Leon

From Suskind Immigration Bulletin - August 25th, 2003 (all rights
graciously acknowledged):

"According to an article published by the Plain Dealer in Cleveland,
Ohio, the Bureau of Citizenship and Immigration Services has placed a
10 year bar on the reentry of a Romanian grandmother who admitted to
helping babysit her newborn grandson while in the country on a
six-month visitor visa. According to a letter from the former
Immigration and Naturalization Service, Maria Missits accepted
"unauthorized employment" by providing child-care service to her
daughter's 10-month-old baby. Missits told immigration officials that
she wanted to help her daughter, Ioana, with her son when asked why
she wanted to extend her visa for 2 ½ months. In response, the Bureau
claimed she was, in effect, "replacing an employable worker." Ioana
and her husband, Ho-Fan Lee, have permanent-resident status in the
United States. Since Missits departed on March 31, the young couple
has not hired anyone to help baby-sit the child."

I did some additional research and found the full text of Cleveland's
Plain Dealer article (dated August 20, 2003). Again -- all rights
graciously acknowledged.

http://www.cleveland.com/metro/plain...2032123260.xml
(full text follows below).

This is actually a major concern for my wife and I. If we have a baby
and ask my mother-in-law to visit us and help us with our first child,
would this in fact be classified as illegal employment? I am sure
other couples probably have the same concerns.

BCIS apparently reconsidered the decision to bar this elderly lady
from entering the US. Nevertheless, what's the legal basis for such a
decision?
To stretch the issue just a bit, if our mother-in-law prepared us
dinner, would BCIS classify this as taking the job from "an employable
American cook"?

I am very interested in other experiences as well as legal opinions.

Leon (and Svetlana, US citizen since February 25, 2003 -- 1 day after
our 4th wedding anniversary)

============================================
Grandma from Romania may be allowed to visit

08/20/03

Michael Sangiacomo
Plain Dealer Reporter

Shaker Heights- A Romanian woman, barred by immigration officials from
visiting the United States and her young grandson for 10 years, may
have been given a reprieve.

A Department of Homeland Security's Bureau of Citizenship and
Immigration Services spokesman said yesterday the agency had
reconsidered the case of Maria Missits and will allow her to return,
according to the Associated Press.

She was denied a 10-week extension to her six-month visitor's visa
last year when she said she wanted to help her daughter with her new
son, Alexander. The former Immigration and Naturalization Service said
that Missits was taking a child-care job from an American.

The family said that was ridiculous since the woman was not being paid
for her services.

Since she had already overstayed her visa while waiting for a reply,
the INS barred her from returning for at least 10 years.

The AP story was news to the woman's daughter, Ioana Missits, a
violinist with the Cleveland Orchestra, and her husband, Ho-Fan Lee.

"No one has contacted us to tell us that," said Lee, of Shaker
Heights. "It would be great, but until I see a piece of paper spelling
it out, I am not celebrating."

The family's attorney, Robert Brown, was equally surprised. He said he
had spoken to immigration officials yesterday and was optimistic, but
no one alerted him of a decision.

Lee said his mother-in-law was a celebrity in Romania. "She called to
tell us that her story made the national television news," he said."I
think it has become something of a public relations nightmare for the
bureau

Andy Platt

"Leon" <[email protected]> wrote:

    > This is actually a major concern for my wife and I. If we have a baby
    > and ask my mother-in-law to visit us and help us with our first child,
    > would this in fact be classified as illegal employment? I am sure
    > other couples probably have the same concerns.

This is one of those ridiculous situations with jumped up BCIS officials who
obviously have a really bad relationship with their own mother! I have seen
this issue before though. Here's what you have to remember. The grandmother
is not coming to babysit, she's not coming to clean, she's not coming to
work. She's coming to visit her son/daughter and grandchild and be a
grandparent. Of course a grandparent would help clean, babysit, etc. but
that's not what she's there for and that doesn't get mentioned. I think the
big issue here was trying to extend the visa, though so it's not likely you
would hit that issue.

    > Lee said his mother-in-law was a celebrity in Romania. "She called to
    > tell us that her story made the national television news," he said."I
    > think it has become something of a public relations nightmare for the
    > bureau

Which is why congress erred in giving so much power to officials who are
very low down in the chain of command.

Andy.

--
I'm not really here - it's just your warped imagination.

Folinskyinla

Hi:

IFWIW, this article has made the rounds of people involved in immigration law and I KNOW for a fact that many consular officers and BCIS officers are shaking their heads at this one also.

BTW, it pays to remember that although we are talking about "BCIS" or "Consulate" when push comes to shove, there is often one individual who makes the decision that can make or break your life. [I'm paraphrasing a consular officer with who I often have interesting generalized "if I were king" discussions].

Andrew Defaria

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Andy Platt wrote:

    >> Lee said his mother-in-law was a celebrity in Romania. "She called to
    >> tell us that her story made the national television news," he said."I
    >> think it has become something of a public relations nightmare for the
    >> bureau
    > Which is why congress erred in giving so much power to officials who
    > are very low down in the chain of command.

