AILA's Immigration Practice Pointers 2011-12 Ed.

IMMIGRATION PRACTICE POINTERS 201112 ED.
AILA TITLES OF INTEREST

AILAS OCCUPATIONAL GUIDEBOOKS
Immigration Options for Artists and Entertainers Immigration Options for Physicians Immigration Options for Nurses & Allied Health Care Professionals Immigration Options for Religious Workers Immigration Options for Academics and Researchers Immigration Options for Investors and Entrepreneurs
TREATISES & PRIMERS

Business Immigration: Law & Practice by Daryl Buffenstein and Bo Cooper Kurzbans Immigration Law Sourcebook by Ira J. Kurzban Professionals: A Matter of Degree by Martin J. Lawler AILAs Asylum Primer by Regina Germain Immigration Consequences of Criminal Activity by Mary E. Kramer Representing Clients in Immigration Court by CLINIC Essentials of Immigration Law by Richard A. Boswell Litigating Immigration Cases in Federal Court by Robert Pauw Immigration Law & the Family edited and written by Charles Wheeler Immigration Law & the Transgender Client by Transgender Law Center & Immigration Equality
STATUTES, REGULATIONS, AGENCY MATERIALS & CASE LAW

Immigration & Nationality Act (INA) Immigration Regulations (CFR)
CORE CURRICULUM
Forms & Fundamentals Immigration Law for Paralegals*
TOOLBOX SERIES
AILAs Immigration Practice Toolbox AILAs Litigation Toolbox
OTHER TITLES
The Waivers Book AILAs Guide to Worksite Enforcement and Corporate Compliance David Stanton Manual on Labor Certification Going Global: Trends in Outbound Immigration AILAs Global Immigration Guide: A Country-by-Country Survey Immigration Practice Pointers Consular Practice Handbook Immigration Practice Under NAFTA and Other Free Trade Agreements The International Adoption Sourcebook
FOR YOUR CLIENTS

Client Brochures (10 Titles) U.S. Tax Guides for Foreign Persons and Those Who Pay Them, 4 volumes (H-1Bs, L-1s, J-1s, B-1s)*
AILAS FOCUS SERIES

EB-2 & EB-3 Degree Equivalency by Ronald Wada Waivers Under the INA by Julie Ferguson Private Bills & Pardons in Immigration by Anna Gallagher The Child Status Protection Act by Charles Wheeler Immigration Practice Under AC21 by A. James Vazquez-Azpiri & Eleanor Pelta
GOVERNMENT REPRINTS
BIA Practice Manual Immigration Judge Benchbook CBP Inspectors Field Manual USCIS Adjudicators Field Manual EOIR Immigration Court Practice Manual Affirmative Asylum Procedures Manual
AILAS PERIODICALS
VOICE: An Immigration Dialogue Inside Immigration Monographs
ONLINE RESEARCH TOOLS

AILALink Online
Tables of Contents and other information about these publications can be found at www.ailapubs.org. Orders may be placed at that site or by calling 1-800-982-2839.
*An AILA-distributed title
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Corrections and other updates to AILA publications can be found online at: www.ailapubs.org/BookUpdates. If you have any corrections or updates to the information in this book, please let us know by sending a note to the address below, or e-mail us at books@aila.org.
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is distributed with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional should be sought. from a Declaration of Principles jointly adopted by a committee of the American Bar Association and a committee of publishers
Proceeds from the sales of AILA publications are reinvested in the association to help support member programs and services in the areas of federal and state advocacy, government liaison, practice assistance, ethics education, media outreach, and timely dissemination of members-only information via InfoNet. In addition, contributions are made to the American Immigration Council (formerly known as American Immigration Law Foundation (AILF)).
Copyright 2011 by the American Immigration Lawyers Association All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage retrieval system, without written permission from the publisher. No copyright claimed on U.S. government material. Requests for permission to make electronic or print copies of any part of this work should be mailed to Director of Publications, American Immigration Lawyers Association, 1331 G Street NW, Washington, D.C. 20005, or e-mailed to books@aila.org. Printed in the United States of America ISBN 978-1-57370-312-3 Stock No. 53-12
PREFACE
Welcome to the 201112 edition of AILAs Immigration Practice Pointers, the advanced-level handbook prepared as a supplement to this years annual conference. As you peruse the pages of this book, you will see that, for the second consecutive year, we have dispensed with most of the traditional conference articles of past editions (published in the old Immigration & Nationality Law Handbook until 2009) and replaced them with more concise, and hopefully more useful, practice pointers. The practice pointers in this book are not merely shorter versions of the traditional articles. Instead, our intention in proposing the new format last year was to provide you with more streamlined, practice-oriented information to assist you in your day-to-day law work. Thus, each panels goal in preparing these practice pointers was to write a brief, though still in-depth and informative, guide to a particular topic, based on the bullet points for that panel (as listed in the annual conference program). The form each practice pointer tookwhether formal practice advisory, informal Q&A, etc.was left up to each panel to decide. We hope you will find that these practice pointers present the same high-quality information youve come to rely on as a supplement to the sessions and presentations held during the annual conference. As in the past, this book collects a wealth of information and practical advice from some of the foremost authorities in the various subject areas. The handbook begins with advisories covering various areas of law practice management and ethics. Following that, youll find expert analysis and guidance on the substantive law, including labor certification applications and PERM, the various family and employment-based paths to immigrant and nonimmigrant visas, humanitarian issues, admissibility, waivers, litigation issues, and worksite enforcement, and immigration in other countries. The articles in this handbook were written by panelists from the advanced and masters track sessions for the 2011 AILA Annual Conference in San Diego, with contributions by several other authors writing on topics of current interest. Beginning practitioners and others seeking an understanding of the basic concepts underlying particular areas of immigration law should refer to this books conference companionForms & Fundamentals, 2011 Ed. AILA offers that tome, updated by panelists from the annual conference fundamentals track sessions, to complement the more advanced-level and specialized articles contained in this handbook. Thanks go out to all the contributing authors for finding time within their busy work days to make this book happen. Thanks also are owed to the peer reviewers of the articlesGreg Adams, Dan Berger, Jan Brown, Leigh Cole, Jason Eyster, Carl Falstrom, Ester Greenfield, Romy Kapoor, Rodney Malpert, Robert Nadalin, Allen Orr, Jack Pinnix, Rita Sostrin, Bill Stock, Doug Stump, Dev Viswanath, Cletus Weber, and Becki Young. These colleagues of yours volunteer their time and expertise to ensure the articles you read are of the highest quality. Thanks go to my colleagues in AILA PublicationsTatia L. Gordon-Troy, Kathy Frazier, Mary Cadette, and Sheeba Raj, Leah Kalasky, and Brad Amburnwho assisted me in editing and/or preparing this book for publication. Finally, special thanks to Kathy Frazier and Leah Kalasky, whose meticulous work maintaining the AILALink database behind the scenes proved indispensible to my research during the editing process. Rizwan Hassan Managing Editor June 2011
TABLE OF CONTENTS
Immigration Practice Pointers (201112 Ed.)
Preface...................................................................................................................................................................v About the Editors ................................................................................................................................................xv Subject-Matter Index.........................................................................................................................................657
Practice and Ethics Issues

From Getting Work to Getting Paid: Strategies for Starting Your Own Immigration Law Practice By Matthew J. Maiona, Nicole Lawrence Ezer, and Nita J. Itchhaporia .............................................................1 The Business Side of Running a Law Practice: The Importance of Strategic Planning and Partnering with Professional Consultants By Kirby Gamblin Joseph .....................................................................................................................................9 Getting MarriedJoining with Other Firms and Creating Partnerships with Other Attorneys By Philip C. Curtis ..............................................................................................................................................11 Navigating the Social Network: Applying Ethics Rules to Blogs, Facebook, Twitter, and Other Social Media By Carole A. Levitt, Mark E. Rosch, and Alan B. Goldfarb ...............................................................................14 Upgrading SystemsImproving Technology to Maximize Profitability By Denise C. Hammond ......................................................................................................................................26 Commercial Investigative Databases Are Collecting Our Personal Information and Selling It to the Government By Carole Levitt ..................................................................................................................................................28 When and Whether to Go Paperless: The Pros and Cons of Electronic Storage of Documents By David A. M. Ware ..........................................................................................................................................32 Smart Growth: How and When to Grow By David A. M. Ware ..........................................................................................................................................35 Retaining Your Clients and Law Practice Without Losing Your Mental Health by Kristina K. Rost and Reid F. Trautz...............................................................................................................38 Ethical Considerations in Fee Disputes, Fee Determinations, and Flat Fee Cases By John L. Pinnix................................................................................................................................................45 How to Walk the Ethical LineBeing Less Stressed Out By Cyrus D. Mehta, Howard S. Myers, and Kathleen Campbell Walker ...........................................................51 Exit Strategies: Legal and Ethical Issues When Leaving a Law Firm By Reid F. Trautz ................................................................................................................................................62
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IMMIGRATION PRACTICE POINTERS, 201112 ED.
General Agency Issues

Navigating the Visa Bulletin: A Guide to Obtaining the Earliest Priority Dates By Kathrin Mautino, Jerome G. Grzeca, and Khorzad A. Mehta .......................................................................67 Everything You Always Wanted to Know About Regional Centers, but Didnt Know Enough to Ask By Tammy Fox-Isicoff .........................................................................................................................................76 Does NYSDOT Really Say That? Lifting the Veil By Nathan A. Waxman ........................................................................................................................................82 Righting Wrongs: Helping Your Clients Challenge Government Misconduct and Abuse By David Antn Armendriz and Philip Hwang .................................................................................................87
Family Immigration
The Problematic I-130 Petitioner By Steven C. Thal, Ann Kanter, Miko A. Tokuhama-Olsen, and Nancy T. Shivers ............................................93 USCIS Gives De Facto Acceptance to Emerging View of CSPA Provisions in INA 203(h)(3) By David Froman..............................................................................................................................................105 Surviving Relatives: New Ways to Resuscitate a Dead Petition or Application By Barbara L. Bower, Christie Popp, and Brent Renison ................................................................................110 Making Strategic Choices in Marriage Petitions By David Harston, Sharon Dulberg, Marcia Needleman, and Robin ODonoghue.........................................116 Preparing Your Client for a Difficult Marriage Interview By James W. Austin...........................................................................................................................................125 Ignoring Family Ties: LGBT Couples and Children By Noemi E. Masliah and Scott Titshaw...........................................................................................................129 Was It Really a Sham Marriage? By Leslie Tuttle Ditrani.....................................................................................................................................135 Best Options When a Family-Based Petition or Application Is Denied By Jonathan D. Montag, with Contributions from Gregory Romanovsky ........................................................138
Naturalization and Citizenship

Imperfect Naturalization: Analyzing the Risks of Naturalizing Lawful Permanent Residents with Criminal Offenses By Jojo Annobil, C. Lynn Calder, and Ghassan M. Shihab..............................................................................145 Judicial Review of Naturalization Applications and Citizenship Claims By Robert Pauw, Emily Creighton, and Victor D. Nieblas Pradis ...................................................................159 Automatic and Derivative Citizenship By Robert A. Mautino .......................................................................................................................................166
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False Claims to U.S. Citizenship By Mark Barr, John Patrick Pratt, and Tarik H. Sultan...................................................................................170
Business and Employment

Hot Topics and Current Issues in the Admission of Business Travelers By Leslie K. Dellon, Susan Fortino-Brown, Eli Maroko, and Donald K. Sheppard ........................................175 Prevailing Wages: Continuing to Deal with the NPWHC By Susan M. MacLean, Angelica Grado-Wright, and Sharryn E. Ross............................................................182 The Fog Never Lifts: Unresolved Questions About AC21 By Robert Divine, Adam Rosen, and Naomi Schorr .........................................................................................186 The Intracompany Transfer MazeThe Many Detours on the Path to an L-1 Visa By David Z. Izakowitz, Kortney H. Klein and Timothy G. Payne .....................................................................199 Reconciling L-1 RFEs with Agency Guidance: The Drama Behind and the Strategies for Dealing with the 15-Year High in L-1 RFE Rates By Timothy Payne .............................................................................................................................................207 Overview of the EB-5 Market Involving Regional Center Projects By Linda Lau and Tina Lee...............................................................................................................................213 Difficult Requests for Evidence for Employment-Based CasesPractice Tips from Initial Response to Federal Court By Scott D. Pollock ...........................................................................................................................................216 Advanced E-1 Treaty Trader and E-2 Treaty Investor Issues By Henry J. Chang............................................................................................................................................220 Lawful Status, Unlawful Presence, and Other Elusive Concepts That Can Affect Your Clients Right to Remain in the United States By Melissa Crow, Scott D. Pollock, Palma Yanni, and Ben Winograd ............................................................230
PERM and Labor Certifications

Merger and Compliance Issues: How to Ensure Success Post-Filing By Avram E. Morell, Diana Vellos Coker, and Teri A. Simmons .....................................................................238 My Perm Was Denied, Now What? A Practical Guide to Next Steps By Michelle Funk, Michael P. Nowlan, and Robert H. Cohen .........................................................................245
Temporary Visa Categories

Strategies for Preparing Nonimmigrant Petitions for Small and Start-Up Businesses By Helene N. Dang, Bennett Savitz, and Cora D. Tekach ................................................................................253 Export Control for Immigration Lawyers By Steve Springer ..............................................................................................................................................259 Effective Advocacy for Religious Workers By Joel Pfeffer, Michelle L. Lazerow, Mary M. OLeary, and Elizabeth Rompf Bruen ...................................264
Special Visa Issues Relating to Representation of Professional Athletes By Steven M. Ladik, Laurie Volk, and Tarik H. Sultan.....................................................................................280 Selected Issues in B-1/B-2 and Visa Waiver Program Travel By Kelly McCown, William Coffman, and Michael R. Jarecki .........................................................................289
Consular and Related Issues

Understanding the Visa Application Process from Start to Finish By Poorvi Rohit Chothani, Kehrela M. Hodkinson, Edward Rios, Liam Schwartz, and Anastasia Tonello ....295 Third-Country National Consular Processing of Nonimmigrant Visa Applications in Canada and Mexico Updated by Andrew J. Stevenson, Jan Pederson, Fausta M. Albi, and Laurie Snider .....................................308
Worksite Enforcement and Corporate Compliance

ICE Worksite Investigations: Practice Advisory on Technical and Procedural Violations By Amy Marmer Nice........................................................................................................................................318 Advising Clients About the Potential Criminal Consequences of ICE HSI Worksite Investigations By Kevin Lashus, Amy L. Peck, Daniel Brown, and Bonnie Gibson ................................................................323 ICE Worksite Investigations: Regional Differences in ICE I-9 Audit Notices By Josie Gonzalez .............................................................................................................................................327 Issues and Updates in Fraud Investigations By Brad Hendrick, Daniel C. Horne, and Andrew W. Shackelford ..................................................................349 What You Need to Know When ICE Catches Up with Your Client By Russell Abrutyn, Rockne Cole, and Rebecca Kitson....................................................................................355 I-9 Civil Liability Practice PointersOCAHO Update By Richard A. Gump, Jr. ...................................................................................................................................363 Responding to a Notice of Proposed Debarment for Federal Contractors By Jeff Joseph ...................................................................................................................................................367
Admissibility and Waivers

Determining When a Waiver Is Required and Tips for a Successful I-601 Application By Farshad Owji, T. Douglas Stump, and Olsi Vrapi.......................................................................................375 I-612s: Basic Procedures and Recent Trends By Bruce A. Hake ..............................................................................................................................................385 Nonimmigrant Waivers of Inadmissibility Under INA 212(d)(3) By Maria Lianides Celebi, Avi Friedman, Leigh Ganchan, and Daniel Parisi ................................................393 Developments in Medical Grounds of Inadmissibility By Sana Loue, Philip Hornik, and Ronald E. Walker.......................................................................................399
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The Defining Moment: When Lies Become Fraud or Material Misrepresentations Under the Law By James Alexander ..........................................................................................................................................410 Is Everyone a Terrorist? The INAs Terrorism Bars By Anwen Hughes, Christopher Strawn, and David Garfield ..........................................................................418 Issues in Abandonment of LPR Status By Jonathan J. Willmoth, Gary E. Endelman, Nita Nicole Upadhye, and Clayton E. Cartwright Jr...............429
Litigating in State and Federal Courts and Other Tribunals

Can This or Should This Go to Federal Court? By Raed Gonzalez, Matthew Guadagno, and Hilary Han ................................................................................436 28 USC 1631: Transfer to Cure Lack of Jurisdiction By Trina Realmuto and Matt Adams.................................................................................................................446 Federal Court Review of Denial of Employment-Based Petitions: When Exhaustion Is Not Required By H. Ronald Klasko and Jennifer Hermansky.................................................................................................450 How to File Petitions for Rehearing, Rehearing En Banc, and Hearing En Banc in an Immigration Case By Beth Werlin ..................................................................................................................................................454
Removal and Relief

Cancellation of Removal: Hot Topics and Coming Trends By R. Linus Chan, Melanie K. Corrin, and Ilana Etkin Greenstein..................................................................461 Analyzing and Demonstrating Exceptional and Extremely Unusual Hardship for Nonpermanent Resident Cancellation of Removal By Jeff Joseph and Maggie McDermott ............................................................................................................471 Important Tips on Motions to Suppress By Maria E. Andrade, Ahilan T. Arulanantham, Melissa Crow, Charles Roth, Patrick Taurel, and Ben Winograd ...................................................................................................................475 Motions to Suppress: Preserving the Egregious Exception under Lopez-Mendoza By Ben Winograd, Melissa Crow, and Mary Kenney .......................................................................................478 Can We Try That Again? Motions to Reopen By Cynthia A. Aziz, Raul E. Godinez, Gerald Seipp .........................................................................................484
Criminal Issues
Padilla and Post-Conviction Relief By Norton Tooby ...............................................................................................................................................499 Selected Sex Crimes: Immigration Consequences and Strategies for Representing Your Client By Maria T. Baldini-Potermin and Thomas K. Ragland ..................................................................................505
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Asylum Issues
Asylum Fundamentals: How to Make Asylum Cases Manageable By Hiroko Kusuda, Sioban Albiol, and Ginger E. Jacobs ................................................................................524 The Five Harshest Asylum Policies By Regina Germain...........................................................................................................................................542 Summaries of Key Relevant Cases on Social Group, Gender, and Related Issues By Karen Musalo and Shuting Chen.................................................................................................................547 Gender-Based Particular Social Group Claims By Deborah E. Anker ........................................................................................................................................553 Women as a Social Group By Nancy Kelly..................................................................................................................................................562
Humanitarian Issues and Protection for Women & Children

Violence Against Women Act Petitions and Related Submissions: Where, What, and When to File By Julie E. Dinnerstein .....................................................................................................................................565 VAWA Self-Petitioning: Some Practice Pointers By Gail Pendleton .............................................................................................................................................571 Long-Term Strategic Planning for the Approved VAWA Self-Petitioner with Inadmissibility Issues By John Richard Smith......................................................................................................................................575 Options for Children Under the Violence Against Women Act By Julie E. Dinnerstein .....................................................................................................................................582 The ABCs of Representing Unaccompanied Children By A. Michelle Abarca, Deborah Lee, Kathleen Moccio, and Kristin Petri.....................................................586 Practice Pointers for U and T Visas By Karl Krooth, Sheila Neville, and Sheila Stuhlman ......................................................................................595 Parole in Place for Military Families By Margaret D. Stock .......................................................................................................................................603
Immigration & Other Countries

Europe, Middle East, and Africa (EMEA) Bound: Practice Considerations for U.S. Immigration Attorneys Representing Clients in Global Cases By David P. Berry and Roland C. Lechner.......................................................................................................612 Going Global: Delving into Outbound Immigration Matters By Shawn A. Orme, Scott M. Borene, Jane Skelley Carroll, Roland Lechner, and Lois Gimpel Shaukat ..................................................................................................................................616 Outbound Immigration Issues for the U.S. Practitioner By Eugene Chow ...............................................................................................................................................624
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Key Inbound Business Immigration and Employment Issues: Relocation of Foreign Business Personnel to India By Ranjit Malhotra and Anil Malhotra.............................................................................................................628 All Aboard for the Fertility Express By Ranjit Malhotra and Anil Malhotra.............................................................................................................637 Corporate Migration to Israel for Business and Work Purposes By Tsvi Kan-Tor................................................................................................................................................645 General Information on Immigration in Italy for Business and Working Purposes By Marco Mazzeschi .........................................................................................................................................649 Immigration Considerations for Business Travel in the Americas By Enrique Arellano, Daniela Lima, Deborah A. Marlowe, and Heather N. Segal .........................................652
ABOUT THE EDITORS

GREGORY P. ADAMS is a partner in the Cincinnati office of Dinsmore & Shohl LLP, a 450-lawyer firm where he manages the immigration practice team. Mr. Adams has served as chair of AILAs Connecticut and Ohio Chapters, has co-authored Foreign Students and Educational Visitors in the R. Rapp, Education Law treatise, and has authored numerous articles for AILA publications since the 1980s. Mr. Adams has been an editor of AILAs Immigration & Nationality Law Handbook since 1993. He is listed in The International Whos Who of Corporate Immigration Lawyers and The Best Lawyers in America. He is a graduate of Middlebury College in Middlebury, VT, and Suffolk University Law School in Boston. DAN H. BERGER is a frequent speaker at colleges and universities around the northeast. He won the 1995 American Immigration Lawyers Association (AILA) annual writing competition for an article on legacy INS policies toward international adoptions. Mr. Berger also has been an editor of the Immigration & Nationality Law Handbook since 2000, was an author/editor of the revised National Association of Foreign Student Advisers Manual (2000), editor-in-chief of Immigration Options for Academics and Researchers (AILA 2005), and the editor of the International Adoption Sourcebook (AILA 2008). He is currently vice chair of the AILA Healthcare Committee, and a member of the USCIS Benefits Committee. Mr. Berger developed his interest in immigration in college, where he studied immigration history and taught English as a Second Language for adult refugees. He is a graduate of Harvard College and Cornell Law School. JAN H. BROWN is a principal in the Law Offices of Jan H. Brown, P.C., centered in New York City. He has been practicing immigration and nationality law since 1979 and frequently lectures and writes on the subject of U.S. immigration law. Mr. Brown is a long-time editor of AILAs Immigration & Nationality Law Handbook and editorial reviewer for Kurzbans Immigration Law Sourcebook. Mr. Brown represents clients across the immigration spectrum, from removal defense to EB-1 extraordinary ability workers. He is past chair of the AILA New York Chapter and currently co-chairs the New York State Bar Associations Immigration and Nationality Law Committee; as such he is active in efforts to reform our immigration system. MARY CADETTE is a legal editor at AILA. Before joining the association, she worked as a freelance editor for the National Academies and MIT, and as director of publications for the National Veterans Legal Services Program. Ms. Cadette holds an A.B. in American Studies from Princeton University and a J.D. from George Mason University School of Law. She is a member of the District of Columbia Bar. LEIGH POLK COLE is a shareholder and director of Dinse, Knapp & McAndrew, P.C., in Burlington, VT. She leads the firms Immigration Group. Her practice consists of representing U.S. educational and health care institutions and companies employing foreign nationals in the United States, and advising F-1 and J-1 sponsors and hosting organizations on immigration for international students and scholars. She received a B.A. from Cornell University in 1985 in government and international trade policy, and a J.D. from Albany Law School of Union University in 1991, where she served as editor-in-chief of the Albany Law Review. Ms. Cole is a member of the National Association of College and University Attorneys (NACUA) and NAFSA: Association of International Educators. She is a frequent speaker and author on immigration topics. She has served as an editor of AILAs Immigration & Nationality Law Handbook since 1999. JAMES P. EYSTER is director of the Asylum and Immigrants Rights Clinic and assistant clinical professor at Ave Maria School of Law. From 200810, he served as visiting assistant professor at Peking Universitys School of Transnational Law. Before entering academia, he practiced immigration law in Ann Arbor, MI for 10 years and, prior to that, served first as executive director of the Princeton-in-Asia Foundation and then in the same capacity for the University of Michigans Southeast Asia Business Program, for which he edited the Journal of Asian Business. He is a graduate of Princeton University and Fordham Law School, where he served as editor-in-chief of the Fordham International Law Journal. Mr. Eyster is listed in Whos Who in American Law.
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CARL FALSTROM practices immigration law in New Orleans. He received his bachelors degree from the University of Chicago and his law degree from the University of California, Hastings College of the Law. He is a former AILA chapter chair and has served on a number of liaison, program, and other committees. TATIA L. GORDON-TROY is director of AILA Publications. Ms. Gordon-Troy joined AILA 12 years ago to help improve and strengthen the publications produced by the association. A 1995 graduate of the University of Baltimore School of Law and member of the Maryland bar, Ms. Gordon-Troy practiced in the areas of employment, family, and administrative law as an associate with the Baltimore firm of Gohn, Hankey & Stichel prior to joining the staff of AILA. In a past life, she was deputy editor of several monthly law newsletters published by The Daily Record in Baltimore and served as press secretary to U.S. Representative Elijah E. Cummings (D-MD). ESTER GREENFIELD is a director at MacDonald Hoague & Bayless in Seattle. She is a past chair of the AILA Washington State Chapter and has taught immigration law and an immigration clinic as an adjunct professor at Seattle University. She has served on AILAs national DOL Liaison Committee. She was coeditorin-chief of AILAs David Stanton Manual on Labor Certification (3rd Ed. 2005), and has written many articles on labor certification. Ms. Greenfield is listed in Best Lawyers in America, International Whos Who of Corporate Immigration Lawyers, and as one of the top 50 women lawyers in Washington State by Washington Super Lawyers. RIZWAN HASSAN is a legal editor at AILA and has served as managing editor of the annual conference handbook for the past three years. Prior to coming to AILA, he was a science writer and editor for a National Institutes of Health journal. He earned a B.S. in Biology and B.A. in History from Boston University, received his J.D. from The George Washington University Law School, and is a member of the Maryland bar. ROMY K. KAPOOR is the founder and managing partner of The Kapoor Law Group. He has been practicing U.S. immigration and nationality law since 1992, with a broad business and family-based immigration practice. Romy has spoken and written extensively in these areas, both nationally with AILA and for the State Bar of Georgia. He is an elected director to AILA's Board of Governors, and has also served on AILAs DOL Liaison Committee, Business Immigration Committee, and various conference committees. Romy has been named to the Georgia Super Lawyers and Best Lawyers in America lists each year since 2006, as well as the International Whos Who of Corporate Immigration Lawyers. RODNEY MALPERT is a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP in Phoenix. He is also an adjunct professor of business immigration at Arizona State Law School and formerly taught immigration law at Southern Methodist Law School. Mr. Malpert is in Whos Who LegalThe International Whos Who of Corporate Immigration Lawyers. He is frequently sought for commentary, being interviewed for publications such as CNN Money Magazine, Business Week, and various newspapers. He publishes two loose-leaf treatises: Business Immigration Law: Strategies for Employing Foreign Nationals, and Business Immigration Law: Forms and Filings. Mr. Malpert is a 1986 graduate of Cornell University Law School. ROBERT NADALIN is certified by the State Bar of California Board of Legal Specialization as a specialist in the field of Immigration and nationality law. He received his J.D. from South Texas College of Law in 1998 and his B.A. in Japanese from Ohio State University in 1993. Mr. Nadalin is a former chair of the AILA San Diego Chapter and previously served as a member of the AILA Board of Governors. He is a member of the State Bar of California and the State Bar of Texas, and has been admitted to practice in U.S. District Court, as well as courts for the Southern District of California, Northern District of Texas, and Southern District of Texas.
ABOUT THE EDITORS
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ALLEN ORR, JR. is the founder of Orr Immigration Law Firm PC, a minority-owned firm based in Washington, D.C., focusing on U.S. corporate compliance, as well international representation and assistance on immigration issues. Mr. Orr previously helped to build one of the leading global immigration practices at a global law firm, where he developed a worldwide network of immigration practitioners, government officials and business leaders. Mr. Orr received a B.A. in Philosophy from Morehouse College and a J.D. from Howard Universitys School of Law. He is an active member of the D.C., Virginia, American, and National Bar Associations. JOHN L. PINNIX is a past president of AILA (200203) and a founding member of AILAs Carolinas Chapter. He attained B.A. and M.A. degrees in History at the University of North Carolina at Greensboro and his J.D. at the Wake Forest University School of Law. He has served as an adjunct professor at North Carolina Central University School of Law and as a senior lecturing fellow at Duke University School of Law. He also has served as an adjunct professor at the Elon University School of Law. Mr. Pinnix is a principal in the Raleigh law firm Allen and Pinnix, P.A., and is a North Carolina board-certified immigration specialist. SHEEBA RAJ serves as a legal editor at AILA. Before joining AILA, Ms. Raj obtained experience in immigration law through positions held at inMotion, Inc., the Executive Office for Immigration Review, and the Asian Pacific American Legal Resource Center, among other places. She also wrote for an internal publication at Shearman & Sterling LLP and a blog for the LNG practice group at Sutherland Asbill & Brennan LLP. Ms. Raj is a graduate of St. Johns University and Pace University School of Law, and is a member of the New York and New Jersey bars. RITA SOSTRIN is a partner at Sostrin Immigration Lawyers, LLP in Los Angeles. Ms. Sostrin focuses her practice on immigration of individuals of extraordinary abilities, including physicians, academics, artists, and entertainers. She is a regular speaker and writer on advanced immigration law topics. Ms. Sostrin is included in The International Whos Who of Corporate Immigration Lawyers and Chambers USA and was honored with AILAs Presidential Award for her outstanding contributions. She serves as editor of AILAs Immigration Practice Pointers, member of AILAs Periodicals Review Board, and the 201112 chair of the AILACalifornia Service Center Committee. WILLIAM BILL STOCK is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP. He handles all aspects of immigration law, including assisting companies and individuals in obtaining employment and family-based visas; resolving citizenship issues and obtaining naturalization; and defending clients in ICE and DOL enforcement proceedings. Mr. Stock is an adjunct faculty member at Villanova University School of Law, a director on the AILA Board of Governors, a past chair of AILAs Philadelphia Chapter, and has received AILAs Joseph Minsky Young Lawyer Award. In 2003, he was selected for inclusion in Best Lawyers in America. He is a member of editorial boards for Matthew Bender and AILA and has authored many articles on immigration law topics. T. DOUGLAS STUMP is AILA Nationals second vice president and founder of Stump & Associates with offices in Oklahoma City and Tulsa. He has more than 28 years of experience in a practice focused on employment-based immigration law, complex deportation, federal court litigation, and family immigration matters. He has been recognized in Best Lawyers in America, Oklahomas Top 50 Super Lawyers, The International Whos Who of Corporate Immigration Law, and Martindale-Hubbles Preeminent Lawyers. He is an editor for AILAs Immigration & Nationality Law Handbook, a frequent speaker, and author who has chaired or served on AILAs USCIS, SCOPS, EOIR, ICE, CBP, AAO, Refugee/Asylum, FOIA/Privacy, and TSC liaison committees. He is past Texas Chapter chair and a member of IMMLAW, a national consortium of immigration law firms. DEV BANAD VISWANATH is the principal attorney of the Banad Law Offices, P.C., with offices located in Manhattan and Queens. Mr. Viswanath obtained his undergraduate degree in psychology and philosophy from Boston University and his J.D. from Pace University School of Law in White Plains, NY. He also has obtained a certificate of concentration in international law. He is an editor for AILAs Immigration & Nation-
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ality Law Handbook. Mr. Viswanath has represented individuals and corporations from all over the world in various stages of the immigration and nationality process, including consular processing, citizenship, permanent residence, removal/deportation and nonimmigrant visa petitions. Mr. Viswanath currently is of counsel to the Law Offices of Michael Phulwani, P.C. and to Baron and Shelkin, P.C. Additionally, he is the general counsel to International Television Broadcasting, Inc. (ITV) and the Heart & Hand for the Handicapped (HHH). CLETUS WEBER co-founded Peng & Weber, PLLC in the Seattle suburb of Mercer Island, WA and previously chaired AILAs Washington State Chapter (200506). In addition to chairing AILAs national Board of Publications and writing the Unsolicited Advice column for AILAs online publication VOICE: an Immigration Dialogue, he has served as associate editor of AILAs 201011 Immigration Practice Pointers, associate editor of AILAs Immigration Options for Investors & Entrepreneurs, 2nd Edition (2010), and as a member of AILAs EB-5 Conference Committee (2010). With a strong interest in categories that reflect his clients excellence, major contributions, or substantial investment in job creation and the overall improvement of the United States, his practice focuses on national interest waivers, aliens of extraordinary ability, outstanding professors or researchers, J-1 waivers, and EB-5 investors, as well as PERM and other employmentbased immigrant and nonimmigrant visas. Mr. Weber earned his undergraduate degree with Beta Gamma Sigma honors at the College of William and Mary in Williamsburg, VA in 1986 and his law degree at George Washington University in Washington, DC in 1989. He was managing editor of the George Washington Law Review, 198889. Mr. Weber has written and spoken nationally and regionally on EB-5 investor visas, national interest waivers, nonimmigrant visas, overcoming visa backlogs, and law office management and technology issues. He has been quoted in The Seattle Times, Daily Telegraph (UK), HR magazine, Workforce Management, and other major media. BECKI YOUNG is of counsel at Baker & McKenzie in Washington, D.C. Her clients include many of the most prominent hotels and restaurants in the United States. Ms. Young has advised and represented individuals as well as employers in a variety of industries, including investment banking and securities, information technology, nonprofit, manufacturing, health care, and hospitality. She has spoken on immigration at numerous venues, authors a monthly column on immigration for the hospitality industry, and has edited several publications for AILA including Immigration Options for Essential Workers and Forms & Fundamentals.
ABOUT AILA
The American Immigration Lawyers Association (AILA) is a national bar association of more than 11,000 attorneys who practice immigration law and/or work as teaching professionals. AILA member attorneys represent tens of thousands of U.S. families who have applied for permanent residence for their spouses, children, and other close relatives for lawful entry and residence in the United States. AILA members also represent thousands of U.S. businesses and industries who sponsor highly skilled foreign workers seeking to enter the United States on a temporary or permanent basis. In addition, AILA members represent foreign students, entertainers, athletes, and asylum-seekers, often on a pro bono basis. Founded in 1946, AILA is a nonpartisan, not-for-profit organization that provides its members with continuing legal education, publications, information, professional services, and expertise through its 36 chapters and over 50 national committees. AILA is an affiliated organization of the American Bar Association and is represented in the ABA House of Delegates. American Immigration Lawyers Association 1331 G Street, NW Washington, D.C. 20005 Tel: (202) 507-7600 Fax: (202) 783-7853 www.aila.org
FROM GETTING WORK TO GETTING PAID: STRATEGIES FOR STARTING YOUR OWN IMMIGRATION LAW PRACTICE
by Matthew J. Maiona, Nicole Lawrence Ezer, and Nita J. Itchhaporia *
I couldnt wait for success, so I went ahead without it. Jonathan Winters Operating a business and practicing law at the same time is challenging. Starting a solo practice requires taking stock of ones finances, understanding what is needed not only to take care of personal and family obligations but also learning what is required to sustain and grow an immigration law practice. Congratulations on the decision to begin your own law practice: there is no other experience quite like it. This article will focus on three essential areas in starting a law practice from scratch: administration, technology and operation, and marketing. THE ADMINISTRATION OF YOUR BUSINESS The administrative aspects of solo or small firm practice can be daunting, but must be mastered. The multiple details that get a solo practitioner up and running must be performed at the same time as legal work, and often without outside assistance. Briefly, the essential phases of the administrative component can be described as follows: initial planning, including entity formation, location, and identity; creating the infrastructure to service clients; and generating revenue. Each solo practitioner must create a system that works for him or her, taking into account both physical space and clientele. Dont be afraid to ask; dont be afraid to try. Initial Planning Corporate Entity Choice The initial choice with regard to corporate entity depends on the individual practitioner; many lawyers simply hang out a shingle and go to work as sole proprietors without much deliberation about entity formation until the first tax season. Common choices are the sole proprietorship, the domestic limited liability company (LLC), or the private limited liability corporation (PLLC).
Matthew J. Maiona is a partner with Maiona & Maiona, PC in Boston, where he practices employment, family-based immigration law, and removal defense. Mr. Maiona is chapter chair of the AILA New England Chapter and has been an AILA NE Chapter liaison to Executive Office for Immigration Review (EOIR), U.S. Citizenship and Immigration Services (USCIS), National Democratic Alliance (NDA), and congressional staff. He has been a frequent presenter on various topics of immigration law to the AILA Northeast Chapter, AILA National, and others. Mr. Maiona received a bachelors degree cum laude from Boston College and obtained his J.D. at Suffolk University School of Law. He is listed in Super Lawyers and has been professionally rated by Martindale-Hubbell. Nicole Lawrence Ezer is the principal of the Ezer Law Group. She has years of experience designing, implementing, teaching, and updating business immigration programs and policies for Fortune 100 and Fortune 500 companies. A recognized expert in business immigration, she has worked with and trained international human resources personnel and businesspersons, for more than a decade. Ms. Ezer is a board-certified immigration attorney, a former law school adjunct professor, and an American Bar Association published author in the area of U.S. immigration and nationality law, and has been listed a Rising Star several times. Years of working as an attorney in multisite, multinational environments prompted her to open a practice dedicated to excellent service, in collaboration with an experienced, results-oriented professional team. After more than a decade of gratefully receiving education from AILA, she is delighted and honored to be one of the speakers at the national conference. Nita J. Itchhaporia is the founder and managing attorney of Counsel Law, a professional law corporation established in 1994 and located in downtown San Jose, CA. She represents and counsels corporations and individuals on inbound and outbound immigration matters. She is on the AILA National Liaison Committee to Nebraska Service Center (NSC) and the Local AILA Liaison to SJCIS. She frequently lectures and gives talks on immigration and provides pro bono legal service to various nonprofit organizations.
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Copyright 2011 American Immigration Lawyers Association
According to the Internal Revenue Service, a sole proprietor is someone who owns an unincorporated business by himself or herself. However, the sole member of an LLC is not a sole proprietor if the election is made to treat the LLC as a corporation. An LLC is a business structure allowed by state statute. Limited liability companies are popular because, owners have limited personal liability for the debts and actions of the LLC, which is similar to a corporation. Other features of LLCs are more like a partnership, providing management flexibility and the benefit of passthrough taxation. Owners of an LLC are called members. Because most states do not restrict ownership, members may include individuals, corporations, other LLCs, and foreign entities. There is no maximum number of members. Most states also permit single member LLCs, those having only one owner. 1 Practice Pointer: If at all possible, consider talking to an accountant or corporate lawyer prior to making your decision on corporate entity. It is an important decision well worth any fees associated with acquiring professional advice. Location Considerations One of the most immediate, obvious, and affordable options for a solo practitioner is a home office. Once a lawyer has joined the community of solo practitioners, he or she will easily find dozens of blogs and sites dedicated to home office practice. One upbeat example is the site called Home Office Warrior. 2 Practice pointers for a successful home office from this site include: Repeat After Me: I Am Working! Train friends and family to respect your work hours. Make your excuse, hang up the phone, and get back to work. Discipline Is a Must-Have. Stay focused; without discipline it is virtually impossible to stay on track. Treat Your Technology Like Royalty to ensure you dont experience costly downtime. Make the necessary investment for the systems you need to do your job well. Update your software regularly and run maintenance applications (virus check, system check, defrag) regularly. Create a contingency plan so you can continue to work in case of a problem with your primary computer. And please, back up your data! Get Organized and Create Systems NOW to create an environment conducive for work. The time you spend getting organized will serve you well for the life of your business. Setup (and Protect) Your Space. Create an area that works for your work. 3 While the physical location of a solo practice varies in importance, depending on clientele, many clients do not mind meeting at cafes or their own offices, delaying or eliminating the need for a formal office location in the initial stages. Client meetings can also occur in rented or borrowed conference rooms in libraries, banks, courthouses, law offices, or law schools. All clients require a secure location for the large amount of personal and financial data that is a hallmark of every immigration practice. Data privacy at an immigration practitioners office includes proper cyber security as well. The American Bar Associations Law Practice Management Section has published articles that recommend that all data transferred online between the law firms web site and the client be encrypted, and that agreements with third-party hosting providers should include policies and procedures in place for security breaches, data theft, privacy, and other concerns. Procedures that should be in place to guarantee the security of the firms client data, to provide for redundant backups, and to offer a procedure for exporting data on behalf of the law firm at the request of the law firm are also recommended. 4 Secure storage of clients physical files may be one of the biggest challenges for the home office practitioner. In addition, a successful solo practice must be able to send and receive correspondence to and from the U.S. Department of Homeland
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The Small Business and Self Employed Website, Business Structures, available at www.irs.gov/businesses/small/article/0,,id =98359,00.html. 2 www.homeofficewarrior.com. Top 5 Lessons Ive Learned in 5 Years of Working from Home. A. Gregory. Home Office Warrior, Oct. 30, 2008, available at www.homeofficewarrior.com/home-office-warrior/top-5-lessons-ive-learned-in-5-years-of-working-from-home/. 4 Practicing in the Virtual Realm: A Framework for Delivering Legal Services Online. R. S. Granit and M. Laurites. Nov. 2009, available at www.abanet.org/lpm/lpt/articles/ftr11093.shtml?ecamp=t-t141.
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Security (DHS) in a reliable and secure manner; the use of rented mailboxes is an acceptable and common solution for the home office practitioner. Success and a large number of client files will force even the most reluctant practitioner into formal rented or purchased office space. Office rental options that include utilities and maintenance and a receptionist are attractive; however, older buildings may have far better rates per square foot and more amenities may be offered and included for the solo practitioner who signs a longer lease. Amenities such as free, or close, parking may be a deciding factor, as well as the choice of internet provider and other necessary vendors servicing the building. Do not assume that anything is included in the lease unless specifically stated. Practice Pointer: Consider your client base when deciding to whether lease space for your law practice. While you may prefer a fancy building or up-market neighborhood, it may not offer comfortable or even reasonable access for your clients. Clearly you do not want to rent space that your clients do not want to visit. While older, more experienced solo practitioners may lament the missed opportunity to purchase an office during the early stages of their career, many new solo practitioners simply cannot afford this option. In some cases, lack of experience and certainty inform the decision as well as a lack of funding. A solo practitioner with time and resources to purchase an office may stumble upon the condominium offices that are prevalent in the southwest part of the United States; these offer options limited only by budget for decorating and set up. Generally affordable, these office spaces usually come with neither furniture nor a community, and, unlike office buildings, they dont provide opportunities for contact with others in shared common areas such as elevators and lobbies. This option may not suit an expanding practice as well as rented space would. Regardless of location selected, a solo practitioner should create and begin to use letterhead and business cards with the address of the new business as soon as possible, so that clients and the DHS will be able to reach the office. Building the Infrastructure to Service Clients and Generate Revenue Some big firm methodology and processes cannot be scaled down for solo practice, but there are several best practices that can and should be successfully be implemented in any office, regardless of size. Get a business account opened immediately, and acquire either a debit or a credit card for the business, regardless of the initial deposit amount. Solid banking structure practices engender client and vendor confidence. Paying DHS filing fees by check allows the lawyer to track the case, and at times to acquire receipt numbers from lost filings. Obtain malpractice insurance quotes and settle on the company that best meets your needs. Open courier, U.S. Postal Service, and U.S. Citizenship and Immigration Services (USCIS) e-filing accounts. Note that Staples, Office Depot, OfficeMax, and Costco all have various purchasing programs and provide delivery directly to the firm at no charge if you meet the minimum purchase requirement. Each state has its own Interest on Lawyers Trust Accounts (IOLTA) program. Some state IOLTA programs are voluntary, and attorneys can choose to participate or not; other state IOLTA programs are mandatory, requiring attorneys to participate. For information about how to enroll in your state, please visit the ABA Directory of IOLTA Programs. 5 Review the requirements for an IOLTA account and open one, if required. Dont be intimidated. A solo practitioner can open an office with a single immigrant visa case, depending on the cost of living in her state. Practice Pointer: Obtain a line of credit or small business loan for your new law firm if at all possible. Not only does this establish your relationship with a bank and give you a foundation of support, it helps build your new firms credit, which is something that will benefit you in the years to come. If this is not possible, call
To find the IOLTA Program in your state, go to www.americanbar.org/groups/legal_services/interest_lawyers_trust_ accounts/resources/directory_of_iolta_programs.html.
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vendors with whom you have worked over the years and open accounts in the name of your firm, so that you can acquire necessary services and supplies. The first excellent piece of legal writing in any solo or small firm practice should be a comprehensive letter of engagement of legal services between the lawyer and the client. This document should clearly set forth the terms of representation, with appropriate language about conflict of interest and terms of withdrawal of representation, the fee agreed upon, the terms of payment, and exactly what the fees do not coverfor example, the initial consultation, matters considered out of the ordinary (e.g., lack of client cooperation, DHS error or delay, meeting with a clients accountant or other lawyer), expenses, responses to denials, or responses to requests for additional evidence. If the practice bills on a flat-fee basis, then matters that are billed at an hourly rate should be clearly articulated to the client at the earliest possible point in the relationship. Solo practitioners should not feel intimidated about commencing work only after a letter of engagement is signed. In cases where introductions were made through a third party, such as a relocation services provider, it may be advisable to execute a separate letter of engagement with the client company, to clarify the scope and terms of representation. In addition, the letter of engagement should outline all your standard office policies and procedures, how the agreement can be terminated, what to do in case of a dispute, what action will be taken by the firm should the client not pay the invoice, and the firms file retention and destruction policy. When a letter of engagement is drafted, an invoice for services should also be created and, if possible, sent out in tandem with the letter. Most small offices open without large cash reserves, and requesting payment for filing and legal fees in advance is not uncommon. Do not be afraid to send invoices that say payable upon receipt; this sets forth the expectation of the lawyer. Many solo practitioners begin using this language out of necessity and simply never change it once the client becomes inured to immediately remitting payment. Large client companies will sometimes tolerate flexible payment arrangements; ask. Corporate clients who value a professional relationship with a trusted practitioner will sometimes agree to pay an up-front retainer from which funds are drawn, recognizing that the spend for immigration is not as large as other legal fees, if the option is presented by the solo practitioner in a clear, manageable format. Have a Form W-9 ready to send to the client to facilitate the payment arrangement. In addition, corporate clients may also be open to the use of their own courier accounts for deliveries and filings, as their corporate rate for domestic and international deliveries is usually far better than that of a solo practitioner or small office. Billing Program and System One of the most important requirementsand the number one downfall of most firmsis the establishment of a billing program. Before starting any practice, immediately establish a billing system that tracks all charges and collections for the services provided. There are many billing applications, e.g., QuickBooks, Quicken, Timeslips, and many more, that will help a solo practitioner stay on top of monthly billing. Further, consider whether you will accept payment through credit card or on line via Paypal or other Internet sites that assist in collecting payments. Acceptable methods of payment in each office should be based on the level of accounting support available to the practitioner. Accounting for a solo practice can acquire increased complexity with increased client numbers. Consider outsourcing this particular administrative task to a professional as soon as possible. Do not be afraid to refuse credit cards, or to have a policy that the office will accept only cash, checks, and wire transfers. For the first year, this will help to control overhead. Most corporate clients will not balk at a wire transfer option. No solo practitioner has time in his or her first year to chase past due bills or wants to write off bad debt. It is easier to refund fees than to try to collect fees. Practice Pointer: A solo practitioner should consider obtaining electronic bank services to add some speed to this aspect of the administrative work. Many banks allow customers to scan and send checks electronically for deposit into a business bank account. Keep invoices as simple as possible to avoid fee disputes and payment delays. Ensure that invoices are accurate, particularly for corporate clients; the accounting departments of most companies simply will not pay an invoice with a mathematical error. Ensure that client accounting preferences are followed so that internal corporate charge backs and reimbursements can be processed quickly. Ensure that the data intake process of any case includes an accounting component so that
accurate invoices can be sent to the correct party at the correct address. Respond promptly to yearly audit letters from corporate clients. Without a large, or any, staff, allocation of resources and time must be constantly reviewed by the practitioner. Spend time creating the templates and the intake forms that are required to commence successful practice and conserve time. One of the things solo practitioners often overlook is setting an hourly rate. This is dangerous, as it can create a false impression that the practitioners time has the same value regardless of activity or, worse, of no value. Areas of concern for the solo practitioner are offsite meetings with long travel times; redoing work outside the scope of the fee arrangement without payment; or underbidding a case. Most solo practitioners are delighted to do away with a formal time-keeping yoke, not realizing that time still costs money. Even practitioners who bill on a flat-fee basis need to have an idea of what their time is worth. OPERATING THE LAW FIRM Today, with vast technology and the increasing technological innovations, running a business is getting easier and more difficult at the same time. Solo practitioners are no longer tied to a desk to operate a business. Clients can locate a lawyer at any time in some cases and in many ways, by telephone, fax, e-mail, cell phone (iPhone, Blackberry, etc.), text, Twitter, Facebook, LinkedIn, and so on. Some firms close at 5:00 pm and others never close through a virtual presence on the Internet. The first step in operating a new business is to write a business plan. It will be the roadmapthe guide to getting and staying focused on your business and on target with individual needs and wants, and most important, keeping the practitioners vision! Write a Business Plan A business plan should be as specific as possible. It should outline what immigration services (nonimmigrant, immigrant, asylum, deportation defense, etc.) the firm will provide. What is the target client base and from where will the lawyers business come? What will the office charge for services? What will be the initial investment in the business, if any, and where will this come from? Will the money come from direct investment, or a loan from the bank, or will a third party fund the business through a private investment? Further, the business plan should outline the fixed expenses of the firm and the income required to cover monthly expenses, including labor costs. Overall, a solo practitioner should know what the monthly breakeven number is to stay on target. Maintain a low overhead in the beginning until steady business and income flow have been built. Prepare an Annual Budget Next, prepare an annual budget. This is an annual exercise whereby a list is made of actual and projected income and expenses. This is especially important for offices with limited resources. Businesses require cash to run and if the business does not stay within budget, it may soon find itself out of money. To operate the firm effectively and efficiently, consider what resources are needed to do the required work and what factors distinguish immigration practices from each other. Why should clients choose a particular firm for their immigration needs? What is offered that other attorneys may or may not offer? At the end of the day, it comes down to how good and competent each attorney is, and whether he or she can produce the work and achieve the results required by the clients. Select the Right Resources and Technology to Help Get the Job Done In order to assess the different resources and to select those that work best in a new, solo practice, talk to colleagues in the same practice area and interview various vendors before selecting the option that is the most convenient, is within the budget, and meets the requirements for a practice that, although it currently may be small, wont remain small forever. Try to think a few steps ahead of right now. Research Library Every law practice, regardless of size, must establish a resource library to research immigration issues that arise. Immigration attorneys can do this by purchasing essential reference and research books and publications from various vendors, including AILA, Matthew Bender, LexisNexis, etc. AILA has a
tremendous number of excellent, well-written, practical books written by colleagues in the field. One of the most popular is Kurzbans Immigration Law Sourcebook (AILA 2010 Ed.). Alternatively, AILA has an online electronic resource called AILALink (www.ailalink.org/), which provides access to most of AILAs resources without having to purchase individual books. It is invaluable. An annual per-user licensing fee provides unlimited use of the well-stocked online library. Matthew Bender and LexisNexis also provide excellent research materials to use in any practice. Further, there are many Internet websites (such as www.ilw.com, www.aila.org, and, of course, the websites for USCIS, for the U.S. Department of Labor, and for the U.S State Department) that provide a vast amount of immigration information. Hardware and Software to Run the Business To operate the business, the purchase of essential equipment, both hardware and software, will be required. Essential equipment includes, but is not limited to, computers (desktops, laptops, iPads), computer operating system (PC or Mac or Linux), one or more copiers (wireless or not), fax, a telephone system (a number of lines and telephones, voice mail, cellular phones), email service, Internet access (digital subscriber line, fiber optic, cable, or wireless), and word processing software (WordPerfect or MS Word). Cheaper, oneyear versions of most metadata and software programs can be found online. Case Management Software or Forms Programs Today, there are multiple companies that provide excellent case management software or a forms program to assist you in preparing petitions, tracking deadlines and visa expiration dates, and providing case updates to clients. A great place to review all the available systems and programs (e.g., LawLogix, Tracker, INSZoom, Cerenade, etc.) is at the AILA National Conference, where a practitioner can review all the options from the various vendors and usually make purchases at a discounted rate. Scheduling and Court Date Tracking System for Litigation Practice A solo practitioner who intends to establish a litigation practice must have a reliable scheduling and court date tracking system that comes with electronic and/or human reminders. Missing one court date or a filing deadline can be the end of a new practice and can result in being forced to defend allegations of malpractice. With all the various software packages, take the time to review and consider the specific licensing fees and costs involved. Hire Employees, Outside Contractors, or Outsource the Work Before hiring employees, consider what tasks and roles are needed and whether (and how much) the office has budgeted for salary and payroll taxes. Then, prepare a detailed job description that encompasses duties and responsibilities, e.g., secretarial duties, filing, data entry, preparing petitions and applications, work with and/or provide advice to clients. Through this exercise, one can determine whether an associate, paralegal, legal assistant, file clerk, secretary, or receptionist is needed. Alternatively, a sole practitioner can consider hiring a partner or hiring a senior attorney with similar or commensurate skills. This will be a most complex and critical point in a firms growth. Consider carefully the pros and cons of sharing and splitting the ownership of the firm. What will a partner or senior attorney do, and what will he or she add to the firm? Partnering can be a great way to elevate and grow a business quickly, since most partners will bring a book of business with them, with the obvious benefits, provided a mutually beneficial arrangement can be made. Hiring a senior attorney at the same or a similar level is also a good option, as it can help free up some time to do other work and to build the firm. As this person will generally require a relatively high salary or a piece of the business, ensure that both parties are positioned to see direct financial effects of hard work. Practice Pointer: Consider using outside contractors or outsourcing some work to keep overhead low (without assuming the full costs of employees). There are many contractors and outsourcing companies who are poised to assist solo practitioners in preparing petitions, RFEs, appeals, and other litigation documents. These companies also conduct research and even assist with scheduling and calendar maintenance if necessary. Ask local AILA attorneys whom they use in order to review and select the best business-specific options.
BUILDING A CLIENT BASE Building a client base (i.e., a source of income) is critical to the success of any new firm. When using traditional sources of advertising, it is essential to set a budget for marketing. The firms budget should include the development of a website, hosting services, online or print advertising, and business cards and similar items. Although the temptation may be to create a large, expensive marketing campaign with a flashy and costly website to attract customers, start small with a clear understanding of your target market. An attorney can always add to the offices current budget or amend contracts to add more services later, once the office is up and running. However, it is difficult to go in the opposite direction and subtract services once a contract is signed. Practice Pointer: The offers of technological glitz and services for marketing are endless and can be expensive. Do not forget that the practitioner himself or herself is the best advertising for the business. Get out to community meetings, to church, synagogue, or mosque groups, and to local chamber of commerce and industry association meetings. Offer to speak about immigration issues to their members for free. It is surprising how often an offer for free immigration information is accepted, and how practitioners willing to become community and industry lecturers become the lawyer that spoke to us that time in the minds of business owners and contacts, often engendering new business. It is important to maintain quality control. This aspect is particularly challenging if the practice consists of one individual who is the lawyer, the secretary, the office manager, and the paralegal. Regardless of the size of the office, a solo practitioner can strive for excellent work product. Set a standard of practice from the first day the office opens. It may be hard to meet this standard some days, and there may be reams of crumpled paper until that last typo is found and fixed, but a solo practitioner cannot afford to have poor work product. No lawyer can, but correcting documents and repairing damage are simply faster and easier with a staff, and more difficult with one person. Practice Pointer: Try to mentally review or open each client file daily.6 It may not be practical, or easy, or even possible on some days, but no practitioner is ever sorry that he or she did. Advertising Clearly, the days of running an ad in the local Yellow Pages and waiting for the first million calls are over. Thanks to electronic media, advertising opportunities are endless; however, no practitioners bank account is bottomless. Fortunately, there are many cost effective, even free, opportunities to post your new firm online. The most expensive option is not always the best option for every area of law or every set of finances. Research options online first and ask for contracts and payment schedules. Compare services and sites in advance and do not be bashful about asking questions. These businesses always want more business; even a solo practitioner can force competition for his or her business. Many companies will craft a sales pitch after finding a firm through Google or another search engine. Expect them to know something already about immigration law and solo practice, and to offer concrete solutions. There are many websites and technological tools available today whose stated aim is to assist a practitioner with his or her business. It is important to pick and choose wisely. Each tool requires work to maintain and to keep up to date. Some of the most popular sites are Facebook, Twitter, LinkedIn, MySpace, Plaxo, Yahoo Groups, and Yelp. Yelp is a referral site where clients can go online and give a review of their experience with your firm and/or with the attorney, which other prospective customers can use when looking for a firm or attorney for the same services. Now that you have established the business, know how to operate the business, and have purchased the necessary resources, technology, and tools, you must build a client base. Practice Pointer: There are many great advertising and promotional opportunities that are free or of little cost; LinkedIn and Facebook, for example, are two free marketing tools that can reach millions. Ethnic and local newspapers are often relatively inexpensive for practitioners targeting certain community or ethnic groups, and can be a great way to attract immigration court clients at little expense. Referrals come from relationships with attorneys in complementary legal practices, such as like employment law or criminal law.
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A. Elliott, Principal, Relink Global.

Places of worship, society meetings, and nonprofit organizations are additional places you might find clients in need of immigration court representation. Solo practitioners looking for business clients might try to speak at Rotary meetings, Chamber of Commerce meetings, human resources meetings, or similar forums. Once a solo practitioner has targeted his or her audience or niche, he or she should tailor all advertising to maximize the return on investments of time or money. Communicate a consistent message throughout all advertising mediums to present a knowledgeable and professional appearance and reputation. Marketing Ultimately, a solo practitioner sells only his or her offices knowledge of immigration laws and procedures. Mastery of the subject matter requires more than verbal assurances to potential clients that I know what Im doing. One can demonstrate competence in simple ways on a daily basis. Be informed about immigration law. Spend time on and allocate funds to continuing legal education, and identify and rely on proven strengths in starting your new practice. Potential clients need to feel that a lawyer understands their problem and can suggest a strategy or potential solution. Second, demonstrate professionalism. Return calls and emails daily if possible. This can be a daunting task when operating with minimal or no support staff. Consider reserving time during the day or during the week to return emails and phone calls. Third, create a referral source or sources from which clients can be acquired. These sources can be other attorneys, community groups, or other professionals. Building relationships with a diverse group of people allows a lawyers message to travel to many new contacts that would otherwise be out of reach. Many times, a simple referral from someone else convinces a client to select a particular attorney. One of the hallmarks of successful relationship building is the receipt of a referral from an unknown or indirect source, e.g., a friend of a friend. Maintaining and Growing a Practice Solo practitioners taking clients from an existing practice should invest time in some initial client handholding and soothing. Both the attorney and the clients will be undergoing a transition at the same time. These clients need to know that they can expect the same service and response time from the new practice that they did in the previous setting. These clients may require more time than a new solo practitioner would like to spend when growing a new business, but it is time well spent. These clients will contribute to the attorneys transition financially during the efforts to attract new clients. Many new practices do not have existing clients who are moving to the new office, and rely upon connections, relationships, and new clients to create a solo practice. These new clients, if given the good service described above, will form the cornerstone of any practice going forward. The greatest source of maintaining and growing a new practice will be satisfied clients. Clients who are treated professionally, are charged reasonably, and achieve their desired result will be your best marketing tool. Satisfied clients will tell relatives, neighbors, coworkers, and friends about their lawyer. Practice Pointer: Stay in touch with former clients by creating a newsletter or monthly email to send to them upon conclusion of representation of them. 7 Sophisticated case management software such as INSZoom even allows an office to send Happy Birthday e-mails to clients. Such personal touches are often appreciated by clients and not expected as part of the service from a small law firm. There are a lot of resources available for small firm and solo advertising, marketing, and client-building strategies online. The American Bar Association, the local bar, and AILA all have helpful information posted. Another resource to consider is www.myshingle.com. The most important thing to remember is that a solo practitioner can never do too much marketing. Every handshake and meeting can directly or indirectly lead to new clients!
M. Zwicker, Successful Client Newsletters: the Complete Guide to Creating Powerful Newsletters (1998).
THE BUSINESS SIDE OF RUNNING A LAW PRACTICE: THE IMPORTANCE OF STRATEGIC PLANNING AND PARTNERING WITH PROFESSIONAL CONSULTANTS
by Kirby Gamblin Joseph *
In todays business environment, running a successful law firm requires comprehensive and thoughtful planning rather than reactionary decision-making. Most attorneys pursue a legal education to practice law, but law schools typically offer very little training on effectively running ones own practice. Although attorneys can certainly become competent business people, it is helpful to consult with a strategic planner. Whether you are starting a new practice and have no employees or you have been operating your firm for a few years and have several employees, it is never too late to evaluate where you are and where you want to be in the future. Strategic planning creates an understanding of how your personal values and vision can impact the future of your firm. VALUES AND VISION Once you clearly identify your personal values and vision, you will be able to generate a plan for your firm and communicate it to your employees so that everyone collaborates toward the same goals. One of the biggest hurdles you may face is ensuring that everyone understands your expectations. For example, it is very easy for employees to want to help everyone regardless of their ability to pay. If you are motivated by revenue, then tell your staff. Failure to relay this information could produce mutual discontent because, although your employees may be working assiduously, their performance may not serve the firms vision. Your staff must adopt your vision in order to enhance the firms future, as well as employee retention and satisfaction. Based on your values and vision, a strategic planner can help develop a firm culture, provide a road map for achieving goals, and facilitate the best hiring decisions. Hiring attorneys and legal staff is one of the most difficult and important decisions associated with managing a law firm. A strategic planner can assuage your concerns by eliciting from you the ideals and skills that embody your ideal employee. Your employees and their values will shape the firms culture and client representation. Understanding what type of firm culture you want to create is critical in executing your vision. Hiring practices that conflict with your firms culture will breed dissatisfaction between you and your employees. YOU FIRMS TRAJECTORY Another important strategic decision involves determining when and how to foster your law practice. Attorneys frequently struggle with determining the best use of their time. For example, is it better to spend time marketing and attracting new clients or performing casework and billing? Strategic planners can provide guidance on the firms trajectory based on your vision. They can help you recognize your value in bringing in new clients, performing daily legal work, and managing your firm. You might realize that instead of focusing your energy in all of these areas, you should expend your resources in one area and hire employees to address the other areas. Deciding the best way to allocate your time will boost your firm.
Kirby Gamblin Joseph is the managing partner and a co-founder of Joseph Law Firm, P.C. in Aurora, CO. From 200607, she served as chair of the AILA Colorado Chapter. For 201011, Ms. Joseph is serving on AILAs Ethics and Law Practice Management Committee, and she will be chair of the Solo/Small Law Firm Business Clinic Committee in 201112. Ms. Joseph has been named a Top Lawyer in the area of immigration law by Colorado Super Lawyers magazine and she has been nominated by the Denver Business Journal, Wells Fargo Bank, and the National Association of Women Business Owners for the Outstanding Women in Business Awards.
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Strategic planners offer a great value to firms by fostering open communication between employers and employees. When everyone understands the firms ultimate goals, then they can work in harmony with one another.
GETTING MARRIEDJOINING WITH OTHER FIRMS AND CREATING PARTNERSHIPS WITH OTHER ATTORNEYS
by Philip C. Curtis *
You are a sole practitioner, or perhaps in an office with a couple of attorneys, and your business is stuck in a holding pattern. Revenues are flat, expenses never seem to go down, and it is a struggle to acquire new clients. What to do? Perhaps this is the time to consider joining forces with another attorney or law office. There could be many reasons why you would benefit from marrying another lawyer, but remember that such a marriage is actually a business transaction. Although the idea of getting married may seem attractive, it is something that you need to analyze carefully before moving forward. Your head definitely needs to guide your heart. Here are some things to keep in mind. Do You Really Want to Get Married? What Are the Reasons that You Might Be Better Off Joining with Another Firm or Joining Forces with Another Solo? Marketing. A larger firm provides a better marketing base. The firm will be more substantial, more serious and more professional. Professional Resources. With more resources, the firm can appeal to a broader range of clients and in particular larger clients who might be skeptical that a sole practitioner could effectively service their needs. The larger firm will be scaled to handle more cases and a broader range of issues. Economies of Scale. Merging practices will enable consolidation of staff, resources and overhead. Redundancies can be reduced or eliminated, and the same amount of individual investment can yield better or more sophisticated business systems. Regional Expansion. Merging with a firm in another state, or in a different region in your own state, would create a cross-region presence that could be beneficial. Complementary Skill Sets. We dont all do the same things well. Partnering with another attorney or firm might allow each to take advantage of the others strengths and stay away from each others weaknesses. Professional Camaraderie. Its more enjoyable to practice in a collegial environment where your fellow attorneys are engaged in the same business. Exit and Retirement Strategies. If you are a solo within a few years of retirement, it might make very good sense to investigate a partner well before you actually need or want to sell or otherwise wrap up your practice. Over the years, you have established a client base and goodwill. There well could be another lawyer who would be willing to give you a buyout in exchange for acquiring your practice. Finding the Right PartnerAre You Compatible? Youve decided to get married; perhaps you already have a prospective partner in mind. Dont rush to the altarspend some time analyzing whether and how the relationship might last for a good long while. Trust. Your marriage will be short if you dont, cant, or wont trust each other. This seems like a simple and obvious notion, but your finances and professional reputations will be tied to each other and it is vital that each partner be able to rely on the character, integrity, and ability of the other. Personality. Its not necessary to be best friends with your business partner, but youll need to do better than just get along. Consider whether the prospective partner has personality characteristics that will not wear well over the long haul.
Philip C. Curtis is a partner of Chin & Curtis, LLP, and has practiced immigration law since 1985. He has been in practice with Mr. Chin since 1994. Prior to joining Mr. Chins firm, Mr. Curtis was an attorney at Ropes & Gray in Boston, where he specialized in business immigration matters, labor and employment, and employment litigation. He has a broad range of experience in employment-based immigration, naturalization, worksite compliance, and federal and state litigation. Mr. Curtis is a graduate of Brown University and the University of Chicago Law School.
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Work Habits. A successful partnership can be forged from wildly different work habits, but be sure that you know what you are getting into. If you regularly come to work at 7:00 am, will you be able to tolerate someone who doesnt show up until 11:00 am? What Does Each of You Want to Get Out of the Marriage? It is important to get your mutual expectations on the table before you tie the knot. Try writing them down: why are we doing this, what is my benefit, what is yours, what will we mutually gain? Where Are We Going to Live? Work out the details of your lease well in advance; dont leave this important step to the last minute. Which Legal Entity Should We Choose? Meet with a qualified professional to review the various forms your new business might take. Most law firms these days are formed as an LLC, LLP, or professional corporation, but there could be another form of business entity that is right for you. State laws vary and so do tax consequences, and it is important to seek competent guidance. Often, the individual who advises you on the form of business entity will also assist with drafting your partnership agreement. Partnership Agreementthe Pre-nuptial You know you want to get married, and youve found a partner. The next step prior to moving in with each other is to codify your expectations for how the marriage will work on a day-to-day basis, and how it will end. Valuing the Merged Entities. Understanding the value of each partner to the marriage is a step that can be taken at any time, but in any event prior to or in conjunction with drafting the partnership agreement. At a minimum, each should know the revenue stream and expense structure of the other, as well as the history of client retention and the reliability of future revenues. Look at a history of at least three years. In situations where a near-term retirement buyout is contemplated, the buying partner should obtain a professional valuation of the business he or she is acquiring. Paying the Partners. Who gets what, and why. It goes without saying that the division of revenues and the allocation of expenses are critically important decisions. Will revenues and expenses be pooled, will each partner keep track of his or her own revenues and expenses, or will there be a combination of the two? Who gets credit for originating a client, and under what circumstances? What will happen if one partner works on a matter originated by the other? How will conflicts of interest be handled? It is important that you think through the various possibilities that might affect your situation. Running the Firm. Who handles what, from important decisions to routine and day-to-day management. For important decisions, will the majority rule or will there need to be unanimity? Can one partner exercise negative control? What Happens upon Divorce? Decide on the process now; dont wait for the separation. How will the firm be valued, and what will happen on its dissolution or the departure of one partner? How will clients be handled? Is the result different for any of these questions if the divorce is because of retirement or due to incompatibility? Additional Nuts and Bolts Now that youve done most of the hard work, there are still important loose ends to tie up. Redundant Staff and Excess Baggage. The new business doesnt need two office managers or two bookkeepers, and it can do just fine with fewer administrative staff. Who stays, and who goes? What about inactive files? Does the new firm pay to store them, or can some be destroyed? Redundant furniture and office equipment need to be dealt with as well. Office Systems. The new immigration law firm will likely need a practice management database, coordinated billing system, and uniform office software. Health Insurance and Other Benefits. Everyone employed by the new entity will be vitally concerned with benefits. As a larger operation, this new entity may be facing the question of benefits for the first time. If
GETTING MARRIEDJOINING WITH OTHER FIRMS AND CREATING PARTNERSHIPS WITH OTHER ATTORNEYS
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so, spend some time talking to a qualified advisor. Benefit plans can quickly become very expensive. This is a good time to contemplate the employee handbook as well. Malpractice and Other Forms of Liability Insurance. Finally, dont overlook these important items. Joining with another law firm or creating a partnership with another lawyer can be a great way to take your business to another level. It can lead to years of satisfying practice, a lasting brand name, enduring professional relationships, and perhaps even a rational retirement strategy. Just be sure that you follow your head as well as your heart.
NAVIGATING THE SOCIAL NETWORK: APPLYING ETHICS RULES TO BLOGS, FACEBOOK, TWITTER, AND OTHER SOCIAL MEDIA
by Carole A. Levitt, Mark E. Rosch, and Alan B. Goldfarb *
This article provides an overview of legal ethics issues for immigration attorneys using new social media. It starts with a discussion of advertising and legal advice issues, and proceeds with privacy concerns and potential areas for conflicts of interest. After highlighting specific issues of concern, the article concludes with some practical guidance for lawyers and law firms through a discussion of resources for creating their own social media policies to anticipate and avoid ethical violations. BLOGS, WEBSITES, AND SOCIAL MEDIA PROFILES: ADVERTISING AND LEGAL ADVICE ISSUES Could a Clients LinkedIn Recommendation of an Attorney Result in Ethical Charges? Although every state (except California) follows the ABA Model Rules of Professional Conduct, many states customized their rules and comments. This can result in some striking differences. For example, South Carolina customized ABA Rule 7.1, Communications Concerning a Lawyers Services. The Florida Bars Standing Committee on Advertising, on the other hand, created separate guidelines for social media sites. 1 ABA Rule 7.1 states: A lawyer shall not make a false or misleading communication about the lawyer or the lawyers services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. The comment to ABA Rule 7.1 states: Similarly, an unsubstantiated comparison of the lawyers services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client (emphasis added).
Carole A. Levitt, J.D., M.L.S (clevitt@netforlawyers.com/www.netforlawyers.com) is president of Internet for Lawyers, Rio Ranch, NM. She teaches lawyers how to find free information on the Web to make or break a case. She practiced law in California and was a law librarian and a legal research professor at Pepperdine Law School. She serves on the ABA LPMs Executive Council and Publishing Committee and is past chair of the CA State Bar LPMT Exec. Board. Carole co-authored 11 editions of The Cybersleuths Guide to the Internet and these ABA LPM books: Find Info Like a Pro, Volume 1 and 2, Google For Lawyers, and The Lawyers Guide to Fact Finding on the Internet (2 editions). Carole earned her J.D., with distinction, from the John Marshall Law School and her masters in library science from the University of Illinois. Mark E. Rosch is vice president of Internet for Lawyers (www.netforlawyers.com). He is a national CLE speaker who teaches lawyers how to use the Internet more effectively and how to use social networking sites (ethically) for investigative research and networking/marketing. Mark co-authored 11 editions of The Cybersleuths Guide to the Internet, and these ABA LPM books: Find Info Like a Pro, Volume 1 and 2, Google For Lawyers, and The Lawyers Guide to Fact Finding on the Internet (2 editions). He served on the ABA LPM Executive Council and the Publications Advisory Board. Alan B. Goldfarb is a partner in the law firm Davis & Goldfarb, PLLC in Minneapolis, Minnesota. He served as chair of AILAs Minnesota/Dakotas Chapter, as chair of the Immigration Section of the Minnesota State Bar Association, and on several AILA national committees, including AILAs Social Security Liaison Committee, ICE Liaison Committee, Ombudsman Liaison Committee, and Ethics and Professionalism Committee. He earned his J.D., cum laude, from the University of Minnesota. 1 The Florida Bar Standing Committee on Advertising, Guidelines for Networking Sites (Feb. 9, 2010) available at www.floridabar.org/tfb/TFBLawReg.nsf/9dad7bbda218afe885257002004833c5/a502e8b302def7a5852576e3004fc685!OpenD ocument.
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APPLYING ETHICS RULES TO BLOGS, FACEBOOK, TWITTER, AND OTHER SOCIAL MEDIA
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In contrast, South Carolinas Rule 7.1 2 added more sections and more comments, making its rule more restrictive than the ABAs Rule 7.1. South Carolina added (d) to Rule 7.1, which states: A lawyer shall not make false, misleading, deceptive, or unfair communications about the lawyer or the lawyers services. A communication violates this rule if it: (d) contains a testimonial (emphasis added); or In addition, Comments to South Carolinas Rule 7.1 do not include the ABA disclaimer language. In a LinkedIn recommendation on an attorneys profile, a client stated, Our employees greatly appreciate us using X immigration firm because it shows them we care enough to use the very best. He took the time to carefully answer all questions, and even used Instant Messaging chat as a communication tool. While these words were not written by the attorney, the attorney does have control over posting this recommendation. Thus, the part of the posting that labels the firm the very best might violate ABA Rule 7.1 if it is considered misleading under the comment to Rule 7.1: [A]n unsubstantiated comparison of the lawyers serviceswith the services of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. On the other hand, if the very best is not considered specific enough, perhaps it wouldnt be misleading under ABA Rule 7.1. But is carefully answer all questions, and even used Instant Messaging chat specific? Does this imply other immigration attorneys dont carefully answer all questions, and even used Instant Messaging chat? Can this be substantiated? According to Virginia State Bar Lawyer Advertising Opinion A0113, a clients statements about an attorney that says the attorney is, the best, is a comparison that cannot be factually substantiated. 3 Instead of playing the above guessing game, it might be best to use the disclaimer suggested in ABA Rule 7.1s comment noted earlier to preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client. In contrast, if this recommendation is considered a testimonial, it would most likely be unethical under the South Carolina Rules even with a disclaimer, according to the South Carolina Bar Ethics Advisory Committee, Ethics Advisory Opinion 0910 and the entire profile might even have to be taken down if the attorney cannot take down just one piece of the profile: Information on business advertising and networking websites are both communications and advertisements; therefore, they are governed by Rules 7.1 and 7.2. While mere participation in these websites is not unethical, all content in a claimed listing must conform to the detailed requirements of Rule 7.2(b)(i) and must not be false, misleading, deceptive, or unfair...Client comments may violate Rule 7.1 depending on their content. 7.1(d) prohibits testimonials, and 7.1(d) and (b) ordinarily also prohibit client endorsements. See Cmt. 1. In the Committees view, a testimonial is a statement by a client or former client about an experience with the lawyer, whereas an endorsement is a more general recommendation or statement of approval of the lawyer. A lawyer should not solicit, nor allow publication of, testimonials. A lawyer should also not solicit, nor allow publication of, endorsements unless they are presented in a way that is not misleading nor likely to create unjustified expectations. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client. Cmt. 3 (emphasis added). Lawyers soliciting client comments on web-based business listings are also cautioned to adhere to Rule 8.4(a), which prohibits lawyers from violating the Rules of Professional Conduct through the acts of another. Even absent a specific prohibition against testimonials, several states have concluded that client comments contained in lawyer advertising violate the prohibition against misleading communications if the comments include comparative language such as the best or statements about results obtained. See, e.g.,
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S.C. Rules of Profl Conduct R. 7.1, available at www.law.cornell.edu/ethics/sc/code/SC_CODE.HTM#Rule_7.1. Virginia State Bar Lawyer Advertising Op. A-0113 (2000), available at www.vsb.org/site/regulation/lawyer-advertisingopinion-a-011.3
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Virginia State Bar Lawyer Advertising Opinion A-0113 (2000). Rule 7.1(c) prohibits comparative language in all communications, Rule 7.1(b) prohibits statements that are likely to create unjust expectations about results, and Rule 7.2(f) prohibits self-laudatory language in advertisements. Therefore, a lawyer should monitor a claimed listing to keep all comments in conformity with the Rules. If any part of the listing cannot be conformed to the Rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service. 4 Because South Carolinas Rule 7.1 includes an explicit prohibition against testimonials, there seems to be no room for an ABA suggested disclaimer that could preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client. South Carolinas ethics opinion also notes that Rule 8.4(a), which prohibits lawyers from violating the Rules of Professional Conduct through the acts of another, requires attorneys to monitor their claimed listings to insure that clients comments dont violate the Rules. Check your state bar rules to see if they conform to ABA Model Rule 7.1 or mimic (or lean more towards) South Carolinas Rule 7.1 before you accept a clients recommendation on LinkedIn or similar sites. The Florida Bar Standing Committee on Advertisings Guidelines for Networking Sites 5 states that: Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyers page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules. If a third party posts information on the lawyers page about the lawyers services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyers page. If the lawyer becomes aware that a third party has posted information about the lawyers services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyers request. This guidance is somewhat confusing. If an attorney did not prompt the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules, it is unclear whether the lawyer is responsible for the information and whether the lawyer must remove the information that does not comply with the lawyer advertising rules. Can Attorneys State Their Fields of Practice and Specialization in Their LinkedIn Profile Without Violating Any Rules of Ethics? LinkedIn provides a Specialties section on the profile page. Although this is LinkedIns label for the section, some may argue that when an attorney describes his or her practice beneath the Specialties label, they are implying they are certified as a specialist in the described practice area. For example, if you describe your practice area beneath the Specialties label as Immigration Law, are you claiming to be a specialist (which could imply certified) in this area or merely communicating the fact that you practice in this particular field? ABA rule 7.4: Communication of Fields of Practice and Specialization provides in pertinent part: lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law and (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless. 6 The comment to this rule states,
S.C. Bar Ethics Advisory Comm., Advisory Op. 09-10 (2009), available at www.scbar.org/member_resources/ethics_ advisory_opinions/&id=678. 5 The Florida Bar Standing Comm. on Advertising, Guidelines for Networking Sites (Feb. 9, 2010), available at www.floridabar.org/tfb/TFBLawReg.nsf/9dad7bbda218afe885257002004833c5/a502e8b302def7a5852576e3004fc685!OpenD ocument. 6 Model Rules of Profl Conduct R. 7.4.
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A lawyer is generally permitted to state that the lawyer is a specialist, practices a specialty, or specializes in particular fields, but such communications are subject to the false and misleading standard applied in Rule 7.1 to communications concerning a lawyers services. 7 Thus, it can be argued that because you are not using the word certified you would not be violating Rule 7.4 merely by stating your practice areas beneath a Specialties label supplied by LinkedIn (which cant be deleted or changed). This argument is bolstered by the comment to ABA Rule 7.2, which specifically states that you can use variations of the words specialist such as specialty. However, if your state rules are more restrictive, you might need to practice safe social networking by adding a disclaimer that you are not certified as a specialist in these areas of law (or that there is no certification for this area of law in your state, if that is the case). In Florida, Rule 4-7.2(c)(3) 8 states that unless a lawyer is certified by the Florida Bar (or an organization accredited by the Bar or another state bar) and displays the name of the certifying organization, A lawyer shall not state or imply that the lawyer is a specialist. Thus, it may be inappropriate for non-certified Florida attorneys to add their areas of practice into the section labeled Specialties in their LinkedIn profile. Would Answering a Legal Question Posted to a Social Media Site Ever Create a Client-Lawyer Relationship? With the advent of the Internet and the ensuing web sites, blogs, chat rooms, and now social media sites, the public has found new ways to ask lawyers for answers to their legal questions. Lawyers must be careful not to create a client-lawyer relationship inadvertently when they use social networking sites (and similar types of sites) because they may just find themselves embroiled in a malpractice lawsuit if the so-called client relies on the lawyers advice to the clients detriment and then is able to prove a client-lawyer relationship existed. The relevant ABA Rule is 1.18, Duties to Prospective Client, which states that (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client and... 9 In a lawyer social networking site, a lay person posed the following question: I am divorcing my husband. Is my car accident settlement community property in California? The attorney referred the individual to a relevant California case and said, Give it to your family law lawyer, I mostly practice immigration law. The lawyer would most likely argue that he was not creating a client-lawyer relationship but was simply educating the lay person by supplying a relevant case and by specifically telling her to give it to her lawyer and saying he mostly practices immigration law, he was saying, I am not your lawyer. On the other hand, if the woman was representing herself pro se and relied upon the case to her detriment (e.g. it had been overruled or reversed, unknown to her), she might claim that the lawyer created a client-lawyer relationship. She might argue that by giving her a case, she assumed it was the most current case about her issue and that he intended her to use it. She might also argue that by saying, Give it to your family law attorney, he was actually being coy and hoping she considered him to be her lawyer (even though he mostly practices immigration law). You may be able to avoid creating a client-lawyer relationship if you answer legal questions at social media sites (or on blogs) by giving very general information and not giving answers to specific legal questions, not supplying cases or statutes, and not giving legal advice. In addition, you should use the same types of disclaimers on your social media profile that you use on your firms website to avoid inadvertently creating client-lawyer relationships. ABA Formal Opinion 10-457 10 has disclaimer information for lawyer web sites. Even though it does not focus on lawyer social media profiles, the two often involve analogous issues, so you might find it useful for your social networking profile disclaimer. In that opinion, you are advised that your disclaimers must be written [s]o as to avoid a misunderstanding by the website visitor that
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Id. Florida Rules of Profl Conduct R. 4-7.2, available at www.law.cornell.edu/ethics/fl/code/FL_CODE.HTM#Rule_4-7.4. 9 Model Rules of Profl Conduct R. 1.18. 10 ABA Comm. on Ethics and Profl Responsibility, Formal Op. 10-457 (2010), available at www.abanet.org/cpr/pdfs/10457.pdf.
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(1) a client-lawyer relationship has been created; (2) the visitors information will be kept confidential; (3) legal advice has been given; or (4) the lawyer will be prevented from representing an adverse party. 11 FACEBOOK, LINKEDIN, AND OTHER SUCH SITESPRIVACY ISSUES There are at least three privacy issues that can arise when lawyers are dealing with social media: whether a third partys private profile is subject to discovery, how attorneys should set their own privacy settings, and how attorneys can pierce a third partys private profile without using traditional discovery methods. The focus of this discussion will be on the last issue and how it impacts an attorneys ethical obligations. Social media profiles contain all kinds of personal information that attorneys can often use to attack a third partys credibility, which is why attorneys are particularly interested in viewing them. If the profile is private, however, this poses a block to retrieving the information. There are three ethical opinions about a third partys social media profile and two of them focus on whether it is ethical for attorneys to pierce these private profiles (the other focuses on using information found in public profiles). Private Profiles and Ethics Is it Ethical for an Attorney to Ask a Non-Lawyer Assistant to Friend the Ex-Wife of a Beneficiary if the Non-Lawyer Uses Her Real Name But Fails to Disclose the Reasons for Making the Request? Scenario: A U.S. citizen wife thinks that the husband she is sponsoring for permanent residence has been unfaithful and that he might be still seeing his ex-wife from his home country. The ex-wife also remarried and is pursuing permanent residence based on her new marriage to a U.S. citizen. The U.S. citizen wife wants to talk to an immigration lawyer confidentially about the impact of a separation on her husbands case, but she wants to be sure she has her facts straight, so she asks the immigration lawyer to do some investigating for her, such as trying to find the husbands ex-wifes Facebook profile (the husband does not have a Facebook profile). The lawyer is considering asking the firms part-time legal assistant, using her real name, to attempt to friend the ex-wife, but without disclosing the reason for the friending. Is this ethical? The Philadelphia Bar Associations Professional Guidance Committee Opinion Says Friending an Unrepresented Witness Violates Several Ethical Rules, Even if You Use Your Real Name The Philadelphia Bar Associations Professional Guidance Committee Opinion 2009-02 (March 2009) 12 addresses a similar question from a lawyer who wished to gain access to an unrepresented witnesss private profile to use the profile information against the witness during litigation. In that instance, the inquiring attorney asked if he would be in breach of professional conduct rules if he asked a non-lawyer assistant to friend the witness, without the assistant explaining the reason for the request or disclosing that the assistant worked for the attorney. The opinion authors explained that even though the attorney is not making the actual friend request, the attorney is responsible for his nonlawyers conduct because of Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants). Therefore, if the nonlawyers conduct is violative conduct under any of the Rules of Professional Conduct, then the attorney would be in breach of the Rules. The opinion authors found that: The proposed course of conduct contemplated by the inquirer [the lawyer] would violate Rule 8.4(c) because the planned communication by the third party [the assistant] with the witness is deceptive. It omits a highly material factnamely that the third party who asks to be allowed access to the witnesss pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness. 13
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Id. at 56. Phila. Bar Assn Profl Guidance Comm., Op. 2009-02 (2009), available at http://tinyurl.com/cgwgwr. Id. at 3.
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The proposed conduct also violates Rule 4.1 because it constitutes the making of a false statement of material fact to the witness. 14 Because the violative conduct would be done through the acts of another third party, this would also be a violation of Rule 8.4(a). 15 Because it is highly unlikely that an unrepresented witness would friend your part-time legal assistant once she provided her real name and real reason for friending (to use information in the witnesss private profile against the husband), you would need an order to compel the ex-wife to turn over her private profile (assuming you can convince the judge there is relevant information). It is difficult to predict whether a judge would issue such an order. Interestingly, in Barnes v. CUS Nashville, 16 instead of compelling witnesses to turn over their private profiles, the magistrate found that because the issue of who took pictures of the plaintiff and her friends dancing on a bar was highly relevant to the plaintiffs personal injury case, he would create a Facebook account and ask the witnesses to friend him for the sole purpose of reviewing photographs and related comments in camera and review and disseminate any relevant information to the parties. The magistrates friending was his attempt at expediting discovery regarding the photographs, their captions, and comments. The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Says Friending Is Ethical if You Use Your Real Name For a completely different take on a similar question, see the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Opinion 2010-2 (Sept. 2010), 17 where the committee concluded that there would be no violation of the rules of professional conduct if an attorney or her agent used her real name and profile to send a friend request to obtain information from an unrepresented persons social networking website without also disclosing the reasons for making the request. However, the committee noted that a lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent. 18 The committee said: Rather than engage in trickery, lawyers canand shouldseek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful friending of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individuals social networking page. Given the availability of these legitimate discovery methods, there is and can be no justification for permitting the use of deception to obtain the information from a witness on-line. Accordingly, a lawyer may not use deception to access information from a social networking webpage. Rather, a lawyer should rely on the informal and formal discovery procedures sanctioned by the ethical rules and case law to obtain relevant evidence. 19 If the ex-wife in this scenario accepts the part-time legal assistant as a friend, even though she doesnt know your assistant is connected to you and her ex-husbands immigration matter, as long as your assistant used her real name, this would not be considered trickery according to the New York City Bar. Thus, if you are a New York attorney who wants to send a friend request to an unrepresented person, you will have an easier time meeting your ethical obligations than a Pennsylvania attorney because you are only obliged to use your real name and need not disclose your reason for making the request
Id. at 4. Id. 16 Barnes v. CUS Nashville, No. 3:09-cv-00764, 2010 U.S. Dist. LEXIS 52263 (M.D. Tenn. June 3, 2010), available at http://tinyurl.com/cusnashville. 17 Assn of the Bar of the City of New York Comm. on Profl and Judicial Ethics, Formal Op. 2010-2 (2010), available at http://www.abcny.org/Ethics/eth2010.htm. 18 Id. 19 Id.
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Could a Lawyer Representing a Client in Pending Litigation Access the Public Pages of Another Partys Social Networking Website for the Purpose of Obtaining Possible Impeachment Material for Use in the Litigation? Would any of the above ethical dilemmas arise if an attorney was trying to access a public profile to use the information contained in the profile as evidence? Weve always said probably not when this question has been posed to us. After all, if the profile is open to the public, there would be no need to pierce the profile by a friend request, so there would be no deceit or false statements involved. A recent New York State Bar Association Committee on Professional Ethics validated our above supposition in Opinion 843 (September 10, 2010). 20 There, the committee said, A lawyer representing a client in pending litigation may access the public (emphasis added) pages of another partys social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation. 21 Further, the committee explained: New Yorks Rule 8.4 would not be implicated because the lawyer is not engaging in deception by accessing a public website that is available to anyone in the network, provided that the lawyer does not employ deception in any other way (including, for example, employing deception to become a member of the network). Obtaining information about a party available in the Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted. Accordingly, we conclude that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyers client in litigation as long as the partys profile is available to all members in the network and the lawyer neither friends the other party nor directs someone else to do so. 22 It hardly seems that the New York State Bar Association Committee on Professional Ethics needed to write this opinion because viewing public pages of another partys social networking website, in and of itself, is not deceptive. The opinion is, however, a good reminder that attorneys should not use deception in any other way which is defined as, including, for example, employing deception to become a member of the network. New York attorneys looking for guidance about what would be considered deception in any other way could look to the New York City Bars definition of deception, which they explained would be the failure to use your real name in a friend attempt. This sets a lower bar than the Philadelphia Bar Associations Professional Guidance Committee set for Pennsylvania attorneys, which would be the failure to use your real name in a friend attempt, and failure to include the reason for the friending. The real problem is, what should an attorney who practices in both states do? Wed recommend following the stricter guidelines if you want to practice safe friending. PERSONAL SITES, CLIENT SITESCONFLICTS OF INTEREST The impact of a Hennepin County prosecutors derogatory Facebook posting about Somalis provides just one example of conflicts created by what an attorney posts to her own social networking profile. The prosecutor posted her comments during a Somali mans trial for attempted murder. Her professional work in court led to his conviction, but her private posting online served as the basis for his new trial motion. 23 The prosecutor likely now appreciates what we should all understand, that attorney misconduct is amplified online. Private conversations are now being relayed to a much broader audience, while leaving a digital trail for ethics investigations.
N.Y. State Bar Assn Comm. on Profl Ethics, Op. 843 (2010). Id. at 1 (emphasis added). 22 Id. at 23. 23 Hennepin County Prosecutor Accused of Anti-Somali Posting on Facebook, by R. Olson, Minneapolis Star Tribune, Feb. 17, 2010.
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Using social media sites may be a recent development, but resolving conflicts of interests has long been a standard part of law practice. The preamble to the ABA Model Rules of Professional Conduct emphasizes that all difficult ethical problems arise from conflicts between a lawyers responsibility to clients, to the legal system, and to the lawyers own interests. 24 Lawyers increasingly use social networking sites to promote their practice, to research and gather evidence, and to communicate with clients, and these different purposes inevitably lead to conflicts of interest. The ABAs Commission on Ethics 20/20 identified the challenge of maintaining personal and professional boundaries for lawyers using Internet-based client development. Because lawyers frequently use these websites and services for both personal and professional reasons, the legal ethics issues in this context are more complicated than they have been for more traditional client development tools. 25 Immigration lawyers handling a case involving dual representation need to pay even greater attention to possible conflicts of interest online. Considerations Before Connecting with Clients A lawyers decision to friend a client may be less consequential than a judges decision to friend a lawyer, but both require some degree of caution. The decision may be easier for judges. Floridas Judicial Ethics Advisory Committee actually recommended against judges becoming friends with lawyers on social networking sites. According to the Florida Committee, listing lawyers as friends creates the appearance of a conflict of interest because it reasonably conveys the impression that the lawyer friends are in a special position to influence the judge. 26 A minority of the committee disagreed: Social networking sites have become so ubiquitous that the term friend on these pages does not convey the same meaning that it did in the pre-internet age. 27 Judicial ethics authorities in other states have followed the minoritys more nuanced position that online friendships do not, by themselves, imply that the attorney is in any special position to influence the judge. 28 According to these authorities, the online friendship is simply one factor among others to consider in deciding whether there is a close social relationship for a judicial conflict of interest. Not surprisingly, the public nature of social media relationships creates problems for both judges and attorneys alike. Attorneys and judges who use social networking sites for strictly personal reasons may have trouble separating personal from professional contacts. Unlike judges, attorneys have other compelling reasons to use social media, including for marketing. While personal recommendations are still the most trusted form of advertising, online recommendations have strong and growing levels of credibility. According to a recent Nielson study, 70 percent of consumers trust online recommendations. Using social media levels the playing field for attorneys in small firms by making it easier to market on a smaller budget. 29 ABA Model Rule of Professional Conduct 1.6(a) on confidentiality of information provides that: A lawyer shall not reveal information related to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). Comment to Rule 1.6 [2] A fundamental principle in the client-lawyer relationship is that, in the absence of the clients informed consent, the lawyer may not reveal information relating to the representationThis contributes to the trust that is the hallmark of the client-lawyer relationship. [4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.
Preamble and Scope, ABA Model Rules of Professional Conduct. Issues Paper Concerning Lawyers Use of Internet Based Client Development Tools, ABA Commission on Ethics 20/20 Working Group on the Implications of New Technologies, Sept. 20, 2010. 26 Florida Supreme Court, Judicial Ethics Advisory Committee, Opinion Number 2009-20, Nov. 17, 2009. 27 Id. 28 See, Ethics Committee of the Kentucky Judiciary, Judicial Ethics Opinion JE-119 (Jan. 2010). 29 Nielson: Consumers Trust Online Opinions, Adweek, by D. Gianatasio, July 9, 2009.
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As an initial matter, attorneys need to be careful about simply contacting clients with friend requests. The attorney-client relationship is not for the attorney to disclose. Attorneys may have good reasons to want to connect with past, present, or potential clients, and to maintain ongoing relationships with clients. This makes particular sense in immigration practice, since clients keep coming back as they go through the process of adjusting status, removing conditions on permanent residence, naturalizing as citizens, and petitioning for family members. Some attorneys adopt a practice of waiting for clients to contact them with friend requests, and even then, they would be prudent to advise clients who make the request that merely listing them as friends on their social media sites might give away information that would otherwise be confidential. 30 Use Caution in Posting About Clients Beyond making the initial online connection with clients, attorneys need to comply with Rule 1.6 regarding the content of their sites. Website disclosure of client identifying information is not normally impliedly authorized because the disclosure is not being made to carry out the representation of a client, but to promote the lawyer or the law firm. 31 Although this may seem clear enough, information that is even tangentially about a client may cause problems. An assistant public defender in Illinois who wrote a blog about her cases carefully hid clients names. Still, she not only lost her job, but she also faced disciplinary charges for revealing confidential client information. In a hypothetical situation, an immigration attorney may innocently write an online post for marketing or educational purposes about defending a corporate client in an I-9 inspection, naming the industry, but not the client. The post is now out for the world to see. The attorney wrote with enough specificity to disclose potentially damaging confidential client information following publication the next day of a newspaper article, prepared from an employee source, naming the company in connection with a worksite enforcement investigation. Additional Concerns with Dual Representation Immigration lawyers routinely represent two parties in the same matter. They represent both corporations and foreign nationals in employment-based applications and both citizen and foreign national spouses in family-based applications. Because the objectives of both parties usually remain the same throughout the process, retaining separate counsel is likely to be considered too expensive or impractical because of difficulties in communication and overlap in services. Still, this type of dual representation already carries greater risk of conflict. Much has been written about different approaches to dual representation, the importance of clarifying at the outset the implications of common representation, and how attorneys can represent two clients with interests that may diverge. 32 Attorneys in dual representation must continually assess whether it is possible to represent both clients and to maintain their duty of loyalty and confidentiality to each client. Dual representation is permitted unless there is a present conflict of interest. Rule 1.7(a) provides that Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer. Rule 1.7(b) states that: Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.
See Why Cant We Be Friends, ABA Journal, by L. A. Gordon, Jan. 1, 2010. ABA Committee on Ethics and Professional Responsibility, Formal Opinion 10-457 (Lawyer Websites). 32 See B. Hake, Dual Representation in Immigration Practice, Ethics in a Brave New World, 28 (AILA 2004 Ed.); C. D. Mehta, Finding the Golden Mean in Dual Representation, 06-08, Immigration Briefings 1, (Aug. 2006).
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Comments to Rule 1.7 [29] In considering whether to represent multiple clients in the same matter, the lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment, and recrimination. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. Attorneys try to minimize conflicts by explaining to co-clients at the beginning that the case involves dual representation and identifying where conflicts may arise. Still, some conflicts are unavoidable. The widespread use of social media sites is likely only to increase conflicts between jointly represented clients. These sites have become such a valuable research tool for attorneys in contested matters because they reveal important and often embarrassing information about the other side. The previously discussed Philadelphia Bar and New York City Bar opinions on ethical traps for lawyers accessing private profiles implicitly highlight the value of information available from another partys social networking site. 33 The scenario from section three could easily apply to immigration lawyers representing two clients in a marriagebased petition. In a variation of this scenario, the petitioning spouse and her husband are represented by the same immigration attorney. The spouse not only discovers her husbands infidelity by accessing his Facebook profile, but she also finds out on her own that he is still seeing his ex-wife from his home country who also is married to a U.S. citizen. The jointly represented clients are now in direct conflict under circumstances that raise concerns about possible marriage fraud, which may trigger a duty of candor to the tribunal under Rule 3.3. The attorney would not be able to protect confidential information between jointly represented clients. Moreover, the attorneys duty of confidentiality to the husband would be qualified by the duty of candor to the tribunal. EDUCATING AND RESTRAINING YOUR STAFF REGARDING THE APPROPRIATE USE OF SOCIAL MEDIA Hardly a week goes by without a news report of someone dealing with the consequences of a post they made on a social media site. Whether its a waitress fired for posting derogatory remarks about a customer on Facebook, a job offer thats rescinded because of an errant Twitter post, or a college professor denied tenure over the sex-related Web site she ran (not on school time), these incidents are no longer novel. Their prevalence illustrates why having a social media policy for employees is important. Law firms are no different than any other business in their need for an employee policy to define what is and is not acceptable behavior for employees to engage in online as it relates to the firms reputation and commercial interests. For law firms though, it goes far beyond just protecting their brand or keeping customers satisfied. Law firms have the added concerns of running afoul of the rules of professional conduct that guide the profession and can mean the difference between remaining in good standing and being disciplined or even disbarred. Law firms must also contend with the potential for the revelation of client confidences, the inadvertent creation of an attorney-client relationship, violation of the rules governing attorney advertising, or the appearance of the unauthorized practice of law. Creating a Social Media Policy for Your Firm ABA Model Rules of Professional Conduct 5.1 and 5.3 lay out the responsibilities of lawyers with supervisory responsibilities. These rules make a good argument for a law firms need to implement a social media policy. Section 5.1(a) states that, A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (available at www.americanbar.org/groups/professional_responsibility/publicat
Assn of the Bar of the City of New York Comm. on Profl and Judicial Ethics, Formal Op. 2010-2 (2010); Phila. Bar Assn Profl Guidance Comm., Op. 2009-02 (2009).
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ions/model_rules_of_professional_conduct/rule_5_1_responsibilities_of_a_partner_or_supervisory_lawyer.h tml). Rule 5.3 lays out similar responsibilities over the firms nonlawyer employees and the comments to Rule 5.3 (and Rule 5.1) make it clear that the firm should have internal policies in place so nonlawyers and lawyers in the firm conform to the Rules of Professional Conduct (available at www.americanbar.org/ groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_3_responsibili ties_regarding_nonlawyer_assistant.html). Comments to Rule 5.3 [1] A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. [2] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct. As with any policies, the social media policy should be written and distributed, employees should acknowledge receipt, and the policy should be updated. It should also include disciplinary and/or corrective actions for violations. What to Include in the Policy Without trying to sound contradictory, the policy should be both specific and broad. It should specifically address the types of information and/or actions that can and cant be engaged in. It might also spell out activity allowed only with the prior consent of the managing partner (or some other management designate). However, the policy should be broad enough to anticipate further developments in social media (e.g., new forms of online communications and/or sharing). Some must-cover items would include: Computers and technology are firm property With the appropriate employee expectation of privacy Many policies govern an employees private computer use outside work Complete prohibition of unlawful use of computers/Internet Policy should be tied to the harassment prevention policy Cover as wide a range of online activities as possible, including social networking sites (e.g., Facebook, Twitter), blogs, and comments left on the sites of others Client confidentiality is sacrosanct Personal social media activity must be kept separate and distinct from professional social media Employees cannot maintain social media sites dedicated to legal issues or law firm practice without prior firm authorization Employees must get permission before using firms logo or speaking on behalf of firm Employees should always be transparent and honest about their affiliations; they should never be false or misleading (This may, in fact, be covered by the FTCs Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 CFR Part 255 (2009), available at www.ftc.gov/os/2009/10/091005endor sementguidesfnnotice.pdf.) Permitted posts should be factual, correct, and verified
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Getting Started with a Social Media Policy In some ways, a social media policy is just an extension of your firms existing communications policies. If you already have established communications policies in place, social media might be handled with the addition of language such as: Substantive legal and professional materials intended for a social media site, blog, or other electronic media site must conform to the same review standards as any printed or otherwise distributed material from the firm. If you are creating a new social media communication strategy from scratch, issues of client confidences might be handled by language such as: Firm matters, including firm business matters and matters involving firm clients, may never be posted, discussed, transmitted, or alluded to on any social media site (personal or private) without specific authorization. Client confidences and secrets may never be posted, discussed, transmitted or alluded to on any social media site (personal or private). A Resource for Completed Sample Policies Although this list of must-covers can seem daunting, luckily you dont have to start from scratch. Chris Boudreaux, an executive with business consulting firm Converseon, has created a collection of links to nearly 175 policies covering social media, e-mail, and other types of electronic communication (http://socialmediagovernance.com/policies.php). The list includes law-related entities, such as Baker and Daniels and Harvard Law School, as well as dozens of large and small companies in an array of industries. A Form-Based Policy Generator If youre looking for another head start to help you build a social media policy for your firm, the Policy Tool for Social Media (http://socialmedia.policytool.net) offers a free tool that includes a series of fill-in-theblank forms to create a personalized policy for your firm. By its own description, the site is a policy generator that simplifies the process of creating guidelines that respect the rights of your employees while protecting your brand online. As with any form, the policy that this site generates should not be relied on without careful review and (in most cases) further customization to fit your precise needs. Its also extremely important to note that the form policy was created by a Canadian IT firm in collaboration with Canadian technology lawyer David Canton so be certain to look for inconsistencies in the law and policy languages that come with this kind of crossborder adaptation. Additionally, the site presents a lengthy disclaimer that reads in part: This tool is intended to provide assistance to create a social media policyit does not provide legal advice. We do not warrant the completeness, timeliness or accuracy of the output of the tool, which is provided as is. The user is encouraged to seek legal advice to ensure that the document produced by this tool is appropriate for the users circumstances and jurisdiction. While every law firm has different requirements, dictated by their individual circumstances, this advisory gives you a series of starting points to craft a social media usage policy that fits your firms individual circumstances. CONCLUSION Attorneys who want to avoid having their own profiles ensnare them in a potential ethical trap should temper their social media use by reviewing the attorney codes of ethics and ethics opinions in states where they practice. Also, attorneys should configure their profile privacy settings to the social media sites most restrictive privacy settings. This assumes that the attorney is using a social media profile for personal reasons only. If an attorney is using a social media profile for professional or marketing purposes, using the most restrictive settings would run counter to that purpose, so attorney s must choose their words (and their friends) carefully. Attorneys using social networking sites need to learn from the mistakes of others, understand potential ethics traps, and adjust their use based on an understanding that everything online is potentially accessible.
UPGRADING SYSTEMSIMPROVING TECHNOLOGY TO MAXIMIZE PROFITABILITY

by Denise C. Hammond *
Go to work on your business rather than in it, and ask yourself the following questions: How can I get my business to work, but without me? How can I get my people to work, but without my constant interference? How can I systemize my business in such a way that it could be replicated 5,000 times, so that the 5,000th unit will run as smoothly as the first? How can I own my own business, and still be free of it? How can I spend my time doing the work I love rather than the work I have to do? If you ask yourself these questions, you will eventually come face-to-face with the real problem: that you dont know the answers! 1 Many of us are too busy serving as technicians in our practice to work on our practice as a business. Working on your immigration law practice is a never-ending process that requires constant attention to your technology systems. Immigration law technology systems are critical to a successful practice for several reasons. First, they can automate and streamline workflow, enhancing the consistency of your service. Also, they can reduce errors, thereby increasing profitability. Third, they can help monitor costs and profitability. All in all, as long as the technology is tailored to your business and used regularly by staff, it can minimize the practices dependence on you and enhance a good nights sleep. Systems Capabilities Having used and tested several systems both for general and immigration law practice, I recommend that a good system incorporate most or all of the following features: Contacts database; Immigration information database (foreign nationals and employers); Integrated forms production; Real-time forms updates; Ability to create, customize, track, and report on activities for different case types; Ability to create customizable intake questionnaires; Ability to create activity-dependent e-mail templates, which can be sent and retained in a clients process file; Secure client access to log-on, upload data and documents, download forms, and check case status; Reminders; Flexible reporting capabilities; E-mail integration and management;
*
Denise C. Hammond was named a Top 10 Immigration Attorney in Washington, D.C. by Legal Times and one of the Washington D.C. areas Best Lawyers by The Washingtonian and The Washington Post. Ms. Hammond is managing partner of Hammond Immigration Law, P.C., with offices in Rockville, MD, and Washington, D.C. Also ranked in Chambers USA, she is widely recognized as an expert in immigration law as applied to businesses. She is widely published and served as chair of the 2008 AILA Annual Conference Committee.
1
M. E. Gerber, The E-Myth Revisited: Why Most Small Businesses Dont Work and What to Do About It (Harper Collins eBooks, 2009).
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UPGRADING SYSTEMSIMPROVING TECHNOLOGY TO MAXIMIZE PROFITABILITY
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Document management; Document automation (templates, macros, and document assembly); Document imaging (ability to upload and retrieve scanned documents); Ability to assign tasks to staff; Live links to government case status websites; Portal through your website; Time and billing component or integration with stand-alone system; Remote accessibility, either through Internet access to your server or the technology software itself; Long-term data availability. Some immigration technology systems allow data storage on your server, whereas others store data on the Internet. While this protects against data loss, it can entail the cost of data storage and even conversion if you eventually switch systems; Ability to track staff productivity (e.g., number of cases in process per employee); and Responsive technical support. Pricing Your system must comport with your budget. Pricing structures of immigration systems vary. Some providers charge by user; others charge by the case or the process. Simpler immigration forms packages may charge a one-time fee along with annual fees for updating. We use a system that charges by the case (and nominal monthly user and data storage fees), but we pass on the per-case charge to the client as a secure online case management fee. Data storage charges can add up, especially if you are using the system for document imaging. It is important to factor the cost of maintaining technology systems into your profitability analysis. Customization Even specialized immigration software must be adapted to specific user needs. Some systems have greater capabilities than others, but do not pay for powerful features that will go unused. For instance, we use a system that theoretically provides for the following interdependent steps: Generate engagement and dual representation letters from templates; Open case, select predefined process type, and enter clients e-mail; Send template e-mail to client with password and log-on instructions to complete questionnaires we previously associated with particular process type and upload documents; Permit employees to record dates of each activity on pre-defined activities checklist (e.g., submission and receipt of Labor Condition Application); Enable employees to generate forms and template support letters populated with client data and notify clients to review and submit signed forms for filing; Allow employees to enter receipt number in the system and clients to access case status website; and Let employees record approval date and reminder to prepare extension. Staff Usage The effectiveness of your immigration law management system depends on the data your staff enters. You must promote consistent use of technology, provide comprehensive and regular training, and monitor proper data input and usage. Spot checking expiration dates in comparison to receipts and generating regular reports for staff meetings can help ensure that your system is being maintained properly. You would think from the above that I know all the answers to effective immigration law practice management systems. Do not kid yourself. I have spent countless hours testing, analyzing, and using various systems. I conclude that no system can meet my all of my needs. Deploying technology effectively is a neverending process, but worth the effort.
COMMERCIAL INVESTIGATIVE DATABASES ARE COLLECTING OUR PERSONAL INFORMATION AND SELLING IT TO THE GOVERNMENT
by Carole Levitt *
The Privacy Act of 1974 1 was enacted to prevent the government from collecting information about individuals stored at each agency and compiling dossiers about a person. According to sec. 552a(b): No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be (1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties. Yet, the government is obtaining this same information (and more) by purchasing it from commercial investigative databases. 2 We know this because we located many contracts and pricing schedules between various government agencies (state and federal) and Reed Elsevier, Inc./LexisNexis, indicating the various government agencies subscribe to Lexiss various investigative databases (Accurint, SmartLinx, Public Records, Promonitor, Phones Plus, etc.). For example, we located the LexisNexis/General Services Administrations Authorized Federal Supply Schedule Price List, Contract number GS-02F-0048M, 3 that allows federal agencies to issue purchase orders to Lexis using this contract number. We also located a purchase order by the Immigration and Customs Enforcement (ICE) that used this contract number to obtain, Promonitor alert services for a cost of $370,050. 4 Thus, these subscriptions allow the agencies to search through government public records (and other data sources) that contain the very types of information the Privacy Act of 1974 seemingly prohibited them from collecting. While we do not know how much the government spends today on its searches through commercial investigative databases, in 2003, an Information Management Journal article 5 stated that, Federal and state governments pay about $50 million annually to comb through the databases of one such company, ChoicePoint, which is now owned and marketed under LexisNexiss name.
Carole Levitt, J.D., M.L.S (clevitt@netforlawyers.com / www.netforlawyers.com) is president of Internet for Lawyers, Rio Ranch, NM. She teaches lawyers how to find free information on the web to make or break a case. She practiced law in California. She worked as a legal research professor at Pepperdine Law School and a law librarian. She serves on the ABA LPMs Executive Council and Publishing Committee and is past chair of the California State Bar LPMT Executive Board. Ms. Levitt co-authored 11 editions of The Cybersleuths Guide to the Internet, and these ABA LPM books: Find Info Like a Pro, Volume 1 and 2, Google For Lawyers, and The Lawyers Guide to Fact Finding on the Internet (2 editions). Ms. Levitt earned her J.D., with distinction, from The John Marshall Law School and her M.L.S. from the University of Illinois. 1 5 USC 552a(b) (2010). 2 They are also selling it to attorneys, private investigators, law enforcement, collection agencies, and financial institutions (i.e., banks, credit card companies, healthcare, process servers and attorney service companies, universities, and utilities).
3 General Services Administration Federal Supply Service Authorized Federal Supply Schedule Price List, Contract number GS-02F-0048M (Mar. 3, 2008 through July 2, 2012). Online access to contract ordering information, terms and conditions, up-to-date pricing, and the option to create an electronic delivery order are available through GSA Advantage, available at www.lexisnexis.com/gsa/76/gsasched76_pricelist.pdf.
Order for supplies or services by Immigration and Customs Enforcement, Office of Acquisition Management, issued to Reed Elsevier Inc.( Period of Performance: 7/2/2009 through 7/1/2010) available at www.ice.gov/doclib/foia/contracts/gs02f0048 morderhscenv09f00027reedelsevier.pdf. N. Swartz, U.S. data-mining spurs investigations in Latin America, Jul/Aug Information Management Journal (2003), available at http://findarticles.com/p/articles/mi_qa3937/is_200307/ai_n9300382/.
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COMMERCIAL INVESTIGATIVE DATABASES ARE COLLECTING OUR PERSONAL INFORMATION AND SELLING IT
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What Are the Benefits of Using Commercial Investigative Databases? Commercial investigative databases offer convenient one stop research where approved subscribers can retrieve anywhere from one piece of information about a person to nearly a complete dossier about him or her. These databases allow you to create much more sophisticated searches than free databases and will often supply fresher information. They are considered relational because they attempt to link a specific person to various types of information about that person. Also, they attempt to find relationships between people (and sometimes companies). The most well-known commercial investigative databases are Lexiss Accurint and Wests PeopleMap. Lesser known are Merlin and LocatePLUS. Besides allowing you access to vast amounts of information, commercial investigative databases offer a variety of ways to search. For example, there are all kinds of combination searches, such as searching with a first name, along with a city and state if you do not know someones last name (or do not know how to spell it), or searching with a last name and a phone number. There are also various reverse search options, such as searching by a phone number, e-mail address, or home address to determine the name of a person attached to that information. Possible Information Found in a Commercial Investigative Database Report (Dossier) While the type (and amount) of information and the dates covered will vary from jurisdiction to jurisdiction, this is an example of what information (primarily in the United States) you might find by searching commercial investigative databases: Names and phone listings (current and historical) for households; Name and address information for households with unlisted phones (Sometimes a partial phone number is included.); Aliases (could be misspellings of a name, married names, etc.); Current and historical business names and phone listings; Two years of historical business listings, with an archived date when the listing was no longer current; Residential and business neighbors, their addresses, and phone numbers; Cellular phone numbers; E-mail addresses; Employer name; Property ownership information for each current and historical address (could include mortgages); Social Security Number (SSN)partial unless you have been approved to access full SSNs (which requires a site visit); SSN verifierdate the subjects SSN was issued, state of issuance, and whether the SSN is valid; Possible family members; Names and most addresses of people with the same last name as the subject who have shared an address with the subject; Current and historical phone listings, plus neighbors, for each possible family members address; BankruptciesReturns your subjects most recent bankruptcy record. All bankruptcy types are included in this national database, which includes records from 2000 to present; Watercraft registrations; Federal Aviation Administration (FAA) certificates; FAA aircraft registration, pilot licenses, airmen certificates, and other certifications; Criminal records; Voters registration; Motor vehicle records; Drivers license records;
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U.S. or international watch lists; California civil court records, births, marriages, and business filings; and Canadian phone numbers. Where Do Commercial Investigative Database Vendors Obtain Information? Commercial investigative database vendors obtain information from: government public records (such as real estate records, bankruptcy records, etc.); publicly available sources (such as Yellow and White pages, websites, social media sites, etc.); proprietary sources (such as personal information that you provide to utility companies, private entities from which you purchase products [or services], and warranty cards that you fill out, etc., such as your name, e-mail address, family income, age, etc.); and credit headers (information listed at the head of a credit report, consisting of non-public personal information, such as your name, address, phone number, Social Security number, and date of birth, but none of the financial information in the report). If a database includes credit headers, which all of the aforementioned databases do, they are regulated by the Gramm-Leach-Bliley Act (GLBA). 6 Only approved users can become subscribers to these GLBA databases. To gain approval, individuals must complete an application, fax their business licenses (and, if a lawyer, his or her law license), provide other supporting documents and meet certain GLBA exceptions. Even government employees must be approved as subscribers. After gaining approval, subscribers who want access to full SSNs (and full dates of birth), still need to go one step further. They must submit to a site visit. Of all the database providers, West is the most restrictive when it comes to who can qualify for full SSN access only government employees can qualify and they must re-qualify annually. LocatePLUS is the least restrictive because it does not require a site visit. Note, each time you conduct a search, you must state your GLBA-authorized purpose for the search. If you state that you have no GLBA authorized purpose for a particular search, you may still search these databases, but information from credit headers will not appear in your results. Useful Commercial Investigative Database Features and Services Accurint A People Alert service: You can be alerted via e-mail if there are any changes to a specified persons report or you can choose to be alerted only to a change of one or more of the following: name, address, phone number, or death. (There is also an option to be alerted if there are no changes.). Deep Skip: In addition to contact information for the subject, results will display names of household members. Feedback: This feature allows the searcher to give Accurint feedback regarding whether the phone number provided by Accurint led them to the right party, the wrong party, or to a disconnected number. This information is then used to refine and update the Deep Skip search results. Wireless hand-held device access using the Palm, Pocket PC, or BlackBerry: This service is available only to law enforcement subscribers at no extra charge. PeopleMap Visuals: This feature will display relationships, using a graphical interface. Microsoft Virtual Earths mapping feature: This pinpoints where your subject might be located. The Confidence Level feature: This uses percentages to show researchers how closely related various documents and people are to each other.
15 USC 6801 (2010).

COMMERCIAL INVESTIGATIVE DATABASES ARE COLLECTING OUR PERSONAL INFORMATION AND SELLING IT
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Merlin Western States Evictions database: This database covers evictions in all counties in California, Nevada, Oregon, and Washington. Sortable columns: You can sort your results alphabetically by last name, or by city, state, etc. Conclusion The amount of information available from commercial investigative databases is growing daily and their search capabilities have been getting more robust each year. It might be time to avail yourself of the same information the government is using. While some of the information found at these pay databases can also be obtained for free on the Internet, sometimes the time you can save by using a pay database outweighs the costs. On the other hand, no paid database is perfect. Some of the information might be incorrect. You will need to cross-check your information with other resources. And, sometimes free information on the Internet may be as useful as or even more useful than what you can find at pay databases (especially information from social media profiles).
WHEN AND WHETHER TO GO PAPERLESS: THE PROS AND CONS OF ELECTRONIC STORAGE OF DOCUMENTS
by David A. M. Ware *
A paperless office may still use a substantial amount of paper, especially when third parties are involved, but there is no reliance on a paper file. It requires a change in mindset to be comfortable without a hardcopy of every document, but the result is great efficiency. PROS Electronic versions of documents are likely to be more secure than paper versions. Paper can be lost or destroyed, while digital can exist in several copies in different locations or servers and be accessed from different locations. Information is easier to find in electronic files, which have a variety of instant search options. People have the tendency to keep paper documents on hand, thinking they will make it easier to find information when necessary, but excessive paper hinders access to information because so much time is spent searching through a paper file. If someone calls with a question about their file, you can pull up the relevant electronic document and respond immediately rather than taking the time to retrieve the physical file and find the relevant document. There are also ways to search PDFs that you did not create, through optical character recognition (OCR). Adobe has a function that reads a document in such a way as to make it searchable later on. Electronic documents will facilitate the use of online case management software (e.g., INSZoom, Law Logix, etc.) to interface with clients, because the file documents are already saved in electronic format. Saving a document both online and on the offices server ensures further security for the document because it is saved in two separate places. Many of these software programs also allow clients to upload and save documents directly to their own files if the firm elects to allow them this type of access. In this scenario, the client is doing the legwork of converting and saving the documents. Scanning and saving to a server is easier and less time consuming than physically filing documents in separate files. It is possible to save a significant amount of money on paper, letterhead, envelopes, exhibit tabs, postage, employee time spent copying and searching for documents, toner, printers, copiers, storage boxes, storage costs, and more. Electronic files save the expense of space rental for physical file storage and the delay of retrieving files from storage. Digital letterhead and signature capabilities make traditional letters nearly obsolete. Several possible security measures (password protections) can be used to ensure that only those who are authorized can access documents.
David A. M. Ware has practiced immigration law since 1981 and has 29 years of experience in representing universities and their students, faculty, and staff, as well as companies and individuals. He has for many years been selected to the Bar Register of Preeminent Lawyers and to Best Lawyers in America. For 10 years, Mr. Ware has been selected as being among the top immigration attorneys in Louisiana by New Orleans Magazine, and in 2005 and 2008, City Business Magazine selected him as one of the top 50 Leaders in Law in Louisiana, the only immigration attorney so chosen. In 2008, he was elected to Whos Who Internationals Top Corporate Immigration Attorneysone of only 300 in the United States and the only one in Louisiana. He is a recognized leader in the practice areas of interest to universities and currently serves as a mentor in these areas for other immigration attorneys through AILA. He has been active in the Association of International Educators (NAFSA) since 1985 and has received numerous awards for outstanding service to NAFSA. He regularly serves as an expert speaker for AILA, NAFSA, and academically oriented organizations.
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WHEN AND WHETHER TO GO PAPERLESS: THE PROS AND CONS OF ELECTRONIC STORAGE OF DOCUMENTS
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A paperless office is a greener office. Some firms even use this as part of their marketing scheme, advertising streamlined, eco-friendly operations as part of a contemporary, agile, and progressive firm identity. The amount of time it takes to scan a document is far less than having to look for the file and for the particular document that you need, not to mention the accompanying frustration. Now when a client calls and asks for a document, it can immediately be e-mailed or faxed. You can eventually get rid of your fax machines. Each staff member has a scanner and a fax machine built into the desktop. If something needs to be faxed, it is scanned first and then faxed from the desktop. No more getting up to go to the only fax machine. And faxes as a mode of communication will, of course, go away, as faxing increasingly means scanning and sending a document from computer to computer. CONS Going paperless requires the use of a fast scanner, perhaps several scanners; but most offices will have these with modern copy machines. There is time that must be spent on the front end to establish a consistent saving and filing system and then to train staff members in using the system. However, this initial investment of time is likely easily outweighed by the increased efficiency created by a paperless office. Correspondence can be more personal on paper. It may be old-fashioned, but many people are more impressed by a letter with an original signature than by an e-mail. Also, many clients may not have e-mail or use it regularly, making snail mail their primary method of communicating. Even then, letters sent and received can be scanned and saved, with the hard copies discarded. E-mails with large attachments may bounce or go into the recipients spam folder. It is also more difficult to prove receipt of an e-mail. Going paperless requires a change of mindset. Many of us are more comfortable reading and working with hard copies of documents. If you work more easily on paper than on a screen, it may not be prudent to make the full transition to paperless. Depending on the ages and open-mindedness of your staff, you may get pushback about going paperless. When first introduced to the new process, staff may think of it as one more step in a process that they do not have time for. However, they will likely come to appreciate the time they save in looking for documents. Changes in storage media mean that you may eventually have to change your storage methodology. Floppy disks, anyone? If you are now scanning clients files onto CDs for storage, you may eventually have to store those files on a remote server, and so on. If you store all your documents on your in-house server, this could severely strain server resources and force you to constantly upgrade the server, to begin storing documents that are infrequently used, closed client files for example, on CDs, or to buy space on a remote server (e.g., rackspace.com). What if disaster strikes and you dont have access to your own server, the remote server, or your CDs? Hurricane Katrina comes to mind. Anything that causes loss of electric power in an area is another example. Prudence dictates that paper documents be kept for the foreseeable future as backup for just such an instance. Given the nature of immigration law practice, it is impossible to go 100 percent paperless. There will always be original documents that must be retained, such as receipt notices from U.S. Citizenship and Immigration Services (USCIS). Because of this, most if not all clients will have a physical file in some form. INSTITUTE PROCEDURES TO ENABLE A MORE EFFICIENT PAPERLESS OFFICE: Train staff to scan and save contemporaneously. Train staff and all firm employees to save and name documents consistently. The recording system and protocol should be documented in a written business policy, including specific description of the system,
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its use and format, and directions on use so that all documents recorded within it are done consistently and in a uniform fashion. Train staff to save all e-mails on a particular client to enumerated folders. ETHICAL CONSIDERATIONS IN A PAPERLESS OFFICE: Any original document provided by a client is that clients personal property, and attorneys are dutybound to preserve such documents unless a client otherwise agrees. Certain original documents, such as birth certificates and USCIS notices, must obviously be retained in the original form. Copies can generally be digitized as long as they can be easily found and reproduced in hard copy form for a client. Consider specifying file retention policies in writing from the beginning of the client-attorney relationship. Take reasonable steps to maintain the security of clients private data and information, including firewalls, password protection schemes, encryption, anti-virus measures, and so on. Records must still be retained for the requisite period (usually five years) after representation is completed, even if it is retained solely in digital form.
SMART GROWTH: HOW AND WHEN TO GROW

by David A. M. Ware *
Congratulations! Your immigration practice has survived the wild ride that swept up all legal practices over the past few years and the future is finally beginning to look bright again. Considering the circumstances, your practice is doing well and you want to position it to best catch the next wave. How do you do that? Growth is not just about catching the next wave, but holding on, avoiding the fall and riding it well. Therefore, any firm seeking to grow must ensure that it not only takes those marketing steps that will attract the next big client, but also gets its house in order so that it can seamlessly grow and ensure that it is adequately serving the legal needs of its growing amount of current business. HOW TO GROW: FIRM STRUCTURE The importance of a firms structuring of attorneys and paralegals is paramount. The value of paralegals to an immigration practice cannot be overemphasized and coupling their talents and time wisely with attorneys is critical to growth, especially in the field of immigration, where a number of case functions can be handled successfully by experienced paralegals. How Should Your Practice be Organized? The answer to how to organize your firm can be derived by knowing what type of firm you are. Do you specialize in a few, select areas or cover the broad spectrum of immigration law? Are your pricing and clientele at the high or low end of the market? What level of service do your clients expect and how much attorney contact? Do you want to move in a different direction in the future (e.g., away from family cases and toward more business cases?) If the former, you may want to consider creating work units in which an attorney leads a team of attorneys or paralegals in a particular area (e.g., H-1B, Program Electronic Review Management (PERM), consular processing, removal, etc.) Advantages: Focuses the energies and talents of a small group of individuals on a defined area, increasing knowledge and expertise in that area immensely, and concomitantly improving services. Gives paralegals and attorneys an opportunity to grow from the rank and file to unit manager. Increases pride of product in both attorneys and paralegals as their knowledge base increases. Disadvantages: Can foster monotony and boredom, especially among paralegals. Makes the firm less flexible in terms of assigning workloads. Could cause mistakes to occur where a particular case crosses work units. Could result in too much autonomy, eventually resulting in the loss of that practice to a newly formed firm or another firm that lures that unit away from you.
David A. M. Ware has practiced immigration law since 1981 and has 29 years of experience in representing universities and their students, faculty, and staff, as well as companies and individuals. He has for many years been selected to the Bar Register of Preeminent Lawyers and to Best Lawyers in America. For 10 years, Mr. Ware has been selected as being among the top immigration attorneys in Louisiana by New Orleans Magazine, and in 2005 and 2008, City Business Magazine selected him as one of the top 50 Leaders in Law in Louisiana, the only immigration attorney so chosen. In 2008, he was elected to Whos Who Internationals Top Corporate Immigration Attorneysone of only 300 in the United States and the only one in Louisiana. He is a recognized leader in the practice areas of interest to universities and currently serves as a mentor in these areas for other immigration attorneys through AILA. He has been active in the Association of International Educators (NAFSA) since 1985 and has received numerous awards for outstanding service to NAFSA. He regularly serves as an expert speaker for AILA, NAFSA, and academically oriented organizations.
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If the latter, the constantly changing flow of cases that pass through your office may make it difficult to keep the caseloads of work units balanced. Therefore, you may wish to allot broad case categories (e.g., family or employment-based cases) to attorneys and paralegals in order to get some degree of specialization but also fairness in caseloads. Also, if your firm has enough large clients that constantly feed you cases, you may want to dedicate one or more attorneys and paralegal(s) to that client. This will allow your firm to create a real relationship with the client and enable persons assigned to the client to mold to its structure and demands. HOW TO GROW: CASELOADS Many immigration practices take in cases that cover the entire range of immigration law, from employment-based immigration to deportation defense. Therefore, the cases that fill the cabinets and cover the desks of immigration attorneys and paralegals differ immensely from one another. How do you balance caseloads in a way that leads to greater efficiency, which, in turn, will, it is to be hoped, lead to happier clients? Take a serious look inward, look at the numbers, and find out the volume of each case type your firm handles. Look to the past and spot trends. What type of client consistently walks through your door? Do you handle labor certifications on a regular basis? I-130 family petitions? National interest waivers? Removal cases? In those areas that stand out and constitute a significant volume of your firms revenue, how are those cases managed and by whom? Consider utilizing work units. It comes down to striking the perfect balance between volume and quality. Much depends on the case types an attorney or paralegal is handling. Can you assign a number value to a cases difficulty and/or type? For example, a stand alone I-130 with no immediate visa processing, or a straightforward naturalization case, could be assigned a value of 1. A simple H-1B, or stand alone I-140, 1.5; an I-130/I-485 or I-140/I-485, 2; a PERM or EB-1, 2.5; and so on. You can then balance caseloads by ensuring that everyone has the same or similar numerical value in their cases. Some case types can be streamlined and high volume can be achieved without sacrificing quality or customer service. Others are more complex, and require much more time and commitment. Compare the ordinary H-1B or PERM case with an I-140 case based on extraordinary ability or I-601 hardship waiver. High caseloads facilitate the creation of efficient case management techniques simply out of necessity, but the risk always present with this approach is exceeding the threshold, in which case, all cases allotted to the paralegal or attorney suffer. HOW TO GROW: SATELLITE OFFICES Great, you somehow managed to achieve 100 percent of the market share in your geographic area and business is steady, but not growing; what do you do now? Consider opening up a satellite office. A satellite office will provide you the ability to access markets beyond your firms current scope, without having to add any additional staff. Although the distance between client and attorney no longer has a practical effect on representation, clients still find comfort in knowing that their attorney is close by; a satellite office, while not always necessarily staffed, gives you a physical presence that may satisfy a clients need for proximity. With that said, opening a satellite office will require you to commit to that city if you want it to be successful. The opening of a shell office gives you the space to meet with clients when in town and to place it on your website and letterhead, but for the new office it truly to serve your needs, use it as a jumping-off point to gaining access to the community. Market and undertake networking opportunities as you would in your home city to ensure you maximize the utility of a satellite office.
SMART GROWTH: HOW AND WHEN TO GROW
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If the satellite office proves successful and meets its potential, it could one day lead to a permanent office that further extends opportunities for growth. Be sure to look into the specific requirements and rules for opening a legal office in each state, including possible licensure in that state, which might make a satellite office not cost effective. If the satellite office is staffed, put into place mechanisms to control both the quality and integrity of work rendered there, and also to ensure that the attorney placed there doesnt decide one day simply to take the practice with him or her and leave you with nothing. HOW TO GROW: TRAINING It is vital to provide regular training sessions to ensure that attorneys and paralegals are continually learning about the latest developments and trends in the field. Training will also ensure that the buildup of institutional knowledge about the firms practices is constantly shared among staff. In addition to trainings focused on immigration law, constant training on office procedures is vital to ensuring cases are handled efficiently, clients are kept happy, and the end product is one of high quality. WHEN TO GROW It is easier to determine how to grow than when to grow because the latter question requires action. When do you implement the above steps? When do you add a new attorney? A paralegal? Or a new office? Unfortunately, there is no standard formula that can be used to calculate the perfect time to implement the steps that can lead to growth. The question can only be answered by taking serious time away from the day-to-day work and pulling back to get a birds-eye view of your practice and consider where you want to take your practice. Do you seek growth by emphasizing quality or quantity? Although the two are not mutually exclusive, emphasis on one over the other will dictate how you grow. Ultimately, the answer will be derived by setting goals and objectives for your firm and achieving them. Set per-attorney and per-paralegal revenue goals that represent the threshold point at which complete efficiency is achieved but work satisfaction is not compromised. Once that point is reached, consider adding a new attorney or paralegal. Keep a careful eye on the growing number of clients in a new geographic area. When that number of clients makes it cost effective to locate an office there, make the move.
RETAINING YOUR CLIENTS AND LAW PRACTICE WITHOUT LOSING YOUR MENTAL HEALTH
by Kristina K. Rost and Reid F. Trautz *
Immigration practice can be very stressful. Too much stress takes a toll on our physical, mental, and emotional well-being, affecting our personal and professional lives. The stress points are many. However, there are many practical strategies that can help us to avoid stress and effectively deal with it cannot be avoided. This practice advisory addresses several broad topics, yet provides detailed solutions. Topics include office productivity, quality of life enhancements, handling clients expectations and communications, managing the particular stresses of immigration practice, dealing with difficult clients, regrouping after a big loss, and understanding substance abuse in the workplace. OFFICE PRODUCTIVITY Color Code Forms and Files to Make Them Easier to Locate in Your Office Develop a simple system within your office that everyone can use. For example, different types of immigration matters or different types of cases, such as family law or employment law, may have different colored files and not just colored labels. This allows employees to locate files in a busy office. Also, forms, such as conference notes, checklists and hearing/court appearance memos, can be printed on different colored paper to make them easier to locate within a file. Give Your Office a Stress-Reducing Make-Over Poor lighting can cause eyestrain and exacerbate fatigue. Chairs with poor support are another source of tension and pain. An improperly-positioned computer monitor and keyboard can strain neck, eyes, and hands. Noisy offices can inhibit concentration and increase frustration. Changing any or all of these can produce a happier, healthier, and more productive staff. Finally, consider adding a water cooler in the office to promote increased consumption and better health. Delegate One Task Learn to delegate, but not abdicate, one of the tasks on your plate. Train and empower your staff to complete this task, and then monitor them periodically to ensure proper performance. After one task, delegate another, then another Develop a Disaster Recovery Plan They may seem rare, but disasters occur more often than we think: Fire sprinklers malfunction, flooding computer and telephone equipment. Office fires caused by other tenants in the same building can damage documents and equipment, and prevent access to your office. Severe storms can disrupt telephone (voice and data) communications for several days. Create a written plan to recover essential business functions if a
* Kristina K. Rost is the current chair of AILA Ethics and Practice Management Committee and Ethics Committee for the AILA New England Chapter. Before her appointment, Mrs. Rost served on the committee for a number of years and had participated in numerous speaking engagements on ethical and practice management issues. Having developed a keen professional interest in the area of ethical client representation in business immigration settings, she is a frequent author on that topic for professional publications and a frequent presenter at immigration-related professional conferences, lectures, and panels. Reid F. Trautz is the director of AILAs Practice and Professionalism Center, where he provides ethics guidance and practice management advisory services. He educates AILA members on how to more effectively deliver legal services to clients and how to improve their practices. Mr. Trautz is a nationally recognized advisor, author and presenter on practice issues, including business process improvement, client communications, and legal ethics. He is admitted to the bars of Minnesota, Virginia, and the District of Columbia. He is a fellow of the College of Law Practice Management, and is chair of the ABA TechShow 2012 to be held in Chicago.
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disaster occurs in your office. Organize and gather information that will get your systems and personnel back up and running as soon as it is safe and possible to work. You will save untold stress the first time you need to implement the plan. Take a Clients Eye-View of Your Practice How does you office respond to, care for, and serve clients? Could it be that the little things are frustrating your clients and causing you frustration? Now, walk through your door as a first-time client. What do you see and hear? Look at the waiting area, the conference room, and your desk From these first impressions, would you hire yourself? If not, implement some changes that your clients will welcome, too! Use Nonengagement and Disengagement Letters Create these two form letters and use them to protect yourself against a malpractice or disciplinary complaint. If you decline a prospective new client, send a non-engagement letter so that the person cannot later assert that you represent him or her. And at the end of each client matter, send a thank you letter to the client (save a copy for the file) and state that the matter has concluded so you will do no additional work on his or her behalf. Follow all proper withdrawal procedures, if any, if the matter is still ongoing. Set Specific Times to Make Your Phones Calls Reduce your stress by curtailing the game of phone tag. Studies show that the best times to reach people in the office are between 9:15 am and 11:00 am and between 3:00 pm and 5:00 pm. If you are having trouble reaching clients, set aside an hour or two per day for telephone calls during these times. PERSONAL STRESSBUSTERS Take a Daily Vacation Take a five-minute break each afternoon and practice imagery, a popular relaxation technique. Imagery is sitting back and remembering a favorite event, such as a vacation or a round of golf. Try to use all of your senseshear the sound of the surf, smell the salty air, feel the sun on your skin, or see the colors of the setting sun. Feel free to leave out the thunderstorm or the triple-bogey or other negatives of this memorable event. Enjoy the moments again. Then, return to work! Prominently Display Your Law Degree, Bar Admission, and Court Admission Certificates Your clients will gain confidence after seeing proof of your legal accomplishments. It will also remind you how hard you have worked to get where you are. Take pride in what you have achieved as a lawyer. Bill accordingly. Laugh a Little, Smile a Little Laughter is a wonderful antidote to stress. Tell a good joke or remember a good punch line. Read the daily comics and keep a folder in your inbox to keep the jokes you receive via e-mail. Take a minute to browse the folder and have a laugh. Then, return to work! Exercise Regularly Yes, exercise is tough to incorporate into your routine, but it is one of the most effective ways to combat stress and its long-term effects on your body. Try to build reasonable steps to a new lifestyle of increased exercise. Start with short exercise sessions three times per week, then build to longer, more frequent sessions. Do what you enjoy mostwalking, swimming, tennis, spinning, etc. Consult your doctor for further details before beginning an exercise routine. Plan Your Vacation Plan your time off from work to ensure that it is really quality time. Time away from the office for relaxation is fine, but your body and mind need at least a week of vacation to clear out the accumulated stress. Certain elements of planning a vacationreading the brochures, looking at the pictures, and enjoying the imagescan induce relaxation. And better planning leads to a more enjoyable vacation. However, be sure to leave time in your vacation to do nothing but relax. Rushing to do everything on vacation is not really a vacation!
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Dont Get Mad at the Things You Cannot Change Traffic jams, court delays, unyielding agency delays, etc., are inevitable. Channel your energy and determination into things you can changestopping bad habits or fostering good ones. The Person Who Has the Most Toys Wins Keep several stress-relieving toys in your desk drawer and retrieve them when the need arisesfive minutes is all it takes. Yo-yos, slinkys, and fast food meal toys can be lots of fun. Be sure to share them with your colleagues. Enjoy the Process, Not Just the Outcome Many of us live for certain moments or events. We ignore much of work and life between those special moments, causing us to miss much of life. And by so living, we become hurried and impatient trying to get to another special moment or highlight. Consciously focus on the process of what you do and learn to enjoy each aspect. Learn to enjoy life. Practice Good Nutrition Proper nutrition helps your body fend off the effects of stress. Lighter meals and less excess weight yield increased energy. Increasing fruits and vegetables (even by one serving per day) is effective. Research has shown that small achievable steps toward a lifestyle change are more enduring and thus more effective than large changes. Adopt an Office Pet Whether you are playing with a cat, petting a dog, or staring at fish in an aquarium, the power of animals to reduce human stress is well-documented. Add an office pet to your daily office routine and watch the smiles multiply! Re-create a Romantic Date or Favorite Family Outing Remember all the good times you have had with your family, spouse, or significant other? Do it again and re-live the good memories while creating new ones. Not only will you have fun, but your family and/or significant other will thank you! The Surefire Two-Minute Relaxation Sensation Use this approach when you have just a few minutes between tasks. Sit comfortably at your desk or other office chair and close your eyes. In a slow and quiet voice say, My face is relaxing. Then, feel your face relaxing. Then, say, My jaw is relaxing. Then, feel the tension leave your jaw. Continue in the same manner down your body, focusing on your shoulders, shoulder blades, back, arms, hands, fingers, chest, hips, thighs, calves, and feet. Relax for one minute. Then, open your eyes and feel refreshed before starting your next task. Take a Real Break at Lunch Take a walk, exercise with friends, or pick up the phone and invite an old friend to lunch. Make it someone you have not seen for a few years. Catch up on business, but do not make that your primary focus. Laugh and enjoy the time. The time away from work will pay dividends. IMMIGRATION PRACTICE STRESSBUSTERS Handling Client Expectations Meeting or exceeding client expectations is the only way to achieve client satisfaction. Many of us believe that client satisfaction stems from legal successfrom what we, as lawyers, put into the legal matter. From a clients perspective, however, it is more just the result. It is the clients experience during the entire legal matter. If clients based their satisfaction totally upon the legal outcome, then only clients who prevailed would refer new business. But unsuccessful clients refer business, too. Why? Because despite the outcome, they believe they received value for their time and money, and that value comes primarily from client service. To clients, it is the little things that matter. Ask a person who has engaged a lawyer what their biggest complaint is, and they almost always say, He never returned my phone calls or She seems hurried when I
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meet with her. These little things add up to one big thing: the success or failure of a lawyer-client relationship. To deliver quality service (not just quality legal results), we must focus our attention on the client. Much of quality service is achieved through communication. It is through communication that we build a relationship of trust and respect; much of that communication is discerning and setting client expectations, and then meeting them. If we capitalize on each opportunity to communicate with a client, we can create a strong relationship that will be valued by both lawyer and client. Opportunity points occur throughout the relationship, from the initial call to your office to the last time you shake hands with the client and thank them for entrusting their legal matter to your firm. Here are several concrete examples of opportunity points during the lawyer-client relationship where we can strengthen that relationship by what we communicate with the client. Use these ideas as a springboard to improve your client service and see the results from more clients for whom you have exceeded expectations: Walk through the front door of your office for the first time. What messages are you sending to clients when they do the same? Go step-by-step from the initial greeting through the end of the appointment. Sit in a reception area chair. Are you satisfied with what you see, hear, and feel? What changes can be made to improve the clients experience? What can you do to make that experience much more memorable for the client? Does your office emanate expertise, success, and professionalism? Would you want to become a client when walking in your office? During the initial interview and other client conferences, convey that you are attentive through verbal and non-verbal cues. Listen, nod appropriately, and convey information without using legal jargon. And above all, avoid interruptions from others, such as your staff, incoming phone calls, SMS, etc. If you are interrupted, apologize to the client for the intrusion and let them know it was unavoidable. Make the intrusion as short as possible and convey a subliminal message to the client that this is not a routine procedure for you. Otherwise, clients will question your ability to focus on their priorities. Nothing erases good client service than losing the clients trust, and nothing erodes trust faster than a broken promise. So never promise more than you can deliver, but always deliver more than you promise. That includes returning phone calls in a timely manner, producing and delivering documents, scheduling a settlement conference or court hearinganything that can demonstrate your utmost attention to your clients case. Promptly return all client phone calls the same day or within 24 hours. It shows that you care about and respect the client. If you cannot, assign a person from your office to make an interim call to the client to attempt to facilitate the communications. Apologize if even a little promise goes unfulfilled. Clients have an uncanny ability to remember all the little details that create the big picture of your work as a professional. As much as results count, the way you conducted yourself professionally while working on the clients case carries an equalif not largervalue to your client. Everyone in your office who interacts with clients should have training in communication. Train your staff about opportunity points, and then work to identify and improve each interaction. With regard to telephone etiquette, encourage employees to leave positive voicemail messages and fulfill promises made during phone calls. Next, work on written communications. Then, address in-person communication points. Your office staff is an indistinguishable item from you, and clients attribute an image and impression that gradually arises from communicating with your staff to you as a professional. Speaking of communications, how good is your receptionist? Does he or she help you build strong client relationships? Do clients believe their important messages will be conveyed promptly and correctly? Do they display professional etiquette? If you do not know, then ask a friend to call the receptionist and report the experience to you. Better yet, ask several clients for their feedback. If you feel this area needs work, read AILA publications on how to train your staff to drawnot repelbusiness to your office. Clients want to be involved in the process. Let them. This is their legal matter. Show them respect: Keep them informed. Copy them on all correspondence to courts, agencies, and even co-counsel. Better yet, install extranet software and invite them into your secure computer files to review the latest work and developments. In other words, show them that you are playing as a team member with them and that you are on their side. Even if the team loses, the teamwork is binding and rewarding. Clients will remember
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that they were a part of the process and the team. The more preparation you put into your representation, the more openly you discuss the risks, the more strategy discussions you participate with the clients, the more they will value appreciate your professionalism and reputation regardless of the outcome. Go the extra mile for each client whenever possible. Go beyond the clients expectations. Examples include meeting at a location that is convenient for the client rather than in your office; staying late when a client cannot meet during normal business hours; having a private place where business clients can temporarily work when in town for meetings or depositions; and spending time with staff thinking of what works for your clients. Most importantly, when you feel that your clients interests are being tossed by third parties, the word zealous should spring to life and make you truly become a trusted advocate for your clienteven if it means your own preferences and/or interests may suffer. Zealous representation is an illustrative term, and you will know when you are called on it, so act on it. Clients want to succeed, but they mainly are interested in obtaining value from your services. If you win the legal battle, but leave the client penniless, have you provided value? Communicate constantly with your client about your fees. Send interim bills that convey the work you are doing. If the client questions the amount of the fee, then be prepared to discuss it. When discussing a fee, do not get defensive. Rather, use the opportunity to understand the clients perspective. Representation or fee agreements work wonders when they adequately explain how the fees are going to be paid. The more clients know about the fees and the progress of your work, the less questions you will be askedand fee questions are anything but pleasant! For those who bill hourly, there are some tasks we may charge to a client, but choose not to charge for one reason or another. Maybe it took less time than we thought, or we had a new associate take much longer to do it. That may be the right decision, but the task or event provided some value for the client. Instead of writing it off and ignoring it, add it as a No charge item on the client bill. Let them see that they are getting more service than promised. That adds value in the eyes of the client and shows how fair you are. Develop and use an online client satisfaction survey. Send a link to each client at the end of a legal matter or ask ongoing clients to take the survey at least annually. Some clients will respond, but almost all will be glad you cared to ask for their opinion. Those who respond with positive marks are your most loyal clients. Those who return it with negatives comments now provide a forum by which you can seek to rehabilitate the relationship before clients spread negative opinions to their friends and colleagues. When you meet or exceed client service expectations, you create a loyal client who will probably return for additional legal services. Moreover, that client is more likely to extol your virtues to their friends, business colleagues, relatives, or neighbors, resulting in business referrals for your services. You can and should maximize those referrals by reminding each loyal client of your valuable services. Develop a plan to regularly reconnect with these former clients through various means, including e-mail alerts, newsletters (electronic and/or paper), holiday cards, phone calls, and other communications. Today, you cannot ignore the value of social networking sites, such as Facebook, Twitter, and LinkedIn. They may facilitate keeping in touch with your existing clients and attract new ones. The key is to be consistent with providing updates and engaging as a source of information. Dealing with Difficult Clients The best way to deal with difficult clients is to not allow them through the door. Not all clients are equal. Some demand more, others require less. Each client comes with financial and ethical risks. Choose your segment of the marketplace and cater your client delivery and service model to meet the needs of that market segment. The key is to select clients whose service expectations are equal to their payment expectations. (You do not find Wal-Mart prices at Nordstrom or Nordstrom service at Wal-Mart.). Be realistic and select clients that will respond to your ability to serve them, communicate with them, and build an expected relationship with them. For example, during the telephone screening and initial consultation, evaluate the expectations of representing each potential new client. This will help you identify problem clients before they become, well, a problem. Do they balk at advanced fee arrangements? Cancel one or more prior appointments? Not have their checkbooks to pay for initial consultation? Are you the latest in a string of lawyers? Did the client appear late
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with an unorganized bag full of papers? Did they endlessly complain about the current lawyers? If the answer is yes to any of these, strongly consider saying NO to these risky potential clients. Delivering service outside of your market segment causes an increased risk of complaints, failure to pay, dissatisfaction, and disloyalty. Step out of it only when you are prepared to meet the demands of the clients in that market segment. Although the aforementioned strategy can help firms to avoid many bad clients, it cannot prevent some from getting past your screening process. So what are some strategies for handling those clients? AVOIDANCE SYNDROME: THE FILE NOBODY WANTS Is there a file in the office that you just cannot stand to look at? It is often related to a client you really dislike or a matter you regret accepting. Has it been languishing on the corner of your desk or just out of sight in your credenza? Is a deadline fast approaching or did it recently pass? You know you have got to tackle it, but just cannot seem to get started. These unwanted files are a major cause of grievance and malpractice complaints; they end a lawyers career prematurely. And almost every lawyer has one of these dog files. Sobering, yes, but how does one deal with the dog file? Here are several ways to get moving on it and extract yourself from a potentially dangerous problem: 1. If you work in a small firm, then trade the file with a colleague. Approach your partner or another associate and offer to trade your dog file for his or hers. At least this way, you do not already have problems with the client whose file is now in your care. This option is not always readily available in reality. However, if you can think in this direction, a trade-in solution may help you to get rid of the file in exchange of the more sterile dog file from a colleague. 2. Call a valued colleague and ask him or her to lunch. Hypothetically, explain the case. Ask him or her for potential strategies. If the advice is good, buy lunch. It is invaluable to have a sounding board in situations that are suffocatingthere is no such thing as no way out an in attorney-client relationship. 3. Read the file now with the intention to do no work. Yep, set the file on your desk and start reading it immediately. (And that means RIGHT NOW!). Sometimes our own procrastination is the real problem. Just open the file and start reading it. As ideas and tasks come to mind, write them down. Work on the file for a minimum of thirty minutes. If you can, work longer. When you cannot work anymore, schedule time on your calendar to work on it again tomorrow. As you re-familiarize yourself with the file, it will become easier to work on. LOSING THE BIG CASE Believe it or not, this is one of the most common nightmares for most lawyers who deal with the lives of other human beings. It revolves around a favorite client, huge deal, complex lawsuit, or high-profile case that we have invested a great deal of personal effort and reputation. Often, there is also a great deal at stake, including money, legal fees, and the outcome for the client. The legal matter has become a big part of our reputation, a significant part of our expected income, and a major force that is feeding our egos. When we win, it feels terrific. But when we lose a case, we also seem to lose a part of ourselves. As humans, it is hard to pour our heart and soul into a legal matter, only to come up on the losing side. It was hard to stay objective during the case, and now it is even harder to cope once the matter is over. We can start down a path of self-doubt that can spiral out of control. It is important to recognize the signs and symptoms of what can happen. Sure, a few days of asking Could I have done more for the client? is normal, but if the matter persists and causes a lawyer to lose sleep, avoid other responsibilities, feel lethargic, or abuse alcohol, then it is something to be taken seriously. Knowing that Losing the Big One is a common nightmare for many, many lawyers can help dispel notions that losing it means everything. It does not. It happens to all lawyers. We all empathize with being on the losing end, just as we applaud when lawyers are victorious. If the matter goes beyond that, then contact your state bars Lawyer Assistance Program. In some states, the program may be called Lawyers Helping Lawyers or Lawyers Concerned for Lawyers. These programs are there to help for this specific situationto help lawyers who are human. They help put winning
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and losing into perspective, and provide resources to help any lawyer who asks. Many lawyers think these programs are just for alcohol and substance abuse, but in reality they exist to help all lawyers who are having temporary trouble surviving the demands of a law practice. CHANNEL OUT YOUR FRUSTRATIONTHE RIGHT WAY Lets face itlawyers are also human, first and foremost. As humans, we have a tendency to accumulate stress and, as professionals, it is imperative to know how to release it. Know how to deal with stress and identify your own stress-relief techniques while you are able to think about it objectively. The known truths exercising, eating right, and managing your timenever fail, and you can think of a technique that works for you, such as reading your favorite mystery author before going to bed, spending a night in town with your friends, or having a romantic getaway with your spouse, even if it is only to a local restaurant on a Saturday night. It is also a known truth not to allow yourself to unload on innocent parties, such as U.S. Citizenship and Immigration Services (USCIS) adjudicators, your office staff, and your family members, to name a few. Being a true professional does not necessarily translate into being a cold, stone-hearted monster, but it surely attests to someones ability to remain cool, calm, and collected in his or her professional life and a wellbalanced humanin private. To achieve the balance, you need to know yourself and know what effectively quashes your stress. Frequently, it is much easier said than done, and the secret to tackling the stress is find your own secret of how to manage it in advance.
ETHICAL CONSIDERATIONS IN FEE DISPUTES, FEE DETERMINATIONS, AND FLAT FEE CASES
by John L. Pinnix *
Applicable rules of professional conduct governing the practice of immigration law include diverse, often conflicting, sometimes irreconcilable statutes, regulations, opinions, and decisions that vary from jurisdiction to jurisdiction. 1 Neither the issues raised nor the solutions suggested in this practice advisory are intended to be exhaustive; it is hoped, however, that they will encourage the reader to reflect and prove useful in minimizing avoidable exposure. FEE DISPUTES
If it feels too good you probably shouldnt do it. attributed to Noel Allen, Allen and Pinnix, P.A. Sometimes the juice isnt worth the squeeze. oft spoken by Jack Nichols, Allen and Pinnix, P.A.
Increasingly, state bars require retainer agreements or engagement letters. In the absence of a more stringent affirmative bar mandate, immigration attorneys are well advised, at the very least, to comply with the requirements of ABAs Model Rule 1.5: (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. Without needing to address formal ethical requirements, the author can envision few circumstances that would justify undertaking the responsibility for an immigration matter without first having a signed retainer agreement. As a practical matter, the retainer agreement sets the rules and expectations for the client and for the attorney. It is a valuable tool for avoiding misunderstandingslarge and smallthat can lead to the disruption of the professional relationship. But it should be understood that, absent litigation, retainer agreements depend on the good-faith compliance of both parties, and this is necessarily based on their mutual assent as to its meaning. An attorney who hasin her estimationentered into a good-faith agreement to perform professional services, workedin her opiniondiligently for her client and done everythingshe believesthat is required by the retainer agreement is, understandably, frustrated when the client does not pay her. Why wouldnt the attorney bring an action for fees? After all, isnt that why there is a retainer agreement? The author contends that the decision to sue, or to forgo a suit, should not be controlled simply by the terms of the retainer agreement or by what appears permissible under the applicable rules of professional Conduct. The decision should include other factors, not the least of which is the attorneys inner compass and an enlightened sense of pragmatism.
John (Jack) L. Pinnix is a past president of the AILA and a founding member of AILAs Carolinas Chapter; and a Founding Trustee of AILF (now, the American Immigration Council). He attained B.A. and M.A. degrees at UNC-G and his J.D. at the Wake Forest University School of Law. Jack has served as an adjunct professor at the North Carolina Central, and Elon University schools of law and as a senior lecturing fellow at Duke University School of Law. He is a principal in the Raleigh law firm, Allen and Pinnix, P.A. and is a North Carolina Board Certified Immigration Specialist. 1 See the American Bar Associations webpage link, which contains ethics rules and opinions, broken down state-by-state, published on AILA InfoNet at Doc. No. 05060727 (posted June 7, 2005).
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It is common sense that an attorney should not sue a client for fees if the attorneys performance would justify a counterclaim. Without even considering the costs and trauma of litigation, actual and potential damages can far outweigh almost any fee an immigration attorney may believe she is owed. But in todays Internet-driven, consumer-oriented, litigious society, even a client whose attorney feels she obtained not just a good result, but a perfect result, may not only counterclaim but actually recover. Sure, removal was avoided and Mrs. Smyth received her green card, but it took six months longer than the attorney promised and the lawyers incompetent staff persisted in redrafting forms and asking questions about things the client thinks she told you at the outset. And a layman sitting on a jury, reviewing a string of emails might conclude that Ms. Smyth has a legitimate point. REALITY CHECK Your client owes you money. Why? Did your client have a history with your firm before you assumed this matter and did the client have a satisfactory history of paying for services? Before coming to you, was the client represented by other attorneys? Did they come to a parting of the ways because they charge too much? (Translation: because of a fee dispute.) Did you check the clients credit before agreeing to represent him? Does the client seem dishonorable in other matters, and did you consider that collecting your fee might be problematic when you assumed the responsibility for the case? Has the client had unforeseen changes in circumstances, such as loss of employment or denial of employment authorization, a catastrophic illness, or other financial reversals? Have you continued to perform services after the client became a no pay or a chronic slow pay? Why? Is the client dissatisfied with your services? Does this dissatisfaction have an objective basis? Who is the retainer agreement with, the client or a third party? If this is a family-based caseparticularly a marriage casedid both the petitioner and the beneficiary sign the retainer? What are the implications vis--vis litigation or collection if a third party has the contractual obligation to pay the clients attorneys fees? You drafted it years ago, and have since given it to scores of potential clients, but have you actually reviewed the content of your retainer agreement as it pertains to the matter in dispute? Is it overreaching? Does the client who is a foreign national client adequately read and write and comprehend English? Did the client have an opportunity to review the retainer agreement adequately and independently before signing? Did you provide an executed copy of the retainer agreement to the client? Did you or your staff explain the retainer agreement to the client? 2 At any time, did you, or your staff, make representations to the client that are at variance with the retainer agreement? Are there statute of limitation issues? Is the foreign national under any legal disability that is recognized in your jurisdiction, e.g., is he or she underage, non compos mentis, imprisoned, or out of the country? Are you in compliance with the terms of your retainer agreement? Does your bar require that you notify the client of his or her right to arbitration or mediation before filing suit? Are you just threatening to sue or are you prepared to follow through? 3 Are you geared up for collection work, or are you referring the suit to outside counsel or a collections agency? Will your billing records survive cross examination? How will filing suit affect your practice? Will filing collection suits enhance your ability to collect from other clients or will it deter future referrals and business? If the latter, do you care?
A legal assistant must not: (a) engage in, encourage, or contribute to any act which could constitute the unauthorized practice of law; and (b) establish attorney-client relationships, set fees ... NALA (National Association of Legal Assistants) Code of Ethics and Professional Responsibility, Canon 3. Debt collectors may not state that actions, such as a lawsuit, will be undertaken when they do not intend to take such action.
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FEE DETERMINATION Res ipsa loquitur The provisions of ABAs Model Rule 1.5 that an immigration practitioner should consider in determining the appropriateness of a fee include: (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. FLAT FEE CASES In the late 1980s, as business-based immigration practices became increasingly lucrative, thus attracting the interest of lawyers and firms seeking to expand their traditional service bases, the historic flat fee model gave way to the billable-hours paradigm. Time has demonstrated that the realties of immigration practice often mesh poorly with the billable-hours culture; still, the billable-hours model endures in many practices. But today, in many practice areas, there is a reevaluation of the hourly treadmill and flat fees are undergoing a renaissance; this includes immigration practiceswhere flat fees never altogether disappeared. The promise of billing certainty is an appealing marketing tool, attracting both family and business clients. And eliminating the expenses of time keeping, coupled with the adrenaline surge of up-front money, is often very tempting to todays struggling attorney. Among this authors earliest professional memories is an anecdote regarding an early, legendary immigration attorney. The attorney was famous for flat fees: a third was due at the outset, a third was due when the case was filed, and a third was due when the case was adjudicated. Simple ... elegant ... foolproof. When it worked, it worked; and I do not doubt, given the longevity and storied career of the attorney, that must have been most of the time. Still in my cloudy crystal ball I see half-full glasses and at least the possibility of train wrecks. Opinion 238, a 1993 D.C. Bar Ethics Opinion, illustrates some of the pitfalls in flat fees. 4 Opinion 238 The dispute involves a flat fee for certain enumerated immigration services. The retainer agreement provided that the client is entitled to one office visit, telephone conference, or other consultation with staff members. It also stated that additional office visits and/or telephone consultations not specifically mentioned will be charged at specified hourly rates. The dispute is about the appropriate charges for additional consultations.
Note: amendments to the D.C. Rules of Professional Conduct effective Feb. 1, 2007, now require a written fee agreement describing not only the basis or rate of the fee but also the scope of the lawyers representation and the expenses for which the client will be responsible.
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The retainer agreement provided that only one consultation is included in the flat fee. During the dispute the attorney maintained that he would not make an additional charge if we contact the client to perform those services [specified in the retainer agreement] or if the client contacts us when we would need that contact in an effort to perform the specific services for which we are retained. The attorney also indicated that there is no charge when a client calls to get updated status information from a paralegal, nor is there a charge for a consultation when milestones in a case are reached. In its analysis, the D.C. Bar agreed that [f]ixed fee agreements serve the important purpose of making legal services available to persons who might otherwise not be able to afford an attorney. But it went on to say that such agreements cannot be used to circumvent basic principles governing the relationships between attorneys and clients. Among the issues the Bar addressed was whether, when a fixed fee agreement is entered into, there are certain services which must be covered by the fixed fee and not subject to additional charges. The opinion held that 2. Fixed Fee Agreements Must Cover, as Part of the Fixed Fee, Those Reasonably Foreseeable Services That Are Necessary to Provide Competent Representation As to the extent to which services covered by a fixed fee may be limited, the opinion stated that: ... it is apparently common for fixed fee agreements to include certain services in the fixed fee and then to provide for further services at an additional hourly rate. It is the view of the [D.C. Bar] Committee that the fixed fee must include those reasonably foreseeable services that are necessary to provide competent representation. See Rule 1.1(a) (A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.) The opinion cites Comment [5] to Rule 1.5, which explains that: it is improper to enter into a fee agreement that might lead to the curtailment of necessary legal services. It states, in pertinent part: An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the clients interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the clients ability to pay. A fixed fee agreement that does not provide for foreseeably necessary services runs afoul of this principle. The [D.C. Bar] Committee does not intend to suggest by this opinion that a lawyer is required to consult with a client at the clients whim or to provide services that are not reasonably necessary to the competent provision of the agreed-upon representation. See Rule 1.2(c) regarding permissible limitations on the scope of representation. However, the lawyer does have the responsibility, in drafting a fixed fee agreement, to anticipate those services that will be reasonably necessary to competently carry out the agreed-upon representation. Complications and unforeseeable events will occur in certain representations, and a lawyer is not precluded from making additional charges in such circumstances. The test is whether such events are reasonably foreseeable at the outset of the representation. If so, attendant legal services must be covered by the fixed fee .... We ... note that the requirement in Rule 1.4(a) that [a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information suggests that such a limitation [to a single consultation] may not be reasonable. Indeed, the lawyers obligation in this regard is underscored in Comment [2] to Rule 1.4 which states that, [a] client is entitled to whatever information the client wishes about all aspects of the subject matters of the representation unless the client expressly consents not to have certain information passed on. Moreover, the lawyer must initiate and maintain the consultative and decision-making process if the client does not do so and must ensure that the ongoing process is thorough and complete. Id. ...
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In sum ... fixed fee agreements must include, as part of the fixed fee, those reasonably foreseeable services that are necessary to provide competent representation. WHAT SHOULD YOU CONSIDER BEFORE ACCEPTING A FLAT FEE? The author has long resisted the siren call of the flat fee, telling would-be clients that with only 35 years of practice he does not yet have enough experience to know how to set a flat fee fairly. After all, no two cases are alike, and if I set a flat fee sufficient to allow me continue to practice, it is likely that some clients will pay too much and some will pay too little. Undoubtedly, on hearing this, some prospective clients find a smarter, or at least more accommodating, attorney. That said, what considerations should the prudent practitioner cover in agreeing to represent an immigration client on a flat fee basis? As with any immigration matter, irrespective of how the fee is paid, a comprehensive retainer agreement is essential. At minimum, a retainer agreement providing for a flat fee should address 5 : Who the client is How much the fee is and when it is due When the fee is earned What services will be performed for the fee What services outside the fee the attorney will perform for the client and for what price; e.g., does the flat fee include responding to a request for evidence, attending an adjustment or asylum interview, preparation of a Board of Immigration Appeals or Administrative Appeals Office appeal, responding to a PERM audit, or preparing a Board of Alien Labor Certification appeal? Under what circumstances will there be a partial, or full, refund of the fee: Some jurisdictions require return of fees deemed unearned, even if paid in advance and characterized as nonrefundable. Several considerations may come into play, including the Rule 1.5(a) prohibition on charging clearly excessive fees, and failure of consideration issues. Establish when the services are to be rendered Is the fee earned upon receipt, as in the instance of a general retainer, or will it be held in trust until the services are performed: If the latter, under what circumstances can the funds held in trust be deemed earned and withdrawn by the attorney What expenses are, or are, not included in the flat fee, e.g., filing fees, postage, copying charges, etc. Who is responsible for expenses and when they will be paid. CONCLUSION
Hourly billing is the worst form of fee collection, except all others that have been tried.
with apologies to Winston Churchill Knowledgeable clients suspect what attorneys know: hourly billable is arbitrary and hourly rates are not only arbitrary but often objectively indefensible. Consider the first-year associate at a major firm logging dozens of billable hours at twice the hourly rate of an experienced solo immigration attorney. The new attorney may or may not get the right answer, where the seasoned pro is often apt to provide an answer you can take to the bank within half an hour or less. As cases exceed good-faith processing estimates and fee guesstimates, it is not uncommon for frustrated clients to question whether even the most scrupulous timekeeper has inflated is or her hours; this potential
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The AILA Immigration Practice Toolbox, (AILA 3rd Ed.) (CD-ROM), has a variety of essential resources and information including questionnaires, representation agreements, checklists, and correspondence.
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irritant is eliminated with flat fees. But, as previously suggested, flat fee arrangements have their own baggage. Some flat fee clients who have paid up front will inevitably suspect that the reason that their case is long delayed is only partially due to the governmentperhaps it is also because their attorney is more interested in new fee-generating matters, since he spent their fee years ago. Human nature suggests that, in instances, the suspicion might be justified.
HOW TO WALK THE ETHICAL LINEBEING LESS STRESSED OUT

