Watch Your Language and Your Appearance

Your Comportment—How You Look & Sound—May Be More Important Than Any Document

After yesterday’s post we’ve received a bunch of direct messages accusing us of being cynical and, worse, accusing us of encouraging folks not to respond to their RFEs.

First, we want to make it absolutely clear that we believe anyone who receives an RFE should make their very best effort to respond and to supplement the request with the best documents and arguments they and their lawyers can provide. 

Our post yesterday was only intended as a warning. We wanted folks to realize now that we know denial of H-1B visa renewal requests is at an all time high, they shouldn’t stop being realists just because DHS seems to be pretending there is a glimmer of hope that their visa may get renewed. 

Some of us have been familiar with the immigration process long enough to unreservedly state that one should take each and every opportunity, no matter how minuscule the chance of success, to plead one’s case to the immigration authorities.

It’s not often in the immigration scheme that you get a chance to apply for a new form of relief without jeopardizing the status or benefits you already have. We discovered one such situation—quite by accident but one that is almost custom made for the situation—where with proper planning H-1B visa holders can obtain additional security without losing the status they have. Our paid subscribers know about this alternative approach, and will in the next few days receive a comprehensive analysis of the risks and rewards of exercising the option. 

In the second place, we want to take this opportunity to stress that some of us have firsthand knowledge of what folks are going through because we were undocumented in the past ourselves. We know how a person’s rickety immigration status can come to dominate every aspect of life. How for example on some days you can become so anxious about not having the right documents that you don’t even want to go to the corner store. 

Our warning about RFEs today is prompted in this spirit. 

You may have seen the news stories about a young man, a natural born US citizen, called Francisco Erwin Galicia who was stopped by USBP, Border Patrol, and held for 23 days. His story serves as another warning.

What’s Reasonable

Let’s examine why this young man was stopped by USBP. 

You probably already know that Border Patrol doesn’t have unlimited jurisdiction. The law says that USBP can search people within a reasonable distance of the border. This means they can’t for instance board busses in New York City and ask to examine the passengers’ documents. 

You may however be surprised to learn that USBP claims to have a jurisdiction of “100 air miles from any external boundary of the U.S.” This means their agents reserve the right to examine the papers of 200 million people currently living here. That is they can search approximately 2/3 of the population currently living in the US and ask to see their documents.

But having such a vast jurisdiction doesn’t mean USBP can just stop anyone at will. No! This is a nation of laws and lately DHS has become inordinately fond of proclaiming its respect for them. 

The law says USBP must have a “reasonable suspicion” before they detain anyone. But what is a reasonable suspicion? According the ACLU’s primer on the subject this means agents must have “specific facts about you that make it reasonable to believe you are committing or committed, a violation of immigration law or federal law.” 

Mr. Galicia who speaks halting English wanted to try out for the soccer (football in the rest of the world) program at Ranger College. Driving to the tryout brought him under the jurisdiction of USBP where he was asked for documents. 

Suspicion Depends On How You Look & How You Talk

This is when USBP started to exercise its “reasonable suspicions”. The agents saw a carload of youngsters with dark hair and darker skin, concluded they were “suspicious” and asked young Galicia for ID. He had a valid Texas ID, which you cannot obtain without a social security card, and a wallet sized copy of his birth control proving he was born in Dallas. But the agents didn’t believe the documents were genuine and decided to put him in jail. For 23 days he slept on a cement floor, was fed stale bologna sandwiches and wasn’t allowed to take a shower or to call outside. You can see his interview here: 

We wonder if DHS agents would have shown more respect for the documents Mr. Galicia was carrying if he had different skin or better English. But we need to point out that whatever did cause their suspicion, it was seems to have been perfectly legal. 

Implications For H-1B Visa Holders & RFEs

Would Mr. Galicia have been treated differently if he had blond hair, blue eyes and looked Norwegian—the one country Mr. Trump admits he wants more immigrants from? We suspect he would not have been kept in custody for 23 days. 

