U.S. Immigration Law Inhumane to Same-Sex Couples
Via Human Rights Watch (reposted) Sunday, May. 07, 2006 at 9:10 AM
(Washington, D.C., May 2, 2006) – Thousands
of U.S. citizens and their foreign same-sex partners face enormous
hardships, separation and even exile because discriminatory U.S.
immigration policies deprive these couples of the basic right to be
together, Human Rights Watch and Immigration Equality said in a report
released today.
As Congress debates immigration reforms, it must
end the discrimination that lesbian and gay Americans and their foreign
partners endure under U.S. immigration law. The 2000 U.S. Census
estimated that in the United States there were almost 40,000 lesbian
and gay couples in which one partner is a U.S. citizen (or permanent
resident), and the other a foreign national. This figure does not
include the many thousands of binational couples who have to hide the
fact they are partners, are forced to live apart, or who have been
forced to leave the United States. Under discriminatory U.S. statutes,
these couples have no recognition under the law.
“Discriminatory U.S. immigration laws turn the American dream into a
heartless nightmare for countless U.S. citizens and their foreign
partners,” said Scott Long, co-author of the report and director of the
Lesbian, Gay, Bisexual and Transgender Rights Program of Human Rights
Watch. “As Congress debates immigration reforms, it should end
discrimination against lesbian and gay immigrants as well as their U.S.
partners.”
The first-ever comprehensive report on the
issue, “Family, Unvalued: Discrimination, Denial and the Fate of
Binational Same-Sex Couples under U.S. Law,” documents how U.S
immigration law and federal policy discriminate against binational
same-sex couples. The 191-page report documents the consequences of
this discrimination and shows how it can separate not only loving
partners from one another, but also parents from children. It also
shows how this policy has destroyed careers, livelihoods and lives.
“Our immigration laws are undermining the traditional American values
of fairness and family,” said Rachel B. Tiven, executive director of
Immigration Equality. “U.S. immigration policy is designed to keep
families together. But the current law targets an entire class of
American families and tears them apart.”
For more than 50
years, family reunification has been a stated and central goal of U.S.
immigration policy. Immigration law places a priority on allowing
citizens and permanent residents to sponsor their spouses and close
relatives for entry into the U.S. Although the system remains
imperfect, riddled with delays that rising anti-immigrant sentiment
only intensifies, U.S. citizens and their foreign heterosexual partners
can easily claim spousal status and the immigration rights that it
brings.
U.S. citizens with foreign lesbian or gay
partners, however, find that their relationship is considered
non-existent under federal law. The so-called “Defense of Marriage
Act,” passed in 1996, declared that for all purposes of the federal
government, marriage would mean “only a legal union between one man and
one woman as husband and wife.” Since lesbian and gay couples are
excluded from the definition of “spouse,” U.S. citizens receive no
legal recognition of their same-sex partners for purposes of
immigration.
Based on interviews and surveys with dozens
of binational same-sex couples across the United States and around the
world, the report documents the pressures and ordeals that lack of
legal recognition imposes on lesbian and gay families. Couples
described abuse and harassment by immigration officials. Some partners
told stories of being deported from the United States and separated
from their partners. Many couples, forced to live in different
countries or continents, endure financial as well as emotional strain
in keeping their relationships together.
“No family should
be forced apart, no matter what the sex is. This is how immigration
laws have affected us,” a woman in North Carolina said, describing how
her Hungarian partner and their children were forced to leave the
United States. “We are separated and without each other…. We just
want to be together, that’s all.”
Many U.S. citizens are
forced into exile in countries where their relationships are
recognized. At least 19 nations worldwide provide some form of
immigration benefits to the same-sex partners of citizens and permanent
residents, while the U.S. still refuses. These include Canada as well
as 13 European countries (Belgium, Denmark, Finland, France, Germany,
Iceland, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland
and the United Kingdom). On other continents, this list includes
Brazil, Israel, South Africa, Australia and New Zealand.
Notably, the report details how current U.S. exclusionary policies are
rooted in a long history of anti-immigrant sentiment, in which fears of
sexuality have played a steady part. From the McCarthy era until 1990,
U.S. law barred foreign-born lesbians and gays from entering the
country. The United States is also one of the few industrialized
countries that imposes a blanket ban on entry by HIV-positive
individuals, a bar that reinforces irrational fears and stigma but does
nothing to protect public health.
Congress should
immediately pass the Uniting American Families Act (UAFA), Human Rights
Watch and Immigration Equality said. The bill, sponsored by
Representative Jerrold Nadler (D-NY) and Senator Patrick Leahy (D-VT)
would offer binational same-sex couples’ relationships the same
recognition and treatment afforded to binational married couples.
The proposed law would add the term “permanent partner” to sections of
the Immigration and Nationality Act where “spouse” now appears. Thus, a
U.S. citizen or permanent resident could sponsor their permanent
partner for immigration to the country, just as they can now sponsor
such family members as siblings, children or husbands and wives. The
bill was introduced in the current Congress on June 21, 2005; it has a
total of 104 cosponsors from both houses.
In addition to
repealing the Defense of Marriage Act of 1996, Congress should enact
reforms to U.S. immigration law to guarantee respect for the human
rights and labor rights of non-citizens. These reforms should include
measures that end discrimination against lesbian, gay, bisexual,
transgender and HIV-positive individuals.
The Lesbian,
Gay, Bisexual, and Transgender Rights Program at Human Rights Watch,
which is the largest U.S.-based human rights organization, advocates
against abuses based on sexual orientation or gender identity
worldwide. Immigration Equality is a national organization that fights
for equality under U.S. immigration law for lesbian, gay, bisexual,
transgender and HIV-positive individuals.
Read More
http://www.hrw.org/english/docs/2006/05/02/usdom13290.htm
U.S. Immigration Debate Is a Road Well Traveled
Early-20th-Century Concerns Resurface
By Michael Powell
Washington Post Staff Writer
Monday, May 8, 2006; Page A01
NEW YORK — They were portrayed as a disreputable lot, the immigrant hordes of this great city.
The Germans refused for decades to give up their native tongue and raucous beer gardens. The Irish of Hell’s Kitchen brawled and clung to political sinecures. The Jews crowded into the Lower East Side, speaking Yiddish, fomenting socialism and resisting forced assimilation. And by their sheer numbers, the immigrants depressed wages in the city.
As for the multitudes of Italians, who settled Mulberry Street, East Harlem and Canarsie? In 1970, seven decades after their arrival, Italians lagged behind every immigrant group in educational achievement.
The bitter arguments of the past echo loudly these days as Congress debates toughening the nation’s immigration laws and immigrants from Latin America and Asia swell the streets of U.S. cities in protest. Most of the concerns voiced today — that too many immigrants seek economic advantage and fail to understand democracy, that they refuse to learn English, overcrowd homes and overwhelm public services — were heard a century ago. And there was a nub of truth to some complaints, not least that the vast influx of immigrants drove down working-class wages.
AshwinSharma.com selected as one of the Top Ten Blogs on Immigrants’ Rights
Via About.com
05/06/2006
About.com is a major website with a monthly traffic of more than 29 million people. The website has selected AshwinSharma.com as one of the top ten blogs on Immigrants’ Rights, ranking among blogs written by three Immigration Law Professors at the University of California – Davis, an author and several large non-profit organizations.