by Cyrus D. Mehta, Howard S. Myers, and Kathleen Campbell Walker *
The fact patterns, which we address below, reflect situations in which the immigration attorney is obligated to give advice without crossing the line. This article, however, is not about taking the lawyer to the edge of the precipice, without pushing him or her over. Despite the complexity of the clients situation, it is always prudent to remain well within the boundary line of what is ethical. Since this boundary line is often amorphous and can shift, subject to varying interpretations, why should the lawyer take a risk? Moreover, walking this ethical line can potentially cause extreme stress and possible legal exposure for the immigration lawyer, but it need not if the lawyer possesses an in-depth knowledge of the ethical rules that enable him or her to stay well within that boundary. Our fact patterns may initially cause the lawyer stress, and perhaps panic as well, but once they are viewed from an ethical perspective, the advice that flows from the benefit of such an analysis can be a win-win for both the lawyer and the client. The lawyers reputation is enhanced, both with the client and the government; and the client also obtains the most realistic advice, which in the long run can only benefit him or her. So dear readers, put down your coffee cups as we try to help steer you though the intricacies of immigration law and ethics. Once you see the end of the tunnel of this journey, we hope you would have gained a healthy dose of confidenceas well as competence! FACT PATTERN 1THE FAST TRACK QUESTION You just finished a presentation to a local civic group on immigration in the United States. One member of the audience, a seemingly prosperous gentleman, approaches you with a quick question. He has fallen in love with a woman from the Philippines and wonders whether it is better to have her come into the United States on a B-2 visitor visa and marry him or is there a faster way for her to get a green card from the Philippines. How do you handle the question and afterwards? Creating the Attorney-Client Relationship 1 The Context The ethics of an attorney-client relationship are governed by Rules 1.1-1.18 of the Model Rules. It is common for an attorney to be offered the opportunity to enter into a lawyer-client relationship in a social setting.
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the managing member of Cyrus D. Mehta & Associates, PLLC. Mr. Mehta is the chair of AILAs National Pro Bono Committee and former chairman of the board of trustees of the American Immigration Law Foundation (200406). He received the AILA 2010 Presidents Commendation for leadership of AILAs pro bono efforts. Mr. Mehta is the author of several articles on contemporary immigration topics, including on ethics. Howard S. Sam Myers has more than 30 years experience practicing immigration law. He has been past president and Board of Governors member of AILA. He has testified before the U.S. Congress on immigration law and has advised members of the Minnesota State legislature on immigration law policy. He is listed in The Best Lawyers in America in Immigration Law and was recognized in Whos Who Legal 2007 through 2010 as one of the top 15 lawyers in the world most highly regarded in corporate immigration law. He was honored as a Fellow of the American Immigration Law Foundation. Kathleen Campbell Walker is a former national president (200708) and general counsel (200910) of AILA. She is chair of the Immigration Practice Group of Cox Smith Matthews Incorporated and has been practicing immigration law since 1985. She is board-certified in immigration and nationality law by the Texas Board of Legal Specialization. In 2010, she received the AILA National Service Excellence Award. She has testified multiple times on immigration and border security issues before Congress and the Texas legislature. 1 References in this article will be to the ABAs Model Rules of Professional Conduct (Model Rules) and these will be cited in this advisory. Ethics rules may vary in your jurisdiction, so be sure to check them against the correlated rule cited in this practice advisory.
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Usually, however, that context is inappropriate to properly create the relationship. 2 Legal advice is based on an application of law to facts, performed within the scope of a confidential setting. Here, the attorney may provide general information, but the front of a podium following a seminar or speech is not the place to provide legal advice. Either recommend that the individual retain his own attorney, or arrange for a consultation later. Beyond the ethics of creating the attorney-client relationship is the very important contractual or liability aspect of doing so. Liability has been found in many situations where caution was not observed by an attorney dispensing information when the client relied on it as legal advice. 3 The appropriate place for you to begin the relationship is in your office or in an equivalent confidential context. It is possible to establish a confidential attorney-client relationship by telephone, e-mail, or in other written format, but the ground rules should be established and the clients and attorneys expectations made clear. It is crucial, however, that the client be advised, in writing, of the existence, conditions, scope, confidentiality, and basis of cost of representation. The ethics of creating and maintaining confidentiality surrounding client relationships in our complex social media milieu is constantly receiving the attention of ethics authorities and courts, must be said to be in a state of evolution, and cannot be said to be well-established. 4 A California court recently held that an employee who emailed her attorney from her employers computer did not have a reasonable expectation of confidentiality where she was aware of a companys published policy of its right to monitor email traffic. 5 The court analogized the communication as, ... akin to consulting her lawyer in her employers conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him. In the present case, there ought to be a written retention agreement, an understanding concerning confidentiality of attorney client communications, an explanation of costs and clear expression of when and under what circumstances the attorney-client relationship may be terminated. Who Is Your Client? In marriage-based immigration cases, this point is always critical to establish. In the current example, it is fraught with complexity. This example includes not only the identity of whom you represent but also actual and potential conflicts of interest. It is governed by Model Rules 1.2 (Scope), 1.6 (Confidentiality), 1.7 and 1.8 (Conflicts of Interest), 4.3 (Dealing with Unrepresented Persons). Although it is possible, and usually desired by the couple, for the attorney to represent both parties to the prospective marriage, the attorney ought to point out the real possibility that, should a conflict of interest arise, the attorney must withdraw from all representation. This is not to suggest that a conflict cannot be resolved or waived, but there may be situations where a waiver is no longer effective if the attorney can no longer competently continue the representation of one or both parties, and the best option under such circumstances is to withdraw. This comes from a combination of Rule 1.7(a) where the continued representation would be directly adverse to another client; or there is a significant risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to another client; and of Rule
Here it is appropriate to note that communications with prospective clients are governed by Rule 7.3 (Direct Contact with Prospective Clients), which prohibits direct personal or electronic contact with prospective clients, ...when a significant motive for the lawyers doing so is pecuniary gain unless the person contacted is a lawyer or has a close family, personal or prior professional relationship... subject to some qualifications. 3 See D. Schnell, Note: Dont Just Hit Send: Unsolicited E-Mail and the Attorney-Client Relationship, 17 Harv. J. Law & Tech. 533, 538 (2004). See e.g., Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 693 (Minn. 1980); Matter of Petrie, 154 Ariz. 295, 742 P.2d 796, 800 (1987); Moen v. Thomas, 682 N.W.2d 738 (N.D. 2004). 4 See www.legalethics.com/?cat=15. 5 Holmes v. Petrovich Development Company, LLC www.courtinfo.ca.gov/opinions/documents/C059133.PDF. The difficulty of this issue in a rapidly expanding social media environment is illustrated by the U.S. Supreme Court in Ontario v. Quon 560 U.S. __ (2010) holding that an individual does not have an expectation of privacy in a text message transmitted in a city issued pager where a police department had no policy concerning privacy.
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1.16 requiring termination of representation if the attorneys continued representation would violate an ethical rule. It is important for the attorney to explain the potential causes of conflicts, ranging from the process becoming too risky or expensive for one of the parties, the couples feelings toward each other changing, or facts coming to light that have not previously been disclosed. It is also important, in situations such as the one presented in this hypothetical, that the attorney explain his or her obligation to present true facts to the agency and to correct any material misrepresentations that may exist in any submissions to the agency (see discussion below). What Is the Objective of the Representation? This issue involves a combination of ethical considerations and practical considerations in being realistic with the client. What the clients want here is the fastest, most economical issuance of a desired visa. This objective is unlikely to be a realistically achievable outcome in a case like this. There will be skepticism on the part of the U.S. Citizenship and Immigration Services (USCIS), the embassy, and an evolving set of facts about each of the couples backgrounds. For that reason, before assessing the costs, likelihood of success and process, the attorney and his staff should conduct a thorough interview of the client concerning past marital or premarital relationships with these or other individuals, past behavior that could mitigate against visa issuance, and other factors that would implicate INA 212 eligibility. The early stage of a legal representation is the most important time to be bluntly realistic with the client or clients. This discussion sets their expectations for the future. If it is going to be a rough ride through the system, say so. Minimizing or marginalizing difficulty does not serve to create a positive an attorney-client relationship in the end. After serious evaluation and consideration, you have decided to undertake representation of the couple to secure a fianc visa. You begin preparation of the supporting documents. Your client asks that you draft all of the supporting affidavits in such a way as to meet what you believe will be the agencys expectations since You are the expert. What do you do? The Attorney as Advocate In the field of immigration law, we are regularly confronted with reconciling our role as advocate to that of an officer of the tribunal committed to candor and respect toward it. 6 These responsibilities are explained in Rules 3.1 through 3.9. While it may be tempting for an attorney and his staff to simply dive headfirst into drafting supporting affidavits, there are some important cautionary rules we should follow. First, the affidavits must reflect the true facts, as opposed to the facts that the advocate wishes were true. This consideration can easily be implemented into the case preparation. After fully advising a client concerning the issues at hand, it is perfectly appropriate to require the client(s) to prepare written details of the relevant facts and substantiate them with independent documents, copies of letters, emails, photos, supporting statements from other witnesses, who know the couple as to the couples history and bona fides of their commitment to each other. Requiring the client to collect evidence supporting the elements of a fianc petition not only enables the attorney to not only develop an independent understanding of the facts, but also serves to provide the agency with corroborating evidence.
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An adjudicative entity within U.S. Citizenship and Immigration Services (USCIS), such as a service center, would probably fall within the definition of a tribunal under Model Rule 1.00(m). Even if it did not, it does not absolve a lawyer from the duty of candor, as the lawyer still must be truthful towards third parties under Model Rule 4.1 and 1.6, and more importantly, the lawyer could also face criminal sanctions under an assortment of federal penal statutes. A thorough analysis of the attorneys responsibilities of candor to the tribunal is presented at C. Mehta, What Remedial Measures Can a Lawyer Take to Correct False Statements Under New Yorks Ethical Rules? 12th Annual AILA New York Chapter Immigration Law Symposium Handbook (AILA 2009 Ed.) [hereafter referred to as Mehta].
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From an ethical point of view, the attorney is simply complying with Rule 3.3 prohibiting an attorney from,... knowingly: (1) mak[ing] a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer... Rule 1.0(f) defines knowingly and knows as actual knowledge of the fact in question, which may be inferred from the circumstances. Moreover, in an immigration proceeding, the attorney must comply with 8 CFR 1003.102. 7 Secondly, the attorney should impress on the client that the more substantiating evidence the client can produce, the more likely the petition will be successful. Here is it important for the attorney to reflect his or her professional responsibilities that are independent from what may be the clients understandable unfettered desire to win his or her case. The Model Rules significantly limit the attorney from becoming a witness in the case. 8 There are certainly situations in which the client and attorney have collaborated so often in documenting a case that each knows what the facts are and the attorney can take a greater role in drafting supporting documents for the clients review. Nevertheless, it is essential that the attorney be operating from the basis of what he or she knows to be true and to what facts he or she knows that the client will truthfully be able to attest. Finally, it is often important, in the initial consultation, and even in the engagement letter, for the attorney to impress on the client the attorneys ethical obligation to correct any false statements of material fact or law previously made to the tribunal. This approach may serve to temper the clients incentive to invent or suppress relevant facts. FACT PATTERN 2YOUR CLIENT LIED After the fianc petition has been filed, but before it has been adjudicated, the attorney learns, through a former girlfriend of the prospective husband, that several material statements made in the supporting affidavits were false. What should the attorney do? To an attorney who has prepared her client well for representation, this evolution of our hypothetical may not present as difficult a problem, but the attorney should be careful to consult her jurisdictions adoption or not of Model Rule 3.3(a)(1) and (3) and consider her actions within the scope of her jurisdictions applications of Model Rules 3.3(a)(1), (a)(3), 4.1, 1.2 and 1.6. 9 We have reflected the duty of the attorney in two Model Rules, 3.3(a)(1), summarized above, and 1.6, containing the following exception to the confidentiality rule: A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary...
A practitioner who falls within one of the following categories shall be subject to disciplinary sanctions in the public interest if he or she: (c) Knowingly or with reckless disregard makes a false statement of material fact or law, or willfully misleads, misinforms, threatens, or deceives any person (including a party to a case or an officer or employee of the Department of Justice), concerning any material and relevant matter relating to a case, including knowingly or with reckless disregard offering false evidence. If a practitioner has offered material evidence and comes to know of its falsity, the practitioner shall take appropriate remedial measures; Mehta, supra, at page 5, discusses the difference between 8 CFR 1003.102(c) and the New York rule 3.3 as the federal regulation includes both a knowing and reckless disregard standard whereas the New York rule only contains a knowing standard. The New York rule coincides with the Model Rule, in the absence of a reckless disregard standard and defines knowing as ...actual knowledge of the fact in question. A persons knowledge may be inferred from circumstances. 8 Model Rule 3.7. 9 Instructive discussions of this situation may be found at www.lacba.org/showpage.cfm?pageid=7035 where the author discusses the duty in the context of appellate judicial argument and www.nvbar.org/Publications/NevadaLawyer/ 2010/february/practicetips.htm where a similar discussion is presented. See also, www.philcherner.com/Articles/cherner1.htm, discussing these issues in criminal law context. Compare www.law.cornell.edu/ethics/az/narr/AZ_NARR_1_06.HTM where the rules of Arizona are compared with the Model Rules.
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(2) To prevent the client from committing a criminal or fraudulent act in furtherance of which the client has used or is using the lawyers services, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take suitable action; (3) To prevent, mitigate, or rectify the consequences of a clients criminal or fraudulent act in the commission of which the lawyers services have been or are being used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action; Model Rule 1.2(d) states: A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Model Rule 1.6 above allows the attorney to confront his client with the asserted misrepresentations and persuade the client to take corrective action. 10 Well enough if the material facts are shown to be false, but what if you do not believe the witness who asserts the falsity of the evidence or do not believe your client who claims that the facts are as he stated them? This leaves the attorney with a difficult decision. If the attorney believes his client that the facts are true, then, under the rules, it would seem that he must respect the confidentiality of his relationship and duty toward his client and rely on the evidence. But, his reliance ought to be reasonable and justified by a thorough inquiry. If he does not believe his clients claim that the alleged misrepresentation is true, then it would seem that the attorney has two options, to withdraw or to correct the record. 11 Should the attorney with such doubts about his clients veracity simply withdraw, without correcting the record, query what impression is left with the agency? Has the attorney taken appropriate remedial measures under 8 CFR 1003.102? One thing that we can learn from this situation is that an attorney who has notified his or her client at the beginning of the representation that the attorneys interpretation of legal and ethical rules compel the attorney to disclose conduct that he or she believes or reasonably suspects to constitute misrepresentations to the agency is going to be in a better position to withdraw than one who has not. FACT PATTERN 3A FUTURE CURE OR ONE THAT DOES NOT CURRENTLY EXIST Client A entered the United States without inspection in February 1, 2002 and is married to a spouse, who also entered the United States with him at the same time and in the same manner. They have three U.S. citizen children. A labor certification was filed on April 30, 2001 on behalf of Client A, which was subsequently abandoned. After examining all the facts and options, immigration attorney determines that there are no available options at this time. Client A asks immigration attorney whether he can continue to stay in the United States in violation of the law until Congress passes Comprehensive Immigration Reform (CIR)or until his eldest child turns 21 (she is currently 19). Client is aware that he can also apply for cancellation of removal; only if an NTA is issued on or after February 1, 2012, and wants to know how to best minimize risks to avoid apprehension before the 10year anniversary of his arrival into the United States. Again, the Role of the Attorney Immigration practitioners commonly encounter a client who is undocumented and asks about options to obtain status. If in the event there are no options, the next question is whether there are any options that might arise in the future. In the course of counseling the client who is not in status, can the attorney recommend that this person remain in the United States in this unlawful status until a benefit may accrue in the near or
Mehta, What Remedial Measures Can a Lawyer Take to Correct False Statements Under New Yorks Ethical Rules? 12th Annual AILA New York Chapter Immigration Law Symposium Handbook (AILA 2009 Ed.) at page 67, discusses the attorneys ability to advise the client concerning the significant adverse consequences arising from the misrepresentation. 11 Id. at page 5, discusses the option of a noisy withdrawal in connection with the standards of 8 CFR 1003.102.
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distant future? Even if the attorney may not directly advise the client to remain in the United States in violation of the law, would an attorney advising the client of a potential future immigration law be implicitly encouraging the client to remain in violation of the law, and also be implicating any ethical obligations? The Paradox This situation indeed is one of the great paradoxes in immigration practice, since an individual who is in undocumented status need not expect to remain eternally undocumented. A classic example is one who is grandfathered under 245(i) of the INA. So long as an immigrant visa petition or labor certification was filed on behalf of this person on or before April 30, 2001, that was approvable as filed, and if the principal applicant, for whom the labor certification was filed was physically present in the United States on December 21, 2000, in cases where the labor certification or petition was filed after January 14, 1998, 12 this individual can ultimately adjust status in the United States when she is eligible to do so. 13 In the meantime, while this individual is waiting to become eligible for adjustment of status, assuming that the physical presence requirement on December 21, 2000, is met for certain applicants, she continues to remain unlawfully in the United States and may also be placed in removal despite having an approved petition, but unable to adjust status until the priority date becomes current. We encounter yet another paradox when such a person who is potentially eligible under 245(i) is issued a Notice to Appear and is placed in removal proceedings. The Board of Immigration Appeals has held that it may be an abuse of discretion for an Immigration Judge to deny a continuance to a respondent who has a prima facie approvable visa petition, in both the family and employment context, and is also potentially eligible for adjustment of status. 14 Indeed, being documented or undocumented is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria, such as by being physically present in the United States on a continuous basis for not less than 10 years, by demonstrating good moral character during this period, by not being convicted of certain offenses and by demonstrating exceptional and extremely unusual hardship to the aliens spouse, parent, or child, who is a citizen or a permanent resident. 15 Such a person whose visa has long since expired could also possibly get wrapped up in a romantic encounter with a U.S. citizen, marry, and dramatically convert from undocumented to permanent resident within a few months. At times, Congress bestows such permanent residency, as we have already seen, through section 245(i) or the LIFE Act, 16 or a person can obtain Temporary Protected Status, if a calamity
8 CFR 245.10(a)(ii). In 1994, Congress passed special adjustment of status provisions, commonly referred to as 245(i). Department of Commerce, Justice, and State Appropriations Act, Pub. L. No. 103-317, sec. 506(b), 108 Stat. 1724 (1994). The new INA 245(i) provided broad relief for persons, who were otherwise ineligible for adjustment, thus allowing them to become LPRs without having to go the route of the immigrant visa process abroad. In exchange for this benefit, they were required to pay a surcharge fee. As originally enacted, 245(i) allowed most persons who had a basis for becoming LPRs, and who were otherwise admissible to become LPRs, to adjust upon payment of a fee of $1,000. This grandfathering provision also applied to children who aged-out (i.e., turned 21) while the application was pending. Although the program ended in January 1998, persons who had qualified under 245(i) as of that date were grandfathered in. On December 15, 2000, Congress extended the grandfathering date to April 30, 2001. 13 8 CFR 245.10(a)(3); Memo, Yates, Assoc. Dir. Operations, USCIS, HQOROPD 70/23.1 (Mar. 9, 2005), published on AILA InfoNet at Doc. No. 05031468 (posted Mar. 14, 2005). Note the physical presence requirement in the United States applies only if the principals labor certification or INA 204 petition was filed after January 14, 1998, and on or before April 30, 2001. See Pub. L. No. 105-119, title I, sec. 111; 111 Stat. 2440, 245859 (Nov. 26, 1997).] The Legal Immigration Family Equity Act Amendments of 2000, Title XV of Pub. L. No. 106-554, sec. 1502 (114 Stat. at 2764) (enacted Dec. 21, 2000) (the LIFE Act Amendments) extended the 245(i) (8 USC 1255(i)) sunset date from January 14, 1998, to April 30, 2001. That act also requires that, if the qualifying visa petition or labor certification application was filed after January 14, 1998, the alien must have been physically present in the United States on the date of enactment (Dec. 21, 2000) to be eligible to apply for adjustment of status under 245(i). 14 See Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009); Matter of Rajah, 25 I&N Dec. 127 (BIA 2009). 15 INA 240A(b). 16 Pub. L. No. 106-553, title XI.
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were to befall her country. 17 Millions of undocumented immigrants, including children, who have fallen out of status or entered without any status, are waiting for Congress to pass legislation that could legalize their status. Immigration lawyers also advocate on their behalf, and help them draft petitions and accompany them to the offices of elected representatives. The following extract from the U.S. Supreme Courts decision in Plyler v. Doe, 18 which held that undocumented children could not be deprived of a public education, is worth noting: To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen. Zealous Representation Within the Boundaries of Law and Ethics Against this backdrop, the practitioner must be mindful of certain limitations. On the one hand, a lawyer is under a duty to act zealously. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, A lawyer shall act with reasonable diligence and promptness in representing a client. Comment 1 to Rule 1.3 provides, A lawyer should take whatever lawful and ethical measures are required to vindicate a clients cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the clients behalf. On the other hand, a lawyer can only zealously represent his or her client within the bounds of the law. Under Model Rule 1.2(d), A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law. The key issue is whether counseling a client to remain in the United States, even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules. While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither criminal nor fraudulent conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA 275, it is no longer a continuing criminal violation to remain in the United States after the EWI. Although being unlawfully present in the United States may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation where an undocumented noncitizen can eternally hope to gain legal status, a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the United States. Considering and Presenting the Options Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the United States in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the United States, in certain circumstances, does constitute criminal conduct. For instance, if the client in the above hypothetical has received a final order of removal and has willfully failed to depart the United States within 90 days from the order, INA 243 renders such conduct a criminal felony with imprisonment of not more than four years (or 10 years if the person is deportable under the smuggling criminal offence or criminal/falsification of documents grounds). 19 An immigration attorney may
INA 244. 457 U.S. 202 (1982). 19 INA 243(a)(1) provides, as follows: Penalty for failure to depart:
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encounter a client who has a final removal order and willfully fails to depart in the hope that his U.S. citizen child, who is 19 years, will turn 21 years in two years, which would enable him to potentially reopen the order based on his ability to apply for adjustment of status as an immediate relative in the event that the government consents to joining in a motion to reopen. 20 If this client were to depart the United States prior to his son turning 21 years, he would derive no benefit for the next 10 years as the client would have most likely triggered the 10-year bar under INA 212(a)(9)(B)(i)(II). He would also be ineligible for a waiver under INA 212(a)(9)(B)(v) as a citizen child is not a qualifying relative under this provision. The attorney, in this situation, is truly caught in a conundrum. She cannot advise the client to evade the authorities who are seeking to remove him, and at the same time, if the client does present himself and gets removed from the United States upon the attorneys advice, he has lost out on the opportunity to adjust status through his U.S. citizen son when he turns 21 years. One should be mindful, though, of the exception at INA 243(a)(2), which provides: It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the aliens release from incarceration or custody. It is unclear whether taking proper steps for the purpose of securing cancellation of or exemption from such order of removal would cover our hypothetical client who would need to wait for two more years until his citizen son turned 21 in order for him to file for adjustment of status and move to reopen the order. Notwithstanding this exemption, the attorney should not advise her client under such circumstances to fail to depart after the final order or evade detection as that might be assisting a client in conduct that is criminal, and the attorney could also be potentially implicated criminally as a conspirator. However, as addressed in Model Rule 1.2(d), a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law. The situation becomes even more stark when an immigration attorney is approached by a client who after receiving a final removal order has re-entered the United States. INA 276 refers to an alien who is at any time found in the United States after entering or attempting to enter following the order. So, one who remains following an illegal reentry after removal is arguably committing a continuing crime, and there may also be no statute of limitations. Even here too, such a client can potentially apply for narrow relief such as withholding of removal or may challenge the reinstatement order 21 through a petition for review in a circuit court. 22 Under such circumstances, it is doubtful whether the attorney is encouraging a client to persist with the criminal conduct to remain in the United States in violation of 276 while challenging an infirm reinstatement of a removal order or by establishing that the client will be persecuted, if returned to the original country. Even so, while the attorney may zealously represent such a client, she must be careful to not in any way encourage the continuing criminal conduct by directly advising that the client to avoid detection by changing addresses or the like. Finally, the immigration attorney should never misrepresent the clients situation or location, when speaking to an immigration official.
In general, any alien against whom a final order of removal is outstanding by reason of being a member of any of the classes described in section 237(a), who willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order of removal under administrative processes, or if judicial review is had, then from the date of the final order of the court, i. willfully fails or refuses to make timely application in good faith for travel or other documents necessary to the aliens departure, ii. connives or conspires, or takes any other action, designed to prevent or hamper or with the purpose of preventing or hampering the aliens departure pursuant to such, or iii. willfully fails or refuses to present himself or herself for removal at the time and place required by the attorney general pursuant to such order, shall be fined under title 18, USC, or imprisoned not more than four years (or 10 years if the alien is a member of any of the classes described in paragraph (1)(E), (2), (3), or (4) of section 237(a), or both. 20 8 CFR 1003.2(c)(3)(iii); 1003.23(b)(4)(iv). 21 8 CFR 1208.31. 22 See Debato v. Attorney General, 505 F.3d 231 (Oct. 2007).
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Even if presenting information to such an official, such as an ICE official who needs to know the whereabouts, this situation does not implicate an attorneys duty of candor towards the tribunal under Model Rule 3.3; but a lawyer is still precluded from making a false statement of material fact or law to a third person under Model Rule 4.1. In closing, Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client in the above hypothetical: Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a clients conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent, in and of itself, make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. But Is the Holy Grail of CIR an Option? The example raises the point of the possible impact of comprehensive immigration reform (CIR), if ever passed into law in some form, as a potential future cure to the clients predicament as well. Others would characterize a resurrection of INA 245(i) as CIR as well. For those who do not appear to qualify for any relief, some attorneys might suggest the filing of a labor certification to serve as a place holder, if INA 245(i) is resurrected or reapplied or if some future CIR legislation, provides for benefits for those with an approved labor certification. It is important to remember that on July 16, 2007, all labor certifications expire 180 days from the date of issuance unless an I-140 Immigrant Petition is filed, based on the certification, before the expiration of the 180 days from the date DOL granted the certification. 23 Certifications issued prior to July 16, 2007, expired if no I-140 is filed within 180 days of July 16, 2007, or on January 12, 2008. Of course laws can change and for those who managed to have qualifying and legitimate petitions or labor certifications submitted, their clients had potentially more remedies than others. Consultations between a client and a lawyer concern the application of law to fact when making a decision to file a petition or labor certification. In addition, it is important to remember that benefit filings can result in potential removal actions being taken against the client. 24 If an attorney is suggesting a filing on a theory of a potential new law making the cost of the filing worth the risk and the potential treatment as a nullity by current law, the disclosure of this fact must be in writing and signed by the client. Some would argue the client would also be advised to consult with yet another lawyer before choosing to execute such an acknowledgement knowingly. Other attorneys would suggest that not charging a fee for such speculative filings is the appropriate approach, but whether the fee is charged or not, the potential consequences of acting upon such legal counsel will be real. Filing based on non-existent law is not a course of action we would recommend based on the considerations outlined in this section. To that end Model Rule 1.2 as to scope of representation and 3.1 as to meritorious claims and contentions should be consulted along with applicable state bar rules. In pertinent part of Rule 3.1 provides that, A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. As already noted, Model Rule 1.2(d) provides that a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
23 24
20 CFR 656.30. See USCIS ICE Memorandum of Understanding as to the Issuance of NTAs, published on AILA InfoNet at Doc. No. 10100172 (posted Oct. 1, 2010) at p. 14.
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FACT PATTERN 4WRESTLING THE INA 214(B) POLTERGEIST AT ENTRY Client is a U.S. citizen is a university professor, who wishes to immigrate his Mexican citizen parents to the United States as soon as possible due to the violence in Ciudad Juarez where they have lived for over 50 years. Client has heard that if his parents possess laser visas (i.e., B-1/B-2/BCC), they can apply for admission to the United States using their laser visa for no more than a 30-day visit within a 25-mile perimeter of the border (i.e., Texas not Arizona) and the apply for adjustment of status within the 30 days based on their U.S. citizen sons I-130 petition. 25 They ask if there are any risks to this strategy that they heard about recently from a friend, who successfully used it. Identifying Issues 1. INA 214(b)This section of the INA provides that all applicants for admission to the United States are presumed to be immigrants until they establish to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he or she is entitled to a nonimmigrant status under INA 101(a)(15). The foreign residence requirement is fairly consistent among nonimmigrant visa categories. The INA, however, has a specific exception to this requirement for H-1B, L-1, and O-1 nonimmigrants. 26 2. Expedited RemovalUnder INA 235(b)(1)(A)(i), a foreign national who is arriving in the United States and who is determined to be inadmissible under INA 212(a)(6)(C) or 212(a)(7) (except an alien for whom documentary requirements are waived under 8 CFR 211.1(b)(3) or 212.1) shall be ordered removed from the United States. 3. INA 274(a)Any person who encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law shall be subject to a fine or imprisonment for 10 years or both for each alien if done for commercial advantage or private financial gain. 27 4. Overstay and INA 222(g)INA 222(g)(1) states that if a foreign national is admitted to the United States based on a nonimmigrant visa and then remains in the United States beyond the authorized period of stay, the visa is voided at the conclusion of the period of stay authorized. So, what happens to a laser visa holder with no I-94 on the 31st day? Is there really a period of authorized stay as with a typical I-94 documented admission triggering INA 222(g) consequences of visa voidance or is the period of authorized stay in this instance more like a duration of status (D/S) admission granted in F-1 student visa cases? Take a look at the April 1, 1999, letter written by then Acting Assistant Commissioner, Michael J. Hrinyak, indicating that those entering on a laser visa without an I-94, should be treated the same as a D/S admission. 28 This approach would mean that unlawful presence would not accrue until a benefit adjudication or a court determination. 29
8 CFR 235.1(h)(1). INA 214(h) (codifying the concept known as dual intent); INA 214(b), (describing immigrant presumption but providing an exception for aliens admissible in the H and L categories); INA 101(a)(15)(O)(i), 8 USC 1101(a)(15)(O)(i) (defining alien of extraordinary ability, but including no requirement that the aliens stay be temporary) 27 INA 274(a)(1)(B)(i). If not done for commercial advantage or private financial gain, then the prison term is five years. 28 Published on AILA InfoNet at Doc. No. 99042190 (posted Apr. 21. 1999) Although the new Laser Visa, Form DSP-150, bears the designation ... and Border Crossing Card, it is primarily a nonimmigrant visa, valid for travel to the United States without a passport from contiguous territory and, when presented with a valid passport, from noncontiguous territory. The issuance of Form I-94 does not alter the nonimmigrant visa nature of the document and subjects admitted with or without an I94 are subject to Section 222(g) if they have ... remained beyond the period of stay authorized by the Attorney General. However, as a matter of practicality, those subjects admitted on the basis of a nonimmigrant visa, including Form DSP-150, who have not been issued Form I-94, such as those entering for less than 72 hours and remaining within 25 miles of the border, are, in general, not subject to Section 222(g) unless a formal finding of a status violation has been made by the INS or an immigration judge, that resulted in the termination of the authorized period of stay. 29 On the other hand, CBP has been taking the position, in complete contradiction to established USCIS and DOS policy, that a Canadian who is admitted without a visa and I-94 would still be accruing unlawful presence and would not be treated as a D/S
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25
continued
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5. Misrepresentation/Fraud at EntryAn alien who engages in fraud or willful misrepresentation of a material fact in order to procure a visa is inadmissible. 30 The Department of State (DOS) instructs in the Foreign Affairs Manual that a misrepresentation requires an affirmative act, rather than the failure to volunteer information. 31 To determine whether an alien has made a misrepresentation to obtain a visa, DOS instructs consular officers to apply the 30-/60day rule. 32 This rule provides that if within 30 days of B-2 visa issuance or entry, the alien: Actively seeks unauthorized employment and, subsequently, becomes engaged in such employment; Enrolls in a program of academic study without the benefit of the appropriate change of status; Marries and takes up permanent residence; or Undertakes any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment; then the alien is presumed to have misrepresented his or her intent at entry. 33 After 60 days, DOS does not consider the aliens activities to constitute the basis for a finding of ineligibility. 34 What to Do? When the attorney is consulted before the anticipated admission or after, he or she must focus on the intent of the parents at the time of their application for admission. What documentation can be obtained to address the intention of the parents at the time of their application for admission. In addition, if the parents have yet to apply for admission, certainly the attorney must consider the potential exposure to suggesting that the parents use a nonimmigrant visa, other than one which allows dual intent, to effectuate an immigrant admission. Is the attorney subject to potential criminal penalty under INA 274A described above? What if the attorney suggests that the parents enter without an I-94 admission and just wait until the 61st day to file for adjustment of status? INA 245(c)(2) provides that for immediate relatives, unlike preference cases for immigrant status, working without authorization or being in unlawful status or violating nonimmigrant status is not a bar to adjustment. How can the attorney explain the decision to file on the 61st or the 90th day? Even with such a filing date, intent at entry as well as the circumstances for admission are still relevant queries. Playing with fraud exposure is playing with ethical fire. It is best to stay away and keep your license as well as improve the possibility of a good nights sleep. CONCLUSION We also suggest that you remember the following like a lawyers prayer or possible chant or other insomnia cure option as you try to go to sleep each night: No amount of money is worth your license. Always be the boss. Dont let the client control you. Do not accept a case that would compromise your ethics. Assume every client is wired. There is no such thing as an off the record conversation. Know the law very well. A good lawyer may find ethical solutions for the worst of problems
after 180 days in the United States. See minutes of AILA National Liaison Meeting with CBP on Dec. 9, 2010, published on AILA InfoNet at Doc. No. 11012630 (posted Jan. 26, 2011). 30 INA 212(a)(6)(C). 31 9 FAM 40.63, N44.2. Cf. INA 274C(f) which notes that for determining document fraud penalties, a falsely made document includes one that fails to state a fact which is material to the purposes for which it was submitted. Under N4.2, Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purposes of INA 212(a)(6)(C)(i). 32 9 FAM 40.63, N4.7. 33 9 FAM 40.63, N4.7-2. 34 9 FAM 40.63, N4.7-3.
EXIT STRATEGIES: LEGAL AND ETHICAL ISSUES WHEN LEAVING A LAW FIRM
by Reid F. Trautz *
Lawyer mobility has increased dramatically over the past several decades as ethics opinions and economic conditions changed. The opinions provide more freedom to move to a new firm, and the long road to a law firm partnership provides little reason for lawyers to stay. Considering that movement from and to a firm is more prevalent, there are numerous issues that must be navigated for a successful transition. Failure to follow the legal and ethical high road can lead to trouble. These issues are controlled by state bar ethics rules and state laws. The important issues are discussed below. However, consult your specific bar rules and state laws to ensure that you comply with both. Making the Decision to Leave There are many reasons to leave a firm and often as many good reasons to stay. Deciding whether to stay or go to a potentially greener pasture is often the most difficult part of the process. It is also the most difficult to write in an article. Suffice it to say that you should seek the advice of others before making the decision. It is helpful to write down the positives and negatives of making a move. Whether you are considering a move for more money, a better work-life balance, prestige, or a new challenge, think strategically about that move. Does it make sense for you today, next year, and five years from now? Contractual and Fiduciary Obligations In addition to ethical considerations, there may be contractual or fiduciary obligations that may arise. Few lawyers have written contracts with their firms, but check all provisions if you do have one. Some non-equity partners may have some type of contract with the firm. More common is the associate who is employed atwill like most employees in the United States. Generally speaking, such an associate has no obligation to the firmnot even a notice of termination. As explained below, however, a proper notice period is the best course of action for your future and your reputation. If you are a partner, be sure to check the withdrawal provisions of the partnership agreement. Furthermore, if the firm is in financial turmoil, then it may complicate your departure and move to a new firm. Conflicts of Interest When lawyers move between firms, early detection and resolution of potential conflicts is the duty of the lawyer and law firm. True, this is not a major issue for most immigration lawyers, but it may still help avoid a problem. Because of our duty of confidentiality, lawyers must be prudent in sharing the proper level of information to check for conflicts. As stated in ABA Legal Ethics Opinion 09-455 any disclosure of conflicts information when lawyers move between firms should be no greater than reasonably necessary to accomplish the purpose of detection and resolution of conflicts of interest.conflicts information typically includes the persons and issues involved in the relevant matter, and disclosure of that information would be permitted. Notice to Your Firm When the decision to depart a firm is made, the matter of paramount importance is the duty to clients. Everything from this point forward must be considered with the clients well-being in mindnot that of the
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Reid F. Trautz is the director of AILAs Practice and Professionalism Center, where he provides ethics guidance and practice management advisory services. He educates AILA members on how to more effectively deliver legal services to clients and how to improve their practices. Mr. Trautz is a nationally recognized advisor, author and presenter on practice issues, including business process improvement, client communications, and legal ethics. He is admitted to the bars of Minnesota, Virginia, and the District of Columbia. He is a fellow of the College of Law Practice Management and chair of the ABA TechShow 2012 to be held in Chicago.
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firm or the departing lawyer. Common concerns include communicating to clients, conflicts of interest, and property issues involving client files and client funds being held by the firm. Let me repeat: Under our Rules of Professional Conduct, the clients interests trump the law firms interests and the departing lawyers interests. Period. End of discussion. So once an intended departure is announced by the lawyer or the firm, their actions must be taken with the clients interests in mind. Many lawyers are concerned about being frozen out once they announce their intentions to leave a firm. They do not want to be escorted to their office to gather personal effects and then escorted to the door. Firms can do this, but only to the extent it does not prejudice the clients interests. Although each situation is slightly different, it is helpful to be aware of the actions a firm has taken when a lawyer leaves. If the firm has a history of freeze-outs, then taking certain precautions is prudent. If the departing lawyer has primary responsibility for clients, then most likely he or she has a list of client contact information in order to contact clients in the event of a freeze-out. This information would have been gathered in the normal course of representing the clients on behalf of the firm. It gets trickier, in some states, if the departing lawyer gathers takes this information in anticipation of leaving. That may be impermissible, as it would be taking law firm property. There are other public methods of gathering this information without using firm databases, so consider using the Internet to locate this information. Notice to Clients The real flashpoint in lawyer departures is determining who keeps the clients. Clients are the lifeblood of firms, so this often becomes the greatest point of contention. It becomes a race to contact the clients to get them to stay with the firm or leave with the departing lawyer. This is often why firms freeze-out departing lawyers. But a review of the ethics rules and many state bar legal ethics opinions shows the recommended course of action is a joint communication from both the firm and the lawyer. Despite how lawyers may feel, every client gets to decide who will represent them. When a lawyer leaves, the client has three choices: stay with the firm, leave with the lawyer, or find another lawyer. There is some debate over which clients must be contacted when a lawyer leaves. It is clear all clients for whom the departing lawyer is primarily responsible must be contacted. What is less clear is whether the clients who may have had more limited contactsuch as with a junior associatemust be contacted. This decision should not be determined solely by the firm, but in discussions with the departing lawyer. Best Practices A lawyers departure should be done with enough time and planning to give sufficient notice to the clients to allow them to continue proper representation, to give the firm time to adjust work levels and responsibilities, and to give the departing lawyer time to transition firm obligations that will remain with the firm and prepare to transition clients that are also departing. Once the departing lawyer has notified his or her firm, the firm and lawyer should draft a joint letter to the clients who are affected by the departure. It should inform each client of the departure, the date of departure, the firms or lawyers decision to continue or stop representation, contact information for the lawyer and firm, a provision outlining the clients right to choose counsel, and any other information that allows the client to make an informed decision. Unless there is an urgent pending client matter, this letter should be the first and primary communication to the clients. The joint letter should include a printed form that allows the client to make one of three choices: stay with the firm, depart with the lawyer, or transition to a third party. The form should include a place for the clients signature with instructions to return it to the firm. Adding a stamped envelope improves responsiveness. Having this convenient form will provide objective evidence of a clients choice of representation and will help with transitioning client files to his or her lawyer. This letter (and optional form) should be sent to all affected clients, even if the firm and lawyer believe they already know a clients choice. If clients are slow to respond, calls from a representative of the firm and the departing lawyer are warranted. So what happens if there is stalemate? What happens when the firm and lawyer are at odds?
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If the firm and lawyer cannot agree on a course of joint action or the firm refuses to act upon the lawyers departure, it is the obligation of each lawyer to contact affected clients. Under ABA Model Rule 1.16, when terminating representation, a lawyer must give reasonable notice to the client to allow for employment of other counsel. Both the lawyer and firm may at this point decide to individually contact each client. If so, both should keep the communications professional and truthful. It is best not to let emotions alter the communication so that it would be considered false or misleading to the clients in possible violation of Rule 7.1. Property Issues Two common issues of property arise when a lawyer departs. First, who gets the client file? Second, what about the money? This involves money being held on behalf of the client (for costs and unearned fees) or monies owed by the client to the firm. The client file used by the firm (and stored by the firm) is the clients property, save for the occasional property of a third party, such as tax returns or birth certificates. Whether the client chooses the law firm, departing lawyer, or another lawyer, the file goes where the client goes. If the client leaves the firm, the firm cannot, in most jurisdictions, charge the client to make a copy. If the firm wants to retain a copy, they may do so at their expense. Pursuant to Rule 1.16, the file must also be transferred in a timely manner. If the client has provided instructions to transfer the file, the firm must do so promptly. If the firm delays transfer out of spite to the point of prejudice, it can lead to a costly malpractice suit. (Believe me, Ive seen it happen.). If the firm is holding funds for the clientoften for upcoming costs or as part of an unearned fee advancethen the firm and departing lawyer must work to ensure that such entrusted money is transferred properly from one trust account to another. It is helpful to obtain written instructions from the client (again a printed form can be created for this purpose) to allow the transfer from the current firm to the new one. Accounts Receivable When a client departs with a lawyer, there may be an outstanding balance owed to the firm for prior legal services. If the departing lawyer had primary responsibility for the client account, the firm may be tempted to require the lawyer to collect all outstanding fees. This is an area that may be governed by state law, not legal ethics. There may not be any guidance in your state. If the departing lawyer is an associate, there may be nothing that the partners (business owners) can do. If the departing lawyer is a partner, then the partnership agreement should control. If the partnership agreement is silent on this issue, then other fiduciary obligations or case law may control. In any event, the firm cannot condition the lawyer leaving based on collecting accounts receivable, although it may be an issue that the lawyer and firm work to resolve even after the lawyer has departed. Technology Issues Firm policies should be in place to address the technology issues when any employee or partner leaves a law firm. For example, the policies should be clear about surrendering mobile devices owned by the firm before the lawyer leaves. Furthermore, guidance should be provided as to retaining computer files on the lawyers computer. Those policies should provide guidance as to whether the departing lawyer may make copies of computer files that are not part of a clients file, such as client contact information, sample forms, and other files. Worse Practices Sometimes, the issues and emotions are too great when lawyers break up. Whether the firm freezes out the lawyer, the departing lawyer tries to grab clients early, or no agreement can be found on most issues, then consider hiring a lawyer for guidance. There are numerous professional responsibility lawyersespecially those who also advise professional practiceswho can help navigate the issues and overcome the logjams.
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EXHIBIT SAMPLE NOTICE OF ATTORNEY DEPARTURE [Date] [Name of Client] [Street Address or P.O. Box] [City, State, Zip Code] RE: Notice of [Name of Attorney]s Departure from [Name of Firm] Dear [Name of Client]: The purpose of this letter is to inform you that [Name of Attorney] has resigned [his or her] position with [Name of Firm] effective [Date]. [Name of Firm] and [Name of Attorney] will work closely to ensure that there is no interruption to your case. [Name of Attorney] will be joining [Name of New Firm] effective [Date]. Contact information is listed below. You may choose to stay with [Name of Firm] and continue to be represented by another attorney at the firm, or you may choose to have [Name of Attorney] continue to represent you as an attorney with [Name of New Firm], or you may choose to have your case transferred to a third party (i.e., another attorney/firm). In order to facilitate a smooth transition, please advise us in writing on or before [Date] by indicating your choice on the attached document, signing and returning by mail, e-mail [E-mail Address] or fax to [Fax Number]; attention [Name of Office Administrator]. If you elect to have your case transferred to [Name of Attorney] at [Name of New Firm], or to a third party; this will be done promptly upon receipt of this letter. If there are unused funds in your client funds account, [Name of Firm] will issue you a refund. If you have questions or concerns regarding your case, please feel free to contact us. Sincerely, [Name of Firm Partner] [Title] [Name of Firm] [Street Address] [City, State, Zip] [Phone Number] [E-mail Address] [Name of Attorney Leaving] [Title] [Name of New Firm] [Street Address] [City, State, Zip] [Phone Number] [E-mail Address]
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Please indicate your preference, sign below and return by [Date]. I wish to continue being represented by [Name of Firm] and request the following attorney: [Attorney Name] [Attorney Name] No Preference
I wish to be represented by [Name of Attorney] at [Name of New Firm] and authorize the transfer of all paper and electronic files. I wish to be represented by a third party and authorize the transfer of all paper and electronic files to the following attorney/firm:
Client Signature
Date
Mail to: [Name of Firm] Attention: [Name of Office Administrator] [Street Address] [City, State, Zip] or Fax: [Number] or Scan and e-mail: [E-mail Address]
NAVIGATING THE VISA BULLETIN: A GUIDE TO OBTAINING THE EARLIEST PRIORITY DATES
by Kathrin Mautino, Jerome G. Grzeca, and Khorzad A. Mehta *
SAME PETITIONER, SAME BENEFICIARYWHEN CAN YOU GET THE OLD PRIORITY DATE DUE TO AUTOMATIC CONVERSION? The Priority Date and Its Place in Determining Visa Availability The tremendous demand for family unity from immigrants settled in the United States conflicts with the current congressionally-mandated scarcity of immigrant visa numbers. The result is that there are not enough visas per fiscal year for everyone who wants to come to the United States. The U.S. Department of State (DOS), to ensure even allocation of available visa numbers per fiscal year, therefore imposes a cut-off date for visa availability based on a calculation of total demand for immigrant visas in a category versus the available visas in the category. The cut-off date corresponds to a petitions priority date, in effect determining where in the visa line the petition stands for further processing. In the context of family-based petitions, a priority date is reserved as of the date of filing an immigrant visa petition, and becomes established upon approval of that petition. 1 A priority date is, therefore, all-important for preference family-based petitions, such as the unmarried son or daughter of a U.S. citizen (USC) (first preference), 2 the spouse or unmarried son or daughter of a lawful permanent resident (LPR), 3 the married son or daughter of a USC (third preference), 4 or a brother or sister of a USC (fourth preference). 5 Due to the combination of the scarcity in supply and tremendous demand of visa numbers, it can take years or even decades for the cut-off date to correspond to the priority date of an individual family-based preference immigrant petition. In a period that long, many things can happen; petitioners can die or naturalize, beneficiaries can get married, divorced, or become old enough to lose eligibility for the immigrant classification under which they were initially petitioned.
Kathrin Mautino is the managing partner of the San Diego firm of Mautino and Mautino. She is certified as a specialist in immigration and nationality law by the State Bar of California, Board of Legal Specialization, one of fewer than 150 attorneys currently granted such designation. Ms. Mautino frequently writes and speaks on various immigration topics for local, regional and national audiences, including AILA. She is considered an expert on the often over-looked Western Hemisphere Priority Date program. Ms. Mautino also serves as the Honorary Consul for the Republic of Finland in San Diego. Jerome G. Grzeca is a director on the AILA Board of Governors and member of the AILA DOS Liaison Committee. He has served on numerous committees and taskforces with AILA in the past decade, including program chair for the 2009 Annual Conference Committee; Executive Director Search Committee; chair of the Taskforce on Affiliate Programs; member of the USCIS Liaison Committee; member of the 2009 Nominating Committee; and chair of the NSC Liaison Committee. He is a respected speaker and author of a variety of business immigration law topics and has served on more than 40 professional immigration law panels. Khorzad A. Mehta practices immigration law in Washington, D.C.. His primary interests include J-1 waivers for foreign medical graduates; H, O, and L nonimmigrant petitions; labor certification; and employment and family-based immigrant petitions. Mr. Mehta is a 2004 graduate of Case Western Reserve University School of Law, a 2001 graduate of the Ohio State University, and is admitted to the bar of the Supreme Court of Ohio. 1 8 CFR 204.1(c). 2 Immigration and Nationality Act of 1952 (INA) 203(a)(1), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). 3 INA 203(a)(2). 4 INA 203(a)(3). 5 INA 203(a)(4).
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The regulations provide for automatic conversion and retention of priority date based on a change in marital status, age-out from child 6 to son or daughter 7 (i.e., attaining the age of 21 before being issued the visa), and petitioners naturalization. 8 Below, we list and explain the regulatory provisions which permit retention of a priority date under these circumstances so as to avoid waste of years or decades of processing time or waiting for a cut-off date to correspond to a petitions priority date. Automatic Conversion The Effect of Marriage The regulation 9 states in pertinent part: A currently valid petition previously approved to classify the beneficiary as the unmarried son or daughter under section 203(a)(1) of the Act shall be regarded as having been approved for preference status under 203(a)(3) of the Act as of the date the beneficiary marries. The beneficiarys priority date is the same as the date the petition for classification under section 203(a)(1) of the Act was properly filed. In effect, a son or daughter over the age of 21 pending immigrant classification is automatically treated under the regulation as a married son or daughter as soon as he or she gets married. The petition remains in effect and undisturbed. However, depending on cut-off dates and visa availability in the new category, it is possible that the act of getting married may slow the beneficiarys eventual immigration. The regulations 10 provide for the same type of treatment for immediate relative petitions. 11 If a child under the age of 21, treated as an immediate relative under Immigration and Nationality Act (INA) 201(b)(2)(a)(i) gets married before they turn 21, the immediate relative petition filed on their behalf automatically changes to that of married son or daughter as of the date of marriage. Although the priority date of the filing of the immediate relative petition stays intact, the effect of the marriage is an immediate slowing of visa processing for the beneficiary because the beneficiary, by regulation, drops from an immediate relative category where there is no congressionally-mandated limit to visa issuance, to the third preference 12 immigrant visa quota subject category. The Effect of Divorce The regulations 13 state in pertinent part: A currently valid petition previously approved to classify the beneficiary as the married son or daughter under section 203(a)(3) of the Act shall, upon legal termination of the beneficiarys marriage, be regarded as having been approved for preference status under 203(a)(1) of the Act if the beneficiary is over 21 years of age. The beneficiarys priority date is the same as the date the petition for classification under section 203(a)(3) of the Act was properly filed. If the beneficiary is under twenty-one years of age, the petition shall be regarded as having been approved for classification as an immediate relative under section 201(b) of the Act as of the date the petition for classification under 203(a)(3) of the Act was properly filed. This regulation is effectively the converse of 8 CFR 204.2(i)(1)(i) and (ii). It provides for a conversion to a higher immigrant category, either first preference or immediate relative depending on the age of the beneficiary, once the beneficiarys marriage is terminated. The net effect of this is typically a shorter wait for the cut-off date to correspond with the priority date to allow for sooner than anticipated visa issuance for the beneficiary.
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INA 101(b). INA 203(a)(1). 8 8 CFR 204.2(i)(1)(i). 9 8 CFR 204.2(i)(1)(i). 10 8 CFR 204.2(i)(1)(ii). 11 INA 201(b)(2)(a)(i). 12 INA 203(a)(1). 13 8 CFR 204.2(i)(1)(iii).
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The Effect of the Beneficiary Attaining the Age of 21 An approved petition by a USC for a child under the age of 21 (an immediate relative pursuant to INA 201(b)) is considered to be approved for preference status under either the first or third preference with the same priority date as the date the petition for immediate relative classification was filed if the beneficiary attains the age of 21 or gets married before the issuance of the immigrant visa or adjustment of status. 14 The Effect of the Naturalization of a LPR Petitioner The regulation 15 states that: Effective upon the date of naturalization of a petition who had been lawfully admitted for permanent residence, a currently valid petition according preference status under section 203(a)(2) of the Act to the petitioners spouse and unmarried children under 21 years of age shall be regarded as having been approved for immediate relative status under section 201(b) of the Act. Similarly, a currently valid petition according preference status under section 203(a)(2) of the Act for the unmarried son or daughter over twenty-one years of age shall be regarded as having been approved under section 203(a)(1) of the Act. In any case of conversion to classification under section 203(a)(1) of the Act, the beneficiarys priority date is the same as the date the petition for classification under section 203(a)(2) of the Act was properly filed. A self-petition filed under section 204(a)(1)(B)(ii) or 204(a)(1)(B)(iii) of the Act based on the relationship to an abusive lawful permanent resident of the United States for classification under section 203(a)(2) of the Act will not be affected by the abusers naturalization and will not be automatically converted to a petition for immediate relative classification. This regulatory provision allows the beneficiary spouse or minor children of a petition filed by an LPR to automatically convert to immediate relative status upon the petitioners naturalization. It also allows for an LPRs unmarried sons or daughters over 21 years of age to be upgraded from the second preference of the family-based immigration classification hierarchy to the first preference. Again, the principal benefit is removal from the preference quota-based system and its long waiting time for the cut-off date to correspond to the petitions priority date for visa availability into the quota exempt immediate relative category or into a category with a potentially shorter wait time (i.e., in most cases other than the Philippines currently, 16 second preference to first preference). An abused spouse or child who is the beneficiary of a visa petition filed on his or her behalf by an abusive USC or LPR parent or spouse can transfer the original approved visa petitions priority date to his or her own self-petition. 17 WHEN CAN YOU NOT GET THE OLD PRIORITY DATE? Although the regulations, as specified above, provide many avenues to priority date retention, there are circumstances listed below where retention of a priority date is not possible. For example: If a change in marital relationship, naturalization, or other relationship would not support a family-based preference petition, the petition is revoked and the priority date is lost. 18 This is best illustrated in the situation where the unmarried child of an LPR 19 (i.e., a second preference petition) marries prior to the naturalization of the LPR petitioner. Because there is no provision in the family-based hierarchy allowing an LPR to petition for his or her married son or daughter as a beneficiary of an immigrant petition, the existing petition is invalidated upon the marriage of the beneficiary and the priority date lost. The LPR could naturalize and file a third preference petition (married son or daughter of USC) 20 for the beneficiary,
8 CFR 204.2(i)(2). 8 CFR 204.2(i)(3). 16 See U.S. Department of State, Visa Bulletin for Feb. 2010, published on AILA InfoNet at Doc. No. 10011160 (posted Jan. 11, 2010), available at www.aila.org/content/default.aspx?docid=30935. 17 8 CFR 204.2(i)(3). 18 8 CFR 205.1(a)(3)(i)(I). 19 INA 203(a)(2). 20 INA 203(a)(3).
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but the priority date cannot be recaptured from the earlier second preference petition. Retention of a priority date is not possible if a petitioner is denaturalized or loses status as an LPR through deportation, removal, or rescission, and the beneficiary is no longer entitled to preference status. 21 In many circumstances, absent the discretion of the secretary of the U.S. Department of Homeland Security, death of the petitioner automatically revokes any preference petition. 22 Any subsequent petition filed on the basis of another ground of family-based eligibility must progress upon the basis of its own criteria and cannot benefit from the priority date of the automatically revoked petition.NEW PROVISIONS FOR WIDOWS AND OTHER SURVIVORS On October 28, 2009, President Obama signed a funding bill that included important protections for widows of USCs and other survivors. 23 The new section of the INA 24 provides that pending and approved I130s for widows and widowers of USCs are not automatically revoked on the death of the petitioner, no matter the length of time the couple was married. Additionally, I-130 petitions for other categories continue if the beneficiary resides in the United States at the time of death of the petitioner. 25 Derivative beneficiaries of petitions also receive some protections if the principal beneficiary dies. 26 HOW CAN YOU ADVANCE YOUR CLIENTS PETITION BY USING A WESTERN HEMISPHERE PRIORITY DATE? What Is a Western Hemisphere Priority Date? The Western Hemisphere Priority Date (WHPD) was established as a result of historical changes to the immigration system. Between 1921 and 1965, the national origins quota system ruled, generally favoring immigration from Western Europe 27 . However, there was no quota placed on immigrants from independent Western Hemisphere countries. In 1965, a quota was placed on immigrants from Western Hemisphere countries, but there were no categories for Western Hemisphere individualsfamily-based immigrants were placed in the same category as employment-based immigrants. 28 In 1976, Congress passed legislation placing Western Hemisphere countries into the quota system that existed for the rest of the world, and the law went into effect on January 1, 1977. 29 The 1976 legislation included a savings clause that allowed individuals registered under the old system to use their established priority date together with a new petition under the new system. The retained priority date is what is referred to as a WHPD. Why Should I As an Immigration Practitioner Care? Individuals with an established WHPD can use their priority date with any petition filed under the present system, either employment-based or family-based. The priority date includes not just the principal immigrant, but also the accompanying or following-to-join family members. As practitioners are aware, all of the familybased preference categories, as well as some of the more popular employment-based categories, have backlogs of several years. An individual with a WHPD gets to cut to the front of the line, and becomes
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8 CFR 205.1(a)(3)(i)(J). 8 CFR 205.1(a)(3)(i)(C). Note that INA 204(l) provides some exceptions as described below. 23 Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 2142 (Oct. 28, 2009). 24 INA 204(l). 25 Id. 26 For a further explanation, see U.S. Citizenship and Immigration Services (USCIS) Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act (Dec. 16, 2010), published on AILA InfoNet at Doc. No. 11011061 (posted Jan. 1, 2011), available at www.aila.org/content/ default.aspx?docid=34098. 27 See Act of May 19, 1921, Pub. L. No. 67-5, 42 Stat. 5, temporarily establishing the national origins quota system, which was made permanent by Act of May 26, 1924, Pub. L. No. 68-139, 43 Stat. 153. 28 Immigration and Nationality Act of 1965, 21(c), 66 Stat. 163. 29 Immigration and Nationality Act Amendments of 1976, Pub. L. No. 94-571, 90 Stat. 2703, 2707.
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immediately eligible to immigrate. In some instances, a derivative spouse with a WHPD can cross-charge the priority date to the principal applicant, 30 again allowing the entire family to immigrate immediately. Additionally, some WHPD registrations qualify for INA 245(i). But the Law Expired Over 30 Years Ago, How Realistic Is It that I Will Come Across a Registrant in My Practice? There are more WHPD registrants than one might think. The reason, in simple terms, is that children of a registrant were also considered to be registered in most circumstances. Those children maintain their WHPD registration even after they reach age 21 or marry. So, How Do I Determine If an Individual May Have a WHPD? The limitations of the practice advisory format do not allow for a complete analysis of how a WHPD was established. 31 Typically, WHPDs are discovered by a careful questioning of the client or potential client to determine if the individual or the parent of an individual ever registered to immigrate. Attached to this practice advisory is a sample questionnaire to assist in identifying potential WHPD cases. However, there are some common scenarios which you may have seen in your practice. Prior Acquired Spouse and Children Sample facts: Erik and Susan, natives and citizens of Peru, married in 1959. They had two children, Elizabeth, born in 1961, and Frederick, born in 1964. In 1965, Erik applied to immigrate to the United States. He traveled to New York City where he opened an import/export business. Because money was tight, Susan and the children remained in Peru and never immigrated. Analysis: Susan, Elizabeth and Frederick are all independently entitled to a priority date of 1965. Susan gets to keep her priority date even if the marriage between her and Erik was later terminated through divorce, death, or through another manner. Similarly, Elizabeth and Frederick maintain the 1965 priority date even though now they are both well over age 21, and even if they are now married. 32 Perhaps the best way to conceptualize the eligibility of Susan and the children to a WHPD is that they could have accompanied Erik to the United States when he applied to immigrate, as his accompanying spouse and children. 33 Children Born to a Marriage that Existed At the Time of Registration Sample facts: Assume that the facts laid out above remain true, but that after Erik immigrates, he and Susan have a third child, Charlotte, born in 1970 in Peru. Analysis: Charlotte is entitled to a WHPD of 1965, even though this pre-dates her date of birth. 34 She may use the date of her fathers immigration, because she was born to a marriage that existed at the time her father immigrated. After-Acquired Spouse and Children Sample facts: Sofia immigrated to the United States from her native Canada in 1970 when she was single. In 1972, she returned to Vancouver to marry her sweetheart, George, also a citizen of Canada. She then returned to the United States, where she owns her own business. Later, in 1975, son Paul is born in Vancouver. George hates the United States and refuses to move or allow Paul to go to the United States, except for short visits.
Cross chargeability is discussed below. This topic has been explored in-depth in previous AILA conference materials. Additionally, one of the most useful discussions of the WHPD system can be found in the article by R. Mautino, Save the Western Hemisphere Priority Date Program, published in 71 Interpreter Releases 513 (Apr. 18, 1994). 32 9 Foreign Affairs Manual (FAM) 42.53 N.5.5 to 22 CFR 42.53; 9 FAM 40.1 N7.2-1 to 22 CFR 40.1. 33 INA 203(d). 34 9 FAM 40.1 N7.2-2 to 22 CFR 40.1.
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Analysis: George is entitled to a WHPD of his date of marriage to Sofia in 1972, thanks to a DOS interpretation that re-entry to the United States of a permanent resident is usually held to be an admission for permanent resident status. 35 He is not entitled to the date that Sofia immigrated to the United States, because he was not married to Sofia at that time. Paul may be eligible for a WHPD of the date of marriage or of his date of birth. 36 Note that under DOS interpretation, no WHPD is created if the marriage occurs in the United States. 37 Derivatives of Immediate Relatives Sample Facts: Maria, a native and citizen of Mexico, was widowed in 1973, and had two small children, Ulysses, born in 1970 and Minerva, born in 1972. She meets and marries William, a United States citizen, in 1974, and immigrates to the United States in 1975. Brian and Minerva are left in Mexico in the care of their maternal grandmother. William did not want to immigrate Brian and Minerva, as he felt they were not his children and he never filed a visa petition for them. Maria, anxious to please William, never files to immigrate her children. Analysis: Ulysses and Minerva are entitled to a WHPD of 1975, the date that their mother immigrated. As children of an immediate relative, the first reaction would be that they are not entitled to a WHPD, since the immediate relative categories do not allow for admission of derivative family members. However, due to federal court action, 38 the government now accepts that children of immediate relatives are entitled to a derivative WHPD. Note as well, unlike present law, parents of permanent residents were also eligible to immigrate. Principal Applicant Never Immigrated Sample facts: Samuel, a native and citizen of Mexico, registered to immigrate in 1967 at the American Consulate in Tijuana, Mexico. At that time, he was married to Karla, also a citizen of Mexico, and had three children, all unmarried and under age 21. Samuel expected to work for ABC Farms in San Diego. However, the day after he visited the consulate, Samuel found a better job in Mexico and he never followed up on his application. Analysis: Samuel, Karla, and the children are entitled to a WHPD of 1967. Once created, an individual retains the WHPD until it is used. The WHPD was created on the date that the principal established a priority date, either by being the beneficiary of an immigrant visa petition or labor certification 39 or by showing that the individual was exempt from the labor certification requirement. 40 Individuals often could apply directly with the closest American consulate. Once the appropriate documentation was accepted, the WHPD was established, even if the principal never immigrated. HOW DO RETROGRESSION AND CROSS CHARGEABILITY AFFECT MY CLIENTS ABILITY TO IMMIGRATE? What Is Retrogression? Retrogression is the simple consequence of demand exceeding the supply of immigrant visas. As U.S. Citizenship and Immigration Services (USCIS) works its way through the stacks of immigrant visa applications, DOS estimates the number of visas available in each priority category based on how many visa
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Again, the practice advisory format is not conductive to an in-depth analysis. The complete provision is quoted in 71 Interpreter Releases 51516 (Apr. 18, 1994). 36 Id. 37 Id. 38 Barajas v. Shultz, No. 87-0870-E-(IEG) (S.D. Cal. Filed June 15, 1987) reported in 65 Interpreter Releases 617 (June 13, 1988). 39 Note that the forms used do not necessarily reflect the forms used now. In addition to the I-130, practitioners may see an FS497, an I-550, or older versions of the labor certification forms. 40 Investors, for example, could immigrate without filing a labor certification.
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numbers USCIS requests in a given category. DOS then states which priority dates are current in a given month based on those estimates by looking at the two factors that affect the supply of visas: (1) the number of visas already allocated or used in a category; and (2) the rate the government is processing green card applications. 41 However, when those predictions are inaccurate (due for instance, to a vast influx of applications at a given time) and USCIS requests more visa numbers in a category than was expected, DOS adjusts which priority dates are current the next month, causing the dates to retrogress or become completely unavailable. 42 What Happens If My Clients Priority Date Was Current At the Time I Submitted the Application to Register Permanent Residence or Adjust Status (I-485) and the Priority Dates Subsequently Retrogressed? If an I-485 was properly submitted to USCIS when the priority date was current, the application can typically be pre-adjudicated and any substantive issues with the case will be addressed. 43 The case is then held in limbo until the priority date is again current and the application can be adjudicated. However, once the priority date for your client is again current, USCIS may issue an RFE to ensure current and accurate documentation. Documents that may expire while the application is pending, such as Biometrics, Police and Medical records, may have to be renewed. 44 Is My Client Eligible for Other Immigration Benefits If His Priority Date Has Retrogressed? During the period of retrogression, your client will continue to be eligible for any immigration benefits that are derived pursuant to his pending I-485, such as advance parole and employment authorization. Eligibility for any nonimmigrant visa status your client may possess (such as B-1, H-1B or L-1) is independent of the green card process and it is recommended that individuals maintain any underlying nonimmigrant status that is available to them until receiving their green card. For Clients Who Are Consular Processing, What Is the Consequence of Retrogression After Submission of All Required Documents to the National Visa Center? The case will be held at the National Visa Center (NVC) until the priority date becomes current. Once the priority date is current, the NVC will continue with the next step in processing. 45 My Clients Priority Date Is Current This Month, But the New Visa Bulletin Was Just Released and the Numbers Are Retrogressing, Is It Worth Submitting the I-485 and Supporting Documents This Month Before Her Priority Date Is No Longer Current? If your client has an approved I-130 or I-140 and is otherwise eligible to apply for adjustment of status, it is strongly suggested that you submit the I-485 and supporting documents as soon as your clients priority date is current, even if it will be retrogressing the next month. In particular, if your client would like to receive advance parole or employment authorization while the I-485 is pending, those applications should be
See The Operation of the Immigrant Numerical Control System, available at www.travel.state.gov/pdf/Immigrant%20Visa %20Control%20System_operation%20of.pdf. 42 For perspective on U.S. Citizenship and Immigration Servicess (USCIS) role in the visa allocation process, please review Michael Aytes testimony before the House Judiciary Committee Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law on Apr. 28, 2008, available at www.uscis.gov/files/article/Immigrant_Visas_ 30Apr08.pdf 43 AILA-USCIS TSC Liaison Meeting (May 20, 2010), published on AILA InfoNet at Doc. No. 10081961 (posted Aug. 19, 2010), available at www.aila.org/content/default.aspx?docid=32927. 44 Retrogression Q&A, published on AILA InfoNet at Doc. No. 05100770 (posted Oct. 7, 2005), available at www.aila.org/content/default.aspx?docid=17695. 45 Note that the National Visa Center (NVC) has stated NVCs role in collecting and reviewing information for post involved ensuring that the information provided to the Consular Officer for interview is current and that the forms are clerically complete. Therefore, applicants may be required to resubmit time sensitive documents to NVC multiple times. See AILA Liaison Meeting, Oct. 24, 2007, Summary of Questions and Answers, published on AILA InfoNet at Doc. No. 07112732 (posted Nov. 27, 2007), available at www.aila.org/content/default.aspx?docid=23921.
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submitted with the I-485 application while the priority date is still current. In addition, USCIS can adjudicate the I-485 while the priority date is not current. Then, the I-485 will be ready for approval once the priority date again becomes current. My Client Has an Appointment in Cuidad Juarez for His Immigrant Visa Next Month. However, According to the Visa Bulletin, His Category Has Retrogressed and His Priority Date Will No Longer Be Current At the Time of the Appointment. Will He Still Be Granted His Green Card If He Is Otherwise Eligible? Unfortunately, DOS cannot issue an immigrant visa, unless the applicant meets that months Visa Bulletins newly-established cut-off dates. Additionally, even if the interview is completed during the month that the visa number is available, if the immigrant visa cannot be approved by the end of that month, applicants will need to wait until the priority date is within their established cut-off date to receive their immigrant visas. 46 My Client Has an Appointment with the Local USCIS Office Next Month. However, According to the Visa Bulletin, His Category Has Retrogressed and His Priority Date Will No Longer be Current At the Time of the Appointment. Will He Still Be Granted His Green Card At the Interview If He Is Otherwise Eligible? Pursuant to USCISs December 15, 2010 Interim Memo, if a visa number is not available to an individual at the time of adjudication, the file must be transferred back to the appropriate service center following completion of the interview and resolution of all other evidentiary issues or security/background checks related to the case. The file is then tagged as a regressed visa number case in the National File Tracking System. The appropriate Service Center will then request allocation of a visa number for the case and complete adjudication of the I-485 when DOS allocates a visa number for the applicant. 47 My Client Had a Regressed Visa Interview Prior to January 1, 2011. How Is Her Case Being Handled? Pursuant to USCISs December 15, 2010 Interim Memo, all pending regressed visa cases have been shipped from local offices to the appropriate Service Center that will handle final adjudication of the case. 48 What Is Cross-Chargeability? Cross-chargeability can be a useful tool available in green card cases. Applicable to principal applicants who have spouses who were born in a different country than the principal, the process allows principals who are subject to a retrogressed or unavailable priority date due to per-country limitations to switch to their spouses country of chargeability. Children may be charged to the foreign state of either parent (where accompanying or follow-to-join). 49 How Is Chargeability Determined? An applicants country of birth determines which countrys visa quota the individual will be charged. The country of nationality/citizenship does not control. 50 What Do I Do to Request Cross-Chargeability? Because country of chargeability is not requested on the I-485, it is advisable to include a coversheet with the immigrant visa applications containing the following information: Name of principal alien
Practice Alert: Strategies for Handling Family-Based Retrogression before EOIR, (Dec. 16, 2010) published on AILA InfoNet at Doc. No. 10122033 (posted Dec. 20, 2010), available at www.aila.org/content/default.aspx?docid=33909. USCIS Interim Memorandum, Instructions for Handling Regressed Visa Number (Employment-Based and Family-Based) Adjustment of Status Cases Interviewed at USCIS Field Offices, (Dec. 15, 2010), published on AILA InfoNet at Doc. No. 11011164 (posted Jan. 11, 2011), available at www.aila.org/content/default.aspx?docid=34107. 48 Id. 49 See Rules of Chargeability, 9 FAM 42.12. 50 Id.
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Country of chargeability for principal alien Name of spouse Country of chargeability for spouse The words due to visa retrogression, please consider cross-chargeability in this case. 51 What If USCIS Does Not Grant My Request for Cross-Chargeability? Chargeability is not a part of USCISs electronic record and, therefore, the National Customer Service Center cannot directly access or correct the information. If you believe you submitted a valid request for cross-chargeability, you should make an inquiry to the proper service center through AILAs liaison services 52 . Additionally, each service center may have a special e-mail address to address chargeability issues. Review AILA InfoNet for the latest information. CONCLUSION Immigrant visa oversubscription in the family and employment based categories is an inevitable consequence of our nations immigration system, and will likely not be alleviated unless comprehensive immigration reform either adds more immigrant visa number availability into the system, or overhauls our existing immigration laws. In the meantime, it is critical that an applicants priority date be established early, and that any potential life change (death, divorce, marriage, etc.) be analyzed to determine its effect on future immigration to the United States.
Cross Chargeability Request Form, available at www.aila.org/content/fileviewer.aspx?docid=17222&linkid=132257. AILA-SCOPS Liaison Questions (Feb. 5, 2009) published on AILA InfoNet at Doc. No. 09022766 (posted Feb. 27, 2009), available at www.aila.org/content/default.aspx?docid=28141.
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EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT REGIONAL CENTERS, BUT DIDNT KNOW ENOUGH TO ASK
by Tammy Fox-Isicoff *
What Is a Regional Center? A Regional Center (RC) is a proposed business venture often located in a targeted unemployment area supported by an econometric model based on a business plan forecasting indirect and/or direct job creation. Normally, RCs are located in areas of high unemployment or rural areas and require a $500,000 investment; however, some RCs are not located in targeted employment areas and therefore require investments of $1,000,000. An investor in an RC is not required to be actively involved in the management of the investment as long as the investor is a limited partner under the Uniform Limited Partnership Act. 1 An RC normally structures one or more new commercial enterprises (NCE) that receive capital from investors to engage in direct or indirect job creation project or projects. What does RC designation by USCIS mean? It means that U.S. Citizenship and Immigration Services (USCIS) has reviewed the proposed business plan, any accompanying econometric models, location, and proposed job creations and has determined that the proposed business plan meets the requirements of The Immigrant Investor Pilot Program, created by Section 610 of the Commerce, Justice, State Appropriations Act for FY 1993.2 Are all RCs that have received designation from USCIS operational? No, actually only a small percentage of designated RCs are operational and have approved I-526 immigrant petitions by alien entrepreneur; even a smaller percentage have approved I-829 petitions to remove 3 conditions on residence. Is USCIS required to conduct background checks on RC managers or directors? No.
Tammy Fox-Isicoff is a former trial attorney for the U.S. Immigration and Naturalization Service and special assistant U.S. attorney. She is past president of AILAs South Florida Chapter and served on the AILA Board of Governors for over 15 years where she chaired its Media, Congressional, and Bar Association committees and where she currently serves on the EB-5 committee. She has served as AILAs representative to the American Bar Associations Immigration Coordinating Committee. Ms. Fox-Isicoff is on the board of directors of Catholic Charities Legal Services and has been the recipient of three AILA Presidential Awards for advocacy on behalf of immigrants and in 2009, was awarded the Adalsinda Lomangino Award by the AILA South Florida Chapter for her work on behalf of immigrants. Ms. Fox-Isicoff has served on the Florida Bars Certification Committee for Immigration and Nationality Law (where she has written and graded Florida Bar Certification exams) and is certified by the Florida bar in Immigration and Nationality Law. She holds an AV rating from MartindaleHubbell and has been listed in The Best Lawyers in America, Chambers Global, South Floridas Top Lawyers, Super Lawyers, and International Whos Who of Corporate Lawyers. She has been a frequent immigration law consultant on The Today Show and Morning Show, and has served as immigration legal consultant to NBC, ABC, CBS, CNBC, FOX, and MSNBC. A frequent author and lecturer on all areas of immigration law, Ms. Fox-Isicoff has served as a legal expert on a number of occasions in federal court, state court, and in Florida bar disciplinary proceedings. She currently practices law with the firm of Rifkin & Fox-Isicoff P.A. 1 Uniform Limited Partnership Act, Pub. L. No. 87-716, Sept. 28, 1962, 76 Stat. 655. 2 Pub. L. No. 102-395, 106 Stat. 1838 (Oct. 6, 1992). 3 Information from the USCIS Stakeholders Meeting (Mar. 17, 2011) available at www.uscis.gov/USCIS/Outreach/Notes%20 from%20Previous%20Engagements/2011/March%202011/EB-5-presentation-March-2011.pdf shows that as of Mar. 17, 2011, there were 125 approved RCs. A complete list of these is available at www.uscis.gov/portal/site/uscis/menuitem.5af9b b95919f35e66f614176543f6d1a/?vgnextoid=d765ee0f4c014210VgnVCM100000082ca60aRCRD&vgnextchannel=facb83453d 4a3210VgnVCM100000b92ca60aRCRD. Ninety to 95 percent of the EB-5 petitions received each year are RC petitions. There are currently 156 RC proposals pending initial review, and 34 RC proposals seeking to amend RC-approved RCs.
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Does USCIS monitor the performance of RCs? Not at this time. USCIS implemented Form I-924A on November 23, 2010. Although published on November 23, 2010, Form I-924A will not be required to be filed by any regional center until after the close of fiscal year (FY) 2011. The data collected via Form I-924A will be published externally, on the USCIS website, for each fiscal year. This should allow the agency to provide more efficiently information to 4 stakeholders. This form is used to demonstrate an RCs continued eligibility for the RC designation. Does USCIS publish a list of operational RCs and those with approved I-526 and I-829 petitions? While USCIS does publish a list of designated RCs, it does not yet publish those RCs that are operational or those RCs that have approved or denied I-526 and/or I-829 petitions. USCIS recently has determined that publication of this data would not violate the Freedom of Information Act (FOIA). 5 USCIS has stated that they intend to publish this data on a quarterly and annualized basis commencing with petitions filed during FY 2011. 6 If an RC is designated by USCIS, are all NCEs formed in the RC automatically approved? No, each NCE within the RC must meet the requirements of the requisite investment amount and job creation. If the NCE will be investing in another business, that business must meet the requisite employment creation. Is there a process whereby USCIS provides pre-approval of a NCE within a RC? Yes. USCIS recently has created a pre-approval process. However, this process is not taken advantage of by many RCs as the time to obtain pre-approval of a NCE can be extensive, inordinately delaying the NCE from receiving funds from investors. The pre-approval process is so new that it has not been adequately time7 tested. If USCIS has approved a number of I-526 petitions for an NCE, or pre-approved an NCE, is it a guarantee that future petitions for the same NCE also will be approved? No. USCIS will always examine the source and path of funds of the individual investor and the failure to carefully document this can result in the denial of an I-526 petition. More baffling is that on frequent occasions, USCIS has raised questions pertaining to NCEs that have a long track record of approvals, and USCIS can also raise questions pertaining to NCEs that have been pre-approved. USCIS has also raised questions concerning a NCEs qualifications after approving an I-526, at the I-829 stage. Thus, prior approvals for the same NCE, pre-approval of an exemplar petition for a NCE, and even the approval of an investors I-526 for a particular NCE, do not mean that the NCE will not be further scrutinized by USCIS. What happens to an investor who invests in an NCE that never gets off the ground? The initial I-526 alien entrepreneur petition may be approved based on the business plan and supporting documents, but the I-829, petition to remove conditions on residence, will be denied. If either the I-526 or I-829 petition is denied, will the invested funds be returned to the investor? This depends to some extent on the agreement between the investor and the RC. Some RCs hold funds in escrow pending approval of the I-526. Others do not. At the I-829 stage, it is doubtful that funds will be
75 Fed. Reg. 58961 (Sept. 24, 2010). 8 CFR 204.5(m)(6). See also www.uscis.gov/USCIS/Outreach/Public%20Engage ment/National%20Engagement%20Pages/2010%20Events/October%202010/EB-5%20Presentation_Quarterly%20 Engagement%20Oct%2014%202010.pdf (notes from EB-5 stakeholders meeting Oct. 14, 2010). 5 Freedom of Information Act, 5 USC 552, as amended by Pub. L. No. 104-231, 110 Stat. 3048. 6 Id. See also www.uscis.gov/USCIS/Outreach/Upcoming%20National%20Events/eb-5-dec-16-2010-present.pdf (notes from stakeholders meeting on Dec. 16, 2010). 7 Legacy Immigration and Naturalization Service (INS) Memorandum, D. Neufeld, Adjudication of EB-5 Regional l Center Proposals and Affiliated Form I-526 and form I-829, Petitions, AFM Update to Chapters 22.4 and 25.2 (Dec. 11, 2009), published on AILA InfoNet at Doc. No. 09121561 (posted Dec. 15, 2009), available at www.aila.org/content/default. aspx?docid=30795.
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returned if the I-829 is denied as the funds must have been placed at risk in order for the I-526 to be approved 8 in the first place. The RC cannot provide any guarantee of the return of the invested funds if the I-829 is denied. What happens to an investor if USCIS denies the I-829? The investor can renew the I-829, petition to remove conditions on residence, in removal proceedings before an immigration judge. If the investors I-829 is denied by the judge, the investor can appeal to the Board of Immigration Appeals and to federal court. If the investor does not prevail, the investor can be 9 deported. What happens if the I-526 is approved and the NCE is ongoing, but the completion of the project is delayed, has yet to receive sufficient capital for completion, or is adversely impacted by a natural disaster? If the NCE experiences a material change (material change has not been defined by USCIS), the petition to remove conditions on residence will be denied. A material change might mean a slight deviation from the business plan, a delay in the progression of job creation, or something much greater. At this time, USCIS has left RCs and investors questioning how much deviation from a business plan due to normal 10 business events is acceptable. Can an investor in the situation above take action to protect him- or herself? Yes. USCIS has recently announced the creation of a new petition process if there is a material change in the NCE. However, this new petition will require review of the NCE anew by USCIS, the filing of a new I526 petition, and the creation of a new two-year conditional residence period. Furthermore, an investor has no way of knowing if a material change occurred (because of USCISs failure to provide guidance regarding what a material change is) until the I-829 is denied. Will the new petition process protect an investors family? It will protect a spouse and children under 21. It will not protect a divorced spouse and children who are 11 over 21 when the new petition is filed. What if a NCE goes bankrupt? The investor likely will lose all invested funds and be subject to removal proceedings. Is there any process for an RC to work with USCIS if an NCEs submitted business plan cannot be realized? No. At this time there is no process for an ongoing dialogue between USCIS and an RC or investor. Is the RC or USCIS required to notify investors if other petitions for the same NCE are denied? No. Does USCIS work with the investor and/or the RC to preserve an investors lawful status in this country? No.
See Matter of Izumii, 22 I&N Dec. 169 (Assoc. Comm. 1998). 8 CFR 216.6(d)(2). 10 Legacy INS Memorandum, D. Neufeld, Adjudication of EB-5 Regional l Center Proposals and Affiliated Form I-526 and form I-829, Petitions, AFM Update to Chapters 22.4 and 25.2 (Dec. 11, 2009), published on AILA InfoNet at Doc. No. 09121561 (posted Dec. 15, 2009), available at www.aila.org/content/default.aspx?docid=30795. 11 Id.
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Has USCIS ever placed a good faith investor in removal proceedings where the investor actually invested the required funds in a targeted area and jobs were created but the NCEs business plan changed or job creation was delayed? Yes. Does USCIS provide any latitude for common business problems impacting the successful and timely implementation of the business plan of an NCE? At this time, it does not appear that USCIS does. Can an area qualifying as a targeted employment area upon RC designation by USCIS fail to maintain status as a targeted employment area during the course of a particular project engaged in by an NCE? Yes. A targeted employment area designation is determined at the time of the filing of the I-526, immigrant petition by alien entrepreneur, or the time of the investment, whichever is earlier. Thus, it is possible that sometime during the course of a project, the targeted employment area designation can change, and the requisite amount of capital to qualify for the EB-5 program can change from $500,000 to $1 million. Investors who already invested in an NCE during the time the NCE was located in a targeted employment area should be insulated from any change. A RC will have great difficulty complying with securities laws if an NCE previously requiring a $500,000 investment suddenly requires a $1 million investment. 12 Is it smart to be the first or last investor in a NCE? No. An investor should be able to inquire about an RC if the RC has obtained pre-approval for an NCE and if other petitions have been approved for the NCE. Though prior approvals of I-526 petitions for the same NCE, or the pre-approval of a NCE, do not stop USCIS from later questioning aspects of the NCE, it does provide some predictability. An investor may not want to be amongst the last of the investors investing in a particular NCE, as any direct or indirect employment creation may already have been allocated to prior investors in the NCE. Any shortfall in the projected employment creation could potentially impact investors who are the last to invest in a particular NCE. Given the high economic stake for an investor and the benefit to the United States if the Immigrant Investor Pilot Program is successful, is USCIS concerned about overseeing this program and ensuring its success? It does not appear that USCIS has devoted the time and resources to the EB-5 pilot program to help ensure its success. In fact, it appears that USCIS has developed an insular attitude toward the EB-5 program by refusing to provide much needed guidance and dialogue on a myriad of complex issues to investors, their counsel, and RCs. Over the years, USCIS has developed its own requirements, not supported by statutes or regulations, for qualifying under the EB-5 program. Many of USCISs rogue requirements pertain to individual EB-5 investments; however, several pertain to RC EB-5 investments. These include the requirement that the jobs for U.S. workers must be the same jobs and pursuant to the same business plan envisioned at the time of filing the I-526, the assumption that indirect jobs created outside the regional center will not qualify, and the requirement that jobs must be created within 2 years from approval of the I-526 petition. USCIS also has imposed onerous burdens on investors to demonstrate lawful sources of funds, not supported by statute or regulation. Perhaps most important, USCIS has negated the most vital premise of the EB-5 programthat an investor will be awarded permanent residence after sustaining an investment for a two-year period. Inordinate processing delays at the I-526 stage, often caused by extensive requests for evidence even in cases where prior petitions for the same NCE had been approved, coupled with extensive processing delays at the I-829 stage often caused by requests for evidence that had already been presented and adjudicated at the I-526 stage, and the requirement of a new I-526 when a change has occurred (referred to above in item 14) render
Immigration and Nationality Act of 1952 (INA) 204.6(e), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.).
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the EB-5 investor process quite a long one, and the period of conditional residence far longer than the two years envisioned by Congress. Does an attorney have an economic incentive for referring an investor to a particular RC? In some cases, RCs pay finders fees to attorneys who refer an investor to a particular RC. Many attorneys will refuse to accept this finders fee, as it is unclear at this time whether state bar rules or state and federal securities laws permit payment to counsel of this fee. Moreover, the acceptance of a finders fee by a lawyer may create a conflict of interest for the lawyer. Some RCs pay higher finders fees than others. Do RCs require investors to utilize a RC attorney? RCs vary greatly on this practice. Some RCs require that all petitions filed by investors in the RC be prepared and submitted by an RC attorney. Other RCs allow a petition to be prepared by any attorney, or an attorney approved by an RC, but require review by an RC attorney before the I-526 is filed; and yet, other RCs permit any attorney to file the petition. Should an investor have his or her own attorney and/or financial professional involved in the process of selecting an RC and/or filing the I-526 petition? It is the authors opinion that every investor should conduct his or her own due diligence and employ trusted financial advisors before investing in an RC to conduct a thorough review of the RC business plan and investigate the managers and directors of the RC. It is also the authors opinion that, regardless of whether a RC requires preparation of the I-526 petition and/or filing of the I-526 petition by RC-employed counsel, it is wise for an investor to have his or her own attorney, especially one skilled in the EB-5 investor area, involved in the petition process. An attorney who represents the RC and the investor may have a conflict if the attorney representing the RC learns adverse information about an RC. Can an investor file a FOIA request with USCIS to find out an RCs record of approved and/or denied petitions? At this time USCIS states that it does not maintain these statistics. Since the review of RCs and NCEs and the process of employment creation require sophisticated financial and economic analysis, does USCIS employ economic and business experts with advanced degrees and experience in the business world in the adjudication of the petition for RC designation and adjudication of the I-526 and I-829 petitions? Strangely, no. Although an economist is employed by USCIS, the adjudicators responsible for the day-today adjudication of the petitions above are not required to have advanced business or economics degrees; nor are they required to have advanced experience in the business arena. Moreover, the adjudicators in this 13 program do not receive more than several weeks of training on the adjudication of these petitions. Given the lack of available data on designated RCs and the risk involved in the program, what can an investor do to minimize his or her risk? An investor should go into this investment like any other investmentwith extreme caution and only after carefully reviewing all available information on the RC, the NCE, prospective projects engaged in by the NCE, as well as the managers and directors of the RC, with the investors own financial professionals. An investor in an RC should discuss with his or her congressional representative the need for USCIS to create transparency in the adjudication process, publish available data on RCs, and, most importantly, for USICS to work with RCs and investors to help ensure the success of this program that is meant to stimulate investment and job creation in the United States.
USCIS Stakeholders Meeting (Dec. 16, 2010) available at www.uscis.gov/USCIS/Outreach/Upcoming%20National%20 Events/eb-5-dec-16-2010-present.pdf.

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What is the denial rate on petitions to remove conditions on residence? In the first quarter of FY 2011, 245 RC applications were denied. In FY 2009, it was 14 percent and in FY 2008, it was 30 percent. Ninety percent of I-526 forms are filed by investors in RCs. Thus, it is clear that a significant number of the denials on petitions to remove conditions on residence are for RC investor 14 applications.
Id.; USCIS Stakeholders Meeting (Mar. 17, 2011) available at USCIS Stakeholders Meeting (Mar. 17, 2011) available at www.uscis.gov/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2011/March%202011/EB-5-presentation-Mar ch-2011.pdf.
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DOES NYSDOT REALLY SAY THAT? LIFTING THE VEIL

by Nathan A. Waxman *
Matter of New York State Department of Transportation (NYSDOT), 1 like the worlds great religious texts, seems to be referenced by immigration lawyers and service adjudicators alike, more often than it gets read. Lets examine how NYSDOT actually applies to National Interest Waiver (NIW) 2 scenarios and try to dispel some frequent misconceptions regarding its impact on client eligibility for permanent residence in this category. Judicious analysis of a clients likelihood of success in an NIW petition begins with a careful application of the three prongs of the NYSDOT 3 precedent decision to the clients activities and contributions. The petitioner must establish that these activities and contributions, collectively, advance a key national interest. Accordingly, counsel should direct the following three inquiries to the prospective petitioners fact pattern: (1) Is the field of the petitioners activity of substantial intrinsic merit? Simply put, are the potential outcomes of the activity likely to benefit the United States in meaningful ways? (2) Is the effect or potential impact of the activity geographically national in scope? That is, will the nation as a whole, and not just a particular state or region, benefit? (3) Is the petitioner likely to have such a greater effect or impact on the field than others that he or she warrants waiver of the otherwise statutorily mandated job offer and labor certification requirements? Although U.S. Citizenship and Immigration Services (USCIS) seldom has a problem with (1) or (2), both bear a closer look. As a practical matter, few NIW petitions have floundered in substantial intrinsic merit. Indeed, the Administrative Appeals Office (AAO) has determined fields as disparate as boulangerie baking, bat biology, and skull coaching to be sufficiently meritorious. However, the importance of careful field delineation cannot be understated, as it is critical to enabling a waiver seeker to surmount NYSDOTs third prong. Regarding the allegedly nationally significant field, dont hesitate to deconstruct the titles or subject matter of the petitioners writings and areas of interest, in order to envision both the potential outcomes of the activity and their broader effects, particularly in emerging or hybridized fields. In defining the field, go beyond mere academic credentials and base your delineation on the aggregation of accomplishments. Illustrative of a successful post-NYSDOT case characterized by a non-obvious juxtaposition of academic degree and field of endeavor is the authors representation of a Ph.D. in audiology whose focus shifted from managing biomechanical sources of hearing impairment, as a graduate student at a prestigious school of communications, to consulting for multinational corporations on the sociocultural impediments to business
Nathan A. Waxman has practiced business and professional immigration law exclusively since the 1980s. He is recognized as a leader in National Interest Waiver (NIW) analysis and advocacy, and has written and lectured extensively on a broad range of business immigration topics. Coming to the study of law from doctoral study in philosophy and Sanskrit at the Universities of Chicago and Pennsylvania, Nathan graduated cum laude from Loyola Law in Chicago and is admitted to the bar in both Illinois and New York. He has been recognized in The Best Lawyers of America, New York Magazine, International Whos Who Legal, and SuperLawyers. The author wishes to thank Karen Dean for assistance with this article, and for her invaluable contributions to the cases mentioned herein. Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Assoc. Commr 1998).
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Immigrant petitions under Immigration and Nationality Act (Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.)) 203(b)(ii) for beneficiaries of exceptional ability or holding advanced degrees, in which the petitioner seeks a waiver of the job offer (and labor certification) requirements on the basis of the national interest. 3 Note that this article does not deal with the specific situation of qualifying physicians working in medically underserved areas. Such physicians qualify through a limited statutory blanket waiver, now incorporated into INA (b)(2)(B)(ii). For more information on those national interest waivers, see J. Minear, Getting a Green Card on the Five-Year Plan: National Interest Waivers for Clinical Physicians, Immigration Options for Physicians, 3rd Ed. (AILA 2009).
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communication. 4 A more typical manifestation of this phenomenon would be the successful representation of Ph.D.s in such disciplines as computational biology, computational astrophysics, and biostatistics who have applied their mathematical modeling skills to financial scenarios. However, counsel should exercise discretion in determining whether there has been excessive dilution of the field of endeavor to be advanced. For example, a theoretical physicist who has abandoned the abstract study of cosmology in favor of the more remunerative application of generalized mathematical modeling to financial computation on Wall Street may be an inappropriate waiver candidate if she does not intend to resume astrophysical research. However, an astrophysicist who morphs into a Wall Street quant, but continues to apply her own comparatively superior contribution to mathematical modeling, may well remain an appropriate NIW candidate. Regarding NYSDOTs second prong, recognize that geographically localized performance of an activity does not preclude nationwide impact of the petitioners efforts. For example, a doctoral student in performance studies at NYU successfully premised her self-petition on her highly eclectic nonacademic writing (poetry and nonpeer-reviewed essays) and lecturing about the scale model of New York City located in a museum in Queens as a metaphor for the city as an organic entity constituting a performance space for its inhabitants and visitors. By way of contrast, a rural sociologist whose extensive peer-reviewed record focused on the role of Laurel, MS as a national exemplar of the agricultural center that successfully transitioned into a regional manufacturing and distribution center would easily satisfy NYSDOTs second prong, despite the superficial geographic limitation of her research endeavors. In general, peer-reviewed academic or scholarly publication should be regarded as inherently nonlocal. Needless to say, counsel must exercise restraint in attempting to extrapolate nationwide impact from every geographically delimited body of research or allegedly beneficial work product. Accordingly, in the case mentioned above, had the performance studies researcher focused her efforts exclusively on the historic and anecdotal circumstances of the park in which the museum housing the New York City scale model is located, rather than on the extent to which an urban scale model may constitute a holographic image by which New York City could be seen as the archetypical urban living space, a favorable outcome would have been less likely. Indeed, the great potential for showing the national scope of localized activities is best illustrated by the AAOs determination in NYSDOT that the structural engineers performance of bridge renovations solely in the Albany region of east central New York State was sufficiently national in scope, through the interstate connectivity of those roads, to qualify him under its second prong. The NYSDOT waiver seeker, a state employee performing fairly mundane bridge renovation engineering in a multi-county area of upstate New York, easily surmounted NYSDOTs first and second prongs. For NYSDOTs civil engineer, and for a significant percentage of those seeking to benefit from the NIW mechanism, it is the precedent decisions third prong that proves to be the significant obstacle to success. Despite its apparent opacity, ultimately the third prong of NYSDOT reduces to a fairly simple proposition: The immigration agency will only grudgingly exempt an intending immigrant from the labor certification mechanism. Accordingly, NYSDOTs third prong attempts to balance the presumptive societal protection afforded US workers through the labor certification mechanism with the agencys statutory obligation to delineate some class of individuals entitled to an exemption from that otherwise applicable requirement. As this waiver mechanism was available by the time of the precedent decision to both advanced degree professionals and applicants meeting the relatively temperate EB-2 exceptional ability criteria as well, the AAO was confronted with the challenge of determining just how high to place the bar. In essence, NYSDOTs third prong sought to exclude waiver seekers premising qualification solely on either the generic significance of their occupational category (e.g., civil engineering) or the alleviation of localized labor shortages. The AAO presented the following clarification of the seemingly mysterious third prong balancing formula in footnote 6 of NYSDOT:
4
This case, and the case mentioned in the next paragraph, including actual redacted documents, was published in N. Waxman, National Interest Waiver: Two Case Studies, AILAs Immigration Practice Toolbox, 3rd Ed. (AILA 2009). Please note that the RFE concerning the localized impact of the New York City scale model scholar was successfully rebutted through submission of geographically diverse testimony that the self-petitioners immediately post-9/11 writings on the New York scale model constituted an inspirational national resource.
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The alien, however, clearly must have established, in some capacity, the ability to serve the national interest to a substantially greater extent than the majority of his or her colleagues. The Service here does not seek a quantified threshold of experience or education, but rather a past history of demonstrable achievement with some degree of influence on the field as a whole. Academic performance, measured by such criteria as grade point average, cannot alone satisfy the national interest threshold or assure substantial prospective national benefit. In all cases the petitioner must demonstrate specific prior achievements which establish the aliens ability to benefit the national interest (emphasis added). All immigration practitioners and adjudicators should be encouraged to re-read NYSDOT carefully before assessing a problematic waiver scenario. NYSDOTs footnote 6 provides the standard by which we, as advocates, should assess the fundamental eligibility of prospective NIW seekers: Has the aggregation of experience and education documented an ability to serve a delineated national interest to a greater extent than that demonstrated by the majority of the clients colleagues? Have the waiver seekers prior achievements demonstrated some influence (or, as some RFEs put it, some significant impact) on the field, as we have demarcated it, as a whole? This metric, though seemingly daunting for many, is far less restrictive than that imposed by the significantly more rigorous extraordinary ability and outstanding researcher/professor eligibility criteria. Moreover, NYSDOT effectuates a radical paradigm shift from the EB-1A and EB-1B quantitative review of standards. NYSDOTs waiver-balancing formula markedly contrasts with the EB-1A and EB-1B regulatory schemata, which seek to measure success and recognition by means of such conventional criteria as compensation, recognition by major media, and awards. NYSDOTs third prong opens the inquiry to a far broader investigation into the impact and benefit of a waiver seekers services, rather than primarily focusing upon more traditional measures of accomplishment. The successful self-petition 5 of an Iberian Spanish language journalist employed by a series of small-tomedium circulation, Latino-targeted newspapers in Texas and North Carolina cogently illustrates the extent to which appropriate third-leg advocacy can benefit intending immigrants who would fail miserably by an EB 1A analysis. She was writing for local Spanish media, for an economically marginalized audience, and her salary and name recognition in major media were low. Nonetheless, her work focused on life along the Texas-Mexico border and on the immigrationand drug-related problems that besiege the Latino communities straddling this troubled frontier. Importantly, some of her articles were syndicated in broader circulation Spanish-language newspapers in markets away from the border region. She presented a wide consensus of objective testimony from major market journalists and respected public figures who had read her work in syndication, who testified in support letters that she had significantly impacted the provision of accurate reporting about immigration, the drug war, and the plight of Latinos residing in the frontier region. Clearly, this journalist satisfied the third prong criteria of serving a defined national interest to a greater extent than a majority of her colleagues with, at the very least, some degree of influence on the field as defined in her petition, i.e., the description of life on the borderincluding the earliest days of the drug-related violence that has dominated English and Spanish language media in subsequent yearsand coverage of immigrationrelated plights and scams affecting Latinos there. NYSDOTS VALE OF CONFUSION The NIW is not a panacea for all clients. This author, at least, urges that NYSDOT, if properly applied, disqualifies fewer cases than many colleagues, USCIS adjudicators, and the client universe, might believe. Regrettably, a vale of confusion has surrounded the NYSDOT waiver qualification formulation, precluding many advocates and adjudicators alike from properly applying the decision to the fact patterns under consideration. The practice pointers that follow are intended to help clarify the application of NYSDOT, and particularly its third prong, to a typical range of NIW scenarios. Ten misconceptions and half-truths about the NIW mechanism that are frequently voiced by advocates and adjudicators alike are introduced. This author attempts to dispel these misconceptions by directing NIW stakeholders to the plain language of the decision itself.
This case, including actual redacted documents, was published in N. Waxman, National Interest Waiver: Two Case Studies, AILAs Immigration Practice Toolbox, 3rd Ed. (AILA 2009).
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Misconception 1: Extraordinary Ability Is a More Accessible Means of Acquiring Residence, Especially for Scholars and Researchers, Than Is NIW. On the contrary, unlike a limited range of artists and entertainers, most researchers and other waiver seekers within academia can far more easily surmount the NYSDOT test for labor certification exemption than can satisfy the EB 1-A and EB 1-B criteria, particularly in light of USCISs interpretation, at the time of writing, of the Kazarian decision. 6 Misconception 2: An O-1 Has Been Challenged or Denied. NIW Is, Therefore, Probably Unavailable. On the contrary, like the Spanish journalist mentioned above, many individuals who fail to meet the qualitative success paradigm underlying both the O-1 and EB-1 regulatory mechanisms, may indeed satisfy the NYSDOT challenge. Misconception 3: Labor Certification Is Under Way or Has Been Obtained for Colleagues of the Waiver Seeker. Therefore, NIW Is Inappropriate. The author has heard this opinion voiced by a surprising number of senior immigration practitioners. However, nothing in NYSDOT precludes the acquisition of a waiver by an individual who has or could obtain labor certification. The precedent decision simply prohibits reliance upon the unavailability of U.S. workers as a basis for NIW approval. However, the superiority of the waiver seekers resume to those of U.S. workers who may have sought consideration by the intending immigrants employer could be offered as supplementary support for satisfaction of NYSDOTs third leg. Confusion in this matter probably arises because inappropriate RFEs often query why the waiver seekers employer (if there even is one) cannot articulate the nationally beneficial activities as requirements in a labor certification application. Such inquiries constitute a radical distortion of the precedent decision. The purpose of NYSDOT is to provide adjudicators with a formula for assessing whether exemption from labor certification is warranted. Needless to say, the waiver seeker bears the burden of proof. Once satisfied, i.e., should all three prongs of NYSDOT be met, the otherwise mandated labor certification requirement is deemed waived. Accordingly, once the third prong is satisfied, there is no obligation to document the inappropriateness or unavailability of labor certification. Counsel should always enclose a copy of NYSDOT as an exhibit in response to such an RFE. Misconception 4: Conversely, Labor Certification Is Unavailable (e.g., the Intending Immigrant Owns the Company). Therefore NIW Is In the Bag. On the contrary, the waiver seeker must still navigate all three legs of the NYSDOT triangle. Footnote 5 of the precedent decision confirms that USCIS will give due consideration to the unavailability of labor certification as a fortifying factor in an otherwise appropriate NIW petition. Admittedly, this is not a commonly voiced source of confusion and is probably never held by adjudicators. Misconception 5: The Waiver Seekers Services Must Be Documented to be Unique, Constitute a Breakthrough, or Otherwise Represent a Lofty Level of Achievement Generally Consistent with that of EB 1-As. NYSDOT says no such thing. Nonetheless, RFEs often ask for documentation of the singularity or extreme distinctiveness of the waiver seekers contribution. NYSDOT clarifies, however, that the waiver seeker must simply demonstrate superiority to the majority of colleagues in the nationally beneficial activity, and some or significant impact on the field as a whole. It is important to note that an impact can be significant by merely being notable or important, and not necessarily field-changing. Again, footnote 6 may prove invaluable in responding to inappropriate RFEs directed toward otherwise well-founded petitions. Misconception 6: Waiver Seekers Who Qualify for EB 2 as Advanced Degree Professionals Must Satisfy the Exceptional Ability Criteria As Well. NYSDOT never says this. On the contrary, it says that advanced degree professionals, like aliens of Exceptional Ability, must satisfy the three-part test articulated in the decision. Bear in mind that NYSDOT arose in the context of extreme USCIS aversion to what it characterized as blanket petitions (i.e., waiver
6
Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. Mar. 4, 2010).

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requests based on the intrinsic value of the activity rather than the particularized nature of the waiver seekers contribution). Misconception 7: Peer-Reviewed or Similarly Weighted Publications Are Required, Particularly for Academic Waiver Seekers. While, as a practical matter, few academic NIW petitions are approved absent such publications, there is no such explicit requirement. Indeed, in some cases of proprietary research or product development, publication or public propagation of research findings is precluded by trade secrecy agreements. The AAO has recognized that such proprietary research, absent publication, may satisfy NYSDOTs third prong if objective evidence of the impact of the waiver-seekers work is provided. 7 Misconception 8: Performance of a Service or Profession Within a Geographically Limited Area Constitutes an Automatic Bar to Acquisition of the Waiver. As discussed above, the NYSDOT waiver seeker himself worked only within a short radius of Albany in east central New York State. Nonetheless, the precedent decision confirms that his efforts were sufficiently national in scope. By analogy, an attorney handling nationally significant immigrant litigation from an office in Fort Fairfield, ME, on the New Brunswick border, should satisfy NYSDOTs second prong. Misconception 9: Scientists Only Need Apply. Indisputably, scientistsand particularly biomedical researchersare securing faster approvals with fewer RFEs than waiver seekers in the arts, business, or social sciences. While often more challenging than scienceand research-based petitions, waiver applications from nontechnical fields as diverse as facilitation of trade, journalism, and the humanities have proven successful in the 12 years since NYSDOTs designation. Nonetheless, as advocates, our responsibility is, as NYSDOT advises, to judge each case on its own merits. Misconception 10: The Waiver Seekers Current Employment Must Manifest the Nationally Beneficial Activity. Many successful waiver candidates have been precluded from working because of their nonimmigrant status (e.g., H-4 or F-2). Others have been constrained by the nature of their immediate nonimmigrant employment (e.g., an MD/PhD whose waiver eligibility is premised on prior high-impact hepato-biliary cancer research, but whose current State 30 H-1 confines employment to general surgery in an underserved rural area). In instances where there has been a significant hiatus in the nationally beneficial activity, a credible representation must be made that prospective resumption of the national benefit will ensue. While the majority of prospective employment-based immigrants are not appropriate candidates for NIW, all extraordinary ability and outstanding researcher/professor candidates should be assessed for waiver eligibility. Finally, while there are stimulating issues and the potential for gratification for a job well done in all areas of immigration practice, few immigration mechanisms afford counsel a more rewarding opportunity for creative, ethical and articulate advocacy than does the NIW.
Matter of Kaiser Aerospace and Electrics Corporation, 28 Immig. Rptr. B2-1 (Mar. 28, 2003).
RIGHTING WRONGS: HELPING YOUR CLIENTS CHALLENGE GOVERNMENT MISCONDUCT AND ABUSE
by David Antn Armendriz and Philip Hwang *
In your legal practice, you may have heard stories of abusive practices by government officials targeted at immigrants. A lawsuit can be a great vehicle for exposing misconduct, obtaining a financial recovery for your client, and deterring future abuses. A lawsuit, however, is not always viable or prudent. Sometimes, filing an administrative grievance is appropriate. This article will help you assess key issues, advise clients about potential remedies, and take action to hold officials accountable. FILING ADMINISTRATIVE GRIEVANCES AGAINST DHS AND EOIR EMPLOYEES As employees of the Executive Branch, immigration judges (IJs), trial attorneys, and Department of Homeland Security (DHS) officers are subject to the executive branch-wide Standards of Ethical Conduct at 5 3 CFR 2635 and Employee Responsibilities and Conduct regulations at 5 CFR 735. As employees of the Department of Justice (DOJ), IJs are subject to the DOJ regulations at 5 CFR 3801, which supplement the Executive Branch standards. As licensed attorneys, IJs and trial attorneys are also subject to the rules of professional conduct governing the practice of law in their respective states of licensure. Therefore, in addition to the processes outlined below, you may file a complaint to the relevant state bar authority. Immigration Judges There is a relatively new centralized process for filing administrative grievances against IJs. The Office of 4 the Chief Immigration Judge (OCIJ), which is in charge of monitoring IJ performance and conduct, has 5 established a procedure to allow any person to file a complaint about the conduct of an IJ. You may file a formal complaint about an IJ with either the Assistant Chief Immigration Judge for Conduct and Professionalism (ACIJ C/P) or the appropriate supervisory Assistant Chief Immigration Judge (ACIJ) in 6 charge of the particular court. Complaints may be made anonymously if necessary. All complaints should contain the full facts regarding who, what, where, when and why. Complaints may be sent either by e-mail to EOIR.IJConduct@usdoj.gov or by regular mail to the ACIJ C/P or the ACIJ at the addresses listed on the 7 government website. Once the complaint is received, OCIJ may conduct an initial investigation of the complaint and, if necessary, refer it to either the Office of Professional Responsibility (OPR) or the Office of the Inspector General (OIG). OPR has jurisdiction over complaints where there is an appearance or allegation of professional misconduct. OIG has jurisdiction over allegations of criminal conduct or serious waste, fraud, or
David Antn Armendriz is a partner with De Mott, McChesney, Curtright & Armendriz, LLP in San Antonio where he practices deportation defense and litigates immigrant rights issues. He is board-certified in immigration and nationality law by the Texas Board of Legal Specialization. Philip Hwang is director of Policy and Programs at the Lawyers Committee for Civil Rights of the San Francisco Bay Area. He litigates cases in the area of immigrant rights, including suits against the United States for the abuse of immigrants. 1 Immigration judges (IJs) work for the Department of Justice, Executive Office for Immigration Review (EOIR). 2 Trial attorneys are employees of Immigration and Customs Enforcement (ICE), Office of the Principal Legal Advisor. 3 28 CFR 45.1. 4 8 CFR 1003.9(b). 5 Department of Justice (DOJ), The Executive Office for Immigration Review Announces New Process for Filing Immigration Judge Complaints (May 20, 2010), www.justice.gov/eoir/press/2010/IJConductProfComplaints05192010.pdf. 6 Department of Justice, Summary of the Office of the Chief Immigration Judge (OCIJ) Procedure for Handling Complaints Against Immigration Judges (May 17, 2010) www.justice.gov/eoir/sibpages/IJConduct/IJComplaintProcess.pdf. 7 Department of Justice, www.justice.gov/eoir/sibpages/ACIJAssignments.htm.
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abuse. Complaints may result in non-disciplinary corrective action (e.g., oral or written counseling, individualized training, etc.) or formal discipline (reprimands, suspensions without pay, termination of 8 employment, etc.). A complaint may be also dismissed, as well, if it is deemed frivolous; the complaint relates directly to the merits of an IJs decision; the facts alleged were unsubstantiated; or the allegations do not constitute inappropriate conduct. If the complaint was not made anonymously, then OCIJ will report to 9 the complainant the results of the investigation in a manner consistent with the privacy rights of the IJ. ICE and CBP Employees The Immigration and Customs Enforcement (ICE) Office of Professional Responsibility (OPR) investigates allegations of misconduct involving employees of ICE and Customs and Border Protection (CBP). OPR is tasked with overseeing ICE detention functions and ensuring that facilities adhere to the 10 agencys self-imposed detention standards. Complaints about trial attorneys may also be made to the OPR because they are ICE employees. You may contact OPR by phone at (877) 2INTAKE, via e-mail to Joint.Intake@dhs.gov, or by regular mail sent to: P.O. Box 14475, Pennsylvania Avenue, NW, Washington, 11 D.C. 20044. USCIS Employees A report of any type of misconduct by USCIS employees may be submitted to the DHS Office of the Inspector General by phone at 800-323-8603, by fax at (202) 254-4292, by e-mail to dhsoighotline@dhs.gov, or by regular mail to Department of Homeland Security, Attn: Office of the Inspector General, 245 Murray Drive, Building 410; Stop: 2600, Washington, D.C. 20528. SUING THE UNITED STATES AND FEDERAL OFFICIALS In addition to filing an administrative grievance, you can potentially bring a lawsuit in appropriate circumstances. This includes: (1) Bivens claims against individual officials for violating your clients constitutional rights; and (2) tort claims against the United States under the Federal Tort Claims Act (FTCA). Bivens Claims A claim for damages may be brought against federal officials in their individual capacity for certain constitutional violations under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. 12 However, a Bivens claim cannot be brought against the United States itself, federal agencies, or private 13 corporate contractors. In deciding whom to name as a defendant, you should review your circuits law to determine what level of personal involvement by an individual official is needed to establish liability. For 14 example, while supervisory officials are not vicariously liable for subordinates unconstitutional acts, the U.S. Court of Appeals for the Ninth Circuit has held that a federal official may be liable for setting in motion or knowingly refusing to terminate a series of acts which he or she knows or reasonably should know would
The factors considered in imposing discipline are explained in Douglas v. Veterans Administration, 5 M.S.P.B. 313 (MSPB 1981) and include the nature and seriousness of the conduct, the officials length of service and past disciplinary record, mitigating circumstances, the potential for future occurrences absent corrective action, the impact of the offense on the agencys reputation, and how other such cases had been treated. 9 Department of Justice, Summary of OCIJ Procedure for Handling Complaints Against Immigration Judges (May 17, 2010) www.justice.gov/eoir/sibpages/IJConduct/IJComplaintProcess.pdf. 10 Current detention standards are available at www.ice.gov/detention-standards/2008/. However, the standards are currently said to be in the process of revision and overhaul. In August of 2009, ICE announced the creation of the Office of Detention Oversight, within Office of Professional Responsibility (OPR), to conduct routine and random inspections more frequently of ICE detention facilities and to investigate detainee grievances in a neutral manner. See www.ice.gov/news/library/ factsheets/reform-2009reform.htm. 11 Immigration and Customs Enforcement, www.ice.gov/about/offices/leadership/opr/. 12 403 U.S. 388 (1971). 13 FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001). 14 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
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cause others to inflict a constitutional injury. If the identities of key officials are unknown, you may be able to bring Bivens claims against Doe defendants and substitute names when their identities are later ascertained in discovery. Review the law of the state in which the incident occurred and local federal court rules to 16 determine whether there are special Doe defendant pleading rules and whether the limitations period will be tolled. The statute of limitations for Bivens claims is the same as the personal injury statute of limitations for the 17 state in which key events occurred. There is no administrative claim process for Bivens actions. If you choose to file an FTCA administrative claim, you can choose to proceed on your Bivens claims in federal court, without awaiting a decision on the FTCA administrative claim. Bivens claims can be tried before a jury or judge, and both compensatory and punitive damages are available. A judgment in a Bivens action is recoverable only against individual officials. Whether the government will ultimately indemnify officials is 18 19 decided case-by-case. Attorney fees are not recoverable from defendants in Bivens actions. Be prepared for the defendants in your Bivens suit to seek dismissal on the ground that your claim is too novel to be the basis for liability. For example, they may raise the defense of qualified immunity, arguing that: (1) the plaintiffs constitutional rights were not violated, and/or (2) the constitutional rights at issue were not clearly established at the time of the events in question. They may also argue that Bivens claims are generally unavailable in the immigration context. In response, you should cite cases in which Bivens claims 20 have been brought in the immigration context. You should also identify precedent, preferably within your circuit, which establishes the existence of the constitutional right at issue. Finally, please contact the authors for sample briefs on these and related issues. Federal Tort Claims Act The United States may be sued under the FTCA for certain torts committed by federal employees. In addition, the United States may potentially be sued for negligently entrusting an individual to the care of 22 others, such as private contractors or local government officials. Under the FTCA, the United States may be held liable to the same extent that a private person would be liable under like circumstances, applying the law 23 of the state where the act or omission occurred. For example, if your client was unlawfully detained by ICE in California, the United States could be held liable under the FTCA for committing torts recognized under 24 25 California law, such as false imprisonment, and possibly for state civil rights violations.
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Wong v. United States, 373 F.3d 952, 966 (9th Cir. 2004); al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009), rehg denied, 598 F.3d 1129 (9th Cir. 2010), cert. granted on other issues, 131 S. Ct. 415 (2010). 16 See, e.g., Cal. Code Civ. Proc. 474 (procedure for naming Doe defendants); C.D. Cal. Local R. 19-1 (complaint or petition may not include more than 10 Doe parties). 17 Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991). 18 U.S. Attorney Manual, Ch. 4-5.412(F). 19 Kreines v. United States, 33 F.3d 1105 (9th Cir. 1995). 20 See, e.g., Diaz-Bernal v. Myers, 2010 WL 5211494, *16*18 (D. Conn. Dec. 16, 2010) (holding that Bivens claim could be brought to challenge unconstitutional practices during immigration raids); Martinez-Aguero v. Gonzales, 459 F.3d 618 (5th Cir. 2006) (false imprisonment and excessive force at port-of-entry); Wong v. United States, 373 F.3d 952, 96875 (9th Cir. 2004) (strip search and interference with religious freedom); Papa v. United States, 281 F.3d 1004, 101011 (9th Cir. 2002) (death of legacy Immigration and Naturalization Service (INS) detainee); Ramirez v. Webb, 719 F. Supp. 610 (W.D. Mich. 1989) (improper detention and excessive force); Ysasi v. Rivkind, 856 F.2d 1520 (Fed. Cir. 1988) (unlawful vehicle seizure); Guerra v. Sutton, 783 F.2d 1371 (9th Cir. 1986) (war-rantless search of home and arrest); Sanchez v. Rowe, 651 F. Supp. 571 (N.D. Tex. 1986) (arrest, detention, and beating of immigrant by border patrol agent). 21 28 USC 267180. 22 Chehade v. Lazaro, 614 F. Supp.2d 1103, 112021 (D. Nev. 2009). 23 28 USC 2674. 24 Rhoden v. United States, 55 F.3d 428 (9th Cir. 1995). 25 Lu v. Powell, 621 F.3d 944, 950 (9th Cir. 2010).
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FTCA actions have been brought in a variety of contexts involving misconduct by immigration officials. However, not every tort can give rise to an FTCA claim. For example, claims for libel, slander, misrepresentation, deceit, interference with contract rights, and unlawful seizures of property may not be 27 actionable under the FTCA. Claims arising in a foreign country also cannot be the basis for FTCA 28 liability. Moreover, assault, battery, false arrest, false imprisonment, malicious prosecution, and abuse of process claims can only be brought against the United States when they involve acts or omissions of federal 29 law enforcement or investigative officials. Finally, the United States is not liable under the FTCA where its employees are performing, or fail to 30 perform, a discretionary function, even if there has been an abuse of discretion. To invoke this exception, the government must prove that: (1) the conduct at issue involved an element of judgment or choice; and (2) 31 the judgment exercised by its employee was grounded in social, economic, or political policy. The United States cannot rely on the exception, however, where federal statute, regulation, or policy prescribes a course 32 of action for the employee to follow or where the conduct at issue violates the Constitution. There is a two-step process for bringing a claim under the FTCA. The first step is to file an administrative claim with the appropriate federal agency (e.g., USCIS, ICE, CBP) within two years of the accrual of the 33 claim. The amount in your initial claim should not be too low; otherwise, this amount may cap your 34 35 eventual recovery. A lawsuit must be filed within six months of the administrative denial of the claim. If the agency does not act on the claim, then a lawsuit can be filed after waiting six months from the filing of the
See, e.g., Lu v. Powell, 621 F.3d 944 (9th Cir. 2010) (asylum officer sexually molested asylum applicant and demanded bribe and sexual gratification); Rhoden v. United States, 55 F.3d 428 (9th Cir. 1995) (six-day detention of lawful permanent resident at port-of-entry); Garcia v. United States, 826 F.2d 806 (9th Cir. 1987) (shooting by border patrol agent); Arevalo v. Woods, 811 F.2d 487 (9th Cir. 1987) (detention and mistreatment of U.S. citizen by legacy INS investigator); Caban v. United States, 671 F.2d 1230 (2d Cir. 1982) (detention of U.S. citizen at port of entry); Chehade v. Lazaro, 614 F. Supp.2d 1103 (D. Nev. 2009) (immigrant visitor jailed, strip-searched, and denied medications; United States also attempted to conscript plaintiff to spy); El Badrawi v. DHS, 579 F. Supp.2d 249 (D. Conn. 2008) (unlawful arrest and detention of immigrant who was also denied religious freedom and access to medical treatment); Araujo v. United States, 301 F. Supp.2d 1095 (N.D. Cal. 2004) (unlawful arrest and deportation of immigrant); Adedeji v. United States, 782 F. Supp. 688 (D. Mass. 1992) (false imprisonment and strips search by customs officials); Sanchez v. Rowe, 651 F. Supp. 571 (N.D. Tex. 1986) (arrest, detention, and beating of immigrant by border patrol agent); Turnbull v. United States, 2007 WL 2153279 (N.D. Ohio July 23, 2007) (deportation in violation of court order); Munyua v. United States, 2005 WL 43960 (N.D. Cal. Jan. 10, 2005) (asylum-seeker turned away by U.S. officials at port of entry). 27 28 USC 2680(c), (h); Ysasi v. Rivkind, 856 F.2d 1520 (Fed. Cir. 1988). 28 28 USC 2680(k); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 29 28 USC 2680(h); Caban v. United States, 671 F.2d 1230 (2d Cir. 1982) (INS officers considered law enforcement officials and therefore liable for intentional torts). 30 28 USC 2680(a). 31 Garcia v. United States, 826 F.2d 806 (9th Cir. 1987) (border patrol officers arrest and use of force not discretionary under FTCA); Caban v. United States, 671 F.2d 1230 (2d Cir. 1982) (agents six-day erroneous detention of U.S. citizen was not the type of discretionary policy decision exempt under FTCA). 32 See, e.g., Myers & Myers, Inc. v. U.S. Postal Service, 527 F.2d 1252, 1261 (2d Cir. 1975); Raz v. United States, 343 F.3d 945, 948 (8th Cir. 2003) (per curiam); El Badrawi v. DHS, 579 F. Supp.2d 249, 27475 (D. Conn. 2008) (discretionary function exception did not apply insofar as alleged conduct violated the Constitution); Munyua v. United States, 2005 WL 43960 at *4*7 (N.D. Cal 2005) (discretionary function exception did not shield immigration inspectors conduct from liability where inspectors actions violated federal law and regulations); Chehade v. Lazaro, 614 F. Supp.2d 1103, 111720 (D. Nev. 2009) (allowing discovery to determine whether immigration officials violated federal policies); Diaz-Bernal v. Myers, 2010 WL 5211494, *9*10 (D. Conn. Dec. 16, 2010) (same). But see Castro v. United States, 608 F.3d 266 (5th Cir. 2010) (en banc). 33 28 USC 2675; 28 CFR 14.1 et seq. See also T. A. Realmuto, Legal Action Center Practice Advisory, Whom to Sue and Whom to Serve in Immigration-Related District Court Litigation (updated May 13, 2010), www.legalactioncenter.org/sites/ default/files/lac_pa_040706.pdf. 34 Salcedo-Albanez v. United States, 149 F. Supp.2d 1240 (S.D. Cal. 2001). 35 28 USC 2401(b).
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administrative claim. In other words, the agencys failure to act within six months can be treated as a constructive denial. FTCA claims are tried only before a federal judge; there is no right to a jury trial on these claims (other claims may potentially be heard by a jury). Compensatory damages are available, but punitive damages are not. Recovery of attorney fees under a contingency fee agreement is limited by statute to 20 percent if the 36 case is settled administratively, or 25 percent after the case is filed in federal court. Attorney fees may also be available from the United States under the Equal Access to Justice Act if the government has acted in bad 37 faith. There are at least two strategic advantages to including FTCA claims. First, making the United States officially a party to the action may expedite discovery. By contrast, if only Bivens claims are brought in a lawsuit, then only individual officials (not the United States) are the named defendants, which may delay your efforts to get broader discovery. Second, pre-trial rulings on the FTCA claims are not ordinarily the subject of interlocutory appeal. By contrast, in Bivens cases, the government has the right to bring an interlocutory 38 appeal to challenge the denial of qualified immunity. If only Bivens claims are alleged in your case, then you may be precluded from engaging in discovery while the qualified immunity issue is on appeal. However, if you bring both FTCA and Bivens claims, you need to consider which, if any, claims you want to go to trial, in the event that your case does not settle. If judgment is entered on the FTCA claims, then the 39 FTCA judgment may bar recovery on your Bivens claims. You should review the law of your circuit to 40 determine how to proceed. SUING STATE OFFICIALS, LOCAL OFFICIALS, AND LOCAL GOVERNMENT ENTITIES If state or local officials participated or engaged in misconduct, then you may be able to bring claims against these officials. There may be strategic advantages to adding these defendants, assuming that you have viable claims. For example, they may be an additional source from which to recover damages and may also potentially be liable for attorney fees by statute. Federal law creates a private right of action against persons who, acting under color of state law, violate federal constitutional or statutory rights. 41 Local governing bodies and local officials acting in their official capacities are considered persons for purposes of 1983 and can be sued for both monetary damages and 42 injunctive relief. By contrast, under 1983, states and state officials can be sued in their official capacities 43 only for injunctive relief (not damages). State officials, however, may be sued in their individual capacities 44 for monetary damages under 1983. Section 1983 claims are often premised on Fourteenth Amendment violations, including violations of the Due Process Clause and Equal Protection Clause. As with Bivens claims, a states personal injury statute of limitations provides the applicable time limit for 1983 claims occurring in that state. The defense of qualified immunity is also frequently raised by defendants in 1983 cases. In general, there is no 45 administrative exhaustion requirement for 1983 claims. Section 1983 actions may be tried before a jury or
28 USC 2678. Rodriguez v. United States, 542 F.3d 704 (9th Cir. 2008). 38 See Mitchell v. Forsyth, 472 U.S. 511, 525, 527 (1985). 39 28 USC 2676. 40 See, e.g., Arevalo v. Woods, 811 F.2d 487 (9th Cir. 1987); Sanchez v. Rowe, 870 F.2d 291 (5th Cir. 1989); Engle v. Mecke, 24 F.3d 133 (10th Cir. 1994). 41 See 42 USC 1983. 42 Monell v. Dep t of Social Services, 436 U.S. 658 (1978). 43 Will v Michigan Dept. of State Police, 491 U.S. 58 (1989). 44 Hafer v. Melo, 502 U.S. 21 (1991). 45 Steffel v. Thompson, 415 U.S. 452, 47273 (1974). While prisoners may be required to exhaust administrative remedies under the Prison Litigation Reform Act, 42 USC 1997e(a), immigration detainees are not prisoners for these purposes. See
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a judge. Both compensatory and punitive damages are available in a 1983 action. Lastly, attorney fees are 46 also available, which is a significant incentive for bringing such claims, if the facts warrant. In addition to a 1983 claim, you may also be able to bring claims against state or local officials under the 47 48 law of the state in which the incident occurred, including state tort claims and/or state civil rights claims. You should research the law of the state in which the incident occurred to determine what claims may be brought and the applicable procedures. CONCLUSION Hopefully, this article will help you to advise clients about their options. However, we strongly encourage you to discuss your case with others who have successfully brought suit and can help you navigate the process and determine how much your case is worth.
Ojo v. INS, 106 F.3d 680, 68283 (5th Cir. 1997); Agyeman v. INS, 296 F.3d 871, 88586 (9th Cir. 2002); LaFont v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998). 46 42 USC 1988. 47 See, e.g., Cal. Govt Code 810 et seq. 48 See, e.g., Cal. Civ. Code 52.1.
THE PROBLEMATIC I-130 PETITIONER

by Steven C. Thal, Ann Kanter, Miko A. Tokuhama-Olsen, and Nancy T. Shivers *
Many I-130 petitions can be straightforward, but others require substantial additional work and strategizing because of issues related to the petitioner. This article briefly addresses and provides guidance on practical and ethical issues related to some of the more problematic I-130 petitioners that immigration lawyers may encounter. Examples include petitioners who file marriage-based petitions more than one time, petitioners with financial difficulties, petitioners unwilling to disclose (or who lie about) essential facts, petitioners who are abusive, petitioners who themselves were beneficiaries of I-130 petitions but promptly divorce and file an I-130 for a different person, petitioners whose age, language, or religion vastly differs from that of the beneficiary, and petitioners who have convictions under the The Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act). 1 REPEAT PETITIONERS It is not uncommon to have a repeat petitioner for purposes of a family-based visa petition. There are several scenarios from which this may come about. U.S. Citizenship and Immigration Services (USCIS) may have denied an I-130 Relative Visa Petition, and the petitioner then seeks to reapply to overcome the deficiency from the original petition. A petitioner may have withdrawn a petition and later seeks to repetition. A petition may be revoked through automatic revocation where a beneficiary of a second-preference family petition marries. A beneficiary may have ceased to process overseas for an immigrant visa and later seeks to immigrate. A petitioner may have divorced and remarried and seeks to re-petition for the same spouse or a new spouse. Each of these scenarios calls for examination of the underlying facts if one is to be successful on a re-petition. There is no prohibition on filing multiple petitions as a repeat petitioner (except for the numerical limitation under 832 of The International Marriage Broker Regulation Act (IMBRA) 2 . However, 204(a)(2)(A) of the Immigration and Nationality Act (INA) 3 generally prohibits the approval of a visa petition filed by a lawful permanent resident (LPR) for a spouse within five years of the date on which the petitioner became an LPR if that LPR obtained his or her residence status through a prior marriage. The LPR can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior
Steven C. Thal is an attorney practicing immigration law in Minnetonka, MN. He is a graduate of the University of Minnesota Law School (cum laude, 1982). Prior to law school he spent two years in the Peace Corps in Ecuador. Mr. Thal holds an AV rating from Martindale-Hubbell and is listed in its Bar Register of Preeminent Lawyers. Minneapolis-St. Paul Magazine and Twin Cities Business Monthly have recognized him as a Super Lawyer in immigration law. He has received the AILA national Presidential Commendation for creative and tireless advocacy on behalf of immigrants. He is an emeritus trustee of the American Immigration Council. Ann Kanter is a state-certified specialist in Sacramento with concentration in employment-based and family petitions. She has been an active AILA member since 1978, is a past AILA national board member, and is a former visiting professor at U.C. Davis Law School. She has been listed as a Super Lawyer annually since 2006. Miko A. Tokuhama-Olsen has practiced immigration law for over 15 years at the Legal Aid Society of San Diego, Inc., where she is the senior attorney of the Individual Rights team. She practices in all areas of family immigration, with an emphasis on complex legal issues, VAWA, and immigration court proceedings. Nancy T. Shivers is a partner in Shivers & Shivers in San Antonio. She is certified in the field of immigration and nationality law by the Texas Board of Legal Specialization. She has served on the AILA Board of Governors, as chair of the AILA Texas Chapter, and on AILA liaison and policy committees. 1 Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 40102, 120 Stat. 587, 62223. 2 8 USC 1375(a)(d)(2) (2005) et seq. 3 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.).
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marriage was not entered into with the purpose of evading the immigration laws, or that the prior marriage ended through death. One of the initial questions to consider for the repeat petitioner on a denied I-130 petition is whether to appeal or re-file. There may be considerations where one may prefer to appeal rather than re-file. For example, a successful approval will preserve the priority date of the denied petition, whereas a successful refiling will cause a new priority date to be assigned. The nature of the denial may also dictate whether to appeal or re-file. If the reason for the denial cannot be overcome through the appeal, re-filing may be required. One of the common scenarios for re-filing on a marriage-based I-130 is to overcome a denial for failure to have a prior marriage terminated. 4 This could come about in several ways. Sometimes parties remarry in the mistaken belief that a divorce of one of the parties was final before it was actually memorialized as final. In some cases, what was presented to be a final divorce decree may have been fraudulently obtained or not officially recognized. In these circumstances, one must also examine whether the beneficiary had a role in presenting a fraudulent document, which could necessitate the need for an I-601 waiver for fraud or misrepresentation at the time of adjustment of status or consular processing after a new I-130 has been approved. In any of the above scenarios, the typical cure will be to obtain a proper divorce decree, have the parties remarry, and then present a new I-130 petition. Note, however, that if removal proceedings have been commenced after denial of the I-130, one may need to seek a Velarde 5 hearing to allow for re-filing and adjudication of a new I-130 during the pendency of the removal proceeding. Practice Pointer: Note that Part D on the Form I-130 requests: If separate petitions are being submitted for other relatives, give names of each and relationship, in addition to requesting: Have you ever filed a petition for this or any other alien? If yes, give name, date and place of filing and result. One will need to disclose this information, which may result in additional scrutiny depending on the circumstances. Before filing an I-130 relative visa petition for a husband or wife petitioning as a spouse, where there is an overseas divorce decree or marriage certificate it is always advisable to check the U.S. Department of State (DOS) availability of documents for civil documents including birth, marriage, divorce, or death certificates. Web links to this information can be found for individual countries at http://travel.state.gov/ visa/fees/fees_3272.html. Each country-specific page provides detailed information about the governmentrecognized and government-authorized entity or agency(ies) within that country for obtaining civil documents. This information details the availability of each document, and how and where it can be obtained within that particular country. One should also review the criteria set out in the USCIS headquarters March 20, 2003, memorandum, 6 providing guidance on adjudication of I-130 petitions and addresses supporting document issues. If re-filing a petition for a beneficiary in a preference category, you will want to address whether an earlier priority date can be recaptured. The general rule is that you can recapture an earlier priority date if you have the same petitioner and the same beneficiary and are filing in the same preference category (and the earlier petition has not been terminated or revoked). 7 If the earlier petition was terminated or revoked, you may still be able to re-file, but you will need to establish a new priority date, which will be the date of filing of the new petition. Practice Pointer: When re-filing a new petition where you are trying to recapture an earlier priority date, include proof of the earlier filing and call attention to the need to recapture the priority date by indicating in
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8 CFR Part 204.2(a)(2) provides: If a petition is submitted on behalf of a wife or husband, it must be accompanied by a certificate of marriage to the beneficiary and proof of legal termination of all previous marriage of both wife and husband. 5 Matter of Velarde, 23 I&N Dec. 253 (BIA 2002). 6 BCIS Memorandum, W. Yates, Special Immigrant Visa Petitions (AFM Update AD 02-16) (Mar. 20, 2005), published on AILA InfoNet at Doc. No. 03072915 (posted Jul. 29, 2003), available at www.aila.org/content/default.aspx?docid=9119. 7 8 CFR 204.2(h)(2).
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bold letters RECAPTURE OF EARLIER PRIORITY DATE when submitting the later I-130 petition. If the USCIS office fails to reflect the earlier priority date on the approval notice, you may need to seek AILA Liaison assistance to correct the priority date. One area where repeat petitioners in the family-based context may face limitations on the ability to file a subsequent petition is in the context of K visa petitions. IMBRA 8 imposes numerical and time limitations on how many K visas one can file, and how quickly. NUMERICAL LIMIT: IMBRA 832 establishes a lifetime limit of two previously approved K-1 visa petitions, unless you can secure a 832 Waiver(or special exception) from USCIS. TIME LIMIT: 832 of IMBRA also states that if you have filed one approved K-1 visa petition in the past 24 months, you must wait 24 months from the filing date of the last K-1 visa petition, before you may file a new K-1 visa petition, unless you secure a 832 Waiver (or special exception) from USCIS. To request a waiver, you must submit a written request with the I-129F petition accompanied by documentation of your claim to the waiver. If you are seeking a waiver of the filing limitations imposed by IMBRA, you must attach a signed and dated request for the waiver, explaining why a waiver would be appropriate in your case, together with applicable evidence, such as a death certificate, police reports, news articles, or medical reports from a licensed medical professional, regarding the death of an alien approved for a prior K-1 visa. 9 AFFIDAVIT OF SUPPORT ISSUES There are three basic eligibility requirements to qualify as a sponsor for an affidavit of support: 1. Must be a U.S. citizen (USC), national, or LPR; 2. At least 18 years old; and 3. Domiciled within the United States or in any U.S. territory or possession. (INA 213A(f)(1). The Adjudicators Field Manual (AFM) on the USCIS website 10 is a good source of detailed information on affidavit of support requirements. In addition, the National Visa Center has extensive FAQs on this subject at http://travel.state.gov/visa/immigrants/info/info_3183.html. Sponsors must be able to demonstrate the means to maintain an income of at least 125 percent of the Federal Poverty Guidelines for the sponsors household size, including immigrants being sponsored or previously sponsored. For sponsors who are on active duty in the U.S. Armed Forces (other than active duty for training) and are petitioning for a spouse or child, the required income drops to 100 percent of the Federal Poverty Guidelines. The required income must be demonstrated based on the Poverty Guidelines in effect at the time the affidavit of support is filed. 11 At the time of adjudication, the relevant inquiry is whether it is reasonable to assume that the sponsor will be able to maintain the appropriate income level. However, if more than one year passes from the time Form I-864 is filed, adjudicators may, in the exercise of discretion, request additional evidence such as a more recent tax return. In that situation, the sponsors income and the poverty guidelines in effect at the time of adjudication will control. 12 Assets which can be readily converted into cash within one year may be counted in lieu of income or to meet a shortfall. 13
8 USC 1375(a)(d)(2) (2005) et seq. See USCIS Memorandum, M. Aytes, International Marriage Broker Regulation Act Implementation Guidance (Jul. 21, 2006), published on AILA InfoNet at Doc. No. 06080164 (posted Aug. 1, 2006), available at www.aila.org/content/default.aspx?docid=28662. 10 www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM10 00000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm. 11 8 CFR 213a.2(a)(1)(v)(A). 12 8 CFR 213a.2(a)(1)(v)(B). 13 8 CFR 213a.2(c)(2)(iii)(B).
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STRATEGIES FOR PETITIONERS WITH FINANCIAL ISSUES Petitioner Lacks Sufficient Reasonably Expected Income for Current Year Petitioner/Sponsor may be able to show with a tax return from the most recent tax year that his or her income has met 125 percent of the poverty guidelines in the past and this will generally be determinative. 14 However, in reviewing Form I-864, immigration examiners are instructed to assess whether the sponsors estimate of income for the current tax year is reasonable, and may request and review additional evidence. Evidence may include tax returns from prior years, pay stubs, and/or employer letters. It should be sufficient for the employer to say that the employment is of indefinite duration or words of similar effect. Promises of future employment are not required. 15 The AFM emphasizes that sufficient current income might be enough even though the tax return is not. For example, if the sponsors current income is sufficient, it can establish that the Form I-864 itself is sufficient even if the tax return without any other documentation might warrant a finding that it is not sufficient. For example, if the sponsor recently started a new job (that USCIS is satisfied will likely continue) and the income from the job now meets or exceeds the legal requirement, USCIS may find the Affidavit of Support to be sufficient, notwithstanding information included in the transcript or copy of the tax return(s). By contrast, 8 Code of Federal Regulations 213a.2(c)(2)(ii)(C) permits USCIS to conclude that a Form I864 is not sufficient, even if the sponsors household income meets the Poverty Guideline threshold. USCIS should conclude this only if the evidence of record makes it reasonable to infer that the sponsor will not be able to maintain his or her household income at a level sufficient to meet his or her support obligation. For example, if the sponsors income is from a job that is merely temporary or seasonal, USCIS might reasonably conclude that the income is likely not to continue, and could also conclude that the Affidavit of Support, for that reason, is not sufficient. 16 Petitioners Tax Returns Show Negative Income Self-employed and other petitioners may sometimes show a loss on their business and/or personal tax returns. Nonetheless, they may still qualify as sponsors on the basis of assets that can be readily converted to cash within one year. For example, a sponsor showing a loss of $100,000 on their most recent tax return would first have to show sufficient income or assets to make up the loss. Then additional evidence of assets could be used to prove the necessary three or five years of income above 125 percent of the poverty guidelines. The AFM is specific on the requirements for evidence of assets. The location, ownership, value, and existence of liens or liabilities must be shown for each listed asset. Bank statements must cover at least the most recent 12 months and include deposit and withdrawal information. Personal property such as automobiles may be considered using standard valuations. Unusual property such as gold bullion, art work, or stamp collections could also be considered with an appropriate appraisal. Petitioners residing in areas with depressed real estate sales may face more obstacles in convincing an immigration examiner that real estate may be readily convertible to cash within one year. Recent real estate appraisals obtained in connection with the refinancing of property may have more probative value than property tax appraisals, which should also be acceptable. Similarly, evidence that the petitioner is underwater on a mortgage could lead an examiner to conclude that the real estate asset should not be used as a substitute for income and should instead be considered as a potential liability. While petitioners may frequently express concerns about filing for bankruptcy or restructuring a mortgage, these actions alone would not result in a finding that the sponsor could not meet the poverty guidelines.
14 15
AFM ch. 20.5(k)(4)(E). AFM ch. 20.5(i)(2). 16 AFM ch. 20.5(k)(4)(E).

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However, they could be cited among other factors that could lead an examiner to conclude that the sponsor will not maintain household income at a sufficient level. Petitioner Has Received Means-Tested Benefits A petitioner who has received means-tested public benefits can still be a sponsor. However, many government benefits received do not count as income in order to meet the income requirement. The following federal means-tested benefits do NOT count as income: 1. Supplemental Security Income (SSI) Federal income supplement program funded by general tax revenues (not Social Security taxes). designed to help aged, blind, and disabled people, who have little or no income. provides cash to meet basic needs for food, clothing, and shelter. (Note: Social Security Disability Insurance is treated differently from SSI because Social Security Disability Insurance pays benefits to you and certain members of your family if you are insured, meaning that you worked long enough and paid Social Security taxes.) 2. Food stamps 3. CalWORKs 4. Medi-Cal (nonemergency) 5. Healthy Families DOS guidance from 1998, says taxable and nontaxable income such as disability and child support payments count toward total household income. 17 Petitioner Fails to File Taxes or Tax Filings Require Amendment It is common to encounter petitioners whose tax returns improperly claim dependents or who may have filed as single when married, or the reverse. In these situations it is necessary to refer the petitioner to a reputable accountant to file amended returns and possibly institute a payment plan with the Internal Revenue Service. Emphasize to clients that their returns could again be scrutinized at the time of naturalization, and that it is critically important to have properly filed tax returns to demonstrate good moral character. So long as the payment plan is being followed, this should not be grounds for denial of a petition. In the case of petitioners who have been working for cash and who have failed to file required returns, clear written communication to the client is essential that all legal requirements must be met prior to filing a petition. Many petitioners do not understand that their obligation to file taxes on income is independent of an employers obligation to report salaries and payroll taxes. The AFM is explicit in requiring a copy of the return for the most recent completed tax year, including all supplements and attachments, unless an IRS transcript is provided instead. Therefore, if a petitioner did not file and cannot provide proof that they are within an authorized extension period, the petition should not be filed until proof of the late-filed tax return is obtained. 18 Furthermore, the Affidavit of Support contains a declaration under penalty of perjury and incorporates by reference all attached documents, such as tax returns. If USCIS finds that a sponsor, joint sponsor, or household member has concealed or misrepresented material facts concerning income, household size, or any other material fact, USCIS shall conclude that the Affidavit of Support is not sufficient to establish that the sponsored immigrant is not likely to become a public charge. In this situation, the sponsor or joint sponsor
DOS Cable, I-864 Affidavit of Support Update No. 17: More Qs and As (Jul. 1998), published on AILA InfoNet at Doc. 98081190 (posted Aug. 1, 1998), available at www.aila.org/content/default.aspx?docid=14414. 18 AFM ch. 20.5(i)(1).
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may be liable for criminal prosecution under the general statutes relating to the submission of fraudulent immigration documents. 19 THE NON-DISCLOSING PETITIONER Even when USC petitioners have no criminal record, they may be reluctant to disclose facts about their prior marriages, children and step-children, immigration history, income, assets, work history, and other subjects that USCIS may consider to be material. USCs may say Im an American. Why do I have to supply all this information? All petitioners must be counseled that in a climate of increased vigilance regarding possible fraud, online inquiries as well as visits to the home or employer are a real possibility. If investigated, petitioners should be informed that field office directors or service centers may stop adjudication of a petition when disclosure of evidence would prejudice the investigation. 20 However, the field office director, regional commissioner and associate commissioners for enforcement and adjudications must certify the need for delay in 6-month increments. 21 Petitioners who themselves have a history with USCIS must be made to understand that some review of their prior applications for lawful permanent residence and naturalization may be necessary in order to discover any prior misrepresentations and to ensure that any past misrepresentations will not have an adverse impact. What if the attorney discovers issues that could arguably result in a finding of misrepresentation and possible de-naturalization and/or rescission of the petitioners immigration status? The necessary disclosures regarding dual representation are discussed later in this article. In some circumstances, it may be necessary to withdraw from representation. On materiality of misrepresentations made with the subjective intent of obtaining immigration benefits, a review of the three-part test in Kungys v. United States 22 will be helpful. Petitioners Immigration History Issues for the attorney to consider include the basis for the petitioners prior immigration to the United States. If the immigration was based on marriage to a USC, it is important to review whether facts on the visa petition, I-751, and G-325A were correct, including addresses, and whether separations and/or divorces were disclosed. In doubtful cases, a Freedom of Information Act 23 request may be essential. If the petitioner immigrated through a parent, the age at the time of immigration and timing of any marriages or divorces should be considered. Similarly, in the case of employment-based immigration, the petitioner should be asked for evidence that their work history shows employment with the petitioning employer following adjustment of status. Former asylees and refugees should be questioned about any trips to their home country prior to obtaining U.S. citizenship. In many cases, the petitioner will have recently applied for naturalization. Ensure that the petitioner listed their marital status correctly on the naturalization petition. Some petitioners may forget to list an overseas marriage, or one that occurred after the petition was filed but before the oath ceremony. In this situation, the best approach may be to attach a declaration explaining any inconsistencies in the naturalization petition. If the inconsistencies in prior petitions rise to the level of a material misrepresentation, the attorney must at a minimum obtain informed consent to dual representation. In such cases, the attorney may consider withdrawing from the case and request that the petitioner obtain his or her own counsel. Petitioners Prior and Current Relationships Petitioners are often unwilling to disclose prior marriages, especially those that ended in annulment or were of short duration. They must be reminded that they sign their application under penalty of perjury, and that a short internet search can easily reveal a prior marriage, no matter how brief. It is always critical to ask
19 20
AFM ch. 20.5(k)(9). 8 CFR 103.2(b)(18). 21 Dong v. Chertoff, 513 F. Supp.2d 1158, 116668. 22 Kungys v. United States, 485 U.S. 759, 77981 (1988). 23 Freedom of Information Act, 5 USC 552, as amended by Pub. L. No. 104-231, 110 Stat. 3048.
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whether petitions were filed with USCIS on the basis of any prior marriage, and the outcome of such petitions. Petitioners may be concerned about disclosing the names and addresses of family members who are undocumented. For example, a petitioner may wish to petition for a step-child but be unwilling to disclose the address of the other parent (petitioners former spouse) who is undocumented. In this situation, it may be appropriate to instruct the petitioner not to answer questions concerning the whereabouts of the former spouse on grounds that this information is not material to the bona fides of the petition for the stepchild. In this way, petitioner would not risk a finding of misrepresentation of information either on the form or at an interview. Petitioners Work History and Income Sources Petitioners who cannot demonstrate a consistent source of income or who make mistakes in completing the required five-year work history on the Form G-325A may trigger a higher level of scrutiny concerning the petition. Inconsistent dates of employment on the G-325A, I-864 or on prior applications to USCIS, failure to mention household members or boarders on the I-864, unexplained persons listed as dependents on a tax return, persons other than the petitioner or beneficiary listed on the deed to the family home, are all potential minefields. In such cases, obtaining a printout of Social Security earnings or unemployment compensation, declarations from third parties, and detailed letters from employers may be necessary. CAN YOU DUMP THE PETITIONER? Despite the number of times that you want to fire your client, there may come a time when you can and should fire your client. The ethics of dual representation in the context of a family-based immigrant visa application process is hardly novel. There have been scores of articles written about this very murky subject. It is therefore not the purpose of this section to indicate when a conflict arises between the petitioner and the beneficiary. Yet when you have made the determination that there is a conflict (actual or potential), then it is your turn to take action. ABUSIVE PETITIONER A common scenario is a husband and wife coming to your office to prepare and file a Form I-130. Although not always the case, lets suppose he is the USC and she wants to immigrate. When meeting with both clients it would be unlikely that the abuse would come out. More likely would be the situation when you are preparing documents for the adjustment of status application that evidence of abuse manifests itself (some examples: he is too busy to attend future appointments to prepare documents, she remains very quiet during appointments, and body language can speak volumes). If we suspect abuse, then we craftily create a situation separating the couple and begin asking questions. Should the abuse be revealed, then we must refer the case out as an actual conflict has arisen due in great part to the Form I-864 Affidavit of Support. Although it may be morally distasteful to continue to work for an abusive petitioner, it may not be a basis in itself to fire your client. However, as lawyers we learn to be creative in our thinking, so if you really want to get rid of the abusive petitioner you may always fall back on the fact that your client lacks candor with you and as such cannot maintain an attorney-client relationship to represent your client effectively. A good policy is to have it written into your retainer agreement that failure to fully disclose all facts will result in you firing your client. BENEFICIARYS MARRIAGE, DIVORCE, THEN IMMEDIATE SUBSEQUENT MARRIAGE TO SOMEONE ELSE AFM chapter 21.3(L) states: Section 204(a)(2)(A) of the Act generally prohibits the approval of a visa petition filed by a lawful permanent resident for a spouse within 5 years of the date on which the petitioner became a LPR if that LPR obtained his or her residence status through a prior marriage. The LPR can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior marriage was not entered into with the purpose of evading the immigration
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laws, or that the prior marriage ended through death. 8 CFR 204.2(a)(1)(i) specifies the type of evidence which the petitioner must submit to meet the clear and convincing standard. This situation arises either with or without the knowledge and consent of the petitioner. Commonly, an undocumented couple wants to immigrate. They find a USC for one of them to marry and immigrate through. After marrying and immigrating through the USC spouse, the plan is for the new immigrant to divorce the USC and to marry his or her sweetheart. Is this fraud? It depends. If the only purpose of the marriage is to immigrate, then it would be fraud. However, what if, say, after the immigrant and the USC marry they have many children together and stay married for several years? What if the USC batters his or her spouse? As with most rules, there are exceptions. However, for arguments sake, lets suppose that it is a fraudulent first marriage, now what? If the immigrant requests your assistance in preparing and submitting a petition for the second spouse then you would have to decline or risk aiding in a fraud. The bottom line for firing a client is to have a clearly written retainer agreement which provides you an exit should the need arise. In such a situation, simply citing the section of the retainer which allows you to fire the client makes the termination of the interaction much cleaner. AGE DIFFERENCE AND LANGUAGE OR RELIGIOUS BARRIERS A marriage which was contracted solely for immigration purposes does not confer benefits under the act. USCIS, in AFM chapter 21.3, identifies several factors which may indicate a marriage is fraudulent: 1. Large disparity of age; 2. Inability of petitioner and beneficiary to speak each others language; 3. Vast difference in cultural and ethnic background; 4. Family and/or friends unaware of the marriage; 5. Marriage arranged by a third party; 6. Marriage contracted immediately following the beneficiarys apprehension or receipt of notification to depart the United States; 7. Discrepancies in statements on questions for which a husband and wife should have common knowledge; 8. No cohabitation since marriage; 9. Beneficiary is a friend of the family; 10. Petitioner has filed previous petitions on behalf of aliens, especially prior alien spouses. One should also be familiar with U.S. Customs and Immigration Enforcement Fraud Referral Sheet, which contains an I-130 Fraud Indicators Guide. 24 Sham marriage has been defined by the BIA as a marriage which may comply with all the formal requirements of the law but which the parties entered into with no intent, or good faith, to live together and which is designed solely to circumvent the immigrations laws. Sham marriages are not recognized for immigration purposes. 25 AGE DISPARITY People of disparate ages marry all the time, so whats the big deal? The deal is that when one party is attempting to immigrate through this marriage, red flags begin waving. The age differences can run both ways, meaning the petitioner may be significantly older or younger than the intending immigrant, and either will cause USCIS to intensify its scrutiny of the relationship. Reviewing the relationship under a microscope
24
See USCIS Fraud Referral Sheet, published on AILA InfoNet at Doc. No. 10012861 (posted Jan. 28, 2010), available at www.aila.org/content/default.aspx?docid=31121. 25 See Matter of Patel, 19 I&N Dec. 774 (BIA 1988).
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can include different interviewing techniques, field examinations, or investigations. Although intent to immigrate can be one of the reasons for marrying, it cannot be the sole reason for so doing. Difficulties tend to arise when a recently married couple of differing ages attempt to file a Form I-130. If, the couple has been married for many years, however, then you will have a much easier time gathering documentation and affidavits from friends and family. Beware: If you have a particularly young petitioner or beneficiary and they have children together, you need to be on the alert for possible statutory rape issues. LANGUAGE BARRIERS Havent you heard of the Language of Love? That was the answer to a petitioner client who did not speak Japanese and his wife did not speak English. Here you must interview your client well. Find out how they communicate and how well they understand each other. The answer to the question of what are the minimum language skills shared in common is yet unanswered, but you can be sure that USCIS will be ready to question intensely where both petitioner and intending immigrate do not speak the same language fluently. The primary goal here is to convince the adjudicating officer that your clients marriage is bona fide. Especially regarding money matters and raising of children, USCIS will want details of the depth of the understanding between the parties. Although some people have confessed to using translation programs to communicate via email during their courtship, now that they live under the same roof as husband and wife how do they communicate? Is one or both spouses taking a course to learn the spouses language? RELIGIOUS BARRIERS Questions as to a married couple who are of different religions depend on a number of factors not related to the couple themselves. For example, the geographic location of the adjudicators office, as well as the adjudicators professional and personal experience with different religions all contribute to what intending immigrants can expect at their interview. On occasion the difference in religious beliefs may trigger other fraud indicators, such as the situation that a wife may not tell her family that she has married a man of a different religion because of their potential disapproval. This creates the situation where not only do you have fraud indicators of differing religions, but also the fact that immediate family members are not aware of the relationship. During the consular or USCIS interview, the couple may experience questions such as how they celebrate religious holidays or in what way they may honor each others religious beliefs. The best mechanism to deal with differing ages, languages, or religious beliefs is to be prepared. Know your clients well enough to assure yourself first that a bona fide marriage exists, then help document this fact for presentation to the consular or USCIS adjudications officer. PETITIONERS WITH ADAM WALSH CONVICTIONS The Adam Walsh Act 26 prohibits the filing of a family-based visa petition on behalf of any beneficiary if the petitioner has been convicted of any specified offense against a minor unless the secretary of the U.S. Department of Homeland Security determines that the petitioner poses no risk to the beneficiary. The Adam Walsh Act specifically altered INA 204: I-130 petitions, I-600A, I-600, I-800A and I-800 orphan petitions. The Adam Walsh Act also impacted INA 101(a)(15) to preclude spouses or fiancs of USCs from obtaining K nonimmigrant classifications. Although the Adam Walsh Act was enacted on July 27, 2006, no implementing regulations have been promulgated. The USCIS issued three interoffice memoranda in 2006 and 2007 providing guidance to field offices about adjudication of petitions, which essentially led to most petitions involving Adam Walsh convictions being put on hold. On September 24, 2008, USCIS transmitted a Standard Operating Procedure (SOP) 27 to be used by adjudicators for adjudication of I-130, I-129F, I-600, I-600A, I-800, and I-800A
26 27
Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 40102, 120 Stat. 587, 62223. USCIS Memorandum, D. Neufeld, Transmittal of SOP for Adjudication of Family-Based Petitions under the Adam
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petitions. This SOP also recognized that USCIS would have to accept a petition and conduct an analysis to determine if Adam Walsh Act provisions apply to the petition before proceeding to an adjudication. Does the petitioners conviction constitute an Adam Walsh Act covered conviction? That is also where the attorneys analysis must begin. Adam Walsh Act offenses are set out in 111(7). These are limited to offenses against a minor, defined as a person who has not attained the age of l8 at the time the offense was committed. Even other offenses that involve the following listed offenses are deemed to be Adam Walsh Act offenses: Offense involving kidnapping, unless committed by a parent or guardian Offense involving false imprisonment unless committed by a parent or guardian Solicitation to engage in sexual conduct Use in a sexual performance Solicitation to practice prostitution Video voyeurism (as described in 18 U.S. Code 1801) Possession, production, or distribution of child pornography Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct Any conduct that by its nature is a sex offense against a minor. The last provision is very broad and may include a criminal offense that is a specified offense against a minor or a criminal offense that has an element of involving a sexual act or sexual contact with another. It also includes federal and military offenses. The provision applies to foreign convictions unless there were insufficient safeguards for fundamental fairness and due process for the accused. As of July 2008, convictions under the laws of Canada, New Zealand, Australia, and the United Kingdom have been deemed to satisfy these safeguards. Practice Pointer: If you are representing a petitioner with a foreign conviction for what seems to be an Adam Walsh Act offense, it is critical to review the charges and the law and the conviction record. If you intend to challenge the fundamental fairness and due process aspects of the foreign conviction, seeking cocounsel from the country where the conviction occurred or with extensive knowledge of the criminal laws of that country would be crucial. USCIS adjudicators likely will seek a Library of Congress opinion on the issue. There is another potentially more useful exception to a petitioner being deemed an Adam Walsh violator. The Adam Walsh Act provisions do not apply to sex offenses involving consensual sexual conduct if either: 1) the victim was an adult (unless under the custodial authority of the offender at the time of the offense); or 2) the victim was at least 13 years old and the offender was not more than four years older than the victim.. Practice Pointer: Your client intake must delve into the criminal history of the petitioner. You have to ask the petitioner if he or she has ever had any criminal record, including ones that might have been wiped off of their record. The easiest way to deal with this may be to state to the petitioner 1984 and Big Brother definitely have arrived. The USCIS runs a computer check on each petitioner to check out any past criminal record. If you have ever been arrested or charged for anything relating to a minor or assault of anyone, I need to know that before we move forward with filing a petition. Some petitioners will honestly not remember the Child Protective Service case that happened in the past; others will and may give you a call later, especially if the beneficiary is sitting in your office and has not been told about this. You may want to give some examples of fairly innocuous charges that could trigger Adam Walsh Act offenses. For example, the sheriff arresting you and a girl when he found you in an intense romantic encounter on a back roadand she was younger than you realized before the arrest. Or that time when six of you were taken in by the sheriff at a late stage of a strip poker game. Conviction? Dismissal? This needs to be checked out before proceeding with filing a petition.
Walsh Child Protection and Safety Act of 2006, (Sept. 24, 2008), published on AILA InfoNet at Doc. No. 10041530 (posted Apr. 15, 2010), available at www.aila.org/content/default.aspx?docid=31767.
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A petition can be filed on behalf of a petitioner with an Adam Walsh Act conviction along with a request for a waiver. Clearly the police and court records concerning the conviction should be submitted: You should already have these to have made the determination that an Adam Walsh finding will be triggered by the records. The USCIS SOP 28 of September 2008, should be the starting place if you have determined that a waiver will be required for the petition to be considered for approval. The SOP references and incorporates the prior USCIS memoranda giving guidance about the waiver, noting that separate proof of rehabilitation is not required (this differs from an earlier USCIS 2007 memorandum) other than to establish that the petitioner poses no risk to the beneficiary or any derivative beneficiaries. Practically speaking, if there is no proof of rehabilitation, the likelihood of a waiver is very slim. Practice Pointer: The waiver evidence should include any and all evidence that the petitioner completed counseling and or rehabilitation programs. Ideally, this would include the usual certificate(s) and letter(s) from counselors or persons conducting rehabilitation programs. The greater the amount of time between the Adam Walsh conviction and the filing of the I-130 petition, the better, so long as the petitioner has not had any other brushes with the criminal justice system that in any way suggest an ongoing tendency on the part of the petitioner to violate laws related to minors. If considerable time has passed, and the petitioner has not been seeing a counselor, it may be prudent to have a new counselor conference and letter concerning the findings. Documents showing the petitioners employment and community service may be helpful to a USCIS adjudicator. It is critical in most instances that the beneficiary know about the past conviction and have discussed this with the petitioner. (If the petition is approved, the USCIS is required to advise the beneficiary of all the adverse information. Common sense dictates that this should come from the petitionernot from the USCIS.) If the beneficiary has consulted with a counselor about the past behavior and the potential for it to arise again, a letter from that counselor can be useful to USCIS in its consideration. If the beneficiary and the petitioner have consulted with a religious leader or family members about the past conviction and how the petitioner has changed, letters from these individuals may be useful. If the couple has decided not to have children and do not have young children as they go into the marriage, this may also be a factor for them to present. If the beneficiary is a sibling, a parent, or an adult child who will not be living in the same household with the petitioner, that definitely is a factor for USCIS to consider. (Remember: Adam Walsh Act applies to all I-130 petitions, not just those involving marriage.) USCIS indicated in the 2008 SOP 29 that there is a presumption of risk whenever the intended beneficiary of a petition is a child. As immigration advocates know, the facts are always important. All orphan petitions have been subject to heightened scrutiny by the USCIS and by the U.S. Department of State. Obtaining approval of an orphan petition if the petitioner or his or her spouse had an Adam Walsh conviction would be a daunting task. The nature of the conviction, all of the facts surrounding it, and the time that had elapsed since the conviction likely would be critical. Ethical Consideration/Practice Pointer: An attorney should never guarantee the outcome of any petition filing. Never is this more true than with a petitioner who has an Adam Walsh conviction, even a remote one. Ultimately, the USCIS adjudicator must consider all known factors relevant to the determination of whether the petitioner presents any risk to the beneficiary. Once an adjudicator determines that there is no risk, the petition can only be approved after there is concurrence by two levels of USCIS supervisors: one by a field supervisor at the GS-13 level or above and a field supervisor at the GS-15 level or above. The 2008 SOP refers to the rare instance of an approval recommendation.
USCIS Memorandum, D. Neufeld, Transmittal of SOP for Adjudication of Family-Based Petitions under the Adam Walsh Child Protection and Safety Act of 2006, (Sept. 24, 2008), published on AILA InfoNet at Doc. No. 10041530 (posted Apr. 15, 2010), available at www.aila.org/content/default.aspx?docid=31767. 29 Id.
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UNRESOLVED ISSUES FOR ADAM WALSH FACT SITUATIONS On February 2, 2011, an AILA Slip Opinion Blog by M. Barr issued a call for experiences with the Adam Walsh Act. Certain issues were identified as requiring further clarification through litigation or from USCIS. These included: Whether the categorization of a particular conviction as a specified offense against a minor is done using the categorical approach, or is made with an inquiry into the specific facts of the offense. Whether the definition of conviction found at INA 101(a)(48)(A)which, by its own terms, is applicable only with respect to an alienis being applied by USCIS to USC petitioners. There is a strong argument that a diversionary disposition of a criminal charge, resulting in something other than a judgment of conviction, should prevent the triggering of an Adam Walsh Act petition bar for a USC petitioner. In interpreting the statutory mandate that a discretionary exception to an Adam Walsh Act-bar be available to a petitioner who poses no risk to the alien beneficiary, the Service has adopted, as a matter of policy, the highest possible burden of proofbeyond a reasonable doubt. Does the use of this heightened burden go beyond the express terms of the statute? And is it a permissible use of the agencys discretion? Which partyUSCIS or the petitionerbears the burden of proving that a conviction is, or is not, a specified offense against a minor? If the burden falls on the petitioner, as someone applying for a benefit, what happens in those situations where conviction records are no longer available, or are ambiguous? Where a petitioner is found to have been convicted of a specified offense against a minor, and the intended beneficiary is a minor, USCIS has adopted a rebuttable presumption of risk. Does the agencys policy decision go beyond the reach of the statute? Despite language that decisions under the Adam Walsh Act are made by the Secretary of DHS in his or her sole and unreviewable discretion, can one seek review at the BIA on the legal question of whether the Secretary applied the correct standard in making the risk assessment? Are there Constitutional concerns raised by the limitations created by Congress on the ability of a USC or LPR to petition for a family member? Finally, USCIS takes the position that the Adam Walsh Act applies to all petitions filed or pending on the date of enactment. But are any retroactivity concerns raised by situations where the conviction for a specified offense against a minor took place before the effective date of the Adam Walsh Act? Could it be argued that Congresss creation of a bar to filing certain family petitions due to past conduct attach a new disability to that conduct, and is therefore impermissibly retroactive? These and other issues await resolution whether through liaison or litigation. One should be aware that there are parameters which have yet to be defined when addressing Adam Walsh Act issues.
USCIS GIVES DE FACTO ACCEPTANCE TO EMERGING VIEW OF CSPA PROVISIONS IN INA 203(h)(3)
by David Froman *
On February 8, 2011, the U.S. Citizenship and Immigration Services (USCIS) reopened on service motion and reversed its earlier denial of the applicants I-765 renewal application it had denied on November 4, 2010, only three weeks after filing. The sole basis of the I-765 denial had been USCISs June 29, 2009, denial of the applicants I-485 adjustment of status application that had been pending for nearly two years, on the ground that the applicanta derivative beneficiary of an employment-based, third-preference category principalno longer qualified as a child under the Child Status Protection Act (CSPA). 1 This I-765 reopening and approval gave tacit recognition to USCISs prior legal error in denying the I-485 and to the judicial assessmentbased on the authorities listed belowthat the I-485 applicant was protected by the CSPA. The officer who originated the I-485 denial, ostensibly because the applicant had aged out, failed to offer any analysis or to discuss the application of the relevant statute, Immigration and Nationality Act (INA) 203(h)(3). 2 This provision of the CSPA protects the status of derivative children who age out by turning 21 prior to the availability of immigrant visas in their principal aliens preference categories. 3 We unsuccessfully attempted to persuade the service to reopen the denial on its own motion owing to legal error. Apparently unrelated to the I-485 denial, USCIS issued a Notice to Appear (NTA) on August 16, 2010, on the alleged basis of the applicants having overstayed his student status as of October 2008. 4 Never mind that
Copyright 2011, David Froman, all rights reserved. David Froman has practiced immigration law for 25 years. He is admitted to the State bars of California, Missouri, and Arizona, and to the bars of various federal courts and the U.S. Supreme Court. His law studies include a J. D., cum laude, from the University of San Diego, a diploma from the USD Institute of International and Comparative Law in Paris; an LL.M. in international law from Harvard Law School; and postgraduate study in immigration law under Charles Gordon at Georgetown University Law School. He has taught international law, torts, and legal analysis at law schools in Chicago and San Diego. He joined the AILA in 1986, while serving in the Pentagon as the Navys immigration attorney. He represented the petitioner in the early reinstatement of removal precedent case, AlvarezPortillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002), abrogated in part by Femandez-Vargas v. Gonzales, 548 U.S. 30 (2006). He has written and lectured on various immigration topics. He is the founder of Froman Law Firm, whose website appears at www.getvisas.com. 1 Child Status Protection Act, Pub. L. No. 107-20, 116 Stat. 927 (2002). 2 Decision Letter from F. Gerard Heinauer, Director, Nebraska Service Center, to applicant (June 29, 2009) (on file with author). 3 INA 203(h) provides the context for subsection (h)(3) (emphasis added): (1) In general.For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using (A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the aliens parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by (B) the number of days in the period during which the applicable petition described in paragraph (2) was pending. (2) Petitions described.The petition described in this paragraph is (A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or (B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the aliens parent under subsection (a), (b), or (c). (3) Retention of priority date.If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the aliens petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition. 4 Notice to Appear, Form I-862 (Aug. 16, 2010) (on file with author).
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since August 2007, the applicant had been pending adjustment, a lawful status recognized by the attorney general. 5 Or that USCIS had received during the year preceding the NTA ample and repeated notices of its legal error in peremptorily denying the applicants I-485 while he and his family were awaiting the availability of immigrant visas. Now there was a removal action to contend with, too. Since USCIS had failed to produce a satisfactory explanation of its denial action, and had totally ignored the most recent request for supervisory review and USCIS motion, we took the opportunity to present the issue to the immigration judge in the form of a Motion to Reinstate I-485. We included the calculations required by INA 203(h)(1), which resulted in an age in excess of 21. 6 Then we explained how a combination of INA 203(h)(3), which preserves priority dates for derivative children over 21; INA 203(d), giving derivatives the same status as the principal alien; 7 and 9 FAM 40.1 n.7, regulating following-to-join cases, 8 combine to make the applicant eligible to follow the principal alien despite his age. The regulation places no time limit on when the child can follow; moreover, it makes exception for those over 21 who qualify for the benefits of the Child Status Protection Act. Subsection 203(h)(3) preserves the original priority date issued upon receipt of the original petition for all who fall within its scope. Subsection (2) clearly describes two types of petitions governed by the statute: original petitions under the second family preference and derivative beneficiaries of family, employment or diversity visa lottery petitions for or by their parents. In the family case, the application of 203(h)(3) is wellestablished: children pass from F2A to F2B and thence to other possible preference categories they may automatically qualify for, such as F1 or F3. Such movement may also be possible for some family derivatives,
See, e.g., Treatment of Adjustment Applications for Purposes of Determining Unlawful Presence Under INA 212(a)(9)(B), 00 State 102272 (May 30, 2000), published on AILA InfoNet at Doc. No. 00060201 (posted June 2, 2000) (In general, aliens who have a pending application to adjust status to permanent residence under INA 245 are considered in a period of authorized stay for purposes of INA 212(a)(9)(B) . . . .) 6 We checked first to see if the applicant had sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability. As both he and his parents had filed their I-485s within six weeks of initial eligibility, he cleared the initial hurdle. Next, we calculated his age for purposes of the definition of child: Age of Applicant on July 1, 2007 (initial eligibility date) under 203(h)(1)(A): 22 years 103 days Number of days I-140 petition was pending: 200 days Age determined under 203(h)(1)(B): 21 years 268 days Since this calculation yielded an age in excess of 21 years, the analysis next considered 203(h)(3). 7 Under INA 203(d), subsection (d) cited in each paragraph of 203(h), supra note 3: A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join the spouse or parent. 8 The Note (emphasis added) provides: The term following to join, as used in . . . INA 203(d), permits an alien to obtain a[n] . . . immigrant visa (IV) and the priority date of the principal alien as long as the alien following to join has the required relationship with the principal alien. There is no statutory time period during which the following to join alien must apply for a visa and seek admission into the United States. However, if the principal has died or lost status, or the relationship between the principal and derivative has been terminated, there is no longer a basis to following to join. As an example, a person would no longer qualify as a child following to join upon reaching the age of 21 years (unless they qualify for the benefits of the Child Status Protection Act) or by entering into a marriage. There is no requirement that the following to join alien must take up residence with the principal alien in order to qualify for the visa. (See 9 FAM 42.42 N11.) The term following to join, also applies to a spouse or child following to join a principal alien who has adjusted status in the United States. The cross-reference, 9 FAM 42.42 N11, Derivative Status for Spouse or Child, (emphasis added) provides in part as follows: a. A spouse or child acquired prior to the principal aliens admission to the United States or the aliens adjustment to legal permanent resident (LPR) status, or a child born of a marriage, which existed prior to the principal aliens admission, or adjustment, who is following-to-join the principal alien, should be accorded derivative status under INA 203(d). No second preference petition is required. Although technically not regulations, as agency interpretations, the FAM notes provide detailed practical guidance in implementing statutes and regulatory provisions.
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such as children of unmarried children or unmarried sons and daughters. However, since employment and diversity visa beneficiaries have no such mobility among various preference categories (or countries, for diversity derivatives), when their petitions shall automatically be converted to the appropriate category, they remain in the same category. Habit and familiar perceptions, however, have obscured this analysis: Applying the CSPA to immediate relative applications, where the under-21 status is perpetuated indefinitely, and to family preference applications, where derivative beneficiaries may automatically convert to various categories based on their age or changed status of the petitioner, has blinded us to the third scheme established by statute, that for non-converting derivatives of family, business, and diversity visa petitions, who turned 21 while awaiting processing or visa availability. INA 203(d) accords these derivatives the same status and the same order of consideration for visa availability as their principal alien parent or spouse and specifically contemplates that they may be following-to-join the spouse or parent. We are familiar with this procedure for derivative spouses. Now a combination of statutes and regulations permit the same procedure for adult sons and daughters of permanent residents who would formerly have aged out. The State Departments following-to-join regulation quoted above specifically allows for over-21 derivatives whose status is protected by the CSPA. And 203(h)(3) preserves that status for over-21 beneficiaries under 203(d), that is, for non-converting derivative beneficiaries of family based (in categories F1, F2B, F3, and F4), employment-based, and diversity visa petitions. 9 Final confirmation comes from the FAM provision cited in the following-to-join regulation and emphasized above: No second preference petition is required for derivatives following to join under INA 203(d). 10 Subsection 203(h)(3) specifically provides for derivatives whose age exceeds 21. This means that the applicant here qualifie[d] for benefits. For when following-to-join, automatic conversion becomes unnecessary, because the appropriate category remains the same as that of the principal alien for those following-to-join as derivatives in each of the categories enumerated in 203(h)(2)(B). Therefore, we argued that by treating the applicant as an aged out child, the USCIS committed clear legal error. We urged the court to reinstate the I-485 at its earliest opportunity to correct this wrong. Fifteen days after receipt of the Motion to Reinstate, the immigration judge granted it on November 9, 2010. Immediately, we sent a copy of the judges order to USCIS to convince USCIS that it had erroneously denied the I-485 and to request that it reopen and approve the I-765 it had rushed to deny. Subsequent inquiry over the next two months revealed that the service moved the I-485 back to pending status on its public database, but no action was forthcoming on the I-765. Finally, through repeated follow-ups to Service requests made via the USCIS Customer Service line, a supervisory review occurred: the I-765 application was reopened on USCIS motion and approved on February 8, 2011.
Following this view, the conversion language of 203(h)(3) applies only to 204(a)(2)(A) family beneficiaries, where a well-established statutory automatic conversion scheme already exists. Where no statutory conversion scheme exists, the derivative beneficiary remains eligible in the original preference category with the original priority date. Conversion to the appropriate category does not mean that if no other category exists to convert to then the beneficiary gets knocked out of the original category. However, this scenario appears to summarize current USCIS thinking on this point. The original category for certain family and all employment and diversity derivatives always remains the appropriate category for them. That cannot be taken away simply because service officers are more accustomed to dealing with the family preference automatic conversion scheme. 10 D. Froman, Properly Applying INA 203(h), supra note 4 at 1148 (n.12 renumbered to 10 and modified). Despite the quoted FAM provisions, the Department of State has insisted that over-21 derivatives need a new F2B preference petition filed by the principal alien once the principal immigrates. Id. at 114849. Curiously, this approach has persisted even in the wake of Matter of Wang, 25 I&N Dec. 28 (BIA 2009), which specifically rejected according the the same order of consideration, that is, priority date, to a follow-on F2B petition for an aged out F4 derivative. Wang poses formidable barriers to the conventional approach to over-21, derivative immigration. Proceeding from flawed premises, applying inapplicable references, and filtering them through faulty logic, the Board obfuscated rather than elucidated the application of INA 203(h). Id. at 114952. Proper application of 203(h)(3), as presented here, avoids the infirmities of the Wang decision altogether.
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An apparent lack of sufficient USCIS documentation and training concerning proper application of the over-21 provisions of the CSPA, INA 203(h)(3), unnecessarily caused the applicant more than a year and-ahalf of worry and uncertainty, including employment difficulties, potential removal, and the expense of defending himself against all these eventualities. Had information concerning the simplicity of applying this statute been readily available to USCIS officers and the public, this unfortunate detour would not have occurred. To remedy this deficiency, the accompanying Child Status Protection Act (CSPA) INA 203(h) Flow Chart maps the application of the CSPA to cases subject to INA 203(h). Using this flow chart will help those concerned with the application of this statute to visualize the structure that governs the flow of cases falling within its ambit. One sincerely hopes that the availability of this resource will promote more uniform application of this statute governing the continued eligibility of derivative, over-21 beneficiaries to immigrate with or following-to-join their principals.
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SURVIVING RELATIVES: NEW WAYS TO RESUSCITATE A DEAD PETITION OR APPLICATION

