACLU is seeking a class action lawsuit in California to guarantee access to attorneys for mentally-ill detained immigrants in California.
    A few months ago, I recently represented a client before the Baltimore Immigration Court that also faced mental problems. It was clear that his language difficulties of my client, like that of Mr. Cotterel, would have made it impossible for him to seek political asylum. However, through persistent efforts and the assistance of mental health experts who showed he had developed severe Alzheimer's Disease,I was able to get the Immigration Judge to agree to conduct a competency hearing despite the government's objection. In this case it was also not clear that any nexus existed between his memory issues at present and the his past persecution. After a competency hearing, the Judge determined that my client would not have to testify at his immigration hearing due to incompetency under Matter of M-A-M and thankfully he was granted political asylum.
    But for people like Mr. Cotterel, the government must take action as he was unrepresented by counsel. The mentally ill victims of persecution are especially vulnerable if forced to return to their native countries. Those that are detained in criminal proceedings have access to mental health professionals that are able to make a determination that directly impacts their criminal trial. Despite Mr. Cotterel being in a detention center shared with alleged criminals, he was unable to receive access to mental health professionals that would have helped him in his bid for political asylum. The ACLU's efforts in California to gain access to attorneys for all mentally-ill detained immigrants is to be applauded, but more must be done.
    Mentally-ill detained immigrants should have access to not only attorneys, but also mental health professionals. This should be provided by the government in order to maintain a modicum of fairness. Otherwise, the mentally-ill victims of torture will face increasing hurdles with little hope of relief.
  2. H1B Visa Employee - Right of Control for Sole Business Owners

    Can you own your company as an H1B Holder? We have prepared the summary of the updates regarding establishing employer-employee relationship for H-1B purposes in cases where the beneficiary owns 100% of the petitioning company.
    Since the issuance of Neufeld Memorandum "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Placements" in January 2010, USCIS has issued Requests for Evidence (RFEs) for many companies where the beneficiary is also a stockholder of the petitioning company. Often times, the RFEs are issued even if the beneficiary owns a minimal percentage of shares in the petitioning company.
    In the situations where the beneficiary has an ownership interest in the petitioning company, it has to be established that the petitioner can be classified as the employer pursuant to 8 C.F.R. § 214.2(h) (4) (ii) (2). In other words, it has to be established that there will be an "employer-employee relationship", as indicated by the fact that the petitioner may hire, pay, fire, supervise, or otherwise exercise the right to control over any such employee.
    Establishing the Right to Control

    The Neufeld memo provides an example of a situation where the right to control will not be found. The example includes a petitioner, a fashion merchandising company, that is owned by the beneficiary. The beneficiary is the sole operator, manager, and employee of the petitioning company. The beneficiary cannot be fired. There is no outside entity which can exercise control over the beneficiary. USCIS provides this scenario as an example where there is no right to control over the beneficiary.
    However, this example in the memorandum does not preclude the finding of right to control in the situations where the beneficiary owns shares of the petitioning company or is the sole owner of the company and there is an outside control over the beneficiary.
    USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. However, an H-1B beneficiary who owns a majority of the sponsoring entity and who reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite "control". USCIS stresses in the Memorandum that "[w]hile it is correct that a petitioner may employ and seek H-1B classification for a beneficiary who happens to have a significant ownership interest in a petitioner, this does not automatically mean that the beneficiary is a bona fide employee."
    Neither the Memo nor the regulations bar approval of the H-1B petitions where the beneficiary has the ownership interest. The Neufeld Memorandum merely stresses the fact that the petitioner has to show the right to control the beneficiary.
    Even though the Memorandum clearly states that there can be situations where the corporation can establish the right to control its sole owner, adjudications of H-1B petitions where the beneficiary had an ownership interest in the sponsoring entity have been inconsistent. Often times, USCIS plainly concludes that since the beneficiary owns a part of the petitioning entity, it has not established the employer-employee relationship.
    Despite the fact that the Neufeld memorandum was issued almost two years ago, USCIS has released its clarifications of the memorandum in the Q&A session only in August 2011. See Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the "Employee-Employer Relationship" in H-1B Petitions posted on 08/02/2011 on USCIS website.
    The Q&A clarifies when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship. Specifically, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established.
    Q&A gives an example that a petitioner that provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary may be able to establish an employer-employee relationship with the beneficiary.
    There is a widespread misconception about the scope of the clarifications given by USCIS. Many individuals think that now any beneficiary who is the sole owner of the petitioner will be able to establish employer-employee relationship.
    However, this is a misinterpretation of the Q&A. In any H-1B case filed on behalf of the beneficiary who has an ownership interest in the sponsoring organization, the petitioner has to provide documentary evidence proving its right to control the H-1B worker.
    Documentation Required
    The Frequently Asked Questions issued by USCIS suggest that the petitioner may submit a combination of any documents that sufficiently establish that the required relationship between the petitioner and the beneficiary exists and may submit any other similar probative evidence.
    Such documentary evidence may include the following:
    o Corporate documents, including bylaws, showing the board of directors and its authorities to exercise outside control over the beneficiary;
    o Copy of signed Employment Agreement between the petitioner and beneficiary detailing
    the terms and conditions of employment;
    o Copy of an employment offer letter that clearly describes the nature of the employer-employee
    relationship and the services to be performed by the beneficiary, the ability of the employer to fire the employee, the explanation of how the employer will exercise its right to control the employee, and the explanation how the employee will be supervised throughout the H-1B employment;
    o Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner's discretion over when and how long the beneficiary will work, the method of payment, the petitioner's role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;
    o A description of the performance review process along with progress and performance evaluations;
    o Letters from the other directors explaining how the right to control the work of the beneficiary will be exercised on a day-to-day basis, who will supervise the beneficiary and evaluate the work-product of the beneficiary, and explaining the management structure of the company;
    o Copy of petitioner's organizational chart, demonstrating beneficiary's supervisory chain;
    o Other relevant documents.
    It remains to be seen if USCIS will be consistent in its adjudication of H-1B petitions where the beneficiary is the sole owner of the sponsoring entity. Therefore, when filing the H-1B petition, do not assume that the petition should be approved for a sole owner of the sponsoring entity in light of the new guidance. It is recommended to include as much evidence as possible showing the outside control over the beneficiary to prove a valid employment relationship between the petitioning entity and the H-1B worker. Please contact us with any other questions.
  3. Statue of Liberty Turns 125

