In “The Odyssey” the arrival of the Trojan horse brought with it an unexpected surprise, which led to the defeat of the Trojans at the hand of Ulysses and his Greek warriors.  Today the H-2B visas seem to be the new Trojan horses of the immigration world.

As discussed over the last few months, there are an extremely limited number of H-2B visas available and all have been allocated for the current fiscal immigration year. Some lucky H-2B winners do hold H-2B visas and are already in the U.S., working for their sponsoring landscaping industry or racetrack employers. Others, however, were unable to come into the U.S. not only because the USCIS ran out of H-2B visa numbers but also because of the incorrect advice these workers have received from their prospective employers and/or H-2B processing companies. As a result of such advice, families have been unnecessarily separated, lives have been damaged beyond repair and all hope of any legal U.S. immigration status, absent major changes in our immigration laws, has been equally destroyed.

What is the wrongful advice that these would- be H-2B workers have been given? They have been told to return to Mexico, wait for their interviews at the U.S. Consulate in Monterrey Juarez and to not mention their previous illegal entries and illegal stays in the U.S. Is remaining silent and not offering such information against the law? Absolutely, especially when each worker, in conjunction with his/her H-2B visa application at the U.S. Consulate, must complete a written nonimmigrant visa application. This application explicitly requests that the H-2B beneficiary list all of his/her past entries into the U.S. and explain what status he/she held during those periods.  Failing to truthfully answer this question is , in Immigration’s words, a “material misrepresentation” and grounds for an immediate denial of all present and most future visa applications, both nonimmigrant and immigrant alike.

What then happens if the worker tells the truth and admits that he/she was in the U.S. illegally but begs the U.S. Consulate to issue the visa nonetheless? The result is a sure denial for several reasons. First, the worker has been in the U.S. illegally and that alone is reason for denial. Second, if the worker has been in the U.S. illegally for over 6 months, that worker will not be able to return to the U.S. for 3 years and 10 years if the worker has been in the U.S. illegally. for one 1 year. If the prospective worker has entered the U.S. illegally more than once, that worker will not be able to legally return to the U.S.

How does this work? Ask Juan’s fiancé, Claudia. She and Juan are the proud parents of a U.S. citizen daughter.  Juan’s long term employer, ABC Landscaping Inc., loves Juan and decided to help him. The company filed an H-2B petition for him. While it was pending they told him to return to Mexico, wait there, and pretend that he had never before been in the U.S. In reality, Juan has lived in the U.S. for over 10 years, has been paying taxes and has reentered illegally 4 times.

Juan has been waiting to appear at the U.S. Embassy in Monterrey, prepared to lie about his past illegal status, as his employer has carefully instructed him to do. Fortunately the H-2B petition for ABC Landscaping was denied and Juan never had his day at the Consulate and hence has never lied to any government entity.  Instead, he waits in Mexico, separated from his U.S. citizen fiancé and U.S. citizen child, with no hope of legal return to his family.

What do you suppose Juan will do, wait patiently in Mexico just in case the laws do change, leaving his 19 year old fiancée and infant daughter to fend for themselves? Of course not. Juan is quite busy, figuring out how and when, with the help of a coyote, he will return to the U.S. to support his family.

Could this hardship have been avoided? Yes, by correct legal advice at the outset: Don’t leave the U.S. to apply for an H-2B visa because you are not qualified to receive one and don’t even think of lying to the U.S. government because you will, one way or the other, be caught. In sum, beware of Greeks bearing gifts.