Congress did not give power to official who are very low down in the
chain of command. The law expressesly says "the attorney general". It's
the attorney general that is delegating that power. Personally I think
we should recall Ashcroft for not doing his job... Yeah, RECALL
ASHCROFT, RECALL ASHCROFT... :-)

--------------080408010903080703070309
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<!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN">
<html>
<head>
<meta http-equiv="Content-Type" content="text/html;charset=ISO-8859-1">
<title></title>
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<body text="#000000" bgcolor="#ffffff">
Andy Platt wrote:<br>
<blockquote type="cite" cite="[email protected]">
<blockquote type="cite">Lee said his mother-in-law was a celebrity in
Romania. "She called to tell us that her story made the national
television news," he said."I think it has become something of a public
relations nightmare for the bureau<br>
</blockquote>
<!---->Which is why congress erred in giving so much power to officials
who are very low down in the chain of command.</blockquote>
Congress did not give power to official who are very low down in the
chain of command. The law expressesly says "the attorney general". It's
the attorney general that is delegating that power. Personally I think
we should recall Ashcroft for not doing his job... Yeah, RECALL
ASHCROFT, RECALL ASHCROFT... :-)<br>
</body>
</html>

--------------080408010903080703070309--

Andy Platt

"Andrew DeFaria" <[email protected]> wrote:

    > the attorney general that is delegating that power. Personally I think
    > we should recall Ashcroft for not doing his job... Yeah, RECALL
    > ASHCROFT, RECALL ASHCROFT... :-)

Ah, now that's a very pleasant thought!

Andy.

--
I'm not really here - it's just your warped imagination.

doctor scrumpy

Babysitting a grandchild is one of the pleasures of old age. Not employment. Am I to assume that as I cooked a meal for my fiancées family whilst on holiday last thanksgiving I indeed entered into unpaid employment ?

OMG I passed a woman a tin down from a shelf that was too high for her whilst in Giant too. Damn I am an evil person for doing a job that any USC working there could have done.

Rete

For all we know the grandmother might have been babysitting while mommy was back at work in the orchestra in Cleveland. If so, that would perhaps constitute daycare services for which one usually hires an agency to do.

Have we not learned that newspapers only give partial not full facts to articles. In this one note the use of BCIS in one paragraph and further on the use of INS. If the reporter can't get his proofing straight can we trust him to give all the facts in this case?

Just some thoughts.

Rete

doctor scrumpy

Fair point Rete, but I would guess 90%+ of people would rather leave junior with Granny than hire a stranger.

Andy Platt

"Rete" <[email protected]:

    > For all we know the grandmother might have been babysitting while mommy
    > was back at work in the orchestra in Cleveland. If so, that would
    > perhaps constitute daycare services for which one usually hires an
    > agency to do.

Almost certainly but, IMHO, rather irrelevant because a grandmother should
be the person of choice for staying with their grandchild over some random
other person - e.g. it's not babysitting, it's being a grandparent. (A pet
peeve of mine is if I stay home to be with my daughter Caroline for some
reason people will say I'm babysitting her - nope, I'm being Dad!).

Another problem is that if we say it's sometimes OK for the grandparent to
be left alone with the child, when does it stop being appropriate? What if
the mother pops out to the shops? Would that be OK? If it is, what if they
were at the shop all day? And so on and so forth.

In any case, as I said before, the key thing is to err on the side of being
a grandparent and discount the rest as incidental to that.

Andy.

--
I'm not really here - it's just your warped imagination.

Rete

Just from my personal viewpoint, I would think that you would have to separate the two issues. One issue is that grandma is a visitor to this country and the second issue would be what circumstance constitutes grandma watching her grandchild and what circumstance consitutes grandma taking the role of paid caregiver.

If parent went to the market, beauty salon, lunch or dinner with friends and/or other parent and asked granny to watch the kid for a few hours so they could enjoy these activities without having to take the kid with them, to my way of thinking that is granny being called upon to be a caregiving relative. The same as if granny called parent and said, "Look dear, I want to spend a little time for Johnny, why don't I take him for a few hours on Saturday." In these circumstances, granny is being a loving grandparent.

However, I would think that if parent needs to leave little Johnny with granny and parent is compensated for their time away from little Johnny while granny is taking care of him, then granny is now placed in the position of daycare worker regardless of whether or not she is paid for that activity.

In scenario one, the grandparent is just doing what some grandparents do. While in scenario two, the grandparent is fulfilling a position which one can earn a living.

A USC or PR grandparent can do either of the two scenarios without fear of recrimination from the BCIS because they can "work" in the US even if the pay is just the hugs from a grandchild.

A visitor to the US without permission to work (EAD), can do the first scenario but cannot do the second because this type of babysitting is a viable employment category.

Don't get me wrong, please. I believe children are best raised by their parents, grandparents and/or any other responsible, mentally and emotionally fit, relative. It is sad that a foreign grandparent has to so very careful when completing a visa application and/or extension application so as not to incur the wrath of the BCIS because their actions could be misconstrued.

