Seguritan US Immigration Articles

Status of Children of Foreign Diplomats

Birthright citizenship is embodied in the Fourteenth Amendment of the United States Constitution. The amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

The key phrase in the constitutional provision is “subject to the jurisdiction thereof”. The U.S. Supreme Court interpreted this clause more than a century ago in the case of U.S. v. Wong Kim Ark. In that case, the Court held that only two classes of people are excluded from birthright citizenship: the children of ambassadors and other foreign diplomats, and children born to enemy forces engaged in hostile occupation of the county’s territory.

According to the 1995 Foreign Affairs Manual (FAM) of the Department of State, diplomatic agents are immune under international law from the criminal jurisdiction, and with limited exception, also from the civil and administrative jurisdiction, of the receiving state. “For this reason”, the FAM states, “children born in the United States to diplomats to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship.”

The class of foreign diplomats includes foreign sovereigns such as heads of a foreign state on an official visit to the U.S., and accredited diplomatic officials such as ambassadors, ministers, charges d’affaires, counselors, agents, secretaries of embassies and legations, attachés, and other employees attached to the staff of the embassy or legation.

Likewise included are persons with comparable diplomatic status and immunities such as those assigned to the United Nations or the Organization of American States. To determine whether a parent is a diplomatic officer, his or her accredited title must be listed in the so-called “Blue List” of the State Department.

The USCIS also holds the position that birth of the child of a foreign diplomat only creates eligibility for permanent residence later and it provides the procedure for the acquisition of that status. The diplomat’s child must have had residence in the U.S. continuously since birth and have not abandoned residence in the U.S.

The child must file Form I-485 (application for adjustment of status) and attach Form I-508 (Waiver of Rights, Privileges, Exemption and Immunities), Form I-566 (Inter-Agency Record of Rest for A, G, or NATO Dependent), and official confirmation and evidence that the child was born to a foreign diplomatic officer in the Blue List. The parent’s diplomatic classification and occupational title at the time of the child’s birth must be included.

It should be noted that despite the above position of the Department of State and the USCIS, children of foreign diplomats are issued regular birth certificates which make no distinction on whether a parent is a foreign diplomatic representative, and it looks like the people at the local vital records office do not typically ascertain this kind of information. As Mark Krikorian, Executive Director of the Center for Immigration Studies, observed, these children of foreign diplomats could very well use their birth certificates to get Social Security numbers, passports and driver’s licenses, and even register to vote. Without going into the question of who their parents are, these individuals have all the appearance of U.S. citizens.

Certainly, clarification is needed on the issue to avoid any confusion. The current edition of the Foreign Affairs Manual does not provide the needed clarification. It only says: “7 FAM 1100 Appendix J (under development) provides guidance on the issue of children born to foreign diplomats, consuls, or administrative and technical staff accredited to the United States, the United Nations, and specific international organizations, and whether such children are born ‘subject to the jurisdiction of the United States’.”

The number of people who could be tangibly affected by such clarification may be small compared to those who await the resolution of the birthright citizenship issue in relation to illegal immigration. But if this country is really serious about tightening its laws on citizenship, the issue of foreign diplomats’ children ought to demand more attention.

Dangers of Falsely Claiming U.S. Citizenship

In order to get a green card, an alien must establish that he/she is admissible to the United States. An individual may be inadmissible for many different reasons including fraud or willful misrepresentation of a material fact. Perhaps the most serious misrepresentation that can render an alien inadmissible is by falsely claiming that he/she is a U.S. citizen.

When an alien makes a material and willful misrepresentation to obtain a visa or gain entry to the U.S., such alien is inadmissible but he/she may apply for a discretionary waiver under the Immigration and Nationality Act (INA). On the other hand, there is virtually no waiver if an alien falsely claims that he/she is a U.S. citizen and the alien becomes removable and permanently inadmissible for such misrepresentation.

The violation refers to false representations of U.S. citizenship made in order to obtain a purpose or benefit under the INA or any other Federal or State law. Under the INA, it is unlawful to hire an individual whom the employer knows is an unauthorized alien.

Despite the explicit inclusion of employment as a benefit for which an alien is prohibited from making a false claim of U.S. citizenship, many people are not aware of the ease by which such a violation can be committed: a non-citizen applying for employment who willfully or inadvertently checks off the first box in an I-9 (Employment Eligibility Verification) form lays him/herself open to deportation and a lifetime bar from ever returning to the U.S.

In other words, the false representation need not be made to the government or immigration authorities in order to trigger the draconian consequences of a false citizenship claim. As illustrated in the Sixth Circuit case of Ferrans v. Holder, falsely claiming that one is a U.S. citizen to a potential employer could have very serious consequences.

In that case, the alien was an applicant for adjustment of status. In his interview, it was found that he falsely claimed on Form I-9 that he was a U.S. citizen so that he could get a job at Jiffy Lube. The USCIS denied his application and he was later placed in removal proceedings. The immigration judge found him removable. He later appealed to the Board of Immigration Appeals, but the Board dismissed his appeal.