They had this to say about the website:
lawyer Ashwin Sharma aggregates the latest news on immigration issues,
throws in some thoughtful and contagiously calm and well-reasoned
analysis, and puts it all on a web site for the world to access.”
Very flattering and much appreciated.
Does IT Need More H-1B Visas?
Via TheChannelInsider.com
05/05/2006
By Pedro Pereira
It has always been so. Humans have always roamed, now assimilating, now displacing.
More often than not, who is displacing whom causes the debate. In
the current furor over immigration, the debate revolves around whether
illegal workers who sneak in mostly through the U.S. southern border
are doing jobs Americans don’t want or are taking them away from
Americans.
In the high-tech world, a similar debate centers on so-called
H-1B visas, which allow folks from places such as India, Russia and the
Philippines to enter the United States legally to do temporary jobs
that ostensibly would go unfilled for lack of qualified workers.
Employers of H-1B workers include Microsoft, Oracle, Apple and
IBM. Among the strongest supporters of the visa program are folks like
Bill Gates and former Sun Microsystems CEO Scott McNealy.
The government caps the number of H-1B visas annually at
65,000, but if supporters have their way, that number will jump to
115,000. As the debate over illegal immigration continued to rage this
week, a bill was introduced in the U.S. Senate to hike the number of
visas.
The bill, introduced by Sen. John Cornyn, R-Texas, proposes to
increase the H-1B cap to 115,000, with options to raise the ceiling
annually by 20 percent based on employers’ needs. Some supporters would
love to see the cap pushed back up to the 2001-2003 number of 195,000.
As with all things immigration, H-1B visas are controversial.
Opponents dispute the supporters’ position that visas are necessary to
accommodate a shortage of highly skilled professionals in technology
and related jobs. Almost all H-1B visa holders have bachelor’s degrees,
and about half of them also hold advanced degrees.
Visa holders drive down wages for everybody because employers
pay H-1B visa holders less than they pay American counterparts, say
opponents.
Of course, the salary differential does not apply to all
employers, and some companies, such as Microsoft, IBM and Apple, are
reputed to pay H-1B holders salaries that are comparable to or higher
than the pay of American counterparts.
Visa supporters say the 65,000 cap is too stingy and stifles
innovation, the argument being visa holders who would otherwise
contribute to technology advances may never set foot in the United
States.
Both sides have valid points.
The H-1B program has a place in our economy. It fills skills gaps and has other benefits.
H-1B helps keep VARs up to speed. Click here to read more.
For instance, channel companies have used money from the fees
paid by employers of H-1B visa workers to train their own staffs on
much-needed IT skills. The money was disbursed by the Department of
Labor through the H-1B Technical Skills Training Grant Program.
The question is whether the government should raise the cap.
Before making that decision, due diligence is needed. Do we truly need
more H-1B visa holders? Are employers doing everything they can to give
the jobs to citizens or permanent residents before resorting to H-1B
visa hires? One way to ensure they do would be to raise the fees.
In addition, employers that abuse the program by paying visa holders less than they would other workers should be penalized.
Furthermore, if we are going to continue importing skilled
workers because they make an important contribution to our economy, we
should reward them accordingly. The pathway to U.S. citizenship for
these folks should be simpler and quicker. First, they must obtain
green cards, approval for which can take years. Citizenship is possible
only after five years of having a green card.
So what should we expect to happen? Most likely Congress will
simply increase the visa cap without any meaningful analysis, and the
debate will rage on. And so it goes with immigration.
A Look Inside U.S. Immigration Prisons
Via DemocracyNow!
Undocumented immigrants are one of the largest growing populations
being detained by the U.S government. We look at the issue of
immigration detention, focusing on the treatment of immigrant
detainees, the trend towards privatization of detention centers and the
policies behind it all.
Click to read discussion about US Immigration Prisons
The Victim’s Advocate Story on my clients’ experiences with the Violence Against Women Act
victim (Photo credit: rosmary)
05/03/2006
Via The Victim’s Advocate
I was interviewed recently by Ms. Shaw, a reporter for the Jacksonville, FL based newspaper, “Victim’s Advocate” for a piece on the Violence Against Women Act (“VAWA”). By way of background, VAWA assists battered immigrants to escape domestic violence or abuse inflicted by a US Citizen or Legal Permanent Resident (Green Card Holder) spouse, abuse that the immigrant victim often feels must be submitted to in order to remain in the US due to their derivative immigrant status.
All three of my VAWA clients were able to utilize the protections of the Act, two of them being men, among the first cases in this country provided protection under the Violence Against Women Act under our Constitution’s “Equal Protection” clause. The cover story linked to below discusses two of my clients “Anjuli” and “Rizwan” (my clients’ names remain confidential) for the May issue of the paper.
To win a VAWA case, the victim must provide evidence of their good moral character, their good faith intent in entering into marriage, and proof of their abuse. Upon successful adjudication of the VAWA petition, battered immigrant spouses (and their children) may remain in the US in an independent immigration status and eventually gain work authorization, permanent residency and citizenship.
Unfortunately, knowledge of the protections offered by VAWA is not widespread.
PDF’s of the story and the content are below:
Different Faces of Domestic Violence – PDF Files
Coverpage/Page 1
Page 2
Page 3
Different Faces of Domestic Violence – Text
“If he ordered me, I had to do it.”
By Shirley Shaw
Anjuli’s introduction to her new life in America came when she stepped off the plane in San Francisco. “You carry your own luggage; I don’t want my parents to pick it up,” her new husband, Sanjay, instructed. Although she could barely lift the heavy suitcases containing her dowry, all her clothes, gifts for her new family, toiletries and other items, she dutifully obeyed. “If he ordered me, I had to do it,” she explains. When they reached their home, Anjuli’s mother-in-law told her that, beginning the next day, she would work from morning to evening, preparing all their meals, fixing lunches, cleaning house, doing laundry – in short, she was their new domestic servant. “You don’t need much sleep,”
her husband told her.
For the educated, privileged daughter of an upper middle class family in New Delhi, India, herself accustomed to being attended by servants, this was a shocking turn of events. But she was a submissive young woman, reared in her culture to be an obedient wife, and she accepted her new role without question.
Anjuli* is a beautiful, shy young woman in her mid-20s who earned her MBA just before she came to the States. Since she had not married and there were no immediate prospects, her father, Ajay Dube, placed her “resume” on a “data bio” website, hoping to attract a suitable husband from Australia, India or the United States. When Sanjay’s father, Anoop Shah, responded from California, the two men began exchanging information about their respective children, families and histories.
* Names have been changed.
After many emails and phone calls, Shah asked his brother (who still resides in India) to visit Anjuli and her family and report his impression of the young woman. That being favorable, the Shahs arranged a 10-day trip to meet Anjuli who, if she pleased them, would become Sanjay’s bride. In the Dubes’ home, Sanjay and Anjuli met and the young woman was evaluated by the Shahs, including a second visit to ensure she had no visible infirmities. The two families agreed upon the marriage, details, terms and conditions were finalized, and the elaborate marriage, celebrated by hundreds of relatives from both families, took place within four days of the Shahs’ arrival in India.