by Barbara L. Bower, Christie Popp, and Brent Renison *
This article concerns new solutions, under recently enacted legislation and pursuant to a class-action settlement, to some of the problems encountered by surviving relatives following the death of the person who had provided the basis for immigration benefits. On October 28, 2009, President Obama signed into law two provisions directed toward surviving relatives: (1) elimination of the two-year marriage requirement for selfpetitioning widows and widowers [widow(er)s] of U.S. citizens; and (2) an entirely new INA section, Section 204(l), which allows many petitions and other immigration benefits to remain viable after the death of the qualifying relative. 1 U.S. Citizenship and Immigration Services issued a Memorandum dated December 2, 2009, by Donald Neufeld, Associate Director, Service Center Operations Directorate (Neufeld Memo), that provided guidance on the change to widow(er)s of U.S. citizens, and issued a policy memorandum dated December 16, 2010, that provided guidance on implementation of the new INA 204(l) provisions (Policy Memo). 2 A few key concepts may assist practitioners in sorting through the provisions that are relevant to an individual clients case: Widow(er)s of U.S. citizens are treated differently than other surviving relatives, primarily because there is a right to self-petition in addition to having a previously filed petition remain valid. Congress eliminated the provision requiring a marriage of two years for widow(er)s of U.S. citizens to self petition, and litigation and a class action settlement established other rights for this class of immigrants; Humanitarian Reinstatement, which has for many years served as the only immigration tool for most surviving relatives, has been partially replaced by the more liberal provisions of 204(l) and the removal of the two-year marriage requirement for widow(er)s of U.S. citizens. Nevertheless, it remains an option available under the regulations for cases not covered by the widow(er) or 204(l) provisions;
Barbara L. Bower practices immigration law with Sherrard, German & Kelly, P.C. in Pittsburgh. Her clients range from large publicly traded multinational corporations to small start-up companies and private individuals. She is a past chair for the AILA Pittsburgh Chapter and has served on numerous national AILA committees. She chaired the 2000 AILA Annual Conference Committee. She has been selected for inclusion in The Best Lawyers in America for immigration. Christie Popp is the director of the Immigrants and Language Rights Center of Indiana Legal Services. Prior to becoming the director, she worked as a staff attorney for the organization. She handles a variety of cases for low-income immigrants and their families, including cases related to family-based immigration, deportation defense, U visas, VAWA-related immigration benefits, and naturalization. She received a J.D. from Vermont Law School in 2005 and earned a B.A. in Latin American Studies from Indiana University in 2001. Brent Renison is top listed in Best Lawyers in America, is ranked as a leading individual by London-based Chambers and Partners, and is named by Law & Politics as a Super Lawyer. He received the Ninth Annual Daniel Levy Memorial Award for Outstanding Achievement in Immigration Law in Washington, DC in 2010. In 2007, he was presented with an AILA Presidential Award for Outstanding Achievement in Mentoring and Litigation on behalf of immigrant rights and with the Gerald H. Robinson Excellence in Advocacy Award by the AILA Oregon Chapter. He worked for over five years to end the widow penalty through litigation and legislative advocacy. 1 INA 201(b)(2)(A)(i) (8 U.S.C. 1151(b)(2)(A)(i)); INA 204(l) (8 U.S.C. 1154(l)), as amended by 568(c) and 568(d) of the DHS Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 2142, 2187-88 (2009). Note that new INA 204(l) follows 204(k) alphabetically, and the subsection is ordered by the letter l as in letter as opposed to a numeral 1 or I. 2 Memorandum, Neufeld, Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (Revised), Dec. 2, 2009, published on AILA InfoNet Doc. No. 09121430 (posted Dec. 14, 2009); Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, PM-602-0017, Dec. 16, 2010, published on AILA InfoNet Doc. No. 11011061 (posted Jan. 10, 2011).
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Surviving Relative Consideration Under 204(l) represents a new form of relief for surviving relatives, some of whom could previously only rely upon humanitarian reinstatement, and many of whom simply had no relief at all. The requirements of 204(l) relief center around two main elements: Residence in the United States at the time of the death, and continuing residence in the United States; and A Previously Filed Petition such that at the time of the death the surviving relative was the beneficiary or derivative beneficiary of a petition. This is in contrast to the self-petition rights unique to widow(er)s of U.S. citizens. Figure 1.
As shown above in Figure 1, widow(er)s are subject to special rules, including the statutory right of selfpetitioning. Widow(er)s married more than two years are subject to different rules than those married less than two years, but only for pre-October 28, 2009 deaths. Additionally, because of the Hootkins v. Napolitano class action, 3 cases involving petitions filed in the Ninth Circuit, or where the beneficiary or petitioner resided in the Ninth Circuit at the time of the death, are subject to special rules in accordance with the settlement of that lawsuit. If the case does not involve a widow(er) of a U.S. citizen, it may be covered by new INA 204(l), as shown below in Figure 2.
Hootkins v. Napolitano, 645 F. Supp. 2d 856 (C.D. Cal. 2009) (court filings and rulings, including the settlement agreement reached Apr. 5, 2010, are available at www.ssad.org/litigation/classaction.html).
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Figure 2.
Figure 2 incorporates the statutory language of new INA 204(l) and the interpretation given to it by U.S. Citizenship and Immigration Services (USCIS) through the Policy Memo. As with any simplified construct, it is provided only as an aid to a more thorough analysis of an individual case. One should not rely on Figure 2 alone to analyze eligibility. Additionally, there are a number of areas that are either not clear as of this writing or are the subject of disagreement between the USCIS interpretation and AILAs membership. USCIS issued a Draft Policy Memorandum on May 17, 2010 4 , and AILA responded with comments. 5
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Draft Policy Memorandum, May 17, 2010, published on AILA InfoNet Doc. No. 10051767 (posted May 17, 2010). AILA Comment on USCIS Draft Policy Memorandum Regarding 204(l), published on AILA InfoNet Doc. No. 10060363 (posted June 3, 2010).
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Remarriage The clear statutory language of 201(b)(2)(A)(i) covering self-petitioning widow(er)s of U.S. citizens bars self-petitioning eligibility for widow(er)s who remarry. In response to the Draft Policy Memo, however, AILA responded that 204(l) nevertheless provides relief to those who remarry: A widow(er) whose U.S. citizen spouse filed an I-130 petition before dying, and who remarries prior to being admitted to lawful permanent resident status, still qualifies as an alien described in INA 204(l)(2)(A) because the alien, immediately prior to the death of his or her qualifying relative, was(A) the beneficiary of a pending or approved petition for classification as an immediate relative (as described in section 201(b)(2)(A)(i)). INA 204(l)(2)(A). By fixing the point of eligibility before the death, the statute clearly contemplates eligibility for those who were spouses of U.S. citizens immediately prior to the death of the qualifying relative. The statute does not require the widow(er) to continue to be the spouse of a U.S. citizen; only that he or she was an immediate relative at the time of death, and was the beneficiary of a petition. 6 This argument is further strengthened by the language of 204(l)(1), which requires that the petition be adjudicated based upon the family relationship described in paragraph (2), because that family relationship is described in terms fixing the relationship immediately prior to the death. USCIS bases its contrary position only upon the remarriage bar contained in 201(b)(2)(A)(i). 7 This statute, however, does not pertain to widow(er)s of lawful permanent residents (LPRs) in the 2A category, and it cannot be reconciled with the clear language of 204(l). This is an area, therefore, where an appeal to the BIA or litigation may find fertile ground. Affidavit of Support Another area of concern is in the area of the I-864 Affidavit of Support. USCIS takes the position that the petitioners I-864 is no longer valid. 8 In order to be admissible, therefore, a survivor must either show exemption from the I-864 requirement or obtain an I-864 from a substitute sponsor who must be related to the applicant in one of the ways described in 213A(f)(5). 9 This may be impossible in cases where the survivor does not have one of the relatives listed. The substitute sponsor requirement is absolute, according to USCIS, and neither the aliens own funds nor joint sponsors can cure the absence of a substitute sponsor. AILA previously commented that in cases where the petitioner (now deceased) executed an I-864 prior to the death, the affidavit of support requirement should be deemed to have been met because it was a related application. 10 USCIS disagreed, stating that the I-864 is neither a petition, nor an application, nor a related application. 11 Because there will undoubtedly be survivors who qualify for 204(l), save for lack of a qualifying substitute sponsor, it appears that litigation may be necessary to advance survivors rights in this area. Discretion The Policy Memo lacks the necessary clarity on the issue of discretion, which could lead to erroneous denials. Specifically, 204(l) does authorize the agency to withhold approval where the secretary of the Department of Homeland Security determines that approval would not be in the public interest. 12 Such discretion is unreviewable. 13 According to the Policy Memo, however, discretionary public interest denials
Id., p. 3. Policy Memo, p. 3. 8 Policy Memo, p. 9. 9 Relatives include, spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, sonin-law, daughter-in-law, sister-in-law, brother-in-law, grandparent or grandchild of a sponsored alien or a legal guardian of a sponsored alien INA 213A(f)(5) 10 AILA Comment, p. 1011. 11 Policy Memo, p. 9. 12 INA 204(l)(1). 13 Id.
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should not be routinely used, and a consultation with headquarters is required prior to denying a visa petition on that basis. 14 The Policy Memo notes that traditional discretionary factors may still be used to deny a case, without specifying under which situations those may be appropriate. Nevertheless, because visa petition proceedings are nondiscretionary by nature, one can make the argument that only a public interest denial subject to the consultation requirement would be proper. As for adjustment of status or waiver applications, those may still be denied using traditional discretionary factors. Because 204(l) does not permit a denial based solely on the lack of the qualifying family relationship, 15 however, a discretionary denial that is based on the death of the qualifying relative should be reviewed for appeal. Humanitarian Reinstatement In cases involving a petition that had been approved prior to the death of the petitioner, USCIS takes the position that a kind of hybrid type of humanitarian reinstatement is to be applied. 16 This treatment runs contrary to the plain language of the statute, and it elevates the old humanitarian reinstatement regulations above the level of the statute. 17 The guidance is also confusing in that it explains that discretion should be generally appropriate in cases covered under 204(l). 18 In light of the fact that, outside public interest denials, visa petition adjudications are nondiscretionary, this guidance is at odds with the statute and accepted adjudicatory standards. Additionally, it appears to make beneficiaries of approved petitions more vulnerable than those of pending petitions. U and T Visa Considerations There is some concern that 204(l) may not provide any greater protection to U and T nonimmigrants than was already granted by the statute, regulations, and current USCIS policy. For example, the guidance states that if the surviving relative already had status as a T or U nonimmigrant derivative at the time of death of the qualifying relative, the surviving relative may apply for adjustment of status. This was already granted by the U adjustment regulations and the policy of USCIS, which considers U derivatives to be separate from the principals when it comes time to adjust. In addition, 204(l) leaves several significant groups out in the cold; for example, an applicant for derivative U nonimmigrant status who resided in the United States. If that applicant traveled abroad while the U application was pending (before it was approved), and the principal died before the derivative could return, the derivative would not benefit from 204(l) even though he or she resided in the United States and even though the U status had been approved. The statute requires that the U nonimmigrant be admitted in that status before benefiting from 204(l). If the derivative was abroad when the U status was approved, he was not admitted before the principal died. The second large group of individuals who cannot benefit from 204(l) are family members of U principals who never hold U status. Under INA 245(m) a family member can adjust his or her status or obtain an immigrant visa if such a grant is necessary to avoid extreme hardship. An alien who might otherwise be the beneficiary of an adjustment of status under this section cannot obtain status if the principal dies because he or she has not held U nonimmigrant status before the principal died. The third group of individuals who might be harmed by this section are derivatives who have aged out. USCIS is currently considering guidance on how to deal with derivative children who age out (reach the age
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Policy Memo, p. 12. DHS Appropriations Act for FY 2010, Pub. L. No. 111-83, Title V, 568(d)(2), 123 Stat. 2142 (Oct. 28, 2009), provides: (2) Construction. Nothing in the amendment made by paragraph (1) may be construed to limit or waive any ground of removal, basis for denial of petition or application, or other criteria for adjudicating petitions or applications as otherwise provided under the immigration laws of the United States other than ineligibility based solely on the lack of a qualifying family relationship as specifically provided by such amendment. 16 Policy Memo, pp. 1213; p. 15. 17 The Humanitarian Reinstatement Regulations can be found at 8 CFR 205.1(a)(3)(i)(C). The Adjudicators Field Manual deals with the issue at AFM 21.2(h)(1)(C), as amended by the Policy Memo. 18 Policy Memo, pp. 1213; p. 15.
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of 21). It has previously stated that derivative children will age out and lose their status at 21. For this reason, recently issued U visas are being granted only until the day that the derivative turns 21, even if that is less time in U status than the principal will have. Thus, only those derivative children who obtain U status by age 18 will have the requisite time in U status (three years) to adjust on their own. The Vermont Service Center is holding back the older applications of derivative children who turned 21 before the principals status was approved, rather than denying them, pending the forthcoming guidance. For those derivatives whose applications are still pending because they have already aged out, the question is open as to whether they would benefit from INA 204(l). If the principal dies, the language of the statute would not allow a derivative to obtain status because the derivative must have already held such status at the time that the principal died.
MAKING STRATEGIC CHOICES IN MARRIAGE PETITIONS

by David Harston, Sharon Dulberg, Marcia Needleman, and Robin ODonoghue *
When attorneys are retained for immediate relative marriage petitions before the marriage takes place, there may be options concerning how to proceed. If the foreign national (FN) spouse is in the United States or has the ability to travel to the United States, should they marry in the United States or abroad? May the spouse apply for adjustment of status, or must he or she consular process? When might consular processing be a better choice? Ideally, clients should be fully advised of the advantages, disadvantages, and consequences of any potential course of action before setting a plan in motion. Every case is unique and the particular facts of each situation will need to be thoroughly investigated. This practice advisory will provide a framework as to how to analyze the options and strategize with clients to determine the optimal course of action for their individual needs, while maintaining ethical standards and professional distance. MARRIAGE AFTER VISA WAIVER ENTRY Can your client, who entered on a visa waiver, apply for adjustment of status if married to a U.S. citizen (USC)? Under the visa waiver program (VWP), the Immigration and Nationality Act (INA) 1 allows an individual from certain countries to enter the United States without first obtaining a waiver. In exchange for this privilege, the visa waiver entrant waives certain benefits that would otherwise be available to an entrant with a visa. 2 One of those waived benefits includes the benefit of applying for adjustment of status in the United States. INA 245(c)(4). However, the INA makes an exception to this ban and allows a visa waiver entrant to adjust status if he or she is an immediate relative. INA 245(c)(4). In addition, if the applicant is eligible under INA 245(i), he or she is eligible to apply for adjustment of status even if entered as a visa waiver
David Harston is a partner at Elkind Alterman Harston PC and has been practicing immigration law since 1999. He served on the executive committee for the AILA Colorado Chapter from 200409, and was chapter chair from 200708. Mr. Harston is a member of the executive council of the Colorado Bar Association Immigration Law Section, where he served as the section chair from 200910. He graduated from the University of Denver with a law degree and a Masters degree in International Studies. Mr. Harston interned in the Human Rights Program at the Carter Center in Atlanta, founded by former President Jimmy Carter and former First Lady Rosalynn Carter. Sharon Dulberg is the sole proprietor of McVey Mullery & Dulberg in San Francisco. Ms. Dulbergs practice focuses on removal defense, asylum with a focus on lesbian, gay, bisexual, transgender (LGBT) asylum, family-based immigration including transgender marriage-based immigration, and small business employment-based immigration and citizenship. Ms. Dulberg previously served as treasurer, secretary, vice chair and chair of the AILA Northern California Chapter. Ms. Dulberg is a frequent speaker at AILA conferences. Marcia Needleman is the principal of Levitt & Needleman,P.C. in New York City. The firm practices exclusively in the area of immigration and nationality law, handling matters across the full range of immigration law with a particular focus on business immigration. She has served on AILAs Board of Governors, held the position of chair of the AILA New York Chapter, and served on numerous committees. She is a former trustee for the American Immigration Council. Ms. Needleman lectures, advocates for immigration reform, and is listed in The Best Lawyers in America, Super Lawyers and Whos Who Legal, Corporate Immigration. Robin ODonoghue has maintained a business and family immigration practice in Cambridge, MA, since 1997. She served on the executive board of AILAs New England Chapter from 200410, and as chapter chair from 200809. Since 2009, Ms. ODonoghue has served on AILAs Business Immigration and Annual Conference Program committees. She frequently publishes and presents on immigration matters for AILA and other bar associations, CLE organizations, colleges and universities, and business and community groups. She graduated from Boston University School of Law, cum laude, in 1991. 1 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). 2 INA 217(b).
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entrant. Therefore, unless your client is an immediate relative or 245(i) eligible, if he or she entered under the VWP, he or she will not be eligible to file for adjustment of status in the United States. Although most courts have not addressed whether an immediate relative visa waiver entrant may file for adjustment of status after the 90-day stay has lapsed, the government has indicated that an individual may apply to U.S. Citizenship and Immigration Services (USCIS) and USCIS may consider the overstay as a matter of discretion in determining eligibility for adjustment of status. 3 In addition, a visa waiver entrant may file an adjustment of status application with USCIS even if he or she has received an INA 217 removal order. 4 It is important to advise your client that even if he or she may apply for adjustment of status as an immediate relative, entry under the VWP constitutes a waiver of right to hearing before an immigration judge (IJ), except for asylum. 5 Therefore, if his or her adjustment of status application is denied, he or she may not be able to renew the application in immigration court as a non-visa waiver entrant would otherwise be able to do. Circuit courts have uniformly concluded that an individual who is admitted pursuant to the VWP and overstays beyond the 90-day period of lawful admission cannot thereafter resist removal based on an application for adjustment of status. 6 The U.S. Court of Appeals for the Ninth Circuit has carved out an exception to this rule, however, determining that if a VWP entrant submits an application for adjustment of status during the 90-day admission period, and that application is subsequently denied and the FN is ordered to leave the country, the FN may renew the application before an IJ in removal proceedings. 7 Practice Pointer: Each jurisdiction handles adjustment of status applications filed by VWP entrants differently. Some may only approve an immediate relative adjustment of status application if the application is filed within the 90-day period after the person enters the United States. Many offices routinely adjudicate adjustment applications filed after the 90-day visa waiver period of stay has lapsed. You should find out what your jurisdiction is doing with these cases. When advising your client, you must make clear that although your jurisdiction may be adjudicating the cases in a particular way at the time you file, this could change while the case is pending. Applying within the 90-day period carries riskse.g., USCIS may conclude that your client misused the VWP by entering the United States with the intent to file for adjustment of status8 ; or, worse yet, USCIS may find that your client committed fraud or misrepresentation when entering the United States. A denial of adjustment of status and removal carries the same consequences as removal under INA
See governments Brief for Respondent in Opposition to petitioners petition for certiori, published on AILA InfoNet at Doc. No. 10122752 (posted Dec. 27, 2010), available at www.aila.org/content/default.aspx?docid=34002. 4 Shabaj v. Holder, 602 F.3d 103 (2nd Cir. 2010). See also AILA Immigration Slip Opinion Blog, A Visa-Waiver RoundUp, (June 7, 2010), available at www.ailaslipopinionblog.org and Visa Waiver Program Litigation Update, (Jan. 3, 2011), available at www.ailaslipopinionblog.org. 5 INA 217(b)(2). 6 Bradley v. Attorney General, 603 F.3d 235 (3d Cir. 2010), cert. denied, (applied for adjustment of status (AOS) 10 years after entering on VWP; AOS denied as a matter of discretionno right to contest in immigration court); Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010) (subject to VWP waiver, regardless of whether from a visa waiver country or properly admitted under VWPBayo from a non-VWP country entered using a false Belgium passport, not eligible for a removal hearing); McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009) (per curiam); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008); Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008); Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir.2006). 7 See Momeni, 521 F.3d at 109697; Freeman v. Gonzales, 444 F.3d 1031, 103334, 103537 (9th Cir. 2006) (We hold that once a VWP entrant files an adjustment of status application as an immediate relative, as contemplated by 8 USC 1255(c)(4), the alien is entitled to the procedural guarantees of the adjustment of status regime, see 8 CFR 245.2, and to that extent is no longer subject to the Visa Waiver Programs no-contest clause.) 8 See Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980) (BIA held that if preconceived intent was the only basis for denying an immediate relative AOS, it was not a sufficient basis.)
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240, 8 CFR 217.4(b)(2). Therefore, your client will be inadmissible for 10 years. 9 In addition, if an overstay occurs, the VWP entrant cannot use the VWP again. 10 PRECONCEIVED INTENT Among the scenarios that may arise in marriage-based paths to lawful permanent residence is that where the FN enters the United States with a nonimmigrant visa (e.g., visitors visa) and then decides to marry and adjust status within the United States Of course it must be a valid marriage and the FN must be eligible for adjustment of status, but an important issue to be mindful of is that of preconceived intent. A finding of preconceived intent is a determination that, although the FN entered the United States with a nonimmigrant visa, he or she had already formed an intent to become an immigrant. If an officer determines that there was preconceived intent he may, in his or her discretion, deny the application or minimally question and scrutinize the applicant more thoroughly. An important case in this area is Matter of Cavazos, 11 which stands for the proposition that even if there is a finding of preconceived intent, adjustment may generally not be denied where there are substantial equities present in the case, particularly where the nonimmigrant has a USC spouse or child. That said, officers do have a great deal of discretion in adjudicating adjustment of status cases and in determining what constitutes substantial equities. Therefore, it would be imprudent to ignore or fail to advise or prepare clients on the issue of preconceived intent in reliance on the holding of this case. Certainly at times clients may have already taken actions that potentially could lead to an adverse finding on the preconceived intent issue and in such cases invoking the holding of this case may present a strong defense and hopefully avoid a denial or other adverse finding. Intention can be a very elusive concept. Intention lies within the mind or heart of the FN. An officer cannot read the mind or heart of the FN, so he or she will look to the actions of the FN as a manifestation of his or her intentions. If an FN enters the United States with a nonimmigrant visa on January 1st, marries on January 3rd and files an I-130 petition and adjustment of status application on January 5th, a finding of preconceived intention would likely and reasonably be made. The timing of actions in relation to the entry of the FN is critical in preconceived intention determinations. An analysis of a rapid sequence of events 12 that may be construed as inconsistent with the nonimmigrant visa status is a test that has been applied by the Board of Immigration Appeals in determining, as a matter of discretion, whether or not there was preconceived intent. Essential guidance in this context is found in the 30-/60day rule, U.S. Department of State (DOS) guidance that appears in the Foreign Affairs Manual (FAM). 13 Although DOS guidance, it has historically been utilized by USCIS in rendering determinations regarding preconceived intention. It is wellestablished guidance and should be utilized as such in planning your cases. The rule provides for a presumption of preconceived intent if, within 30 days of entry, actions are taken that are inconsistent with the FNs nonimmigrant status. Such actions taken within 60 days of entry create a rebuttable presumption of preconceived intent when other facts in the case give rise to a reasonable belief that the nonimmigrant misrepresented his or her intent; the officer can consider evidence to rebut the presumption. There is no presumption of preconceived intent in connection with actions that take place beyond 60 days after entry. Given its wide use, it is recommended practice to utilize the parameters set forth in this guidance to determine the preconceived intent issues that may arise in your case and to plan your case accordingly, to the extent possible. It is important to note that actions occurring prior to the FN departing his or her home country. Actions/statements at time of visa interview at U.S. consulate, actions/statements at time of entry and subsequent to entry, and how and why intentions may have changed are all areas of potential inquiry in this context. For example, an FN who has taken actions prior to entering the United States that appear to sever all
INA 212(a)(9)(A)(I). INA 217(a)(7). 11 See Matter of Carvazos, 17 I&N Dec. 215 (BIA 1980). 12 See Matter of Patel, 19 I&N Dec. 774 (BIA 1988). 13 9 FAM 40.63 N4.7.
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ties to his or her home countrye.g., quitting a job, selling property, closing/transferring financial accounts if inquired into by an officermay have implications for preconceived intent. It is therefore very important when interviewing clients to ascertain all of the facts surrounding entrybefore entry, upon entry, and after entryso that you are aware of all the facts and can strategize the process and prepare your clients accordingly for interview. When consulting with potential clients, it is important to advise them initially and proactively of the law, procedures, various options, risks of engaging in certain activities, as well as your role as counsel and your ethical obligations attendant to that role. Hopefully the clients will understand all of that information, thereby enabling you to work with them in strategizing the process in a manner that is most effective for them and within the parameters of your ethical responsibilities. You will not always have the advantage of meeting with clients prior to their taking certain actions that may raise potential issues for them in the immigration process, including preconceived intent. In such circumstances, you may still be able to represent and assist them, being certain to advise them of the risks of their situation, various options, and your ethical obligations to the tribunal. You also must be aware of how the office with jurisdiction over the case views these issues, as that may vary depending upon the office and over time. Having such knowledge ahead of time may be valuable in planning and preparing the case and your clients in advance. MARRYING IN THE UNITED STATES VS. ABROAD One of the first questions a client who is thinking about marrying an FN asks is where can or should we get married? The answer to that question normally depends on where the FN fianc/fiance presently is physically located. However, beyond the location of the FN spouse, counsel should review the situation thoroughly and perform a detailed analysis of the implications of marrying a USC or lawful permanent resident (LPR) prior to recommending a course of action. In terms of a marriages validity, a marriage is valid for immigration purposes if it is: (1) valid under the state or countrys laws where the marriage took place; and (2) qualifies under the INA. 14 In this way, it matters little where the parties marry, assuming the marriage is recognized by the country or state where it took place. In addition, the parties must be free to marry (prior marriages legally terminated) and the marriage cannot be contrary to public policy. 15 Common law marriages are valid for immigration purposes where recognized by the country or state where they took place. Religious marriages are valid for immigration purposes if they are recognized as valid in the country or state where they took place. Postoperative transsexual marriages also are recognized. 16 Whether an intending immigrant marries in the United States or abroad can have profound implications on his or her immigration journey to the United States. The act of entering into a marriage (a bond fide one, of course) with someone who is a USC or LPR can have the effect of both opening and closing doors to U.S. immigration. Doors open in that the USC or LPR can petition for the FN spouse for permanent residency by filing the form I-130 Petition for Alien Relative, thereby establishing the qualifying relationship. On the other hand, once married to a USC or LPR, the mere existence of that qualifying relationship can make it difficult to secure a nonimmigrant visa, assuming the visa sought requires a showing of nonimmigrant intent. Even absent a pending or approved I-130 petition, consular officers may deny a nonimmigrant visa under INA 214(b) based solely on the engagement or marriage to a USC or LPR. Similarly, U.S. Customs and Border Protection (CBP) inspectors may deny entry to the United States to a nonimmigrant visa holder for the same reasonwhat amounts to a presumption of immigrant intent when married or engaged to a USC or LPR. Marrying in the United States often presents the best option for most clients. In particular, if the FN already is physically present in the United States based upon a lawful entry, marrying in the United States generally will be the best option, particularly if the decision to marry came after the FN entered the United States on his or her nonimmigrant visa. In that scenario, the FN presumably could demonstrate the he or she
14 15
AFM ch. 21.3. Matter of H, 9 I&N Dec. 640 (BIA 1962) [polygamy against U.S. public policy]. Matter of Lovo-Lara, 23 I&N Dec. 746, 748 (BIA 2005); AFM ch. 21.3(a)(2)(j).
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entered temporarily, for the purposes tied to his or her nonimmigrant visa, and then decided to get married. If an FN is contemplating marriage and presently is physically present outside of the United States but is in possession of a visa that would allow him or her to enter the United States lawfully and consistent with the terms and conditions of the visa, then he or she may want to delay any final decision to marry until after entering the United States. This is particularly the case if the FN spouse believes that if he or she marries a USC, the decision will be to file for permanent residency in the United States. If the FN spouse already is in the United States and assuming the other spouse is a USC, the advice typically is to file a concurrent I-130 petition and I-485 residency application. This, of course, assumes that the FN entered the United States lawfully (with the exception of cases covered by INA 245(i)) and otherwise qualifies for adjustment. The FAM also permits a visitor entry for the purpose of coming to the United States to marry. Of course, the FN still has to show sufficient ties to his or her home country to ensure their return. 17 After the marriage, the FN can return home to pursue an immigrant visa from abroad. Filing for adjustment in this circumstance can be risky due to the issue of preconceived intent. 18 Marrying abroad generally makes sense in the context of U.S. immigration, where it may be difficult if not impossible for the FN to secure a nonimmigrant visa to enter the United States temporarily. The other option if the FN spouse resides abroad is for the USC to file a K-1 fianc/fiance petition (as discussed in detail elsewhere in this article). If the USC has been residing abroad for at least six months, it may be possible both to marry abroad and to file the I-130 petition directly with the U.S. consulate where the couple resides. Direct filing of the I-130 at the U.S. consulate abroad can speed-up the immigrant visa process dramatically, much more quickly than filing the I-130 with a regional service center in the United States. Marrying abroad also may make sense where the FN has no immediate plans to immigrate to the United States. Of course, USCIS processing times are in a constant state of flux, so practitioners must counsel couples and maintain realistic expectations with regard to USCIS and DOS processing times. In an ideal world, clients contact immigration counsel many months, if not a year or more, prior to a planned wedding or formal engagement. The more time there is to plan the immigration process, the smoother the process tends to go. Unfortunately, however, affairs of the heart do not lend themselves to a set schedule. More often than not, clients have taken steps which tend to limit the available immigration options. It is critical to try to strategize as early as possible in the immigration process while keeping your clients ideal marriage plan in mind. ADJUSTMENT OF STATUS VS. CONSULAR PROCESSING Once married, the question is whether the person can or should apply for adjustment here in the United States, or should seek an immigrant visa abroad through consular processing. Adjustment of status refers to the process by which a non-immigrant adjusts his or her status from that of a nonimmigrant to an immigrant. In consular processing, the intending immigrant is overseas and will apply for his or her immigrant visa at a U.S. consular facility. Similar to the analysis above regarding where to get married, much depends on the present location of the FN; that is, is he or she already in the United States or not. If not, how can he or she get here and what are the legal implications of travel given his or her immigrant intent? However, the analysis must go much further than that discussed in the section above. Assuming the FN spouse is physically present in the United States or can make a lawful entry into the United States, the first question is whether he or she is even eligible to adjust status. The starting point is a careful review of INA 245(c), which sets forth various categories of immigrants who are ineligible for adjustment of status. One must also carefully review the criteria for adjustment of status to determine if the FN spouse meets all of the requirements. If the spouse is inadmissible on one or more grounds under INA 212(a), the analysis turns to: (1) whether there is a waiver of inadmissibility available; and (2) a detailed assessment of the merits of the waiver case. The bottom line is that not all intending immigrants are eligible for adjustment of status in the United States, and the decision on whether to proceed with adjustment must be carefully analyzed on a case-
17 18
9 FAM 41.31 N14.1. But see Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980).
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by-case basis. It also behooves counsel to know his or her local USCIS office very well, and to understand what issues are of particular relevance to that office. If eligible for adjustment of status, the advantages to filing generally outweigh the limited disadvantages. For example, adjustment of status applicants may apply for and obtain temporary work authorization (using Form I-765) while their residency application is pending with USCIS. 19 One disadvantage to adjustment is that an applicant must not depart the United States while the application is pending without first securing advance parole travel permission. 20 Doing so results in abandonment of the adjustment application (unless an applicant is an H or L visa holder and maintains H or L status). For eligible spouses of USCs, the I-130 immigrant petition and the I-485 adjustment of status application may be filed concurrently along with the ancillary I-765 (employment authorization document (EAD) and I-131 (advance parole) applications, allowing for speedier adjudication. USCIS is required to adjudicate the work card or EAD within 90 days, 21 and most applications for advance parole travel permission are adjudicated within 60 to 90 days. In most jurisdictions around the country, USCIS calls adjustment of status applicants for interview within six months of filing. An applicant for adjustment of status and the USC petitioner are entitled to have counsel present at their interview with USCIS. 22 While there is no appeal of a denial of adjustment of status by USCIS, one may seek a motion to reopen or reconsider under 8 CFR 103.5 and review by an IJ if the FN is placed in removal proceedings. For those not eligible to file for adjustment of status, consular processing may be the next best option. If a couple already is married and the intent is for the foreign spouse to immigrate to the United States, then consular processing is the mechanism to get him or her to the United States. Similarly, if a foreign spouse is physically present in the United States and is not eligible for adjustment of status due to a prior entry without inspection or other eligibility issue under INA 245(c) or 212(a), then consular processing may be the only option. Assuming the USC spouse resides in the United States, he or she would first file the I-130 with the appropriate USCIS regional service center. Once approved, USCIS forwards the petition to the DOS National Visa Center (NVC). The NVC requests and processes the immigrant visa paperwork (including forms DS-230 and I-864) and collects the required identity documents and police clearance letters. Once the file is complete, the NVC schedules the immigrant visa interview at the appropriate consulate facility abroad and generates the interview notice. From that point, the file is forwarded to the U.S. consulate that will conduct the interview and eventually (hopefully) grant the immigrant visa. There is no right to counsel at an immigration visa interview. While an applicant may seek an advisory opinion on a legal issue from the Visa Office Advisory Opinions Division, there generally is no judicial review of immigrant visa denials at U.S. consular posts. 23 Consular processing works particularly well when the USC spouse is residing abroad. If the USC has been legally resident in the consular district for at least six months, and if the foreign spouse is likely to be able to remain in the country for the time it normally takes to process the immigrant visa, direct filing of the I-130 with the U.S. consulate may be possible. 24 The petitioner must be a USC to use the direct filing process. Consular officers may not accept Form I-130 petitions from LPRs, except when acting on the petition is in the national interest, or if an emergent or humanitarian situation exists. In very limited situations, consular officers may consider accepting an I-130 petition even if the USC spouse has not resided within the consulates jurisdiction for at least six months. When contemplating a direct filing of an I-130 petition with a U.S. consulate abroad, counsel should carefully review the information available on the embassy or consulates website and confirm the appropriate procedures by contacting the embassy or consulate directly prior to recommending any particular course of action.
19 20
8 CFR 274a.12(c)(9). 8 CFR 245.2(a)(4)(ii). 21 8 CFR 274a.13(d) 22 INA 292; 8 CFR 1240.3. 23 But see Administrative Procedure Act sec. 702, Pub. L. No. 79-404, 60 Stat. 237, 238; (codified at 5 USC 55159, 701 06, 1305, 3105, 3344, 5372, 7521). 24 9 FAM Appendix N200.
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THE VERSATILE K-1 VISAWHY (OR WHY NOT) SELECT THE K-1 PATH? The K-1 Fianc visa represents one option available to a FN marrying a USC and seeking lawful residence. As with other options in this context there are advantages and disadvantages to this route, and all of these should be considered in strategizing for the best option. The different paths and their various advantages and disadvantages should be presented to the client. As practitioners, we may have certain favorite strategies, or we may automatically think that the client would not opt for a particular path, but it is important to present the various strategies directly to the client so they can weigh in with their thoughts, questions, and concerns regarding the choice of path; the decision is ultimately theirs. Very briefly, a fianc visa process entails submitting a fianc petition to the USCIS with the required documentation and obtaining approval, which is then sent to the NVC and ultimately to the U.S. consulate where the FN will have an interview. If approved, the fianc visa will be issued, and the FN can enter the United States. The FN is required to marry the USC petitioner within 90 days of entry 25 and then must file an application for adjustment of status to receive lawful resident (conditional) status. There are several disadvantages to this process. One that exists presently is the lengthy processing times. USCIS processing times for the fiance petition are currently five months, and then you have to add on to that the NVC processing time and the consular processing time, which vary depending upon the particular post. However, given all three steps, one can expect a processing time of eight months or more. For many couples, this is simply not an acceptable timeframe to wait to be together and live in the United States as a couple. Note that these lengthy processing times did not always exist. In the past, these petitions were fasttracked, recognizing the nature of the petitionan engaged couple who wish to be married, and would take perhaps 4 months or sobut those days are gone at least for now. When these timeframes are presented to a couple, that alone may deter them from taking this route. However, for some couples it may not be a big problem. Sometimes, the FN needs time to place his or her affairs in ordere.g., sell properly, provide notice at a job and the likeand will not be bothered by the processing times. As mentioned above, that is why it is important to advise clients of all the options. For some people, the K-1 may be a totally unacceptable choice, but it might be a perfect path for someone else even given the lengthy waiting times. Another consideration is the fact that the parties have to go through two complete processesthe first in obtaining the K-1 visa, and then the second in applying for adjustment of status in the United States. The bureaucracy may be more than they wish to deal with once, let alone twice. Furthermore, they would incur additional lawyer and filing fees that may not be in their budget. Other options may be pursued and finalized with only one process and, therefore, may be more attractive to the couple. Note that although the adjustment of status application must be submitted in the United States, often the interview is waived, although that is discretionary with the reviewing officer. Nonetheless, the subsequent adjustment filing requires more paperwork, documentation, fees, and the like that the couple may wish to avoid by pursuing a one-process option. Other factors to consider are that the FN will be applying for the K-1 visa at a U.S. consulate abroad without the benefit of counsel being present; the attendant difficulties in communication; obtaining review of negative decisions; and significant delay. The K-1 visa also has some inflexible restrictions attached to it. Specifically, the marriage must take place within 90 days of entry 26 Secondly, and more importantly, an FN who enters the United States on a K-1 visa is ineligible to adjust status to that of an LPR on any basis other than the marriage to that K-1 petitioner. 27 The K-1 does have some advantages. One is that it enables the couple to easily marry within the United States without the FN entering as a visitor and then returning home or requiring the petitioner to travel abroad to marry. It also allows them to go through the process without the USC traveling to the foreign country and also allows, at least for the final step of the process, for the FN to have the benefit of counsel with them in the
25 26
INA 101(a)(15)(K)(i). Id. 27 INA 245(d).

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United States with the options of communication and review that exist within the United States. Another advantage is the fact that it is a very clean, straightforward process enabling the FN and the petitioner to follow all the rules as the authorities intend them to be followed. This fact may provide peace of mind and a level of comfort to couples that other options may not. One very important point and a great advantage in certain circumstances pertains to children of K-1 visa holders who also wish to immigrate. In addition to the K-1 spouse, unmarried children under the age of 21 can receive K-2 visas, enter the United States, and adjust status. The distinct advantage of the K-1 over other options in this regard is that the child can obtain the K-2 and adjust status in the United States prior to the age of 21. 28 USCIS has clarified that the K -2 visa allows for adjustment of status without demonstrating a stepparent/step-child relationship (which is required to be created under the age of 18) and that it is available to K-2 visa holders under the age of 21. It is also noted that at least in one appellate court case, 29 it was held that in order to adjust status, all that is required is that the application for adjustment is filed prior to the K-2s 21st birthday rather than adjudicated by that date. This is clearly a very significant advantage. These are some of the main advantages and disadvantages in pursuing the K-1 fianc route. However, depending upon the particular facts and concerns (family, cultural, timing, and the like) of your clients, there could be many other considerations to take into account. It is very important before advising on any particular strategy or course of action for a couple to ascertain all the facts, including, significantly, any issues relating to children. Advance knowledge of such information is essential in mapping out a complete and proper longterm strategy for your clients. THE K-3/K-4 As noted above, while an I-130 Immediate Relative Petition is pending, it may be difficult, if not impossible, for the FN and his or her accompanying children to obtain permission to enter the United States, even for short visits. The current reported processing time 30 for most I-130 Immediate Relative Petitions is five months, but in reality, it can take much longer. Add to that processing times at U.S. consulates abroad, and family separation can each reach up to a year or more. The K-3 and K-4 categories were created in order to provide a remedy for this potentially long separation. The K-3 visa provides the ability for spouses of USCs to travel to the United States before an I-130 is approved. The K-4 visa allows the qualifying children of K-3 visa holders to accompany them. The K-3 visa category is only available to spouses of USCs who are the beneficiaries of pending I-130 petitions. 31 The K-4 is only available to accompanying unmarried children under the age of 21. 32 To apply for K-3/K-4 status, an I-130 Petition for the FN spouse must first be filed with USCIS. 33 Then, an I-129F petition must be filed with USCIS. No separate I-130 or I-129F petitions need be filed for the K-4 children. Once the I-129F petition is approved, USCIS will forward the petition to the National Visa Center (NVC), which then will forward the petition to the U.S. consulate with jurisdiction where the K-3 and K-4 visa will process. While the K-3 sounds like a very attractive option, it can be elusive. If the I-130 is approved and sent to the NVC before I-129F is approved or before the NVC sends the I-129F to the consulate, the I-129F will be administratively closed. Accordingly, when I-129F K-3 processing times near or equal I-130 Immediate Relative Petition processing times, filing the I-129F will likely be a futile effort.
See 8 CFR 214.2(k); Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010); and USCIS Memorandum, Adjustment of Status for K-2 Aliens (Mar. 15, 2007), published on AILA InfoNet at Doc. No. 07040618 (posted Apr. 6, 2007), available at www.aila.org/content/default.aspx?docid=22050. 29 Carpio v. Holder, 592 F.3d 1091, 1099 (10th Cir. 2010). 30 Service center processing times are posted on the right-hand side of the AILA InfoNet homepage, available at www.aila.org. 31 INA 101(a)(15)(K)(ii); 8 CFR 214.2(k)(7). 32 INA 101(a)(15)(K)(iii); 8 CFR 214.2(k)(7). 33 While the I-129F form instructions require that the I-129F be filed with proof that the I-130 has been filed, the USCIS website indicates that the Form I-797 receipt notice for the I-130 petition must be included with the I-129F petition.
28
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Current I-129F processing times equal I-130 processing times. However, this may not always be the case. When and if the K-3 and K-4 are actually obtainable, they carry some additional benefits. K-3 and K-4 nonimmigrants are authorized to work, incident to status. K-3 and K-4 nonimmigrants must, however, apply for work authorization documents to evidence their work authorized status. 34 K-3 status holders may apply for adjustment of status while the I-130 is pending or after approval. K-4 children may file for adjustment of status with a concurrently (or after a previously) filed I-130, provided the I-130 is filed before the child turns 21. K-3 and K-4 status holders in the United States may travel abroad and return using their K-3 or K-4 visa. Also, K-3 and K-4 visa holders are not required to maintain a foreign residence that they do not intend to abandon, and they will not abandon a pending adjustment of status application by traveling abroad and returning in K-3 or K-4 status. Accordingly, K-3 and K-4 visa holders do not require advance parole in order to travel abroad and return to the United States. 35 The K-3 and K-4 are not without drawbacks, however. As with the K-1, a person who entered the United States in K-3 or K-4 status cannot adjust status on any other basis. 36 Nor can a person in K-3 or K-4 status change to another nonimmigrant status. 37
34 35
8 CFR 214.2(k)(9). 8 CFR 245.2(a)(4)(ii)(C). 36 8 CFR 245.1(c)(6)(ii). 37 8 CFR 248.2(a)(2).

PREPARING YOUR CLIENT FOR A DIFFICULT MARRIAGE INTERVIEW

by James W. Austin *
Preparing your clients for a spouse petition interview is a simple, routine procedure. However, the more a couples marital relationship deviates from the officers imaginary norm, the more likely it will undergo additional scrutiny. The chances that the couple will be subjected to separate and intensive interviews increases if you are an aggressive practitioner who tells clients to not let the government decide how they structure their marriage. Atypical relationships, uncommon marital circumstances, and hard-headed clients can all lead to the need to prepare for a long and detailed interview. Several different names have been given to what can be extensive and lengthy marriage interviews. Stokes interview, 1 marriage fraud interview, 2 or just plain fraud interview have all been used to describe the appropriate government exercise of detecting fraudulent marriages. As long as you are convinced the marriage is not a sham, and the union meets the requirements of a marriage under the immigration laws, it is your job to defend your clients lifestyle choices and assist them toward an approved petition. WHEN TO EXPECT A FRAUD INTERVIEW Fraud interviews are usually initiated after the government detects certain characteristics with the parties or their relationship. There are two good sources for finding the red flags that may trigger a fraud interview; the U.S. Citizenship and Immigration Services (USCIS) Fraud Referral Sheet 3 and the day-to-day experiences of you and your fellow practitioners. Although the purpose of the Fraud Referral Sheet is to forward a case for further investigation, the Sheet lists dozens of useful indicators of behavior or events considered suspect by USCIS. The factors cited on the Fraud Referral Sheet include: Multiple applications/petitions by single applicant/petitioner; Short time between entry and marriage; Unusual marriage history; Children born during marriage to other parent; Unusual or large age discrepancy between spouses (when found in conjunction with other indicators); Unusual associations between family members; Unusual cultural differences; Low employment/financial status of petitioner; and Previous marriage to foreign nationals. USCIS officers are cautioned to not solely rely on just one specific factor, especially if the suspect fact is a large age difference between the petitioner and beneficiary. However, local practitioners may not be so circumspect in what they feel can trigger a hard interview. Tap into the experience of your colleagues. Local lore will often be specific to the quirks and focus areas of specific examiners.
James W. Austin is a partner with Austin & Ferguson, LLC, a firm exclusively practicing immigration and nationality law. With more than 10 years of teaching immigration law at the University of Missouri-Kansas City, he was the 2010 recipient of the Elmer Fried Excellence in Teaching award. Mr. Austin serves as an AILA mentor in several categories is the past chair of the National Benefits Center Liaison Committee, a former chapter chair, and a frequent speaker at regional and national conferences. 1 From Stokes v. INS, No. 74 Civ. 1022 (S.D.N.Y. 1976), which required the New York offices if legacy Immigration and Naturalization Service (now, effectively, U.S. Citizenship and Immigration Services (USCIS)) to adequately document the interview process and advise applicants in writing of their rights and suggested evidence to prove their relationship. 2 Adjudicators Field Manual (AFM) ch.15.4(a)). 3 USCIS Internal Form, Fraud Referral Sheet, published on AILA InfoNet at Doc. No. 10012861 (posted Jan. 28, 2010).
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Screening your clients during the initial consultation for the likelihood of a fraud interview is always a good practice. Also, when setting your fees, fraud interview cases almost always require more time and follow-up work. Remember, however, that separate interviews can occur even in the absence of the normal indicators. Your perfectly clean couple may still be interviewed separately as training for new officers or as a way for an over-staffed field office to fill slack time. PREPARING YOUR CLIENTA SUGGESTED DIALOGUE While some attorneys only do a hard prep with clients when fraud indicators are present, others prepare every couple before their interview. The reasoning behind this is simple: it is better to be prepared than to have to clean up a mess later. Just as there is no limit to the potential questions USCIS can pose to your clients, there is also no limit on the advice an attorney can dispense. What follows is a basic outline of the advice an attorney should impart to a client before undergoing a fraud interview. You May Have a Hard Interview, and Here Is Why. Describe the practical handling of a fraud interview and let them start getting comfortable with the thought that they might be individually questioned. Remind the parties that the interview may be videotaped so that they are not intimidated by an unexpected event. They should know that the videotape of the interview is a positive factor because it also helps ensure the professional behavior of the officer. Be honest with your client about why you feel USCIS may put them under close examination. Do not be timid about discussing topics that are sometimes considered socially incorrect. If your experience tells you that mixed-race marriages usually receive extra scrutiny (a recognition that USCIS officers might possibly hold prejudices contrary to USCIS policy), then convey that information to your clients. Do the same with any other circumstances that may cause USCIS concern, such as educational/economic class disparities or unusual living arrangements. Telling a couple that their 30-year age difference might raise government suspicions is not telling them something they have not already considered. Having the conversation will give you a good indication of their commitment and how they will respond to the examiner. Should circumstances warrant, warn the petitioner that threats of fines and jail time may be used in an effort to have the petition withdrawn. Further advise that if the marriage is real, then they have nothing to fear. Not only does this help you gauge the resolve of the petitioner to continue with the process, but openly discussing the possibility helps to reduce the intimidation level of the government-issued threats. Is Everything on the Forms Accurate? USCIS can access a variety of information sources, including several private computer data-mining services. Through these outside sources, USCIS can obtain information, such as public records, lease information, credit applications, and requests made for public assistance. It is not unusual for people to give inaccurate address, wage data, or family information on credit or benefit applications, especially if the couple is of limited financial means. Question your clients on any past use of other addresses on any application or record. Is the petitioner currently receiving public benefits or subsidized housing? Has he or she applied for them in the past? If there is incorrect information floating around in these records, then spot it now. For example, if the addresses on the Form G-325A, Biographic Information, are not exactly accurate, then take an amended version to the interview and be ready to explain any discrepancies between the G-325A and other addresses located by USCIS. They Can Ask You About Anything, but Rarely About Your Intimate Relations. Although some officers recite questions from a script, there is no limit to the potential topics that they can explore. Memorizing vital facts is not adequate preparation. You can demonstrate this with a short Q&A session during your interview preparation time. Ask a sample question, then develop follow-up questions based on each new response. For example: Q: When was the last time you and your wife ate out with a non-family member? A: Last Friday.
PREPARING YOUR CLIENT FOR A DIFFICULT MARRIAGE INTERVIEW
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Q: Who was at the dinner? A: Me, my wife, and a friend. Q: What was the friends name? A: Willie Beale. Q: How did you meet Mr. Beale? A: At my work. Q: When did your wife first meet Mr. Beale? A: At my work. Q: When was that? When asking the questions, do not allow the other spouse to answer or even talk. No exceptions. Demand an actual answer to each question. Be firm in your demeanor and keep digging for one or two minutes. This exercise will direct their attention to what may be in store for them at the interview. Listen to the Question, then Answer That Question. Do not allow clients to start an answer with some rambling explanation leading up to a possible future answer. If the question is closed-ended and calls for a direct answer, then the answer is usually yes, no, I dont know, I dont remember, I think ..., I dont understand your question or Im confused if the question is not simple and clear. Answer the question. Then, give the explanation if one is needed. Tell the Truth Whether You Like the Truth or Not. Do Not Give an Answer Just Because You Think It Is What the Officer Wants to Hear. Even one lie can quickly lead to another in support of the first lie. Once that happens, you have a very big problem. Do not try to hide negative factors in the relationship. There are reasons why people have separations, no joint property, separate tax returns, and have not told their family about the marriage. Admit these bad indicators and be ready to give an explanation. If You Do Not Know an Answer, then Say You Do Not Know. If You Are Unsure or Guessing, then Say You Are Guessing. Nobody remembers everything, and part of what is remembered will be incorrect. If your client is unsure, have them say so. There is no limit to the question topics that can be explored. Let the officer move on to other answers for comparison. Do Not Say a Document Exists When It Does Not. Do Not Exaggerate Anything! There will be opportunities to submit additional documents after the interview. There is no reason to be flustered if the officer asks for something unavailable at the interview. Also, do not misrepresent what a document says. At the end of the interview, your client may be asked to produce any document that was discussed. The document should exactly match any statement made during the interview. Do Not Accept an Officers Statement if Part of It Is Not Correct. Sometimes, an officer will assume or misstate a fact when asking a question. For example, if the officer asks, So, you fixed your wifes breakfast Monday before she went to work. Who did the dishes? If the answer is, She did, then he has also admitted to that on Monday, he fixed breakfast for his wife and that she worked. If any fact in the question is incorrect, such as if she did not work Monday, then fix the error before answering the question. Keep Relaxed and Focused. People are not accustomed to thinking and answering questions for an extended period of time, no matter how polite the questioner. We are simply not accustomed to being interrogated. After fifteen minutes of specific questions, fear mounts and anxiety sets in. The interviewee wants to leave the room and, consequently, gives thoughtless and sloppy answers. Most avoidable inconsistencies happen in the last portion of the interview. Tell your clients that when they start getting tired of the questioning, they should
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take a very deep breath, sit up straight, stomp their heels on the floor, and force themselves to concentrate on the very next question and an honest answer. If You Know You Gave an Incorrect Answer, Go Back at any Time and Change It. Clients should know that if they lie, or make a mistake, then they must fix it. The sooner the better, but at any time it is appropriate to say, Lets go back to the question about... At any time, they can say, Stop a minute, and then talk about the question of concern from ten minutes earlier. Fixing the answer is more important than whatever reason is given for needing to make the correction. They can say they were confused, thinking of some other event, momentarily brain dead or lied. Whatever the reason, correct the answer. Get a Good Nights Sleep. Come to the Interview Rested. They usually will get little sleep the night before, but it never hurts to give the advice anyway. Also, after a hard interview preparation, it serves as a reminder that you really are concerned about their welfare. ATTORNEY ROLE IN A FRAUD INTERVIEW Just as clients must prepare for a long interview, so must the attorney. Fraud interviews often exceed an hour, so inform your office that you may be unavailable for a longer than normal period of time. Bring sufficient writing materials. If a break is taken during interview, such as when the spouses switch places, consider that any discussion you might have with the next interviewee may be viewed by USCIS as an intentional hindrance of its attempt to verify the parties relationship. The attorney is a perpetual scribe during the interview in anticipation that USCIS may later try to disallow the petition. A Notice of Intent to Deny (NOID) may soon be issued if sufficient inconsistencies result from the interview. The attorneys detailed interview notes are irreplaceable when responding to the NOID. Since most NOIDs consist only of negative factors, it is not uncommon that for every inconsistency noted by the officer in the NOID, the attorney can respond with ten examples of consistency. This ability to show overwhelming positive results, along with reasonable explanations for the inconsistencies, forms the foundation of the response to the NOID. In many cases, the USCIS officer will wish to limit the attorneys role in a fraud interview to that of just an observer. While observation and note-taking are vitally important tasks, this does not negate the other useful services available when an attorney is present. Different attorneys hold widely divergent opinions of what actions constitutes proper representation during a fraud interview. Obviously, a tactful interruption to correct a misunderstanding or a substantial misstatement by the officer can benefit both the client and the examiner. Dealing with inappropriate questions or behavior of the officer will also, although hopefully infrequently, fall within the range of actions an attorney may take at a fraud interview. Intervention by an attorney can include politely asking the officer if the line of questions are appropriate, instructing the client that he or she need not answer, and in serious cases, stopping the interview and requesting to consult a supervisor. The attorney can submit a Freedom of Information Act request for the videotape of the interview. Even the act of verbally requesting the officer to preserve the video can alter the tenor of an interview. If a timely FOIA request later shows that the video was deleted, the erasure of what you consider exculpatory evidence adds substance to later litigation.
IGNORING FAMILY TIES: LGBT COUPLES AND CHILDREN

by Noemi E. Masliah and Scott Titshaw *
Although the homosexual ground of exclusion was eliminated from the Immigration and Nationality Act (INA) in 1990, same-sex marriages, civil unions and other legally recognized family relationships continue to go unrecognized by the United States federal government and, by extension, United States immigration laws. Increasing use of assisted reproductive technology (ART) by same and different sex couples has also confounded the Department of State (DOS) and other officials as they routinely ignore very real, legally recognized parent-child relationships. This lack of recognition is more pronounced today in light of the important progress that has been made in other legal, social, political and even scientific arenas, progress which has given gay and lesbian families formal structures. This article discusses the advances made by lesbian and gay couples in creating legally recognized families, how our countrys immigration laws have not been adjusted to accommodate these advances, and the future likelihood for reconciliation. SAME-SEX COUPLES ARE GETTING MARRIED The past several years have seen dramatic advances in the rights of same sex couples to enter into staterecognized marriages. Since 2003, five U.S. states and the District of Columbia have begun to recognize (and continue to recognize) same-sex marriages. 1 In addition to the states that issue marriage licenses to same-sex couples, Rhode Island, New York, and Maryland will recognize same-sex marriages celebrated elsewhere. 2 California was actually the second state to recognize same-sex marriages, following the California Supreme Courts decision in In re Marriage Cases, 43 Cal. 4th 757 (2008), but following the passage of Proposition 8, new same-sex marriages have not been recognized in California since January 2009.
Noemi E. Masliah is a partner in the law firm of Masliah & Soloway, PC with offices in New York City and Los Angeles. She received her J.D. from the Benjamin Cardozo School of Law, Yeshiva University. She has been exclusively engaged in the practice of immigration law since 1980 and has spoken and written frequently on a broad range of immigration topics. She has received several community awards for her activism in the field. One of the founders of Immigration Equality, Ms. Masliah is also a co-author of the Uniting American Families Act. Ms. Masliah is currently a trustee of the American Immigration Council. She may be contacted at noemi.masliah@masliah-soloway.com. Scott Titshaw is a professor at Mercer University School of Law. He previously practiced immigration and international business law for 12 years at Arnall Golden Gregory LLP (AGG) in Atlanta, where he and AGG won awards from both the Stonewall Bar Association of Georgia and the ACLU of Georgia based on his pro bono work. Mr. Titshaw has served on the national board of Immigration Equality and on several national committees of AILA. He is also a past president of the Stonewall Bar Association of Georgia and a past chair of AILAs Atlanta Chapter. Mr. Titshaw earned a J.D. cum laude from the University of Georgia School of Law and an LL.M. magna cum laude from the Universitt Hamburg in Hamburg, Germany. His most recent publications are The Meaning of Marriage: Immigration Rules and Their Implications for SameSex Spouses in a World Without DOMA, 16 Wm. & Mary J. Women & L. 537 (2010); Sorry Maam, Your Baby is an Alien: Outdated Immigration Rules and Assisted Reproductive Technology, 12 FLA. Coastal L. Rev. 47; and A Modest Proposal: to Deport the Children of Gay Citizens, & etc.: Immigration Law, the Defense of Marriage Act and the Children of Same-Sex Couples, 25 Geo. Immigr. L.J. __ (forthcoming 2011). 1 Massachusetts became the first state to make same-sex marriages legal, as a result of the Supreme Judicial Court of Massachusetts ruling in Goodridge v. Department of Public Health 798 N.E.2d 941 (Mass. 2003). The District of Columbia and four other states, Connecticut, Iowa, Vermont, and New Hampshire, have joined Massachusetts and now issue marriage licenses to same sex couples. See Kerrigan, 798 A.2d 407 (Conn. 2008); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); A. Goodnough, With Victories, Gay Rights Groups Expand Marriage Push, N.Y. Times, Apr. 8, 2009, www.nytimes.com/2009/04/08/us/08marriage.html (describing Vermonts legislature overriding Governor Jim Douglass veto of that states same-sex marriage bill); A. Goodnough, New Hampshire Legalizes Same-Sex Marriage, N.Y. Times, June 4, 2009, www.nytimes.com/2009/06/04/us/04marriage.html; see also National Conference of State Legislatures, Same Sex Marriage, Civil Unions and Domestic Partnerships (2010) [hereinafter NCSL Marriage Report], available at www.ncsl.org/IssuesResearch/HumanServices/SameSexMarriage/tabid/16430/Default.aspx. 2 NCSL Marriage Report, Id.
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State recognition of same-sex marriages does not make those couples eligible for the immigration rights and benefits provided heterosexual couples. Even though U.S. Citizenship and Immigration Services (USCIS) has long held that the validity of a marriage is ordinarily judged by the law of the place where it is celebrated, 3 this does not apply to same-sex marriages. If a marriage is recognized in Massachusetts, it is only recognized for immigration purposes if it is a different-sex marriage. This disparate treatment is the intended result of Congresss 1996 attempt to clarify the federal law concerning recognition of marriage by enacting the Defense of Marriage Act (DOMA), which contains statutory definitions of marriage and spouse. 4 Under DOMA, for a state-recognized marriage to qualify as a marriage for purposes of federal law, one partner must be a man, and the other must be a woman. 5 Therefore, marriages between same-sex partners in states such as Massachusetts, Connecticut or California (or in a country such as The Netherlands, Belgium, Canada, Spain or Norway 6 ) will not currently provide any immigration benefits in the United States. It must be noted that a civil union, available to same-sex couples in many jurisdictions, 7 is not deemed to be a marriage under the INA. Here, couples who have entered into civil unions, be they same-sex or oppositesex, are treated equally: neither is recognized by the U.S. immigration laws. REPEAL OF DOMAWHAT IT WOULD MEAN FOR U.S. IMMIGRATION LAW Recently, there has been a lot of talk about repealing DOMA. Several leading 2008 presidential candidates made election promises to repeal the federal definition section of DOMA, and President Barack Obama actually favors the repeal of DOMA in its entirety. 8 Even the original author of DOMA, former Georgia representative Bob Barr, has now come out in favor of its repeal. 9 Several pending court cases have also challenged its validity on various grounds. 10 If DOMA were repealed, there would suddenly be hope for many bi-national same-sex couples who wish to live together in the United States. However, the situation would still be very complicated. 11 As a threshold test for receiving any immigration benefits, a couple would have to marry (or be engaged to marry in the case of K-1 visas) in a jurisdiction that recognizes marriage rights for same-sex couples. That is the one absolutely clear part of the equation.
See, e.g., Matter of Salvador-Fuentes, 12 I&N Dec. 237 (BIA 1967); Matter of Agbulos, 13 I&N Dec. 393 (Dist. Dir. 1969); Matter of A, 13 I&N Dec. 824 (BIA 1971); Matter of Annang, 14 I&N Dec. 502 (BIA 1973); Matter of Wong, 15 I&N Dec. 209 (BIA 1975); Matter of Lwin, 16 I&N Dec. 1 (BIA 1976); Matter of Mujahid, 15 I&N Dec. 546 (BIA 1976); Matter of Ceballos, 16 I&N Dec. 765 (BIA 1979). 4 Pub. L. No. 104-199, 110 Stat. 2419 (1996). 5 Id.
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Currently same-sex marriage is recognized in 11 foreign countries. Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden recognize marriage equality throughout their territory. International Progress Toward the Freedom to Marry, Freedom to Marry, www.freedomtomarry.org/pages/international-progress-towardthe-freedom-to-marry (last visited March 28, 2011). Lesbian and gay couples can also marry in Mexico City, and the marriages must be recognized in states throughout Mexico. D. Agren, Mexican States are Ordered to Honor Gay Marriages, Intl Herald Trib., Aug. 12, 2010, at 4. 7 E.g., New Jersey, Illinois, Oregon, United Kingdom, Hungary, Ecuador. 8 K. Naff, Hillary for President: Gay Voters are Right to Feel Reluctant about Clintons Bid, but She Represents Best Chance to Rid White House of GOPs Anti-Gay Agenda, Washington Blade, Dec. 21, 2007 (describing Clintons position in favor of repealing the federal definition section of DOMA as well as positions in favor of repealing DOMA in its entirety by presidential candidates John Edwards, Bill Richardson and Barack Obama). 9 B. Barr, No Defending the Defense of Marriage Act, L.A. Times, Jan. 5, 2009. 10 See, e.g., Gill v. Office of Pers. Mgmt., 699 F. Supp.2d 374, 397 (D. Mass. 2010) (challenging DOMA as applied in some non-immigration contexts); Perry v. Schwarzenegger, 602 F.3d 976 (9th Cir. 2010) (challenging the constitutionality of marriage discrimination in general). 11 See S. Titshaw, The Meaning of Marriage: Immigration Rules and their Implications for Same-Sex Spouses in a World Without DOMA, 16 Wm. & Mary J. Women & L. 537 (2010)) (analyzing in detail the immigration consequences of DOMAs repeal or invalidation).
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It is somewhat less clear how USCIS, DOS, Executive Office for Immigration Review (EOIR), and federal courts would treat those legally married same-sex couples if DOMA were repealed. However, it is likely that these legal marriages would be recognized for immigration purposes, at least if the couples live in the right states. While this question seems novel, there is actually precedent regarding recognition under United States immigration law of marriages that are recognized in some, but not all states. Generally, marriages valid in the jurisdiction where they are celebrated are recognized under United States immigration law, as long as they do not conflict with the strongly held public policy of the couples state of domicile. For instance, the BIA has long recognized a marriage that would have been prohibited as incestuous in the couples state of domicile as long as the marriage would not have been criminal in that state. 12 The BIA even recognized biracial marriages for immigration purposes in the case of a couple domiciled in Maryland in the 1950s when it was a crime for that biracial couple to marry in another state and return to live in Maryland. 13 In contrast to the decisions above, the BIA has bypassed the issue of state recognition with regard to polygamous marriages, ruling instead that those marriages violate a strong public policy of the federal government in opposition to polygamy. 14 In the pre-DOMA 1982 case of Adams v. Howerton, the Ninth Circuit Court of Appeals used a similar rationale to hold that a purported same-sex marriage was clearly outside the federal definition of marriage and spouse in the INA, regardless of its validity under Colorado state law. 15 If DOMA were repealed today, both Adams v. Howerton and the polygamy decisions could be distinguished on several grounds. First, they were decided at times when no United States jurisdiction would have recognized the marriages in question. Second, and more significantly, the INA contained specific provisions at the time of those decisions that demonstrated a federal public disapproval of polygamy and homosexuality. In the case of polygamy, the INA has made polygamy an express ground for exclusion since 1891. 16 Adams was decided at a time when the INA still barred any homosexual person from admission into the United States under the category of psychopathic personality or mental defect, 17 a bar that was repealed upon adoption of the Immigration and Nationality Act of 1990. If Congress were to overturn DOMA now, any argument relying on a strong federal public policy opposing recognition of same-sex marriage for immigration purposes would be very weak. However, there would still be a complex set of issues related to the legitimacy of marriages where celebrated and the strong public policy of various states of domicile, especially those states which have adopted state laws and constitutional amendments disapproving of marriage recognition for gay men and lesbians. 18 THE UNITING AMERICAN FAMILIES ACT Another option for providing equal opportunities for gay and lesbian bi-national couples is through the Uniting American Families Act (H.R. 1024/S. 424) (UAFA). UAFA was also included in its entirety in the
K. Abrams, Immigration Law and the Regulation of Marriage, 12 Benders Immigration Bulletin, 1421, 144142 (Oct. 15, 2007); See also e.g., Matter of DaSilva, 15 I&N Dec. 778 (BIA 1976) (recognizing a Georgia marriage between an uncle and his niece although they could not have legally married in New York, the couples state of domicile); Matter of Hirabayashi, 10 I&N Dec. 722 (BIA 1964) (recognizing a marriage between first cousins although it would not have been possible in their state of domicile, Illinois); and Matter of Zappia, 12 I&N Dec. 439 (BIA 1967) (refusing to recognize a South Carolina marriage of first cousins that would have been both void and subject to criminal sanction in the couples state of domicile, Wisconsin). 13 Matter of C, 4 I&N Dec. 632 (1952). 14 See e.g., Matter of H, 9 I&N Dec. 640 (BIA 1962). 15 673 F.2d 1036 (1982). (Colorados attorney general had actually issued an opinion that the marriage in Adams, which apparently resulted from a clerical error, was not valid under state law.). 16 Matter of H, 9 I&N Dec. 640 (BIA 1962), at 640. 17 Boutilier v. Immigration Service, 387 U.S. 118 (1967). 18 According to the National Conference of State Legislatures, 29 states have adopted state constitutional amendments defining marriage to exclude gay and lesbian couples. www.ncsl.org/programs/cyf/samesex.htm. (Hawaiis constitution was amended in a manner that was neutral towards the subject of same sex marriage; it merely clarified that the state legislature had the sole authority to make that determination.).
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Comprehensive Immigration Reform bill introduced by Senators Menendez and Leahy on September 29, 2010. 19 Representative Jerrold Nadler (D-NY) first introduced UAFA (then known as the Permanent Partners Immigration Act) in the House of Representatives in February 2000. He has reintroduced it in every Congress since, and Senator Patrick Leahy (D-VT) has introduced companion legislation in the Senate since 2003. In the 111th Congress, UAFA had 135 cosponsors in the House and 25 in the Senate, 20 and it appears to have more momentum than in the past. In 2009, the American Bar Association passed a resolution calling for Congress to enact legislation like UAFA. If enacted, UAFA would not change the definitions of marriage or spouse under the INA. Rather, it would add the term permanent partner to most sections of the INA where spouse now appears. The one significant exception, as UAFA currently stands, would be with regard to dependent spouses of nonimmigrant visa holders, who would still apparently have to resort to B-2 visas for the extent of their nonimmigrant stays in the United States. UAFA defines permanent partner as a foreign national who is: (1) at least 18 years old; (2) in an intimate relationship with the sponsoring adult United States citizen or permanent resident, in which both parties intend a lifelong commitment; (3) financially interdependent with that person; (4) not married or in a permanent partnership with anyone else; (5) unable to contract with that sponsor a marriage that is recognized under the INA; (6) and not a first, second, or third-degree blood relation. 21 ART, SURROGACY AND CITIZENSHIP TRANSMISSION TO CHILDREN UPON BIRTH ABROAD In addition to legal recognition of same-sex relationships, the increasing use of ART and surrogacy are breaking down the traditional assumption that all children are born with two parents, a genetic father and his wife, the genetic and gestational mother. 22 Obviously, the latter changes affect the children of both differentsex couples and same-sex couples, but they probably affect same-sex couples more. U.S. immigration and nationality law is lagging far behind state and foreign family laws, which have been wrestling for decades with novel issues raised by ART, surrogacy, and same-sex couples. 23 So far, the only attempts to address ART and the resulting parent-child relationships under the INA have been in the context of citizenship transmission upon birth abroad, and there the authorities are in disagreement. The DOS Foreign Affairs Manual (FAM) indicates that a genetic relationship is always required for a U.S. citizen to transmit citizenship to a child upon birth abroad. 24 Thus, according to the FAM, the parent-child relationship depends entirely on whose egg and sperm were used in the ART process. 25 The FAMs genetic essentialist approach leads to absurd and unfair results. For instance, if a United States citizen uses a donated egg to have a child with her foreign national husband, the child is not a citizen, even though the citizen planned the pregnancy, carried the child for nine months, gave birth to it, and was recognized as its legal mother for all other purposes. On the other hand, if the husband is a United States
Comprehensive Immigration Reform Act of 2010: S.3932. See www.immigrationequality.org. 21 H.R. 1024/S. 424. 22 U.S. immigration law did not even recognize adopted children until after World War II. Hutchinson, Legislative History Of American Immigration Policy: 1798-1965, at 51314 (1981). 23 See S. Titshaw, Sorry Maam, Your Baby is an Alien: Outdated Immigration Rules and Assisted Reproductive Technology, 12 Fla. Coastal L. Rev. 47 (analyzing in detail the immigration consequences of ART and surrogacy, and arguing that DOS and USCIS should adopt the more liberal view of the Ninth Circuit Court of Appeals in defining the parentchild relationships of children not born out of wedlock.) [hereinafter Titshaw, Sorry Maam, Your Baby is an Alien]. 24 See e.g., U.S. Dept of State, 7 Foreign Affairs Manual (FAM) 1446.2-2(c)(4) (2009) (The basic rule is that citizenship should be determined based on the man who provided the sperm and the woman who provided the egg.) 25 Id. 1131.4-2(b) (referring specifically to the issue of egg and sperm-donor identity as the key to citizenship transmission); id. 1131.4-2(c) (The status of the surrogate mother is immaterial to the issue of citizenship transmission.).
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citizen and his sperm is used, the child is a citizen even if it is the product of a foreign national surrogates egg and womb. Or, in many cases, even if the child is the product of an adulterous affair. The U.S. Ninth Circuit Court of Appeals, on the other hand, has focused on the different treatment of children born out of wedlock under INA 309 and of other children under INA 301. 26 Section 309 expressly requires a blood relationship for citizenship transmission to a child, while section 301 is silent on that issue. Reasoning that Congress actually intended the distinction that it made, the court refused to require a blood relationship for a foreign-born child to derive citizenship at birth from the U.S. citizen spouse of its biological parent. In the process, the court considered and expressly rejected the FAMs simple gene-based approach to this issue. 27 The Ninth Circuits distinction between the treatment of children born out of wedlock and others is the better approach. There is no reason why children who fall outside section 309 should be required to demonstrate a genetic link to a transmitting United States citizen parent if their parent-child relationship at birth is recognized under state or foreign family law. As the U.S. Supreme Court observed in De Sylva v. Ballentine, [t]he scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law, particularly where a statute deals with a familial relationship; there is no federal law of domestic relationships, which is primarily a matter of state concern. 28 The BIA has long deferred to family law definitions in other contexts under the INA. For example, courts and the BIA have generally focused on state and foreign law to determine whether a child was legitimate for immigration purposes. 29 Generally, if a childs birth was recognized as legitimate or in wedlock under the family law of the relevant jurisdiction, the BIA has recognized parent-child and sibling relationships, 30 even in cases involving polygamy, where the parents would be inadmissible as polygamists. 31 Distinguishing between the marriage itself and the resulting parent-child and half-sibling relationship, the BIA has explained that recognition or nonrecognition of the existence of a polygamous marriage depends on the purpose for which such recognition is invoked. 32 Unfortunately, since DOS has the final word with regard to determining most cases of citizenship transmission upon birth abroad, its misguided focus solely on the source of the sperm and egg currently deems many children of ART to be noncitizens and out of wedlock. Because birth certificates are the standard evidence of parent-child relationships, different-sex couples who employed ART or surrogates may not be questioned about their genetic relationships to children born abroad. But DOS is likely to question the genetic origins of a child whose birth certificate lists the names of two women or two men as its parents.
See Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005); Scales v. INS, 232 F.3d 1159 (9th Cir. 2000). These Ninth Circuit cases dealt with the children of old-fashioned nonmarital sexual relationships, but the court expressly rejected the FAM construction of a blood relationship requirement for U.S. citizenship transmission to a child born in wedlock, and their logic applies at least as strongly in cases involving planned pregnancies using ART. 27 Scales, 232 F.3d at 116566. 28 See, e.g., De Sylva v. Ballentine, 351 U.S. 570, 58082 (1956) (citations omitted) (looking to state family law in determining whether a child was legitimate, and, therefore, covered by the term children under federal copyright law). 29 Until the INA was amended in 1995, the current references to born in wedlock and born out of wedlock in INA 101(b)(1)(A)(D) referred to legitimate and illegitimate children. 30 See, e.g., In re Mohammed Alhaz Uddin, 2006 WL 3712446 (BIA 2006) (recognizing the stepparent-stepchild relationship between a mans first wife and his son by a second polygamous marriage); In re Fong, 17 I&N Dec. 212, 214 (BIA 1980) (referring to U.S. citizen as the legitimate child of his father and his mother, the secondary (concubine) wife in a polygamous marriage); In re Sandin-Nava, 14 I&N Dec. 88, 91 (BIA 1972) (finding that a U.S. citizen was the legitimate child of his fathers bigamous second marriage because the childs legitimacy, although not the marriage, was recognized in the relevant jurisdiction, California); In re Mahal, 12 I&N Dec. 409, 410 (BIA 1967) (recognizing the half-brother relationship of half siblings based on the valid Hindu polygamous Pakistani marriage of their mothers to the same man); but see In re Man, 16 I&N Dec. 543, 544 (BIA 1978) (denying a stepchilds petition on behalf of her fathers secondary wife or concubine). 31 INA 212(a)(10)(A). (Any immigrant who is coming to the United States to practice polygamy is inadmissible.) 32 In re H, 9 I&N Dec. 640, 641 (BIA 1962) (footnote omitted).
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ART, SURROGACY AND PARENT-CHILD RECOGNITION FOR PURPOSES OF IMMIGRATION Outside the citizenship transmission context, neither DOS nor DHS has published an opinion regarding parent-child relationship recognition for immigration purposes. The INA offers express definitions of the terms child and parent, enumerating certain qualifying categories for purposes of Titles I and II of the Act. 33 However, categories such as stepchild and child born in wedlock remain undefined. One thing is clear, however: The inclusion of stepchildren and adopted children within this list shows that there is no overarching genetic link requirement for parent-child recognition in this context. As described above, U.S. Supreme Court, BIA, and federal court opinions have recognized that it is appropriate to rely on state and foreign family-relationship categorizations such as legitimacy when interpreting undefined familial terms in federal legislation, including section 101(b) of the INA. 34 This deference to state and foreign law is particularly appropriate in the INA context since the goal of family unity has permeated immigration and nationality law since the first comprehensive Act passed in 1952. 35 Same-sex marriages raise one final issue where the INA refers to a child born in wedlock or a stepparent: Is the recognition of the children of same-sex marriages limited by DOMA, which establishes federal definitions of spouse and marriage as the legal union of one man and one woman? 36 Upon reflection, the answer is no. The federal definition section of DOMA was intended to do precisely what it says, to define the words marriage and spouse for federal purposes. Every indication in the House Judiciary Committee Report, the House and Senate debates, and the Presidential signing statement supports this very limited intention of DOMA. 37 The same Congress that enacted DOMA also acted to refuse same-sex couples domestic partnership recognition while allowing their legal recognition as co-parents, halting D.C. from granting benefits to same-sex domestic partners but refusing to prevent these same-sex couples from jointly adopting children. 38 Finally, reading DOMA to prevent recognition of parent-child relationships under the INA would raise serious issues of constitutionality, and the constitutional avoidance doctrine dictates that statutes be given any reasonable construction that avoids serious constitutional concerns. 39 While accepted canons of statutory construction and analogies to long-established precedent regarding legitimacy all support this approach, practitioners should proceed with caution until DHS and DOS stake out official positions. CIVIL UNIONS AND PARENT-CHILD RECOGNITION Because a civil union or legally recognized same-sex relationship is not a marriage, the term born in wedlock would not include the children of such relationships. Therefore, they would not qualify under Titles I and II of the INA on the basis of the definition in section 101(b)(1)(A). However, legally recognized legitimate children of two parents in a jurisdiction that recognizes civil unions or registered partnerships would not fit easily into the common understanding of born out of wedlock, either. Thus, the nonbiological children of U.S. citizenregistered partners would arguably be entitled to citizenship under section 301 if DOS abandons its genetic essentialist approach to that section. 40
See, e.g., INA 101(b)(1), 8 USC 1101(b)(1) (2006) (defining child for purposes of immigration benefits and waivers for purposes of Titles I and II of the INA); Id. 101(b)(2) (defining parent by reference to the definition of child in section 101(b)(1)). 34 See notes 2633 and accompanying text. 35 There is no doubt that the Immigration and Nationality Act of 1952, and the amendments of 1957, 1986 and even 1995, all focused on unifying or keeping families together, and particularly on a liberal understanding of parent-child relationships throughout immigration law. S. Titshaw, Sorry Maam, Your Baby is an Alien, 12 Fla. Coastal L. Rev. 47. 36 Defense of Marriage Act, Pub. L. No. 104-199, 3(a), 110 Stat. 2419 (1996). 37 See S. Titshaw, A Modest Proposal: to Deport the Children of Gay Citizens, and etc.: Immigration Law, the Defense of Marriage Act and the Children of Same-Sex Couples, 25 Geo. Immigr. L.J. ____ (forthcoming 2011). 38 Id. 39 Id. 40 Id.
33
WAS IT REALLY A SHAM MARRIAGE?

by Leslie Tuttle DiTrani *
A sham marriage is a marriage entered into for the primary purpose of circumventing the immigration laws 1 with no intent of establishing a life together. 2 While one goal of any alliance may be to reap immigration benefits, a sham marriage does not necessarily describe two people who marry for the benefit of a green card. This is a critical distinction and often an ambiguous one. A marriage is not necessarily a sham if the couple enters into it with the intent to obtain something other than or in addition to love and companionship from that life 3 As long as the primary intention at the inception of marriage is to establish a life together, a couple can also intend to gain other interests, tangible or not, without creating a sham. 4 A lack of evidence to support the couples intent to have a traditional marriage is not enough for the U.S. Citizenship and Immigration Services (USCIS) to find a sham marriage. In order to do so, the USCIS adjudicator must prove that the petitioner and beneficiary attempted or conspired to enter into a fraudulent marriage. This may include evidence that the couple misrepresented their union, perhaps triggered by inconsistencies in statements supporting the petition. USCIS is trained to look for facts that speak to the state of mind of the beneficiary and petitioner, and will pass judgment accordingly. Ultimately, USCIS reserves the right to determine a sham marriage. At the USCIS interview, the burden of proof lies with the beneficiary to establish that the married couple had the intent of establishing a life together at the time of marriage (or, conversely, that he or she did not attempt or conspire to enter into a fraudulent marriage). In assessing the evidence, USCIS will look for documentation that the marriage is bona fide. Such evidence includes but is not limited to: proof of comingling of assets, testimony, shared residence, proof that the beneficiary is listed as petitioners spouse on insurance policies, property leases, income tax forms and bank accounts, and other evidence of the couples courtship (e.g., photographs of the relationship over time). A sham marriage determination is a determination of ones state of mind and not of certain factors being met. FRAUDULENT-AT-INCEPTION Did the husband and wife intend to establish a life together at the time of marriage? Consider two people who dont speak each others languages, who met and visited during a summer visit to Hawaii, but could only communicate through hand-gestures. The couple married less than one week after a return visit to Hawaii. The marriage lasted for about a year where they shared a room in the beneficiarys sisters house. Sham marriage? The court held no, just a bad marriage. The immigration judge thought that it was implausible that the respondent, a woman with two children, would rush into marriage six days after returning with a man she hardly knew, and with whom she did not share a common language or cultural background. 5 The respondent did not take the husbands last name and the wedding was not a religious ceremony.
Leslie Tuttle DiTrani, Principal, ODonoghue & DiTrani, LLC, has been in private practice since 1994, concentrating in business and family immigration law. She was elected to the AILA New England Chapter, Executive Board, 200910, and has been co-chair of the Annual AILA New England Immigration Law Conference since 2007. She founded and continues to support the Cambridge Community Learning Center volunteer immigration clinic. She is a graduate of William Smith College, Geneva, NY; and Northeastern University School of Law, Boston. 1 Matter of Laureano, 19 I&N Dec.1 (BIA 1983). 2 Bark v. INS, 511 F.2d 1200 (9th Cir. 1974). 3 United States v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002). 4 Id.
5
Damon v. Ashcroft, 360 F3d 1085, 1089 (9th Cir. 2004).

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The court overturned the immigration judges substitution of her own image of a marriage. The court looked at the relevant evidence to determine the beneficiarys state of mind. Sung Hee, the beneficiary, presented substantial evidence that she and her husband intended to establish a life together at the time they were married. It didnt last, but the intention was there. She proved that there was a courtship even though by most standards a short one, there was a wedding ceremony even though it was not religious, they shared finances and a joint bank account before her husband, Scott took the family money for personal use, and they lived together, sharing a residence for over a year even though it was in a relatives home. While the circumstances may not be traditional, the intention was to establish a life together at the inception, at the wedding, at the beginning. Events after the wedding can be indicative of ones intention at the time the marriage was entered into, but if the parties can show that they intended to establish a life together, the fact that things went bad quickly thereafter is not material. 6 What Is Not a Sham Marriage? A marriage may be for the purpose of gaining a green card if the marriage was entered into in good faith with the intention to establish a life together. Just as marriages for money, hardly a novelty, or marriages among princes and princesses for reasons of state may be genuine and not sham marriages, so may marriages for green cards be genuine. An intent to obtain something other than or in addition to love and companionship from that life does not make a marriage a sham. Rather, the sham arises from the intent not to establish a life together. 7 Consider a couple where the U.S. citizen husband is disabled, and he met his spouse about 1 years prior through a friend. He needed a housekeeper and she needed a place to live. They married, and it was understood before the marriage that there would be no consummation of the marriage and that they would reside in separate bedrooms. The husband testified that he married his wife for the purpose of obtaining a housekeeper. The wife testified that while she was not in love with her husband, she liked him and he liked her; he had nobody, he was sick and she felt sorry for him; she decided to marry him and to take care of him. She decided when she married him that she would stay with him for as long as she lived. The court found no sham. On the contrary, the court stated that the reasons for the marriage appeared to be far sounder than exist for most marriages. Whether the marriage was consummated, whether the couple was in love, whether they even shared a bedroom was all determined not consequential in the face of what the court characterized as a valid and lasting husband and wife relationship. 8 Separating shortly after marriage, the court has held, is also not by itself determinative of a sham marriage. Couples separate, temporarily and permanently, for all kinds of reasons. Postmarital separation is relevant to a determination of whether the petitioner and his wife intended to establish a life together at the time that they were married. At best, however, any inference of lack of the proper intent drawn from postmarital separation is weak. 9 What Is a Sham Marriage? On the other hand, courts regularly sustain sham marriage findings where the parties fail to prove that they intended to establish a life together. For example, in Nakamoto v. Ashcroft, the state court of Hawaii annulled the marriage on the ground that the U.S. citizens consent to the marriage had been obtained by fraud. 10 Courts often find sham marriages where the parties testimonies on important points are inconsistent or contradictory. For example, in Matter of Phillis, 11 the U.S. citizen petitioner testified that he and the beneficiary had never resided together; the foreign national spouse said that she and the petitioner had lived
6 7
Id. Orellana-Blanco at 1151. 8 Matter of Peterson, 12 I&N Dec. 663 (BIA 1968). 9 Bark at 1200. 10 Nakamoto v. Ashcroft, 363 F.3d 874, 883 (9th Cir. 2004) 11 Matter of Phillis, 15 I&N Dec. 385 (BIA 1975).
WAS IT REALLY A SHAM MARRIAGE?
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together as husband and wife since the marriage. He said that he was unaware of her immigration status; she claimed that she had told him about her immigration status prior to the marriage. Further, the petitioner stated that he had never listed the beneficiary as his spouse on any documents nor had he contributed to her financial support. See also Nikrodhanondha v. Reno 12 where inconsistencies concerning residence, reason for separation, and no joint assets, liability or income resulted in a sham marriage determination. In contrast to the housekeeper/disabled husband scenario above, in King v. Holder 13 the court sustained a sham marriage finding where the U.S. citizen spouse, a homosexual man who was in a long-term committed relationship with another man and together had three adopted daughters, married the foreign national beneficiary as a favor to a friend who employed the beneficiarys mother as a caregiver. The basis for this marriage was not to create a life together, but rather to allow the beneficiary to become lawful permanent resident and then a citizen so that she could sponsor her mother for lawful permanent residency. This was clearly a sham marriage. Insufficient Evidence of a Valid Marriage Does Not Equate to a Sham Marriage. What Evidence Does Your Case Have? Intention to establish a life together is everything, and needs to be proved by a preponderance of the evidence. The cases make clear that the kind of life you actually establish is almost immaterial. The parties dont need to love each other, sleep with each other, or necessarily cohabit. You do have to prove that you intended to establish a life together. How do you do that? Holding yourselves out to the rest of the world as a married couple is a key element in showing you had the intent to establish a life together. The best evidence is that which is listed at 8 CFR 216.4(a)(5), which includes: (i) Documentation showing joint ownership of property; (ii) Lease showing joint tenancy of a common residence; (iii) Documentation showing commingling of financial resources; (iv) Birth certificates of children born to the marriage; (v) Affidavits of third parties having knowledge of the bona fides of the marital relationship, or (vi) Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States. See also Agyeman v. INS, which adds to this list: medical records showing the other spouse is the person to contact; telephone bills showing frequent communications between the spouses; and testimony or other evidence regarding the couples courtship, wedding ceremony, honeymoon, correspondences, and shared experiences. 14 But if you dont have any documentary evidence, one can demonstrate the intent to establish a life together solely through corroborating statements provided there are few inconsistencies and the story is credible. The case law does not require more.
12
Nikrodhanondha v. Reno, 202 F.3d 922 (7th Cir. 2000). King v. Holder, 570 F.3d 785 (6th Cir. 2009). Agyeman v. INS, 296 F.3d. 871, 88283 (9th Cir. 2002).
13
14
BEST OPTIONS WHEN A FAMILY-BASED PETITION OR APPLICATION IS DENIED

by Jonathan D. Montag, with contributions from Gregory Romanovsky *
You can get it if you really want, but you must try, try and try, try and try. In his famous song, 1 Jimmy Cliff may have been overly optimistic that we will always succeed at last. Nevertheless in this same spirit, this article provides some guidance on what next to do when, after helping your clients apply for a particular benefit, opposition comes your way and the application or petition is denied. I-130 PETITION The appeal of an I-130 Petition for Alien Relative is to the Board of Immigration Appeals (BIA). 2 The petitioner must file the appealnot the beneficiary. 3 It is filed on Form EOIR-29 from the Executive Office for Immigration Review (EOIR). 4 It is filed with the U.S. Citizenship and Immigration Services (USCIS) service center or district office where it is deniednot with the BIA, as would be the case when appealing an immigration judges decision. 5 The filing fee is currently $110. The appeal must reach USCIS within 30 days of the date on which the decision denying the petition was mailed to petitioner. All these rules are on the form. 6 There are several issues to address when confronted with the denial of an I-130. The main question to ask is whether you should try to save the underlying petition or whether it would it be better simply to re-file. While you are making this decision, consider that nothing precludes appealing the initial denial of the I-130 to the BIA and simultaneously filing a new I-130. Here are some considerations. The Priority Date Although preserving a priority date is not an issue in immediate relative petitions as a visa is immediately available, 7 preserving the priority date can be very important in preference category petitions. If you forgo appealing and file a new petition, you lose the priority date of the first petition, which could mean losing several years of waiting time depending on how long the I-130 was pending adjudication. If a child is involved as a beneficiary or a derivative beneficiary, the child could age out before a second petition becomes current.
Jonathan D. Montag is a State Bar of Californiacertified immigration and nationality law specialist. He chairs the State of Californias Immigration and Nationality Law Advisory Commission. He was an AILA San Diego chapter chair. Mr. Montag has successfully argued cases before the district court for the Southern District of California and the Ninth Circuit Court of Appeals and has testified numerous times as an expert in immigration law. Mr. Montag was named a 2005 Attorney of the Year by California Lawyer Magazine and has been named a San Diego Super Lawyer for immigration from 200711. Gregory Romanovsky started his legal education at Moscow State University Law School in 1992. He received his J.D. from Boston College Law School in 2000. As a solo practitioner in Boston and a partner at a New York law firm, Mr. Romanovsky has practiced U.S. immigration law exclusively since 2001. He currently serves as chair of the Litigation Committee of the AILA New England Chapter. In addition to his work at Romanovsky Law, Mr. Romanovsky has been working with the Mayors Office for the City of Boston to provide free immigration consultations to recent immigrants. 1 You Can Get It if You Really Want, Island Records, 1972.
2 3
8 CFR 1003.1(b)(5). Matter of Sano, 19 I&N Dec. 299 (BIA 1985). 4 8 CFR 1003.3(a)(2). 5 Id. 6 www.justice.gov/eoir/eoirforms/eoir29.pdf. 7 INA 201(b)(2)(A)(i). Immediate relatives include the spouses, children under age 21, and parents of U.S. citizens. If petitioning for a parent, the U.S. citizen must be at least 21 years of age.
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Processing Times for an Appeal Versus a New I-130 Petition The BIA does not publish its processing times, but experience shows that appeals can take more than a year before the BIA renders a decision. 8 As USCIS adjudicates most I-130 petition categories in five months or less, 9 there is a time advantage in re-filing an I-130 rather than relying on the appeal process in most, but not all, visa categories. The Likelihood of Success on Appeal If USCIS was correct in denying the petition because of defects at the time of filing, appeal is futile and re-filing is appropriate. For example, an I-130 must be approvable at the time of filing. If it was not, then appealing is fruitless and re-filing after curing the defect is the proper course of action. For example, in a marriage-based petition, the petitioner and beneficiary must be legally married at the time of filing. If the petitioner or beneficiary was previously married and not divorced before remarrying and filing the petition, the petition must be denied. Perfecting a divorce and remarrying after the filing of the new petition but before the petition is adjudicated, or during the appeal process, will not render the petition approvable. 10 Also, should an I-130 be denied because the petitioner failed to provide required documentation, seeking to provide that documentation to the BIA, which is essentially seeking a remand or reopening, will most likely be unsuccessful if the documentation was available but not supplied; the BIA will only consider new evidence that was not available and could not have been discovered or presented earlier. 11 Thus, if the petition was deficient or poorly supported in the first place, you are unlikely to succeed on appeal and a new petition should be filed that corrects the deficiencies of the previous filing. Should financial concerns matter, if you believe your case is meritorious on appealthat is, if you are convinced that USCIS is flat-out making a mistake and refuses to acknowledge and correct it, or if the case involves a novel issue that must be resolved by the BIA for your clientit is worth noting that the appeal to the BIA costs $110 while re-filing costs $420. Although in most categories re-filing is probably faster than waiting for the BIA to adjudicate the appeal, there is nothing to guarantee that USCIS will not simply make the same mistake a second time. Thus, having the BIA look at the case will be a better assurance of an approval of the petition. Fraud Considerations If USCIS is alleging fraud on the part of your client in a marriage-based petition, the prohibition against approving a new petition when there was a finding of fraud by a beneficiary in a previous marriage-based petition 12 gives a strong incentive to not ignore a fraud finding, but rather to contest the fraud allegation on appeal. This is true even though USCIS cannot simply rely on a prior fraud finding to deny a new petition, 13 or that the restriction on approving a new marriage-based petition if there was a prior fraudulent one does not apply if the new petition is by the same petitioner for the same beneficiary. 14
8 CFR 1003.1(e)(8)(i) requires the BIA to reach a decision within 90 or 180 days of completion of the record on appeal (depending on whether it is a single member or a panel decision), but this is not the case in reality. The BIAs regulations are clear that failure to adjudicate an appeal in this time frame does not provide a basis for a cause of action. 8 CFR 1003.1(e)(8)(vi) (The provisions of this paragraph (e)(8) establishing time limits for the adjudication of appeals reflect an internal management directive in favor of timely dispositions, but do not affect the validity of any decision issued by the Board and do not, and shall not be interpreted to, create any substantive or procedural rights enforceable before any immigration judge or the Board, or in any court of law or equity.).
9
The USCIS service centers post their processing times at: https://egov.uscis.gov/cris/processTimesDisplay Init.do;jsessionid =cbactdj7Co_zwbb8hNs1s
Matter of Izumii, 22 I&N Dec. 169(BIA 1998); Matter of Atembe, 19 I&N Dec. 427 (1986); Matter of Drigo, 18 I&N Dec. 223 (BIA 1982); Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981).
11 12 13 14
10
8 CFR 1003.2(c). INA 204(c). Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990). Matter Of Isber, 20 I&N Dec. 676 (BIA 1993).
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Motion to Reopen Versus Appealing USCIS has a mechanism for reconsidering its decisions, namely motions to reopen and reconsider, filed on Form I-290B. In the case of I-130s, the motion must be filed within 30 days of the mailing of the decision. 15 The cost is an astronomical $630, compared with $110 for an appeal to the BIA. The standards are defined by regulation. 16 The regulations provide for reopening based on new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence. 17 The standard for reconsideration is that the decision was incorrect based on the evidence of record at the time of the initial decision. 18 Although this is not entirely clear,19 as an appeal to the BIA of a visa petition denial is first sent to USCIS, it is likely that USCIS reviews the appeal first, essentially adjudicating it like a motion to reopen or reconsider. Thus, it makes good sense to spend $110 that will get USCIS to look at the case before sending it to the BIA, rather than spending $630 for USCIS to look at the case and sending it nowhere for additional review if it declines to reverse its decision. Only if the petitioner files an appeal, spending another $110 in filing fees, will the case be sent to the BIA. Bear in mind that the period for filing an appeal is 30 days from the date of the initial denial, so relying on an I-290B and not filing an appeal within the requisite time period will result in the forfeiture of the right to appeal to the BIA. Judicial Review The federal district courts can consider denials of I-130 petitions. 20 To get to the district court, the petitioner must first appeal to the BIA or risk dismissal of the action for failure to exhaust administrative remedies. I-601 PETITION Form I-601 is used to file for waivers of inadmissibility. For aliens adjusting status, the denial of the I-601 is reviewable first in immigration court, then at the BIA, after the alien is placed in proceedings. Further review is then available in a petition for review if the alien is ordered removed as a result of not obtaining a waiver. It is vital to remember that the courts of appeal cannot review discretionary determinations when
15 16
8 CFR 103.5(a)(1)(i).
8 CFR 103.5(a)(2) Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence. A motion to reopen an application or petition denied due to abandonment must be filed with evidence that the decision was in error because: (i) The requested evidence was not material to the issue of eligibility; (ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or (iii) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Services request was sent, and the request did not go to the new address. (3) Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 17 8 CFR 103.5(a)(2).
18 19
8 CFR 103.5(a)(3).
According to 8 CFR 103.5(a)(8), in discussing the handling of an I-290B, The official who denied an application or petition may treat the appeal from that decision as a motion for the purpose of granting the motion. Inasmuch as I-130 petitions are not appealed on Form I-130, it is not clear that USCIS must first consider an appeal as a motion to reopen or reconsider before sending it on to the BIA. However, inasmuch as the entire file is assembled by USCIS and its adjudication will be scrutinized by a separate body, the BIA, it makes sense that USCIS will look at the appeal and consider it like a motion to reopen or reconsider before sending it on to the BIA. 20 Ruiz v. Mukasey, 552 F.3d 269, 27476 (2d Cir. 2009); Ayanbadejo v. Chertoff, 517 F.3d 273, 27778 (5th Cir. 2008); Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006); Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009); Ginters v. Frazier, 614 F.3d 822, 828 (8th Cir. 2010); Hanif v. DHS, 472 F. Supp. 2d 914, 92022 (E.D. Mich. 2007).
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discretion is provided to the government by statute. 21 In cases involving immigration at a consulate, the denial of a waiver is handled by USCISs Administrative Appeals Office with the filing of an I-290B. 22 As with the I-130 denial, in consular processing cases, an option exists to re-apply rather than appeal. However, unlike the case of an I-130 denial, the alien must first have the entire immigrant visa application readjudicated by the consulate before USCIS will readjudicate an I-601. Because of the lack of a mechanism for re-sending a petition to the Department of States National Visa Center, to have your case readjudicated a new I-130 may need to be filed. Fortunately, unless the old petition was cancelled or revoked, the old priority date will be preserved if it is in the same preference classification. 23 Make sure to ask for reaffirmation of the old priority date when filing the new petition and provide a copy of the old approval notice. One must go through the entire immigration process again, from I-130 adjudication to denial of the visa at the consulate to the filing of an I-601 and wait for its adjudication. However the costs of this process and the time it takes generally makes filing an appeal the more sensible path. Further, if the documentation and basis for the waiver are essentially the same, you risk receiving the same outcome after going through the process the second time. I-485 PETITION The vast majority of I-485 Adjustment of Status application denials cannot be appealed, but motions to reopen or reconsider can be filed. 24 The applicant for adjustment under INA 245, including INA 245(i), has the right to renew his or her application in removal proceedings, 25 followed by judicial review through a petition for review if necessary. The caveat about the unavailability of review of discretionary determinations applies to adjustment of status applications where the relief is discretionary by statute. 26 LIFE Act adjustment applications are filed on Form I-485, but an alien cannot renew a denied application in immigration court. 27 Rather, the denial of a LIFE Act adjustment is appealable to the Administrative Appeals Office. 28 The unavailability of appeal is somewhat troubling in the cases of aliens who have an underlying status and are thus not removable after their adjustments are denied. One such category is refugees and asylees who cannot appeal denials of adjustment of status applications, 29 but who do not lose refugee or asylee status simply because an adjustment of status is denied. 30 Another category includes H-1B, H-1C, and L nonimmigrants who can apply to adjust status and still maintain nonimmigrant status. 31 To Renew with the Immigration Court, USCIS or ICE Must File a Notice to Appear For aliens who are denied adjustment of status, having the opportunity to renew the adjustment application requires that USCIS initiate removal proceedings by issuing a Notice to Appear. Until this happens, the alien can re-file his adjustment with USCIS. In cases where a denial was because of some procedural defect that
21 22
INA 242(b); Kucana v. Holder, 130 S. Ct. 827 (U.S. 2010).
8 CFR 212.7(a)(3); USCIS website, Appeals of Denied Petitions Under the Jurisdiction of the Administrative Appeals Office (AAO) by subject matter. At 8 CFR 103.3(a)(ii) the regulation indicates that a list of case types that are appealable are listed at 8 CFR 103.1(f)(2). Lamentably, no such section exists.
23 24 25 26
8 CFR 204.2(h)(2). Under 8 CFR 103.5. 8 CFR 1245.2(a)(5)(ii).
INA 245(a) explicitly states that adjustment under this section is discretionary. Adjustment for refugees and asylees under INA 209, on the other had, does not have a discretion component.
27 28 29 30
8 CFR 245a.20(e). 8 CFR 245a.20(a)(2). 8 CFR 209.2(e) and (f).
INA 207(c)(4) and 208(c)(2) discusses how a refugees or asylees status can be terminated. Denial of adjustment of status is not a reason cited.
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8 CFR 214.2(h)(16)(i) and 214.2(l)(16)(i). The same issue may apply to E-1s and E-2s. See, Memo, Virtue, Acting Exec. Assoc. Comm. (Aug. 5, 1997) (E-1s and E-2s can apply for extensions of their status after filing for adjustment of status).
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could not be cured with a motion to reopen or reconsider, this is a way to attain adjustment without the hassle, stress, and time consumption of adjusting in immigration court, although it is rather expensivean adjustment application currently costs $1490 to file, counting the I-485 ($985 plus $85 for biometrics capture) and the I-130 ($420) in an immediate relative case. A word of caution: nothing precludes USCIS from placing the alien in proceedings after the second adjustment application is filed, thus presenting the client with a situation that is the worst of both worldshaving incurred the re-filing costs and also ending up in immigration court. If the alien is placed in removal proceedings, the same adjustment application is readjudicated by the immigration judge and fees need not be paid again. In situations where the alien wants to renew the case in immigration court, either to save money on filing fees or because the issue is one where a favorable resolution by USCIS the second time is unlikely (such as where USCIS finds the person ineligible for adjust status based on its interpretation of the law or it declines to waive a waivable ground of inadmissibility), and USCIS does not initiate proceedings, it is incumbent upon the alien to reach out to USCIS to initiate proceedings. Many USCIS districts have policies to oblige an alien who wants to be placed in removal proceedings after the denial of an adjustment application. Visa Waiver Adjustment Applicants May Be Ineligible for Renewal of an Adjustment in Immigration Court One large group of aliens who cannot seek review of an adjustment of status application in immigration court or the courts of appeal are visa waiver entrants who did not file an adjustment of status application before their periods of stay ended. More and more visa waiver adjustment applicants are being denied adjustment and being deported. The visa waiver program 32 allows citizens of certain countries 33 to come to the United States for up to 90 days without first obtaining a visa. In return for this privilege, visa waiver entrants cannot extend their stay, change their status to other temporary statuses, 34 or adjust status to that of permanent residence. 35 However, there is an exception for aliens seeking adjustment of status as an immediate relativethat is, as the spouse of a U.S. citizen, the child (under 21 years old) of a U.S. citizen, or the parent of a U.S. citizen. 36 Also, a visa waiver entrant waives any right to contest, other on the basis of an application for asylum, any action for removal of the alien. 37 This waiver is referred to as the no contest statute. There is an exception: the visa waiver entrant can apply for asylum. 38 The Ninth Circuit, in Momeni v. Chertoff, 39 considered its jurisdiction to hear a challenge to removal based on the aliens filing an adjustment of status application. The Momeni court decided that it did not have jurisdiction to consider challenges to a deportation order. But this is not the same as saying that the alien had no ability to adjust status. Had it limited itself to this jurisdictional formulation, then visa waiver entrants could adjust status, just not fight about being denied adjustment. It would be up to USCIS to decide and that decision would be final. However, the Momeni court said more: We agree with the Tenth Circuit in Schmitt v. Maurer 40 that to allow an adjustment of status petition after the 90 days has expired would create an avoidable conflict between the adjustment of status statute and the no contest statute. The Momeni court thus
32 33
The program is found at INA 217.
The countries currently in the program are Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom. 8 CFR 217.2(a). INA 248(a)(4). INA 245(c)(4). Id.; 8 CFR 1245.1(b)(8). INA 217(b)(2). Id. 521 F.3d 1094 (9th Cir. 2008). 451 F.3d 1092 (10th Cir. 2006).
34 35 36 37 38 39 40
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went beyond a finding of a lack of jurisdiction to a finding that it lacks jurisdiction because an alien who files after ninety days cannot adjust status. In Bayo v. Napolitano, 41 the Seventh Circuit Court of Appeals wrote, Bayo filed his application for adjustment of status long after his 90 days were up. As a result, his adjustment-of-status application is barred by his valid VWP [Visa Waiver Program] waiver or by the fact that in the absence of a waiver he never would have entered the United States in the first place. This places the Seventh Circuit squarely in the camp that says visa waiver entrants cannot file adjustment applications after their authorized period of stay. The Bayo court states that all the circuits that addressed the issue have held the same, citing to cases in the fifth, 42 sixth, 43 and eighth circuits, 44 in addition to Momeni and Schmitt. It seems that the Bayo case may have overstated the holdings in the cases. Those courts certainly assert that visa waiver applicants cannot pursue the denials of adjustment of status with the immigration judge, the BIA, or the circuit courts of appeal, or anywhere else for that matter, but it is not clear that they also assert that USCIS cannot adjust the aliens status if it wants to. The question is whether the meaning of the Bayo, Momeni, and Schmitt decisions is that: A person cannot adjust status if he or she overstays the visa waiver program and then applies for adjustment of status, or A person cannot challenge the issuance of a removal order in an immigration court, BIA, or a federal court by seeking adjustment of status unless an adjustment of status application was filed before the 90 days, or A person cannot fight a removal order if he or she is ordered removed under the Visa Waiver Program if he filed his adjustment application after the 90 days, but he can adjust status as long as he is not removed while his adjustment of status application is pending. As long as the Bayo, Momeni and Schmitt decisions deal with the courts jurisdiction, it is possible to say that the first potential holding above, that an alien cannot adjust if he or she overstays and then files for adjustment, is dictaobservations not necessary for the decision and thus not binding. The decision is that the immigration court and the federal courts cannot consider the denial and review the removal order and not that USCIS has no power to grant an adjustment application if it wants to. What does the government say? So far, at the USCIS headquarters level, there has been no comment. However, the solicitor general has spoken on the issue in a brief opposing a writ of certiorari 45 in a case from the Third Circuit, Bradley v. Attorney General of the United States. 46 In Bradley, an alien was ordered removed under the visa waiver program despite having filed an adjustment of status application. The Third Circuit, in Bradley, limited its holding to whether an alien had the right to contest his removal if he filed his adjustment of status application after the expiration of the 90 days. It did not rule on whether a person had the right to pursue an adjustment of status if he filed before the expiration of the 90 days, as in Momeni and Schmitt. It also did not conclude that a person could not adjust with USCIS if he or she filed outside the 90day period of stay, which Momeni and Schmitt seem to have, at least in dicta. In the solicitor generals brief, he wrote, ... the court of appeals correctly decided that an alien admitted into the United States under the VWP [Visa Waiver Program] may not contest his removal based on an adjustment application filed after the 90-day period of lawful admission under the VWP. The solicitor general specifically addresses seeking adjustment in immigration court and in the federal court. He is quite clear, writing, Because a VWP alien who is an immediate relative may seek adjustment of status outside removal proceedingsin a manner specified under DHS [Department of Homeland Security] regulations, 8 USC
41 42 43 44 45 46
593 F.3d 495 (7th Cir. 2010) (en banc). McCarthy v. Mukasey, 555 F.3d 459 (5th Cir. 2009). Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir.2007). Zine v. Mukasey, 517 F.3d 535 (8th Cir.2008). www.justice.gov/osg/briefs/2010/0responses/2010-0397.resp.pdf. 603 F.3d 235 (3d Cir. 2010).
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1255(a), there is no conflict between the two statutes. He means that INA 217(b)(2), which allows for no contest of an order of removal, and INA 245(c)(4), which allows visa waiver entrants to adjust through an immediate relative, are not in conflict because the no contest clause refers to fighting the removal order in immigration court or in the federal courts, not by seeking adjustment of status with USCIS. If USCIS is willing to entertain the adjustment of status application and to prevail upon its sister agency, ICE, not to remove the alien while it is pending, the alien can adjust status. The solicitor general writes, Indeed, petitioner himself [Mr. Bradley] has been able to file applications for adjustment. USCIS has considered those applications notwithstanding petitioners lengthy violation of the terms of his admission to the United States.
Distilling all this, the law seems relatively clear that a visa waiver program entrant who files for adjustment of status before his 90-day period of admission expires can pursue his adjustment of status with USCIS and then with the immigration court, the BIA, and even the courts of appeal if the courts of appeal have jurisdiction over the issues in the case. Outside the seventh, ninth, and tenth circuits, it seems, for now, that an alien can apply for adjustment of status at any time before he is ordered removed for violating his visa waiver status and USCIS can adjudicate and approve the adjustment if it wants to. There is no recourse to the immigration court, the BIA, or the federal courts to contest the denial of an adjustment of status and the removal order. It should be noted that this conclusion is based not on clear holdings by those circuits, but because of ambiguity as to their holdings in their visa waiver jurisprudence. In other words, visa waiver adjustment applicants are skating on very thin ice wherever in the country they file. In the seventh, ninth, and tenth circuits, on the other hand, the ice has melted. In these circuits, the courts are quite unequivocal that visa waiver entrants cannot adjust status if they apply for adjustment after the expiration of their periods of stay. How USCIS will implement these decisions is a separate, unclear matter. The solicitor general, who presumably conferred with USCIS before he filed his brief, expressed the position that a visa waiver entrant can apply for adjustment of status at any time before he or she is removed and USCIS can adjust his or her status at its discretion, even if ICE has ordered the aliens removal. The fact that there may be a removal order issued by ICE is immaterial. 47 Until USCIS clarifies its position, harmonizing its view as expressed by the solicitor general with the holdings in Bayo, Schmidt, and Momeni, we are bound to see disparate treatment of visa waiver adjustment applicants between districts. However, nowhere will a visa waiver adjustment applicant who filed his or her adjustment application after the expiration of his or her period of authorized stay be able to seek review of the denial administratively or judicially. Denied aliens can certainly file motions to reopen on Form I-290B, but because of the ambiguity in the statute of the law and the fact that ICE can simply deport the alien and moot the adjustment of status application, doing this is of limited value. CONCLUSION Practitioners facing cases where opposition comes their way, depending on the type of case, have various options to try, try, try, try, and try to overcome the obstacles and succeed at last. Sometimes the odds are insurmountable and sometimes there is just nowhere to go for relief. But, if your case has merit and there is somewhere to take the denial, as Mr. Cliff sang, the hotter the battle, its the sweeter the victory.
See, Matter of Yauri, 25 I&N Dec. 103 (BIA 2009), where the BIA held that USCIS can adjust an aliens status even if there is a pending, executed removal order against the alien.
47
IMPERFECT NATURALIZATION: ANALYZING THE RISKS OF NATURALIZING LAWFUL PERMANENT RESIDENTS WITH CRIMINAL OFFENSES
by Jojo Annobil, C. Lynn Calder, and Ghassan M. Shihab *
Naturalizing a lawful permanent resident (LPR) with a criminal history poses legal and practical challenges for both the immigration practitioner and the LPR. Since the conviction of certain crimes drastically shifts an LPRs legal standing in the United States often causing them to become deportable, counsel advising such a client about naturalization first must become fully informed about the clients criminal history, conviction and circumstances. Second, counsel must carefully analyze the immigration consequences of the criminal record in light of the clients particular immigration background to accurately predict the implications of filing an application for naturalization. Finally, counsel must inform the client of the practical and legal consequences of filing the application, the alternative legal strategies and the likelihood of succeeding in possible removal proceedings. 1 LPRs with a criminal record who seek advice about applying for naturalization must be given accurate information to make an informed choice; pursuing naturalization raises malpractice implications for the attorney and the possibility of removal for the client. This article will attempt to identify the legal issues that must be examined and the steps an immigration practitioner should follow before filing a naturalization application for a client with a criminal past. THE INITIAL CLIENT INTERVIEWSHOULD I FILE OR SHOULD I NOT? Many LPRs with a criminal record arrive in your office with a vague understanding from criminal defense counsel, another immigration practitioner or their own Internet research that filing a naturalization application may lead to removal proceedings or even mandatory detention. 2 Other clients, unfortunately, may be shocked
Jojo Annobil is attorney-in-charge of the city-wide Immigration Law Unit at The Legal Aid Society. He coordinates the Units collaboration with various legal service providers, community based organizations, volunteer attorneys, and law students. He is an expert on the intersection between immigration and criminal law and represents low income noncitizens in removal/deportation proceedings before the New York immigration courts. He has lectured extensively at numerous immigration-related seminars for judges, criminal defense attorneys, and advocates. He is currently an adjunct clinical professor at New York University School of Law where he co-teaches the Immigrant Defense Clinic. C. Lynn Calder has practiced in all areas of immigration law for over 20 years with Allen and Pinnix, PA., in Raleigh, NC. She has chaired the AILA Carolinas Chapter and the North Carolina Bar Association Immigration Law Committee, and is a Trustee Emeritus of the American Immigration Council. A frequent speaker on immigration topics for AILA and the North Carolina bar, Ms. Calder has served as an editor or associate editor for AILAs Immigration Litigation Toolbox, the AILA midyear conference handbook, and Ethics in a Brave New World. She is a North Carolina State Barcertified immigration law specialist, and has taught immigration law at the Elon University and North Carolina Central University schools of law. Ghassan M. (Gus) Shihab is an AV-Rated lawyer and the founder and CEO of the Law Firm of Shihab & Associates, Co., LPA. Mr. Shihab has been practicing immigration law for over 18 years in Ohio, where he counsels corporate, university and individual clients in complex immigration matters including workforce compliance, H-1B, PERM, immigrant petitions, investor visas, naturalization, and federal court litigation. He is a member of AILAs national Board of Governors and currently serves as the AILA Ohio Chapter chair. Prior to becoming chair, he served as the chapter vice chair for three consecutive years, and served on other Ohio Chapter subcommittees. 1 The authors recommend M. Kramer, Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants (AILA 2009 4th Ed.) as an insightful and practical guide in analyzing the options available to a client in light of their immigration status and criminal record. Information regarding this publication may be found at www.ailapubs.org/noname6.html.
2
Grounds for mandatory detention are included in 236(c) of the Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163, (codified as amended at 8 USC 1101 et seq.), with reference to INA 212(A)(2), (3) and 237(A)(2), (3).
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when they learn from you that what they thought was a simple criminal offense or a very old offense may cause them to lose permanent residence. For several reasons, clients may be determined to pursue naturalization despite the risks: they can no longer bear the distress of knowing they may be arrested by U.S. Immigration and Customs Enforcement (ICE) and placed in removal proceedings any day; some want to petition for a family member or upgrade family from the second preference to immediate relative category; other clients need to travel out of the United States for business purposes, to visit an ailing family member or unite with a loved one, and are afraid of being detained and placed in removal proceedings upon re-entering the United States. Practice Pointer: It is important to understand at the outset why the client wants to naturalize so that you may consider alternative strategies to achieve his or her goal. For example, at the end of 2010, worldwide visa numbers in the Family 2-A category had so little backlog, it was reasonable to suggest that an LPR with a questionable past file a second preference I-130 for a spouse rather than risk pursuing U.S. citizenship so she could file as an immediate relative. OBTAINING THE RECORDSBETTER TO BE INFORMED THAN SORRY To fully consider all available strategies for the LPR who wants to naturalize, counsel must obtain a complete certified copy of the clients criminal record. Not only is analysis of the entire criminal record essential before developing a plan, U.S. Citizenship and Immigration Services (USCIS) will require the certified copy to adjudicate the naturalization application. The first step in analyzing the clients legal issues begins with having him or her complete, date and sign a detailed questionnaire prompting him or her to disclose all relevant facts and prior criminal history in or outside the United States. A completed questionnaire will provide a record of the matters disclosed by the client in case additional offenses come to light later. After obtaining whatever records are available from the client, counsel then should request all certified court records, journal entries and decisions from the tribunals where the LPR was convicted, including any plea and sentencing transcripts. Court transcripts are particularly useful for foreign convictions as these records are invaluable in pinning down the specific objectionable conduct and the foreign statute violated. Practitioners should be mindful and advise the client that a request for criminal records may tip off state or local authorities about an unresolved arrest warrant or the presence of a deportable offense. Great care must be taken to be as discreet as possible in requesting records. If available, former defense counsel is a valuable source for court documents and other records along with insight about the clients criminal case. In many jurisdictions, criminal files are destroyed within 10 years or less of the judgment and the tribunal may produce only a computerized summary of the arrest and conviction. If a record has been destroyed or expunged by a court, former defense counsel may be the only option for obtaining a copy. Practice Pointer: Clients may offer vague information about prior arrests either because they do not clearly remember the circumstances, they fail to understand the significance of an arrest, or they fail to appreciate you must have all information to competently advise them. Clients do not always realize they have been charged with a crime or that an arrest has resulted in a conviction. To ensure you obtain all necessary information, ask the client to tell you each time they ever have encountered or talked to a police officer or court official; and request records from arresting agencies, such as police or sheriff departments, located in jurisdictions in which the client has lived. Out of an abundance of caution, some immigration practitioners now submit a request for an FBI record check (rap sheet) for every client. Although it provides helpful information, the FBI rap sheet cannot be relied on to include every arrest or conviction or full information regarding offenses. 3
See www.fbi.gov/about-us/cjis/background-checks/background_checks for instructions on obtaining an FBI record check. Generally, local law enforcement offices provide fingerprinting services for the public; counsel should consider whether there is any risk in the client using that office.
ANALYZING THE RISKS OF NATURALIZING LPRS WITH CRIMINAL OFFENSES
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THE APPLICANT MUST BE A PERSON OF GOOD MORAL CHARACTER Among other requirements, in order to be eligible for naturalization, the LPR must be a person of good moral character during the statutory period preceding the date of filing the N-400. 4 The requisite good moral character must continue through the interview and approval of the application, all the way until administration of the oath of allegiance. 5 While good moral character is not defined by statute or regulation, the USCIS Adjudicators Field Manual (AFM) contains a lengthy discussion of good moral character and the application of discretion. 6 As general comment, the AFM states, The courts have held that good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. Any conduct or acts which offend the accepted moral character standards of the community in which the applicant resides should be considered, without regard to whether the applicant has been arrested or convicted. 7 Somewhat more favorable language was included in the legacy Immigration and Nationality Service (INS) Interpretation: [Good moral character] does not necessarily require the highest degree of moral excellence. Good moral character has not been a static term since the standards of a community often change with the passage of time. 8 The relevant statutory period for the requirement of good moral character generally is five years, but is only three years for LPRs who have been married to and living in marital union with a U.S. citizen for at least three years immediately preceding the date of application. 9 Statutory and regulatory bars to a finding of good moral character within the statutory period are enumerated at INA 101(f) and 8 CFR 316.10. Further, the attorney general within his discretion may find good moral character is lacking for criminal and other acts that occurred outside of the statutory period if the LPRs conduct within the statutory period does not reflect there has been reform of character, or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character. 10 While USCIS is not foreclosed from considering acts of the LPR occurring in the distant past when making a good moral character determination, there is authority holding that the government may not solely rely on acts outside the statutory period. 11 AFFIRMATIVE RELIEF, PROSECUTORIAL DISCRETION AND THE RISK OF MANDATORY DETENTION Where the clients specific circumstances present a strong case for relief from removal, counsel may be encouraged to file an affirmative application for relief with USCISe.g., cancellation of removal, 212(c) waiverrather than waiting for removal proceedings. If the client is not statutorily ineligible for naturalization and has many equities in his favor, an alternative is to file the N-400 and attempt to persuade USCIS to approve the application without the need to pursue a formal waiver with USCIS or immigration court. While the likely outcome of this strategy is the issuance of a Notice to Appear (NTA), the client may choose this option in the hope of a relatively quick resolution of his criminal past.
INA 316(a), 101(f). 8 CFR 316.10(a)(1). 6 Adjudicators Field Manual (AFM) ch.73.6. 7 AFM ch.73.6(a). 8 Legacy Immigration and Nationality Service (INS) Interpretation 316.1(e)(1). Legacy INS Interpretations are published on the USCIS website, www.uscis.gov. 9 INA 319(a). See Title III, Chapter 2 of the INA for additional provisions regarding reduced or eliminated statutory time periods for naturalization applicants, such as for abused spouses or children of U.S. citizens; certain employees (or their spouses) of the U.S. government, American institutions of research or international corporations or public international organizations; and certain members of the U.S. armed forces.
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10 11
INA 316(e); 8 CFR 316.10(a)(2). Gatcliffe v. Reno, 23 F. Supp.2d 581 (1998).

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In evaluating the alternative legal strategies, counsel should consider the doctrine of prosecutorial discretion 12 and its application to the clients particular situation. Because the U.S. Department of Homeland Security (DHS) possesses broad prosecutorial authority in the removal of noncitizens, ICE may exercise its prosecutorial discretion against initiating removal proceedings for certain LPRs even in the presence of a criminal history and a removable offense. Counsel should refer to DHS memoranda 13 to determine if the clients particular circumstances support an argument in favor of prosecutorial discretion. While DHS often has been uncooperative in many jurisdictions, a recent posting on AILA InfoNet reflects a positive trend: In recent months, ICE officials have indicated that they are encouraging and even directing officers in the field to exercise prosecutorial discretion in connection with agency priorities. 14 AILA and the American Immigration Councils Legal Action Center have requested attorneys to report whether the directives are being followed in the field. 15 Practice Pointer: Before advising a client to pursue affirmative relief, counsel must determine whether the criminal conviction implicates a ground of removal or inadmissibility that would result in mandatory detention under INA 236(c) 16 pending a final decision in removal proceedings. The statutory applicability of 236(c) may be challenged in immigration court; if the ground of removal charged based on the underlying criminal conviction is incorrect, the client should not be subject to mandatory detention. 17 While the applicability of the mandatory detention provisions is outside the scope of this article, counsel should discuss with the client the risk of detention while waiting for their removal case to be reached. Also, a client who is not subject to mandatory detention may seek review of an ICE custody determination by requesting a bond hearing before an immigration judge if detained pending a charge of removal under 237. 18 If the LPR is detained after being charged with inadmissibility under INA 212 as a returning resident, arriving alien or after termination of parole, the immigration judge does not have jurisdiction to consider bond. 19 FACTORS TO CONSIDER IN DETERMINING BEST STRATEGY Burden of Proof: INA 316 (Naturalization), 237 (Deportability), and 212 (Inadmissibility) An applicant for naturalization bears the burden of proving eligibility from the time of filing the N-400, through interview, and up to admission to citizenship. 20 In addition to residence and continuous physical presence, the applicant must establish she was a person of good moral character during the requisite statutory time period before filing, until the oath ceremony. Not only may conduct prior to the statutory time period be
The American Immigration Councils (AIC) Legal Action Center has published a thorough examination of Department of Homeland Security (DHS) policies on prosecutorial discretion which includes a review of agency memoranda. M. Kenny, Prosecutorial Discretion: How to Get DHS to Act in Favor of Your Client (Nov. 30, 2010), available at www.legalactioncenter.org/sites/default/files/ProsecutorialDiscretion-11-30-10.pdf. See also Immigration and Naturalization Service (INS) Operations Instruction 242.1(a)(22); legacy INS Memorandum, D. Meissner, Exercising Prosecutorial Discretion (Nov. 17, 2000), published on AILA InfoNet at Doc. No. 00112702 (posted Nov. 27, 2000), available at www.aila.org/content/default.aspx?docid=16891. 13 Id. See also the past six or seven years of AILA/ Immigration and Customs Enforcement (ICE) Liaison Meeting Minutes, published on AILA InfoNet, for the evolving ICE policy at the Headquarters level regarding the exercise of prosecutorial discretion. 14 ICE News: Tell AILA: Trends in ICE Prosecutorial Discretion, AILAs Immigration This Week (Mar. 10, 2011), published on AILA InfoNet at Doc. No. 11030930 (posted Mar. 10, 2011), available at www.aila.org/content/default.aspx?docid=34824. 15 Id. 16 Subtitle C of the Omnibus Consolidated Appropriations Act, 1997, P.L. 104-208, signed into law Sept. 30, 1996. 17 Challenges to mandatory detention before the Immigration Court are known as Joseph Hearings; the court determines whether the noncitizen is subject to mandatory detention based on the ground of removal charged. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). 18 8 CFR 236.1(d)(1), 1236.1(d)(1). 19 8 CFR 1003.19(h)(2)(i)(B). 20 INA 316(a), 318.
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considered in many cases, certain bars to good moral character have no time period limitation: an applicant convicted of murder or convicted of an aggravated felony on or after November 29, 1990, is permanently precluded from establishing good moral character. 21 The AFM instructs examiners that, Although the focus should be on conduct during the statutory period, the inquiry should extend to the applicants conduct during his or her entire lifetime. 22 To determine the best strategy for an LPR client with a criminal conviction, counsel must consider the burden of proof for naturalization and closely examine the possible charge of removal 23 under INA 237 or inadmissibility under 212. It is essential to remember the grounds of removal and inadmissibility are not identical. 24 If an NTA is issued charging the LPR with removability under 237 due to the criminal record, DHS bears the burden of proving the LPR is removable. 25 If the client is able to vacate the criminal conviction, it is somewhat unresolved whether the government has the burden of proving the vacatur is not valid for immigration purposes or the respondent has the burden of proving it is. 26 Counsel should argue that because the government must establish deportability in proceedings under 237, it also must prove the existence of a conviction. 27 Pursuant to INA 101(a)(13)(C), an LPR returning from a trip abroad of any length is subject to the 212(a)(2) grounds of inadmissibility if he or she has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a) [of the INA] . The arriving alien therefore must establish he or she is admissible despite the criminal record. 28 If CBP determines the returning LPR is inadmissible and issues an NTA charging a ground of inadmissibility under 212; in removal proceedings, the LPR will bear the burden of proving he or she is admissible. Counsel also must keep in mind that a returning LPR, arriving alien, who is detained does not have the right to a bond hearing before an immigration judge; 29 he or she may, however, contest this classification as an arriving alien in immigration court. 30 Illustration: A client with a conviction for simple possession of a firearm needs to travel abroad. The conviction is a ground of removal under INA 237(a)(2)(C) but is not a crime involving moral turpitude (CIMT) and therefore not a ground of inadmissibility under 212(a)(2)(A). The client should be able to establish he or she is admissible as a returning LPR. After reentry into the United States, if otherwise eligible, this LPR might consider applying for naturalization. Although conviction for possessing a firearm is not a bar to naturalization, the client still must establish he or she is a person of good moral character for at least the preceding statutory time period. Reentering the United States or filing the N-400 could trigger the issuance of an NTA for being subject to removal under 237. In removal proceedings, ICE would bear the burden of establishing the LPR is removable. Conviction of an aggravated felony under INA 101(a)(43), also is a 237(a)(2) ground of removal, but not a 212(a)(2) ground of inadmissibility. Aggravated felony offenses, however, often will meet the criteria for a CIMT and will thereby support a charge of inadmissibility under 212(a)(2).
8 CFR 316.10(b)(1). AFM chs.73.6(a) and (d)(1). 23 The terms removal/removability and deportation/deportability are used interchangeably herein in referring to the grounds under INA 237(a)(2). 24 M. Kramer, Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants (AILA 2009 4th Ed.) at 128. 25 INA 240(c)(3). 26 Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000); Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), revd, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006); Matter of Chavez-Martinez, 24 I&N Dec. 272 (BIA 2007). 27 Pickering v. Gonzales, 465 F.3d 263; Matter of Kaneda, 16 I&N Dec. 677 (BIA 1977). 28 INA 240(c)(2). 29 8 CFR 1003.19(h)(2)(i)(B). 30 8 CFR 1003.19(h)(1)(ii) and (2)(ii).
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Conversely, a returning resident client could be subject to a charge of inadmissibility but not removal. An LPR who has never been convicted or even arrested for a drug related offense nevertheless may be charged under 212(a)(2)(C) as an alien who the Attorney General knows or has reason to believe (i) is or has been an illicit trafficker in any controlled substance or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance . A client married to a known drug trafficker could be at risk traveling outside the United States but not in applying for naturalization. The client may be able to persuade USCIS he or she has no connection to his or her spouses narcotics business, is a person of good moral character and is eligible to naturalize. An LPR client with a conviction of simple possession of 30 grams or less of marijuana would be safer applying for naturalization than traveling. This offense is not a ground of removal but is a ground of inadmissibility [although a waiver under INA 212(h) may be available]. An LPR with one such simple possession conviction who does not have the requisite family relationship for a 212(h) waiver should try to naturalize before traveling outside the United States. Section 212(a)(2) encompasses certain other offenses not covered by INA 237(a)(2). Proving Good Moral Character Your client was convicted of a serious offense and even served jail time. When you analyze the offense, however, you are certain he or she is not subject to removal under INA 237 or inadmissibility under INA 212. Although you conclude he or she is not barred from establishing good moral character under the Act or regulations, you are concerned about a negative discretionary finding. As mentioned previously, the AFM provides extensive instruction to USCIS officers regarding evaluating the good moral character of an applicant with a criminal record. Factors to be considered by officers include the following: circumstances surrounding the commission of the act are material to your decision. External factors that disclose purpose, motivation, and explanation assume importance. Is this the applicants only offense? Did the unlawful act occur early or late in the statutory period? What was the final outcome of the arrest? How long was the applicant on probation? Did the applicant comply with all conditions of the probation? Because denial of naturalization under these provisions is not mandatory, you will need to be able to justify your finding in each case. 31 Counsel must be prepared to persuade USCIS that the conviction or arrest does not foreclose naturalization and the client is a person of good moral character in spite of the criminal record. Documentary evidence of character and a legal memorandum outlining your argument should be submitted with the N-400. Illustration: Five years ago, your client, a marketing manager in an international pharmaceutical company, pled guilty to engaging in unfair trade practices (a non-CIMT regulatory offense) and served nine months in jail. She insists on the need to be a U.S. citizen because in her current employment, she frequently must travel internationally. Each time she is subject to CBP inspection, she is put into secondary inspection causing her to miss flights and meetings in her tight schedule. You advise that she is not subject to removal so filing an N-400 will not risk the issuance of an NTA; she also is not barred from naturalizing under the INA or regulations. To increase the probability that the N-400 will be granted, she should present evidence of her good moral character. The AFM factors should be addressed and additional factors may be inferred from 8 CFR 316.10 (clarify that none of the good moral character bars are present). Factors relevant to discretionary approval of waivers may be applied to good moral character evidence: record of cooperation with law enforcement or the government regarding the offense; character reference letters; history of filing tax returns; ties to the community; volunteerism; family ties; payment of child support, etc. Effect of ProbationTiming When to File the N-400 An N-400 will not be approved until the applicant has completed any period of probation, parole, or suspended sentence. 32 Consideration should be given to timing the filing of the N-400; USCIS may not hold
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AFM ch.73.6(d)(3)(B). 8 CFR 316.10(c)(1).

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open an application until the applicant completes the probation, parole or suspended sentence but may insist on withdrawal of the application in lieu of denial. The client could apply again when statutorily eligible but would have lost a pricey filing fee. Although the existence of these penalties during the statutory period does not preclude the applicant from establishing good moral character, they may be considered by USCIS in the discretionary determination. Waiving the Risk of Filing the N-400 You have analyzed your LPR clients immigration and criminal records and determined he or she is subject to removal for a past conviction. If the client applies for naturalization, an NTA probably will be issued. Still, this client wants to be free of the worry of being arrested by ICE and having his or her life disrupted without warning. The client is willing to risk being placed in removal proceedings and forced to pursue possible relief or forced departure from the United States. INA 212(c) Waiver The complicated history and applicability of the former INA 212(c) waiver should be reviewed if your client appears to be statutorily eligible. 33 Prior to 1996, this was the waiver most often used by LPRs with criminal records as it waived almost all convictions except a few grounds of deportability. The waiver was severely limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 34 effective April 24, 1996; and eliminated by Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), 35 effective April 1, 1997. After the 212(c) amendments were applied retroactively by the Department of Justice, limited availability of the waiver was reinstated by the U.S. Supreme Court in INS v. St. Cyr 36 and by regulatory amendments codifying the St. Cyr decision. 37 Although full discussion and analysis of 212(c) waivers are beyond the scope of this article; for persons with criminal convictions placed in proceedings after April 24, 1996, generally three criteria must be met to establish eligibility for the waiver: the applicant must be an LPR; he must have pled guilty or nolo contendere to the offense prior to April 1, 1997; 38 and he must have maintained lawful, unrelinquished domicile in the United States for seven consecutive years (time as a temporary resident under INA 245A or 210 counts toward the seven years 39 ). Additionally, if convicted of an aggravated felony [as defined under INA 101(a)(43) at the time the waiver application is adjudicated] after November 29, 1990, the applicant is ineligible for the 212(c) waiver if he served a term of imprisonment of five years or more for that offense. 40 Practice Pointer: Challenges to the retroactive application of the amendments made to 212(c) continued after the St. Cyr decision. Practitioners should review federal appellate decisions in their jurisdiction to determine if the waiver is available when the LPR was convicted in a trial rather than pursuant to a plea agreement.
A good source is M. Kramer, Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants (AILA 2009 4th Ed.) at 377402. 34 See 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. 35 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Division C of Pub. L. No. 104-208, 110 Stat. 3009546. 36 INS v. St. Cyr, 533 U.S. 289 (2001). 37 69 Fed. Reg. 57826 (Sept. 28, 2004), amending 8 CFR 1003, 212, 1212, and 1240. See 8 CFR 1212.3 for eligibility requirements. 38 If the plea was between Apr. 24, 1996, and Apr. 1, 1997, 212(c) relief is limited by the AEDPA amendment. 8 CFR 1212.3(h)(2). 39 8 CFR 212.3(f)(2), 1212.3(f)(2). 40 8 CFR 1212.3(f)(4). Ineligibility based on time served for an aggravated felony conviction was an amendment to 212(c) by the Immigration Act of 1990 (IMMACT90), Pub. L. No. 101-649, 104 Stat. 4978.
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For approval, the 212(c) waiver applicant must establish he merits a favorable exercise of discretion based on consideration of positive and adverse factors. 41 Positive factors such as family ties and many years of residence in the United States, hardship to the applicant and family if removal is required, property ownership or business ties, demonstrated value and service to the community, remorse and genuine rehabilitation if a criminal record exists, and any other evidence attesting to the applicants good character are weighed against adverse factors which include the seriousness of the criminal offense or any other ground leading to removal, any significant violations of immigration laws, and other evidence indicative of the applicants bad character or undesirability as a lawful permanent resident. While the INA 212(c) waiver is a waiver of the grounds of inadmissibility under INA 212(a), the Board of Immigration Appeals (BIA) held it could be used to waive 237 grounds of removal, including aggravated felonies, as long as there is a comparable ground of inadmissibility under 212. 42 The waiver, therefore, is not limited to use by returning residents charged under 212, but also is used by LPRs in removal proceedings to waive a charge under 237. Prior to the elimination of INA 212(c), courts allowed the waiver to be used for almost all grounds of removal, with the clear exception of firearms offenses. Since the INA 212(c) waiver regulation was published, the BIA has issued precedent decisions severely limiting use of the waiver for aggravated felony convictions by restrictive interpretation of the term, comparable ground of inadmissibility. 43 Some courts of appeal have agreed with the BIA that 212(a)(2) CIMT is not a comparable ground of inadmissibility for an aggravated felony charge even though the aggravated felony could have been charged as a CIMT under 237. 44 Practice Pointer: Counsel must be prepared to pursue a different strategy for relief for a client in removal proceedings charged with an aggravated felony that does not have a specific comparable counterpart at INA 212. If, however, the client is returning from a trip abroad, she should be charged with a 212 ground of inadmissibility and would be eligible for a waiver under 212(c). A possible strategy is to have the client travel before being placed in removal proceedings and charged under INA 237. Another option is to file an affirmative 212(c) waiver with USCIS prior to an NTA being issued against the client. 45 INA 212(h) Waiver Generally, INA 212(h) waives many criminal grounds of inadmissibility except murder, torture, and drug offenses (except one offense for simple possession of 30 grams or less of marijuana) if the applicant can establish her denial of admission or removal would result in extreme hardship to a qualifying relative. This waiver, however, will not be granted to an LPR who has been convicted of an aggravated felony since admission for permanent residence or who has not lawfully resided in the United States for at least seven years before initiation of removal proceedings. 46 A 212(h) waiver usually is filed with an adjustment application. An LPR seeking admission to the United States may apply for a 212(h) waiver, standing alone, to overcome a ground of inadmissibility that would otherwise preclude his or her admission. 47 Therefore, if the LPR client with convictions for two CIMTs is placed in removal proceedings after a trip abroad and charged under INA 212, he or she may apply for a 212(h) waiver before the immigration judge and attempt to prove his or her U.S. citizen spouse and children would suffer extreme hardship if he or she is denied admission. He or she would not be required to
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Matter of Marin, 16 I&N Dec. 581 (BIA 1978); Matter of Edwards, 20 I&N Dec. 191 (BIA 1990); and Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988). 42 Matter of Silva, 16 I&N Dec. 26 (BIA 1976); Francis v. INS, 532 F.2d 268 (2d Cir. 1976). 43 Matter of Blake, 23 I&N Dec. 722 (BIA 2005); Matter of Brieva, 23 I&N Dec. 766 (BIA 2005). 44 See, e.g., Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007); Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009); Blake v. Carbone, 489 F.3d 88 (2nd Cir. 2007) (rev.d and remanded in Matter of Blake, 23 I&N Dec. 722). 45 8 CFR 212.3(a)(1). 46 INA 212(h). 47 Matter of Abbosi, 24 I&N Dec. 204 (BIA 2007).
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simultaneously re-apply for adjustment of status. Furthermore, if the client left the United States after conviction of the offenses but was admitted when he or she re-entered and thereafter has been placed in removal proceedings charged with being subject to removal under INA 237, he or she may apply for a nunc pro tunc 212(h) waiver to waive the inadmissibility existing at his last re-entry. 48 Cancelling the Risk of Filing the N-400Cancellation of Removal Section 240A(a) of the INA is the replacement for the 212(c) waiver and waives grounds of inadmissibility and removal. An LPR is eligible to apply for cancellation of removal under this provision if she has been lawfully admitted for permanent residence for not less than five years; has resided in the United States continuously for seven years after having been admitted in any status; and has not been convicted of an aggravated felony. In exercising discretionary authority to approve cancellation, the court should consider factors established within the 212(c) context. 49 A problematic element of cancellation of removal not found in 212(c) waivers concerns the stop-time rule under INA 240A(d)(1). Any period of continuous residence in the United States is deemed to end when the applicant is served with an NTA, or when he commits an offense referred to in INA 212(a)(2) that renders him inadmissible under 212(a)(2) or removable under INA 237(a)(2) or 237(a)(4). Commission of one CIMT that qualifies as a petty offense under 212(a)(2)(A)(ii)(II) will not trigger the stop-time rule because it would not render the LPR inadmissible or removable. The applicability of the stop-time rule must be carefully considered before advising your client about his or her chances for relief in removal proceedings. N-400 as Basis for Terminating Removal Proceedings An immigration judge may terminate removal proceedings to allow an individual to pursue naturalization if the requirements of 8 CFR 1239.2(f) and Matter of Acosta-Hidalgo 50 are met: Proceedings may be terminated based on the pendency of a naturalization application only if the applicant presents an affirmative communication from DHS confirming that he is prima facie eligible for naturalization. 51 Matter of AcostaHidalgo held that the immigration judge and BIA lack jurisdiction to determine prima facie eligibility for naturalization in order to terminate removal proceedings. A practice advisory published by the Legal Action Center of the American Immigration Council discusses arguments practitioners may use to challenge Matter of Acosta-Hidalgo. 52 AGGRAVATED FELONY CONVICTIONS AND NATURALIZATION As illustrated above, practitioners filing naturalization applications for clients with a criminal record must be knowledgeable about the criminal grounds of removal and admissibility. Aggravated felonies are especially problematic and foreclose many avenues of relief. Aggravated felony is an immigration term of art that has no relation or connection to the definition of a felony in state criminal law. The term includes many misdemeanors and offenses with no aggravating circumstances. The definition of an aggravated felony is broad and includes offenses such as murder, drug
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Id. Matter of CVT, 22 I&N Dec. 7 (BIA 1998); see also Matter of Edwards, 20 I&N Dec. 191 (BIA 1990); Matter of Marin, 16 I&N Dec. 581 (BIA 1978), regarding the 212(c) discretionary factors. 50 Matter of Acosta-Hidalgo, 24 I&N Dec. 103 (BIA 2007). Barnes v. Holder, No. 09-1782 (4th Cir. Nov. 10, 2010). In Barnes, the U.S. Court of Appeals for the Fourth Circuit joined every circuit to have considered the issue in finding that the BIAs interpretation of 8 CFR 1239.2(f) [Matter of AcostaHidalgo, 24 I&N Dec. 103 (BIA 2007)] is neither plainly erroneous nor inconsistent with the regulation. The other circuits upholding Matter of Acosta-Hidalgo are the U.S. Courts of Appeals for the Fifth Circuit [Ogunfuye v. Holder, 610 F.3d 303, 308 (5th Cir. 2010)]; Third Circuit [Zegrean v. Atty Gen. of United States, 602 F.3d 273, 27475 (3d Cir. 2010)]; Second Circuit [Perriello v. Napolitano, 579 F.3d 135, 142 (2d Cir. 2009)]; and Ninth Circuit [Hernandez de Anderson v. Gonzales, 497 F.3d 927, 93334 (9th Cir. 2007)]. 52 Terminating Removal Proceedings to Pursue Naturalization before DHS: Strategies for Challenging Matter of Acosta Hidalgo (Updated Oct. 2, 2009), published on AILA InfoNet at Doc. No. 08031837 (posted Oct. 2, 2009), available at www.aila.org/content/default.aspx?docid=24956.
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trafficking, sexual abuse of a minor, firearm trafficking, fraud or deceit where the loss to the victim exceeds $10,000, forgery, crime of violence, theft or possession of stolen property offenses for which the sentence is at least one year; the definition covers an attempt or conspiracy to commit any of the enumerated offenses. 53 An aggravated felony applies regardless of when the crime was committed, and also bars most forms of relief from removal including cancellation of removal, asylum and withholding from removal. 54 Whether an aggravated felony bars naturalization continues to be a source of confusion and often leads to wrongful denials by ISOs. 55 INA 101(f)(8) statutorily precludes a person convicted of an aggravated felony at any time from demonstrating good moral character. DHS implementing regulations, however, provide that an aggravated felony is a permanent bar to a finding of good moral character if the aggravated felony conviction occurred on or after November 29, 1990. 56 The regulation reflects Congress stated intent that the statutory bar to a good moral character finding based on an aggravated felony conviction shall take effect on the date of the enactment of this Act [November 29, 1990] and shall apply to convictions occurring on or after such date. 57 Practice Pointer: It is very important that practitioners read and analyze the criminal statute to make sure that the offense is an aggravated felony and satisfies the definition of a conviction under INA 101(a)(48). The definition of conviction for immigration purposes is broader than federal and state criminal law definitions and makes certain criminal dispositions not considered convictions under state law, convictions for immigration purposes. For example, vacatur and dismissal of a plea to a controlled substance offense following successful completion of a drug program remains a conviction for immigration purposes. 58 On the other hand, an adjudication of youthful offender status pursuant to Article 720 of the New York Criminal Procedure Law, which corresponds to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act was not considered a conviction under 101(a)(48)(A). 59 PostNovember 29, 1990, Aggravated Felony An applicant for naturalization who was convicted of an aggravated felony on or after November 29, 1990, irrespective of when the crime was committed, is permanently barred from establishing good moral character under the Act as amended by IMMACT90. The permanent bar applies even if the individual was previously in immigration proceedings and was granted a waiver or cancellation of removal. 60 It is probable that USCIS will deny a naturalization application involving a post-November 29, 1990 aggravated felony
INA 101(a)(43). INA 240A(a)(3), 208(b)(2)(B)(I), 241(b)(3)(B). 55 The authors are aware of instances in New York where the ISOs have routinely misapplied the aggravated felony bar to naturalization. 56 8 CFR 316.10(b)(1)(ii). See also AFM chs.73.6(d)(1) and 73.6(d)(3)(A). 57 IMMACT90, Pub. L. No. 101-649, 509 (a)(b), 104 Stat. 4978, 5051 (1991) [amending INA 101(f)(8)]. 58 Matter of Roldan, 22 I&N Dec 512 (BIA 1999), holding that in enacting 101(a)(48), Congress legislatively overturned the Boards decision in Matter of Manrique, 21 I&N Dec. 58 (BIA 1995) [accepting state expungement of a first drug offense as long as the conviction would have qualified for Federal First Offenders Act (FFOA), 18 USC 3607(b), treatment in federal court]. Addressing the same issue post-IIRIRA, the Ninth Circuit has been the only circuit to disagree with the BIA, holding that a drug-related conviction expunged under a state law analogous to the FFOA is not a conviction for immigration purposes. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). Practitioners in the Ninth Circuit have relied on Lujan and preceding decisions for over 17 years; the Ninth Circuit, however, currently is considering a DHS Petition for Review challenging the Lujan holding. Nunez-Reyes v. Holder, 602 F.3d 1102 (9th Cir. 2010) (per curiam), vacated 2010 WL 3816719 (9th Cir. Sept. 24, 2010). An amicus brief was filed by AILA on November 6, 2010; oral argument was held Dec. 16; and a second AILA amicus brief was filed on Dec. 21, 2010, published on AILA InfoNet at Doc. No. 10112376 (posted Nov. 23, 2010), available at www.aila.org/content/default.aspx?docid=33707 and Doc. No. 11011964 (posted Jan. 19, 2011), available at www.aila.org/content/default.aspx?docid=34189. As of early Apr. 2011, the matter was still pending. For an informative history of the demise of Manrique after IIRAIRA, Ninth Circuit disagreement with Roldan and current status of Nunez-Reyes, see AILAs Immigration Slip Opinion Blog entry, D. Smith, Ninth Circuit Litigation Update: State of Law in Ninth Circuit on Expungements & Predicting Chaos (Jan. 20, 2011), available at www.ailaslipopinionblog.org. 59 Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000). 60 INA 101(f)(8); see also 316(d).
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conviction and initiate removal proceedings against the applicant. 61 If the applicant is subject to mandatory detention due to the conviction, he also may be arrested and detained pending the outcome of removal proceedings. Practice Pointer: If an LPR with a post-November 29, 1990, aggravated felony conviction consults you after filing the naturalization application and before the application is adjudicated, you can assist the client in requesting that USCIS exercise prosecutorial discretion and not initiate removal proceedings. 62 The request for prosecutorial discretion should include documentary evidence of the persons extensive and long-term ties to the United States, family ties, employment and tax history, affidavits from family and friends attesting to the persons good moral character, mitigating factors for the criminal conviction and should demonstrate reformation and rehabilitation. If the exercise of prosecutorial discretion seems unlikely and the client has no relief in removal proceedings or other options available, he could try withdrawing the N-400 in the hope USCIS does not discover the offense before sending the file back to the National Records Center. PreNovember 29, 1990, Aggravated Felony An individual who pleads guilty or is convicted after trial of an aggravated felony offense prior to November 29, 1990, is not precluded from demonstrating good moral character and is eligible to apply for naturalization. If no bar applies to the applicant, the INA 101(f) catch-all provision allows USCIS to find a lack of good moral character on other grounds.63 This provision, however, does not grant USCIS the power to deny applicants at will. The determination of good moral character must be made on a case by case basis by balancing the negative and positive equities with the applicants criminal history being only one factor in the determination. 64 It is important to remember that an aggravated felony offense committed at any time is a ground for removal. USCIS can do two things when an applicant with a pre-November 1990 aggravated felony applies for naturalization: USCIS can exercise prosecutorial discretion and adjudicate the application. The Service adjudicates these cases on a case by case basis taking into consideration the seriousness of the aggravated felony conviction, the persons present moral character measured against the standards of the community. 65 Pursuant to INA 101(f) and 316(e) and the implementing regulation, 8 CFR 316.10(a)(2); the application will be denied if there has not been a reformation of character during the prescribed statutory period. Alternatively, USCIS may decide to refer the file to ICE to initiate removal proceedings. A 2006 Memorandum of Understanding between USCIS and ICE requires USCIS to refer certain crimes labeled as egregious public safety cases, including aggravated felonies, to ICE for initiation of removal proceedings. 66 As soon as removal proceedings are initiated, USCIS will deny the naturalization application on the basis that removal proceedings are pending. 67 The applicant may request that the immigration judge terminate proceedings pursuant to 8 CFR 1239.2(f) so that he may continue to pursue the naturalization application; as discussed above, however, the authority of the Immigration Judge is
INA 237(a)(2)(A)(iii). See discussion herein, supra, on prosecutorial discretion; see also INS Memorandum, D. Meissner, Exercising Prosecutorial Discretion (Nov. 17, 2000), published on AILA InfoNet at Doc. No. 00112702 (posted Nov. 27, 2000), available at www.aila.org/content/default.aspx?docid=16891. 63 The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. INA 101(f). See also 8 CFR 316.10(a)(2); AFM ch. 73.6(d)(3)(A). 64 Ikenokwalu-White v. INS, 316 F.3d 798, 805 (8th Cir. 2003) (interpreting the INA 101(f) catch-all phrase as requiring considerations of positive and negative aspects of applicants character); Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986) (same); AFM, ch. 73.6(d)(3) (Discretionary findings should be made on a case-by-case basis, and should include consideration of all factors relevant to the case). 65 Id. 66 USCIS Memorandum, M. Aytes, Disposition of Cases Involving Removable Aliens (July 11, 2006), published on AILA InfoNet at Doc. No. 06090871 (posted Sept. 8, 2006), available at www.aila.org/content/default.aspx?docid=20477. 67 INA 318 divests the attorney general of jurisdiction to consider an application for naturalization when removal proceedings are pending. There are exceptions for certain noncitizens who naturalize through service in the U.S. armed services. INA 328, 329.
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limited. 68 On the other hand, the client can apply for relief from removal if eligible. If the client is successful in removal proceedings, he may reapply for naturalization and provide USCIS with documentary evidence of good moral character and reformation of character. UNLAWFUL VOTING/FALSE CLAIMS TO U.S. CITIZENSHIP Many lawful permanent residents, for reasons ranging from intent to fulfill their civic duty to being told by a registrant they are eligible to vote, unknowingly register to vote in a state, federal or local election. Applicants for naturalization only discover they are not allowed to vote when they readily admit the infraction at a naturalization interview. If the acts occurred after September 30, 1996, USCIS subsequently initiates removal proceedings charging applicants with either or both unlawful voting under INA 237(a)(6)(A) and false claim to U.S. citizenship under INA 237(a)(3)(D). IIRAIRA added as grounds of inadmissibility under INA 212(a)(10)(D) and 212(a)(6)(C)(2) and as grounds of deportation under INA 237(a)(6) and 237(a)(3)(D) the acts of unlawful voting and falsely claiming citizenship to obtain a benefit under the INA or any other federal or state law. 69 Under IIRAIRA, the false claims to citizenship must have been made on or after September 30, 1996; the unlawful voting could have occurred at any time. 70 Congress created a limited exception to these grounds of deportation and inadmissibility for certain children of U.S. citizens. 71 Referencing the November 17, 2000 Doris Meissner memorandum on prosecutorial discretion, 72 Deputy Executive Associate Commissioner of Operations William R. Yates, published detailed guidance to the field regarding handling naturalization applications of noncitizens who unlawfully voted or registered to vote. 73 Failing to follow the Yates memo, many USCIS district offices have routinely denied naturalization applications and simultaneously initiated removal proceedings when individuals admit to voting in an election. Practice Pointer: Before filing an N-400, practitioners should question their client carefully about whether they have ever registered to vote or voted in an election. If the client registered to vote or voted in an election after September 30, 1996, carefully read the Yates memo on how adjudication officers should handle these cases and review the voting statute in your state and municipality. Many state statutes penalize the act of voting only where there is a finding that the person knowingly or willfully violated the statute. If your client voted without understanding it was unlawful and you decide to assist him in filing the N400, determine the circumstances surrounding his registration to vote. Have your client request that his name be removed from the voter registration list and provide USCIS with proof. Help him prepare an affidavit explaining why he voted and indicate that he did so unknowingly; reference the state law. Be prepared to provide USCIS with documentary evidence of your clients positive equities using the six-step check list in the Yates memo as guidance. If USCIS denies the naturalization application and initiates removal proceedings, the client may be able to challenge his or her removal on the ground that he did not have the mens rea required to violate the statute. If successful, the immigration judge may terminate proceedings for the client to pursue naturalization. Alternatively, the client can apply for cancellation of removal if eligible. Note: If the USCIS denial did not
68 In Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007), the BIA held that upon receiving an affirmative communication from USCIS that a person in removal proceedings is prima facie eligible for naturalization, immigration judges can terminate removal proceedings if the case involves exceptional and humanitarian factors and allow the respondent to pursue naturalization. 69 IIRAIRA 347(c) (unlawful voting), 344(c) (false claim to citizenship). 70 Id. 71 Child Citizenship Act of 2000, P.L. 106-395, 114 Stat. 1631, secs. 201(b)(1)(2). 72 IIRAIRA 304(b). 73 Legacy INS Memorandum, W. Yates, Procedures for Handling Naturalization Applications of Aliens Who Voted Unlawfully or Falsely Represented Themselves as U.S. Citizens by Voting or Registering to Vote (Nov. 7, 2002), published on AILA InfoNet at Doc. No. 05030768 (posted Mar. 7, 2005), available at www.aila.org/content/default.aspx?docid=12492.
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follow the guidance outlined in the Yates memorandum, your client may have a claim that removal proceedings were initiated improperly. AMELIORATING CRIMINAL CONVICTIONS If your client is precluded from demonstrating good moral character within the statutory prescribed period or is subject to removal due to a conviction outside the period, another option is to explore amelioration of the conviction. Post-conviction Relief Post-conviction relief is the process where a client files a motion, habeas corpus or coram nobis, in state or federal court to vacate his guilty plea or conviction because of procedural or substantive defects in the underlying case. Sometimes the motion is for vacatur based on a rehabilitative statute. Post conviction relief can result in vacating the conviction and dismissal of the charge, or a plea to a new charge with minimal or no adverse immigration consequences. Alternatively, a client may seek modification of a sentence that would free her from the throes of mandatory removal and create an avenue for relief in proceedings. Practice Pointer: Practitioners should be thoroughly familiar with the definition of conviction under INA 101(a)(48) and precedent cases analyzing what judicial actions result in a conviction or nullify a conviction for immigration purposes. INA 101(a)(48) defines a conviction as a formal adjudication of guilt; or where adjudication has been withheld, a finding of guilt by a judge or jury or the noncitizen has pled guilty or nolo contendere or admitted sufficient facts to warrant a finding of guilt, and a judge has ordered some form of penalty, punishment or restraint on the aliens liberty. A state rehabilitative action that does not vacate a conviction on the merits or grounds related to the violation of a statutory or constitutional right in the underlying criminal proceeding has no effect for immigration purposes. 74 Modification of a sentence, on the other hand, can be for any purpose including immigration purposes. For example, modification of a one-year sentence by one dayfrom 365 to 364 dayscould make an individual with an aggravated felony sentence conviction such as theft eligible to demonstrate good moral character, because the offense would no meet the definition of aggravated felony under 101(a)(43)(G). 75 Padilla v. Kentucky On March 30, 2010, in Padilla v. Kentucky, 76 the U.S. Supreme Court recognized deportation is a serious penalty and ruled that the Sixth Amendment of the U.S. Constitution requires criminal defense attorneys to advise defendants of the immigration consequences of a guilty plea. Failure to provide accurate advice constitutes ineffective assistance of counsel. If your client was not advised or was misadvised regarding the immigration consequences of his guilty plea, you should consider filing a Padilla motion. Practice Pointer: Prior to filing such a motion for ineffective assistance of counsel (in the criminal proceeding) pursuant to Padilla, you should determine if your state courts have ruled on whether the decision applies retroactively. Also, investigate whether the client can demonstrate prejudice as a result of defense counsel failing to advise or giving misadvice on the immigration consequences of the plea. Finally, caution your client that successful vacatur of a guilty plea does not guarantee that he will receive a more favorable disposition in criminal court. Rather, he likely will face the original charges in the complaint or indictment and possibly a harsher judgment and imprisonment. Expungement The statutes of several states provide for the erasure of convictions after a certain number of years or following a period of rehabilitation. Many clients and criminal defense counsel have the false impression that an expunged conviction either does not have to be disclosed to Immigration authorities; or if disclosed, the
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Matter of Roldan, 22 I&N Dec 512 (BIA 1999); Matter of Pickering, 465 F.3d 263 (6th Cir. 2006). Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006). 76 Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
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offense will have no effect on an application for a benefit or relief. In Matter of Roldan, 77 the BIA held that a state action to expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute has no effect. For immigration purposes, an expunged conviction remains a conviction under INA 101(a)(48)(A). Expungement of a naturalization applicants conviction record related to drug offenses and CIMTs committed during the statutory period will have no effect on the applicants inability to establish good moral character under 8 CFR 316.10(b)(2). 78 Practice Pointer: As part of the naturalization intake interview, practitioners should ask their clients specifically about vacated and expunged convictions. Pardons If a client has a compelling case, age old crime committed at a young age, evidence of rehabilitation and other positive factors; practitioners should consider applying for an executive pardon by the President of the United States or governor of any state. 79 A naturalization applicant who receives a full and unconditional executive pardon before the prescribed statutory period is not precluded from demonstrating good moral character provided she can demonstrate that reformation and rehabilitation occurred prior to the beginning of the statutory prescribed period. 80 Similarly, an applicant who receives a full and unconditional executive pardon during the statutory period, for having committed one or more CIMTs, or having been convicted of two or more offenses where the aggregate sentence actually imposed was five years or more, is not precluded from establishing good moral character. 81 The person also must demonstrate extenuating and exonerating circumstances that establish good moral character. 82 An executive pardon waives the grounds of removal under INA 237(a)(2)(A)(i)(iv): CIMTs, aggravated felonies, and high speed flight; 83 the pardon can turn around an individuals prospects of obtaining naturalization and avoiding removal. For example, an individual who pled guilty to robbery and was sentenced to more than a year in prison in 1997 [aggravated felony under 101(a)(43)(G)] is barred permanently from establishing good moral character. That person also is subject to removal for conviction of an aggravated felony and a CIMT. An executive pardon will eliminate the consequences of the offense so that the person will be eligible for naturalization and will not be subject to removal. Conversely, a pardon will not have the same effect for someone who pled guilty to trafficking cocaine in 1997, an aggravated felony under 101(a)(43)(B). While the pardon will waive the aggravated felony ground of removal [237(a)(2)(A)(iii)], it will not waive the violation of a law relating to a controlled substances ground [237(a)(2)(B)(i)]. Because the aggravated felony is waived, however, the pardon will remove the bar to naturalization and any other relief specifically precluded because of an aggravated felony conviction. It is important to note that an executive pardon waives the aforementioned grounds of removal; it does not waive inadmissibility under INA 212. Depending upon the conviction, a non-citizen who obtains a pardon so that he or she is eligible to naturalize must not travel outside the United States until he or she is a U.S. citizen. In the example above, although the theft offense is no longer a CIMT or aggravated felony ground of removal under 237(a)(2)(A)(i) and (iii), it still is a CIMT ground of inadmissibility under 212(a)(2)(A)(i)(I) and could be charged against a returning LPR who traveled abroad.
Matter of Roldan, 22 I&N Dec 512. 8 CFR 316.10(c)(3). 79 In May 2010, then New York Governor Paterson established an Immigration Pardon Panel to review petitions from long term lawful permanent residents who were at risk of deportation or ineligible for naturalization because of age old criminal convictions. The governor pardoned 30 out of 1,100 applicants before leaving office at the beginning of 2011. 80 8 CFR 316.10(c)(2)(i). 81 8 CFR 316.10(c)(2)(ii). 82 Id. 83 INA 237(a)(2)(A)(vi).
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77
JUDICIAL REVIEW OF NATURALIZATION APPLICATIONS AND CITIZENSHIP CLAIMS

