J-1 WAIVER DENIAL SUGGESTS INS RACIAL DISCRIMINATION

A Pakistani couple who applied for a waiver of the J-1 visa home residency requirement has had their application denied on grounds that some are calling racist. The husband and wife are both physicians who became subject to the requirement because they entered as a medical resident.

Bruce Hake, a well-known Washington, D.C. area immigration attorney who is considered an expert in the field of J-1 visas, filed two identical petitions for waivers of the two-year home residency requirement for the couple at the Vermont Service Center.  The petitioners were medical doctors from Pakistan who had an infant child, who, because it was born in the US, was a US citizen.  The waiver request was based on the potential hardship to the US citizen child that would occur if the parents were required to return to Pakistan, particularly the general risk of political violence, especially to Americans.

The husband’s waiver request was granted, but the identical request filed by the wife received a request for additional evidence.  This request was answered with, among other things, five official pronouncements issued by the State Department in the past three months warning of possible violence.  Despite this strong evidence that the US citizen child could be in serious danger if the parents were forced to return to Pakistan, the wife’s waiver request was denied.

The core of the Vermont Service Center’s denial of the waiver request is the following statement:  “as the 18-month-old daughter of two citizens of Pakistan, it seems unlikely that she is the sort of American citizen whom the State Department considers to be at risk when she is abroad.”  The idea that there are different “sorts” of US citizens, and that this idea was espoused by the US government is shocking, according to Hake.  Hake made the point that a US citizen is a US citizen, regardless of the citizenship of the parents, and regardless of the color of their skin. The INS should not deny the child the same protection other US citizens enjoy simply because she is not white.

Hake added that “Birthright citizenship is guaranteed in the 14th Amendment to the U.S. Constitution, over which this country fought a bloody civil war. Although the Republican Party in the United States has been trying to abolish birthright citizenship (it's in their official presidential party platform for the past 10 years), that hasn't happened, and the INS does not have power to act as if it had been abolished."

The dangers to the child would only seem to be increased in light of the recent military coup in Pakistan.  Even before the coup, the State Department Consular Information Sheet on Pakistan issued on September 14, 1999, stated “The U.S. Government has received a growing body of information that suggests strongly that extremists based in Afghanistan are preparing to attack U.S. interests in Pakistan, in the near future.”  After the coup, the State Department warned all US citizens in Pakistan to not leave their homes.

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