Following a brief two-day honeymoon (during which the groom left Anjuli alone for hours and returned very drunk), Sanjay and his parents completed all the paperwork for her emigration to America and returned to California. Anjuli followed three months later.
Domestic servitude and abuse
Verbal and emotional abuse began immediately as the Shahs made clear Anjuli’s role in their home. Arising at 5 a.m., she prepared breakfast for Sanjay and his mother who went to work early. Then her two sisters-in-law came down for their meal, followed later by the father. If she was ever late, she was severely scolded. Because Anjuli was a few pounds overweight, the family ridiculed her for being “fat” and Mrs. Shah limited her food intake to very small amounts. She was always hungry.
By the second day, Sanjay began slapping her for various “reasons,” and when she fled their room to escape his abuse,
her mother-in-law hit her and pushed her back inside the bedroom. They insisted she sleep on the floor since her new
husband wasn’t accustomed to sleeping with someone else in his bed.
To save money on hot water and toiletries, the male Shahs bathed at the YMCA where Sanjay was a member, and they wanted Anjuli to do the same – they didn’t plan to spend a dime on her. Shortly after her arrival, Mr. Shah took her to the Y and insisted she get on the treadmill to help her lose weight. Never having seen this equipment, Anjuli begged him to let her watch how it operated, but he made her stand on the treads, then he turned the machine on “high” and left to take his bath. She tumbled from the treadmill, crushing several bones in her left hand.
Bystanders came to her rescue, but when her father-in-law finally returned, he refused to allow ambulance transport to the hospital because of the expense. He said he would take her himself, but when they were in his car, he slapped and hit her for allowing the accident to occur.
At the hospital Mrs. Shah vehemently protested when the doctors had to cut off the many bracelets on Anjuli’s arm so they could treat her injuries. Medical personnel forcibly removed the older woman from the room and commiserated with Anjuli for having to live with that “mad” person. The ER physician gave her medication with instructions to take it with food, and he gave her a cookie. Before she could eat it, Mrs. Shah ate the cookie herself and, consequently, Anjuli fainted from the effect of ingesting medicine on an empty stomach.
Although she now had a castimmobilizing her left hand, Anjuli still had to perform all her household duties, and the starvation, the physical and mental abuse continued. Finally, she tried to get help by calling 911, but the Shahs hung up the phone each time. When police came the next day to check out the calls, the family locked Anjuli in her room and assured the officers no one had called from there, that everything was fine.
All this time, she had had no contact with her family and they assumed she was adjusting to her new life. Shah called Dube periodically to report that Anjuli was happy and doing well. Mercifully, her ordeal was shortened when her husband
and his family decided they wanted more money and sent her to Jacksonville to get $20,000 from her brother who lives here. When the Dubes learned of Anjuli’s harsh treatment and abuse, they filed an incident report with JSO. She did not
return to San Francisco, and her marriage has since been annulled.
Exploiting other cultures
Anjuli’s story of abuse and domestic violence rises basically from a culture Americans find difficult to understand. The
Shahs obtained a “servant” by exploiting the Indian custom of arranged marriages and kept control over her by threatening to have her
deported. She knew if she returned to India under those circumstances, she would be disgraced and no longer “marketable” as a wife. Very important in her culture is the woman’s right to marry once in her life, and this was taken away from her.
But whatever the means of control, domestic abuse follows the same patterns: fear, intimidation, isolation, humiliation and physical harm to the victims. Those working in shelters for abused women generally consider the three main reasons victims remain in their situations to be the three F’s: fear, finances and fondness. Add to those reasons the fear of deportation and/or the cultural stigma of divorce for women of other countries, and it’s easy to see their terrible dilemmas.
Ashwin Sharma is a local Immigration attorney who moved to Jacksonville several years ago. His practice mainly deals with employment-based immigration law but one of his goals is to educate spouses – men and women – about their rights under VAWA (Violence Against Women Act), part of the Violent Crime Control and Law Enforcement Act of 1994. (See sidebar for more information.)
While domestic violence and spousal abuse affect a large portion of our population, Sharma believes an even larger percentage of immigrant women may suffer abuse, although there are no accurate statistics available. These women are more likely to endure the abuse, for various reasons:
•women in many other countries already have a subservient role in society and may be accustomed to ill treatment (according to our standards)
•they have a strong concept of family and will sacrifice for the good of the family
•they will tolerate abuse here rather than return home and be a “social pariah and a burden” on their family
•they may have no alternative, nowhere else to go.
Sharma says, “The advent of the Internet has increased the public’s general knowledge about the opportunity of establishing a marital relationship with someone located abroad. Most people exercising this option have no ill intent; however, there are those individuals who want to meet a stereotypically ‘subservient’ woman, someone who will not look them in the eye and will back down in a conflict. These men will do anything to maintain this power.”
Mail order brides
Several “mail-order bride” websites contain such statements as, “American women have priced themselves out of the market for getting married,” or “we don’t want women from here – they have lost their femininity,” or “we must go to other countries and find real women.”
Sharma speculates that some men who solicit mail order brides may be repeatedly exploiting this “legal” way to seek out their prey, exploit the woman, terminate the relationship, and start over again. The cost is relatively minimal – $1000-2000 for a plane ticket and perhaps another $1500 or so for the Immigration paperwork – and the man has a domestic servant, a sex slave, for as long as the arrangement suits him, or until the woman discovers the protections of VAWA.
“The US citizen and fiancé have 90 days to get married,” Sharma explains, “and if he decides not to marry her within that allotted time, he can cast her out, lock the door and she will likely have nowhere to turn. Combine this with the fact that she has no legal status, no money, no knowledge of our laws. Ultimately, she is subject to deportation/removal in accordance with US Immigration law.”
In an interesting departure from the norm, one of his clients is a Turkish man (we’ll call him Rizwan) who married an older American woman in early 2004. Rizwan says that although he had overstayed his visa and faced deportation, he didn’t marry her for the “green card”; he was charmed by the woman, admired her intelligence and genuinely loved her. But not many months had passed before he saw a very different side of her. She was jealous and possessive of the handsome young man and flew into a rage when he didn’t avert his eyes quickly enough at the sight of a pretty girl they saw in a local mall.
For the next several months, she verbally abused Rizwan, hit and slapped him repeatedly, threatened him with a ceremonial sword she owned, and finally threw bleach all over him. He fled to the home of Turkish friends for safety, but she put some bleach on herself, called police, accused him of the act and filed for an injunction against him. Rizwan spent several days in jail before Sharma was able to get him out.
Her actions are consistent with abusers of immigrant spouses – they manipulate the law to get what they want. In Rizwan’s case, his wife threatened to have him deported if he didn’t return to her, but by this time he didn’t care; he decided that he’d rather return to Turkey than put up with her abuse. Although he avoided her, she subsequently lied and had him arrested for violating the injunction she had placed on him. She later dropped the charges and eventually the two were divorced.
This particular story has a happy ending because Rizwan received approval under VAWA, one of the rare cases in which a man was protected under the act. He may now continue to reside in the U.S. independently of his former wife. He has met a lovely young woman who truly loves him and they will be married in the near future.