by Robert Pauw, Emily Creighton, and Victor D. Nieblas Pradis *
JUDICIAL REVIEW OF NATURALIZATION APPLICATIONS Most practitioners are familiar with the administrative naturalization process. A person seeking naturalization files an application (Form N-400). He or she waits for an interview to be scheduled. If the application is approved at the time of the interview, then the applicant is sworn in as a U.S. citizen shortly thereafter. If the application is denied, then the applicant can file an administrative appeal. There are three circumstances in which federal courts intervene: (1) if there has been a delay in scheduling the interview, then the applicant can seek a mandamus order compelling USCIS to schedule an interview; (2) if 120 days or more elapses after the interview without a decision, then the applicant can seek judicial review of the naturalization application under INA 336(b); and (3) if the naturalization application is denied, then the applicant can obtain judicial review under INA 310(c). Mandamus Actions One of the main reasons for delay in scheduling an interview has been U.S. Citizenship and Immigration Services (USCIS) policy of not scheduling the interview until a security check has been completed. 1 Delay may also occur for other reasons, such as when the Department of Homeland Security (DHS) Office of Fraud Detection and National Security (FDNS) is conducting a fraud investigation into the applicants prior applications. Where there has been an unreasonable delay in scheduling the interview, a mandamus lawsuit can be filed to compel USCIS to act. The court has jurisdiction under 28 USC 1331 (general federal court jurisdiction), and 28 USC 1361 (mandamus jurisdiction). The complaint is filed as an Administrative Procedures Act (APA) action; Federal Rules of Civil Procedure apply. 2 The government may argue that district court jurisdiction is barred by INA 242(a)(2)(B). INA 242(a)(2)(B) precludes judicial review of a discretionary decision or action of the agency if that decision or action is specified by statute to be in the discretion of the attorney general or the secretary of DHS. Most courts that considered the issue have held that if USCIS fails to schedule an interview or adjudicate the
Robert Pauw is a partner in the Seattle law firm of Gibbs Houston Pauw and teaches immigration law at Seattle University. He has been counsel for plaintiffs in many significant immigration cases, including Smith & Armendariz v. U.S., Case No. 12.562 (IACHR 2010) (U.S. deportation policies violate international law); Ruiz-Diaz v. United States, 618 F.3d 1055 (9th Cir. 2010) (class action lawsuit benefiting religious workers); and Lee v. Gonzales, Case No. C04-449 RSL (W.D.Wash. 2006) (class action lawsuit for naturalization applicants). He is author of Litigating Immigration Cases In Federal Court, and AILA publication Emily Creighton is a staff attorney at the American Immigration Councils Legal Action Center. Ms. Creighton contributes to the work of the Legal Action Centers Litigation Clearinghouse and has represented plaintiffs and amicus curiae before the Board of Immigration Appeals and in various federal courts around the country. Victor D. Nieblas Pradis currently serves as AILA National secretary and practices immigration law in Southern California. He is a graduate of the University of California, San Diego and Loyola Law School, where he now serves as an adjunct professor. His areas of practice include family immigration, deportation defense, federal court litigation, and appellate work. Mr. Nieblas Pradis has had various cases published in the U.S. Court of Appeals for the Ninth Circuit. He also has served as the chairperson for the Immigration Law Section for the Hispanic National Bar Association and is a legal commentator for several local news broadcasts in Los Angeles. He is listed with Best Lawyers.
1 The security check includes IBIS and NCIC fingerprint checks for criminal history (which can be completed almost immediately), and an name check, which involves checking the applicants name and date of birth against FBI files, including reference files that contain the names of witnesses and victims of crimes.
See Fed. R. Civ. P. 8 for rules regarding how the Complaint should be drafted. See also AIC Practice Advisory, Mandamus Actions: Avoiding Dismissal and Proving the Case, available at www.legalactioncenter.org/practice-advisories-topic.
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application, then there is no decision or action for the court to review and, therefore, 242(a)(2)(B) does not bar judicial review. 3 Alternatively, the government may argue that district court jurisdiction is precluded because the agency action is committed to agency discretion by law. 4 This exception to general federal question jurisdiction under 28 USC 1331 applies only in rare circumstances where a court has no meaningful standards by which to judge the agencys action. 5 The majority view is that this provision does not divest courts of jurisdiction where there has been an unreasonable delay in the adjudication of a case. 6 The APA establishes the standard of review for the court: mandamus should issue if the agency fails to act within a reasonable time; i.e., the court should order USCIS to schedule an interview and adjudicate the application if there has been an unreasonable delay in scheduling the interview. 7 In determining whether a delay is unreasonable, some courts rely on the so-called TRAC factors, which include the following: The time agencies take to make decisions must conform to a rule of reason; Congressional guidelines may provide a rule of reason; Delays less tolerable when human health and welfare are at stake; Effect of expediting decision on agency activities of a higher or competing priority; The nature and extent of the interests prejudiced by the delay; No requirement to show impropriety lurking behind agency lassitude. 8 INA 336(b) Actions Under INA 336(b), a lawsuit can be filed 120 days after the date on which the examination is conducted if USCIS has not issued a decision within that time period. Courts have generally held that the 120-day period runs from the date of the first interview. 9 Some courts, however, have held that the
See, e.g. Sultan v. Roark, 2010 WL 1992195, (E.D. Cal. 2010); Karim v. Mukasey, 2009 WL 801732, *4 (D.Colo. Mar. 25, 2009); Kashkool v. Chertoff, 553 F. Supp.2d 1131, 113639 (D. Ariz. 2008); Hong Wang v. Chertoff, 550 F. Supp.2d 1253, 125657 (W.D.Wash. 2008); Saleem v. Keisler, 520 F. Supp.2d 1048, 105057 (W.D.Wis. 2007); Dong v. Chertoff, 513 F. Supp.2d 1158, 1163, n.7 (N.D. Cal. 2007); Liu v. Novak, 509 F. Supp. 2d 1, 47 (D.D.C. 2007); Tang v. Chertoff, 493 F. Supp.2d 148, 149, 15153 (D. Mass. 2007) (The duty to act is no duty at all if the deadline is eternity.); Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002). But see Safadi v. Howard, 466 F. Supp.2d 698 (E.D. Va. 2006).
4 5 6
5 USC 701(a)(2). See Heckler v. Chaney, 470 U.S. 821, 830 (1985); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971).
See, e.g., Saleem v. Keisler, 520 F. Supp.2d at 105758. See also ANA Intl Inc. v. Way, 393 F.3d 886, 89091 (9th Cir. 2004) ([A]ny determination that passes the more stringent test [under 242(a)(2)(B)(ii)], remaining subject to judicial review, also passes the lower bar of the APA test.); Hong Wang v. Chertoff, 550 F. Supp.2d 1253, 1255 (W.D.Wash. 2008) (applying ANA in the context of a mandamus delay case and holding that APA sec. 701(a)(2) does not bar judicial review). See also Ajmal v. Mueller, 07-206, 2007 WL 2071873 at *2 (E.D. Pa., July 17, 2007) (The USCIS has a non-discretionary duty to adjudicate applications for naturalization without unreasonable delay); Hanbali v. Chertoff, 2007 WL 2407232 at *23 (W.D. Ky. 2007) (same).
See 5 USC 555(b); 706(1); Lazli v. USCIS, 2007 WL 496351 *910 (D. Or. 2007) (finding a delay of 27 months in scheduling an interview constituted a failure to perform an agency duty within a reasonable time, and ordering USCIS to complete the adjudication of the naturalization application within 120 days). See Telecommunications Research & Action v. FCC, 750 F.2d 70, 7980 (D.C. Cir. 1984); Sawan v. Chertoff, 589 F. Supp.2d 817, 83132 (S.D. Tex. 2008) (requesting the parties submit additional briefing applying TRAC factors to the delay of the naturalization interview). See, e.g., United States v. Hovsepian, 359 F.3d 1144, 1151 (9th Cir. 2004) (en banc); Walji v. Gonzales, 500 F.3d 432 (5th Cir. 2007); Lifshaz v. Gonzales, 2007 WL 1169169 (W.D.Wash. 2007); Khan v. Chertoff, 2006 U.S. Dist. LEXIS 48937 (D. Ariz. 2006); Khelifa v. Chertoff, 433 F. Supp.2d 836 (E.D. Mich. 2006); Al-Kudsi v. Gonzales, 2006 WL 752556 (D. Or. 2006); Shalan v. Chertoff, 2006 U.S. Dist. LEXIS 253 (D. Mass. 2006); Meyersiek v. USCIS, 2006 WL 1582397 (D.R.I. 2006); El-Daour v. Chertoff, 417 F. Supp.2d 679, 683 (W.D. Pa. 2005); Castracani v. Chertoff, 377 F. Supp.2d 71 (D.D.C. 2005); Angel v. Ridge, 2005 U.S. Dist. LEXIS 10667 (S.D. Ill. 2005); Saidi v. Jenifer, 2005 U.S. Dist. LEXIS 35466 (E.D. Mich. 2005); Essa v. USCIS, 2005 U.S. Dist. LEXIS 38803 (D. Minn. 2005); Sweilem v. USCIS, 2005 U.S. Dist. LEXIS 19630 (N.D.
continued
9 8
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examination encompasses the entire process during which USCIS gathers information about an applicant (including the completion of the FBI name check), so that if the FBI name check is still pending, then the 120-day period has not begun to run. 10 Where the court accepts jurisdiction, it can either review the naturalization application de novo or alternatively remand the matter to the agency with appropriate instructions. 11 Thus, although courts may find jurisdiction over the petitions, they may decline to adjudicate the applications and remand to USCIS for further proceedings because the FBI checks are not complete. 12 There is no statutory guidance regarding the format for the petition or the procedures that the district court must follow. In the absence of any applicable rules, the petition for review is best drafted in the same way that a civil complaint would be drafted. The lawsuit is presumably a Petition for Review of Naturalization Application. The person filing the lawsuit is the petitioner, and the government is the respondent. However, there is no rule requiring this format. Petitions have been filed naming the attorney general as the respondent or, alternatively, USCIS as the respondent, or even In re [name of petitioner]. The Federal Rules of Civil Procedure apply to the proceeding and, thus, the litigation may involve discovery and preliminary motions practice, including a motion for summary judgment. After a lawsuit is filed under INA 336(b), USCIS may promptly adjudicate the application and file a motion to dismiss the district court proceeding as moot. However, the U.S. Courts of Appeal for the Second, Fourth, and Ninth Circuits have held that once a petition is filed under INA 336(b), the district court has exclusive jurisdiction over the naturalization application. 13 Where, after an INA 336(b) lawsuit has been filed, USCIS issues an approval notice or indicates a willingness to approve the application, counsel should obtain a court order directing that the naturalization application be approved. Without such an order, USCISs unilateral decision granting naturalization may be null and void. Moreover, such an order may be required in order to prevail in a request for attorneys fees under the Equal Access to Justice Act. 14 INA 310(c) Actions INA 310(c) provides that a person whose application for naturalization is denied may seek review in the U.S. district court for the district where he or she resides. The applicant must exhaust administrative remedies by filing an administrative appeal pursuant to 8 CFR 336.2 before filing a petition for review in the district court. The court reviews the naturalization application de novo. As with INA 337(b) lawsuits, there is no statutory guidance as to the format for the petition or the procedures that the district court is to follow. The case is handled as any other civil case in federal court. The government may seek to have the naturalization application denied based on an argument that the applicant is statutorily ineligible for naturalization. If the applicant is statutorily eligible for naturalization, then there will be an issue of good moral character which will normally have to be resolved at trial.
Ohio May 10, 2005). See also 8 CFR 336.1(a) (requiring USCIS to issue a written decision no later than 120 days after the date of the applicants first examination on the application).
10 11 12
See, e.g., Danilov v. Aguirre, 370 F. Supp.2d 441 (E.D. Va. 2005). INA 336(b).
For example, in Al-Kudsi v. Gonzales, 2006 WL 752556 (D. Or. 2006) at *3, the court remanded to USCIS with instructions to complete the FBI background check within 90 days or issue the certificate of naturalization. Bustamante v. Napolitano, 582 F.3d 403 (2d Cir. 2009); Etape v. Chertoff, 497 F.3d 379, 381 (4th Cir. 2007); United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc). See also Agarwal v. Napolitano, 2009 U.S. Dist. LEXIS 94283 (W.D. Tex. 2009); Zaranska v. DHS, 400 F. Supp.2d 500 (E.D.N.Y. 2005); Castracani v. Chertoff, 377 F. Supp.2d 71 (D.D.C. 2005); Meraz v. Comfort, 2006 WL 861859 (N.D. Ill. 2006).
13
14 See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept of Health and Human Res., 532 U.S. 598, 605 (2001) (in order to be considered a prevailing party, a plaintiff must not only achieve some material alteration of the legal relationship of the parties, but that change must also be judicially sanctioned; relief achieved through voluntary change prompted by a lawsuit lacks the necessary judicial imprimatur for a plaintiff to qualify as a prevailing party). Compare Aronov v. Napolitano, 562 F.3d 84, 87 (1st Cir. 2009) (en banc) (finding plaintiff was not prevailing party and attorneys fees were not available) with AlMaleki v. Holder, 558 F.3d 1200, 1206 (10th Cir. 2009) (finding plaintiff was prevailing party) and Abdelgalel v Holder, No. 10-10680, 2010 U.S. App. LEXIS 20243 (11th Cir. Sept. 30, 2010) (finding plaintiff was prevailing party and remanding to address whether governments position in INA 336(b) proceedings was substantially justified).
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4. Pendency of Removal Proceedings There are some circumstances in which an individual is both eligible for naturalization under INA 316 and removal from the United States under INA 237(a). If an individual who is deportable files an application for naturalization, then USCIS has authority to adjudicate the application on the merits and, indeed, many of these applications have been approved. 15 However, DHS can initiate removal proceedings by filing a Notice to Appear with the immigration court and, if DHS takes that step, USCIS can under INA 318 properly refuse to consider the application. The relevant question, for purposes of INA 318, is whether the removal proceedings are pending. 16 Some courts have held that if a petition is filed with the district court before DHS issues a Notice to Appear, INA 318 does not bar judicial review of the naturalization application. 17 On the other hand, if removal proceedings are commenced before the applicant files a petition for review with the district court, then the district court has no authority to review the naturalization application on the merits and order that naturalization be granted. 18 Where DHS has commenced removal proceedings before the applicant files a petition for review, the applicants recourse is to ask the immigration judge to terminate removal proceedings pursuant to 8 CFR 1239.2(f). According to this provision, an immigration judge can terminate removal proceedings to permit the respondent to pursue an application for naturalization provided: (1) the alien has established prima facie eligibility for naturalization and (2) the matter involves exceptionally appealing or humanitarian factors. The issue in 1239.2(f) cases is how the individual establishes prima facie eligibility for naturalization. In Matter of Acosta Hidalgo, 19 the Board of Immigration Appeals (BIA) reaffirmed its prior holding that the immigration judge and the BIA have no jurisdiction to make a determination of prima facie eligibility for naturalization. According to Acosta Hidalgo, removal proceedings can be terminated under 8 CFR 1239.2(f) only if DHS submits a statement confirming that the applicant is prima facie eligible for naturalization. In other words, by refusing to provide the required statement, DHS can prevent immigration judges from exercising discretion to terminate removal proceedings. Where DHS refuses to issue a statement that the applicant is prima facie eligible for naturalization, the applicant may consider filing an action in district court seeking a determination from that court. 20 The district court should have jurisdiction to issue an order declaring that the applicant is eligible for naturalization but
See, e.g., 74 Interpreter Releases 364 (Mar. 10, 1997). If legacy INS adjudicates the application on the merits and the applicant meets all the requirements for naturalization, his or her application should be approved. See, e.g., Tutun v. United States, 270 U.S. 568, 578 (1926) (there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them, and, if the requisite facts are established, to receive the certificate); Schwab v. Coleman, 145 F.2d 672, 676 (4th Cir. 1944) (those who come within its provisions are entitled to the benefit thereof as a matter of right, not as a matter of grace).
16 15
INA 318 states: no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this or any other Act.
See, e.g., Grewal v. Ashcroft, 301 F. Supp.2d 692, 69597 (N.D. Ohio 2004); Saad v. Barrows, 2004 U.S. Dist. LEXIS 11085, 1718 (N.D. Tex. June 16, 2004) (If section 1429 divested district courts of jurisdiction to review denials of naturalization applications, INS could effectively circumvent the congressionally mandated de novo judicial review of naturalization decisions simply by initiating removal proceedings pursuant to 8 USC 1229.) (citing Ngwana v. Atty Gen. of the United States, 40 F. Supp.2d 319, at 32122 (D. Md. 1999). See, e.g., De Lara Bellajaro v. Schiltgen, 348 F.3d 1042 (9th Cir. 2004) (district court has jurisdiction, but its scope of review is limited to determining whether USCIS was correct in its determination that removal proceedings are pending); Zayed v. United States, 368 F.3d 902, 906 (6th Cir. 2004) ([w]here the [legacy] INS has denied an application for naturalization on the ground that removal proceedings are pending, the district courts de novo review is limited to review of that threshold determination); Tellez v. INS, 91 F. Supp.2d 1356, 135758 (C.D. Cal. 2000) (no district court jurisdiction where [legacy] INS initiated deportation proceedings prior to a final agency decision on petitioners application for naturalization); Mosleh v. Strapp, 992 F. Supp. 874, 87576 (N.D. Tex. 1998) (no jurisdiction because deportation proceedings were reinstituted by [legacy] INS prior to filing of the lawsuit).
19 20 18
17
24 I&N Dec. 103 (BIA 2007). See 28 USC 1331 (general federal question jurisdiction) and 28 USC 2201 (the Declaratory Judgment Act).
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for the pendency of the removal proceedings. 21 However, the U.S. Courts of Appeals for the Sixth Circuit and the Ninth Circuit have questioned whether the district court has jurisdiction to issue a declaratory judgment that a person is prima facie eligible for naturalization. According to the Ninth Circuit: We doubt that Cruz [the holding in Cruz that prima facie eligibility can be established by a declaration from the district court] remains good law given that courts no longer naturalize. 22 JUDICIAL REVIEW OF CITIZENSHIP CLAIMS Many practitioners overlook the fact that individuals who are alleged to be non-citizens may turn out in fact to be U.S. citizens. The laws regarding the transmission of citizenship to descendants and the retention of citizenship by persons born outside the United States are complex and beyond the scope of this article. For our purposes, however, it is important to note that individuals who on first view appear not to be U.S. citizens may in fact be U.S. citizens, and federal courts may be called on to review these citizenship claims. Such claims arise in the federal courts primarily in three ways: (1) INA 360(a) (declaratory judgment action); (2) INA 242(b)(5) (citizenship claims made in removal proceedings); and (3) citizenship claims in habeas proceedings. Review in Declaratory Judgment Action The Declaratory Judgment Act provides that [i]n the case of actual controversy, district courts have jurisdiction to declare the rights and other legal relations of the interested parties. 23 In the context of citizenship claims, an actual controversy may arise where the Department of State refuses to issue a passport to an applicant, or where USCIS refuses to issue a certificate of citizenship. INA 360(a) provides that review of such claims can occur under the Declaratory Judgment Act. However, 360(a) does not permit jurisdiction if the issue of the applicants citizenship arose by reason of or in connection with any removal proceedings, or if the citizenship issue is an issue in any such removal proceeding. 24 At least one court has found that an applicants motion to reopen or reconsider the USCIS denial of a request for a certificate of citizenship to the Administrative Appeals Office (AAO) did not arise by reason of or in connection to a removal proceeding for purposes of district court jurisdiction. 25 Review in Removal Proceedings An individual in removal proceedings can defend against removal by claiming U.S. citizenship. The immigration judge and the BIA have jurisdiction to hear and resolve the citizenship claim, 26 and if the claim
See, e.g., Gatcliff v. Reno, 23 F. Supp.2d 581 (D.V.I. 1998). See also Matter of Cruz, 15 I&N Dec. 236 (BIA 1975) (holding that prima facie eligibility for purposes of 8 CFR 1239.2(f) can be established either by a communication from legacy INS or by a declaration of the court). But see De Lara Bellajaro, 348 F.3d at 1047 (doubting that the district court has jurisdiction to issue a purely advisory opinion concerning eligibility for naturalization). See De Lara Bellajaro, 378 F.3d at 1047; Zayed, 308 F.3d at 907, n.6 (noting that it is an open question whether district courts have jurisdiction after the 1990 transfer of authority to the Attorney General to naturalize). See also Hernandez de Anderson v. Gonzales, 497 F.3d 927, 934 (9th Cir. 2007) (doubting that there is district court jurisdiction because such review is only likely to produce unwarranted delay). These courts overlook the fact that the district courts do naturalize individuals and, in fact, have ultimate authority over the naturalization process. See, e.g., Hovsepian, 359 F.3d at 116263 (if a petition is filed under INA 336(b), then the district court has exclusive jurisdiction over the naturalization application); Etape v. Chertoff, 497 F.3d at 381 (same).
23 24 22 21
28 USC 2201.
Rios-Valenzuela v. DHS, 506 F.3d 393 (5th Cir. 2007) (noting that after removal proceedings are terminated, any future citizenship claim could be presented in a declaratory judgment action); Robertson-Dewar v. Mukasey, 599 F. Supp.2d 772, 78182 (W.D. Tex. 2009) (finding bar to review did not apply because petitioners claim was based on the fact that no approval or oath had occurred; thus, whether he was a citizen was not at issue).
25
See Ortega v. Holder, 592 F.3d 738 (7th Cir. 2010) (finding the declaratory judgment action was not longer tainted by its connection to removal proceedings because the applicants motion for reopening or reconsideration alerted the AAO that the removal proceedings had been terminated in her favor and was a substitute for a second application for a certificate of citizenship). See, e.g., Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330 (BIA 1969).
26
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is rejected, then it can be reviewed in a U.S. Court of Appeals pursuant to INA 242. Moreover, because citizenship is a jurisdictional issue 27 that can be considered at any time and because U.S. citizenship can be relinquished only intentionally and not by waiver, 28 the doctrine of exhaustion of administrative remedies does not apply. In other words, an individual can present a claim of U.S. citizenship for the first time on appeal, even if the issue has not been presented to the Immigration Judge or the BIA. 29 If the Court of Appeals believes that there is an unresolved genuine issue of material fact regarding the petitioners U.S. citizenship, then the court can transfer the case to the district court for a hearing. 30 There may be some situations in which the individual is left in limbo. In order to obtain an order of removal against an individual, the government has the burden of proof to establish alienage by clear and convincing evidence. 31 Where there is a non-frivolous citizenship claim, the government may not be able to meet this burden. The claim can be established as long as a fair preponderance of the evidence indicates that the applicant possesses a non-frivolous citizenship claim. 32 If the BIA issues an order of removal and an appeal is taken to the Court of Appeals, the latter should reverse the order of removal. Yet, the Court of Appeals may not be able to conclude that individual is in fact a U.S. citizen. According to INA 242(b)(5), if there are genuine issues of material fact about the individuals citizenship, then the case is to be transferred to the district court for a hearing on the claim. 33 The case in district court is to be handled as if it is a declaratory judgment action, 34 in which case the petitioner has the burden of proof. 35 If the petitioner cannot prove the citizenship claim by a preponderance of the evidence, then the court will not issue an order declaring that he or she is a U.S. citizen. Some courts have said that when the government opposes a declaratory judgment of an applicant who was given reason to believe he or she was a citizen, the government has a heavier burden of rebuttal proof and must establish fraud or error by clear, unequivocal, and convincing evidence. 36 If the petitioner cannot prove the citizenship claim by a preponderance of the evidence, then the applicant may still seek to file an administrative application for a certificate of citizenship from USCIS and pursue an appeal to the AAO if the application is denied. Review in Habeas Proceedings Prior to the REAL ID Act, courts held that a person could present a claim to U.S. citizenship in a habeas petition. 37
27 28 29
Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). See, e.g. Afroyim v. Rusk, 387 U.S. 253, 262 (1967).
See, e.g. Omolo v. Gonzales, 452 F.3d 404, 407 (5th Cir.2006) (Only an alien may be required to exhaust his administrative remedies; accordingly, we must determine whether Omolo is an alien in order to determine whether 1252(d)(1) bars our jurisdiction); Rivera v. Ashcroft, 394 F.3d 1129, 1140 (9th Cir. 2005) (the Constitution is violated when a person with a non-frivolous claim to U.S. citizenship is deported without receiving a judicial determination of that claim. The statutory administrative exhaustion requirement of 1252(d)(1) does not apply in such a case); Moussa v. INS, 302 F.3d 823, 825 (8th Cir.2002) (the exhaustion provisions of 1252(d)(1) do not apply to any person challenging a final order of removal, only to an alien, precisely what [petitioner] claims not to be). INA 242(b)(5)(B). See, e.g. Murphy v. INS, 54 F.3d 605, 608609 (9th Cir. 1995).
30 31 32
See Batista v. Ashcroft, 270 F.3d 8, 15 (1st Cir.2001); Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 33031 (BIA 1969); see also Scales v. INS, 232 F.3d 1159, 1163 (9th Cir.2000). See e.g., Dung Van Chau v. INS, 247 F.3d 1026, 1032 (9th Cir. 2001) (transfer to district court was appropriate after determining material factual disputes regarding derivative citizenship claim).
34 35 36 33
INA 242(b)(5)(B). See, e.g., Lim v. Mitchell, 431 F.2d 197, 199 (9th Cir. 1970).
See Id.; Sanchez-Martinez v. INS, 714 F.2d 72, 74 (9th Cir. Ariz. 1983); In re Petition for Naturalization of La Voie, 349 F. Supp. 68, 73 (D.V.I. 1972).
See, e.g. Rivera v. Ashcroft, 394 F.3d 1129, 1137 (9th Cir. 2005) ([b]ecause he has a colorable citizenship claim, Rivera has a constitutional right to judicial review, and may obtain such review via habeas corpus even after accepting deportation and waiving his right to appeal the IJs decision); see also Baeta v. Sonchik, 273 F.3d 1261 (9th Cir. 2001).
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Habeas corpus review was allowed in order to avoid the constitutional problems under the Suspension Clause if such review was barred. 38 Under the REAL ID Act, habeas jurisdiction to review orders of removal has been eliminated and any claims previously presentable in habeas proceedings are to be presented to the Courts of Appeal in a petition for review under INA 242. 39 Thus, where a person has been put in removal proceedings, judicial review of the citizenship claim can occur only in the Court of Appeals under INA 242. If the citizenship claim is not possible under 242 (for example because a petition for review was not filed within 30 days of the BIAs decision), thenas the Ninth Circuit recognized in Riveradifficult constitutional questions would arise. 40 In order to avoid these constitutional questions, the Ninth Circuit has indicated that a person subject to a final order of removal with a non-frivolous citizenship claim can file a motion to reopen with the BIA without regard to the time and number limits on motions to reopen. 41
38 39
Rivera v. Ashcroft, 394 F.3d at 113637.
REAL ID Act sec. 106(a)(1)(A)(iii), codified at INA 242(a)(2)(D). The purpose of the REAL ID Act amendment is to permit judicial review over those issues that were historically reviewable on habeas. H.R. Rep. 109-72, at 175 (2005). 394 F.3d at 1140 (the Constitution is violated when a person with a non-frivolous claim to U.S. citizenship is deported without receiving a judicial determination of that claim). Iasu v. Smith, 511 F.3d 881, 89293 (9th Cir. 2007) ([a] potential motion to reopen can suffice to alleviate suspension clause concerns).
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AUTOMATIC AND DERIVATIVE CITIZENSHIP

by Robert A. Mautino *
U.S. citizenship is arguably the goal of many, if not most, people who want to live and work in the United States. Most people know that citizenship can be acquired by birth in the United States or by naturalization. What many people do not know, including many immigration practitioners, is that there are other ways to acquire U.S. citizenship. Consequently, some people do not know that they are U.S. citizens (USC). The issue of possible claims to citizenship should be the first thing on the list of questions posed to new clients. The questions are simple: Where were you born? What about your direct-line ancestors (parents, grandparents, etc.)? Were any of these direct-line ancestors born in the United States or did they live for several years or more in the United States? The same questions should be asked about the clients spouse. If you find a U.S. citizen lurking in your clients ancestry, you may find that the citizenship claim passes down to your client. One reason is that some people acquire citizenship automatically without having to apply for it and, sometimes, without even knowing about it. If an ancestor simply lived in the United States, without more, no citizenship claim would arise. However, in the 19th century, people could become lawful permanent residents by getting off the boat, and they could apply for naturalization five years later. Social pressure often encouraged many people to naturalize as soon as possible in order to throw off old allegiances, and there may be a record of naturalization somewhere in your clients old shoe boxes or elsewhere. The charts and sample fact patterns below are designed to show how a few innocent questions might change the whole complexion of an immigration case. Take a look, for example, at the case of Ricardo below in the material. His mother acquired citizenship automatically and never knew it. That fact helped him to establish that he had been USC since birtha fact unknown to everyone until a wide-awake immigration practitioner solved the puzzle. Some clients may be U.S. citizens and not know it. See charts and examples below: BIRTH OUTSIDE THE UNITED STATES. TO USC PARENT(S)
Childs DOB Before 5/24/34 On/after 5/24/34 and before 1/13/41 Parent(s) residence to transmit Parent is USC with prior U.S. residence 1 a. Both parents USC, one with prior residence b. One parent USC with prior U.S. residence 2 Childs residence to retain None None Same as below
Robert A. Mautino is a partner of the San Diego firm of Mautino & Mautino, and has practiced immigration and nationality law exclusively since 1979. He has written many articles and spoken on numerous occasions on immigration and nationality law matters over the years. He is one of the few nationally recognized experts on the subject of United States citizenship law. Mr. Mautino is a certified specialist in immigration and nationality law and has been listed in Best Lawyers in America for many years. He has been a diplomatic and consular officer in the United States Foreign Service and chair of AILAs Southern California and San Diego Chapters.
1993 Revised Statutes (R.S.) section 1993 of the Revised Statutes of the United States, 1878, as amended by the Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat.797. 2 Act of May 24, 1934, 48 Stat. 797 (Act of May 24, 1974, 48 Stat. 797).
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AUTOMATIC AND DERIVATIVE CITIZENSHIP a. Both parents USC, one with prior residence b. One parent USC with 10 years prior U.S. residence (at least 5 years after age 16) 3 On/after 12/24/52 a. Both parents USC, one with prior residence b. One parent USC w/ 10 years physical presence (at least 5 years after age 14) if born before 11/14/86 or 5 years physical presence 4 (at least 2 years after age 14) if born on/after 11/14/86 5 None 2 years continuous presence between ages 14 and 28 None None
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On/after 1/13/41 and before 12/24/52
EXAMPLES: (HOW TO USE THE CHART) Citizenship from GrandfatherAlso Known as Double Dipping Frank is born on May 3, 1941 in Mexico; his sister Maria is born on June 24, 1934 in Mexico; their mother was born in 1917 in the United States, but moved to Mexico in 1933, where she married their father. She separated from the father and brought the children to the United States in 1942. Frank thought he was a USC, but the Department of State denied his passport application. What to do? You ask the initial questions (above) and learn that the father was born in Mexico in 1913, but his father was born in New Mexico in 1867 and moved to Mexico in 1876. The chart shows you that the father was a USC at his birth in 1913 and that, therefore, Frank and Maria had two citizen parents. Thus, they were USCs at birth. Frank thought he was a citizen because of his mother. However, she lived 17 years in the United States, but did not live for five years after the age of 16. Thus, she could not transmit citizenship to Frank. However, she could transmit citizenship to Maria, who was born at a different time, but Maria would then have been subject to the retention requirement. By tracing citizenship from both parents, the retention requirement was avoided. Change in the Law Makes Winston Churchill a USC Winston Churchill was born in England to an English father and a USC mother. At that time (1874) and up to May 24, 1934, only USC males could transmit citizenship to their children born abroad. However, in 1994, the U.S. Congress changed the old law and made the change retroactive to all births before May 24, 1934, thus making Churchill a USC from birth. 6 His wife (married 1908) thus acquired U.S. citizenship by marriage (under an old law) and his children acquired citizenship at birth because Winston had been in the United States prior to their births. While Winston and his wife are deceased, his children, if alive, can be documented as USCs and, perhaps, some of his grandchildren might have a claim to citizenship. 7 Facts from a Real Case: Can You Figure Out the Citizenship Claim? Ian Smith (born in Canada in 1955) is an L-1 visa holder working for a U.S. defense company; the company wants him to become a citizen so he can handle classified material. You learn Ians mother was born in Canada in 1924 to parents who were born in New Hampshire. She never lived in the United States.
3 4
Nationality Act of 1940, 201(c), (g). INA 301(c), (g). 5 INA 301(g), amended by Pub. L. No. 99-653, 100 Stat. 3655. 6 INA 301(h). 7 Id.
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Ians father was born in Canada in 1924 to a father born in Scotland in 1890 who in 1910 immigrated to the United States, but moved to Canada without naturalizing in the United States. His father (Ians great grandfather) was born in New Jersey in 1855, but his parents moved with him back to their native Scotland in 1860. Ians father, born in 1924, served in the Canadian army in World War II and was stationed at a U.S. Army base for two years. BIRTH OUTSIDE U.S. TO UNMARRIED PARENT(S) Child is not legitimated If child was born before December 24, 1952, then he or she is a USC provided that the mother was a USC with prior residence. 8 If a child was born on or after December 24, 1952, then the child is a USC if the mother was a USC with one year of continuous presence. 9 Child is legitimated by citizen father: More complicated rules, depending on date of birth of the child. Basically, the child had to be legitimated before age 21 until 1986 legislation. Now, the father can acknowledge paternity for the child under age 18. This applies to children born on November 15, 1968 and thereafter. 10 Example Maria was born in the United States in 1965; she lived in United States until age 2, when parents took her to Mexico. She and her boyfriend had two children in 1985 and 1987. They married and had a third child in 1988. The mother could transmit citizenship to the first two children born out of wedlock. She did not have the prior physical presence to transmit citizenship to the third child born in wedlock. AUTOMATIC CITIZENSHIP BY NATURALIZATION OF PARENT(S)
Date on which last condition fulfilled Pre 5/24/34 On/after 5/24/34 and before 1/13/41 On/after 1/13/41 and before 12/24/52 On/after 12/24/52 and pre 02/27/01 On/after 2/22/01 15 Maximum age when last condition fulfilled 21 21 18 13 18 (cutoff age was initially 16 years but 1978 amendment raised it to 18 years) 14 18 Naturalization of parent(s) Either parent Either parent Both parents Both parents Qualifications (child can be married) 11 citizenship began 5 years after child became LPR 12 illegitimate child did not derive in this period childs marriage bars derivation; (includes adopted child as of 01/05/78)
One parent
Nationality Act (NA) of 1940, 205. INA 309(c). 10 See INA 309(a). 11 1993 Revised Statutes (R.S.) section 1993 of the Revised Statutes of the United States, 1878, as amended by the Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat.797. 12 Id.; Act of May 24, 1934, 48 Stat. 797. 13 NA of 1940, 313, 314. 14 INA 320, 321. 15 Child Citizenship Act of 2000, Pub. L. No.106-395, 114 Stat. 1631 (Oct. 30, 2000).
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Example Ricardo was born in Mexico in 1937. His maternal grandfather immigrated to the United States in 1912 and naturalized in 1928. He immigrated his daughter (Ricardos mother, born in 1911) in 1929. They both returned to Mexico in 1935 because of the Great Depression. Ricardo is a USC. His mother automatically became a USC when she became a lawful permanent resident (LPR) in 1929 while under the age of 21. Ricardo had a USC mother with prior residence. He was a citizen at birth, but subject to the retention requirement. If he was unaware of his U.S. citizenship claim, he did not lose citizenship by failure to meet the retention requirements. If he knew he was a citizen and lost citizenship by failure to meet the retention requirements, he may get citizenship back by taking the oath per INA 324(d). Abelardo was born on June 5, 1965 in Mexico. His mother was an LPR and brought him to the United States on June 7, 1965, where he became an LPR per 8 CFR 211.1(b). His father naturalized in 1967. In 1973, the father obtained a legal separation from the mother and was granted sole custody of Abelardo, who was 7 years old at the time. Abelardo was deported for criminal activity in 1992 and again in 1994. He returned each time and is now in criminal proceedings for illegal re-entry after deportation. Abelardo is a USC. He became a USC automatically when all of the conditions were met while he was under the age of 18 years. The conditions were: (1) naturalization of the parent having legal custody; (2) child is LPR; and (3) child is under 18 years when all conditions fulfilled. He cannot be convicted of illegal re-entry because that section applies only to aliens.
FALSE CLAIMS TO U.S. CITIZENSHIP

by Mark Barr, John Patrick Pratt, and Tarik H. Sultan *
This practice advisory addresses the consequences of a false claim to U.S. citizenship by a noncitizen of the United States. A false claim to U.S. citizenship can render a foreign national either permanently inadmissible or removable from the United States. A limited number of exceptions, challenges, and defenses are, however, available, as discussed further below. OVERVIEW Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) 1 on September 30, 1996, only willful and material misrepresentations, including false claims to U.S. citizenship, made to a United States consular or immigration officer in the course of applying for a visa, admission to the United States, or related immigration benefit under the Immigration and Nationality Act (INA) 2 rendered a foreign national making such a claim inadmissible. Such a claim could still render the foreign national excludable under the old INA 212(a)(6)(C)(i) for fraud and misrepresentation. However, it should be noted that at that time, a false claim to U.S. citizenship made to a private entity, such as an employer or an airline, would not make a foreign national excludable under the old INA 212(a)(6)(C)(i). IIRAIRA introduced new provisions to the INA specifically addressing false claims to United States citizenship: the INA 212(a)(6)(C)(ii) ground of inadmissibility for foreign nationals who are seeking admission; and the INA 237(a)(3)(D)(i) ground of deportability for foreign nationals who have been admitted to the United States. Following the enactment of IIRAIRA, all false claims to U.S. citizenship, regardless of where made and to whom, became the potential basis for a charge alleging that a foreign national is inadmissible or deportable pursuant to these new grounds. Accordingly, when addressing a false claim to U.S. citizenship, the practitioners first step should be to determine when the claim was made. ELEMENTS OF A FALSE CLAIM INA 212(a)(6)(C)(ii) contains a ground of inadmissibility for any foreign national who falsely represents, or who has falsely represented, him- or herself to be a citizen of the United States for any purpose or benefit
Mark Barr is an associate at Lichter & Associates, where he focuses on the representation of removable foreign nationals, contested family and naturalization applications, administrative appeals, and related federal litigation. He graduated from the University of Denver, where he was a member of the Order of St. Ives, a general editor and author on the law review, and an intern at the immigration court. Before his reincarnation as an immigration attorney, he received a B.S. degree in Cell Biology from Cornell, and worked in research laboratories at Cornell, Yale, and SUNY Upstate Medical University. He is also the father of fiveincluding two lawful permanent residents. John Patrick Pratt is a partner at Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A., in Miami. Mr. Pratt received his B.A. degree from Florida State University with honors in 1994 and J.D. degree from Tulane University School of Law in 1997. He is admitted to the bars of Florida, the District of Columbia, U.S. District Court for the Southern District of Florida, U.S. Court of Appeals for the Eleventh Circuit, U.S. Court of Appeals for the Ninth Circuit, and the U.S. Supreme Court. Mr. Pratt is AV Rated by Martindale-Hubbell, and Florida Bar board certified in immigration and nationality law. Tarik H. Sultan is a shareholder in the firm of Wolf & Sultan P.C. in Tucson. He has served on the AILA Board of Governors, as well as on numerous national liaison committees with the U.S. Departments of Labor, Justice, and Homeland Security. His practice focuses on all areas and aspects of immigration law, with a particular emphasis in employment-based visas and employer sanctions defense. Mr. Sultan is listed in The Best Lawyers in America, Superlawyers, and Martindale Hubbells Bar Register of Preeminent Lawyers. Special thanks to Ksenia A. Maiorova for her contribution to this practice advisory. 1 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009-546 to 3009-724. 2 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.).
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under the INA, or any other federal or state law. INA 237(a)(3)(D)(i) contains an identical provision, applicable to a foreign national who has been admitted, making him or her subject to deportability. The elements of a false claim include: (1) A representation. According to U.S. Citizenship and Immigration Services (USCIS), the representation can be made orally, or in writing, under oath, or not under oath. 3 (2) Falseness. Unlike the ground of inadmissibility for fraud or misrepresentation at INA 212(a)(6)(C)(i), the false claim provision does not contain an element of willfulness. In a recent advisory opinion, the U.S. Department of State (DOS) reasoned that because (6)(C)(ii) does not contain an intent requirement, it should be treated like a strict liability offense. However, in USCISs 2009 revisions to the Adjudicators Field Manual, the agency suggested that in order for 212(a)(6)(C)(ii) to apply, a foreign national must knowingly misrepresent the fact that he or she was not a citizen. 4 (3) For any purpose or benefit under the act, or any federal or state law. The false claim provisions are broader than the 212(a)(6)(C)(i) provisions, since there is no requirement that they be made before a U.S. government official. As explained in more detail later in this advisory, some benefits that fall under this provision include naturalization applications, voting, welfare benefits, and misrepresentation on an I-9. (4) Claim to U.S. citizenship. The provision does not include false claims to U.S. nationality. An individual who falsely claims to be a U.S. national (which currently only includes those born in American Samoa), is not inadmissible under 212(a)(6)(C)(ii), but may be inadmissible under 212(a)(6)(C)(i). This distinction is often critical when assessing a possible false claim made on an I-9. Prior to April 3, 2009, the I-9 form asked a job applicant whether he or she was a citizen or national of the United States. USCIS has adopted the position that checking this box is not enough to prove inadmissibility under 212(a)(6)(C)(ii), absent some additional evidence showing that the person actually claimed to be a U.S. citizen (USC). 5 TIMELY RETRACTION OF FALSE CLAIMS One possible defense to a false claim to U.S. citizenship is that the false claim, if made, was timely retracted by the foreign national. Prior to the creation of the false claim to U.S. citizenship ground of inadmissibility in IIRAIRA 6 in 1996, a person who made a false claim to U.S. citizenship to a government official would be rendered inadmissible under INA 212(a)(6)(C)(i) (fraud or material misrepresentation). This ground of inadmissibility allows for the defense of timely retraction. The DOS Foreign Affairs Manual states the following: 9 FAM 40.63 N4.6: A timely retraction will serve to purge a misrepresentation and remove it from further consideration as a ground for [INA 212(a)(6)(C)(i)] inadmissibility. Whether a retraction is timely depends on the circumstances of the particular case. In general, it should be made at the first opportunity. If the applicant has personally appeared and been interviewed, the retraction must have been made during that interview. If the misrepresentation has been noted in a mail-order application, the applicant must be called in for an interview and the retraction must be made during the course, thereof. For this reason, aliens must be warned of the penalty imposed by INA 212(a)(6)(C)(i) at the outset of every initial interview. Guidance may be sought through the advisory opinion process. 7
3
See USCIS Memorandum, D. Neufeld, Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators (Mar. 3, 2009). 4 Id. 5 See Ateka v. Ashcroft, 384 F.3d 854 (8th Cir. 2004); Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008) (finding INA 212(a)(6)(C)(ii) inadmissibility where foreign nationals specifically testified to having falsely claimed citizenship, in addition to checking the citizen or national box on their I-9s). 6 IIRAIRA, Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009-546 to 3009-724. 7 9 FAM 40.63 Notes.
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Since the passage of IIRAIRA, 8 and the introduction of INA 212(a)(6)(C)(ii) relating to post-September 30, 1996, false claims to U.S. citizenship, it was for some time unclear whether the defense of timely retraction applies to this subsection as well. Recent USCIS guidance clarifies that the defense survives in false claim context. 9 At least one court believes that the principle of timely retraction applies to post-IIRAIRA false claims as well. The U.S. Court of Appeals for the Ninth Circuit recently found a retraction was not timely because it was only made after repeated questioning, as well as after investigation by legacy Immigration and Naturalization Service regarding evidence that he was not, in fact, the person claimed. 10 OTHER DEFENSES The defenses, exceptions and challenges available depend on when the claim was made and whether the pre or the post-IIRAIRA provisions of the INA are applicable. As noted above, the false claim to U.S. citizenship provisions only apply to claims made on or after September 30, 1996; claims made before that date will be subject to the pre-IIRAIRA provisions applicable to fraud and misrepresentation. If the claim was made on or after September 30, 1996, the following defense may be available: Child Citizenship Act 11 exceptiona person will not be inadmissible if his or her: (1) parents are or were U.S. citizens (USCs); (2) the person permanently resided in the United States prior to age 16; and (3) the person reasonably believed at the time of making the claim that he or she was, in fact, a USC. 12 However, this exception will not apply if only one parent is a USC. 13 For all claims, regardless of when made: With regard to foreign nationals previously admitted, the government bears the burden of proof that the foreign national is removable by clear, unequivocal and convincing evidence. 14 Therefore, it may be advantageous to force the government to sustain its burden of proof rather than admit the charges, or, if applicable, challenge the charges. Look to the record of conviction, if any, to determine if the government has met its burden of proof. PRE-1996 FALSE CLAIMS The false claim inadmissibility and removability decisions are not retroactive. Having come into existence with the passage of IIRAIRA, 15 they only apply to foreign nationals who made false representation on or after September 30, 1996. A foreign national who made a false claim prior to that date is not inadmissible under INA 212(a)(6)(C)(ii) or removable under INA 212(a)(3)(D)(i). If, however, the person made a false claim to a U.S. government official prior to that date, for the purpose of gaining admission, then he or she may be inadmissible under INA 212(a)(6)(C)(i) for fraud or a material misrepresentation. This is an important distinction because the waiver provisions of INA 212(a)(6)(C)(iii) apply to foreign nationals inadmissible under INA 212(a)(6)(C)(i), but not to those inadmissible under INA 212(a)(6)(C)(ii). 16 If the claim was made before September 30, 1996, the following defenses may be available:
IIRAIRA, Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009-546 to 3009-724. See Adjudicators Field Manual (AFM) ch. 40.6.2(c)(2)(C)(viii) (2010); See also USCIS Guidance, Immigrant Waivers, Procedures for Adjudication of Form I-601 for Overseas Adjudication Officers, April 28, 2009 at 31, published on AILA InfoNet at Doc. No. 09061772 (posted June 17, 2009), available at www.aila.org/content/fileviewer.aspx?docid= 29272&linkid=204799. 10 Valadez-Munoz v. Holder, 623 F.3d 1304 (9th Cir. 2010). 11 Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631. 12 INA 212(a)(6)(C)(ii)(II). 13 See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 106364 (9th Cir. 2008). 14 Woodby v. INS, 385 U.S. 276 (1966). 15 IIRAIRA, Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009-546 to 3009-724. 16 See 9 FAM 40.63 N9.
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The claim was not willful or material; The claim was not made to a U.S. consular or immigration officer; The claim was not made for the purpose of obtaining a visa, admission to the United States, or related benefit under the INA; or The foreign national is eligible for an INA 212(i) waiver based on extreme hardship to a USC or lawful permanent resident (LPR) parent or spouse; and It should be noted that IIRAIRA eliminated children from the list of qualifying relatives for an INA 212(i) extreme hardship waiver. MINORS/IMPUTED FALSE CLAIMS The INA contains explicit exceptions for those individuals who became LPRs when under the age of 16 and whose parents are USCs. For such an individual, if he or she makes a false citizenship claim, but had a reasonable belief that he or she was actually a citizen, then the bar, or ground of removability, does not apply. 17 The exception was clearly created to protect those people who make false claims under the mistaken belief that they automatically acquired citizenship when they came to the United States as minors. However, while the exception is certainly useful, its coverage is fairly limited, and the question has arisen whether the single, explicit statutory exception limits the ability to read other exceptions into the language of the statute. Certainly there are other scenarios where a minor might unwittingly make a false claim to citizenship, but yet not fall under the statutory exception, or where other individuals make false claims on behalf of minors. Are those individuals also protected from the harsh penalties of the false claim provisions? As mentioned, the INA 212(a)(6)(C)(ii) provision does not contain an intent element, in contrast with the 212(a)(6)(C)(i) provision on fraud or willful misrepresentation, which suggests that the false claim ground of inadmissibility should be construed almost like a strict liability offense. However, there is a strong argument that either a mens rea, or a legal capacity element (very similar, but conceptually distinct arguments), should be read into the statute, limiting the reach of the penalty provisions by exempting a broader category of foreign nationals who made false claims when they were minors, and couldnt act with the arguably necessary capacity or state of mind. Anecdotally, there have been numerous stories of individuals who were able to successfully make these types of arguments in applying for, and receiving, admission to the United States in the years immediately following IIRAIRA. 18 There has even been at least one immigration judge who ruled that an unaccompanied minor child lacks the requisite legal capacity to make a false claim to U.S. citizenship. 19 In recent years, however, the Advisory Opinion Office at DOS has made it clear that their policy is to apply the false claim ground of inadmissibility to minors, no matter their age, and to not make any exceptions for those situations where someone else made the false claim on the minors behalf. While the office does not find regular misrepresentation for minors under the age of fourteen, pursuant to 212(a)(6)(C)(i), it does not apply the same rationale to the 212(a)(6)(C)(ii) grounds, relying on the absence of an intent requirement in that provision. Interestingly, in a recent memorandum to the field, USCIS has at least alluded to the fact that a false claim must be done knowingly. In the March 3, 2009 memorandum, 20 Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, USCIS states that: For section 212(a)(6)(C)(ii)(I) of the Act to apply, the claim to U.S. citizenship must be falsely made in that the foreign
INA 212(a)(6)(C)(ii)(II), 237(a)(3)(D)(ii). IIRAIRA, Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009-546 to 3009-724. 19 Matter of Jane Doe, file number not provided (IJ Oct. 2005) (St. Paul, MN), summarized at 83 Interpreter Releases 775 (Apr. 24, 2006). 20 USCIS Memorandum, D. Neufeld, Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators (Mar. 3, 2009).
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national knowingly misrepresents the fact that the individual is a citizen of the United States. Thus, the foreign national must have known that he or she was not a USC. (emphasis added). Despite this tantalizing tease, the memorandum then references the INA 212(a)(6)(C)(ii)(II) provision for an articulation of what facts an alien must prove to support a claim and defense that he or she reasonably believed him or herself to be a U.S. citizen. Nevertheless, future litigation in this area may be able to rely on the broader must have known language to support an argument that the explicit exception in 212(a)(6)(C)(ii)(II) is not the only way of demonstrating a lack of knowledge. There is at least one case at the circuit court level making that type of argument. In the U.S. Court of Appeals for the Eighth Circuit, the Immigrant Law Center of Minnesota has asked the court to address the legal capacity and rights of unaccompanied foreign national children. The case, Sandoval v. Holder, File No-09-3600, asks whether an unaccompanied minor child can be banned for life from coming to the United States as an immigrant for having made a false claim to citizenship at an age where there should be a presumption of a lack of legal capacity. Oral argument on the matter was taken in October 2010, so a decision should be forthcoming. As for cases involving imputed misrepresentation, the U.S. Court of Appeals for the Sixth Circuit, in the context of an INA 212(a)(6)(C)(i) issue, has recently said that imputation from a parent to a child is unreasonable in certain circumstances, especially where the imputation involves unlawful conduct. 21 The decisions reasoning could be applied equally to the false claim provisions of (6)(C)(ii) and (3)(D)(i), and counterbalances prior Board of Immigration Appeals and circuit court law that have imputed the knowledge of a parent to a child in situations regarding non-fraudulent conduct. 22 PURPOSE OR BENEFIT The scope of INA 212(a)(6)(C)(ii) is broader from that of subsection (i) for fraud or material misrepresentation. While the ground of inadmissibility for fraud or misrepresentation applies only where it is made to a government official, the inadmissibility bar for a false claim to being a USC applies where it is made for any purpose or benefit under the INA or any other Federal or State Law. For example, a foreign national who falsely claims to be a USC in order to obtain welfare benefits or for voting in a state election would trigger the bar at INA 212(a)(6)(C)(ii). 23 While false claims prior to September 30, 1996, made to an employer in the I-9 context would not have triggered inadmissibility under subsection (i) for fraud or material misrepresentation, because it is made to a private employer and not to a government official, subsection (ii) specifically identifies false claims to citizenship in the I-9 context as applying to the new ground of inadmissibility. 24 Bear in mind that the claim must be to actual U.S. citizenship, and a successfully argument may be made that the false claim statute is not applicable merely because a noncitizen checked the citizen or national box in earlier versions of the I-9 form. 25
Singh v. Gonzales, 451 F.3d 400 (6th Cir. 2006) (holding that the Board of Immigration Appeals decision to impute to a 5year-old girl the fraudulent conduct of her parents to be an unreasonable interpretation of the INA). 22 See Matter of Zamora, 17 I&N Dec. 395 (BIA 1980) (imputing the knowledge of the abandonment of U.S. residency to a child); Senica v. INS, 16 F.3d 1013, 1015 (9th Cir. 1994) (imputing a parents knowledge of inadmissibility to her child). 23 See 9 FAM 40.63 N13. 24 Ferrans v. Holder, 612 F.3d 528 (6th Cir. 2010) (false representation of citizenship by a foreign national for the purpose of obtaining private employment is a purpose or benefit under the INA, and for the purpose of evading 274As provisions). 25 The newly-released version of the I-9 Form addresses this issue by separating out the citizen or national box into two new options: (1) citizen of the United States; or (2) noncitizen national of the United States.
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HOT TOPICS AND CURRENT ISSUES IN THE ADMISSION OF BUSINESS TRAVELERS

by Leslie K. Dellon, Susan Fortino-Brown, Eli Maroko, and Donald K. Sheppard *
The following pointers address common and recurring problems encountered by our clients: H-1B TRAVELERS WHO ALSO HOLD ADVANCE PAROLE: CAN THEY CHOOSE? DO DERIVATIVE RELATIVES NEED TO ENTER ON PARALLEL DOCUMENTS? The short answers: Yes, they can choose and yes, derivatives must enter under the same status as the principal applicant. 1 Applicants for adjustment of status (AOS), who hold both an advance parole document as well as an H-1B visa, may choose the document on which they are to be admitted upon re-entry to the United States. Although in the recent past U.S. Citizenship and Immigration Services (USCIS) denied some nonimmigrant visa extension requests where applicants entered on advance parole documents, the agency has corrected this error and confirmed that entry on advance parole does not interrupt maintenance of nonimmigrant status. 2 What about the spouse: Must he or she be admitted under the same entry status as the lead applicant through whom he or she derives H-4 or L-2 status? Yes; in nearly all circumstances the spouses entry status must mirror that of the lead applicant, in order to avoid being found to have abandoned her application for adjustment of status. A comprehensive reading of the pertinent regulations under 8 CFR 245.2(a)(4) on the effect of departure while an AOS applicant for those who also have held H-1B or L-1 status gives even more reason to encourage clients to maintain lawful H-1B or L-1 status continuously during the pendency of an application for AOS. Pertinent regulatory language is as follows: 8 CFR 245.2(a)(4)(ii): Departure shall be deemed abandonment of application for adjustment unless the applicant was previously granted advance parole and was inspected upon returning. If the AOS is
Leslie K. Dellon is an attorney at Hammond Immigration Law, P.C. in Rockville, MD. She has served as chair of the AILA DC Chapter and chair of the National Benefits Center Liaison and Pro Bono committees. In 201011, she served as vice chair of the Ethics and Professionalism committee, with responsibility for the Immigration Practice News newsletter, and as a member of the CBP liaison committee. Susan Fortino-Brown has practiced immigration law exclusively since 1987. She is past chair of the Chicago AILA Chapter, has served on the Nebraska Service Center and U.S. Citizenship and Immigration Service (USCIS) Liaison committees; and is presently vice chair of the AILA Field Operations Liaison Committee. She is a previous member of the AILA Board of Governors and served as a member of the Board of Trustees of the American Immigration Council (AIC). Ms. Fortino-Brown practices in both business and family-based immigration matters. Eli Maroko is a partner at Jaffe, Raitt, Heuer & Weiss, P.C. in Southfield, MI. He has served as chair of the AILA Michigan Chapter, 200911, AILA-National Finance Committee Member, 201011, and AILA Conference Speaker, 2007 and 2008. He was named a Super Lawyer (Michigan and National Corporation Counsel Edition) in 2006, 2009, and 2010. Donald K. Sheppard has practiced immigration and nationality law in San Diego and New York. His experience includes all aspects of immigration and nationality law. He is a 2000 graduate of New York Law School, where he earned his J.D. degree. Prior to law school, he completed his undergraduate work in Economics at Marshall University, graduating with a Bachelor of Science in Business Administration. Mr. Sheppard is a partner with Jacobs Schlesinger & Sheppard LLP in San Diego. Prior to starting his own practice, Mr. Sheppard was a senior associate at Larrabee | Mehlman | Albi | Coker LLP.
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See 8 CFR 245.2(a)(4)(C).
Questions for AILA Executive Board Meeting with Boston USCIS on Feb. 27, 2008, published on AILA InfoNet at Doc. No. 08040231 (posted Apr. 2, 2008), available at www.aila.org/content/default.aspx?docid=25079; H-1 and H-4 Nonimmigrants Granted Advance Parole May Apply for Extensions, published on AILA InfoNet at Doc. No. 07102368 (posted Oct. 23, 2007), available at www.aila.org/content/default.aspx?docid=23666.
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subsequently denied the individual will be treated as applicant for admission, subject to INA 212 and 235. 8 CFR 245.2(a)(4)(ii)(B): Travel outside United States by applicant for AOS shall not be deemed abandonment if he or she was granted advance parole and was inspected and paroled upon returning. If AOS is denied, will be subject to INA 212 and 235. 8 CFR 245.2(a)(4)(ii)(C): travel outside United States by applicant for AOS who is in lawful H-1B or L1 shall not be deemed abandonment of AOS if upon returning to United States, alien remains eligible for H-1B or L-1 status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1B or L-1 and is in possession of valid H-1B or L-1 visa (if required) and the original I-797 receipt notice for AOS. Travel outside United States by an applicant for AOS who is in H-4 or L-2 status shall not be deemed an abandonment of AOS if spouse or parent (H-1B or L-1) is maintaining H-1B or L-1 status and he or she remains eligible for H-4 or L-2 with original I-797 receipt of AOS. These regulations appear inconsistent, and treat H-1B and L-1 nonimmigrants differently than other nonimmigrants, despite the dual intent allowed those nonimmigrants. 3 Under the regulations, an applicant may risk abandonment of AOS due to his failure to maintain H-1B status with the same employer through whom he previously was granted H-1B if he departs the United States despite obtaining advance parole. A relevant hypothetical example illustrates this scenario as follows: Employee X worked under valid H1B status, filed for AOS, an Employment Authorization Document (EAD) and advance parole. H-1B status expired and the employer did not file for extension of such status. Instead, employee X began working under the EAD duly issued by the USCIS pursuant to 8 CFR 274a.12(c)(9). Employee X left the first employer and worked for a second employer on the EAD. No extension of H-1B status was filed by the second employer. Employee X has failed to maintain lawful nonimmigrant status. Employee X then departs the United States after securing an advance parole document. While out of the United States, his new employer obtains an approved H-1B from USCIS with consular notification. Employee X is issued a new H-1B visa abroad and re-enters the United States on the new H-1B visa. Has he abandoned his AOS application? Arguably, yes, pursuant to 8 CFR 245.2(a)(4)(ii)(C), which specifies that unless the employee is returning to the United States to resume employment with his first H-1B employer, he may be found to have abandoned his Adjustment application. The restrictive language: [adjustment application] shall not be deemed abandoned if, upon returning to the United States, he remains eligible for status, and is coming to resume employment with the same employer for whom he had previously been authorized to work as H-1B or L-1. (Emphasis added.) Fortunately, however, USCISs interpretation of the regulation is somewhat lenient. According to the Adjudicators Field Manual (AFM), Employee X would not be found to have abandoned his adjustment application under our hypothetical. Under 8 CFR 245.2(a)(4)(ii)(C), H-1/H-4 or L-1/L-2 nonimmigrant adjustment of status applicants who are not in exclusion, deportation, or removal proceedings are not required to seek advance parole to travel abroad. They may be readmitted to the United States in the same status they maintained at the time of their departure, provided that they are able to demonstrate to the immigration officer at a port of entry that they: Remain eligible for H-1/H-4 or L-1/L-2 classification, Are in possession of a valid H-1/H-4 or L-1/L-2 nonimmigrant visa (if a visa is required), and Are coming to resume employment with the same employer for whom they had been authorized to work as an H-1 or L-1 nonimmigrant (or, in the case of dependents, the spouse or parent through whom they received their H-4 or L-2 status is maintaining his or her H-1 or L-1 status).
Dual nonimmigrant and immigrant intent within the H-1B and L-1 context are not addressed in this article.
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If there has been a recent change of employer or extension of stay, the applicant, in order to comply with the third requirement noted above, must have evidence of an approved I-129 petition in the form of a notation on the nonimmigrant visa indicating the petition number and the employers name, or a notice of action, Form I-797, indicating approval. 4 USCISs interpretation thus allows a new employer to obtain a new H-1B for Employee X, and he may reenter the United States under a new H-1B status without jeopardizing his AOS application. Yet, the dependent spouse and family members are restricted by the regulation and may only enter the United States under the same status as the lead spouse holding H-1B or L-1. This interpretation places the excess burden on the lead applicant to perpetually maintain H-1B status. The Foreign Affairs Manual (FAM) sheds light on this interpretation of the dependents status as follows: When an alien follows to join a principal, the consular officer must be satisfied that the principal is maintaining valid H-1B or L-2 status. 5 Therefore, all dependent visa holders may only enter on the same status as their lead applicants to avoid abandonment of their adjustment application. This interpretation has been affirmed by a 1999 letter from the U.S. Department of State (DOS), which confirms that unless the H-1B visa holder enters the US in the same classification, (i.e., H-1B), the dependent spouse is not admissible under H-4 classification. 6 USCIS has avoided inconsistent treatment, at least for H-1Bs, with its AFM interpretation that allows reentry under H-1B status for a new employer despite past H-1B violation, while not jeopardizing the application for adjustment. Moreover, spouses and dependents must be admitted in the same visa or entry classification as their lead applicants, in order to avoid a finding of application abandonment. LIMITATIONS ON STAY TO PASSPORT EXPIRATION UNDER THE WESTERN HEMISPHERE TRAVEL INITIATIVE Before January 31, 2008, U.S. citizens, Canadians, and Bermudians were not required to present any form of identification to a U.S. Customs and Border Protection (CBP) officer at a land port and could orally declare citizenship upon arrival. When the Western Hemisphere Travel Initiative (WHTI) Land and Sea final rule became effective June 1, 2009 (supplementing requirements for air travel which had gone into effect in January 2007), U.S. citizens, Canadians, and Bermudians passport requirements no longer were waived under INA 212(d)(4)(B). 7 CBP is not yet fully enforcing the WHTI document requirements at land ports 8 while CBP remains in a period of informed compliance with few WHTI-non compliant travelers being sent to secondary inspection. CBP is not yet prepared to fully enforce the WHTI document requirements. CBP fears that the 4 percent of travelers who do not have WHTI-compliant documents would increase the secondary inspection workloads (at CBPs 39 busiest land ports) by an average of 73 percent if they all required secondary inspections. 9
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Adjudicators Field Manual ch.23.2(A)(j)(1)(2)(A). 9 Foreign Affairs Manual (FAM) 41.53 N17.2.
See letter, J. Gorsky, Chief, Advisory Opinions Division, Directorate for Visa Services (Gorsky Letter), Feb. 9, 1999. When asked further about the issue of abandonment of the adjustment application for the principal applicant, the DOS responded: the fact that the principal applicant will be considered to have abandoned his adjustment application if he re-enters the United States on his visa rather than on advanced parole has no bearing on the issue of the derivative spouses entitlement to the status. Gorsky Letter, Feb. 24, 1999. Mexican citizens already were subject to passport requirements, also deemed met with a valid border crossing card from any contiguous territory. Since June 1, 2009, the Mexican passport requirement is waived at land ports for Mexicans with border crossing cards that are arriving only from Mexico (not from any other territory).
8 DHS, Office of Inspector General Report on CBPs Implementation of WHITI at Land Ports of Entry (DHS OIG Report) (Nov. 2010), published on AILA InfoNet at Doc. No. 10122075 (posted Dec. 20, 2010), available at www.aila.org/content/default.aspx?docid=33939. 9 7
Id. at 1.
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However, CBP appears to have implemented a requirement, apart from the documents required for entry, when determining the duration of approval available for Trade NAFTA (TN) and L admissions. In other words, the expiration date on the I-94 card issued on approval of TN or L status (to travelers subject to WHTI) generally is being limited to the passport expiration date. For example, a TN applicant qualifying and being approved for a full three-year period, who holds a passport with just one remaining year of validity, will, nonetheless, be issued an expiration date on the Form I-94 of just one year into the future. The AILA National CBP Liaison Committee, in its September 29, 2009, teleconference with CBP, requested that guidance be given to the ports-of-entry that TN and L-1 I-94 cards can be issued for the relevant periods (possibly three years for a TN, for example) even if the WHTI document (passport, Nexus card, or enhanced drivers license) will expire in less than three years. CBPs response was discouraging, stating that in general, the nonimmigrant application for admission as a TN or L should be admitted to the expiration of the WHTI compliant document. 10 CBP indicated that it would be consulting with legal counsel and working on clear guidance to the field on this issue. It suggested plans to issue guidance promptly. However, this authors review of the CBP website some 15 months later failed to reveal any FAQ or other update on this topic. As a result, we presently are left with the practical reality that CBP officers are limiting TN and L approvals to the expiration date of passport or other WHTI Compliant document. 11 The corollary to having Canadians L-1 or TN period of stay limited by their passport is that, after the passport or other WHTI-compliant document has been renewed, the holder will wish to extend the I-94 card authorization through the full period as was initially approvable. There are officially, three choices as to how to accomplish this: 1. File I-539, Application to Extend Stay with a USCIS Service Center. This may make practical sense if the applicant is not near an international border. 2. Go around the flag pole with a brief entry into Canada or Mexico, then turning around for readmission to the United States. This gives a CBP officer the opportunity to issue a new Form I-94, despite the typical entitlement to treat absences to Canada or Mexico of 30 days or less duration as if the foreign national had not left the United States. 3. Presentation at an airport pre-clearance inspection. Despite these three official options, a fourth possibility exists and, when available, may prove most expeditious. Visit a U.S. CBP officer at any port of entry, without departing the United States, and simply request assistance by marking-up the existing Form I-94 to extend the expiration date in recognition of the new passport expiration date. 12 While CBP headquarters does not have formal comment as to this fourth approach, as a practical matter, it is being made available by the courtesy of some officers. From practical experience, it is preferable to return to the same port in which the original WHTI-limited approval was given. However, in an ideal world, the initial WHTI-limited approval should have been annotated in the passport. Similarly, the initial WHTI-limited approval should have been noted in CBPs computer system. Either of these notations would be sufficient to enable a CBP officer at another port to similarly, voluntarily, mark-up the Form I-94 card to match the new passport expiration date. Our experience is that officers at ports unrelated to the initial decision may be reluctant to extend this courtesy. It is correct to characterize this as a courtesy, given that technically, the request for extending the I-94 date should be made while in the process of requesting re-admission to the United States. 13
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Minutes from AILA National CBP Liaison Committee Teleconference with CBP on Sept. 29, 2009 from 3:00 pm to 4:00 pm Eastern (Sept. 29, 2009), published on AILA InfoNet at Doc. No. 09102962 (posted Oct. 29, 2009), available at www.aila.org/content/default.aspx?docid=30426.
In fact, the DHS OIG Report at 12, found that CBP had not finalized its WHTI procedures, and that other priorities had precluded CBP management from giving final approval to draft policy and procedures.
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This request must be made before the current I-94 expires. Our thanks to P. Minton at CBP Headquarters for updating this information in preparation of this article.
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Does the Passport-Expiration Date Limit the Periods of Stay for Canadian Visitors? The limitation on authorized stay to the passport expiration date also theoretically applies to Canadian visitors, though Canadians are not issued Form I-94s for B-1 or B-2 admissions. 14 The uncertainty of an answer to this question is compounded by the fact that CBP appears to disagree with USCIS and the DOS interpretation of the length of stay permitted Canadians who enter as visitors and without I-94 cards. Legacy Immigration and Naturalization Service (INS), USCIS, and DOS policies consider visa-exempt Canadian nonimmigrant visitors not issued an I-94 card as admitted for duration of status; CBP considers the authorized period of stay to normally be six months and for not more than one year. 15 This raises significant issues as to whether a Canadian visitor overstays and as to future impact on inadmissibility. REVALIDATION RULE The automatic visa revalidation rule is frequently used by travelers since it permits certain individuals, in limited circumstances, to travel to Canada, Mexico, or an adjacent island without obtaining a new visa for reentry to the United States. 16 There are specific limits on who can use the automatic visa revalidation rule. Nationals of countries identified as supporting terrorism in DOS annual report to Congress entitled Patters of Global Terrorism are not eligible. 17 . In February 2011, when this article was prepared, the countries that were listed as state sponsors of terrorism and ineligible to partake in the automatic visa revalidation rule included Iran, Syria, Sudan, and Cuba. 18 Additionally, once a foreign national applies for a visa abroad the automatic visa revalidation rule no longer applies and the person must have a valid visa to return to the United States. Many clients wish to travel to Canada or Mexico to apply for a visa and it is important that they understand that if the visa is not issued they will not be permitted to return to the United States pursuant to the automatic visa revalidation rule; they must have a valid visa. If the foreign national travels outside the contiguous territory and then returns to the contiguous territory to be readmitted to the United States, the person must have a valid visa since his or her travels were not solely within a contiguous territory of the United States. What Documents Are Necessary for Automatic Visa Revalidation? A foreign national who wishes to travel pursuant to the automatic visa revalidation rule must travel with a valid passport, expired visa, and must not turn in the I-94 card when leaving the United States. If the airline requests that the I-94 card be returned, the individual should notify the representative that he or she will be returning to the United States in 30 days or less from a contiguous territory and will need the I-94 upon his or her return and the representative should permit him or her to do so. Although CBP officers are well versed with the automatic visa revalidation rule it is helpful for an applicant for admission to keep a copy of the
8 CFR 212.1(a)(1). 8 CFR 214.2(b)(1). See also AILA National Liaison Committee Meeting: Liaison Agenda Dec. 9, 2010Part I (Dec. 9, 2010), published on AILA InfoNet at Doc. No. 11012630 (posted Jan. 26, 2011), available at www.aila.org/content/default.aspx?docid=34271. In contrast, for example, see USCIS Memorandum, D. Neufeld, Consolidation of Guidance Concerning Unlawful Presence (May 6, 2009), published on AILA InfoNet at Doc. No. 09051468 (posted May 14, 2009), available at www.aila.org/content/default.aspx?docid=28871 on where USCIS stated that non-controlled immigrants (e.g., Canadian B-1/B-2) who are not issued a Form I-94 card, are treated as immigrants admitted for duration of status for purposes of determining unlawful presence. 16 Pursuant to 22 CFR 41.112(d), an individual is not required to have a valid visa stamp in order to re-enter the United States under certain circumstances. The regulation allows for automatic visa revalidation if the applicant applies for readmission after a brief visit not exceeding 30 days solely in a contiguous territory to the United States; has maintained and intends to resume nonimmigrant status; and is in possession of a valid I-94 and an expired visa stamp.
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See 22 CFR 41.112(d)(3). Country Reports on Terrorism 2009, U.S. Department of State Publication Office of the Coordinator for Counterterrorism, Released August 2010, see www.state.gov/documents/organization/141114.pdf.
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Automatic Revalidation Fact Sheet published by CBP. 19 For most foreign nationals the rule only covers travel solely in a contiguous territory, Canada, or Mexico. However, F-1 and J-1 students can travel to contiguous territories and adjacent islands other than Cuba and still use automatic visa revalidation. 20 FAILURE TO ADMIT FOR VALIDITY PERIOD OR PERIOD PROVIDED BY REGULATION Foreign nationals wishing to enter the United States need a valid visa unless the individual is from Canada or traveling as a visitor from a visa waiver country. Most foreign nationals, with the exception of Canadians in certain circumstances, must have a valid visa to enter to the United States in a nonimmigrant work status. The visa validity and the period of admission are not always the same. Additionally, the visa validity may not reflect the same date as the approval notice from USICS, if one is required. The validity of a visa depends on the purpose of the visa and the reciprocity with foreign countries which establishes the maxim periods of validity for visa issuance. 21 The visa is a prerequisite for entry, but does not guarantee entry and does not necessarily dictate the period of time for which the traveler will be admitted. 22 The Form I-94, which is supposed to include the admission period, governs the foreign nationals period of stay in the United States. It is important that individuals understand that if they overstay their I-94 card that their visa is automatically voided. 23 What Is the Admission Period for Certain Visa Holders? Foreign nationals entering in E-1 or E-2 status should be admitted for a two-year period of stay on their I94 cards. 24 Even if the E visa is expiring in less than 30 days, the regulations do not restrict the applicant to a shorter period of admission and the applicant should be admitted for a full two year period of admission. However, the applicant may not be admitted for a period of time more than six months beyond the expiration date of the aliens passport. 25 It is important that any foreign national seeking admission closely monitor his or her admission period so that he or she does not overstay the authorized period of time. Foreign nationals entering in H status should be admitted for the duration of their petition (Form I-797 approval notice) plus a period of 10 days before the validity of the petition begins and 10 days after the validity period ends. However, the beneficiary may not work except during the validity period of the petition. 26 An L-1 nonimmigrant initially seeking admission pursuant to a blanket petition may be admitted for a period of three years. 27 However, the validity of admissions for subsequent entries will be determined by CBP officers at the port of entry. The CBP officer will need to determine when the applicants five or seven year maximum period of stay in the United States will be met to determine the length of time for admission. 28
CBP Automatic Revalidation Fact Sheet (May 7, 2009) published on AILA InfoNet at Doc. No. 09061967 (posted June 19, 2009), available at www.aila.org/content/default.aspx?docid=29317. 20 22 CFR 41.112(d)(2)(ii). 21 22 CFR 41.112(b) and 9 FAM 41.112 N1. 22 If a foreign national has a passport that expires prior to the permitted admission period, he or she will only be admitted through the validity date of the passport. 9 FAM 41.104 N2.1. See Limitations on Stay and Passport Expiration supra. 23 INA 222(g). 24 8 CFR 214.2(e)(19). 25 8 CFR 214.2(e)(19)(iii). 26 8 CFR 214.2(h)(13). 27 8 CFR 214.2(l)(11). 28 Each subsequent admission should be limited to two years, up to a five year maximum for specialized knowledge (L-1B) or a seven year maximum for a manager or executive (L-1A). See 8 CFR 214.2(l)(15)(ii). As a practical matter, if CBP admits the applicant for three years instead of two, this should not be an issue so long as the applicant has sufficient time remaining in L-1 status.
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Members report recurring problems with CBP officers admitting people for subsequent three year admission periods on their Form I-94s when they are not entitled to that full period of time. 29 What if the CBP Officer Admits a Foreign National for an Incorrect Validity Period? If a CBP officer at the port of entry admits someone for an incorrect validity period of admission, it is important to try to fix the situation immediately. If the applicant notices this at the time of admission, he or she should ask the officer to admit him or her for the correct validity period authorized by law. If the officer is unwilling to do so then the applicant should request to speak to a Supervisor. If there is still no satisfactory result, the applicant can go to a deferred inspections office near where he or she lives and present all the valid documents used for entry and ask that the I-94 be corrected. If a mistake is noticed after the time of entry then the person should either contact the port of entry to seek assistance or go to a CBP deferred inspections office to request assistance. 30 CONCLUSION Errors in the classification in which a person is admitted to the United States or in the period of admission can jeopardize his or her ability to maintain status or to obtain another status in the future, whether nonimmigrant or immigrant. Encourage your clients to provide you on a timely basis with copies of their visas, Form I-94s and admission stamps. Educate them to review the entries made in their passports and on their Form I-94s before they leave the inspection area and not to be afraid to request corrections. Vigilance and knowledge of validity periods and rules can be a first line of defense against serious immigration consequences.
AILA continues to raise this issue with CBP. See AILA/CBP Liaison Meeting Report,Q&A #3 (Dec. 9, 2010), supra. The CBP Inspectors Field Manual (IFM) may be contributing to the confusion, initially stating If the alien is seeking readmission as a Blanket L-1, the Blanket Petition is still valid, and the alien is otherwise admissible, admit for an additional three years regardless of the balance of the time left on the initial admission. IFM ch. 15(l). A special note follows, however, qualifying that L-1s admitted under a Blanket Petition should not be admitted beyond the statutory five or seven year periods. IFM ch. 15(l)(C). A CBP memo and weekly muster obtained by AILA through a FOIA request clearly states: A blanket L-1 should be admitted for three years, unless that period of time will exceed the statutory limitations on the L-1 aliens stay in the United States and subject to the passport expiration date limitation. CBP Memo Regarding the Processing of L-1 Nonimmigrants (Mar. 16, 2009) (emphasis in original), published on AILA InfoNet at Doc. No. 10041564 (posted Apr. 15, 2010), available at www.aila.org/content/default.aspx?docid=31759. 30 A list of CBP Deferred Inspections office can be found at the following link: www.cbp.gov/linkhandler/cgov/toolbox/ contacts/deferred_inspection/deferred_inspection_sites.ctt/deferred_inspection_sites.pdf.
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PREVAILING WAGES: CONTINUING TO DEAL WITH THE NPWHC

by Susan M. MacLean, Angelica Grado-Wright, and Sharryn E. Ross *
This article will discuss how the U.S. Department of Labor (DOL) National Prevailing Wage Helpdesk Center (NPWHC) prevailing wage system is currently working and provide strategies for getting the appropriate Occupational Employment Statistics (OES) classification for prevailing wage purposes. CURRENT PROCEDURES FOR OBTAINING A PREVAILING WAGE FROM THE DEPARTMENT OF LABOR Obtaining the prevailing wage level that most accurately reflects the job description and requirements must begin with careful drafting of the prevailing wage determination request. All prevailing wage determination requests for H-1B, H-1B1, H-1C, H-2B, E-3, and Program Electronic Review Management (PERM) programs are currently submitted via Form ETA-9141 and processed by NPWHC. The Department of Labor preferred method of submission is electronically through the iCERT Visa Portal System at http://iCERT.doleta.gov/. An iCERT account and activation of the prevailing wage portal within that account is required to prepare and file PWD requests online. DOL has issued step-by-step instructions related to registration of an iCERT account and activation of the prevailing wage portal in the U.S. Department of Labor iCERT Prevailing Wage Quick Start Guide for External Users. 1 While electronic requests are strongly recommended by DOL, prevailing wage requests may still be submitted by mail to the NPWHC at the following address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, National Prevailing Wage and Helpdesk Center, Attn: PWD Request, 1341 G Street NW, Suite 201, Washington, D.C. 20005-3105. In preparing the ETA-9141, practitioners must make strategic decisions that best reflect the job opportunity and result in a prevailing wage level appropriate for the job. We discuss strategies for completing the form in detail below. There are certain sections to pay particular attention to when completing the form. Section D(b) requests information regarding the minimum requirements for the job including education, training, employment experience and special requirements. The ETA-9141 provides a field to enter a second degree requirement, but does not include a field to enter alternative requirements. In fact, DOL in its
Susan M. MacLean is a partner in the firm of Zulkie Partners, LLC, which specializes in business immigration law. She has spoken on labor certification, H-1B and other business related issues and has been a member of various AILA ACWIA and PERM comment teams. She has served on various AILA committees and was the 2005 AILA Annual Conference program chair. She was chair of the AILA DOL Liaison Committee from 2006 to 2008 and also served on the USCIS Benefits Policy Liaison Committee from 2008 to 2010. Angelica Grado-Wright is a senior associate in the Houston offices of Berry Appleman & Leiden. She has extensive experience practicing U.S. immigration law. Her current practice focuses on counseling corporate clients in a variety of industries in all aspects of immigration practice and policy concerns, with a focus on managing Program Electronic Review Management (PERM) recruitment programs and immigration compliance issues. Ms. Grado-Wright received her Bachelors degree in History and American Civilization from Brown University and her J.D. from St. Marys University. She is an active AILA member currently serving as the Houston Customs and Border Protection (CBP) Liaison for the AILA Texas Chapter. Sharryn E. Ross is the senior partner at Ross Silverman LLP in Boston. She practices exclusively in the field of business immigration law. She was on AILAs Board of Governors from 1994 to 2006. She has been a member of the Department of Labor (DOL) Liaison Committee for the past three years, and was part of the PERM Implementation Taskforce. She has previously served as chair of the local DOL Labor Liaison Committee; chair of Immigrant Services Division (ISD) Liaison committee; chair of the Vermont Service Center Liaison Committee; and chair of the Consular Affairs Liaison Committee. She has lectured frequently on a wide range of issues in the immigration field and extensively on the process of obtaining permanent residence through PERM. 1 U.S. Department of Labor iCERT Prevailing Wage Quick Start Guide for External Users, published on AILA InfoNet Doc. No. 10011460 (posted Jan. 14, 2010).
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Prevailing Wage Frequently Asked Questions from March 2010, 2 states that prevailing wage determinations will be made based on the initial requirements submitted on the ETA-9141 and that alternative requirements will not be considered for prevailing wage purposes. Another strategy call needs to be made pertaining to any travel required by the job opportunity and how it is presented on the ETA-9141. Section D(a)(7) asks whether travel is required to perform the job and then goes on to ask for additional details regarding the travel including the exact locations where the work will be performed. This section is meant to capture data for H-2B applicants primarily, but is also applied to the other applications. DOL, in the October 2010 DOL Stakeholders Meeting, 3 confirmed that travel is viewed as a special requirement and can be the basis for adding a point to the wage analysis in cases where travel is not deemed a normal part of the job as determined by the O*NET and OES data. Practitioners also must be certain to request on the ETA-9141 form itself an available alternate wage survey, Davis-Bacon Act (DBA) wage, McNamara-OHara Service Contract Act (SCA) wage, American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) wage, or collective bargaining agreement information even though the form itself does not contain a specific field to enter this information. The DOL suggests utilizing section D(a)(6) to include these types of requests. 4 Specifically, the special request is to be added at the end of the job description and set apart by asterisks. For an ACWIA request, the employer must include the following statement surrounded by asterisks: ***This employer is an institution of higher education or a research entity under 20 CFR 656.40(e). *** If this statement is not included on the ETA-9141, the OES all industry wage (presumably higher) will be assigned. Of late, DOL has been rejecting ACWIA wages for employers that it does not feel qualifies for this wage. In anticipation of this possibility, you may want to make the argument why your employer qualifies on the prevailing wage form. In cases where additional information must be submitted for an alternate wage survey, employer provided survey, CBA, or H-2B itinerary, practitioners are advised to make the prevailing wage determination request on the ETA-9141, file the form and then e-mail the supporting documents to flc.pwd@dol.gov including the ETA-9141 case number in the body of the e-mail. Supporting documentation may still be mailed to the NPWHC, however, DOL advised that electronic submission is preferred to more readily ensure that the documents are matched to the file. 5 Once the prevailing wage determination is issued, practitioners should carefully review the determination. Employers should be cautioned not to rely on prevailing wage determinations that are clearly incorrect even when the incorrect data is in their favor. Errors made by the NPWHC can be corrected by emailing the determination with an explanation of the correction needed to flc.pwd@dol.gov. DOL errors include those wherein the prevailing wage analyst assigns a specific level but types the wrong wage level data in the wage section, where the wrong MSA data is used, or where an all industry wage is assigned to an ACWIA employer (wherein the ETA-9141 clearly identified that the employer qualified for the ACWIA wage.) In cases where there is no clear government error but there is a disagreement either with the wage level assigned or with the occupational coding assigned to the job opportunity, DOL provides the opportunity to request a redetermination. Redeterminations can be requested electronically through the iCERT system. The system provides the opportunity to state the basis for the redetermination request and to advocate for the
U.S. Department of Labor, National Prevailing Wage and Helpdesk Center Prevailing Wage and Frequently Asked Questions March 2010, published on AILA InfoNet Doc. No. 10032662 (posted on Mar. 26, 2010). 3 U.S. Department of Labor, Minutes from DOL Stakeholders Meeting Oct. 28, 2010, published on AILA InfoNet at Doc. No. 10111762 (posted Nov. 17, 2010). 4 U.S. Department of Labor, National Prevailing Wage and Helpdesk Center Prevailing Wage and Frequently Asked Questions Mar. 2010, published on AILA InfoNet at Doc. No. 10032662 (posted on Mar. 26, 2010). 5 U.S. Department of Labor, Minutes from DOL Stakeholders Meeting Oct. 28, 2010, published on AILA InfoNet at Doc. No. 10111762 (posted Nov. 17, 2010).
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lower wage level or different occupational code. Practitioners should note that redeterminations are given the same validity as the original determination. 6 As a result, a strategic decision should be made as to whether a redetermination request or a new request should be submitted to ensure that the employer has time to initiate the recruitment within the validity of the determination. Legitimate arguments for requesting a redetermination might include such things as DOL adding a point for a license in a profession that requires a license or adding a point for a foreign language requirement for an English as a Second Language (ESL) teacher, or requesting a different wage level based on your interpretation of the PW handbook. STRATEGIES FOR OBTAINING PREVAILING WAGE DETERMINATIONS Obtaining a Prevailing Wage Determination (PWD) in this new system presents new challenges for practitioners. The biggest hurdle is the fact that it is no longer possible to just pick up the phone and talk to your local state workforce agencies (SWA) to discuss the issues surrounding a particular PWD. Moreover, although the new system was supposed to deal with the inconsistencies between SWAs, practitioners are finding that there are serious inconsistencies between analysts at the NPWHC, and often the same cases can bring two different PWDs. Below are some suggestions for obtaining the PWD that best meets your objectives. Carefully Read the Employers Job Description The first step in obtaining the PWD, and in starting the PERM case, is to thoroughly understand the job and the description of the job duties. Often an employer will send you a job description that has everything but the kitchen sink. It is important to create a concise description that accurately reflects the job, and does not include every possible thing the employee might do. Crafting the description accurately helps to ensure that the proper wage level will be assigned. A job description that is unnecessarily cumbersome may lead to the analyst thinking that the job is more complex than it really is. Be Sure the Job Title Is Accurate. An employer may use a job title for a position that really does not reflect the job itself. If an employer cannot pay a high salary, they may sometimes give a title that is higher than the position. For example, a nonprofit organization with fewer resources may call its financial analyst position financial manager, despite the fact that the employee is not really managing either people or projects. Although the PW analyst is supposed to be looking at the job description and not the title, the title might still lead the analyst to give a higher Standard Occupational Classification (SOC) code or level. Be Sure the Requirements Are All Necessary. Does the job really require a bachelors degree and three years experience? Can it be done with two years? The difference may mean one PW level. Be sure that the employer is giving you the minimum requirements and not what the employee has, and spend some time discussing this with the Employer so that you and they understand what the differences might mean. Use Special Requirements Sparingly. Ask the Employer about all those extra requirements. Is a certificate really necessary? How long does it take to get that certificate? Keep in mind that DOL is now challenging the concept of reasonable period of on-the-job training. Thus, be sure to check with the employer to see how long it takes to get that certificate, or learn that special skill, if the applicant meets all the other requirements. If the answer turns out to be a couple of months, you may want to recommend removing that requirement. It may increase the PWD and DOL will not likely consider it as a legitimate reason to reject applicants. If possible, its better to incorporate some of the special requirements into the job duties.
Id.
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Determine if Supervisory Duties Are Really Part of the Job. A position which includes supervisory responsibilities does not always increase the job level, so the first step would be to look at the O*NET job description to see if supervision is included. If it is, no point would be added for supervision. If it is not, it is important to determine if the employee really supervises, or occasionally fills in to supervise. If supervision is not a major part of the position, it may be best not to include it, if it skews the PWD. Travel Requirements. DOL has indicated that travel requirements that are not usually part of a job will be carefully scrutinized because they often discourage U.S. workers. This is important to consider before adding a travel requirement, in addition to the fact that it will likely add a point to the PWD. In cases wherein O*NET is silent on the issue, prevailing analysts will err on the side of the higher wage. Travel that is sporadic and travel to conferences is not considered in the analysis. As a result, any travel required for the job should be fully explained on the ETA-9141 and/or factored into the wage level estimated by practitioners. How to Deal with Alternative Job Requirements DOL has said repeatedly, and as recently as the February 10, 2011, teleconference has confirmed, that when there are alternate job requirements for a position, e.g., masters +3 years or bachelors +5 years, the PWD should be obtained for the primary requirement. This does not have to be the requirement that matches the credentials of the employee. So, if the employee has a bachelors plus five years experience, you can still obtain the PW for the masters plus three years experience if that is the primary requirement. It is important, however, that the ETA9089 match the PWD. In other words, if you obtain the PWD for the masters +3, that should be the primary requirement on the ETA-9089 form. In a situation where the employer has a true set of alternate requirements, i.e., either set of education and experience requirements is equally acceptable, the choice of which requirements to list as the initial or primary educational and experience requirements can make a significant difference in the wage level assigned to the job. For example, a primary requirement of a masters degree and three years of work experience for a Job Zone 4 job opportunity will most likely render a Level III wage determination while an alternate requirement of a bachelors degree and five years of experience will most likely result in a Level IV wage determinationwhich for most occupations translates to a difference of $15,000 or more. Interpreting an Occupation That Has an NA for Job Zone. If the occupation that most matches your job has no Job Zone listing, DOL has said that it will go up to the major group that the OES code is under, and look to see what the Job Zone is for similar occupations in the major group. Making this determination will give you a better idea of the range of experience for each PW level. For example, if the position you are applying for is an immunologist, the OES code best suited to that position is Life Scientists, All Other (SOC 19-1099), which has no Job Zone listing. However, if you look at other positions with OES codes beginning with 19, you will find that occupations listed in this grouping most likely have a Job Zone of 5. Use of an Expired PERM Prevailing Wage for an H-1B Case. If you are doing an H extension for an individual who has a PERM case pending, and hence a PW has already been obtained, but that PW has expired, it is possible to still use that PW for the Labor Condition Application (LCA) for the H extension as long as it is less than 24 months old. Use the following type of designation on the LCA form: DOL >1 year < 24 mos. Be Sure that Your PWD Matches the Information on Your ETA-9089. DOL has denied cases where the PWD does not match the ETA-9089 form. Thus, it is important not to obtain the prevailing wage until you are sure that the job description and requirements will be used for the PERM filing. If you need to make significant changes in the job description or requirements, it would be best to obtain another PWD, even if you have already started advertising. Keep in mind that the PWD must be valid either at the start of the recruitment activities or at the time of filing the PERM form. And, Finally, Try Again. Unfortunately, DOL analysts are not consistent in their decisions on the PWD. If all else fails, try again.
THE FOG NEVER LIFTS: UNRESOLVED QUESTIONS ABOUT AC21

by Robert Divine, Adam Rosen, and Naomi Schorr *
Its been more than a decade now, and U.S. Citizenship and Immigration Services (USCIS) still has not issued any regulations governing the American Competitiveness in the Twenty-First Century Act (AC21). 1 We have memos galore, one precedent decision issued by the Administrative Appeals Office (AAO), 2 scores of unpublished AAO decisions, and a lot of unanswered questions. This article will discuss just a few of the many issues that remain troublesome. WHAT DOES IT MEAN TO BE AFFILIATED WITH OR RELATED TO AN INSTITUTION OF HIGHER EDUCATION FOR H-1B CAP PURPOSES? After all this time, it is still hard to predict whether a petition claiming an exemption from the H-1B cap based on an affiliation with or relationship to an institution of higher education will be approved. AC21 103 amended Immigration and Nationality Act (INA) 3 214(g), adding INA 214(g)(5), which provides: The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at (A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 USC 1001(a)), or a related or affiliated nonprofit entity; or (B) a nonprofit research organization or a governmental research organization. On March 18, 2011, USCIS announced that it is reviewing its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education, and that it is temporarily applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education. During this interim period USCIS agreed to give deference to prior determinations made since June 6, 2006, that a nonprofit entity is related to or affiliated with an institution of higher educationabsent
Robert Divine is the chairman of the Immigration Group of Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C., comprising 560 lawyers and public policy advisors with offices in 14 cities from Washington, DC to New Orleans. Mr. Devine served from 2004 through 2006 as chief counsel, and for a time acting director, of USCIS. He is the author of Immigration Practice, a 1,600 page practical treatise on all aspects of U.S. immigration law. He has chaired various AILA committees and this year served on the CIS Ombudsman and EB-5 committees. He is vice president of the Association to Invest in the USA (IIUSA), an association for EB-5 regional centers. Adam Rosen is a member of the Murthy Law Firm. He received his J.D. from Case Western Reserve University and is admitted to practice in New York and Maryland. His practice is primarily business immigration on nonimmigrant and immigrant cases before USCIS, U.S. consulates, and the U.S. Department of Labor. Mr. Rosens practice also includes such I140-related issues such as educational equivalency and financial ability to pay, as well as adjustment related issues like AC21. He has been involved with AILA national and the AILA DC Chapter since 2006. Mr. Rosen is currently chair of the AILA DC Chapters Unauthorized Practice of Law Committee. Naomi Schorr is special counsel in the business immigration group of Kramer Levin Naftalis & Frankel LLP in New York. She is a member of the editorial board of Benders Immigration Bulletin and writes extensively on business immigration matters. Ms. Schorr is the recipient of AILAs Edith Lowenstein Memorial Award (2007), its Presidential Award (2006), and its Sam Williamson Mentor Award (2005). She was named the New York Areas Immigration Lawyer of the Year for 2011 by Best Lawyers. Ms. Schorr was awarded a J.D. from Fordham University School of Law, where she was on the law review. 1 American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. No. 106-313, 10116, 114 Stat. 1251, 125162. 2 Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010). 3 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.).
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any significant change in circumstances or clear error in the prior adjudicationand, therefore, exempt from the H-1B statutory cap. 4 USCIS has never issued a regulation defining what it means to be affiliated with or related to an institution of higher education for cap purposes, but early on, it did define those terms in connection with the American Competitiveness and Workforce Improvement Act (ACWIA) 5 fee. In that context, 8 Code of Federal Regulations (CFR) 214.2(h)(19)(iii)(B) provides a fee exemption for: [a] nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation 6 operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary. This definition of affiliation was adopted by USCIS to apply to the H-1B cap through a USCIS memorandum (June 6 memo) 7 issued June 6, 2006. In that memorandum, USCIS specifically adopted the definition of affiliated nonprofit entities contained in the H-1B fee exemption regulation. The memorandum provides: In addition, the H-1B regulations define what is an affiliated nonprofit entity for purposes of the H-1B fee exemption. Adjudicators should apply the same definitions to determine whether an entity qualifies as an affiliated nonprofit entities [sic] for purposes of exemption from the H-1B cap. 8 Until recently, petitions filed by hospitals claiming affiliations with universities or medical schools had been approved even though those affiliations generally did not strictly meet the regulatory definitioni.e., they do not have shared ownership or control by the same board or federation, they are not operated by the medical school, and they are not attached to the medical school as a member, branch, cooperative, 9 or subsidiary. But, by the end of 2010, practitioners began reporting a steep increase in the number of Requests for Evidence (RFE) in these cases, with the California Service Center (CSC) asking to see evidence that the claimed affiliations comported with the regulatory definition. Rather than respond to the RFEs and risk
USCIS Update Addresses H-1B Cap Exemptions Based on Relation or Affiliation, published on AILA InfoNet at Doc. No. 11031760 (posted Mar. 24, 2011), available at www.aila.org/content/default.aspx?docid=34880. 5 American Competitiveness and Workforce Improvement Act (ACWIA), Title IV, Pub. L. No. 105-277 (Oct. 21, 1998), 112 Stat. 2681-641. 6 There is an error in punctuation in the regulatory language quoted above, with an important comma omitted between the words federation and operated. Heres how the language appears in the supplementary information to the U.S. Department of Labors (DOL) regulations implementing its ACWIA regulations: An affiliated or related nonprofit entity. A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation, operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary. 65 Fed. Reg. 80,110, 80,181 (Dec. 20, 2000). The USCIS agrees that the comma belongs after the word federation. See, e.g., Matter of [name not provided], EAC-06-21652028 (AAO Sept. 8, 2006) (Texas School District Case) at note 12, published on AILA InfoNet at Doc. No. 06091161 (posted Sept. 11, 2006) available at www.aila.org/content/fileviewer.aspx?docid=20487&linkid=151052. 7 USCIS Memorandum, M. Aytes, Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (Jun. 6, 2006) (June 6 Memo), published on AILA InfoNet at Doc. No. 06060861 (posted Jun. 8, 2006), available at www.aila.org/content/default.aspx?docid=19621. 8 Id. at 4. Its rather interesting that the June 6 Memo, while borrowing the definition of affiliated found in the H-1B fee exemption regulation, did not offer any definition for those nonprofit entities related to institutions of higher education, even though INA 214(g)(5)(A) permits the cap exemption both for nonprofit entities affiliated with institutions of higher education and for those related to those institutions. 9 To date, we have seen no case or agency guidance explaining what the term cooperative means.
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denials, many practitioners converted their requests for an exemption from the cap to petitions not claiming an exemption. Once the H-1B cap was reached on January 26, 2011, 10 that was no longer an option. Petitions have been denied by the CSC in a number of cases claiming exemption from the cap, including those seeking H-1B classification for medical residents, 11 and while we have yet to see denials of physician cases coming out of the Administrative Appeals Office (AAO), we have seen a number of AAO decisions denying petitions filed by those in the medical field. In one case, 12 for example, a nonprofit acute care hospital filed a petition for a medical technologist. The hospital claimed affiliation with a school of practical nursing and a state college, but the AAO disagreed, finding that the claimed affiliation did not meet the regulatory definition governing the ACWIA fee and adopted by USCIS in the June 6 Memo. 13 If the USCIS position on the definition of affiliated with or related to were challenged in court, a plaintiff might prevail under a number of theories, including (but not limited to) the following: The Definition of Affiliated and Related In the supplementary information to the interim regulations 14 that first implemented the additional H-1B training fee, 15 legacy Immigration and Naturalization Service (INS) claimed that it was drawing on generally accepted definitions 16 of the terms, affiliate and related. 17 What are those generally accepted definitions? According to Blacks Law Dictionary, which legacy INS and the U.S. Department of Labor (DOL) seem to have consulted (as evidenced by the use of some of the precise terms from the dictionarys definition), affiliate is defined this way: Signifies a condition of being united; being in close connection, allied, associated, or attached as a member or branch. 18 Legacy INS was rather selective in which part of the definition it included in its regulation, focusing only the language after the or: attached to an institution of higher education as a member, branch, cooperative, or subsidiary. 19 Legacy INS seemed to have decided to exclude the language preceding the or: being in close connection, allied, associated. Had it adopted the entire generally accepted definition, a broad spectrum of arrangements and a wide variety of entities would clearly be entitled to the fee exemption, and through the borrowing of concepts, to the cap exemption, and for the favorable method of determining prevailing wages.
USCIS announced that as of January 26, 2011, it had received a sufficient number of cap-subject H-1B petitions to reach the FY2011 cap. See USCIS Reaches FY 2011 H-1B Cap, published on AILA InfoNet at Doc. No. 11012777 (posted Jan. 27, 2011), available at www.aila.org/content/default.aspx?docid=34289. 11 The authors have also seen a denial for a for-profit medical group seeking the cap exemption for a hospitalist who would be performing services at a facility affiliated with a medical school. 12 Matter of [name not provided], WAC-09-059-50704 (AAO Oct. 5, 2010). See also, Matter of [name not provided], EAC-05 046 52521 (AAO Nov. 2, 2006) (petitioner seeking services of medical technologist not affiliated with qualifying entity as required by June 6 Memo); Matter of [name not provided], EAC-08-060-50414 (AAO Dec. 7, 2009) (petitioner seeking services of physical therapist fails to convince agency of its affiliation with six universities). 13 Matter of [name not provided], WAC-09-059-50704 (AAO Oct. 5, 2010) at 59. The AAO added, as it has in other recent decisions, that if a petitioner is deemed to be affiliated with an institution of higher education, it is not necessary that the beneficiary be participating in the program that forms the basis of the affiliation. Id. at 8. Thus, if a medical school and a hospital have the proper affiliation, any H-1B employee of the hospital is exempt from the cap, and not just the physicians. 14 63 Fed. Reg. 65,657 (Nov. 30, 1998). 15 ACWIA, Title IV, Pub. L. No. 105-277 (Oct. 21, 1998), 112 Stat. 2681-641. 16 63 Fed. Reg. at 65,658. 17 Legacy INS also said it was borrowing from the regulations of the Small Business Administration (SBA) at 13 CFR 121.103. For a discussion of how the SBA defines affiliation, see N. Schorr & N. Waxman So Quick Bright Things Turn to Confusion: AC21 and the H-1B Cap, 9 Benders Immigr. Bull. 700 (Jun. 1, 2004), at 70203. 18 Blacks Law Dictionary at 54 (West Publishing 5th ed. 1979). 19 8 CFR 214.2(h)(19)(iii)(B).
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And why focus only on affiliated? Congress didnt limit cap exemptions only to nonprofit entities affiliated with institutions of higher education; it also exempted those nonprofit entities that are related to institutions of higher education. So, what does related mean? Turning again to Blacks Law Dictionary, we find: [s]tanding in relation; connected; allied; akin. 20 And what does relate mean? To stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with. 21 Since legacy INS said that in seeking to define the terms affiliated and related, it was drawing on generally accepted definitions of the terms, 22 let USCIS take note that the generally accepted definitions of those terms are broad and inclusive, and cover a wide variety of arrangements entered into between institutions of higher education and other nonprofit entities. This broader interpretation should guide USCIS in its AC21 23 rulemaking. The Small Business Act Definition There is a much broader definition of affiliation that legacy INS adopted for its use in the fee-exempt setting. In the supplementary information to the interim regulations 24 that first implemented the additional $500 H-1B fee added by ACWIA, 25 legacy INS claimed that it drew on generally accepted definitions of the term, and also on the definition contained in the regulations of the U.S. Small Business Administration (SBA) at 13 CFR 121.103. We dont know why legacy INS turned to the SBA to borrow a definition of affiliation, but that agencys definition includes something that might be of interest in the cap arena: SBA considers factors such as ownership, management, previous relationships with or ties to another concern, and contractual relationships, in determining whether affiliation exists. 26 The SBAs definition of affiliation was devised to cast a wide net. Since business entities must be small to be eligible for benefits under the Small Business Act, 27 the agency wanted to guard against a claim to smallness when in fact, when considered together with its affiliations, a business entity was not small. Therefore, the agency adopted a totality of the circumstances approach to determine affiliation and size. USCIS Policy and the AAO The USCIS and the AAO consistently state that they follow the policy announced in the June 6 memo, 28 in which the USCIS directed adjudicators to adopt the same definitions of related and affiliated for cap exemption purposes as found in the ACWIA fee regulation. 29 But in other contexts, the USCIS has stated that memoranda are not official policy of the agency. 30 Therefore, the AAO need not defer to it.
Blacks Law Dictionary at 1158. Id. 22 63 Fed. Reg. at 65,658. 23 AC21, Pub. L. No. 106-313, 10116, 114 Stat. 1251, 125162. 24 63 Fed. Reg. at 65,657. 25 ACWIA, Title IV, Pub. L. No. 105-277 (Oct. 21, 1998), 112 Stat. 2681-641. 26 13 CFR 121.103(a)(2). 27 Small business Investment Act of 1958, Public Law 85-699, 15 USC 697. 28 USCIS Memorandum M. Aytes, Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (Jun. 6, 2006) (June 6 Memo), published on AILA InfoNet at Doc. No. 06060861 (posted Jun. 8, 2006), available at www.aila.org/content/default.aspx?docid=19621. 29 See, e.g., Questions and Answers: USCIS Quarterly National Stakeholder Engagement at 9 (Feb. 24, 2011), published on AILA InfoNet at Doc. No. 11010432 (posted Feb. 24, 2011), available at www.aila.org/content/default.aspx?docid=34064; Matter of [name not provided], File No. EAC 07 038 51039 (AAO Feb. 21, 2008) at note 4. See also Matter of [name not provided], EAC-06-216-52028 (AAO Sept. 8, 2006), published on AILA InfoNet at Doc. No. 06091161 (posted Sept. 11, 2006) available at www.aila.org/content/fileviewer.aspx?docid=20487&linkid=151052. 30 See, e.g., Defendants Memorandum in Opposition to Plaintiffs Motion for a Preliminary Injunction in Broadgate v. USCIS, 10-cv-941-GK (D.D.C. Jun. 25, 2010) at 19, published on AILA InfoNet at Doc. No. 10060830 (posted Aug. 16, 2010)
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Memorandum Instead of Regulation Regrettably, instead of issuing a legislative rule pursuant to the requirements of the Administrative Procedures Act, 31 providing the public with notice and an opportunity to comment on the definitional questions, the agency decided to regulate through the memorandum. The Legislative Reenactment Argument The AAO consistently states that: By including the phrase related or affiliated nonprofit entity in the language of AC21 without providing further definition or explanation, Congress likely intended for this phrase to be interpreted consistently with the only relevant definition of the phrase that existed in the law at the time of the enactment of AC21: the definition found at 8 CFR 214.2(h)(19)(iii)(B). The petitioner must, therefore, establish that it satisfies the definition at 8 CFR 214.2(h)(19)(iii)(B) as a related or affiliated nonprofit entity of an institution of higher education under section 214(g)(5)(A) of the Act in order for the beneficiary to be exempt from the H-IB cap. 32 This is argument is known as the doctrine of legislative reenactment, meaning that when Congress reenacts legislation, it incorporates existing administrative and judicial interpretations of the statue into its reenactment. 33 But, like most statements of general rules, this statement is not accurate. What the reenactment doctrine actually says is that when Congress reenacts a statute and voices its approval of an administrative interpretation of that statute, then, and only then, does that interpretation acquire the force of law. Another way of saying it, and court after court says this, is that mere reenactment is not enough. Congress must also have expressed approval of the agency interpretation. Put yet another way, to construe an agencys interpretation as Congresss will, a court must find some manifestation of congressional approval. In the immigration context, at least one court has held that congressional reenactment of statutory language does not normally or automatically indicate a legislative intent to freeze all pre-existing agency interpretations of language, forever after immunizing them from change. 34 There is absolutely no evidence that Congress had any idea of legacy INSs definition of related and affiliated nonprofit entity when it enacted AC21. The INA Has Other Definitions of Affiliated There are other definitions of the term affiliated in the INA, and the definition depends upon the context. It is a well-known canon under the rules of statutory construction that identical words in different parts of the same act can have different meanings to meet the purpose of the law. 35
available at www.aila.org/content/fileviewer.aspx?docid=32200&linkid=220450 (USCIS memorandum merely provides guidance for evaluating existence of employer-employee relationship and does not constitute a binding legal norm.). 31 Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237, 238; (codified at 5 USC 55159, 70106, 1305, 3105, 3344, 5372, 7521). 32 See, e.g., Matter of [name not provided], File No. EAC 06 236 52514 at 5 (AAO Oct. 29, 2009). 33 For a discussion of the reenactment doctrine, see Isaacs v. Bowen, 865 F.2d 468, 473-74 (2d Cir. 1989) ([W]hen the agency charged with the implementation of a statute has purported to interpret it by promulgating regulations, and Congresswithout overruling or clarifying the agencys interpretationlater amends the statutory scheme, the agency view is then deemed consistent with Congress objectives.). 34 Molina v. INS, 981 F.2d 14 (1st Cir. 1992) (court rejected argument that word conviction in Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359. should be read to adopt legacy INSs definition of that word before Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988)). 35 See, e.g., Atlantic Cleaners & Dyers v. U.S., 286 U.S. 427 (1932). For a fuller discussion of these issues, see N. Schorr, Curb Your Enthusiasm: An Analysis of the AAOs H-1B Texas School District Case, 12 Benders Immigr. Bull. 467 (Apr. 15, 2007).
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EXTENSION GRANTED. CAN YOU RELY ON IT? Lets say a foreign national has just been granted a seventh year of H-1B status under AC21106(a), 36 and right after, the underlying labor certification application upon which the petition extension was based is denied by the Board of Alien Labor Certification Appeals. Or, lets say that an immigrant visa petition has been approved for an Indian national whos been in the United States in H-1B status for eight years, and the employers petition for a three-year extension of status has also just been approved. 37 Shortly thereafter, the persons application for adjustment of status is denied. In either of these cases, is the foreign national still in valid H-1B status after the denials? Though not written as clearly as one might wish, a USCIS memorandum seems to suggest that the answer to this question is no: Question 3: Are there cases where an alien, who has been granted an H-1B extension beyond the sixth year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?
36 Section 11030A of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758, amended AC21, Pub. L. No. 106-313, 106(a), (b), 114 Stat. 1251, 1253-54, and provides:
Extension of H1B Status for Aliens with Lengthy Adjudications. (a) Exemption from Limitation.Section 106(a) of the American Competitiveness in the Twenty-first Century Act of 2000 (8 U.S.C. 1184 note) is amended to read as follows: (a) Exemption from Limitation.The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of such Act (8 U.S.C.1101(a)(15)(H)(i)(b)), if 365 days or more have elapsed since the filing of any of the following: (1) Any application for labor certification under section 212(a)(5)(A) of such Act (8 U.S.C. 1182(a)(5)(A)), in a case in which certification is required or used by the alien to obtain status under section 203(b) of such Act (8 U.S.C. 1153(b)). (2) A petition described in section 204(b) of such Act (3 U. S.C. 1154(b)) to accord the alien a status under section 203(b) of such Act.. (b) Extension of H1B Worker Status.Section 106(b) of American Competitiveness in the Twenty-first Century Act of 2000 (8 U.S.C. 1184 note) is amended to read as follows: (b) Extension of H1B Worker Status.The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made (1) to deny the application described in subsection (a)(1), or, in a case in which such application is granted, to deny a petition described in subsection (a)(2) filed on behalf of the alien pursuant to such grant; (2) to deny the petition described in subsection (a)(2); or (3) to grant or deny the aliens application for an immigrant visa or for adjustment of status to that of an alien lawfully admitted for permanent residence.. 37 AC21 104(c) provides: One-Time Protection Under Per Country CeilingNotwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)), any alien who (1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and (2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the aliens application for adjustment of status has been processed and a decision made thereon. Under agency guidance, extensions of stay under this provision shall be made in three-year increments. See, e.g., legacy INS Memorandum, M. Pearson, Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106396) at 4 (June 19, 2001), published on AILA InfoNet at Doc. No. 01062031 (posted June 20, 2001) available at www.aila.org/content/fileviewer.aspx?docid=3281&linkid=104181.
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Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in oneyear increments, until such time as a final decision has been made to: A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification; B. Deny the EB immigrant petition, or C. Grant or deny the aliens application for an immigrant visa or for adjustment of status. If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies. 38 Just what this question and answer actually means, were not sure. Is it addressing the situation where a petition for a sixth year has been approved, but the underlying basis for the extension is denied before the end of the six years? Or, does it reach someone whos already in an extended period of H-1B status and immediately, by operation of law, put an end to that status? If so, its certainly a trap for the unwary and undermines a policy of predictability. A person can have an H-1B petition approval thats valid for almost three years, think that hes complying with the law, and yet be out of status without any notice from the USCIS advising him or the employer that his time is up. 39 Unfortunately, theres no clear answer, and a lawyer may want to caution a client that (a) additional steps should be taken to secure permanent resident status; and (b) he should not travel abroad in the meantime. ENTITY IS NONPROFIT AND CAP EXEMPT. THEN STRUCTURE CHANGES. In a related matter, consider the following scenario: A person has been employed in H-1B status for four years as a physician, working for a nonprofit entity that is related to a medical school. He has two years left on his current H-1B approval notice and I-94. The entity that employs him has just been acquired by another entity, and its structure has been changed so that its no longer nonprofit and, hence, no longer cap exempt. Lets assume that the acquisition takes place after there are no H-1B numbers left for the fiscal year, making it impossible for the new employer to file a cap-subject H-1B petition for this doctor. Is the physician out of status after the corporate restructuring? We think that the better policy is one of predictability: The cap exemption should be viewed at the time of petition filing, rather than during the period of approval. But, if feasible, the restructured employer should make a cap H-1B filing to take effect before the end of the current stay. Nevertheless, the prospect of a harsh approach remains, and the worker should be counseled against taking steps such as travel, which might tempt an officer to take adverse action.
38 USCIS Memorandum, W. Yates, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) at 89 (May 12, 2005), published on AILA InfoNet at Doc. No. 05051810 (posted May 18, 2005), available at www.aila.org/content/default.aspx?docid=16454. Although the memorandum addresses only the one-year extension of stay provision of AC21 106(a), one would imagine that the reasoning also applies to AC21 104. But then, one can never be sure. 39 It may be easier than that to fall out of status, at least according to the AAO. In reviewing the denial of an AOS application in a case in which an H-1B worker had availed himself of AOS portability, the AAO questioned whether the employer had an LCA on file for each of the locations where services were performed. If it did not, the AAO suggested that the foreign national had violated the terms of H-1B status, and would therefore be ineligible to adjust. Matter of [name not provided], 29 Immigr. Rep. B2-39 (AAO Mar. 22, 2004).
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THEY FINALLY GOT IT RIGHT! Several years ago, the AAO issued a decision on whether an H-1B petition filed by a school district for a teacher was exempt from the H-1B cap. 40 Although the AAO approved the petition, the decision had some unfortunate language regarding the required role of the beneficiary in the program that formed the basis of the cap exemption: The AAO finds that it is consistent with the language of 8 CFR 214.2(h)(19)(iii)(B) and the intent of AC21 that individuals employed in such a program be exempt from the H-1B cap. However, such an exemption is limited to the employees of a nonprofit petitioner who are directly involved in the jointly managed program that directly and predominantly furthers the essential purposes of the institution of higher education, which in this case includes the teachers to be employed in the TeacherTrak alternative certification program. This exemption cannot be claimed for other employees of the nonprofit entity who are not directly employed in or through this jointly managed program. 41 Now that, in the opinion of the immigration bar, was just wrong. 42 Once an entity qualifies for the exemption from the H-1B cap, it shouldnt matter what the H-1B beneficiary does at the entity, as long as hes working in a specialty occupation. Finally, the AAO agreed. For example, in a November 2009 decision, it stated: Upon review, the AAO agrees with counsel that, if the petitioner is an exempt employer, i.e., an institution of higher education or a related or affiliated nonprofit entity, there is no legal requirement that the beneficiary participate in a particular program. In other words, absent the issuance of regulations to the contrary, the onsite employment by an institution of higher education or a related or affiliated nonprofit entity is sufficient in itself to meet the plain statutory requirements of section 214(g)(5)(A) of the Act. 43 It seems the agency finally got it. Or did it? A petition was recently filed by a school district claiming an exemption from the H-1B cap based on its affiliation with an institution of higher education. In the RFE, the service center asked the petitioner to submit a number of documents, among them, [a] copy of the affiliation agreement or contract signed by an authorized official of both the school district and the institution of higher learning that shows how and what percentage of the beneficiarys duties are directly and predominantly related to and in the furtherance of the normal, primary, or essential purpose, mission, objective or function of an institution of higher education. 44 Go ahead and file these petitions. But, because the service center may need to be educated about the issue, be sure to include copies of the favorable AAO decisions. THE PERILS OF PORTABILITY PART I: PORTS TO NEW H-1B EMPLOYER. NEW PETITION DENIED The following section discusses a situation that happens all too frequently.
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Matter of [name not provided], EAC-06-216-52028 (AAO Sept. 8, 2006), published on AILA InfoNet at Doc. No. 06091161 (posted Sept. 11, 2006) available at www.aila.org/content/fileviewer.aspx?docid=20487&linkid=151052. 41 Id. at 10 (emphasis added). The directly and predominantly language was taken from the USCISs June 6 memo that provided guidance on third-party H-1B petitions, where an H-1B nonimmigrant would be employed by a cap-subject employer, but would perform services at an exempt entity. In those cases, the USCIS imposed a test: If, among other factors, the H-1B worker would perform duties at a qualifying institution that directly and predominately further the normal, primary, or essential purpose, mission, objectives or function of that organization, the petition would be exempt from the H-1B cap. USCIS Memorandum, M. Aytes, Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) at 3 (Jun. 6, 2006), published on AILA InfoNet at Doc. No. 06060861 (posted Jun. 8, 2006), available at www.aila.org/content/default.aspx?docid=19621. 43 Matter of [name not provided], File No. WAC 08 186 50737 (AAO Nov. 9, 2009). Accord, Matter of [name not provided], File No. WAC 08 152 52156 (AAO Nov. 9, 2009) (on-site employment by institution of higher education or a related or affiliated nonprofit entity is in itself sufficient to meet plain statutory requirements of INA 214(g)(5)(A)).
44 42
The RFE is on file with one of the authors.

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The foreign national, awarded a Masters degree in Business Administration by a U.S. university, was employed in H-1B status for Employer A under a petition and I-94 that were valid to 2012. She was offered a much better job by a major foreign company to work as a market research analyst for its distribution subsidiary in the United States. As soon as Employer B filed its petition, she ported to the new job. Three months later, Employer Bs petition was denied because, according to the Service Center, the job offered was not a specialty occupation. The request for extension of stay was specifically denied, as well. As soon as the attorney received the denial the foreign national stopped working for Employer B and was taken off its payroll. Employer A never withdrew its petition. Question: Has this H-1B nonimmigrant been accruing unlawful presence since the denial, and is she subject to INA 222(g)? 45 Agency guidance provides that if, during the adjudication of a request for an immigration benefit, the USCIS finds that the foreign national has violated his nonimmigrant status, unlawful presence will begin to accrue either the day after the I-94 expires or the day after the request is denied, whichever is earlier. 46 But here, there has been no finding of a status violation, only a determination, most likely unwarranted, that the position was not a specialty occupation. Agency guidance also provides that if a timely request for extension of stay is denied for cause, unlawful presence begins to accrue the day after the request is denied. 47 This petition was denied for cause. But does the guidance apply when a different employer files a petition and request for extension of status while the foreign national still has time left on her I-94 and on the petition approval of the first employer? Does the denial of Employer Bs petition cancel out the time remaining on this foreign nationals period of stay, which in this case is until 2012? Would it make a difference if Employer A had withdrawn its petition? How does the regulatory language requiring employers to notify USCIS of an H-1B employees departure impact this situation? And what about the remaining validity of dormant petitions? Can the foreign national find any shelter by returning to her earlier job? A practitioner once asked legacy INS whether a foreign national who left Company A for Company B and then wanted to return to Company A was still maintaining status. 48 In response, legacy INS stated that approved petitions remain valid until they expire or are revoked: [T]he alien can transfer between the two employers as long as both supporting H-1B petitions remain valid. The alien is also considered to be maintaining nonimmigrant status during these transfers. 49 But in our case, both petitions do not remain valid because Employer Bs petition was not approved. So is this person accruing unlawful presence, and is she subject to INA 222(g)? This, too, remains an unanswered question.
INA 222(g), 8 USC 1202, provides: (1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay. (2) An alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except (A) on the basis of a visa (other than the visa described in paragraph (1)) issued in a consular office located in the country of the aliens nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or (B) where extraordinary circumstances are found by the Secretary of State to exist. 46 See, e.g., USCIS Memorandum, D. Neufeld et al., Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act at 25 (May 6, 2009), published on AILA InfoNet at Doc. No. 09051468 (posted May 14, 2009), available at www.aila.org/content/default.aspx?docid=28871. Id. at 37. Note that the DOS has adopted the USCIS definition of period of stay authorized by the Attorney General for INA 222(g) purposes. See, e.g., DOS Cable, P.L. 104-208 Update No. 35 - Revised 222(g) Guidance, 98-State-051296 (Mar. 23, 1998) at item 3 published on AILA InfoNet at Doc. No. 98032392 (posted Mar. 23, 1998) available at www.aila.org/content/default.aspx?docid=20296. 48 Correspondence between AILA member Sheila Murthy and Efren Hernandez III, legacy INS, Director, Business and Trade Services, published on AILA InfoNet at Doc. No. 02051432 (posted May 14, 2002), available at www.aila.org/content/default.aspx?docid=6313. 49 Id.
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Lawyers may want to counsel their clients that there is a risk in starting the job before the new employers petition is approved. Although not in the regulations, the USCIS has long recognized that the ported employment is authorized up to the time of denial. 50 If the former employer has not withdrawn the petition and would take the worker back, all may be well (though the worker should keep careful records of the sequence of events). But, if the former employer has withdrawn its petition or will not take the worker back, the worker will be in violation of status. THE PERILS OF ADJUSTMENT OF STATUS PORTABILITY PART II: ADJUSTMENT OF STATUS PORTABILITY AC21 106 permits an applicant for adjustment of status to change jobs to the same or similar position if his I-485 has been pending for at least 180 days. 51 Although this statutory provision has been the subject of case law and several agency memoranda, 52 it still remains shrouded in uncertainty. Without question, the safest course of action for an applicant is to wait for the I-140 to be approved before changing jobs, and to notify the USCIS of the switch, explaining how the new position is the same or similar to the prior one. 53 That much is clear. It is also clear that if the petitioner withdraws the approved petition after the adjustment application has been pending for 180 days, the petition will remain valid. 54 But, it is unclear what would happen in the following case: An immigrant visa petition and adjustment of status application have been filed concurrently and have remained pending for more than 180 days. After waiting 180 days, the beneficiary ports to a new employer. Can the petition still be approved? For this, we have to turn to Question and Answer 1 of a USCIS memorandum issued on December 27, 2005, by Michael Aytes (Aytes Memo). 55 This is the question and answer:
Aside from the statutory language itself and various immigration agency memoranda, authorization for the ported employment prior to petition approval is included in USCISs Handbook for Employers: Instructions for Completing Form I9 (Employment Eligibility Verification Form), M-274 (rev. Jan. 5, 2011) at 1617. The handbook is published on AILA InfoNet Doc. No. 11011120 (posted Jan. 11, 2011), available at www.aila.org/content/default.aspx?docid=34119. 51 That provision, which added INA 204(j) to the law, provides: A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed. To date, practitioners have not reported problems on the USCIS interpretation of same or similar. Immigration judges tried to stay out of the mix by disclaiming jurisdiction over the determination in removal proceedings, but after a few appellate court decisions, the Board of Immigration Appeals finally instructed immigration judges that they must make this determination and not push it back to USCIS. Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010). 52 Krishnamoorthy v. Ridge, 2003 U.S. Dist. LEXIS 8381 (N.D. Ill. May 19, 2003); BCIS Memorandum, W. Yates, Continuing Validity of Form I-140 Petition in accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)(AD03-13), (Aug. 4, 2003) (Continuing Validity Memo), published on AILA InfoNet Doc. No. 03081114 (posted Aug. 11, 2003), available at www.aila.org/content/default.aspx?docid=9196. 53 The USCIS has never imposed an obligation to notify the agency of a job change, but many practitioners believe this to be a prudent step. See, e.g., Legacy INS Memorandum, M. Cronin, Initial Guidance for Processing H-1B Petition as Affected by the American Competitiveness in the Twenty-First Century Act, (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396) at 8 (Jun. 19, 2001), published on AILA InfoNet at Doc. No. 01062031 (posted Jun. 20, 2001), available at www.aila.org/content/default.aspx?docid=3281 (it is expected that an I-485 applicant notify agency of job change). 54 Krishnamoorthy v. Ridge, 2003 U.S. Dist. LEXIS 8381; Continuing Validity Memo at 3. 55 USCIS Memorandum, M. Aytes, Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), (Dec. 27, 2005), published on AILA InfoNet at Doc. No. 06092763 (posted Sept. 27, 2006), available at www.aila.org/content/default.aspx?docid=20682. The agency specified at 1: This memorandum serves to reissue the prior guidance of May 12, 2005 without change except to clarify the answer to question 1 in Section I.
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Question 1: How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under 106(c) of AC21? Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied: A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on its [sic] merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes. B. If a request for additional evidence (RFE) is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above. This question and answer remain difficult to understand and may give an impression that porting is less risky than it actually is. The Risks: What happens if the beneficiary changes to a new employer after 180 days, and then the service center sends an RFE to the I-140 petitioner? 56 Its highly doubtful that an entity that no longer employs the beneficiary would bother to respond to that RFE. And, without a response, USCIS will deny the petition. The beneficiary may not even hear about it until the agency sends a notice denying his application for adjustment of status based on the now-denied I-140 petition. Then, theres the issue of the withdrawal of an unadjudicated I-140 petition. 57 Under agency regulations, a withdrawal is effective upon receipt. 58 Furthermore, the Board of Immigration Appeals has ruled that a withdrawal cannot be ignored by the USCIS. 59 And under the regulations, the withdrawal of an immigrant petition is a cause for automatic revocation of the petition. 60 So, where does that leave the beneficiary when he ports before the petition has been approved and then the petition is withdrawn? The Aytes Memo 61 instructs adjudicators to review the pending I-140 to determine if its approvable, but if the petition has been withdrawn (and hence is automatically revoked), how can it be pending?
As the only party-in-interest to the I-140, the RFE will be sent to the petitioner, which is the only entity with the right to be heard in connection with any question about the approvability of the I-140. 8 CFR 103.3(a)(1)(iii)(B). 57 8 CFR 103.2(b)(6) provides: An applicant or petitioner may withdraw an application or petition at any time until a decision is issued by the service, or, in the case of an approved petition, until the person is admitted or granted adjustment or change of status, based on the petition. However, a withdrawal may not be retracted. 58 Service regulations governing petition revocations state that a petition will be revoked automatically [u]pon written notice of withdrawal filed by the petitioner, in employment-based preference cases, with any officer of the Service who is authorized to grant or deny petitions. 8 CFR 205.1(a)(3)(iii)(C). 59 Matter of Cintron, 16 I&N Dec. 9 (BIA 1976). 60 8 CFR 205.1(a)(3)(iii)(C). Procedurally, once a petition is withdrawn, the record is annotated and closed. 61 USCIS Memorandum, M. Aytes, Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), (Dec. 27, 2005), published on AILA InfoNet at Doc. No. 06092763 (posted Sept. 27, 2006), available at www.aila.org/content/default.aspx?docid=20682.
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And, what if the beneficiary ports on day 181, but the petitioner went out of business on day 179? Under agency regulations, once a petitioner goes out of business, the petition is automatically revoked. 62 Once again, can a revoked petition be considered pending for purposes of the Aytes Memo? Perhaps the porting employee can find some hope in that portion of the Aytes Memo instructing adjudicators to ignore post-filing issues. And a withdrawal and a termination of business are both post-filing issues. Does the guidance in that memo trump the regulations? Would a court give more weight to the memo than it gives to agency regulations? And what about agency policy that a petition must be approved before a favorable determination of portability can be made? 63 Once the pending I-140 is withdrawn, the beneficiary and her pending I-485 have few, if any, options under AC21 106(c). The foreign national who is maintaining H-1B status may seek to challenge USCISs denial of the I-485 by filing a motion to reopen or reconsider based on the failure of the agency to adjudicate and approve the I-140 petition pursuant to Question 1 and Answer 1 of the Aytes Memo. The risk to such a client is limited given the continued employment authorization afforded by the H-1B status and protection from removal proceedings. But what about the foreign national whose H-1B status lapsed while he worked on an Employment Authorization Card? This haunting specter causes many workers to insist on maintaining H1B status even while their adjustment applications are pending. And then theres the question of standing. A federal court challenge by an I-140 beneficiary who is an applicant for adjustment of status will be difficult because the individual harmed by the withdrawal of the I140 has no standing under USCIS regulations. 64 In George v. Napolitano, 65 for example, the court found that the plaintiff lacked standing to seek redress for USCISs failure to consider the I-140 petition under the approvability standard announced at Question and Answer 1 of the Aytes Memo. The revocation for cause and ineligibility for permanent portability is a major area of peril for individuals relying on AC21 106(c). There are a number of reasons for an I-140 to be subjected to revocation, including questions about the validity of the job offer at the location associated with the labor certification application, equivalency of the beneficiarys foreign education, 66 and licensure at the time the labor certification application was filed, to name but a few. At least one federal court has addressed the question of adjustment of status portability in the face of a petition revocation. In Herrera v. USCIS, 67 Ms. Herrera ported to a new employer after her adjustment application had been pending for more than 180 days and after the multinational manager I-140 petition filed by her initial employer had been approved. But USCIS decided that it approved the petition in error and upon further consideration, determined that the beneficiary had not, in fact, been serving in a managerial position.
8 CFR 205.1(a)(3)(iii)(D). The regulation provides that a petition is automatically revoked [u]pon termination of the employers business in an employment-based preference case under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3). 63 See, e.g., USCIS Memorandum, D. Neufeld, Supplemental Guidance Relating to Processing Forms I-140 EmploymentBased Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), as amended, and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277 at 9 (May 30, 2008) at 9 (to be considered valid, I-140 must be approved prior to favorable determination of a portability request), published on AILA InfoNet at Doc. No. 08060560 (posted June 5, 2008), available at www.aila.org/content/default.aspx?docid=25599; Mawalla v. Chertoff, 468 F. Supp.2d 177 (D.D.C. 2007) (approved I-140 petition required for AC21 portability). See also, Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010) (denied I-140 petition cannot support adjustment of status portability). Not only must the I-140 be approvable, it must be approved to establish a priority date. 8 CFR 204.5(e). Note, however, that a petition revoked under INA 204(e) or 205 will not confer a priority date. 8 CFR 204.5(e). 64 8 CFR 103.3(a)(1)(iii)(B) provides, in pertinent part, that an affected party to appeal a decision does not include the beneficiary of a visa petition. 65 693 F. Supp.2d 125 (D.D.C. 2010). But see, Pierno v. INS, 397 F.2d 949 (2d Cir. 1968) (recognizing that I-130 beneficiary had standing). 66 See R. Wada, AILAs Focus on EB-2 & EB-3 Degree Equivalency at 310 (AILA 2007 Ed.). 67 Herrera v. USCIS, No. 08-55493 D.C. No. CV-00871-SGL-RZ (9th Cir. Jul. 6, 2009).
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When the petitioner and beneficiary argued that the USCIS lacked the authority to revoke its approval of the petition because Ms. Herrera ported, the court shot them down. When Congress enacted the portability provision, it reasoned, it acted to provide job flexibility for long-delayed applications, not to constrain the agencys revocation authority. 68 Moreover, Congress didnt intend to grant extra benefits to those who changed jobs: 69 If Ms. Herrera had stayed in her original job, the petition could be revoked. So why should she be sheltered from the revocation because she changed employers? The bottom line: Caution workers about the risks of changing jobs, despite how well it has worked out for their colleagues. AC21 H-1B EXTENSIONS FOR SPOUSES? In its October 2010, liaison meeting with USCIS, the American Immigration Lawyers Association raised the issue of extensions of H-1B status beyond year six for the spouses of H-1B workers. 70 It argued that if one H-1B spouse was eligible for extensions of status beyond year six based on AC21, the other spouse should also be eligible, even if she is not independently pursuing lawful permanent resident status. This question was squarely addressed in earlier guidance, when the USCIS stated that in order to qualify post-sixth year extensions, the spouse must meet all the requirements independently of their [sic] H-1B spouses eligibility. 71 But AILA argued for a different reading of the law and asked the USCIS to reconsider its position. In response, the agency stated that in the context of the recently launched H-1B policy review, it would examine the issue and consider AILAs position. 72 Meanwhile, when presented with a case in which an H-1B husband was seeking a seventh year extension based on the I-140 petition that had been filed for his wife, making her eligible for AC21 extensions, the AAO wasted no time in denying the petition. 73 Practitioners should not file these seventh year extension petitions unless the USCIS publishes a change in its policies and interpretations. CONCLUSION Were sorry we were unable to provide you with solid answers to these nagging questions about AC21. But, were hoping that by pointing out some of the possible pitfalls, weve made you better equipped to formulate workable strategies for your clients.
Id. at 8221. Id. (Emphasis in original.) 70 Questions and Answers, USCIS-American Immigration Lawyers Association (AILA) Meeting at question and answer 9. (Oct. 12, 2010), published on AILA InfoNet at Doc. No. 10111731 (posted Nov. 17, 2010), available at www.aila.org/content/default.aspx?docid=33640. 71 USCIS Memorandum, W. Yates, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) at 10 (May 12, 2005), published on AILA InfoNet at Doc. No. 05051810 (posted May 18, 2005), available at www.aila.org/content/default.aspx?docid=16454. 72 Questions and Answers, USCIS-American Immigration Lawyers Association (AILA) Meeting at question and answer 9. (Oct. 12, 2010), published on AILA InfoNet at Doc. No. 10111731 (posted Nov. 17, 2010), available at www.aila.org/content/default.aspx?docid=33640. 73 Matter of [name not provided], File No. WAC-08-044-51840 (AAO Apr. 2, 2009). In response to the petitioners argument that the congressional intent behind AC21 required a liberal interpretation of the statute, the AAO simply stated that it disagrees. Id. at 4.
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THE INTRACOMPANY TRANSFER MAZETHE MANY DETOURS ON THE PATH TO AN L-1 VISA
by David Z. Izakowitz, Kortney H. Klein, and Timothy G. Payne *
On first blush, preparing an L-1A petition seems straightforward. The petitioner must answer two questions: 1 1. Is the beneficiary eligible for L-1 classification? 2. Is the petitioner a qualifying organization? The evidence required to answer these questions also appears straightforward: 2 Evidence of a qualifying relationship between the U.S. business entity and the foreign operation which employs the beneficiary abroad. Evidence that while the beneficiary is in the United States as an intracompany transferee, the petitioner will continue to do business both in the United States and at least one other country, either directly or through a parent, branch, subsidiary, or affiliate. Evidence that the beneficiary has been employed abroad full-time for at last one continuous year by the qualifying organization within the three years preceding the filing of the petition. 3 Evidence that the beneficiarys prior year of employment abroad was in a managerial, executive, or specialized knowledge capacity; and that his or her prospective employment in the United States will also be in a managerial, executive or specialized knowledge capacity. The beneficiary does not have to be transferred to the United States in the same capacity in which he or she was employed abroad but the evidence must show that the beneficiarys prior education, training and employment qualifies him or her to perform the intended services in the United States. Additional evidence is required if the qualifying organization has been doing business in the United States for less than a year. In such new office cases, evidence of the ownership and control of the U.S. entity, as well as its financial viability, is required. 4 In practice, there is nothing straightforward about L-1 visa cases as there are many traps and detours in the process. The following provides relevant law and practice pointers for some of the more frequent ones. WHAT IS A QUALIFYING RELATIONSHIP? In order for a nonimmigrant to be able to transfer to the United States as an L-1 intracompany transferee, the foreign employing entity and the U.S. employing entity must have a qualifying corporate relationship. 5
David Z. Izakowitz is a partner in the Charlottesville, VA office of McGuireWoods LLP, where he practices employmentbased immigration law. Among other honors, he has been selected as one of the Best Lawyers in America in immigration law and has been named a Virginia Super Lawyer and one of Virginias Legal Elite. He frequently writes and speaks on immigration law topics, particularly to business and industry groups and lawyer associations. Kortney H. Kein is a senior associate in the Dallas office of Berry Appleman & Leiden. She practices solely in employmentbased immigration with an emphasis on the oil and gas industry. Timothy G. Payne is a partner in the corporate immigration law practice at Sidley Austin LLP in Chicago. He is a former chair of the AILA Chicago Chapter and has served as an AILA liaison for the DOL, VSC, NSC, and AAO committees. Mr. Payne is included in the U.S. News & World Report Best Lawyer listing and in the International Whos Who of Immigration Lawyers 2011, a directory of leading lawyers. 1 Adjudicators Field Manual (AFM) ch. 32.3(a). 2 AFM ch. 32.3(b); 8 CFR 214.2(l)(3). 3 Time spent in the United States will not interrupt the continuous employment abroad but will not be counted toward fulfillment of the requirement. AFM ch. 32.3(b); 8 CFR 214.2(l)(1)(ii)(A). 4 AFM ch. 32(d); 8 CFR 214.2(l)(3)(v)(vi).
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That qualifying relationship can take on many different and distinct forms, but each entity must fall into one of four categories: Parent, branch, affiliate or subsidiary 6 in order for the qualifying relationship to satisfy the requirements in the regulations. Whether an entity qualifies as a subsidiary can be trickier, as not all subsidiaries are wholly-owned by the parent corporation. Practice Pointer: Do not count out a qualifying relationship just because a subsidiary is less than 50 percent owned by the parent. Control of the subsidiary can often be the determining factor. Investigate who or what owns the other percentages and who controls the subsidiarys actions to determine who is actually controlling the subsidiary. For example, a parent might only own 49 percent of a subsidiary, with the rest owned by passive individual stockholders, retirement accounts and/or holding companies. The parent would be the one controlling the entity and would therefore likely qualify for L-1 transferees. The same would hold true for a 50/50 joint venture. The qualifying relationship hinges on who actually owns and controls the entity. WHAT IF THE QUALIFYING RELATIONSHIP CHANGES DUE TO A CORPORATE RESTRUCTURING? In todays corporate environment, companies seem to make corporate changes in the blink of an eye and most of the time without a thought to immigration consequences. A corporate restructuring that results in a change in a previously approved L-1 corporate relationship or otherwise affects a beneficiarys ability to qualify as an L-1 intracompany transferee requires the filing of an amended petition with USCIS. 7 Additionally, if companies are added or deleted from a companys portfolio, the corporate blanket petition must be amended and USCIS must approve the changes. 8 Practice Pointer: When you become aware of a change in corporate structure, a little strategic thinking can save your client money in the long run. An L-1 beneficiary who enters under a blanket petition can be assigned to any organization listed on the blanket without requiring an amended individual petition. 9 Accordingly, you should review the status of all L-1 nonimmigrants to confirm whether the employees entered under the blanket. If they did enter under the blanket, nothing is required other than amending the blanket itself. If an employee did not enter under the blanket initially, or if an individual petition has been filed between initial entry and the change in corporate structure, it is critical that you weigh the costs of having the individual travel with a new blanket application or filing an amended individual petition with U.S. Citizenship and Immigration Services (USCIS). Practice Pointer: When your client acquires another company (that qualifies under the subsidiary or affiliate definitions), employees of that acquired company can immediately transfer as an L-1 if they have the requisite one year of employment with the acquired company. However, be careful about how you prove such employees have specialized knowledge for L-1B cases. When your client contemplates selling or closing a foreign office, check to see if it will maintain another qualifying foreign office. For large multinational companies, this is usually not problematic. For smaller companies with only one foreign office, the sale or closing may have severe repercussions. Under the definition of qualifying organization, a U.S. entity only needs to have one foreign office in operation at all times. The foreign office does not have to be the entity that employed the L-1 employee prior to transfer to the United States. Thus, so long as there remains a qualifying foreign office, the sale or closing of the L-1s previous employing entity has no effect on L-1 status. If no foreign office will remain, however, the L-1 is in jeopardy and a change to another nonimmigrant visa status likely will be necessary if another foreign office cannot be maintained.
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8 CFR 214.2(l)(1)(i). See 8 CFR 214.2(l)(1)(ii)(g)(1). Affiliate means one or two companies that are owned and controlled by the same legal entity. 7 8 CFR 214.2(l)(7)(i)(C). 8 8 CFR 214.2(l)(7)(i)(C). 9 8 CFR 214.2(l)(5)(ii)(G).
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WHAT DOES DOING BUSINESS MEAN? The relevant regulations require that the qualifying organization be doing business in the United States and in at least one other country. 10 Doing business is the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. 11 Practice Pointer: The amount and nature of the evidence required to satisfy the doing business requirement varies greatly depending on the size of the organization, the nature of its business, and whether it has been doing business for a short or long while, particularly in the United States. The size of the organization will dictate the type and quantity of evidence needed. For large, established organizations, a statement by the companys president or other authorized official describing the ownership and control of each qualifying organization, along with a copy of the most recent annual report, SEC filing, or other documentation listing the parent and subsidiaries is sufficient. For a smaller, more marginal business, more is required: in addition to an authorized officials statement, records of stock ownership, profit and loss statements or other accountants reports, tax returns, articles of incorporation, by-laws and minutes of board meetings should be submitted. 12 For a start-up or new office, yet more is needed. In addition to the evidence typically provided for smaller, marginal businesses, the petitioner must address the specific documentary requirements imposed by the regulations, including evidence of physical premises, evidence of capitalization of the company and financial resources committed by the foreign entity, corporate bank statements, and financial plans or other evidence to demonstrate that the U.S. operations will within a year satisfy the doing business requirement and can otherwise support the beneficiary. 13 The nature of the petitioners business will also determine the required evidence. For example, USCIS in its Adjudicators Field Manual says that as import/export firms often do not meet the doing business requirement, multiple examples of customs forms are required: These include Form 7525V (Shippers Export Declaration), Form 7501(Entry Summary), and Form 301 (Customs Bond). The forms must include the importers identification number. USCIS expects yet more documents showing the day-to-day business of an import/export firm, including invoices, shipping manifests, shipping insurance policies, bills of lading, letters of credit, wire transfer advisement, inspection certifications, sales contracts and general business correspondence. 14 Practice Pointer: A company that only places workers at worksites of unaffiliated entities may be viewed as not only failing to do business but will also run afoul of anti job-shopping provisions. Specialized knowledge workers are ineligible for L visa status if they are stationed primarily at the work-site of an employer other than the petitioner or an affiliate, subsidiary or parent and if the worker will be principally under the control and supervision of the affiliated employer or the placement is essentially an arrangement to provide labor for hire. 15 For any case in which the beneficiary will not be working at the U.S. entitys worksite, the petitioner should submit evidence that the qualifying L organization will retain ultimate control over the worker. For example, it could provide evidence that an employee of the petitioner will actively supervise the work either on-site or through frequent and structured communications; that the beneficiary will be working at multiple worksites; that the job assignments and goals will be determined by the petitioner; or that petitioner will be directing tasks and activities. The third-party receiving the benefit of the workers services at its worksite may
10 11
8 CFR 214.2(l)(1)(ii)(G)(2); 9 Foreign Affairs Manual (FAM) 41.54 N9. 8 CFR 214(l)(1)(ii)(H); 9 FAM 41.54 N9.1. 12 AFM ch. 32(d). 13 AFM ch. 32(d); 8 CFR 214.2(l)(3)(v). 14 AFM ch. 32(b). 15 INA 214(c)(2)(F).
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provide input, feedback or guidance, but the supporting evidence must show that ultimate control over the workers daily duties remains with the petitioner. 16 The petitioner should also provide evidence that performance of the beneficiarys duties requires specialized knowledge of the petitioners products or services. The petitioner must show that it is not in the business of just placing workers with various unaffiliated companies but rather places workers at its clients so that they may receive the benefit of petitioners specialized services or products. 17 The anti-job shop provisions by their own terms do not apply to placement of workers in companies affiliated to the petitioner. The doing business requirement can be satisfied by placing workers at affiliated corporate entities. A recent Administrative Appeals Office decision affirmed that a company that managed the deployment of temporary specialized knowledge personnel from India to various affiliated entities in the United States was doing business. 18 HOW DO I KNOW IF AN EMPLOYEE IS CONSIDERED A MANAGER OR AN EXECUTIVE? In the real day-to-day corporate world, the terms manager and executive are used almost interchangeably; however, in the world of immigration, you are either a tangerine or a pomelo. There are no tangelos in immigration. While many immigration attorneys attempt to use hybrid manager/executive job descriptions, USCIS has been very clear that these are two distinct categories of L-1A employment. The four-prong test of whether an employee is employed in an executive capacity is whether he or she (1) directs the management of the organization, (2) establishes goals and policies, (3) exercises discretionary decision-making, and (4) reports back to higher level executives, such as a CEO or board of directors. 19 Practically speaking, this seems to apply to vice-presidents or anyone holding a C-suite title. In most cases, the more appropriate category would be that of manager. The four-prong test of whether an employee is employed in a managerial capacity is whether he or she (1) manages the organization or a subsection, (2) manages professionals or an essential function, (3) has the authority to hire and fire subordinates or functions at a senior level within the company, and (4) exercises discretion over the day-today operations of his or her assigned responsibility. 20 For both an executive and a manager, the duties must be primarily of an executive or managerial nature, as opposed to spending a large percentage of time performing the hand-on duties. 21 Practice Pointer: Even if someone does not manage other professional employees, he may still qualify as an L-1A functional manager. Generally, in order to qualify as an L-1A functional manager, the function managed must be essential to the company. The easiest way to evidence the essential nature of a function is to provide USCIS with a monetary value assigned to the function. For example, what is the projected revenue to the company? What would be the financial loss to the company should the function fail? An important, although not necessarily determinative, factor to consider is whether the employee has the ability to commit the company to a course of action or expenditure of funds. It is important to note that while an L-1A functional manager petition may sail through USCIS without an issue, it may not translate into a successful multinational manager petition during the green card process.
AFM ch. 32(c). AFM ch. 32(c). 18 Matter of Technical Services, Inc., WAC 07-277-53214 (July 22, 2008), published on AILA InfoNet at Doc. No. 08081964 (posted Aug. 19, 2008), available at www.aila.org/content/default.aspx?docid=26252; see also 52 Fed. Reg. 5738, 5741 (Feb. 26, 1987). 19 8 CFR 214.2(l)(1)(ii)(C). 20 8 CFR 214.2(l)(1)(ii)(B). 21 9 FAM 41.54 N7.2-1.
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INDIVIDUAL L-1 PETITION OR BLANKET LWHEN AND WHY EACH IS PREFERRED Those petitioners fortunate enough to have Blanket L approval are faced with a choice in each case: Would it be wiser to file an individual I-129 petition with the USCIS and then have the beneficiary apply for a visa abroad based upon its approval, or should the petitioner rely upon the Blanket L approval and submit a Form I-129S petition along with the beneficiarys nonimmigrant visa application at a consular post. 22 This question will arise with possible transfers of managers, executives and specialized knowledge professionals, but not with specialized knowledge personnel who cannot take advantage of Blanket L approval. 23 With individual L-1 petitions, a USCIS service center will answer both of the questions regarding L-1 eligibility described at the start of this article: whether the beneficiary is eligible for L-1 status and whether the petitioner is a qualifying organization. With I-129S petitions filed abroad, the second question as to whether the petitioner is a qualifying organization has already been answered in the affirmative by USCIS in granting Blanket approval. Only the remaining question as to whether the beneficiary is eligible for L-1 status is before the consular officer. There are still other considerations in making the choice: although the regulations do provide that an individual petition may be filed in lieu of using the Blanket L procedure, they also state that the petitioner and other qualifying organizations may not seek L classification for the same alien under both procedures, unless a consular officer first denies eligibility. 24 Therefore, if a petitioner who has Blanket L approval first files an individual petition with a USCIS service center, the petitioner has to advise the service center that it has not and will not apply to a consular officer for L classification under the approved Blanket petition. 25 If the petitioner first files abroad and the consular officer decides the beneficiary is ineligible for L classification under a Blanket petition, the individual petition can then be filed with USCIS. However, the petition must state the reasons for the denial, and specify the consular office which made that determination and the date of the determination. 26 Another important relevant factor is that consular officers may grant L classification only in clearly approvable applications. 27 Practice Pointer: In considering all these factors for each case, a practitioner must evaluate both the strength of the case itself as well as the likelihood of success at a particular consular post or service center. For example, L-1B specialized-knowledge cases are subject to far greater scrutiny than L-1A manager/executive cases. Given this heightened scrutiny, the bar may become impossibly high at consulates that are fond of invoking the clearly approvable standard. A practitioner might, therefore, decide to file a specialized knowledge professional case at a service center where a more detailed and thorough submission can be submitted and the clearly approval standard can be avoided. But not all service centers are the same. A practitioner might notice differing results for similar cases and that a specific center is particularly harsh when it comes to L-1B cases. The lesson to be learned is use AILA resources to make informed decisions. Ask colleagues about their experiences; stay abreast of recent developments at consulates and service centers; consult AILA publications and InfoNet; pose questions to AILA mentors. In doing so, you may learn, for example, that at some of the busier consulates, particularly in Asia, officers commonly invoke INA 221(g) to keep a case pending,
The eligibility requirements and procedures for applying for a Blanket L petition are beyond the scope of this article. They can be found at 8 CFR 214.2(l)(4). 23 A specialized knowledge professional is an individual who has specialized knowledge and is a member of a profession. 8 CFR 214.2(l)(1)(ii)(E). Consular officers on Blanket L cases must determine whether the specific job is for a manager, executive or a specialized knowledge professional. 8 CFR 214.2(l)(5)(ii)(D). 24 8 CFR 214.2(l)(4)(iii). 25 8 CFR 214.2(l)(4)(iii). 26 8 CFR 214.2(l)(5)(ii)(F). 27 9 FAM 41.54 N.13.6.
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concluding the case is not clearly approval. 28 A number of these consulates have form letters for this purpose that recommend that an individual petition be filed with the USCIS. In its review of such cases, USCIS will know that the case was deemed not clearly approvable. As practitioners, we can only hope that if a consular post has a history of employing INA 221(g) and the clearly approvable standard as a means of getting cases off its docket, the denial will not be given much weight by USCIS. Still, the petitioner is faced with explaining the reasons for the consular officers decision to USCIS, managing client disappointment, and dealing with additional delay. For all these reasons, it would be wise to file initially with the USCIS all cases which present unusual facts or legal questions. On the other hand, if the petition is for a managerial or executive position for which the beneficiary clearly qualifies, it would be advantageous to file at a consular post abroad. The advantages are obvious: the visa will be acquired much sooner and the costs will be less. TIMING AND OTHER CONSIDERATIONS WHEN MOVING FROM L-1 TO PERMANENT RESIDENCE For L-1 visa holders who view the U.S. assignment as strictly a temporary transfer opportunity that will provide good international experience, little thought needs to be put into a long-term immigration strategy. But for those who want to make their stay in the United States more permanent, there are a several factors that should be taken into account when moving from L-1 to permanent residence. Questioning L-1B and L-1A Assumptions L-1B visa holders often pursue permanent residence via the PERM labor certification process, while L-1A visa holders tend to have the luxury of filing for permanent residence under the streamlined employmentbased first preference category. But these assumptions can be dangerous starting points for the green card analysis. The initiation of the permanent residence process for an L-1 transferee is the perfect time to take a fresh look at whether a persons present nonimmigrant status has anything to say about the best permanent residence strategy moving forward: L-1A Ineligible for EB-1: In order to be approved under the L-1A classification, a transferee must have worked abroad in a managerial or executive position or one that is specialized in nature. However, when considering permanent residence options the rules are more restrictive. An EB-1 employment-based first preference beneficiary must have spent one year of employment abroad as a manager or executive. 29 Unless the experience outside the United States was managerial or executive in nature, the best option for an L-1A visa holder may be the filing of a labor certification. L-1B Eligible for EB-1: Conversely, an L-1B visa holder may have worked abroad as a manager or executive before moving to the United States to take a job that is more specialized in nature. If the L-1B transferee with management or executive experience abroad has been promoted to a management or executive position after arriving in the United States, then the EB-1 option is clearly a possibility. Under these circumstances, the green card strategy should be preceded by a change of status petition from L-1B to L-1A to reflect what would be considered by the USCIS as a material change in employment.30 L-1B Researchers: It may not be a common occurrence, but an L-1B visa holder performing cutting-edge research or otherwise playing a leading role in the employers operations may qualify under the employment-based first preference as an outstanding researcher or as a person with extraordinary ability.31 Either of these EB-1 classifications can offer a faster and often less expensive route to the green card compared to the labor certification process.
INA 221(g) provides that no visa will be issued if the consular officer determines that the foreign national is ineligible. Consular officers commonly rely on it to keep a case pending until eligibility can be determined by an individual petition to U.S. Citizenship and Immigration Services (USCIS). 29 8 CFR 204.5(j)(3)(i). 30 8 CFR 214.2(l)(7)(i)(C). 31 INA 203(b)(1)(A)(B).
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Corporate Changes Special attention should be paid to any corporate changes that have taken place after the L-1 transferees entry into the United States. Of particular importance is the question of whether the entity that employed the L-1 nonimmigrant abroad continues to exist or continues to have the same relationship with the U.S. entity as at the time of the I-140 filing. If a different relationship exists, it may not have an adverse impact on the L-1 status of the transferee, but the employment-based first preference classification might no longer be an option. 32 Tax and Estate Planning When some L-1 visa holders discover that becoming a U.S. permanent resident will potentially subject them to taxation on their worldwide income, they put the permanent residence process on hold and immediately seek tax and estate planning advice. The U.S. tax rules together with the tax treaties that apply to immigrants can be as complicated and arcane as the U.S. immigration rules. Being able to provide contact information for a good international tax or estate planning specialist can be an invaluable service to your L-1 client. At the very least, it is important to treat tax and estate planning as a threshold question when counseling an L-1 visa holder on the U.S. permanent residence process. B-1 Domestic Workers Good help can be hard to find for globe-trotting L-1 executives, which is why transferees will sometimes bring domestic servants with them to the United States as B-1 visa holders. 33 However, when the L-1 transferee files for U.S. permanent residence, the approval of the green card can undercut the domestic workers nonimmigrant status. A B-1 servant is required to become a permanent resident along with his or her employer in order to maintain status. 34 No special employment-based classification was created to correspond with this rule, so as a practical matter, the green card approval for the L-1 transferee means a return home for the B-1 domestic worker. Timing and Cost Considerations Once a decision is made by an L-1 transferee to move ahead with the green card process, questions of timing and cost inevitably come into play. Some employers prefer to time the permanent residence process immediately following the initial entry in L-1 status in order to avoid the cost of a nonimmigrant extension. On the other hand, some L-1 visa holders who would like to become U.S. permanent residents prefer to slow the process down if they envision a day where they plan to give up the green card and return home. The decision to slow down the process normally comes after talking with a tax advisor about the possibility of avoiding the so called Expat Tax. 35 Tax issues aside, a practical cost containment strategy for a borderline manager/executive case involves filing the I-140 as a stand-alone petition. Should the I-140 encounter trouble, the L-1 worker will at least be able to avoid incurring the time and expense of filing the I-485 application until such time as the I-140 is approved. When there is a significant amount of lead-time prior to the relocation of a transferee, it may be possible to sidestep the L-1 visa altogether and plan for the transferee to consular process an immigrant visa so the person can enter the United States as a green card holder. The timing of the granting of the immigrant visa is difficult to predict, so it should only be pursued if there is some flexibility on the initial date of entry.
See 8 CFR 204.5(j)(3)(i)(C). 9 FAM 41.31 N9.3-3. 34 9 FAM 41.31 N9.3-4 (Personal employees of all lawful permanent residents (LPRs) must obtain permanent resident status, as it is contemplated that the employing LPR is a resident of the United States.). 35 Under Internal Revenue Code 877A, a person who has been a permanent resident in 8 of the last 15 years and who abandons the green card is deemed to have disposed of all capital property at fair market value as of the date of expatriation, and must pay tax on the net gain if it exceeds $600,000 (indexed for inflation).
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Status Maintenance Some L-1 transferees have to address the thorny question of how to maintain status during the course of the permanent residence process. Unlike H-1B workers, L-1B and L-1A visa holders do not have the ability to extend the validity of their status under American Competitiveness in the Twenty-First Century Act of 2000 36 beyond the normal five and seven-year limits. 37 As a result, L-1B workers who are subject to backlogged EB-2 or EB-3 preference categories must plan well in advance in order to maintain status. Changing from L-1B to L-1A status can offer a temporary fix with an additional two years of status if it can be argued that the transferee has moved to a position that is primarily managerial or executive. However, regulations require that the change of status from L-1B to L-1A must be approved six months prior to the end of the fifth year in L-1B status. 38 Many L-1 transferees also consider the option of moving from L-1 to H-1B, subject to H-1B quota availability. One potential downside to such a move is the loss of work authorization eligibility for the L-2 spouse. For some L-1 transferees, the E-1 or E-2 treaty trader/investor visas may be a viable alternative depending on the nationality of the employer and employee. While the E option would preserve the employment authorization eligibility of the spouse, because it does not allow for the concept of dual intent, changing to E status will have the effect of solving the status maintenance problem while creating an immigrant intent problem.
American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. No. 106-313, 10116, 114 Stat. 1251, 125162. 37 AC21 104(c) and 106(a). 38 8 CFR 214.2(l)(15)(i).
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RECONCILING L-1 RFES WITH AGENCY GUIDANCE: THE DRAMA BEHIND AND THE STRATEGIES FOR DEALING WITH THE 15-YEAR HIGH IN L-1 RFE RATES
by Timothy Payne *
Over the past several years, the issuance of L-1 Request for Evidences (RFEs) has reached a fever pitch. The problem is particularly pronounced with L-1B specialized knowledge workers, but L-1A executives and managers are not without their problems. According to the most recent CIS Ombudsman Annual Report, the L-1B RFE rate at both the California and Vermont Service Centers rose from 7.5 percent in 2005 to approximately 30 percent in 2009, an upward trend that continues to plague immigration lawyers and their clients. Over the same period, the report showed a similar upward trend for L-1A RFEs, with the Vermont Service Center (VSC) posting a 2009 rate of 16 percent compared to California Service Centers (CSC) rate of 31 percent. Given that the RFE rates are at a 15-year high, it is worth considering whether U.S. Citizenship and Immigration Services (USCIS) guidance supports the use of generic and broad reaching RFEs, which have become so commonplace today. The Adjudicators Field Manual (AFM) instructs adjudicating officers to carefully consider how and when to use their RFE power. 1 Yet in the context of L-1 filings, the indiscriminate use of RFEs appears to be the rule rather than the exception. Adjudicators frequently appear to be using the RFE as an investigative tool to request voluminous amounts of data with little attention paid to the evidence already in the record. The typical RFE will summarize the relevant statute and regulatory provisions, and then proceed by requesting a more detailed description of the position. The petitioner will often be asked to provide company background data such as federal income tax returns, state quarterly wage reports, W-2 and W-3 wage and tax statements from employees. Occasionally, USCIS will request photographs and floor plans of the petitioners business premises, historical visa sponsorship data, and other detail that has little bearing on the question of L-1 eligibility. For consultants spending time at third-party worksites, additional information such as client contracts, statements of work, performance reviews, and organizational charts are routinely requested along with evidence of the employer-employee relationship. Some excessively long RFEs may be the result of adjudicators casting a wide net because their case loads dont allow them enough time to write more detailed requests. As Mark Twain once said, I didnt have time to write a short letter, so I wrote a long one instead. But the broad reaching nature and skeptical tone found in a large portion of L-1 RFEs indicates to us that there is more at play here than the overuse of templates by busy officers. When we turn to the regulations, memos and other agency guidance for answers as to the rules governing the use of RFEs, one fact becomes increasingly clearthere are relatively few strict guidelines adjudicators are required to follow. The rules that do exist tend to be more advisory in nature and rely on the officer to exercise the appropriate level of discretion. What makes matters worse is that other than peaceful resistance, there is no specific mechanism for enforcing the rules and guidelines other than forwarding onerous RFEs to VSC and CSC directors through our AILA liaison channels. While the Administrative Appeals Office (AAO) can serve as a counterbalance to excessive RFEs if they are followed by poorly reasoned denials, the time consuming nature of the appeal process together with the historical reluctance of the AAO to challenge adjudicator discretion in the context of L-1 filings often makes the appeal process less than attractive.
Timothy Payne (tpayne@sidley.com) is a partner in the corporate immigration law practice at Sidley Austin LLP in Chicago. He is a former chapter chair of the AILA Chicago Chapter and has served as an AILA liaison for the Department of Labor (DOL), Vermont Service Center (VSC), Nebraska Service Center (NSC), and Administrative Appeals Office (AAO) committees. Mr. Payne is included in the U.S. News & World Report Best Lawyer listing and in the International Whos Who of Immigration Lawyers 2011, a directory of leading lawyers. 1 Adjudicators Field Manual (AFM), ch. 10.5(a)(2).
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As a starting point, 8 CFR 103.2(b)(8) makes it clear that RFEs are discretionary. Officers may use an RFE to ask for more evidence or they may choose to deny a petition without issuing and RFE. As mentioned previously, Chapter 10.5 of the Adjudicators Field Manual (AFM) provides us with additional insight into what USCIS deems to be an appropriate use of the RFE power by admonishing officers not to use the RFE to fish for evidence. Instead, the officers must: (1) determine what evidence is lacking, and (2) request that evidence. A February 16, 2005, memorandum from William R. Yates addresses the topic of RFE issuance by reminding adjudicators that that unwise use of the RFE power can have an adverse impact on limited USCIS resources and can serve to confuse petitioners and applicants alike. 2 In addressing the question of when an RFE is most appropriate, the memo advises officers to only use it when a particular piece of evidence is missing as opposed to issuing a broad request. In order to provide petitioners with a better idea of why the RFE has been issued, Yates instructs officers to explain why previously submitted evidence is not sufficient or persuasive. A similar sentiment can be found in Chapter 11.1(c) of the AFM, which states that an RFE should only be issued if the adjudicating officer can articulate a material doubt as to the facts and evidence presented. With respect to the time that should be permitted to respond to an RFE, a June 2007 memorandum from Donald Neufeld introduced significant changes in how adjudicators determine the proper amount of time to give for a response. 3 Following the effective date of the memo, the normal 12-week response period was replaced with a flexible set of ground rules for determining the amount of response time. Adjudicators were directed to consider such factors as the type of evidence requested, whether it is easily available, and whether it is initial or additional evidence in setting the response deadline, with 12 weeks being the maximum amount of time permitted. As many practitioners know, following the June 2007 Neufeld memo, 30 days quickly emerged as a common response time for RFEs, even when the evidence being requested is not initial evidence required for the approval of a petition. When an L-1 extension petition involves a situation that is nearly identical to the initial petition previously approved, USCIS policy requires the adjudicator to give deference to the previous decision. If an RFE is received for an L-1 petition involving the same parties and the same facts, the adjudicator should be reminded of the April 23, 2004, memo by William R. Yates in which officers were directed to give deference to a prior USCIS approval unless: (1) there was a material error in the previous petition; (2) a substantial change in circumstances has taken place; or (3) there is new material evidence that impacts eligibility. 4 The memo only makes reference to past USCIS decisions, but it can nonetheless serve as a platform for arguing that a consular officials approval of a blanket L should enjoy some level of deference as well. For all the memos and other guidance that have accumulated over the years, L-1 petitions are amazingly fact specific. Each adjudicator is permitted to exercise a great deal of discretion in interpreting L-1 standards, which in the case of L-1Bs are especially vague and subjective. By design, adjudicators are left to rely on their own expertise in the context of the evidence presented. This wide-ranging discretion provides officers with the flexibility to apply the law narrowly or broadly as dictated by their conscience.
Feb. 16, 2005, Memorandum, W. R. Yates, Associate Director, Operations, Requests for Evidence (RFE) and Notices of Intent to Deny (NOID), published on AILA InfoNet at Doc. No. 05021810 (posted Feb. 18, 2005). 3 June 1, 2007 Memorandum, D. Neufeld, Acting Associate Director, Domestic Operations, Removal of the Standardized Request for Evidence Processing Timeframe Final Rule, 8 CFR 103.2(b), Significant Revision to Adjudicators Field Manual (AFM), Chapters 10.5(a), (b); New Appendix 10-9 (AFM Update AD07-05), published on AILA InfoNet at Doc. No. 07062171 (posted June 21, 2007). 4 Apr. 23, 2004 Memorandum, W. R. Yates, Associate Director for Operations, The Significance of Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility of Extension of Petition Validity. www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2004/readjud_042304.pdf (accessed Feb. 14, 2011).
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For conscientious adjudicators who are looking for reasonably clear guidance on the adjudication of L-1B petitions, the 1994 Puleo 5 and 2002 Ohata 6 memos continue to serve as old but accurate descriptions of legacy Immigration and Naturalization Service policy. USCIS renewed its allegiance to the Puleo and Ohata memos during a March 2009 meeting with AILA. 7 The current L-1 RFE rates can be seen as a perfect storm, which has been created through the convergence of legislation, policy memoranda, and other agency guidance. The situation has been made worse by the economic downturn of the past few years as U.S. workers face stiff foreign competition and regular cycles of layoffs. In short, present day L-1 RFEs are grounded as much in agency guidance as they are in practical economic considerations and fear of unfair foreign competition. A successful response to an RFE should take into account the seven factors below. Each of the factors has made a contribution to the inhospitable environment for L-1s: 1. Fraud Concerns In 2008, USCIS expanded its fraud detection efforts by releasing a 2008 internal memo encouraging adjudicating officers to use the RFE process to resolve possible fraud found in submissions. 8 The issuance of the internal memo explains in part the emergence of RFEs asking for documents well beyond scope of mere L-1 eligibility. It not clear to what extent there are limits placed on an officers ability to use an RFE to explore possible fraud. Given the language in AFM Chapter 10.5 prohibiting the use of RFEs to fish for evidence, it would seem that such a request would have to be supported by solid evidence of fraud or misrepresentation found in the petition itself or from other USCIS sources. In other words, such a request should not merely be based on an officers hunch. A separate but related fraud concern can be traced back to February 2004, when the Department of State warned consular officers that companies may be more inclined to push the limits of L-1 eligibility when the annual H-1B quota is reached. 9 It is difficult to quantify the correlation exists between the H-1B quota and L-1 RFEs, but it is reasonable to think that the 2004 State Department memo reflects USCIS concerns as well. Employers responding to RFEs that appear to be the result of fraud concerns should carefully consider each piece of documentation provided as such evidence is likely to be made part of the record in any future USCIS investigation or on-site visit. 2. Differing Consular Standards The interpretation of L-1 regulations often differs between U.S. Department of State (DOS) officials who issue visas under the blanket L program, and USCIS officials who adjudicate L-1 petitions within the United States. Based on the number of easily approved blanket L-1 petitions that encounter significant resistance at the time of extension, many USCIS officers seem to be operating under the presumption that the adjudicatory standards at consulates are at best inconsistent and at worst excessively lax. In a recent memo, the U.S. State Department admitted to the problem of inconsistent standards and highlighted the problematic definition of specialized knowledge in particular. 10 The DOS memo also suggested that the L-1B standard is less than clear, since it contains undefined relativistic terms and elements of circular reasoning. DOS and USCIS may never see eye to eye on the issue of L-1 adjudication, which will continue to create problems for petitioners
Mar. 9, 1994 Memorandum, J. Puleo, Acting Executive Associate Commissioner, Office of Operations, Interpretation of Specialized Knowledge, published on AILA InfoNet at Doc. No. 01052171 (posted May 21, 2001). 6 Dec. 20, 2002 Memorandum, F. Ohata, Associate Commissioner, Service Center Operations, Immigration Service Division, Interpretation of Specialized Knowledge published on AILA InfoNet at Doc. No. 03020548 (posted Feb. 5, 2003). 7 Questions and Answers, USCIS AILA Meeting, Mar. 19, 2009, published on AILA InfoNet at Doc. No. 09031920 (posted Mar. 19, 2009). 8 See CIS Ombudsman Annual Report 2010, June 30, 2010, p.43. The internal guidance regarding the issuance or RFEs to combat fraud was initially related to H-1B petitions but the Ombudsman acknowledged reports that L-1 adjudications have been impacted by this guidance as well. 9 Department of State Cable, L Visas and the H-1B Cap, Feb. 2004 (R140343 Z), published on AILA InfoNet at Doc. No. 04022410 (posted Feb. 24, 2004) (6. Two areas of concern over potential L abuse relate to job shops and to abuse of the specialized knowledge criteria.) 10 Department of State Cable, Guidance on L Visas and Specialized Knowledge, STATE 002016, 01/11, published on AILA InfoNet at Doc. No. 11012433 (posted Jan. 24, 2011).
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filing L-1B extensions for their blanket L beneficiaries. One way of addressing the uncertainty that comes with extending a blanket L is to file the extension as early as possible in order to secure a decision prior to the expiration of the underlying status. In the event of a denial, re-filing the L-1 and hoping for a better result with a different officer may be the best way to ensure the maintenance of status. It allows the petitioner and beneficiary to plan for the possibility of a second denial by exploring other visa strategies or putting in place a contingency plan in place to backfill the position with another employee. 3. L-1 Reform Act of 2004 The L-1 Reform Act of 2004 was enacted with the purpose of eliminating the use of the L-1 classification by job shops sending L-1 workers to client sites to be controlled and supervised by unaffiliated employers. The passage of the law was followed by a July 28, 2005, memo by William R. Yates outlining the corresponding revisions to the AFM. 11 The passage of the L-1 Reform Act of 2004, together with the issuance of the Yates memo planted a seed that germinated in early 2006 with the growth of a new breed of L-1 RFEs. Adjudicators continue to place L-1 third-party worksite situations under the microscope. Since January 2010, some third-party worksite RFEs have included questions about whether an employer-employee relationship exists between the L-1 petitioner and beneficiary. This focus on the employer-employee relationship can be attributed in part to a January 8, 2010, Donald Neufeld memo. 12 Although the 2010 Neufeld memo was intended for H-1B adjudication, it proved to be a crossover hit for L-1 petitions as well. Taken together with the third-party placement provisions of the L-1 Reform Act of 2004, the 2010 Neufeld memo can be credited with creating an uptick in number and thickness of L-1 RFEs. 13 4. Shifting the Standard of Proof In their zeal to uncover possible fraud and ensure that only qualified applicants receive L-1 approvals, some officers appear to be using the RFE power in a way that has the effect of inappropriately raising the standard of proof. Nearly all immigration filings, including L-1 petitions, are governed by the preponderance of the evidence standard of proof. Under the preponderance of the evidence standard, the applicant or petitioner must submit relevant, probative and credible evidence that leads the adjudicator to believe that the claim is probably true or more likely than not. The standard was formally adopted by USCIS in 2006 with the Matter of Chawathe 14 decision and is contained in Chapter 11.1(c) of the AFM. The standard of proof is a cornerstone of adjudication, yet the Service itself admits in should do more to train officers in how to properly apply the standard. The net effect has been the commonplace existence of RFEs that appear to be based on a much higher standard of proof, such as clear and convincing or beyond a reasonable doubt. USCIS acknowledged this problem in its response to the CIS Ombudsmans 2010 report. 15 In the report, USCIS agreed with the CIS Ombudsmans recommendation that adjudicators be provided with additional training to better understand and apply the preponderance of the evidence standard. In fairness to USCIS, the
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July 28, 2005, Memorandum, W. R. Yates, Associate Director of Operations, Changes to the L Nonimmigrant Classification made by the L-1 Reform Act of 2004, Revisions to the Adjudicators Field Manual (AFM) Chapters 32.3, 32.4(a), and 32.5 (AFM Update AD05-26), published on AILA InfoNet at Doc. No. 05080566 (posted Aug. 5, 2005). 12 Jan. 8, 2010, Memorandum, D. Neufeld, Associate Director, Service Center Operations, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements; Additions to Officers Field Manual (AFM) Chapter 31.3(g)(15) (AFM Update AD 10-25), published on AILA InfoNet at Doc. No. 10011363 (posted Jan. 13, 2010). 13 Note that Chapter 32.3(c) of the AFM contains language that can be very useful in responding to an RFE stemming from a third-party worksite situation where a client exercises some control over the L-1B worker. The AFM gives adjudicators the following instruction: even if the non-affiliated entity exercises some control or supervision over the work performed, as long as such control and supervision lies first and foremost within the L organization, and the L organization retains ultimate authority over the worker, the ground of ineligibility does not apply. 14 Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), published on AILA InfoNet at Doc. No. 10102030 (posted Jan. 20, 2010). Matter of Chawathe, A74 254 994 (AAO 1/11/2006), published on AILA InfoNet at Doc. No. 06020160 (posted Jan. 12, 2006). See also Adjudicators Field Manual Chapter 11.1(c). 15 USCIS Response to the CIS Ombudsmans 2010 Annual Report, Nov. 9, 2010, published on AILA InfoNet at Doc. No. 10112460 (posted Nov. 24, 2010).
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standard of proof as it applies to an immigration filing is by nature subjective and will always involve officers making difficult judgment calls. Nonetheless, in the context of an RFE response, adjudicators sometimes need to be reminded that under the preponderance of the evidence or more likely than not standard, the threshold for proof should not require a mountain of documentation. 5. Fear of Unfair Competition A prevailing point of view among immigration opponents is that the L-1 program is a source of cheap labor, which can have the effect of displacing U.S. workers and fueling unfair competition. 16 While these fears are not reflected in the official policy guidance of the Service and have no place in the adjudication of L-1 petitions, in some instances the perception of cheap labor and unfair competition appears to inform the discretion of the adjudicating officer. While it may not be wise to feed these fears by addressing the issues directly, one possible strategy for dealing with this issue is to provide the adjudicator with information about the positive impact the employer has on the U.S. economy and the amount of time and energy the employer has put into hiring and training its U.S. workforce. With respect to wages, if the L-1 worker is being compensated at or above the prevailing wage, or is helping to preserve or create jobs in the United States then those points, while clearly not germane to the L-1 requirements, can nonetheless be persuasive with some adjudicators. 6. VIBE The Validation Instrument for Business Enterprises (VIBE) program is a quality control database developed by USCIS in conjunction with Dun and Bradstreet that began the beta-testing phase in January 2011. The system provides adjudicating officers with a tool to verify data contained on employer-based immigration petitions, including L-1 petitions. 17 VIBE can be used to verify the existence of foreign affiliates, as well as the petitioners ability to pay and overall financial viability. VIBE will not result in the automatic denial of a petition, but it may result in the issuance of an RFE to give the employer an opportunity to reconcile differences between the information in the VIBE system and the petition submitted. It is unclear at this point in time whether VIBE will help USCIS accomplish its stated goal of cutting down on the number of RFEs, while improving the efficiency of adjudication by reducing the amount of information an employer needs to provide with a petition. 7. Unpublished Decisions One of the chronic problems that serves to undercut the integrity of the adjudication process is the reliance of USCIS officers on the reasoning found in unpublished decisions. As a general rule, these decisions are not mentioned in the RFEs or otherwise made public, but the reasoning found in the decisions is routinely relied upon by the adjudicators. The use of unpublished decisions is not unlike playing a game of blackjack where the dealer announces you lose but never has to show you her cards. Even if you trust the dealer, it still leaves behind an uneasy feeling. Lack of transparency notwithstanding, USCIS claims that unpublished decisions play an important role in the adjudication process by giving officers fact patterns and lines of reasoning that are consistent with USCIS policy and transferrable to similar situations. In a 2009 Q&A with AILA, USCIS made no apologies for using the reasoning in unpublished decisions. 18 Given the obvious benefits of making
See Bridge to Immigration or Cheap Temporary Labor?: The H-1B and L-1 Visa Programs Are a Source of Both, EPI Briefing Paper #257 (Feb. 17, 2010) (Rather than attracting the best and brightest for permanent immigration, as many have claimed, the programs have increasingly been used for temporary labor mobility to transfer work overseas and to take advantage of cheaper guest-worker labor.) 17 VIBE Tool Aims to Enhance Accuracy, Efficiency and Fraud Detection (Jan. 26, 2011); www.uscis.gov/ portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3cb744db86ebd210VgnVCM100000082ca60aRC RD&vgnextchannel=521d735652f9d210VgnVCM100000082ca60aRCRD (accessed Feb. 18, 2011); see also AILA InfoNet at Doc. No. 11012830 (posted Jan. 28, 2011). 18 Questions and Answers, USCIS AILA Meeting, Mar. 19, 2009, published on AILA InfoNet at Doc. No. 09031920 (posted Mar. 19, 2009) (There have been a number of well written and well reasoned unpublished decisions regarding specialized knowledge, none of which, in our view, are inconsistent with the memoranda you have referenced While these unpublished decisions do not constitute binding precedent, there is no prohibition against applying the same reasoning articulated in such unpublished decision if a subsequent case fits the same fact pattern.)
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the reasoning behind RFEs and final decisions transparent, one would hope that USCIS would see the benefit of pulling the curtain back to reveal which unpublished decisions they find so useful. One interesting question is whether adjudicators are making use of unpublished decisions as a basis for approval, or only as a justification for issuing a denial. We may suspect the latter but alas we may never know. Of course the use of unpublished decisions is a two-way street. Practitioners are free to use them in the context of an RFE response but should not expect the adjudicator to like them as nearly much as the nonprecedent decisions being used on the other side of the argument.
OVERVIEW OF THE EB-5 MARKET INVOLVING REGIONAL CENTER PROJECTS