He argued before the Court of Appeals that while he falsely indicated that he was a U.S. citizen on the I-9 for a private employer, he never misrepresented his citizenship to the U.S. government or immigration authorities. In short, he explained, it was not a “false claim for an immigration benefit or purpose”.

The Court rejected his argument. It ruled that given the plain language of the law false representation of U.S. citizenship for the purpose of obtaining employment, whether public or private, is done for a “purpose or benefit” under the INA.

The false claim issue arises most commonly when an alien fills out the I-9 to gain employment by checking Box 1, thereby attesting under penalty of perjury that he/she is a U.S. citizen. In many of the cases that touched on this issue, the common defense centered on the ambiguous nature of the attestation in the old version of the I-9 as to whether the alien represented himself to be a U.S. citizen or national.

To be clear, the INA punishes only false claims to U.S. citizenship and not false claims to U.S. nationality. However, this nationality/citizenship ambiguity has become less relevant under the new version of the I-9 which separates the choices of U.S. citizen and non-citizen U.S. national.

Given the harsh consequences under the law, non-citizens are thus well reminded to be careful not to make any false U.S. citizenship claims for any purpose, whether to obtain a visa, enter the United States, find employment, apply for welfare benefits, or some other purpose.

Report Reveals Abuse of H-2B Visa Program

On December 10, 2010, two Filipino-Americans who operated a labor contracting service were sentenced for criminal violations under the federal H-2B guest worker program. Sophia Manuel and Alfonso Baldonado, Jr., owners of Quality Staffing Services Corporation, had pleaded guilty to charges involving forced labor of 39 Filipino nationals.

Manuel was sentenced to 78 months in prison and Baldonado to 51 months. Manuel was also sentenced for false statements made on an application for a labor certification and visas under the H-2B visa program.

Their staffing firm enticed workers to come to the United States and for a fee, promised them housing, job placement and transportation. However, soon after their victims arrived in the U.S. the defendants exploited them. Since the workers had paid recruitment fees up-front back home, many of them incurred debt and thus faced serious economic harm and possible incarceration if they returned to the Philippines.

The workers shared an overcrowded three-bedroom house and without adequate food and water, while they were made to work at swanky country clubs and hotels. Their passports were confiscated and they were threatened with arrest and deportation when they complained and were ordered not to leave the premises without permission and an escort.

This case illustrates the egregious violations that have been committed under the H-2B program. In a recent investigative study, the Government Accountability Office (GAO) exposed the abuse and fraud perpetrated by unscrupulous employers and recruiters not unlike those committed by Manuel and Baldonado.

GAO reviewed ten civil and criminal cases involving visa fraud or exploitation under the H-2B visa program that have either been closed or settled. The practices discovered by GAO involved failure to pay the workers the prevailing hourly wage or overtime, charging them exorbitant fees, and submission of fraudulent documentation to the government.

In six of the ten cases reviewed, the employers did not pay their H-2B employees the established hourly wage and/or overtime pay. H-2B workers are covered by the Fair Labor Standards Act which mandates the payment of at least the minimum wage and overtime pay on non-exempt employees.

Six cases showed employers charging H-2B workers excessive fees. These fees comprised of visa processing fees above actual costs, rent in overcrowded and grossly overpriced apartments, and transportation charges subject to “late fees”. As a result, many workers were left in greater debt than when they just arrived.

The study also uncovers the fraud that recruiters and employers committed so they could exploit their H-2B workers or hire more employees than needed. In particular, they misclassified employee duties on labor certification applications in order to pay lower prevailing wages, used shell companies to file fraudulent applications for unneeded employees, and then leased these additional employees to business that were not on the visa petitions.

Some of the deplorable acts include those committed by a hotel in South Dakota that charged nine employees $1,200 each in visa processing fees when that was the cost for all nine workers; charging a monthly rent of $1,050 for an apartment that normally rented for only $375; isolating the employees from the community, confiscating their passports, and threatening them with physical abuse and deportation in a “box” if they disobeyed orders.

Another employer, a construction company in Louisiana, conspired with a foreign contract labor firm to lure 87 Indian nationals to the U.S. and charged them $20,000 each for the H-2B visa, but never employing them. In another case, a New York-based carnival operator housed its H-2B workers in overcrowded and cockroach- and bedbug-infested trailers with unsanitary bathrooms.

An H-2B worker is defined as a foreign nonimmigrant worker employed to perform temporary nonagricultural labor or services. The employer is required to show that the need for the workers is temporary and that there are no available U.S. workers capable of performing such labor or service.

Changes to Immigrant Visa Services in Manila

I discussed in a previous article that due to the high demand for visa numbers there has been a retrogression of some Philippine family preference categories from the cut-off dates stated in last month’s visa bulletin. As a result of the retrogression, many visa applicants whose priority dates were already current under the November 2010 visa bulletin will now have to wait longer.

In a recent announcement, the U.S. Embassy in Manila advised that applicants affected by the retrogression and who have previously received a visa appointment notification should not continue with their medical exam and interview appointment at this time. When their cases become current, the applicants will receive notification on how to proceed with their application.