Sharma related another case that is particularly disturbing because a child is involved. After a lovely young Siberian woman posted her picture on the Internet, a wealthy local 65-year old man brought her and her child to his home. She is now his domestic slave, submits to his sexual depravities, endures physical abuse, and has to account for every minute of her time – but worst of all, she hears her child being verbally humiliated every day. The husband constantly demeans the child, calling her stupid and an idiot, but the wife feels she has no option but to stay and make the best of it; she has no money and nowhere else to go.
“Man’s inhumanity to man”
The above stories are only three examples of immigrants who have come to this country, hoping for a better life for themselves and/or their children. Are they part of a human trafficking ring? No, but their lives are no less miserable, because they are caught in the clutches of unscrupulous human beings who circumvent the law in search of ways to satisfy their schemes.
Today, the immigration issue is hotly debated and most of us are torn by all the ramifications involved, but these people, and countless others like them, are scattered throughout our country – brought here in good faith on their part, only to be relegated to lives of unspeakable misery and hopelessness. VAWA has helped free many of these people from bondage; however, our existing Immigration laws still give U.S. citizens and legal permanent residents a great deal of power which can be used against their spouses to propagate domestic violence with little fear of reprisal.
Poet Robert Burns’ dirge written in the 18th century, “Man was Made to Mourn,” surely applies to our society today:
“Many and sharp the numerous ills,
Inwoven with our frame!
More pointed still we make ourselves,
Regret, remorse, and shame!
And man, whose heaven-erected face
The smiles of love adorn,
Man’s inhumanity to man
Makes countless thousands mourn!”
VAWA – Violence Against Women Act – By Ashwin Sharma
Victims of domestic violence can be men or women, yet the U.S. Department of Justice reports that approximately 97% of the victims of domestic violence are women. The National Violence Against Women Survey, which records incidents of violence against women in America, states that one out of four U.S. women has been physically assaulted or raped by an intimate partner; however, whatever the rate in the general population, the percentage for immigrant women is probably higher.
Accurate statistics regarding assaults against immigrant women are difficult to come by because they often will not report abuse.
A sense of shame, insecurity, and the possibility of separation from their children may prevent these women from speaking out. They are also more vulnerable to abuse because their batterer can threat deportation to silence her.
In 1994 the Federal government enacted a comprehensive “Violence Against Women Act” as Title IV of the Violent Crime Control and Law Enforcement Act of 1994, which is useful in preventing abuse of immigrant women. VAWA allowed victimized immigrants to file their own applications for lawful permanent resident status and created a new visa category for the spouses and their children and authorized the INS to issue up to 10,000 visas per year. Because the woman could self-petition, she no longer had to rely on a non-cooperative and abusive spouse. The Act in effect took away much of the power that the batterers held over their wives.
Two years after VAWA was passed, newly implemented immigration reform bills required that battered women return to their country of citizenship before their case could be heard, thus stripping from them the rights and privileges of American justice. These reforms also did not allow the battered wife to remain in the country if she had arrived on an incorrect visa status, or had overstayed it – a disturbing development because some abusive husbands, in an effort to retain control over their wives, knowingly did not submit an I-130 family petition for their wives.
Women who had grown desperate after repeated abuse and had divorced their husbands had no protection and were out of status because their status was considered a derivative of their husbands’. Their deportation was imminent, despite the fact that an abusive husband had forced them out of their marriages. Finally, an “extreme hardship” requirement was imposed on those victims who attempted to utilize the protections of VAWA.
VAWA was re-authorized in 1999/2000, and continues to take steps towards addressing the needs of battered immigrant women. They now do not have to leave the country to begin their petition for legal permanent residency. Divorced women are also allowed to request VAWA protection within two years of divorcing an abusive husband, if the divorce was related to the abuse.
The 2005 version of VAWA was signed into law by President Bush in December 2005.
The Self-Petition Procedure
To self-petition, an immigrant must show that:
• She was battered or subjected to extreme cruelty, and is or was married to a U.S. citizen or Lawful Permanent Resident within the past two years. Unmarried children of the self-petitioner who are under age 21 may be included in the petition, OR
• She is the parent of a child who has been battered or subjected to extreme cruelty by that parent’s U.S. citizen or Lawful Permanent Resident spouse. The mother of the battered child may self-petition and include all of her unmarried children under age 21 who live in the U.S. in her petition.
The woman then must file an I-360 with the U.S. Citizenship and Immigration Services (USCIS). The government filing fee is $190, which may be waived by INS if she proves
her inability to pay. The USCIS need not have authorization by or permission from the woman’s husband.
The I-360 form is available in person at a USCIS office, by calling 1-800-870-3676, or
as a PDF file that may be found at the http://www.bcis.gov website.
For more information, contact Ashwin Sharma, Esq., Leimbach & Associates,
904/779-0111, http://www.immigrationfirm.net.
Employers walk a legal tightrope
Illegal immigration is built into U.S. law.
That’s the no-holds-barred truth, spoken by Mira Mdivani, an Overland Park attorney specializing in immigration law.
“Employers have to violate the law, and people have to come
illegally, and now the potato is too hot to handle,” Mdivani said in
calculated hyperbole.
The numbers of H1B and H2B work visas authorized by Congress are
inadequate, she said. The annual visa quotas often are snapped up by
the first day of the fiscal year, leaving employers another year of
time and expense to try to get legal work permits for people they hire.
At a recent employment law seminar sponsored by the Overland Park Chamber of Commerce,
Mdivani counseled about a dozen employers who were trying hard to dot
their i’s correctly and stay out of trouble if immigration officials
come calling.
Mdivani congratulated them on their concern — and then presented a daunting outline of how to hire immigrants legally.
Currently, she said, she’s representing an immigrant whose work visa
has expired. The system is so backlogged, though, that it may be a year
before her client gets the updated paperwork that certifies legal
worker status.
The client’s employer thinks the worker must be fired because of the visa expiration.
“That’s not right,” Mdivani said. “You don’t have to get rid of the
person. The person is perfectly authorized to work. The permit is
automatically extended, even if the paperwork takes a year.”
But extensions are different from first-time authorizations. And
that’s the truly hot potato. Countless U.S. employers simply ignore
immigration law and hope the authorities don’t visit.
That’s why it was somewhat bittersweet to hear the detailed
questions from the handful of Overland Park business operators who
attended Mdivani’s presentation.
Take their concerns about proper handling of I-9s. Those are the Employment Eligibility Verification forms distributed by U.S. Citizenship and Immigration Services.
The Immigration Reform and Control Act of 1986 required employers to
verify the identity and work authorization status of all employees by
filling out I-9 forms. It’s a headache that, essentially, asks
employers to be immigration police and forgery experts.
But the worries about ferreting out illegal workers don’t stop
there. Employers who want to walk a legal line also need to be careful
about how they handle their I-9 paperwork.
For example, Mdivani said, a company leaves itself wide open for
discrimination lawsuits if it asks for I-9s only from workers who
appear to be foreign-born.
