Posts Tagged ‘Citizenship’

“Habitual Drunkard” Ruled Invalid Basis for Denying Citizenship, But DUI Grounds for Visa Revocation

Friday, May 13th, 2016

In 1956, the American Medical Association (AMA) declared alcoholism to be an illness.  By 1980, the AMA started establishing policies on the “disease” theory, largely to secure third-party funding, which could only be done if alcoholism was categorized as a disease. Although the AMA’s position was solidified in 1987, a Supreme Court case the following year addressed the issue via the withholding of veterans’ benefits as a result of the veterans “own willful misconduct.” The majority opinion acknowledged the competing medical literature which refused to classify alcoholism as a disease and further held that the victim “bears … responsibility.” Within a short period of time, the American Hospital Association, the American Public Health Association, the National Association of Social Workers, and the American College of Physicians all classified alcoholism as a disease.  The National Institutes of Health followed suit in 2008.

This evolution of medical attitudes concerning alcoholism has spilled over into the immigration arena, where the 1952 Immigration and Nationality Act (INA) excluded citizenship from drunkards on the basis that they lacked “good moral character.” This standard has never been updated despite several modifications to the INA, and the same standard is applied to cancellation of removal applicants, who are ineligible for that relief if shown to be a habitual drunkard. A driving under the influence (DUI), open container, minor in possession, or public intoxication arrest could lead to the charge that an individual is a habitual drunkard. Absent an alcohol-related criminal charge, the very first question on both naturalization and cancellation of removal applications concerning moral character is, “Have you ever been a habitual drunkard?” The Ninth Circuit decided it was time for the INA to catch up with medical opinion and recently held that alcoholism is a disease and, therefore, the “habitual drunkard” question is irrelevant to moral character and unconstitutional under the rational basis standard.

However, the treatment of alcoholism as a disease is a double-edged sword. As USCIS adjudicators, Immigration and Customs Enforcement (ICE) attorneys, and immigration judges in the Ninth Circuit now are being prevented from imputing drunkenness onto one’s character for a DUI, the Department of State (DOS) is revoking nonimmigrant visas for the same offense. Under the INA, the inadmissibility statutes include those who have a possible physical or mental disorder associated with harmful behavior. Due to the growing consensus that alcoholism is a disease and the acknowledgement that drunk driving is harmful behavior, DOS has determined that a DUI offense raises doubts about admissibility and has recently authorized consular officers to revoke nonimmigrant visas of visa holders with a DUI arrest that has occurred within the past five years, unless that arrest has already been addressed within the context of a visa application.  This means that foreign nationals who are present in the United States on a nonimmigrant visa who are subsequently arrested for a DUI, or who previously had a DUI arrest but that information only now surfaced – information that calls into question the person’s continued eligibility for a visa – are at risk for visa revocation. Previously, there was no consequence of a DUI arrest subsequent to visa issuances until the time of the next visa application. Once revoked, the visa is not valid for future travel to the United States but it does not require immediate departure from the United States if the foreign national is currently present here.  Revocation does not preclude reapplying for a new visa. During reapplication, consular officers will refer any nonimmigrant visa applicant with one alcohol-related arrest in the last five years or two or more in the last 10 years to a panel physician for a medical examination prior to visa issuance to rule out a medical ineligibility.

DHS and DOS to Institute New Policy Relating to False Claims to U.S. Citizenship

Friday, November 22nd, 2013

In 1996, a provision was added to the immigration laws that expanded the scope of those provisions that made an intending immigrant inadmissible and barred adjustment of status if the individual made false claims to U.S. citizenship. Previously, such claims must have been made to procure a specific benefit under the immigration laws and the fraud or material misrepresentation must have been made to a U.S. government official. After implementation of the 1996 law, however, the bar to admissibility and adjustment applied to anyone who falsely claims U.S. citizenship for any purpose or benefit under the immigration laws made to a government official or even a private employer. This new provision, for example, included instances where non-citizen checks off the “citizenship” box on an I-9 form and returns it to an employer. Such individuals who are found inadmissible for having made a false claim to citizenship are permanently inadmissible and are removable. While waivers are available for fraud or material misrepresentation in other contexts, no waivers are available for false claims to citizenship even for the spouse or children of U.S. citizens or lawful permanent residents. Recently, DHS and DOS reviewed the application of this provision and will now apply a new interpretation.

First, under the new interpretation, only a knowingly false claim can support a charge that an individual is inadmissible under this section of law. The individual claiming not to know that the citizenship claim was false has the burden of establishing this affirmative defense by the appropriate standard of proof; for example, applicants for admission or adjustment of status must prove their case “clearly and beyond doubt.” Second, an individual who was under the age of 18 at the time of the false citizenship claim and at that time lacked the capacity to understand and appreciate the nature and consequences of the false claim can also avoid a finding of inadmissibility.

The government’s new interpretation became public through a response to a letter by Senator Reid inquiring about this provision, and appropriate USCIS and DOS adjudicators are being advised of these changes. No precise guidelines however are available.

For years, immigration advocates have been seeking to change the law to limit the ban on admissibility and removability to persons who willfully make false claims to citizenship; advocates have also sought to create a discretionary inadmissibility waiver in the case of an immigrant who is the close relative of a U.S. citizen or lawful permanent resident. While those efforts have not been successful, the new DHS and DOS interpretation, if applied generously, will help those who unwittingly make a mistake.

Certain H-1B Employers and Their Workers Face New Hurdles and More Reasons to Anticipate DHS Compliance Site Visits

Monday, March 1st, 2010

In a recent guidance memo, U.S. Citizenship and Immigration Services (USCIS) has appreciably altered its definition of what constitutes a valid employer-employee relationship as it relates to H-1B workers and imposes new rules on the types of activities in which H-1B workers can engage. The memo will have a significant impact on certain new H-1B petitions and certain extensions.

Under the new rules, workers who are placed at third-party worksites will no longer qualify for H-1B visas as employees. Nor will independent contractors, such as sales representatives. And, agents as petitioners will not be able to qualify as H-1B employers. The memo also departs from long-standing precedent to conclude that persons with a substantial interest in a petitioning company, in most cases, cannot qualify as a beneficiary of an H-1B visa. This means that co-owners of a business may not be able to obtain an H-1B. The guidance memo also requires that the petitioner establish that the employer-employee relationship exists throughout the requested H-1B validity period.

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