Slate: “When Adoption Stories Don’t Have Happy Endings”

Adam Crapser was adopted at age three from South Korea. His first adoptive family in the US “fought viciously and punished the children frequently,” and when Adam was nine, his adoptive parents decided they no longer wanted the children. They placed him in a foster home, separating him from his sister, and Adam ended up in Oregon with new adoptive parents Thomas and Dolly Crapser, who also reportedly abused him. According to Adam, among many other horrific things, Dolly Crapser “slammed the children’s heads against door frames and once hit him in the back of the head with a two-by-four after he woke her up from a nap.”    

Adam was thrown out from the Crapsers’ house when he was sixteen. When he broke into the house to retrieve items he brought from South Korea—a Bible and rubber shoes—he was arrested and spent more than two years in jail. After he was released he got in more trouble, including misdemeanors, assault, and unlawful firearms possession, among others. After he served his time he began to turn his life around, holding down jobs, marrying, and having kids. “I made a lot of mistakes in my life, and I’m not proud of it,” Crapser tells the New York Times. “I’ve learned a lot of lessons the hard way.”

There was, however, a major problem. Crapser wasn’t a US citizen, since neither his adoptive parents nor the adoption agency that brokered his arrival in the US had ever filed for his US citizenship. Citizenship was not automatic for international adoptees until 2001, and then only applied to adoptees born after February 27, 1983. Crapser was finally able to get his adoption paperwork and applied for a Green Card but the case triggered a Department of Homeland Security background investigation, which turned up his old convictions and a criminal record that made him subject to deportation.

Which is why on November 8 this month after spending months in immigration detention he was put on a plane and flown back to South Korea, likely never to return to America. He left behind his wife, children, and friends. Crapser is not the first international adoptee to be deported. Adoptees from all over the world, including Brazil, India, Mexico, Germany, and elsewhere have been returned to their birth countries when it was discovered they were not US citizens and had issues relating to their Green Card applications. The Adoptee Rights Campaign estimates that some 35,000 international adoptees, adopted before 2001, are thought to be without citizenship.

Maureen McCauley Evans, a parent of international adoptees, writes in Slate:

It’s tempting to say that Adam and other adoptees in his situation brought deportation on themselves and their families by committing crimes—certainly many in Congress take that position. But it misses the point. International adoptees were brought to America with the permission and oversight of the United States government. The deal was that they would be welcomed here, to have a brighter future as Americans for the rest of their lives…If we believe adoptees to be genuine members of American families, they do not deserve deportation. If we don’t believe they are genuine family members, then adoption loses its meaning and integrity. What’s more, the US loses its honor and breaks its promise to these legal immigrants adopted by US citizens.

A bill, called the Adoptee Citizenship Act, is designed to provide retroactive citizenship to international adoptees, but it has made slow progress through Congress, and its outcome doesn’t look promising.

Crapser was reunited with his mother in South Korea. The last time she saw him was when she left her three children at an orphanage after her husband left her and she was unable to afford raising the kids. “I missed them, especially when it rained or snowed or when the sky was overcast,” she tells the New York Times. “But the belief they were having a better life somewhere sustained me.” Crapser says: “I was told to be American. And I tried to fit in. I learned every piece of slang. I studied everything I could about American history. I was told to stop crying about my mom, my sister, Korea. I was told to be happy because I was an American.”

TIME: “US and Australia Might Be Close to a Deal on Refugee Swap”

The United States and Australia are arranging a deal to “swap” refugees from each country’s extraterritorial refugee centers. Australia has approximately 1,800 asylum seekers in camps on the islands of Nauru and Papua New Guinea, many of whom have fled conflict or extreme economic poverty from countries including Pakistan, Iraq, Iran, Sri Lanka, and Afghanistan. Critics have labeled these camps Australia’s “Guantanamo Bay,” and alleged that refugees have been mistreated in the camps. Australia announced at President Barack Obama’s global migration summit that it would exchange their own migrants for those in US-backed detention camps in Costa Rica.

The resettlement process will be administered with the United Nations refugee agency UNHCR, and US authorities will conduct their own assessment and review of refugees along with security checks. The need to resettle these refugees has become a priority for the Australian government because of Papua New Guinea’s order to close the Australian-run detention center and ruling stating that the refugees were held there illegally. Australia has a strict policy to never settle asylum seekers who arrive by sea, in order to deter human smugglers bringing over refugees to Australia by boat, typically from Indonesian ports. The refugee exchange with the US will be a way around this law, and will allow the government to deal with the refugees at these detention centers and potentially close them.   

Australian Prime Minister Malcolm Turnbull says that the responsibility to “stop the boats” has fallen to his government, and that this refugee swap wouldn’t be repeated or extended to asylum seekers not already in camps, although the Australian government has previously arranged with other foreign governments to accept asylum seekers. “Our priority is the resettlement of women, children and families. This will be an orderly process [and] it will not be rushed,” Turnbull says in the Wall Street Journal. 