“If discovery finds that ‘Peter Smith’ doesn’t have an I-9 on file
but ‘Pedro Rodriguez’ does, that could be a problem. The law needs to
be applied the same to everyone,” Mdivani warned.
And then there’s the matter of when an I-9 form is presented to the worker. It must be after the job offer is extended, not before, to avoid the appearance of discriminatory hiring practices.
That fine line between immigration and civil rights law is a tightrope for the employers who are trying to do things right.
And that’s a sector that hasn’t been massing in demonstrations in recent weeks.
Avoiding H-1B Visa Wage Violations
H-1B visas allow certain skilled foreign nationals to work in the United States
for 3 years or, if renewed, for 3 years more. They are used most frequently
by high-tech employers, universities, and multinational employers that find
workers with certain qualifications in short supply. The visas are available
for jobs that require at least a bachelor’s degree and call for the theoretical
application of a highly specialized body of knowledge.
Recently, Computech Inc., which places computer professionals at workplaces
throughout the nation, agreed to pay $2,250,000 in back wages and a $400,000
fine to settle Department of Labor (DOL) charges that it violated H-1B visa
rules concerning the employment of over 230 foreign nationals.
Computech allegedly didn’t pay workers on H-1B visas, several of whom
were in California, the minimum required wage rates in the areas where they
were employed. Computech was also accused of frequently “benching”
the H-1B workers without compensation, which violates H-1B program rules. Besides
the back wages and fine, the settlement also prohibits Computech from participating
in the H-1B visa program for 18 months.
Avoid Trouble
Many employers that hire foreign workers on H-1B visas when work is plentiful
often struggle with what to do with them when times are tough. But as the recent
Computech development shows, paying these workers a lower wage than authorized
or “benching” them isn’t the answer.
Here are some guidelines to help you follow the rules and stay out of trouble:
Follow wage requirements. Sponsoring a worker for an H-1B visa involves
various steps, including filing a Labor Condition Application (LCA) with the
DOL and, once that’s approved, applying to the U.S. Citizenship and Immigration
Services (USCIS) for the actual visa. In your LCA, you must agree to pay the
worker your industry’s prevailing wage or the actual wage for that job
at the worksite, whichever is higher. These rates must be backed by a wage survey.
You’re also required to offer these foreign workers the same benefits
you provide U.S. employees. It’s important to keep the wage information
that’s in your H-1B file up-to-date to help defend your pay practices if
an H-1B visa worker complains to the DOL that they are paid less than the prevailing
wage.
Don’t bench workers. Some employers who are implementing layoffs
or other cost-cutting measures may be tempted to “bench” an H-1B workerto
stop paying them when there is no work without actually firing them and terminating
their visa sponsorship. But this practice is prohibited, and continuing as the
worker’s sponsoring employer for visa purposes can leave you open to claims
for back wages.
The law requires you to pay a worker you sponsor at the prevailing wage until
you withdraw the visa petition. If no work is available, immediately notify
the USCIS to vacate the visa. Also, try to give H-1B visa employees as much
advance notice as possible before a layoff so they can look for another job
while still on your payroll
Have you applied for the H 1B visa?
Via Indiatimes.com
the panic button in April and the feeling is that they must file their petition
on April 1, or within days of April 1 to get an H-1B visa. However, this is not
accurate. For example, last year, the H-1B quota was reached only in August.
|
If you are a candidate, who is at present in the US on another status, note that filing in April for an October 1 H-1B does not preserve status. In other words, the H-1B candidate must have valid underlying status through October 1 in order to wait in the US. |
should wait until August, because there may or may not be, H-1Bs available at
that point. However, if one can file at some point during April, an H-1B should
be secured.
The H-1B quota only applies to those who are applying
for a new H-1B. It does not apply to those applying for H-1B transfers or to
certain individuals who have had the H-1B category in the last six
years.
If you are a candidate, who is at present in the US on another
status, note that filing in April for an October 1 H-1B does not preserve
status. In other words, the H-1B candidate must have valid underlying status
through October 1 in order to wait in the US.
|
The average waiting period to get a green card is six years or longer and currently there are over half a million application pending, according to Immigration Voice, an advocacy group that tracks US government data . |
Otherwise, the candidate should wait abroad for his/her
H-1B. If you are an F-1 student on optional practical training (OPT) you need to
process an H-1B at this time i.e. in April in order to remain with the employer
past the expiration date of the OPT.
When the US Senate failed to
agree on changes to US immigration laws concerning illegal immigrants and border
control recently, these were not the only issues left pending. The question of
increase in H1-B quota was also left unanswered. The latest Bill has recommended
that the H-1B cap is lifted from annual 65,000 to 115,000 for 3 years.
Thereafter, the cap may rise up to 20% per year if the whole cap
(115,000) is used up in the prior year. If the cap is not reached, then the cap
in the following year will remain the same as the current year. It has to be
seen what happens to this proposal when the Senate debates the Bill further
after reconvening.
The average waiting period to get a green card is
six years or longer and currently there are over half a million application
pending, according to Immigration Voice, an advocacy group that tracks US
government data.
With economies in Asia and the South Pacific on the
rise, an exodus of foreign workers is taking place. Tired of waiting for US
permanent residence permit, people are either returning home or choosing to work
elsewhere overseas.
With the ‘baby boomer generation’
reaching retirement age, experts predict a shortage of skilled professionals to
replace them. About 70,000 IT students graduate out of US universities annually.
Many predict that the number won’t meet the need for a
projected 600,000 additional openings for IT professionals between 2002 and
2012, and the openings created by retirements.
They believe the
problem will spread unless the government allows more foreign workers to enter
the country, and speed up their residency process. Some critics, however, say
increasing the numbers of skilled foreign workers would depress wages and take
positions away from American workers.
“We should only issue
work-related visas if we really need them,” said Caroline Espinosa, a
spokeswoman with Numbers USA, a group pushing for immigration reduction.
“There are 2.5 million native born American workers in the math and
computer field who are currently out of work. It begs the question whether we
truly need foreign workers.”
In his February economic report,
President Bush outlined proposals to overhaul the system for employment-based
green cards. Bush’s proposals were to exempt spouses and children from the
annual limit of 140,000 green cards. Dependents make up about half of all green
cards issued annually.
Secondly, to replace the existing cap with a
flexible market based cap that responds to the needs employers have for
employing foreign labour. And finally, to raise the 7% limit for green cards
issued to nations such as India that have many highly skilled
workers.
The US Citizenship and Immigration Services (USCIS) issued
its first H1B Cap Report for Fiscal Year (FY) 2007, which begins October 1,
2006. The report shows that, at the end the day on April 3, 2006, the first
business day that FY2007 cap-subject cases could be filed, the USCIS received
1,631 H1B filings (subject to the 65,000 quota) and 340 Masters H1Bs (subject to
the 20,000.quota).
Continue reading article
Something to think about: A day without Mexicans in Chicago
Via ChicagoTribune.com
How will Chicago, and the country,
answer the Mexican question? Will Mexican immigrants ever learn English
and become “real” Americans? As two third-generation Eastern Europeans
we know the same question was asked about our grandparents. Now we are
hearing some immigrant-descended parents asking the same things about
current immigrants.