We don’t say every H-1B visa holder should fear being made to disappear for 23 days just because they speak with an accent or don’t look Norwegian. But we do say they should take particular care to always have their documents on them, particularly if they live within the 200 million person jurisdiction of USBP. 

The same warning becomes doubly important for folks who have applied for renewal, and received an RFE instead of an extension. We’ve heard, though can’t confirm ourselves, that certain employers or their lawyers refuse to provide copies of RFEs to the H-1B visa holder, in effect making that foreign worker easy prey for DHS and a source of income for its political donors in the business of promoting prisons.

Please know your rights by checking this link from ACLU where the above quotations come from.

Don't Worry About That RFE

There are countless threads all over the internet—not just in Facebook groups devoted to H-1B visas or H-4 classification but also on platforms like Reddit, Quora, LindIn, etc.—where someone is asking for advice on how to respond to an RFE (Request For Evidence) issued by DHS. 

The overwhelming majority of these threads end in denials with the OP wondering out loud what was wrong with their response and what should they have done to avoid the sad ending. 

The sad fact is that these visa denials had nothing to do with how people responded to the RFE or what kind of documents they did or didn't send in with it. 

The decision to deny the visa was probably already made well before the RFE was ever issued. In other words the decision to deny was already final, a fait accompli, before any evidence was requested. The mailing of the RFE, the wait, the exchange of letters, and the subsequent mailing of denial were just 'window dressing.'

We’re not trying to be incendiary here. We’re just trying to warn people not to invest their hopes, their very future, in a futile process whose outcome is predetermined. Visas will be refused not because they fail to comply with the law, but because the Trump Administration is determined to deny them. This government is counting, among other things, on the fact that the people most affected by this subterfuge are not in any position to object to what it does.

The person most affected by a denial, the H-1B visa holder him-or-herself (called beneficiary in DHS jargon) is technically not even allowed any voice to object with when, after many years of living here, he or she is told to leave in 180 days.The business visa immigration scheme involves an agreement between the government and an employer. The visa holder plays no part in this agreement, they just 'benefit' from it when government and employer agree. The government advanced this argument in the case of Usha Sagarwala. It is sure to make again. (https://tinyurl.com/y2e5abmp).

But even if the beneficiary had the right to object, as the judge allowed in Ms. Sagarwala's case, Trump’s government is still willing to lie about any fact that affects their decision. They will deny an H-1B renewal by claiming for example that the requirements of the job have changed, or that the job does not qualify as a "specialty occupation," where in fact there has been no change in either the position or its requirements. The people running DHS know any individual challenging their lies will have limited resources and that such a challenger will likely have to spend his or her life savings to prove the truth, whereas the government has almost infinite resources to defend whatever it wants say and hence drag out the proceedings until the challenger goes bankrupt.

We decided to address the government's disdain for the truth today because there is new evidence of the Trump Administration lying about immigration procedures—AGAIN!

Today with much fanfare, Fox News Cameras, and the usual panoply of underlings, the United States government announced a deal with the government of Guatemala. (https://tinyurl.com/y3bsaduq)

According to this deal, Guatemala one of the most serious human rights violators in the world, is now a country that can accept, process and extend protection to asylum seekers. Any Guatemalan fearing harm who seeks asylum in the US will now be denied if the government determines they didn’t ask for protection before leaving Guatemala. 

Here is a clip of the man currently in charge of DHS confirming what the accord means: 

https://twitter.com/aflores/status/1154860244838649856?s=20

Where is the lie, you ask. We know these officials are lying because we compared what they said today to other documents, published by the same government they work for, where political expediency is not as big a factor. Through this comparison we see for example that "judges, prosecutors, plaintiffs, and witnesses continued to report threats, intimidation, and surveillance, most often from drug trafficking organizations." (https://tinyurl.com/y5xaqc4w) If judges and prosecutors in Guatemala are being threatened and intimidated, how can ordinary citizens feel safe?