The announcement explains that under the law, immigrant visa numbers must be made available strictly in the chronological order of the priority dates and that the numerical limitation cannot be waived in any individual’s case, regardless of the circumstances.

The cut-off date for the 2B preference moved back from September 1, 2002 to March 1, 2000. The 2B category refers to unmarried sons and daughters (21 years or older) of lawful permanent residents.

For the 3rd family preference, the cut-off date retrogressed from March 1, 1995 to July 1, 1992. Married sons and daughters of U.S. citizens fall under this category.

Priority cut-off dates for the 4th preference category moved back from April 1, 1991 to January 1, 1988. This category refers to brothers and sisters of U.S. citizens.

There is no reliable way to predict the movement of the cut-off date, which can advance, remain at a standstill, regress or even become completely unavailable from month to month.

Immigrant visa applicants whose appointments have not been scheduled through the National Visa Center may request a visa appointment either by calling (632) 982-5555 or by going online at the Visa Information and Appointment Service at http://www.ustraveldocs.com/ph. For any questions, those who are present in the U.S. may contact the Visa Information and Appointment Service at telephone number (214) 571-1600 from 7:00 p.m. to 7:00 a.m. EST.

Visa Information and Appointment Service representatives can provide information on visa appointment-related inquiries only. Inquiries on a specific case may be directed to the Immigrant Visa (IV) Unit by email at IVManilaReplies@state.gov, by fax at (632) 301-2000, and by phone at the Inquiry Line at (632) 301-2000 ext. 5184 or 5185.

Immigrant visa applicants who have scheduled visa appointments must visit the online appointment website to register their delivery address.

Returning resident visa applicants are also required to book an interview appointment by visiting the online appointment website or by calling the Visa Call Center.

The authorized courier service provider is 2GO commercial courier. Applicants who have been issued visas have the option of picking up the visa at a 2GO branch or delivered at their designated address. The delivery will be for no additional cost. Applicants should also use 2GO to return documents to the Immigrant Visa Unit.

Finally, applicants who were refused a visa under 221(g) of the Immigration and Nationality Act prior to December 1, 2010 must submit the required documentation, along with the refusal sheet, at any 2GO branch.

ICE Seems To Be Going After the Wrong People

Department of Homeland Security Secretary Janet Napolitano recently announced that in the 2010 fiscal year alone, Immigration and Customs Enforcement (ICE) deported a record 392,000 individuals, of which 195,000 were convicted criminals.

Although these numbers seem impressive, a report by a Syracuse University-based research organization reveals a dangerous trend in immigration enforcement.

Transactional Records Access Clearinghouse (TRAC) found that between 2004 and 2009, immigration courts turned down one out of every four cases (25%) for removal filed by ICE. In the last three months of fiscal year 2010, the rejection rate went up to 31%, meaning that about one out of three cases was denied.

For the entire 2010 fiscal year, more than half of the time the court denied the deportation request. The spike in rejection rate is more evident in large cities, such as Los Angeles (63%), Oregon (63%), Miami (63%) and Philadelphia (55%). In New York City, the turndown rate for 2010 is a whopping 70%.

The research group filed a request under the Freedom of Information Act for more detailed information to explain the rise in denials, but ICE has refused to release it. The information sought pertained to ICE’s removal practices and programs, data which might explain why more and more judges are rejecting ICE’s requests for deportation.

There are several ways by which a request by ICE for a removal order may fail. First, the judge may “terminate” the court proceeding if the ICE fails to show that the government has any grounds to remove the individual. Second, the alien may have a legitimate right to remain in the country, because of asylum or some other relief under immigration laws. The court may also close the case for other reasons, which includes administrative closures.

The research group found that the rise in ICE’s failure rate in 2010 was due to “terminations” by the judge, meaning that in those cases the judge found no grounds for removal.

In March of this year, the Center for American Progress came up with estimated costs of deporting undocumented immigrants. If their estimates are used, the apprehension, detention and legal processing of each person will cost about $22,482. According to TRAC, ICE’s unsuccessful filings between 2006 and 2010 affected almost 250,000 individuals. Given these figures, it sure looks like ICE is wasting a lot of resources.

What about the cost to those who were wrongfully picked for removal? They bear their own personal and financial losses, with most of them being detained and separated from their families for years. TRAC found that it took courts an average of 424 days before they could rule that ICE had no grounds for removal, and 696 days to rule that an alien is entitled to asylum or other relief.

These findings tell us that ICE, in pursuing removal proceedings, does not focus on the merits of each case, but rather has resorted to a haphazard and indiscriminate deportation policy, perhaps under pressure to meet the administration’s 400,000-deportation goal. This practice drains the nation’s already scarce resources. Moreover, ICE’s misdirected efforts take away its ability to deport those who are truly deserving, and this ultimately affects the agency’s effectivity.

Finally, not only are ICE’s practices wasteful; they are also inherently unfair. While the government’s crackdown on criminals is laudable, it needs to improve its targeting not only to be efficient but also to afford some measure of fairness to this country’s immigrants.

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