One of us is the grandson of an immigrant Slovak who worked as a
butcher in Chicago’s stockyards; the other’s grandfather was an
immigrant Bohemian carpenter. We are especially sensitive, therefore,
to the historical fact that the major impetus for the Immigration
Restriction Act of 1924 was the eugenics movement of that time.
Eugenicists, characterized by one historian as fearing that “the
American gene pool was being polluted by a rising tide of
intellectually and morally defective immigrants–primarily from Eastern
and Southern Europe,” played a significant role in ending the greatest
era of immigration in U.S. history. Evolution performs miracles,
apparently. Through some highly improbable genetic mutation–possibly a
recessive or airborne gene–the Slovak grandson is now teaching college
classes to another group of questionable immigrants, Mexicans; the
Bohemian grandson is a researcher of Latino immigration. Fitting
careers for Slovak and Czech descendants since, after all, Eastern
Europeans were the Mexicans of their day.
So, what would a day
without Mexicans be like for Chicago–and, more to the point, what does
such a day tell us about what life would be like if there were no
Mexicans in Chicago at all?
– When you wake up in the morning
think twice about indulging in the luxury of someone else making your
coffee and cooking your breakfast at a neighborhood cafe or restaurant.
Almost all kitchen help, food-prep workers and cooks in Chicago are
Mexican.
– If any of you reading this are business travelers
staying in Chicago for a couple of days, you had better get used to the
idea of making your own bed Thursday morning; the hotel housekeeping
staff is almost entirely immigrant and largely Mexican.
–
You’ll have a slow day if you sell meat or poultry; close to 100
percent of Chicago’s packing-house cutters and meat packers are Mexican.
– On construction crews the “Mexican work” will have to be done by
other guys, since there will be a severe shortage of drywallers and
roofers.
– City landscaping crews engaged in the ongoing
beautification of Chicago parks, parkways and public spaces will need
to pull a few weeds today; no trees or shrubbery will be on hand since
the suburban nursery workers who dig, burlap-wrap and load trees and
shrubbery for planting are, yes, you’ve guessed it, Mexican.
–
And if you think you deserve a break tonight to think over your
position on “the Mexican issue” and eat Japanese, you may experience a
bit of a wait for your food since nearly a third of all Chicago sushi
chefs are Mexican.
Know Your Rights: Can an Employer Fire an Employee Because the Employee Participated in an Immigration Rally?
<a href="/files/4941-4844/Know_Your_Rights.pdf”>Know_Your_Rights: Can an Employer Fire an Employee Because the Employee Participated in an Immigration Rally?
Via AILA.org
Recently, people from across the country missed work to participate in immigration rallies. Unfortunately, a number of these individuals lost their jobs. These recent events have many wondering whether an employer can lawfully terminate an employee for missing work to attend an immigration rally. This pamphlet provides a general overview of the law. It is not intended to provide legal advice.
Employees have the right to join together in an attempt to improve their wages, hours and other employment conditions.
This right, however, does not permit employees to be late for work or to miss work. In most situations, an employer can fire an employee when the employee is absent without permission, even when the employee misses work to exercise her legal rights. Therefore, if an employee misses work to attend an immigration rally, an employer may be able to lawfully terminate the employee if the following conditions are met:
• The employee was hired at will. In other words, both the employer and the employee can terminate the relationship at any time for almost any reason
• At the time of the absence, the employer had an attendance policy in place
• Under the attendance policy, the employee’s absence is considered unexcused. These policies usually categorize an unexcused absence as any absence where an employer has not approved an employee’s request to use vacation, personal or sick leave. Employees should check their employer’s policy to determine what constitutes an unexcused absence
• The employer impartially granted employees’ requests to use their personal or vacation time, whether the employee requested time off to attend an immigration rally or for another reason
• The employer has a legitimate business reason for having an attendance policy
• The employer did not punish employees who missed work to attend the rallies more severely than other employees who had unexcused absences
How to Attend an Immigration Rally and Avoid Being Terminated
• Try to use your vacation or personal time Look at the attendance policy and determine how far in advance you need to request vacation or personal time. Keep in mind that your employer may limit the number of employees that can be absent on any particular day. Ask your employer whether their attendance policy limits the number of employees that can be absent on a particular day. If the policy does limit the number of employees that can be absent, then ask your employer how they determine which employees get the day off.
• Try to switch shifts or work extra shifts. If you cannot use vacation or personal time, ask your employer before the rally if you can be absent on the day of the rally in exchange for working extra shifts or switching shifts with another employee.
If your employer allows you to switch days or work extra shifts, have your employer put your agreement in writing. Then, if you do get terminated, you will have a record of your agreement.
• Review your employer’s sick leave policy. Most likely the policy will limit sick leave to instances when you or a family member is actually ill.
• Review your employer’s attendance policy. Specifically, review the consequences for an unexcused absence. Ask your employer what will happen if you miss work in order to attend the rally. Ask your employer to put his response in
writing. This will serve as a record in case you are terminated.
• Other options. If you are unable to take the day off, try to participate in the rally during your breaks or over your lunch hour.
What to Do If You Are Fired for Attending an Immigration Rally
• Stay calm. Do not panic or yell at your boss. Listen very carefully to what is being told to you. Calmly ask for some time to think about what has just been said, and to ask any questions you may have. If you are told to leave the job site immediately, ask for the name and phone number of the person you should call if you have any questions. Request an opportunity to gather your personal possessions, and leave. Be certain to collect any tools, property, or supplies you personally brought to the job
• Ask why you were fired. Even if you are an “at will” employee, you should ask the person firing you why you are being fired. If you receive only one reason for being fired, that might be the only reason your employer can give to a court or agency determining unemployment compensation or other benefits. Carefully record the exact reason you were given. Write down the name of the person who told you. Some states have laws that require employers to tell employees in writing why they are being fired. If the company fails to respond to your request, you may be able to sue your former employer. You typically cannot be fired just for participating in a political rally. However, if there are other valid reasons (you skipped work or left early with out permission, or you came in late), it may be more difficult to contest the decision.
• Ask who made the decision to fire you. Be sure you have the name of the person who actually had the ability to fire you, even if the person telling you that you are fired was your boss. If the person who had authority to fire you was not the person who supervised you, ask how the person with the ability to fire you made their decision, and who they spoke to about firing you. If the decision to fire you was based on someone else’s word, or other erroneous information, and you were not given an opportunity to defend yourself, you may be able to talk to the person who made the decision.
• Think carefully about what you were promised. If you are promised the entire day off or the time of the rally off, write down the time and place that promise was made, who made the promise and who witnessed it. At times, these promises can be considered binding contracts. If you ask your employer to reconsider a decision because of a promise that was made to you by a supervisor, your employer will need specific information about what was promised, and who promised it.
• Ask to see your personnel file. Not all states require employers to show terminated workers the contents of their personnel files. However, if you are able to view this file, it could contain favorable recommendations and comments that may protect you from getting bad recommendations as you look for a new job. If your performance record is poor, you may be barred from contesting your employer’s decision to fire you. If your employer refuses to let you see the contents of your file, ask for written confirmation that the file will not be shared with anyone else without your permission.