by Linda Lau and Tina Lee *
Like any other sector of business activity, the EB-5 arena encompasses a market that goes deeper than a display of well-defined products or technical processes with the EB-5 label. The market is where the activities of a whole host of players converge to facilitate and direct the flow of EB-5 investment funds. Without at least a general understanding of the forces and dynamics at work in the EB-5 market, immigration law practitioners and U.S. business principals alike cannot engage meaningfully with the EB-5 program. Accordingly, the following overview is offered as a helpful starting point for understanding some of the players in the EB-5 market and how their varied goals and demands may impact the decisions made by projects and investors. WHOS WHO Major players in the EB-5 market (other than EB-5 practitioners) and business principals seeking capital are briefly described below. Professional Immigration Consultants/Agents This category refers to individuals and companies outside the United States who are engaged in the business of providing emigration-related services to prospective EB-5 investors for a fee. Professional immigration consultants exist throughout the world and may be required to have a license or certification depending on the country in which they operate. In China, immigration consultants are required to be licensed and bonded with the Ministry of Public Security of the Peoples Republic of China. Immigration consultants assist investors by providing them information on the EB-5 program, gathering documentation, and assisting them with translations to be forwarded to U.S. immigration lawyers for review, and may also provide landing and follow-up services for new immigrants. In general, immigration consultants also play the dual role of acting as finders for specific EB-5 projects in exchange for a finders fee from the project. Because of their networks with and access to high net worth individuals, immigration consultants play a significant role in determining which projects in the market receive EB-5 investor money. This is especially true of China, which in the first quarter of fiscal year 2011 generated over 68.1 percent of EB-5 visa usage. Immigration consultants may also influence the fee structures of other professionals involved in EB-5 case processing e.g., firms that provide sources of funds analysis and immigration lawyersand may even impact the manner in which EB-5 petition preparation is managed. U.S. Companies That Provide Advisory and Due Diligence Services to Prospective Investors On the U.S. side, various companies provide analysis and advice to prospective investors on the business aspects of EB-5 projects in which they are interested. In the regional center context, services can include describing and recommending several regional centers from which an investor can choose, running background checks on regional center principals, reviewing financial projections for a specific project, opining on the business strategy and projected return on investment, assessing risk factors, and running a comparative analysis of numerous projects. Advisory service companies receive service fees from investors, and may also receive fees from regional centers.
Linda Lau (J.D., University of California, Los Angeles, School of Law) currently serves as vice chair on the 201011 AILA EB-5 Committee and is a former chair of the Executive Committee of AILAs Southern California chapter. Her Los Angelesbased firm, Global Law Group, specializes in U.S. and global immigration strategies for professionals and high net worth individuals. Ms. Lau is admitted as a member of the California State Bar Association and a solicitor of England and Wales. Tina Lee (J.D., University of California, Los Angeles, School of Law) is the supervising attorney in charge of overseeing case matters at Global Law Group. She was admitted to the California State Bar in 2003 and is a member of the American Immigration Lawyers Association, for which she has co-authored several articles on EB-5 topics.
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U.S. Companies Providing Marketing Services to EB-5 Projects Other U.S. companies act as marketing consultants focused on EB-5 projects and regional centers rather than prospective investors. These companies may be connected to foreign markets and, therefore, attempt to provide regional center and project principals with up-to-date information about relevant rules and practices in those markets. While developing their networks abroad, they introduce project principals to immigration consultants who can provide investors, and coordinate outreach opportunities such as seminars and conference participation. They also design and execute foreign-language marketing campaigns and translate project materials into foreign languages for distribution to prospective investors. EB-5 marketing consultancies are paid by the EB-5 regional centers and projects and compensation will depend on the range of services requested and other arrangements unique to each projects needs. It is noted that these types of U.S. companies will have to be in compliance with foreign laws governing the marketing and promotion of investment opportunities, and failure to comply may result in adverse action against the company which damages the reputation of a project, and even results in penalties. In China, for example, the Supreme Peoples Court in January 2011, issued an interpretation of a criminal statute regarding illegal fundraising activities. Under the interpretation, the definition of illegal fundraising includes the solicitation of funds from the general public without approval from the appropriate authorities, or through the use of mass media, presentations, flyers, and SMS text messages. It is not definite in the face of the interpretation whether EB-5 marketing activities would fall into this category. Occasional or Casual Finders These include attorneys, certified public accountants, and real estate brokers who, because they are connected with high net-worth clients through their normal line of work, may refer a client to an EB-5 project for a finders fee. Where the finder is an immigration lawyer, he or she may either be retained by the client to process the EB-5 case, co-counsel with another immigration lawyer who is more experienced in EB-5 work, or refer the client out completely to an EB-5 practitioner to avoid malpractice claims or conflict of interest issues. Where an immigration lawyer is the finder but involves another immigration lawyer in preparing the EB-5 petition, transparent communications between the two lawyers should be emphasized and allocation of services should be agreed upon at the outset of the EB-5 case. Registered Broker-Dealers This category refers to persons or companies that are, engaged in the business of selling securities for the account of others, as defined in 3(a)(4)(A) of the Securities Exchange Act of 1934 2 and the analogous state blue sky laws. Such broker-dealers are generally required to register with the U.S. Securities and Exchange Commission (SEC), and those who receive finders fees in the United States should check with securities counsel as to whether they might fall within the definition of a broker-dealer. Even those who consider themselves merely occasional finders may be subject to registration requirements. SEC registration requirements do not apply to foreign personse.g., immigration consultants. The presence of many players in the market reflects the abundance of opportunities available. It also indicates that before an EB-5 case is undertaken by an immigration lawyer, multiple parties must generally come to an agreement regarding their respective fees and roles. If a scenario involves an immigration consultant or finder who views himself as an intermediary for the client, the communication protocol must also be clarified. FEES AND ROLES The various parties interfacing with EB-5 investors give rise to a diverse array of fee arrangements and relationship dynamics. Typical Fee Arrangements As noted above, immigration consultants charge investors a fee for their service, and also take finders fees from the investment projects to which they introduce investors. If a project uses a loan structure (EB-5
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Securities Exchange Act of 1934, Pub. L. No. 73-291, 48 Stat. 881 (codified as amended at 15 USC 78(a) et seq.).
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funds invested into the new commercial enterprise are loaned out for use by a job-creating project), immigration consultants may also want the project principal to assign them a percentage of the interest spread on the loan. In some cases where a lawyer is responsible for connecting a client to a project, the lawyer may take finders fees from the project. Receipt of finders fees should be preceded by checking on applicable state and federal securities laws, and accompanied by written disclosure to the investor as required by the ethical rules of the relevant jurisdiction. Disclosure is an issue where the lawyer taking the finders fee is also the lawyer who will process the investors EB-5 petition. Regional centers employ a wide variety of fee structures. Some regional centers have in-house attorneys who handle the EB-5 petition filings for their investors, in part because doing so keeps overall costs low. Although a finders fee is not involved, this arrangement carries inherent potential for conflicts of interest because the in-house attorney jointly represents the regional center and the investor. Full disclosure of potential conflicts of interest should be made in writing to the investor, who should knowingly waive the conflicts. If a regional center does not choose to use in-house counsel for the immigration filings, it likely wishes to control the process by which immigration lawyers are engaged. For example, some regional centers require investors to use the services of an exclusive lawyer. Others ask investors to select a lawyer out of a small panel of EB-5 practitioners approved by the regional center. Both of these scenarios allow the regional center to control and monitor the project-related information that is submitted to U.S. Citizenship and Immigration Services (USCIS). Under current USCIS policy, only the investors counsel may submit a G-28 as attorney of record. The regional center does not receive notifications regarding the case and does not have the opportunity to see any of the project-related information that is submitted by investors counsel to USCIS in response to its request for evidence. Thus, if an investor uses an immigration lawyer unknown to the regional center, it risks the submission of inaccurate information to USCIS that may affect other investors cases. Another advantage of instituting an exclusive or panel lawyer policy is that it gives regional centers the ability to influence the amount of legal fees charged. Projects typically pay finders fees taken out of administrative fee money collected from investors: investors pay an administrative or processing fee in addition to the threshold capital investment amount, and these fees are used to cover the regional centers costs. A portion of the administrative fees may also be used to cover legal costs for the investor, especially if the regional centers in-house attorney will prepare the immigration filings. Payment of legal fees by the regional center gives it greater control over the preparation of the filings, but investors often pay their own legal fees directly out separate funds. Clarifying Roles When a third partye.g., broker, agent, or immigration consultantis involved as a middle person, the third party will generally want to dictate or at least influence how communications with the investor are handled. Different third parties have their own unique set of preferences and requirements, and immigration lawyers should be sensitive students of these so that case management is as smooth and efficient as possible. Third party involvement in client communications raises confidentiality concerns, and may even raise conflict of interest concerns, which should be disclosed and waived in writing by the investor at the outset. It should be noted that non-lawyers may try to negotiate with a regional center to handle certain aspects of EB-5 petition preparation. Regional centers should consider the risks they assume when they delegate petition-related tasks to non-legal professionals without substantial knowledge of the EB-5 program. CONCLUSION Knowing whos who and understanding the fee arrangements underlying a case will provide insight into the practical expectations of the parties involved. This will enable all parties to accomplish their EB-5 objective with maximum efficiency and synergy.
DIFFICULT REQUESTS FOR EVIDENCE FOR EMPLOYMENT-BASED CASESPRACTICE TIPS FROM INITIAL RESPONSE TO FEDERAL COURT
by Scott D. Pollock *
Responding to a U.S. Citizenship and Immigration Servicess (USCIS) Request for Evidence (RFE) requires legal analysis, logic, and argument. The issuance of an RFE signals that USCIS regards the initial evidence submitted with the petition as insufficient to approve the case, so you should treat the RFE response as a Notice of Intent to Deny (NOID). Particularly now, where it seems that USCIS will search for any possible reason to deny a case, a well-reasoned response is essential to avoid a denial, an administrative appeal, or litigation in federal court. PREPARING FOR AN RFE The purpose of an RFE may be to elicit information, obtain additional documents, or give notice of USCISs potential objections, either stated or implicit. Here are a few tips that immigration practitioners should follow to prepare for RFEs: Become familiar with 8 CFR 103.2 in its entirety. This section describes the procedure that USCIS is supposed to follow to adjudicate all cases. Section 103.2(b) focuses on Evidence and processing, including RFEs; Read the two main USCIS Interoffice Memoranda on RFEs. 8 CFR 103.2(b)(8) covers RFEs and NOIDs. Cases may be denied without an RFE as a matter of discretion when there is a lack of initial evidence. 1 The amount of time USCIS gives for a response is discretionary, but in no case will it exceed 12 weeks for an RFE or 30 days for a NOID. 2 According to the regulation, additional time may not be granted. 3 The USCIS Service Centers refuse to formally extend the time period, even though they have been known unofficially to accept late submissions of documents where a timely response to the RFE was made with an explanation of the documents unavailability and the applicants explanation of efforts to obtain it. DISTINGUISHING BETWEEN A SIMPLE AND COMPLEX RFE Examples of simple RFEs: Provide complete medical exam; submit original birth certificate; submit proof of INA 245(i) eligibility, e.g., proof of physical presence on December 20, 2000, or evidence that a labor certification application or petition was filed prior to May 1, 2001; and submit proof of marriage prior to a childs turning 18 in order to support a step-child relationship. Examples of a complex RFE: H-1B where the USCIS questions the beneficiarys credentials, the specialty occupation, the employer-employee relationships (recently common for IT consultant companies); L-1A that questions whether the position is executive or managerial; L-1B that questions whether the position involves specialized knowledge. Sometimes, the RFE may appear to be simple but implies that a complex dynamic is at play in the adjudicators mind. For example, in a step-child petition where USCIS requests information about the bona fides of marriage or the biological parents immigration status, the response may require both documentation and an explanation of the law on step-parent/step-child eligibility independent of a spouses immigration
*
Scott D. Pollock has practiced immigration law since 1985. He is a past chair of the AILA Chicago Chapter. He has served on numerous local and national AILA committees. Mr. Pollack is a frequent speaker and author on immigration topics. He thanks Christina J. Murdoch, an attorney at Scott D. Pollock & Associates, P.C., for her invaluable assistance with this article. 1 8 CFR 103.2(b)(8)(ii). 2 Id.; 8 CFR 103.2(b)(8)(iv). 3 Id.
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status. Another example is where the RFE requests ostensibly basic company information, such as leases, permits, or licenses to do business, or where it requests the number of prior nonimmigrant or immigrant petitions that the employer has filed. Any of these examples may reflect an unstated suspicion of an underlying fraud. RESPONDING TO AN RFE Here Are Some Suggested Best Practices When Responding to an RFE: Docket the response deadline and set reminders; Immediately forward the RFE to the client and ask for input regarding the response; Create a timeline for tasks, i.e., dates by which the employers response is in, evidence is provided, the response is drafted, and the response packet sent; For simple RFE responses, refer in your transmittal letter to the specific request(s) in the RFE and provide a checklist of documents or information you are providing. Index and tab any attachments to the response, such as an affidavit, employer letter, and documents; For complex and/or multi-page RFEs, read the RFE several times slowly and break it down, topic by topic, paragraph-by-paragraph, and sentence-by-sentence to understand what issues are raised and how to write the response; Organize the complex RFE response by using the structure of, and repeating the words used in the RFE itself. If you stray from the structure or words provided in the RFE, the response may be considered incomplete or could confuse the adjudicator. Try to break the response up into section headings by following the topics; Gather any requested evidence; Be prepared to research the law and use appropriate authority. A response to a request for general information that refers to the statute and regulations in a meaningful way can be very persuasive. On the other hand, citing law without explaining its relevance can undermine the presentation by alienating the adjudicator; If the RFE requests documents or information already provided, say so in a respectful way. Avoid unnecessary displays of annoyance or sarcasm. Consider resubmitting the evidence with the RFE response as a convenience to the adjudicator; Take note of 8 CFR 103.2(b)(16)(i)(iv) regarding mandatory disclosure of derogatory information. Ask for additional information from USCIS and inform it of your willingness to respond to any additional concerns; Proofread, edit, and revise the response, making certain you have covered all questions, requests and objections; File the response timely. Use an express mail service and send it at least two days before the deadline. You can have a Federal Express online account that lets you print the air bill and track the delivery online; Check the delivery services online tracking; Check the USCISs online case status to determine if the RFE response was received and case processing has resumed; Receive case updates electronically from USCIS; and Notify the client promptly when a decision is received. WHEN RESPONDING TO THE RFE DOESNT WORK: DECIDING WHETHER TO CHALLENGE DENIALS ADMINISTRATIVELY OR GO DIRECTLY TO FEDERAL COURT When an RFE response does not successfully prevent a denial of the application or petition, clients have two options. First, they can challenge the decision administratively through an appeal or a motion to reconsider. Second, they can bring a suit seeking review of the decision in federal court. Practitioners should
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keep in mind the following considerations when deciding whether to challenge a denial administratively or in federal court. Motions to reconsider, reopen, and appeal must be made on Form I-290B, Notice of Appeal or Motion. Check the regulations for current filing fees for motions and appeals. 4 Processing times for appeals to the USCISs Administrative Appeals Office (AAO) vary. Check current published processing times. 5 These are estimates only, and some appeals will exceed them. If the client cannot wait the sometimes one year or longer to process an appeal, consider requesting an expedite or bypassing the AAO altogether by challenging a denial directly in federal court. Immigration decisions are most commonly challenged in federal court under the Administrative Procedure Act (APA), which prohibits agencies from issuing decisions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 6 The APA may be used to challenge any agency decision that represents a departure from or violation of applicable statutes or agency procedures established in regulations. In cases denied after issuance of an RFE, practitioners should pay particular attention to whether the agency fully complied with 8 CFR 103.2(b)(16), requiring disclosure of adverse information. Consider whether an administrative challenge is explicitly required under the INA and implementing regulations. If it is, going immediately to federal court is not an option since the case will likely be dismissed for failure to exhaust administrative remedies. 7 However, in most cases, the INA does not create a mandatory administrative appeal process. Therefore, administrative exhaustion should not be required. 8 Be prepared, however, to rebut such an argument by the government in a response to a motion to dismiss. Consider whether federal court review is barred or severely restricted by the INA or other statutes. The most common bar to federal court review of immigration decisions is INA 242(a)(2)(B)s bar against review of discretionary actions. 9 However, an argument can be made that federal courts may still review and overturn erroneous legal decisions of the agency, even in cases involving decisions on discretionary immigration benefits, such as adjustment of status or waivers. 10 Consider whether the client has the resources to mount a federal court challenge. Federal litigation can last many years and be considerably more expensive than an administrative appeal. Consider the clients equities and whether the clients case and circumstances present a good situation for the federal courts to make favorable law on the issue involved. Factually weak cases with little chance of success should generally not be challenged in federal court because of the risk of creating damaging precedent. Federal case law allows for the recovery of attorneys fees under the Equal Access to Justice Act (EAJA) in the event of a favorable decision. 11 While the fee award is unlikely to equal the lawyers actual expenses in litigating the case, EAJA still presents an opportunity for the law firm and client to recoup some of the costs involved in challenging a bad decision, something that is not available at the administrative level.
4 5 6 7 8 9
8 CFR 103.7 (fee schedule for appeals of and motions to reopen or reconsider USCIS decisions). AILA maintains a page on AAO processing times: www.aila.org/content/default.aspx?docid=9154. APA 706(2)(A). APA 704 (only final agency action is reviewable). Darby v. Cisneros, 509 U.S. 137, 154 (1993); Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir. 2006). INA 242(a)(2)(B)(i)(ii); see also El Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004). INA 242(a)(2)(D) (8 USC 1252(a)(2)(D)); see also ANA Intl, Inc. v. Way, 393 F.3d 886, 895 (9th Cir. 2004). 28 USC 2412(b), (d)(1)(A)(B).
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Given the availability of EAJA fees in a meritorious case, the agency may reverse itself in the early stages of the litigation. Sometimes, filing a lawsuit and working with the governments attorney can obtain a faster resolution than an appeal to the AAO. 12 CONCLUSION RFEs can be frustrating and intrusive. However, follow the procedures of 8 CFR 103.2(b) and observe these best practices. You will likely obtain an approval of your filing and avoid having to begin again or having to appeal an unfavorable decision.
In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 604 (2001) (holding that fees under a fee-shifting statute like Equal Access to Justice Act (EAJA) cannot be granted where an agency provides the relief sought before a court order, consent decree, or similar formal altering of the parties legal rights).
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ADVANCED E-1 TREATY TRADER AND E-2 TREATY INVESTOR ISSUES

by Henry J. Chang *
OVERVIEW The E-visa category is particularly useful for individual traders or investors and other business personnel seeking entry into the United States for extended periods of time to fill key positions with certain types of foreign-owned enterprises. There are two types of E nonimmigrants: (a) E-1 treaty traders; and (b) E-2 treaty investors. Both categories share several core requirements: A qualifying friendship, commerce, and navigation treaty, or a qualifying investment treaty, must exist between the United States and a particular foreign country, Nationals of that treaty country must own, directly or indirectly, at least 50 percent of the treaty enterprise, The individual seeking entry into the United States must be a national of that treaty country, and The individual must be seeking entry into the United States on his or her own behalf to manage the U.S. enterprise or else as an employee who will fill a managerial, executive or essential skills position with the U.S. enterprise. Some treaties permit both E-1 treaty trader and E-2 treaty investor visas. Others permit only E-2 treaty investor visas or only E-1 treaty trader visas for citizens of those signatory countries. The U.S. State Department maintains a list of treaty visa countries at the following website: http://travel.state.gov/visa/ fees/fees_3726.html. REQUIREMENT OF TREATY NATIONALITY General Principles For individuals, nationality is usually easy to demonstrate using standard documentation such as passports, birth certificates, and certificates of naturalization. In the case of a business, nationality is determined by the nationality of the individual owners of that business. A business that is at least 50 percent owned by nationals of the relevant treaty country will be eligible for E status. Where two owners with different nationalities equally own a company, the company will possess both nationalities. In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the consular officer may (but is not necessarily required to) presume that the nationality of the corporation is that of the location of the exchange. However, where the stock of a corporation is exchanged in more than one country, the presumption will not apply. Problem Areas Applicants who hold dual nationality (neither of which is U.S. citizenship) may qualify for E status but they must hold themselves out as nationals of the treaty country in question. 1 In other words, such an applicant must be documented and be admitted into the United States as a national of the treaty country from which the treaty benefits accrue. However, applicants who hold dual nationality (one of which is U.S.
Henry J. Chang is a partner in the Toronto office of Chang & Boos. Mr. Chang has practiced exclusively in the field of immigration law for more than 18 years. A recognized authority in the field of U.S. and Canadian immigration law, Mr. Chang lectures extensively on the subject in both countries; his articles also have appeared in numerous nationally and internationally recognized legal publications. He is a member of the State Bar of California, the Law Society of Upper Canada, and is the immediate past chair of the Canadian Chapter of AILA. 1 9 Foreign Affairs Manual (FAM) 41.51 N3.3.
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citizenship) 2 or U.S. lawful permanent residence status 3 are not considered nationals of the treaty country for the purposes of E eligibility. It is not possible to satisfy the nationality requirement by having a treaty national hold the nontreaty nationals shares in a trust, even though under common law the trustee is considered the legal owner of trust assets. The U.S. Department of State (DOS) has confirmed that it will look to the beneficiaries, rather than to the trustee, when determining the nationality of the treaty business. 4 Some practitioners have reported that consular officers are sometimes strict in their assessment of nationality when the stock of the corporation is traded on more than one country and the presumption of nationality does not apply. As the Foreign Affairs Manual (FAM) encourages consular officers to request an advisory opinion in such cases, if a consular officer rejects the applicants evidence of nationality in such cases, it may also be advisable for practitioners to request such an advisory opinion if the consular officer has not done so. SPECIFIC REQUIREMENTS FOR E-1 TREATY TRADERS Definition of Trade Trade means the existing international exchange of items of trade for consideration between the United States and the treaty country. This exchange must be traceable and identifiable and title to the trade item must pass from one treaty party to the other. These requirements are discussed in greater detail below. Trade Must Be in Existence The above definition clearly requires the presence of existing trade. If the alien is unable to document preexisting transactions or successfully negotiated contracts of the type described above, she will have to travel to the United States as a business visitor until existing trade can be established. However, existing trade includes successfully negotiated contracts, binding upon the parties, which call for the immediate exchange of items of trade. Such contracts alone would appear to meet the requirement of existing trade, without the need for documentation of previous exchanges. Items of Trade According to DOS regulations, items that qualify for trade within these provisions include, but are not limited to, goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, and some news-gathering activities. U.S. Department of Homeland Security (DHS) regulations also specifically refer to data processing, advertising, accounting, design and engineering, and management consulting. Neither is intended to be an exhaustive list. Trade Must Be International General Principles The above definition of trade requires an international exchange of items of trade for consideration between the United States and the treaty country. Development of the domestic market without international exchange does not constitute trade in the E-1 visa context. Purely domestic trade is not contemplated under the E-1 classification. The traceable exchange in goods or services must be between the United States and the other treaty country. Problem Areas One question that has not been definitely answered is whether the origin of the goods is relevant to the question of whether trade is international. For example, if the goods being sold to a U.S. citizen are physically
Verbally confirmed by J. Gorsky, of the Department of State (DOS) Visa Office, at the 200203 AILA annual conference. See also 22 CFR 40.2(a), which prohibits the issuance of a visa to a national of the United States. 3 9 FAM 41.51 N14.1. 4 Verbally confirmed by S. Fischel, Director of Legislation, Regulations and Advisory Assistance for the DOS Visa Office, during the 19992000 AILA annual conference.
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in the treaty country and owned by the treaty national, but were originally manufactured in the United States, is this domestic trade? During the 200001 AILA annual conference, the DOS representative said that title to the goods would be considered and as long as title was transferred from a treaty national to a U.S. national, there would be international trade. However, there is still no formal guidance on this issue. Another problem that arises involves trade in services where the individual trader (perhaps the sole employee of the treaty enterprise) directly provides services. If the treaty trader provides the services directly to his or her U.S. clients while physically in the United States, a question arises as to whether this is international trade or domestic U.S. trade. If the treaty trader continues to maintain a business presence in the treaty country and continues to invoice its U.S. clients from that country (and profits continue to accrue in that country), this may be sufficient. However, merely funneling U.S. revenues through a foreign-based shell corporation having no other employees will be insufficient to establish that trade is international. 5 Trade Must Be Substantial General Principles The term substantial trade means the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow contemplates numerous exchanges over time rather than a single transaction, regardless of the monetary value. The volume of trade conducted is more significant than the monetary value of the item being exchanged, with cases involving more numerous exchanges of larger value receiving the most favorable consideration Large corporations engaged in international trades of high monetary value would have no problem establishing that their trade was substantial, as long as they were engaged in more than one transaction. In the case of smaller companies, trade should still be considered substantial if the income derived from the international trade is sufficient to support the treaty trader and his or her family. Problem Areas In the past, it was possible to establish E-1 eligibility by showing some existing trade coupled with realistic projections for substantial trade once the E-1 visa was issued. However, perhaps as a result of the economic downturn, consular officers now appear to be stricter in the adjudication of E-1 cases. They often expect the applicant to be engaged in already existing substantial trade at the time of the application. Trade Must be Principally Between the United States and the Treaty Country General Principles In order to qualify for status as a treaty trader, trade must be principally between the United States and the treaty country. This occurs when more than 50 percent of the volume of international trade is conducted between the United States and the treaty country of the treaty traders nationality. The remainder of the trade in which the treaty trader is engaged may be international trade with other countries or domestic trade. Problem Areas Practitioners should remember that trade is specific to each legal entity. The FAM states that to measure the requisite trade one must look to the trade conducted by the legal entity that is seeking eligibility as the treaty trader. 6 As a subsidiary is a separate legal entity from its parent, a U.S. subsidiary could qualify as a treaty trader even if its foreign parent corporation was not engaged in any trade between the United States and the treaty country. 7 However, the U.S. branch of a foreign parent corporation would not be considered a separate legal entity. 8 In the case of a U.S. branch, the trade of the foreign parent corporation would also need to be considered when calculating principal trade.
5 6
9 FAM 41.51 N4.2. 9 FAM 41.51 N7.1. 7 Id. 8 Id.

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If the origin of the goods really is less important than the transfer of title from one treaty party to another, goods manufactured in a third country should qualify as trade between the United States and the treaty country as long as title to the goods was initially held by a treaty national and subsequently transferred to a U.S. national. However, there is still no formal guidance that clearly addresses this issue. Another issue that may arise is whether the goods must actually be shipped between the United States and the treaty country in order to qualify. For example, the treaty trader may sell goods manufactured in the treaty country to a U.S. national who consumes the goods in the treaty country rather than shipping them to the United States. The FAM states that the international trade conducted by the treaty trader regardless of location must be between the United States and the treaty country of the aliens nationality. 9 Therefore, the physical shipment of the goods between the United States and the treaty country should not be necessary. SPECIFIC REQUIREMENTS FOR E-2 TREATY INVESTOR STATUS Definition of Investment Investment means the treaty investors placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. These requirements are discussed in greater detail below. Possession and Control of the Funds Invested General Principles The treaty investor must be in possession of and have control over the capital invested or being invested. If the investor has received funds by legitimate means (i.e., savings, gift, inheritance, contest, etc.) and has control and possession over the funds, the proper employment of the funds may constitute a proper investment. The source of the funds need not be outside the United States; however, inheriting the treaty business itself will not constitute an investment. Problem Areas Some consular officers may question whether funds transferred to the treaty business, from a joint bank account held by the principal investor and one or more third parties, are under the sole possession and control of the principal investor. The transferred funds may be attributed to the principal investor if all of the third parties confirm, by sworn affidavit, that their interests in the funds (if any) were intended to be a gift or loan to the principal investor, so that he or she could invest in the treaty enterprise. Bona Fide Enterprise The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity for profit, and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States. Speculative or passive investments will not qualify. Irrevocable Commitment of Funds Future intentions to invest are not sufficient. The investor must have already invested or be actively in the process of investing the funds. Capital that is in the process of being invested must be irrevocably committed to the enterprise. In other words, the investor must have already spent a sufficient proportion of the investment funds in furtherance of the business; this will ensure that he or she will proceed with the investment once E-2 status has been granted. It is permissible to use an escrow arrangement if the funds are committed to the project and the only precondition to release of the escrow funds is the issuance of the E-2 visa.
9 FAM 41.51 N7.

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Investment Must be at Risk General Principles The capital must be at risk in the commercial sense with the objective of generating a profit. It must be subject to partial or total loss if the enterprises business fortunes decline. The investors personal funds, unsecured loans, or loans secured by the investors assets are considered to be at risk. Loans secured by the assets of the treaty enterprise (for example, purchase money mortgages) are not considered to be at risk. Problem Areas Although the FAM states that indebtedness secured by both personal and business assets is not an investment, where the security interest registered against the business assets is less than the total amount of the indebtedness, it may still be possible to count the remaining asset value as an investment. For example, where an $80,000 loan is secured by the principal investors personal assets and also by a business asset worth $50,000, it should be possible to classify the remaining $30,000 as an investment. This is because this additional amount cannot possibly be secured by the business asset. Investment Must be Substantial Substantial means such an amount of trade or capital as is established by the Secretary of State, after consultation with appropriate agencies of Government. DOSs position continues to be that there is no set minimum dollar amount that will be considered substantial for the purposes of E-2 eligibility. The FAM states that, as long as all the other requirements for E-2 status are met, the cost of the business per se is not independently relevant to or determinative of qualification for E-2 status. In practice, many consular posts still apply an informal minimum investment threshold in addition to the proportionality test, although there appears to be no legal basis for such a position. In the past, many consulates would accept investments approaching USD$50,000, since the FAM used to make specific reference to an investment of USD$50,000 (it no longer contains specific examples). However, in light of the recovering economy, consular officers will probably insist on a more significant dollar investment. At some posts, USD$75,000 may be sufficient; at others, USD$150,000 or more may be required. A critical issue is usually whether the funds have been spent or are irrevocably committed to the commercial enterprise. As a general rule any amount under USD$100,000 is usually subjected to scrutiny. According to the current FAM, the purpose of the substantiality requirement is to ensure to a reasonable extent that the business invested in is not speculative, but is or soon will be a successful enterprise as the result of the exercise of sound business and financial judgment. It further states that the rules regarding the amount of funds committed to the commercial enterprise and the character of the funds, primarily personal or loans based on personal collateral, are intended to weed out risky undertakings and to ensure that the investor is unquestionably committed to the success of the business. The FAM still states that the requirement of substantiality is met by satisfying the proportionality test. It defines the proportionality test as a comparison between two figures: The amount of qualifying funds invested; and The cost of an established business or, if a newly created business, the cost of establishing such a business. The cost of an established business is, generally, its purchase price, which is normally considered to be the fair market value. The cost of a newly created business is the actual cost needed to establish such a business to the point of being operational. In addition, an element of judgment to be factored into the requirement of substantial investment concerns an assessment of the extent of the investors commitment to the successful operation of the project in view of the amount invested. Investment Must Not be Marginal General Principles The E-2 treaty investor must demonstrate that the treaty enterprise has the present or future capacity to generate more than a minimal living for the investor and his or her family (i.e., it is more than a marginal investment). However, the E-2 visa regulations contain no minimum standards for the number of jobs that
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must be created. A business may have no employees and still not be a marginal enterprise, if the income earned by the treaty business will be more than the investor needs to support him- or herself. Problem Areas Consular officers have been placing increased weight in recent years on the potential for job creation. In the past, consular officers would consider approving an E-2 treaty enterprise having no employees (other than the investor and his or her family) if the income from the business could clearly support the salaries of several employees and still leave sufficient income for the investor, if the investor decided to hire those employees. Approvals are becoming increasingly difficult to obtain in these cases. With careful documentation, it may still be possible to claim credit for indirect employment creation and the resulting economic benefit to the United States. For example, a treaty enterprise company that outsources warehousing/shipping services or assembly/repair work to an unrelated company may be able to claim credit for jobs created at the third-party contractor to handle the work sent by the treaty enterprise. Economic benefit and U.S. job creation can be proven in cases where the investor acquires an existing company, provided that it has an established track record of profitability. Given the recovering economy, an existing companys financial performance may be less than desirable at the present time. However, if the company had a history of profitability before the recent economic downtown, it should be possible to establish that its previous financial performance before the downturn is a better indicator of its future potential. In new office scenarios, positive economic impact and anticipated job growth are more speculative. The investor needs to provide a convincing, professionally prepared business plan that details the business plans, projected sales, and income figures, hiring plans and timelines, and other relevant information. If the client is not qualified to prepare this type of business plan, it may be necessary to retain the services of an accountant, economist, or other specialist. Ability to Develop and Direct the Business General Principles A treaty investor (but not E-2 employees) must be seeking entry solely to develop and direct the treaty business. The ability to develop and direct can be established by owning at least 50 percent of the treaty business (if the owner retains full rights of control over that portion of the business and has not assigned them to another), by possessing operational control through a managerial position or other corporate device, or by other means. Problem Areas Once the treaty investor establishes ownership and control of at least 50 percent of the treaty enterprise, there should be no doubt that he or she has the ability to develop and direct it. Nevertheless, some consular officers have recently insisted that the treaty investor also establish that he or she manages the treaty enterprise on a day-to-day basis. This interpretation contradicts the clear language of the DOS regulations. 10 Even the current version of the FAM confirms that the national of the treaty country may show through ownership or other means that he or she develops and directs the activities of the treaty business. 11
22 CFR 41.51(b)(11). The ability to develop and direct may be established solely on the basis ownership and control of at least 50 percent of the treaty business. Day-to-day operational control should only be considered if the investor does not possess a controlling interest. 11 9 FAM 41.51 N12.1.
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EMPLOYEES OF E-1 AND E-2 VISAS Employer Requirements General Principles An alien employee of a treaty trader may be classified E-1 and an alien employee of a treaty investor may be classified E-2, if the employee is in the United States or is coming to the United States to engage in duties of an executive or supervisory character; or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. Employees of treaty traders or treaty investors seeking E status must also have the same nationality as their employer. To support an E-1 or E-2 application filed on behalf of an alien employee of a treaty trader or treaty investor, the employer must be: A person having the nationality of the treaty country, who is maintaining the status of treaty trader or treaty investor if in the United States or if not in the United States would be classifiable as a treaty trader or treaty investor; or An organization at least 50 percent owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty trader or treaty investor status if residing in the United States or if not residing in the United States who would be classifiable as treaty traders or treaty investors. In other words, where the employer is residing in the United States in some capacity other than E-1 or E-2, it is not possible to seek treaty trader or treaty investor status on behalf of employees. The same applies in the case of a corporate employer, where more than 50 percent of the individuals who own the corporate employer are residing in the United States in some capacity other than E-1 or E-2. Problem Areas The above requirement can create problems in the case of publicly traded corporations where the shares are widely held. It would be very difficult to determine whether any of these small shareholders were in the United States under some classification other than E-2 (e.g., H-1B). It would also be difficult to determine whether they could be classifiable as treaty traders or treaty investors, because none of these small shareholders would possess sufficient ownership or control to qualify as principal traders or investors. Although some of these small shareholders might potentially qualify as E-1 or E-2 employees of treaty traders and treaty investors, it would be very difficult to establish that at least 50 percent of the shareholders meet this requirement. Executive or Supervisory Workers General Principles Executive or supervisory duties grant the employee ultimate control and responsibility for the enterprises overall operation or a major component thereof. An executive position provides the employee great authority to determine the policies and direction of the enterprise. A supervisory position grants the employee supervisory responsibility for a significant proportion of an enterprises operations and does not generally involve the direct supervision of low-level employees. Problem Areas The concept of a functional manager, which is recognized in DHS regulations for L-1A multinational managers, 12 is not expressly recognized for the E classification. However, there is also no specific requirement that an E-1 or E-2 supervisory employee manage subordinate workers. The definition of supervisory character states only that it does not involve the direct supervision of low-level employees. 13 A
12 13
8 CFR 214.2(l)(1)(ii)(B). 22 CFR 41.51(a)(11) and (b)(12).

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similar limitation applies to L-1A multinational managers. 14 Therefore, a functional manager might be considered a supervisory employee within the E-1 and E-2 context. Essential Skills Workers General Principles Special qualifications are those skills that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise. The essential nature of the aliens skills is determined by assessing the aliens degree of proven expertise in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of the aliens experience and/or training with the firm, the period of training or other experience necessary to perform the duties effectively, and the salary that the special qualifications command. Whether the special qualifications are essential will be assessed in light of all circumstances at the time of the visa application, on a case-by-case basis. There are two distinct types of essential skills workers: (a) short-term workers, and (b) long-term workers. In the case of short-term essential workers, the employer may need the skills for only a relatively short period of time when the purpose of the employees admission relates to start-up operations (of either the business or a new activity by the business) or to the training and supervision of technicians employed in manufacturing, maintenance, and repair functions. Ordinarily skilled workers can qualify as essential employees, but this almost always involves workers needed for start-up or training purposes. Long-term essentiality may be established in connection with continuous activities in areas such as product improvement, quality control, or the provision of a service not generally available in the United States. If an applicant establishes that he or she has special qualifications and, on a long-term basis, these qualifications are essential for the efficient operation of the treaty enterprise, the training of U.S. workers as replacement workers is not required. It should therefore be possible for such an employee to remain in the United States in E-1 or E-2 status for an indefinite period of time. Problem Areas Unlike the L-1B classification, employers are expected to train U.S. workers to replace short-term essential skills employees, usually within one or two years. 15 Unless long-term essentiality can be established, the essential skills worker may be limited to a relatively short period of status in the United States. Duration of E-1 and E-2 Status The E-1 or E-2 visa stamped into the passport is initially issued for a period of one to five years. E-1 and E-2 visa holders who enter the United States are typically admitted for periods of two years at a time. E-visas are renewable an indefinite number of times. This ability to renew an E-visa indefinitely is a tremendous advantage over other nonimmigrant visa categories. Intention to Depart Although applicants for E-1 or E-2 status must establish that they intend to depart from the United States upon termination of their status, they generally are not required to prove the existence of a residence in a foreign country that they do not intend to abandon; nor are they required to demonstrate that they will remain in the United States for only a specified, temporary period of time. The DOS position is that an applicant who is the beneficiary of an immigrant petition may still be eligible for E status by showing that he or she will not remain in the United States to adjust his or her status to lawful permanent resident or otherwise remain in the United States regardless of the legality of his or her status. The U.S. Citizenship and Immigration Services (USCIS) position is that an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference
14 15
8 CFR 214.2(l)(1)(ii)(B). 9 FAM 41.51 N14.3-1 and N14.3-3. See also 8 CFR 214.2(e)(30)(ii).
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petition. In addition, an applicant who has already filed an application for adjustment of status may still file for an extension of E status after that date. PRACTICE POINTERS Where to Apply Unlike many nonimmigrant categories, E-1 and E-2 visas do not require prior petition approval from USCIS. U.S. consular posts have primary jurisdiction to adjudicate E-1 and E-2 visa applications. However, treaty nationals who are already in the United States may request a change of status or extension of stay in E1 or E-2 status by filing an I-129 petition with the USCIS California Service Center. Immigration counsel should assess the facts of each individual case and advise the petitioner on which option is more suitable in that particular situation. Applicants who need to travel frequently and those who intend to reside primarily outside the United States for the immediate future are often better served by applying at a consular post. Of course, there are cases where it may be preferable to seek E-1 or E-2 status through USCIS. For example, some consular posts are extremely strict in their adjudication of E visa applications. An alien who might otherwise apply at such a consular post may find it preferable to seek a change of status to E-1 or E-2 and to defer his or her visa application until the treaty enterprise is strong enough to support a formal visa application. Also, where an alien purchases the treaty enterprise in the United States and must begin managing the business immediately, it may be faster first to seek a change of status using premium processing. The alien can then submit a formal E visa application at a consular post at a later date. Special Situations Iranian Nationals Although citizens of Iran continue to be eligible to seek E-1 treaty trader status, the sanctions imposed by Executive Order 12959 make it very difficult for Iranians to qualify for such status. However, on March 17, 2000, the secretary of state announced that sanctions against Iran would be eased to allow U.S. persons to purchase and import carpets and food products such as dried fruits, nuts, and caviar from Iran. This change was implemented through amendments to the Iranian Transactions Regulations at the end of April 2000. Therefore, it should now be theoretically possible for citizens of Iran to seek E-1 status based on substantial trade in such products. Citizens of Iran continue to be eligible for E-2 treaty investor status Citizens of the United Kingdom Because of the specific language of the United Kingdom treaty, E-1 and E-2 status are only available to inhabitants of the United Kingdom. Therefore, the U.S. embassy in London requires E-1 and E-2 visa applicants to establish that they are resident in the United Kingdom. This is accomplished by demonstrating the filing of United Kingdom tax returns as a resident. Of course, many wealthy nationals of the United Kingdom do everything they can to establish that they are not resident in the United Kingdom, in order to avoid the substantial tax liabilities associated with U.K. residence. Third Country National Consular Processing of E Visas Although there may be some exceptions, consular posts are generally reluctant to accept E visa applications filed by third-country nationals. This is because E visa applications are complicated filings and it is time consuming to adjudicate them. As a result, consular officers are often reluctant to accept discretionary E visa cases. Consular posts in Canada still refuse to accept E visa applications submitted by any applicant who is not a Canadian citizen or Canadian permanent resident. However, consular posts in Mexico appear to be accepting third-country-national E visa renewal applications. Caution should be exercised when third-country nationals apply in Mexico. Practitioners should ensure that all eligibility requirements have been satisfied and that the case is well documented. If the application is
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denied, these applicants will not be permitted to reenter the United States and will be required to depart for their home country. Automatic revalidation will not apply in such cases. 16 CONCLUSION Despite the somewhat discretionary nature of the E-1 and E-2 categories, they continue to be useful nonimmigrant options for both individual traders and investors and their employees. By avoiding the problem areas described above, practitioners should be able to offer clients a sufficient level of certainty in their E-1 and E-2 submissions.
Automatic revalidation appears at 22 CFR 41.112(d). It authorizes the automatic revalidation of an expired visa after travel solely to contiguous territory for 30 days or less but does not apply where the alien has applied for a visa abroad.
16
LAWFUL STATUS, UNLAWFUL PRESENCE, AND OTHER ELUSIVE CONCEPTS THAT CAN AFFECT YOUR CLIENTS RIGHT TO REMAIN IN THE UNITED STATES
by Melissa Crow, Scott D. Pollock, Palma Yanni, and Ben Winograd *
It is a testament to the bewildering traps that the immigration laws set in the path of persons trying to comply with such laws that these petitioners were lawfully present in the United States but at the same time were not in lawful status. How absurd! 1 U.S. businesses rely on their ability to employ foreign nationals to compete effectively in todays global market. Particularly critical in this regard are the H-1B program, which permits U.S. employers to retain the temporary services of foreign professionals, and the L-1 program, which allows a company to transfer managers, executives, and other employees with specialized knowledge from a foreign office to a branch office, subsidiary or affiliate in the United States. 2 Both these programs permit U.S. employers to hire highskilled foreign employees for discrete periods and, where necessary, to extend their terms of employment. Foreign nationals may remain in the United States in H-1B status for up to six years, and in L-1A and L1B status for seven and five years, respectively. 3 However, federal immigration regulations dictate that no H1B, L-1A or L-1B petition can be approved for longer than three years. 4 Thus, many U.S. employers file extension requests to enable these employees to fulfill their responsibilities. To be considered timely, such a request must be filed before the end of an employees initial or extended period of admission in the United
Melissa Crow is the director of the American Immigration Councils Legal Action Center. Ms. Crow served as the acting deputy assistant secretary for policy, and previously as a senior policy advisor, in the Office of Immigration and Border Security at the Department of Homeland Security. Prior to joining Department of Homeland Security (DHS), she was a partner with Brown, Goldstein & Levy in Baltimore, where she developed a thriving immigration practice. Before entering private practice, Melissa served as counsel to Senator Edward M. Kennedy during the 2007 debates on the U.S. Senates comprehensive immigration reform bill. She has taught in the Safe Harbor Clinic at Brooklyn Law School and the International Human Rights Clinic at Washington College of Law. Scott D. Pollock has practiced immigration law since 1985 and is a frequent speaker at AILA conferences. He has contributed articles to AILAs Immigration & Nationality Law Handbook on F-1 and H-1B visa categories, obtaining agency and criminal records, and employment options for students and exchange visitors. He currently serves on AILAs Amicus Committee, and previously served as AILAs Chicago Chapter chair, national chairperson of its Consumer Protection/Authorized Representation (CPAR) task force, a member of the Nebraska Service Center Liaison, Consumer Protection, and Business Litigation committees, and numerous local chapter committees, including chairperson of the Chicago chapters asylum office and immigration judge liaison committees. He has been a three-time faculty member for the American Immigration Councils Litigation Institute. Palma Yanni leads Dickstein Shapiro LLPs immigration practice in Washington, D.C. With more than 30 years of experience, she represents large and small businesses as well as individuals on employment- and family-based immigration matters. A former president of the AILA, she is a frequent author and speaker, and has testified before Congress on immigration matters. In 2008, Ms. Yanni received AILAs Edith Lowenstein Memorial Award for Excellence in Advancing the Practice of Immigration Law. Ben Winograd is the law fellow at the American Immigration Councils Legal Action Center. He focuses on legal issues related to the enforcement of immigration law, including the rights of respondents in removal proceedings and federal collaboration with state and local governments. He received his J.D. cum laude from Georgetown Law in 2010. He worked as a reporter before and during law school, and has written for the Associated Press, SCOTUSblog, and the Wall Street Journal. He also worked as a freelance journalist in Arizona covering border and immigration issues. 1 Velasco v. U.S. Citizenship and Immigration Services, 2009 U.S. Dist. LEXIS 123273 at *2122 (C.D. Cal. Dec. 21, 2009). 2 Executives and managers enter the United States in L-1A status. INA 214(c)(2)(D)(i). Employees with specialized knowledge enter in L-1B status. INA 214(c)(2)(D)(ii). 3 INA 214(g)(4); 214(c)(2)(D). 4 8 CFR 214.2(h)(9)(iii)(A)(1); 214.2(l)(7)(i)(A)(2).
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ELUSIVE CONCEPTS THAT CAN AFFECT YOUR CLIENTS RIGHT TO REMAIN IN THE U.S.
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States, 5 but applicable regulations are generally construed to prohibit filing more than six months prior to the date of anticipated employment. 6 Given increasing backlogs in extension adjudications at U.S. Citizenship and Immigration Services (USCIS), the agency often cannot adjudicate extension requests before an employees initial period of admission expires. 7 Complicated USCIS guidance and arguably inconsistent case law has left many immigration lawyers perplexed about their clients right to remain in the United States during the period between the expiration of the current period of admission and the adjudication of a timely filed extension petition. Are such individuals in status? If not, do they accrue unlawful presence? Does a failure to accrue unlawful presence imply lawful presence? Does a grant of employment authorization during the adjudication period imply a right to remain in the country? Do the answers to these questions differ if the pending extension request is denied? How could these decisions impact a clients future eligibility for adjustment of status? This practice pointer will attempt to answer these difficult questions. SOME KEY TERMS Lawful immigration status Federal immigration regulations define lawful immigration status to mean: (1) lawful permanent resident status; (2) an initial or extended period of nonimmigrant status; (3) refugee status; (4) asylee status; or (5) parole status. 8 By its terms, this definition relates only to INA 245(c)(2), which generally prohibits adjustment of status by any noncitizen who is in unlawful immigration status on the date of application or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entering the country. 9 The regulation does not attempt to define lawful immigration status for purposes other than adjustment, and it plainly omits many categories of lawful status, such as temporary protected status, deferred action, and withholding, and Cuban and Haitian entrants. INA 245(k) allows adjustment for certain employment-based applicants who were lawfully admitted to the United States, but only so long as they have not failed to maintain, continuously, a lawful status for more than 180 days. 10 Given the high stakes involved, it is critical for immigration attorneys to understand the parameters of lawful immigration status, the circumstances under which status violations are deemed to have arisen through no fault of [the applicant] or for technical reasons, and whether a lawful status under INA 245(k) is necessarily analogous to lawful immigration status. Period of Stay Authorized by the Attorney General (POSABAG) Neither the INA nor applicable regulations define period of stay authorized by the attorney general (known as POSABAG). Agency guidance indicates that the definition has evolved considerably over the years, and that a POSABAG is distinct from a period of lawful status. 11
8 CFR 214.2(h)(14); 214.2(l)(14)(i). 8 CFR 214.2(h)(9)(i)(B) (prohibiting filing or approval of H-1B petitions more than six months prior to the date of need for services or training); see Instructions to Form I-129 (Petition for a Nonimmigrant Worker) (Generally, a Form I-129 petition may not be filed more than 6 months prior to the date employment is scheduled to begin. Petitioners should review the appropriate regulatory provisions in 8 CFR that relate to the nonimmigrant classification sought.) Petitions for nonimmigrant status filed more than six months prior to the scheduled start date or the expiration of a current period of admission may be rejected by U.S. Citizenship and Immigration Services (USCIS) mailroom contractors. 7 Although employers can try to expedite the adjudication of extension petitions by paying an additional $1,000 for premium processing, 8 CFR 103.7(e), most businesses try to avoid this additional expense. The payment of the additional fee does not guarantee that expedited processing will occur, but the fee is refunded if it does not. 8 8 CFR 245.1(d)(1)(i)(v). 9 INA 245(c)(2). 10 INA 245(k)(2)(A). 11 Adjudicators Field Manual (AFM) ch. 40.9.2(a)(2) (Distinction Between Unlawful Status and Unlawful Presence).
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The first memorandum issued by the legacy INS after the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) 12 interpreted POSABAG so narrowly that almost no one except noncitizens with valid nonimmigrant status was considered to be in a period of authorized stay. 13 Applicants for adjustment of status or changes or extensions of status were only in a POSABAG for the 120day period specified by law. 14 Within a few months, legacy INS broadened its view of POSABAG to include refugees, asylees, those granted temporary protected status (TPS) and deferred enforced departure status, those granted withholding of removal, and Cuban and Haitian entrants. 15 Aliens granted deferred action status or voluntary departure were not considered to be in a period of authorized stay. 16 By September 1997, legacy INS had reversed itself on those granted voluntary departure, and determined that applicants for adjustment of status would be considered in a POSABAG for the duration of their applications, not just 120 days. 17 That view was also extended by policy to applicants for change or extension of status. 18 In June 2002, a memorandum from legacy INS confirmed that deferred action status is a POSABAG, and that aliens granted withholding or suspension of deportation or cancellation of removal are in a POSABAG. 19 In 2003, the legacy INS General Counsels office issued an opinion addressing POSABAG in the context of porting from one position to another, opining that filing for an extension of status does not extend an individuals nonimmigrant status, but does place the beneficiary in a POSABAG. 20 This view was confirmed in a 2005 memorandum from USCIS finding that porting to a new employer does not require that the beneficiary currently be in H-1B status as long as he or she is in a POSABAG, and that view was reiterated in a 2008 memorandum from Donald Neufeld, then USCIS Acting Associate Director, Domestic Operations. 21
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, 110 Stat. 3009. Memorandum from P. Virtue, Acting Executive Associate Commissioner, Grounds of Inadmissibility, Unlawful Presence (Mar. 31, 1997), published on AILA InfoNet at Doc. No. 97033190 (posted Mar. 31, 1997). 14 Id. 15 Memorandum from P. Virtue, Acting Executive Associate Commissioner, Grounds of Inadmissibility, Unlawful Presence (June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997). 16 Id. 17 Memorandum from P. Virtue, Acting Executive Associate Commissioner, Section 212(a)(9)(B) Relating to Unlawful Presence (Sept. 19, 1997), published on AILA InfoNet at Doc. No. 97092240 (posted Sept. 22, 1997). 18 Memorandum from M. Pearson, Executive Associate Commissioner, Period of stay authorized by the Attorney General after 120-day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act (the Act) (Mar. 3, 2000), published on AILA InfoNet at Doc. No. 00030774 (posted Mar. 7, 2000). 19 Memorandum from J. Williams, Executive Associate Commissioner, Unlawful Presence (June 12, 2002), published on AILA InfoNet at Doc. No. 02062040 (posted June 20, 2002). 20 Memorandum for T. Cook, From J. Podolny, Interpretation of Period of Stay Authorized by the Attorney General in determining unlawful presence under INA section 212(a)(9)(B)(ii) (Mar. 27, 2003), published on AILA InfoNet at Doc. No. 03042140 (posted Apr. 21, 2003). 21 Memorandum from M. Aytes, Acting Director of Domestic Operations, USCIS, Interim Guidance for Processing I-140 Employment-Based Immigrant Petitions and I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Pub. L. No. 106-313) (Dec. 27, 2005); Memorandum from D. Neufeld, Acting Associate Director, Domestic Operations, USCIS, Supplemental Guidance Relating to Processing Forms I-140 EmploymentBased Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Pub. L. No. 106-313), as amended, and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Pub. L. No. 105-277 (May 30, 2008), published on AILA InfoNet at Doc. No. 08060560 (posted June 5, 2008).
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For further details regarding USCISs current position on POSABAG, see Memorandum from D. Neufeld, Acting Associate Director, Domestic Operations Directorate, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) (May 6, 2009), published on AILA InfoNet at Doc. No. 09051468 (posted May 14, 2009); USCIS Immigrant Waivers: Procedures for Adjudication of Form I-601 for Overseas Adjudication Officers at 3949 (Apr. 28, 2009), published on AILA InfoNet at Doc. No. 09061772 (posted June 17, 2009).
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Unlawful Presence The concept of unlawful presence was created under IIRAIRA as a new ground of inadmissibility for noncitizens with prior violations of the immigration laws. Under the INA, noncitizens are deemed to be unlawfully present if they: (a) entered without being admitted or paroled; or (b) remained in the United States after the expiration of a POSABAG. 22 A noncitizen who has been unlawfully present for more than 180 consecutive days but less than one year and voluntarily leaves the country prior to the commencement of removal proceedings is barred from readmission for three years upon reentry. 23 Those who are unlawfully present for at least 365 consecutive days and voluntarily depart are barred from readmission for 10 years. 24 Noncitizens who depart after more than a year of unlawful presence and then enter or attempt to enter unlawfully are subject to a permanent bar. 25 Implicitly recognizing that delays in processing extension requests would lead some noncitizens to remain in the United States beyond the expiration of their initial periods of authorized admission, Congress included a tolling provision to temporarily prevent the accrual of unlawful presence under these circumstances. Specifically, INA 212(a)(9)(B)(iv) provides that a period of unlawful presence may be tolled for up to 120 days for noncitizens who were lawfully admitted or paroled into the country; filed a timely, nonfrivolous application for a change or extension of status; and did not engage in unauthorized employment during the pendency of the application. 26 Subsequent guidance from legacy Immigration and Naturalization Service (INS) allows such noncitizens to remain in a period of stay authorized by the Attorney General for as long as it takes USCIS to adjudicate the extension petition. 27 Employment Authorization Long before passage of IIRAIRA, to compensate for adjudication delays and to avoid disruptions in the employment of nonimmigrant workers, legacy INS promulgated a regulation to automatically extend the period of employment authorization for the beneficiaries of timely filed extension requests, including requests for extension of H-1B or L-1 status, for up to 240 additional days beyond the expiration of the initial period of admission. 28 Acknowledging the likelihood of adjudication delays, Department of Homeland Security (DHS) codified this regulation at 8 CFR 274a.12(b)(20) to ensure continuity of employment while extension requests are pending. 29 RECENT FEDERAL COURT DECISIONS Several recent federal court decisions demonstrate that the foregoing concepts do not always coexist harmoniously. A noncitizen need not possess lawful status to remain in a period of authorized stay. Likewise, a noncitizen who is not accruing unlawful presence is not necessarily lawfully present or in
INA 212(a)(9)(B)(ii). INA 212(a)(9)(B)(i)(I). 24 INA 212(a)(9)(B)(i)(II). 25 INA 212(a)(9)(C). 26 INA 212(a)(9)(B)(iv). 27 Memorandum from M. Pearson, Executive Associate Commissioner, Period of stay authorized by the Attorney General after 120-day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act (the Act) (March 3, 2000), published on AILA InfoNet at Doc. No. 00030774 (posted Mar. 7, 2000); AFM 40.9.2(b)(2)(G) (Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status (COS) (Tolling)). 28 This regulation specifies that employment authorization is subject to any conditions and limitations noted on the initial authorization and shall automatically terminate upon notification of the denial decision. 8 CFR 274a.12(b)(20). 29 52 Fed. Reg. 16216, 16220 (May 1, 1987) (acknowledging the possibility of delays in the processing of applications for extension of stay); 56 Fed. Reg. 41767, 4178081 (Aug. 23, 1991) (nothing that the final rule was intended to prevent a gap in the applicants work authorization during the pendency of an extension request).
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status. And DHS has even taken the position that a noncitizen who is entitled to work may not be entitled to be physically present in the United States. 30 Late last year, in Bokhari v. Holder, 31 the Fifth Circuit Court of Appeals denied adjustment of status based on a strict interpretation of lawful status. One day before Bokharis L-1A initial period of admission expired, his employer, Syed T. Enterprises Inc. Syed, filed a timely extension request, which was denied nine months later. Pending an appeal of the denial to the Administrative Appeals Office (AAO), Syed filed an I-140 petition on Bokharis behalf, and Bokhari filed a concurrent adjustment of status application. After the AAO rejected the L-1A appeal, USCIS approved the I-140 petition. Bokharis adjustment application was later denied on the basis that he had failed to maintain lawful immigration status for more than 180 days before filing it. When Bokhari subsequently renewed his adjustment application in removal proceedings, the immigration judge likewise found that his lawful immigration status had ended on the date that his initial period of admission had expired, rendering him ineligible for adjustment under INA 245(c)(2). 32 The Board of Immigration Appeals (BIA) affirmed this decision. 33 In challenging the BIAs decision, Bokhari argued that his ability to continue working for his employer under 8 CFR 274a.12(b)(20) during the adjudication of his employers L-1A extension request had effectively conferred lawful immigration status. 34 Bokhari claimed further that because his employer had filed his adjustment application less than 180 days after USCIS denied his employers extension request, he remained eligible to adjust his status. 35 The Fifth Circuit found that 8 CFR 245.1(d)(1)(ii) limited the meaning of lawful immigration status, and that nonimmigrants therefore have lawful status only if their initial period of admission has not expired or [their] nonimmigrant status has been extended. 36 The court further rejected Bokharis argument that the extension of his employment authorization gave him lawful immigration status, agreeing with the government that lawful status and employment authorization are independent considerations. 37 Citing the BIAs decision Matter of Teberen, 15 I&N Dec. 689 (BIA 1976), the court explained that only the grantingnot the mere filingof an extension request confers lawful status. 38 Interestingly, the court does not appear to have addressed the parenthetical exception in INA 245(c)(2), which permits adjustment notwithstanding a violation of status if such violation was through no fault of the applicant or for technical reasons. The implementing regulation, 8 CFR 245.1(d)(2)(ii), defines a technical reason as one resulting from inaction of the Service (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request). If this argument was made, the court should have analyzed 8 CFR 245.1(d)(2) to determine if Bokhari was still eligible for adjustment despite the expiration of his L-1A status. 39
See Memorandum of Law in Opposition to Plaintiffs Motion for Summary Judgment at 7, El Badrawi v. Department of Homeland Security, No. 07-01074 (Nov. 15, 2010). 31 622 F.3d 357 (5th Cir. 2010). 32 Bokhari, 622 F.3d at 35859. 33 Id. 34 Id. at 359. 35 Id. at 359. 36 Id. at 36061. The Fifth Circuits decision conflates lawful immigration status as defined by 8 CFR 245.1(d)(1), with lawful status under INA 245(k). As Velasco, infra, suggests, these terms may not have the same meaning. Moreover, in Samirah v. Holder, 08-1889 (7th Cir. Dec. 3, 2010), which addressed the implications of the governments revocation of the plaintiffs advance parole following his departure from the United States, the Seventh Circuit rejected DHSs restrictive interpretation of status and held that the plaintiff should be restored to the status he enjoyed before receiving advance parole, namely that of an applicant for adjustment of status. Thus, courts may attribute different meanings to the same term if it appears in different sections of the INA or applicable regulations. 37 Bokhari, 622 F.3d at 360. 38 Id. at 361. 39 The statutory exception to the general adjustment of status requirements of maintaining nonimmigrant status and refraining from unauthorized employment, where violations were for technical reasons or through no fault of the applicant, has not been
continued
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Practice Pointers: Given USCIS adjudication delays, extension requests should be filed as early as possible, although current law is generally interpreted to preclude employers from filing an extension request more than six months ahead of the start of anticipated employment. By remaining in the United States pending the adjudication of an employers extension petition, a beneficiary whose initial period of admission has expired runs the risk of being deemed ineligible for adjustment of status if the extension request is ultimately denied. If an overstay exceeds 180 days, the beneficiary also risks being barred from returning to the United States pursuant to INA 212(a)(9)(B)(i)(I) and (II). Where relevant, attorneys should flag the exception in INA 245(c)(2), which permits adjustment of status notwithstanding a violation of status if such violation was through no fault of the applicant or for technical reasons. In support of Bokharis argument that the extension of his employment authorization conferred lawful status, he cited the decision of a federal district court in Connecticut in El Badrawi v. Department of Homeland Security, 579 F. Supp.2d 249 (D. Conn. 2008), which found that immigration officers lacked probable cause to arrest a nonimmigrant whose initial period of admission had expired but whose petition for extension of status remained pending. El Badrawi entered the United States in H-1B status in mid-2003, and his employer filed a timely H-1B extension petition the following year. Despite El Badrawis request for premium processing, USCIS neither approved nor denied the extension petition and refused to respond to his attorneys requests for information. 40 Eventually, Immigration and Customs Enforcement (ICE) agents arrested and detained El Badrawi for overstaying his initial period of authorized admission. Rather than contest removability, El Badrawi requested voluntary departure to Lebanon and later filed a damages suit based in part on false arrest. In its initial motion to dismiss, the government contended that the false arrest claim was precluded by the BIAs decision in Matter of Teberen, which held that to establish an aliens deportability as an overstay, the Service need only show that the alien was admitted as a nonimmigrant for a temporary period, that the period has elapsed, and that the nonimmigrant has not departed. 41 The district court disagreed, however, reasoning that 8 CFR 274a.12(b)(20) was promulgated more than a decade after Teberen was decided, that the regulation explicitly authorizes aliens whose status has expired to continue working while their employers extension petitions remain pending, and that it would make little sense to permit nonimmigrants to continue working after their I-94s expire if they remained subject to arrest. 42 In a subsequent motion for summary judgment, the government contended that the false arrest claim was foreclosed by the Boards intervening decision in Matter of Rotimi, which stated that work authorization is not equivalent to lawful status; nor is it necessarily reflective of a right to lawfully be or remain in this country. 43 The district court rejected this argument as well, noting that the Boards holding was limited to eligibility for a waiver under INA 212(h), and that whether an individual has lawfully resided in the United States for purposes of that subsection is a distinct question from whether an individual is removable. 44 Referencing the heading to 8 CFR 274a.12(b), which expressly describes employment authorization with a specific employer as incident to status, the district court found that work authorization is part and parcel of
widely cited and is ripe for additional interpretation. See, Matter of LK, 23 I&N Dec. 677 (BIA 2004); Alimoradi v. USCIS, No. CV 08-02529, 2008 U.S. Dist. LEXIS 86820 (C.D. Cal. Aug. 29, 2008) (rejecting a narrow interpretation of technical reasons or no fault); Mart v. Beebe, No. 99-1391, 2001 U.S. Dist. LEXIS 182 (D. Or. Jan. 5, 2001) (same). 40 Through litigation under the Freedom of Information Act, El Badrawi ultimately discovered that the State Department had administratively revoked his visa, with the revocation to become effective only when he left the United States. 41 15 I&N Dec. 689 (BIA 1976). 42 El Badrawi v. DHS, 579 F. Supp.2d at 277 ([I]f the governments interpretation of the regulation were correct, El Badrawi would have been required to depart the country by May 1, 2004, which would have deprived [his employer] of his services.). 43 24 I&N Dec. 567, 578 (BIA 2008). 44 El Badrawi v. United States, 2011 U.S. Dist. LEXIS 39857 at *6164 (Apr. 12, 2011).
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[an H-1B employees] authorization to be in the country, not a separate matter. 45 The district court also found that the governments interpretation of the regulation would present grave due process concerns, since El Badrawi lacked fair notice that government agents could arrest and remove him during a period when he was authorized to work and his timely filed extension petition remained pending. 46 The issues in Bokhari and El Badrawi are both legally and factually distinct. As discussed above, Bokhari turned on whether the petitioners ability to continue working for his employer under 8 CFR 274a.12(b)(20) effectively conferred lawful immigration status for the purpose of INA 245(c)(2) during the pending appeal of his employers L-1A extension petition, which was denied. The Fifth Circuit held that it did not. The central question in El Badrawi was whether the plaintiff, by virtue of the extension of his work authorization under 8 CFR 274a.12(b)(20), was entitled to remain in the United Statesand thus not be arrested and detainedpending the adjudication of his employers H-1B extension petition, which never happened. Reasoning that work authorization implied a right to be physically present in the United States under these circumstances, the district court found that the defendants lacked probable cause to arrest Mr. El Badrawi. 47 Unlike Bokhari, El Badrawi was not seeking to adjust his status, and therefore whether he was in lawful status as that term is used in INA 245(c)(2) was not at issue in his case. 48 Practice Pointers: Based on the heading to 8 CFR 274a.12(b), which expressly describes employment authorization with a specific employer as incident to status, a Connecticut district court found that work authorization is part and parcel of [an H-1B employees] authorization to be in the country, not a separate matter. 49 In its opposition to plaintiffs motion for summary judgment, DHS maintained that individuals in Mr. El Badrawis situation may remain in the United States only as a matter of agency grace, but stated it does not dispute that it rarely arrests H1-B visa holders who overstay their period of admission and have a pending application for an extension. 50 Without the ability to remain and work lawfully in the United States while an extension request is pending, all nonimmigrants in Mr. El Badrawis situationand the employers who depend on them would fall victim to the vagaries of USCIS processing delays. If the governments argument were correct, DHS could render a broad spectrum of nonimmigrants removable simply by delaying adjudication of their employers pending extension requests until after their previously authorized stays had expired. In fact, DHS would have an incentive to increase adjudication backlogs in order to expand its arrest authority. This clearly makes no sense. Litigation under the Freedom of Information Act may yield valuable information about a case. Prior to the Fifth Circuits decision in Bokhari, a district court in California confronted a similar situation in Velasco v. U.S. Citizenship and Immigration Services. 51 Velasco entered the United States on a B-1 visa in mid-2007. Two days before her status was due to expire, a prospective employer filed a timely H-1B petition on her behalf. That petition was denied in late 2007. A separate employer filed an I-140 petition 177 days after the denial, and Velasco filed a concurrent I-485. As in Bokhari, the employers petition was approved, but USCIS found that Velasco had failed to maintain continuously a lawful status for more than 180 days since her initial period of admission expired, and was thus ineligible for adjustment under INA 245(k). Velasco then sought a declaratory judgment in district court that she had been in a lawful status while the
Id. at *3132. Id. at *4955. 47 Id. at *6970. 48 Id. at *6566. 49 Id. at *3132. 50 Memorandum of Law in Opposition to Plaintiffs Motion for Summary Judgment at 6, El Badrawi v. Department of Homeland Security, No. 07-01074 (Nov. 15, 2010). 51 U.S. Dist. LEXIS 123273 at *2122 (C.D. Cal. Dec. 21, 2009).
46
45
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H-1B petition was pending, and that this period should not be counted toward the 180-day grace period under INA 245(k). Although the district court ultimately granted the governments motion for summary judgment, the analysis differed in significant respects from the Fifth Circuits decision in Bokhari. Unlike Bokhari, Velasco was not entitled to employment authorization under 8 CFR 274a.12(b)(20). Instead, Velasco argued that she had maintained lawful status while the H-1B petition was pending because she was in a period of stay authorized by the Attorney General. 52 Rejecting this argument, the district court relied on two USCIS memos that distinguish periods of stay authorized by the Attorney Generalwhich prevent noncitizens from accruing unlawful presence for purposes of the threeand ten-year barsfrom periods of lawful status. 53 While conceding that the language of INA 245(k) was ambiguous because the phrase a lawful status was not defined, the court found that the plaintiffs adjustment applications had been properly denied because the governments interpretation of this provision was neither arbitrary nor capricious. As of this writing, the plaintiffs appeal of the district courts ruling remained pending before the Ninth Circuit. Practice Pointer: A noncitizen who files a timely, nonfrivolous request for change of status will not accrue unlawful presence, but may still fall out of status during the pendency of the request if it is denied. CONCLUSION These cases provide a wake-up call about the potentially grave consequences of advising a client to remain in the United States beyond the expiration of his initial period of admission. However, more litigation will be necessary to clarify the complex interrelationships among lawful status, unlawful presence and other related concepts. In the meantime, practitioners should be alert not to confuse, mix, or extend these terms beyond their specific context, and should carefully consider advising a client whose initial period of admission has expired and for whom an extension or change of status petition has been denied, to depart the United States prior to accruing more than 180 days of unlawful presence.
This argument was presumably based on INA 212(a)(9)(B)(ii), which characterizes a noncitizen as unlawfully present after the expiration of a period of stay authorized by the attorney general. Velasco argued that, during the pendency of the H1B petition filed on her behalf, she was in a period of stay authorized by the attorney general, lawfully present, and therefore in status.
53
52
Velasco, U.S. Dist. LEXIS 123273 at *1619 (citing Memorandum for Thomas Cook, from J. Podolny, Interpretation of Period of Stay Authorized by the Attorney General in determining unlawful presence under INA 212(a)(9)(B)(ii) (Mar. 27, 2003), published on AILA InfoNet at Doc. No. 03042140 (posted Apr. 21, 2003); Memorandum from D. Neufeld, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) (May 6, 2009)), published on AILA InfoNet at Doc. No. 09051468 (posted May 14, 2009)).
MERGER AND COMPLIANCE ISSUES: HOW TO ENSURE SUCCESS POST-FILING

by Avram E. Morell, Diana Vellos Coker, and Teri A. Simmons *
If the downturn in the economy has taught us anything, it is that changes in the corporate landscape are inevitable. Corporate mergers and acquisitions are more prevalent now than in years past. Immigration practitioners need to understand the immigration consequences of such mergers and acquisitions for our corporate clients and their foreign national employees. This practice pointer will address the complex issues that arise in connection with the Program Electronic Review Management (PERM) labor certification process when there is a corporate merger or acquisition. TIMING IS EVERYTHING: POINTS OF ANALYSIS AND ADVICE FOR THE DIFFERENT STAGES OF THE PERM FILING PROCESS When the U.S. Department of Labor (DOL) rolled out the PERM labor certification system, it forever changed the way labor certification applications were prepared and processed. Prior to PERM, DOL permitted the substitution of a successor employer if it occurred before a final determination and the job opportunity continued to be in the same area of intended employment as outlined in 20 CFR 656.30(c)(2). In such situations, employers would notify DOL of all the relevant changes, often initialing and dating each change on the ETA-750 form. Once certified, the ETA-750 looked like a first draft of a manuscript covered with strike outs, initials, dates, and many colors of ink. However an employer was able to use this approved labor certification application with its noted modifications to file the I-140 petition and was not required to argue successor-in-interest as part of the I-140 submission. Unfortunately, under PERM, modifications of the labor certification application are no longer permitted.1 This is true both during the processing of the case by DOL and after the PERM labor certification application has been approved. While some typographical errors have been permitted by the Board of Alien Labor Certification Appeals pursuant to the ruling in Matter of HealthAmerica, 2 these changes cannot include material matters such as the name of the employer. Since no material changes to the Form ETA-9089 are permitted under PERM, the way practitioners address corporate changes must now take into account where the case is in the PERM process when the corporate change occurs.
Avram E. Morell is special immigration counsel at the New York City and Newark offices of Proskauer Rose LLP. His practice focuses largely on employment-based immigration and immigration-related compliance. Avi lectures regularly on related areas to professional associations, educational institutes, and private businesses. He is the author of articles on areas of immigration law in state-wide, national, and international publications, and he has contributed to Immigration Law and Procedure, the immigration law treatise. For several years, Avi has been ranked as a leading New York immigration lawyer by the Chambers USA guide. An active member of AILA, Avi co-chairs the AILA Liaison Committee to the District Director of the New York City District of U.S. Citizenship and Immigration Services (USCIS). Diana Vellos Coker is a partner with Larrabee Mehlman Albi Coker LLP in San Diego. Her practice focuses on business immigration law for the high-tech, pharmaceutical/biotech, and health care industries. She has been selected for inclusion in The International Whos Who of Corporate Immigration Lawyers 2010 and The Best Lawyers in America 2011 in the field of immigration law. Teri A. Simmons is a partner with Arnall Golden Gregory LLP, where she directs the International and Immigration Practice Group. She served as the AILA Atlanta Chapter chair and also on the Board of Governors. Currently, she is a member of the AILA Customs and Border Protection (CBP) Liaison Committee and Immigrant Investors Committee. Ms. Simmons has spoken as an expert on immigration matters both in the United States and abroad for AILA, state bar associations, and for the U.S. Department of State. 1 20 CFR 656.11(b).
2
Matter of HealthAmerica, 2006 PER 1 (BALCA July 18, 2006).

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Corporate Changes Occurring Before the PERM Is Filed with DOL Often a practitioner will learn of a corporate merger or acquisition while in the midst of the PERM recruitment process. Company A is now part of Company B but the job order, Sunday ads, notice of filing and other recruitment activities were done in Company As name. The question turns to whether all is lost or if that recruitment can still be used given the corporate change. Thankfully, DOL has issued an FAQ on point: Q: After completing our recruitment, but before filing the Form ETA-9089, our companys name was changed after it was wholly acquired by another company. Does the company name used in the advertisements used for recruitment have to match the company name used on the Form ETA-9089? A: The employer must conduct recruitment using its legal name at the time of the recruitment. However, an Application for Permanent Employment Certification (Form ETA-9089) must be filed in the name of the employers legal name at the time of submission. If the merger, acquisition, or any other corporate change in ownership occurs between the time of recruitment and the time of submission, resulting in a disparity between the employers name shown on the advertising used to recruit for a job opportunity and the employers name on the submitted Form ETA-9089, the employer must be prepared to provide documentationin the event of an auditproving that it is the successor in interest, a determination made based on a totality of the circumstances, including whether the current employer has assumed the assets and liabilities of the former entity with respect to the job opportunity. 3 While the FAQ is helpful in clarifying that recruitment done in the name of Company A can be used for a Company B PERM submission (assuming Company B is a successor in interest), it also indicates that there are some best practices we should follow: Ensure that documentation of the corporate change is in the audit file. The new entity needs to be able to prove that it is a successor in interest to the original corporate entity. Review the dates of the recruitment and the date the corporate change occurred to ensure that the recruitment was done in the correct entitys name. Many times immigration counsel learns of a change in the corporate relationship only after the change occurs. Thus it is possible that recruitment would be done in Company As name even after the corporate change took place. The above FAQ indicates that such recruitment may be problematic if the recruitment was not done using the companys legal name at that time. In addition, the following considerations should also be taken into account when a corporate change occurs before the PERM labor certification application is filed with DOL: Has the company laid off employees in the occupation or a related occupation as a result of the merger or acquisition? It is common in the merger or acquisition scenario for there to be layoffs as some positions become unnecessary when the two entities are combined. If there have been layoffs in the occupation or a related occupation, this could impact the viability of the PERM submission. Has the position changed as a result of the merger or acquisition? There are situations in which the entity that has been acquired or merged must alter their employees job titles and/or duties to become integrated into the new entitys system. A change in job title or duties should be carefully reviewed to see how the change will impact the PERM submission. So here is the good newsif there has been a corporate restructuring before the filing of a PERM labor certification application and the above issues have been reviewed and resolved, the PERM case can be filed in the new entitys name and a successor in interest argument will not need to be made at the I-140 immigrant visa petition stage. Corporate Changes Occurring While the PERM Application Is Pending with DOL As discussed previously, modifications can no longer be made to the labor certification application once it is filed with DOL. If a merger or acquisition occurs while the PERM labor certification application is
3
DOL Round 10 PERM FAQ (May 9, 2007), published on AILA InfoNet at Doc. No. 07051160 (posted May 11, 2007), available at www.aila.org/content/default.aspx?docid=22312.
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pending, practitioners cannot request that the labor certification be updated to reflect the change. However, the following issues should still be taken into consideration: If the corporate change occurs right after filing and the recruitment has not yet expired, does it make sense to file a new PERM labor certification application in the new entitys name in order to avoid a successorin-interest argument at the I-140 stage? If the PERM case is audited, should the DOL be notified of the corporate change as part of the audit response? While there is nothing in the regulations which requires such notification, many practitioners choose to include this information with the audit response. Has the position changed as a result of the merger or acquisition? As noted in the previous section, a change in job title or duties should be carefully reviewed to see how the change will impact the green card case. A merger or acquisition occurring after the PERM is filed with DOL will need to be addressed at the I-140 stage. Thus it is important to analyze how the corporate change will impact the I-140 petition. Practitioners will want to ensure that new employer qualifies as a successor-interest and should consider the following: Before the deal is completed - can the relevant corporate document transferring ownership be reviewed by immigration counsel? While many times immigration counsel is brought into the loop after the corporate change occurs, if we are able to be a part of the process beforehand we can ensure that beneficial successor-in-interest language is added to the corporate documents evidencing the merger or acquisition. Is it possible to obtain ability to pay documentation of the acquired/merged company? It is always easiest to obtain ability to pay documentation for the predecessor company during the period that the corporate change is occurring. It may prove more difficult to secure this documentation a year or two after the change takes place. Will there be an ability to pay issue at the I-140 stage? Companies are often acquired or merged because they are not in a strong financial position. This may be reflected in the companys financial statements. As noted in a U.S. Citizenship and Immigration Services (USCIS) memorandum from Donald Neufeld, 4 documentation of the original employers ability to pay the offered salary must be provided for the period from when the labor certification application is filed until the date of the transfer of ownership. Thanks to the Neufeld memorandum, practitioners have a clearer understanding of how a successor-ininterest is defined for I-140 purposes. If a corporate change occurs while the PERM labor certification application is pending, we can analyze the successor-in-interest factors immediately to determine if there will be issues at the I-140 stage. ADDITIONAL ISSUES TO CONSIDER WHEN AN ACQUISITION AFFECTS THE PERM PROCESS Compliance: Whose Obligation Is It? After the PERM application is filedand even once the application is certified--the employers obligation to retain certain application related documents (often referred to as the audit file or the retention file) continues. This requirement lasts for five years from the date of filing the PERM application. While this rule may seem burdensome to many employers, particularly after the employee becomes a permanent resident or the employment is terminated, it is even less welcome in the event that the entity that applied is acquired. In addition, while the proper retention could be vital to the success of a PERM application, it is likely to fall so far to the bottom of the employers priorities, that it barely gets a thought. So it becomes the responsibility of the attorney to get these issues on the parties due diligence and transaction to-do lists before its too late and the documents get lost in the corporate shuffle.
USCIS Memorandum, D. Neufeld, Successor-in-Interest Determinations in Adjudications of Form I-140 Petitions (Aug. 6, 2009), published on AILA InfoNet at Doc. No. 09090362 (posted Sept. 3, 2009), available at www.aila.org/content/ default.aspx?docid=29962.
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If you find yourself advising a PERM applicant that is being acquired, you may need to address the following issues: Who is responsible for retaining the audit file? If the acquisition occurs before the application is filed, it is pretty clear that the retention obligation falls on the new company, as it is the applicant. However, if the acquisition takes place after the application is filed, it could be argued that the retention obligation remains with the first company, as it filed the application, or with the new company, as it succeeded to the application and is directly impacted by the result of the application. In the absence of clear guidance, best practice is for both companies to retain copies of the materials. Even though the foreign national is no longer employed by the first company, it is in the companys best interest to be able to demonstrate that it complied with the requirement. Who must respond to an audit? If there is an audit request after the acquisition, the new companythat succeeds to the interests of the application and now employs the foreign nationalshould respond to the audit. However, the first employer, who will probably receive the notice from DOL, should take steps to ensure that the audit notice is delivered to the new employer and that the new employer responds. Audit response following employee termination. If the corporate change took place after the PERM application was filed and the employee was terminated after the transaction, the new employer may have no interest in responding to the audit notice. As it did not continue to the employ the employee, it never agreed to take over the PERM application, and, thus, the application remains the responsibility of the first employer. As with any audit notice for a terminated employee, the applicant employer can either respond with notice of the termination or not respond at all, resulting in the denial of the application. Depending on the specific situation, either route may be strategically preferable. Distinction between acquisitions in which the original employer survives the acquisition and acquisitions in which the original employer dissolves. Of course, the entire discussion of whether retention responsibilities should fall on the first or second employer assumes the continued existence of the first employer. However, in many transactions, the seller ceases to exist, either because it is merged into the purchaser or because it is liquidated following the purchase. Documenting the Transaction If the transaction follows the PERM filing and the employee remains with the new employer, the new employer will, in the future, likely need to document and explain the nature of the transaction in order to demonstrate succession of interest. Best practice is to get as much as possible as early as possible while Company A still exists and is in the document providing mode. Keep the following in mind: There is no substitute for the formal transaction documents. Make sure to request a full set while they are fresh. If you need to ask questions to understand the nature of the transaction, do it now while the first company and its corporate law counsel are still available and willing to speak with you. Press releases often offer a good summary of the transaction in plain English. They can be an invaluable tool in communicating the essence of the deal to DOL or USCIS, who, like you, may not fully understand the formal agreements. When the available documents are not sufficiently clear on their owneither because the parties are unsophisticated or because the deal is very complicatedtry to work with the employer and/or counsel to develop a one or two page summary of the key elements. Again, it is crucial to strike while the iron is hot. It is important to get both companies financials up front. This could be very important down the line in establishing ability to pay. Employee Perspective vs. Employer Perspective In a corporate reorganization, the interests of U.S. employer and foreign national employee are not necessarily identical. For U.S. employers, corporate reorganizations have a human component; however, such transactions are first and foremost about business and profit. In contrast, corporate reorganizations impact foreign nationals on a very personal level and can be the source of great personal anxiety. The U.S. employer seeks to minimize liabilities arising from the transaction and minimize disruptions in workforce productivity. The foreign national employees, on the other hand, seek to preserve their U.S. employment, their
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nonimmigrant status and any pending U.S. permanent residence application. Unfortunately, the foreign national employee does not control such transactions and will often feel helpless. In a corporate reorganization, corporate immigration counsel will need to advise employers on minimizing employer liability and workforce disruption while also soothing the frayed nerves of employees, ensuring that the foreign nationals legitimate immigration concerns are being communicated to the business. The employees counsel, on the other hand, will attempt to encourage the employer to structure the transaction in a manner most beneficial for the employee and push the employees concerns to the top of the priority list. Pre-Transaction Advice to Parties re: Impact on Immigration Matters Stock Purchase vs. Asset Purchase Prior to the transaction, immigration counsel must advise the parties regarding how the form of purchase (e.g., stock purchase or asset purchase) can impact a PERM labor certification application. As a general matter, in a stock purchase, all of the outstanding shares of stock of a business are transferred from the seller to the buyer. In effect, the buyer steps into the shoes of the seller, and the operation of the business continues in an uninterrupted manner. Unless specifically agreed to, the seller has no continuing interest in, or obligation with respect to, the assets, liabilities or operations of the business. In contrast, in an asset purchase, the seller retains ownership of the shares of stock of the business. The buyer must either create a new entity or use another existing entity for the transaction. Only assets and liabilities which are specifically identified in the purchase agreement are transferred to the buyer. All of the other assets and liabilities remain with the existing business and thereby the seller. For immigration purposes, including purposes of a PERM labor certification application, a stock purchase will almost always be the preferable form of transaction. Asset purchases must be carefully evaluated to ensure that the purchasing company has acquired all of the rights and obligations of the original employer. In many asset purchase situations, the purchasing company does not assume the obligations of the original employer, in which case the purchasing company may not be considered a successor-in-interest. As described below, being a successor-in-interest is critical to preserving pending green card applications filed by the original employer. The purchasing company should also be advised that asset purchases must not create a gap between when original employer stops functioning and the when the purchasing company takes over the original employers assets or operations. For an employee of the original employer with a pending green card application, his or her prospective job opportunities ceases to exist during such a gap, thus possibly invalidating that employees pending or approved labor certification application. Successor or Not Prior to the transaction, immigration counsel must assess whether the purchasing company will be a successor-in-interest for PERM labor certification application purposes. If not, immigration counsel must advise the purchasing company of the immigration and financial implications of not being such a successorin-interest. As a general rule, an approved labor certification application is only valid for the employer to which it was issued. Unless a merger, acquisition, or reorganization creates an employer that may be considered a successor-in-interest to the original employer, an approved labor certification application will no longer be valid and, if applicable, an approved immigrant visa petition may be denied or revoked. In the context of a pending immigrant visa petition, USCIS has issued recent guidance (in August 2009) as to the circumstances under which a new employer will be determined to be a successor in interest. Specifically, USCIS has stated that a valid successor-in-interest relationship exists where: (1) the prospective job opportunity offered by the successor is the same as the job opportunity originally offered on the labor certification application; (2) the successor has borne the burden of proof with regard to establishing immigrant visa eligibility in all respects, including the provision of required evidence from the predecessor entity, such as evidence of the predecessors ability to pay the proffered wage, as of the date of filing of the labor certification with DOL; and (3) the petitioner has fully described and documented the transfer and assumption of the ownership of the predecessor by the successor. USCIS notes that there can be instances
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when a valid successor relationship exists even though the successor entity has not assumed all of the assets, rights, obligations, and liabilities of the predecessor entity. Prior to the transaction, immigration counsel must warn the purchasing company of the costs and fees which it will incur if it is not a successor-in-interest post-transaction, specifically including the costs and fees associated with re-commencing the green card process for any employees who have not yet obtained U.S. permanent residence at the time of the transaction (other than those employees who can benefit from the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21), 5 as described below). Keeping the Employee in Substantially the Same Position For any employee of the original employer with a pending green card application, immigration counsel must advise the purchasing company pre-transaction of the importance of it preserving the offer of prospective employment to that employee in the same position as originally offered on the labor certification application. As described above, a valid successor-in-interest relationship can exist only where the job opportunity offered by the successor is the same as the job opportunity originally offered on the labor certification application. Not being a successor-in-interest potentially implicates the negative consequences described above. Also of significance, under AC21, 6 foreign nationals who have filed for adjustment of status and whose cases have been pending for more than 180 days may change employers, without affecting the validity of the underlying labor certification application and immigrant visa petition, as long as the job is in the same or a similar occupational classification. Such portability provision permits an employee to continue to work and benefit from an I-140 immigrant petition that was filed by a company that has been involved in a merger, acquisition, or other corporate restructuring without having to file a new I-140 petition or labor certification application. For this reason, it is again important that the purchasing company maintain the foreign nationals offer of prospective employment in the same or similar occupational classification, as described on the foreign nationals labor certification application. Making Lemonade Out of a Lemon: the Silver Lining of Corporate Acquisitions From the perspective of the immigration lawyer, a corporate acquisition is often the source of great anxiety and frustration. Just when you thought you had successfully negotiated the PERM application process, a legal and client relations mine field, a newsometimes insurmountableobstacle is presented! Yet remember that part of the role as counsel is to identify and use the positive aspects of each factual situation. In the PERM arena, an acquisition, and concurrent transition of the foreign national to a new employer, often allows the applicant employer the ability to build a stronger applicationbe it in the context of needing to re-file the PERM application or to reshape the application when the transaction happened between the recruitment and the filing. Here are some examples of points to consider when faced with an acquisition: Can you convert experience gained on the job into experience gained with a prior employer? Often employers need to conduct PERM recruitment at a lower level than they otherwise would, as the employee gained a large portion of her experience while employed in a similar role at the employer. By filing under a new company with a new employer identification number, the experience at Company A may overnight become prior experience, rather than experience with a current employer. Does the acquisition rid the application of weaknesses relating to ownership and control? Family-owned and closely held corporations often have difficulty demonstrating to the satisfaction of DOL that the
5
American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. No. 106-313, 10116, 114 Stat. 1251, 125162. 6 Id.
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foreign national does not have undue influence over the recruitment and that the employer recruited in good faith. Once such a company is acquired, the ownership and control can shift radically, effectively dissolving the entire concern. Is the new company in a better position to establish its ability to pay the employee the proffered wage? When the new employer needs to re-file a PERM application, it may benefit from being in a better financial position than the first company. This can significantly strengthen the chances of approval of the I-140 petition.
MY PERM WAS DENIED, NOW WHAT? A PRACTICAL GUIDE TO NEXT STEPS

by Michelle Funk, Michael P. Nowlan, and Robert H. Cohen *
A denial from an immigration agency is extremely stressful for clients. This stress transfers without diminishing to their immigration attorneys. Employers and foreign nationals feel that they pay us to provide results and secure approvals. The Program Electronic Review Management (PERM) labor certification process is a complex, tortuous and winding process of strict timelines and unforgiving details, with plenty of opportunities for even the most skilled practitioner to experience denials. Unfortunately, it seems inevitable that the more PERM labor certifications a practitioner files, the more likely he or she will have a denial during their career. We all strive to be perfect, but we are not. However, the manner in which we handle PERM denials and work with clients to move forward can still provide value to the clients, and enhance a strong professional relationship. The purpose of this article to is to provide an assessment of the factors to consider, an overview of the ethical considerations involved, and a road map of procedural steps that can be taken. IS THERE ANY TIME LEFT? WORK STATUS ASSESSMENT After getting through the shock of receiving a PERM denial, either after initial filing, or after a long awaited audit response from the U.S. Department of Labor (DOL), the next step is to figure out what this means in terms of what can or should be done, based on the foreign nationals remaining time with work status in the United States. Practitioners are reminded that only H-1B workers are entitled to more time, beyond the normal six year limit, based on a pending green card application. H-1B workers can secure additional year(s) of H-1B work status, extended indefinitely, if a PERM or I-140 case is filed before the end of the fifth year in H-1B status, and it remains pending/approved. 1 While there are still no regulations which interpret these laws, the U.S. Citizenship and Immigration Services (USCIS) has expanded this provision through its memoranda. A PERM that is pending, approved, and not yet expired, or on appeal to the Board of Alien Labor Certification
Michelle Funk is a senior associate with Berry Appleman & Leiden LLP and practices in the area of immigration law with a focus on H-1B visas, Program Electronic Review Management (PERM) applications, and J-1 interested government agency waivers. She has represented clients at U.S. consulates abroad and before U.S. Citizenship and Immigration Services (USCIS), and is a past chair of the AILA Washington D.C. Chapter. She is a 2001 graduate of the Georgetown University Law Center. Michael P. Nowlan is a member and Immigration Law Practice Group co-leader with Clark Hill PLC in Detroit. He is a 1992 graduate of Eastern Michigan University and a 1996 graduate of the University of Detroit Mercy School of Law. He has written and lectured extensively on immigration matters. He currently serves as vice chair of the AILA Nebraska Service Center Liaison Committee, and is a member of the AILA Business Committee. Robert H. Cohen is a partner with the firm of Porter, Wright, Morris & Arthur LLP, in Columbus, OH. He has practiced immigration law for over 30 years, and his primary areas of practice include business and family immigration representation. Mr. Cohen currently serves as chair of the AILA Nebraska Service Center Liaison Committee and vice chair of the Board of Trustees of the American Immigration Council. He is listed in both Best Lawyers in America and Super Lawyers for immigration practice, and is a graduate of Miami University and the University of Cincinnati College of Law. 1 American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. No. 106-313, 10116, 114 Stat. 1251, 125162. AC21 sec. 104(c), titled One-Time Protection Under Per Country Ceiling, provides for three-year extensions of an H-1B status as long as an I-140 Immigrant Worker petition is approved (in EB-1, EB-2, or EB-3 categories), but the priority date is not current. AC21 sec. 106(a), titled Special Provision in Cases of Lengthy Adjudication, Exemption from Limitation, provides for one-year extensions of H-1B status as long as a labor certification or an I-140 Immigrant Worker Petition (in EB1, EB-2, or EB-3 categories) has been pending for at least 365 days. For a detailed discussion of these laws, see E. Pelta et al. AILAs Focus on Immigration Practice Under AC21 (AILA 2009 Ed.). Note: Practitioners are reminded that additional time in H-1B status is NOT given to an H-1B worker whose PERM and/or I-140 was filed after the end of the fifth year and the priority date is current.
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(BALCA), can be the basis to secure additional time for a foreign nationals H-1B. 2 An I-140 on appeal with the Administrative Appeals Office (AAO) may also be used to seek more time in H-1B status. 3 However, the memoranda are clear that this H-1B extension only applies to the primary beneficiary, and not to any other family members who may be listed on a subsequently filed I-140 who also have H-1B status. 4 Additional time can also be obtained by recapturing all time spent outside the United States by the foreign national. 5 Foreign nationals in any other nonimmigrant visa (NIV) category will not be eligible for additional extensions, based on a pending PERM, beyond the classifications normal limitations. The dual intent limitations of most other NIV authorizations, where the foreign nationals actions towards obtaining a U.S. immigrant visa may result in a loss of NIV status, should not be triggered with the filing or approval of a PERM. 6 At this time, the authors have unofficially confirmed that U.S. Customs and Border Protection (CBP) officers at the U.S. ports-of-entry do not have the ability to view pending PERM applications in their computer systems. However, pending or approved I-140 Immigrant Worker applications should be accessible to CBP officers. Practitioners are also reminded that, generally, foreign nationals need to maintain their NIV status to be eligible to file for adjustment of status. 7 Immigration and Nationality Act 8 245(k) creates a 180-day
2
Therefore, the labor certification will still be considered pending while the denial or revocation of the labor certification application may be appealed, or while the appeal is actually pending, for the purposes of determining if an H-1B nonimmigrant is eligible for extension of stay. Adjudicators Field Manual (AFM) ch. 31.3(g)(8).
Does a timely and non-frivolous I-140 appeal pending at the Administrative Appeals Office (AAO) allow an alien to request an H-1B extension beyond the six-year limit? Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the AAO, USCIS will not consider that decision final for this purpose. USCIS Memorandum, W. Yates, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Pub. L. No. 106-313) at 9, published on AILA InfoNet at Doc. No. 05051810 (posted May 18, 2005), available at www.aila.org/content/default.aspx?docid=16454. However, in order to qualify for an H-1B extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouses eligibility for a 7th year extension, M. Aytes, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Pub. L. No. 106-313) at 10, published on AILA InfoNet at Doc. No. 06092763 (posted Sept. 27, 2006), available at www.aila.org/content/default.aspx?docid=20682. 5 Thus, upon requesting an extension, the H-1B nonimmigrant can request that full days spent outside the U.S. during the period of petition validity be recaptured and added back to his or her total maximum period of stay. AFM ch. 31.3(g)(9). 6 Generally, most nonimmigrant visas (NIV) must be able to demonstrate their intent to return home at the end of their temporary stay in the United States. Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status . Immigration and Nationality Act 214(b); 8 USC 1184(b). The statute specifically speaks to the fact that an approved immigrant visa petition is not a basis for denying L-1 or H-1B status. As a practical matter, USCIS forms ask if an immigrant petition has been filed by the applicant (see I-129, I-539, etc.) Accordingly, the authors believe it is truthful, and not disingenuous, to say no to these questions, when a PERM has been filed, but an I-140 Immigration Worker petition has not been filed, as this is not an immigrant petition. Practitioners also are reminded that an approved I-140 may not necessarily be the basis for denying a North American Free Trade Agreement (NAFTA) extension. See the letter from Y. LaFleur, Chief Business and Trade Services Branch, Benefits, Legacy Immigration and Naturalization Service, published on AILA InfoNet at Doc. No. 96061891 (posted June 18, 1996), available at www.aila.org/content/default.aspx?docid=13734. 7 8 CFR 245.1(b)(5), (6) Any alien who files an application for adjustment of status on or after Nov. 6, 1986 is not in lawful immigration status on the date of filing his or her application for adjustment of status, except an applicant who is an immediate relative as defined in section 201(b) or a special immigrant as defined in section 101(a)(27)(H), (I), or (J); Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States, except an applicant who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27)(H), (I), or (J) of the Act. 8 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.).
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exception to this rule for foreign nationals who are without valid status or who have been employed without authorization for less than 180 days at the time the Application to Adjust Status is filed. 9 However, continued unauthorized employment, following the filing of the application, is included in the calculation of time to determine if unauthorized employment exceeds 180 days. 10 Moreover, the employer can still be at risk for civil, and possibly criminal penalties, for I-9 Employment Eligibility Verification form violations for knowingly employing an unauthorized foreign national. 11 If the foreign national has sufficient time remaining in NIV status with employment authorization, many practitioners and their clients find that the delays and unpredictability of the BALCA process (discussed below) are not worth the effort and expense. As a result, many attorneys simply re-file (which may require conducting additional recruitment), as it may be the path of least resistance. Anecdotally, the authors have not seen an automatic audit of a PERM case re-filed after a denial. CLIENT MANAGEMENT, ETHICS AND THE DREADED PHONE CALL Upon receipt of the decision, the first step is to evaluate the denial, and make the critical phone call to advise the client of the decision. Although DOL sends e-mails to PERM applicants (employers) and attorneys, the e-mail system is not consistent in its protocols as to who gets which e-mails. Accordingly, counsel should assume that while it is important to notify employer of the decision immediately, it is likely that he or she has already received an e-mail with the information. Thus, by delaying a week or longer, it becomes obvious that you are merely avoiding an unpleasant issue. At the same time, when the call is placed, counsel should have a preliminary evaluation of the decision, the issues addressed by the decision, and the options available to the employer and the foreign national. It is not necessary that every possibility be examined, but some general outline of the options should be presented. It is acceptable to say Ive only had time to give it a brief review, but these are my preliminary thoughts. The preliminary thoughts should include an objective assessment of the merits of the denial. While often difficult in the few moments after receipt of an adverse decision, the preliminary review should, at a minimum, determine if the legal and factual grounds stated are accurate. Possible avenues of action will vary based on the substance of the denial. For example, if the decision is based upon failure to include documents that had in fact been submitted, the approach to the denial will be quite different from a decision based on a legal argument or obvious statement of law that was overlooked by counsel when the application was submitted. The denial will fall into one of several categories, and counsels assessment and explanation to the client will depend upon the basis of the denial, and the potential responses. Failure to comply with regulation. The denial is frequently based upon an identified deficiency in the application and is framed as a violation of the regulations. For example, the regulation requires that the notice posted at the work site must include the salary, and that salary offer cannot be less than the
INA 245(k) holds that a foreign national can still file for adjustment of status as long as he or she entered the United States legally and is the beneficiary of an EB-1, EB-2, or EB-3 preference category. This applies even if he or she failed to maintain status since the last admission, had status and worked without authorization, or otherwise violated the terms of the NIV status, as long as the aggregate period was 180 days or less. 10 USCIS reads the phrase aggregate period exceeding 180 days in 245(k)(2) to refer to the total of all three types of violations rather than permit up to 180 days of each type of violation. Accordingly, the aggregate 180 day period must be calculated by adding together any and all days in which there is one or more of the violations, and each day in which one or more of these violations existed must be counted as one day If USCIS reads section 245(k) to permit up to 180 days of each type of violation an alien could potentially accrue more than 180 total days of violations and remain eligible for adjustment of status. USCIS holds that the statute was not intended to permit such egregious violations. AFM ch. 23.5(d)(4)(A). See also AFM ch. 23.5(k)(4)(B) which states The filing of an adjustment of status application does not, in itself, authorize employment or excuse unauthorized employment, and accordingly the filing of an adjustment of status application will not stop the counting period of unauthorized employment. 11 8 CFR 274a.2(b)(1)(vii) confirms If an individuals employment authorization expires, the employer, recruiter or referrer for a fee must re-verify on the Form I-9 to reflect that the individual is still authorized to work in the United States; otherwise the individual may no longer be employed, recruited, or referred.
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prevailing wage, or upon terms less favorable than offered to the alien. 12 If the notice fails to meet one or more of the requirements, the application will be denied for failure to comply with the regulation. These denials are often clear and it will be difficult to challenge the denial. The obvious question then arises: Why didnt the notice comply with the regulation? Often, the answer to this question points to a deficiency in the attorneys preparation of the application. Determination that materials submitted did not satisfy the regulation. The preparation of the application often involves judgment regarding the nature and extent of proof required to meet the requirements. For example, business necessity may be required, but the certifying officer (CO) will make a determination that the proof of business necessity is not sufficient. This kind of decision may be subject to challenge, but having generated a negative decision, counsel must reevaluate the merits of the proof with renewed objectivity. Government error. These denials are the easiest to explain to a client, and will similarly lead to a suggestion that the decision should be challenged. However, counsel must be certain that the decision was indeed government error and not attorney error. Challenge to an aspect in the preparation of the application. The PERM application involves several detailed decisions regarding the preparation of the recruiting and application. The denial may challenge the employers recruiting decisions. For example, an advertisement in a professional journal may be challenged as an inappropriate journal. The employer, with advice from the attorney, must then decide whether the decision on the recruiting can be supported such that a challenge to the denial can be reasonably prosecuted. The range of issues presented is as varied as the decisions of counsel and the employer in the means by which the application is prepared and processed. Recognized legal issue addressed or considered when the application was prepared. There are many situations in which counsel prepares an application and for strategic or pragmatic reasons, sometimes unavoidable, the application will present an issue of law or challenge a position announced by DOL. In these instances, the client should be fully aware of the issue prior to filing and the decision will not be as much of a surprise. With the additional information afforded by the COs decision, the attorney is in a better position to provide an updated analysis of the legal issues, and the likelihood the employer may prevail upon appeal. Irrespective of the reason for the denial, counsels phone call to the employer should be professional and should give a reasonable updated analysis of the status of the application, the issues that led to a denial, and the options available to challenge the decision. This should include a reasonable analysis of what is likely to be successful, and more important, if it is not likely to be successful. Counsel should be careful at this point to avoid promising more than can be delivered. If an appeal to BALCA is likely to waste time and money, absent other factors (discussed above), there is no advantage to pursuing an appeal. In many instances, as noted above, the denial is based upon a deficiency in the preparation of the application, one that could or should have been avoided if counsel had been more careful, knowledgeable, or both. It is appropriate to recognize that the PERM system is very technical, and is full of traps for the unwary. AILA has often complained publicly about the gotcha mentality that pervades the PERM system. 13 While this might provide some support in the misery loves company category, if the denial was the result of counsels error, the proper approach is to accept responsibility, apologize and offer to process the case again. It may also be appropriate for the apology to include an offer to process the application without further charge of attorneys fees. Indeed, this offer may also include the costs of the advertising. The University of Michigan recently published a study with an innovative approach to medical malpractice claims. Eschewing the traditional deny and defend strategy common throughout the medical profession, the University Hospital system determined that the more honest approach of admitting errors; evaluating the treatment and determining whether the care was reasonable or not; offering appropriate
20 CFR 656.17(d). E. Pelta, PERM: There Has to be a Better Way, AILA Leadership Blog, (Aug. 10, 2010), available at http://ailaleadershipblog.org/2010/02/18/perm-there-has-to-be-a-better-way/.
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compensation; explaining to patients and family members what happened and why (even if revealed medical errors); and engaging in full and open discussion about future treatments significantly reduced both the amount of the claims and the expense of litigation. 14 The authors of this study noted that an early and accurate evaluation of the professional actions were critical. The key challenge is distinguishing between reasonable and unreasonable care. This determination is pivotalit provides direction for the institutional responseand it is critical to get it right. 15 The lessons from the University of Michigan study, as it relates to medical malpractice claims, apply equally to the legal profession, and specifically, immigration lawyers following a PERM denial based upon the attorneys error. Immigration lawyers, like the doctors at the University of Michigan, are human and will make mistakes. Our clients, like the patients studied, dont require perfection, but will respond in kind to a heartfelt apology and request for a do over. When appropriate, this is the best course of action. POST-DENIAL PROCEDURES If a PERM labor certification is denied, DOL regulations provide several options for moving forward, including letting the denial stand and refiling, submitting a request for review, and submitting a request for reconsideration. First Step in the Appeal Process: Request for Review vs. Request for Reconsideration If a PERM application is denied, an employer is given 30 days to submit either a request for review to BALCA, or a request for review to the CO. 16 A request for review: Upon denial of a PERM application, an employer may seek to file a request for review directly to BALCA. 17 The request for review must identify the labor certification determination denial for which the request for review is being filed; must include a summary of the grounds for the request; and must include a copy of the DOLs Final Determination. 18 A request for review may contain statements, briefs, and submissions from both the employer and interested parties, but those documents may only contain legal arguments and evidence that was within the record upon which the denial of the labor certification was based. 19 Although the request for review is submitted to the CO, upon receipt of the request, the CO is directed by regulation to prepare an Appeal File, which is directly submitted to BALCA. 20 A request for reconsideration is submitted to the CO, and may include information DOL previously received from the employer, 21 or documentation that the employer did not previously have an opportunity to submit, but had maintained as part of the PERM audit file. 22 In Matter of HealthAmerica, BALCA set forth the standard allowing employers to submit pre-filing documentation, stating that for the purposes of section 656.24(g)(2), documentation submitted in support of a labor certification application constructively includes materials held by an employer under the recordkeeping provisions of PERM. 23
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R. Boothman et al. A Better Approach to Medical Malpractice Claims? The University of Michigan Experience, 2 Journal of Health & Life Sciences 125 (2009). 15 Id. 16 20 CFR 656.26(a)(2)(i); 656.24(g)(1). 17 20 CFR 656.26. 18 20 CFR 656.26(a)(2). 19 20 CFR 656.26(a)(4). 20 20 CFR 656.26(b). 21 20 CFR 656.24(g)(2)(i). 22 20 CFR 656.24(g)(2)(ii). 23 Matter of HealthAmerica, 2006-PER-00001 (BALCA July 18, 2006). That premise was further upheld by BALCA in Hawthorne Suites Golf Resorts, LLC, 2009-PER-00200, (BALCA Jan. 12, 2011), where an employer failed to submit adequate evidence of their employer website posting in response to a Department of Labor (DOL) audit request, but later submitted print outs of each day of the website posting in their request for reconsideration. BALCA determined that the evidence could
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BALCAs grant of latitude to employers in HealthAmerica was somewhat limited by the DOL pursuant to the agencys Final Rule, Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity, 24 which became effective on July 17, 2007. That rule added the critical language limiting evidence submitted with a request for reconsideration to documentation that the employer did not previously have an opportunity to submit. 25 This distinction is highlighted in Matter of Techdemocracy LLC, 26 where the employer held web site ads in the audit file which were not submitted in response to an audit request. BALCA found that, while the ad was supporting documentation that allegedly existed at the time the application was filed, it was fairly covered by, and yet not submitted in response to, the COs audit notification. This evidence is barred by the application of Section 656.24(g)(2)(i). 27 Therefore, when responding to a DOL audit request, it is important to ensure that all relevant documentation be submitted, both to satisfy the DOL that the employer has complied with the regulations and to preserve a record for appeal in the event that it becomes necessary. A note regarding Request for Reconsideration based on Government Error: At the time of this writing, the queue for requests for reconsideration based on government error is current. While an attorney can request that any denial be reviewed as government error, the DOL will review each request on a case by case basis, and will assign it to the appeals queue they deem appropriate. 28 Generally, the DOL limits those cases which are placed in the government error queue to those instances where a data entry error has occurred, or where an application has been denied to respond to an audit and the employer has proof of its audit response. In addition, the DOL does not provide any confirmation regarding the queue in which the request for reconsideration has been placed. The only way to determine whether or not the case has been accepted in the government error queue is based on the timing of the decision. If the decision has not been received within four to six weeks, the request has most likely been placed in the standard review queue. Practice Pointer: At the time of this writing, the DOL processing times (http://icert.doleta.gov/) indicate that the agency is processing requests for reconsideration from PERM applications originally filed in June 2008. By filing a request for review, an attorney can bypass review by the CO, moving directly to BALCA, and possibly avoid the lengthier delays associated with a request for reconsideration. However, this route can have its drawbacks, as the regulations governing requests for review do not contain an ameliorative provision allowing the employer to submit documents that were held as part of the PERM audit file, but were not previously submitted. If timing is not otherwise a factor, and submitting substantiating documentation is required to receive a favorable outcome, the best course of action is to file a request for reconsideration. If the CO upholds the denial upon reconsideration, the application will then be automatically forward to BALCA for review. It is important that the cover letter accompanying either the request for review or the request for reconsideration explicitly state the basis for the request. DOL has advised that if the request does not indicate which type of appeal is sought, it will be entered in the request for reconsideration queue, and will not be immediately sent to BALCA. 29 If an employer is seeking a request for review, it is critical to clearly state that in the accompanying cover letter; otherwise, the case may be reviewed as a request for reconsideration.
properly be submitted in support of the request for reconsideration, stating, In this case, the documentation submitted with the Employers request for reconsideration was clearly held by the employer under the PERM recordkeeping provisions . Accordingly, as this evidence was not new evidence, we find that the CO abused his discretion by refusing to consider the documentation. However, it is important to make a distinction between Hawthorne Suites, which was a pre-July 17, 2007, and those cases filed after July 17, 2007. 72 Fed. Reg. 27904 (May 17, 2007). 20 CFR 656.24(g)(2)(ii). 26 Matter of Techdemocracy LLC, 2009-PER-00459 (BALCA Nov. 16, 2010). 27 Id. 28 Permanent Labor Certification Frequently Asked Questions: Appeals, published on AILA InfoNet at Doc. No. 09120363 (posted Dec. 3, 2009), available at www.aila.org/content/default.aspx?docid=30692. 29 Id.
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In spite of the guidance provided by the DOL indicating that ambiguous requests would be treated as requests for reconsideration, in some instances, DOL has elected to forward requests directly to BALCA for review, without first reconsidering the decision. Of course, when the request for reconsideration step is bypassed, the employer may lose the opportunity to provide relevant and favorable documentation as part of the record. Recent BALCA decisions have provided additional guidance, and some relief, to address those situations. In Matter of Denzil Gunnels, 30 BALCA stated that Where an employers request for review of a denial is phrased as a request for reconsideration, or when, despite using the words request for review it is clear that the employer was actually seeking reconsideration by the CO, or where the employers request is ambiguous, BALCA will review the COs decision to forward the case directly to BALCA as a request for review (rather than first reconsidering the denial) under the abuse of discretion standard. The CO in such an instance, must first reconsider the denial to afford the employer an opportunity to be heard on its legal argument. This provides some relief to employers, in requiring the CO to place substance over form, and consider evidence and arguments that an employer did not previously have an opportunity to provide. BALCA provided further guidance, and vacated the denial of a labor certification, in Matter of CVS Rx Services, Inc. 31 In that case, an employer filed a request for review which included a novel legal argument that the employer had not previously had an opportunity to address. Filed as a request for review, the argument could not be considered by BALCA. It was held that because the employer had not previously been afforded to the opportunity to present its legal argument, and because the opportunity to present the argument did not arise until the application was denied, the employers right to procedural due process mandated that the case be returned to the CO for further processing, to allow the Employer the opportunity to preserve his argument on appeal by first presenting it to the CO. 32 Both of these cases provide some relief to employers by allowing the opportunity to provide evidence as a request for reconsideration, even when the relief sought is labeled as a request for review. Moving on to BALCA: Upon receipt of an appeal file, BALCA will permit an employer 30 days to submit a statement or legal brief in support of the appeal. As mentioned previously, BALCA will only consider documents submitted to the Certifying Office as part of the initial PERM filing and subsequent audit (if any); the request for review; and the supplemental statement or brief. 33 Upon review of the appeal file, BALCA will either affirm the COs decision; direct the CO to overrule the revocation; or direct that a hearing be held. 34 BALCA appeals are considered by either three judge panels, or en banc. 35 Anecdotally, from October 2010 to February 2011, BALCA received 625 cases on appeal. Of those, 462 had been disposed of, either through decision or withdrawal, at a rate of approximately 90 cases per month. At the time of writing, there were currently 1,349 cases pending before BALCA, with projections of 200 case increase in backlogged cases by September 2011 based on current trends. Foregoing Review/Refiling After Denial: If a request for review is not made within 30 days of the date of denial, the denial becomes final. 36 In addition, if an employer elects not to file a request to reconsider, a request to review, or an appeal, it is permissible to immediately submit a new PERM application. 37
30 31
Matter of Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010). Matter of CVS Rx Services, Inc., 2010-PER-01108 (BALCA Nov. 16, 2010). 32 Id. 33 20 CFR 656.27(c). 34 Id. See S. Maclean and J. Gonzalez, AILA Teleconference with Judge Colwell and Todd Smyth at BALCA on 10/20/2010, published on AILA InfoNet at Doc. No. 10111730 (posted Nov. 17, 2010), available at www.aila.org/content/default. aspx?docid=33639, for more on en banc processing. Question 6: Who decides whether a case will receive an en banc review? Answer: BALCA may initiate en banc review if there is an important issue being decided. In addition, en banc review can be petitioned by either party. Of course, a request for either en banc review or consolidation can be made but there is no guarantee that it will be considered favorably.
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20 CFR 656.24(e)(4). 20 CFR 656.24(e)(5).

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That said, it is important to note that if a request for review is pending with BALCA, it is not permissible to file a new application in the same occupation for the same employee. 38 The DOL FAQs confirm that Upon receipt of the denial notification via U.S. mail, a new application may be filed at any time unless a request for review by BALCA has been submitted. While a request for BALCA review is pending, a new application for the same occupation and the same alien cannot be filed. 39 DOL considers both a pending request for review and a pending request for reconsideration as a bar to refilling. 40 CONCLUSION While many of us want to appeal a PERM labor certification denial to right the wrong that may have been perpetrated by DOL, we need to remain practical and serve the best interests of our clients. This may mean re-filing the PERM if the advertising remains current; restarting the PERM process if the ads have expired or have a fatal flaw; or appealing the decision either through a motion for review or reconsideration. Each of these requires a complete assessment of the foreign nationals temporary work status, the interest of both the employer and the foreign national, all tempered by the limits of what is practical, given the low rate of BALCA reversals of denials. Counsel must be able to provide a complete analysis of the issues, risks and timing to pursue the application with a request for reconsideration or appeal to BALCA.
38 39
20 CFR 656.24(e)(6). DOL Announces PERM FAQ Set 6, published on AILA InfoNet at Doc. No. 06022474 (posted Feb. 24, 2006), available at www.aila.org/content/default.aspx?docid=18647. 40 Id.
STRATEGIES FOR PREPARING NONIMMIGRANT PETITIONS FOR SMALL AND START-UP BUSINESSES
by Helene N. Dang, Bennett Savitz, and Cora D. Tekach *
FILING NONIMMIGRANT PETITIONS FOR SMALL AND START-UP BUSINESSES Filing petitions for small and start-up businesses can be a challenge; theres no doubt about it. There are several aspects of the petition about which to worry, and for which additional effort and often creative thinking is required. It is very useful to bear in mind when preparing these cases that the central U.S. Citizenship and Immigration Services (USCIS) concern is that some small businesses are either fraudulent or otherwise so fleeting in existence that the individuals nonimmigrant status would not be valid for long. As such, nonimmigrant petitions for initial status as well as extensions are more closely scrutinized than are those for larger companies. Even so, additional scrutiny should not be a deterrent to filing, and practitioners should be confident that bona fide small and start-up businesses can not only get their petitions approved, but also do so regularly. Documenting the Existence of the Business When a business is small and/or new, one can anticipate that the USCIS examiner may be dubious about the existence of the enterprise. In order to shore up the petition, the practitioner should include documentation that evidences the bona fides of the entity. Documentation that is useful for the purpose of establishing that the employer is a real business includes copies of government business licenses, lease agreements for commercial space, the Internal Revenue Service letter assigning the Federal Employer Identification number, articles of incorporation, business registration documents, stock certificates, federal and state tax returns, profit and loss statements, balance sheets, payroll records, insurance-related documentation, and other official business and financial documentation. In addition to the government-issued documents and the lease agreement, the existence of the business may also be documented by submitting copies of company brochures, pamphlets, pages from the companys website, and other printed materials prepared by the employer that describes the companys products and/or services. Practice Pointer: Typically, when submitting a petition for an employer with very few employees, it is helpful to include some, but not all, of the above-mentioned documentation. Thus, the petition is usually filed with the business registration documentation, copies of the business license(s), articles of incorporation, the lease for the commercial property, the most recent years federal and state tax returns, some company marketing materials, and print-outs from the company website.
Helene N. Dang is a senior attorney with FosterQuan LLP in Houston, where she practices primarily employment-based immigration law. Helene has extensive experience representing large corporations as well as small businesses in all aspects of nonimmigrant and immigrant visas. She is a graduate of the University of Houston and South Texas College of Law. Helene is board certified in immigration & nationality law by the Texas Board of Legal Specialization and is listed in Texas Rising Stars. Bennett Savitz has practiced exclusively in the area of immigration law since 1994, and founded Savitz Law Offices, P.C. in 2000. He has served as the chair of the AILA New England Chapter as well as on several local and national AILA committees. He is a frequent speaker and writer on various aspects of immigration law. Since 2008, Bennett Savitz has been selected as one of Boston's Best Lawyers in Immigration Law by Best Lawyers of America. He currently teaches a graduate school course on immigration law at Lesley University. Cora D. Tekach is the founder of the Tekach Law Firm, and has practiced all aspects of immigration law exclusively for nearly 20 years. She is an adjunct professor of Law at the Catholic University of America, a former chair of AILAs D.C. Chapter, and is the former associate director of the Liaison and Information Department at AILA. She has edited The Immigration Act of 1990 Today annually since 1997, regularly authors other publications, and is a frequent speaker on immigration issues. Ms. Tekach has appeared as an expert on television, radio, and newsprint. The daughter of Argentine immigrants, she is fluent in Spanish. Ms. Tekach is also a returned Peace Corps volunteer, having served in Paraguay.
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To be best prepared in the event that there is a request for evidence (RFE)likely for small and start-up businessesobtain additional documentation from the small company so that it is ready. Discussing the types of documentation that may be available from the small company is a very helpful exercise at the beginning of the process, so that the practitioner is prepared to respond to an RFE, should the need arise. Thus, although not submitted with the initial petition, the practitioner may request and retain copies of additional documentse.g., quarterly tax returns, profit and loss statements, balance sheets, payroll records, W-2s and 1099 forms, stock certificates, proof of insurance coverage, and other business-related documentsin order to have substantive documentation to submit to USCIS in response to the RFE. A well-prepared three or five-year business plan is also persuasive and substantive documentation of the seriousness of the business. USCIS may also request photographs of the interior and exterior of the business premises, so be prepared to show that the office space is professional and that the business has signage. The Position Within the Company The position offered to the foreign national must be very well presented when filing for a small or start-up business. A common concern on the part of USCIS is that the individual is performing non-professional (in the case of an H-1B petition) or non-managerial (in the case of an L-1A petition) duties. USCIS expects to see a very detailed job description, including specific job duties, level of responsibility, hours per week of work, and the minimum education, training and/or experience necessary to perform the duties of the job. Practice Pointer: Be very careful regarding how the duties of the position are worded. It is important to articulate the tasks, duties, and responsibilities for the position clearly and in a manner that is not potentially confusing or understated. Each of the responsibilities presented in the petition must reflect the level of knowledge, skill, and abilities required to fulfill the role of the position within the company, and should never be oversimplified or general. A job description (and even only portions of the job description) that fails to reflect the sophisticated and complex nature of the work or the managerial nature of the work is likely to cause problems for the petition, especially with a petitioner that is a small or start-up business. You should anticipate that the USCIS examiner will view a position within a small or start-up business as one that requires the employee to perform non-qualifying duties and, thus, not be eligible for the classification sought. While this bias cannot be entirely avoided, it is possible to strengthen a filing by ensuring that the description of the positions duties is carefully prepared. When USCIS issues an RFE with requests relating to the job description, there is typically a request for a breakdown of the percentage of time spent on each duty. As such, it is a good practice to review the percentage of time spent on the position duties with the employer even prior to the filing of the petition so that there are no surprises to the practitioner later in the process. It is also a good practice to have an organizational chart of the business in advance of filing so that any issues or concerns with respect to the professional, managerial or executive nature of the position may be addressed prior to filing. USCIS often requests these charts for small and start-up businesses. When reviewing a companys organizational chart, it is critical to bear in mind the requirements of the nonimmigrant classification sought, and whether the structure of the business, along with the job descriptions for the other positions within the business, will successfully show that the conditions for the classification are met. Preparing the organizational chart in advance of the filing can help to reveal certain concerns or issues with the petition, thus allowing for resolution of those concerns and better preparation of the petition prior to receiving an RFE from USCIS. Practice Pointer: The organizational chart need not be submitted with the initial filing of the petition, and may be used as a preparatory tool as well as reserved evidence to be submitted should an RFE be issued. Another piece of valuable evidence for a petition may be an expert opinion, affirming that the nature of the work as described for the position meets the classification criteria, even as executed within the small business. This expert opinion is almost never submitted with the initial filing, and is utilized typically only in response to an RFE. Operations and Level of Activity of the Business Another potential area of scrutiny with small and start-up businesses involves the operations and the level of activity of the business. Thus, if the business is very small, it can be useful to submit documentation of
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business activity with the initial filing. Often, however, such documentation may be secured in anticipation of an RFE. Useful documentation for establishing active operations includes copies of contracts, proposals for services, invoices for services and/or products, receipts for purchase of services and/or products required in the ordinary course of business, and sample products prepared for customers. Letters from other entities doing business with the petitioner and describing the length and nature of the business relationship are also beneficial. Bank statements showing wire transfers, deposits, and checks written can also show ongoing business activity. Practice Pointer: Ordinarily the documentation establishing the active operations of the small or start-up business is not submitted with the initial filing of the petition. Nonetheless, it is a good practice to review with the employer, in advance of filing, what documentation the enterprise may have available to show that it is engaged in business activity. The key to overcoming the challenges of filing a nonimmigrant petition for a small or start-up business is to show that the petitioner is operating a regular business, occupying regular premises, and behaving in all ways as a larger or more established business would be behaving. The documentary evidence should reflect as much as possible a traditional business operating in a familiar and traditional way, and the tips and lists of documents above should generally support that picture. OWNER EMPLOYEESCAN THEY BE APPROVED? On January 8, 2010, USCIS Associate Director Donald Neufeld issued a memorandum providing 1 interpretive guidance on determining employer-employee relationships in the H-1B context. The memorandum provides a blue print for the factors USCIS will consider in determining whether a valid employment relationship exists. The memorandum also prohibits many businesses from sponsoring an owneremployee for H-1B petitions. Although the Neufeld memorandum is intended to apply specifically to H-1B petitions, as denoted in the title and throughout the content of the guidance, USCIS has applied the right of control factors listed in the memorandum to L-1 and O-1 petitions as well to immigrant worker petitions. Practice Pointer: Practitioners should carefully examine the Neufeld memorandum and become familiar with the non-exhaustive list of factors that USCIS will likely consider in the course of determining whether there is a valid employer-employee relationship for purposes of H-1B, L-1, O-1 and immigrant worker petition adjudication. Proactively crafting the petition in cases that involve owner-employees and assembling corresponding supporting documentation that addresses as many of the right of control factors as possible will ensure a greater chance of approval. Owner-Employee H-1BsIs It Impossible Now Under the Neufeld Memorandum? Long gone are the days of easy approvals of self-employed H-1B petitions. USCIS has acknowledged several times in past decades through precedent and non-precedent administrative decisions that a sole stockholder of a corporation can be employed by that corporation because the corporation is a separate legal 2 entity from its owners and even its sole owner. However, the question of whether such a beneficiary will truly be an employee is a separate and independent matter. According to the Neufeld memorandum, self-petitioning owners are not considered employees where: (i) the beneficiary is the sole operator, manager, and employee of the petitioning company; (ii) the beneficiary cannot be fired by the petitioning company; and (iii) there is no outside entity which can exercise control over
USCIS Memorandum, D. Neufeld, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements; Additions to Officers Field Manual (AFM) Chapter 31.3(g)(15) (AFM Update AD 10-24) (Jan. 8, 2010), published on AILA InfoNet at Doc. No. 10011363 (posted Jan. 13, 2010), available at www.aila.org/content/default.aspx?docid=30950.
Matter of M, 8 I&N Dec. 24 (BIA 1958); Matter of Allan Gee, Inc., 17 IND Dec. 296 (RC 1979); Matter of Aphrodite Investments, 17 I&N Dec. 530 (BIA 1980). Non-precedent AAO decisions Matter of X, ___, SRC 98 101 50785 (AAO Aug. 9, 1999), 21 Immigr. Rep. B2-6; Matter of X (AAO Feb. 23, 2006), published on AILA InfoNet at Doc. No. 08041470, available at www.aila.org/content/default.aspx?docid=25193.
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the beneficiary. However, if the corporation is controlling the beneficiarys work and there is a clear distinction between the beneficiary and the petitioning company, there may be an employer-employee relationship. In adjudicating such H-1B petitions, USCIS will question whether the beneficiary can be a bona fide employee of the petitioning company and whether the petitioning company has the ability to hire, pay, fire, supervise, or otherwise control the work of the beneficiary. While regulations at Code of Federal Regulations Title 8 214.2(h)(4)(ii) define a U.S. employer as a person, firm, corporation, contractor, or other association, or organization in the United States having an employer-employee relationship, the term employee is not specifically defined by statute or regulations for purposes of the H-1B classification. In considering whether or not one is an employee, USCIS currently 4 applies the common-law criteria of control. Factors to be addressed in determining whether a worker, who is also an owner of the organization, is an employee include: Whether the organization can hire or fire the individual or set the rules and regulations of the individuals work; Whether and, if so, to what extent the organization supervises the individuals work; Whether the individual reports to someone higher in the organization; Whether and, if so, to what extent the individual is able to influence the organization; Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; and Whether the individual shares in the profits, losses, and liabilities of the organization.
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Practice Pointer: Before preparing an owner-beneficiary H-1B petition, practitioners should carefully examine the foreign nationals role in the enterprise to understand clearly the dynamics of the employment arrangement and to educate and prepare the beneficiary about the factors that USCIS will consider in making the determination of whether a valid employment relationship exists. There is no prohibition on the foreign national beneficiary being an owner, partner, or other major stakeholder of the U.S. enterprise as long as the evidence distinguishes the petitioning organizations identity from the beneficiarys identity. The petitioner must be prepared to explain how it retains the ability to hire, pay, fire, supervise, or otherwise control the work of the foreign national. Where the foreign national is an owner or founder of a start-up company, for example, it is recommended that he or she hold less than a majority stock interest, if possible, so that he or she is theoretically subject to the control of the corporate entity. Documentation that practitioners should submit to prove a valid employment relationship where the beneficiary is an owner of the petitioning organization include, but is not limited to: (1) organizational or hierarchy chart to show a reporting structure, who would supervise and assign work to the beneficiary, who would have the authority to hire, fire, pay and change the beneficiarys job duties, or otherwise control the beneficiarys work; (2) performance review policy; (3) company agreements or bylaws to show who, other than the beneficiary, controls the organization and whether the beneficiarys employment could be terminated; (4) an employment agreement detailing the terms and conditions of employment; and (5) other comparable documentation describing the beneficiarys employment relationship with the petitioning organization. No single factor is decisive in determining whether a valid employment relationship exists, and USCIS will consider the totality of the evidence in the adjudication process. Accordingly, practitioners should assemble and organize supporting documentation to meet as many of the factors as possible, and provide a clear and succinct explanation to bring together the evidence for the USCIS examiner.
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Id.; Adjudicators Field Manual ch. 33.3(g)(15). Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 32223 (1992) and Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003). 5 Clackamas, 538 U.S. at 44950.
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L-1A Nonimmigrant PetitionsWhat Are the Current Challenges with Owner-Employees? L-1A petitions for presidents, CEOs, and similar positions of international companies who happen to be owners of the companies are now more difficult to prepare and get approved due to USCISs application of the Neufeld memorandum. 6 The prevailing issues are whether a valid employment relationship exists such that the L-1A worker is separate from the petitioning organization and whether the beneficiary is an employee, rather than a proprietor, of the business. Practice Pointer: Regardless of whether the shareholder that is coming to the United States directly owns the petitioning entity or whether he derives ownership indirectly through his direct majority ownership of the foreign entity that may ultimately own the petitioner, the L-1A petition should include evidencee.g., company bylaws, business plan, or employment agreementsto demonstrate that the shareholder is, in fact, an employee and that he or she will report to a board of directors (or other reporting hierarchy). In addition, evidence should show that someone else, like another officer or a board of directors, has the right to exercise control over the organization and over the beneficiarys work, amongst other factors. It is vital to the success of the petition to show a clear delineation between the owner-beneficiary and the company. Where possible, it is recommended that the beneficiary hold less than a majority stock interest so that he or she can theoretically be subject to the control of the corporate entity. SHOWING YOU THE MONEYISSUES WITH ABILITY TO PAY FOR NONIMMIGRANT PETITIONS FOR COMPANIES WITH SHALLOW POCKETS AND START-UPS The Administrative Appeals Office has stated that wage determination and enforcement associated with H-1B petitions are the sole responsibility of the U.S. Department of Labor (DOL) because the employer agreed to pay the prevailing wage for the position among other attestations on the Labor Condition 7 Application (LCA), which is a DOL form. Ability to pay is not an element of the H-1B requirements, nor is it a requirement for many other nonimmigrant categories. Accordingly, USCIS is not tasked to make ability to pay determinations for nonimmigrant petitions. However, USCIS has discretion to make reasonable requests for evidence of a small or start-up companys ability to pay as a means to assess the broader issues of whether the job offer is bona fide, whether the petitioner is a viable business, and whether the petitioner will be able to 8 meet the terms and conditions of employment. Similarly, United States consular officers have discretion to make reasonable requests for financial documentation to determine the viability of the business and whether a bona fide job exists. For small and start-up businesses, the challenge is demonstrating that petitioners have access to cash and other capital. Practice Pointers: To establish that small or start-up businesses have the financial viability to employ the foreign national indicated on the petition, practitioners should carefully examine the regulations and the Adjudicators Field Manual to fully understand the types of documentation USCIS can consider and to prepare the H-1B or L-1 petition accordingly. Examples of documents that can be useful to submit include business plans, financial statements, contracts, work orders, bank statements, and any accounts receivables in the initial petition. If the business is a venture-backed start-up, it is recommended also to include financial and business information about the investors to show the availability of additional capital and even their long history of successfully launching companies.
USCIS Memorandum, D. Neufeld, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements; Additions to Officers Field Manual (AFM) Chapter 31.3(g)(15) (AFM Update AD 10-24) (Jan. 8, 2010), published on AILA InfoNet at Doc. No. 10011363 (posted Jan. 13, 2010), available at www.aila.org/content/default.aspx?docid=30950. 7 In re: Aditi Corporation for R. Shanmukam, LIN 99-243-50365, (AAO unpublished decision).
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USCIS Memorandum, D. Neufeld, Removal of Standardized Requests for Evidence Processing Timeframe Final Rule, 8 CFR 103.2(b); Significant Revision to Adjudicators Field Manual (AFM) Chapter 10.5(a), (b); New Appendix 10-9 (AFM Update AD 07-05 (June 1, 2007), published on AILA InfoNet at Doc. No. 07062171 (posted June 21, 2007), available at www.aila.org/content/default.aspx?docid=22708.
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Additionally, practitioners can submit a certified public accountant evaluation as an expert opinion to demonstrate that the petitioner is or will be a viable business and has the ability to pay the offered wage. Practitioners can also submit shareholders other incomes as additional sources of capital, the parent companys financial documentation, and information showing if the nonimmigrant employee will be replacing contractors. Final Considerations As should be readily apparent, it is not easy to anticipate all of the potential problems that can arise in documenting that a small or start-up business is indeed viable and legitimate and is entitled, by a preponderance of the evidence, to obtain the immigration benefit it seeks for its employee. Small or start-up businesses do appear to be more heavily scrutinized than larger, well established entities to ensure that the job opportunity is, in fact, legitimate. Whether this scrutiny is a result of the legislative and regulatory system that simply lends itself more naturally to use by larger companies, or whether it is some sort of inherent bias, is actually immaterial. Either way, practitioners for small or start-up businesses just have to accept this reality and prepare the case accordingly.
EXPORT CONTROL FOR IMMIGRATION LAWYERS

by Steve Springer *
The recent addition of an export control-related attestation to Form I-129 1 has required many immigration attorneys to revisit export control laws and regulations. Their clients have long been required to comply with export control laws and regulations, and immigration attorneys may have referred clients to attorneys who specialize in this area for advice about compliance programs. Given the complexity of these two areas of the law, many immigration attorneys will forego opportunities to develop a deep expertise in export control law. Still, this new attestation will require attorneys to address the topic with petitioners. In order to do so effectively, they must have a basic knowledge of export controls. This article provides general background information and points to other sources of information on export controls for immigration attorneys. KEY EXPORT CONTROL PROVISIONS At least a dozen federal agencies implement the many U.S. export control laws and regulations. For example, The U.S. Department of the Treasury Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries and regimes, [and] terrorists . . . 2 But the key export control provisions of interest to immigration attorneys, especially in light of the new Form I-129 attestation, are the Export Administration Regulations 3 (EAR) and the International Traffic in Arms Regulations 4 (ITAR). The EAR are administered by the U.S. Department of Commerce Bureau of Industry and Security 5 and apply to technologies and technical data that would not be widely available to the public or in the public domain. 6 The EAR definition of export includes the concept of deemed export or the disclosure of controlled technology or technical data to a foreign national. 7 The ITAR are administered by the U.S. Department of State Directorate of Defense Trade Controls 8 and apply to a wide range of defense articles, including technical data. 9 Like the EAR, the ITAR define export to include the transfer or disclosure of defense articles and defense services to a foreign person. 10 The export, disclosure, release, or transfer ITAR-controlled articles or EAR-controlled technologies or technical data require a license.
Steve Springer is the director of Regulatory Practice Liaison for NAFSA: Association of International Educators. Prior to joining the NAFSA staff, he worked as an immigration attorney. He also has nearly a decade of experience managing immigration services for several major research universities. 1 Form I-129 (Rev. 01/11/2011), Part 6: Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States, effective Feb. 20, 2011, requires the petitioner to attest that it has reviewed two export control regulations and has determined that with respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, that either a license is not required or a license is required and the petitioner will obtain the license before allowing the beneficiary access. While it seems that a petitioner who will provide a beneficiary access only to technology widely available to the public, and will not release to the beneficiary any technology or technical data or provide the beneficiary access technology or technical data, might not be required to answer the question, U.S. Citizenship and Immigration Services (USCIS) has indicated that all petitioners must answer it. 2 www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-Foreign-Assets-Control.aspx. 3 15 CFR Parts 77074. 4 22 CFR Parts 12030. 5 www.bis.doc.gov/ . 6 15 CFR 743.3. 7 15 CFR 743.2(b)(2)(ii), commonly referred to as the deemed export rule. 8 www.pmddtc.state.gov/ . 9 22 CFR 120.2. 10 22 CFR 120.17(a)(3).
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What and Who Is Covered by the EAR? The EAR definition of technology is quite broad and includes specific information necessary for the development, production, or use of a product, 11 dual-use technologies, which can be used both in military and other strategic uses (e.g., nuclear) and commercial applications, 12 and technical data which may take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories. 13 The EAR Commerce Control List provides further specification of items (commodities, software, and technology) subject to the authority of the Bureau of Industry and Security under EAR. 14 The EAR also provides broad exemptions, including exemptions for publicly available technology, educational information, or fundamental research, which is defined as basic and applied research in science and engineering, the results of which are published or shared broadly within the scientific community. 15 The EAR do not apply to persons lawfully admitted for permanent residence in the United States [or] to persons who are protected individuals under the Immigration and Naturalization Act (8 USC 1324b(a)(3)) such as asylees and refugees. 16 When Is a License Required by the EAR? If access to technology or technical data will be provided to a person who does not fall within the definition of foreign national, such as a U.S. lawful permanent resident, then the EAR do not apply, and no license is required. If a foreign national will have access to technology or technical data that falls within one of the exemptions enumerates in the EAR, then the EAR does not apply, and no license is required. If a foreign national will have access to technology or technical data that is subject to the EAR, then the party providing access must determine whether a license is necessary and, if so, obtain a license in order to provide the access. As noted above, export is defined to include a deemed export 17 such as disclosure or release 18 of technology or technical data subject to the EAR to a foreign national. If the party providing access determines that the technology or technical data are controlled by the EAR, and it appears that an export or deemed export will occur, then it must consult the EAR Commerce Country Chart 19 in order to ascertain whether, based on the kind of technology or technical data to be exported and the foreign nationals country of citizenship, a license is required. If a license is required, the exporting party must apply to the U.S. Department of Commerce Bureau of Industry and Security for the license. 20
15 CFR 772.1. 15 CFR 730.3. 13 15 CFR 772.1. 14 15 CFR 774. 15 15 CFR 734.711 and 15 CFR 734 Supplement No. 1. 16 15 CFR 734.2(b)(2) and 15 CFR Part 772 (Definitions of Terms). 17 As noted previously, the EAR recognize the concept of deemed export, defining an export as an actual shipment or transmission of items subject to EAR out of the United States, or release of technology or software subject to the EAR to a foreign national in the United State 15 CFR 734.2(b)(1). 18 The EAR define release broadly to include [v]isual inspection by foreign nationals of U.S.-origin equipment and facilities, [o]ral exchanges of information in the United States or abroad, or [t]he application to situations abroad of personal knowledge or technical experience acquired in the United States 15 CFR 734.2(b)(3).
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15 CFR Part 738 Supplement No. 1Commerce Country Chart. www.bis.doc.gov/snap/index.htm.

