Mr. Minci's (E-2) Beauty Shop and the Bankrupt H-2B Employer

By David North on December 2, 2015

Two federal court cases have emerged recently, both shedding some light on the actual operations of our immigration system.

One, involving a treaty investor from Canada under the E-2 nonimmigrant program, shows us how small an investment one can deploy to enter the program; the other, involving a shipyard employing and exploiting H-2B workers, demonstrates how the bankruptcy courts can ease an employer's penalties for labor trafficking.

E-2. This is one of the nonimmigrant programs run primarily by the State Department, the only major federal entity without field offices in the United States, and thus the program operates without any on-the-ground scrutiny. It is for treaty investors and requires that aliens make a "substantial investment" in a business in the United States. An E-2 visa can be extended time after time, but does not lead to a green card.

The plaintiff suing in the U.S. district court in Nevada (case 2:15-cv-00787-JAD-PAL in the PACER data system) is a Canadian who has a beauty shop in Las Vegas. Mampre Minci got his first E-2 visa (for a jewelry shop at the time) back in 2004 and kept getting renewals until February of this year, when the government said no. Without going into the facts of the case, the government's reply to Minci's suit was that he had no grounds for his appeal.

What's interesting in the case is the relatively low level of investment seemingly required by this program — in contrast to the all-too-modest $500,000 investment that is the norm for the EB-5 (immigrant investor) program. Minci's lawyers say in one of the briefs that "Minci invested in excess of $183,694 into the business from income he earned in the United States as demonstrated in the 2011-2013 tax returns."

The $183,694 total is presumably the largest number that the investor could claim, so his initial investment when he got his visa in 2004 must have been at a lower level. He is discussing moneys invested after his arrival, rather than his initial investment, which I find interesting and puzzling.

Further, Minci had his choice of renewing his visa at a U.S. consulate in Canada, or seeking to do so with the Department of Homeland Security; he chose the latter. This was a smart move on his part because one cannot take a visa denial into the U.S. court system, but one can appeal a similar denial when the agency is DHS.

At the moment, the ball is back in DHS's court; the case was remanded to DHS for further review and a new agency decision.

H-2B. As I reported a couple of years ago, Signal Shipbuilding in Texas and Mississippi was charged with massive misuse of its Indian H-2B employees. The 500 or so workers were charged large illegal fees, underpaid, misled, exploited, and housed inadequately. The case was handled by the Southern Poverty Law Center, which is a staunch foe of exploitative migrant worker programs, but, unfortunately, all wrong on amnesty issues.

The always-active Indian press spoke in terms of "enslaving Indian workers".

The workers are, slowly, winning their case, but the latest news is that the damages to be collected will be capped at $20 million because the company is now in bankruptcy.

Corporate bankruptcy is sometimes the last refuge of scoundrels.