    by , 10-28-2011 at 06:10 AM (Greg Siskind on Immigration Law and Policy)
    The symbol of America's welcoming immigration policy was unveiled 125 years ago today and deserves a resounding salute. I think most of you are familiar with Emma Lazarus' famous poem "The New Colossus" that was written in 1883 and placed on a bronze plaque mounted inside the statue. But while the famous words "Give me your tired, your poor, your huddled masses yearning to be free" are known to most, the entire poem is not and so here it is as a reminder of what makes America the country it is:

    Not like the brazen giant of Greek fame,
    With conquering limbs astride from land to land;
    Here at our sea-washed, sunset gates shall stand
    A mighty woman with a torch, whose flame
    Is the imprisoned lightning, and her name
    Mother of Exiles. From her beacon-hand
    Glows world-wide welcome; her mild eyes command
    The air-bridged harbor that twin cities frame.
    "Keep, ancient lands, your storied pomp!" cries she
    With silent lips. "Give me your tired, your poor,
    Your huddled masses yearning to breathe free,
    The wretched refuse of your teeming shore.
    Send these, the homeless, tempest-tost to me,
    I lift my lamp beside the golden door!"

    The Statue of Liberty has always had a lot of meaning for me. When I was a boy, I remember my grandfather telling me a lot of stories about his immigrant parents and their 17 siblings who all were part of that first generation of eastern European immigrants that immigrated to the US from the 1880s to the early 1900s and no doubt looked in awe at the Statue of Liberty as their ships sailed in to the port in New York City.  I also remember him telling me about family that didn't immigrate and the anguish of learning the fates of cousins and aunts and uncles who perished in the Holocaust. Thank goodness my branch of the family came to America when we had extremely liberal immigration laws that allowed nearly 100% of people seeking admission entry instead of the restrictive quota rules that prevented relatives from coming in the 1930s.
    As a kid, I became interested in geneaology and have spent time at Ellis Island researching the story of my family's move from Poland, Belarus, Lithuania and the Ukraine to various points around the US. My family has moved from little villages in these countries across the world to places like Chile, Argentina, Brazil, Australia, South Africa, the Netherlands, the UK, Belgium, Israel, Mexico and Canada. So migration has been a common theme in my family and it probably explains why immigration law was a natural for someone like me.
    Another hobby I've had since I was a teen is collecting rare and historic newspapers. Within my large collection is a set of newspapers that has the Statue of Liberty and Ellis Island as its theme. If you ever come to my office, you'll find a number of those items items on our walls. I was pleasantly surprised to see this photo in today's New York Times.

    This illustration of the fireworks celebration at the unveiling of the statue is actually from the November 6, 1886 issue of Harper's Weekly and I'm quite familiar with it because I see it everyday. I have the original newspaper hanging in my office right next to another Harpers Weekly cover portrait of Frederic Auguste Bartholdi, the artist behind the statue and two Scientific American newspapers from May and August 1886 giving a behind the scenes peak at the deconstruction and shipment of the statue from France and its reassembly in New York. Down the hall, we have a miniature Statue of Liberty my law partner acquired some years back. The piece is made of original metal from the Statue of Liberty which was removed and replaced during the renovations that took place from 1982 to 1986.
    I won't be in New York today like I was in 1986 at the 100th anniversary, but I'll be watching the celebrations today via the new Torch Cam that goes live today. For the next year you won't be able to go in the Statue while a much needed renovation of its stairs and elevators takes place. But you can still visit the island as well as nearby Ellis Island.
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  4. USCIS Policy Update: Student Visa Holders may be eligible for Drivers Licenses; By Danielle Beach-Oswald

    USCIS has recently provided new guidelines for F Visa-holders (full time students), M Visa-holders (vocational training students), and J-Visa holders (exchange student visitors) to qualify for driver's license or state identification cards. If you are currently on an F, M, or J visa, you would be eligible for a driver's license or state ID card if:

    Your record in Student and Exchange Visitor System (SEVIS) is in active status and you waited at least two business days from the activation date;
    You wait at least 10 calendar days from the date of entry into the US to apply for the driver's license or state ID card; and
    Depending on state regulations, you may need to have at least six months left on your eligibility for nonimmigrant status.