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What and Who Is Covered by the ITAR? The ITAR define defense articles those specifically designed, developed, configured, adapted or modified for a military application, 21 including technical data, or [i]nformation . . . which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles and may be information in the form of blueprints, drawings, photographs, plans, instructions or documentation. 22 The ITAR U.S. Munitions List 23 provides a description of the articles, services, and related technologies that have been designated as defense articles and defense services and are controlled under the ITAR. Like the EAR, the ITAR provide broad exemptions of information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities, certain basic marketing information about defense articles, and information in the public domain. 24 A detailed list of information considered to be in the public domain is provided in the ITAR, including exemptions of information which is published and which is generally accessible or available to the public through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. unless the research project or activity carried restrictions on publication or was funded by the U.S. government and dissemination controls apply. 25 The ITAR definition of foreign person is any natural person who is not a lawful permanent resident as defined by 8 USC 1101(a)(20) or who is not a protected individual as defined by 8 USC 1324b(a)(3) such as an asylee or refugee. 26 When Is a License Required by the ITAR? If access to information will be provided to a person who does not fall within the definition of foreign person, such as a lawful permanent resident, then the ITAR do not apply, and no license is required. If the information, including technical data, to which the foreign person will have access fall within one of the exemptions enumerated in the ITAR, then the ITAR do not apply, and no license is required. If, however, an export of ITAR-controlled information (on the U.S. Munitions List 27 ) is to occur, and this includes [d]isclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad 28 then the exporting party must register with U.S. Department of State Directorate of Defense Trade Controls 29 and apply for a license. 30 Penalties for Violations of the EAR and the ITAR Sanctions for violations of the EAR range from imprisonment for up to 10 years or a fine of up to $1 million for willful violations, to denial of export privileges or debarment. 31 Violations of the ITAR carry similar sanctions, ranging from imprisonment for up to 10 years and fines of up to $1 million for willful violations, to debarment. 32
22 CFR 120.3. 22 CFR 20.10(a). 23 22 CFR 121. 24 22 CFR 120.10(a)(5). 25 22 CFR 120.11(a)(8). 26 22 CFR 120.16. 27 22 CFR 121. 28 22 CFR 120.17(a)(4). 29 www.pmddtc.state.gov/registration/index.html. 30 www.pmddtc.state.gov/licensing/index.html. 31 15 CFR 764.3, see also authority for the EAR, the Export Administration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503, effective Oct. 1, 1979, codified as amended at 50 USC app. 240120. 32 22 CFR 127 (referencing 22 USC 2778(c)), see also the authority for the ITAR, the Arms Export Control Act of 1976, Pub. L. No. 94-329, tit II, 212(a)(1), 90 Stat. 744, codified as amended at 22 USC 2778.
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Recent years have seen aggressive enforcement of the EAR and the ITAR. 33 There also are immigration law provisions related to export control violations. Many immigration attorneys will be familiar with the Immigration and Nationality Acts parallel inadmissibility and deportability provisions. Section 212(a)(3)(A) provides that [a]ny alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information . . . is inadmissible. Section 237(a)(4) provides that [a]ny alien who has engaged, is engaged, or at any time after admission engages in any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information, or any other criminal activity which endangers public safety or national security is deportable. RESOURCES Laws and Regulations Export Administration Act: www.fas.org/sgp/crs/secrecy/RL31832.pdf http://uscode.house.gov/search/criteria.shtml (50 USC 240120) Arms Export Control Act: www.law.cornell.edu/uscode/422/usc_sup_01_22_10_39.html http://uscode.house.gov/search/criteria.shtml (22 USC 2778) Export Administration Regulations: www.bis.doc.gov/policiesandregulations/index.htm#ear www.access.gpo.gov/bis/ear/ear_data.html#ccl International Traffic in Arms Regulations (ITAR): www.pmddtc.state.gov/regulations_laws/itar.html Agencies and Licensing U.S. Department of Commerce Bureau of Industry and Security: www.bis.doc.gov/ U.S. Department of State Directorate of Defense Trade Controls: www.pmddtc.state.gov/index.html U.S. Department of Treasury Office of Foreign Assets Control: www.treasury.gov/about/organizationalstructure/offices/Pages/Office-of-Foreign-Assets-Control.aspx Additional Information and Training on Export Controls AILA Export Controls Advisory Task Force: AILA Doc. No. 10120848 AILA Webinar Export Controls for Immigration Lawyers (2010) (order form): http://eo2.commpar tners.com/users/aila/register.php?id=3866 Department of Commerce Bureau seminarsandtraining/index.htm of Industry and Security Training: www.bis.doc.gov/ ;
Department of Commerce Bureau of Industry and Security Export Control Basics: www.bis.doc.gov/ licensing/exportingbasics.htm Department of Commerce Bureau of Industry and Security FAQ: www.bis.doc.gov/licensing/index. htm#faqs U.S. Department of State Directorate of Defense Trade Controls Getting Started: www.pmddtc.state.gov/ documents/ddtc_getting_started.pdf U.S. Department of State Directorate of Defense Trade Controls FAQ: www.pmddtc.state.gov/faqs/ index.html
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For example, see Bureau of Industry and Security press releases at www.bis.doc.gov/news/index.htm#prs and Directorate of Defense Trade Controls Summary of Major U.S. Export Enforcement and Embargo Criminal Prosecutions: 2007 to the Present at www.pmddtc.state.gov/compliance/documents/OngoingExportCaseFactSheet.pdf
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U.S. Department of State Directorate of Defense Trade Controls Training: www.pmddtc.state.gov/ outreach/index.html Additional Background Information on Export Controls Fact Sheet on the Presidents Export Control Reform Initiative (April 20, 2010): www.whitehouse. gov/the-press-office/fact-sheet-presidents-export-control-reform-initiative GAO Report Export Controls: Improvements Needed to Prevent Unauthorized Technology Releases to Foreign Nationals in the United States (2011): AILA Doc. No 11030735 GAO Report Export Controls: Department of Commerce Controls over Transfer of Technology to Foreign Nationals Need Improvement (2002): AILA Doc. No. 02091231 U.S. Department of Commerce Report Deemed Export Controls May Not Stop the Transfer of Sensitive Technology to Foreign Nationals in the U.S. (2004): www.nafsa.org/resourcelibrary/ default.aspx?id=11036 Commerce Departments Deemed Export Advisory Committee Report Secretary of Commerce: www.nafsa.org/publicpolicy/default.aspx?id=6745 Information Concerning the Form I-129 Export Control Attestation AILA I-129 Export Controls Resource Page: AILA Doc. No. 11021767 AILA Practice Pointer, The New Export Control Attestation Requirement on Form I-129: AILA Doc. No. 10121531 AILA Seminar Recording, Managing the New I-129 Export Control Certification in Your Practice: AILA Doc. No. 11011065 AILA/True Compliance Group on-demand webinar, Export Controls Training: What You Need to Know Before You Sign (sample form and letter and resource list also available): AILA Doc. No. 11022831 AILA Liaison/SCOPS Q&A (02/23/2011): AILA Doc. No.11030433 Slides from AILA Seminar, Managing the New I-129 Export Control Certification in Your Practice: Export Controls 101: www.aila.org/content/fileviewer.aspx?docid= 34101&linkid=228638 AILAs Comments to USCIS on Form I-129 Export Control Attestation: AILA Doc. No. 10040960 NAFSA: Association of International Educators Practice Advisorys Comments to USCIS on Form I-129 Export Control Attestation: www.nafsa.org/resourcelibrary/default.aspx?id=19157 www.nafsa.org/resourcelibrary/default.aspx?id=21573 NAFSA: Association of International Educators Practice Advisory: www.nafsa.org/resourcelibrary/ default.aspx?id=23261 NAFSA: Association of International Educators Practice Resource: www.nafsa.org/resourcelibrary/ default.aspx?id=25004 Association of University Export Control Officers (AUECO) Practice Resource: www.nafsa.org/ uploadedFiles/I-129%20AUECO.pdf Council on Government Relations Report Export Controls and Universities Information and Case Studies (2004): www.nafsa.org/resourcelibrary/default.aspx?id=23261 Article Export Compliance During the Visa Application Process: The New I-129 Form and its Implications for Higher Education, prepared by David A. M. Ware for the National Association of College and University Attorneys: www.david-ware.com/immigration-information/export-complianceduring-visa-application-process-new-i-129-form-and-its-imp
EFFECTIVE ADVOCACY FOR RELIGIOUS WORKERS

by Joel Pfeffer, Michelle L. Lazerow, Mary M. OLeary, and Elizabeth Rompf Bruen *
On November 26, 2008, the U.S. Citizenship and Immigration Services (USCIS) issued new regulations implementing changes to the way immigration petitions for religious workers are adjudicated. The purpose of these changes was outlined by USCIS in its introduction when it stated, USCIS is implementing [these] requirements to allow the federal government, as well as religious organizations, to better detect and deter fraud or other abuses of the religious worker program without compromising the many contributions made by nonimmigrant and immigrant religious workers to religious organizations in the United States. 1 Representing religious workers and organizations in this dubious environment presents challenges; however, careful case planning, detail-oriented preparation, thorough documentation, and thoughtful advice throughout the process should alleviate USCISs fraud concerns, effectuate successful adjudications for immigration attorneys clients, and serve as constructive advocacy for future religious workers and organizations. CASE-PLANNING AND PREPARATION Clear documentation of each element of the statute and regulations establishes the nature of the petitioning organization and the beneficiarys qualifications. USCIS provides document checklists on its website with specific examples of evidence it finds appropriate to establish the required elements. 2 The Employer Tax-exempt Status USCIS, in comments to the November 26, 2008, final rule, stated that it viewed the determination letter to be a valuable fraud deterrent that provides a petitioning organization with the opportunity to submit
Joel Pfeffer is a partner of the Pittsburgh law firm of Meyer, Unkovic & Scott LLP. He practices in the areas of immigration, nationality, and corporate law. Mr. Pfeffer is active in AILA and has served as a member of the Religious Worker Committee, the Finance Committee, and as speaker and chapter chair. Michelle L. Lazerow practices immigration law in the Washington, D.C., metropolitan area, primarily in the areas of business, family, and naturalization. She has served on numerous AILA liaison committees on both local and national levels and on numerous conference committees as chair, co-chair, and committee member. She has participated as a panelist on a large variety of immigration issues in conferences nationwide. Ms. Lazerow served six years on the board of the American Immigration Law Foundation, as chair of the Annual Immigrant Achievement Awards (D.C.) for 11 years, and as chair of the Immigrant Achievement Awards (Annual Conference, Utah). Ms. Lazerow graduated with a law degree and a postgraduate degree in corporate law from University of the Witwatersrand, Johannesburg, South Africa, and holds an LL.M. from George Washington University, Washington, D.C. Mary M. OLeary is the principal in the Law Office of Mary OLeary. Ms. OLeary is a 1999 graduate of DePaul University College of Law and was admitted to the Illinois Bar in November 1999. She earned an M.A. in Latin American Studies from the University of Chicago in 1992 and a B.A. from Alma College in 1991. Ms. OLeary has served the immigration bar on numerous committees and is a frequent speaker on a variety of immigration law topics, presenting to professional and community organizations. Ms. OLeary has a general immigration law practice. Elizabeth Rompf Bruen is an immigration attorney with Scott D. Pollock and Associates, P.C., in Chicago. Ms. Rompf Bruen represents clients in all areas of immigration law and was named a Rising Star in immigration law by Super Lawyers. She is an active member of AILA and currently chairs the Chicago Chapters liaison committee with the Executive Office of Immigration Review. Ms. Rompf Bruen graduated with honors from DePaul College of Law in Chicago and the University of Notre Dame in Notre Dame, Indiana. The authors wish to thank Carlos Ortiz-Miranda for his thoughtful suggestions regarding this article. 1 See Special Immigrant and Nonimmigrant Religious Workers; Special Immigrant Nonminister Religious Worker Program Act; Final Rule and Notice, 73 Fed. Reg. 72277 (Nov. 26, 2008) and published on AILA InfoNet at Doc. No. 08112230 (posted Nov. 22, 2008). 2 See www.uscis.gov/files/form/m-737.pdf. In addition, questionnaires, such as the attached, assist employers and beneficiaries in gathering required information and documentation.
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exceptionally clear evidence that it is a bona fide organization. 3 Additionally, the regulations make clear that only an Internal Revenue Service (IRS) determination letter identifying the organization as a nonprofit organization under Internal Revenue Code (IRC) 501(c)(3) is acceptable; a tax-exempt determination under IRC 501(d), 26 USC 501(d), will not qualify an organization to file nonimmigrant and immigrant petitions for religious workers. 4 USCIS acknowledges that determination letters do not expire; it will accept determination letters from any date, but may seek more recent evidence to confirm that the exemption is still valid. Therefore, where the petitioning organization has an IRS determination letter with an older date, it is wise to include some more recent evidence of tax-exempt status, such as filings with the IRS, to maintain taxexempt status. Moreover, if you have any question whether the organizations tax-exempt status is still valid, you may refer to IRS Publication 78 to verify that the organization is still listed as a tax-exempt organization. 5 USCIS states it will verify the continuing validity of the organizations tax-exempt status, so it is a good idea for counsel to do so as well. Practice Pointer: Obtain the employers federal employer identification number and a determination letter from the IRS verifying the tax-exempt status of the petitioning religious organization under Internal Revenue Code 501(c)(3), 26 USC 501(c)(3). Practice Pointer: Catholic organizations have a unique mechanism to demonstrate both their tax-exempt status and the organizations membership in the denomination. Since 1946, the IRS has annually issued a letter to the U.S. Conference of Catholic Bishops regarding its group ruling. The group ruling letter means that any organization listed in the most recent edition of the Official Catholic Directory is covered by the groups tax-exempt ruling. 6 Submission of a copy of the most recent version of the IRS group ruling letter along with a copy of relevant page of the Official Catholic Directory is sufficient to demonstrate tax-exempt status and membership in the denomination. The Official Catholic Directory has a U.S. directory and an international directorythe latter listing dioceses throughout the worldthat can be helpful in documenting membership in the worldwide Catholic Church. Practice Pointer: At times the petitioners current address will differ from the address listed on the organizations IRS determination letter. This occurs when the petitioner has moved to a new address or used an agent to file for its tax-exempt status. In either scenario, it is prudent for the petitioner to contact the IRS and notify the agency of its new address. The IRS will then send a letter confirming the new address. Both this letter and the original IRS determination letter should be submitted to USCIS to satisfy the tax-exempt status requirement. Denomination The employer must also demonstrate evidence of membership in a specific denomination. Denomination is defined as a religious group or community of believers that is governed or administered under a common type of ecclesiastical government and includes one or more of the following: (a) a recognized common creed or statement of faith shared among the denominations members; (b) a common form of worship; (c) a common formal code of doctrine and discipline; (d) common religious services and ceremonies; (e) common established places of religious worship or religious congregations; or (f) comparable indicia of a bona fide religious denomination. 7 This definition allows religious organizations that lack a common organizational structure or governing hierarchy with other churches to serve as petitioners. From comments to the final rule, the new regulations
73 Fed. Reg. 72280. The regulations note that if an organization is tax exempt under IRC 501(d) rather than 501(c)(3), the organization cannot use the R-1 program, but other nonimmigrant visa categories under the INA may be appropriate. 5 www.irs.gov/charities/article/0,,id=96136,00.html. 6 Information regarding the Group Ruling can be found at: www.usccb.org/ogc/GroupRulingFAQ.pdf. Additionally, AILA member Carlos Ortiz-Miranda of the U.S. Conference of Catholic Bishops Legal Department is available for questions regarding the Group Ruling. 7 8 CFR 204.5(m)(5) and 214.2(r)(3).
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appear to require a demonstration of the individual organizations internal governing or organizational structure while still requiring that the organization share a common creed with other churches. 8 Practice Pointer: Work with the petitioning organization to define denomination carefully. Both Forms I-129 and I-360 include a Religious Denomination Certification that must be signed by the denominational authority. 9 The authors recommend that this certificate and the petition itself, where feasible, be signed by the highest authority possible within the denomination (e.g., bishop or chancellor) and that the practitioner include documentation or an organizational chart demonstrating the position of the individual who signed the certification on behalf of the denomination and his or her relationship to the individual church or location where the beneficiary will be assigned. Practice Pointer: Where a common governing authority is lacking, detail carefully in the petitioners letter of support how the petitioners creed or beliefs relate to other churches. Even where there is no common governing association, in order to document the common creed, provide documentation of association with churches of similar creeds. 10 Such documentation might include: (a) ministerial conferences or continuing education programs for clergy; (b) religious educator training conferences or programs; (c) retreats or spiritual development conferences for clergy, religious professionals and lay persons; (d) youth group exchanges or gatherings; and (e) administrative associations to pool resources for, e.g., health insurance, liability insurance, etc. among independent churches of similar creeds. Even if a church believes in the principle of nondenominational congregational government, it might have participated in these types of associations for support and sharing of resources. An inquiry as to whether a religious organization has participated in any of these types of relationships might help define and document the denomination of the nondenominational church. The Employer as a Petitioner of Religious Workers Forms I-129 and I-360 require the employer to provide the number of members of its denomination. Current regulations also require petitioners to provide figures on the number of Forms I-129 (R-1 supplement) and I-360 petitions filed within the past five years and the number of employees currently employed pursuant to R-1 status or based on I-360 Special Immigrant petitions. 11 Practice Pointer: Be specific about the number of members, explaining the source or categorization of the figure (e.g., the specific institution where the alien will be employed, the larger regional denominational organization, the worldwide religious organization, and so on).
73 Fed. Reg. 72280281. Note that the plain language of both 8 CFR 204.5(m)(8)(i)(iii) and 214.2(r)(9)(i)(iii) require the Religious Denomination Certificate where the petitioner is a bona fide organization affiliated with a religious denomination if the organization was granted tax-exempt status under 501(c)(3), categorized as something other than a religious organization (as opposed to 8 CFR 204.5(m)(8)(i)(ii) and 214.2(r)(9)(i)(ii), which relate to organizations with a currently valid IRS determination letter that the organization itself is tax exempt as a religious organization or that it is tax exempt under a group ruling.) Although the Religious Denomination Certification is not technically required of organizations that have their own tax-exempt status or are included in a group ruling, in practice, practitioners have tended to submit the Religious Denomination Certification for all petitioning organizations, and U.S. Citizenship and Immigration Services (USCIS) adjudicators seem to expect that it will be submitted with each petition. 10 In a recent case (Matter of [name not provided], WAC 0709753288 (AAO May 22, 2009)), the Administrative Appeals Office (AAO) applied the final rule to a case filed before its publication, consistent with the preamble of the final rule. The AAO affirmed a service centers decision that Pentecostal is not a religious denomination, since the term describes a number of distinct and independent Christian denominations. Absent the denominational relationship between the petitioner and the beneficiarys foreign employee, the petitioning organization could not show that the beneficiary met the required two-year membership in the denomination required for a religious worker. The AAO held that the petitioner failed to establish that the two churches share a common type of ecclesiastical government. Unfortunately, the service centers decision relied heavily on the prior regulation and the petitioners failure to establish an institutional relationship or common governing body. The AAO decision only cites the new regulation and, without analysis, affirms the service centers decision on the basis that the record fails to show that the two churches have a common type of ecclesiastical government. 11 The number of petitions filed includes only petitions filed with USCIS, not R-1 visa applications submitted to U.S. consulates abroad or to ports of entry under prior regulations.
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Practice Pointer: It is often helpful for large organizations to centralize the handling of religious worker petitions to ascertain these required quantities. When one attorney or law firm files all the immigration petitions for a particular religious group or denomination, the lawyer may become that point person. Practice Pointer: USCIS fraud investigators in a particular region become familiar with organizations that regularly file religious worker petitions. If the organization deviates from its regular filing pattern (e.g., a different person is signing the forms), USCIS fraud investigators may call or conduct a site visit. The Job Offered Terms of Employment The R-1 or Special Immigrant petition requires a clear job description that should include the number of hours the beneficiary will work. The regulations require an R-1 religious worker to work at least 20 hours per week 12 and a special immigrant religious worker to work on a full-time basis (at least 35 hours per week). 13 The petition should also establish the location where the religious worker will be assigned. Practice Pointer: Name as many sites as possible where the beneficiary will be employed so that USCIS can conduct its required site visits. Finally, establish the compensation that will be provided to the religious worker, including salary and any nonmonetary compensation. If the petitioner anticipates that the alien will be self supporting, the regulations provide specific guidelines about when such a situation is acceptable. 14 The Job Offered Qualifies as Religious Work The employer must demonstrate that the job offered qualifies for R-1 status pursuant to the Immigration and Nationality Act (INA) 101(a)(15)(R) and 8 CFR 214.2(r), or for Special Immigrant Religious Worker status pursuant to 8 CFR 204.5(m). Specify whether the beneficiary is seeking admission as a minister15 or because of religious vocation16 or religious occupation.17 An alien seeking admission as a minister should provide his or her certificate of ordination or similar documents, as well as evidence of any course of prescribed theological education at an accredited theological institution that is normally required by the particular petitioning denomination. Transcripts, curriculum, or other documentation are suggested by USCIS on its Form M-737 Optional Checklist. 18 Where a denomination does not prescribe a specific course of education, you will need to document the
8 CFR 214.2(r)(1)(ii). 8 CFR 204.5(m)(7)(vii). 14 8 CFR 214.2(r)(11)(ii). 15 Minister means an individual who: (a) is fully authorized by a religious denomination, and fully trained according to the denominations standards, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that denomination; (b) is not a lay preacher or a person not authorized to perform duties usually performed by clergy; (c) performs activities with a rational relationship to the religious calling of the minister; and (d) works solely as a minister in the United States, which may include administrative duties incidental to the duties of a minister. 8 CFR 214.2(r)(3). 16 Religious vocation means a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of vocations include nuns, monks, and religious brothers and sisters. 8 CFR 214.2(r)(3). 17 Religious occupation means an occupation that meets all of the following requirements: (a) the duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination; (b) the duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination; (c) the duties do not include positions which are primarily administrative or support, such as janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar positions, although limited administrative duties that are only incidental to religious functions are permissible; and (d) religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incident to status. 8 CFR 214.2(r)(3). 18 www.uscis.gov/files/form/m-737.pdf.
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denominations requirements for ordination to minister, explain the duties that are authorized by virtue of ordination and the denominations levels of ordination, if any. Of course, the beneficiary must then provide evidence that he or she has completed the requisite steps for ordination into the denomination. The evidentiary requirements listed on the M-737 for ministers in denominations without a prescribed educational course are good guidelines for documenting the qualifications of foreign nationals seeking admission based on a religious vocation or occupation. Documentation of the steps needed to achieve the required education or spiritual training will be needed (e.g., for those seeking admission based on vocation, a letter from a religious superior of the religious order) and the beneficiary will also need to obtain documentation that he or she has completed each of the requisite steps. The Beneficiary The beneficiary of the I-129 Nonimmigrant Religious Worker petition for R-1 status will be required to show that he or she has been a member of the denomination for at least two years. Documenting this element is somewhat easier in denominations in which membership is marked with ceremonies at specific phases of life and such ceremonies are documented through certificates or otherwise recorded on paper. Where a religious worker has belonged to a given religion since birth or early in life and no such certificates are typically given, the authors experience has been that a detailed letter from a member of the clergy of he denomination will usually suffice. A statement from the petitioner alone might be sufficient, but such a statement should reference the steps taken to verify the beneficiarys membership in the denomination outside the United States. Where the religious worker has received formal religious training in denominational institutions, certificates, diplomas, or other documents verifying that training can also provide circumstantial evidence of membership in the denomination. If a foreign national is coming to the United States in R-1 status from the outset, it is helpful, if possible, to request that he or she obtain confirmation of past experiences in the home country before departing for the United States. The confirmation will then be available once the foreign national has completed two years of experience as a religious worker in the United States and begins the process of filing Form I-360. In addition to demonstrating the principal foreign nationals credentials and qualifications, and obtaining the basic biographic information required for the principal beneficiary and his or her derivatives, it is vital also to obtain a detailed immigration history for each member of the family, including: All U.S. visas ever issued to the foreign national and each family member; I-94 cards ever issued to the foreign national and each family member and still in their possession; Approval notices ever issued to the foreign national and each family member; All stamps placed in passports for the foreign national and each family member; All prior petitions ever filed for the foreign national and each family member; and For R-1 extensions and I-360s particularly: tax returns, including all W-2 and 1099 forms. Preparing the Submission A petition for a nonimmigrant religious worker is filed on Form I-129 with the R supplement (which includes the attestations required by 8 CFR 214.2(r)(8)). The current filing fee is $325. All R-1 petitions are currently processed at the California Service Center, regardless of where the foreign national will be employed. In addition to the filing fee, Forms G-28, and I-129 and the R supplement, the petition should include: A letter from the petitioner; Information showing the petitioners membership in a denomination; Information showing the denominations requirements for entry into the position (e.g., requirements for ordination, profession of vows, or the religious occupation); Documentation of the employers tax-exempt status or of the fact that it would meet the criteria for recognition as a tax-exempt organization; Information regarding the salary or nonmonetary compensation to be provided to the foreign national;
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Documentation of the foreign nationals qualifications for the position as minister or in a religious vocation or occupation; and Documentation of the foreign nationals immigration history (if any). Premium Processing Premium processing is available for nonimmigrant religious worker petitions (not for Form I-360 Special Immigrant petitions). Premium processing is available where the petitioner has successfully completed a site visit at the location where the beneficiary will be employed. Upon receipt of a Form I-907 for an R-1 petition, USCIS will search its system to determine whether a successful site inspection has occurred. If so, it will accept the Form I-907 and the corresponding fee; if not, the request and fee will be returned to the petitioner. USCIS recommends including a Form I-797 approval notice for any prior petition that prompted the earlier site visit, to assist the service center in determining whether a successful site inspection has occurred. 19 SITE VISITS USCIS requires on-site inspections of petitioning organizations in order to combat fraud. 20 Site visits are usually conducted by the fraud detection unit of the local USCIS field office but may be conducted by government contractors or local police. All fraud inspectors use an audit compliance sheet to conduct their investigation; it sets out what questions will be asked and what locations and documentation will be reviewed. Use of the Audit Compliance Sheet assures consistency among site investigations and assures contemplation of all attestations required by religious worker petitions. Site visits may include a tour of the religious organizations facility, inspection of the employers records, and interviewing of officials or personnel at the place of employment. It is important that advocates be available to petitioners throughout the process. Practice Pointer: Site visits may be scheduled or unannounced, making advanced preparation essential. Provide clients with written guidelines regarding site visits no later than the time of filing the religious worker petition. Explain who USCIS officers may interview, who should be notified of the pending petition, and which senior person in the organization should be notified when the site inspector arrives. Practice Pointer: The regulations do not set timeframes for completion of site visits. No official protocol exists for requesting a site visit at this time. Although the California Service Center (CSC) is currently responsible for contacting the local USCIS field office to complete the site visit, some advocates report that if a site visit is not timely completed it is helpful to attend an Infopass appointment at the local USCIS field office to determine if the CSC has contacted the office to initiate the site visit, as these inquiries may prompt USCIS to take action. Practice Pointer: Sometimes USCIS utilizes Google Earth or Google Search to investigate the petitioners location. Prior to submitting a religious worker petition, advocates should conduct similar research to ensure the online information is accurate and complete. At times, if the petitioners website is detailed and its information is consistent with the materials submitted with the religious worker petition, USCIS may deem a physical site visit unnecessary. RESPONDING TO A REQUEST FOR EVIDENCE Responding to USCIS Requests for Evidence (RFEs) requires careful reading, patience, creativity, and attention to detail. A thorough, organized and complete RFE response should overcome USCIS concerns and result in the successful adjudication of the petition. Practice Pointer: Ensure timely response to the RFE by immediately calendaring the due date in your case management system and notifying the client of the deadline. 21
Published on AILA InfoNet at Doc No. 09072067 (posted July 20, 2009). 8 CFR 204.5(m)(12) and 214.2(r)(16). 21 USCIS issued the final rule, effective July 18, 2007, giving adjudicators flexibility as to the time given to respond to the RFE. Neufeld Memo, June 1, 2007, HQ 70/11/70/12, Removal of the Standardized Request for Evidence Processing Timeframe.
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Practice Pointer: Reference the statutory and regulatory requirements while reviewing the RFE. USCIS checklist is particularly useful. 22 Practice Pointer: Make two copies of the RFE. Place the original, which will be submitted to USCIS with the RFE response, and one copy, in the file. Read the second copy thoroughly marking comments and ideas directly on the request and highlighting the information and evidence USCIS requests. Practice Pointer: Create an outline of your response. Organize your response in the same order in which USCIS requested the information in the RFE. If the USCIS officer inadvertently requests information or documentation that is irrelevant to the petition, respond respectfully, explaining why the information is not required, and citing any relevant authority or guidance on the subject. Practice Pointer: It is useful, especially when responding to a lengthy RFE, to quote the exact language used by the officer in the RFE and respond accordingly. Practice Pointer: If primary evidence is not available, work with your clients to assess carefully what secondary evidence can be used to overcome USCISs concerns. A good example in the religious worker context is documenting the petitioners ability to compensate the beneficiary when the petitioner does not pay a salary or issue a W-2 form. USCIS generally uses salary evidence to establish the regulations compensation requirements, and where the beneficiary receives a minimal salary, USCIS may question the petitioners ability to compensate the beneficiary, whether the beneficiary will become a public charge, and/or whether the beneficiary will actually meet the minimum number of work hours required by the regulations. In these circumstances, representatives should speak with the petitioner about what benefits the organization will provide to the beneficiary in addition to salary. If one benefit is housing, include photographs of the house and proof of ownership or rental with the RFE response. If a benefit is use of a car that is insured, include title and insurance documentation with the response. If comprehensive health coverage is extended to the beneficiary, include copies of the policies. Have a certified public accountant provide a letter setting out the value of these benefits. By providing this type of secondary evidence, petitioners should be able to satisfy the statutory and regulatory requirements. Practice Pointer: When compiling the RFE response, place the original RFE on top followed by the attorney transmittal letter. Address the RFE to the specific post office box number noted on the RFE. Prepare an index of documents and organize evidence in the same order in which it is requested in the RFE. If USCIS requests documents or evidence included in the original submission, respectfully reference the appropriate tab or page in the original submission; alternatively, indicate that the requested materials were included in the original submission and include additional copies of the requested evidence in the RFE response. CASE APPROVAL AND VISA ISSUANCE When a Form I-129 petition is approved, 23 USCIS issues a Form I-797 Approval Notice authorizing employment for a period of 30 months, provided that the total period of time spent in R-1 status will not exceed five years. 24 The Form I-797 is presented to the U.S. consulate abroad, or, in the case of Canadian citizens, at the port of entry. 25 The process follows standard procedures for issuance of a visa typically available on consulate websites. The process includes the online filing of Form DS-160, payment of the applicable fee, and a consular appointment. 26 Petition approval does not guarantee visa issuance and the beneficiary should be prepared to establish eligibility for the visa at the consular interview.
www.uscis.gov/files/form/m-737.pdf. If the petition is denied, appeal of the decision is available under 8 CFR 103.3. 24 INA 101(a)(15)(R)(ii), 8 CFR 214.2(r)(5). 25 8 CFR 212.1(a)(1). 26 Each post procedure can be found in AILAs The Consular Practice Handbook (AILA 201011 Ed.) or on DOSs website at http://usembassy.state.gov. Post procedures frequently change so consult the appropriate website immediately prior to the consular appointment.
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Practice Pointer: At the consular interview, the beneficiary should be familiar with the details of the position and supporting materials submitted to USCIS. The consular officer may question the beneficiary about the nature of his or her religious work, as well as the beneficiarys experience and qualifications to fill the religious worker position. The beneficiary should also have a recent letter from the petitioner confirming the offer of employment. The consular officer may address the issue of immigrant intent. In that event, the beneficiary will need to overcome the presumption created by INA 214(b)every nonimmigrant is presumed to be an immigrant until established otherwise. Normally, overcoming the presumption requires that the beneficiary have an unrelinquished foreign residence. However, in the case of religious workers, there is no requirement that applicants for R status establish that they have a residence in a foreign country which they have no intention of abandoning. Rather, it should be sufficient for the beneficiary to state an intention to depart the United States when the R-1 status ends, and in no event for a period to exceed five years. 27 The visa will normally be issued for the period of validity of the approved petition, unless the countrys Department of State reciprocity schedule provides for a shorter period of time. 28 In that case, the expiration of the visa will occur earlier than the petition expiration date (PED). 29 At the port of entry, the beneficiary should be admitted to the United States for the full validity period approved by USCIS on the Form I-797. This period should conform to the PED noted on the visa, and the Customs and Border Protection (CBP) officer should indicate the PED as the date of expiration of the I-94. Notwithstanding regulatory limits on admissions, practitioners still receive reports of admissions for three years, in accordance with policy under prior regulations. Practice Pointer: Although beneficiaries in possession of a valid R-1visa normally are not required to present additional documentation to CBP to establish eligibility, clients should be prepared to explain the nature of the religious work and their qualifications and experience at the port of entry. They should also be advised of the appropriate admission dates and should be counseled to check the I-94 validity dates at primary inspection to be sure that the admission is valid to the PED and not to the visa expiration date. Deferred inspection procedures can be utilized to correct CBP errors. Practitioners should be cautious of relying on admissions that exceed time specified in the regulations. Visas issued prior to November 26, 2008, which are otherwise still valid, whether based on an approved R-1 petition or not, may still be used for admission for the duration of the visas validity. In some cases, the pre-November 26, 2008, visas were issued for five years and may still have more than two years of validity. Practice Pointer: Visas issued prior to the effective date of the religious worker final rule will likely not contain PEDs. The validity date of the visa controls its use for application for admission to the United States at the port of entry. The period of admission is at the discretion of the CBP officer. 30 USCIS has stated that individuals who had been issued an R-1 visa under previous regulations should be admitted for the duration of the visa. 31 In limiting the period of admission to the duration of the validity of the visa, USCIS suggests a departure from standard CBP practice for admission in nonimmigrant categories that do not require a USCIS petition approval. Canadians who are visa exempt present the Form I-797 Approval Notice at the port of entry. Prior to November 26, 2008, visa-exempt beneficiaries were issued an I-94 valid for multiple entries. Under prior
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8 CFR 214.2(r)(15); 9 FAM 41.58 N2. The standard for satisfaction of the requirements of INA 214(b) is the same as the more lenient standard applied to E-1 and E-2 nonimmigrants. 28 In its reciprocity schedule, DOS sets forth the maximum length of visas, whether they may be single or multiple entry, and fees for each country. The schedule is found at http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3272.html. These rules are usually based on restrictions the applicants country of citizenship imposes on Americans traveling to that country. 29 The petition expiration date is noted in the lower right corner of the visa as the PED. 30 For CBP policy on periods of admission under the prior regulations, see CBP Memorandum on Guidance on Period of Admissions for Religious Workers (R-1) (Oct. 14, 2004), published on AILA InfoNet at Doc. No. 05040469 (posted Apr. 4, 2005). 31 Supplemental Questions and Answers: Final Religious Worker Rule Effective Nov. 26, 2008, Q13, published on AILA InfoNet at Doc. No. 09010663 (posted Jan. 6, 2009).
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regulation, the I-94 could be valid for up to three years. Those I-94s that are still valid may be used for entry to the United States by visa-exempt beneficiaries who are traveling to and from contiguous U.S. territories for less than 30 days 32 . Visa-exempt beneficiaries traveling to contiguous territories for more than 30 days or beyond contiguous territories are required to present a Form I-797 Approval Notice to be admitted to the United States. 33 MAINTENANCE OF STATUS Religious worker employment authorization is employer specific and change of employer or concurrent employment with a new employer will necessitate a new Form I-129 petition. However, the employee can work for more than one employer at the same time. 34 It is the authors experience that religious workers are more prone than foreign nationals in other nonimmigrant employment categories to violate their nonimmigrant status. Accordingly, where possible it is important to advise the foreign national and employer from the outset that an R-1 religious worker may be employed only by the petitioning employer, and that he or she cannot receive compensation in exchange for any other type of productive activity from a U.S. employer unless USCIS has authorized such employment in a separate, concurrent petition. If counsel does not have the opportunity to provide such advice early in the foreign nationals stay, it is important to review carefully the beneficiarys immigration history and history of employment in the United States before filing any petitions. 35 Practice Pointer: In addition to advising both employers and beneficiaries that their employment pursuant to R-1 status is valid only for employment with the petitioner, it is good practice to request annually copies of all Form W-2s and 1099 forms to ensure that beneficiaries have not inadvertently engaged in unauthorized employment and to ensure that employers are compensating the foreign national in accordance with assertions made in the initial petition. Such a practice will alert the foreign national to avoid the accrual of more than 180 days of status violation or unauthorized employment, which would render him or her ineligible for adjustment of status pursuant to INA 245(c) and ineligible for the exception provided under INA 245(k). It is also good practice to include copies of these documents with the R-1 extension and I-360 petition to document maintenance of status. Moreover, tax documents are now required in documenting at the I-360 stage that the foreign national has two years of experience as a religious worker, which, if gained in the United States, must have been gained through authorized employment. 36 STRATEGIES FOR KEEPING THE BENEFICIARY IN THE UNITED STATES The petitioning organization may at any time file Form I-360 to have the beneficiary classified as a special immigrant religious worker. Form I-360 requires the same information and documentation as the R-1 petition with the addition of evidence of the beneficiarys two years of experience as a religious worker 37 and evidence of how the petitioner intends to compensate the beneficiary. 38 The Form I-360 contains the petitioners attestations relating to the level of compensation, the source of the funds used to compensate the beneficiary, and the full-time nature of the position. If the beneficiary was employed in the United States
See 22 CFR 41.112(d). Arguably, admissions for three year, but not more than the five year limit, in accordance with policy under prior regulations are appropriate in this case. 34 8 CFR 214.2(r)(13). 35 Pursuant to 8 CFR 248.1, a nonimmigrant may apply for a change of status if he or she is continuing to maintain his or her nonimmigrant status. A failure to maintain status, including failing to file for a change of status prior to the expiration of the prior period of authorized stay may be excused if: (1) The failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; (2) The alien has not otherwise violated his or her nonimmigrant status; (3) The alien remains a bona fide nonimmigrant; and (4) The alien is not the subject of removal proceedings under 8 CFR 240. 36 8 CFR 204.5(m)(11). 37 8 CFR 204.5(m)(11). 38 8 CFR 204.5(m)(10).
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during the two years immediately preceding the filing of the Form I-360 and received salaried compensation, the Form I-360 must be accompanied by IRS documentation, such as a Form W-2 or copies of income tax returns. 39 The regulation outlines the evidence required to establish that the beneficiary received nonsalary compensation or received no salary during those two years. 40 Practice Pointer: The Form I-360 petition should be accompanied by all available IRS documentation to support the petitioners ability to pay and the beneficiarys two years of experience in the United States. 41 The beneficiarys W-2 statements may be submitted to satisfy both the two-year experience requirement and the ability to pay requirement. If available, documents such as the IRS Form 990, audited financial statements, bank statements, brokerage statements and other similar documents, which may be certified by the petitioners officer, accountant, or counsel, should be submitted to establish evidence of how the petitioner intends to compensate the beneficiary. When the compensation includes room and board, documentation that room and board will be provided, such as a lease, deed and photographs of the property should be provided. Evidence of R-1 status for the beneficiary for the two-year period prior to application must also be submitted if applicable. An R-1 nonimmigrant may stay in the United States for up to five years. 42 Unlike workers in the H-1B classification, R-1 religious workers may not extend this period based on an approved petition for special immigrant religious worker (Form I-360) or approved labor certification and I-140 petition. It is therefore critical for an R-1 religious worker who wants to remain in the United States beyond the five-year limit to strategize for future permanent residence or other nonimmigrant status. For a period of time, beneficiaries facing the end of the five-year limit were able to file a concurrent Form I-485 application for adjustment of status and a Form I-360, effectively permitting them to remain in the United States while the I-360 was pending. This opportunity was available following a permanent injunction issued by the district court in Ruiz-Diaz v. United States (W.D. Wash. 2009). 43 From June 11, 2009, to November 8, 2010, the CIS accepted concurrently filed Form I-360 petitions and Form I-485 applications pursuant to the Ruiz-Diaz order. On October 13, 2010, the Ninth Circuit reversed the district court and vacated the injunction. 44 As of November 8, 2010, USCIS modified its procedures and no longer accepts concurrent filings of Form I-360 petitions and Form I-485 applications. 45 At this time, any I-485 application whose underlying basis is a I-360 petition for a special immigrant religious worker must be filed based on an approved Form I-360 petition. R-1 religious workers who are coming to the end of their five-year limit may consider other temporary classifications, such as H-1B or B-1/2, in order to remain in the United States until an I-360 petition is approved. Alternatively, the religious worker may leave the United States for a period of one year and then reapply for R-1 status for an additional five years. A traditional labor certification followed by a Form I-140 petition may also be an option for obtaining permanent status for the beneficiary. However, unless the position qualifies for EB-2 classification, it is unlikely, given the current quota limitations in EB-3 classification, that the beneficiary will be able to file Form I-485 for adjustment of status in a timely manner. Unlike H-1B, an R-1 may not extend status beyond the five-year limit based on a pending application for alien employment certification or an approved I-140 petition. An H-1B petition would permit the R-1 religious worker to remain in the United States for an additional six years, assuming no prior H-1B stay. The limitation on the use of an H-1B petition for a religious worker is
8 CFR 204.5(m)(11)(i). 8 CFR 204.5(m)(11)(ii)(iii). 41 The taxation of religious organizations is a complex subject. See IRS Publication 1828, Tax Guide for Churches and Religious Organizations available at http://irs.gov./pub/irs-pdf/p1828.pdf. 42 INA 214.2(b)(1); 8 CFR 214.2(l)(6). 43 See Ruiz-Diaz v. U.S. Order Directing Entry of Judgment, published on AILA InfoNet at Doc. No. 09061234 (posted June 12, 2009). 44 Ruiz-Diaz v. U.S. (9th Cir. No. 09-35734). 45 See AILA InfoNet at Doc. No. 10102830 (posted Oct. 28, 2010).
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that the beneficiary might not have a college degree or the three-for-one equivalent of a degree recognized in the H-1B regulations. 46 Additionally, the H-1B classification requires that the position be a specialty occupation, one that normally requires a college degree for entry. 47 Because many religious worker positions are performed by persons without college degrees, the position might not qualify as a specialty occupation. Finally, the prevailing wage requirements of H-1B may put an H-1B petition out of financial reach of the petitioner. The O*NET online wage library contains at least five classifications in religious work, including: (a) clergy; (b) directors; (c) religious activities and education; (d) philosophy and religion teachers, postsecondary; and (e) directors, religious activities, and education. 48 The O*NET prevailing wages for these categories should be considered carefully before the possibility of an H-1B petition is dismissed because of financial issues. 49 Another option for religious workers reaching their five-year limit is B nonimmigrant status. Members of a religious denomination may enter the United States in B status to do missionary work for the denomination, engage in charitable work, or serve as a minister on pulpit exchange or on evangelical tour. 50 These options are limited in scope to individuals who are not remunerated in the United States and maintain a foreign residence that they do not intend to abandon. Each extension-of-stay application may be approved for one year. 51 Clearly, if a Form I-360 has been filed, that would have to be disclosed to USCIS in connection with an application for change of status. Practice Pointer: A religious worker may consider an initial entry in B status as a means of delaying the start of the R-1 five-year time period. A B visa application or an application for entry or extension for religious or missionary work in B status must clearly explain how the applicant will be supported in the United States and the expected duration of the assignment. A written supporting letter from the religious organization or denomination is strongly recommended. CONCLUSION Religious workers and organizations are unique stakeholders in the immigration system. Effective advocates must understand the new regulations requirements and effectively communicate them to their clients; only then can a case plan be clearly developed and proper documentation produced and organized for submission to USCIS. Advocates must anticipate roadblocks to successful adjudication, warn their clients in advance of these issues, carefully oversee the preparation and adjudication of the case, and continue to monitor the beneficiarys status after approval. If advocates take these steps, religious workers and their petitioners can overcome, and hopefully dispel, USCIS fraud concerns.
8 CFR 214.2(h)(4)(iii)(D)(5). 8 CFR 214.2(h)(4)(ii). 48 www.onetonline.org. 49 www.flcdatacenter.com. 50 The Foreign Affairs Manual (FAM) contains several provisions for entry into the United States in B category for religious volunteers and missionaries who do not receive remuneration from a U.S. source. 9 FAM 41.31 N9.1.
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8 CFR 214.2(b)(1); USCIS Adjudicators Field Manual at ch. 30.2(c)(3)(D).

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QUESTIONNAIRE FOR RELIGIOUS WORKER PETITION Name of Petitioner/Employer: ______________________________ Name of Beneficiary: _____________________________ Information needed from Employer: Federal employer ID number (please provide evidence of tax-exempt status) Name and title of contact person Name and title of person signing documents on behalf of the organization/denomination Aliens job title Detailed description of the aliens proposed daily duties Salary: Description of aliens proposed/current salary and Non-monetary compensation: compensation Proposed hours worked per week (must work at least 20 hours) Address(es) where alien will be employed (use separate sheet if needed) Number of members of the petitioner Number of employees working at the location where the alien will be employed. (Please fill out table on attached sheet) How many religious workers petitions have you filed within the past five years (either R-1 nonimmigrant or 1. 2. I-360 Special Immigrant petitions)? R-1 ____________ I-360 ___________ hrs PT / FT
How many religious workers do you currently employ or have you employed within the past five years, 1. R-1 _____________ pursuant to R-1 nonimmigrant or I-360 Special 2. I-360 ____________ Immigrant Petitions?
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Provide the job title and a summary of the type of responsibilities of those employees who work at the location where the Alien will be employed. If additional space is needed, please use separate sheet of paper. Position Summary of the Type of Responsibilities for That Position
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Information needed from Beneficiary: Family name(s): __________________________ Full legal name of beneficiary Any other names used (including maiden name or spelling variations) U.S. address Address outside the United States Date of birth (mm/dd/yyyy) Month: _______ Day: ________ Year: _______ City: __________________________________ Place of birth Country of citizenship Gender U.S. Social Security number (if any) A# (if any) Consulate or port of entry to be designated Any immigrant petitions ever filed by an employer, family member or anyone else?
Date entered _______ Date departed_______ Status _________
First name: ______________________________ Middle name: ____________________________
Province: ______________________________ Country: _______________________________ Male ________ Female __________
City _____________ Country ____________________
Any prior stays in the United States? (continue on additional sheet if necessary)
Date entered _______ Date departed_______ Status _________ Date entered _______ Date departed_______ Status _________ Date entered _______ Date departed_______ Status _________ Date entered _______ Date departed_______ Status _________
Single (never married) ____________________ Marital status Married ________________________________ Divorced _______________________________ Widowed _______________________________ Name: __________________________________ Maiden name: ___________________________ Date of birth: ____________________________ Place of birth: ___________________________ Spouse Country of citizenship: ____________________ SS# _________________ A# ________________ Currently residing with beneficiary? _________ If not, where? ___________________________ ________________________________________ _________________________________________
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Name: __________________________________ Maiden name: ___________________________ Date of birth: ____________________________ Place of birth: ___________________________ Children Country of citizenship: ____________________ SS# _________________ A# ________________ Current residing with beneficiary? _________ If not, where? ___________________________ ________________________________________ _________________________________________ When did principal beneficiarys membership in the denomination begin? Explain (e.g., at birth, at another age?) To which religious organization abroad does the alien belong? Name of denomination: Name of diocese: Name of parish:
Please provide copies of: _________All U.S. visas ever issued to alien and each family member _________ I-94 cards ever issued to alien and each family member _________ Approval notices ever issued to alien and each family member _________ All stamps placed in passports ever issued to alien and each family member _________ All prior petitions ever filed for alien and each family member _________ Certificates/evidence showing membership in the denomination _________ Evidence of aliens qualifications for the position offered (Diplomas, certificates of ordination, certificates showing training) _________ Evidence of prior qualifying experience as a religious worker
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FORM M-737, OPTIONAL CHECKLIST FOR SPECIAL IMMIGRANT RELIGIOUS WORKERS FILING FORM I-360
SPECIAL VISA ISSUES RELATING TO REPRESENTATION OF PROFESSIONAL ATHLETES

by Steven M. Ladik, Laurie Volk, and Tarik H. Sultan *
The world of professional sports would look very different without foreign athletes, such as Dirk Nowitzki, Vladimir Guerrero, or Alexander Ovechkin. Lawyers first venturing into the alphabet soup of visas for athletes can quickly be overwhelmed by the multitude of visa categories and sub-categories that could apply to their client. The following materials, including the reference chart at the conclusion of the advisory, are intended to help the attorney select the best visa choice for his or her clients situation and prepare a successful case. WHICH IS THE BEST TEMPORARY VISA CATEGORY FOR A PROFESSIONAL ATHLETE: B-1, VWP, O-1A, O-1B, OR P-1A? Foreign athletes fit in four possible visa categories: B-1 Visa Waiver Program (VWP), P-1A, O-1A, and O-1B. To determine which visa category is appropriate for a foreign national (FN) athlete, it is useful to first ask a few key questions: Is the FN an individual athlete or part of a team? Does the FN actually compete himself or herself? At what level will the athlete be competing? Does the FN or team have a record of competing in the sport in the home country, the United States, or a third country that can be documented? Is the individual athlete or team ranked internationally, or at any other level? Will the athlete be employed, or is he or she coming only to compete at one or more events for prize money only? B-1 Visa or Visa Waiver Program (VWP) U.S. immigration laws treat a paid athlete as a worker, requiring work authorization under an appropriate visa category. However, if the foreign athlete is unemployed, but coming to the United States to compete briefly at one or more events for prize money only, the athlete may visit on the B-1 visa or VWP. 1 The B-1 visa category also permits a foreign athlete to enter briefly to receive awards, engage in related promotional
Steven M. Ladik is a partner in the Dallas office of Berry Appleman & Leiden LLP, a corporate immigration law firm. Mr. Ladik is a past member of the AILA Board of Governors and a past president of AILA and AILF. Mr. Ladik currently serves as outside immigration counsel to the PGA Tour, the Texas Rangers baseball organization, the Dallas Mavericks NBA franchise, and the National Hockey League. He is certified in immigration and nationality law by the Board of Legal Specialization of the State Bar of Texas. Laurie Volk joined Trow & Rahal as an Of Counsel attorney in 2007 after having practiced immigration and nationality law for more than 10 years. She specializes in representing athlete riders, trainers, and managers in all the major horse sports (show jumping, dressage, eventing, fox hunting, polo, and the Western disciplines.) She received her J.D. and MBA degrees from the School of Law and Anderson School of Management, University of California, Los Angeles, in 1981. She also has a degree in international business from the Ecole Supierieur des Sciences Economiques et Commerciales (Higher School of Economic and Commercial Sciences) in Cergy-Pontoise, France. Ms. Volk has a B.S. degree in Political Science/International Relations from the University of California, Los Angeles. Tarik H. Sultan is a shareholder in the firm of Wolf & Sultan P.C. in Tucson. He has served on the National Board of Governors for AILA, as well as on numerous national liaison committees with the Departments of Labor, Justice and Homeland Security. His practice focuses on all areas and aspects of immigration law, with a particular emphasis in employment-based visas and employer sanctions defense. Mr. Sultan is listed in The Best Lawyers in America, Superlawyers, and Martindale Hubbells Bar Register of Preeminent Lawyers. 1 See 9 Foreign Affairs Manual (FAM) 31.41 N9.4.
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activities, or participate in unpaid try-outs. Athletes applying for a B-1 visa are faced with the same general issues of bona fide nonimmigrant intent faced by any applicant for a B-1 visa. Similarly, if the athlete is otherwise eligible for the VWP, he or she may enter the United States for periods of 90 days or less as long as he or she is competing for prize money and otherwise not employed. Since this is an obscure exception to the normal B-1 rules of admission, the athlete should carry a letter from the team or counsel outlining the basis for his or her eligibility. P-1A Visa for Internationally Recognized Athletes In general, the P-1 classification is available to an internationally recognized individual athlete competing individually or as part of a U.S. team. It is also available to multiple athletes who are part of a group or team that is internationally recognized. 2 A team means two or more individuals. 3 The athlete must be coming to the United States temporarily for the purpose of competing or performing in a competition or event that requires an athlete of this caliber. It can include short trips, promotional appearances, an entire season or a multi-year contract. The FN must maintain a foreign residence abroad that he does not intend to abandon, but the regulations recognize dual intent. 4 Note that while a P-1 can only be admitted for a period of five years maximum with another five-year extension available, recent guidance from U.S. Citizenship and Immigration Services (USCIS) has confirmed that an athlete may gain an additional 10 years of eligibility by simply departing the United States and reapplying. 5 P-1A Standard Internationally recognized means a high level of achievementevidenced by a degree of skill and recognition, substantially above that ordinarily encountered, to the extent such achievement is renowned, leading, or well-known in more than one country. 6 Evidence Required in Support of a P-1A Petition The evidence submitted for the P-1 should be in the form of copies of the written contract or written summary of terms presented in affidavits, expert opinions, awards, an oral contract, or similar documentation. The petition must include: A copy of the contract with the employer, agent, or sponsor, or a summary of terms if written contracts are not used; An itinerary of competitions where the FN athlete expects to compete; A consultation with an appropriate labor organization for the sport, or if there is no labor organization, a request for a waiver; and Any two of the seven evidentiary criteria listed on the chart below. Rankings of an individual athlete or a team at the international level are persuasive, but, sometimes, only national or regional rankings are available. Depending on the sport, it may be difficult to obtain a detailed written statement from the U.S. organizing body. Written statements from experts or sports media may be the easiest to obtain. To be persuasive, however, such statements must clearly establish the authors credentials and detail exactly how and why the FN is internationally recognized. There are special provisions allowing P1 status for minor league athletes in the Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006 (COMPETE Act). 7
8 CFR 214.2(p)(1)(i). 8 CFR 214.2(p)(3). 4 8 CFR 214.2(p)(15). 5 USCIS Memorandum, D. Neufeld, Procedures for Applying the Period of Authorized Stay for P-1 Nonimmigrant Individual Athletes (Mar. 6, 2009), published on AILA InfoNet at Doc. No. 09030967 (posted Mar. 9, 2009). 6 8 CFR 214.2(p)(3). 7 Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006 (COMPETE) Act, Pub. L. No. 109-463, 120 Stat. 3477 (2006).
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O-1 Visa Category for Athletes of Extraordinary Ability The O-visa category is bifurcated between the O-1A in athletics and O-1B for broadly defined artists. O-1A Standard The O-1A visa is available to a person who has extraordinary ability in athletics, which has been demonstrated by sustained national or international acclaim. 8 O-1A status is appropriate only for the highest level athletes. The FN athlete must be entering the United States to continue to compete at that level, although (in contrast to P-1), there is no requirement that the employer needs an athlete of O-1 caliber for the position. In contrast to the P-1, the FN is not required to have a foreign residence. Dual intent is recognized. Evidence Required in Support of an O-1A Petition The O-1A petition must include: A copy of the contract with the employer, agent, or sponsor, or a summary of terms; An itinerary of competitions where the FN athlete will compete, including the date, location, and type of competition; A detailed advisory opinion from the organizing body of the sport; and Receipt of a major internationally recognized award, such as a Nobel Prize, or Any two of the six criteria listed below. O-1B Standard The O-1B classification is also available to a person of extraordinary ability in the arts where a different, less rigorous standard than for the O-1A is applied. See attached chart. Extraordinary ability in the arts means only distinction. 9 The FN must have established a high level of achievement in the field evidenced by degree of skill and recognition substantially above that ordinarily encountered. 10 The FN must be renowned, well-known, or leading in his or her field. 11 The arts are defined broadly for O-1B to include any field of creative activity or endeavor, such as fine arts, visual arts, culinary arts or performing arts 12 and may include athletes for which the criteria for the P-1 visa are difficult or impossible to establish, e.g., a first-year professional athlete, a sport-like activity, a sport without teams or rankings, or even a sport without conventional competitions or conventional awards and prizes. Evidence Required in Support of the O-1B The O-1B petition must include: A copy of the contract with the employer, or a summary of terms; A detailed advisory opinion from organizing body for sport The regulations at 8 CFR 214.2(o)(3)(iv) essentially provide three means for meeting the O-1B standard: - Receipt or nomination for a major prize, such as an Academy Award; - At least three of any six designated criteria that primarily apply to the performing arts, listed on chart below; - By means of comparable evidence if the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the beneficiarys occupation, the petitioner may submit comparable evidence in order to establish the beneficiarys eligibility. 13
8 9
8 CFR 214.2(o)(1)(ii)(A)(1). 8 CFR 214.2(o)(3)(ii). 10 Id. 11 Id. 12 Id. 13 8 CFR 214.2(o)(3)(iv)(C).

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It is important to note that the six criteria are framed in language that applies primarily to the traditional performing arts. Thus, when seeking O-1B classification for a FN athlete, it is almost always necessary to rely on comparable evidence. Compare and Contrast P-1, O-1A, and O-1B If the individual FN athlete will not personally engage in competition in the United States, the P-1A category is inappropriate. The individual P-1A athlete must actually compete, now and in the future. If he or she assists a P-1 individual athlete, the petitioner should consider him or her for the P-1S essential support visa. However, if he or she is a trainer, coach, or other individual simply associated with the sport, the P-1A is not appropriate. Instead, he or she should consider the O-1A or O-1B visa options, depending on whether the field can be classified as an art, as broadly defined under the O-1B regulations. 14 If the FN athlete will compete in the United States, and if he or she has a truly outstanding record of competition, then the petitioner may consider the O-1A category, even though the standard is extremely high. Note, however, that the P-1A visa may always be preferable to the O-1 since it has a lower standard and can be issued for five years rather than the O-1s three-year maximum period of validity. Furthermore, the P-1A can be extended for five years, while the O-1 can only be extended in one-year increments. The O-1B standard for the arts is far more flexible, not only because the standard of distinction or prominence is a lower one than the O-1A standard, but comparable evidence can be used to establish it. Here, you must distinguish the field of endeavor as an art as opposed to pure athletics. Some athletic fields, such as figure skating, can qualify as an art or an athletic event. Nevertheless, the petition must provide some form of documentary evidence for each criterion. Assertion by counsel does not constitute evidence. Process for Ps and Os The petitioner must file a Form I-129, Petition for a Nonimmigrant Worker, including the O and P Supplement, with the appropriate Service Center. The petition can be filed as much as one year in advance of the athletes start date. Coaches and Support Personnel Many athletes require the support of various personnel in pursuing their activities in the United States. The P-1S classification is designed specifically for support personnel to accompany athletes to the United States. To qualify, the person must perform support services which cannot be readily performed by a United States worker and which are essential to the successful performance of services. 15 By regulation, support personnel must also submit a consultation letter from the relevant labor organization that demonstrates essentiality, critical skills and experience with the principal petitioner. 16 A copy or summary of the contract for support services is also required. 17 The requirement of essentiality is adjudicated flexibly by the regional Service Centers. Common support personnel include managers, coaches, assistant coaches, scouts, trainers, or other team officials. However, the P-1S classification can involve any person who meets the requirements, including but not limited to translators, tour managers, or caddies (in the case of professional golfers). A single professional athlete may require multiple support personnel. For an applicant to obtain P-1S status, however, there must be at least one P-1A athlete being supported. In other words, a team may not hire a foreign national coach into the P-1S classification, unless there is at least one foreign athlete on the team. If not, the coach would need to consider an alternative classification, such as O-1.
14 15
8 CFR 214.2(o)(3)(ii). 8 CFR 214.2(p)(3). 16 8 CFR 214.2(p)(5)(iii)(B)(1)(2). 17 8 CFR 214.2(p)(4)(iv).

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Note: Although a P-1 nonimmigrant petition filed on behalf of the athlete may be granted for a period of up to five years, the initial petition validity period for essential support personnel under the P-1S classification may not exceed one year. 18 After the initial year, the P-1S support person may seek an extension of status, based on an approved petition, for a period of up to five years, as well as further extensions of stay to support the P-1 individual athlete. 19 In practice, note that USCIS will not normally approve a P-1S extension beyond the validity date of the P-1 principal athlete. O-1 athletes may also form the basis for their support personnel. The O-2 classification is for foreign nationals who will accompany and assist the performance of the O-1 athlete. 20 O-2 support personnel must have critical skills and experience with the O-1 athlete that are not of a general nature 21 and cannot be performed by U.S. workers. To be eligible, they must demonstrate essentiality, critical skills, as well as past experience with the O-1 athlete. 22 This experience requirement is somewhat difficult to define in practice. Finally, O-2 support personnel must submit a consultation letter from the relevant labor organization that demonstrates the nature of the work to be done and the qualifications of the support personnel. 23 BENEFITS AND IMPACT OF THE COMPETE ACT Before the enactment of the COMPETE Act, minor league athletes were limited to the use of the H-2B visa unless they were under contract to a major league team. The COMPETE Act expands the definition of athletes eligible for P-1A nonimmigrant status by amending INA 214(c)(4) and 204(i)(2) to include an athlete employed by a team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10 million per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or any minor league team that is affiliated with such an association. After this amendment to the INA, the H-2B visa is rarely used unless an athlete competes in a minor sports league that does not meet this definition. Additionally, the COMPETE Act provides that an immigrant visa petition approved on behalf of a professional athlete must remain valid after he or she changes employers, if the new employer is a team in the same sport as the team that was the employer who filed the petition. This provision is a substantial benefit for athletes who are frequently traded or released and acquired by another team before they can complete the immigrant visa process. PRACTICE POINTERS Collecting Documents Professional athletes, perhaps more than any other type of client, pose a special challenge for the immigration practitioner when it comes to collecting necessary documents. Aside from the usual language barriers, professional athletes cases are especially hard to coordinate due to the athletes schedules. International athletes travel a great deal, and lead excessively regimented lives. It is often better to seek documentation through other sources, such as team operations directors, agents, spouses, and personal assistants, who often have direct access to athletes and can obtain required information quickly, particularly when the athlete is traveling, training, or abroad. Practice Pointer for Gathering Documents: Practitioners should start the process of gathering documents as early as possible, as P-1A petitions can be filed up to one year in advance of a scheduled event. Provide your contact(s) with a list of required items upfront. It is wise and usually necessary to follow-up frequently.
8 CFR 214.2(p)(8)(iii)(E). USCIS Memorandum, D. Neufeld, Procedures for Applying the Period of Authorized Stay for P-1S Nonimmigrant Individual Athletes Essential Support Personnel (July 14, 2009), published on AILA InfoNet at Doc. No. 09071660 (posted July 16, 2009). 20 8 CFR 214.2(o)(1)(ii)(B). 21 8 CFR 214.2(o)(1)(ii)(B)(1). 22 8 CFR 214.2(o)(4)(ii)(C). 23 8 CFR 214.2(o)(5)(i)(A).
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If you are encountering problems with one of your contacts, contact someone from the team. Teams may also be helpful in providing items, such as copies of contracts, passports, and prior approval notices. Practice Pointer Regarding League Letters: Some leagues, such as the Womens National Basketball Association (WNBA), National Hockey League (NHL), and Major League Baseball (MLB) have standing consultation letters used for P-1A petitions. In some cases, these are on file at the Vermont Service Center (VSC) and need not be submitted with every case. Leagues that do not have standing consultation letters must be contacted as early in the process as possible because it may require research. Trades Trades have long posed a problem for teams and individual O-1 or P-1A athletes who could not begin competing for the new team until the new O-1 or P-1A petition has been approved. Current regulations allow athletes involved in trades to retain employment authorization and immediately begin competing with the new team as long as a new petition is filed within 30 days. 24 Note that in trades between Canadian and U.S. teams, the U.S. team cannot benefit from this provision and must expedite the filing and approval of the nonimmigrant petition before the player can begin competing. Additionally, in cases where a player has been released or put on waivers, his or her nonimmigrant status no longer remains valid and a new team cannot use this provision to begin employing the athlete until a new petition can be approved. Practice Pointer Regarding Canada to U.S. Trades: Reach out to the VSC early and arrange a process for expedited premium processing. Jurisdiction USCIS policy expressed in the Form I-129 instructions confers jurisdiction over nonimmigrant petitions filed for athletes employed in major league sports with the VSC. 25 An exception to this rule would apply where the employer chooses to e-file the application and it is adjudicated at the California Service Center. There is an ongoing discussion at USCIS headquarters to determine the definition of a major league sport for purposes of VSC jurisdiction. A draft policy memorandum issued by USCIS restricts VSC jurisdiction to MLB and NHL only. 26 This is an important issue since petitions for players in lesser-known national sports leagues have recently been rejected by the VSC on jurisdictional grounds. Practice Pointer for Major League Sports Filing: Clearly mark the envelope and the Form I-129 with Major League Sport highlighted in Part 2 of the I-129. Try-outs The Department of State (DOS) has indicated that the appropriate visa classification for an athlete attending tryouts with a professional sports team in the United States is B-1 visitor status. 27 The usual B-1 residence requirements and nonimmigrant intent requirements must be satisfied in this situation, as well. In the case of amateur hockey players, the DOS specifically allows the athlete to provide a signed memorandum of agreement with an NHL team providing details and duration of the tryouts, and stating that he or she will not be paid, but will receive only incidental expenses. 28 If the athlete signed by the team, then he or she may not remain in B-1 status while playing for the team and must change status to the appropriate visa. Movement Between Leagues and Teams One should be cautious in reviewing situations involving movement of a player between leagues. It is imperative that you gather the specific facts and analyze issues of ownership and maintenance of status. In some cases, the minor league team will be owned by the major league team and all petitions can be prepared
8 CFR 214.2(o)(2)(iv)(G) and (p)(2)(iv)(C)(2). USCIS, Form I-129 Instructions, www.uscis.gov/files/form/i-129instr.pdf. 26 USCIS, Draft Policy Memorandum, Clarifying Guidance on Definition of Internationally Recognized for the P-1 Classification; Revisions to the Adjudicators Field Manual (AFM) Chapter 33.5(a) AFM Update AD11-03 (Jan. 17, 2011), available at www.uscis.gov/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/p-1-draft.pdf. 27 9 FAM 41.31 N9.4. 28 9 FAM 41.31 N9.4(c).
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in a manner that would allow movement up and down between the leagues. In other cases, the minor league team has no ownership connection with the major league team, although it might have a professional affiliation. In this case, the player cannot move up and down between the teams and leagues without an approved petition for each team. Agents as Petitioners The regulations allow an O-1 or P-1A petition to be filed by a U.S. employer, a U.S. sponsoring organization, a U.S. agent, or a foreign employer through a U.S. agent. By policy memorandum, USCIS confirmed that an agent need not demonstrate that it normally serves as an agent outside the context of the petition. 29
USCIS Memorandum, D. Neufeld, Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications (Nov. 20, 2009), published on AILA InfoNet at Doc. No. 09113064 (posted Nov. 30, 2009).
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SELECTED ISSUES IN B-1/B-2 AND VISA WAIVER PROGRAM TRAVEL

by Kelly McCown, William Coffman, and Michael R. Jarecki *
The U.S. Department of States (DOS) Foreign Affairs Manual (FAM) recognizes some specific uses of the B-1/B-2 visa that transcend traditional business meetings or tourist visits. Some of these categories even allow work activities or training in the United States for brief periods of time if certain traditional B-visa requirements are met. In this practice advisory, we will highlight three unique uses of the B-visa category allowing employment-related activity in the United States, and outline Electronic System for Travel Authorization (ESTA) requirements for visitors under the Visa Waiver Program (VWP). B-1 IN LIEU OF H-1B OR H-3 1 A foreign national may obtain a B-1 visa where the individual would qualify for H-1B or H-3 status, but will not be paid in the United States or enter the U.S. labor market. The person must be in the United States so briefly that undergoing the H-1B or H-3 petition process is deemed unnecessary. According to the FAM, the following requirements must be met for this type of B-1 visa: The stay in the United States must be temporaryconsistent with normal B-1/B-2 visa issuance (length of stay is not specified in the FAM, but six to12 months appears to be the standard in practice); Applicant would otherwise qualify for H-1B or H-3 status, but for the fact that there is no U.S. employer; Applicant will remain on his or her home countrys payroll and receive no salary or other remuneration from any U.S. source for the services to be provided in the United States, other than expenses/reimbursement for costs incidental to the temporary stay. Preparation of this type of visa application should include the standard B-1 visa application documents (DS-160, Online Nonimmigrant Visa Application; photo; fee payment; proof of ties to home country, etc.), plus additional supporting documents to prove specific qualification for H-1B or H-3 status. For a B-1 visa in lieu of a H-1B visa, this should include a support letter written on the letterhead of the foreign employer describing the current employment of the applicant in the home country and an explanation for the employees need to travel to the United States. The letter should outline in detail the applicants position and its connection to the activity to be performed in the United States. The applicants H-1B level qualifications should also be proven in the form of a foreign educational credential evaluation or evaluation of equivalent experience if needed. For the B-1 in lieu of H-3, a similar letter outlining the training program and a copy of the training program curriculum should be included. The foreign employer must also establish the following:
*
Kelly McCown is a partner and co-founder of McCown & Evans LLP in San Francisco, a firm that represents employers and individuals in all areas of corporate immigration law. She is a Certified Specialist in Immigration and Nationality Law by the State Bar of California. Since 2004, Ms. McCown has been honored annually as a Northern California Super Lawyer by Law & Politics Magazine and was recognized in 2007 and 2009 as one of the Top 50 Female Super Lawyers in Northern California across all specialties. She is a member of the American Immigration Councils Board of Trustees and past chair of the AILA Northern California Chapter.
William Coffman is of counsel in the immigration section at Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.s Boston office. His legal work focuses on U.S. immigration and nationality law, as well as outbound emigration and related international law. He regularly serves as a speaker at AILA chapter and national conferences, and for Massachusetts Continuing Legal Education (MCLE). He has authored numerous articles on various immigration topics for AILA publications, MCLE, and Immigration Briefings. Michael R. Jarecki works as a sole practitioner in Chicago. He has served for three years as chair of AILAs Lesbian, Gay, Bisexual, and Transgender (LGBT) Working Group and currently serves on Congressman Mike Quigleys Advisory Council for LGBT and immigration issues. Mr. Jarecki is a graduate of Loyola University Chicago, Phi Beta Kappa. He received his J.D. from the University of Illinois College of Law, where he was a member of the law review.
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9 FAM 41.31 N11.

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The proposed training is not available in the applicants home country; The applicant will not be placed in a position in the United States that is part of the normal operations of the U.S. company; The applicant will not engage in productive employment unless it is incidental and a necessary part of the training; The training will benefit the applicant in pursuing his or her career outside the United States. 2 If the B-1 visa is issued, it is often issued with a notation on the visa either indicating that it is issued in lieu of a H-1B or H-3 visa or specifying the location of the U.S. activity. The visa may also be issued as a standard 10-year B-1/B-2 visa without a specific notation. It is important to remember that the visa itself is still a business visitor visa and, in many ways, no different from any other business visitor visa except for the documentation and explanation for the specific purpose of this type of B-1 visa. Practical Considerations The special B-1 visa in lieu of an H-1B or H-3 visa is a specific part of the FAM and should, therefore, be considered a viable alternative in the right circumstances. However, not all embassies and consulates are amenable to issuing this type of B-1 visa. This authors experience is that posts located in developed countries are accustomed to seeing this type of applicant and generally have no problem issuing the visa if all requirements are met. Applicants in other countries should review the website of the particular consulate and search for any mention of the use of the B-1 visa in lieu of H applications. They should also consult the most recent edition of The Consular Practice Handbook. 3 Even if a consulate issues the visa, the Customs and Border Protection (CBP) Inspectors Field Manual (IFM) contains no specific recognition of this unique use of the B-1 visa. Therefore, applicants for admission should be counseled on how to handle the entry process and equipped with a separate letter outlining the reason for entry and temporariness of the business visit. This letter should also on the foreign employers letterhead outlining the reason for the business visit, but without specifically referencing B-1 in lieu of H1B since it is not specifically recognized by the CBP. The B-1 in lieu of H-1B or H-3 can be a viable solution if the circumstances are right. They can also save a company significant time and money than it would by filing an H-1B or H-3 petition through U.S. Citizenship and Immigration Services (USCIS). You may want to mention the practical issue of the you come here too often test: if the person will frequently enter the United States during the assignment, or will spend more than half the year in the United States, then, even though he or she is entitled to a B-1 status, a work-authorized status might be better. You might also want to allude to tax issues that may make a B-1 or H-1 more or less desirable, and that an immigration strategy should be coordinated with tax advice, as well. B-1 FOR PERSONAL/DOMESTIC EMPLOYEES 4 Another unique use of the B-1 visa is for personal/domestic employees accompanying a nonimmigrant or U.S. citizen temporarily assigned to the United States. The requirements are similar, but not identical for those accompanying a nonimmigrant versus a citizen, so each will be discussed separately. Considering that that a lawful permanent resident must intend to live permanently in the United States, this type of B-1 visa is unavailable to personal/domestic employees of lawful permanent residents since there is no way to prove the temporary nature of the B-1 activity.
2. 3
9 FAM 41.31 N11.9 M.H. Davis, et al., The Consular Practice Handbook, (AILA 2010 Ed.). 4. 9 FAM 41.31 N9.3.
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Accompanying a U.S. Citizen 5 The FAM outlines the basic requirements to qualify for this type of B-1 visa as follows: Employee has a residence out of the United States which he or she has no intention of abandoning; Employee has been employed abroad by the U.S. citizen as a personal/domestic employee for at least six months before the date of the B-1 application or, the U.S. citizen employer can demonstrate regular employment of a domestic employee in the same capacity; Employee has been employed for at least one year as a personal/domestic servant as shown by statements or letters from previous employers, which can include the U.S. citizen; U.S. citizen is subject to frequent international transfers of two years or more as a condition of the job and is returning to the United States for no more than four years as confirmed by a letter from U.S. citizen employers personnel office; and There is a written, signed contract between the employee and U.S. citizen employer, signed by both parties, that provides for the following: (1) employer will be the only provider of employment to the domestic employee while in the United States; (2) employer will provide the employee free room and board and round trip airfare; (3) employee will receive the minimum or prevailing wage, whichever is greater, for an eight hour work-day; (4) employer will provide any other benefits normally required for U.S. domestic workers in the area of employment; (5) employer will give at least two weeks notice of intent to terminate the employment; and (6) employee need not give more than two weeks notice of intent to leave employment. Accompanying a Nonimmigrant 6 The requirements for the B-1 personal/domestic employee visa to accompany a nonimmigrant are: Employee has a residence abroad that he or she has no intention of abandoning (this is required even if the employer is in a nonimmigrant status that does not require nonimmigrant intent); Employee has been employed abroad by the employer as a personal or domestic employee for at least one year before the date of the employers admission to the United States or the employer must demonstrate that he or she has regularly employed personal or domestic employees over a period of several years preceding the domestic employees visa application; Employee has at least one year of experience as a personal or domestic employee as demonstrated by letters from previous employers, which can include the nonimmigrant; and There is a written, signed contract between the employee and nonimmigrant that confirms the following: (1) employee is guaranteed the minimum or prevailing wage, whichever is greater; (2) employee will receive free room and board; (3) employer will be the only provider of employment to the employee; and (4) employer must pay the employees initial travel expenses to the United States and subsequently to the employers onward assignment, or to the employees country of normal residence at the termination of the assignment. The B-1 visa in this circumstance is typically annotated as a B-1 personal/domestic visa and includes the name of the U.S. citizen or nonimmigrant employer. Once the B-1 has entered the United States, he or she must apply for an Employment Authorization Document (EAD) through USCIS on Form I-765, Application for Employment Authorization, to work legally in the United States. Unlike other special B-1 categories, it is permissible for the B-1 personal/domestic employee to receive direct pay from a U.S. source for the services provided. It would be helpful to mention the issue of nonimmigrant extensions in the United States for B-1 domestics and how the Forms I-765 and I-539, Application to Extend/Change Nonimmigrant Status, can be filed concurrently. You may also want to note that the EAD tends to be necessary to receive drivers licenses,
5. 6.
9 FAM 41.31 N9.3-2. 9 FAM 41.31 N9.3-3.

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Social Security numbers, etc., and that, technically, compliance with the rules for employment are impossible, since it takes so long to get an EAD. Also, the I-94s, Arrival-Departure Records, are supposed to be issued for a year, so the domestic may want to take a copy of the IFM when coming through customs. VISA WAIVER PROGRAM TRAVEL AND ESTA Electronic System for Travel Authorization (ESTA) is an automated registration system that all VWP travelers must comply with before traveling to the United States. 7 ESTA became mandatory on January 12, 2009. The obligation to register with ESTA and obtain a travel authorization designation only applies to the countries participating in the VWP 8 and travelers arriving by air or sea. Those traveling through the United States must comply with ESTA, as well. According to CBP, ESTA is an added security component to the VWP, supplying law enforcement with another tool to evaluate whether any VWP travelers pose a security risk. Foreign nationals who receive travel approval under ESTA must still prove their admissibility at the U.S. port of entry to qualify for a stay of 90 days or fewer. ESTA approvals are valid for two years or until the applicants passport expires, whichever is sooner. Even non-ticketed infants and children are required to obtain an ESTA authorization prior to travel. Who Is Not Required to Participate in ESTA? Foreign nationals of any country seeking admission with a visa, including VWP-eligible travelers entering with a visa, are exempt from the ESTA registration requirement. Additionally, Canadians are exempt from ESTA, regardless of their mode of travel. Finally, VWP travelers entering the United States through a land port of entry from Canada or Mexico need not obtain an ESTA travel authorization to obtain admission. What Does ESTA Require? The required information for the ESTA application includes: Biographical Data: Full Name Date of Birth Passport Information VWP Eligibility Questions Concerning: Communicable Diseases Arrests or Convictions for Certain Crimes Past History of Visa Revocation or Deportation Procurement of Visa by Fraud or Misrepresentation Intention to Work in the United States Child Custody Issues Assertion of Immunity from Prosecution While not required to complete the registration, the ESTA application also asks for travel information regarding flight and hotel/accommodations. This information may be updated when the traveler knows the itinerary, but that, too, is optional.
Customs and Border Protection, Electronic System for Travel Authorization, available at http://cbp.dhs.gov/xp/cgov/travel/id_visa/esta/ (last visited Feb. 17, 2011) (providing ESTA application). 8 Department of State (DOS), Visa Waiver Program (VWP), available at http://travel.state.gov/visa/temp/without/without_1990.html (last accessed Feb. 17, 2011) (providing a list of VWP countries).
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ESTA requires a total fee is $14, $4 of which covers the cost of CBPs administration of the ESTA system and $10 of which covers the travel promotion fee, 9 if approved. Third-parties, including attorneys, relatives, or travel agents, may file and pay the fee for an ESTA application on behalf of a qualified VWP traveler. ESTA registration responses are typically instantaneous, but can sometimes take up to 72 hours. VWP travelers are, thus, encouraged to register early, whether or not firm travel plans are in place. Registrants will receive one of three responses: Authorization Approved, Travel Not Authorized, or Authorization Pending. Once a registration or approval is completed, the following information can be updated without paying an additional fee: E-mail Address Telephone Number Carrier Information City of Origination Address in the United States A new ESTA application, with fee, is required under the following circumstances: (1) issuance of a new passport; (2) changes in name, gender, or country of citizenship; or (3) changes to any of the eligibility 10 or security questions concerning communicable diseases, criminal history/arrests, or immigration violations. Finally, the validity of the ESTA travel authorization is needed solely for admission into the United States. Should the ESTA authorization expire while the VWP traveler is in the United States, a new registration and approval will only be needed for future travel into the country. For ESTA Purposes, an INA 221(g) Notice Is Treated as a Denial VWP applicants should be advised that any consular Immigration and Nationality Act (INA) 221(g) notices issued by DOS are treated by the CBP as visa denials and should be disclosed as such in ESTA applications. 11 In practice, a 221(g) notice can be issued for further administrative processing, which can include security clearances or requests for additional documentation, neither of which are an actual denial. However, CBP requires VWP applicants to answer the ESTA question Have you ever been denied a U.S. visa ? in the affirmative as CBP treats non-issuance as a denial in the technical sense. Since a new ESTA application is required for material changes in an applicants eligibility, a new application would be needed for any VWP applicant who has an ESTA approval, but subsequently receives an INA 221(g) notice during a visa application process. This information is important because many clients may desire to travel to the United States on the VWP while their nonimmigrant visa application is pending under an INA 221(g) notice. This will not be possible unless the VWP applicant obtains a new ESTA approval. Obtaining a new ESTA approval becomes increasingly more difficult because the VWP applicant will admit the visa denial. 12
This fee was established by the Travel Promotion Act of 2009, enacted as 9 of P. L. 111-145, the U.S. Capitol Police Administrative Technical Corrections Act of 2009. All applicants requesting an electronic travel authorization are charged the $4 processing fee. If the electronic travel authorization is denied, the applicant is only charged the processing fee and not the authorization fee of $10. 10 This includes visa denials, entry denials, or the receipt or issuance of any consular INA 221(g) notices whether issued for administrative processing or ultimately for a full visa denial. Because a new ESTA application is required for material changes in an applicants eligibility and CBP considers an INA 221(g) notice for any action a material change, a new ESTA application would be required. Additional information about 221(g) notices is explained in the body of this document. See AILA National CBP Liaison Committee, CBP Practice Alert: Consular INA 221(g) Notices including those for Administrative Processing Should Be Disclosed as Visa Denials For ESTA Registration, published on AILA InfoNet at Doc. No. 09110565 (posted Nov. 5, 2009). 12 Id. Applicants are encouraged to explain in the Where field of the ESTA application the reason for the INA 221(g) notice issuance. Denials based on requests for additional documents may have a chance of a full approval, whereas DOS-initiated administrative checks will probably result in an ESTA denial.
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Failure to properly disclose an INA 221(g) notice denial on ESTA applications or failure to submit a new application when material changes take place could cause the VWP traveler to be subjected to a lengthy secondary inspection, denied entry to the United States, and/or subjected to a claim of fraud or misrepresentation. Passport Requirements As of October 26, 2006, each VWP passport must be an electronic passport with a digital chip containing biometric information about the passport holder. There are exceptions to the type of technology accepted from each country and whether electronic passports or machine-readable passports are acceptable. 13 These exceptions should be reviewed before advising clients on the qualifying nature of a passport for use in the VWP and in complying with ESTA. ESTA Travel Authorization Approvals & Sharing and Storage of Information U.S. Department of Homeland Security (DHS) stores ESTA application data for the time the ESTA approval is valid. The information is then maintained for an additional year and archived for 12 years to allow law enforcement and national security officials to retrieve it for investigations. DHS reports that information may be shared with appropriate federal, state, local, tribal, and foreign governmental agencies or multilateral government organizations when DHS believes such information would assist enforcement of civil or criminal laws. Carriers, such as airlines, do not receive ESTA application information provided by VWP travelers. The carriers, however, do receive confirmation of the passengers ESTA status through the Advance Passenger Information System (APIS)/APIS Quick Query system. Those systems indicate whether ESTA is required of a passenger and whether the authorization for travel has been granted. ESTA Travel Authorization Denials If an intending VWP traveler is not approved under ESTA, the foreign national will be unable to travel under the VWP. If travel is still desired or required, the foreign national will need to obtain a nonimmigrant visausually a B-1/B-2 visaat a U.S. embassy or consulate before traveling. A passenger, and potentially immigration counsel, could attempt to seek reasons for a travel authorization denial through the DHS Travel Redress Inquiry Program (TRIP). 14 However, DHS cautions that there is no guarantee that a request for redress through DHS TRIP will resolve the VWP ESTA ineligibility. Furthermore, U.S. embassies and consulates are unable to provide details about ESTA denials or resolve the issue that caused the denial. U.S. embassies and consulates can, however, adjudicate ineligibility issues and waivers as they pertain to the application for a nonimmigrant visa.
DOS, Visa Waiver Program (VWP), available at http://travel.state.gov/visa/temp/without/without_1990.html (last visited Feb. 17, 2011) (providing a list of VWP countries).
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Department of Homeland Security, DHS Traveler Redress Inquiry Program, available at http://www.dhs.gov/files/programs/gc_1169676919316.shtm (last visited Feb. 17, 2011).
UNDERSTANDING THE VISA APPLICATION PROCESS FROM START TO FINISH

by Poorvi Rohit Chothani, Kehrela M. Hodkinson, Edward Rios, Liam Schwartz, and Anastasia Tonello *
This practice advisory focuses on visa applications made at consular post hot-spots around the world, including those with high refusal ratese.g., certain posts in India and Chinaas well as high-volume postse.g., London. THE INITIAL CLIENT MEETING: BRIEF OVERVIEW Few interactions between attorney and client are more important than the initial client meeting. It is the first opportunity to set the tone of the representation, identify obstacles, and chart the course of the representation. While a detailed initial client meeting may be time consuming, especially for more complex cases, the investment is well worth the effort. Each attorney has their own approach to this meeting; however, several elements are central and must be part of all consular matter review and preparation. In summary, the attorney should note the following: Explain who you represent Do you represent the employer and/or the employer?; Do you have a duty to disclose information to employer?; If relevant, explain dual representation issues (what happens if conflict of interest arises);
*
Poorvi Rohit Chothani is the founder and managing partner of LawQuest, a full service law firm in India. Her practice areas include global immigration, corporate, and employment law. Ms. Chothani, an alumna of the Penn Law School, is a licensed attorney in India and New York. She is a registered, practicing solicitor in England and Wales, is active at a national and international level on global migration, and is a founding member of AILAs Global Migration Group and a member of AILAs Rome District Chapter. She has authored a book, Doing Business in India: An Overview for Human Resource Professionals which was launched at SHRM 2009, where she was a speaker. Kehrela M. Hodkinson is the principal of Hodkinson Law Group in London. She was admitted to the California state bar in 1980. Prior to moving to London in 1993, she established law firms in Los Angeles and San Francisco. Since moving to the United Kingdom, her practice has been limited to U.S. immigration law consular processing at the American embassy in London. Mrs. Hodkinson was the first chair of the AILA Rome District Chapter, and she is a member of the AILA DOS Liaison Committee and the Distance Learning Committee. Ms. Hodkinson is a frequent speaker at conferences and the author of numerous articles on nonimmigrant visas, waivers of inadmissibility, and consular processing in London. Edward Rios is a shareholder with Cox Smith Matthews in their El Paso and San Antonio offices. He represents multinational companies, healthcare providers, research and academic institutions, as well as sports and entertainment agencies. He attended Harvard University and Boston University School of Law, and is listed in Best Lawyers in America and Whos Who International for corporate immigration law. He is an active AILA member, having served on numerous national committees. He currently is the vice chair of the AILA Texas Chapter. He humbly provides pro bono legal representation through AILAs Military Assistance Program. Liam Schwartz is an active member of AILA. His AILA-related activities over the past year include: Executive Committee, Rome District Chapter (RDC); and Department of State Liaison Committee. He is the author of Updates to 9 FAM, co-author of Dos and Donts for Attorneys Representing Visa Applicants, and AILAs Going Global, and a panelist for Where to Go After Consular Denials. Mr. Schwartz chairs the Innovation in the Visa Process roundtable series at the Council on Foreign Relations. He moderates the Consular Corner site on Facebook. He serves as chair of the Visa Committee, AMCHAM Israel. Mr. Schwartz is admitted to practice in New York, New Jersey, and Israel. Anastasia Tonello is a partner at Laura Devine Solicitors in London and Laura Devine Attorneys LLC in New York. Ms. Tonello was a charter member and officer of AILAs Rome District Chapter and currently serves as its secretary. She received a B.A. from Indiana University and a J.D. from the University of Notre Dame. She is admitted to the Bar of the State of New York and is a Solicitor of the Supreme Court of England and Wales. Ms. Tonello has been recognized in Whos Who Legal, Legal 500 (UK Edition), and Chambers Guide to the UK Legal Profession.
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Obtain all relevant information through use of initial intake questionnaire and/or interview; Often clients will not volunteer information but will respond to very specific focussed questions; Listen to client (what are they saying and what are they not saying?); and When asking about inadmissibility issues, listen to what they are saying (and what they arent saying) as well as body language. Issue Spot Discuss visa eligibility criteria; If client is eligible for several visa classifications, discuss pros and cons of each category; and Provide an assessment of any potential inadmissibility issues. Manage Expectations Timing (best case/worst case scenario); Procedure; Documents; Costs (legal fees plus relevant filing fees, application fees, issuance fees); Potential issues visa eligibility and grounds of inadmissibility; Possibility of RFE (extra time to prepare response and time for U.S. Citizenship and Immigration Services (USCIS) adjudication); Answer all questions (anticipate unasked questions as clients may not understand process sufficiently to know what to ask); Make sure client is satisfied with the information received before they leave the office or end the conference call; and If promised, follow up with summary of meeting. ADDRESSING GROUNDS OF INADMISSIBILITY The grounds of inadmissibility to the United States are neatly summarized in the following table published by the U.S. Department of State (DOS): http://travel.state.gov/visa/frvi/ineligibilities/ineligibilities _1364.html An additional reference is the chart at 9 Foreign Affairs Manual (FAM) 40.6 Exhibit 1: www.state.gov/documents/organization/86933.pdf The following Q&A is offered as guidance in counseling clients on grounds of inadmissibility: Q: Is a finding of inadmissibility by a consular officer the end of the road for a visa applicant? A: Various sections of the Immigration and Naturalization Act (INA) 1 provide waivers for most grounds of ineligibility, effectively allowing consular officials to temper justice with mercy by issuing restricted visas to foreign nationals who would otherwise be barred from entering the United States. Q: What are some of the grounds of inadmissibility which can be the subject of a waiver request? A: NIV applicants may, under certain circumstances, be granted a visa even if they are found ineligible under one or more of the vast majority of the INA 212(a) ineligibilities (the exceptions being the morespecifically focused bans against spies, saboteurs, perpetrators of genocide, or others whose entry to the United States would have serious adverse foreign-policy consequences). Q: What must happen before a waiver request can be made in the consular context?
Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.).
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A: The consular officer must first refuse the visa application under the relevant section(s) of the INA. IMPORTANT: Applicant must be otherwise qualified for the visa; waivers are not available to foreign nationals who are ineligible under INA 214(b). Q: In practice, what step is absolutely critical for a possible waiver request approval? A: In order for a waiver case to be successful, it is crucial to obtain a positive recommendation from the consular officer. Q: If the consular officer does not recommend the waiver, doesnt the applicant still get a second bite at the apple via an advisory opinion request? A: Without a consular officers favorable recommendation for a waiver, it is unlikely that the applicant will receive a visa. According to at least four different FAM sections, 2 consular officers who do not support individual waiver cases should refer them to DOS headquarters, particularly if the applicant (or his or her representative) requests consideration for a waiver. Even so, this second bite at the apple is widely viewed as an ineffective option, since DOS headquarters usually upholds the consular posts initial judgment that the case does not merit a recommendation for a waiver. Q: What FAM criteria will a consular officer look to in making a decision on whether or not to recommend the waiver? A: Per FAM, the criteria to be used in making this decision are the recency and seriousness of the violation, the reasons for the applicants travel, and the positive or negative effect of the travel on U.S. public interests. 3 Q: What documents should be included in a waiver request? A: Submit all required paperwork, translated into English if applicable, at the time of interview (i.e., court records in cases where theres been a conviction, or a clean police record in cases where violations were limited to immigration laws). Also submit a legal brief and consider character references about how the applicant has rebuilt his/her life. Q: Who has the final say on waivers? A: U.S. Customs and Border Protection adjudicators at the Admissibility Review Office (ARO) in Herndon, VA, have the final say on whether the waiver is granted, as well on the particular conditions of the waiver, such as validity period, number of entries, and period of authorized admission. Q: What are typical ARO timetables? A: A consular post recommending a wavier can usually expect a responseeither positive or negative from the ARO within two weeks. Q: For what period is a waiver typically granted? A: The waiver is typically granted for multiple applications for entry over a period of 12 months; the consular officer can request longer validity period once the alien has been granted two or more 12-month waivers; ARO can also set other conditions for waiver, such as limited admission period. Q: If the waiver is approved, how is the visa annotated? A: If ARO approves the waiver, then the consular post proceeds to issue the visa, which must be annotated to show the section of the law under which the alien is inadmissible, the section of the INA under which the ineligibility is waived, and any special conditions for the bearers travel. Q: Is there a need to apply for waivers in the future, or is one waiver sufficient for all future visa applications
2 3
9 FAM 40.301 N6.1(b), N6.2(a)(2), N6.2-1, and N6.2-2(a). 9 FAM 40.301 N3(b).
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A: Waiver requests will probably be required each time the applicant applies for a visa, so as to give the consular officer the chance to check to see if there is new derogatory information or some other material change in circumstances. 4 PREPARING THE FILING Document Intake Procedures and Timing of Support Materials Flow Know your post Since each consular post has its own process, it is best to research local practices first. Checking the posts website is a good place to start. Posts have distinct policies regarding third country national applications and how and when to submit certain visa application. Universal processing information can be found in FAM appendices. For example, the reciprocity schedule lists acceptable documents which may be required to support visa applications based on an applicants country of origin. AILA attorneys with local expertise are also a valuable resource. The AILA Rome District Chapter, for example, comprises AILA attorneys based in Europe, the Middle East, and Africa who may be able to offer insight to local idiosyncratic processes. Nonimmigrant visas Visa applications that require approved petitionse.g., L-1, H-1B, and O-1must be filed with USCIS in duplicate. Once approved, USCIS forwards the duplicate petition to a DOS clearinghouse in Kentucky, which then updates the Process Information Management System (PIMS), used by the local consular post to verify petition approval. Most nonimmigrant visa (NIV) applicants must complete the online DS-160 application, submit it, and then print the confirmation sheet which will be required for the interview at the U.S. consular post. Applicants may also be well advised to bring a copy or the approved I-797 approval notice, if applicable, a copy of the visa petition, and evidence to support eligibility for the pertaining visa category. Some visa applications e.g., E treaty trader/investor at certain consular postsrequire that the application materials are submitted in advance of the interview. If USCIS processing was not required so there is no approval notice, preparing a cover letter detailing the applicants eligibility and explaining the relevance of the supporting documentation could aid a consular officer in his or her review of the application. Visa interviews are usually quite brief, normally less than five minutes. Passports are taken by the consulate and if the visa is issued, the passport is returned to the applicant usually within five to ten days depending on the specific posts processing times. If additional administrative checks are required, issuance of the visa could be delayed or perhaps ultimately denied and can significantly delay the process for months. Immigrant visas Immigrant visa petitions do not need to be filed in duplicate with USCIS. The approvals are forwarded to the National Visa Center (NVC), which administers intermediate document collection and processing before the local consular post is notified of approval and immigrant visa availability. Soon after the petition is approved (normally within a month), the NVC contacts the applicant via U.S. mail or email, if an address was provided with the petition, to request payment and to advise the applicant to submit the documentation required for the immigrant visa, including the affidavit of support I-864; application for immigrant visa and alien registration DS-230 (expected to be replaced by the electronic DS-260), and also original documentation, copies of which were likely filed with a family based I-130 petition including original birth certificates, marriage certificates, and police clearances. NVC processing should be completed within approximately two to five months. Once the NVC is completed with a case, it schedules an appointment and notifies the local post for the final interview and processing. From that point, the NVC will no longer be involved in the visa application. Further correspondence and questions regarding the case, should be directed to the consular post.
9 FAM 40.301 N6.4.

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Consular Electronic Application Center The Consular Electronic Application Center (CEAC) is a DOS system through which immigrant visa (IV) and NIV applicants may complete and submit visa applications, pay consular service fees, submit photos and biometric information, and track application status. The CEAC components that are currently in use and operating today include: General NIV (GENNIV): component that allows users to complete and electronically submit a Form DS160 application to posts worldwide; A-Class/G-Class NIV/North Atlantic Treaty Organization (AGNATO): Application data component which allows users to complete and electronically submit Form DS-1648 application online; Consular Tracking (CTRAC): Fee invoice component that allows users to view their consular fee invoices and select those unpaid fees which they would like to pay; Payment Processing System: Component used when a user pays a fee from CTRAC; Remote Data Collection: Component used by third party vendors to collect biometric information for applications who have completed any of the CEAC applications so they can be sent to posts for additional processing; Image Quality over the Web: Component providing photo submission and quality assessment functionality of the facial photo images submitted by applications as part of the electronic submission of non-immigrant applications and medical forms. Consular Electronic Application Center Web (CEAC Web): A reporting application used by consular posts that displays data collected from AGNATO, GENNIV, IV Agent, and IV App (see below) as well as 10 reports to be used by NVC in processing the DS-260 and DS-261 applications. Future CEAC components include: CEAC Medical: Component that allows eligible users to complete and electronically submit the required sub-set of the six medical forms that may be required of IV or refugee applicants; Electronic IV Application forms (IV App): Component that will allow users to complete and electronically submit an IV and alien registration application through the Internet to the NVC for processing (now required at selected embassies and consulates); and Online Application for Passport Card: Online application which allows qualified passport card applicants to complete the application form, upload passport photo, pay applicable fees, and submit the application online. Scheduling Consular Interview There is no universal way to schedule a visa appointment at a consular post. Most posts require scheduling the interview via internet or telephone. Additionally, wait times for visa appointments vary. DOS maintains a central resource for consular wait times at http://travel.state.gov/visa/temp/wait/wait _4638.html. The consular post website should provide detailed instructions on how to schedule the visa appointment and pay fees. Machine Readable Visa (MRV) fees need to be paid in advance of the visa interview, and if visa issuance fees are incurred as indicated on the reciprocity schedule, those fees are normally paid by at the consulate after the application has been approved. PREPARING AND SUBMITTING THE DS-160 Communicating Urgency and Necessity of Accurate Information All NIV applicants (except those applying for K, N, S, T and U visas) are required to personally sign and submit the electronic DS-160 Nonimmigrant Visa Application Form. The applicants information is checked to confirm their identity and background. In order to save time and money, it is important that clients thoroughly review their DS-160 to ensure all information is correct prior to the electronic submission. This is particularly critical if an attorney or other representative drafts the DS-160 on their behalf. Attorneys are well advised to emphasize to clients the importance of reviewing the form completely for accuracy as the
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accountability for doing so falls solely on them. Providing inaccurate information can lead to denial of the application, may require a rescheduling of the visa interview appointment or may result in a permanent finding of inadmissibility in the case of a material misrepresentation. Common mistakes on DS-160 Selecting the incorrect location where the application will be submitted; Selecting the incorrect visa category; Failing to provide full information (especially in respect to education and past experience); Providing incorrect employer information; and Failing to provide a petition number (for employment-based petitions). Photographs and Related Technology Issues Using the DOS System for Electronic DS-160 The fact that the DS-160 is entirely electronic has led to various technical issues. Obviously, if the applicant does not have access to a computer, he or she cannot execute the form or attach a digital passport photograph. Even with the proper technology, applicants have reported issues when trying to electronically attach a photograph to the form. If this happens, applicants should bring a photograph that conforms to DOSs standards with them to their interview. Other technical issues include: Timing outthere is a 20-minute time limit for inactivity that logs the user out of the form without warning and without automatically saving the input information. Applicants or the attorney completing the form should therefore save often to save time and frustration. Cannot proceed without completing the pageit is necessary to complete each required field before moving on to the next page. This means that, in order to proceed, the user will need all necessary information at hand when completing the form. Saving and reviewing the formforms can be saved to a hard drive only as a .DAT file. To review this saved file, the user must upload it on the DOS website, necessitating internet access. Forms can also be saved on the DOS website and accessed with an application ID. Application IDs will expire if not accessed within 30-days, however. Also, the submitted form cannot be accessed, so if the finalized application is not saved in .DAT format prior to execution, the applicant/attorney cannot review the form as submitted. Cannot print the form in its entiretythere is no print function that allows the user to print the whole draft form; it is only possible to print each page individually. No H-4 optionthe H-4 applicant will need to select H-1B as their visa category and detail that they are not the principal applicant. They can then enter the H-1B applicants case number and information. Some answer boxes have limited spacesome answers will not fit. Deleted informationif the applicant uploads a previously started form to complete it, the information in the Intended Date of Arrival and Intended Length of Stay in the U.S. answer boxes will be deleted and must be reentered each time. There is no DOS approved technical support for the DS-160. Should the applicant have difficulty submitting the form, he or she should keep trying it will go through eventually. Execution of DS-160 Applicants need to confirm the accuracy of the information provided in the DS-160 by executing the form themselves. It is therefore DOS policy that the DS-160 be signed and submitted by the visa applicant personally, unless this person is under the age of 16 or physically incapable of completing the form, and even then the application can only be executed by a parent or legal guardian. As their legal representative, you will not be authorized to execute the form on your clients behalf. The same is true for the human resource representative or other contact from the petitioning employer who may complete the form for them. No matter who completes the DS-160, the applicant must be the one to execute it. Again, it is crucial that your client thoroughly review their DS-160 before submitting it.
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Practice pointer: Some consular posts, including those in India, France, Germany, and Japan require that the DS-160 be executed and submitted before the visa interview appointment can be scheduled. CONSULAR FEES AND RELATED IN-COUNTRY CONCERNS Communicating Clearly What Fees Are Required and When All visa applicants should be informed that there are fees payable to the U.S. government when applying for a visa. In addition, there may be extra expenses due to cover administrative expenses or courier charges, which vary from consular post to consular post. Some visa applicants need to pay additional fees depending on their visa category. These fees are generally collected at the time of the interview. Applicants also should be made aware that where visa fees have to be paid in advance, often to a bank or third party service provider, there is a time lag between the payment and the time when the system is updated to reflect the payment. Practice Pointer: Applicants who are planning on applying for a visa whether based on a petition filed with USCIS or not, should begin early to understand the visa process and allow for enough time to make advance fee payments and to compile supporting documents. Paying MRV Fee and Timing for Doing So in Relation to Scheduling Interview Each applicant, including children, is required to pay a non-refundable, nontransferable MRV fee, commonly known as an application fee, whether the visa is issued or refused. It covers the costs associated with processing a U.S. visa application. In addition to the MRV fee there may be an additional service charge payable at the designated bank of the country and/or third party charges to cover administrative expenses. The visa interview must be scheduled within one year from the date on which the fee receipt is obtained. The fee receipt becomes invalid at the end of the one-year period and is deemed utilized once the visa interview takes place. It is necessary to retain the fee receipt, which needs to be submitted at the consular post during the scheduled appointment. Practice Pointers: It is important that the applicant verifies the fee amount well in advance to ensure that they have the right figure in the applicable currency In most jurisdictions it is necessary to provide a clear photocopy of the first page containing the biographic information of the applicant to the bank when paying the MRV fee. The designated banks in each country have specific methods of payment so it is important to determine this in advance. In many jurisdictions the fee receipt is not activei.e., entered into the online; visa-booking system till 24 or 48 hours after the receipt has been issued. Additionally, the fee receipt might contain a 10-digit barcode number, which is required to schedule the interview appointment. Hard-Copy Photograph Requirements For temporary visitors to the United States, the NIV application is a fully web-based, online, Form DS160, which is required for all nonimmigrant categories except K, N, S, T, U applications. Each application requires a digital photograph that adheres to stringent specifications. Additionally, a paper photograph or hard copy has to be presented at the time of the visa interview and this should contain the exact image that was uploaded onto the online system. The image may be generated with a digital camera or by digitizing a paper photograph with a scanner. Each picture should be a minimum of 600 x 600 pixels up to a maximum of 1200 x 1200 pixels. All images must be in color .jpeg format and the file size should not exceed 240 kilobytes. The color should reproduce natural skin tones and must be continuous tone no posterization. If the image needs to be compressed in order for it to be under the maximum file size, the compression ratio should be less than or equal to 20:1. Photos must not be digitally enhanced, altered or retouched in any way. If scanning the image from a paper photograph, the size of the paper photograph should be at least 2 inches by 2 inches square. Printed photographs should be scanned at a sampling frequency of at least 300 pixels per inch.
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The image must contain the full face, neck, and shoulders of the applicant in frontal view with a neutral, non-smiling expression and with eyes open and unobstructed and directed at the camera. All facial features must be visible and unobstructed. No extraneous objects, additional people, parts of the body below the applicants shoulders, or other artifacts should appear in the image. The image must be from a recent (within 6 months) photo of the applicant. The head height or facial region size (measured from the top of the head, including the hair, to the bottom of the chin) must be between 50 percent and 69 percent of the images total height. The eye height (measured from the bottom of the image to the level of the eyes) should be between 56 percent and 69 percent of the images height. The individual must directly face the camera and the head must be centered within the frame. It must not be tilted up, down, to the side, or toward the shoulders. The entire face must be in focus and not overlysharpened. The photo must be taken against a plain, light-colored background, with no distracting shadows on the subject or background. The brightness and contrast should represent subject accurately and the photo may not be over or under-exposed. The individual may wear eyeglasses only if the lenses are not tinted and there is no glare, shadows, or rims/frames obscuring the eyes. Dark glasses or nonprescription glasses with tinted lenses are not acceptable unless needed for medical reasons. Hats or head coverings are only allowed if worn for religious reasons; but even these must not obscure any facial features. Practice Pointers: A photograph that does not comply with these specifications is often rejected automatically by the online system. The paper photograph or hard copy must contain the exact image that was uploaded onto the online system. Blanket L Fraud Prevention and Detection Fee Paid at the Consulate Almost all L-1 petitions are subject to the payment of a Fraud Prevention and Detection fee of USD$500, which is usually collected by USCIS on behalf of the U.S. Department of Homeland Security, at the time of filing the petition. However, when an applicant is covered under a blanket petition, DOS at the consular posts collects this fee. In addition, if the L-1 blanket petition has been approved to work with a petitioner that employs 50 or more individuals and more that 50 percent of these employees are in H-1B or L-1 status the applicant must pay and additional amount of USD$2,250. For applicants covered under a blanket L-1 petition this fee will be collected at the consular posts. Both these amounts should be paid by separate checks or money orders as per the local consular posts requirement. These fees are collected at the time of the visa interview. Practice Pointer: These fees only apply to the principle applicant and not to any of the dependents. Reciprocity Fees While all visa applicants are required to pay the visa application fee, the visa issuance fee is only charged to an approved NIV applicant after the visa interview, and only if the applicant is from a country that is subject to visa issuance fees based on the concept of reciprocity. These fees vary for applicants from different countries and by visa classification. Unless collected in advance or notified otherwise, the fee needs to be carried in a prescribed form to the visa interview. This fee is refundable if the visa is refused. Practice Pointers: All applicants should determine well in advance if they are subject to the reciprocity fee or not. Since applicability of the reciprocity fee is based on the nationality of the applicant and not on the country where she applies there might be a situation where an applicant applying in a third country requires to pay this fee even if all other local citizens do not because of their countrys reciprocity with the United States.
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PREPARING FOR THE NIV INTERVIEW Explain Procedure Each consular post is different so it is important to summarize during a specific meeting everything the applicant might expect. This meeting is helpful even for those clients who have prior experience applying for a U.S. visa. More often than not, that experience was gained through application for an F-1 or B-1/B-2 visa and the process ahead for an employment-based filing will be considerably different. Also, consular procedures, including security screening, are subject to change and it is best to communicate the particular posts process in advance. In summary, the consular preparation should include a discussion of the following: Embassy/Consulate Perimeter Security (x-ray personal belongings and walk through scanner); Describe physical layout of room, if known; Document intake (passport, DS-160 confirmation sheet, I-797, supporting documents); Fingerprints taken at intake (or at applicant service center appointment in advance of consular appointment); Two fingerprints re-taken by consular officer; Interview with consular officer - standing in booth with bullet proof glass (No privacy!); Payment of any relevant reciprocity issuance fees; and Return of passport (timing and procedure). Make Sure Client Has Reviewed All Supporting Documents and Is Ready for an Interview A mock interview emphasizing grounds of visa ineligibility is a useful tool. The goal is for the attorney acts as the clients worst nightmare of a consular officer so what they experience at time of interview can only be easier and a dj vu experience. During the mock interview, the attorney is encouraged to underscore the following: Personal interview much more important than documents. The consular officer wants to hear what the client has to say. Questions will relate to clients qualifications; why they want to go to the US and for how long; prior U.S. immigration history; potential grounds of inadmissibility; Average interview: two to three minutes; Primary purpose of interview is for consular officer to assess credibility, determine eligibility for visa sought and determine whether the client is admissible to the United States; Make sure each passport has at least one blank page; Make sure passport is in good condition (check binding/lamination on biographic data page/has it been through the wash and information illegible?); Review DS-160 for accuracy; Confirm that each family members passport is in good condition (look at binding/lamination of biographic data page); and Remind client they will need to pay issuance fees (if relevant) and make sure they have sufficient money/appropriate credit card for payment. Things to Remember to Mention Every Client Should Know Security concerns (no electronic equipment, which includes car key/remote); Have a meal before going to embassy/consulate because it may be many hours before client will have access to food if no food available in consular waiting room. Is there a snack shop in consular section waiting room?; Coat/umbrella may be necessary if weather is cold/rainy as clients may wait outside before being admitted to building; Appropriate attire (dress the part); and
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Whether children can/must accompany parents to interview. DENIALS DEALING WITH ADVERSITY The starting point for any discussion on NIV refusals is 9 FAM 41.121. 5 (1) Hard RefusalsINA 214(b) According to FAM, most refusals of NIVs are made under INA 214(b), which requires that every visa applicant is presumed to be an immigrant until he or she establishes entitlement to the requested nonimmigrant status at the time of application for a visa. The fact that a visa applicant was unable to establish nonimmigrant status at one time does not preclude the applicant from subsequently qualifying for the same visa. In reapplying, normal procedure is to ensure that the applicant is interviewed by a consular officer other than the one who issued the initial refusal. (2) Soft RefusalsINA 221(g) INA 221(g) provides for a temporary refusal when an otherwise qualified visa applicant is found to be lacking a specific document, or when a consular officer determines that additional security clearance is required. Consular officers beneficially use 221(g) as a way of affording applicants every opportunity to supplement their applications in order to address concernse.g., possible fraudthat arise at the visa interview. Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is overcome and the visa may be issued. In practice, the following are examples of events that commonly trigger a 221(g) refusal: The applicant is asked to provide additional supporting documents, such as proof of local employment. The applicant is employed in a field listed on the Technology Alert List and the consular officer requests a Visas Mantis Security Advisory Opinion. (This is one of the most common scenarios in which applicants in India, China, and elsewhere are told their applications require administrative processing.). The consular officer requests an advisory opinion from the visa office on the applicability of one of the statutory grounds of inadmissibility. There are no empty visa pages in the applicants passport, or the application photograph does not meet quality standards. The applicants petition approval is not yet listed in PIMS. Visa refusals must be based on legal grounds. 6 Consular post must inform applicant and attorney in writing of the grounds for the refusal. 7 In refusing visas, consular officers must be careful not to appear insensitive and should be courteous at all times. 8 How to Deal with Client at Post and Related Attorney Action Items Caring for a client who has been denied an NIV at a consular post is first and foremost a matter of managing client shock and anger. First Step: Enter crisis management mode. Drop everything in favor of resolving this problem. Even if the consuls refusal to issue was unjustified, the client will start blaming you if he or she perceives youre not doing the maximum to assist him.
9 FAM 41.121 Notes, available at www.state.gov/documents/organization/87507.pdf. See, in particular, 9 FAM 41.121 N1 (grounds for NIV refusals). 6 9 FAM 41.121 N2. 7 9 FAM 41.121 N2.3-2. 8 9 FAM 41.121 N2.3-11.
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Second Step: Try to verify the reason for the visa refusal with the consul. Clients often have selective hearing and impose their own unique spin on events. The only method for really understanding what has transpired is to contact the consul. Parenthetically, what should you know in requesting information from the consul? FAM contains specific guidance to consular officers with regard to attorney inquires about visa refusals 9 : You may correspond directly with the applicants representative of record, even in cases where the applicant is physically present in the United States, unless the applicant requests otherwise. However, the fact that there is a representative of record does not preclude the post from corresponding with the applicant, provided the post sends a copy of the communication simultaneously to the applicants representative. If the representative inquires about the reasons for refusal of a visa, the delay in issuing the visa, or any other aspects of a visa case, the reply must contain only pertinent facts which are unclassified. FAM permits consular officers to release the following information and data 10 : The documents listed below are deemed releasable to an applicant as they constitute the applicants original source documents. Consequently, returning the following documents to the applicant does not violate the INA 222(f) requirement of confidentiality. These documents include: (1) Correspondence previously sent to or given to the applicant by the post; (2) Civil documents presented by the applicant 11 ; and (3) Visa applications and any other documents, including sworn statements, submitted by the applicant to you in the form in which they were submitted; i.e., with any remarks or notations by U.S. Government employees deleted. Beyond the above, visa records are generally not subject to release under the Freedom of Information Act. 12
Third Step: Do your homework. Revisit the file and do any research needed to justify the merits of the application. Note: Petition-based denials. In the event of denial of a petition-based visa application (H-1B, L-1, etc.), theres room for maneuvering as long as the file is still physically at the consulate. Before returning the file to USCIS, the consular officer who interviewed the applicant must first draw up a memorandum explaining to USCIS the reasons for return of the file. In practice, drafting of the memorandum often takes a few days. During this time, many officers will entertain a request from an attorney to delay sending the memorandum in order to afford the attorney the chance to provide a legal brief addressing the pertinent legal issues.
Fourth Step: Transmit legal materials to the Consul by e-mail so that you can cc the client. No need to write a full-blown brief simply reference the relevant regulations that support USCISs approval of the I129 petition. Indicate to the Consul that youll follow-up by phone or email the next day. Fifth Step: Follow-up as indicatednow is the time to argue the merits, if required.
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9 FAM 40.4 N12.1. 9 FAM 40.4 N5.3.
See 9 FAM 40.4 N5.5. Freedom of Information Act, 5 USC 552, as amended by Pub. L. No. 104-231, 110 Stat. 3048. See also www.state.gov/ documents/organization/86926.pdf.
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PROBLEMATIC TRENDS Consular Officer Re-adjudicating Approved PetitionsFocus on India FAM, the authority governing U.S. consular officers around the world, contains DOS policy and procedures pertaining to visa adjudications. INA 221(g) provides for temporary refusal of visa when an otherwise qualified visa applicant is found to be lacking a specific document, or when a consular officer determines that additional security clearance is appropriate and needed. The U.S. consulates in India have historically scrutinized visa applications closely. In recent times, since the implementation of stricter adjudication policies by USCIS, the level of scrutiny and the number of 221(g) notices being issued has increased significantly. In some instances, though documents are offered they are apparently not reviewed and the subsequent level of scrutiny is akin to a re-adjudication of the petition already approved by USCIS. This is largely connected to the January 8, 2010, USCIS memorandum13 on employer-employee relationships. Often, H-1B visa denials are issued based on a finding that there is no bona fide employer-employee relationship. Sometimes these additional checks are a result of the general focus on fraud or triggered because of warnings or flags in the system, indicating fraud or suspected fraud. Practice Pointers: A 221(g) notification, unless the issues are resolved and a visa is issued, is a visa denial. Applicants who have unresolved 221(g) notifications need to state, on subsequent visa applications, that a visa has been denied in the past. Applicants have an opportunity in the NIV application, Form DS-160, to explain the reason for refusal where he or she can address the pending 221(g). Requests for Additional DocumentationWhen the Post Requests the Kitchen Sink FAM advises that consular officers request for documents by way of 221(g) notices should be limited to those documents that were unavailable to USCIS when the H-1B petition was approved. Consular posts in India issue 221(g) notification on various colors of paper, which seems to be an internal identifying system. Often, 221(g) visa notices function as requests for evidence (RFEs) comprising a laundry list of additional documents that the officer requests by checking off boxes relevant to the application. Once these documents are provided, the case may be resolved in a matter of days or several weeks. Since January 2010, the consular posts seem to be paying great attention to the employer-employee relationship, especially if the employee is to be posted at third party sites. Alarmingly, spouses applying for H-4 visas are receiving 221(g) refusals and requests for detailed H-1B employer documents. Earlier, the H-4 spouse had to prove the validity of the marriage, the spouses valid H1B status, continuing employment with the H-1B petitioner, and ability to financially support a spouse. There are standard lists that are issued by the U.S. consulates in India requesting, among other things, a copy of the complete H-1B petition, including all supporting documentation filed with USCIS in support of the petition. Some of the documents that are routinely requested are: The employment contract or agreement between the H-1B employee and the H-1B employer; The petitioning employers last two income tax returns, financial statements and payroll information; A list of all the petitioning employers employees providing names, job titles, start and end dates of employment, salaries and immigration status; The employers wage reports; A letter from the third party about where the employee will be posted, confirming the position and intent to employ the foreign national on his arrival in the United States; and
USCIS Memorandum, D. Neufeld, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Jan. 28, 2010), published on AILA InfoNet at Doc. No. 10011363 (posted Jan. 13, 2010), available at www.aila.org/content/default.aspx?docid=30950.
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A letter from the third party worksite and a copy of the contract between the petitioning employer and the third party. Practice Pointers: Discuss the visa application process with the applicant and ensure that he or she is aware of the criteria of the sponsor in the United States and the relevance of credentials before the visa interview. The applicant should be completely familiar with the documents that were filed in support of the petition. Inform employers and applicants that they must be able and willing to document their eligibility in response to a 221(g) notice. They should also be willing to pursue the matter with the consular officer in case they wish to dispute some of the 221(g) requests. Employees should ensure that employers will support them through the process and will not terminate the employment because of the 221(g) processing delay. Attorneys should use the special email addresses provided to them to follow up on these pending cases. Despite the fact that the consular officer is likely to send you a boilerplate email acknowledging receipt of your message and politely telling you that the process is pending, these emails record your concern and gain some attention if not a speedy resolution. Some 221(g) notices are issued pending administrative processing involving internal background or security checks on the applicant and/or the petitioning employer. These do not require additional documents but can take many months to be resolved. To add to the problem no information regarding processing times is provided, creating high levels of uncertainty. In some instances the visa is denied and the petition returned to USCIS.
THIRD-COUNTRY NATIONAL CONSULAR PROCESSING OF NONIMMIGRANT VISA APPLICATIONS IN CANADA AND MEXICO
updated by Andrew J. Stevenson, Jan Pederson, Fausta M. Albi, and Laurie Snider *
Editors Note: As this book was going to press, the Department of Homeland Security (DHS) issued a notice stating that it has removed all currently designated countries from the listing of countries whose nationals and citizens are required to comply with NSEERS registration requirements: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen. Effective upon publication of the Federal Register Notice, nonimmigrant nationals and citizens of these countries are no longer required to comply with the requirements of 8 CFR 264.1(f), including the requirement that they exit through designated ports of entry. Accordingly, nationals and citizens from these countries are no longer subject to the NSEERS registration requirement. DHS will no longer register aliens under NSEERS effective April 28, 2011. 1 Where you find references to NSEERS in this article, please read the DHS notice cited below, as changes have occurred.
Consular processing of nonimmigrant visas (NIVs) for Third Country Nationals (TCNs) 2 at posts in Canada and Mexico presents complex and highly specialized issues. Attorneys and visa applicants should be aware of the potential benefits as well as the risks relating to re-entry to the United States subsequent to a visa application in a third country. Potential benefits include that proximity of a Canadian or Mexican consular post to the United States may reduce travel cost and time away from U.S. responsibilities. Also, security checks may actually take less time to clear in a third country with fewer applicants requiring clearances than the same application made at home (for example, a Pakistani citizen applying in Ottawa may face a shorter wait than he or she would face in Islamabad). Finally, if there is an issue at the post, it may be easier for counsel to effectively communicate with a Canadian or Mexican post than with a more distant post in a different time-zone. Most risks of applying at a Canadian or Mexican post as a TCN involve potential delays due to varying types of security clearances. Clients must be advised that if their visa is denied or delayed, they may not be
The original version of this article was authored by Avi Friedman, Jeffrey W. Goldman, and Edward Rios. It was published in AILAs Immigration & Nationality Law Handbook (201011 ed.). Andrew J. Stevenson practices immigration law at the Pacific Northwest firm Lane Powell, based out of Seattle. Mr. Stevensons immigration practice includes business immigration, I-9 compliance, investor visas, waivers, admissibility issues, consequences of criminal convictions, consular processing, removal defense, complex family immigration, naturalization and citizenship, and special immigrant juvenile cases. He has also served on AILAs national CBP Committee between 2008 and the present. Jan Pederson has practiced immigration law in Washington, D.C., for 33 years. She has personally represented clients in person at 24 consular posts around the world and specializes in resolving complex consular processing problems. She has served as an editor and an author of the AILA Visa Processing Guide for 14 years and has lectured extensively nationally and internationally on the topic of consular processing. Her practice is specialized in consular processing, foreign physician immigration and EB-5 investors. She is the principal of Pederson Immigration Law Group and served as the president of the Washington, D.C. Chapter of AILA. Fausta M. Albi is one of three co-managing partners with Larrabee | Mehlman | Albi | Coker LLP, a San Diego-based firm focused on employment-based immigration law. Ms. Albi presently serves as the chair of AILAs CBP Liaison Committee for the San Diego Chapter, and participates as a mentor with AILA Nationals Attorney Mentor program. Ms. Albi is a past chair of AILAs national CBP Liaison Committee; a past chapter chair for San Diego, and has chaired the Congressional Liaison and Advocacy committees for the AILA San Diego Chapter. Ms. Albi is a graduate of the University of San Diego School of Law. Laurie Snider is a senior associate in the Dallas office of Berry Appleman & Leiden LLP. She handles an array of business immigration matters including a variety of nonimmigrant visas and green card applications. Ms. Snider frequently accompanies clients to U.S. Consulates abroad to obtain visa stamps as well as advises about such trips. 1 76 Fed. Reg. 23830 (4/28/11, effective 4/28/11). 2 A Third Country National is an applicant who is neither a citizen of the United States nor of the country in which the consular post is located. For example, a French citizen (who is not a citizen of the U.S. or Mexico) who seeks to apply for a nonimmigrant visa at a U.S. consular post in Mexico, would be considered a Third Country National.
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able to return to the United States until they obtain a valid visa stamp. 3 TCNs waiting on security clearances or other delays may need to extend a visa granted by the host country in order to remain there to await visa issuance. Given the unpredictability of administrative processing times, it is often easier for an applicant to make arrangements for an unexpected extension of stay in their home country as opposed to a third country. Finally, keep in mind for cases in Mexico that consular operations may be suspended from time to time due to local violence if the Department of State (DOS) deems the situation unsafe for U.S. consular personnel or visitors to the post. Applicants should carefully consider the local situation at the time of the prospective application, and their comfort level in traveling or bringing family members to such locations. Assuming these potential benefits and risks are understood and accepted, there are many options for consular posts in Canada and Mexico. The posts in Canada, which accept NIV applications from TCNs, include the U.S Consulates in Vancouver, Calgary, Toronto, Montreal and Halifax, and the U.S. Embassy in Ottawa. In Mexico, there are several consulates that are just a few miles from the U.S. border in Tijuana, Nogales, Nuevo Laredo, Ciudad Juarez, and Matamoros. Additional U.S. consular posts are located in in the interior of Mexico, including Hermosillo, Merida, Guadalajara, Monterrey and the U.S. Embassy in Mexico City. These posts vary in terms of policies regarding the categories of visa application they will accept, scope of attorney representation, use of interpreters, and visa issuance processing times. 4 Given the diversity of choices between these posts, prior to recommending that a TCN client apply at for a visa in Canada or Mexico, you should carefully research the policies of the specific consular post at which the client intends to apply. Be sure to also thoroughly review your clients immigration history and status to identify any potential grounds of inadmissibility, potential reasons for delays in visa issuance, or potential grounds for the consulate to deny jurisdiction of the case. Then, you must assist your client in properly preparing the visa application forms and recommended supporting documents, and prepare your client to present their case at the consular post and at the border to apply for re-admission to the United States. To assist your TCN clients, this practice advisory addresses the following topics: How to Strategically Present NIV Applications for TCNs in Canada and Mexico An Overview of Security Advisory Opinions (SAOs) The Role of the Attorney and Communicating with the Post Dealing with TCN Admission Issues at the Port of Entry Common Attorney Pitfalls and Ethical Considerations HOW TO STRATEGICALLY PRESENT NIV APPLICATIONS FOR TCNS AT BORDER POSTS IN MEXICO AND CANADA Question: May any TCN applicant apply for a NIV in Mexico or Canada? Answer: No. While the acceptance of TCN applicants by the border posts has become significantly more flexible, there are still many restrictions that attorneys should consider. These restrictions are usually listed on
Effective April 1, 2002, as a result of a number of enhanced security measures implemented in the aftermath of September 11, 2001, the U.S. Department of State amended the automatic visa revalidation provision found at 22 CFR 42.112(d). This provision specifies that for trips to Canada or Mexico of less than 30 days, an expired visa stamp, or a valid stamp in a visa category the individual no longer holds, is deemed automatically revalidated and/or converted to the proper category, so long as: (1) The individual held a valid I-94 admission document in the proper category prior to departure from the United States; (2) The individual did not apply for a visa while abroad; and (3) the individual is not a citizen of a country designated by the U.S. State Department as a State Sponsor of Terrorism. Currently, Iran, Cuba, Sudan and Syria hold such a designation. 4 Visa issuance processing times for all U.S. consular posts worldwide are posted at http://www.travel.state.gov/ visa/temp/wait/wait_4638.html. Note that with the introduction of the new DS-160 Nonimmigrant Visa Application Form, the process now requires the applicant to submit the application first, and then determine when and where appointments are available. While frustrating for some applicants, this change in procedure seems to have made many more appointment slots available, especially in Canada. It appears that individuals were scheduling back-up appointments in Canada, thus taking up more than one slot per applicant. Now that the process requires submission of the DS-160 and payment of the fee before the consular post can be selected, it has reduced the number of redundant appointments.
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the Department of State (DOS) Internet sites for each post, 5 but should be confirmed through direct attorney communication with the NIV section at post. Even if a TCN applicant is eligible to apply for a visa in Canada or Mexico, you may choose to strategically discourage some applications. Who May Apply in Mexico? As currently outlined on consular websites, 6 the U.S. Consular Posts in Mexico will accept the following types of NIV applications from TCN applicants: Applicants seeking to renew their C1/D, D, E , F, H (except H-2), I, J, L, M, O, P and R visas, regardless of where the original visa was issued. 7 Consular websites also specify that Mexican posts will not accept jurisdiction in the following TCN scenarios: Applications for B1/2 and H-2 visas, including renewals, are not accepted from TCNs who are not resident in Mexico. Applicants who entered the United States with a visa issued in their home country and either changed status or obtained petition approval from USCIS who seek a new visa in the new visa category. 8 Applicants who entered the United States in one visa category and are seeking to re-enter the United States in a different visa category. 9 Applicants who have been out of status in the United States after violating the terms of their visas or overstaying the validity indicated on their I-94s. Applicants who entered the United States under the Visa Waiver Program. Applicants who were informed when they obtained their original visa in their home country that they were subject to the National Security Entry and Exit Registration System (NSEERS). [In practice, this restriction also applies to male applicants from the List of 26 countries. While not officially stated, such individuals are subject to a Visa Condor clearance and should not apply for a visa in Mexico. It may also apply to certain female applicants who may be subjected to NSEERS at the discretion of an Immigration and Customs Enforcement officer, U.S. Customs and Border Protection officer, or Consular officer.] Male and female nationals of the T-4 countries: North Korea, 10 Cuba, Syria, Sudan or Iran. Who May Apply in Canada? U.S. consular posts in Canada are generally not as restrictive as those in Mexico. For example, applicants from the List of 26 and nationals of State Sponsors of Terrorism can schedule their NIV appointment in Canada. 11 While able to schedule a visa appointment in Canada, TCN applicants who initially entered the United States on a B-1/B-2 visa and subsequently were approved for a change of status application by USCIS to a student or employment category may be denied in Canada. In addition, TCN processing in Canada is risky for first-time H-1B visa applicants who do not hold a U.S. or Canadian university degree. Consular officers in Canada tend to refuse such applicants due to a perceived concern with fraudulent educational documents.
See DOS consular websites, particular to each post, at http://usembassy.state.gov. See for example, http://ciudadjuarez.usconsulate.gov/nivtcns.html. 7 Note that this is an example of increased flexibility in TCN processing. Previously, posts in Mexico required TCN applicants to have been issued their initial visa in their home country or country of residence before a same-category renewal application would be permitted. This policy changed before the notice was actually published on the consulates websites. 8 There are some exceptions for physicians and in exceptional circumstances. 9 Id. 10 Note that while the website lists North Korea as one of the designated State Sponsors of Terrorism, North Korea was in fact removed from the list by the Bush Administration in 2008. The official list of the T-4 currently consists of Iran, Syria, Cuba and Sudan. Libya, formerly a member of the notorious T-7 was removed from the list in 2006; Iraq was removed in 2003. 11 See http://www.consular.canada.usembassy.gov/canada.asp.
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Also, unlike Mexican posts, Canadian posts do not accept TCN E visa applications (whether first E application or a renewal). They only accept E visa applications from Canadian citizens or Landed Immigrants (i.e., Canadian permanent residents). Mexican TNs, Australian E-3s, Chilean and Singaporean H-1B1s can apply at posts in Canada, but consular officers may not be knowledgeable about these unique visa categories. It is recommended that you provide your client with a copy of regulations/FAM, and a letter that clearly explains how your client qualifies for the visa. It is imperative to manage client expectations by informing clients of these risks and discouraging TCN processing where appropriate. Generally, only clearly approvable TCN cases should be processed in Canada or Mexico. Cases with complex admissibility issues are usually not suitable for TCN processing at a border post. In addition, applicants should be prepared to address why they are applying for a visa in Canada or Mexico rather than in their home country. Consular officers often ask this question to see if the applicant is forum-shopping or whether they will be traveling home in the near future. Visa Appointment Scheduling and Application Fees In both Canada and Mexico, appointment scheduling can be accomplished online, on national websites particular to each country. 12 It is now required to pay the Machine Readable Visa (MRV) fee online and fully complete the DS-160 application prior to scheduling an appointment date and time online. Reciprocity fees may be paid at the consular post after the interview is completed and if the visa is approved. Be sure to begin working with your client early on to prepare the DS-160 application, to ensure you are able to schedule the visa appointment when desired. Entry Requirements to Canada and Mexico Depending on the applicants citizenship, it may be necessary for the applicant to obtain a visa to enter Canada or Mexico in order to apply for a U.S. visa. If you are accompanying your client to the Consulate, you may also require a Canadian or Mexican visa authorizing your employment in the country where your client will apply for their visa. It is advisable to contact a Mexican or Canadian Consulate 13 or review their respective websites for information on visa and entry requirements. Some Canadian consular posts in the United States are restrictive in issuing visas to TCNs seeking to enter Canada for the sole purpose of applying for a U.S. visa, although others are accommodating. Mexican consular posts have been more generous in issuing visas to TCNs requiring visas for entry to Mexico. However, keep in mind that TCN applicants may be issued a special permit at the Mexican border limiting their stay to 72 hours to apply for a U.S. visa. U.S. attorneys representing clients at U.S. posts in Mexico are advised to obtain an FM-3 work visa from a Mexican consular post with jurisdiction over their place of residence. FM-3 visas are simple to obtain and can help avoid unpleasant encounters with Mexican immigration officials. In order for an FM-3 visa to be valid, it must be shown to Mexican immigration officials upon entry into Mexico. Routine Delays and Trip Planning Logistics TCN visa applicants should be prepared to wait several days in Mexico or Canada while their visa is being processed. If applying in Canada, applicants from the List of 26 and nationals of State Sponsors of Terrorism should be prepared to wait either in Canada or outside of Canada (if they have a multiple-entry Canadian visa) while security checks are pending. Also, remind these applicants that they must have complied with NSEERS registration and departure control requirements. 14 Other, more lengthy security clearances may be required in some cases, as discussed in a later section of this article. Visa applicants in Mexico, as of January 2011, must have their biometrics taken at least one day prior to their visa appointment and must wait to pick up their passports at the DHL offices after visa issuance. Accordingly, even a seamless visa trip to Mexico can take four to five business days to complete. Applicants in Canada must now also pick up their passports at a DHL office, which adds a day or two onto the trip.
See http://canada.usvisa-info.com (Canada) and http://mexico.usvisa-info.com (Mexico). For a list of Mexican consulates in the United States, see http://www.mexonline.com/consulate.htm. For a list of Canadian consulates in the United States, see http://www.canadainternational.gc.ca/new_york/imm/visa_temp.aspx?lang=eng 14 8 CFR 264.1.
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Attorneys report that DHL offices in some Canadian cities are do not update information regarding receipt of passports in a timely manner on their website. Thus, it is advisable to suggest to clients that they go to the DHL office every afternoon to inquire if their passport is ready for pickup. Passports in both Canada and Mexico can be sent by DHL to the applicant within the country only. Out-of-Status Cases and INA 222(g) It is critical for attorneys representing TCN applicants to understand INA Section 222(g). 15 As a general rule, Section 222(g) prohibits a visa applicant who is unlawfully present in the United States from applying for an NIV at a border post. While similar to the concept of unlawful presence, 222(g) has exceptions for certain categories. Section 222(g) stipulates that the visa of a foreign national who has overstayed a datecertain Form I-94 is automatically cancelled by operation of law. Further, the individual subject to Section 222(g) must apply for all future nonimmigrant visas in their home country. A mere one day of unlawful presence results in ineligibility for application for a visa as a TCN. The law permits minor exceptions for extraordinary circumstances. Apart from physicians who fell out of status because of delays in obtaining a J-1 waiver, these exceptions are almost impossible to obtain. Applicants in J or F status with D/S (Duration of Status) are not subject to 222(g) unless USCIS or an Immigration Judge has made a formal finding that the foreign national has violated his or her visa status. However, even if there has not been a formal finding that an individual in F or J status is subject to 222(g), many border posts will not approve TCN NIV applications for clients outside their grace period (i.e., 60 days beyond program completion for Fs, and 30 days for Js). In this regard, it is advisable to prepare with copies of all current and prior I-94s, visas, I-20s, IAP-66s/DS2019s, and I-797s to prove they have never been out of status or explain that the unlawful presence time was due to no fault of their own. Any unlawful presence issue must be handled with care. Although posts will not pre-adjudicate any visa application, it is best to communicate with the post before your client applies for the visa, and if possible before your client departs the United States. What Are the Risks with TCN Border Processing? As per 22 CFR 42.112(d), automatic revalidation does not apply to individuals applying for U.S. visas in Canada or Mexico, nor does it apply to individuals from the DOS designated list of State Sponsors of Terrorism. 16 Therefore, any TCN visa applicant at a border post must have a valid U.S. visa or travel document to re-enter the United States. As a matter of practice, many consular posts cancel prior visas in an applicants passport if their visa application is denied or subjected to administrative processing for a pending security clearance or any other reason. Under these circumstances, applicants must now await U.S. visa issuance in the third country, or travel back to their home country directly from Mexico or Canada. Rejected visa applicants must travel back to their home country directly from Mexico or Canada. Depending on the reason for rejection, they may have the option of applying for the visa again in their home country. Notwithstanding these difficulties, a visa applicant whose passport has been returned and who has alternative documentation for entry to the United States, such as an unexpired visa stamp or a valid advance parole document, may be able to re-enter the United States. Although U.S. policy clearly appears to bar individuals whose pending security checks have not yet cleared from entering the country, re-entry may be possible under a previously issued document, presumably obtained after approval of a prior security clearance. However, you should advise your clients that if they seek re-entry under such circumstances, it should be with full disclosure to U.S. Customs and Border Protection (CBP) that they have a visa application pending abroad. If CBP then grants admission, the applicant has a valid argument that the decision to admit was purposeful and with the officers full knowledge of the applicants case. AN OVERVIEW OF SECURITY ADVISORY OPINIONS Question: My client has been subject to administrative processing or a security check. Why? What is that? Is there anything I can do?
A list of scenarios under which INA 222(g) is applicable can be found at 9 FAM 40.68 Exhibit I - Summary Chart INA 222(g) Scenarios. 16 See http://www.state.gov/s/ct/rls/crt/2006/82736.htm, including Iran, Cuba, Sudan, and Syria.
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Answer: Security checks or Security Advisory Opinions (SAOs) are initiated by consular officers at NIV interviews and often are the result of hits based on information in the government/consular databases. The post will not disclose the type of SAO to which the individual is subject, but the three main security checks affecting NIV processing are the Visas Condor, the Visas Donkey, and the Visas Mantis. How long the clearance takes varies based on the facts of the case and the type of clearance required. Once a security check is initiated, clearance can take anywhere from a few days to several months to resolve as there is no statutory completion time; however, most are completed within 60 days. The SAO request is sent to the Visa Office in Washington DC. Counsel can follow-up with the post and the Visa Office once 60 days from the date of the interview have passed. The Visas Condor The criteria of the Visas Condor are classified, but appear to be based on several factors, including: A name check which results in a possible terrorist match; Profile information disclosed on Form DS-160 (including travel to predominantly Muslim countries in the last 10 years, prior employment, military service for certain countries, and specialized skills or training); and Country of Birth, Citizenship, or Residence. A Condor clearance is mandatory for males or females over 14 years of age born in T-4 countries, or males over 14 born in the List of 26 countries. Generally, someone who is or was subject to NSEERS will be subject to this type of SAO. DOS reports that most Visas Condor clearances are completed within three days, though some can average three to six weeks. It appears that most List of 26 applicants who are subject to Condor clearances in Canada are issued NIVs within approximately 10-15 business days. The Visas Donkey A Donkey SAO is a name hit based on non-criminal issues and is not nationality-specific. Often this type of SAO is based on a common name or similar date of birth. For instance, a U.K. citizen with the name Mohammad Khan will very likely be subject to a Donkey clearance. Most Donkey clearances average two to three months to process, while a few take substantially longer. The Visas Mantis The Visas Mantis security check, also known as the sensitive technology clearance, is based on whether the NIV applicant is involved in activities in any of the 15 categories found on the Critical Fields List (CFL) of DOS Technology Alert List (TAL). The TAL includes a vastly expanded list of technologies with potential dual-use applications of seemingly benign technologies that may have potential military applications. The last list made available to the public was extremely comprehensive in that it included almost every possible associated technology or skill involving chemistry, biochemistry, immunology, chemical engineering, urban planning, computer technology and pharmacology. 17 Visas Mantis clearances may also be required for students in these fields. With such an all-inclusive list, nearly every research scientist, physician, academic, and engineer who is involved in any of these fields is at risk of being subject to this SAO. According to previous DOS guidelines, a Mantis clearance is generally not warranted if the technology falls within the public domain (e.g., widely available to the public, such as patented information) or if the technology involves information that would generally be taught in an academic course. On October 1, 2003, DOS substantially revised the guidelines issued to consular posts regarding the TAL. Since the cable is classified, the full effects are unknown (although it appears that an increasing number of applicants are subjected to Mantis security clearances and lengthy processing delays). Applicants from China, India, Russia, Pakistan, and Israel seem to be more likely to be subject to a Mantis SAO.
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See AILA InfoNet at Doc. No. 03030449 (posted Mar. 4, 2003).

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Most Visas Mantis processing times are reportedly completed within 2-8 weeks. Mantis clearances are now valid for 2 years for H, L, or O visas, 4 years for F and J visas, and 1 year for B-1/B-2 visas, but if there is a change in duties a new Visas Mantis can be requested. While Chinese or Russian F visas may be restricted to only one year validity, the process of obtaining a re-issuance is now substantially quicker as a second Mantis is not required if the visa application is made within the 4 year period, unless there is a new course of study which may require another clearance. To help facilitate a Mantis clearance, the applicant can provide their resume and a letter from the employer explaining in laymens terms why their job does not involve sensitive or military technology or licenses. NCIC Criminal HitsCriminal Database Checks Millions of records from the FBIs National Crime Information Center (NCIC) have been incorporated into the Consular Lookout and Support System (CLASS) name check database. The information, which is constantly updated, contains information on terrorists and foreign warrants. The database also has extensive records about the occurrence of criminal convictions or arrests, including in the United States. As DOS is not a law enforcement agency, consular officers do not have access to the specifics of an arrest or a conviction and cannot tell whether the person before them is a murderer or jaywalker. Accordingly, if there is a hit in the system for a prior arrest and/or conviction or a false hit, the consul is required to submit the applicants full set of fingerprints to the FBI to request the record or to confirm that there is no record. Applicants must present certified final court dispositions (as well as arrest records at some posts), and may provide a legal brief at the time of the interview. However, the consular post will not issue the visa until it has received the record from the FBI. False hits occur with regularity, particularly for those with common names (e.g., John Smith or Juan Gonzalez). As many as half of the names recently entered into the CLASS system are Latino. This has resulted in an alarming number of false hits and delays for persons with common Latino names. Posts have now implemented an electronic fingerprinting program which runs the fingerprints against the FBIs Interagency Fingerprint Identification System (IAFIS). This allows the post to process clearances on false hits in the same day, while clearances for positive hits are often received within two days. Cases with complex admissibility issues involving criminal convictions, especially from other countries, are generally not suitable for TCN processing in Canada or Mexico. Drunk-Driving Incidents It is critical to ask all clients if they have alcohol-related incidents in their background involving arrests and convictions. It is important to note that the DOS changed the mandatory panel physician referral requirements for applicants with alcohol-related incidents. 18 Under current guidance, NIV applicants who must be referred to a panel physician include: Those with a single alcohol-related arrest or conviction within the last five years; Those with two or more alcohol-related arrests or convictions within the last 10 years; or If there is any other evidence to suggest an alcohol problem. Applicants who are referred to a panel physician due to alcohol-related offenses must receive a full medical exam evaluation, less the vaccination requirements for NIV applicants. Chest X-rays and any other necessary testing must be conducted for the exam to be considered complete. The panel physician may refer the client to a psychologist for a mental status evaluation, even for DUI cases. It is important that counsel have extensive documentation of treatment and rehabilitation in the application packet. Processing times to clear these checks vary, but are usually not lengthy (two to four days, based on recent reports).
9 FAM 40.11 N11 for a complete discussion on physical and mental grounds of inadmissibility based on updated CDC guidance.
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SAO Expedites and Follow-Up Procedures DOS can expedite SAOs only if there is a dire medical emergency, significant U.S. government interest, or a humanitarian concern. 19 The expedite request must be approved by the Chief or Deputy Chief of the Coordination Division in the Visa Office (VO). It is advisable to submit an expedite request letter from the petitioner or sponsor, detailing the emergent reasons for the applicants entry to the United States, to the consular officer at the post where the application was submitted at the time of the visa interview. It becomes burdensome for a consular officer to upgrade a case to expedite after the clearance has left the consular post. Attorneys report that security clearance delays have increased in recent months at all posts. If a security check has been pending for over 60 days, attorneys may call the Visa Office Public Inquiries line at (202) 663-1225. Alternatively, attorneys can also send an inquiry via e-mail to legalnet@state.gov. The subject line caption should state overdue SAO. 20 Additionally, you should follow up with the post directly to see if anything further can be done to expedite the SAO. Keep in mind that if a visa applicant is subject to a security check at one post, he or she will be subject to such clearance at every other post until the SAO is completed. However, the applicant does not have to return to the original post of application to obtain the visa stamp once the security check has been completed. Unfortunately, it is impossible to pre-adjudicate, preempt or avoid an SAO, as the check is not triggered until the visa interview. However, preparation with your client in advance of the interview can help to alleviate the inconvenience and delays resulting from SAOs. Discussions about the possibility of administrative processing should take place before the client leaves the United States and backup measures should be discussed in the event the applicant is subject to an SAO. The location of the consular post may be critically important if the applicant needs a place to stay long-term or a location where their employer has another office where they can work while waiting for visa issuance. Nevertheless, you and your client may choose to apply in Canada on purposeassuming they have authorization to remain there for an extended periodexpressly hoping that an SAO will be processed faster there than in the applicants home country. Regardless of your choice, be sure to thoroughly explain all risks in writing to adequately set client expectations. Although it is impossible to avoid SAOs, certain steps can be taken in advance of the interview to prepare a client for the interview process. Have the client carefully review the application and supporting documentation to understand what they are presenting to the post and to ensure they can discuss the materials. Ensure the client is familiar with the particular procedures of the post where they will be applying as each post has small variances in their processes and procedures. Provide the client with possible interview questions to they know what to expect once they are in front of the officer. If applicable, provide the client with a legal brief, expedite request or waiver application. Finally, discuss the possibility of an SAO and what measures have been put in place in the event of a security check. If the applicant is ultimately subject to administrative processing, follow up with the NIV section chief and the VO once 60 days have passed. The contact information for the post can often be found on the consular website. When communicating with the post it is important to understand that once the applicant is subject to a security check, it is out of the posts hands and they are often waiting on the VO to return a clearance so they can issue the visa. ROLE OF THE ATTORNEY AND COMMUNICATING WITH THE POST Question: How important is it to research the consular post before sending my client? Arent all posts all basically the same? Answer: Not only are all consular posts not the same, their policies, procedures and adjudicatory practices vary, even sometimes within the post. It is your job as competent counsel to research the policies and procedures at the post where your client will apply.
See AILA Liaison/DOS Meeting Minutes (10/22/2009), published on AILA InfoNet at Doc. No. 10020230 (posted Feb. 2, 2010).
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See DOS VO Inquiry Procedures, published on AILA InfoNet at Doc. No. 08121971 (posted Dec. 19, 2008).
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The prepared attorney will know to whom inquiries should be directed to at a particular post, as well as the local procedures for doing so. Does the post prefer email, phone, fax, or use of a specific online inquiry system? The post in Ciudad Juarez, for example, prefers use of an attorney online inquiry system. Fax and email communication from attorneys are rarely reviewed timely enough to resolve issues. The attorney should also be aware of possible variations to accepted mission policy for the country the applicant might expect to see at a particular post for the particular nonimmigrant visa sought. Question: My clients complete the visa application and then discuss the information with my paralegal. I make sure they understand the series of documents and the overall application process. Isnt that enough preparation? It is just a visa stamp, isnt it? Answer: No. Understand from the beginning that even an immaculate petition and instant approval from USCIS are worthless without a visa. Dont let your efforts in securing the petition approval go to waste at the post for failure to finish your job as the attorney of record. Always have a preparation interview with the client. Omission of this step can result in disasters and very unhappy clients. The experienced attorney will ask their clients the right questions and insist on truthful and complete answers. This may only be accomplished by taking the time to discuss the questions on the visa application forms and the legal requirements for the visa category sought. If a client does not understand, for example, the difference between her legal intention to seek a nonimmigrant TN visa and her future hope of someday obtaining permanent residence, she may inadvertently make a statement during the consular interview that leads the consular officer to deny her application for failure to have nonimmigrant intent under INA Section 214(b). Similarly, does the applicant have a criminal arrest or conviction he is reluctant to discuss? If no arrest, has the applicant been hospitalized or sought help for substance abuse? If the consular officer were to ask the applicant, have you ever used any illegal drugs, would you as the attorney know the answer? Understanding what grounds of inadmissibility your client may have already trigged or is about to trigger is a key aspect of consular practice and a starting point for proper client preparation. To make your communications with your client more effective, try to review questions and documents in person. If a personal meeting is not possible, you can use Skype and a webcam to make sure your client understands all aspects of his or her application and effectively uses non-verbal communication in presenting their case. Question: The petition was approved by USCIS, the visa application is complete, and the client is prepared for the consular experience; am I done yet? Answer: No. Having an approved USCIS petition is no guarantee of visa issuance. Most attorneys are not able to physically accompany clients to Canada or Mexico due to geographic, scheduling, or other limitations. And many clients are unwilling to pay for this additional representation. Some clients, however, may need your assistance in Mexico or Canada during the consular application process. While not all clients will choose this level of service, where it is possible and appropriate to offer it, doing so can make a big difference in the visa application process. If you are not going in person to the interview, make sure you have a mock interview with the client to prepare him or her to present the case as effectively as possible. Attorney Assistance at Post (to the extent allowed) For the past few years, consular posts in Canada and Mexico have not permitted attorneys to be physically present during consular interviews of clients. AILA leadership is working diligently to restore the right to counsel to visa applicants. The harm to U.S. family members and U.S. businesses by deprivation of this fundamental right is incalculable. In the authors experience, many consular adjudication errors and visa issuance mishaps could have easily been avoided with a word or two of clarification or explanation from an immigration attorney. As attorney in-person representation is not currently permitted at the border posts, the next best position for the attorney is to accompany the client to the post and remain on stand-by (near the consulate) should there be a problem at post or during issuance of the visa. The applicant should feel free to indicate to the consular officer that the attorney is standing by to address any and all concerns the consular officer or NIV chief might have about the application. It is also a good idea to have a representative of the petitioning employer ready to answer any questions via telephone in employment-based cases. A word of caution is warranted here. No consular officer or NIV chief wishes to be lectured on the law. The politic attorney will present the legal argument, if asked, in a courteous, diplomatic, and professional
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manner, always leaving the post officials a way to save face and correct the error all at once. It is well-advised to keep in mind the attorneys goal is timely visa issuance, not governmental acknowledgment or an error, or that the attorney or applicant was right. Question: The petition was approved, the visa is issued, and the client is happy; am I done yet? Answer: No. You must advise the client on what to expect from CBP at the border. Most attorneys are not able to accompany clients to the port of entry due to geographic, scheduling, or other limitations. Also, many clients are not willing to pay for additional representation at the port of entry. Some clients, however, may need your assistance just a bit longer for the CBP admission process. And again, while not all clients will require this level of service, where it is possible and appropriate to offer it, doing so can make a big difference. Attorney Assistance at Port of Entry (to the extent allowed) Often, a client will need attorney assistance with the consular filing, as well as at the port of entry when seeking admission to the United States under the newly issued visa. As there is no right to counsel at a port of entry, 21 the practice point above applies in full. The role of the attorney at the port of entry following consular issuance of a visa is to be ready to provide any information, clarification, or assistance the CBP admissions officer might require, and to communicate with the shift supervisor or port director should the officer make an egregious legal error that prejudices or limits your clients admission in any way. Relatively common admissions errors include issuing a form I-94 with the incorrect expiration date, charging an inapplicable fee (Mexican TN charged $50 as required of Canadians), or requiring documentation that does not exist (I-797 approval notice naming the L-1 visa holder entering under an approved Blanket L petition). COMMON ATTORNEY PITFALLS AND A FEW ETHICAL CONSIDERATIONS The prudent, dare we say even experienced attorney, will forever keep these common pitfalls and ethical considerations in mind: Failure to recognize posts peculiarities or understand the adjudicatory time line/possible delays; Lack of substantive (or current) understanding of visa classification sought; Inadequate client interview/preparation; Assuming port of entry is a rubber stamp following visa issuance; Ethics go hand in hand with the role of the attorney; Maintain client control: Dont be pushed over the line even if it costs you your best client; Truth and nothing but the truth; A good reputation is yours to lose, so dont; and Maintaining the image of your practice group, firm, and AILA is your responsibility. Dont squander your good name/reputation for any client. CONCLUSION Despite the potential risks, TCN processing in Canada and Mexico continues to be a desirable option and clients are especially appreciative of attorneys who accompany them to the often intimidating NIV consular interview/post and with the admission process at the CBP port of entry. For most TCN applicants who are successful in their visa application, their visas are generally issued within several days of the interview. For over 10 years, the DOS TCN program has been operating successfully and the TCN posts in Canada and Mexico are experienced with processing NIV applications, appointments are usually available, and attorneys are often able to assist their clients in this complex area of practice.
21
See 8 CFR 292.5(b).

