J-1 Visa: Balancing U.S and Foreign Interests

Many visitors to the United States come via the J visa.  The purpose of the visa is to encourage cultural exchange and allows students, professionals, and others to visit the United States for a proscribed amount of time to do a particular thing, which includes: studying at an institution of higher learning, conducting research, or developing a specific skill set.

The purpose of the visa is to encourage cultural exchange between Americans and foreign nationals.  The visa, being a nonimmigrant visa, allows visa holders to remain in the United States for only a short amount of time ranging from several months to several years depending on the specific program.  In addition, many are eligible for time extensions of their program and there are no restrictions limiting changing to other programs within the J visa.  

Originally, the J visa required all visa holders to return to their country of origin for two years before returning to the United States or becoming eligible for other nonimmigrant visas or permanent residency.  This had two purposes: i) it limited the ability of immigrants to use the J visa to gain permanent residency; and ii) it required cultural exchange because visa holders would return to their countries after spending time in the United States; Americans learned about them and foreign countries learned about Americans through past J visa holders.

Congress then decided that only certain J visa holders should be subjected to the two year foreign residency requirement.  In 1972, Congress amended the Immigration and Naturalization Act to only subject certain J visa holders to the foreign residency requirement, including: i) visa holders funded in part or in whole by the government; ii) visa holders participating in a program using skills that were on the “skills list” that was developed by the Secretary of State; and iii) medical students and professionals.

The purpose of the changes were to continue to foster cultural diversity without draining developing countries of home-grown talent.  Congress surely had American interest in mind  too.  One of the ways the requirement can be waived is by a U.S. government agency requesting a J visa holder to continue work for it.

Work Visa Reform

Opinion piece regarding work visa reform

Federal Judge Orders FDA To Allow Plan B Over the Counter For All Ages

Federal Judge Strikes Down Portions of Indiana Immigration Law

The Rights v. Duties of Parents in Michigan

In Michigan and many other states for that matter, the rights of parents include visitation and custody rights.  These rights, like other rights, can be suspended or terminated upon the requisite showing that more important interests would be better served.  Take for example physical custody.  A family court would likely terminate physical custody if a parent has sexually abused a child.  The interest trumping the parent’s right is  the state’s interest in protecting the child from sexual abuse.

Rights can be terminated, suspended, or granted (think adoptive parents) and it is important to understand the rationale for the state’s interference of parental rights.  State’s have the utmost responsibility in providing for the “best interests of the child,” (codified in MCL 722.23 et seq.)  The vagueness of this phrase is important because it allows broad discretion for a court in determining what exactly are the “best interests” of a particular child.  Sometimes, the best interest include termination of parental rights.

Parents may have their parental rights terminated, but they may still have the duty to support their children.  In a 2010 Michigan Supreme Court case, the Court held that parents have the duty to support their children despite having their parental rights terminated.  In In Re Beck, 793 NW 2d 562 (2010), the Court compared the plain language of the Michigan code that define the scope of parental rights and the duty of parents’ obligations.  The court held that rights are different that duties, “There is no indication that the duty of support is conditioned on the retention of parental rights, just as there is no indication that the exercise of parental rights is conditioned on fulfilling the parental obligation to support.” Id. at 567.

Parental rights can be modified, but parental duties may not be.  This may sound absurd to some, “If I have no right to see my children, why should I have to support them financially?”  The answer is child support does not buy parental rights to see children.  It serves to provide for the best interests of the child, which if a parent has been deemed to be unable to provide any other service, the least they could do is sacrifice a small fraction of their paycheck.

Beyond the Fourth Amendment: Suspicion-based drug testing for welfare beneficiaries

Years ago, many states attempted to require drug testing for all welfare beneficiaries and the majority of the laws were struck down or are currently in litigation, Florida as one example.  States, including Michigan, have smartened up (one could say) and, rather than requiring blanket searches, are considering legislation that would require a questionnaire that includes questions regarding drug use.  Applicants who indicated prior or current drug use would give law enforcement reasonable suspicion to drug test the individual and they would then be denied welfare benefits.  The significant difference between this new breed of proposed legislation and the previous is blanket drug testing has been ruled unconstitutional, notwithstanding special circumstances, which have consistently been ruled not to exist in the context of welfare benefits.  The new laws would give the executive reasonable suspicion and therefore would not be a blanket policy.  The reasonable cause would allow a warrant to be issued and drug testing to be within the confines of the Fourth Amendment.

Currently,  three states require drug testing based on reasonable cause for welfare beneficiaries.  Missouri, Utah, and Arizona currently require suspicion-based drug testing, while many others, including Michigan, are considering similar legislation.  Michigan’s legislature passed legislation in 2011 requiring the Department of Human Services (“DHS”) to report on the feasibility of such a program.

In the report, DHS indicated it would develop a procedure for determining suspicion for drug use by either requiring questionnaire or analysis by an expert in drug abuse.  The report concluded that such a program would be feasible despite the inability to estimate cost of the program, relying on other states’ estimates of $100,000 to $20 million dollars.