    States are expected to verify this information through the SAVE program. The SAVE program is an intergovernmental database that will allow various state authorities to check a benefit's immigration status against DHS databases.
    If an individual on an F, M, or J visa wishes to apply for a driver's license or state identification card they should bring the following things with them to the DMV:

    Their valid passport with visa
    Their I-94, "Arrival/Departure Record"
    Form I-20 for an F or M immigrant
    Form DS-2019 for a J nonimmigrant
    Form I-766 Employment Authorization Document (EAD) if applicable
    Form I-797 or I-797A Notice of Action if there was a change of status
    Their Social Security Number or if they lack a Social Security Number Form SSA-L676 Refusal to Process SSN Application

    Additionally, accompanying dependents are also eligible for driver's licenses or state ID if they present supporting personal status documentation and the status documentation of the primary visa holder.
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  5. "Can Martinez v. Mukasey survive a Supreme Court decision in Vartelas v Holder?"

    by , 10-27-2011 at 01:18 PM (Gary Endelman on Immigration Policy and Law)
    My guru on the law of removal, the learned Salvador Colon of Houston, is worried. Why you ask? It is because he wonders if the Fifth Circuit decision in Martinez v. Mukasey can survive a future Supreme Court ruling in  Vartelas v Holder. Now, this may seem very much like inside baseball trivia to the uninitiated but it actually can have real life consequences. Permit me to explain.
    In my last blog, I discussed Vartelas v Holder, 620 F. 3d 108 (2d Cir. 2010), cert. granted sept. 27, 2011 (No. 10-1211). Here, an LPR had plead guilty in 1994 to the crime of possessing or making bogus securities. At that time, IIRIRA was not yet a gleam in the eye of the most fervent nativist. Why is this relevant? Look at INA 101(a)(13)(C)(v) that renders a returning LPR an applicant for admission if he or she has committed a crime involving moral turpitude that is not a petty offense. Even though the incident in question took place under a different legal regime, the BIA and the Second Circuit both held that the applicaitn of the post-IIRIRA admission  standard was not impermissibly retroactive.  This was in conflict with the contrary conclusions on this same question reached by the Ninth Circuit in Camins v. Gonzales, 500 F. 3d 872(9th Cir. 2007) and the Fourth Circuit in Olatunji v. Ashcroft, 387 F. ed 3838(4th Cir. 2004). Perhaps, given this conflict among the circuits, the Supreme Court granted certiorari to determine whether the current INA 101(a)(13)(C)(v) can be applied retroactively.
    Doubtless, the conceptual framework that will govern such constitutional exegesis is the traditional two-step approach articulated in Landgraf v. USI Film Products, 511 U.S. 244 (1984). Since Congress did not expressly instruct  on how far back IIRIRA can go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101 (a)(13)(C)(v) will contradict basic notions of proper notice and upset "settled expectations" on which the actor "reasonably relied."  Interestingly, IIRIRA's temporal reach cannot be circumscribed simply because "it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law." Landgraf, 511 US at 269. When in doubt, retroactivity is disfavored.  The Supreme Court got it right: " Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Landgraf, 511 US at 265,
    All of the above brings us, and brought sensei Chava Colon, to consider what might be the fate of the Fifth Circuit's enlightend ruling in Martinez v. Mukasey, 519 US F.3d 532(5t Cir. 2008) . This case held that the bar against INA 212(h) waivers for permanent residents who have committed aggravated felonies or have resided in the USA less than 7 years does not apply to one who adjusted status within the USA rather than having entered on an immigrant visa after consular processing. A cogent and incisive analysis of this case was offered by my learned colleague David Isaacson in this same space.,0930-isaacson.shtm . Now, Chava Colon had the inspired thought that a Supreme Court affirmation of IIRIRA retroactivity in Vartelas v Holder might undermine the distinction between adjustment of status and admission on which Martinez v. Mukasey rests. Once the Supemes start tinkering with the notion of "admission", there is no way to predict where they or we will end up. Any Supreme Court pronouncement in Vartelas could well conflate the two ways of becoming an LPR that the Fifth Circuit in Martinez v Mukasey was so careful to keep separate and apart.
    So, a decision how far back the IIRIRA notion of "admission" goes could wind up leaving an alien who needs 212(h) relief with no hope. When, to borrow a happy phrase from Einstein, the Supreme Court starts to play dice with the universe, mere mortals can only hope that the last laugh will not be on them or their clients.
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