Proceed With Caution – Conforming With Immigration Regulations

Entering the offices of Proskauer Rose LLP in Newark, N.J., I am greeted personally by David Grunblatt, co-head of the Immigration and Nationality Group in the Labor and Employment Law Department. Mr. Grunblatt specializes in helping clients facilitate the hiring and transfer of foreign nationals and international personnel, and personal immigration issues as well. Mr. Grunblatt, who lectures and writes on immigration law, is respected as one of the leading experts in this field. He shared some valuable insights on how recent changes in policy may affect members of the community.

Before we get into specifics, please explain the basic regulations and procedures for a foreign national who wishes to visit the United States.

Let’s begin with basic entry into the United States. The fundamental principle is that the burden of proof that you are entitled to come into the country is upon you. In most instances, if you want to come in for any reason — to visit, to work — you must fit a certain category, you must get permission, which may include applying for a visa, and then you have to convince the authorities at the port of entry that you are indeed coming in for the stated purpose.

Let’s take a simple scenario: I’m an Israeli who wants to come to the United States for a wedding. The first thing I must do is go to the American Embassy and apply for a visitor’s visa, where I’ll have to fill out a lengthy online application, giving my background; go for an interview; and document the reason for my visit. In addition, the presumption is that I’m not coming back, and I must prove that I’m coming back. If there is any issue, they might deny the visa. So, if you are young and single, you could be profiled as being high risk of not returning.

Even once you get the visa, it does not end there. When you land at the airport, the customs official also makes a determination. Okay, you have the visa, but how do I know that on this trip you are going to do what you are supposed to do? “I see that you have eight pieces of luggage. I see that you were here for three months just four months ago. You are 25 years old; it doesn’t look to me that you are just a visitor here.” You have the right to a hearing, but they have the right to challenge your entry into the United States.

Furthermore, when you are in the country, you must comply with the terms of your entry, and if you are caught not complying, woe to you the next time you try to enter.

There are certain exceptions where the person does not have to go to the American embassy to get a visa. For example, Canadians do not have to get a visa in most instances, and the decision is made at the border. In addition, British nationals and most Europeans, residents of some 30 or 40 other countries, are eligible for the Visa Waiver Program, also known as ESTA (Electronic System for Travel Authorization). You can go online to do a simple registration and they do a quick security check. This category comes with restrictions that regular visas don’t have. It is limited to 90 days on any trip, and you can’t get an extension for any reason. Even if you are hospitalized, you cannot get an extension or change it in any way; you may get a temporary stay for up to 30 days, but technically, you are illegal during that time.

If you want to change it, you would have to depart to a noncontiguous country and re-enter from there. Now, if you had been in America for 85 days, and then apply a few days later to re-enter, it looks highly suspicious, and you may be flagged.

This is the basic framework of coming into the United States for all visas. If you are coming on a student visa, you must be enrolled in a school that is authorized to take in foreign students. You then go into the embassy and apply for the visa. Certain types of workers, like religious workers, must file a petition and it gets approved, and then you go to the embassy and apply for the visa.

What kinds of difficulties might one encounter?

One example of what they are doing now, which they did not do in the past, is to ask you for your smartphone and insist that you give them your password. Every communication you had, whether a call, text or email, is stored on the phone. If there is some communication eight months ago that you were thinking of coming to America to work, it might be stored there on the phone. There are regulations as to when they are permitted to do this, and the officer is limited to what is actually on the phone, but it is quite difficult to say “no” to an immigration officer when you are alone with him in a room.

We recently had a case of someone who was stopped at a major metropolitan airport. It was a girl who came to the U.S. several times for shidduchim, and she was returning to the U.S. The officers were suspicious of the situation and asked to see her smartphone. They found a text where a friend told her she was running a pop-up store for a few days and offered her $500 to help her for three days. In the mind of a 20-year-old, she probably did not even consider this as work. The authorities, however, ruled that she had worked here illegally on a visitor’s visa, and they put her on a plane back to where she came from. Whatever we tried for her was rejected, since she had violated the rule.