• If you signed a written employment contract, reread it. Look carefully at what it says about termination. If the company fails to act according to the contract, your rights may have been violated, and you may be entitled to payment. Also, carefully review your employment handbook, or company rules. While these are not always considered part of your employment contract, in certain cases they can be.
• Ask for your final paycheck. In most states, you are entitled to payment for all hours you have worked up to the time you are fired, and payment for unexpired vacation or sick leave time you have accrued, at the time you are fired. If your employer refuses, you may be able to sue for payment.
• Carefully review all documents before you sign them. Sometimes employers ask employees to sign a “release,” or a promise not to sue, in exchange for money. You are entitled to money you have already earned regardless of whether you sign a release or not. In fact, in most states, an employer is not allowed to use your last paycheck as a way to force you to sign a release. However, if you have already received your final paycheck, and an employer is offering you money in exchange for your signature,
be sure you understand what you are signing before you sign it.
• Return company property. Do not take any tools or supplies provided by your employer, and do not wait for your
employer to ask for you to return any items he or she provided to you. Things like automobile keys, tools, phones, and samples must be returned to avoid claims of theft, fraud, and breach of contract. When returning items by mail, get a receipt to prove delivery. When returning items in person, ask your employer to provide you with a signature stating that he or she has received the item. Remember that if you signed a paper to receive an item, you probably need to sign the same or another paper stating that you returned the item.
• Find out if you are eligible for unemployment benefits under state law. While undocumented workers are often barred from receiving benefits, you do not have to be a U.S. Citizen to claim unemployment. You can request a hearing if you feel benefits were unfairly denied.
• Find out what your employer intends to tell others about you. Many states have enacted anti-blacklisting statutes that punish employers for intentionally trying to prevent former employees from finding work. In some states, untruthful job references are treated as crimes. You may also be able to assert a lawsuit based on defamation and emotional distress if you discover that your employer is sharing confidential information with others.
If you find out your former employer is providing negative references to potential employers, send a letter, by certified mail, return receipt requested, informing your former employer of what you have learned and put the employer on notice of your desire to take prompt legal action if the problem persists.
• Find a lawyer you trust. If you are owed wages, vacation pay, or other compensation, or believe the employer violated the law or your contract, speak with an attorney. Many statutes offer attorneys’ fees if you prevail. Some attorneys take cases on a pro bono (for free) basis. Some attorneys may take a case on a contingency basis, which means you don’t have to pay them if you don’t win your case. All lawyers should be able to find someone who can translate into your language.
Every state has a state bar association that keeps a list of lawyers who accept referrals for various types of cases, and are willing to consult with you for a certain amount of time for a set fee. Other lawyers and lawyer organizations (often called bar associations) may be able to provide referrals.
Keep all your documents related to your employer together. You will need to keep any notes you write about what your employer has stated, and any documents your employer gives you, from the day you were hired, to the day you are fired, in a place where you can easily find them. This will help you or your attorney to provide quick and accurate information if you contest the decision, or if you are asked by a potential employer.
Can an Employer Re-Evaluate an Employee’s Immigration Status Because the Employee Participated in an Immigration Rally
In general, the answer is no. If an employer properly examined and verified an employee’s I-9 Employment Eligibility Verification Form, then an employer may not review the employee’s immigration status again except as described below.
An employer has properly examined and verified an employee’s I-9 form if the employer reviewed the eligibility and identification forms that accompanied the I-9. If the documents appear to be genuine, then an employer must accept the documents as true. Therefore, in most cases, an employer cannot re-evaluate an employee’s immigration status just because the employee participated in an immigration rally.
There are some exceptions that allow an employer to review an employee’s immigration status even after the employee is hired:
• Confession of fraudulent documents: If an employee confesses that their documents are fraudulent, then an employer is allowed to review their immigration status. The law requires the employer to immediately terminate the employee.
The employer has the right to rehire the employee if the employee submits a genuine I-9 form and documents proving employment eligibility and identification that are free of misrepresentation and fraud.
• Employer knows that employee is unauthorized to work: It is illegal for an employer, who knows that an employee is or has become an unauthorized alien, to continue their employment.
• The government can check an employee’s status: The U.S. Department of Homeland Security, can investigate an employee’s immigration status at any time. If the government determines an employee is unlawfully employed, it can issue a warning or notice of intent to fine to the employee or employer. The government will not fine an employer for hiring an individual with fraudulent documents, if the employer reviewed the documents and believed that they were genuine.
• The employee had temporary work authorization. If the original I-9 indicated the employee was temporarily authorized to work, the employer is required to re-verify eligibility for continued employment on or before the date the temporary work authorization expires. This may only be done in connection with expiring work authorization however.
For more information see:
United States Citizenship and Immigration Services at:
http://www.uscis.gov/graphics/howdoi/EEV.htm
ICE Increases Sweep and Arrest Activity
Via The American Immigration Lawyers Association (AILA)
04/26/2006
Following on the heels of the employer raids last
week that made national headlines and resulted in the arrests of over
1,000 alleged undocumented workers, and the arrest and criminal
indictment of several corporate managers, further reports are reaching
AILA that ICE is conducting additional sweeps in communities in various
parts of the country. This is consistent with DHS’s announced intent to
beef up enforcement of immigration laws within the U.S. as part of the
Secure Border Initiative. It appears that there are two prongs to the
interior actions: investigations of employers and sweeps looking for
individual alien “absconders.”
Reports from New York and New Jersey indicate that sweeps and
arrests have taken place in Brentwood, Bay Shore, and Farmingville on
Long Island, and in Newark, Elizabeth, and Willowbrook, and at the
Garden State Plaza. The AP reported yesterday 183 arrests in Florida
last week related to enforcement of deportation orders involving aliens
convicted of crimes.
AILA is also hearing that ICE is conducting employer actions,
including multi-state raids on specific companies, with reports from
AILA members of employer clients being raided in New York, Ohio and
Illinois.
At a press conference Thursday, April 20, 2006, announcing that
week’s raids and arrests, DHS Secretary Michael Chertoff announced a
crackdown on employers, saying: “We are looking at those people who
adopt as a business model the systematic violation of U.S. laws,”
Chertoff said. “We are continuing to investigate other companies.”
AILA will continue to monitor these events and update members as events unfold.
AILF has just compiled and posted an Employer Sanctions and “Know Your Rights” resource list that provides links to important materials and information. In
addition, AILA and AILF are working on an updated advisory for
employers faced with workplace raids.
The U.S. Immigration Law Blog by Ashwin Sharma 
Making sure teams look good on paper
Via Star-Telegram
05/07/2006
By RAY+ BUCK
Star-Telegram Staff Writer
Assistant general manager Keith Grant of the Mavericks has obtained working visas for non-U.S. citizens plenty of times.
It’s the NBA way — importing players from abroad — and it’s viewed
by league officials as an “international” phenomenon with no end in
sight.
When the “Dream Team” captured Olympic gold at Barcelona in 1992,
NBA rosters were dotted with 21 international players from 18 countries.
This past season, NBA teams could boast 82 international players from 38 countries and territories.
Playoff teams, too.