It doesn't matter what the State Department says. It doesn't matter that the State Department also works for Trump. It doesn't matter that the supreme court of Guatemala had said such an agreement would be illegal. All the mattered today is that another opportunity was created for the cameras and that the sixty odd million people who voted for this president will cheer.

What today's White House produced episode of reality TV shows is that in the USA, the law, regulations and reality itself have become mere formalities, matters of expediency that can be manipulated, revised and reasserted to achieve the political aims of those running it.

H-1B visa holders take note. Plan ahead. The outcome of the RFE you may receive could already have been determined before it was ever mailed to you. 

EB-5 Regulations Don't Affect H-1B Denials; Or Do They?

USCIS announced that its new regulations for EB-5, the million dollar green card program, will be published on July 24 2019. You can see a copy of it here.

Reports indicate that Trump was undecided until the last minute about publishing the new regulations. Assuredly one reason for his tentativeness was the difficulty of justifying foreign employers to his America First supporters. 

Discussing EB-5 and million dollar investments when people are more immediately concerned with their H-1B renewals may seem irrelevant, however it’s not impossible that the H-1B workers of today are going to be the million dollar investors of tomorrow. The challenge for most is how to stay in the US until that day comes.

One of the more persistent American myths concerns the man or woman who one day has a very good idea, a vision, which then leads them to start a new business that over time ends up employing thousands. Like all other myths this one is mostly fiction. But it has been a reliable vote getter for both political parties, and although the real factors that help the ‘good idea’ become reality have not changed too much over time, what politicians pay lip service to has. 

Almost a century ago when Walt Disney tried to promote a company based on the innovative idea of synchronizing cartoons to dance in step with the music in the film’s soundtrack, he would’ve gone bankrupt with the support of A.P. Giannini, the founder of Bank of America. Similarly many tech innovators today would still be pushing pencils for Microsoft, Apple or Google had their ‘good idea’ not received life-giving injections of VC. 

Yet our politicians continue to deny the importance of a support network to innovation. They pander to the kind of folks, who left on their own couldn’t devise an escape plan out of paper bag, by praising their sense of innovation, their individualism and by assuring them that their ‘good idea’—were they to have one in the next century or two—would climb to the peaks of success. Meanwhile the requirements to avail oneself of a support network have continued to become more stringent and a support network more difficult to obtain.

Witness Bill Gates’ laments a few weeks ago that his company missed out on the mobile revolution. What was interesting in those comments is that Gates never mentioned how he would hoped to neutralize the relative innovative advantages of existing mobile operating systems. There was no doubt in his mind that if he had correctly timed his entry into the market, his company would have succeeded with its own platform—no matter how degraded or incompetent a product he presented. He hadn’t given a thought to whether Microsoft would’ve designed a better platform than Android or iOS before entering the market. Gates knew with its superior marketing support Microsoft could end up commanding a sizable chunk of the market with minimum, or nonexistent, innovative features. Arguing which platform was better, or offered more features, would come only after he had acquired a sizable marketshare. 

This is just one example of why support is not the same as innovation. Support has little to do with creativity. The talent to innovate is innate—some have it, are born with it, and some don’t. But obtaining support is almost impossible without first submitting to an objective list of qualifications. In the 1930s, when Giannini was helping Disney, no potential investor would have bothered to check how an innovator’s ability might be hindered by their immigration status. Today all do.

That’s why we decided to write about the changing regulations for millionaire green cards. There are many future millionaires among today’s H-1B visa holders. We don’t know if the laws will change to allow them to actually get permanent residence. But we continue to espouse the idea that one must do what one can in order to stay involved until “there is a cure.” Those who have the foresight to do so must look for ways to avail themselves of what support networks they can get on their side. We can recommend one.

Our subscribers have already learned how they might obtain an EAD, independent from their current employer.

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