ICE WORKSITE INVESTIGATIONS: PRACTICE ADVISORY ON TECHNICAL AND PROCEDURAL VIOLATIONS

by Amy Marmer Nice *
One aspect of worksite investigations that continues to puzzle is the governments focus on enforcement actions concerning technical and procedural errors by employers. The history in this area is telling. Because we know that those who cannot remember the past are condemned to repeat it, 1 we endeavor here to integrate a background on the origin of the distinction between technical and substantive violations. This article provides an advisory to practitioners concerning the history and current status of technical errors in the employment verification context, in the hope that it will guide practitioners in advocating for their employer clients when dealing with Immigration and Customs Enforcement (ICE). Although the legacy Immigration and Naturalization Service (INS) published draft regulations in 1998 2 proposing implementation of Section 411 of IIRAIRA (the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), also known as the Bono amendment, the government has never finalized regulations in this area. The Bono amendment sought to reflect the fact that employers, especially small businesses, could act in good faith and still be in violation of the obligation to complete the I-9 employment verification form, as suggested and promoted by former restaurateur Sonny Bono, then a member of Congress. In light of the increase in ICEs worksite enforcement activity under the Obama administration, understanding the genesis of IIRAIRA Section 411 is important and relevant, as ICE is required to recognize the principles articulated in the Bono amendment. The U.S. economy functions largely on the back of small business. More than 61 percent of the 6.05 million employers in America today employ 4 or fewer workers, and, in addition, 35 percent of the workforce is employed by employers with fewer than 100 workers. 3 It is employers who have the obligation to attest to employment verification of the nations workforce, an obligation that, ever since its creation in the passage of the Immigration Reform and Control Act 25 years ago, has involved a complex process. The simple fact is that todays average employer, just like the restaurateur Sonny Bono, does not have the knowledge or skills to recognize the sophisticated fraudulent documents that employees may present during the hiring process. As was true during the congressional testimony leading to IIRAIRA, and continues to be a fact of life today, fraudulent documents are commonplace and hard to detect. Moreover, the Department of Justice compounds this difficulty by emphasizing through its pronouncements to employers and enforcement activity that employers must accept documents that appear to be genuine on their face or face enforcement from the Office of Special Counsel. Furthermore, U.S. Citizenship and Immigration Services (USCIS) (as well as the legacy INS) and the Social Security Administration have contributed to the difficulty faced by employers by
Amy Marmer Nice is executive director for Immigration Policy at the U.S. Chamber of Commerce in Washington, D.C., where she works on addressing immigration policy issues at the federal agencies and before Congress, including how the government should monitor compliance with employment verification obligations. Prior to joining the Chamber in December 2010, Ms. Nice worked for 23 years in private practice, representing employers on a wide range of immigration-related issues, including 21 years at Dickstein Shapiro LLP in Washington, D.C., where she managed the immigration practice. The author would like to thank AILA members Josie Gonzalez, Bonnie Gibson, Marketa Lindt, Mary Pivec, and Kathleen Walker, who assisted the author in preparing documents concerning technical errors for AILAs Verification Liaison Committee; those documents were integrated into this advisory.
G. Santayana, in The Life of Reason (Volume 1, Reason in Common Sense), published 1905. As can be especially appreciation by the immigration bar, Santayana was a Spanish citizen but is generally considered an American philosopher because he was raised and educated in the United States and wrote in English. 2 63 Fed Reg. 16909 (Apr. 7, 1998). 3 U.S. Economic Census.
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requiring employers to accept any acceptable document or combination of documents from a plethora of documents in a variety of formats in the course of the I-9 process. 4 During hearings on what became the 1996 legislation, Representative Bono explained that: [E]very time we place a burden on small business, which is the backbone of our businesses there, we have a potential of impacting our economy more. And I dont think theres an equity here as far as penalizing small businesses for in good faith making a mistake in a very complicated paperwork. 5 The testimony demonstrates that Representative Bonos concerns related directly to the issue of employees presenting fraudulent documents. In fact, when Assistant Commissioner Bach offered that employers intentionally accept bad documents and should be penalized for doing so, Representative Bono responded: Its very important, but let me ask you something. When you say produce a document that they are here legally, dontdoesnt the employer fulfill their [sic] obligation? I mean, how would we possibly know? Those documents are counterfeited so beautifully; there is no way of recognizing the difference between a false document and a legal document. 6 In the end the government confirmed prior to enactment that through common sense regulation, [we can] make it possible to remove the burden of guilt from a small business person. 7 Contrary to the intent of the Bono amendment to shelter employers who act in good faith from liability for technical and procedural shortcomings in their I-9 practices, ICE today takes the position that the government can infer bad faith circumstantially, based solely on a high number of unauthorized aliens found when an employer makes technical or procedural errors in I-9 compliance. In essence, this standard allows ICE to find bad faith, and thus negate the procedural and technical defense, any time that a government audit uncovers a large number of technical violations on I-9 forms for employees later determined to have presented fraudulent documents in the process. But the INA separately imposes liabilities on employers who knowingly accept fraudulent documents; thus, ICEs approach is not appropriate in light of the intent behind the Bono amendment. The INA creates two statutory schemes: technical and procedural defense for good faith employers and harsh penalties for knowing employment and document fraud. These two standards should not be conflated. Employers who knowingly employ undocumented aliens or accept fraudulent documents should not enjoy the good faith benefits of the technical and procedural defense. Under current ICE practices, an employer who is innocent of document fraud nonetheless can face substantial monetary liability on account of scores of technical paperwork violations, even though the employer had no reason to know that the documents presented in the I-9 process were fraudulent, even if those same violations would otherwise trigger the defense where the employee is work authorized. When challenging fines that were augmented simply because the workers were unauthorized, attorneys should argue that it contradicts common sense to impose the same punishment on employers who are seeking to comply with the law as on egregious violators that knowingly subvert Immigration Reform and Control Act (IRCA) laws by intentionally hiring unauthorized workers. It is not fairand it is patently contrary to the Bono amendmentto preclude applicability of the technical and procedural defense in the very circumstances that gave rise to Representative Bonos concern in the first place. Another procedural violation where ICE practices seem to contradict the Bono amendment is the timeliness violation. ICE takes the position that a late-completed I-9 after September 30, 1996 (the date of IIRAIRA enactment) is not a continuing violation, and thus cannot be corrected and will lead to a
4
The preamble of the proposed regulations on document reduction makes reference to the long-standing criticism of the large number of permissible I-9 documents. 63 Fed Reg. 5287 at 5289 (Feb. 2, 1998). 5 Hearing before the Subcommittee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, 104th Cong., First Session, Mar. 30, 1995 Serial No. 14 (hereafter referred to as Mar. 1995 Congressional Hearing Report), at p.55. 6 Id. at 54. 7 Id. at 55.
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verification I-9 fine. However, the ability to correct this procedural error is vital to good faith employers seeking to be compliant with the I-9 rules because it provides an incentive for the employer to perform regular internal audits of I-9 files; it should protect such employers from fines when they complete I-9s found to be missing in the course of internal audits. Despite its apparent inconsistency with the Bono amendment, ICE often limits application of the technical and procedural defense to those I-9 forms that were completed before ICE serves a notice of inspection (NOI). Once the inspection notice is served, some ICE auditors take the position that it is too late for the employer to complete an I-9. Equally offensive, ICE has even assessed fines for I-9s that were completed late but were executed long before the ICE inspection occurred. The following arguments support the conclusion that late completion violations deserve the protection of the Bono amendment: First, it bears emphasis that even the legacy INSs 1998 proposed regulations do not draw a line of demarcation at the time of an NOI. Instead, the regulations anticipate that corrections can be made at any time until presented at the time of ICE inspection. Contrary to ICEs current position in the field, the proposed rule states that Failures to meet a verification requirement continue from the first day the requirement must be met until .the day that the failures can no longer be corrected, such as when the Service or other enforcement agency inspects the employersI-9s 8 Moreover, this interpretation is in keeping with controlling Office of the Chief Administrative Hearing Office (OCAHO) precedent. 9 Second, the distinction between late completion violations and other technical and procedural violations set out in the 1998 proposed regulationsthe apparent basis for the current ICE enforcement posture on I9s completed post-NOIdoes not stand for the proposition that missing forms are exempt from late corrections. Rather, the distinction is offered to explain the difference between a continuing violation which can be correctedand a fixed violation, which cannot be corrected, but may nonetheless be technical and procedural. The regulatory distinction in this regard assumes that the employer has already obtained an I-9, but that it was completed late. Where the good faith employer neglected to complete or cannot locate an I-9, the failure is not one of timeliness; it is a failure to meet the verification requirement, and, under the regulations, the employer has until the date the I-9s must be surrendered to correct such failures. Practitioners should also be aware that ICE treats timeliness errors differently depending on whether they occurred before or after September 30, 1996 (IIRAIRAs enactment date), even though the distinction is confusing and no longer has legal consequence in light of the passage of time and the applicability of the underlying statute of limitations. In drafting the proposed regulations in 1998, the legacy INS appears to have concluded that it had no authority under the safe harbor provisions to forgive timeliness violations, which are fixed in time, as opposed to continuing violations that predated the Bono amendment and continued to exist beyond the date of its passage. This distinction led to the awkward result of making the most stale errorsthe type of errors that led to the passage of the Bono amendment in the first placesubject to a fine, while the identical error committed even days later became exempt. However, contrary to ICEs position, OCAHO has authoritatively applied the federal statute of limitations of five years to I-9 violations, when reviewing liability for any pre-1996 fixed (and not continuing) employer conduct. 10 It is important for employers to be able to rely on statutes of limitations, as OCAHO has explained:
63 Fed Reg. at 16910
United States v. Naim Ojeil, 7 OCAHO 984 (1997). See, U.S. v. Curran Engineering, 7 OCAHO 975 at 897 (1997) where OCAHO (in a case arising before the Bono amendments) held that an employer violated the timeliness requirements by failing to complete an I-9 form by the date that the completion is required. OCAHO held that the claim was time barred by the five-year statute of limitations under 28 USC 2462, finding The timeliness violation is frozen in time at that point.
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Statutes of limitations also reflect the judgment that there comes a time when the potential defendant ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations. 11 To address the reality of ICEs current position on technical and procedural violations, practitioners should encourage their clients to conduct an internal audit and correct all such violations. In conducting an internal audit, employers should look for and correct technical and procedural errors. In particular, the following common technical and procedural errors should be the focus of self-audits by employers: Use of the Spanish version of the Form I-9 except in Puerto Rico. Failure to use current version of Form I-9 at the time of hire (effective 2/2/2009). Employees maiden name, address, or birth date missing in Section I. No alien registration number next to the phrase in Section I, A Lawful Permanent Resident, where the number is in Sections 2 or 3 of the Form I-9 (or on a document retained with the I-9 and presented at the I9 inspection). No alien registration number or admission number next to the phrase in Section I, An alien authorized to work until where the number is in Sections 2 or 3 of the Form I-9 (or on a document retained with the I-9 and presented at the I-9 inspection). Employee attestation date missing in Section I. Employee attestation not completed at the time of hire in Section I. Name, address or signature of the preparer and/or translator missing in Section I. No date in the preparer and/or translator certification box in Section I. No document identification number of a List A, B or C document in Section 2 where a copy of document(s) is retained with the Form I-9 and presented at the Form I-9 inspection. No document expiration date of a List A, B or C document in Section 2 where a copy of document(s) is retained with the Form I-9 and presented at the Form I-9 inspection. Failure to state Individual under age 18 in Column B, for employees under the age of 18 that used only list C documents. Failure to state Special Placement in Column B, for employees with a disability using only a List C document. Business name or address missing in Section 2. Date employment begins missing in Section 2. Employers or authorized representatives printed name or title missing in Section 2. No employer attestation date in Section 2. Employer attestation in Section 2 not completed within three business days of hire. If the employee is hired for three business days or less, at the time of hire. Employment Authorization Documentation in Section 2, failed to use document number (effective 2/2/2009). No document identification number of a List A, B or C document in Section 3 where a copy of document(s) is retained with the Form I-9 and presented at the Form I-9 inspection. No document expiration date of a List A, B or C document in Section 3 where a copy of document(s) is retained with the Form I-9 and presented at the Form I-9 inspection. Date of rehire missing in Section 3, if applicable. New name missing in Section 3, if applicable.
11
Id. at 890.
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The Obama administration has said that its current worksite enforcement policy should touch as many employers as possible. 12 Indeed, from FY08 to FY10 the number of worksite investigations has increased some 400 percent, from about 500 to well over 2,500, and in February 2011, ICE commenced a new round of worksite investigations at 1,000 worksites. Now is the time for the immigration bar to help employers develop a culture of compliance, and to advocate for a fair interpretation of the Bono proviso concerning technical and substantive I-9 violations.
Testimony of ICE Deputy Director K. C. Kibble, before the House Committee on the Judiciary, Subcommittee on Immigration and Policy Enforcement, Jan. 26, 2011.
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ADVISING CLIENTS ABOUT THE POTENTIAL CRIMINAL CONSEQUENCES OF ICE HSI WORKSITE INVESTIGATIONS
by Kevin Lashus, Amy L. Peck, Daniel Brown, and Bonnie Gibson *
Ok. So This Happens to Your Best Friends Client: FOX News, Saturday, March 19, 2005 Wal-Mart Stores Inc., the worlds largest retailer, escaped criminal charges when it agreed to pay $11 million, a record fine in a civil immigration case, to end a federal probe into its use of illegal immigrants as janitors. Additionally, 12 businesses that provided contract janitor services to Wal-Mart will pay $4 million in fines and plead guilty to criminal immigration charges, officials said. Wal-Marts shares edged down 73 cents, or 1.4 percent, to $51.60 on the New York Stock Exchange. The deal resolves a more than four-year-long Department of Justice investigation into the employment practices of the companys former floor-cleaning contractors. This case breaks new ground not only because this is a record dollar amount for a civil immigration settlement, but because this settlement requires Wal-Mart to create an internal program to ensure future compliance with immigration laws by Wal-Mart contractors and by Wal-Mart itself, said Michael J. Garcia, assistant secretary for U.S. Immigration and Customs Enforcement. We plan to use this settlement as a model for future cases and efforts in worksite enforcement, he said. Wal-Mart received a target letter from a grand jury in Pennsylvania and was the subject of an October 2003 raid spanning 21 states and 60 stores. The raids led to the arrest of 245 allegedly illegal immigrants. Wal-Mart, which has 1.2 million domestic workers, had pledged its cooperation in the investigation. We are satisfied that this is being settled as a civil matter, Wal-Mart spokeswoman Mona Williams said. Despite a long, thorough and high-profile investigation, the government has not charged anyone at Wal-Mart with wrongdoing.
Kevin Lashus is of counsel with Greenberg Traurig LLP in its Austin office. He is board-certified in immigration and nationality law by the Texas Board of Legal Specialization. He was an assistant chief counsel with Immigration and Customs Enforcement (ICE), advising special agents during criminal removal proceedings, national security prosecutions, and worksite enforcement investigations. His practice focuses on corporate compliance, providing uniquely tailored advice to assist clients in developing comprehensive employment authorization and immigration-related compliance systems, including full-scale or localized E-Verify implementation protocols. Amy L. Peck is in private practice in Omaha, practicing exclusively in immigration law. She is currently an elected member of AILAs Board of Governors (200811), and is serving on the AILA National Employment Verification Committee, the AILA Comprehensive Immigration Reform Committee, and the American Immigration Councils Fundraising Committee. Ms. Peck is a founding member of the AILA Global Migration Action Group, which involves lawyers from around the world. Daniel Brown is a partner in Berry Appleman & Leidens Washington, D.C., office. Mr. Brown has extensive experience counseling corporate clients on business immigration and compliance and enforcement matters. Mr. Brown held a number of senior positions within the U.S. Department of Homeland Security prior to entering private practice. From May 2005 to August 2006, he served as counselor to the assistant secretary and then director of the Office of Policy and Planning at ICE. Mr. Brown also served as the first director of ICEs Secure Border Initiative Program Management Office. Bonnie Gibson is a partner in the Phoenix office of Fragomen, Del Rey, Bernsen & Loewy, LLP and a leader of the firms Global Compliance Practice Group. She brings 25 years of California labor and employment experience to a practice now concentrated on immigration compliance litigation and corporate compliance programs. Ms. Gibson is a member of AILAs Verification Liaison Committee and previously served as AILA liaison to the Social Security Administration and E-Verify. She is listed in Whos Who Legalthe International Whos Who of Corporate Immigration Lawyers for 2010 and 2011. She graduated summa cum laude from the Indiana University School of Law.
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No longer does Wal-Mart employ outside contractors to clean its floors. Companies that do contract work for other chores will have stricter rules to follow to win those contracts, and upper management will have to approve contracts of more than $10,000, Williams said. It is a lot of money, but I think that is because it is designed to get attention and remind businesses everywhere that they have a duty to ensure their outside contractors are following federal immigration laws. In two separate investigations, authorities uncovered the cases of an estimated 345 illegal immigrants contracted as janitors at Wal-Mart stores. Many of the workers worked seven days or nights a week without overtime pay or injury compensation, attorneys said. Those who worked nights were often locked in the store until the morning. Wal-Mart Stores, based in Bentonville, Ark., had sales last year of $288.19 billion. In 2001, authorities arrested an estimated 100 illegal immigrants at Wal-Mart stores in Pennsylvania, New York, Ohio and Missouri. Last year, on Oct. 23, federal agents raided 60 Wal-Mart stores in 21 states, netting 245 immigrants who were placed in deportation proceedings. ICE said the workers came from 18 different nations, including 90 from Mexico, 35 from the Czech Republic, 22 from Mongolia and 20 from Brazil. Officials said at the time of the raids the investigation involved wiretaps that revealed Wal-Mart executives were aware that the subcontractors used illegal workers. Once the raid began, Wal-Mart told its executives to preserve documents. Federal agents didnt wait and moved in on part of the companys Bentonville headquarters, taking boxes from the office of a midlevel executive. An employer can face civil and criminal penalties for knowingly hiring illegal immigrants or failing to comply with certain employee record-keeping regulations. But the settlement spared Wal-Mart of any criminal charges, though it still faces a civil suit on behalf of the immigrants that is pending in New Jersey. The federal settlement also directs Wal-Mart to train all current and future store managers to prevent employing, hiring or recruiting illegal immigrants, and to comply with ongoing investigations of cleaning contractors previously used by the company. This practice advisory sets-out to identify the basis for the typical criminal worksite investigation, the parallel administrative investigation and its impact on the litigation defense strategy, and how to prepare you client for the potential penalty assessment. THE PROCESS Immigration and Customs Enforcement (ICE) agents and auditors who conduct an inspection of an employers Forms I-9 for compliance may administratively fine the employer for all substantive and uncorrected technical violations. Additionally, employers determined to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity, may be fined, may be criminally prosecuted, and may be prevented from participating in future federal contracts. So, two potential areas of exposure: administrative and criminal. Penalties for substantive paper Form I-9 violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation. In determining the penalty amounts, ICE considers five factors during its assessment: (1) the size of the business; (2) its good faith efforts to train its managers, etc., and to minimize historical exposure; (3) the seriousness of the violation; (4) whether the violation involved unauthorized workers; and (5) the companies history of previous violations. Monetary penalties associated with the criminal violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end.
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Range of the Administrative Fine Assessment In instances where a Notice of Intent to Fine (NOIF) is served, charging documents will initiate the administrative review process. The employer has the opportunity to either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing officer within 30 days of receipt of the NOIF. Range of the Criminal Penalties for Knowing Hire/Continue to Employ Counts Aside from the typical knowing hire or continuing to employ criminal provisions, companies and company officials may be charged under a variety of statutes in an immigration enforcement case. They include: criminal sanctions of Immigration Reform and Control Act (IRCA)including, knowingly (or in reckless disregard of the fact that an alien has come to the United States in violation of the law) conceals, harbors, or shields from detection such alien in any place, including any building or any means of transportation. The penalty for harboring is up to 10 years and a $250,000 fine. Racketeer Influenced and Corrupt Organizations Act (RICO). (20 years/$250,000) Statutes that prohibit false statements and false identity documents. (5 years/$250,000) Mail fraud and wire fraud (20 years/$250,000) Money laundering (10 years/$250,000) Administrative and Civil Forfeiture Employers found to be liable for certain offenses may be subject to having seized any assets that are deemed to be the fruits of the wrongdoing. SUBCONTRACTOR EXPOSURE AND LIABILITY Employers that utilize contract labor providers (like Wal-Mart in the example above) and general contractors (notably within the construction industry) are especially vulnerable to Homeland Security Investigations (HSI) allegations of violations of federal immigration law that flow from the difficulty of verifying the work authorization of leased or subcontracted employees. An employee leasing firm or a subcontractor violates federal law when they fail to complete the I-9 form properlywhich exposes the employer to the possibility that the contractor has employed an unauthorized individual. IRCA does not impose a duty on an employer to verify the eligibility of an independent contractor. But, an employer is prohibited from contracting (or otherwise agreeing with another vendor) to provide the labor of a person while knowing that the person is not authorized to work in the United States. HSI commonly alleges that the law was intended to create a zero tolerance policy for a contractors unknowing, unintentional employment of unauthorized workers, and that by leveraging allegations of conspiracy, it will be able to enforce the law as intended. Therefore, it is more critical to ensure compliance in these situations by contractually obligating the vendor or subcontractor to comply with IRCA; thereby creating a rebuttable presumption of good faith. CULTURE OF COMPLIANCE To ensure that you client is prepared for a worksite investigation, be prepared to share the following ICE Mutual Agreement Between Government and Employers (IMAGE) best practices with themassuming that at some point during the negotiation phase of the investigationICE HSI may recommend these items in consideration toward the favorable resolution of the case: Use E-Verify, the Department of Homeland Security (DHS) employment eligibility verification program, to verify the employment eligibility of all new hires. Use the Social Security Number Verification Service (SSNVS) for wage reporting purposes. Make a good faith effort to correct and verify the names and Social Security numbers of the current workforce and work with employees to resolve any discrepancies. Establish a written hiring and employment eligibility verification policy.
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Establish an internal compliance and training program related to the hiring and employment verification process, including completion of Form I-9, how to detect fraudulent use of documents in the verification process, and how to use E-Verify and SSNVS. Require the Form I-9 and E-Verify process to be conducted only by individuals who have received appropriate training and include a secondary review as part of each employees verification to minimize the potential for a single individual to subvert the process. Arrange for annual Form I-9 audits by an external auditing firm or a trained employee not otherwise involved in the Form I-9 process. Establish a procedure to report to ICE credible information of suspected criminal misconduct in the employment eligibility verification process. Ensure that contractors and/or subcontractors establish procedures to comply with employment eligibility verification requirements. Encourage contractors and/or subcontractors to incorporate IMAGE Best Practices and when practicable incorporate the use of E-Verify in subcontractor agreements. Establish a protocol for responding to letters or other information received from federal and state government agencies indicating that there is a discrepancy between the agencys information and the information provided by the employer or employee (for example, no match letters received from the Social Security Administration) and provide employees with an opportunity to make a good faith effort to resolve the discrepancy when it is not due to employer error. Establish a tip line mechanism (inbox, e-mail, etc.) for employees to report activity relating to the employment of unauthorized workers, and a protocol for responding to credible employee tips. Establish and maintain appropriate policies, practices and safeguards to ensure that authorized workers are not treated differently with respect to hiring, firing, or recruitment or referral for a fee or during the Form I-9, E-Verify or SSNVS processes because of citizenship status or national origin. Maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires CONCLUSION Effectively representing the interests of your client in these types of cases requires a savvy immigration expert to view the facts of the case as HSI doeswith a bias that the employer was aware that a significant portion of the workforce were not authorized to work. With that assumption, it is critical to educate the client early in the representation about the potential worst-case result. Anticipate that the issue of maintaining business continuity will ultimately predominate any discussion of active remediationwhether, after the government announces its presence, the employer can effectively notify the unauthorized workers (knowing some of the workers will abscond) while maintaining peak production (capacity). Unless you can effectively anticipate the worst-case, the representation will be re-active in nature and may ultimately prejudice the client during settlement negotiation. So, it is critical to educate the client about the potentialities of the investigationincluding the prospect of criminal prosecutionprior to accepting the representation.
ICE WORKSITE INVESTIGATIONS: REGIONAL DIFFERENCES IN ICE I-9 AUDIT NOTICES

by Josie Gonzalez *
When employers are served with a Notice of Inspection (NOI) by U.S. Immigration and Customs Enforcement (ICE), they will receive a demand for a variety of documents that will depend on the ICE office conducting the audit. This practice advisory summarizes the inconsistencies among the ICE regions, provides copies of the Notices used by ICE in worksite enforcement, explains why certain documents are demanded and, 1 lastly, presents practice pointers for coping with NOI demands. Principal inconsistencies among ICE offices concerning scope of worksite audits: CONFLICTING REQUESTS FOR TERM EMPLOYEE I-9s 2 Three years; One year; Six months; No term I-9s, just current workers hired after November 6, 1986depending on the resources of the local office and the size of the employer. (Or, I-9s for a segment of the workforce, not all current workers.). Practice Pointer: ICE will often ask for I-9s that may fall beyond the retention requirement. For example, it will ask for I-9s for those employees who were termed in the last three years. If an employee was termed two or three years ago and was already employed on the date of termination for three years, then the employer need only retain that I-9 for one more year. One should advise the ICE auditor that the scope must be narrowed to conform to the regulatory requirements. In general, one can negotiate with ICE auditors to narrow the scope to cover just current I-9s; or just current I-9s now and a delay in the surrender of other I-9s; or just I-9s for those termed in the last year. A smart auditor will know it is sensible to require just the I-9s for those employees termed in the last year because the employer must retain the I-9 for one year after termination. Otherwise, the task of identifying hire dates and term dates for those employees whose employment was terminated over the last three years is quite laborious. Obtain written confirmation of whatever is negotiated with the ICE auditor. Timetable and Manner for Surrender of the I-9s The regulations require the surrender of I-9s within three days of demand. Some ICE offices require the surrender of the I-9s in three days, while others provide a longer period. Some offices will personally retrieve
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Josie Gonzalez is a graduate of the University of California, Boalt Hall at Berkley and the managing attorney at Gonzalez & Harris, a Pasadena-based law firm representing employers in all immigration matters since 1978. Ms. Gonzalez serves as a member of AILAs Board of Governors and has been recognized by AILA with the Presidents Commendation for Outstanding Contributions for her work as lead counsel on AILAs BALCA Amicus Brief in HealthAmerica, and for excellence in Advancing the Practice of Immigration Law. She received the Lifetime Achievement Award (2005) from the Los Angeles County Bar Associations Immigration Law Section, and was the 2008 recipient of the AILA Founders Award for the most substantial impact on the field of immigration law or policy. Ms. Gonzalez publishes numerous articles for legal and trade journals. She also served as editor and co-editor of AILAs David Stanton Manual on Labor Certification (AILA 2005 Ed.), and (AILA 1998 Ed.), and editor-in chief of AILAs Guide to Worksite Enforcement & Corporate Compliance (AILA 2008 Ed.). 1 The Immigration and Customs Enforcement (ICE) Notices are available via InfoNet at the Doc. Nos. indicated at the end of the article. 2 Form I-9, Employment Eligibility Verification. 3 8 CFR 274a.2(b)(2)(i)(A)(B); U.S. Citizenship and Immigration Services (USCIS) M-274 Handbook for Employers (Rev. 01/05/11), available at www.uscis.gov/files/form/m-274.pdf, at 23. 4 8 CFR 274a.2(b)(2)(ii).
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the I-9s and related documents. Other ICE offices, on the other hand, particularly the smaller offices or one that is located remotely from the employers site, will send the NOI by certified mail, return receipt requested, and addressed to the owner, senior HR official, or registered agent of the business entity. Practice Pointer: Whichever the chosen manner of delivery, retain a copy of all documents surrendered to ICE. An experienced auditor who conducts an in-person inspection will inventory the items and provide one with a receipt. It is advantageous to prepare such an inventory beforehand if the auditor fails to provide one. Consider requesting an extension of time to surrender the I-9s. Generally, the extension pertains to reduced staffing and limited company resources, as well as difficulties retrieving term I-9s from storage facilities. If a request for an extension is denied and the burden of compliance seems onerous, consider: (1) complaining to ICE at the D.C Headquarters; (2) complaining to your local congressional representative and Chamber of Commerce; or (3) arrange for surrender of just the I-9s within three days and delay the surrender of those items listed in the NOI and described below under items 3 through 7. Once again, document in writing any changes agreed to by ICE regarding the date I-9s will be surrendered. Manner of Request for I-9 and Related Documents Some NOIs are accompanied by an Immigration Enforcement Subpoena to Appear and/or Produce Records pursuant to 8 USC 1225(d) and 8 CFR 287.4. On occasion, a subpoena may be issued commanding the employer to conceal the existence of the request, warning that disclosure could impede the investigation being conducted and thereby interfere with the enforcement of the law. Some NOIs include lists of suggested documents; while others demand that the I-9s and the list of documents be surrendered. Practice Pointer: Even though the subpoenas contain language stating that failure to comply with a subpoena may result in an order of contempt by a U.S. district court, as provided by 8 USC 1225(d)(4)(B),5 know that ICE cannot enforce a subpoena. If an employer refuses to surrender specific documents because the subpoena is overly broad, unreasonable, or would seriously impair the operation of the business, ICEs recourse is to seek enforcement in federal court, where the employer would strive to limit the scope of the subpoena. Indeed, ICE does have subpoena authority, but it must reasonably exercise its powers. That is, the requested items must pertain to the investigation. ICE may not conduct an expansive fishing expedition that makes compliance burdensome for the employer. Note that a subpoena is not required to compel surrender of the I-9s. Rather, a simple demand for I-9s is sufficient. However, the service of subpoenas appears to be a common practicepossibly because the elements of intimidation and authority that surround such a practice can terrify employers and give ICE an upper hand. When considering whether to surrender the I-9s and withhold documents demanded by the subpoena, remember that the latter documents might be obtained by a search warrant if the ICE auditors fear that evidence may be destroyed and there is reasonable cause to believe that the employer is hiring undocumented workers. The execution of a search warrant is a far more invasive and threatening vehicle than a subpoena where one might limit its scope and the timetable for delivery of the compelled items. A demand that the employer not reveal the contents of the subpoena to others is inappropriate in the context of ICE NOIs where an employer must notify the workforce to obtain the most updated information regarding the work authorization status recorded on the I-9. Typically, this type of admonition appears in grand jury proceedings where silence is commanded by judicial officers. Clearly, it is inappropriate for an employer to communicate the existence of an NOI in an effort to shield employees from ICE detection. There are, however, many legitimate reasons why service of the subpoena cannot be kept confidential, including the potential obligation to notify union representatives pursuant to certain bargaining contracts when employee information is being divulged to third parties.
INA 235(d)(4)(B).
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Request for Copies of Supporting Documents Recorded on the I-9 Most NOIs request copies of documents that were presented to prove identity and employment eligibility. Employers are not mandated to copy supporting documents, but the regulations provide that if copies are 6 made, then they should be retained with the I-9. There does not appear to be a penalty for failure to surrender such documents, but a refusal to disclose them may arouse ICEs suspicions. Practice Pointer: Note that since the passage of sec. 411 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) and the publication of implementing regulations elucidating the distinction between a technical and a substantive I-9 violation, an employer who has deficient I-9s, but retains 7 and surrenders a copy of supporting documents to ICE, enjoys an advantage. Certain deficiencies, such as a failure to record pertinent data like an employees alien registration number or drivers license data, will be viewed as only a technical violation. The employer may correct the deficiencies if documentation is retained and surrendered to ICE. However, the surrender of certain documents that are not listed as acceptable List A, List B, or List C documents could give rise to substantive I-9 violations that result in fines. Such documents include social security cards that do not authorize employment without Department of Homeland Securitys (DHS) approval, petition approval notices that do not accord work authorization, or foreign passports without an I-94, Arrival/Departure Record, that permit employment. Request for Employee Rosters or Payroll Reports Quarterly wage and hour reports for the scope of the audit; Either a list of employees or recent payroll for current employees; A list from a database or Excel spreadsheet that includes current and term employees with dates of hire and term dates; An electronic listing for all current and term employees with hire and term dates, home addresses, and telephone numbers; Roster or payroll that includes names, Social Security numbers, dates of birth, and dates of hire and term dates; and Payroll information, including hours worked for all employees dating back three years from the date of the letter, in electronic format. Practice Pointer: A government agency cannot compel one to create listings and electronic spreadsheets that do not exist. Some of the requested information may be burdensome to produce and irrelevant to the determination of whether there are employees who lack work authorization in the United States. Also, the requested information may duplicate information already available on the I-9 form or violate state privacy laws preserving the confidentiality of employee information. The purpose of the employee wage and hour report is to cross check via an official government source whether the employer has provided an I-9 for all employees covered in the audit. In a subpoena enforcement action, it is probable that a court would find a request for this document to be reasonable. While gathering and producing I-9s, an employer may find it advantageous to create spreadsheets, which are easy to surrender. Establishing the correct hire date is not always a straightforward task when employees transfer from one employer facility to another and retain either the original hire date or a new hire date. Also, employees who are laid off and return to work could also be accorded grandfathered or new hire dates. Exercise caution when determining hire dates and noting conflicts with the hire dates recorded on the I-9 form. Request for Information about the Business Operations and the Owners Federal Identification Numbers (FEINs), Articles of Incorporation, and copy of business license;
8 CFR 274a.2(b)(2)(i).
ICE Regulations Implementing Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) sec. 411 (Technical and Procedural Violations), originally published at), 63 Fed. Reg. 16909 (Apr. 7, 1998).
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List of all paid on-call employees; Independent contractor roster with dates of hire and term dates; List of all subcontractors and temporary employment agencies employed; List of federal contracts; Copies of filed Forms I-129, Petition for a Nonimmigrant Worker, or Forms I-140, Immigrant Petition for Alien Worker, and labor certifications filed; Information regarding any temporary staff used and names of agencies; Previous I-9 inspection notices; Social Security number, address, phone number, e-mail address of owner; and Organizational chart of company management. Practice Pointer: There are several reasons why these documents would be requested. A limited discussion follows because some reasons are self-evident. FEINS and other related corporate documents are needed to determine the legal entity being investigated and to locate business assets that are subject to seizure if criminal liability is established and asset forfeiture is invoked. An employer might consider challenging a demand for what could be perceived as a fishing expedition for contract workers that might be undocumented. It might consider refusing to provide listings for independent contractors and subcontractors for whom there is no obligation to complete an I-9 form. Copies of labor certifications might uncover the employment of individuals not authorized to work in the United States. Such a request, however, could prove tremendously burdensome for an employer who files numerous petitions for nonimmigrants with work authorization. One might request that ICE provide specific names of suspect individuals rather that a generic listing. Social Security Administration (SSA) No-Match Letters, Company Standard Operating Procedures (SOP), and E-Verify Registration Request for SSA No-Match Letters, also known as Employer Correction Requests, dating back to 2005; Copy of Company Hiring Practices or Standard Operating Procedure; and Information regarding Participation in E-Verify or SSNVS, which is the Social Security system allowing employers to verify Social Security numbers. Practice Pointer: While the mere receipt of an SSA No-Match letter is not incriminating, the employers conduct after receiving such letters might help prove that the employer knew that employees documents were fake. For example, an employer could have conducted meetings with employees and learned that employees were undocumented, but failed to terminate the workers. Also, it could have allowed employees to resign and work with new documents that were equally fake or belonged to another person. It could have paid the employee in cash to avoid reporting continued earnings under the erroneous social security number. A companys SOPs or participation in E-Verify or SSNVS might be helpful to show that an employer is making good faith efforts to refrain from knowingly hiring unauthorized workers. If a civil fine is assessed for I-9 irregularities, then the good faith of the employer will be considered a mitigating factor. In contrast, participating in E-Verify and continuing to employ someone after a final non-confirmation is issued can create a presumption of knowingly continuing to employ unauthorized workers and subject one to criminal or civil liability. CONCLUSION A key part of worksite investigations practice is being aware of the various types of Notices used by ICE during its investigative efforts. The sample notices listed below are available on AILA InfoNet. This article has provided practice pointers to explain why these notices are used by ICE, how to respond to them, and whether their usage should be challenged.
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NOTICE OF INSPECTION
(AILA INFONET AT DOC. NO. 09112460)
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SUBPOENA
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NOTICE OF DISCREPANCIES (AILA INFONET AT DOC. NO. 09031660)
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NOTIFICATION OF INSPECTION RESULTS (NO FURTHER INVESTIGATION)

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CONFIRMATION OF NOTICE OF INSPECTION RESULTS (EMPLOYEE NOT AUTHORIZED TO WORK)
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NOTICE OF INTENT TO FINE (AILA INFONET AT DOC. NO. 09031660)
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NOTICE OF SUSPECT DOCUMENTS

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NOTICE OF TECHNICAL OR PROCEDURAL FAILURES

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WARNING NOTICE (FORMAT)

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WARNING NOTICE (EXAMPLE)
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ISSUES AND UPDATES IN FRAUD INVESTIGATIONS

by Brad Hendrick, Daniel C. Horne, and Andrew W. Shackelford *
Over the past couple of years, the Fraud Detection and National Security Directorate (FDNS) has assumed a more prominent role in both the operations of the U.S. Citizenship and Immigration Services (USCIS) and in the lives of immigration attorneys. FDNS was created to enhance national security and to ensure that the right benefit is offered to the right person at the right time. Unlike some pilot projects or office-specific trends, FDNS involvement in benefit petitions is a national priority, and the prudent attorney should count on the fact that FDNS will make its presence felt in a significant percentage of cases. Although FDNS initially targeted R-1 and H-1B petitions, reports indicate that other types of visa petitions and organizations in general are under review. This article reviews the mechanics of an on-site investigation, best practices for FDNS interactions, some recent trends in FDNS investigations, dealing with visa revocations, and the ethical considerations implicated in FDNS site visits. MECHANICS OF AN ON-SITE INVESTIGATION An important tool of FDNS is the Administrative Site Visit and Verification Program (ASVVP). A petitioner consents to being investigated by signing Part 7 of the latest version of USCIS Form I-129. 1 Random ASVVP site visits are conducted in connection with H-1B changes and extensions of status. 2 However, because the investigation language is used on the Form I-129, it seems logical that ASVVP visits will be expanded to other classifications that are filed for with the I-129. Under ASVVP, 100 percent of religious worker petition sites will be visited pre-adjudication. The R-1 regulations indicate that USCIS will investigate the supporting evidence submitted in connection with the petition. Such investigation may include a tour of the petitioning organizations facilities, an interview with the petitioning organizations officials, and a review of the selected organizations records. 3 While the regulations state that a site visit may be conducted, information received from FDNS indicates that site visits will be conducted prior to adjudication of the R-1 petition 100 percent of the time. 4
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Brad Hendrick is special counsel with Caplan and Earnest LLC in Boulder. Mr. Hendrick earned a bachelors degree with honors from the University of Michigan in 1996, and earned a law degree and a Masters degree in Business Administration from the University of Colorado in 2002. He has practiced immigration law since 2002. Mr. Hendrick has lectured on a number of topics, including corporate and I-9 compliance, Colorado immigration compliance, corporate change, and visa options for businesses. He was named an Up and Coming Lawyer by Law Week Colorado in 2007, and a Rising Star by Colorado Super Lawyers in 2009, 2010, and 2011. Daniel C. Horne is a senior associate with Jackson & Hertogs LLP in San Francisco, where he practices employment-based immigration law with an emphasis on the technology sector. Mr. Horne is a member of AILAs Distance Learning Committee, and has spoken at national and regional AILA conferences on a variety of immigration topics. Andrew W. Shackelford is a 2001 graduate of John Marshall Law School in Chicago and has practiced exclusively in the field of corporate immigration and nationality law. He is a senior associate in the Atlanta office of Berry Appleman & Leiden LLP where he represents corporate clients in a variety of industries, including the manufacturing, pharmaceutical, and technology fields. His practice includes nonimmigrant visas, permanent residence, citizenship, I-9 compliance, and immigration support for corporate restructuring. 1 See Form I-129, Petition for a Nonimmigrant Worker, Part 7, which states: I certify, under penalty of perjury that this petition and the evidence submitted with it are true and correct to the best of my knowledge. I authorize the release of any information from my records, or from the petitioning organizations records that U.S. Citizenship and Immigration Services (USCIS) needs to determine eligibility for the benefit being sought. I recognize the authority of USCIS to conduct audits of this petition using publicly available open source information. I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews. 2 AILA-FDNS Liaison Meeting (June 7, 2010), published on AILA InfoNet at Doc. No. 10060862 (posted June 8, 2010). 3 8 CFR 214.2(r)(16). 4 AILA-FDNS Liaison Meeting (June 7, 2010), published on AILA InfoNet at Doc. No. 10060862 (posted June 8, 2010).
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Practitioners report site visits approximately three to six months after the approval of an H-1B change of status or extension. The randomness of the site visit necessitates proper training of the essential employees at the petitioners primary place of business and at the work sites where H-1B employees are assigned. Practice Pointer: Develop an action plan with your client(s) that identifies the employees at the H-1B work sites and at the petitioners principal place of business who need to be involved with the visit. Include front desk staff, security personnel, human resources representatives, corporate counsel, and the beneficiarys direct manager on the contact list. Next review the FDNS Compliance Review Report. 5 It is a valuable training tool and should be reviewed by all of the involved parties to fully understand what information the site investigator seeks to collect. When crafting an action plan, it is particularly important to identify those employees most likely to make first contact with the site investigator, so that they are prepared and can immediately notify the designated contact person. When developing an action plan, consider the following: Prior to the visit, assign a single point of contact for the site investigator. Prior to the visit, provide training on how to greet the site investigator to security and reception area employees. The point of contact should ask the site investigator for identification and the nature of the visit. Do not allow the site investigator to roam the premises freely. Make sure the investigator is escorted at all times and place him or her in a conference room or other space. On the day of the visits the site investigator will visually inspect the outside of the premises to ensure that a business exists and that the organizations name appears on the signage. If the organization is not immediately recognizable then he or she may enter nearby businesses to check whether the proprietors have knowledge of the petitioning employer. The site investigator will provide a narrative description of the physical location, including whether it is a commercial office unit, apartment or condominium complex, single-family residence, mall center/postal location, or a virtual office. Further, the site investigator will note whether there are other businesses operating on the premises. 6 After inspecting the physical premises the site investigator will enter the building and, most likely, ask to speak with the person who signed the I-129. If the site visit is at a location other than where the I-129 signatory works, the site investigator will ask to speak with someone who is knowledgeable about the H-1B petition. If no such person is available, the site investigator may leave and follow up by phone, e-mail, or a follow-up visit. 7 In some cases, the petitioner may not hear back from the site investigator and there will be no follow up. On the day of the site visit the company representative should be prepared to answer the following questions about the petitioners business: What products and services are provided by the company? How many employees are there? How long has the company been in business? How many facilities does the company operate? Where are the facilities located? How many full-time H-1B employees are employed? How many part-time H-1B employees are employed? What is the number of employees that work on-site versus the number that work off-site? How many H-1B employees are assigned to client sites?
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Compliance Review Report, published on AILA InfoNet at Doc. No. 09101461 (posted Oct. 10, 2009). Id. 7 Id.
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What is the number of employees who hold nonimmigrant status in addition to the H-1B employees? How many employees are lawful permanent residents? 8 In addition, the company representative will be asked whether he has knowledge of the beneficiary and the petition filed on behalf of the company. The company representative should be prepared to answer the following types of questions about the beneficiary: What are the beneficiarys work hours, salary, work location, and job duties? Are you familiar with the petitioner (particularly if the petitioning employer has a different name)? Are you familiar with the beneficiary? Did the petitioner have the authority to file a petition on behalf of the beneficiary? How long has the beneficiary been employed? What type of petition did the employer file for the beneficiary? Provide evidence that the beneficiary is employed (copy of paycheck stub, business card, employee ID card). What is the status of the beneficiarys employment? 9 In cases where no contact is made with a company representative, the site investigator may make further inquiries of neighboring businesses to determine whether the petitioner is actively engaged in business activities, its normal hours of operations, and whether they are familiar with petitioner and/or the beneficiary. After interviewing the company representative, the site investigator may ask to interview the beneficiary. The beneficiary will be asked the following types of questions: What is your title? Describe your work duties. What is your education? What is your salary? Who paid the H-1B filing fees and legal fees? Do you have a business card? The site investigator may ask to see the beneficiarys physical work site location, whether it be an office or a cubicle. He may even go so far as to take pictures of the cubicle or office. 10 Practice Pointer: H-1B employees and other employees should be aware of the possibility of FDNS investigators. However, employers and attorneys cannot and should not dissuade employees from speaking to investigators. Ordering employees not to speak to investigators may result in an obstruction of justice criminal charge. Cases are selected randomly, so there is no way to avoid the risk of an FDNS investigation. 11 Thus, it is important that clients periodically audit their I-129 petitions to ensure there have been significant changes in the terms of the employment that would require the petition to file an amended H-1B petition. Following the visit, the Site Inspector may also request additional information in a follow-up e-mail, which may come several months after the visit. Reports have indicated that questions have been submitted at the time of a site visit or following an unsuccessful site visit. 12 With e-mail correspondence, attorneys may
Id. Id. 10 Id. 11 AILA-FDNS Liaison Meeting, (June 7, 2010), published on AILA InfoNet at Doc. No. 10060862 (posted June 8, 2010). 12 Sample FDNS Follow-Up E-Mail Questions After H-1B Site Visit, published on AILA InfoNet at Doc No. 11022521, (posted Feb. 25, 2011).
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more easily get involved at this stage to assist in handling the request, and may request the ability to serve as a point of contact for future interaction between the Site Inspector and the company. Once all information is collected and complete, the Site Inspector will electronically submit his findings to the requesting FDNS service center. If all of the information is verified, then the petition will be sent to adjudications. If the site visit was conducted post-adjudication, and all the petition information is verified, the file will be sent to storage. If the information from the petition cannot be verified, the case will be assigned to adjudications for further action, such as a Request for Evidence in the case of R-1 petitions or a Notice of Intent to Revoke in the case of H-1B petitions. 13 Alternatively, FDNS will conduct further investigations. ATTORNEY REPRESENTATION IN ON-SITE INVESTIGATIONS As noted above, FDNS visits are unannounced, and the USCISs position, as indicated on current editions of Form I-129, is that petitioners consent to the search by filing the visa petition. 14 FDNS does recognize the regulatory provision allowing parties to be represented by counsel. 15 However, having a G-28 on file will not deter an unannounced site visit, nor will it result in FDNS notifying counsel in advance of a worksite visit. If the employer insists on having an attorney present, FDNS has indicated that it will honor these requests. However, it is unlikely that FDNS will make any more than minimal accommodations for an attorney to be present. Investigators will not wait at the site until an attorney can arrive; more than likely they will simply leave the premises and not conduct the investigation. As noted below, the failure to allow a site visit may result in adverse action against both the petitioner and beneficiary. Recent Trends in FDNS Enforcement According to a January 2011 Government Accountability Office (GAO) report, FDNS performed 14,433 onsite investigations of H-1B petitions in 2010 and took adverse action in 1176 of them, or about 8 percent. But what constituted a situation requiring adverse action? A quick anecdote may be instructive. In late 2008, an FDNS investigator visited a worksite and asked to speak to a Mr. Mxylplyk, an H-1B worker. As it happened, Mr. Mxylplyk had called in sick that day. The FDNS officer was informed of this fact by the person who met the officer at the door. This was confirmed by the officers manager, who, upon request, spoke to the FDNS officer over the phone. The FDNS officer thanked everyone for their time and left the facility. Six months later, Mr. Mxylplyk received from the California Service Center a Notice of Intent to Revoke (NOIR) his H-1B petition. The NOIR said that Mr. Mxylplyk was not at the worksite listed on the I129 petition during the FDNS site visit, and therefore must have been working at an offsite location, in violation of the LCA. The NOIR also accused the H-1B petitioner of providing IT consulting services. In response to the NOIR, counsel simply provided the annual report for the publicly traded company, demonstrating that it was a telecommunications technology manufacturer. Counsel also included a copy of the various e-mails from that day, reflecting that the worker had informed his manager via e-mail that he would be unable to come to work. Also included were photographs of Mr. Mxylplyk at his workstation. Soon thereafter, Mr. Mxylplyks H-1B petition was re-approved without comment, a duplicate approval notice being issued. Thus, the California Service Center had backed off its original accusations. But was this aborted NOIR counted among the 8 percent of adverse actions cited in the GAO report? There is no way to know. The statutory authority for the FDNS site inspection program has never been clear, but USCIS has expressed its position on recent editions of the instruction pages for Form I-129. For example, page 23 of the current I-129 instructions states:
Id. See Form I-129, Petition for a Nonimmigrant Worker, Part 7, which states: I certify, under penalty of perjury that this petition and the evidence submitted with it are true and correct to the best of my knowledge. I authorize the release of any information from my records, or from the petitioning organizations records that U.S. Citizenship and Immigration Services needs to determine eligibility for the benefit being sought. I recognize the authority of USCIS to conduct audits of this petition using publicly available open source information. I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews. 15 8 CFR 103.2(a)(3)
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The Department of Homeland Security has the right to verify any information you submit to establish eligibility for the immigration benefit you are seeking at any time. Our legal right to verify this information is in 8 U.S.C. 1103, 1155, 1184, and 8 CFR parts 103, 204, 205, and 214. To ensure compliance with applicable laws and authorities, USCIS may verify information before or after your case has been decided. Agency verification methods may include but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile, or other electronic transmission, or telephone; unannounced physical site inspections of residences and places of employment; and interviews. Information obtained through verification will be used to assess your compliance with the laws and to determine your eligibility for the benefit sought. 16 However, even a detailed review of all the statutory and regulatory sections cited by the USCIS reveals no explicit search authority to USCIS, and certainly no mention of physical site inspections of residences of H1B workers. Nonetheless, absent a federal court challenge, employers should recognize that signing an H-1B petition effectively waives Fourth Amendment protections for both the petitioner and beneficiary. And these searches may not be limited to physical residences. Less (or more?) ominously, USCIS has released internal memoranda indicating that it is now looking to social networking sites (Facebook, LinkedIn, etc.) in order to observe the daily life and activities of beneficiaries and petitioners who are suspected of fraudulent activities. 17 How is this not a massive waste of time on the part of FDNS? Here is their logic: Generally, people on these sites speak honestly in their network because all of their friends and family are interacting with them via IMs (Instant Messages), Blogs (Weblog journals), etc. This social networking gives FDNS an opportunity to reveal fraud by browsing these sites to see if petitioners and beneficiaries are in a valid relationship or are attempting to deceive CIS about their relationship. Once a user posts online, they create a public record and timeline of their activities. In essence, using MySpace and other like sites is akin to do doing an unannounced cyber site-visit on a [sic] petitioners and beneficiaries. 18 Practice Pointer: While one can agree or disagree on the value FDNS obtains from such social network spying, the fact remains that such tactics are actively encouraged by FDNS. Therefore, counsel should advise clients (both the petitioner and beneficiary) in advance of signing any Form I-129 that not only their physical workspace but also their online workspace may be subject to unannounced review. This may be a good opportunity to review the employers policies about social networking sites, and to proactively encourage clients to address social networking among their staff as a whole. In addition to these actions, FDNS seems to have expanded its mission beyond merely H, L, and R visa site investigations. Informal reports from chapter members throughout the country indicate that FDNS has become more aggressive with marriage-based permanent residence petitions. In some cases, the adjudicating immigration services officer may even ask the couple if it is possible to go to their home immediately for a site visit and inspection. In another matter, an investigator from the Nebraska service center visited a client in another state in response to the filing of an I-140 petition with their service center. With increased funding of the FDNS division, and increased political pressure from restrictionist members of Congress, attorneys can anticipate the expansion of FDNS investigations outside some of the more traditional areas. Federal Court Remedies Federal court remedies will vary depending on the action taken at an FDNS site visit as well as on the conduct of all parties involved. As stated above, USCIS takes its consent to search the premises from the submission of Form I-129. If an employer insists on having counsel present and an area is searched without consent, warrant, or subpoena, evidence uncovered in this search may be inadmissible in a court proceeding. Visas may be revoked without following the proper steps for revocation outlined in the Code of Federal
USCIS Form I-129 Instructions, OMB No. 1615-0009 (Jan. 19, 2011), at 23. U.S. Citizenship and Immigration Services, Memorandum, Social Networking Sites and Their Importance to FDNS, published on AILA InfoNet Doc. No. 10101473 (posted Oct. 14, 2010). 18 Id.
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Regulations, giving rise to an action under the Administrative Procedures Act. Moreover, evidence obtained through an investigation that results in the revocation of visas for foreign national employees may not be admissible and employers may choose to seek an injunction to allow the employee to come back to work while the legality of the agency action is considered. While a discussion of Fourth Amendment search and seizure actions or Administrative Procedure Act litigation is outside the scope of this article, we encourage attorneys to know their options and to use the judicial branch to remedy agency actions that are beyond the scope of the law. ETHICAL CONSIDERATIONS Should an attorney be present at a site visit where both the employers representative and the foreign national employee are interviewed, a question concerning representation will arise. There are diverging views within the immigration community concerning who the client is when an attorney is filing a visa petition. While some attorneys take a dual representation role of both the U.S. employer and the foreign national employee, other attorneys take the position that they represent only the employer. If an attorney takes the position that he or she represents the U.S. employer alone, that attorney should be aware that sitting with a foreign national employee during a site visit interview may create an attorney-client relationship that may conflict with other agreements or arrangements. Attorneys are reminded to consider FDNS visits and investigations in the preparation of engagement letters, and representation agreements among the parties to a visa petition. Practice Pointers: It is common for immigration attorneys to represent clients in a number of states. It is wise for an attorney to familiarize him- or herself with the ethical rules in each state where he or she practices to make sure that there is nothing unusual that may inadvertently create an attorney-client relationship. In addition, the attorney should make sure that the engagement agreement has a provision to specify the controlling law and venue of proceedings for any dispute with a client. It is also possible that the FDNS officer will visit a third-party work site in order to interview the beneficiary of an H-1B visa. Naturally the FDNS officer is likely to interact with a representative of the thirdparty employer and this may create an attorney-client relationship with the third party. Given the need to prepare employers, it may become vital to prepare not only the petitioner of the petition but also the thirdparty employer. Again, an attorney must ask him- or herself whether or not their interaction with the thirdparty employer has the potential to create an employer/employee relationship in the mind of the potential client. Practice Pointers: Is representation or communication in conjunction with a FDNS investigation included in your engagement letter? As the USCIS involvement in cases evolves, a representation agreement should evolve with the trends to make sure that the lawyer is properly compensated. As attorneys we know we cannot always look over our clients shoulders to determine their behavior once the visa petition is approved. The question arises concerning an attorneys ethical obligations if the attorney learns damaging information during the course of a site visit. Although it is impossible to anticipate every situation, attorneys who represent both employers and employees should have a well-crafted dual representation agreement that outlines the circumstances, and how representation will continue, in the event a conflict between the parties should arise. CONCLUSION Given the prevailing mood of both the White House and Congress, challenges continue to grow for nonimmigrant workers, the companies that employ them, and the attorneys that help to make it happen. With FDNSs increasing profile and funding, an ounce of prevention with a dash of preparation will have your clients ready to handle an on-site investigation with minimal interruption and inconvenience.
WHAT YOU NEED TO KNOW WHEN ICE CATCHES UP WITH YOUR CLIENT
by Russell Abrutyn, Rockne Cole, and Rebecca Kitson *
For noncitizens and their families, nothing is more important than the noncitizens release from jail. These concerns can sometimes seemingly dwarf the larger issues of removability and relief. Every day, or every second, of detention only serves to increase the anxiety, stress, and impatience of the detainee and his or her family. Some noncitizens are ineligible for bond, either as a matter of law or discretion. Others, at first glance, might seem ineligible for bond but, through creative and persistent lawyering, may one day secure their freedom. In this practice pointer, we hope to guide you through some of the procedural and practical issues relating to bond and detention issues. IMMIGRATION DETAINERS In the past several years, immigration practitioners have done an excellent job of educating defense counsel about the importance of considering the immigration consequences of a criminal conviction. In turn, criminal defense lawyers have reminded immigration counsel that immigration consequences are not the sole consideration, and that a favorable charging concession can outweigh the adverse impact of the conviction. Yet, in spite of the improved communication between the immigration and criminal defense bars, several core immigration concepts remain misunderstood by the criminal defense attorneys, prosecutors, and judges. This confusion and lack of understanding can result in excessive detention and avoidable adverse immigration consequences. Immigration detainers prolong the detention of many criminal defendants. A detained noncitizen facing criminal charges is more likely to plead guilty in hopes of getting out of jail. This rush to plead could have serious short and long-term immigration and criminal consequences. The immigration detainer remains widely misunderstood by the defense bar. It is a preliminary step in the removal process and does not mean that the noncitizen can or will be removed. However, in our experience working with criminal defense counsel and judges, the immigration detainer is frequently viewed as the functional equivalent of a final order of removal. So, in working with criminal defense counsel, an important first step is to explain what the detainer actually is and to provide an overview of the immigration removal process.
Russell Abrutyn practices immigration law at Marshal E. Hyman & Associates in Troy, MI. He serves on AILAs Amicus Committee and the State Bar of Michigans Unauthorized Practice of the Law Committee. As a member of AILAs Amicus Committee, he was a co-recipient of the 2010 Jack Wasserman Litigation Award. Mr. Abrutyn is licensed to practice in Michigan and Washington State and several federal courts. He has spoken at national and regional conferences on immigration law. Rockne Cole graduated from Luther College in 1997. Mr. Cole received his J.D. with distinction from the University of Iowa College of Law in 2000. Mr. Cole co-founded Cole & Vondra partnership with Dan Vondra in 2006. Their firm primarily consists of family-based immigration, removal defense, criminal law, and post-conviction relief. Mr. Cole continues to be passionate about representing clients from around the world, and speaking on social and political issues affecting recent immigrants. He currently lives in Iowa City with his wife, Mara, his daughter, Nora, two hound dogs, and three cats. Rebecca Kitson is the managing partner at the firm of Lawit & Kitson and an adjunct professor at the University of New Mexico School of Law. Ms. Kitson practices the spectrum of immigration law, including employment and family-based immigration, nonimmigrant visas, and removal defense. She holds a B.A. from the University of Wisconsin-Madison and a J.D. from the University of New Mexico. She serves on the boards of the New Mexico affiliate of the ACLU and the Immigration Section of the New Mexico State Bar Association.
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What Is a Detainer? Upon closer examination, the detainer is a surprisingly feeble legal instrument. Most defense counsel would be surprised to learn that a detainer is a non-binding request. The applicable regulation provides that a detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. 1 The regulation provides that a detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible. Undoubtedly, the drafters were aware of potential 10th Amendment issues that would arise if the federal government ordered state officials to enforce federal statutes. 2 The detainer regulation is potentially ultra vires of the enabling statute. The regulation derives its authority from the Immigration and Nationality Act 3 pursuant to sections 236 and 287 of the Act and this chapter 1. The statutory language limits detainers to controlled substance violations. 4 There are also due process concerns when an administrative agency unilaterally prolongs detention without statutory authority or legal standards. In spite of the statutory language limiting detainers to controlled substances violations, there is surprisingly little case law addressing this issue. 5 This may be due to restrictions on federal court review of many custody-related issues. The Act provides that no court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. 6 Because of the increasing use of detainers, the Florida chapter of the American Civil Liberties Union (ACLU) wrote a letter to jail facilities explaining and criticizing use and misuse of immigration detainers. 7 Immigration practitioners can use the ACLU letter when working with defense counsel. It can also help educate sheriffs, prosecutors, and judges about what an immigration detainer is and is not. Options for a Noncitizen Subject to an Immigration Detainer Many federal noncitizen defendants do not receive the benefit of pretrial release. The conventional wisdom among federal defense counsel is that an immigration detainer prevents release and renders any pretrial release futile since the noncitizen will remain detained. In the 2008 Postville Raid, defense counsel told defendants that pretrial release was not possible due to the detainer. According to Erik Camayd-Freixas, who served as an interpreter for many of the defendants, the defense counsel told the defendants they had no right of bail due to the detainer: If you plead not guilty, you could wait in jail six to eight months for a trial (without right of bail since you are on an immigration detainer). 8
8 CFR 287.7(a). See Printz v. U.S., 521 U.S. 898, 935 (1997) (The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States officers, or those of their political subdivisions, to administer or enforce a federal regulatory program ... such commands are fundamentally incompatible with our constitutional system of dual sovereignty.). 3 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163, (codified as amended at 8 USC 1101 et seq.). 4 INA 287(d). 5 Committee for Immigrant Rights of Sonoma County v. County of Sonoma, 644 F. Supp.2d 1177, 1199 (N.D. Cal. 2009) (Instead, the court reads the language of 1357 as simply placing special requirements on officials issuing detainers for a violation of any law relating to controlled substances, not as expressly limiting the issuance of immigration detainers solely to individuals violating laws relating to controlled substances.). 6 See INA 236(e). 7 The letter can be found at www.aclufl.org/pdfs/DetainersLetter.pdf. 8 Erik Camayd-Freixas, Interpreting after the Largest Raid in U.S. History: A Personal Account, June 13, 2008, at page 5, available at http://graphics8.nytimes.com/images/2008/07/14/opinion/14ed-camayd.pdf.
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To the contrary, federal law provides a specific mechanism to address detention of noncitizens, and in fact, requires that a noncitizen defendant be treated like any other defendant. The Bail Reform Act addresses the issue of release when the defendant is a deportable noncitizen. 9 This statute states that if the court determines that the defendant is not a United States citizen or a lawfully admitted permanent resident, and may flee or pose a danger to any other person or the community, it shall detain him for no more than ten days and direct the government's attorney to notify the appropriate immigration official. If the immigration official does not take the defendant into custody, the defendant shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings. 10 There is ample support in the case law for obtaining pretrial release. 11 A number of organizations, including AILA, have urged Immigration and Customs Enforcement (ICE) to revise its detainer policies. 12 Included in AILAs comments are summaries of a number of lawsuits challenging unlawful detainers. ICE has 48 hours, excluding Saturdays, Sundays, and holidays, to take custody of a noncitizen upon his or her release from criminal custody. 13 If ICE fails to do so, the custody becomes unlawful and the noncitizen can challenge the detention by filing a petition for writ of habeas corpus. If the custodian is a state or local official, the petition will have to be filed in state court pursuant to state procedures. 14 The state-specific rules and procedures of such a challenge are beyond the scope of this article. However, some practitioners report success in these efforts by filing the petition when ICE is unlikely to be able to respond by picking up the detainee, such as at night or on weekends. Other practitioners will first call the sheriff or prosecuting attorneys offices to resolve the problem short of filing the habeas petition. Keep in mind that ICE can respond to the petition by assuming custody over your client and that he or she will not necessarily be released as a result of filing the petition. Even so, your client may have a claim for damages resulting from an unlawful detention. How to Locate Your Client and Negotiate Bond with the ICE Enforcement and Removal Office When your client is in ICE custody, you first have to find your client. If your client has not reached out to family or friends, it has not always been easy to locate him or her. If you know your clients country of birth and name or alien number, you can use ICEs Online Detainee Locator System at https://locator.ice.gov/odls/homePage.do. In our experience, the system has been very, but not completely, accurate. If your client is housed in a state or local jail, another useful online service is www.vinelink.com.
18 USC 3142(d). 18 USC 3142(d) (emphasis added). 11 State v. Rosalva Torres-Galvan, Order Denying Motion to Revoke No. 09-CR-53 (Aug. 27, 2009) (the court did not even rely on immigration status as a factor); see also U.S. v. Chavez-Rivas, 536 F. Supp.2d 962, 964 (E.D. Wis. 2008) (In the present case, the magistrate judge did not temporarily detain defendant under 3142(d) at the initial appearance; rather, he simply entered a detention order under 3142(f) ... That being the case, 3142(d) requires me to treat defendant like any other offender under the Bail Reform Act.); United States v. Adomako, 150 F. Supp.2d 1302, 1304 (M.D.Fla.2001) (If the INS official does not take custody during a period of not more than 10 days, Congress directs the Court to apply the normal release and detention rules to the deportable alien without regard to the laws governing release in [Immigration and Naturalization Service] INS deportation proceedings[.]). 12 Comments on Immigration and Customs Enforcement (ICE) Draft Detainer Policy (Oct. 1, 2010), published on AILA InfoNet at Doc. No. 1010910 (posted Oct. 19, 2010), available at www.aila.org/content/default.aspx?docid=33416. The detainer policy itself is available at www.aila.org/content/fileviewer.aspx?docid=32818&linkid=221792. 13 8 CFR 287.7(d). 14 See, e.g., Ochoa v. Bass, 181 P.3d 727 (Okla. Crim. App. 2008) (the state lost the authority to detain noncitizens upon the expiration of the 48-hour period).
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If your clients whereabouts are still unknown or if you have located him or her and want to talk bond with ICEs Enforcement and Removal Office (ERO). 15 Contact information for ERO field offices can be found at www.ice.gov/contact/ero. Depending on who answers the phone at ERO, you might be able to learn the location of the noncitizen, his or her alien number, and a bond amount. The ERO officer may require a G-28 before divulging any information. If you cannot get a signed G-28 because you do not know where your client is or because he or she is detained far away, this can present a problem. Some ERO offices are more willing than other offices to set a bond or negotiate over the amount. Your option if you are not satisfied with the progress you are making with ICE, your remedy is to ask an immigration judge (IJ) to set bond. MANDATORY DETENTION: WHEN IT APPLIES AND HOW TO CHALLENGE IT Three primary classes of noncitizens are ineligible for bond: (1) certain criminals and terrorists 16 ; (2) arriving aliens; 17 and (3) individuals with administratively final orders of removal. 18 This section will focus on criminal aliens, including lawful permanent residents, subject to mandatory detention 19 , including: Those who are inadmissible for criminal activity pursuant to INA 212(a)(2); Those who are deportable for committing one crime of moral turpitude if the sentence included a term of imprisonment of a year or more 20 ; multiple crimes of moral turpitude 21 ; aggravated felonies 22 ; controlled substance offenses 23 ; certain firearms offenses 24 , or certain espionage and sabotage crimes 25 ; Those who are inadmissible or deportable for terrorist activities. 26 There is one narrow exception permitting the release of a noncitizen subject to mandatory detention if it is necessary for certain witness protection matters and the individual is otherwise eligible for bond. 27 Mandatory detention only applies to those who were last released from criminal custody after the expiration of the Transition Period Custody Rules (TPCR) on October 8, 1998. 28 The Board of Immigration Appeals (BIA) initially held that any release from custody after that date triggered mandatory detention, even if the custody was not tied to the basis for mandatory detention. 29 Following extensive federal litigation, the BIA reversed course and held that the post-TPCR release must be tied to the basis for mandatory detention. 30
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Formerly known as Detention and Removal Office. INA 236(c). 17 See 8 CFR 1.1(q), 1001.1(q) for the definition of arriving alien, see also INA 101(a)(13)(C) (for permanent residents). Additionally, a foreign national who is subject to expedited removal is a mandatory detainee with the bond of bond or a bond hearing. 8 CFR 235.3(b)(2)(iii), 1235.3(b)(2)(iii). However, ICE retains the right to parole certain arriving aliens pursuant to 8 CFR 212.5. In addition, immigration judges lack jurisdiction over Visa Waiver entrants. Matter of Werner, 25 I&N Dec. 45 (BIA 2009). 18 8 CFR 1236.1(c)(11); see also INA 241(a). 19 INA 236(c). 20 INA 237(a)(2)(A)(i). 21 INA 237(a)(2)(A)(ii). 22 INA 237(a)(2)(A)(iii). 23 INA 237(a)(2)(B). 24 INA 237(a)(2)(C). 25 INA 237(a)(2)(D). 26 INA 212(a)(3)(B), 237(a)(4)(B). 27 INA 236(c)(2). 28 Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999). 29 Matter of Saysana, 24 I&N Dec. 602 (BIA 2008). 30 Matter of Garcia Arreola, 25 I&N Dec. 267 (BIA 2010). AILA played a key role in the challenge to Saysana.
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Although IJs lack jurisdiction to release noncitizens subject to mandatory detention, they do retain jurisdiction to determine whether the person is properly included in the mandatory detention provisions. 31 Noncitizens can challenge the mandatory detention classification by requesting a Joseph hearing. 32 In a Joseph hearing, the noncitizen bears the burden of establishing that it is substantially unlikely that the charge of removability, triggering mandatory detention, will be upheld. If the IJ agrees, the judge will entertain a bond hearing immediately. Practice Pointers: Mandatory Detention Given the lengthy IJ dockets across the country, attorneys need to be careful in strategizing when it is appropriate to move forward with a Joseph hearing. While a successful Joseph hearing can ultimately assist in relief from removal or the termination of removal proceedings in addition to avoiding long periods of detention, an unsuccessful Joseph hearing can simply result in longer detention for a noncitizen. There are reports across the country of ICE releasing some individuals who appear to be subject to mandatory detention under INA 236(c). Therefore, it is still valuable to request bond from ICE even if it appears that a client may be subject to mandatory detention. For example, ICE and U.S. Customs and Border Protection have taken the position that they retain jurisdiction to release arriving aliens otherwise subject to mandatory detention. Although the BIA has held that mandatory detention applies even if the noncitizen was not immediately taken into custody following a post-TPCR release, the federal courts have generally granted habeas relief in these situations. 33 The courts rejecting Rojas have generally read the when released language to impose a temporal limitation on ICE. Although a noncitizen may be subject to mandatory detention, extensive pre-order detention due to overloaded court dockets or lengthy appeal times may still be reviewable through a habeas corpus petition (see below for additional discussion). Other Options When Bond Is Denied When an IJ denies bond or sets an unreasonably high bond amount, you can appeal to the BIA within 30 days. 34 Typically, a bond appeal will include arguments that the IJ did not properly consider the factors for bond 35 and thereby abused their discretion. There are no filing fees for a bond appeal, which is filed on Form EOIR-26 with the BIA. However, bond appeals do not stay removal proceedings. Another option is to request another bond hearing in writing, with a showing of that circumstances have changed materially since the prior bond redetermination. 36 Even if a bond determination is on appeal, the IJ has jurisdiction to determine a subsequent redetermination. 37 As long as the person is in ICE custody and the BIA has not entered an administratively final order of removal, a noncitizen may make successive applications for bond to the immigration court without filing a motion to reopen. 38 Practice Pointers: Bond Denials Because bond proceedings are typically held off the record in an informal manner, be sure to take copious notes during a bond hearing and submit written evidence to help you prepare an appeal, and make note of any objections that may preserve issues for appeal.
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8 CFR 1003.19(h)(2)(ii); see also Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). 33 Compare Matter of Rojas, 23 I&N Dec. 117 (BIA 2001) with Khodr v. Adduci, 697 F. Supp.2d 774 (E.D. Mich. 2010). 34 8 CFR 1003.38, 236.1(d)(3)(i), 1236.1(d)(3)(i). The BIA must receive the appeal within the 30 days. 35 See Matter of Daryoush, 18 I&N Dec. 352 (BIA 1982); Matter of Patel, 15 I&N Dec. 666 (BIA 1976); and Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999). 36 8 CFR 1003.19(e). 37 Matter of Valle- Perez, 21 I&N Dec. 769 (BIA 1997). 38 Matter of Uluocha, 20 I&N Dec. 133 (BIA 1989).
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Remember that it is possible to double efforts by appealing a bond denial and requesting a redetermination at the same time, if appropriate. Consider a redetermination instead of an appeal, depending on the circumstances. Examples of material changes may include the approval and/or filing of applications for relief, or the vacating of a criminal conviction pursuant to post-conviction relief. Consider filing a bond appealthere is no filing fee and while it may not be common for the BIA to overturn bonds or lower the amount, they are relatively straightforward and can be part of practitioners due diligence in a case. They also may be required as part of an exhaustion requirement for a subsequent habeas corpus petition or other federal litigation. If a bond is denied by a particular IJ, consider whether there exist bona fide grounds for a change of venue to another court. A different judge may consider the facts differently and they are not bound by a previous bond determination. HABEAS CORPUS RELIEF IN DETENTION CASES Notwithstanding the statute, noncitizens continue to have access to the federal courts to challenge the lawfulness of their detention. 39 Noncitizens continue to have access to the federal courts to challenge the lawfulness Although the U.S. Supreme Court has held that mandatory detention is constitutional, it did so on the assumption that mandatory detention will last for only a relatively short period of time, namely a 90-day period for the majority of cases. 40 Therefore, the reasonableness limitation on pre-final order detention opens the possibility of successfully challenging prolonged detention through a habeas corpus petition. 41 Following the reasoning outlined in Zadvydas, arguably any detention beyond six months unreasonably long. 42 When a final order of removal becomes administratively final, the removal period begins, and authority for continued detention is pursuant to INA 241(a). During this period, ICE has 90 days to secure travel documents and execute the removal of the noncitizen. The Supreme Court has held that indefinite detention beyond six months post-final order is not authorized under the statute, 43 and therefore regulations were promulgated governing grounds for the release of individuals beyond the 90-day period. 44 Therefore, if postorder detention continues beyond six months, and/or Department of Homeland Security (DHS) does not follow its own regulations, there likely exists a valid basis for a habeas challenge. Practice PointersHabeas Make sure that you and your clients document problems with conditions, medical care, etc. in their facility. These details may become very important during a subsequent habeas petition. Even if you personally do not wish to represent a client in a habeas petition, they can file pro se and request that an attorney be appointed to them pursuant to the Criminal Justice Act. 45 Oftentimes, a valid habeas petition will result in ICE releasing a client prior to the completion of the habeas proceedings in court. Following the entry of an administratively final order of removal, the IJ may continue to have jurisdiction over bond determinations if the noncitizen has filed a petition for review and obtained a stay of removal. 46 This is because the granting of a stay of removal means that the removal period has not commenced so any
39 No court may set aside any action or decisionunder this section regarding the detention or release of any alien or the grant, revocation or denial or bond or parole . INA 236(e) 40 Demore v. Kim, 538 U.S. 510, 529 (2003). 41 See Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008); Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003). 42 Zadvydas v. Davis, 533 U.S. 678 (2001). 43 Zadvydas, 533 U.S. 678 (2001). 44 8 CFR 241.4. 45 Criminal Justice Act, 18 USC 3006A. 46 Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008).
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detention would be under INA 236 and not INA 241. Because INA 236 entitles a noncitizen to an individualized custody hearing before a neutral arbiter, the noncitizen is arguably entitled to a bond hearing in immigration court. AMELIORATING THE CONDITIONS OF RELEASE It has become increasingly common for ICE to impose conditions of release on your client. These conditions can include an Order of Supervision, the wearing of a tether, home monitoring, the Intensive Supervised Appearance Program (ISAP), or another alternative to detention program. Your client can go from being happy to be free to upset that he or she has to report to ICE every week or month, stay at home to receive a random phone call, or comply with ISAPs burdensome requirements. Can someone ameliorate the conditions of release? Yes. ICE can, but it is unlikely to do so. An IJ also has jurisdiction over a request to ameliorate the conditions of release, subject to strict procedural requirements. In a pair of cases in 2009, the BIA held that a noncitizen in an alternative detention program, such as ISAP, is not in custody so as to provide an IJ with jurisdiction over a challenge to those conditions of release. 47 Rather, the IJ has jurisdiction to ameliorate the conditions of a noncitizens release only if the noncitizen files the request within seven days of his or her release from custody. In Garcia-Garcia, the noncitizen made a timely request; in Aguilar-Aquino, the noncitizen did not. 48 What if a noncitizen is never arrested with ICE? For example, ICE sends a notice directing the noncitizen to report to an ICE office or private contractor to be placed on a tether or ISAP or similar program. Would that appointment constitute custody sufficient to give an IJ jurisdiction over a timely request to ameliorate the conditions of release? That appears to be the next question the BIA will have to answer. In the authors experience, ICE has conceded that the initial ISAP appointment is custody for purposes of triggering the seven-day clock. This concession seems appropriate because of the consequences facing a noncitizen who fails to appear for or cooperate at an appointment. Seven days is not a lot of time. If you know your client is reporting to ICE to be placed on an ISAP-like program, you have to communicate to your client the need to contact you immediately afterwards to discuss the conditions. If 10 days or month later your client expresses his or her dissatisfaction with the conditions of release, it is too late to seek redress with the immigration court. At that point, you would need to present your case to ICE. 49 You would have ten days to appeal an unfavorable determination to the BIA. 50 ICE is going to argue that the conditions of release are reasonable. You have to argue otherwise. You will need to document for the court the burden on your client. It is our understanding that ICE and the ISAP contractors have given the IJs a friendly demonstration of their product, so you will need to give the judge the whole picture. WHAT CONSTITUTES CUSTODY? Because of the consequences, whether and when someone is in custody is far from a simple determination. For example, when ICE issues a detainer against a noncitizen in state or federal criminal custody, is that noncitizen in custody for immigration purposes? The prevailing view is no, the noncitizen is not in immigration custody. 51 When ICE releases a noncitizen on an Order of Supervision, the Intensive Supervised Appearance Program (ISAP), or another alternative to detention program, is the noncitizen in custody or constructive custody 52 ? Again, the prevailing view is no. 53
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Matter of Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009); Aguilar-Aquino, 24 I&N Dec. 747. Garcia-Garcia, 25 I&N Dec. at 9598; Aguilar-Aquino, 24 I&N Dec. at 74953; 8 CFR 1236.1(d)(1). 49 8 CFR 1236.1(d)(2). 50 8 CFR 1236.1(d)(3)(ii). 51 Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990); but see Guti v. INS, 908 F.2d 495 (9th Cir. 1990). 52 See, e.g., Contreras v. Schiltgen, 122 F.3d 30, 31 (9th Cir. 1997). 53 Matter of Aguilar-Aquino, 24 I&N Dec. 747 (BIA 2009).
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THE LODGING OF A DETAINER DOES NOT VEST THE IMMIGRATION JUDGE WITH BOND JURISDICTION ICE often lodges detainers against noncitizens in state or federal criminal custody. The detainer might prevent the detainee from qualifying for work release or other less serious forms of confinement. If ICE does not lift the detainer, the noncitizen will look to the immigration court for relief. Unfortunately, the lodging of a detainer does not give the immigration court jurisdiction over a bond request filed by a noncitizen in state or federal custody. The first hurdle is that the court will not have jurisdiction unless ICE has issued an arrest warrant in conjunction with the service of a Notice to Appear (NTA). 54 ICE may wait until the noncitizens conviction becomes final or closer to the noncitizens release date before issuing and serving the NTA. Even if ICE has served an NTA, the BIA has closed off bond jurisdiction if ICE does not have actual physical custody of a noncitizen. 55 The lodging of a detainer against a noncitizen in state or federal criminal custody does not give ICE actual or technical custody over the noncitizen. If ICE does not have custody over the noncitizen, the IJ lacks jurisdiction to re-determine the conditions of that noncitizens custody. 56 While the BIAs decision in Sanchez is the prevailing view, a few courts have reached the opposition conclusion. For example, in Guti, the U.S. Court of Appeals for the Ninth Circuit held that an immigration detainer could establish custody for habeas purposes. 57 In Lemeshko, the district court found that a noncitizen in state prison and against whom the legacy INS filed a detainer can file a habeas petition challenging removal. 58 However, the court denied relief because the noncitizen was not removable until he finished serving his prison sentence. 59 Alternatives to Detention are not Custody The federal courts have exercised jurisdiction over challenges to the conditions of supervision but, as one might expect, they have been highly deferential to ICEs determination of the appropriate conditions of release. 60 In Nguyen, the noncitizen named BI, Inc., which is the company that operates ISAP. The Nguyen Court rejected a due process challenge to this program. 61 In Yusov, the court found the conditions of a noncitizens long-term supervision reasonable. 62 CONCLUSION Bond issues are often secondary to whether your client will ultimately be able to remain in the United States but are of utmost importance to your client and his or her family. Even when the deck is stacked against your client, creative and persistent lawyering can result in your clients freedom. To achieve this, a lawyer needs to be fluent in the rules governing detention as well as the practices and policies of local judges and ICE offices.
8 CFR 1236.1(a)(d); Matter of Werner, 25 I&N Dec. 45, 4647 (BIA 2009). Sanchez, 20 I&N Dec. at 22526. 56 Sanchez, 20 I&N Dec. at 226. 57 Guti, 908 F.2d at 496; see also Vargas v. Swan, 854 F.2d 1028 (7th Cir. 1988); Lemeshko v. Wrona, 325 F. Supp.2d 778, 78283 (E.D. Mich. 2004). 58 Lemeshko, 325 F. Supp. 2d at 78283. 59 Lemeshko, 325 F. Supp. 2d at 78485. 60 See Yusov v. Shaughnessy, 671 F. Supp.2d 523, 52930 (S.D.N.Y. 2009); Nguyen v. BI, Inc., 435 F. Supp.2d 1109 (D. Or. 2006). 61 Nguyen, 435 F. Supp.2d 1109. 62 Yusov, 671 F. Supp.2d at 52930.
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I-9 CIVIL LIABILITY PRACTICE POINTERSOCAHO UPDATE

by Richard A. Gump, Jr. *
Although Immigration and Customs Enforcement (ICE) continues to adhere to a formulaic approach in assessing civil penalties for I-9 violations utilizing the November 2009 Guidelines 1 entitled Form I-9 Inspection Overview (2009 Guidelines), recent case rulings from the Office of Chief Administrative Hearing Officer (OCAHO) indicate a willingness to break from ICE conclusions regarding the application of factors set forth in 8 CFR 274a.10(b). THE 2009 GUIDELINES The 2009 Guidelines contains two schedules: one to determine the fine amount for Knowing Hire/Continuing to Employ and one for determining the fine for substantive or uncorrected technical violations. The cumulative recommended fine set forth in the Notice of Intent to Fine is determined by adding the amount derived from the Knowing Hire/Continuing to Employ Fine Schedule (plus enhancement or mitigation) with the amount derived from the Substantive/Uncorrected Technical Violations Fine Schedule (plus enhancement or mitigation). For both schedules, ICE agents are instructed to divide the number of violations by the number of employees for whom an I-9 should have been prepared to obtain a violation percentage. The percentage is matched with a baseline fine amount on the schedule. The baseline fine increases for second and third time violators.
Substantive / Uncorrected Technical Violation Fine Schedule Substantive Verification Violations 0% 9% 10% 19% 20% 29% 30% 39% 40% 49% 50% or more 1st Offense $110 $275 $440 $605 $770 $935 2nd Offense $550 $650 $750 $850 $950 $1,100 3rd Offense $1,100 $1,100 $1,100 $1,100 $1,100 $1,100
Additionally, the 2009 Guidelines addresses potential mitigating or enhancing factors listed under 8 CFR 274a.10(b) by allowing each factor to aggravate (increase) or mitigate (decrease) the amount of the baseline fine by 5 percent. ICE may also conclude that the factor should have no effect on the fine, and thus consider it neutral.
Richard A. Gump, Jr. is the shareholder of the Law Offices of Richard A. Gump, Jr. Mr. Gump graduated from the University of Texas, School of Law, and has been practicing business and employment-related immigration law for more than 37 years. He is a member of AILA, past chair of both the AILA Texas Chapter and Compliance Audit Standards Committee, past chair of the AILA Texas Service Center Liaison Committee, and is a planning committee member of the University of Texas Immigration and Nationality Law Conference. 1 Immigration and Customs Enforcement: Form I-9 Inspection Overview (2009).
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Enhancement Matrix Factor Business size Good faith Seriousness Unauthorized Aliens History Cumulative Adjustment Aggravating + 5% + 5% + 5% + 5% + 5% + 25% Mitigating 5% 5% 5% 5% 5% 25% Neutral +/ 0% +/ 0% +/ 0% +/ 0% +/ 0% +/ 0%
Section 274a.10(b)(2) of 8 CFR states that In determining the amount of the penalty, consideration shall be given to: (i) The size of the business of the employer being charged; (ii) The good faith of the employer; (iii) The seriousness of the violation; (iv) Whether or not the individual was an unauthorized alien; and (v) The history of previous violations of the employer. RECENT OCAHO CASES Practitioners should understand that OCAHO will independently consider the application of the mitigating or aggravating factors set forth 8 CFR 274a.10(b) in deriving the ultimate civil penalty in addition to considering non-statutory factors such as the ability of the business to pay the fine and the general state of the economy. The willingness to stray from the civil penalties assessed by ICE in the Notice of Intent to Fine is highlighted in three recent OCAHO rulings. U.S. v. New China Buffet Restaurant In U.S. v. New China Buffet Restaurant 2 , OCAHO bifurcated the issues of liability and the amount of the civil penalty, finding that the restaurant failed to complete Section 2 for seven employees but determined that additional information was needed before the court would rule on the appropriateness of the fine. Meanwhile, the restaurant was failing and was unable to pay the rent and maintain operations. The restaurant closed before OCAHO issued a second ruling regarding the appropriateness of the civil penalty. After additional evidence was provided by ICE and the restaurant, OCAHO addressed the amount of the fine of $6,545 (lowered from ICEs original request of $6,872.25). Although the business failed to complete Section 2, the owner knew each employee personally and was familiar with their immigration status (permanent residents). OCAHO found that the absence of unauthorized foreign nationals should weigh in the restaurants favor and should not be considered neutral pursuant to ICEs assertion. OCAHO also found that a fine reduction was appropriate due to the size of the business. The deciding factor favoring a fine reduction for OCAHO was nonstatutory. OCAHO previously held that inability to pay a proposed fine is an appropriate factor that may be considered in the final fine assessment. 3 With the restaurant unable to pay rent of $5,500 and maintain business operations, the restaurant would likewise be unable to pay the current civil penalty of $6,545. As such, OCAHO reduced the penalty by half
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U.S. v. New China Buffet Restaurant, 10 OCAHO 1133 (Mar. 18, 2010); 10 OCAHO 1132 (May 27, 2010). U.S. v. Raygoza, 5 OCAHO 729 (Jan. 31, 1995); U.S. v. Minaco Fashions, 3 OCAHO 587 (June 29, 1993).
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for each violation, resulting in a final civil penalty of $3,150. In the conclusions of law, OCAHO stated that the statute does not require that equal weight be given to each factor, nor does it rule out the consideration of additional factors. 4 U.S. v. DJ Drywall In U.S. v. DJ Drywall, 5 a drywall company received a Notice of Intent to Fine (NOIF) for various I-9 violations including the failure to prepare I-9s and properly complete Sections 1 and 2. For these violations, ICE sought a civil penalty of $31,316. ICE did not calculate the fine based on the 2009 Guidance because the fine was prepared before its release. Instead, ICE started the baseline fine at the statutory minimum of $110 per violation and increased each fine by $198 based on the seriousness of the violations. When a specific employee lacked work authorization, ICE applied an additional fine aggravation of $198. The owner and operator of the business attempted to explain the deficient I-9s by stating that he relied on his bookkeeper to complete certain administrative functions and that his medical condition contributed to the failure to complete Section 2. At the outset, OCAHO reiterated the holding from U.S. v. Hernandez 6 regarding the review of ICEs penalty assessment, stating the following: 1. The statute does not require that equal weight be given to each factor, nor does it rule out the consideration of additional factors. 2. Where the governments evaluation of the penalty factors is supported by the record, those penalty assessments need not be disturbed, so the amounts do not necessarily have to be determined de novo. 3. OCAHO must ensure that the evidence supports ICEs conclusions with regard to the factors set forth in 8 CFR 274a.10(b). Although OCAHO determined the business qualified as a small business, OCAHO stated that the business was not so small to warrant lowering of the penalty. Despite the owners failures in the I-9 process, OCAHO found that the owner did make some effort to comply with the I-9 requirements, such as copying supporting documentation, and thus did not act in bad faith. OCAHO noted that the violations were serious and numerous employees were unauthorized. The economic impact was also evaluated by OCAHO which determined the fine was not a disproportionately large fraction of the companys income. OCAHO did not adjust the final civil penalty but reiterated that the fine level must be evaluated on a case by case basis. U.S. v. Snack Attack Deli In U.S. v. Snack Attack Deli, 7 a Subway franchise restaurant received a NOIF for numerous I-9 violations such as failure to complete I-9s for many of their employees (the restaurant only produced 11 I-9s for all 108 current and former employees) as well as failure to complete Section 2. Snack Attack also backdated forms while attempting to make corrections. Based on the 2009 Guidance, ICE fined Snack Attack Deli at the highest base level for first time offenders, $935 per noncompliant I-9. ICE then applied two aggravating factors at 5 percent each for lack of good faith and seriousness of the violations for a per I-9 fine of $1,028.50 which amounted to a total fine of $111,078. Although the restaurant employed 108 employees from 2006 to February 2009, it never employed such a large number at one time and was rather a reflection of the high turnover rate in the fast food industry. OCAHO found that ICE did not meet its burden of proving the business was anything other than a small business, and accordingly found that the size should be considered a mitigating factor.
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U.S. v. Hernandez, 8 OCAHO 1043 (Jan. 5, 2000). U.S. v. DJ Drywall, 10 OCAHO 1136 (July 14 2010). 6 U.S. v. Hernandez, 8 OCAHO 1043 (Jan. 5, 2000). 7 U.S. v. Snack Attack Deli, 10 OCAHO 1137 (Dec. 22, 2010).
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Once again, OCAHO stated that the failure to complete I-9s is the most serious I-9 violation and agreed with ICEs assessment that it was an aggravating factor. Due to Snack Attacks failure to attempt to comply with the law and backdating, OCAHO also agreed with ICE that the employer acted in bad faith. However, OCAHO cited the companys small size, financial losses in 2008 and 2009, and the poor economy as factors that favored mitigation in the assessed fine, resulting in a significant reduction in the total fine from $111,078 to $27,150. OCAHO stated: The purpose of imposing penalties is to induce compliance through a reasonably proportioned fine. Any penalty will of course have some negative impact on a respondent; a penalty must, however, be sufficiently meaningful to accomplish its purpose of deterring future violations and enhancing the probability of future compliance. At the same time, a penalty should not be so onerous that employees have to lose their jobs or employers are forced out of business. I take administrative notice, moreover, of the fact that the health of our economy at the present time is poor and that unemployment is unacceptably high. WHAT DOES THIS MEAN FOR BUSINESSES FACING A NOIF? In light of the recent rulings, practitioners should continue to be diligent in their review of ICE assessments contained in a NOIF, specifically relating to the application of a factors set forth in 8 CFR 274a.10(b). Additionally, practitioners should keep in mind that an OCAHO judge is bound only by the statute and may consider non-statutory factors when determining the appropriate fine level. ICEs formulaic application of factors in 8 CFR 274a.10(b) in the 2009 Guidelines fails to take into account that the statute does not require that equal weight be given to each factor. If a company chooses to pursue a review by OCAHO, financial considerations of the impact of the fine on the business will be given considerable weight.
RESPONDING TO A NOTICE OF PROPOSED DEBARMENT FOR FEDERAL CONTRACTORS

by Jeff Joseph *
In April 2009, the Secretary of the U.S. Department of Homeland Security (DHS), Janet Napolitano, released a new nation-wide comprehensive strategy for dealing with worksite enforcement investigations. 1 In the strategy guidance, Secretary Napolitano indicated that she would focus agency resources on the criminal prosecution of employers who knowingly hire or continue to employ unauthorized workers. However, the memo also indicated that the government would continue to use all civil and administrative tools necessary to penalize and deter illegal employment. 2 Such administrative remedies would include civil finds and debarment. 3 Since that time, the number of U.S. Immigration and Customs Enforcement (ICE) debarments for employer compliance violations has skyrocketed. 4 For most employers who utilize federal contracts as part of their business, the threat of debarment from federal contracts presents a much greater threat than the penalty of civil fines. Federal contracts can represent millions of dollars in lost revenue and potential bankruptcy for the employer. The purpose of this article is to describe the debarment process and present some strategies for defending a federal contractor in an ICE proposed debarment proceeding. THE FEDERAL ACQUISITION REGULATIONS The governments authority to debar employers arises from the Federal Acquisition Regulations (FAR) at 48 Code of Federal Regulations (CFR) 9.400 et seq. The general policy behind debarment is to ensure that the government only contracts with responsible employers. 5 Any federal agency may initiate debarment proceedings, but in cases where more than one agency takes an interest in debarment, a lead agency is designated to be the responsible agency prior to service of the Notice of Proposed Debarment. 6 Each agency is entitled to establish its own procedures for debarment proceedings, 7 but such proceedings are to be conducted as informally as practicable, 8 with consideration for principles of fundamental fairness. 9 Such procedures must, at a minimum, provide the contractor (and any specifically named affiliates) an opportunity to submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment. 10 If the debarment proceeding does not arise out of a conviction or civil judgment, and the contractors response to the Notice of Proposed Debarment raises a genuine dispute over material facts, the contractor must be provided an opportunity to appear with counsel, submit documentary evidence, present
Jeff Joseph currently serves as a director on the AILA Board of Governors. He is also chair of the AILA 2011 Annual Conference. In 2004, he received the Joseph Minsky Young Lawyer Award from AILA. In 2009 and 2011, Mr. Joseph was selected for inclusion in the Best Lawyers in America in the field of immigration. From 2006 through 2011, Mr. Joseph was named a Colorado Superlawyer by Colorado Superlawyer Magazine. 5280 magazine also named Mr. Joseph a Top Lawyer in the area of immigration law for 2006 through 2010. He is an adjunct professor of immigration law at the University of Denver College of Law and is bilingual in Spanish. 1 U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Worksite Enforcement Fact Sheet, (Apr. 30, 2009), available at www.ice.gov/doclib/news/library/factsheets/pdf/worksite-strategy.pdf. 2 Id. 3 Id. 4 For the current list of debarred employers, see the governments Excluded Parties List System: www.epls.gov/. 5 48 CFR 9.402(a) 6 48 CFR 9.402(d) 7 48 CFR 9.403(a) 8 48 CFR 9.403(b)(1) 9 Id. 10 Id.
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witnesses, and confront any person the agency presents. 11 The agency, in such cases is also required to make a transcribed record of the proceedings and make it available at cost to the contractor upon request, unless the contractor and the agency, by mutual agreement, waive the requirement for a transcript. 12 A debarment investigation and proceeding arises begins with the service of a Notice of Proposed Debarment. Each agency has a debarring official who serves the Notice of Proposed Debarment. The notice must be served by certified mail, return receipt requested. 13 Such a notice can be served simultaneous with a Notice of Intent to Fine or can follow a Notice of Intent to Fine. The Notice of Proposed Debarment must include notice of the following: (1) That debarment is being considered; (2) The reasons for the proposed debarment in terms sufficient to put the contractor on notice of the conduct or transaction(s) upon which it is based; (3) The cause(s) relied upon under section 9.406-2 for proposing debarment; (4) That, within 30 days after receipt of the notice, the contractor may submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment, including any additional specific information that raises a genuine dispute over the material facts; (5) The agencys procedures governing debarment decision-making; (6) The effect of the issuance of the notice of proposed debarment; and (7) The potential effect of an actual debarment. 14 There are numerous causes enumerated for debarment, but the debarring official may debar a contractor for: (a) a conviction of or civil judgment for (1) Commission of fraud or a criminal offense in connection with (i) Obtaining; (ii) Attempting to obtain; or (iii) Performing a public contract or subcontract (3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property (5) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a Government contractor or subcontractor ... (b) (2) A contractor, based on a determination by the Secretary of Homeland Security or the Attorney General of the United States, that the contractor is not in compliance with Immigration and Nationality Act employment provisions (see Executive Order 12989, as amended by Executive Order 13286). Such determination is not reviewable in the debarment proceedings. The Notice of Proposed debarment in employer compliance cases can recommend debarment for a period not to exceed one year. 15 However, this period can be extended if necessary to protect the government interest. 16 If the debarment period is extended, the extension cannot be based solely on the basis of the facts and circumstances upon which the initial debarment action was based. 17 Debarments in employer compliance
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48 CFR 9.403(b)(2) Id. 13 48 CFR 9.403(c). 14 Id. 15 48 CFR 9.406-4(a)(1)(ii). 16 48 CFR 9.406-4(b). 17 Id.
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investigations may be extended for additional periods of one year if the DHS Secretary or the attorney general determines that the contractor continues to be in violation of the employment provisions of the Immigration and Nationality Act (INA). 18 If debarment for an additional period is determined to be necessary, the procedures outlined above are followed to extend the debarment. The debarring official may reduce the period or extent of debarment, upon the contractors request, and supported by documentation for reasons such as: Newly discovered material evidence; Reversal of the conviction or civil judgment upon which the debarment was based; Bona fide change in ownership or management; Elimination of other causes for which the debarment was imposed; or Other reasons the debarring official deems appropriate. 19 Furthermore, once the Notice of Proposed Debarment is served, the contractor is immediately placed on the General Services Administrations Excluded Parties List System (EPLS). 20 The EPLS includes the (1) Names and addresses of all contractors debarred, suspended, proposed for debarment, declared ineligible, or excluded or disqualified under the nonprocurement common rule, with cross-references when more than one name is involved in a single action; (2) Name of the agency or other authority taking the action; (3) Cause for the action . . . or other statutory or regulatory authority; (4) Effect of the action; (5) Termination date for each listing; (6) DUNS No.; (7) Social Security Number (SSN), Employer Identification Number (EIN), or other Taxpayer Identification Number (TIN), if available; and (8) Name and telephone number of the agency point of contact for the action. 21 The effect of such listing is that the contractor is immediately debarred from receiving contracts as of the date of the listing. Federal agencies cannot solicit offers from, award contracts to, or consent to subcontracts with these contractors. 22 And this is the case even before a decision is rendered on the actual proposed debarment. There is a provision by which the head of a particular agency can determine that there is a compelling reason to solicit offers, award contracts or consent to subcontracts. 23 Contractors debarred, suspended, or proposed for debarment are also excluded from conducting business with the government as agents or representatives of other contractors. Agencies are to consult the EPLS both before soliciting bids and immediately prior to award; the contracting officer shall again review the EPLS to ensure that no award is made to a listed contractor. 24
Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). 19 48 CFR 9.406-4(c). 20 48 CFR 9.404(a) 21 Id. 22 48 CFR 9.405 23 Id. 24 Id.
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THE AGENCY BEARS THE BURDEN OF PROOF IN DEBARMENT PROCEEDINGS In debarment proceedings, the agency seeking debarment of the contractor bears the burden of proving that the debarment is appropriate by a preponderance of the evidence. 25 The serious nature of debarment mandates that debarment only be imposed if debarment is in the public interest for the governments protection and not for purposes of punishment. 26 Debarment should not be used automatically simply because there may be an admission that could otherwise be cause for debarment. Rather, the regulations provide that debarment is a discretionary sanction and that the existence of cause does not require that a contractor be debarred. Instead, the debarring official should consider all of the circumstances, including the seriousness of the misconduct and any mitigating factors in making a debarment decision. 27 THE DEBARRING AGENCY MAY NOT CONSIDER ITSELF BOUND BY PREVIOUS SETTLEMENT AGREEMENTS UNLESS THE AGENCY EXPLICITLY WAIVED DEBARMENT Often, debarment proceedings arise directly from a previous Notice of Inspection from an I-9 ICE audit. It is important to note that the agency has taken the position that debarment proceedings are collateral proceedings and the outcome of a Notice of Inspection has no effect on the agencys ability to independently seek debarment. In a memorandum from David Martin, General Counsel of legacy Immigration and Naturalization Service (INS), to All Regional and District Counsels, Mr. Martin made it clear that debarment proceedings are considered collateral to other worksite enforcement actions and that the agency can independently seek debarment. 28 However, Mr. Martin goes on to state that the agency is bound by its own settlement agreements. He states in the memorandum, Plea agreements, and other settlement agreements, can foreclose future debarments. 29 The memo cites to numerous circuit court cases where plea agreements and other settlements were read to foreclose later debarment by a federal agency. 30 The memorandum instructs, As can be seen, the INS needs to ensure that its settlement agreements will not be read to foreclose debarment actions by other agencies. Settlement agreements should address the foreseeable collateral as well as the direct consequences of the agreement as a matter of good draftsmanship. 31 The memo also notes that legacy INS cannot bind other agencies, implying that legacy INS can be bound by its own settlement agreements. The memorandum concludes: For these reasons, any settlement agreement in a section 274A(a)(1)(A) or 274A(a)(2) knowing hire or knowing continuing employment case must include the following clause: Nothing in this Agreement shall release, prevent, bar or compromise any debarment or other action or proceeding relating to federal contracting that may be brought by any agency of the United States as a result of the Final Order to be issued against Respondent. Exceptions must be approved by this office. 32 This memorandum is particularly instructive for attorneys representing clients in worksite enforcement investigations. If the client decides to settle such investigations, it is critically important that the settlement agreement explicitly include clear, unequivocal, and unambiguous language indicating that the settlement agreement represents the entire, full, final and satisfactory resolution of all claims included and identified in
48 CFR 9.406-3(b)(3). 48 CFR 9.402. 27 48 CFR 9.406-1(a). 28 Legacy Immigration and Naturalization Service Memorandum, D. Martin, General Counsel Opinion, 97-4 (Mar. 26, 1997). 29 Id. 30 Id. United States v. Gezen, 952 F.2d 397 (4th Cir. 1996); United States v. Pacific Ship Repair and Fabricators, Inc., 979 F.2d 856 (9th Cir. 1992). 31 Id. 32 Id.
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the Notice of Intent to Fine and that the agencies involved agree that they will not seek any other administrative or civil remedies including federal debarment. 33 If the settlement agreement includes very clear language indicating that the agency shall not seek other independent civil or administrative remedies, any additional actions by the same agency that was a party to a settlement agreement to seek debarment or any other additional sanctions would be a clear violation of the plain terms of the Agreement, and pursuit of debarment or any other additional sanctions would be arbitrary and capricious and constitute a clear abuse of discretion. By clearly laying out that the Agreement represents the final, full, binding, satisfactory resolution of all claims, the agency would explicitly waive any future additional civil or administrative sanctions and debarment is not proper. [The Government] should be bound by the terms of its agreement whether or not that agreement ultimately has the effect anticipated at the time of execution. The Government, no less (and arguably more) than a private citizen, must be held to the agreements it enters into with its citizens. 34 EVEN IF THE AGENCY IS NOT BOUND BY A PREVIOUS SETTLEMENT THE CONTRACTOR SHOULD NOT BE DEBARRED BECAUSE THE CONTRACTOR IS PRESENTLY RESPONSIBLE Even if it is determined that ICE or DHS is not bound by the previous settlement agreement, the contractor should demonstrate that debarment is not in the governments interests. To establish that a contractor should not be subject to debarment is it critical to demonstrate that the employer is presently responsible. 35 A criminal sentence punishes someone for past wrongdoing. In contrast, debarment is designed to insure the integrity of government contracts in the immediate present and into the future. 36 The ultimate issue in considering whether to debar a contractor is the present responsibility of the contractor not his culpability for past conduct. The debarring official must ensure that government contracts are awarded only to responsible bidders and must be directed at the present responsibility of the contractor; the agency is required to carefully consider any and all favorable evidence to ensure that all findings are based on a realistic and readily articulated threat of harm to the governments proprietary interest. 37 A contractor can meet the test of present responsibility by demonstrating that the contractor has taken steps to ensure that wrongful acts will not recur. 38 Before arriving at any debarment decision, the debarring official must consider all mitigating factors, including: 39 (1) Whether the contractor had effective standards of conduct and internal control systems in place at the time of the activity which constitutes cause for debarment or had adopted such procedures prior to any Government investigation of the activity cited as a cause for debarment. (2) Whether the contractor brought the activity cited as a cause for debarment to the attention of the appropriate government agency in a timely manner. (3) Whether the contractor has fully investigated the circumstances surrounding the cause for debarment and, if so, made the result of the investigation available to the debarring official.
Under the regulation, any agency can seek debarment. 48 CFR 9.402(d). It is doubtful that ICE could bind other agencies by such language, but it is important to notify the client of the potential for debarment and important to bind ICE, DHS and any other agency involved in the investigation from future collateral administrative or civil sanctions. Counsel should also be wary of any admissions in the settlement agreement that could give rise to criminal charges.
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United States v. Gezen, 952 F.2d 397 (4th Cir. 1992).
48 CFR 9.406-1(a) Shane Meat Co. v. U.S. Department of Defense, 800 F.2d 334, 338 (3d Cir. 1986). 37 48 CFR 9.406-1(a); Silverman v. U.S. Dept. of Defense, 817 F. Supp. 846, 849 (S.D. Cal. 1993).
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Delta Rocky Mountain Petroleum v. U.S. Dept. of Defense, 726 F. Supp. 278, 280 (D. Colo. 1989). 48 CFR 9.406-1(3).
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(4) Whether the contractor cooperated fully with government agencies during the investigation and any court or administrative action. (5) Whether the contractor has paid or has agreed to pay all criminal, civil, and administrative liability for the improper activity, including any investigative or administrative costs incurred by the government, and has made or agreed to make full restitution. (6) Whether the contractor has taken appropriate disciplinary action against the individuals responsible for the activity which constitutes cause for debarment. (7) Whether the contractor has implemented or agreed to implement remedial measures, including any identified by the government. (8) Whether the contractor has instituted or agreed to institute new or revised review and control procedures and ethics training programs. (9) Whether the contractor has had adequate time to eliminate the circumstances within the contractors organization that led to the cause for debarment. (10) Whether the contractors management recognizes and understands the seriousness of the misconduct giving rise to the cause for debarment and has implemented programs to prevent recurrence. The attorney representing the contractor in debarment proceedings will want to address as many of the mitigating factors enumerated above. Normally, the cause for debarment will arise from the same claims made in the Notice of Intent to Fine issued by ICE. However, the cause could also arise from a criminal matter or any of the other listed causes for debarment. If the claim arises out of an ICE I-9 audit, it will be very important to document all of the actions that the employer has taken to address the notice of inspection. Of course, one of the first things the debarring official will consider is whether the contractor is complying with federal law regarding federal contracts. One of the most critical requirements is the requirement that all contractors with federal contracts be enrolled in and utilizing E-Verify. 40 This may include, engaging counsel to completely audit the I-9s for all current and terminated employees going back three years from the date of service of the subpoena. Also, the contractor should demonstrate that he or she catalogued all of the errors on each of the I-9s and made a spreadsheet of all of the common errors. The contractor should demonstrate full cooperation with government agencies during the investigation and any court or administrative action including turning over every document that was requested pursuant to the subpoena and fully and timely cooperating with all requests. The contractor should also demonstrate that the contractor sought a full and quick resolution of the matter and by entering into an agreement to settle the matter in lieu of protracted administrative court hearings (if a settlement agreement was completed). The contractor should also demonstrate that he or she has agreed to pay all criminal, civil, and administrative liability for the improper activity, including any investigative or administrative costs incurred by the government, and has made or agreed to make full restitution. This can be demonstrated by the terms of the settlement agreement and evidence of prompt and timely payments. If the agreement indicates that the parties will bear their own costs, the contractor should so state. The contractor should provide evidence of any disciplinary action taken against the individuals responsible for the activity which constitutes cause for debarment. This may include administrative leave, termination, required training or other measures. The contractor should show that he or she has implemented or agreed to implement remedial measures, including any identified by the government. This may include any actions taken in response to a Notice of Suspect Documents and may include terminating any individuals identified. This can also include enrollment in programs such as E-Verify or IMAGE.
On June 11, 2008, President Bush amended Executive Order 12989 to require all contractors utilizing federal contracts to verify the work authorization of all employees performing work on the contract through E-Verify. In Sept. 2009, the requirement of the Executive Order was incorporated into the Federal Acquisition Regulations (FAR) at Subpart 22.18 and provide a new solicitation and contract clause, 52.222-54. The new clause covers contracts and solicitations awarded or issued on or after the effective date of Sept. 8, 2009.
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The contractor should also demonstrate any institutional or procedural changes made and any ethics or corporate compliance trainings attended. For example, an employer can demonstrate that the employer has purchased software for I-9 completion and verification. There are a number of software programs that assist the employer with electronically completing the I-9 and allows for the employee to electronically complete section 1 and digitally sign the form. The software also audits the person completing the I-9 such that if the employer enters information into the wrong line or places a document into the wrong category, the user is prompted to correct the mistake. The software also tickles the employer to re-verify expiring documents and to purge documents on the allowable destruction date. The software is often internally linked to E-Verify such that the employer can conduct the I-9 process and check E-Verify in a streamlined process. If the employer has a human resources administrator in charge of I-9 and employer compliance, the employer should demonstrate all training provided to the administrator on employer compliance and the procedures in place to remain compliant. Additionally, it is imperative that the employer attend as many employer compliance trainings as possible and document these trainings to the debarring official. The trainings should include information on civil and criminal sanctions for failure to comply, proper completion, retention, and destruction of I-9s, reverification procedures, state compliance laws and other matters. All individuals in the company with decision making over employer compliance should attend these trainings. If the employer sponsors workers on visas, evidence of such employment on work authorizing status is beneficial to demonstrate the employers good faith effort to comply with immigration laws and hire authorized workers. In addition to evidence demonstrating compliance with the employer compliance provisions of the INA, evidence establishing general corporate ethics and proper governance is desirable and helpful to a positive outcome. Find out if the contractor has any written policies or procedures concerning corporate ethics and government contracts. Also, find out whether appropriate individuals in authority have been trained in corporate ethics. In certain circumstances, a written policy for corporate ethics and government contracts is specifically required. The requirement for such a separate written ethics policy arises from the FAR at 3.10003.1004. This regulation requires a written corporate ethics policy where contracts or subcontracts exceed $5,000,000 in value. Look to the contractors prior contracts to determine if such a provision was part of the contract or subcontract. Even if the contracts were for less than $5 million, FAR 3.1002 establishes a best practice and policy with respect to a Contractor Code of Business Ethics and Conduct, and the regulation suggests that contractors should have a written code of business ethics and conduct and a training program suitable to its size and the extent of its government contracting. 41 The contractor should also provide an organization chart for the company to show that control over major company decisions runs directly from upper management and is not widely dispersed throughout the organization. The more that employer compliance decisions and corporate responsibility is vested in a small group of well-trained individuals, the better. In addition to the organization chart, the contractor should provide job descriptions for all management-level individuals. THE PUBLIC INTEREST WOULD NOT BE SERVED BY DEBARMENT The final important element of any response to a Notice of Proposed Debarment is to establish that the public interest is not served by debarment. To sustain debarment from federal contracts, it must be established that the award of such contracts involves a present threat to the interest of the government. 42 To establish that debarment is not in the government interest, it is helpful to have letters of recommendation from past federal and state agencies with whom the employer has contracted. These letters should establish that the contract was completed timely and on-budget. The letters should address the
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See FAR 3.1002. Peter Kiewet Sons Co. v. U.S. Army Corps of Engineers, 534 F. Supp. 1139 (D.D.C. 1982).
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companys ethics, professionalism and compliance with the contract. The letters should also indicate whether the agency would hire the contractor for future contracts. Finally, the response should discuss the type of work that the contractor performs and persuasively discuss why such work might be in the public interest. The response should prove that the contractor is in the best position to address the public interest in continuing to perform the contracts presently and in the future. CONCLUSION The threat of debarment poses a particularly dangerous obstacle for contractors. Knowledge of the debarment regulations and procedures will assist immigration attorneys in attempting to head-off potential debarment notices and/or properly respond to such notices so as to demonstrate that the contractor is presently responsible and that the debarment does not serve the government interest.
DETERMINING WHEN A WAIVER IS REQUIRED AND TIPS FOR A SUCCESSFUL I-601 APPLICATION
by Farshad Owji, T. Douglas Stump, and Olsi Vrapi *
In an ever increasing culture of no, government officials continue to apply grounds of inadmissibility or deportability more stringently to the detriment of foreign nationals, thus, requiring the filing of a waiver of inadmissibility or deportability. They also seem to have lowered their standards on what conduct or facts trigger these bars. To build a successful waiver application, it is crucial for the practitioner to first understand the grounds of inadmissibility and deportability. Practitioners must next creatively dissect each waiver case and present it in a manner that distinguishes it from other cases and, thus, captures the adjudicators attention. This article will first provide a brief overview regarding the importance of identifying your clients potential need for a waiver, the type of waiver, and the time when grounds of inadmissibility and deportability should be contested. Next, this article will highlight strategic tips for filing a successful waiver application before the immigration judge or U.S. Citizenship and Immigration Services (USCIS). DOES YOUR CLIENT EVEN NEED A WAIVER? DONT AUTOMATICALLY CONCEDE INADMISSIBILITY OR DEPORTABILITY There are numerous grounds of inadmissibility and deportability. In the authors experience, however, three or four of those comprise a substantial majority of cases. These common grounds are unlawful presence, fraud, crimes, and to a lesser extent, health related grounds. This article will focus only on these grounds. The unlawful presence bars found at Immigration and Nationality Act (INA) 212(a)(9)(B) comprise by far the majority of cases filed overseas, especially in Ciudad Juarez, Mexico. Since the effective date of these bars in 1997, the government has yet to promulgate regulations. Instead, it rules by guidance. There has been a plethora of guidance from the relevant agencies defining the nature of unlawful presence. Most of this guidance was consolidated in memorandum produced by USCIS on May 6, 2009. 1 Furthermore, practitioners have written articles addressing the unlawful presence bars. 2 The waiver provision for INA
Farshad Owji is the principal attorney at his boutique immigration firm where he focuses on litigation and consular processing. Mr. Owji is a member of the Florida, Minnesota, and D.C. bars, as well as the Istanbul Bar. He is also admitted to practice before the U.S. Court of Appeals for the Ninth Circuit, and Federal District Court for the Middle District of Florida. He was the past liaison for the AILA Northern California asylum and Customs and Border Protection (CBP) and is the chapters current secretary. Mr. Owji was also a member of the AILA Rome District Chapter Consular Liaison Committee and is a current Department of Homeland Security Liaison Committee member.
T. Douglas Stump is second vice president for AILA. He is founder of Stump & Associates, with offices in Oklahoma City and Tulsa. He has more than 28 years of experience in a practice focused on employment-based immigration law, complex deportation, federal court litigation, and family immigration matters. Mr. Stump has been recognized in Best Lawyers in America, Oklahomas Top 50 Super Lawyers, International Whos Who of Corporate Immigration Law, and MartindaleHubbles Bar Register of Preeminent Lawyers. He is a senior editor for various AILA publications, and is a frequent speaker and author who has chaired many AILA national committees. Olsi Vrapi is a partner at Noble & Vrapi, P.A. with offices in Albuquerque and Santa Fe, NM. He is the chair of the AILA Publications Board and a member of the AILA Annual Conference Committee. Mr. Vrapi speaks frequently at AILA conferences and other immigration law events. He is also an adjunct professor of law at the University of New Mexico School of Law. Mr. Vrapi also serves as the CBP liaison for New Mexico. 1 USCIS Memorandum, D. Neufeld, L. Scialabba, and P. Chang, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Section 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act. (May 6, 2009), available at: www.uscis.gov/USCIS/ Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF. 2 The focus of this article is more on the tips and tricks of building a successful waiver rather than the actual grounds. For a more detailed analysis of this bar, see, for example, L. OConnor, Determining Unlawful Presence for the Purposes of the Three-Year, Ten-Year, and Permanent Bars, 1:2 AILAs Inside Immigration (Oct. 2010); available at www.ailapubs.org/unlawfulpres.html.
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212(a)(9)(B) bars is found at INA 212(a)(9)(B)(v) and requires a showing of extreme hardship to a spouse or parent who is a U.S. citizen or lawful permanent resident (LPR). Fraud or willful misrepresentation of a material fact 3 is also a common ground of inadmissibility. The Foreign Affairs Manual (FAM) cautions consular officers to apply this ground judiciously. 4 However, USCIS and Consular Officers seem more trigger-happy now than ever. In the authors opinion, this is one of the most fertile grounds for creative arguments in attacking the actual applicability of the bar. Therefore, it is crucial that the practitioner analyze the facts closely before conceding the ground. There are three distinct elements of this bar: (1) fraud; or (2) willful misrepresentation; and (3) materiality. 5 As a threshold issue, the fraud or willful misrepresentation must be perpetrated on an authorized U.S. government official. 6 The bar can be triggered by both oral and written statements. 7 Misrepresentations by agents of the foreign national will trigger the fraud bar if it can be established that the foreign national was aware of it at the time the misrepresentation was made. 8 Fraud consists of a false representation made with knowledge of its falsity and with intent to deceive the government official. The representation must be believed and acted upon by the government official to the foreign nationals advantage. 9 A willful misrepresentation is somewhat of a lesser standard in that proof of intent to deceive or that the government official was motivated to action is not necessary. 10 In practical terms, it is the latter provision that is used almost exclusively by government officials. A misrepresentation is not willful unless it was made with knowledge of its falsity. 11 A misrepresentation refers to some degree of affirmative conduct. Silence is not a misrepresentation and does not shut off a line of inquiry. 12 Practitioners should be aware of foreign nationals being charged with the fraud bar for not having volunteered or having concealed certain information, such as the purpose of their trip to the United States, when, for example, they are asked only about their destination. 13 The materiality element is perhaps the most fluid, and the one that provides the most leeway for arguments against the bar. The landmark case concerning issues of materiality is Matter of S & BC. 14 In that case, the attorney general decided that a misrepresentation is material if the applicant is excludable on the true facts, or if the misrepresentation tends to shut off a line of inquiry, which is relevant to the applicants eligibility and which might well have resulted in a proper determination that he be excluded. The attorney general emphasized, however, that a remote, tenuous, or fanciful connection between a misrepresentation and a line of inquiry which is relevant to the applicants eligibility is insufficient to satisfy this aspect of the test of materiality. 15
INA 212(a)(6)(C)(i). This article will not cover false claims to U.S. citizenship as provided in INA 212(a)(6)(C)(ii) since there is no waiver available for that ground of inadmissibility. 4 9 Foreign Affairs Manual (FAM) 40.63 N1.3. 5 See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) (concurring in part and dissenting in part, Rosenberg, Member). 6 Matter of YG, 20 I&N Dec. 794 (BIA 1994); Matter of DL and AM, 20 I&N Dec. 3162 (BIA 1991); Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984); Matter of LL, 9 I&N Dec. 324 (BIA 1961); 9 FAM 40.63. 7 9 FAM 40.63 N4.1. 8 9 FAM 40.63 N4.5. 9 Matter of GG, 7 I&N Dec. 161 (BIA 1956). 10 Id.; 9 FAM 40.63 N3(b). 11 Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979). 12 See Matter of DL and AM, 20 I&N Dec. 409 (BIA 1991); Matter of G, 6 I&N Dec. 9 (BIA 1953). 13 See 9 FAM 40.63 N4.2. This type of case is more common with individuals who enter by land. For example, many CBP officers at the southern border do not ask the purpose of ones trip, but simply what their destination is. 14 9 I&N Dec. 436 (BIA 1960, AG 1961). 15 Id.
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Aside from arguing that the bar was triggered by negating one of the elements, practitioners may also be able to argue timely retraction as a defense. 16 This is a recognized doctrine that would eliminate the need for a waiver. The waiver provision for fraud or misrepresentation appears at INA 212(i). The standard is the same as the one for unlawful presence. Criminal grounds also comprise a substantial portion of cases. No experienced practitioner needs reminding that, where criminal conduct is concerned, the INA is full of tripwires. Some of these leave nothing but the scent of sulfur and are unwaivable. convictions for murder; acts involving torture; controlledsubstance trafficking; controlled substance violations more than a single offense of simple possession of 30 grams or less of marijuana; money laundering; and human trafficking. 17 The waiver provision for criminal grounds of inadmissibility is found in INA 212(h). Section 212(h) bars from eligibility for the waiver anyone previously [] admitted to the United States as an alien lawfully admitted for permanent residence if since the date of such admission the alien has been convicted of an aggravated felony. Accustomed to reading admission as shorthand for either lawful passage through a port of entry or adjustment of status, the Board of Immigration Appeals (BIA) held in Matter of Rosas-Ramirez, 18 that no judge could grant an INA 212(h) waiver to a permanent resident convicted of an aggravated felony. In Martinez v. Mukasey, 19 the U.S. Court of Appeals for the Fifth Circuit ruled otherwise: its plain language made INA 212(h) available to permanent residents who had attained that status through adjustment. 20 By extension, the plain wording of the statue has been held to permit non-permanent residents who may be deportable for conviction of an aggravated felony, but inadmissible for conviction of a crime or crimes involving moral turpitude, to apply for an INA 212(h) waiver in conjunction with an application for adjustment of status. 21 Other crime-related grounds of inadmissibility may be waived. Among these are: (1) conviction for (or admission to the essential elements of) a crime involving moral turpitude, 22 (2) controlled substance violations, 23 (3) multiple criminal offenses for which the combined sentences were five years or more, 24 (4) prostitution or commercialized vice, 25 and (5) serious criminal offenses for which the noncitizen asserted diplomatic immunity. 26 The admission to the essential elements portion of INA 212(a)(2) provides another layer of complexity while, at the same time, providing fertile ground for arguments against the triggering of the criminal bar to inadmissibility. The BIA and the Administrative Appeals Office (AAO) have been very clear as to what is required as an admission to the essential elements. The BIA has held that to find inadmissibility based on admission to essential elements, certain procedural steps must be followed before the admission triggers INA 212(a)(2)(A)(i). The AAO has followed these BIA cases religiously. The FAM is also clear on this issue and
9 FAM 40.63 N4.6; Matter of RR, 3 I&N Dec. 823 (1949); Matter of M, 9 I&N Dec. 118 (1960); Matter of Ngan, 10 I&N Dec. 725 (1964); Matter of Namio, 14 I&N Dec. 412 (1973); CBP Inspectors Field Manual ch. 17.15(a)(3). 17 Also foreign government officials who have committed severe violations of religious freedom. 18 22 I&N Dec. 616 (BIA 1999). 19 519 F.3d 532 (2008). See also Lanier v. U.S. Atty. Gen., __ F.3d __, 2011 WL 338787 (11th Cir. Feb. 4, 2011) following Martinez. But see Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010). 20 Within months of Martinez-v. Mukasey, the BIA declined to revisit Rosas-Ramirez because the respondent had not raised the issue on appeal! Matter of Rotimi, 24 I&N Dec. 567 (BIA 2008). 21 Matter of Michel, 21 I&N Dec. 1101 (BIA 1998) (holding that a foreign national who has not previously been admitted to the United States as a foreign national lawfully admitted for permanent residence is statutorily eligible for a waiver of inadmissibility under 212(h) despite his conviction for an aggravated felony). 22 INA 212(a)(2)(A)(i)(I). 23 INA 212(a)(2)(A)(i)(II). 24 INA 212(a)(2)(A)(2)(B). 25 INA 212(a)(2)(D). 26 INA 212(a)(2)(E).
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enumerates the steps a consular officer must take before an admission triggers that ground of inadmissibility. 27 Regardless of the perceived difficulty in establishing an applicants admissibilityand the perceived ease of obtaining a waiverit is one authors opinion that it is virtually never prudent to concede inadmissibility unless it is a clear case of inadmissibility. INA 212(h) authorizes a waiver based upon either: (a) rehabilitation if it was an offense related to prostitution or if the offense was committed more than 15 years ago, or (b) hardship to a qualifying relative. 28 As a strategic matter, it is much easier to show rehabilitation than extreme hardship, so when practitioners are dealing with an old offense that was committed less than 15 years ago, it may be prudent to delay applying for an immigrant visa or adjustment of status until 15 years have elapsed. 29 Furthermore, this waiver provision is different from the unlawful presence and fraud waivers in that children are considered qualifying relatives. The fact that INA 212(h) relief waives only inadmissibility means that foreign nationals physically inside the United States must either: (a) seek admission 30 or (b) apply to adjust their status. However, in limited circumstances, an INA 212(h) waiver can be used in deportation proceedings not in conjunction with application to adjust status to waive a ground of deportability if there is a corresponding ground of inadmissibility and if, since commission of the crime, the foreign national traveled abroad and reentered the United States. 31 Following the repeal of INA 212(c) relief by 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the U.S. Supreme Court held in 2001 that lawful permanent residents who have maintained lawful un-relinquished domicile in the United States for at least seven consecutive years, but who are inadmissible on the basis of criminal convictions, including aggravated felonies, entered, pursuant to guilty pleas, prior to April 30, 1997, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), remain eligible for this discretionary waiver. 32 Once eligibility is established, the applicant must show exercise of a favorable discretion is warranted based on all the facts and circumstances involved [both negative and positive] and a complete review of the favorable factors in [the applicants] case. 33 Following the issuance of Executive Office for Immigration Reviews final regulations on INA 212(c) relief, at 8 CFR 1212.3 (effective Oct. 28, 2004), the Department of Homeland Security (DHS) was particularly successful in mounting challenges to approved INA 212(c) cases, which resulted in a line of precedent BIA cases limiting eligibility for INA 212(c) waivers in cases where an applicant is deemed deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act. 34 Despite the reprieve offered to removable aggravated felons offered by the U.S. Supreme Court in INS v. St. Cyr, supra, and regular practice
9 FAM 40.21(a) N5. The American Immigration Council (formerly American Immigration Law Foundation) has posted a comprehensive discussion of INA 212(h) eligibility: 212(h) Eligibility: Case Law and Potential Arguments, (Feb. 19, 2008), available at www.americanimmigrationcouncil.org/sites/default/files/212elig.pdf. 29 8 CFR 212.7(d) imposes an additional limitation upon INA 212(h) waivers: if the applicant has been convicted of a violent or dangerous crime, he or she must establish that extraordinary circumstances warrant a grant. The regulations do not define extraordinary circumstances, but give as examples (a) national security or foreign policy considerations and (b) exceptional and extremely unusual hardship without specifying to whom. (Gratuitously, the regulation iterates that the gravity of the aliens underlying criminal offense may render extremely unusual hardship insufficient.). 30 The BIA in Matter of Abosi, 24 I&N Dec. 204 (BIA 2007) held that INA 212(h) is available as a stand-alone waiver to those lawful permanent residents charged under INA 212. 31 Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980). See also American Immigration Council, 212(h) Eligibility: Case Law and Potential Arguments, (Feb. 19, 2008), available at www.ailf.org/lac/pa/212elig.pdf. 32 See INS v. St. Cyr, 533 U.S. 289, 325 (2001). 33 Matter of Edwards, 20 I&N Dec. 191, 196, n.3 (BIA 1990). 34 8 CFR 1212.3(f)(5) (2005).
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of granting 212(c) to aggravated felons pursuant to such cases as Matter of Meza, 20 I&N Dec. 257 (BIA 1991), DHS successfully asserted this comparable grounds test, in several key cases before the BIA that have all been upheld upon circuit court review, to markedly limit the eligibility for 212(c) relief of certain aggravated felons and other criminal foreign nationals who are charged as removable under a ground of deportability that does not have a comparable ground of inadmissibility. 35 The BIA did carve out one safe harbor for those applicants subject to the bar to INA 212(c) relief under the comparable grounds test at 8 CFR 1212.3(f)(5), holding, as it did in Matter of Azurin, 36 that an applicant whose deportable offense does not have a comparable ground of inadmissibility (e.g., a firearms conviction) may still apply for INA 212(c) relief in conjunction with an application for adjustment (or re-adjustment) of status, thereby reaffirming the BIAs longstanding practice under Matter of Rainford, 37 and Matter of Gabryelsky. 38 Stacking of different waivers, e.g., INA 212(c) for pre-AEDPA conviction with adjustment of status stacked with INA 212(h) or LPR cancellation of removal under INA 240A(a) for post-AEDPA conviction, is not allowed in most jurisdictions. Health related grounds of inadmissibility comprise a small portion of cases. However, there has been a dangerous trend at the U.S. consulate in Ciudad Juarez. Without going into detail, the most common example is a charge under INA 212(a)(1)(A)(iii) for those who admit having used (even a single time) controlled substances and/or are suspected of abusing alcohol. A WAIVER IS NECESSARYHOW TO PACKAGE A SUCCESSFUL WAIVER APPLICATION At the AILA National Conference in Washington, D.C. in July 2010, Joanna Ruppel, Chief of International Operations at USCIS, discussed some tips on preparing Form I-601 waiver packets. The tips originated from the USCIS officials who adjudicate I-601 applications filed abroad. Ms. Ruppel indicated that she distributed a list of questions to her adjudicators and received about a 50 percent response rate from them. She preparing an official, written publication for dissemination. The article below is based on her Talking Points. Until the publication is released, what appears below should be considered unofficial and cannot be cited in any legal brief. Also, while these Talking Points relate to international cases (consular processing), most of the points are relevant to waiver cases presented in the United States, whether in immigration court or before USCIS in conjunction with a Form I-485, Application to Register Permanent Residence or Adjust Status. Below, the sentences in italics are paraphrased from Ms. Ruppels Talking Points. Next to the sentence in italics are comments in plain text from the authors of this article. Technical Matters The appearance of many technical recommendations in the draft tips suggests that many attorneys are not complying with the basic procedural requirements of waiver filing. Such recommendations included: Be sure that the Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, is signed by both attorney and applicant.
See Matter of Azurin, 23 I&N Dec. at 696 n.2 (BIA 2005) (a foreign national charged as an aggravated felon removable under firearms ground of deportability not eligible for standalone 212(c) waiver because there is no corresponding ground of inadmissibility); Matter of Blake, 23 I&N Dec. 722 (BIA 2005) (aggravated felon convicted of misdemeanor sexual abuse of a minor ineligible for INA 212(c) relief because no comparable ground of inadmissibility); and Matter of Brieva-Perez, 23 I&N Dec. 766 (BIA 2005) (holding that a foreign national charged with an aggravated felony under the crime of violence ground at INA 101(a)(43)(F) for unauthorized use of motor vehicle is ineligible for INA 212(c) relief because it did not meet the comparable ground of inadmissibility test, even if the character of the offense might suggest that it is also a crime involving moral turpitude). 36 23 I&N Dec 695 (BIA 2005). 37 20 I&N Dec. 598 (BIA 1992). 38 20 I&N Dec. 750 (BIA 1993).
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Provide English translations of any documents produced in another language. Confirm that the hardship statement is from the qualifying relative, not the applicant. You can include statements from both if you would like, but you must have one from the qualifying relative. For more on the technical requirements, see the Form I-601 manual published by USCIS, dated April 2009, and found on the USCIS website. 39 Common Errors The adjudicators were asked to describe what they felt were the most common errors made by attorneys in preparing Form I-601s. Failure to provide a statement to explain the evidence or failure to provide evidence to support a statement. These are two sides of the same coin. A successful waiver packet has both evidence and a statement, brief, or letter describing the hardships and how the evidence proves the hardship. Including either the evidence or the statement is generally insufficient. Even the most detailed evidence will not have the intended effect unless explained in a succinct and cohesive manner tying all evidence and factors to the overall hardship the qualifying relative will suffer. Practitioners need to be aware of the time adjudicators have to review a waiver packet. A well-written brief tying all the evidence together will have much more effect than just submitting a lot of unexplained evidence. The intent is to lay down the case in the brief so that the officer spends little time deciphering the evidence submitted. Failure to link the hardship to the qualifying relative and to the waiver. One author of this article has noted in the past that this is one of the chief complaints of the AAO 40 in its decisions. It is not enough to simply state that there is a problem. The brief, statement, or letter must explain how the problem affects the qualifying relative and it is worsened by the applicants absence from the United States or the qualifying relatives presence in the applicants country. This becomes even more important when the hardship affects a non-qualifying relative more than the applicant. If hardship to non-qualifying relatives is documented, it must be shown how that affects the qualifying relative. Failure to argue both why the qualifying relative cannot move abroad AND why the qualifying relative cannot remain in the United States without the applicant. This is another common error noted by the AAO. 41 Proving either why the qualifying relative cannot move abroad OR why the qualifying relative cannot remain in the United States without the applicant is only half the case. You have to prove both. Why does hardship result when the qualifying relative and the applicant live in separate countries? Why is it equally hard on the qualifying relative when he or she moves abroad to be with the applicant? Failure to make any hardship claims. The adjudicators mentioned that they see many applications that prove only the validity of the relationship and completely fail to make any hardship claims. In the humble opinion of the authors, failure to make a hardship argument is grounds for a bar complaint and a malpractice suit. The validity of the relationship already has been established in most cases and the clear issue is hardship. Suggestions for Faster Adjudication Include a table of contents and put page numbers throughout the packet. Adjudicators warned that sometimes packets are reorganized by the consulate, so pagination helps them navigate the packet and ensure that nothing has been misplaced in transit. Pagination can be difficult as the final packet has a tendency to change at the last minute, upsetting pagination. One idea may be to try tiered pagination, giving each exhibit a letter and then numbering the pages within the lettered exhibit, e.g., A-1, A-2, B-1, etc. Consider purchasing a Bates stamp and paginate the packet when it is finalized.
www.uscis.gov/files/article/i601_immigrant_waivers_8jun09.pdf L. Scott with contributions from J. Ovink, How to Make the AAO Happy: Avoiding Mistakes When Appealing an I-601 Denial, Immigration & Nationality Law Handbook (AILA 201011 Ed.). 41 Id.
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Organize the packet from most relevant evidence to least. In past years, adjudicators have stated off the record that they are at liberty to approve the packet as soon as they find a reason to do so. The faster they can identify that reason, the faster they can move on to the next packet and speed adjudication for everyone. Providing the best evidence with the most weight first enables faster adjudications for everyone. The order of the evidence should be reflected in the order and flow of the attorneys brief or statement. If there is a lot of documentation, highlight the most relevant parts. While the adjudicators used the term highlight, the authors of this article recommend underlining because highlighting does not always photocopy or scan well in black and white. Already USCIS is providing electronic copies of files in response to requests under the Freedom of Information Act, and in the future, the use of electronic scanning is likely to increase in general for immigration cases. For this reason, we also recommend that attorneys seek alternatives to tabbing in anticipation of electronic filing. Furthermore, the officer-in-charge in Ciudad Juarez has stated 42 that the waiver packets do not fit well in the files if there are tabs, so he does not prefer tabs. Be judicious about including a lot of irrelevant documentation. In the draft tips, there were several comments on the size of the waiver packets. Each comment appeared to be carefully worded. In the authors opinion, adjudicators feel that large packets with copious amounts of irrelevant or unimportant documentation slow down the progress of their work, but the adjudicators do not want to say anything that might discourage applicants from including a document that might be important. Attorneys should use their judgment regarding the relevance of the documentation they include. Adjudicators are not impressed by large packets of fluff. They want material, relevant evidence. Remember that a Form I-601 appeal to the AAO is a de novo review, 43 so new evidence may be submitted on appeal, even if it could have been provided previously. There is no need to provide extra evidence on the initial filing in order to preserve an argument for appeal. Provide a summary of the applicants immigration history. As the applicants entire immigration history is relevant to the discretionary portion of the waiver, the adjudicator needs to know that background. The adjudicators can retrieve it, but if the attorneys to simply provided that information, that will speed processing times for everyone. Include all possible arguments for the totality of the circumstances analysis. The authors of this article find this to be an interesting suggestion from the adjudicators, considering that one of the prior suggestions is to decrease the size of the waiver packet by not including copious amounts of irrelevant or unimportant documentation. Including a lot of weaker arguments detracts attention from the stronger arguments and may even damage the applicants credibility if he or she appears to be complaining about something minor. One way to balance the adjudicators suggestion and the concerns previously described is to summarize weaker arguments in a section of your waiver entitled, for example, Other Concerns. This section could artfully explain that the arguments in that section are believed by the applicant to be lesser arguments, but that they are included for purposes of completeness. Such concerns must still be supported with evidence, but you might want to minimize effort collecting these documents so you and the client can focus on building the case for your stronger arguments. Remarks About Certain Types of Evidence Country condition information should be specific. The more specific the country conditions report or article is to a particular argument, the better. For example, for an argument showing that the client cannot obtain proper medical treatment in a certain country, provide information on the treatment of that particular condition in that country, not just general information on medical care. Furthermore, and specifically, arguments about safety in Mexico do not carry much weight unless they are relevant to the clients situation, i.e., a client who has already received threats or who has had a family member kidnapped or killed by criminals.
W. Janssen, Ciudad Juarez USCIS Officer-in-Charge, Remarks at the ILW.com Telephonic Seminar (July 8, 2010). L. Scott with contributions from J. Ovink, How to Make the AAO Happy: Avoiding Mistakes When Appealing an I-601 Denial, Immigration & Nationality Law Handbook (AILA 201011 Ed.).
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Medical conditions, symptoms, and prognosis should be explained in laymans terms. Adjudicators stated that they prefer a detailed, comprehensive, easy-to-understand letter from a doctor over hundreds of pages of medical reports and lab results described in medical terminology. The authors believe that ideally you should have a letter from the doctor, an article explaining the condition in laymans terms (e.g., from MedlinePlus of the National Institutes of Health), a selection of medical records, and letters from lay people describing in their own words how the situation is worsened by the applicants absence. Financial arguments must describe income/assets, as well as debts/liabilities, and must include a detailed written argument or summary, rather than just bills. The heart of this complaint from adjudicators is that it proves nothing to send them copies of a lot of bills and vaguely state that there is financial hardship. Psychological evaluations should describe in detail ongoing relationships with a mental health professional and/or significant prior treatment. The adjudicators echoed what the AAO has repeatedly said: evaluations will be given limited weight if they are based on a single visit or brief handful of visits to a mental health professional. The adjudicators went a step further than the AAO to say that evaluations will be given limited weight if it appears that the patient visited the mental health professional for the sole purpose of getting an evaluation for the Form I-601. To be clear, they did not say that the reports would be ignored, only that they would be given limited weight. Moreover, if there is a reason why the patient has not had an ongoing relationship with a mental health professional, explain it and provide evidence. It may also be helpful to request that the mental health professional conduct a home study so that he or she can be more educated about the clients situation. In one authors opinion, this carries more weight than just an office visit, especially if the professional/expert has not had a long relationship with the qualifying relative. Many of the comments from the adjudicators were expected as they reflect statements made by the AAO in their decisions. Some other comments finally substantiate theories presented by attorneys in other articles on waivers. Still other comments were unexpected. By reviewing and digesting the information provided by the adjudicators, we can prepare better waiver packets that are not only more likely to produce a favorable outcome, but that are also easier and faster to adjudicate, allowing the government to accelerate their processing times for all applicants. Practitioners should bear in mind that, especially for foreign-filed waivers, the adjudicator reviews Form I601 application packets all day long. Therefore, some arguments that arise frequently, such as financial and emotional hardship, become mundane and no longer seem that extreme. Because of this, it becomes important to find a unique angle or hook which will make the waiver application stand out from the rest. In other words, treat a waiver application as if you were writing a novel. Develop a main theme to your waiver story, find a unique hook to capture the adjudicators attention, and develop all the factors so that they support that main, unique theme. This is not to say that one cannot meet the hardship standard with only financial or emotional issues, but every element has different degrees. It is the job of the practitioner to find a unique angle or portrayal of these factors to make the application distinguishable. For example, emotional stress or depression is to be expected by most, if not all, qualifying relatives, therefore, in and of itself, may not be sufficient to meet the burden. However, documenting that the qualifying relative suffered physical and sexual abuse as a child because of a lack of emotional support from parents will paint the current emotional hardship in a new light that could, in and of itself, meet the extreme hardship standard. In another example, for someone who has a history of clinical depression, the emotional issues stemming from the separation or a move to a foreign country are not the only ones that will affect that depression. Lack of money, education, career opportunities, availability of psychological health care, etc., are all different factors of extreme hardship that can be painted in such a way to make the chronic depression the central theme of the waiver packet. This could be said for many of the other common factors. This is where waivers take an art form. Form I-601 waivers are fertile ground for good lawyering. Even a seemingly weak Form I-601 case can be turned into a sure winner with proper investigation of all factors and some work to paint things in the right light. The most important job of the practitioner in this respect is to investigate all issues of the qualifying relatives life regardless of how unimportant they may seem at first. The first step is to have a long discussion with the client and explore every area of their life, even if it seems irrelevant. Get a full financial picture of the client and the qualifying relatives life. Obtain information on their income, obligations, property owned
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in the United States, liabilities, etc. Loss of income, loss of business, loss of property, etc., even though not exceptional and unusual in and of themselves, will certainly contribute to overall analysis of hardship. A totality of the circumstances is considered. A history of the clients and qualifying relatives life is also helpful. Many times, we are faced with clients who have a violent past or have suffered severe trauma from the loss of a loved one, parental abandonment, or downright physical and sexual abuse. That kind of history makes a compelling case of hardship. It is the authors opinion that this investigation with the client must be done by the attorney and not a paralegal. The strategy for each waiver must be developed from scratch by the attorney in consultation with the client. The quality of a waiver will decrease if treated in a pro forma manner where paralegals gather certain common documents and prepare a brief from a generic template. Furthermore, it is the opinion of the authors that a good brief should always be developed from scratch (aside from generic statements not pertaining to the clients situation) because that will have the fullest effect, not only in being relevant to the case, but also to help the attorneys creative juices flow better. Although the same principles and strategies apply to waivers presented before the immigration courts, the presentation of the case is much different from waivers filed with USCIS. The major difference is that USCIS waivers are adjudicated solely on paper, where the nature of immigration court decreases the importance of a paper presentation and makes testimony the first priority. Immigration judges are unlikely to have reviewed the documentation submitted in support of a waiver. This is especially true if there is voluminous evidence submitted. Unlike the standard of review at the AAO, the BIA reviews only the record created below. No new evidence can be submitted unless it can be shown that it was previously unavailable. Therefore, it becomes important to submit all evidence on all points of hardship to the immigration judge. This is not to say that practitioners should flood the court with irrelevant fluff because that could cause the judge to ignore the good evidence simply because of the sheer volume of the not-so-good evidence. Good judgment should always be exercised in choosing what evidence to include and what to exclude. While evidence is important, the major undertaking in a waiver presented before a judge is testimony. Practitioners should spend a substantial amount of time prepping witnesses for testimony, especially qualifying relatives. USCIS adjudicators do not give much attention to psychological reports created for purposes of the waiver. However, the testimony of a good social worker or therapist can be very persuasive in court, especially if the therapist or social worker has spent considerable time with the client and possibly done a home study or extensive interaction with the qualifying relatives and their surroundings. There is extreme hardship, and then there is exceptional and extremely unusual hardship. The standard for most common waivers of inadmissibility is extreme hardship. However, a client whose only relief is cancellation of removal under INA 240A(b)(1) has to show not just extreme hardship, but a much higher standard. The strategy for building a good cancellation case is the same as what has been covered previously in this article. The difference is a matter of degree. There is no definition of exceptional and extremely unusual hardship. It can take many forms. The common example would be a qualifying relative with a severe medical illness that requires the foreign nationals presence in the United States and that cannot be treated in a foreign country. However, do not limit your outlook only to these rare cases. Sometimes, the BIA surprises us with certain decisions reversing immigration judges on this standard. 44 At the very least, practitioners should evaluate all aspects of the case and not judge its viability simply by the existence or lack of a severely ill relative.
44 By way of example, the BIA has found in unpublished decisions the hardship standard to be met in some surprising cases. In one case, the hardship standard was met where the U.S. citizen spouse had been emotionally ill for many years due to heavy drug use that even forced her to be a prostitute until she met the foreign national who helped her change her life. In another case, the BIA granted cancellation for a 17-year-old respondent who had been brought to the United States as a young child and whose mother had other U.S. citizen children and could not relocate to Mexico. In yet another case, the BIA found the hardship element met where the two qualifying relatives were children of 9 and 15 years of age who had lost their mother (respondents wife) due to cancer five years earlier. In the latter case, the BIA, in a one paragraph decision, found the element to be met because a move to Mexico would be too traumatic for these children.
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One last word regarding waivers in general: they are discretionary decisions. This is lost on a lot of practitioners who focus all their attention on extreme hardship and do not think about the overall equities of the case. Extreme hardship is perhaps the most important element (when required by statute), but not the only one taken into the consideration. Although rare, it is possible that a waiver be denied on discretion, even though the extreme hardship standard is met. The weight given to discretionary factors depends on the adjudicator. It is usually unknown who will adjudicate the waiver when it is submitted overseas. However, when dealing with a local officer or immigration judge, the idiosyncrasies of the particular adjudicator become important. If unfamiliar with a particular officer or immigration judge, it is imperative to poll local experienced practitioners as to what the particular adjudicator likes to see in a waiver and how much weight is placed on overall discretion. CONCLUSION When considering inadmissibility and deportability for purposes of filing a waiver, it is first necessary to determine whether a waiver is required. In other words, it is not prudent to always to concede inadmissibility or deportability because all too oftenespecially in cases of alleged fraud or certain crimesthe bar to admission does not apply. When a waiver is required, however, simply submitting documents will unlikely yield a favorable result. Practitioners should not forget to be lawyers when filing waiver applications and should document all evidence in an organized brief or legal statement.
I-612S: BASIC PROCEDURES AND RECENT TRENDS

by Bruce A. Hake *
BASIC PROCEDURES The J-1 Foreign Residence Requirement Some, but not all, J-1 exchange visitors are subject to the two-year J-1 foreign residence requirement of the Immigration and Nationality Act (INA) 212(e). There are three ways that an exchange visitor can become subject to the requirement: (1) if the exchange program was funded by the government of the persons home country or by the government of the United States; (2) if the person will receive training in skills on the Skills List; or (3) if the person is coming to the United States for graduate medical education. Persons subject to the requirement have certain disabilities, including ineligibility to apply for H or L visa stamps or for adjustment of status or an immigrant visa, per INA 1 212(e), and including restrictions on change of status, per INA 248. The U.S. Department of State (DOS) and the U.S. Department of Homeland Security (DHS) both claim to be the final arbiter on whether a person is subject to the foreign residence requirement. Historical Role of USIA J-1 waiver and program matters used to be handled by the U.S. Information Agency (USIA). The USIA was abolished on October 1, 1999. Its J-1 program responsibilities were assigned to the Office of Academic Exchange Programs in the DOS Bureau of Educational and Cultural Affairs (ECA). Its J-1 waiver responsibilities were assigned to the newly created Waiver Review Division (WRD) in the DOS Bureau of Consular Affairs. Annotations Concerning the Foreign Residence Requirement Annotations concerning the foreign residence requirement on IAP-66 or DS-2019 forms, on visa stamps, on I-94s, or otherwise, are frequently wrong and in any event are not legally binding. A lawyer must make an independent analysis, and this can be complicated, especially for government-funded cases. When there is doubt, it is prudent to seek an advisory opinion from the WRD. There is no form or fee for that request. Four Waiver Types Under INA 212(e), there are four kinds of J-1 waivers: (1) no objection waivers, based on a no objection statement from the home country; (2) Interested Government Agency (IGA) waivers, based on a recommendation from an interested U.S. federal agency (or state agency for certain physicians); (3) exceptional hardship waivers, based on hardships to qualifying relatives (U.S. citizen or permanent resident spouse and/or child); and (4) persecution waivers, based on a personal risk of persecution on account of race, religion, or political opinion. Note that the grounds for this latter kind of waiver are somewhat different from the grounds for refugee or asylum status under INA 101(a)(42). DS-3035 All J-1 waiver applications, without exception, commence with the filing of a DS-3035 data sheet at the WRD. This must first be filed online, then in hardcopy. 2 Although this form is now entitled J-1 Visa Waiver Recommendation Application, I do not regard it as an application form; in all J-1 waiver cases (except arguably no objection cases) the actual application arrives separately. Thus, this author thinks of the DS-3035 as more of a registration form. Note that the online filing system for the DS-3035 is poorly designed and it
*
Bruce A Hake is a lawyer in private practice in New Windsor, MD. For 19 years, his practice has concentrated on J-1 waiver cases. Copyright 2011 by the author. Reprint permission granted to AILA. 1 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). 2 See http://travel.state.gov/visa/temp/info/info_1296.html.
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may be necessary to type in meaningless characters to get the online system to accept the input. One can later make handwritten corrections on the hardcopy. The DS-3035 instructions on the WRD J-1 waiver page (cited in the previous paragraph) and on the form itself appear to be designed primarily for no objection cases. Some of the instructions do not make sense for I612 cases, because in those cases the main application is filed initially with the U.S. Citizenship and Immigration Services (USCIS), as described below, not with the WRD. In this authors practice, in I-612 cases filed with the hardcopy of the DS-3035, only the following additional items are included: (1) cashiers check for the $215 filing fee (reportedly a law firm check may now be acceptable, but for awhile in 2008 the WRD was demanding cashiers checks); (2) copy of the barcode page obtained upon successful input of the online form; (3) a self-addressed envelope (addressed to Client c/o Lawyer); and (4) a memo on law firm stationery that says: This is a Form I-612 exceptional hardship or persecution waiver case. The G-28 and other materials will be sent separately to the Waiver Review Division in Washington by the U.S. Citizenship and Immigration Service. They are not required to be processed in St. Louis. The DOS office in St. Louis to which the DS-3035 is filed is not actually a DOS office but rather a lockbox at a private bank that has a contract with the WRD to do initial intake processing. For years, the WRD used to send out notices upon receipt of a DS-3035, which included instructions on how to proceed with the application. This is no longer done. California and Vermont Beyond the initial step of filing the DS-3035, all J-1 waiver types have distinct procedures. Exceptional hardship and persecution waiver applications are filed with the USCIS California Service Center (CSC) on Form I-612. No objection and IGA waiver applications start in different ways, never involve a Form I-612, and indeed never involve any kind of USCIS application or petition form. All USCIS I-612 processing is done at the CSC. All USCIS no objection and IGA processing is done at the Vermont Service Center. Place of Filing Official instructions to USCIS application and petition forms are supposed to have the force of regulations. 3 The current instructions for Form I-612 (11/23/2010 version) still recite that I-612s are to be filed at the Vermont, Nebraska, Texas, or California service center, depending on the applicants state of residence. But this is incorrect. In December 2006, USCIS announced that effective November 1, 2006, all I612s are to be adjudicated at the CSC. Nowadays, all I-612s should be filed directly at the CSC, using the address on the forms instructions. What Is an I-612? Some lawyers and even the USCIS refer to approval notices in all kinds of J-1 waiver cases as I-612s. This is a mistake that should be avoided, because it causes confusion. Reportedly, this is because the USCIS Form I-797-generating software requires every I-797 to be tied to a specific application or petition form, so they print I-612 in the top of the notices in no objection and IGA waiver cases, that being the closest form. Hardship and Persecution Claims Cannot Be Combined It is fairly common for an I-612 case to involve simultaneous claims of hardship to the qualifying relatives plus a risk of persecution to the applicant himself. The USCIS does not care whether hardship and persecution claims are combined in one application. But the WRD has always insisted that hardship and persecution claims must not be intertwined. 4 Therefore, if both grounds exist, it may often be prudent to file two separate I-612 applications at the same time.
3 4
8 CFR 103.2(a)(1). See the WRD FAQ page, available at http://travel.state.gov/pdf/1288%20-%20J%20Waiver%20FAQ-Nov-10.pdf.

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Bifurcated Review Unlike most waivers in U.S. immigration law, I-612s cannot be approved unless two agencies (DHS/CSC and DOS/WRD) concur. Thus, when CSC completes its review of an I-612, it cannot approve the application on its own. Instead, if it believes that the application should be approved, it fills out a special one-page transmittal form called the I-613, puts that on top of the application, and forwards the application to the WRD for its review. In issuing the I-613, the USCIS is making a favorable recommendation, which is equivalent to determining that the qualifying relatives would face an exceptional level of hardship under all travel alternatives, or that there is a sufficient risk of persecution. When the WRD completes its review, it marks Granted or Denied on the bottom of the I-613, sends the package back to the CSC, and the CSC issues the final decision. J-1 waiver approval notices are typically (but not always) issued on Form I-797; J-1 waiver denial notices are typically issued in the form of a letter explaining the basis for the denial. On the WRD website (see section on tracking below), it says Favorable Recommendation or Not Favorable Recommendation, depending on whether the I-613 has been marked Granted or Denied. Nature of Review Under INA 212(e) and the DOS and USCIS regulations, in an I-612 case it is the responsibility of the CSC to determine whether there is exceptional hardship to qualifying relatives, or a sufficient risk of persecution to the applicant; whereas it is the responsibility of the WRD to weigh program, policy, and foreign relations aspects of the case, not to conduct a de novo review of hardship or persecution; but the program, policy, and foreign relations aspects of the case are weighed against the hardship or persecution risks. 5 Public Interest In addition, under INA 212(e), DHS (and not DOS) is charged with determining whether it would serve the public interest of the United States to grant the waiver. The literal language of INA 212(e) may be interpreted to imply that the public interest adjudication is a third review undertaken after the DHS and the DOS have already reached favorable recommendations. In practice, however, this factor is considered by DHS during its initial review (or sometimes by DHS on appeal, as mentioned below). Content of Applications The affirmative requirements for I-612s are stated in the instructions to the form and at 8 CFR 212.7(c). There is little to these instructions. The most important requirement is a personal statement of the applicant, which I prefer to put in formal affidavit style. In practice, of course, preparing approvable I-612s is complex. For a summary of some of this authors conclusions on this, see the article on the Hake Hardship Scale. An excerpt of the most pertinent parts is available at www.hake.com/pc/scale.htm. Qualifying Relatives As noted above, in Form I-612 exceptional hardship waiver applications, one must show hardship to qualifying relatives, that is, to a U.S. citizen or permanent resident spouse and/or child. Hardship to the applicant himself is not supposed to count. In reality, however, serious hardship to the applicant indisputably does count, to the extent that it results in derivative hardships to spouse and/or child. Further, if there does exist exceptional hardship to a statutorily qualifying relative, the Service and the DOS have historically also given weight to the hardship of other close relatives. The leading case is Matter of Kawasaki. 6
See 8 CFR 212.7(c) (DHS rules for I-612s) and 22 CFR 41.63, especially subsection (b)(2)(ii) (DOS rules for J-1 waiver cases); see also the WRDs FAQ page at http://travel.state.gov/pdf/1288%20-%20J%20Waiver%20FAQ-Nov-10.pdf. 6 Matter of Kawasaki, 12 I&N Dec. 864 (Dep. Assoc. Commr 1968) (exceptional hardship waiver granted where mother-inlaw suffered from cancer and was dependent on the applicants spouse for emotional and other support).
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Standard of Proof for Exceptional Hardship This author has argued in his writings over the years that all of the many hardship standards in the INA are equivalent, save only for the plainly higher standard for 10-year cancellation of removal (formerly suspension of deportation) under INA 240A(b). However, in this authors recent Administrative Appeals Office (AAO) victory, the AAO specifically stated that the standard for proof of exceptional hardship is a lesser standard than the extreme hardship standard for proof of seven-year cancellation. 7 This makes sense, because persons applying for cancellation are generally at least allegedly deportable and inadmissible due to some misconduct, whereas J-1 exchange visitors subject to the foreign residence requirement have done nothing wrong. Ineligibility and Inadmissibility The J-1 foreign residence requirement of INA 212(e) is not a ground of inadmissibility, like those set forth in INA 212(a). Instead, it is a special kind of ineligibility for certain things, as set forth in INA 212(e) and 248. No Concurrent Filing with Adjustment Applications It is common to file Form I-601 applications for waiver of inadmissibility concurrently with Form I-485 adjustment of status applications. But this cannot be done with I-612s, and doing so is an almost certain recipe for disaster. Note that INA 212(e) states specifically that a person subject to the foreign residence requirement may not apply for permanent resident status. Importance of U.S. Government Funding Whether or not a persons J-1 program was funded by the U.S. government is of crucial importance. If so, it may be extremely difficult to get a waiver. These cases have always been extremely difficult, unless there are spectacular facts or spectacularly high-level political support. They have gotten even harder over the last three years, as discussed below. The WRDs FAQ page (cited above) includes this: Q. What is the reason most applications are denied? A. Applications are denied because the reasons given for requesting the waiver do not outweigh the program and foreign policy considerations of the exchange visitor program. For this reason waiver applications from exchange visitors who received U.S. government funding are generally denied. That answer in the FAQ, by the way, is legally incorrect, because it conflates statutory policy and foreign relations. The regulation (22 CFR 41.63(b)(2)(ii) and (iii)) require the WRD to review the program, policy, and foreign relations aspects of the case. That is three components, not two. I believe that policy in this context means the statutory purpose, as set forth at 22 CFR 62.1(a). (Incidentally, the regulation requires the WRD to weigh these considerations in all Form I-612 cases, not just those involving U.S. government funding.) Tracking a Pending Case Every I-612 case has two case numbers: A WAC number assigned by the CSC; and a WRD case number assigned by the WRD. USCIS used to send a notice at the point where an I-612 was forwarded to the DOS, but it no longer does this. Moreover, the CSC generally does not update the USCISs online tracking system at that point. Therefore, the most reliable way to track an I-612 application is to regularly check the WRDs online system at: http://169.253.2.79/. This system is usually reliable. If one sees that the I-612 and I-613 have arrived, it is clear that the CSC has made a favorable recommendation. Multiple Case Numbers It is the policy of the WRD to assign one WRD case number to a person, which applies to all waiver applications the person might submit. It is fairly common when one files the online DS-3035 for one to get a
7
Matter of [name redacted], (AAO Feb. 6, 2007) (on file with the author).
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new WRD case number that is different from a WRD case number assigned to the person for a previous waiver application. You need to be aware of this potential problem, and when it arises, use the earliest case number. Multiple Filings As mentioned above, it is possible to file two I-612s at the same time, one based on persecution and one based on hardship. In addition, one can also apply simultaneously for a no objection waiver and an IGA waiver. So some J-1s might have several waiver applications pending at the same time. Note that under INA 212(e), a J-1 subject to the foreign residence requirement due to graduate medical education may not apply for a no objection waiver. One Waiver to a Customer Although there is no justification in statute or regulation, it has long been the policy of the WRD to refuse to adjudicate a J-1 waiver application if it has already given a favorable recommendation on another waiver application for the person. This rule can cause great trouble for some clients. For example, for most J-1 medical doctors, it is more desirable to have a hardship waiver instead of an IGA waiver based on three years of service. Thus, if time is short, and both a hardship and IGA application are filed at the same time, a kind of race ensues. The WRD will sometimes waive its one waiver to a customer policy in unusual cases. Appeals If the CSC denies an I-612 upon initial review, one can appeal the decision to the Administrative Appeals Office (AAO) in Washington D.C.. Some lawyers believe this kind of appeal is futile, but in my own practice I have won 42 of 43. In 10 of those victories, upon receiving the appeal brief, USCIS reopened on its own motion and did not transfer the appeal to the AAO. On the other hand, if the CSC denies an I-612 after a negative recommendation from the WRD, there is no provision for administrative appeal, and federal courts have generally held that there is no review. But federal courts are not unanimous in disclaiming jurisdiction. See, e.g., Chong v. USIA, 821 F.2d 171 (3d Cir. 1987) (although relief was ultimately denied, due to weak facts, the Third Circuit upheld the trial courts finding that there was jurisdiction to review for abuse of discretion the USIAs opinion in a J-1 waiver case for a medical doctor from Hong Kong, and discovery was taken from the USIA). Im aware of two federal cases now challenging the supposed nonreviewability of DOS opinions in this area. Renewed Cases Denial of a Form I-612 is not final. One can always file a de novo application, which this author calls a renewed case. This author has won more than 20 of these, and USCIS and DOS have never objected to the propriety of the refiling. This is often the best strategy after a denial instead of filing an appeal or a motion to reconsider, especially when there is a poor record developed by a pro se applicant or by an inexperienced lawyer or when additional facts may have strengthened the case. Dont File for Adjustment Without the Final Approval Notice In 1998, Paul Virtue, then legacy Immigration and Naturalization Service (INS) executive associate commissioner, issued a memorandum (Virtue memo) 8 that permits a person to file an I-485 on the basis of a favorable J-1 waiver recommendation from the DOS, without having to wait for legacy INS to issue a final approval notice. Since it used to take a long time for the final approval notices to arrive, for many years this author relied on the Virtue memo to file immediate relative adjustment applications as soon as he had the favorable Form I-613 back from the WRD. In the last year, however, it has become clear that this is no longer safe and that one needs to wait for the final approval notice. This is no longer safe, because USCIS has gotten extremely efficiently on lockbox processing of most immediate relative adjustment applications, so that it often will pull the I-612 file before CSC has a chance to
Legacy INS Memorandum, P. Virtue, Waiver of Foreign Residency Requirement and Adjustment of Status for JNonimmigrants (Feb. 17, 1998) published on AILA InfoNet at Doc. No. 98021740 (posted Feb. 17, 1998), available at www.aila.org/content/default.aspx?docid=4821.
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issue the final waiver approval notice. This results in people showing up at district offices for adjustment interviews and there is no waiver approval in the file. Although the Virtue memo instructs local offices to adjudicate the waiver on the spot, and I have seen them do that, the district offices seem to be increasingly reluctant to do that. Instead, they are tending toward sending the entire file, including the adjustment application, on to the CSC. This can result in incredible delays and confusion. This new rule is not very burdensome at the moment, since CSC is currently issuing approval notices quickly, as mentioned below. EUREKA MOMENTS Below are five eureka moments this author has had over the years: The Hake Hardship Scale It has always been my policy not to accept a case unless I have a strong belief it is winnable. For many years, my rule of thumb was not to accept a case unless I thought it had at least a 75 percent chance of success. I always wished I had a reliable way to quantify that estimate, but I used to think it would be prohibitively complicated and expensive to devise such a system. Several years ago I had a major eureka moment one spring evening in which I realized one could accurately analyze potential I-612 exceptional hardship cases by asking just 10 questions. So far in hundreds of cases I have never found a major hardship factor that did not fit into this system, which I named the Hake Hardship Scale. 9 The system is based on a rigorous analysis of many of my own successful cases plus hundreds of AAO decisions. The Hardship-Minimizing Travel Alternative This is a concept I invented that simplifies the task of analyzing a prospective exceptional hardship waiver case. The central dogma of I-612 hardship cases, according to longstanding practice of the USCIS, is that one must prove exceptional hardship to the qualifying relatives under all of the travel options. Ignorance of this rule is the number one reason why people lose when they apply pro se or with inexperienced counsel. In some cases there is only one travel option, as in the case of a J-1 with a J-2 spouse and U.S. citizen children, where the J-2 is derivatively subject to the foreign residence requirement and where there is no close relative in the United States who could care for the children for two years. In such a case, it is indisputable that the entire family would have to relocate to the home country to fulfill the foreign residence requirement, and thus the qualifying relatives (the children) would definitely face all the hardships described in the application. But if there is a U.S. citizen or permanent resident spouse, or if the exchange visitors spouse has a different nonimmigrant visa status such as H-1B or O-1 and is not subject to the foreign residence requirement, then there may be many travel options. In principle, for example, in a case with a U.S. citizen spouse and five U.S. citizen children, there would be 64 travel options! (That is two raised to the power of the number of the qualifying relatives.) USCIS usually only distinguishes only two options (whole family relocates to home country or qualifying relatives stay in the United States). In my own practice, I often am systematic about describing three or four options. For example, sometimes the family would conclude that an infant had to relocate to the home country with the J-1 exchange visitor mother, while older children would best stay in the United States. I always make a point of identifying the hardship-minimizing travel alternativei.e., the one option that would minimize the hardships to the qualifying relatives. This is usually, but not always, the option in which all the qualifying relatives stay in the United States. Logically it must be true that if this is the hardshipminimizing alternative, then there must be even greater hardships under the other travel options. Therefore, if one clearly has exceptional hardships under this option, it must be true that the same thing has been proved for all options. I have had much success with this argument.
9
See www.hake.com/pc/scale.htm.
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In addition, I think it is important to identify what I call the true travel alternative, which is what the family would do if really forced to choose. People often have not thought this through and find it uncomfortable to think about. But sometimes there is a true travel alternative that is different from what may seem to be the hardship-minimizing option. For example, sometimes a couple will insist that they must relocate to the home country together for religious reasons. In such cases, I always emphasize this reality. Dont Always Use Shrink Letters Many lawyers believe that it is mandatory in all cases of claimed hardship to produce a letter from a psychiatrist, psychologist, or other mental health professional. These are commonly called shrink letters. I think this is a grave mistake. A bad shrink letter is worse than none, and they are nearly always bad if a client ventures out to get one on the basis of just one consultation. In my practice, I only use shrink letters in two situations: (1) if there is a history of prior treatment, in which case the letter often serves mainly to document the existence of a pre-existing vulnerability, and (2) in rare cases where unusual psychological problems exist, and it is helpful for a mental health professional to explain the situation. This is often desirable in cases of Post Traumatic Stress Disorder, for example. Moreover, I dont think one needs a psychiatrist or other credentialed professional to write a good psychological evaluation. Sometimes it is better to have someone who has acted as a close adviser in times of need without a formal professional relationship. In some cases this may be a cleric. Dont Always Document Financial Hardship As noted above, the few affirmative requirements for I-612 applications are set forth at 8 CFR 212.7(c). In particular, 212.7(c) requires that there must be a statement from the applicant describing the claimed hardships, and it specifies that: The statement shall include all pertinent information concerning the incomes and savings of the applicant and spouse. I have always read that sentence to emphasize the word pertinent, and, thus, I provide evidence of financial hardship in only about 10 percent of my cases. I do so only where it seems clear that major financial problems will exist, such as being unable to pay a mortgage or to provide necessities to children. In general, the USCIS attaches little weight to financial hardships. Meaning of Exceptional Hardship I have written several articles that go deeply into the meaning of exceptional hardship. 10 The concept has two core components. To be exceptional, hardship must be both (1) unusual and (2) significant. This is important to understand clearly, because USCIS starts from the premise that the most painful hardships generally are not sufficiently unusual. In most cases of spousal separation, such as where a J-1 were to return to the home country while leaving his U.S. citizen wife and children in the United States, the true major hardships are those of spousal separation and parent-child separation. This is common-sense, and there is also an abundance of scientific literature on this point. Nonetheless, USCIS has always adopted the harsh and cruel reasoning that such separations are routine in contemporary life; and such separations always involve emotional pangs of separation; and thus such hardships cannot be deemed to be exceptional. It is common for applicants to lose due to unawareness of this rule. My own policy is to include such hardships, because truth and dignity require it. But I also try to find a way to particularize such hardships, tying them to concrete and unusual facts in the case. Its often far from obvious how to do that. RECENT TRENDS Recent History As noted above, in 2006, USCIS consolidated adjudication of all I-612s at the CSC. I-612s at the CSC The year 2007, was a nightmare year in which nearly all cases from the entire country were denied. My own record of so many AAO victories is mainly due to this one anomalous year. After a great deal of
10
See www.hake.com/pc/pub.htm.
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controversy, USCIS investigated the situation and replaced the main adjudicator assigned to the I-612 Unit. In 2008, things were generally back to normal. The same was true for 2009, except for a period of about 10 weeks in the summer when there was another flurry of consistently negative Requests For Evidence and denials. But since them, up to February 2011, when this article was written, USCIS has generally been very fair in its I-612 decisions. Speed of Decision For many years, the average government processing time for I-612 was four to six months, with some outliers. After the 2006 consolidation of all cases at CSC, the average processing times ballooned to more than eight months, and it was not uncommon for a case to take more than a year to traverse the system, especially if an AAO appeal was required. Since mid-2010, however, the CSC has been operating at quite impressive speed. The average processing time for both USCIS and WRD combined is now just three or four months. I had one case go all the way through the system in just two months. Cases involving U.S. government-funding typically take a month or longer. In addition, in prior years there were often delays of six months or more for USCIS to issue I-797 final approval notices in I-612 cases. For the moment at least, this has completely turned around. Currently it is usually taking two weeks or less. U.S. Government Funding Cases As noted above, it has always been extremely difficult to win a J-1 waiver case if there is U.S. government funding of the exchange program. This has gotten significantly more difficult in the last three years. You should be aware that even spectacularly strong exceptional hardship waiver applications are currently being denied if there is U.S. government funding, especially if there is Fulbright funding.
NONIMMIGRANT WAIVERS OF INADMISSIBILITY UNDER INA 212(d)(3)

by Maria Lianides Celebi, Avi Friedman, Leigh Ganchan, and Daniel Parisi *
Did your clients college-era experimentation result in a marijuana conviction? Did he get too comfortable with the expungement of his long-ago theft record and answer no to the crime involving moral turpitude question during visa waiver visits? Make charitable contributions to the wrong organization? These problems do not have to preclude that client from admission into the United States. This article addresses some of the legal and practical issues surrounding the general waiver of inadmissibility for nonimmigrants under 212(d)(3) of the Immigration and Nationality Act (INA or the Act). It outlines the procedure for seeking a waiver and the role of the Department of State (DOS) and of Customs and Border Protection (CBP) in processing these applications. The article also discusses eligibility standards applied by these agencies in addressing waiver applications. Finally, the article contains several practice pointers for those representing clients who seek admission as a nonimmigrant but who are inadmissible. DOES YOUR CLIENT REALLY REQUIRE A WAIVER? It is extremely important that the practitioner closely examine, and question, each consular determination of inadmissibility. In cases particular to consular practice, there are often findings of inadmissibility based on actions outside the United States. That fact alone is reason to scrutinize the determination. When you combine this basis for denial with the limited time a consular officer (CO) has to conduct a visa interview, language barriers (the presence of an interpreter is not allowed at many consular posts), limited training in the highly complex applicable law, and basic misunderstanding and miscommunication, erroneous findings are bound to occur. Recall that COs are generally required to disclose both the legal and factual basis underlying a visa refusal. In the nonimmigrant visa (NIV) context, the most common bases for an inadmissibility finding (based on DOS 2010 data) are unlawful presence, crimes of moral turpitude and/or crimes involving a controlled substance, and misrepresentation. Many are the source of erroneous findings. For example, a surprising number of fraud findings under INA 212(a)(6)(c) are based on facts that do not really constitute fraud or
* Maria Lianides Celebi has been a partner at Bener Law Office in Istanbul, Turkey, since 2004. She heads the departments for both U.S. immigration (focusing on consular practice) and Turkish immigration. She has 18 years experience in immigration law. She is immediate past chair of AILAs Rome District Chapter and co-chair of the Immigration International Practice Group for Ius Laboris; she is also Turkish work permit advisor to the American Business Forum Turkey, for whom she authored a white paper on Turkish work permits. She is the sole Turkey selectee for International Whos Who of Corporate Immigration Lawyers.
Avi Friedman is a senior associate with Wolfsdorf Immigration Law Group. He currently serves on the AILA Department of State (DOS) Liaison Committee and also is serving his sixth term as the consular affairs liaison for AILAs Southern California Chapter. He has extensive experience assisting applicants with visa interviews at U.S. consular posts worldwide, with a focus on in-person attorney/client representation at U.S. border posts in Canada and Mexico. He is listed in the international and California editions of Whos Who of Corporate Immigration Lawyers and Southern California Super Lawyers, Rising Stars Edition. Leigh Ganchan leads the immigration practice of Haynes and Boone, and advises clients across a vast array of industries on citizenship and employment visa matters, including employment eligibility compliance and preparing individuals for U.S. consulate hearings. From 1996 to 1999, Ms. Ganchan gained insight into the enforcement side of immigration law during her tenure as an assistant district counsel at U.S. Citizenship and Immigration Services (USCIS). Ms. Ganchan is one of the founding officers of the State Bar of Texas Immigration Law Section. Daniel Parisi has been advising clients on U.S. immigration law issues since 2003. He earned his J.D. at New York Law School (2003) and is admitted to practice law as a member of the Bar of the State of New York. He has lectured on U.S. immigration law issues in New York, London, Paris and Frankfurt. He routinely speaks on waivers of ineligibility/ inadmissibility and consular practice and has authored articles on these topics. Mr. Parisi practices in London, United Kingdom, and spent a significant portion of his university education in Spain and France, where he became proficient in both Spanish and French.
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misrepresentation under the FAM; this is especially true of facts related to the materiality requirement. This can also be the case with INA 212(a)(2) criminal inadmissibility findings that are based on an activity or conviction that occurred abroad. With regard to crimes involving moral turpitude (CMT), COs may quickly conclude that the foreign conviction in question is a CMT when it arguably is not. Also, recall that criminal procedure is highly different abroad (for example, the record may show conviction of a CMT in absentia in Turkey and other countries, which is a clear argument that the conviction does not render applicant inadmissible). Lastly, as the unlawful presence rules are complicated, counsel should review the unlawful presence calculation that lead to the inadmissibility finding. Often applicants and their attorneys are reluctant to challenge a finding of inadmissibility. Yet it is practical for counsel to draft a memorandum arguing that the client is not inadmissible when this is appropriate, especially as the same research for the memorandum would be used when filing an advisory opinion request with DOSs Visa Office. GENERAL If the finding of inadmissibility is unchallengeable, Section 212(d)(3) of the INA provides the U.S. Department of Homeland Security (DHS) with broad authority to waive most grounds of inadmissibility for foreign nationals who apply for nonimmigrant visas at U.S. consular posts abroad or for admission to the United States as nonimmigrants at a port of entry. 1 This waiver provision has wide reach. As a practical matter, all inadmissibility grounds listed under INA 212(a) can be waived under 212(d)(3) except those excluded explicitly by the language of this section or by operation of law. Inadmissibility grounds that are waivable under this section thus include the following: health-related (communicable disease, mental, drug abuser/addict) 2 ; criminal (including crimes involving moral turpitude, multiple criminal convictions, drug violations, and prostitution); public charge; immigration violations (including failure to attend removal proceedings, misrepresentation, false claims of citizenship, alien smuggling, aiding and abetting unlawful employment, student visa abusers, and overstays subject to three and ten-year bars); those covering persons ordered removed upon arrival, unlawful voters, U.S. citizens who renounced citizenship to avoid taxation; and even involvement in terrorist activities and association with terrorist organizations. Interestingly, DOS statistics for overcoming ineligibility findings in the context of NIV applications give practitioners hope for some categories of inadmissibility. The DOS report from fiscal year 2010 regarding NIV ineligibility findings shows that, of the 5,735 NIV applicants found inadmissible because of a crime of moral turpitude, 3,319 (more than 57 percent) overcame that ineligibility. Of the 9,259 NIV applicants found inadmissible for misrepresentation, 2,637 applicants (more than 28 percent) overcame that ineligibility. However, surprisingly, of the 8,880 applicants found inadmissible for a year or more of unlawful presence, only 917 (about 10 percent) overcame that ineligibility. Note that this includes overcoming the finding either by evidence that the ineligibility does not apply or by a waiver. 3
See INA 212(d)(3). It is important to note that on Jan. 4, 2010, HIV was removed as a communicable disease of public heath significance. See 74 Fed. Reg. 56547 amending 42 CFR Part 34. As of that date, applicants for admission to the United States under the Visa Waiver Program or those applying for U.S. visas are no longer required to disclose their HIV status and, assuming HIV would have been the only reason to answer Yes, when asked about a communicable disease, they may now answer No. It should also be noted that applicants requiring medical treatment while in the United States may still be inadmissible under INA 212(a) for public charge issues and may have to establish that they have sufficient assets to cover any medical care required while in the United States, and that their admission will not create any cost to any federal, state or local government agency. 3 See AILA-VO Liaison Questions & Answers, Oct. 28, 2010, Table XX, published on AILA InfoNet Doc. No. 11010669 (posted Jan. 7, 2011).
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The 212(d)(3) waiver applies to substantive grounds of inadmissibility only. It does not waive procedural requirements for entry into the United States. The waiver of documentary requirements, for example, is governed by INA 212(d)(4). It also, of course, waives inadmissibility only for nonimmigrant admissions. The much narrower standards for waiver of admission to permanent residence are entirely separate and are set out elsewhere in the INA. NOTABLE EXCEPTIONS The 212(d)(3) waiver, though broad, is not universal. The Act specifically provides that this waiver is not available for certain security grounds of inadmissibility, including espionage, sabotage, or any other unlawful activity, 4 inadmissibility on foreign policy grounds, 5 or participation in genocide or Nazi persecution. 6 Subsection B of 212(d)(3) renders unwaivable many terrorism-related inadmissibility grounds. 7 DHS directs consular officers not to recommend INA 212(d)(3)(A) waivers for K visa applicants who are not eligible for an immigrant visa waiver and will therefore be unable to adjust their status in the United States. 8 Practitioners should also note that COs have the option of finding the visa applicant unqualified for admission in the category sought (for example, finding that the applicant has not demonstrated sufficient ties to the home country to overcome ineligibility under INA 214(b)), thus pretermitting the applicants ability to seek a waiver. PROCEDURE TO OBTAIN A 212(d)(3) WAIVER The INA and the regulations provide two distinct methods for applying for the 212(d)(3) waiver, depending on whether the application is made at a U.S. consular post in connection with a nonimmigrant visa application or at a port of entry into the United States when applying for admission as a nonimmigrant. Nonimmigrant visa applicants at U.S. consular posts are not required to complete a separate form or pay an additional fee when requesting a waiver. 9 Those applicants who file for the 212(d)(3) waiver with CBP at a port of entry (either because they are exempt from the visa requirements or because they already possess a nonimmigrant visa) must submit their waiver application on Form I-192, Application for Advance Permission to Enter as Nonimmigrant, and attach Form G-325A, Biographic Information Form, along with the fee (currently $585) and any additional documentation. 10 Generally, applications for the waiver must be submitted prior to the applicants entry into the United States; however, the regulations provide for processing of waiver applications through deferred inspection where the examining officer at the port of entry has grounds to believe that the arriving foreign national may overcome a finding of inadmissibility through a 212(d)(3) waiver. 11 Waiver applications submitted at U.S. consular posts in conjunction with an application for a nonimmigrant visa are reviewed by the consular officer. Each consular post has its own preferred method of waiver submission. For example, at the U.S. embassy in London the fact that an applicant has been arrested or has violated U.S. immigration law must be disclosed at the time that the interview is scheduled and the
See INA 212(d)(3). See INA 212(a)(3)(C). 6 See INA 212(a)(3)(E)(i) and (ii). 7 See INA 212(d)(3)(B). 8 See 9 Foreign Affairs Manual (FAM) 41.81 N9.1 and N9.2. (However, Department of Homeland Security (DHS) has instructed its adjudicators that State Department guidance should not be binding on them in determining waiver eligibilitysee 9 FAM 40.301 N6.3 (instructing consular officers not to recommend multiple entry waivers for applicants who have a mental or physical disorder, are drug addicts or narcotic traffickers, are afflicted with a communicable disease, have committed a serious crime involving moral turpitude and at least five years from conviction or confinement have not passed, or have engaged in prostitution and 10 years since conviction of prostitution have not passed). The FAM guidance is not binding on the DHS (cf. Hranka, infra). 9 See INA 212(d)(3)(A)(i); 8 CFR 212.4(a)(1). 10 See INA 212(d)(3)(A)(ii); 8 CFR 212.4(a)(2). 11 See 8 CFR 235.2(b).
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applicants police certificate and the embassys disclosure form are submitted before an interview can be scheduled. By contrast, at the U.S. embassy in Paris, the interview is scheduled as normal and documents to support the waiver are submitted at the time of application. The right to counsel also varies from post to post, with some posts, like London, having a blanket prohibition on lawyers attending interviews with applicants and others, like Paris, making the determination on a case-by-case basis. Therefore, it is advisable to understand the local procedures in the post where the application will be submitted and, if appropriate, to speak to a lawyer in that jurisdiction who may be able to assist with the collection and preparation of local documents, and even with a personal appearance at the consular post, where applicable. Once the applicant has been interviewed and the submitted information has been reviewed, if the CO is willing to recommend a waiver, he or she forwards the application to the Admissibility Review Office (ARO) within CBP. ARO administers its review through the Admissibility Review Information System (ARIS), which provides a trackable, electronic waiver review system that is directly connected to the Consular Consolidated Database 12 (CCD). When a consular officer recommends a waiver under 212(a)(d)(3)(A), the request is typed into an electronic form and sent electronically to the ARO, 13 usually within one day of the visa interview. The ARO will review the waiver recommendation and submit the response to the consular post through the CCD along with an e-mail notification to the appropriate post. 14 Many waivers are processed in 30 days or less (and for certain visa categories, such as Os and Ps, which have a performance date attached to them, global business-center posts such as London and Paris will sometimes be able to request that the waiver application be expedited and have the waiver processed within a few days), but applicants should be prepared to wait as long as 60 days for adjudication of the waiver. 15 If the CO is not willing to recommend a waiver but the applicant wishes to pursue the application, the consular officer is instructed to apply for a DOS advisory opinion or, in the case of an INA 212(a)(3)(B) inadmissibility, for a security advisory opinion. 16 The procedure is different for waiver requests submitted in connection with K and V visa applications, which are referred to the U.S. Citizenship and Immigration Services (USCIS) office overseas. 17 Waiver applications submitted to CBP must be filed in advance of the date of intended travel to the United States at a CBP-designated port of entry or preclearance office. It is recommended that applicants contact the CBP office prior to submitting the application to confirm the procedures. The applicant will be required to submit fingerprints when he or she submits the application. The application will be forwarded to ARO for processing of the waiver. Status inquiries regarding I-192s submitted at port of entry or preclearance offices can be made by sending an e-mail to inquiry.waiver.aro@dhs.gov. Attorneys can inquire about their clients ending I-192s by using the e-mail address for attorneys: attorneyinquiry.waiver.aro@dhs.gov. The waiver may be approved for a single entry or multiple entries. 18 When the ground of inadmissibility is waived, the consular official should annotate the visa as follows: 212(d)(3)(A): [duration of stay
Consular Consolidated Database (CCD) Privacy Impact Assessment (PIA) available at www.state.gov/docum ents/organization/93772.pdf (last accessed on 02/14/2010) (outlining magnitude of the system which is one of the largest Oracle based data warehouses in the world that holds current and archived data from the Consular Affairs (CA) domestic and post databases around the world. As of Dec. 2009, it contained over 100 million visa cases and 75 million photographs, utilizing billions of rows of data, and has a current growth rate of approximately 35 thousand visa cases every day.) 13 9 FAM 40.301 PN1. 14 Id. 15 Id. (noting that consular officers can send a follow-up e-mail inquiry for waiver requests pending for 30 days or longer.) 16 9 FAM 40.301 N6.1(b). 17 See id. But see 9 FAM 40.301 N6.3 (instructing consular officers not to recommend multiple entry waivers for applicants whohave a mental or physical disorder, are drug addicts or narcotic traffickers, are afflicted with a communicable disease, have committed a serious crime involving moral turpitude and at least five years from conviction or confinement have not passed, or have engaged in prostitution and 10 years since conviction of prostitution have not passed). The FAM guidance is not binding on the DHS (cf. Matter of Hranka, 16 I&N Dec. 491(BIA 1978).
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authorized], [port of entry], [purpose of entry]. 19 In some instances, the CO will determine that the alien is not in fact inadmissible after all. When this is the case, it is extremely important that the officer annotate the visa with a CLASS OVERCOME statement. Such a notation can help prevent unnecessary trips to CBP secondary inspection for your client. Once the waiver is granted and the foreign national is admitted to the United States, the waiver remains valid for the period approved. For example, no separate application for a waiver is required when the foreign national requests change of status in the United States; however, the previously granted waiver may be subject to review at that time. 20 STANDARD OF ELIGIBILITY The standard for granting a 212(d)(3) waiver is not defined in the INA or agency regulations. DOS instructs consular officers to use their discretion broadly when making recommendations to DHS for a 212(d)(3) waiver: Eligibility for a waiver is not conditioned on having some qualifying family relationship, or the passage of some specified amount of time since the commission of the offense, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases. While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc. 21 DHS has explicitly stated that it is not bound by DOS standards; however, CBP adjudicators are instructed to consider all of the above factors, and weigh them against the fact that Congress has deemed the applicant to be inadmissible. 22 In the leading precedent decision, Matter of Hranka, 23 the Bureau of Immigration Appeals (BIA) articulated a three-factor balancing test that CBP follows closely when determining eligibility for the waiver. 24 In Hranka, the BIA reversed a denial of a port of entry waiver application by a Canadian applicant previously deported for engaging in prostitution. The district director denied the application for two reasons: (1) insufficient time (two years) had elapsed since the applicants deportation to support a finding that she was rehabilitated, and (2) there were no compelling humanitarian reasons to grant her entry into the United States. 25 On the weight of testimony from the applicants mother, supported by a letter from her high school principal, the BIA found that the applicant had been rehabilitated despite the short period of time since her deportation. Further, the BIA pointed out that the applicants reasons for entering the United States need not be compelling. Instead, the eligibility for the waiver should be determined by balancing the following three factors: (1) the risk of harm in admitting the applicant; (2) the seriousness of the acts that caused the inadmissibility; and (3) the importance of the applicants reason for seeking entry. 26 Thus, as a practical matter, even though the reasons for the applicants entry are not decisive, they are still a factor that is considered when determining the applicants eligibility for the waiver.
9 FAM 40.301 PN2. See Letter, Bednarz, J., Chief NIV Branch, Adjudications (HQ 212.42-C) (Mar. 17, 1994) published on AILA InfoNet at Doc. No. 94031791 (posted Mar. 17, 1994). 21 9 FAM 40.301 N3. 22 See CBP Inspectors Field Manual Ch. 17.5(e)(1). 23 Matter of Hranka, 16 I&N Dec. 491(BIA 1978). 24 See W. Reich, The Admissibility Review Office, Immigration & Nationality Law Handbook 387 (AILA 200708 Ed.); see also 73 Fed. Reg. 58023 (Oct. 6, 2008) (referring to Hranka factors as the agency standard in adjudicating INA 212(d)(3) waiver applications. 25 The district director reasoned that, living in a border town, it is a little more difficult to go about the every day [sic] life if she is unable to cross into Detroit [for shopping, to visit relatives, or attend sports events, movies, etc.] 26 See Matter of Hranka, 16 I&N Dec. 491(BIA 1978).
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SUGGESTED SUPPORTING EVIDENCE There is no set list of evidence that is required by law to be submitted in support of a waiver application, whether filed at a U.S. consular post or at a port of entry. Generally, however, the likelihood of a successful outcome can be raised by presenting clear, thorough evidence targeted to the key factors. The following is a recommended list of documents that may be helpful in advocating a waiver for your client. 27 A request for a 212(d)(3) waiver should generally be supported by a detailed, specific affidavit by the applicant. This affidavit should set out the facts behind the applicants grounds of inadmissibility, the reasons why the applicant believes he or she deserves the waiver, and explain his or her need to travel to the United States. A legal memorandum from the attorney containing the legal analysis of the applicants inadmissibility and advocacy for the waiver is also recommended. Applicants seeking entry for business or work in the United States may submit letters from their employers or business partners or contacts in the United States explaining the need for, and/or the benefit to the United States, from the applicants ability to travel to and/or stay in the United States. Applicants seeking entry for medical treatment should submit evidence of the funds available to them to pay for the treatment, as well as documentation showing that similar treatment is not available to them elsewhere. Any waiver application should include evidence of previous waiver applications, granted or denied. Applications for the waiver of criminal grounds of inadmissibility should be accompanied by detailed documentation of the criminal acts or convictions, as well as exhaustive evidence of rehabilitation. It must include certified criminal records (arrest report, indictment, disposition, sentencing documents), and documentation of the completion of the sentence, payment of all fines, community service, completion of parole, records evidencing therapy or counseling, etc. Copies of all relevant statutes should also be included. While COs may be familiar with more common offences (i.e. assault, shoplifting, simple drug possession, etc.), they may not be familiar with all the local criminal laws. Therefore, it may also be helpful to consult with a local criminal lawyer who can explain the nature of the offence and the severity of the punishment in the jurisdiction in which they occurred. In addition, depending on the circumstances, it may be beneficial to include evidence of rehabilitation and other equities in favor of the applicant, including police records containing the applicants criminal history, evidence of any pardons or commutation of the sentence, character reference letters from current and previous employers, neighbors, friends, or other individuals who have the first-hand knowledge of the applicants character, reputation, or specific activities, as well as evidence of sustained gainful employment, education, and community involvement, awards for socially beneficial activities, etc. Applicants for a waiver of medical grounds of ineligibility should submit specific documentation of their medical condition and treatment, proof of recovery or low likelihood that they will require treatment in the United States or would present a public health danger, as well as evidence of funds or medical insurance available should they require treatment while in the United States (the latter should be also submitted with applications for public charge waivers). CONCLUSION INA 212(d)(3) provides for the broadest, and arguably the most liberally applied, nonimmigrant waiver of the grounds of inadmissibility to the United States. A significant degree of uncertainty is inherent in all discretionary benefits adjudications. This level of uncertainty is heightened in the case of the 212(d)(3) waiver, given the lack of a clear legislative or a uniform administrative standard; the State Departments Foreign Affairs Manual, the CBP Inspectors Field Manual, and the BIA decision in Hranka instruct the adjudicators to consider similar, but not identical, factors. It is heightened as well by the lack of a uniform procedure for adjudicating these waivers. Nevertheless, a properly prepared application for a waiver under 212(d)(3) is a versatile tool to obtain relief from most findings of inadmissibility.
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For further guidance, consult The Consular Practice Handbook (AILA 201011 Ed.).
DEVELOPMENTS IN MEDICAL GROUNDS OF INADMISSIBILITY