In the past, the embassy may have been more lenient about issuing a new visa, but today they are afraid to exercise discretion that will make them appear lenient.

This would apply to a yeshivah bachur helping sell esrogim before Sukkos, or working in the canteen at camp.

Exactly! It might cause them serious problems at the border. A while back, I had an amusing story with a 15-year-old girl who was staying with family. During the green card interview, they asked her, “Have you ever worked here?” She answered that at times she did some babysitting for her host family on Motzoei Shabbos. Now, there is no rule that says that de minimis doesn’t count. If the officer wanted to, he could have made an issue of it, but instead he said, “I didn’t hear that,” and ignored it. Today, that may be a problem.

How does this affect the members of our community involved in shidduchim?

Well, many times young men or women coming here for shidduchim do not have a specific plan while awaiting their basherte. The boys might be in yeshivah, but the girls are not. They come for two or three months, they leave, and come back a little while later. Technically there is nothing wrong with saying you are coming for a shidduch, since you may get married and move to Israel or England. However, they will assume that you are looking for an American in order to be allowed to live here.

Try explaining to a customs officer that you were here for three months and never worked, you are constantly coming and going, and have no visible means of support. It sounds like you are here for something else, since there are plenty of eligible bachelors in England and Israel for you to marry. This is not in their psyche, and it creates a dangerous scenario.

You mentioned that people coming on a visa may not perform work while they are here. What about meshulachim who are coming to collect for worthy causes in Eretz Yisrael?

This is actually an important issue. It comes as a shock to people when I tell them that, according to the regulations, you cannot come here to raise funds, since that is considered work. There are limited exceptions, like if you are coming to lecture and incidental to that, you raise funds. Otherwise, you are not permitted to go house to house or to solicit funds for yourself or for an organization.

I had this conversation with those involved with kollelim, where a Rosh Kollel was pulled over concerning the objective of his trip. He told them he was here to lecture, and they realized the pattern did not seem to fit. I told them, “The Rosh Kollel knew to tell them that he was here to lecture, so he obviously was aware of the regulations. He was sent back, and now he cannot enter to raise money for his kollel.”

Had it been a Rosh Kollel who was an American citizen, this would not have been a problem, correct?

Correct, but there is another issue to be aware of. Everyone knows that if you enter the United States with more than $10,000, you must declare it. It is legal, but it must be declared. What some are not aware of is the regulation which requires the reporting of taking that sum of money out of the country.

Well, there was a case recently where agents went into the El Al terminal at Newark Airport, where they approached a chassidishe fellow and asked him how much cash he had on him. This was an outrage, as they profiled and targeted him, especially since he had no warning. You do not go through immigration when you leave the country, and there isn’t even a desk in the departure lounge to report it. You must go to the arrivals and find the customs desk to report it. In this day and age, with the president’s crackdown on immigration, these sorts of things happen, whereas years ago they did not.

Are there any changes relevant to yeshivah students attending mosdos in the United States?

Many years ago, there were a limited number of yeshivos, and the major ones were eligible to accept foreign students. There is a process they had to go through to be certified, which included site visits, minimum requirements, and tracking what happens to the students when they graduate. It is a very detailed and difficult process. So, the smaller yeshivos may not be eligible, or do not want to bother with this, especially if they only get a foreign talmid once in a yovel. Since you can only get a student visa if you are registered in a school that is authorized, it limits the choice for foreign students.

I get frequent calls from parents that “my son must learn specifically by this particular Rosh Yeshivah.” The reality is that it cannot be done legally, and they tend to bend the rules. They come on a visitor’s visa, go to yeshivah here, and they have to figure out what they will do at the end of the zman. They are clearly in violation of the law. If they leave and return a few weeks later, they’re at risk of getting caught, and then they can be barred for five years or more. Then, when you will be at the stage of looking for a shidduch, you won’t be doing it here.