Rete

Matthew Udall

Although I think this is a ridiculous case, I have to agree with Rita on this one.

In the H-1B context (which is not my main area of practice), one of the steps is to have the “offered wage� approved by the department of labor. They do this to make sure the intended nonimmigrant worker is paid at a comparable level (the prevailing wage) with other U.S. workers in the same geographic location, and this is to help protect the jobs of U.S. workers. After all, if someone could import a worker and pay them nothing or pennies on the dollar of what other U.S. workers make, than why would any employer in the U.S. ever hire a U.S. worker? (on the flip side of that coin, employers have figured out that the way around this is to export jobs outside of the U.S. so they can have access to a low paid work force).

M.U.

doctor scrumpy

So you would rather pay a stranger to look after your child, than let your own mother do it for free ?

Andy Platt

OK, try this one. Should a pending AOS applicant *without* EAD be able to
stay at home with their child while their US citizen spouse go off to work?

If no, why not? A parent is not paid for their work. If so, why not the
grandmother on a visitor visa?

Andy.



--
I'm not really here - it's just your warped imagination.

"Rete" <[email protected]> wrote in message
news:[email protected]...
    > Just from my personal viewpoint, I would think that you would have to
    > separate the two issues. One issue is that grandma is a visitor to this
    > country and the second issue would be what circumstance constitutes
    > grandma watching her grandchild and what circumstance consitutes grandma
    > taking the role of paid caregiver.
    > If parent went to the market, beauty salon, lunch or dinner with friends
    > and/or other parent and asked granny to watch the kid for a few hours so
    > they could enjoy these activities without having to take the kid with
    > them, to my way of thinking that is granny being called upon to be a
    > caregiving relative. The same as if granny called parent and said,
    > "Look dear, I want to spend a little time for Johnny, why don't I take
    > him for a few hours on Saturday." In these circumstances, granny is
    > being a loving grandparent.
    > However, I would think that if parent needs to leave little Johnny with
    > granny and parent is compensated for their time away from little Johnny
    > while granny is taking care of him, then granny is now placed in the
    > position of daycare worker regardless of whether or not she is paid for
    > that activity.
    > In scenario one, the grandparent is just doing what some grandparents
    > do. While in scenario two, the grandparent is fulfilling a position
    > which one can earn a living.
    > A USC or PR grandparent can do either of the two scenarios without fear
    > of recrimination from the BCIS because they can "work" in the US even if
    > the pay is just the hugs from a grandchild.
    > A visitor to the US without permission to work (EAD), can do the first
    > scenario but cannot do the second because this type of babysitting is a
    > viable employment category.
    > Don't get me wrong, please. I believe children are best raised by their
    > parents, grandparents and/or any other responsible, mentally and
    > emotionally fit, relative. It is sad that a foreign grandparent has to
    > so very careful when completing a visa application and/or extension
    > application so as not to incur the wrath of the BCIS because their
    > actions could be misconstrued.
    > Rete
    > Originally posted by Andy Platt
    > >
    > > Almost certainly but, IMHO, rather irrelevant because a
    > > grandmother should
    > > be the person of choice for staying with their grandchild over
    > > some random
    > > other person - e.g. it's not babysitting, it's being a
    > > grandparent. (A pet
    > > peeve of mine is if I stay home to be with my daughter Caroline
    > > for some
    > > reason people will say I'm babysitting her - nope, I'm being Dad!).
    > >
    > > Another problem is that if we say it's sometimes OK for the
    > > grandparent to
    > > be left alone with the child, when does it stop being
    > > appropriate? What if
    > > the mother pops out to the shops? Would that be OK? If it is,
    > > what if they
    > > were at the shop all day? And so on and so forth.
    > >
    > > In any case, as I said before, the key thing is to err on the side
    > > of being
    > > a grandparent and discount the rest as incidental to that.
    > >
    > > Andy.
    > >
    > > --
    > I'm not really here - it's just your warped imagination.
    > --
    > Posted via http://britishexpats.com

Rete

I have to tell you I was a single mother for 27 years. My mother refused to watch her granddaughters even though she did not work. And yes, I paid a daycare center to watch my children while I worked. Would I have preferred my mother over the daycare. Actually the kids were probably better off in daycare. Good teachers, caregivers, other children to play with, outings, etc.

Remember just because you are a grandparent does not mean you are at the beck and call of your adult chldren. At least that is my opinion.

And for the record, my mother was born in Germany 1924 and did not migrate to the US until 1948. So her values would be considered European.

Also what child would be so inconsiderate as to not pay their parent (in one form or another) for caring for their children why they are working? The expenditure is tax deductible and senior citizens could use the income.

Rete

Rete

No parent, natural or adoptive, is paid a salary to care for their own child[ren]. A grandparent, unless they have custody of the child[ren] or is appointed by a court as legal guardian, is not their parent and is not the principal caregiver for the child[ren]. They are nothing more than extended family to the child[ren] even if they reside in the same household.

If their caretaking allows the parent of the child[ren] to earn a salary, then they are "working".

Remember these are my thoughts on the various scenarios you are throwing out ;-)

Rete