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Greg Siskind on Immigration Law and Policy

SO MUCH FOR PLAYING BY THE RULES

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Antis often say that as long as people play by the rules they don't have a problem with having a robust immigration system. But consider the Franks, a British couple awarded an E-2 visa ten years ago who have poured their savings and their blood, sweat and tears in to a restaurant that they were given permission to open and operate. The New York Times told their story today.

In their latest extension, however, an anonymous USCIS examiner decided their restaurant in Maine was no longer up to snuff and ordered the couple to leave the country even though the business has survived the Great Recession and continues to employ Americans.

Once the couple was given permission to invest in and operate their business, there should be a high bar on the part of the government to change its mind about whether the business is E-2 worthy or not. People can, and often are, wiped out financially when they are forced to liquidate a business in a hurry (and that doesn't even factor in how hard it will be for the couple to get new jobs).

This couple played by the rules and that should count for something. But we have a system that allows USCIS to completely destroy businesses and families based on what the examiner had for breakfast that day. A few years ago, O-1 extensions for extraordinary ability artists, athletes and scientists were being denied because a USCIS examiner disagreed with a prior examiner's determination that a person had extraordinary ability in their field. They were forced to back off that and now are only supposed to deny when they can find a serious mistake in the earlier examiner's adjudication. That should be how it is on E-2 extensions.

If USCIS honestly believes that the Franks' business no longer qualified in the category, then they have the authority to grant them parole status to provide sufficient time to wind down the business and leave the country (or possibly invest in another business that would qualify).

I'm also bothered by the general bias our government agencies have against small businesses seeking visas. In the H-1B context, USCIS examiners regularly apply much tougher standards for smaller employers seeking to hire workers than larger companies. L-1s are more likely to be denied when a smaller company seeks to transfer workers in to a US branch office. And here we see another example. It wasn't always this way. We used to be more welcoming of entrepreneurs looking to start up or expand businesses in the US. The laws haven't changed - just the standards of the government officials working on these cases.

We've heard over and over again that small businesses are the lifeblood of the US economy and most jobs being created today are by small businesses and not large ones. It might pay for USCIS, DOS and DOL to be reminded of that from time to time.

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Comments

  1. bobzibub's Avatar
    We're used to USCIS. You can't make this stuff up.
    http://www.windsorstar.com/news/Windsor+dying/3079567/story.html
    http://www.kelowna.com/2010/05/30/calgary-boy-to-return-after-2-years-in-u-s/comment-page-1/#comment-16241
  2. Adi's Avatar
    I read this in NYT and was amazed at the stuipidity of immigration laws. I think there is something wrong with the system when laws are actually hurting the economy and its citizens/people . This is just getting beyond control. Every time I go to India for visa stamping, there is always that drama from background check and I have to wait for lengthy periods of time.

    They seriously need to stamp passports within the country rather than having to go outside. This will also help embassies/consulates to focus on actual terrorists rather than genuine students and businessmen.
  3. bob franklin's Avatar
    This case illustrates too well the precarious nature of the E2 visa.That these 140,000 foreign owned "small Businesses" with nearly 1 million American workers garner so little respect and support from Washington is mystifying.With no stimulus funds or bail out money these businesses have been in the forefront of a troubled economy yet have to present their figures regularly with potentially dire consequences ala the Franks.

    HR1162 provides some solace,however, it is lost in the big issue of CIR which of course truly needs to be "comprehensive" yet for most has just one focus that of the 12 million illegals.
  4. Another Voice's Avatar
    "CIR which of course truly needs to be "comprehensive" yet for most has just one focus that of the 12 million illegals." It think they focus on that part because is the most controversial and affects the larger number of immigrants, but as this example illustrates playing by the rules is not a walk in the park either in the current system which needs to be reformed...
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