Due to concerns driven by the War on Terrorism and
the current events in the Middle East, the US State Department
has significantly increased the security checks conducted on individuals
interested in entering the United States. One of the unfortunate
consequences of this new policy is that many highly desirable
foreign workers have discovered that they are unable to reenter
the United States after visiting family in their homes countries
until a detailed security check is competed. This is much more
than a temporary inconvenience. In many cases, highly skilled
researchers and high-tech workers who pose no security risk at
all have found themselves stuck outside the United States, unable
to enter to the country to continue their work. In some cases,
individuals have even lost their jobs.
The following is a real story sent to our firm through
the firm's information@hooyou.com e-mail link. The individual's
name has been changed for the sake of confidentiality. The story
is sad and we hope that presenting it may save others from falling
into the same trap.
Mr. Chen graduated from a top-rated university in
California with a Ph.D. degree and was hired by a large software
companies as a senior engineer. His company successfully sponsored
him for H-1B in 2000 and his H-1B status remains valid through
2004. His career seemed to be on a very prosperous track until
he visited his family back in China for his vacation around the
end of last year.
In December 2002, after visiting with family, Mr.
Chen visited the US consulate to apply for H-1B visa to re-enter
U.S. Unfortunately, his application was sent to Washington for
a security check. Mr. Chen, however, is not the first person to
experience this situation (to read about a similar occurrence,
click
here to see "Dr. Zhu's" story).
After three full months, Mr. Chen has yet to received his H-1B
Visa. Mr. Chen has been waiting for the approval since December
27, 2002, and his case is still under review. Worst of all, when
Mr. Chen contacted his sponsoring company's Human Resources Office,
they told him that his employment had been suspended and that
he would soon be terminated due to his visa delay.
Sadly, Mr. Chen is one of thousands of foreign scientists
and engineers caught in the web of tightened security procedures
post Sept. 11. His case further underscores the new trend of more
restrictive US immigration policy. As the US government begins
to see visa-granting as a significant antiterrorism tool to screen
foreigners, there is a potential risk that the procedure may well
be overused and even abused. Mr. Chen is a typical victim of today's
over-enforced security procedures and the backlog caused by mandating
that the overburdened State Department must conduct what is all
too-often an unnecessary bureaucratic process.
The sad, but unfortunate truth is that these heightened
security checks will not hinder terrorists, but will only hinder
law-abiding immigrants who are proudly following in the footsteps
of earlier immigrants who have done so much for the United States.
Policy-makers should keep in mind the role that American-immigrants
have played in times of trouble throughout our history. John Paul
Jones, Revolutionary War Hero and the father of the US Navy was
an immigrant, so was Albert Einstein, whose genius ended the Second
World War, former General John Shalikasvili, US Joint Chief of
Staff from 1993 to 1998 grew up in Warsaw, Poland and only entered
the US at age 16. Within a few years, like so many other first
generation immigrants, he proudly joined the US Armed Forces.
Today, the US Secretary of State, Colin Powell is the son of Jamaican
Immigrants and Elaine Chao, the Secretary of Labor, and the former
head of the Peace Corps is a Chinese Immigrant who moved the US
at age eight. America's history should teach policy-makers of
the importance of immigration.
As for the risks caused by today's increased security
checks, in this article, we hope to shed light on some practical
lessons that can be learned from Mr. Chen's sad story.
First, this case reaffirms the most important rule
about US immigration law regarding aliens' legal rights. Simply
put, aliens are legally better off within the US than outside
the US. Once an alien enters US territory, he enjoys more rights
than if he is outside the US soil. For instance, if an alien's
non-immigration application is filed within the US and later denied
by an immigration officer, the alien still has various channels
to appeal the administrative decision and even seek judicial review.
By contrast, if the same application is denied by a consulate
officer, this individual decision is final and not subject to
any judicial review. Moreover, once an alien is outside the US,
the alien faces significant obstacles to reenter and is not able
to assert his or her legitimate legal claims.
Second, if an alien really needs to leave the country
temporarily despite the risk of security check, she might consider
going through Third Country Visa processing (TCV) rather than
directly returning her home country to reapply for visa. Why is
TCV preferred? The reason is because, generally speaking, aliens
applying for non-immigrant visas to reenter the US are routinely
subjected to less scrutiny and less lengthy security checks at
a consulate of a third country than their home country consulate.
However, we strongly recommend that you evaluate your own situation
carefully before you go for a TCV. Given recent changes in the
TVC process, the importance of an experienced attorney's role
in the TCV cannot be overemphasized (see details in TCV, please
click here)
Last, but not least, we need to clarify some common
misconceptions. Dr. Chen contacted our firm to inquire whether
he "has any right to work in US" during his absence
and whether his company has the legal right to terminate the employment.
To address these questions, we need to understand the legal rules
with respect to H-1B status and labor law. The mere fact that
Mr. Chen's original H-1B approval remains valid through 2004 does
not establish his right to work in US in absolute terms. If he
cannot physically be in the US, his work status does not exit,
not to mention any "legal" right to work. Moreover,
his company is the legal sponsor/petitioner for Mr. Chen's H-1B
and Mr. Chen himself is merely the beneficiary. If his company
stops the employment, then Mr. Chen will also lose his "right"
to work or stay in the US.
Mr. Chen's second question also addresses some key
aspect of labor law. Usually an alien's employment with a US company
is presumed to be at will unless there is a binding contract.
Either the alien worker or her company may terminate the relationship
at any time and for any reason or no reason at all. Under the
current immigration law, the American employer is only required
to reimburse the necessary transportation expenses for the discharged
H-1B worker if she will return her home country or the country
of her last residence.
After Sept. 11, U.S. government has stepped up various
security procedures, including security checks for aliens applying
for non-immigrant visas from American consulates overseas. The
normal security check can run from a few days to a few weeks.
In some instances, increased security procedures are necessary
under the current intense circumstances. But there lies some risk
of overreaching. In Mr. Chen's case, he has already waited for
more than three months. Our advice is that when you finally choose
to go back to your home country to apply visa for reentry purpose,
please take into consideration the extra time needed for the security
check. If the security check seems to be pending "indefinitely"
for review, please stay cool. Don't harass your employer in US
because your boss in most cases can terminate the employment without
offering you any severance package.
Another piece of advice is that you can try to apply
for other kind of non-immigration visa to expedite processing
time of your application for reentry. The most important point,
however, is that you always have more rights and more access to
legal relief when you are in US than when you are outside US.
As most people know, that's why so many people want to immigrate
to America.
