The recent arrest of Dr. Lukasz Niec by ICE highlights that many business leaders are unfamiliar with risks associated with immigration status, and it might be worth sharing a few insights.
Historically, the american society in general has distinguished between illegal immigrants (that sneak in or overstay) and legal immigrants, that come on a valid visa and honor its terms, and generally, legal immigrants have been treated with parity to citizens. Our current first lady, for example is a legal immigrant. In fact, most people don’t distinguish between non-immigrant and immigrant visa types, and far less can appreciate that there are actually 47 different visa types issued by the US government. All visa’s have expiry terms, and the end stage for people who want to live in US permanently is to become a Legal Permanent Resident (LPR, commonly known as Green Card) and if so desired, eventually a naturalized citizen. Until recently, the only practical difference between a LPR and a naturalized citizen was that a LPR does not have the right to vote. Other than that, a LPR paid taxes like a citizen, could change jobs and had all the other rights of a citizen. Naturalized citizens, have all the rights and privileges of citizens, and most people don’t think there is any difference between a natural born citizen or a naturalized citizen. All of that began to change with the first travel ban that was enforced.
Legal Permanent Residents Can be Deported
For the first time ever, LPRs traveling from specific countries were denied entry to US in the first travel ban. Previously, LPRs were sometimes denied entry if they were gone long enough for US to assume that they abandoned permanent residence. Administration later clarified that it was not their intent to ban the LPRs and fairly quickly all LPRs were able to re-enter US. However, it brought to surface a clear fact, that a LPR can be denied entry, and since then, as we have seen, an LPR can be deported. As most people would expect, an immigrant that is convicted of violent crimes can be deported, and many would argue, should be deported. The unique immigrant based history of US, has created a history of Supreme Court decisions that afford many protections to people present on US soil, in fact, that was the primary reason why Guantanamo Bay detention center was created, as bringing the detainees on US soil would have afforded them protections that the US was unwilling to give. ICE and its predecessor organizations have always taken an approach in the past that focused mostly on significant felonious crimes as a basis for deportation. Dr. Niec’s case is interesting as ICE is arguing crimes of moral turpitude.
Moral Turpitude as a New Risk
Human beings are fallible. We have seen the CEO of HP resign for fudging expense reports to cover an affair, a US presidential candidate withdraw from election, various Senators and Congressmen resign for what we would call crimes of moral turpitude, which include intent to defraud, adultery, lewdness, bigamy, bribery, sodomy, malicious destruction of property, embezzlement, forgery, theft, corruption of minors and many other things that people don’t think belong in criminal statutes. However, most of these are real statutory crimes. Each of these (there is a list published by State Department) is a ground for denying a visa, and now, grounds for deportation. Membership in Ashley Madison or following a local custom in Nigeria or Asia is not what most people think of as grounds for deportation. What is also important is that these crimes are defined by US definitions, regardless of where they may happen. So while “greasing the palm” might be a common practice in many places, US immigrants are deportable for engaging in that practice abroad. Many immigrants believe that once naturalized, these risks disappear, as they then have all the same protections of citizens. While that is technically true, there are some risks that don’t get any attention.
De-Naturalization is a Real Thing!
Most of us have never heard that citizenship can be taken back. A natural born citizen’s citizenship cannot be taken back, and a natural born or a naturalized citizen cannot be deported. However, a naturalized citizen can be de-natularized, and then can be deported. The basis for denaturalization are not that common, but one in particular is a challenge for executives. “Refusal to Testify for Congress” is a basis for denaturalization. Consider Satya Nadella, the CEO of Microsoft, or Sundar Pichai, both naturalized citizens. So while Larry Ellison can refuse to testify in front of Congress, MS and Google have to seriously consider the possibility of denaturalization of their CEOs. Fortunately, we in US have never done such a thing, however, it is possible and would be legal. In fact, when a BP JV with AAR (TNK-BP) got into a conflict with Russian Oligarchs, BP was forced to renegotiate its position, when the visa of Robert Dudley, British CEO of the JV was revoked and he had to leave the country in 48 hours. Few weeks later, a Mikhail Fridman, CEO of AAA was named the CEO of TNK-BP. Bob Dudley today runs BP conglomerate.
Other grounds of de-naturalization include falsification or concealment of relevant facts. So, if in college, one was part of a socialist group or a group that US later considered a communist group, and one had no other dealings with that group after college days, that would be a material concealment if not disclosed on the visa application, which has specific questions about communist groups. Same is also true for terror organizations, and gang memberships, but most people understand that. So, while Mark Wahlberg can have a successful career after renouncing his life of crime, an immigrant would not necessarily have the same opportunity. A lot of criminal law attorneys are having to learn about immigration laws, as many of the plea bargains that they would see as appropriate solutions may open a whole new jeopardy for an immigrant client.
If military service was the basis for LPR or naturalization, a dishonorable discharge from military within five years can also lead to de-naturalization. This may not be a big consideration in business setting, as leadership roles are rarely filled with freshly discharged immigrants. Researchers are another story though. A vast majority of researchers in US are on immigrant or non-immigrant visas of some kind. That is a natural outcome of the fact that graduate schools have a large percentage of foreign students, many of which choose to stay. US as a country has incentive to attract that trained talent, and it aligns with a merit based approach to immigration.
Companies that rely on R&D should consider the risks associated with loosing key researchers due to travel bans, or visa mandates. As administrative delays pile up due to uncertainty, new risk arise for those researchers to be “out of status”. That is particularly undefined area, with large amount of administrative discretion. The visa framework was defined with certain timeline expectations. H1 visas, for example were capped to two renewals for three years each, giving a total time to process green card of six years, which was more than enough when green card processing took two years or less. Now that the green card processing can take eight years or more, that creates several challenges, where an applicant can go out of status after six years while still waiting for green card. For now, the agency extends the work authorization, and the applicants stay legal. However, it can easily change its policy, and then the worker must return to home country and wait there for the processing to finish.
Authorization and status, are also not the same thing. One may be authorized, and yet be out of status. That has to do with the fact that Visa is a Sate Department function, and immigration status is assigned by DHS/INS. One way of understanding is a hotel stay and room key. You may have the same room booked for two nights on two separate reservations, you must stop at the front desk to get a new key or get your key programmed after the first night. In the same way, many immigrants have to travel out of country to get a new stamp, if the old visa stamp expires, while they are still in status.
The purpose of this article is not to give legal advise, but rather to create a better understanding and awareness of current state and implications of immigration status. Each situation may be unique, due to facts specific to a case. Please speak to a lawyer about your specific case to get specific legal advise.
A version of this article was also published on LinkedIn, along with other articles that offer management insights.
https://www.linkedin.com/pulse/new-risk-immigrant-executives-sanjay-chadha/