But the real question is: would the program be constitutional?

MIssouri’s law has yet to implement a procedure for welfare recipients.  The constitionality will boil down to whether the procedure is individualized enough and satisfies the requirements of reasonable cause.  The future of Michigan’s proposed law is still tenuous, but it too will have to meet the standards of probable cause.

Polygamy: The next frontier of marriage equality

Amid the seemingly ubiquitous attention to equality today, I could not help but consider the equality of those that still seek it and the the likelihood it will be recognized in my lifetime.  If I stay healthy, will I be lucky enough to witness polygamy as the cause célèbre?  Gee, I hope so.

 

To be clear from the outset, there are two debates to be had, both moral/ethical and legal.  While ethical/moral persuasion certainly can effect legal outcomes, let us only consider some legal arguments for polygamy.

It would be interesting to note, however, that polygamy has made for some very strange bed-fellows, including the likes of radical feminists, black nationalists, and, not so strange I guess, numerous autonomous conservative religious groups primarily located in the Western United States (not to be mentioned by name). 

Black nationalists see polygamy as an opportunity to reestablish family units and to further separate black culture from traditional American culture.  Nationalist see polygamy as a way of providing stable homes for children, for which nearly 70% are born outside of marriage, and providing those children with more stable homes and father-figures (although they might be pretty busy with all the children).  Polygamy was one of the many disputes Malcolm X had with his spiritual leader, Elijah Muhammad, the man who first welcomed him into Islam and the same man who fathered numerous children with numerous women.  Islam, to some, endorses polygamy, but requires that one does “justice” to all, which seems pretty much impossible depending on loose your definition of justice may be.

Some feminists see polygamy as an opportunity to further empower the career woman.  Since the publication of The Feminine Mystique decades ago, some feminists see polygamy as an opportunity to circumvent the continuing struggle to convince male spouses to contribute to housework.  They argue that inviting a second or third wife into the home will reduce housework by dividing the labor.  The career woman, if one so chooses, benefits by having a career and children with the comfort of knowing that a woman is at home with her children.

The next entry will consider the legal framework for polygamy. 

 

DOMA: Analysis and consequences of SCOTUS ruling

Next week, SCOTUS is likely to strike down the Defense of Marriage Act when it considers two cases involving California’s Prop 8 and federal tax implications on same-sex marriages.  Below is a brief synopsis of each case followed by a short discussion of possible consequences and an interesting argument as food for thought.

SCOTUS will hear two cases, the first being Hollingsworth v. Perry.  The parties, same-sex couples challenge the voter initiative Prop 8’s constitutionality.  California had allowed same-sex marriage and had issued marriage licenses to couples until Prop 8 was passed, amending the California constitution to define marriage as between opposite sexes.  Marriage licenses were then no longer issued, leaving same-sex couples without the ability to be married, while some had gotten licenses before Prop 8 was passed. 

At the core of the case is whether the Equal Protection clause allows rights to be given (pre-Prop 8) and whether those rights can then be taken away (Prop 8) and for what reason would justify the deprivation of rights.

The Equal Protection clause allows for discrimination between individuals if a state actor can show the requisite justification.  SCOTUS has set different standards for states of the federal government by the type of discrimination that is involved.  For example, discrimination based on race has the highest level of scrutiny and requires a state to show a state interest.  Other types of discrimination deserve lesser standards of review, such as intermediate scrutiny for gender-based discrimination with the caveat that the discrimination cannot be based on archaic stereotypes of gender roles.

The second case, Windsor v. United States, challenges DOMA by taxing the surviving spouse ‘s inheritance at a rate higher than if the couple were married.  The catch is: the coupe was. Under New York law, the couple had married and the spouse had died, willing his inheritance to his surviving same-sex spouse.  DOMA disallows the federal government to recognized any marriage that is not between a man and a woman and taxed the inheritance at a higher rate.

The question is whether the federal government can show a substantial government interest in taxing the couple at a different rate.  

Although rulings will not be expected until at least June, implications may become apparent much sooner.  State politicians may react by either defining marriage (or redefining it,) or Congress may step in and try to enact different legislation that will try to effectively limit the rights of same-sex couples having marriage licensees from the handful of states that grant them.

Now that the debate over same-sex marriage may be at its end legally speaking, the moral debate will likely be revived.  That might be harsh language considering the moral arguments having never really died off, but the legal debates have seemed to be the spotlight.  

One interesting perspective, a slippery slope argument, makes the insightful prediction that the legal battles for same-sex marriage may make way for the legal arguments for polygamy and other moral depravity.  The author, a law student at Yale, I think, made the argument in a law review article, which I would love to track down again.  The argument goes like this:  same-sex advocates have made the Equal Protection argument and have urged advocates not to get into the morality of homosexuality.  By avoiding the morality, advocates have a better chance at winning in the courtroom and avoid instigating inflammatory rhetoric outside it.  Now, imagine years from now polygamists making this claim that we should ignore the morality of such conduct and argue the state should allow for such marriages on constitutional principles.  

