DRSI LAW

THE ROYALS ARRIVED IN THE US – IS HARRY’S STATUS LEGAL?

Harry and Maghen put behind them their Royal Family duties and received approval to move away from the UK. They had since been living in Vancouver Canada. However, on March 31st 2020, their Status as diplomats came to an end opening a door of legal questions and quick decision making. At the same time, a global pandemic has broken out, driving the Royals to make another rash decision to take a private jet and fly to a slightly more tax favorable southern California, prior to the US-Canada border crossing closure. This move came to the suprive of many, questioning if this was the ultimate goal. California being the celebrity center of America, with an invasive paparazzi, which according to Harry was a main reason they left the UK. Furthermore, Covid-19 cases in California held far worse numbers then in Vancouver, creating confusion in regards to their relocation choices.

Leaving Canada was necessary for the Royals, since losing their diplomatic status meant they would need to change their legal status in Canada, involving double taxation for Maghen Markle, no paid protection for the family (since Canada refused to assist) and no easy process for Immigration for Harry. They would not receive any special Status to immigrate as Canada does not hold any provisions to offer Canadian citizenship to a member of the Royal Family. Consequently, he would be seen as any other British Citizen looking to immigrate. They would both have to apply for permanent residency under a points system weighing their skills and education. Though it doesn’t seem like a harsh obstacle, it would be for Harry, who has worked most of his life working for his family and doesn’t hold a college degree. Hence for all the above reasons, they took a plane and flew straight to California, where Maghen’s is already a citizen, where her mother lives and where taxation will only be charged to one country the United States.  

It is not clear under what status Prince Harry entered the United States. Since he no longer had his diplomatic status,there is an unlikely scenario that strings were pulled to expedite an approval of entry (the couple have stated several times their dislike for Trump which would clearly mean no order would be signed). However, if he entered without inspection then this would make him an “Illegal” immigrant and would be deported. The reality is he  most likely used his British passport to utilise the 90 day entry for UK citizens via the ESTA  ( Electronic System for Travel Authorisation) which allows him to enter the US legally but cannot work and would require him to leave the country at the end of the 90 days. The issue that arises here is that this is a “non immigrant category” claiming “he has no intent to immigrate to the US”, but on the other hand, the couple have made it clear through media and searching for a new home nin LA that, that Harry is clearly seeking to “immigrate permanently to the US”. Absolutely not acceptable for your regular Joe Smoe, but the question is here, whether the CBP officer is looking the other way?    

A misconception is that individuals get automatic US citizenship through marriage to a US citizen; the reality is that the Royal Prince would not automatically be granted US citizenship through his American spouse but rather Meghan Markle would have to petition to US Immigration Services, USCIS, for a Green card as an immediate relative of a US citizen. The United States like Canada, do not take into consideration inherited titles such as Prince, on the contrary the US constitution forbids it. According to Article I, section 9, clause 8 of the US constitution, commonly referred to as the emoluments clause, states: “No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

The current immigration process in the US has greatly changed, with longer than usual processing times and an anti-immigration Administration, Prince Harry, like all others looking to immigrate would face challenges. Moreover, we are not in uncharted territory with the current pandemic, which has decreased the capacity of operations for Consular Officers creating even longer waiting times. Though it is evident that Prince Harry is not like regular people and  there are chances some aspects of the immigration process can be expedited, the waiting period is still around 8-21 months just for processing the application.  

The Duchess of Sussex, Maghan and her son who holds dual citizenship would not have to worry. Whereas, Prince Harry would have to decide on which option would be best for him. Below are a few options he could consider to apply for , prior to the end of his 90 entry. 

A Green Card as an “alien” spouse is a possible solution that would allow the Royal family to live in the US peacefully all being residents able to work.  Harry would have to stay in the US while his application was processed, providing he can show a clean record even down to misdemeanors. Though he may have past indiscretions, none enough to be considered acts of “Moral Turpitude” which would require him to wait outside the country until he received the approval. The regular approval can take up to 10 months. Prince Harry can  also adjust his status to lawful permanent residency since he  will be in the United States at the time the Duchess files the I-130 petition. Under this category, he would be exempt from unauthorized employment or overstaying his time of admission. Harry can also work and travel while his adjustment application is pending by filing an I-765 Application for Work Authorization and I-131 Application for Advance Parole, respectively. However, during this virus outbreak even longer, with the President of the United States new order to halt all immigration for 60 days, therefore an issue can arise.   

An O-1 visa would be another possible option  that would allow the Prince to work while his green card application was being processed. The O-1 visas are given out to professionals athletes, business executives and artists; who can demonstrate “extraordinary ability” in their field. Harry could claim his work as founder of the Invictus Games shows, which uses “the power of sport to inspire recovery, support rehabilitation and generate a wider understanding and respect for wounded, injured and sick Servicemen and women” as an “extraordinary ability.” This option would be the one with the most likely positive outcome, since Prince Harry can have petitioners such as Barack and Michelle Obama or George Clooney.The drawback of the O visa is that it is a temporary one, with a maximum of three years approval with the possibility of extension  of 1 year. Moreover, it would be restrictive since Prince Harry’s employment could only be the profession and events for which his visa was granted.

The Eb-5 Investment Visa is another option. Though it is evident that The Royal Family have the financial means to make that investment required for the approval of this visa, the process is long and the financial scrutiny deeply analyzed. The initial investment totals $1,800,000 or $900,000 in a high-unemployment or rural area, known as a targeted employment area and the investment must include a plan to either create or preserve at least ten permanent full-time jobs, not given to family members,  for qualified workers living in the United States within two years. A requirement of 5 years of financial records is needed and it is unlikely that the family would be comfortable with their finances reviewed in such a manner. Furthermore, due to the backlog of the EB-5 cases this may not be the ideal path for lawful permanent resident status for the Prince’s current situation since it may take years. 

The EB-1 visa for extraordinary ability  in the sciences, arts, education, business, or athletics through sustained national or international acclaim is another possibility. If approved, Prince Harry would receive lawful permanent resident status (Greencard). This option is viable for the Prince because of the successful creation of the Invictus Games. President George W. Bush and First Lady Michelle Obama have all attended his shows which gives further acclaim. 

Prince Harry could also apply for permanent resident status through the EB-2 visa. He  would be requesting that the Labor Certification be waived because it is in the interest of the US. Though the jobs that qualify for a national interest waiver are not defined by statute, they are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Prince Harry may self-petition and does not need an employer to sponsor him. 

The world economy is currently struggling due to the Covid-19 Pandemic. The US has been hit hard, but the President of the United States has decided to put his people first, causing a pause in immigration to give the American people a chance to get their own jobs back when they return to work.. 

The Royal family- Duke and Duchess of Sussex, have decided to come and live in the US, in one of America’s most affected states, through a rash decision, prior to considering all the legal and bureaucratic steps needed to be taken in order to stay as a family unit in the US.  It will be interesting to see how this all falls together, since there has been no report of a Green Card application for Prince Harry since this would require him to renounce his titles and would also expose him to US taxation on his earnings worldwide. At this stage the Royal Family need an exceptional Immigration and Tax lawyer to help them manoeuver the US bureaucracy and ensure his stay is legal and avoid deportation back to the UK. Maybe they should talk to DRSI Law. 

© DRSI LAW

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