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The Golden Door

News and views on immigration law

Posts Tagged ‘visas’

Post Script to Consular Nonreviewability

Sunday, July 7th, 2013

A few months ago, I wrote about a K-1 fiancé visa case of mine that was impossible to move forward and where repeated requests for information and clarity went nowhere.  (See The pitfalls of the K-1 fiance visa: Consular nonreviewability.)

A recent episode of National Public Radio’s This American Life illustrates this same frustrating experience perfectly.  The show put up a web page providing the email correspondence between an Iraqi interpreter for the U.S. government and the U.S. immigration office handling his case.  In the end, the applicant was killed before his employment with the U.S. government was verified to the (impossible standard of) satisfaction of the agency.  You have to read it to believe it:  This American Life – Taking Names.

Immigration Reform – hopeful and wary

Saturday, January 26th, 2013

In immigration circles there’s a feeling in the air that we may actually get comprehensive reform this year.  President Obama has clearly put his support behind it, and a small group of Democratic and Republican senators are working on hammering out a core set of principles that both sides can agree on prior to drafting any proposed legislation.

Immigration reform can mean a lot of different things, depending on what you think is wrong with the current system.  Some people think it is too harsh, penalizing infractions of law in ways that are disproportionate to the violation and tearing apart families, and in doing so often hurting U.S. citizens.  Others think it is too lenient, not holding people adequately accountable for violations or deterring future violations.  When we talk about immigration laws, we have to think about authorized immigration – the foreign nationals who come (or want to come) to the United States on visas, whether to visit, work, go to school, or who permanently immigrate here based on family ties or work skills; and unauthorized immigration – the foreign nationals who enter without inspection or enter using a visa and then overstay, becoming unlawfully present.

There is plenty of room for improvement in our existing scheme of distributing visas, especially if one thinks, as I do, that we should increase the number of authorized immigrants we permit to join our ranks.  One of the most frustrating issues in immigration is the visa quota system, which creates huge backlogs in several categories of both family and employment-based immigration.  Backlogs of two to 24 years exist in the family-based quota-limited visa categories.  Backlogs of five to ten years exist in the most popular employment-based visa categories.  (See Visa Bulletin.)  These backlogs undermine the policy considerations that created these categories of visas in the first place:  promoting family reunification and helping U.S. businesses employ qualified workers when such cannot be found in the existing pool of local U.S. workers.  The promise of family reunification or employing qualified workers from abroad becomes effectively meaningless when one has to wait an average of 12 years to bring a sister and her family to the United States, or a business has to wait six years to hire the worker it needs.

While these considerations are particularly frustrating to those of us who deal with immigration on a daily basis, the more attention-grabbing aspect of immigration is the unauthorized immigrant population.  There are an estimated 11.5 million unauthorized immigrants in the United States, according to the U.S. Department of Homeland Security.  Declarations that this population should be deported or should  “self-deport” are unrealistic to say the least.  These are people who have built their lives here, and whose children, whether born in the United States or not, have grown up here and know America as their home.  Most people left their native countries, which was no small step – leaving family, friends, everything that is familiar and dependable – because they could not see any hope in the future for themselves and their children there.  Yes, they violated our immigration laws to come here.  Yes, we should impose a consequence for that violation.  But it is unrealistic to try to identify and then lawfully deport all 11.5 million or more unauthorized immigrants.  Making life so unpleasant for unauthorized immigrants that they will leave of their own accord – well, what level of unpleasantness is enough to convince someone to return to a place where they had no hopes for their future?  And what level of unpleasantness are we willing to stomach to achieve this goal?  I think the answer is that we, as a nation, believe in human rights, and to get a person to the point where he or she is willing to self-deport would require suspending our respect for human rights.  I have to believe we are not ready to do this.