It’s an interesting argument and what might be even more captivating is if decades from now polygamists get their day in court.

All purposes considered: First Amendment and its purpose(s)

A common misconception about the Bill of RIghts is who and what they protect.  Consider the First Amendment’s protection of speech and press and separation of church and state.  Also, consider the Fourth Amendment’s protection against unreasonable search and seizure.

Freedom of Speech/Press

“I have my freedom of speech!” It is likely just about everyone has uttered (or thought) this at one time or another.  Very few Americans dismiss the idea of freedom of speech, but may, sometimes, if they are on the listening end.  But considering the purposes of First Amendment speech, an audience should be the most considered about protecting freedom of speech.

The purpose of the First Amendment is not in protecting the speaker, but the audience.  The greatest advocate  was John Stuart Mill. Mill suggests that the search for truth is eternal and such a journey would not continue henceforth without challenges to the prevailing view.  Minority dissenting views continue march forward and disallow an entire nation to succumb to an opinion that may or not be the truth.  Sadly, this has awful consequences, such as bigoted Nazism, Holocaust denial, and 9/11 conspiracy, but balancing the interest may show that allowing these minority views allows us to continue onward in search of more worthy truths.

Mill’s idea was coined as the “marketplace of ideas,” suggesting that all are consumers in the marketplace and every idea should be allowed, so it could be consumed.  The underlying theory was truth is usually unbeknownst to many especially the government.  Over time, the truth will be challenged and, if it is the truth, it will prevail.

When the Founders drafted the First Amendment, John Milton and Thomas Jefferson had hinted at this argument long before Mills articulated it.  Milton, who ironically became blind later in life, argued that allowing all opinion was necessary because the truth would eventually prevail (but gave no mention of how long a society must wait).  Milton was fervently opposed to censorship of printing presses, ergo the irony. 

Freedom of Religion

Evangelical Christians frequently claim that taking the Bible and prayer out of the classroom is the cause of society’s ills.  Whether or not this is true, suggesting both be a part of curriculum is self-defeating.  It becomes apparent when the logistics are considered, which the Founders foresaw.

There is little doubt the prayer would be Christian and the Bible would be the King James translation, but ignore the obvious separation of church and state.  So Christian, right?  Will we have a Baptist prayer or maybe children should say a Catholic prayer?  It becomes obvious that beyond arguing for Christian ideals, many Christians would suddenly oppose state-santioned religion in schools.  

The separation of church and state does not limit religion, but allows it.  

Fourth Amendment

“Search everyone.  I’ve got nothing to hide.”  This is common response argument against protecting criminals by requiring searches to be reasonable, but again the Amendment is not for the protection of the guilty, but for the protection of the innocent.  

The suggestion that an individual would consent to a search and so to everyone else is misguided.  First, the individual has control over the context of the search.  Take for example,  an individual does not mind having their briefcase or purse searched.  They know that they do not have any embarrassing items and so would easily give consent to be searched.  This leads to the second problem: the person assumes by declaring they have nothing to hide they would not be confounded as a guilty of a crime.

It would be likely that anyone would be willing to allow a search of some private area, like a car or room.  The problem is they know what will be found.  Now imagine not knowing what the police will search, maybe your car, maybe your house, and allowing them to do so.  This makes it a little more difficult for any rational person to allow a search if it is not on their terms.

Second, it is easy to declare that you are innocent and have nothing to hide, but what if you were not able to confess such innocence to all who could possibly witness the search and likely be construed as a drug dealer or worse?  This scenario almost gives me nightmares.  Imagine driving down a busy highway and being pulled over.  Imagine your car now being searched by several police officers, while you sit handcuffed.  Imagine the cars driving by looking at you speculating about what crime you had committed.  This is the shame the Fourth Amendment attempts to protect against.  But, then again, you have nothing to hide, so you should not be that afraid (from arrest that is).

Rape culture: egalitarianism is not the standard

I have strong doubts that anyone is working diligently to dismantle rape culture.  Take for example, more than 200,000 adult and children are sexually assaulted every year.  Some have criticized the numbers for only accounting for persons, not occurrences (many are sexually assaulted multiple times).  There is a lot of work to be done.

What is more troubling is the national zeitgeist that many of these individuals deserve such conduct.   “They shouldn’t have done this,” or “They shouldn’t have done that,” tends to be popular commentary.  This, however, I find repulsive, if not amoral.  

The irony is that many of those 200,000 have been put in that vulnerable position because of their own doing.  Many likely had been told of the consequences, but the advice was either ignored or disregarded because, as they thought, it wouldn’t happen to them.

Most saddening is the lack of advocation especially by those who work tirelessly to dismantle rape culture.  Somehow, a fifth of a million victims per annum is not enough to shock the conscious of advocates.  Rape culture persists among all groups, men and women, but it disproportionately affects men.  Men’s chances are 1:4, while women face a 1:40 chance of sexual assault in prison. 

I pose one question, is egalitarianism a too lofty standard?