Historically, the bigger yeshivos had these programs, and before September 11, the rules were sort of “loosey-goosey.” So, if you came in under the auspices of one of these yeshivos, there was some leniency. But now, the schools which are certified log in real time with ICE (Immigration and Customs Enforcement). A student entering is registered online with ICE (part of the Department of Homeland Security). If the student changes his address or his program, they must report it online within 15 days. ICE knows in real time where the person is supposed to be, and they will come after him if he breaks the rules, and they mean business. You no longer can “lend your program” to another institution. If the yeshivah would ask me, I would tell them not to do it.

When there is a wedding between a foreign national and an American citizen, what are the relevant regulations that the families must be aware of?

Unlike in the secular world, where the engagement may last a year and a half, in the Jewish community the wedding takes place more quickly. So, while in the secular world they can take care of their green card paperwork before the wedding, in the frum world it usually cannot be completed before the wedding. If you apply out of the country, it takes about a year and a half. If you come in as a visitor, and you turn around and apply for a green card within the first 30 days, they will assume you were lying when you originally said that you were coming in as a visitor. Even within 60 to 90 days, they might make that assumption.

If you enter the United States intending to be a visitor and after entry you can clearly document that you changed your mind, you may proceed with an application for the green card, and many in our community make this claim and wrestle with this dilemma. Even if they conservatively wait 60 or 90 days before filing an application, after that, once the application is filed, they are not allowed to travel until they get interim permission to travel, which used to take three months, but now takes between five and seven months. The kallah from London will not be going home for the next Yom Tov.

In the months around Pesach, I have numerous pending applications for permission to travel. You can get emergency permission to travel, but their idea of an emergency is very different. We have a certain cultural view of things, we value certain things, but when dealing with secular authorities, they do not value them as much. The authorities do not see going home for Yom Tov as much of an emergency. “Your sister’s wedding? Big deal!’’ Different offices have different levels of leniency or severity, and New York at the present time happens to be fairly liberal, but it is a big hassle.

So, people have to decide where they will be for the first few months of their marriage. They must realize that it may not be so easy to have one sheva brachos here and one there. This applies mainly to a couple who plan to remain in America. If they plan to live in Eretz Yisrael, then they have the time to plan accordingly. They must still plan their return and apply at the embassy in time to have their paperwork processed in time for their return.

In 1983, I was involved in helping my Rebbi, Harav Reuven Fain, zt”l, as he was applying for his green card. He was brought from Eretz Yisrael to say the highest shiur in Yeshiva Torah Vodaath. There was a problem with the way the first lawyer handled it, and the yeshivah brought in a second lawyer, who arranged for him to get his green card as a religious worker. Can you explain how that works?

(As I speak with Mr. Grunblatt, I notice a small smile cross his lips. – BZK)

I happened to have been the second lawyer who handled Rav Fain’s green card, and he did get it as a religious worker. We were able to prove his extraordinary ability, which he definitely had, and that helped us get him the green card.

Today, the rules have changed, and it is more difficult to get it under the present rules. In fact, on September 12, 1997, at the request of Rabbi Moshe Sherer, z”l, I testified in front of the Senate committee for when they renewed religious worker visa allocations. There was a lot of fraud going on, since all you needed was a letter from a house of worship saying that this was a religious worker. They amended the regulation in 2008, and now you must go through a petition process. Although in certain cases you can pay fees to expedite it, nevertheless, the first time, you need a site visit, which can take six to eight months.

If a shul wants to bring in a Rav or a chazzan for the Yamim Nora’im for the first time, or if a school wants to bring in a teacher for the next zman for the first time, they must apply early, which means before Purim. If the chazzan is of such extraordinary ability in the arts and sciences that he is recognized as top-tier, then there is a way to have him enter in a special way. But for the most part, the process takes time, and the application must be made in a timely fashion. If they wake up in August, it’s too late. The second time is easier, and it can be expedited.

What would be your message to the Jewish community concerning immigration and visas?

Be respectful of the system and those who implement it, and do not underestimate how seriously the government is about enforcement. Be sure you understand the rules and regulations that apply and, if in doubt, ask an appropriate authority, because a mistake can be costly in terms of time, aggravation, and your long-term ability to come to or live in the United States.