UN Special Rapporteur on the Human Rights of Migrants Francois Crepeau, who says that refugees at the detention centers on Nauru have experienced cruel, inhuman, and degrading treatment or punishment, welcomes the refugee exchange with the US.  “We don’t know how it’s going to develop, but I certainly hope that it develops in a way that offers refugees and asylum seekers solutions, and if it succeeds at emptying Manus and Nauru, I think this will be a great achievement,” Crepeau tells reporters in Canberra, Australia.

The refugee agreement could potentially be opposed by President-elect Donald Trump, who during his campaign called for tighter immigration controls and spoke of banning Muslims from immigrating to the US. Mark Krikorian, executive director of the anti-immigration Center for Immigration Studies, predicts a "firestorm" of opposition from anti-immigration activists regarding the refugee exchange. "It's so difficult to justify," he tells Fairfax Media. "I don't expect any Republicans will defend it. I can't see a lot of Democrats defending it either. My sense is that when the word gets out on this, it'll be dead on arrival." Other governmental figures are more optimistic the deal will go through. Senior Australian government minister Christopher Pyne believes the deal can be finalized during Obama’s term. "There certainly is time—two and a half months is plenty of time—and if that's the case, it will be a great achievement for the Turnbull government," Pyne tells Nine Network television.

Regarding the pending deal, Amnesty International says in a statement that it is concerned about the lack of information provided by the Australian government around the timeline of the deal as the exact numbers of people who will be given the opportunity to settle in the US.

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

US Citizenship & Immigration Services (USCIS) has published a final rule to “modernize and improve” certain aspects of some employment-based nonimmigrant and immigrant visa programs. Proposed earlier this year, USCIS says these amended regulations will better “enable US employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.” The new rule is scheduled to go into effect on January 17, 2017. We will be discussing these changes, some of which are quite complex, in depth in a later post. In the meantime, however, here is a summary of the highlights.

The new rule will:

  • Establish two grace periods of up to ten days each for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide “a reasonable amount of time” for them to prepare to begin employment in the US and afterwards to depart the country or take actions to extend, change, or otherwise maintain lawful status. Similar grace periods are currently available to individuals with H-1B, O, and P classification, and extending a similar grace period will promote “stability and flexibility” for highly-skilled workers;
  • Establish a grace period available to certain individuals (and their dependents) in high-skilled nonimmigrant classifications, including H-1B, H-1B1, O-1, E-1, E-2, E-3, L-1, and TN classifications, for up to sixty consecutive days during each period of petition validity (or other authorized validity period) when their work ceases. This grace period will enable these nonimmigrant workers to seek new nonimmigrant employment and extend or change their nonimmigrant status while remaining in the US;
  • Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence;
  • Streamline the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status, increase job portability, and provide stability and flexibility for workers to better enable US employers to employ and retain highly-skilled workers who are beneficiaries of an employment-based immigrant visa (Form I-140) petitions, also while allowing these workers to accept promotions, change positions within the same company, change employers, and seek other employment;
  • Improve job portability for certain approved I-140 beneficiaries by maintaining a petition’s validity under certain circumstances “despite an employer’s withdrawal of the approved petition or the termination of the employer’s business."
  • Allow certain high-skilled individuals in the US under E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization if:
    • They are the principal beneficiaries of an approved I-140 petition;
    • An immigrant visa is not authorized for issuance for their priority date; and
    • They can demonstrate that there are “compelling circumstances” to justify DHS issuing an EAD card in its discretion;
  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including providing H-1B status beyond the standard six year period of admission, determining cap exemptions, counting workers under the H-1B cap, portability, licensure requirements, and protections for whistleblowers; and
  • Clarify and improve DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers in order to enhance USCIS’ consistency in adjudication.

Importantly, the final rule will automatically extend the employment authorization and validity of employment authorization documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs, sure to be welcome news for EAD holders. Closely-related, the rule would also eliminate the regulatory provision that requires USCIS to adjudicate the application for employment application within ninety days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the ninety-day timeframe. As mentioned, a more thorough and in-depth review of these changes are forthcoming on this blog. Stay tuned.

A Very Autumnal London

Near Cavendish Square, London.

Near Cavendish Square, London.

After the excitement of the American election season, I traveled to London (which is still dealing with the aftershocks of our own unexpected pro-Brexit vote) for work meetings. Today I enjoyed a very autumnal walk around Cavendish Square in the West End of London (okay, okay, it's true, I was just looking for the Pret). Cavendish Square, among other notable facts, appears in Robert Louis Stevenson's novel Dr Jekyll and Mr Hyde as the home of Dr Lanyon, Jekyll's former best friend. The Embassy of East Timor is also in the Square. I could have found out many more interesting facts about this square but it was getting cold. And my favorite Pret sandwich awaited...

5 Immigration-Related Tips for When a Company or Foreign National Moves or Changes Work Locations

In today’s increasingly mobile world, companies and workers are in constant motion (including, very recently, our firm which moved from the Meatpacking District to Chelsea at the beginning of this month). It is very common for companies and foreign nationals to move across international borders, either temporarily or permanently, and also for companies and foreign nationals to move within countries from city to city. Such moves impact pending immigration cases as well as existing visas. Here are our top five immigration-related tips for foreign nationals and companies to consider when making any permanent move in location.

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