Whatever your view on the appropriate penalty to be levied for unauthorized immigration before the immigrant can get his or her green card, one unfortunate reality for this population is that its members can be uniquely vulnerable to scammers.  Many unauthorized immigrants, even those who have lived in the United States for many years, do not speak English.  (I’ve already expressed my views, as an immigration attorney, on long-term immigrants who still do not speak English in this blog.)  Those who do speak some English may still rely on media sources in their native language for news.  Already, I am hearing rumors of ethnic language newspapers reporting that a route now exists to lawful status for unauthorized immigrants.  For someone without their legal papers, including work authorization or a driver’s license and social security number, getting lawful immigration status can mean being able to bank instead of always using cash, being able to drive legally instead of relying on others or driving in fear of being stopped by the police, and being able to go to the police for help without fear of being reported to immigration authorities, among many other things.  For people in this situation, the hope of getting a green card can be used against them.  Unscrupulous ethnic “services brokers” promise that they can get the immigrant their papers if they pay a (usually exorbitant) fee.  Filing a petition for a green card when you are not eligible can result in being placed in deportation proceedings.  So the prospect of comprehensive immigration reform, including a path to lawful status for non-criminal unauthorized immigrants, while a reason for cautious optimism, also creates opportunities for hucksters to ply their trade.  For those of you who know unauthorized immigrants (which of us does not?), please tell them to be careful of promises of a “guaranteed green card” if they just pay the fee.  No such thing exists.


“Operation Morning Glory” — Marriage fraud in Salt Lake City

Saturday, September 25th, 2010

In August 2006, during a sting dubbed “Operation Morning Glory,” federal immigration agents raided the homes and businesses of dozens of Vietnamese-Americans suspected of involvement in a large-scale marriage visa fraud ring.  During that sweep, the feds netted 24 to 31 Vietnamese-Americans in and around Salt Lake City, Utah, who had recruited Utahns to enter into fake marriages with Vietnamese men and women to bring them to the United States under the marriage visa laws.

The ringleaders paid Utahns anywhere from $500 to $10,000, plus travel expenses, to go to Vietnam, participate in a fake engagement or wedding with the Vietnamese national being sponsored as the ‘fiance(e),’ take tons of photos as a couple with the Vietnamese national in different outfits in different locations to make it look like the couple had spent a lot of time together, and sign-off on the paperwork to petition for the Vietnamese national to immigrate to the United States based on the fake marriage.  Vietnamese nationals paid up to $30,000 for this service.  Anywhere from 80 to 100 fake marriages were arranged by this ring over its five-year run.

According to a 2008 U.S. Department of State report, a total of 90 individuals were successfully prosecuted in conjunction with the visa fraud ring, which is one of the biggest uncovered in immigration enforcement history.  The 90 individuals prosecuted makes it sound like both the ring organizers and the recruited Utahns were prosecuted, as the original sweep only netted 24 Vietnamese-American organizers.  Possible sentences for the charges ranged from 5 years for marriage fraud to 10 years for alien smuggling.  The fraudulently-sponsored spouses are, of course, subject to deportation for immigration fraud. They’ll need the help of the best immigration lawyers after committing such a crime.

The Deseret News, a Salt Lake City newspaper, led its reporting on the operation with this statement:  “On the crowded streets of Ho Chi Minh City, Vietnam, advertisements selling U.S. marriage visas are as common as ads for produce at grocery stores, according to federal agents.” Photographers advertising ‘wedding’ packages are also quite common in Ho Chi Minh City (Saigon) and Hanoi).  These packages usually include a few days during which the photographer takes pictures of the the happy couple in rented wedding attire, at a restaurant with rented ‘wedding guests,’ and other evidence of a happy ‘courtship.’  U.S. immigration authorities are well aware of this practice, and, needless to say, it does nothing to help real couples obtain marriage visas.

While it may seem that faking out U.S. immigration authorities is just a matter of learning what is needed to convince a consular officer to issue a fiance(e) visa and/or to convince a USCIS officer that two strangers are a happily married couple, being caught in immigration fraud means real jail time for U.S. citizens and deportation (and probably being barred from returning to the U.S. for a very long time or forever) for non-citizens.  The policy behind family-based immigration laws is to reunite actual family members.  These laws are abused when criminals decide to use them to bring anyone over who can afford to pay.  Suspicious consular officers or immigration officers then demand more proof from Vietnamese petitioners and make them jump through more hoops to get the same benefit as every other type of petitioner.  As an example of the visa refusal rate for Vietnamese nationals, in 2009 the consulate in Ho Chi Minh City refused 42.3% of all B visa applications.  The bottom line is that immigration fraud, whether marriage fraud or otherwise, makes it even harder for U.S. citizens and legal permanent residents of Vietnamese ethnicity to reunite with their real family members because it makes immigration officers extra suspicious of Vietnamese cases.

Djung Tran, Esq.

Tran Law Associates