Going into Round 1, there were 44 international players from 25
countries and territories among the 16 teams — including the Mavericks
with three, and led by the defending champion Spurs with seven.
So, you get the idea. Grant has been filing forms with the U.S.
State Department and the U.S. Citizenship and Immigration Services for
quite some time now.
But nothing prepared him for what happened last October.
The Mavs had just beaten the New York Knicks 104-102 in an
exhibition game at Madison Square Garden. While the rest of the team
flew to Detroit, Grant used a day off between games to chauffeur
DeSagana Diop to Toronto.
Diop, who had changed teams (Cavs to Mavs), was in need of a new P-1 visa.
The “P-1” is available to “priority professionals” with
“extraordinary skills” — such as doctors, researchers, entertainers
and athletes.
It’s the same visa used by Major League Baseball (actually, for any
international players on 40-man rosters) and the NHL, where 31 percent
of its players hail from beyond North American borders.
Anyway, back to Grant and Diop.
“DeSagana and I flew to Toronto, got a morning appointment and had
his visa by that afternoon,” Grant said. “But then, our flight to
Detroit was cancelled. Our only option was taking two commuter planes
— Toronto-to-Cleveland and Cleveland-to-Detroit.
“So, I told DeSagana, ‘Let’s just drive.'”
Grant was used to driving players from the northeast corridor to
either Toronto or Ottawa over the years, all in the quest for visas.
“So, we’re crossing the Canadian border in a Jeep rental — me and
DeSagana — and [the 7-foot] DeSagana is sitting halfway in the
backseat because he’s so long,” said Grant, who stands 5-11.
“I mean, we’re sitting there … The Odd Couple at its finest. Needless to say, we’re made to pull over, step inside and answer a few questions.”
NBA, MLB systems work
The adventures of a long-legged Senegalese power forward, with visa
in hand, doesn’t pack the same political punch as illegal immigration
and border control.
Maybe that’s the beauty of sports.
Pro teams have become more and more proactive in getting the proper immigration papers into the hands of their players.
“The process hasn’t gotten any easier, but we’re getting much more
organized,” said Kim Bohuny, vice president/NBA basketball operations.
Procuring players’ visas varies from sport to sport, from league to
league, even from level to level. But the goal is the same — make it
happen.
NBA players receive P-1 visas for the length of their contracts, which are usually three to four years and always guaranteed.
Conversely, major and minor league baseball players are required to
return to their native countries at the end of each season and reapply
for new visas.
Players not on the 40-man roster — even those with major league
jobs — must vie for “H-2B” visas. These visas are capped (66,000
available per year) and quotas are set.
All types of laborers crossing U.S. borders are eligible for H-2B visas: landscapers, loggers and minor-league infielders alike.
“An ‘H-2B’ is a specialized work visa but not the ultimate
specialized work visa,” said John Lombardo, director of minor league
operations for the Rangers. “Obviously, a P-1 — with no cap — is
incredibly simpler” to obtain and renew.
The Rangers, as with all MLB teams, obtain visas for every player in the organization, from Class A rookie league to the majors.
Each visa costs the Rangers $340 — minimum.
“It normally takes 45-60 days to get a P-1 or H-2B visa,” Lombardo
said. “Or else, you can send a $1,000 premium-processing fee and get a
visa in 10 days.”
It’s the responsibility of MLB — serving as an industry — to make
sure that all 30 teams are “certified” to make individual visa requests.
In turn, MLB gets an assist from the government.
Said Lombardo: “We do receive — I don’t want to call it ‘special
treatment’ because it’s not — but we do have a dedicated person
working in Homeland Security who helps expedite the process as much as
possible for our players.”
On the Rangers’ current 40-man roster, there are 12 international
players — nine from the Dominican Republic; one each from Japan,
Venezuela and Nicaragua.
Each visa order requires the team to package up 15-20 pages of
documents, including the player’s contract. The player then goes to his
consulate, shows proper ID and secures his visa.
That hasn’t changed.
What has changed, however, is heightened U.S. scrutiny after the tragic events of Sept. 11, 2001.
“Going into 9/11, there was a lot of corruption — not from the U.S.
side but from the international side — in the visa process,” Lombardo
said. “Things got lax…like family members getting piggy-backed onto a
player’s visa.”
Historically, Dominican players have had a reputation for “visa problems,” causing them to miss the start of spring training.
“I just think the Dominican Republic is still paying the price for
some of that corruption, even though it’s not there now,” Lombardo said.
There are more Dominican players than any other international group
in the majors today. And they all arrive at once, Lombardo noted.
Right-handed reliever Omar Beltre — a once highly regarded
Dominican prospect of the Rangers — was implicated a couple of years
ago in an alleged multiple-player visa scam, preventing him from U.S.
entry.
“If a player has made a mistake — somewhere, somehow — or his
paperwork is not in order…he’s not getting in,” said Lombardo,
referring to no one in particular.
“Since 9/11, the visa process has become much more difficult,” Lombardo added. “They’re cracking down. Thank goodness for that.”
Don’t forget hockey
Basketball players average 20 to 22 years old after well-documented
careers with their national teams. Baseball often sends teen-agers to
the States.
The NBA also secures a temporary “visitor’s visa” for any player who
wishes to come to the United States before the June draft for a
non-payment, individual workout for a team.
But the NBA and MLB aren’t alone in helping non-U.S. citizens’ entry
into the country to play pro sports. American-based NHL teams are part
of a league that is about 52 percent Canadian-born.
The Stars finished the season with 11 Canadians, six Finns and a total of 21 players born outside the United States.
“The P-1 visa allows players to travel outside the U.S. and play
hockey in Canada…[and] is valid through the term of the player’s
contract,” said Lesa Moake, Stars director of hockey and team services.
“There are some European countries [Czech Republic, Latvia and
Russia] that require a Canadian visa as well. I file those
multiple-entry visas with the Canadian consulate, and they are valid
for one year.”
A player with a P-1 visa can apply for a green card, which allows
non-U.S. citizens to reside permanently and work in the United States.
That process usually takes “a minimum of two years,” said Moake,
adding, “If a player has a green card and leaves the U.S. to play for a
team in Canada, he is required to surrender his green card.”
Minor-league hockey players receive 10-month visas.
“It’s tougher for minor-league teams,” said Eric Schultz, an immigration lawyer for Sacks, Kolken & Schultz of Buffalo.
One of Schultz’s accounts is the Central Hockey League, which includes the suddenly-now-in-limbo Fort Worth Brahmas.
Unlike P-1 visa holders, H-2B players must get the blessing of the U.S. Labor Department before a contract can be signed.
“Only if it can be certified that sufficient recruitment has been
done to look for U.S.-citizen players or green-card holders will the
Department of Labor authorize permission for employment to be offered
to a non-U.S. citizen,” Schultz said.
Not so, for the big boys.
Said Terry Lyons, vice president/NBA international communications:
“I see NBA coaches, players and fans saying, ‘May the best man play.'”
This idea of open competition may be where immigration in sports shines brightest.
If nothing else, filling out all that paperwork must seem worthwhile.
For more online information on immigration in sports:
www.uscis.gov
www.us-immigration.com
www.sackskolken.com
Staff writer David Sessions contributed to this report.