Watch Your Language and Your Appearance

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.

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