August 6, 2008
An immigration story
A friend sends me this, which I urge you to read in full (the point of the story is in the details).
Ex-UI researcher faces deportation
Katarzyna Dziewanowska grew up in the “gray communist life” of Poland. But it was in America where she found a truly nightmarish experience with a bureaucracy. After nearly 14 years as a researcher at the University of Idaho, Dziewanowska has been denied permanent residency by U.S. immigration officials, who say she worked without authorization for eight months. She did that, she and her attorneys say, on the advice of the UI, and she quit working for a time when the university advised her to do so.
But her appeals have fallen on deaf ears with immigration officials. She’d like to take the case before an immigration judge, but that could take months or years. In the meantime, she can’t work and has no legal residency status. Because it is a family application, her husband – a UI researcher studying a promising treatment of retroviruses – can no longer receive grants. Her son can’t apply for a free-tuition program through his employer.
“She has no legal status,” said Michael Cherasia, her former attorney. “She’s not able to legally work. Certainly she can’t continue to do her research. (Agents) could come to her door any morning, arrest her, detain her and ship her out of the country.”
As I say, read the whole thing. Look at what she was researching. Look at her standing in her field. Look at why she now faces deportation.
One thing to say, no doubt, is that Dziewanowska broke the rules. By their lights, the authorities did nothing improper. Also, it seems odd to me that she and more particularly her employer did not see fit to hire a lawyer until it was too late. This is America. You do nothing without a lawyer. But this does not subtract much from the insane disproportion of the outcome–from her point of view, from her family’s, and not least from that of the US. What made me groan out loud was the meaningless glitch that ordained it: an application was rejected twice because a photo was not up to specification, in the second case because of glare on a lens of her glasses. From this, the rest followed. Two “rejections”, no appeal, life squashed. You have a problem with that?
that is some serious BS. being an immigrant myself i feel very strongly about this. usa’s immigration policy is broken- it does not value intellect, labor needs or skill- not to mention the crippling bureaucracy and incompetence.
im glad this bit of news made the FT- please check out my facebook page on the matter.
http://www.facebook.com/group.php?gid=22319428469
Posted by: yubi | August 6th, 2008 at 4:45 pm | Report this commentObviously, this is not a legal advice column and, even if it were, it would be inappropriate for me to give any such advice because I am not familiar with any of the details of her case.
But, just as a matter of general information, not legal advice, someone in the same position as Ms. Dziewanowska might be able to resolve her problem by applying for H-1B temporary skilled worker classification, something that can be approved in many cases in as little as two weeks, and then making a brief trip to the US embassy in Poland to get an H-1B visa stamp. Her husband would, in that case, be eligible for a dependent’s H-4 visa, though this would not allow him to work.
With the help of an experienced immigration lawyer, it may be possible to overcome the normally serious obstacles of being out of status, having been refused a green card and, above all, the unconscionable shortage of H-1B visas (see my FT letter of June 6, 2008).
Armed with the legal status of an H-1B visa, anyone who is having problems with a green card has ample time to resolve them while still being able to work.
Therefore, while there is no doubt that the immigration officers are seriously at fault for their typical rigidity and shortsightedness, anyone who tries to deal with immigration without a qualified lawyer has only himself or herself to blame.
I have to reiterate that the above is only a general comment, not legal advice. But I can say one thing without fear of overstepping. Find a good lawyer, Ms. Dziewanowka, and do it fast.
Roger Algase
Posted by: algasema | August 6th, 2008 at 5:41 pm | Report this commentHaving read the entire article that Clive Crook refers to, I notice that the Polish woman involved also seems to have had another kind of temporary legal visa at one point, one as an outstanding researcher. A capable immigration lawyer might be able to do something with that too, given a modicum of cooperation from the University, or possibly even without it.
Indeed, the more I read about this case, the more options there appear to be that someone in this situation might have, without having to risk deportation by going to immigration court. Again, these are only general comments, not legal advice.
Yes, America definitely needs more enlightened immigration laws and less bureaucratic procedures. But, in the meantime, the importance of getting proper legal advice right from the start, instead of relying on one’s own ideas or those of untrained, often shockingly ignorant school officials, cannot be emphasized too strongly.
As Mr. Crook mentions, no one can do anything in this country without a good lawyer. This is especially true for foreign citizens who want to stay here.
Posted by: algasema | August 6th, 2008 at 6:49 pm | Report this commentThe situation Ms. [Dr.?] Dziewanowska and her husband find themselves in is indeed very sad. It sounds very unfair and it is a loss for the US.
The source article notes that MS. Dziewanowska was born in 1943, which should put her age around 65 years [I myself am 68].
