On February 8, 2018 it was reported that Mr. Syed Ahmed Jamal, a professor and father of three who had lived in the US for three decades, had been arrested on the lawn of his home in Lawrence, Kansas by US Immigration and Customs Enforcement on January 24, 2018, as he was about to take his daughter to school.

The arrest came as a great shock to Mr. Jamal’s family. It is reported that Mr. Jamal first lawfully entered the US in the 1980s from his native Bangladesh and held a number of visas during his stay in the US, including an F-1 student visa for his graduate and PhD studies and a H-1B Specialty Occupation visa.

Mr. Jamal reportedly applied to change his status from an H-1B Specialty Occupation visa to an F-1 student visa prior to 2011 and was approved. However, it is alleged that the USCIS subsequently revoked the approval, on the basis that Mr. Jamal’s H-1B visa had already been revoked by his employer prior to the date his application to change status was filed, unbeknownst to Mr. Jamal.  The USCIS stated that Mr. Jamal’s application for change of status had been approved in error. Since Mr. Jamal was not – unbeknownst to him – in legal status at the time his application for change of status was filed, it was denied.

At the time of the decision, Mr. Jamal was protected by the Obama Administration’s policy of prosecutorial discretion in respect of deportation priorities, whereby law-abiding immigrants were permitted to stay in the US on a humanitarian basis, if they were not deemed to pose a threat to the security of the United States, had strong family or community ties to the US or had resided in the US for a lengthy period of time. The policy of prosecutorial discretion was rescinded by the Trump Administration, which led to the arrest of Mr. Jamal.

 

Pathways to US Citizenship

Sadly, Mr. Jamal’s case highlights a fundamental flaw in the US immigration system. When one’s immigration status is tied to a very specific set of circumstances (for example, employment),  it is not uncommon for someone to spend several years living and working in the US, contributing to US society through taxation and the creation of wealth and even raise a family in the US, only for the American Dream to come crashing down as soon as their circumstances change (for example, the employment ends). Indeed, it is not uncommon to hear reports of individuals being required to depart the US after several decades of continuous lawful presence in the US, due to an unsuccessful attempt to seek renewal of their visa or change of status.

Many countries around the world, including the UK, have a direct pathway to citizenship based on a period of continuous lawful presence in the country. In the UK, for example, one may apply for indefinite leave to remain after 5 years of continuous lawful presence in the UK. Unfortunately, the US does not have such a pathway to citizenship. If one wishes to acquire US citizenship, one must find a specific and unique path to citizenship, based on their current circumstances.  In many cases, visa holders may find there are no further pathways available to them – even after several decades of living, working and raising a family in the US – which results in a requirement to depart the US.

 

The Age Old Problem of “Ageing Out”

The problems associated with the lack of a direct pathway to US citizenship based on a period of continuous lawful presence are compounded by the issue of “ageing out”.

If an individual successfully obtains an E-1 Treaty Trader or E-2 Treaty Investor visa, their spouses and any unmarried children under the age of 21 may obtain derivative, dependent visas, to enable them to enter the US with the principal E-1 or E-2 visa holder.

Although E-1 Treaty Trader and E-2 Treaty Investor visas are non-immigrant visas, they are continuously renewable. In practice, this means an individual can live and work in the US for several decades, creating jobs and generating wealth within local communities, without ever holding an immigrant visa. The children of E-1 and E-2 visa holders – who may have been young when they first arrived in the US on a derivative dependent visa  – may grow-up in the US, attend school in the US and build a network of friends in the US. For many children of E-1 and E-2 visa holders, the US is the only country they have ever known.

However, despite growing up in the US and having little or no recollection of life prior to their arrival in the US, the children of E-1 and E-2 visa holders have no permanent right to remain in the US and must depart the US prior to their 21st birthday due to their “ageing out” – even if their mother and father continue to hold valid E-1 or E-2 visas. Indeed, it is sadly not uncommon for the children of E-1 and E-2 visa holders to be forced to relocate to the UK – a country which may be totally alien to them after spending virtually all of their life in the US – alone, without no support network in place and no employment prospects.

It cannot be right that individuals who have grown up in the US or have spent several decades lawfully present in the US and making a valuable contribution to the US economy and society have no direct pathway to US citizenship, based on their period of continuous lawful presence. At Davies Legal Immigration, we hope this situation will be reviewed by the Trump Administration as a matter of urgency and appropriate legal reforms proposed, to prevent any further injustice.

Davies Legal Immigration

At Davies Legal Immigration, we provide advice and representation in connection with all immigrant and non-immigrant visa categories, spanning matters of family, employment and business immigration. We provide a diligent, comprehensive service, innovative immigration solutions and undertake to keep you informed. Call now for more information about our services and receive a free, no obligation quote.

Published: 16th February 2018