Though support may be extended, and the rules may be bent, for younger researchers with high potential for the future, famous mature researchers or high profile politically connected individuals, I suspect that, whatever their scientific achievements, the University regards Ms. & Mr. D. as being ‘low profile’ , ‘beyond their prime’ and not worth the effort of sustained support.
I hope the suggestion by Roger Algase gets passed on to this couple and that they succeed in their efforts to remain in the US. I fear that, even if the couple succeeds in remaining in the US, they may face other obstacles in the educational system.
How strange that unskilled migrant workers can enter the US seemingly at will and highly skilled individuals should face deportation.
Clive, thank you for highlighting the plight of this couple. I do wish them the very best.
Posted by: J Llewellyn | August 7th, 2008 at 3:23 am | Report this commentThe US needs skilled and “unskilled” workers. Skilled and “unskilled” workers need the US Market.
It is not uncommon at all for a cab-driver to have a PhD in Economics, or a gardener to be a certified accountant, as the US market needs workers at all levels, despite the regulatory hurdles needed to be a University researcher, accountant etc.
The system needs to work for all workers and employers, not just for those who pay for expensive lawyers or ignore the rules.
JBP
Posted by: John Powers | August 7th, 2008 at 1:39 pm | Report this commentOne further comment: It would seem that the fears of deportation in a case like the above are highly exaggerated.
There are two ways applying for a green card: One is to “adjust status” in the US. The other is to apply for an “immigrant visa” which is the equivalent of a green card, (as opposed the the official, but highly confusing term “non-immigrant visa” that applies to student visas, visitor’s visas, temporary work visas, etc.).
Applying to “adjust status” in the US requires a spotless immigration history of never having been in this country illegally, even for one day.
This requirement does not apply to applicants seeking an immigrant visa at a US consular office overseas, however. A history of having worked in this country illegally is normally no obstacle to being approved, unless there are other factors, such have having been “unlawfully present” for more than 180 days.
This is a highly technical term with a much more restricted meaning than “out of status” (illegal), and probably would not apply to someone who held a legal work visa for many years, as the researcher described in the above article evidently did.
All this is just a technical way of saying that she does not appear to have been ruled ineligible for a green card per se, but merely that she might have applied for it in the wrong place, namely the US instead of in Poland.
If this analysis accords with the actual facts of the case, something I am not privy to, she would most likely be able to refile her green card case at the US embassy in Warsaw, while still continuing to live and work in the US with one of the temporary visas alluded to in my above posts (H-1 temporary worker or O-1 extraordinary ability worker).
I am not mentioning the above in order to give legal advice, which, as I have emphasized in my previous posts, this is not, but to make an entirely different point. It is easy to get worked up about the “hopeless” immigration difficulties faced by highly accomplished, educated people, even when checking into the facts more carefully might show that these problems are far from hopeless and may be relatively easy to solve with appropriate professional advice.
But what we hear about much less are the really hopeless cases, hundreds of thousands, if not millions, of them, involving people who are not highly educated or distinguished, but who are still performing important functions in the US. These immigrants may be construction workers, meat packers, agricultural workers, hospitality workers, and, above all, consumers and, yes, responsible, mortgage-paying homeowners. But they have no legal status because our laws have no place for them and our society resents their languages and/or skin colors.
These immigrants, mainly from Latin America but from many other places as well, are subject to being rounded up in pre-dawn raids, locked up in inhuman conditions where they may be denied urgent medical attention, separated from their US citizen or lawful permanent resident spouses and young children, summarily deported after (in some reported cases) being forcibly drugged before being put on a plane home - all of this in the name of “immigration enforcement”.
This is something that would no doubt have met with the approval of the good citizens of 17th century Salem, Massachusetts, who were just as opposed to showing any leniency toward witches as most Americans are these days to granting “amnesty” for “illegal aliens”. This, I would suggest, is the real immigration story.
Roger Algase
Posted by: algasema | August 7th, 2008 at 2:10 pm | Report this commentA final comment: I have just read John Powers’ post. For once, I entirely agree with him (though I suppose that it is against my own interest to do so, being an “expensive lawyer” myself).
Roger Algase
Posted by: algasema | August 7th, 2008 at 2:18 pm | Report this commentAs an immigrant I can vouch for the U.S.authorities which in comparison to Britain are head and shoulders above their peers.Getting a visa to the U.S. is for most people the realisation of a dream fulfilled.Do you have any idea of the waiting list to get an immigration visa to the U.S.?Anyone who takes their visa status as casually as this lady did should pay the penalty.I’m sorry but this article should never have been published write instead about the poor south of the border who perish in their attempt to get to America.
Posted by: Sumant Rawat | August 7th, 2008 at 6:16 pm | Report this commentSounds like she came in on an O-1 visa or maybe J-1 applied on an I-765 for EAD and kept on renewing it until she had the problem, during which she applied for change of status to EB-1 which was turned down because someone at UI probably put down on the I-140 petition or the labour certification her dates of work which didn’t tally with the expiry date of her EAD card.
This isn’t her fault, it’s the employer’s fault for being careless with the paperwork as they file the petition, but in fairness to them it’s a very complex system and it’s very easy to put down things like this incorrectly. Plus you’re at the mercy of morons at Kinko’s who take the picture incorrectly.
The problem is that the people at the service centre dealing with the application are just bureaucrats doing 2+2 = 4 type work, if 2+2 = 3 then they refuse to process it. Needs to be more discretion in the hands of the bureaucrats rather than getting courts involved.
Posted by: Steve | August 7th, 2008 at 7:24 pm | Report this commentJust let her leave. She has no right to be here. i will not miss her.
Posted by: John | August 7th, 2008 at 7:39 pm | Report this commentIf Obama is elected, millions of illegal aliens may be given amnesty. I wonder whether, since Katarzyna has apparently always been resident legally in the US, she would be ineligible for amnesty and would fall through the cracks once again.
Posted by: Tory Torrison | August 7th, 2008 at 10:22 pm | Report this commentPublicity should help to resolve this really preposterous situation. Good intervention of sorts on your part, Clive!
Posted by: James Canning Seattle WA | August 8th, 2008 at 12:25 am | Report this commentI have mixed feelings about this case.
Without knowing what the real deal is, it certainly sounds like yet another example of someone getting caught up in the nightmare bureaucracy which we use for immigration cases.
However. . .
There is a major problem in this county with immigration fraud, especially involving the importation of Cheap Slave Labour under H1-B. Speaking for myself, I would prefer to see no immigration whatsoever rather than to keep the current system.
While I feel that this woman (and her family) could probably be classified as collateral damage, my family and I have been severely harmed by the H1-B visa program. I have been injured by an abuser-friendly immigration policy, and so am in favor of tightening things up even more.
The political reality is that nobody really cares about Computer Engineers losing their jobs due to H1-B visas, and the political reality is that the only way to kill off H1-B is to eliminate all immigration into this country. So be it.
-dave chapman
Posted by: Dave Chapman | August 8th, 2008 at 2:28 am | Report this commentPalo Alto, California
Be careful. By criticizing ICE you may be labeled as an Unlawful Enemy Combatant and shipped off to some place like Diego Garcia to be questioned for a few years. At least if your are a British subject it won’t be illegal to hold you there.
Posted by: paul94611 | August 8th, 2008 at 3:54 am | Report this commentDave Chapman’s comment is the best possible explanation of why the Polish researcher is having such a difficult time with an overzealous immigration bureaucracy. Not only lower level immigration officials, but those at the very top (not to mention at least one formerly pro-immigration candidate who has since “recanted”, John McCain) know which way the immigration winds are blowing. A badly informed American public is being whipped up into an anti-immigrant frenzy by demagogic politicians, radio talk show hosts and cable TV anchors who are finding that exploiting prejudice and intolerance is the way to fame and fortune.
Just as so many Americans believed only a few short years ago that Saddam Hussein had ordered the 8/11 attacks and was about to unleash a mushroom cloud over this country, millions of people today seriously believe in the myths of “H-1B slave labor” (despite that fact that some H-1B workers are earning six figure salaries) and of the “invasion” by less skilled, mainly Latino workers (who might in fact cause the US economy to collapse if they all went back to their countries tomorrow).
If Mr. Chapman were interested in learning the truth about H-1B, or about immigration in general, he could start by reading my letter mentioned in one of my above posts, and then perhaps talk with the hiring officers of any one of thousands of US companies who have been unable to find Americans with enough technical, international business, foreign language, or other specialty skills to fill their company’s needs, and who have used the H-1B program has a last resort, despite the exorbitant filing fees and danger of heavy fines if they violate any one of the regulations, running to more than 150 pages, that prohibit paying H-1B workers below the prevailing wage.
But the truth is of little interest to those who want to cut off immigration, despite the enormity of the human toll and devastation to our economy and society that it would cause. It is much easier just to fall back on the same kind of mindless prejudice that regards Indian computer professionals as “job-stealers” and Mexican immigrants as “criminals”, just as a eighty or a hundred years ago, Chinese immigrants were considered racially unfit to become Americans, Jewish immigrants were feared as plotting to take over the world, and Italian immigrants were hated as “anarchists” or alleged mafia members.
Having said the above, I will acknowledge that there may be some American computer professionals who may have lost their jobs to foreign H-1B workers. It is also possible that the H-1B program might well be fine-tuned to require more testing of the US labor market in the computer field before hiring H-1B workers in this industry, which is only one of many others benefiting from the H-1B program.
But someone like Mr. Chapman, who evidently lives in Silicon Valley, should know better than anyone else how vital foreign computer workers have been to the US computer industry. He might well also ask himself if it is really good for America when Microsoft, for example, is forced to move to Canada because it is so difficult to hire foreign workers in the US.
He might also ask himself whether the current woes of Silicon Valley are not just a classic example of boom and bust, as well as being at least partly due to offshore outsourcing. After all, computer salaries are a good deal cheaper in Bangalore. But this has nothing to do with an H-1B program in the US which, in any event, is limited to 65,000 workers per year in a country of 300 million people.
Roger Algase
Posted by: algasema | August 8th, 2008 at 10:14 am | Report this commentThis is why I don’t work for the government; I could not in good conscience enforce their rules.
On IT employment, nobody believe for a moment this fantasy that we have a labor shortage in the US. IT employment overall is down 500,000 in the last year, and compensation, which in a shortage should be increasing, has been stuck at about the same level for years as well.
There haven’t been a significant number of entry-level positions in many years, and it’s nearly impossible to build experience these days without some major connections. Anecdotally I’ve known several people who dropped out of IT to work in other fields with more opportunity. A gas station near my house employed someone with a CompSci Ph.D. for some time.
Dave Chapman: H1-B’s your scapegoat, but not the source of your problems. You haven’t been injured by the policy, you’ve been injured by the abusers–employers who are abusive to their staff in order to line their pockets. Get rid of the H1-B, and they’ll likely contract out to somewhere overseas anyway if they think it’s cheaper. If not, and they do hire you back, they’ll treat you as badly as they can get away with, and as you’ve already seen, it’s not like you can walk off to some other job as your lesiure.
Posted by: nakajoe | August 8th, 2008 at 9:20 pm | Report this commentAs far as IT is concerned, it might not be unreasonable to split it out from all the other H-1B specialties and put it in a visa category of its own, as was done until recently with nurses, who everyone agrees are in short supply (for which reason it is incomprehensible that the nurse visa was abolished and the nurses were thrown back into the general H-1B pot).
Then, the IT people could be made subject to some sort of a reasonable US labor market test, and there would doubtless be enough H-1B visas to go around for everybody else, so that foreign professionals in fields other than IT would no longer have to roll the dice to find out if they can get a visa or not.
Then we could also find out if all the horror stories about lack of US jobs in IT are really true. In the meantime, instead of bashing US employers, it would make more sense to put in some controls over the Indian companies that have created a whole industry of bringing IT people over here.
I heard that just one Indian company, Tata, had or has some forty thousand of its own IT employees in the US on H-1B visas. If this is true, the system needs to be changed.
Even though I am an H-1B lawyer, I do not believe that this program was meant to be the private playground for a few big companies. But if it is, how would that be different from any other sector of the US economy?
Roger Algase
Posted by: algasema | August 8th, 2008 at 11:42 pm | Report this commentAmerica’s immigration system has long been a national disgrace.
It is the main contact that millions of foreigners have with the U.S. government, but it’s almost Soviet bureaucracy and paranoia is the very opposite of American values. Aside from the bad public relations, the barriers it creates does not serve America well in a world where crossing borders in a common part of both business and science.
Posted by: Mark R | August 13th, 2008 at 8:06 pm | Report this commentI am no fan of unsympathetic immigration officers, but they (or their superiors) are frequently just responding to what they perceive as poisonous anti-immigrant hostility among the general public. For some reason, this seems to be directed even more against educated, hardworking legal immigrants with valuable skills who are making every effort to follow the law than it is against less skilled, illegal immigrants.
For a real horror story, that makes the one cited by Clive Crook look like a children’s bedtime “lived happily ever after” story by comparison, check today’s New York Times which, I understand, has a story about an H-1B professional who was discovered as having briefly overstayed a previous visa at his green card interview.
He was promptly thrown into an immigration prison and moved around from jail to jail whenever his family or lawyers tried to contact or visit him (a very common occurrence).
Finally, he died in torment in jail from terminal cancer after being refused even the most basic medical attention, despite numerous requests from himself and his family. This is far from being the first such case. The Washington Post recently did a four part series on this. If I recall correctly, over 60 detainees have died recently in immigration custody.
They might have been better off at Abu Ghraib or Guantanamo.
Posted by: algasema | August 13th, 2008 at 11:08 pm | Report this comment