by Sana Loue, Philip Hornik, and Ronald E. Walker *
Foreign nationals seeking permanent resident status, whether through an application for a visa at an embassy or consulate of the United States or through an application for adjustment of status in the United States, are required to have a medical examination to determine their admissibility to the United States. 1 It is important to note, as well, that an individual applying for a nonimmigrant visa as a student, a fianc(e), or an exchange visitor, or who is seeking refugee status is also required to undergo a medical examination as a prerequisite to the issuance of a visa. 2 The medical examination is designed to determine whether the individual seeking admission has a Class A condition, that is, a physical or mental condition or communicable disease of public health significance that would render him or her inadmissible, or if he or she possesses a Class B condition, defined as a physical or mental disorder that, although not constituting a specific excludable condition, represents a departure from normal health or well-being that is significant enough to possibly interfere with the persons ability to care for himself or herself, or to attend school or work, or that may require extensive medical treatment or institutionalization in the future. 3 Although individuals classified as Class B have a physical abnormality, disease, or disability serious in degree or nature amounting to a substantial departure from well-being, 4 the Class B condition will not result in inadmissibility that is premised on a medical condition. Only physicians who have been designated as civil surgeons are authorized to perform the immigrationrelated medical examinations for individuals obtaining their medical examination in the United States. Similarly, only physicians who have been designated as panel physicians by the United States Department of State are authorized to perform the immigration-related medical examinations of foreign nationals outside the United States who are seeking permanent resident status through visa processing. And, although both civil surgeons and panel physicians are responsible for performing the immigration-related medical examination, neither status confers authority to determine eligibility for adjustment of status, in the case of a foreign
Sana Loue, J.D., Ph.D, M.P.H., M.S.S.A. is a professor of Epidemiology and Biostatistics of Case Western Reserve University School of Medicine in Cleveland. She holds secondary appointments in the Departments of Global Health, Bioethics, and Psychiatry. Prior to joining Case Western Reserve University, she practiced immigration law for 14 years. She has authored more than 80 peer-reviewed articles and authored or edited more than 25 books, in addition to authoring numerous chapters. Dr. Loues empirical research focuses on HIV risk, family violence, gender identity, and mental illness; her more theoretical research focuses on research ethics and forensic epidemiology. Two of Dr. Loues past Immigration Briefings have been made part of the Immigration Judges Benchbook. Philip Hornik is a solo practitioner in Portland, OR. He is a 1976 graduate of the University of Puget Sounds School of Law. He has practiced immigration law since 1977 and is rated AV by Martindale Hubbell. He is the update editor of the National Immigration Projects Immigration Law and Defense treatise, published by West. He is the 2006 recipient of the Oregon AILA Chapters Gerald A. Robinson Award for Excellence in Immigration Advocacy. Mr. Hornik is a frequent speaker at AILA regional and national seminars. Ronald E. Walker has been a practicing immigration attorney for 20 plus years. He has practices in Detroit and New York. He is also a PhD clinical psychologist, and an adjunct professor of immigration law. He has been a mentor for AILA for 13 years, and he has written and presented extensively on removal, inadmissibility, waivers, and HIV around the country. 1 8 USC 1222(b); 42 USC 252; 42 CFR 34.1. For a discussion of the purposes and effectiveness of medical screening for immigration purposes, see generally V.P. Keane and B.D. Gushulak, The Medical Assessment of Migrants: Current Limitations and Future Potential, 39 Intl Migration 29 (2001). 2 42 CFR 34.3(e). 3 Centers for Disease Control and Prevention (CDC), Technical Instructions for Medical Examination of Aliens in the United States, available at www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html. 4 CDC Requirements: Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders at 7 (June 1, 2010), available at www.cdc.gov/imigrantrefugeehealth/pdf/mental-health-cs-ti.pdf.
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national in the United States, or for an immigrant visa, in the case of a foreign national applying at a consulate. The required medical examination is quite comprehensive. In addition to x-ray examinations and serologic testing, the examination includes a lengthy medical history. The medical history component includes a listing of all hospitalizations and institutions, details regarding behaviors and diagnoses potentially indicative of a mental illness, and a review of all alcohol and substance use. 5 In general, the medical examination is valid for one year from the date of the examination. However, the portion relating to tuberculosis (TB) is valid for only six months from the date of the examination. 6 INADMISSIBILITY FOR MENTAL DISORDERS AND ASSOCIATED HARMFUL BEHAVIOR The Immigration and Nationality Act (INA) 7 provides that a foreign national is potentially inadmissible if he or she is found 1. to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the foreign national or others, or 2. to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the foreign national or others and which behavior is likely to recur or lead to other harmful behavior. 8 In the context of an immigration-related medical examination, only civil surgeons or panel physicians are authorized to assess an individual for such disorders. 9 Criteria for the Determination of a Mental Disorder with Associated Harmful Behavior The Centers for Disease Control and Prevention (CDC), based in Atlanta, promulgated revised Technical Instructions governing the medical examination for physical and mental disorders for both civil surgeons and panel physicians in 2010. 10 These revisions were necessary because earlier renditions of the Technical Instructions utilized definitions that were inconsistent with then-existing standards for the diagnosis of mental disorders. 11 According to the CDC, these recently promulgated revisions are consistent with the current version of the Diagnostic and Statistical Manual for Mental Disorders (DSM). 12 This handbook is relied upon by psychologists, psychiatrists, and social workers in the United States for the authoritative classification of mental disorders. The civil surgeon or panel physician is charged with making several specified determinations: Whether the individual has a mental disorder, Whether the mental disorder is associated with any harmful behavior, Whether a previously diagnosed condition is now in remission, and
CDC, Technical Instructions for Medical Examination of Aliens in the United States, available at www.cdc.gov/immigrant refugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html. CDC, CDC Immigration Requirements: Technical Instructions for Tuberculosis Screening and Treatment 2007 at 9; last accessed Feb. 14, 2011; previously available at www.cdc.gov/ncidod/dq/panel_2007.htm; www.cdc.gov/ncidod/ dq/pdf/ti_tb_ 8_9_2007.pdf 7 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). 8 INA 212(a)(1)(iii), 8 USC 1182(a)(1)(iii). 9 42 CFR 34.2(c), (o). 10 CDC Requirements: Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders at 7 (June 1, 2010), available at www.cdc.gov/imigrantrefugeehealth/pdf/mental-health-cs-ti.pdf. 11 CDC, Technical Instructions for Medical Examination of Aliens in the United States, available at www.cdc.gov/ immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html; S. Loue, Medical Waivers for Mental Illness, Immigration and Nationality Law Handbook 443 (AILA 200708 Ed.). 12 American Psychiatric Association (APA), Diagnostic and Statistical Manual of Mental Disorders (DSM), Fourth Edition, (Text Revision) (APA Publications 2000 Ed.).
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Whether any harmful behavior associated with the mental disorder is likely to occur. The diagnosis of a mental disorder must be consistent with the provisions of the DSM. A finding of harmful behavior must be consistent with the revised definition: serious psychological or physical injury to the applicant or to others, such as a suicide attempt or pedophilia; a serious threat to the health or safety of oneself or others, such as driving while intoxicated or verbally threatening to kill someone; or major property damage. It is important to note that (a) harmful behavior in the absence of an association with a mental or physical disorder is not a ground of inadmissibility and (b) a diagnosis of a mental disorder without associated harmful behavior is not a basis for inadmissibility. The Technical Instructions advise that harmful behaviors are most frequently associated with major depression, bipolar disorder, schizophrenia and mental retardation. 13 The civil surgeon or panel physician is instructed to determine with respect to applicants found to have a mental disorder with associated harmful behavior whether the harmful behavior is currently exhibited and if it will recur in the future. The physician is to use his or her clinical judgment and consider whether the mental illness appears to be in remission in assessing the likelihood of future harmful behavior. According to the Technical Instructions, the mental disorder will be considered to be in remission if there is a favorable prognosis, the condition is under control, and at least 12 months have elapsed since the last occurrence of harmful behavior. 14 The following factors are to be considered in determining the likelihood that the applicants disorder will remain in remission: The availability of effective treatment; The applicants adherence to previous treatment, his or her willingness to remain on treatment, 15 and the extent of his or her insight into the disorder; 16 The natural history of the disorder; The number of and the interval between episodes of the illness; Any trend toward increasing severity of episodes of the illness or emergence of treatment-resistant symptoms; The likelihood that specific life events that precipitated previous episodes of the illness will recur; The likelihood that severe life stresses will occur that might precipitate further episodes of illness; and Unusual circumstances that precipitated a single episode of the illness that are judged unlikely to recur. 17 Preparing Your Client and the Application It is critical that the attorney question his or her client in depth about past mental health issues, including any therapy the client may have received and the diagnosis associated with that care. This is necessary even if the client has never been hospitalized for mental illness, in order to ensure that the client is adequately prepared for the interview and medical examination. If the client has a current mental illness diagnosis with associated harmful behavior, it will be important to demonstrate that the illness is under control and that the harmful behavior is unlikely to occur. This is also
CDC Requirements: Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders at 13 (June 1, 2010), available at www.cdc.gov/imigrantrefugeehealth/pdf/mental-health-cs-ti.pdf. 14 Id. at 14. 15 There may be multiple reasons for an individuals lack of adherence to a medication regimen or his or her unwillingness to adhere, including intolerable adverse side effects. D. Perkins, Predictors of Noncompliance in Patients with Schizophrenia, 63 J. Clin. Psychiatry 1121 (2002). 16 The extent of an individuals insight into his or her mental illness has been found to be associated with prognosis. A. Mintz et al., Insight in Schizophrenia: A Meta-Analysis, 61 Schizophrenia Res. 75 (2003). 17 CDC Requirements: Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders at 16 (June 1, 2010), available at www.cdc.gov/imigrantrefugeehealth/pdf/mental-health-cs-ti.pdf.
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true if the client has a past diagnosis of a mental illness, not yet in remission, with associated harmful behavior. Documentation should include: A report from a treating physician, indicating The extent to which the client has insight into his or her illness, The likelihood that the client will engage in harmful behavior, The extent to which the client adheres to medication, if prescribed, and The need for any additional treatment or follow-up care; and A report from a treating counselor or therapist indicating The extent to which the client has insight into his or her illness, The likelihood that the client will engage in harmful behavior, Any circumstances that may have brought about the mental illness and the likelihood that such a situation will recur, and Whether the client needs additional therapy and the likelihood that he or she will seek such assistance. In the event that a client has a past diagnosis of mental illness, the attorney must ascertain whether that illness is in remission. As indicated previously, the Technical Instructions provide that the mental disorder will be considered to be in remission if there is a favorable prognosis, the illness is under control, and it has been at least 12 months since the last occurrence of harmful behavior. 18 Documentation from the clients physician should be obtained to support the assertion that the clients illness is in remission. That report should address the same factors that the panel physician or civil surgeon must consider in determining whether the disorder will remain in remission. (See above.) Because there are numerous factors to be considered in making an assessment about remission, it may be necessary to obtain documentation from various sources such as a physician, a psychologist or social worker, a case manager, or a pastor or other clergy member, or others, depending on the clients particular circumstances. Practice Pitfalls Despite the improvements in the Technical Instructions, numerous potential pitfalls continue to exist. These include the following. The Medical History Civil surgeons and panel physicians are instructed to include as part of the medical history questions about signs that could be indicative of mental problems or odd behaviors. 19 This extends the inquiry beyond what is contemplated in the DSM. Further, no definition of odd behaviors is provided. This potentially allows the civil surgeon or panel physician to classify any behavior with which he or she is unfamiliar, such as a culture-specific ritual or illness, 20 or any behavior that he or she finds personally distasteful, as an odd behavior. Although harmful behavior in the absence of a mental illness diagnosis does not constitute a Class A medical condition, the panel physician and civil surgeon are authorized to look behind the occurrence of the harmful behavior to determine if the diagnosis of a mental illness or disorder is warranted. As an example, the Technical Instructions note that individuals who have engaged in repetitive antisocial activities and harmful acts may have an underlying personality disorder that will serve as the basis for a finding of
Id. at 14. Id. at 8. 20 The DSM contains a section that specifically addresses what are presently termed culture-bound syndromes. Such syndromes may or may not reflect an underlying mental illness. These are also known as culture-specific illnesses. American Psychiatric Association (APA), Diagnostic and Statistical Manual of Mental Disorders (DSM), Fourth Edition, (Text Revision) at Appendix 1 (APA Publications 2000 Ed.).
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inadmissibility. 21 It is critical, therefore, that the attorney obtain from the client prior to the medical examination a complete history of all harmful behaviors that he or she may have committed, even while a juvenile, in order to determine whether the issue may arise during the course of the medical examination and how to best prepare the client and the case. The Psychiatric Evaluation The civil surgeon or panel physician is instructed to estimate the foreign nationals degree of cognitive impairment or mental retardation by assessing his or her level of knowledge and his or her ability to carry our basic functions of daily living.22 The mental status examination is also to include an assessment of the foreign nationals orientation, mood, affect, speech, language, anxiety, thought processes and content, and behavior. Difficulties may arise in the context of this examination, depending upon the level of the clients education, cultural differences between the physician and the client, and/or the extent of the physicians training in psychiatry. As an example, a client with limited education may have difficulty responding to questions that deal with even simple issues, may be unable to respond to complex questions, or may not understand highly complex words. A physician who is not attuned to the impact of education on not only level of knowledge, but also speech and language may mistakenly believe that such responses suggest mental retardation or poverty of speech, a feature often associated with psychosis. The Assessment of Remission The Technical Instructions authorize the civil surgeon or panel physician to test for therapeutic levels of prescribed medications, antipsychotic medications, or other medicine used in psychiatry in possibly changing or adjusting the applicants medications, and therefore contributing to remission of illness and reduction of associated harmful behavior. 23 However, it is highly unlikely that the majority of civil surgeons or panel physicians have had more than very basic training in psychiatry. Further, in the context of the immigration-related examination, they are unlikely to have sufficient contact with the applicant to be able to assess the individuals symptoms, the effectiveness of previously tried medications in controlling the individuals disease symptoms, the extent and severity of any adverse side effects of previously tried medications, the individuals ability in his or her home country to access any particular medications, and the availability and advisability of specific medications for treating the condition in the United States. The Technical Instructions indicate that applicants with a history of harmful behavior associated with sexual acts are almost always likely to have a recurrence of harmful behavior and therefore remain medically classifiable as a Class A mental disorder with associated harmful behavior. 24 However, this conclusion is embedded in a larger discussion of paraphilias. As a result, a panel physician or civil surgeon might erroneously conclude that harmful behavior is always associated with diagnosed paraphilias and that an individual with a diagnosed paraphilia must be classified as having a Class A medical condition. However, the term paraphilias is quite broad and encompasses not only pedophilia, but also behaviors that do not result in harm to anyone. Such behaviors include fetishism (becoming sexually aroused by specific objects such as a garter belt or bra) and transvestism (becoming sexually aroused by wearing clothing typically associated with members of the opposite sex). The DSM considers such paraphilias to be mental disorders only if they cause an impairment in the individuals functioning or are causing the individual to feel distress. Even behavior such as sexual sadism may not constitute a mental disorder if it is consensual and does not result in injury.
21 CDC Requirements: Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders at 6 (June 1, 2010), available at www.cdc.gov/imigrantrefugeehealth/pdf/mental-health-cs-ti.pdf. 22 Id. at 11. 23 Id. at 12. 24 Id. at 15.
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INADMISSIBILITY TO DUE ALCOHOL OR OTHER SUBSTANCE USE INA 212(a)(1)(A)(iii), (iv) provide for the inadmissibility of foreign nationals due to their previous abuse of alcohol 25 or controlled substances. 26 The June 1, 2010, revisions to the CDCs Technical Instructions for Physical and Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders have modified the criteria for determining whether past alcohol use resulting in harmful behavior (such as a charge or conviction for Driving While Intoxicated or Driving Under the Influence) or prior use of controlled substances justifies a finding of inadmissibility under 212(a)(1)(A). 27 On July 19, 2010, these revisions were incorporated into the Foreign Affairs Manual (FAM) at 9 FAM 40.11 Notes 11. 1 through 11.5, available online at www.state.gov/documents/organization/86936.pdf. Of particular importance is 9 FAM 40.11 N11.1, which incorporates the DSMs definition of full remission as a period of at least 12 months during which no substance use or associated harmful behavior have occurred. Former 9 FAM 40.11 N12.4 required at least three years of abstinence to establish remission from drug abuse or addition and two years for alcohol abuse. A December 24, 1994, cable from the U.S. Department of State (DOS) 28 states that any use beyond experimentationi.e., one time use of a controlled substanceconstitutes drug abuse. Equally significant, 9 FAM 40.11 N11 provides that for cases previously refused under INA 212(a)(1)(A)(iii) or (iv) due to a Class A medical finding: 1. If the last visa refusal was less than one year ago, the consul should send the applicant to the panel physician for a new medical examination to determine whether the Class A finding for physical and mental disorders with associated harmful behaviors and/or substance related disorders still applies .... If the applicant is otherwise eligible you may issue the visa. 2. If the last visa refusal was more than one year ago, the applicant must reapply for a visa, complete a new medical examination with a panel physician, and pay all applicable fees. If the applicant can demonstrate 12 months of abstinence and is otherwise eligible, then you may issue the visa. One may infer that in either of the above-mentioned situations, applicants refused visas under INA 212(a)(1)(A)(iii) or (iv) who can demonstrate one year of abstinence are no longer inadmissible under this ground. Nevertheless, all applicants for immigrant visas and adjustment of status are still required to obtain a medical examination from an authorized physician prior to submitting their application. In some cases, applicants for nonimmigrant visas may be instructed to obtain medical examinations if the U.S. consulate suspects that prior use of controlled substances or alcohol gives rise to a ground of inadmissibility. 29 A 2007 DOS cable 30 applies the same criteria to nonimmigrant and immigrant visa applicants in assessing whether prior convictions for driving while intoxicated (DWI) render an visa applicant inadmissible under INA
See INA 212(a)(1)(A)(iii)(I) and (II) under which those who have abused alcohol may be found inadmissible. See INA 212(a)(1)(A)(iv) which renders inadmissible those who are determined (in accordance with regulations prescribed by the secretary of the U.S. Department of Health and Human Services) to be a drug abuser or addict. As noted by 9 Foreign Affairs Manual (FAM) 40.11 N11, harmful behavior is not a relevant factor in rendering a determination of ineligibility for substance abuse or addiction. 27 The Technical Instructions are available at www.cdc.gov/immigrantrefugeehealth/pdf/mental-health-pp-ti.pdf 28 U.S. Department of State Cable, 91-State-416180 (Dec. 24, 1994). The cable is reprinted in 69 Interpreter Releases 5 (Jan. 6, 1992). 29 See 9 FAM 40.11 N3.2, which authorizes consular officers to require that nonimmigrant visa applicants undergo a medical examination if they have reason to believe that the applicant may be inadmissible under INA 212(a)(1). 30 U.S. Department of State Cable, Guidance on Processing Visa Applicants with Drunk Driving Hits, 07 State 079496 (June 2007), published on AILA InfoNet at Doc. No. 07071670 (posted July 16, 2007), available at www.aila.org/content/ default.aspx?docid=22897.
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212(a)(1)(A)(iii). USCIS has issued similar instructions to its immigration service officers who adjudicate I485 adjustment of status applications. 31 The harsh consequences to a visa applicant of a finding of medical inadmissibility include long term or even permanent separation from family and employment. In some cases, there may be a legal basis for seeking a waiver of inadmissibility. 32 However, the procedures for seeking such waivers are usually cumbersome, expensive and do not ensure a favorable outcome. Note, however, that there is no waiver available to those found to be drug addicts and drug abusers. For those individuals, the only hope is avoiding or contesting a finding of inadmissibility or establishing that their condition has been in remission for long enough that they can establish that they are no longer drug abusers or addicts. Therefore, it essential that practitioners ascertain, well before a visa or adjustment of status application is submitted, whether there is any possibility that a clients prior use of alcohol or controlled substances will result in a finding of inadmissibility. Preparing Your Client for the Interview Effective Information Gathering A thorough initial interview with your client is essential, but it is only a starting point for gathering all of the information you will need. Questions such as the following are only the beginning of your inquiry: Have you ever been arrested, cited or detained for any reason? If so, were you intoxicated or under the influence of drugs at the time of your arrest? Have you ever used any illegal drugs? What kind and how often? When was the last time you used illegal drugs? Do you drink alcohol, and if so, how often? If you no longer drink alcohol, when was the last time you had a drink? However, clients may minimize the extent or significance of their previous use of drugs and alcohol, thinking that whatever they did happened long ago was no big deal or that no one will ever find out about it. Consequently, the client may not volunteer the information. Therefore, information gathering should be a two-way street. You need to explain to your client that as part of the visa application process, he or she may be subjected to intensive interrogation by medical professionals as well as drug testing as part their immigration medical examination. Additional drug testing may be required with essentially little or no advance notice. Further, at least the clinics that conduct medical examinations for visa applicants at the U.S. Consulate in Ciudad Juarez have access to law enforcement data bases that can easily reveal undisclosed charges for alcohol and drug-related offenses. There are also anecdotal reports that consular officials and medical personnel at the U.S. Consulates in Ciudad Juarez and Tegucigalpa interpret certain tattoos as indicative of drug usage or gang involvement. For clients who have ever been charged with any drug or alcohol-related offense, you will need to review police reports, conviction records, sentencing records and records related to your clients compliance with the conditions of sentence. If the court ordered treatment, counseling or attendance at Alcoholics Anonymous (AA) or Narcotics Anonymous (NA)-type programs, you should obtain detailed information regarding the clients performance in such programs. Moreover, for clients who are in the United States and applying for adjustment of status, you should attempt to obtain a copy of the I-693 medical report before your client applies for adjustment of status. Civil surgeons will often, upon request, provide the applicant with a copy of this report. The report should include the physicians determination as to whether applicant has any medical condition that might make the applicant inadmissible.
See USCIS Memorandum, W. Yates, Requesting Medical Re-examination: Aliens Involved in Significant Alcohol-Related Driving Incidents and Similar Scenarios (Jan. 16, 2004) published on AILA InfoNet at Doc. No. 04022362 (posted Feb. 23, 2004), available at www.aila.org/content/default.aspx?docid=10130. 32 See INA 212(g)(3).
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Advising Your Client About Applying As noted above, the revised CDC Technical Instructions for evaluating substance-related disorders greatly shorten the period or abstinence required to establish remission. Nevertheless, it is unclear whether panel physicians and U.S. consular officers and USCIS adjudication will be strict or lenient in interpreting these Instructions. Therefore, practitioners should encourage clients to present compelling evidence of abstinence and rehabilitation before they proceed with their visa or adjustment of status applications. This evidence may include: Continued drug/alcohol counseling even after all court-ordered treatment has been completed; Continued attendance (confirmed by a group leader) at AA and NA meetings; Results of recent drug and alcohol testing to confirm abstinence; Evaluations by clinical psychologists or other health care professionals that confirm that your client has overcome his or her problems with substance abuse; Sworn statements from family, close friends and employers of the client, confirming sobriety. In addition, these statements should note other positive changes in the clients behavior such as no longer spending his or her time in bars or associating with people who drink to excess or use illegal drugs. Extreme candor from the client with medical and consular personnel as to the extent of the clients use of alcohol and drugs. For example, it may be wise to have your client to show the panel physician all arrest and court records related to substance abuse. You may also suggest to your client that he or she remove any tattoos that consular personnel may interpret as signs of gang membership. In the past, when determination of inadmissibility were rendered under the previous Technical Instructions, visa applicants who presented strong evidence of remission were not routinely found inadmissible or required to undergo further examination or screening. For example, in a number of cases involving visa applicants with more than one DWI conviction, the panel physicians did not make a class A determination. These cases involved applicants who clearly demonstrated long term sobriety, compliance with all sentencing requirements and complete candor to panel physicians regarding their previous use of alcohol. Practice Pitfalls Clients should be advised explicitly that the new Technical Instruction authorize the panel physician or civil surgeon to require drug testing with relatively little notice. Some clients may celebrate the completion of their consular interview by smoking weed or otherwise indulging in substance use. However, if the panel physician or civil surgeon has doubts about the clients substance use or whether the client is actually in remission, he or she may require additional drug testing with little or no advance warning. In such instances, a celebration is likely to result in a positive drug test and a finding of inadmissibility. Alcohol or illicit substance use may serve as the basis for a finding of inadmissibility even in arrest situations in which no DWI or driving under the influence is involved and the arrest is not premised on substance use. As an example, one of the authors is aware of a case involving another practitioners client who was found inadmissible under INA 212(a)(1)(A)(iii) as a result of an arrest arising from a domestic violence incident. The police reports indicated that the applicant had been intoxicated at the time of the incident and that her intoxication was a cause of the incident which did not involve operation of a motor vehicle. COMMUNICABLE DISEASES OF PUBLIC HEALTH SIGNIFICANCE The INA provides for the inadmissibility of any foreign national: 1. who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance 2. except as provided in subparagraph (C), who seeks admission as an immigrant, or who seeks adjustment of status to the status of [a foreign national] lawfully admitted for permanent residence, and
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Paragraph (1) applies to all foreign nationals; the vaccination requirement contained in paragraph (ii) applies only to individuals seeking permanent residence or adjustment of status. Current regulations provide that communicable diseases of public health significance include: Chancroid Gonorrhea Granuloma inguinale Infectious leprosy Lymphogranuloma venereum Syphilis, infectious stage Active tuberculosis 34 On October 6, 2008, the CDC added an additional two disease categories to the list of diseases that could result in inadmissibility: (1) quarantinable diseases that are designated as such by Presidential Executive Order and (2) diseases that constitute a public health emergency of international concern, requiring notification to the World Health Organization (WHO) pursuant to the provisions of the International Health Regulations of 2005. 35 Quarantinable diseases currently specified by Presidential Executive Order include: Cholera Yellow fever Plague Viral hemorrhagic fevers Diphtheria Infectious tuberculosis Smallpox Severe acute respiratory syndrome (SARS) and Influenza caused by a novel or re-emergent influenza virus that is causing or has the potential to cause a pandemic. 36 Communicable diseases that require notification to WHO as an event that could constitute a public health emergency of international concern include: Human influenza caused by a new subtype Poliomyelitis caused by wild-type poliovirus SARS Smallpox and Other diseases that require notification.
INA 212(a)(1)(A)(i), (ii), 8 USC 1182(a)(1)(A)(i), (ii). 42 CFR 34.2(b). 35 CDC, Addendum to the Technical Instructions for Medical Examination of Aliens: Updated Screening for Communicable Diseases of Public Health Significance (Oct. 6, 2008). 36 Presidential Executive Order 13295 (Apr. 4, 2003), as amended by Executive Order 13375 (Apr. 1, 2005).
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Human immunodeficiency virus (HIV) was removed from the list of communicable diseases of public health significance, effective January 4, 2010. Accordingly, individuals who had tested seropositive for HIV are no longer inadmissible to the United States. 37 Those individuals who were denied a visa and entry into the United States prior to January, 2010 may renew their visa application and seek entry under the following guidance: If the last refusal occurred less than one year ago, the applicant should contact the consulate, and request a re-opening of the visa application. Once re-opened, the refusal should be overcome and waived in the system. The consular officer will send a CLOK, 38 to remove the inadmissibility determination from the Look Out and Support System (CLASS). The visa applicant may have to repeat the medical examination if the examination results have expired. If the last refusal was more than one year ago, the applicant must re-apply for a visa, complete a new medical examination with a panel physician, and pay all applicable fees. The refusal should be overcome/ waived in the system at the time of the interview, and a CLOK should be sent to remove the inadmissibility from CLASS. If the applicant is otherwise eligible, the visa should be issued. If a waiver application has already been submitted to USCIS, and is pending a decision, the application should be held until USCIS approves the waiver, or until or after January 4, 2010, when the inadmissibility determination should be removed, and the visa issued without a waiver. 39 MEDICAL GROUNDS OF INADMISSIBILITY AND PUBLIC CHARGE INA 212(a)(4) provides that an immigrant visa applicant must demonstrate that she has a means of support in the United States and that he or she will not need to seek public financial assistance. 40 This issue may arise in the context of a waiver application for a mental illness, a finding of remission in the case of substance use or mental illness, or a determination of HIV seropositivity. Individuals with a past or current diagnosis of mental illness may require ongoing therapy or medication management to maintain their mental health. Similarly, individuals in remission for substance use of certain substances may require ongoing medication management. Consequently, the question of how the individual will pay for such services may arise during the medical examination and/or interview. Additionally, although HIV seropositivity is no longer a ground of inadmissibility, the applicant will still have to demonstrate that he or she has sufficient resources or health care insurance to cover the costs associated with the treatment for the illness, in order to overcome inadmissibility under 212(a)(4). It may be difficult for clients in this situation to meet this requirement of the law because the cost of treating such illnesses can be very high and because the applicant may not yet have employment, or may be unable to work. If the applicant is outside of the United States, he or she may not as yet have had an opportunity to investigate the possibility of obtaining health care insurance. The client will have to convince the consular officer that he or has access to funds or other resources sufficient for his or her support. The applicant should provide evidence of family income; medical insurance; the ability to cover any and all health care related expenses, including prescription and travel costs; and the availability of public health services and hospitalizations for which no patient fees are expected. WAIVER PROCEDURES AND WORKING WITH CDC A waiver of inadmissibility is available for practically all of the grounds of inadmissibility under INA 212(a)(1)(A)(i), with the exception of substance use. The authority for the waiver is specified in INA
See INA 212(a)(1)(A)(i). A CLOK is a Consular Notification of Clearancei.e., a request to enter, delete, or correct a lookout in CLASS. 9 FAM Appendix E. 39 See 9 FAM 40.11. 40 INA 212(a)(4).
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212(g). The applicant must demonstrate that he or she is the spouse, natural or adoptive parent, son, or daughter of a U.S. citizen or lawful permanent resident. If the client is seeking a waiver in connection with consular processing, the waiver application (Form I601) must be submitted to the U.S. consulate. The form has attestations that must be completed by the applicants treating U.S. physician. Once the consulate receives the waiver application, the waiver application and supporting materials should be forwarded (either by the overseas USCIS office or the consulate) to the Division of Quarantine of the Centers for Disease Control and Prevention (CDC) in Atlanta. CDCs response is an advisory one. The response is often relatively fast, but it has been known to take up to one year in complex cases. CDC is charged with the responsibility of evaluating whether the applicant has adequate medical care and treatment in place, whether the applicant is likely to report to the U.S-based physician after entry into the United States as required, and whether the individual will adhere to the recommended treatment.
THE DEFINING MOMENT: WHEN LIES BECOME FRAUD OR MATERIAL MISREPRESENTATIONS UNDER THE LAW
by James Alexander *
Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA) 1 states that a foreign national is inadmissible to the United States who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit under this Act is inadmissible. 2 Waivers of inadmissibility for foreign nationals who are found to have violated INA 212(a)(6)(C)(i) are limited to: Nonimmigrants who are eligible to apply for a waiver under INA 212(d) 3 ; immigrants who can prove that their U.S. citizen or permanent resident spouse or parent would suffer extreme hardship 4 ; and to Violence Against Women Act (VAWA) 5 self-petitioners whose departure from the United States would result in extreme hardship to the individual petitioner or his or her parent or child. 6 Before concluding that a clients misstatement or concealment triggers a finding of inadmissibility under INA 212(a)(6)(C)(i), it is critical for attorneys to learn the facts of their clients cases and to research case law. Case law and agency field manuals also instruct consular officers and U.S. Citizenship and Immigration Services (USCIS) examiners to be judicious when analyzing lies made in the context of an applicants immigration case, as the sanction for fraud is severe. 7 It is an attorneys duty to ensure that adjudicators distinguish between unintentional/immaterial misstatements of fact and deceptive activities that would warrant an 212(a)(6)(C)(i) finding. This article discusses the difference between fraud and misrepresentations, the governments burdens of proof, and how to rebut a finding of fraud or misrepresentation in the context of INA 212(a)(6)(C)(i).
James Alexander is a managing shareholder at Maggio + Kattar. Mr. Alexander is nationally recognized in a wide variety of highly specialized areas within the immigration law field including corporate compliance, complex naturalization matters, gay and HIV positive issues, and many areas in between. He has authored several important immigration-related publications, including Employing International Workers, a Thomson Reuters book, and has been quoted in many important publications within the immigration law community. He also has been quoted in numerous national and local publications including Workforce Management, InfoTech, and The Washington Post. 1 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163, (codified as amended at 8 USC 1101 et seq.). 2 INA 212(a)(6)(C)(i). 3 See Matter of Hranka, 16 I&N Dec. 491 (BIA 1978); see also 9 Foreign Affairs Manual (FAM) 40.63 N16.2. 4 INA 212(i), 237(a)(1)(H). 5 Violence Against Women Reauthorization Act (VAWA) of 2005, Pub. L. No. 109-162, 3(a), 80134, 119 Stat. 2960, 296471, 305377 (2006), as amended by Pub. L. No. 109-271, 120 Stat. 750 (2006). 6 INA 212(i), 237(a)(1)(H); see also the Legal Action Centers practice advisory, The 237(a)(1)(H) Fraud Waiver, (June 1, 2009; amended June 24, 2009), available at www.legalactioncenter.org/practice-advisories/%C2%A7-237a1h-fraud-waiver. 7 9 FAM 40.63 N1.2 clearly instructs consular officers that INA 212(a)(6)(C)(i) should not be used to accomplish indirectly that which cannot be accomplished directly under the INA. The FAM further instructs that consular officers keep in mind the severe nature of the penalty the alien incurs; lifetime exclusion, unless a waiver is obtainable. 9 FAM 40.63 N1.3; see also Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979). In a precedent decision, Matter of S and BC, 9 I&N Dec. 436 (BIA 1960; AG 1961), the attorney general (AG) stated the following: Shutting off the opportunity to come to the United States actually is a crushing deprivation to many prospective immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States. See also, 9 FAM 40.63 N16.2.
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FRAUD VERSUS MISREPRESENTATION Definitions of Fraud and Material Misrepresentations A finding of fraud under INA 212(a)(6)(C) requires a foreign national to: (1) make a false representation; (2) of a material fact; (3) to a U.S. government official; (3) knowingly; (4) with the intent to deceive the official in order to obtain an immigration benefit; and (5) the government officer acted upon the statement. 8 All of these elements must be established in order to support a finding of fraud. By contrast, a material misrepresentation is any: (1) willful, (2) misstatement of fact, (3) relevant to the foreign nationals eligibility for an immigration benefit. 9 There are two key distinctions between fraud and material misrepresentations. First, material misrepresentations do not require the government officer to have relied upon the untrue statement. 10 Second, a material misrepresentation does not require the foreign national to have intentionally deceived a government official. 11 Practice Pointer: It is essential that practitioners carefully and thoroughly interview clients and witnesses, review U.S. Department of Homeland Security (DHS) interrogation notes, and examine a clients immigration history when analyzing whether a false statement is fraudulent or a material misrepresentation. When there is an incorrect finding of a violation of INA 212(a)(6)(C)(i), immigration counsel must conduct a thorough investigation of the facts, prepare well-researched legal arguments to educate adjudicators of the legal requirements for such a finding and to assist the trier of fact in making a proper determination. Notwithstanding the precise definitions for both fraudulent activities and material misrepresentations, adjudicators have sometimes incorrectly concluded that any false statement triggers a finding of fraud or a material misrepresentation. 12 Some false statements will not trigger a finding of inadmissibility under 212(a)(6)(C)(i). Nonetheless, it is possible that the deceptive act raises other issues that could impact the foreign nationals immigration status. For example, a foreign nationals false claim to U.S. citizenship on an Employment Eligibility Verification (Form I-9) would not trigger INA 212(a)(6)(C)(i) because the claim is made to an employer, not a government official. 13 Nonetheless, under 212(a)(6)(C)(ii), most false claims of U.S. citizenship made for any benefit or purpose, including employment eligibility, result in a permanent ground of inadmissibility if the claim was made on or after September 30, 1996. 14 Materiality In the context of an allegation of fraud or a misrepresentation, the element of materiality is key as the attorney general (AG) made clear in the landmark case of Matter of S and BC. 15 In that decision, the AG considered several cases involving allegations of fraud and/or material misrepresentations. 16 In the first case, the AG reviewed a decision by a special inquiry officer to overturn the district directors finding of inadmissibility under then INA 212(a)(19), which dealt with fraud and misrepresentations. 17 In Matter of S
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Matter of G, 7 I&N Dec. 161 (1956) and Matter of YG, 20 I&N Dec. 794, (BIA 1994) (explaining the definition of fraud); see also 9 FAM 40.63 N3 (citing Matter of G). 9 Matter of S and BC, 9 I&N Dec. 436 (BIA 1960; AG 1961). 10 Matter of G, 7 I&N Dec. 161; see also 9 FAM 40.63 N3. 11 9 FAM 40.63 N3. 12 See Matter of S and BC, 9 I&N Dec. 436 (upholding the special inquiry officers decision to overturn the district directors refusal to admit a Yugoslav national after the foreign national failed to disclose his involuntary membership in the Hungarian Communist Party). See INS Memorandum, P. Virtue, Penalties for Misrepresentations on Form I-9 (Apr. 30, 1991), published on AILA InfoNet at Doc. No. 01010403 (posted Jan. 4, 2001), available at www.aila.org/content/default.aspx?docid=6200.
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INA 212(a)(6)(ii).
Matter of S and BC, 9 I&N Dec. 436. Id. 17 Id. at 43641.

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and BC, the district director denied a Yugoslav citizens admission because of his failure to disclose his involuntary membership in the Hungarian Communist Party. 18 The AG decided the district director was wrong to conclude the applicants failure to disclose his involuntary membership in the Communist Party was material on the basis that it shut off a line of inquiry. 19 The AG proceeded to explain that in order for a misrepresentation to be material, the false statement would have had to cut-off a line of inquiry and the true facts would likely have resulted in the applicant being denied a visa. 20 As involuntary membership in the Communist Party was not a ground of inadmissibility, the misstatement was not material. 21 Furthermore, silence by itself or a failure to volunteer information to a government official is neither fraud nor a material misrepresentation for purposes of determining inadmissibility under INA 212(a)(6)(C)(i). 22 As explained in Matter of G, 23 the failure to provide additional information that was not specifically asked does not constitute fraud or a material misrepresentation as it does not reveal a conscious concealment. 24 On the other hand, a finding of inadmissibility under 212(a)(6)(C)(i) could be established if there is evidence that foreign national omitted information in response to a question specifically asked by a government official in that the omission could have shut off a line of inquiry or the applicant would have been excluded based on the true facts. 25 Practice Pointer: To determine whether an omission could give rise to an INA 212(a)(6)(C)(i) finding, practitioners should obtain information from the client, especially details regarding his or her state of mind at the time of applying for a visa, the length of time the student worked without authorization, and his or her personal financial situation. In certain circumstances, it still is possible that the consular officer or immigration officer would not consider the omission to be willful or material. Additionally, a statement is material if the misrepresentation or concealment would make the applicant inadmissible or shut off a line of inquiry that would result in a finding of inadmissibility. 26 Inaccurate statements regarding an applicants marital status, the paternity of a child, the presence of close family members in the United States, plans upon entering the United States, and work experience could be material. 27 However, case law instructs that materiality is a complex set of law and facts in which knowledge of [the] true circumstances would not have led to the denial of the benefit. 28 Practice Pointer: Practitioners should carefully examine a foreign nationals disclosure that he or she inaccurately described their employment history. Inaccurate information could raise questions as to whether a foreign national committed fraud or made a material misrepresentation. For example, a foreign national who makes inaccurate statements regarding employment history in the context of a labor certification application could be inadmissible under INA 212(a)(6)(C)(i). 29 In the context of a labor certification application, the
Id. Id. at 44041. 20 Id. 21 Id. 22 Matter of G, 6 I&N Dec. 9 (BIA 1953); Adjudicators Field Manual (AFM) ch.40.6.2(c)(1)(B)(ii); and 9 FAM 40.63 N4.2. 23 Matter of G, 6 I&N Dec. 9. 24 Id. 25 Matter of S and BC, 9 I&N Dec. 436, 448 (BIA 1960; AG 1961). In this precedent decision, the AG overturned prior case law that held a foreign national is inadmissible for having committed fraud or a material misrepresentation if the individual concealed his identity when applying for an immigration benefit, regardless of whether he would have been eligible for a visa. The AG held that an applicant is only inadmissible based upon a finding of fraud or misrepresentation, if he would not have been eligible for the benefit based upon the true facts. 26 Id.; see also, Kungys v. United States, 485 U.S. 759 (1998) (defining materiality in denaturalization proceedings as a statement or concealment that is predictably capable of affecting the final decision). 27 Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979); Matter of Tijjam, 22 I&N Dec. 408 (BIA 1998). 28 Emokah v Mukasey, 523 F.3d 110, 117 (2d Cir. 2008) 29 20 CFR 656.17; see also Form ETA-9089.
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beneficiarys false statement is not material if the true facts show that he or she met the minimum requirements for the job opportunity described in the labor certification. 30 Intent to Deceive & Willfulness Willful means knowing and intentional as distinguished from accidentally, or in an honest belief that the facts are otherwise. 31 Thus, vague and confusing questions by a government official, the applicants mental and legal capacity, and other factors must also be considered when determining whether an applicant violated 212(a)(6)(C)(i). It is possible that extenuating facts impacted the applicants understanding of the government officials questions, ultimately resulting in a misstatement that was neither intended to deceive nor willfully made. Some examples are discussed below of circumstances that may not result in the applicant making a material or fraudulent statement. Minors As discussed above, a finding of fraud or material misrepresentation under INA 212(a)(6)(C)(i) requires the inaccurate statement to be made willfully. 32 Important questions regarding the willfulness of a statement arise in the context of a foreign national who happens to be a minor. There is over 50 years of well-settled immigration law affirming that even a clear statutory bar to an immigration benefit does not apply when elements of incapacity or duress enter into a case. 33 Additionally, the Board of Immigration Appeals (BIA) has developed an unambiguous, long line of binding precedent decisions that instruct that this nations immigration agencies will not enforce consequences from mistaken action, even in cases with clear statutory bars to immigration benefits. 34 USCIS and the Executive Office for Immigration Reviews (EOIR) regulations also underscore the fact that a minor is deemed incapable of and lacking capacity for making statements on his or her own behalf. 35 Indeed, the regulations refer to foreign nationals under the age of 18 as juveniles, who lack the capacity to be released on bond or to make other important decisions affecting custody and voluntary departure without a parent, legal guardian, or adult relative to speak on the minors behalf. 36 EOIR regulations strictly preclude an individual under 18 years of age to appear in court without a guardian to speak on the minors behalf. 37 Moreover, the U.S. Code provides statutory backing to these regulations at 18 USC 5031, the Federal Juvenile Delinquency Act of 1938 (FJDA), which states that a juvenile is a person who has not attained his eighteenth birthday, or for the purpose of proceedings and disposition under this chapter for an alleged act of juvenile delinquency, a person who has not attained his twenty-first birthday, and juvenile delinquency is the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult. Such precautions have been taken because, under the law, a minor does not have the capacity to understand the laws, nor does a minor have the capacity to understand the severe consequences of making misrepresentations before the immigration agencies.
30 31
Matter of S and BC, 9 I&N Dec. 436, 448 (BIA 1960; AG 1961). 9 FAM 40.63 N5.1. 32 Id. 33 See, e.g., Matter of R, 1 I&N Dec. 613 (BIA 1943) (recognizing the incapacity of minors to commit crimes under federal law, after the enactment of the Federal Juvenile Delinquency Act of 1938); Matter of B, 5 I&N Dec. 72 (BIA 1953) (holding that membership in the Communist Party was involuntary by reason of infatuation and therefore the respondent was eligible for suspension of deportation despite the statutory bar to suspension for communists); Matter of Z, 9 I&N Dec. 329 (BIA 1961) (finding that economic duress overrides expatriating acts); Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999). 34 Matter of B, 5 I&N Dec. 72 (BIA 1953) (citing Moser v. United States, 341 U.S. 41 (1951)). 35 8 CFR 236.3, 1236.3. 36 Id. 37 See 8 CFR 1240.10(c).
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Confusing Interrogatories U.S. government forms often pose compound questions, resulting in uncertainty and creating confusion on the part of visa applicants. For example, Question 38 on the DS-156 Nonimmigrant Visa application asked the following: Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty, or similar legal action? Have you ever unlawfully distributed or sold a controlled substance (drug), or been a prostitute or procurer for prostitutes? Yes _ No _. It should come as no surprise that clients are uncertain how to answer these questions. The applicants, most of whom do not have legal training, are required to answer questions of law, such as whether they have been arrested or convicted. It is certainly possible that an applicant did not believe that an encounter with law enforcement constituted an arrest or conviction, especially when events occurred decades ago and all charges were dismissed. Willfully is defined in the Foreign Affairs Manual (FAM) as knowingly and intentionally, as distinguished from accidentally, inadvertently or an honest belief that the facts are otherwise. 38 For a statement to be willful, therefore, it is necessary that the individual was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement. Timely Retractions The FAM instructs that in an appearance and interview setting, for a retraction to be timely, the retraction must be made during the interview. By immediately disclosing an arrests and providing all requested information to the consular officer in the course of an interview, a foreign national retracts an initial inaccurate answer. Accordingly, the omission or misrepresentation does not render the applicant inadmissible and is purged from the record. 39 BURDENS OF PROOF The context in which a finding of fraud could arise is critical in defining a strategy to advocate on behalf of a client. For example, a foreign national bears the burden of proof when requesting a benefit, such as applying for a visa through a consulate, admission at a port-of-entry, or requesting a change, extension, or adjustment of status through the USCIS. 40 The standard of proof, when applying for most immigration benefits, requires applicants to show by a preponderance of the evidence that he or she is eligible for the benefit. 41 The preponderance of the evidence standard requires the applicant to present evidence that is relevant, probative, and credible to show that the applicants claim is probably true or more likely than not. 42 The USCIS Adjudicators Field Manual (AFM), following the BIAs 1991 ruling in Matter of ML , 43 instructs that if there is no evidence at all that the applicant obtained or sought some benefit under the Act by fraud or willful misrepresentation, then USCIS should find the applicant has met the burden of proving that he/she is not inadmissible under INA 212(a)(6)(C)(i). However, the AFM continues by instructing that if there is evidence that would cause a reasonable person to conclude that a foreign national violated 212(a)(6)(C)(i), the foreign national has the burden of proving one of the following: There was no fraud or misrepresentation; or
9 FAM 40.63 N5.1. 9 FAM 40.63 N4.6. 40 INA 291; see also Matter of Arthur, 16 I&N Dec. 558 (BIA 1978); USCIS Memorandum, M. Aytes, Alternate definition of American firm or corporation for purposes of section 316(b) of the Immigration and Nationality Act, 8 USC 1427(b), and the standard of proof applicable in most administrative immigration proceedings (Jan. 11, 2006), published on AILA InfoNet at Doc. No. 06021014 (posted Feb. 10, 2006), available at www.aila.org/content/default.aspx?docid=21272. 41 U.S. v Cardozo-Fonseca, 480 U.S. 421 (1987) (defining more likely than not as a greater than 50 percent probability of something occurring) (cited in USCIS Memorandum, M. Aytes, Alternate definition . (Jan. 11, 2006)). 42 U.S. v Cardozo-Fonseca, 480 U.S. 421. 43 Matter of DL and AM, 20 I&N Dec. 409 (BIA 1991).
39 38
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Any fraud was not intentional or with the intent to deceive, or that the fraud was not willful; or Any fraud or any concealed or misrepresented fact was not material; or The fraud or misrepresentation or concealment was not made to procure a visa, admission, or some other benefit. 44 In removal proceedings, however, the DHS has the burden of proof. Additionally, DHS must meet a higher standard of proof than an applicant for an immigration benefit. Under INA 237(a)(1)(A), DHS must prove by clear and convincing evidence that a foreign national committed fraud or made a material misrepresentation at the time of admission. As the burden is on the DHS in removal proceedings, it is critical that practitioners avoid admitting allegations of fraud. Such admissions could be incorrect legally and highly prejudicial to the client. U.S. Department of States 30/60-Day Rule The U.S. Department of States (DOS) 30/60-day rule is a highly prejudicial notion that relies on circumstances arising after a foreign nationals admission to the United States to glean his or her intentions at the time of applying for a visa and upon entry to this country. 45 To summarize, a foreign national will be presumed to be inadmissible if he or she engages in activities that are inconsistent with the purpose of his or her visa within 30 days of arriving in the United States. 46 Activities that are undertaken more than 30 days, but less than 60 days, will not result in an automatic presumption that the foreign national violated INA 212(a)(6)(C)(i), but the FAM leaves open the possibility that a consular officer may require evidence to rebut a finding that the foreign national violated the INA, if there is some evidence to give the officer a reasonable belief that the foreign national misrepresented his or her intent. 47 The FAM provides several specific examples of inconsistent activities that would result in a finding of inadmissibility under DOSs 30/60-day rule, including: Actively seeking and engaging in unauthorized employment; Enrolling in a program of academic study without the benefit of the appropriate change of status; Marrying and taking up permanent residence; or Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment. The 30/60-day rule defies common sense in that it is especially prejudicial to foreign nationals who, oblivious to the vagaries of U.S. immigration law and its counterintuitive set of rules, innocently travel to the United States as visitors and subsequently encounter unanticipated opportunities. Practice Pointer: Attorneys must educate clients about the harsh penalties for misrepresenting or concealing intentions of remaining in the United States when initially seeking admission under a temporary visa category that requires evidence of the foreign nationals intent to depart the United States. Practice Pointer: The FAM and DHS regulations confirm that a foreign national is admissible as a temporary visitor for a variety of activities, including attending meetings, conferences, negotiations and even job interviews. When a foreign national client inquires about entering the United States for permissible visitor activities (which could lead to a change in plans after admission), counsel must explain the risk of being denied a visa or admission to this country. Counsel should prepare the client to be questioned when applying for a visa and upon seeking admission at the port-of-entry and to provide him or her with a brief letter from the company or individual who invited the foreign national to confirm that the nature of the foreign nationals visit falls within permissible visitor activities.
44 45
AFM ch. 40.6.2(c)(1)(B)(i). 9 FAM 40.63 N4.7-1. 46 Id. at N4.7-2. 47 Id. at N4.7-3.
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Practice Pointer: A dilemma often arises when a client, while in visitor status, is offered a job in the United States. The prospective employer is often keen to have the foreign national start working immediately. As counsel to both the foreign national and the employer, it is imperative for counsel to educate both parties about the penalties for employing a foreign national without authorization under INA 212(a)(6)(C)(i) and 274(a). Moreover, in light of the 30/60-rule, it often is advisable to submit the Petition for Nonimmigrant Worker (Form I-129) and request consular notification upon approval, in lieu of requesting a change of status. Although the status change request could be approved by USCIS, a consular officer could still raise questions as to whether the foreign national violated 212(a)(6)(C)(i) when the foreign national eventually departs the United States and applies for a visa. REBUTTING A FINDING OF FRAUD AND/OR MATERIAL MISREPRESENTATION In this practitioners experience, findings of fraud and/or material misrepresentations frequently arise as a result of an individuals decision to appear pro se and as a result of lack of preparation or confusion. When counsel is confronted with a finding that a client has violated INA 212(a)(6)(C)(i), it is essential for the attorney to obtain a complete record in order to analyze whether the elements of fraud or a material misrepresentation exist. Additionally, an attorney must spend considerable time with the client and any witnesses to obtain all relevant facts, to ascertain whether there are circumstances that should be presented to the adjudicator. The FAM instructs the burden is on the person making the misrepresentation to establish that the facts support eligibility or that, had the consular officer known the truth, a refusal of a visa could not properly have been made. 48 Attorneys should look into a consulates procedures regarding the presentation of additional documentation, as some jurisdictions require the applicant to apply de novo, while other consulates will accept the supplemental information as part of the original submission. 49 If a consular officer has misapplied the law in finding that an applicant committed fraud, a request for review of the decision can be made to DOSs Advisory Opinion Section of the Visa Office. 50 If USCIS finds an applicant ineligible for adjustment of status based upon a finding of fraud or a material misrepresentation, an immigration judge may review that determination if the application for adjustment of status is renewed in immigration court. MISSTATEMENTS MADE ON CBPS ELECTRONIC SYSTEM FOR TRAVEL AUTHORIZATION APPLICATION In closing, this practitioner believes that a possible area of increased litigation regarding fraud and material misrepresentation involves U.S. Customs and Border Protections (CBP) use of the Electronic System for Travel Authorization (ESTA) application. This electronic application is used to pre-screen applicants for admission under the visa waiver program. The elements necessary to prove that a foreign national committed fraud or made a material misrepresentation raise many interesting questions regarding CBPs ESTA application. CBPs description of the program states that it is an automated system that determines the eligibility of visitors to travel to the United States under the visa waiver program. 51 In short, ESTA is a computer-based questionnaire that many foreign travelers must complete prior to boarding most flights to the United States. 52 The questions asked of ESTA applicants are similar to the questions that must be answered on the I-94 application form. 53 However, the ESTA application is not reviewed by a CBP agent prior to approval or
48 49
9 FAM 40.63 N6.3-5b. Reference to Mumbais and Tel Avivs requirement that applicants re-apply. 50 9 FAM 40.63 N7.1. 51 See generally, Electronic System Travel Authorization, available at www.cbp.gov/xp/cgov/travel/id_visa/esta/. 52 Id. 53 Id.
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denial. Rather, the ESTA automated system determines whether the applicant is authorized to board the plane. Moreover, according to CBP, even though the ESTA system may authorize an applicant to board the flight, ESTA approval does not guarantee that the travel will be admitted to the United States. It could be argued that an incorrect statement made by an ESTA applicant has not been made to a government official and, therefore, cannot constitute result in a finding of inadmissibility under INA 212(a)(6)(C)(i). 54 Assuming CBP argues that inaccurate statements on an ESTA application are made to a government official, there are additional problems with the U.S. governments argument that such statements constitute fraud or a material misrepresentation. Many of the questions on ESTA application involve complex questions of law, such as whether an individual will work in the United States. There certainly will be circumstances where ESTA applicants did not willfully or intentionally state facts inaccurately. These instances underscore the fact that an automated system cannot take the place of a formal line of questions by a government officer.
54
Matter of YG, 20 I&N Dec. 794, (BIA 1994); see also 9 FAM 40.63.
IS EVERYONE A TERRORIST? THE INAS TERRORISM BARS

by Anwen Hughes, Christopher Strawn, and David Garfield *
Since the passage of the USA PATRIOT Act of 2001, 1 and increasingly since the enactment of the REAL ID Act of 2005, 2 the U.S. government has been applying the terrorism-related provisions added to the Immigration and Nationality Act (INA) 3 by those two pieces of legislationboth intended as counter-terrorism toolsto large numbers of refugees, asylum seekers, and applicants for immigration benefits who in some cases are themselves victims of terrorism, and the overwhelming majority of whom are not believed to pose any threat to the national security of the United States. The legislative amendments of the past eight years built on, and drew attention to, the wild overbreadth of the INAs existing definition of terrorist activity. All of these statutory provisions, old and new, also have been the subject of very expansive readings by the U.S. Department of Homeland Security (DHS) and, in some cases, the Board of Immigration Appeals (BIA). The result is that attorneys representing clients they never would have associated with the term terrorism except perhaps as its victimsmust now be alert to the potential impact of these changes in law and administrative interpretation on their cases. 4 This practice advisory is intended for advocates working with noncitizens affected by the application of these terrorism grounds as bars to asylum, withholding of removal, adjustment of status, or other immigration benefits, or as grounds of inadmissibility or deportability, and provides guidance on obtaining a discretionary exemption from the terrorism-related inadmissibility grounds. Ironically, for many facing the terrorism bars, the very circumstances that form the basis of their refugee or asylum claim have been interpreted in a way that has made them ineligible for protection in the United States. For example, refugees, asylees, and asylum seekers who were coerced into giving goods or services to non-governmental armed groups are now being deemed by the U.S. government as having provided material support to a terrorist organization. For other refugees, their support of a group that is associated with armed resistance against a governmenteven when that government has repressed the refugees ethnic or religious group and closed peaceful avenues to political changehas rendered them ineligible for protection under U.S. law.
Anwen Hughes is senior counsel for Human Rights Firsts refugee protection program, where she helps oversee pro bono representation for indigent asylum seekers. Ms. Hughes provides training and support to volunteers from law firms in New York and New Jersey, and assists in Human Rights Firsts local and national advocacy on asylum issues. Before joining Human Rights First in 1999, Ms. Hughes was a staff attorney with Passaic County Legal Aid Society. She graduated from Yale College and Yale Law School. Christopher Strawn is a staff attorney and director of the asylum unit at the Northwest Immigrant Rights Project. Previously, he was an associate at the law firm of Gibbs Houston Pauw in Seattle, and a clerk for the Honorable Marsha J. Pechman, U.S. District Court, Western District of Washington. He graduated from Harvard Law School and has a certificate in refugee studies from the University of Oxford. David Garfield is the senior attorney of the immigration law practice of the Law Office of David Garfield, P.C. in Washington, D.C. Mr. Garfield frequently co-counsels with national and international law firms concerning intricate immigration cases. He is an expert on both nonimmigrant and immigrant business visas with an outstanding track record over two and a half decades of practice. He has successfully represented as chief immigration counsels several billion-dollar corporations and two nationally recognized ballet companies, and also is viewed as an expert on immigration litigation and removal defense. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, sec. 411(a)(1)(F), Pub. L. No. 107-56, 115 Stat. 272. 2 REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 30223. 3 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). 4 For a longer overview of this situation, see Human Rights First, Denial and Delay: The Impact of the Immigration Laws Terrorism Bars on Asylum Seeker and Refugees in the United States (Nov. 2009), available at www.humanrightsfirst. info/pdf/RPP-DenialandDelay-FULL-111009-web.pdf. While some of the problems identified in this report have since been resolved or mitigated, large portions are unfortunately still current.
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What Are the Terrorism-Related Inadmissibility Grounds (TRIG)? INA 212(a)(3)(B) sets forth a long list of acts and associations related to terrorism that render a person inadmissible to the United States (and ineligible for adjustment of status). Collectively referred to by the acronym TRIG in government parlance, these inadmissibility grounds include not only those who have engaged in terrorist activity, but also members of terrorist organizations, persons who have received military-type training from such organizations, persons who endorse or espouse terrorist activity or persuade others to endorse or espouse a terrorist organization, along with the spouses and children of persons inadmissible under these provisions. Before passage of the REAL ID Act, the terrorism-related deportability ground at INA 237(a)(4)(B) was considerably narrower, limited to persons who engaged in terrorist activity. The REAL ID Act, however, amended INA 237(a)(4)(B) to make deportable any alien who is described in subparagraphs (B) or (F) of INA 212(a)(3)(B). This means that any noncitizen described in any of the long list of terrorism-related inadmissibility grounds at INA 212(a)(3)(B) is now deportable. Moreover, since the statutory bars to both asylum and withholding of removaland to most other forms of relief from removalrefer to the deportability ground at 237(a)(4)(B), a secondary effect of the REAL ID Act changes is to bar anyone described in any of the 212(a)(3)(B) inadmissibility grounds from all forms of refugee protection. 5 Practice Pointer: In any case in removal proceedings where there is a chance DHS will attempt to invoke a terrorism-related ground as a bar to asylum or other relief, it is critically important, if the applicant also has grounds to claim protection under the Convention Against Torture (CAT), 6 to prepare and document that claim carefully. A grant of CAT deferral will at least prevent the applicants actual deportation, and allow the applicant eventually to gain work authorization and stabilize his or her situation, while pursuing appeals and possible exemptions to any terrorism-bar issues. How Does the INA Define Terrorist Activity, Terrorist Organization, Material Support, and Other Key Terms, and How Might These Definitions Impact My Client? Terrorist Activity The INAs definition of terrorist activity, in addition to a list of unlawful acts more commonly associated with terrorism (the hijacking of aircraft, kidnapping, assassinations, etc.), also includes the following: Use of an explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property. 7 Because this provision lacks any explicit limitation with respect to either the targets or the purpose of the violence it covers (other than the exception for mere personal monetary gain), DHS and BIA have interpreted it to apply even to ordinary combat against a government army. 8 The result of the governments position is that association with armed resistance against a government even when that governments repression has deprived citizens of the right to effect change through the ballot boxhas rendered many applicants ineligible for protection in the United States. These have included Iraqis who rebelled against Saddam Hussein, Afghans who fought the Soviet invasion of their country (or supported those who did) or opposed the Taliban while they were in power, and numerous Ethiopian and Eritrean groups that took up arms against the Mengistu regime in Ethiopia. Several thousand people in this situation
INA 208(b)(2)(A)(v) (bar to asylum); 241(b)(3)(iv) (bar to withholding). Such persons do, however, remain eligible for deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Dec. 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987); Pub. L. No. 105-277, Division G, Subdivision B, Title XXI, Sec. 2242, 112 Stat. 2681822., as CATs prohibition against deporting individuals to face torture is not subject to any bars. 6 CAT, Pub. L. No. 105-277, Division G, Subdivision B, Title XXI, Sec. 2242, 112 Stat. 2681822. 7 INA 212(a)(3)(B)(iii)(V)(b). 8 Matter of SK, 23 I&N Dec. 936 (BIA 2006).
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who have already been admitted to the United States as refugees and asylees have been unable to obtain green cards as a result of these interpretations. 9 In addition to terrorist activity, the INA contains a separate definition of what it means to engage in terrorist activity, which, beyond engaging in the acts defined in the subsection referenced above, also includes acts that bear a much more indirect relation to actual violence. 10 These include soliciting funds for a terrorist organization or a terrorist activity, as well as providing material support to terrorist activity, to an individual terrorist, or to a terrorist organization. The material support bar is discussed in greater detail below. Terrorist Organization The USA PATRIOT Act 11 created a three-part definition of terrorist organization for immigration-law purposes. 12 Tier I groups, also known as Foreign Terrorist Organizations (FTOs), must be designated by the Secretary of State under INA 219. 13 Tier II groups (listed on what is often referred to as the Terrorist Exclusion List) are also designated by the Secretary of State after a finding that the group engages in certain terrorist activities defined in the INA. 14 The lists of Tier I and Tier II groups are publicly available on the U.S. Department of States website. 15 Since the USA PATRIOT Act went into effect (with some amendments made in the REAL ID Act 16 ), the term terrorist organization also refers to any group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, terrorist activities. 17 These groups are often referred to as Tier III groups. Any government adjudicator, such as a DHS asylum or refugee officer, a service center adjudicator, or an immigration judge, can determine on a case-by-case basis that a group is a Tier III groupno formal designation by any executive branch agency or other public process is required. Under the governments interpretation, the purpose and tactics of a terrorist organization are irrelevant, which has resulted in many groups being labeled terrorist organizations even where the U.S. supports the goals of the group and non-combatants are not targeted. Practice Pointer: The definition of terrorist organization is phrased in the present tensea Tier III organization is a group that engages in, or has a subgroup that engages in terrorist activity. Although DHS has been applying this definition to groups that ceased to exist or ceased to engage in terrorist activity long before the statute that so defined them was enacted, in any case where you are dealing with a group that is no longer engaged in the use of armed force, you can document that fact and argue that the Tier III definition, by its plain terms, does not cover that group. Where your clients acts predated the enactment of the statutory provisions that are the basis for the governments characterization of the group as a Tier III terrorist organization, you can also argue that applying this present-tense definition backwards in history
Advocates working with clients who may have in the past applied, or may in the future consider applying, for legal status in Canada, should note that Canadian law (specifically 34(1) of Canadas current Immigration and Refugee Protection Act) also contains an extremely vague terrorism-related bar to admission. The language and interpretation of the Canadian law are quite different from the INAs provisions, and their effects, while also sweeping, are not identical to what we have seen in the United States. While the details and practical implications of the Canadian statutory scheme are beyond the scope of this practice advisory, advocates with clients actually or potentially affected by INA 212(a)(3)(B) who may be considering immigration to Canada, or clients considering immigration to the United States who may have had prior problems under these provisions of Canadian law, should seek advice from knowledgeable Canadian immigration counsel. 10 INA 212(a)(3)(B)(iv). 11 USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. 12 INA 212(a)(3)(B)(vi)(I), (II), and (III). 13 INA 212(a)(3)(B)(vi)(I). 14 INA 212(a)(3)(B)(vi)(II). 15 www.state.gov/s/ct/list/. 16 REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 30223. 17 INA 212(a)(3)(B)(vi)(III).
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makes it very difficult to give meaning to the statutes knowledge requirements. 18 Moreover, in any case where the group was not engaged in the use of armed force at the time your client was involved with it, the terrorist organization definition should not be relevant to your clients case. DHS has indicated that it agrees with this second point. Be sure to document your clients case in a way that makes these distinctions clear. Expert testimony as to country conditions during the relevant period can be very helpful here. For several years, DHS had been interpreting the notion of subgroup in the Tier III definition very broadlyor, in the absence of consensus as to how that term should be interpreted, had been placing large numbers of cases on hold that might be affected by the broadest possible interpretation of that term. This has led persons associated with entirely peaceful political parties to see their cases placed on hold because the party they belong or contributed to was itself part of a broader political coalition (an electoral coalition, an opposition umbrella group, etc.) that included another party that included an armed wing. DHS and DOS have now adopted an interpretation of subgroup that has allowed a positive resolution for many of these situations. This interpretation is published in the Foreign Affairs Manual, which now also includes discussion of number of other provisions of the current version of INA 212(a)(3)(B). 19 Member of a Terrorist Organization The INA as amended by the REAL ID Act 20 bars from admission (and makes ineligible for virtually all forms of immigration status or protection) anyone who is a member of a terrorist organization, regardless of whether the organization in question falls within Tier I, II, or III of the INAs terrorist organization definition. Members of alleged Tier III organizations can escape this sub-clause only if they can show by clear and convincing evidence that they did not know, and should not reasonably have known, that the organization was a terrorist organization. 21 Practice Pointer: This is also a present-tense definition (is a member), and DHS agrees that it does not apply to former members, as does the U.S. Department of State. In any case where your client was formerly a member of a group that arguably falls with some subset of the INAs definition of a terrorist organization, however, you will want to make clear in filings and testimony what made your client a member before, and how he or she is not member now. 22 Be careful also with the term member, whose meaning can vary from one political group to another and also in the minds of individual clients. Practice Pointer: Form I-485 includes (on page 2) a very broad question asking applicants for adjustment of status to list their past or present memberships in a very broad range of groups or associations in the United States or abroad. Interview clients carefully about thisand not just refugees and asylees. If your adjustment applicant is an asylee, however, try to obtain a copy of the persons asylum application, in order to vet any potential terrorism-bar issues.) Material Support to Terrorism An individual has engaged in terrorist activity if he or she commits, incites, prepares, plans, gathers information, or solicits funds or members for terrorism, or commits an act that the actor knows, or reasonably should know, affords material support to a person engaged in terrorist activity or to a terrorist organization. 23 Under the INA, material support includes, but is not limited to, provision of [a] safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training. 24 With respect to material support provided to Tier III organizations only, the
18 The statute places the burden on the donor/solicitor to a Tier III group to show by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization. INA 212(a)(3)(B)(iv)(VI)(dd). 19 9 Foreign Affairs Manual (FAM) 40.32 N2.7. 20 REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 30223. 21 INA 212(a)(3)(B)(i)(V), (VI). 22 For a description of how DOS/DHS approach such situations, see 9 FAM 40.32 N2.4. 23 INA 212(a)(3)(B)(iv)(VI). 24 INA 212(a)(3)(B)(iv)(VI).
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statute allows a person to avoid liability if he/she can show that he or she did not know, and should not reasonably have known, that the organization was a terrorist organization. 25 Practice Pointer: For purposes of determining whether a case should be found to involve material support to a Tier I, a Tier II, or a Tier III organization, what ought to matter is the groups categorization at the time the support was provided. DHS and the BIA (judging from unpublished decisions) both agree with this point. DHS has read the definition of material support extremely broadly, to encompass forms of assistance that bear no logical connection to violence, and even including peaceful political activity (distribution of literature, etc.). 26 The U.S. Court of Appeals for the Third Circuit took a similar view (with respect to tangible contributions, not political activity) in Singh-Kaur v. Ashcroft, 27 although the dissent in that case provides a good articulation of the contrary view. DHS has also taken the position that any amount of support will constitute material support, even an insignificant contribution such as one-time provision of food, shelter, or minimal amounts of money. This is an issue the BIA has not yet addressed in any published decision at the time of this writing. 28 DHS has also taken the position that medical care falls within the definition of material support, with the result that medical professionals who have provided medical care to persons who have engaged in terrorist activity have found themselves barred from admission to or status in the United States. The BIA sided with DHS in at least one unpublished case, but has yet to issue a precedential decision on the issue. How Are Spouses and Children Affected? Section 212(a)(3)(B)(i)(IX) of the INA makes inadmissible the spouse or child of any alien inadmissible under any subsection of 212(a)(3)(B), if the activity causing the principal alien to be inadmissible occurred within the last five years. This provision does not apply, however, if the adjudicator has reasonable grounds to believe that the spouse or child has renounced the activity causing the principal alien to be found inadmissible. Note also that DOS very reasonably interprets this provision not to apply to a spouse or child who did not know or should not reasonably have known of the activity that caused his or her spouse/parent to be found to be inadmissible. 29 Practice Pointer: Suppose a principal asylees application for adjustment of status is on hold based on her perceived inadmissibility under INA 212(a)(3)(B). If you find that the applications for adjustment of status of this asylees husband and children are likewise on hold, interview the principal, and review her file, to determine whether her activities or connections leading to her own inadmissibility are still on-going, and if not, when they ended. If this was more than five years ago, alert U.S. Citizenship and Immigration Services (USCIS) to this fact (or DOS, if this is a case undergoing consular processing); bear in mind that if the ground of inadmissibility involves membership in a terrorist organization, you will need to prove that this membership in fact ended more than five years earlier (note that if you do this, that ground of inadmissibility will also disappear with respect to the principal asylee, since the membership bar applies to present members only). Also, check the current ages of the childrenchild here means child as defined by the INA, so any children will become approvable as soon as they reach the age of 21. Both spouses and children may be approvable if you can establish that they have renounced their spouse/parents activity, or that they did not know and should not reasonably have known of the activity in question. Practice Pointer: A number of principal asylees have seen not only their applications for adjustment of status, but also their I-730 asylee relative petitions held up because they themselves are now deemed to be
INA 212(a)(3)(B)(iv)(VI)(dd). Advocates arguing for an interpretation of material support that excludes speech activity protected under the First Amendment should be aware of, and be prepared to distinguish, the U.S. Supreme Courts recent decision in Humanitarian Law Project v. Holder, 130 S. Ct. 2705 (2010). 27 Singh-Kaur v. Ashcroft, 385 F.3d 293 (3d Cir. 2004). 28 However, in an unpublished decision, Matter of LH (July 10, 2009), the BIA held that where the items taken from the respondent consisted of one packed lunch and the equivalent of about $4 U.S. dollars, such a small contribution did not qualify as material support. (Decision on file with the authors.) 29 9 FAM 40.32 N3.5(d).
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inadmissible under INA 212(a)(3)(B). Note that the regulations governing I-730 petitions would only support denying (or holding to avoid denying) an I-730 petition if the beneficiary (not the principal asylee who is the petitioner) is ineligible for asylum on terrorism-bar grounds. 30 In many cases, as described above, if the petitioner is inadmissible, the spouse or children will be likewise based on spouse-or-child inadmissibility under INA 212(a)(3)(B)(i)(IX), but in cases where this is not the case (due to any of the exceptions discussed above), the fact that the petitioner may be inadmissible, in and of itself, should not hold up the I-730 petition. We are pointing this out because some applicants have at times received responses from USCIS suggesting the opposite, though USCIS centrally agrees that this is not correct. What if My Client Engaged in Prohibited Acts Because of Duress or Coercion? DHS argues that the material support bar does not require that support be provided voluntarily, and is applying this bar to persons who acted under duress, as children, or under other circumstances generally recognized as exculpatory. 31 There is good legal support for the contrary position, that this provision of the INA, like criminal law and analogous civil law provisions, contains an implicit defense of duress. The BIA has not issued a precedential decision on this issue as of the date of this writing, but has issued several unpublished decisions agreeing with DHSs position. The material support barand other terrorism-related barshave also been applied to former child soldiers who had been forcibly conscripted into rebel armies. Again, this raises issues on which there is as yet no precedential decision from the BIA. Practice Pointer: Beware of characterizingor encouraging adjudicators to characterizeas material support interactions your client may have had with an armed person or group that are more accurately described as armed robbery. If rebels invaded your clients farm (or burst into your clients store) and made off with his cows (or the contents of the till) without any action on your clients part (voluntary or otherwise), you should describe those facts in filings and testimony in a way that makes that clear. Similarly, be thorough and exact in interviewing your client, so as to catch other possible situations where the bar clearly should not apply (e.g., a family member made a payment to an armed group which the client did not authorize). Are There Exemptions or Waivers of the TRIG Grounds That My Client Can Apply for? When Congress expanded the terrorism definitions, it included provisions in both the USA PATRIOT Act 32 and the REAL ID Act 33 to allow exclusion of some individuals from the broad scope of the terrorism bars in cases where those provisions should not apply. 34 This discretionary authority was expanded by the Consolidated Appropriations Act of 2008 (CAA), 35 and may now be exercised in nearly all cases involving the terrorism-related bars, with some exceptions as described below. 36
8 CFR 208.21(a). In support of this position, DHS has cited to the U.S. Supreme Courts decision in Fedorenko v. United States, 449 U.S. 490 (1981), which the government (meaning both DHS and the BIA) had understood to control the interpretation of the INAs persecutor bar. With respect to the persecutor bar, however, the Supreme Court recently clarified that Fedorenko is not controlling, and has remanded that issue to the BIA. Negusie v. Mukasey, No. 07-499 (Mar. 3, 2009). Although the interaction of these provisions is beyond the scope of this advisory, practitioners dealing with issues of duress (or other common-law defenses) in connection with the terrorism bars should keep track of developments in the Negusie case, which is currently on hold at the BIA pending joint rule-making by DHS and DOJ on the application of the persecutor bar. 32 USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. 33 REAL ID Act of 2005 (REAL ID), Pub. L. No. 109-13, div. B, 119 Stat. 231, 30223. 34 INA 212(d)(3)(B). 35 Consolidated Appropriations Act of 2008 (CAA), Pub. L. No. 110-161, 121 Stat. 18442456 (enacted Dec. 26, 2007). 36 Section 691 of Division J of the CAA made amendments to the inadmissibility grounds of INA 212(a)(3)(B) related to terrorism, and to the authority codified at INA 212(d)(3)(B)(i) that gives the secretaries of DOS and DHS (in consultation with the attorney general) discretionary authority not to apply certain of these grounds in particular cases. The CAA also provides that the Taliban shall be considered to be a terrorist organization described in subclause (I) of INA 212(a)(3)(B), i.e., a Tier I terrorist organization, one that would otherwise be designated as a foreign terrorist organization according to the procedure laid out in INA 219.
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This discretionary authority may be exercised by either the DHS secretary or the secretary of state after consultation with one another and the attorney general. 37 Because of DHSs role in refugee adjudications abroad as well as asylum and immigration benefits granted in the United States, authority to issue an exemption in an individual case to a refugee seeking admission to the United States and to anyone applying for any immigration benefit from within the United States rests with DHS. Within DHS, USCIS is responsible for exemption adjudications, including in cases in (or formerly in) removal proceedings. Because this authority is discretionary, judicial review of a determination to grant or revoke a favorable exercise of this discretionary authority is limited to that provided at INA 242(a)(3)(D) (allowing judicial review of questions of law or constitutional claims). Practice Pointer: Due to the discretionary nature of this exemption authority, the limitations on review, and the extreme slowness with which it is being implemented by DHS, advocates must be sure to argue and preserve their factual and legal claims with respect to the terrorism bars, in parallel to whatever exemption consideration their clients may receive. Although INA 212(d)(3)(B) provides broad authority to DHS to grant exemptions from most of the terrorism-related inadmissibility grounds, DHS has implemented this authority in a piece-meal and centralized fashion, requiring announcements from the DHS secretary before adjudicators can grant exemptions to a particular category of applicants. The following categories may be exempted from the terrorism-related bars to admission under the statutory provisions of INA 212(d)(3)(B): Persons who provided material support under duress to a Tier I, II, or III group; Persons who engaged in terrorist activity on behalf of a Tier I or Tier II group but did not do so knowingly or voluntarily (this would include, for example, child soldiers and persons acting under duress or other circumstances that would negate mens rea or offer them a defense); 38 Member and representatives of Tier III groups; 39 Persons who have voluntarily engaged in terrorist activity (e.g., fought, received military training, solicited funds, recruited members) as long as they did not do so on behalf of a Tier I or Tier II group;40 Spouses and children of persons inadmissible under INA 212(a)(3)(B) who are not covered by the statutory exception of subclause (IX) (i.e., spouses and children who knew about their family members activity that triggered the bar and did not renounce it). 41 The following categories are ineligible for an exercise of discretionary authority under INA 212(d)(3)(B): Members or representatives of Tier I or Tier II groups; Persons who voluntarily and knowingly engaged in (or endorsed or espoused or persuaded others to endorse or espouse or support) terrorist activity on behalf of a Tier I or Tier II organization; Persons who voluntarily and knowingly received military training from a Tier I or Tier II group. In addition to expanding the governments exemption authority, the CAA abolished the characterization of certain Burmese and other insurgent groups as terrorist organizations based on any conduct that occurred before December 26, 2007. The CAA provides that the following groups, which had been characterized as Tier III terrorist groups under INA 212(a)(3)(B)(vi)(III), shall not be considered terrorist organizations on the basis of any act or event occurring before the date of enactment of this section: The Karen National Union/Karen Liberation Army (KNU/KNLA) The Chin National Front/Chin National Army (CNF/CNA)
INA 212(d)(3)(B)(i). See also USCIS Memoranda, Implementation of Section 691 of Division J of the Consolidated Appropriations Act, 2008, and Updated Processing Requirements for Discretionary Exemptions to Terrorist Activity Inadmissibility Grounds, July 28, 2008. 38 Eligible since the enactment of the CAA on December 26, 2007. 39 Ibid. 40 Ibid. 41 Ibid.
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The Chin National League for Democracy (CNLD) The Kayan New Land Party (KNLP) The Arakan Liberation Party (ALP) The Karenni National Progressive Party The Mustangs (a Tibetan group) The Alzados (short for the Alzados en Armas, an anti-Castro movement in Cuba) Appropriate groups affiliated with the Hmong and the Montagnards 42 The provisions of the CAA are retroactive, applying to removal proceedings instituted before, on, or after the date of enactment of this legislation, and to acts and conditions constituting a ground for inadmissibility, excludability, deportation, or removal occurring or existing before, on, or after that date. The categories of people for whom exemption announcements have been made by the DHS secretary, however, are considerably narrower. Some individuals, while eligible for an exemption under the INA, will not be considered for an exemption until the administration institutes procedures for adjudicating them, and their cases, if pending with DHS, will likely remain on hold until that time. These include: Individuals who are inadmissible under the terrorism-related grounds based on voluntary activities on behalf of a Tier III group that has not yet been the subject of an exemption announcement; 43 Individuals who engaged in combat under duress from a non-state armed group; Individuals who voluntarily provided medical care to a terrorist or terrorist group pursuant to ethical requirements for medical professionals; The spouse or child of anyone in one of these categories who is subject to inadmissibility under INA 212(a)(3)(B)(i)(IX) and not covered by the exceptions at INA 212(a)(3)(B)(ii). An overview of the current status of implementation of the Secretary of Homeland Securitys discretionary authority under section 212(d)(3)(B)(i) is posted at www.humanrightsfirst.org/our-work/refugee -protection/material-support/. Copies of secretarial exemption announcements and USCIS implementing memoranda issued to date are available on USCISs website at www.uscis.gov/portal/site/uscis/menuitem. 5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cf0d4b5bbfb73210VgnVCM100000082ca60aRCRD&vgne xtchannel=f39d3e4d77d73210VgnVCM100000082ca60aRCRD. What Factors Are Considered in Deciding Whether to Grant an Exemption? In determining whether to grant an exemption to a person otherwise considered to be inadmissible based on actions taken under duress for which exemptions have been implemented (material support, solicitation of funds or members, or receipt of military-type training), USCIS will consider whether the applicant reasonably could have avoided the action that rendered him inadmissible, the severity and type of harm
All of these groups had previously been the subject of exemption announcements from DHS and DOS that allowed persons who provided support to these groups, whether voluntarily or involuntarily, to be granted a discretionary exemption from the material support bar. The passage of the CAA, however, means that any person who might formerly have been inadmissible or deportable based on any ground that depended on the characterization of these groups as terrorist organizationsas a member or representative of one of these groups, as one who provided material support to one of these groups, or as one who solicited funds or members for these groups or persuaded others to support themis no longer subject to those grounds of inadmissibility or deportability as a matter of law, without needing any exemption from DHS. This is true as long as the material support or other relationship to the group took place before the date of enactment of this legislation. Persons who solicit funds for these groups, provide them with material support, are members, etc., after Dec. 26, 2007, are not automatically exempted from the terrorism bars, although they remain eligible for a discretionary waiver. 43 In Oct. 2009, DHS announced that it had authorized exemptions for persons associated with three Iraqi groups, the Kurdish Democratic Party, the Iraqi National Congress, and the Patriotic Union of Kurdistan. In late Dec. 2010, exemptions were issued for persons who would otherwise be inadmissible based on any activity or association relating to the All-Burma Students Democratic Front or who provided material support to the All-India Sikh Students Federation-Bittu Faction. In early Jan. 2011, additional exemptions were issued relating to persons who were coerced into soliciting members or funds for terrorist organization or received military-type training under duress.
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inflicted or threatened, and other factors. With respect to material support, USCIS will consider the following factors when deciding to issue a waiver: (1) whether the individual could have avoided, or took steps to avoid, providing material support; (2) the severity and type of harm inflicted or threatened; (3) to whom the harm was directed; and (4) in cases of threats alone, the perceived imminence of the harm threatened and the perceived likelihood that the harm would be inflicted. In addition to the duress-related factors, the U.S. government will also consider: (1) the amount, type, and frequency of the support provided; (2) the nature of the activities committed by the terrorist organization; (3) the individuals awareness of those activities (4) the length of time since the support was provided; (5) the individuals conduct since that time; and (6) other factors. The duress exemption announcements for persons force to solicit funds or members, or to receive military-type training, contain similar lists of factors. The exemption announcements issued so far in relation to voluntary association with particular Tier III groups, and the implementing memoranda issued in connection therewith, have laid out the factors and criteria USCIS will consider in granting individual exemptions in such cases. These announcements and memoranda are available on USCISs website. What Are the Procedures for Obtaining an Exemption in Cases Pending Before USCIS? USCIS has been placing on hold cases pending before it where the applicant faces a terrorism-related ground of inadmissibility, is not believed to pose a threat to the United States, is otherwise eligible for the benefit sought, and is eligible for a potential exercise of discretionary authority under INA 212(d)(3)(B), but that authority has not yet been implemented by the Secretary of Homeland Security. The indefinite hold period has been challenged through mandamus litigation in numerous districts. As the secretaries of DOS and DHS began implementing exemption authority for certain categories of cases, USCIS began to process the cases once an exemption became available. There was (and is still) no formal procedure for applying for an exemption; USCIS determined that it was capable of identifying and adjudicating exemption-eligible cases on its own, and this remains the procedure. This does not mean that advocates cannot submit formal requests for waiver consideration, oroften more importantdocumentation in support of waiver consideration. This can be particularly useful in cases where the probable basis for the perceived inadmissibility problem stems from old applications filed long before any of these issues were viewed as potential problems, where there are new facts, where prior counsel (or the applicant pro se) did not flesh out important facts, etc. Practice Pointer: Attorneys must be sure to make and preserve any arguments available, based on the specifics of your clients case, that particular bars do not apply (e.g., your client did not know, and should not reasonably have known, that the group to which he donated elementary school textbooks was a terrorist organization; his onetime donation of 12 textbooks does not constitute material support because it was unrelated to terrorist activity and was also not significant, etc.) or that your client had a legal defense for doing what he did (e.g., your taxi-driver client who was hijacked at gunpoint by Colombian FARC guerrillas and made to drive his hijackers into the mountains should not be subject to the material support bar because he was acting under duresshe should also be granted an exemption, but you should be sure to keep all his legal options open in case an exemption should, for some reason, be denied). In many cases, the same facts that give rise to these legal arguments will be factors that DHS will consider in exercising its exemption authority. What Are the Procedures for Obtaining an Exemption in Removal Proceedings? On October 23, 2008, DHS announced its process for implementing its authority under INA 212(d)(3) to grant exemptions from the terrorism bars in cases that are or have been pending before the Executive Office for Immigration Review (EOIR). 44 The announcement applies to non-detained cases that have orders of removal that became administratively final on or after September 8, 2008, and in detained cases with orders of removal whatever the date of those orders. DHS has not announced procedures for non-detained cases with
See Fact Sheet: Department of Homeland Security Implements Exemption Authority for Certain Terrorism-Related Inadmissibility Grounds for Cases with Administratively Final Orders of Removal (Oct. 23, 2008), available at www.uscis.gov/files/article/FACT%20SHEET%20DHS%20Exemption%20Authority%2020081023.pdf.
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final orders of removal that predate September 8, 2008. Moreoverand this is a very significant limitation the announced waiver process for removal cases only allows a case to be referred for waiver consideration if it falls into one of the categories of cases for which exemption authority has already been implemented. However, U.S. Immigration and Customs Enforcements (ICE) Office of the Principal Legal Advisor has indicated that it is open to working with counsel to ensure that applicants who would otherwise be eligible for exemption consideration under exemptions that may be announced in the future but are not yet in place, are not deported before they can be considered for such waivers. Advocates should reach out to ICE counsel on any such cases. Human Rights First is also trying to track such cases and would be interested in assisting with advocacy; to discuss this, please contact Anwen Hughes at hughesa@humanrightsfirst.org. In addition, DHS will not consider a case for an exemption until after an order of removal is administratively final. DHS explained that this procedure was established to ensure that all issues were fully litigated and that the possible exemption was the only issue remaining in the individuals case. However, for those whose eligibility for asylum or other form of relief, but for the terrorism bar, is undisputed, and who assert factual or legal claims that they are not in fact subject to the terrorism bars (for example, because what they gave was not material support, because they showed they could not reasonably have known that the group in question was a terrorist organization, because the group they gave to did not in fact become involved in violence until several years after the applicants involvement in it had ended, because the applicant was a child at the time), will be forced to wait until the BIA issues its decision before USCIS can consider the case for an exemption that might render a decision on that appeal unnecessary. The result of all these limitations is that only seven cases with final orders of removal have been referred to USCIS pursuant to these procedures at the time of this writing, and of these, five have been granted waivers. The other consequence of this waiver scheme is that it offers no relief to the large category of individuals in removal proceedings who are alleged to fall under an inadmissibility ground for which exemption authority exists under the statute but has not yet been implemented, notably people who had voluntary connections to Tier III groups. DHS indicated that it would mail a notice of referral to non-detained individuals and personally serve detained individuals who were being considered for an exemption. There is no process to apply affirmatively for an exemption. Detained individuals must file for a stay of removal with ICE, Detention and Removal Office (DRO), within seven days of being served with the notice of referral in order to be considered for an exemption. If USCIS decides to grant the exemption, USCIS will notify ICE, which will notify the individual and ask him or her to join a Joint Motion to Reopen to be filed with the immigration court or the BIA, so that relief can be granted and the case can be closed. Practice Pointer: Although USCIS (the Asylum Office and the service centers) has been carefully tracking and holding or, where it deems possible, adjudicating pending cases subject to the terrorism bars, the same is not true for EOIR. If you are representing a client in removal proceedings who may be eligible for a discretionary exemption under the INAeven where procedures to adjudicate exemptions are not yet in place, such as cases where an individual voluntarily engaged in activities on behalf of a Tier III group not yet listed for exemptionsyou should notify the immigration judge or the BIA (depending on where your case is pending) and DHS counsel to discuss how best to ensure that your clients exemption is considered and that your client is not removed before this can be done. Conclusion The INAs terrorism bars are grounds of inadmissibility and deportability applicable to noncitizens, generally, which also act as bars to asylum and withholding of removal provisions. Since their enactment and, even more since their recent expansion, the INAs terrorism-related inadmissibility grounds have been applied overwhelmingly to refugees and asylum seekers, but in recent months have also arisen in a small but growing number of other categories of cases: Applications for adjustment of status pending with USCIS field offices, cases undergoing consular processing, etc. Practitioners should be prepared for DHS asylum officers, trial attorneys, and immigration judges to closely examine the circumstances of any affiliation their clients may have had, or goods or services they may have provided, to groups that may be engaged in terrorism as broadly defined by the INA, and should expect that DHS trial attorneys will oppose asylum on the material support ground in cases where it can
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arguably be applied. Practitioners should also be aware of the possibility that the material support bar could present an obstacle when other types of relief are requested in immigration court, or when adjustment of status applications (particularly those of asylees and refugees) are filed.
ISSUES IN ABANDONMENT OF LPR STATUS

by Jonathan J. Willmoth, Gary E. Endelman, Nita Nicole Upadhye, and Clayton E. Cartwright Jr. *
WHY ISNT PERMANENT RESIDENCE PERMANENT? It is, but the evidence of that status, according to the Immigration and Nationality Act (INA) 1 does expire. 2 OR it isnt, because you can lose it by failing to maintain residence, potentially without regard for the amount of time spent outside the United States. 3 Either way, if placed in removal proceedings upon return, you do continue to be a resident, and must be provided evidence of that residence until a decision is made in your case. 4 TOP FIVE AREAS WHERE ABANDONMENT ISSUES ARISE Lawful permanent resident (LPR) leaves the country for more than a year, and then is placed in proceedings upon return. LPR makes frequent visits out of the country and then applies for naturalization; LPR is placed abroad by employer, but fails to either naturalize under INA 319(b) or file an N-470. LPR lives abroad, and is deemed by U.S. Customs and Border Patrol (CBP) to have abandoned LPR status, then is advised to sign Form I-407 at the port of entry and either sent back on the next flight to their
Jonathan J. Willmoth is owner of Willmoth Immigration Law, LLC. Mr. Willmoth has several publications, including: DONT JUST SIT THERE! The Attorneys Role in USCIS Interviews, Benders Immigr. Bull. (June 2009); as co-author: Greencard. Its Not Like in the Movies, How to Really Prepare Your Client for USCIS Permanent Residence and Naturalization Interviews Based on Marriage, Navigating the Fundamentals of Immigration Law, (AILA 200910 Ed.); and Litigating in the Gray: Finding Room for FGM Relief, 27 Immigration Law Today 32 (May/June 2008). Gary E. Endelman has practiced immigration law for 27 years. He is board certified in immigration and nationality law by the Texas Board of Legal Specialization. He is a frequent writer and speaker on immigration at national and international conferences. He graduated from the University of Virginia with a B.A. in History and holds a Ph.D. in U.S. history from the University of Delaware, as well as a J.D. from the University of Houston Law Center. His biography of Rose Schneidermann was published in 1978 by Arno Press under the title Solidarity Forever: Rose Schneidermann and the National Womens Trade Union League. Nita Nicole Upadhye is a partner at Hodkinson Law Group in London, where she concentrates on business immigration matters with a focus on treaty investors, members of the foreign media, nonimmigrant visa waivers, maintenance of permanent resident status, and renunciation of U.S. citizenship. Ms. Upadhye graduated from University of California, Irvine (economics) and University of Notre Dame Law School. She is a former Peace Corps volunteer. Ms. Upadhye is recognized in the Whos Who of International Corporate Immigration Lawyers and is on the Executive Committee of the AILA Rome District Chapter. Clayton E. Cartwright, Jr., is the founding member of The Cartwright Law Firm, LLC, which specializes in the areas of international taxation and employee benefits. In 2008, Mr. Cartwright was named a contributing author to Canada/U.S. Relocation Manual: Immigration, Customs, Employment and Taxation, published by Thomson Reuters/Carswell. He also has authored and lectured on various international taxation and employee benefit topics, including the U.S. expatriation tax regime, tax withholding on international employment, worker assignments outside the United States, and the interaction of pension plan contributions and distributions with tax treaties. 1 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). 2 INA 264(d); 8 CFR 264.1(h). 8 CFR 223.3(d)(1), Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003) (finding that temporary visits are not defined in terms of elapsed time alone, and that a reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status.) 8 CFR 264.5(g); USCIS Memorandum, J. Torres, Confiscation and Return of Original Documents (July 14, 2006), published on AILA InfoNet at Doc. No. 07100536 (posted Oct. 5, 2007), available at www.aila.org/content/default. aspx?docid=23514.
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country of residence or are allowed entry as a visitor (waiving the Electronic System for Travel Authorization/B-1/B-2 visa requirements). LPR is out of the United States for six to nine months at a time, with only brief returns to the United States in between, and then is told he or she needs a re-entry permit before returning the next time. Your client, who you worked so hard to help obtain LPR status to remind them of requirements to maintain residence, calls you after leaving the United States for nine months, asking how they get back to the country now, or if there is any danger if they stay out longer. Burden of ProofAdmission Before and After IIRAIRA Pre-IIRAIRA: Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), 5 the burden rested on the government to prove by clear, convincing, and unequivocal evidence that the LPR had abandoned his or her residence. 6 Post-IIRAIRA: The burden arguably is still on the government, though it is less clear given the statutory requirement that the applicant for admission demonstrate by clear and convincing evidence that they are lawfully present. While the change in law places the burden on the LPR, where an LPR has a colorable claim to LPR status the burden shifts to the government, as the case law continues to affirm the preIIRAIRA structure. One-Year RuleStatute/Regulations vs. Case Law The INA describes when an LPR is deemed to be seeking admission, which can lead them directly to removal proceedings. 7 An LPR is only considered to be seeking admission if the LPR has: Abandoned or relinquished status; Been outside the United States for a continuous period of more than 180 days; Engaged in illegal activity outside the United States; Left the United States while in removal proceedings; Committed any crime under INA 212(a)(2) (see criminal grounds of inadmissibilityincluding crimes involving moral turpitude, drug related offenses, and the like) unless they already have been granted an 212(h) waiver or cancellation of removal under INA 240A(a); or Is attempting to, or did return without inspection or at a place not authorized. A foreign national who is applying for admission has the burden to prove that he or she is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 212. 8 Every LPR returning to the United States needs to have a valid, unexpired visa, an LPR card if returning from a trip abroad of less than one year, a valid re-entry permit, etc. 9 Prior to IIRAIRA, the courts had placed the burden of proving the abandonment of residence universally on the government, by clear, unequivocal, and convincing evidence. 10 This was not a strict review of any temporal requirement, though the overriding principle was to determine whether the foreign nationals stay outside the United States was interruptive of his or her residence, or whether it was a brief and casual visit abroad. 11 Specifically, time by itself was not sufficient to establish abandonment. Instead, the courts required
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009-546 to 3009-724. 6 Dabone v. Karn, 763 F.2d 593, 597 (3d Cir. 1985); Matter of Huang, Int. Dec. 3079 (BIA 1988).
7 8 9 5
INA 101(a)(13)(C). INA 240(c)(2)(A). 8 CFR 211.1(a). Matter of Huang, 19 I&N Dec. 749 (BIA 1988) (citing Woodby v. INS, 385 U.S. 276 (1966)).
10 11
Rosenberg vs. Fleuti, 374 U.S. 449, 462 (1963) (Finding that an innocent, casual and brief departure did not subject an LPR to the grounds of exclusion); Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997) (A trip is temporary if it is (1)
continued
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a more complete review of the intent of the foreign national, including the purpose of her departure, the duration of her absence, and her home, family and employment ties in order to determine whether she had, in fact, abandoned her residence. 12 These factual determinations were also given great weight by reviewing courts. 13 Many courts still require the government to establish that the foreign national has abandoned his or her residence if they have a colorable claim to LPR status. 14 While some of these cases involve pre-IIRAIRA proceedings that continued on past the change in law, at least two courts have determined that the burden remains on the government where the foreign national has been placed in proceedings as inadmissible. 15 INTENT ISSUESRE-ENTRY PERMITS, NIV ENTRIES, TAX STATUS Re-entry Permits Those who apply for and obtain a re-entry permit demonstrate their intent not to abandon their residence. The permits are valid for two years, which should allow individuals who are gone for more than a year, but less than two years, to return without a finding of abandoning their residence; at least they will not be deemed to have abandoned status based solely on the duration of an absence or absences while the permit is valid. 16 However, simply attempting to return with a valid re-entry permit is not enough to guarantee admission and maintenance of status, but is instead one part of an overall strategy. To that end, a review of the manual CBP officers use as they inspect our clients upon their return from abroad is necessary, with a view toward preparing clients for what to expect, and assisting them in avoiding the negative consequences of prolonged stays abroad. LPRs who return to the United States without a valid permanent resident card or other evidence of their status will be required to file an I-90 to replace the card (if lost, stolen, etc.). 17 This has been used often by CBP officers, however, to force individuals with un-expiring LPR cards to file for new 10-year cards, despite the specific note in the field manual to the contrary. 18 CBPs Inspectors Field Manual (IFM) covers the issue of the changes IIRAIRA made to the Fleuti doctrine. 19 The Fleuti doctrine 20 stated that an LPR would not be considered to be making an entry into the United States if his or her departure was brief, innocent or casual. 21 IIRAIRA changed all of that by laying out the specific factors to consider when determining whether the LPR is seeking admission. 22 Now, CBP officers are instructed to look to INA 101(a)(13)(C) to determine if the LPR is seeking admission. If so, the officer is instructed to issue a Notice to Appear (NTA) and place the foreign national in removal proceedings. In practice, the CBP office generally will not file the NTA with the court directly, so there is often a significant delay between them handing your client an NTA and the removal proceedings actually beginning. The real problem with this is that your client may live in Kansas, but entered through Philadelphia, and now has to bear the expense of appearing in Philadelphia or attempting to change venue.
relatively short, or (2) if not short, the petitioner had a continuous, uninterrupted intention to return to the United States during the entirety of his visit.).
12 13 14
Matter of Kane, 15 I&N Dec. 258 (BIA 1975). Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir. 1986).
Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005); Matadin v. Mukasey, 546 F.3d 85 (2d Cir 2008); Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir. 2005).
15 16 17 18 19 20 21 22
Matadin v. Mukasey, 546 F.3d 85 (2d Cir 2008); Khodagholian v. Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 2003). 8 CFR 223.3(d)(1). U.S. Customs and Border Protections Inspectors Field Manual (IFM) ch. 13.2. IFM ch. 13.2. IFM ch. 13.4. Rosenberg vs. Fleuti, 374 U.S. 449 (1963). See Matter of Kane, 15 I&N Dec. 258 (BIA 1975). See the list of factors in INA 101(a)(13)(C), or summarized above.
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Nonimmigrant Immigration Visa Entries It may seem obvious, but a foreign national with an LPR card who returns to the United States on a Visa Waiver, an unexpired nonimmigrant visa, or other method besides as an LPR, seriously calls into question his or her intent to reside, or continue their residence within the United States, as nonimmigrant visa (NIV) entries are by definition those without immigrant intent, as defined in INA 214(b) (stating that all nonimmigrants (except Ls and most Hs) shall be presumed to be an immigrant until he establishes a lack of immigrant intent). However, such an NIV return by an LPR is not an automatic abandonment. 23 Tax Status One key intent issue, on the re-entry permit application, as well as in any return from abroad that an LPR makes (whether with or without a re-entry permit) is their tax statusspecifically, whether they have listed themselves as a nonresident for tax purposes. This same question is asked in naturalization applications, as well, in determining maintenance of residence. In both instances, there is a rebuttable presumption that an LPR has abandoned their residence if they file their federal income taxes as a nonresident. 24 STRATEGIESRETURNING RESIDENTS/DEFERRED INSPECTION/REFILING ADJUSTMENT/IMMIGRANT VISAS/REMOVAL PROCEEDINGS Returning Residents According to the IFM, officers at the border are supposed to review the facts of a foreign nationals departure and stay outside the country, even though they already have been issued an SB-1 visa from the consulate after remaining outside the country for more than a year and demonstrating to the consular officer that they did not abandon their residence. Note that the INA does not define the word temporary in the section on SB-1 visas. 25 Only if the [CBP] officer is convinced the alien is indeed returning to his or her residence, the manual warns, should they be allowed to enter on the visa issued to them. 26 It is therefore important to prepare your clients, even after helping them obtain the returning resident visa from the consulate, for the inspection at CBP when they attempt to enter the United States. Deferred Inspection Inspectors are reminded to be aware that an LPR who has been outside the United States for more than one year (two, if presenting a re-entry permit), may have abandoned residence. Other indicators of possible abandonment of residence are employment abroad, immediate family members who are not permanent residents, arrival on a charter flight where most passengers are non-residents with return passage, lack of a fixed address in the United States, or frequent prolonged absences from the United States. In questionable cases, it is appropriate to ask for other documentation to substantiate residence, such as drivers licenses and employer identification cards. 27 New Adjustment of Status/Immigrant Visa Petitions Many LPRs who return from abroad still have the qualifying relative/employment relationship/etc. to file a new adjustment of status application on the same basis, such as those who are still married to the same U.S. citizen (USC), continue to be aliens of extraordinary ability, etc. In those cases, an alternative to fighting to maintain residence would simply be to begin the process all over again, filing new immigrant visa petitions and consular processing those applications, or filing to adjust status in removal proceedings. Where there is not sufficient evidence of maintenance of LPR status, but every reason to believe the immigrant visa and adjustment of status should be approved, that option would remain open.
23 24
9 Foreign Affairs Manual (FAM) 41.31 N15, 42.22 N10.
Legacy Immigration and Naturalization Service (INS) Memorandum, D. Martin (May 7, 1996), reprinted in 73 Interpreter Releases 929, 94850 (Jul. 15, 1996); 8 CFR 316.5(c)(2).
25 26 27
INA 101(a)(27)(A). IFM ch. 13.5. IFM ch. 13.1.

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Removal Proceedings Any LPR returning from abroad has the right to have the issue of abandonment reviewed by an immigration judge. It is important that an LPR not sign away this right with CBP in some uninformed attempt to pacify an overly-assertive CBP agent. In charging your client, the U.S. Department of Homeland Security (DHS) will use INA 212(a)(7) as the ground of inadmissibility for LPRs who are not in possession of a valid unexpired immigrant visa, re-entry permit, or other valid documents, at the time of seeking admission. This is the ground used by U.S. Immigration and Customs Enforcement (ICE) to charge a foreign national in removal proceedings if they determine that the person is now seeking admission and is inadmissible for one of the reasons listed in INA 101(a)(13)(C). 28 Naturalization In order to be eligible for naturalization, the applicant must be physically present in the United States for at least half of the required time, and reside in the United States from the date of application to the naturalization ceremony. 29 Any absence from the United States of more than six months, but less than a year, will break the continuity of the foreign nationals residence in the United States, unless he or she can establish that they did not abandon their residence. 30 Any absence of one year or more will break the continuity of the applicants residence, unless they applied to maintain their residence for naturalization before leaving. 31 The non-exhaustive list in the regulations includes maintaining employment in the United States, family members remaining in the United States, maintaining full access to U.S. abode (i.e., not renting it out), and not obtaining employment abroad. 32 PREPARING YOUR CASE FOR PRESENTATION As established above, intent still rules this discussion, so it is in your clients best interests to be prepared to prove why the client has travelled abroad, or at least provide a coherent narrative of the circumstances that lead to their travel, whether there is a clear reason why it took longer than expected, and whether they have continued to maintain ties to the United States as best they could. Evidence to Demonstrate Ties to United States Home ownership/rent; Continuing U.S.-based bank accounts; Frequent visits to the United States; Family members remaining in the United States; Business/employment connections to the United States; Drivers license; and Pension accounts. Evidence to Demonstrate Reasons for Stay Abroad Affidavits/statements indicating reasons for stay abroad; Physical evidence (medical/legal records, etc.); Letters, etc., demonstrating attempts to resolve issue requiring prolonged stay abroad; School records (demonstrating limited study abroad); and Employment letter (especially if company is a U.S. company).
28 29 30 31 32
INA 101(a)(13)(C). INA 316(a). INA 316(b). Id. 8 CFR 316.5(c).

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Tax ConsiderationsNew Exit Taxes and LPR Expatriates 33 Only an LPR who has been a LPR in (not for) eight of the last 15 years (including the year of expatriation) is potentially subject to the exit tax, being deemed a long-term resident (LTR). 34 How and When Does an LTR Expatriate (What Is the Expatriation Date)? An LTRs expatriation date is considered to be the earliest date that LTR: Filed Form I-407 and DHS determines LTR, in fact, abandoned LPR status; LTR becomes subject to a final administrative order for removal under the INA, and actually leaves the United States as a result of the order; or LTR claims U.S. tax nonresidency by filing U.S. Internal Revenue Service (IRS) Forms 8833 and 8854. 35 Exit Tax Applies Only to LTR Who Is a Covered Expatriate. LTR Is a Covered Expatriate if: LTRs average annual income tax liability for the five preceding tax years before the expatriation date exceeds an annual amount, adjusted for inflation ($147,000 for 2011), or LTR has a net worth of at least $2 million on the expatriation date, or LTR fails to file Form 8854 with the income tax return for the taxable year that includes the date before the expatriation date. 36 Deemed Sale for Covered Expatriate. The covered expatriates worldwide property is treated as being sold for its fair market value on the date before the expatriation date (the Deemed Sale). 37 Exclusion. Covered expatriate is granted an exclusion (the Exclusion), adjusted for inflation annually ($636,000 for 2011), applied pro rata to all properties with realized gains. 38 Items Not Included in Deemed Sale. Covered expatriate must file IRS Form W-8CE with each payer of these items on the earlier of: (i) the day before the first distribution on or after the expatriation date, or (ii) 30 days after the expatriation date. 39 Deferred Compensation Items. 40 Eligible Deferred Compensation Items (distributions subject to 30 percent tax withholding). 41 Ineligible Deferred Compensation Items (taxed on the items present value on the day before the expatriation date (and the Exclusion does not apply)). 42 Specified Tax Deferred Accounts (taxed on account value on the day before the expatriation date (and the Exclusion does not apply)). 43 Nongrantor Trust (distributions subject to 30 percent tax withholding). 44
33 34 35 36 37 38 39 40 41 42 43 44
Internal Revenue Code (IRC) 2801 and 877A. Internal Revenue Code (IRC) 877A(g)(5) (incorporating IRC 877(e)(2)). IRC 877A(g)(3)(B) and 7701(b)(6); Instructions for Form 8854, p.1; IRS Notice 2009-85, 2.A, 2009-45 IRB. 598. IRC 877A(g)(1)(A) (incorporating IRC 877(a)(2)); IRS Notice 2009-85, 2.A. IRC 877A(a)(1). IRC 877A(a)(3). IRS Notice 2009-85, 8.D. IRC 877A(c)(1). IRC 877A(d)(1). IRC 877A(d)(2)(A). IRC 877A(e)(1). IRC 877A(f)(1)(A).
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Election to Defer Tax. Covered Expatriate can elect on Form 8854 to defer tax from the Deemed Sale on any property item until the tax year when the item is sold, but must enter into a tax deferral agreement with the IRS. 45 Gift or Bequest from Covered Expatriates (IRC 2801). IRC 2801(a) taxes any U.S. estate and tax resident (i.e., noncitizen domiciled in the United States) on a Covered Gift or Bequest from Covered Expatriate. Covered Gift or Bequest is any direct or indirect transfer by gift, or by reason of death, from covered expatriate. 46 Under IRC 2801(a), tax is equal to the covered gift or bequest multiplied by the greater of (i) the highest gift tax rate in effect in the tax year of receipt or (ii) the highest gift tax rate in effect in the tax year of receipt. CONCLUSION The process of obtaining LPR status for your clients can be time consuming, laborious, and emotionally draining. In addition, ample opportunity is provided to allow them to undo all of your hard work and jeopardize their own ability to remain in the United States: Your clients may find work abroad where none is available to them here, immediately; they may have ill family abroad; they may need to resolve complex legal issues in their native lands; or they may encounter a myriad of other perfectly understandable reasons for lengthy departures from the United States. However, as two experts in the field remind us: The job of the skilled lawyer is to recognize the inherent tension in this ever-changing relationship, understand its logic, and, to the extent possible, attempt to shape legal strategy to fit the contours of its evolving dynamic. 47
45 46 47
IRC 877A(b)(1) and (b)(4); IRS Notice 2009-85, 3.E. IRC 2801(e)(1).
G. Endelman and C. Mehta, Home is Where the Card is: How to Preserve Lawful Permanent Resident Status in a Global Economy, Immigration & Nationality Law Handbook 581 (AILA 200809 Ed.).
CAN THIS OR SHOULD THIS GO TO FEDERAL COURT?

by Raed Gonzalez, Matthew Guadagno, and Hilary Han *
The Administrative Procedure Act (APA) 1 provides a mechanism for seeking federal district court review of agency decisions. Sometimes, the threat of litigation can be sufficient to compel the government to reconsider a denial that is contrary to law. More often, though, a practitioner will need to file a lawsuit in order to obtain favorable action. Before challenging a particular agency decision, however, the practitioner must consider, inter alia, whether the APA allows for review of that particular decision, whether it is necessary to exhaust administrative remedies before litigating, whether the district court will have subject matter jurisdiction over the claim, whether alternatives to litigation might be preferable, and whether the particular case provides facts upon which relief can be granted. This advisory discusses some of these considerations. STANDARD OF REVIEW APA 702(2) provides five different standards of review for actions under the APA. 2 Each of these standards of review is utilized under different circumstances. One of the keys to success in bringing any APA action is to identify the proper standard of review. The standard of review is the standard by which a court reviews a claim and determines an agency action to be unlawful. APA 702(2)(A) provides that a court should hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. APA 702(2)(A) actually provides three different standards. The first standard in APA 702(2)(A) is
Raed Gonzalez was born in Puerto Rico and earned his J.D. from the Inter American University of Puerto Rico. He also studied at the University of Barcelona (Spain) and received his L.L.M. in Health Law from the University of Houston Law Center. His published decisions include: Manuel Flores Ledezma v. Gonzalez, 415 F.3d 375, 380 (5th Cir. 2005); PerezPimentel v. Mukasey, 530 F.3d 321 (5th Cir. 2008); McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Dada v. Mukasey, No. 06-1181, __ S. Ct. __, 2008 WL 2404066, (June 16, 2008); and second grant of certiorari in Alexis v. Holder, No. 09-955, __ S. Ct. __, 2010 (June 21, 2010). Matthew Guadagno specializes in deportation defense and federal litigation relating to immigration. He has argued numerous cases in federal courts that have resulted in precedent decisions. Mr. Guadagno currently serves on the AILA Amicus Committee and the Advisory Committee to the Legal Action Center of the American Immigration Council. Hilary Han is a partner at Dobrin & Han in Seattle. The firm represents noncitizens facing removal before the immigration court, the Board of Immigration Appeals, and the federal courts. Also represented are immigrants seeking asylum, lawful permanent residence, and naturalization. 1 Administrative Procedure Act (APA), Pub. L. No. 79-404, 60 Stat. 237, 238; (codified at 5 USC 55159, 70106, 1305, 3105, 3344, 5372, 7521). 2 APA 702(2) provides: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
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arbitrary and capricious. The U.S. Supreme Court has stated that a decision is arbitrary and capricious when: Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies. We may not supply a reasoned basis for the agencys action that the agency itself has not given. We will, however, uphold a decision of less than ideal clarity if the agencys path may reasonably be discerned. 3 The second standard in APA 702(2)(A) is an abuse of discretion. There are three circumstances where a court may find that an agency has abused its discretion: (1) that the agency has exercised its discretion to discriminate invidiously 4 ; (2) that the agency has deviated from its internal regulations 5 ; and (3) that the agency has given effect to considerations that Congress could not have intended to make relevant. 6 The third standard in APA 702(2)(A) is otherwise not in accordance with law. When a court applies the otherwise not in accordance with law standard to an agencys statutory interpretation, the two-step test of Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc. 7 is what the court utilizes. 8 Under the first step of Chevron, the court looks to whether the language of the statute is plain.9 If the language of the statute is plain, the courts inquiry ends. 10 However, if the language of the statute is ambiguous, the agencys interpretation of the statute is given deference, provided that the agencys interpretation is based on a permissible construction of the statute. 11 An agency decision can also be otherwise not in accordance with law, if it improperly interprets its own regulations. 12 An agencys interpretation of its own regulation is controlling if it is not plainly erroneous or inconsistent with the regulation. 13 APA 702(2)(B) provides that a court should hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity. Unless a liberty interest is implicated, claims that an agency action has violated a constitutional right are reviewed for whether there is a rational basis for the agency action. 14 Claims that an agency action violates procedural due process are subject to the test in Mathews v. Eldridge. 15 The standard from Mathews v. Eldridge requires a court to consider: (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the Governments interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 16 APA 702(2)(C) provides that a court should hold unlawful and set aside agency action, findings, and conclusions found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory
3 4
Motor Vehicle Mfrs. Assoc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983). Error! Main Document Only.Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982). 5 Error! Main Document Only.Jean v. Nelson, 472 U.S. 846, 85556 (1985). 6 Error! Main Document Only.Doherty v. Thornburgh, 943 F.2d 204, 111718 (2d Cir. 1991). 7 Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 84243 (1984). 8 Northwest Environmental Advocates v. Illinois, 537 F.3d 1006, 1014 (9th Cir. 2008). 9 Chevron at 843. 10 Id. 11 Id. 12 Love Korean Church v. Chertoff, 549 F.3d 749, 754 (9th Cir. 2008). 13 Error! Main Document Only.Auer v. Robbins, 519 U.S. 452, 461 (1997. 14 Error! Main Document Only.Fiallo v. Bell, 430 U.S. 787, 79899 (1977). 15 Mathews v. Eldridge, 424 U.S. 319, 435 (1976). 16 424 U.S. at 335.
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right. Agency actions that do not fall within the scope of a statutory delegation of authority are ultra vires and must be invalidated by reviewing courts. 17 Courts will invalidate executive action that is unsupported by express statutory authority. 18 APA 702(2)(D) provides that a court should hold unlawful and set aside agency action, findings, and conclusions found to be . . . without observance of procedure required by law. An agency acts without observance of procedure required by law when it fails to follow its own regulations. 19 APA 702(2)(E) provides that a court should hold unlawful and set aside agency action, findings, and conclusions found to be . . . unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute. Review under the substantial-evidence test is authorized only when the agency action is taken pursuant to a rulemaking provision of the Administrative Procedure Act itself, 5 USC 553, or when the agency action is based on a public adjudicatory hearing, 5 USC 556, 557. 20 APA 702(2)(F) provides that a court should hold unlawful and set aside agency action, findings, and conclusions found to be ... unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. De novo review of whether the Secretarys decision was unwarranted by the facts is authorized by 706(2)(F) in only two circumstances: (1) when the action is adjudicatory in nature and the agency fact finding procedures are inadequate; and (2) there may be independent judicial fact finding when issues that were not before the agency are raised in a proceeding to enforce non-adjudicatory agency action. 21 COMMUNICATIONS WITH THE GOVERNMENT Prior to challenging an agency decision in federal court, it might be beneficial to contact the local U.S. Attorneys office to discuss the decision you intend to challenge. The success of such a strategy depends on a number of factors. Where your challenge is in the nature of mandamus, there is a better chance that the mere threat of a lawsuit would spur the government into action, as you are only seeking to have an application adjudicated. If, on the other hand, you are challenging an agency denial under the APA, you are seeking to have that decision reversed, an action the government is less likely to want to take without being forced to do so. Nonetheless, one incentive for the government to reopen or reconsider an agency denial prior to the filing of a lawsuit is the opportunity to avoid paying attorneys fees. If you can convince an Assistant United States Attorney that the agencys denial is particularly egregious and that the district court has jurisdiction to review it, pre-litigation communications might be successful. It is important to consider whether it makes sense, in any particular case, to contact the government prior to filing. On the one hand, there are some situations in which you might not want to give away your theory of the case or give the government the opportunity to fix a denial and make your federal legal challenge more difficult. On the other hand, if you believe that the government might be receptive to your client prior to litigation, you might be able to avoid litigation by presenting a compelling case to the U.S. attorneys office. In determining whether or not to contact the government, some (but not all) of the factors to consider are: (1) how receptive the U.S. attorneys office would be to taking action; (2) how receptive the U.S. Citizenship and Immigration Services office that issued the decision would be to changing its decision; (3) how strong your legal challenge is on its merits; (4) whether there are any potential jurisdictional bars to your lawsuit; (5) whether U.S. Citizenship and Immigration Services (USCIS) might make its denial more difficult to
Error! Main Document Only.SEC v. Sloan, 436 U.S. 103, 11819 (1978). Jean v. Nelson, 472 U.S. 846 (1985). 19 See, e.g., Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008) (remanded to district court for consideration of claim that USCIS crossing out I-551 stamp in passport to terminate lawful permanent residence without following regulations relating to rescission was without observance of procedure required by law). 20 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971). 21 Id.
18
17
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challenge if you alert them to it; (6) how averse your client is to litigation; and (7) what the consequences to your client would be if the lawsuit were denied. Once the lawsuit is filed, the governments counsel will likely to approach you about a settlement if they believe that there is room to reach an agreement. However, it still might be worthwhile to affirmatively contact the U.S. attorneys office (or, as is becoming more common, the Office of Immigration Litigation) about a possible settlement. Immigration cases are often not amenable to a settlement because there is little or no middle groundan application can either be granted or denied, but nothing in between. However, if you can come up with a solution that would be beneficial to your client, it cannot hurt to raise it with the government. In addition, if your claim is particularly strong, the government might be willing to provide you with the relief you are seeking in order to avoid paying the additional attorneys fees that would be incurred in filing motions for summary judgment and otherwise continuing to litigate the case. WHEN IS THE RIGHT TIME TO GO TO FEDERAL COURT? Although many of us are inclined to litigate when faced with an agency denial, there are a number of strategic considerations that go into deciding if and when a lawsuit is appropriate. Four primary considerations are: (1) whether another avenue of review is available; (2) whether re-filing the application is an option; (3) whether there are administrative remedies available; and (4) what the consequences to your client are if she files (and loses) a lawsuit. These considerations are discussed in turn. First, is another avenue of review available to your client, and how do your clients chances compare in this alternate venue? For example, if a marriage-based adjustment application is denied, the applicant will ordinarily be placed in removal proceedings and have the opportunity to renew that application in front of an immigration judge. On the other hand, an asylee who is denied adjustment would not be placed in removal proceedings if there is no basis upon which to terminate asylum status. Litigation is a clearer option for the asylee because there is unlikely to be another option for reviewing the adjustment denial, while the client denied marriage-based adjustment is likely to have the option of seeking review by an immigration judge. Moreover, if the adjustment application was denied in the exercise of USCISs discretion, your client will probably have to wait until removal proceedings are initiated, as a federal judge is unlikely to have jurisdiction to review such a decision. Second, is re-filing the application a viable or preferable option? In some cases, re-filing might be your only option. This would be the case where, for example, there is a jurisdictional bar, or the doctrine of consular nonreviewability applies. In other cases, you might choose to re-file in order to make a better record for review, as the federal courts review of the agency decision is ordinarily based solely on the administrative record. You might also re-file if the new application would be reviewed by a different, and better, adjudicator, or if litigation would be significantly more expensive for a client of limited financial means. On the other hand, if you believe that the denied application was well-prepared, re-filing would only yield the same decision from USCIS, and there are no jurisdictional bars to review, litigation would be preferable to re-filing. Third, are there administrative remedies available to your client? Certainly, if it is necessary to exhaust certain administrative remedies as a prerequisite to litigation, those remedies should be pursued first. In addition, there are certain administrative remedies that need not be exhausted but that could help your client avoid litigation. For example, you might be able to file a motion to reconsider, which would allow you to better spell out your legal theory. You might also be able to file a motion to reopen, to add evidence to the record and both: (1) give your client another chance at approval of the petition or application; and (2) make a better record for appeal if that becomes necessary. Fourth, and finally, what are the consequences to your client if the lawsuit is denied? This consideration requires an assessment of the strength of your legal challenge, as well as the particular immigration status of your client. For example, if your client is undocumented but has not been placed in removal proceedings, losing a lawsuit increases the chances that your client will be placed in removal proceedings in the future. Conversely, if a U.S. citizen petitioner has filed an I-130 petition for a relative who is outside the United States, neither the petitioner nor the beneficiary is likely to be worse off if they challenge the agencys denial of the petition. In the former situation, you might want to file a lawsuit only if you feel particularly good
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about the merits of your case. In the latter situation, though, you might be willing to litigate a weaker case because your clients really have nothing to lose. EXHAUSTION OF REMEDIES AS JURISDICTIONAL REQUIREMENT Generally, administrative law recognizes that remedies have to be exhausted before filing appeals in federal courts. The REAL ID Act 22 placed all judicial review in the courts of appeals. The statutory basis for jurisdiction for petitions of review is found in Immigration and Nationality Act 23 (INA) 242 et seq., 8 USC 1252, et seq. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) 24 affords judicial review to circuit courts if a petitioner has previously exhausted all administrative remedies available to him as of right. 25 Under this statute, a foreign national cannot obtain judicial review until he has exhausted all administrative remedies available to him as of right and another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order. 26 Review of Final Orders of Removal An alien who wishes to challenge an order of removal is required to exhaust all administrative remedies. INA 242(d) establishes, [a] court may review a final order of removal only if: (1) the alien has exhausted all administrative remedies available to the alien as of right . 27 INA 106(c) provides, an order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations . If an alien fails to appeal with the Board of Immigration Appeals (BIA) this is considered a failure to exhaust administrative remedies and the court of appeals lacks jurisdiction to review the decision. Some courts have accepted jurisdiction on appeals to review an order of removal even when no appeal was filed with the BIA . 28 Specific challenges to orders of removal are not subject to review if the petitioner failed to present those issues to the BIA. For example, if a ground of removability is challenged, but not another, the courts have generally found failure to exhaust administrative remedies. 29 Some courts have found that there are also exceptions to issue exhaustion. 30 Streamlined decisions under 8 CFR 1003.1(e)(4) are final decisions that courts can review. 31 To exhaust remedies with respect to a particular issue, a petitioner does not have to present the issue with a full, precise
REAL ID Act of 2005 (REAL ID), Pub. L. No. 109-13, div. B, 119 Stat. 231, 30223. Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). 24 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009546 to 3009724. 25 INA 242(d)(1), 8 USC 1252(d)(1). 26 Courts have found exceptions to exhaustion: where the agency lacks the power to act, McNeese v. Board of Education, 373 U.S. 668 (1963); where exhaustion of administrative remedies would be futile, Association of Natl Advertisers v. FTC, 627 F.2d 1151 (D.C. Cir. 1979); where delay for administrative action would cause irreparable harm, Coit Independence Joint Venture v. FSLIC, 489 U.S. 561 (1989); and where constitutional questions are raised, Mathews V. Diaz, 426 U.S. 67 (1976). 27 Id. 28 Gonzales v. Williams, 192 U.S. 1 (1904). Rafeedie v. Immigration and Naturalization Service (INS), 880 F.2d 506 (D.C. Cir. 1989), Howell v. INS, 72 F.3d 288 (2d Cir. 1995); Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005); Marrero-Pichardo v. Ashcroft, 374 F.3d 46 (2d Cir. 2004). 29 Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008); Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004). 30 Zhong v. Department of Justice, 480 F.3d 104 (2d Cir. 2007). 31 Id.
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argumentation in perfectly precise legal terms. It is sufficient to reference the issue in the record at the immigration judge level in a brief or in the notice of appeal. 32 Constitutional questions or challenges to the validity of regulations as ultra vires do not have to be exhausted because the BIA does not have jurisdiction to invalidate a statute or regulation on constitutional grounds. 33 Generally, a motion to reconsider does not have to be filed in order to exhaust administrative remedies. Motions to reopen and to reconsider are available and an alien has a right to pursue them but are not remedies available as of right within the meaning of 8 USC 1252(d)(1). The U.S. Court of Appeals for the Fifth Circuit has found that a remedy is available as of right if: (1) the petitioner could have argued the claim before the BIA and (2) the BIA has adequate mechanisms to address and remedy such a claim. 34 Additionally, the Fifth Circuit has found that a foreign national meets the exhaustion requirements if he or she has explicitly raised the issue before the BIA on direct appeal by filing a motion to reopen or reconsider. By imposing this additional exhaustion requirement, the Fifth Circuit reasons that an appellant should afford the agency an opportunity to address all arguments including those of its own alleged legal error when the new decision itself results in a new issue. 35 The statute requires exhaustion of all remedies available as of right. Motions to reopen and to reconsider are available but are discretionary and not available as of righte.g., the right to appeal. An alien may file one motion to reopen, 36 asking the BIA to change its decision because of newly discovered evidence or changed circumstances. Aliens have a right to pursue a motion to reopen or reconsider 37 . This is not mandatory. The regulations provide the BIA may reopen and/or reconsider but it is not mandatory that they do so. 38 Some courts have found that motions to reconsider are required if new issues arise in a decision by the BIA. The exhaustion of motions to reopen and reconsider as a jurisdictional requirement prior to judicial review conflicts with the Supreme Courts precedent decisions in INS v. Doherty 39 and INS v. Abudu. In Abudu, the Supreme Court held that [m]otions to reopen are disfavored in deportation proceedings. 40 Abudu was reaffirmed in Doherty. There, the Supreme Court held that [t]he granting of a motion to reopen is discretionary but above all, motions to reopen are disfavored. 41 Since Doherty and Abudu established that motions to reopen are discretionary, they cannot be deemed remedies available as of right. Accordingly, they cannot possibly be a statutory prerequisite to judicial review. A motion to reopen may be granted as a matter of discretion but reopening is not available as of right. Therefore, a motion to reopen and/or reconsider cannot be a prerequisite to judicial review. Contrary to the Fifth Circuit, the U.S. Court of Appeals for the Ninth Circuit expressly held that the filing of a motion to reopen or reconsider is not a jurisdictional prerequisite to filing a petition for review with the court of appeals. 42 All circuit courts recognize statutory exhaustion as a prerequisite to review. Regrettably,
Hoxha v. Holder, 559 F.3d 157 (3d Cir. 2009); Montano Cisneros v. AG, 514 F.3d 1224 (11th Cir. 2008); Moreno-Morante v. Gonzales, 490 F.3d 1172 (9th Cir. 2007). 33 Bosede v. Mukasey, 512 F.3d 946 (7th Cir. 2008); Espinoza Gutierrez v. Smith, 94 F.3d 1270 (9th Cir. 1996). 34 Omari v. Holder, 562 F.3d 314, 31819 (5th Cir. 2009). 35 Previously, the U.S. Court of Appeals for the Fifth Circuit had found that motions to reopen or reconsider are not remedies available as of right, and thus are not required to be exhausted for review. Ramirez Osorio v. INS, 745 F.2d 937, 940 (5th Cir. 1984). 36 INA 240(c)(7)(A). 37 Dada v. Mukasey, 128 S. Ct. 2307 (2008). 38 8 CFR 1003.2. 39 INS v. Doherty, 502 U.S. 314, 112 S. Ct. 719, 116 L.Ed.2d 823 (1992) and INS v. Abudu, 485 U.S. 94 (1988). 40 Abudu, 485 U.S. at 107, 110 (1988) (noting, among other things, the tenor of the Attorney Generals regulations, which plainly disfavor motions to reopen). 41 Doherty, 502 U.S. at 323. 42 Castillo-Villagra v. INS, 972 F.2d 1017, 102324 (9th Cir. 1992); see also Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (motions to reopen and reconsider are not remedies available as of right and not required for exhaustion).
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the Fifth Circuit is the only circuit the author is aware that requires a motion to reopen or reconsider be filed with the BIA when the BIAs decision itself results in a new issue. 43 Even if the courts require exhaustion of motions to reopen and/or reconsider as a prerequisite to judicial review, an exception should be recognized under the particulars of some cases. Four circuits have restrictively interpreted and found that INA 242(d)(1) is jurisdictional and no other equitable exceptions to exhaustion are valid. 44 If confronted with the precise issue of exhaustion of motions to reopen and reconsider as a prerequisite to judicial review, under the restrictive interpretation, these circuit courts will have no choice but to follow the Fifth Circuit and require the filing of such motions. The U.S. Courts of Appeals for the Second and Eighth Circuits recognize exceptions by distinguishing between claim and issue exhaustion, the issue exhaustion not being jurisdictional under INA 242(d)(1) and may be waived. 45 The court in Zhong found that the basis for waiver of issue exhaustion has more force in light of streamlining and that failure to raise certain issues should be treated as an affirmative defense and not as a jurisdictional issue. The Eighth Circuit in Zine v. Mukasey 46 also noted that claims versus issue exhaustion as an intra- and inter-circuit issue but not resolving it in this case except to note that lawyers must appeal the denial of withholding when appealing denial of asylum. GENERAL JURISDICTION There is federal question jurisdiction for a district court to review agency action taken pursuant to a federal law. 28 USC 1131 provides, [t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States. It follows that the statute confers jurisdiction on federal courts to review agency action. Follows other statutes allowing further review: 1. The Declaratory Judgment Act, 28 USC 2201(a). This statute provides, [i]n the case of actual controversy within its jurisdictionany court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. A declaratory judgment is a judgment of a court in a civil case declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. 2. The Mandamus Act, 28 USC 1361. The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Mandamus is a case where plaintiff is trying to force a government official to perform his/her duty. More often it is used when a case is delayed beyond reasonable time frame. Mandamus is an extraordinary remedy and should be used when efforts to resolve the issue via administrative channels has been failed. To obtain writ of mandamus from a federal district court, a plaintiff must establish that: (1) he or she has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available. It is useful to use mandamus statue in conjunction with the Administrative
43
Valenzuela-Solari v. Mukasey, 551 F.3d 53, 58 (1st Cir. 2008); Grullon v. Mukasey, 509 F.3d 107, 11214 (2d Cir. 2007); Barker v. Ashcroft, 382 F.3d 313, 317 (3d Cir. 2003); Kporlor v. Holder, 597 F.3d 222, 22628 (4th Cir. 2010); Omari v. Holder, 562 F.3d 314 (5th Cir. 2009); Csekinek v. INS, 391 F.3d 819, 82223 (6th Cir. 2004); Ali v. Mukasey, 542 F.3d 1180, 1183 (7th Cir. 2008); Frango v. Gonzales, 437 F.3d 726 (8th Cir. 2006); Abebe v. Mukasey, 554 F.3d 1203, 120708 (9th Cir. 2009) (en banc) ; Halmenschlager v. Holder, 577 F.3d 1122, 112830 (10th Cir. 2009) [failure to raise BIAs standard of review regarding fact finding before the BIA]; Amaya-Artunduaga v. Atty Gen. of the U.S., 463 F.3d 1247, 124951 (11th Cir. 2006); Maalouf v. Wiemann, 654 F.Supp.2d 6 (D.D.C. 2009). 44 Massis v. Mukasey, 549 F.3d 631, 63840 (4th Cir. 2008); Bah v. Mukasey, 521 F.3d 857, 85960 (8th Cir. 2008); Grullon v. Mukasey, 509 F.3d 107 (2d Cir. 2007); Omari, 562 F.3d 314, 31819 (5th Cir. 2009). 45 Zhong v. DOJ, 480 F.3d 104, 11625 (2d Cir. 2007). 46 Zine v. Mukasey, 517 F.3d 535, 53940 (8th Cir. 2008).
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Procedures Act because it has a requirement that an agency action should be performed within a reasonable time (see 5 USC 555(b)). 3. All Writs Act, 28 USC 165(a). The Supreme Court an all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. To obtain an injunction under the All Writs Act, the injunction must point to some ongoing proceeding, or some past order or judgment, the integrity of which is being threatened by someone elses action or behaviour. 4. APA, 5 USC 701. A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof. This is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review agency decisions. The APA applies to both the federal executive departments and the independent agencies. 5. The Writ of Habeas Corpus, 28 USC 2241(c). The writ of habeas corpus shall extend to a prisoner unless (3) he is in custody in violation of the Constitution or laws or treaties of the United States. The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless government action. Historically, habeas corpus has served as a means of reviewing the legality of Executive detention. The right to habeas corpus is rooted in the U.S. Constitutions Suspension Clause. There also is a federal habeas corpus statute, 28 USC 2241, which states, in pertinent part: (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions ... (c) The writ of habeas corpus shall not extend to a prisoner unless(1) He is in custody under or by color of the authority of the United States ... (3) He is in custody in violation of the Constitution or laws or treaties of the United States ... Since its inclusion in the Judiciary Act of 1789, 28 USC 2241 has given district courts jurisdiction to grant writs of habeas corpus to people who are held in custody by the federal government in violation of the Constitution, laws, or treaties of the United States. Under this statute, federal courts have considered both constitutional claims and claims of statutory interpretation. Channeling Provisions Limiting Judicial Review and Preclusion Provisions There are statutory provisions that channel judicial review into a particular court or establish a specific procedure to follow for review. Judicial review of orders of removal is channeled into the courts of appeal, INA 242(a). Judicial review of denials of legalization applications must occur in the context of judicial review of a final order of deportation or exclusion, INA 245A(f) and 210(e). Judicial review of an expedited removal order issued pursuant to INA 235(b)(1) occurs in habeas proceedings, INA 242(e). Judicial review of a denial of naturalization applications occurs de novo in the district court, INA 310(c). Judicial review of custody and bond issues occurs in the district court in habeas proceedings, 28 USC 2242. These channeling provisions do not bar review but channel them or impose that review occur in a particular court or pursuant to certain procedures. These have been found valid and constitutional 47 . Other provisions purport to eliminate judicial review completely over certain claims. The REAL ID Act 48 eliminated habeas review from the district courts but preserved appellate jurisdiction to review questions of law or constitutional matters. 49 The only way habeas review could be eliminated is if an adequate and effective substitute were available, otherwise the Suspension Clause of the Constitution would be violated.
47 48
Keene Corp. v. U.S. 508 U.S. 200 (1993). REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (2005). 49 INA 242(a)(2)(D).
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Issues of law that were traditionally reviewed in habeas petitions are not barred from judicial review. Therefore, a claim that could have been raised under traditional habeas review can be raised under a Petition for Review in the appellate court. The REAL ID Act left unchanged INA 242(e)(2), which allowed review of expedited orders of removal on a writ of habeas corpus filed in district court where review is limited to determinations of: whether the petitioner is an alien, whether the petitioner was ordered removed under the summary removal provision, and whether the petitioner can prove by a preponderance of the evidence that he or she is an alien lawfully admitted for permanent residence or has been granted refugee or asylee status. If the district court determines that the petitioner has demonstrated by a preponderance of the evidence that he or she is a lawful permanent resident, has been admitted as a refugee, or has been granted asylum, the court may order that the petitioner be provided a removal hearing under INA 240, but may not order any other remedy or relief. The REAL ID Act also left unchanged the former provisions regarding claims to U.S. nationality by persons with removal orders. Under INA 242(b)(5)(A) the court of appeals decides nationality claims if the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact is presented regarding the petitioners nationality. If the court of appeals finds there is a genuine issue of material fact regarding the petitioners nationality, the court must transfer the proceedings to the U.S. district court for the judicial district where the petitioner resides for a new hearing on the nationality claim, pursuant to 28 USC 2201 Judicial Review of Administrative Removal Orders INA 238(b) as amended by IIRAIRA, 50 gave U.S. Department of Homeland Security (DHS) the authority to administratively order the removal of a nonlawful permanent resident or conditional permanent resident under INA 216 if such alien has been convicted of an aggravated felony. Under this provision, the DHS officer issues a Notice of Intent to Issue a Final Removal Order. The alien must be given reasonable notice of the charges and an opportunity to present a written rebuttal. The final order of removal is not adjudicated by the same person who issues the charges. Although INA 238(b) allows DHS to bypass removal proceedings under INA 240, judicial review of this final administrative order is available before a federal circuit court of appeals. SELECTING CASES Many factors go into deciding whether or not to take a case to federal court. One of the first factors is whether or not you have jurisdiction to bring the action. There are many potential bars to bringing district court actions challenging immigration decisions. There are limitations with regards to finality and exhaustion of administrative remedies. There are other jurisdictional bars, such as the doctrine of consular nonreviewability. In deciding whether or not to take your case, you have to determine whether or not you can avoid the jurisdictional minefield. Another factor is how strong your case is. In order to determine this, you will need to identify the appropriate standard of review. There are many different standards of review. Each of them affords the agency different levels of deference. Some of these standards only provide a very limited form of review. For instance, if your client has an application denied as a matter of discretion, the standard of review is extremely deferential in favor of the government. In these district court actions, review is usually limited to the record. As such, there are usually very limited rights to discovery. 51 One of the things you will need to determine is whether or not you can win your case based upon the record. If there is information outside of the record, you will need to make a
IIRAIRA, Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009546 to 3009724. Error! Main Document Only.Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971) (the court may require the administrative officials who participated in the decision to give testimony explaining their action when this is the only way there can be effective judicial review.).
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determination as to whether you will be able to obtain this information through discovery and have the court consider this information. 52 Finally, another factor is to determine what remedy is available to your client. Just because a procedural irregularity occurs, it does not follow that your client will be entitled to a benefit. 53
Error! Main Document Only. See, e.g., Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008) (remanding to district court to determine whether alien was permanent resident when I-551 stamp was place in her passport and why the USCIS crossed out the I-551 stamp). 53 See, e.g., Perez v. Ashcroft, 236 F. Supp.2d 899 (N.D. Ill.2002) (District court held that legacy INS violated the APA by issuing policy memo without following notice and comment procedures, but did not grant summary judgment because alien still had to show that he was entitled to a visa).
52
28 USC 1631: TRANSFER TO CURE LACK OF JURISDICTION

by Trina Realmuto and Matt Adams *
INTRODUCTION Under 28 U.S. Code (USC) 1631, a court may transfer an action filed in the wrong court to cure a lack of jurisdiction. The transfer statute is meant to help parties who are confused about which court has jurisdiction by preserving the opportunity to present the merits of their claim. 1 Thus, the transfer statute may be invoked to obtain court of appeals review of claims raised in an improperly filed district court action or to obtain district court review of claims raised in an improperly filed petition for review. 2 A court of appeals can transfer an improperly filed district court action to itself. Transfer can be requested or invoked sua sponte by a court. 3 The Transfer Statute Provides: Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interests of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. 4 Thus, transfer is appropriate under 28 USC 1631 if three conditions are met: (1) the transferring court lacks jurisdiction; (2) the transferee court could have exercised jurisdiction at the time the action or appeal was filed; and (3) transfer serves the interests of justice. Importantly, the statute provides that the court shall transfer the case to the appropriate court if these conditions are met. This advisory discusses these three conditions as they may arise in an immigration case. CONDITION ONE: TRANSFERRING COURT LACKS JURISDICTION The first statutory requirementthat the transferring court lacks jurisdictionlargely depends on the individual facts of the case and the applicable law governing jurisdiction. For example, challenges to immigration detention must be filed in district court. 5 If a petition for review challenging detention were filed
Trina Realmuto is a staff attorney at the National Immigration Project of the National Lawyers Guild in Boston. Her litigation work focuses on issues such as government accountability, post departure motions to reopen, birthright citizenship, reinstatement of removal and judicial review. She previously worked for the Legal Action Center of the American Immigration Council and the law firm of Van Der Hout, Brigagliano & Nightingale. Ms. Realmuto has litigated several precedent decisions on behalf of plaintiffs and amicus curiae, written numerous practice advisories, and is a frequent presenter on immigration issues. Matt Adams is the legal director for Northwest Immigrant Rights Project (NWIRP) in Seattle. NWIRP provides direct representation to immigrants who have been placed in deportation/ removal proceedings, as well as those who are seeking legal status and citizenship. Mr. Adams focuses on litigation in the federal courts. Rodriguez-Roman v. INS, 98 F.3d 416, 423 (9th Cir. 1996) (The purpose of the statute, as we stated earlier, is to aid litigants who were confused about the proper forum for review); Lopez v. Heinauer, 332 F.3d 507, 511 (8th Cir. 2003) (The purpose of the transfer statute is to aid parties who might be confused about which court has subject matter jurisdiction . . . .). 2 The transfer statute also may be invoked where an appeal is filed in the wrong court. Britell v. United States, 318 F.3d 70, 76 (1st Cir. 2003) (transferring government appeal erroneously filed with the U.S. Court of Appeals for the First Circuit to the federal circuit to cure lack of jurisdiction). 3 Although the transfer statute does not expressly authorize circuit courts to transfer a district court case to itself, circuit courts have deemed such transfers proper. Lopez, 332 F.3d at 511. See also Paul v. INS, 348 F.3d 43, 4648 (2d Cir. 2003) (Sotomayor, J.) (sua sponte transferring district court case to court of appeals). 4 28 USC 1631 (2006). 5 REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, sec. 106(a)(1)(B) (May 11, 2005).
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with the court of appeals, the court of appeals would find that this condition is satisfied because it has original jurisdiction over final orders of review, not over collateral challenges to immigration detention. For purposes of the transfer statute, at least one court of appeals has held that the court lacks jurisdiction if venue does not lie with that court. 6 The venue provision of the Immigration and Nationality Act, 7 8 USC 1252(b)(2), provides that a petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. 8 If a noncitizen files a petition for review with a circuit court other than the circuit where the immigration judge completed proceedings and the court of appeals treats the venue provision as jurisdictional for purposes of the transfer statute, a court might find that it lacks jurisdiction. For example, if an immigration judge completed proceedings in Texas (which is within the jurisdiction of the U.S. Court of Appeals for the Fifth Circuit) but the noncitizen files a petition for review with the U.S. Court of Appeals for the Ninth Circuit, the Ninth Circuit would find that this condition is satisfied. On the other hand, some courts treat 8 USC 1252(b)(2) as a venue provision, not a jurisdictional one. 9 In at least one of these circuits, a court of appeals held that it need not transfer a habeas appeal that was converted to a petition for review to the circuit where the immigration judge completed proceedings. 10 CONDITION TWO: TRANSFEREE COURT COULD HAVE EXERCISED JURISDICTION AT THE TIME THE ACTION OR APPEAL WAS FILED The second requirementthat the action or appeal could have been brought in the transferee court generally means that the action or appeal must have been timely filed, even if it was brought before the wrong court. Thus, a district court can only transfer a case that should have been filed in the court of appeals if the district court action was filed within 30 days of the final order. 11 Where a district court action was not filed within 30 days of the final order but was filed within 30 days of another event that reactivated or triggered the final order, it might be possible to successfully argue that this requirement has been met. 12 Similarly, the court of appeals can only exercise its authority to sua sponte transfer a case to itself if the district court action was filed within 30 days of the final order. For example, shortly after Congress amended the reinstatement statute, 8 USC 1231(a)(5) in 1996, two petitioners filed habeas corpus petitions seeking review of their final reinstatement orders. 13 The district court exercised jurisdiction. On appeal, the Ninth Circuit concluded that reinstatement orders are reviewable in the court of appeals via petitions for review.
6
See, e.g., Rodriguez-Roman, 98 F.3d at 424 ([F]or purposes of the transfer statute, 28 USC 1631, a court lacks jurisdiction if venue does not lie.); Trejo-Mejia v. Holder, 593 F.3d 913, 915 (9th Cir. 2010). In reaching this conclusion, however, the court noted that it was not deciding whether 1252(b)(2) impacts subject matter jurisdiction. Id. at n.2. 7 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). 8 8 USC 1252(b)(2); see also Galindo-Romero v. Holder, 621 F.3d 924 (9th Cir. 2010) (holding that it lacked jurisdiction to review Board of Immigration Appeals order dismissing appeal where there is no final order of removal). 9 Moreno-Bravo v. Gonzales, 463 F.3d 253, 25862 (2d Cir. 2006); Nwaokolo v. INS, 314 F.3d 303, 306 n.2 (7th Cir. 2002) (per curiam). See also Jama v. Gonzales, 431 F.3d 230, 233 & n.3 (5th Cir. 2005) (per curiam) (referring to venue under 1252(b)(2) as a non-jurisdictional venue issue and citing, with approval, Nwaokolo on this point); Bonhometre v. Gonzales, 414 F.3d 442, 446 n.5 (3d Cir. 2005) (citing, with approval, Nwaokolo on this point). 10 Moreno-Bravo, 463 F.3d at 25862. 11 De Ping Wang v. U.S. Department of Homeland Security (DHS), 484 F.3d 615, 61617 (2d Cir. 2007); Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 54243 (9th Cir. 2004); Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 (10th Cir. 2003); Batista v. Ashcroft, 270 F.3d 8, 12 (1st Cir. 2001). 12 See Castro-Cortez v. INS, 239 F.3d 1037, 1046 n.10 (9th Cir. 2001) (finding that the reactivation of the reinstatement order, not the actual reinstatement order, triggered the petition for review deadline in the case of Petitioner Salinas-Sandoval) abrogated on other grounds by Fernandez-Vargas Gonzales, 548 U.S. 30 (2006). Cf. Villegas De La Paz v. Holder, 614 F.3d 605 (6th Cir. 2010) (finding that court retained jurisdiction because petition was filed within 30 days of service of reinstatement order, even though DHS created and dated the order several months prior to service).
13
Castro-Cortez, 239 F.3d at 104647.

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However, because petitioners habeas corpus petitions were filed within 30 days of their final reinstatement orders, the court transferred the cases to itself and construed them as if they were filed as petitions for review. The court stated that the transfer statute permits us to transfer the cases to this court and consider the petitions as though they had never been filed in the district court. 14 In addition, in cases where there is no final administrative removal order, the courts of appeals lack jurisdiction over a petition for review. 15 Thus, a district court may not transfer a case to the court of appeals unless the district court action challenged a final administrative removal order. 16 Likewise, a court of appeals that receives a petition for review that challenges an action other than a final removal only may transfer the case only if the district court would have jurisdiction. In some cases, assessing whether this condition is met requires the court of appeals to review the district courts jurisdiction, even before the district court has had the opportunity to assess it. For example, in one case, a petitioner filed a petition for review challenging a Board of Immigration Appeals decision to deny an immediate relative visa petition. The U.S. Court of Appeals for the Second Circuit had not yet decided whether such petitions were reviewable in district court action under the Administrative Procedures Act. 17 The court, however, reviewed the question of the district courts jurisdiction over the denial of the immediate relative petition to determine whether petitioner met this condition of the transfer statute. 18 Moreover, at least one court has held that the transferee court must have been able to exercise jurisdiction over the specific type of action or appeal that was brought in the wrong court. 19 The U.S. Court of Appeals for the Fourth Circuit concluded that the district court improperly transferred a habeas corpus petition to the court of appeals because only district courts, the U.S. Supreme Court and a single circuit judge have authority to entertain habeas petitions. Thus, the court held the requirement of 1631, that a case be transferred to a court in which it could have been brought, was not satisfied in that case. To avoid this issue, a petitioner who asks the district court to transfer a habeas petition to the court of appeals may want to specifically request that the district court first construe the habeas corpus petition as a petition for review before ordering transfer. 20 CONDITION THREE: TRANSFER SERVES THE INTERESTS OF JUSTICE The third requirementthat transfer is in the interests of justicealso is fact-based. Some courts have invoked the transfer statute where filing in the wrong court was reasonable due to ambiguity in the law regarding jurisdiction 21 or justifiable reliance on a statute or court decision. 22 Other courts have ordered
14
Id. at 1046.
15
8 USC 1252 governs judicial review of a final order of removal. Section 1101(a)(47) contains a statutory definition of a final removal order.
See Nnadika v. Attorney General, 484 F.3d 626, 632 (3d Cir. 2007) (district court erroneously transferred challenge related to the denial of I-730 asylee relative petition); Nadarajah v. Gonzales, 443 F.3d 1069, 107576 (9th Cir. 2006) (finding that transfer to the court of appeals would have been improper as habeas corpus petitions challenging immigration detention do not involve final orders); Bah v. Mukasey, 521 F.3d 857, 858 (8th Cir. 2008) (no final order meriting transfer to circuit court where BIA vacated previous order of removal and remanded to the immigration judge for further proceedings). 17 Administrative Procedure Act (APA), Pub. L. No. 79-404, 60 Stat. 237, 238; (codified at 5 USC 55159, 70106, 1305, 3105, 3344, 5372, 7521). 18 Ruiz v. Mukasey, 552 F.3d 269, 276 (2d Cir. 2009). See also de Rincon v. Dept of Homeland Sec., 539 F.3d 1133, 114041 (9th Cir. 2008) (addressing district court jurisdiction over expedited removal orders to determine whether requirements of transfer statute met). 19 Dragenice v. Ridge, 389 F.3d 92, 100 (4th Cir. 2004). 20 Accord Amunikoro v. DHS Secretary, 432 F.3d 383, 387 (2d Cir. 2005) (per curiam) (converting habeas appeal to petition for review prior to transferring petition to circuit where immigration proceedings occurred). 21 Matthews v. United States, 810 F.2d 109, 113 (6th Cir. 1987) (ordering transfer where jurisdictional issue had not yet been decided by the circuit court). See Castro-Cortez v. INS, 239 F.3d 1037, 104647 (9th Cir. 2001) (transferring habeas action seeking review of a reinstatement order to court of appeals where petitioners had good reason to believe that direct review was not available and that a habeas corpus petition was their only avenue to secure judicial review).
22
16
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transfer to preserve review that would otherwise be time barred for failure to file a timely petition for review 23 or to prevent undue delay. 24 At least one court has noted that it may consider the absence of bad faith as a factor weighing in favor of transfer. 25 Another court of appeals has held that a district courts failure to evaluate the possibility of transfer warranted remand. 26 A district court order transferring a case to circuit court is generally not considered a final order that can be appealed because the propriety of the transfer can be reviewed by the transferee circuit court. 27 CONCLUSION Pursuant to 28 USC 1631, a court may transfer an action filed in the wrong court to cure a lack of jurisdiction. But as noted, the petitioner must be careful to demonstrate that all three requisite conditions are met, in particular being able to demonstrate that the action was timely filed and that transfer to the correct court should occur in the interests of justice. Whether an action was filed in the wrong court of appeals, or was filed in district court instead of the court of appeals, petitioners have an important tool at their disposal to avoid losing out on what may be the only opportunity to present their claims.
See, e.g., Lopez v. Heinauer, 332 F.3d 507, 51011 (8th Cir. 2003) (transferring habeas action seeking review of a reinstatement order to court of appeals because, without transfer the petitioner will have lost his opportunity to present the merits of the claim due to a statute of limitations bar). 24 Ruiz v. Mukasey, 552 F.3d 269, 276 (2d Cir. 2009) (although Petitioners claims likely would be timely if filed anew in the district court, a transfer would expedite their review, thereby furthering the interest of justice). See also Arevalo v. Ashcroft, 344 F.3d 1, 6 (1st Cir. 2003) (noting district court transfer of habeas action seeking review of a reinstatement order to court of appeals) at 16 (retransferring case to the district court for further proceedings on habeas challenge to detention). 25 Ruiz, 552 F.3d at 276 (the record contains no indication whatsoever that Petitioners acted in bad faith by asserting their claims in this Court instead of in a district court); Puri v. Gonzales, 464 F.3d 1038, 1043 (9th Cir. 2006) (denying transfer where litigant was aware of proper procedure for review, and noting that this case is unlike the usual case in which we have found a transfer to be in the interest of justice because the litigant was unaware of or confused about the proper forum in which to file his action). 26 Trujillo v. Williams, 465 F.3d 1210, 1222 (10th Cir. 2006) (Although both 1406(a) and 1631 contain the word shall, we have interpreted the phrase if it is in the interest of justice to grant the district court discretion in making a decision to transfer an action or instead to dismiss the action without prejudice). 27 Cruz v. Ridge, 383 F.3d 62, 65 (2d Cir. 2004).
23
FEDERAL COURT REVIEW OF DENIAL OF EMPLOYMENT-BASED PETITIONS: WHEN EXHAUSTION IS NOT REQUIRED
by H. Ronald Klasko and Jennifer Hermansky *
Your employment-based nonimmigrant or immigrant petition has been denied. You have a right to appeal to the U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO), but you know two things. The appeal processing time will be very lengthy, and the appeal will likely be unsuccessful. Your best chance of success is in federal court. Can you go directly to federal court and forego the administrative appeal? The answer is maybe. Although the law is undeveloped, there are arguments that the petitioners counsel can make to significantly enhance the chances of a federal court accepting the case rather than dismissing it for failure to exhaust the administrative remedy of an AAO appeal. This practice advisory discusses how best to maximize the chances of surviving the governments motion to dismiss. First, it is important to know the law. Darby v. Cisneros 1 states four requirements that must all be met in order for the petitioner to be exempt from the requirement that all administrative remedies be exhausted: The federal court action must be pursuant to the Administrative Procedure Act (APA). 2 5 USC 702 is the APA section that provides for judicial review for a party who has been adversely affected or aggrieved by agency action; There is no statute that mandates an administrative appeal. In fact, there is no statutory requirement for an AAO appeal. Jurisdiction for AAO appeals is found in the regulations, which allows the AAO to hear appeals on denials or revocations of employment-based immigrant or special immigrant petitions, denials or revocations of nonimmigrant petitions, denials of waivers of inadmissibility, and denials of re-entry permits or refugee travel documents, among several other categories of appeals; Either there is no regulation that mandates an administrative appeal or, if there is such a regulation, it does not stay the agency decision pending the administrative appeal. This must be examined separately for each regulatory section and for each type of petition; and The adverse agency decision is final for purposes of the APA. Generally, a denial of an employment-based petition is final unless an appeal has been initiated and is pending. If all of these criteria are met, there is no jurisdictional bar to the federal court accepting jurisdiction. The government, however, may argue that as a matter of judicial discretion, the court should dismiss the case for failure to exhaust administrative remedies. Counsel should argue that Darby prohibits the court from declining to accept jurisdiction if the federal court action is pursuant to the APA and there is no statutory or regulatory requirement to exhaust all administrative remedies. 3
H. Ronald Klasko is the managing partner of Klasko, Rulon, Stock & Seltzer, LLP. He is a former president of AILA and served for three years as AILAs general counsel. He is currently the chair of the AILA EB-5 Committee, and he is a past chair of AILAs Business Immigration Committee, Department of Labor National Liaison Committee, and its Task Force on H and L Visas. Jennifer Hermansky is an associate with Klasko, Rulon, Stock & Seltzer, LLP. 1 Darby v. Cisneros, 509 U.S. 137 (1993). 2 Administrative Procedure Act (APA), Pub. L. No. 79-404, 60 Stat. 237, 238; (codified at 5 USC 55159, 70106, 1305, 3105, 3344, 5372, 7521).
In fact, the U.S. Supreme Court in Darby states that, While federal courts may be free to apply, where appropriate, other prudential doctrines of judicial administration to limit the scope and timing of judicial review, 10(c) [of the APA], by its very terms, has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates. Id. at 146.
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FEDERAL COURT REVIEW OF DENIAL OF EMPLOYMENT-BASED PETITIONS
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Despite the Darby decision, a federal court still may dismiss the case under a judicially-created and discretionarily applied concept of exhaustion of administrative remedies. Various reasons have been given for the judicially-created requirement to exhaust administrative remedies prior to seeking federal court review. At the same time, various judicially created exceptions to the requirement to exhaust administrative remedies also have been created. Petitioners counsel would be well advised to explain to the court why the judiciallycreated reasons for exhaustion do not apply and why the exceptions to the requirement to exhaust do apply. The following have been cited by various courts both inside and outside the field of immigration to justify dismissing a federal court action for failure to exhaust an administrative remedy: Give the agency an opportunity to correct its mistake before the federal court does so; Promote judicial efficiency and economy; Prohibit premature judicial interference with an agencys interpretive process; Get the benefit of an agencys practical expertise; Develop a factual record that will facilitate later judicial review; and Protect administrative agency authority in the substantive area. All of these factors are balanced against the petitioners interest in immediate judicial review. So what arguments should the petitioners counsel make to the district court judge to enhance the chances that the judge will accept jurisdiction even though the petitioner has chosen not to seek a non-mandatory AAO appeal? Petitioners counsel should consider making the following arguments, where applicable: 1. The factual record has been fully developed, and no evidentiary disputes remain. The only issue is a legal issue. No new evidence can be developed during the administrative appeal. 2. An administrative appeal would be futile. For example, if there is a precedent AAO decision directly on point, there is no genuine doubt regarding the result. If many AAO appeals have already decided the legal issue in other cases, the result is preordained; and the appeal is futile. 3. The AAO does not have the power to resolve the particular issue involved in the litigation. For example, if the litigation is challenging a regulation as ultra vires, the AAO does not have the power to overturn the regulation. 4. If an appeal would involve excessive delay, which would cause irreparable harm to the petitioner, exhaustion may be inappropriate. For example, an appeal involving an H-1B petition may be moot because the petition validity, and the labor condition application, may expire before an appeal is decided at the AAO. Similarly, a challenge to a Diversity Visa lottery application may be moot if not resolved by September 30. The various federal courts outside of the immigration context have found exhaustion of administrative remedies to be unnecessary where the administrative appeal involves an unreasonable or indefinite timeframe. Importantly, many AAO appeals take more than two years under current processing times. 5. If the administrative agency can be shown to be biased against the petitioner, exhaustion may be inappropriate. 4 6. If the government has failed to comply with its own procedures, a federal court may consider accepting jurisdiction. For example, consider the Department of Labor regulation requiring that the certifying officer send a denied labor certification application to the Board of Alien Labor Certification Appeals
One federal court has found that the Administrative Appeals Office (AAO) is not biased because it is not bound by prior legacy Immigration and Naturalization Service (INS) decisions, has the power to overrule legacy INS decisions and can create binding precedent. Mercy Catholic Medical Ctr. v. Reno, 1994 U.S. Dist. LEXIS 17743 (EDPA 1994). However, federal courts have found other administrative agencies to be biased in decisions. See e.g., Association of National Advertisers, Inc. v. FTC, 627 F.2d 1151, 115657 (1979) (bias of Federal Trade Commission chairman), cert. denied, 447 U.S. 921 (1980). This is a fact specific inquiry that counsel should make based on the record before the Service. The bias argument is often coupled with the argument that the legal argument is preordained before the AAO because of precedent decisions on point.
4
452
(BALCA) immediately. If many months have passed and the certifying officer has still not sent the appeal to BALCA, a federal court might consider dispensing with the requirement of exhaustion of the BALCA appeal remedy. Case law involving failure to exhaust the remedy of an AAO appeal is scarce. Referencing 8 Code of Federal Regulations (CFR) 103.4(a)(1), which states that a case may be certified to the AAO, the U.S. District Court for the District of Columbia held that an AAO appeal of the denial of an H-1B is not mandatory under the regulations and accepted jurisdiction. 5 Likewise, the U.S. District Court for the District of Massachusetts agreed to hear the appeal of a denial of an L-1A petition that was not appealed to the AAO following a finding that such an appeal was not mandatory. 6 In each of these cases, the district courts analyzed the exhaustion requirement under the Darby 7 standard to determine if an appeal to the AAO was made mandatory either by statute or the regulations. The judiciallycreated and discretionarily-applied concept of exhaustion of administrative remedies was not at issue in these cases. 8 Instead, the courts focused on the language may appeal in 8 CFR 103.3 and 103.4 to hold that an appeal under the agencys rules was not required. Counsel should take note that other regulations follow this same language. The regulations for H, L, O, P, R nonimmigrants all use the permissive language that denials or revocations may be appealed to the AAO. 9 For immigrant petition denials, the regulation at 8 CFR 204.5(n)(2) provides that denials shall be appealable to the AAO, thus instructing that petitioners may file an appeal under 8 CFR 103.3. Likewise, appeals of waivers of inadmissibility under Immigration and Nationality Act (INA) 212(h) or (i) and/or INA 212(a)(9)(B) shall be appealable to the AAO under 8 CFR 212.7(a)(3) and may be appealed under 8 CFR 103.3. Counsel should cite to all available permissive language in the complaint and when responding to a motion to dismiss to prove that an AAO appeal is not required by the agencys regulations, and therefore the court must accept jurisdiction under Darby. Multiple cases also have held that the potential remedy of a motion to reopen is not a remedy that must be exhausted. 10 These courts have determined that motions to reopen are discretionary decisions and are not an appeal of right that can be considered an adequate administrative remedy. If counsel will be requesting direct judicial review in a case where an administrative appeal is available but not mandatory, the authors suggest based on experience that counsel keep in mind that a federal court judge is generally not applying any of these judicially-created concepts in isolation. Especially where exhaustion may be an issue, counsel should tell a detailed story in the complaint that would help convince a federal court judge that equity is on the side of accepting jurisdiction over the case and that justice would not be done by dismissing the case. In the end, counsel must walk a tightrope in recommending a course of action to a client and ultimately choosing whether to forego an available administrative appeal. The risks are high. Counsel will not know in advance whether the federal court judge will or will not accept jurisdiction. By the time he finds out that a judge does not accept jurisdiction, the appeal period will have expired. The client must be made to understand this risk, which must be balanced against the feasibility that an administrative appeal may accomplish the desired result. Certainly in some cases, the client may decide that, by the time the AAO gets around to
RCM Technologies, Inc. v. U.S. Department of Homeland Security (DHS), 614 F. Supp. 2d 39, 45 (D.D.C. 2009). It should be noted that DHS conceded during the hearing on the motion for preliminary injunction that an appeal of an H-1B petition to the AAO is discretionary under the regulations. Id. at 45 (as defendants pointed out at the motions hearing, appeals to the AAO are discretionary [under 8 CFR 103.4(a)(1)]. 6 Olamide Olorunniyo Ore v. Clinton, 675 F. Supp. 2d 217, 223-24 (D.Mass 2009). See also EG Enterprises, Inc. v. DHS, 467 F. Supp. 2d 728, 73233 (E.D. Mich 2006). 7 Darby v. Cisneros, 509 U.S. 137 (1993). 8 However, counsel should be prepared to argue why the judicially created reasons for exhaustion do not apply should the government raise those issues in a motion to dismiss. 9 See 8 CFR 214.2(h)(12); (l)(10); (o)(9); (p)(11); and (r)(17). 10 See, e.g., Louis-Martin v. Ridge, 322 F.Supp.2d 556, 55859 (M.D.Pa. 2004); Zhang v. Reno, 27 F. Supp. 2d 476, 477 (S.D.N.Y. 1998).
FEDERAL COURT REVIEW OF DENIAL OF EMPLOYMENT-BASED PETITIONS
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making a decision, the need for the beneficiary of the petition may be long gone. In those cases, and others, the risk of seeking direct federal court review may be one worth taking. Unfortunately, it is not possible for counsel and the petitioner to hedge their bets. Once an appeal is filed and pending, there is almost no chance that a federal court will exercise jurisdiction. In such a case, counsel risks denial of the federal court action not only for reason of failure to exhaust the administrative remedy but also because the pending appeal renders the administrative decision to be a non-final order. 11 Given the current trends of restrictive adjudications in employment-based immigrant and nonimmigrant petitions, the lengthening of the AAO appeal processing time, and the increasing number rubber of stamped denials, counsel needs to include the possibility of direct federal court review in his arsenal of possible options. However, in doing so, counsel must be aware of the risks, the likely government defenses, and how best to maximize the chances that the federal court will agree to hear the appeal. Hopefully, this practice pointer will be helpful in providing counsel with some strategies for maximizing the chances of being successful in pursuing that strategy.
See e.g., Ma v. Reno, 114 F.3d 128, 13031 (9th Cir. 1997); Acura of Bellevue v. Reich, 90 F.3d 1403, 140708 (9th Cir. 1996).
11
HOW TO FILE PETITIONS FOR REHEARING, REHEARING EN BANC, AND HEARING EN BANC IN AN IMMIGRATION CASE
by Beth Werlin *
After a U.S. Court of Appeals renders a decision, the parties may ask the court to reconsider its decision by filing a petition for rehearing. 1 Parties can seek panel rehearing, rehearing en banc, or both panel and en banc rehearing. Panel rehearing means that only the panel of three judges that issued the original decision reconsiders the case. Rehearing en banc means that the full court (or an en banc panel) reconsiders the case. In addition, the parties may petition for initial hearing en banc (that is, before the panel has made a decision) as long as the petition is filed before the appellees brief is due. 2 It is important to note that the courts only rarely rehear cases and/or undertake en banc review. STANDARDS AND INITIAL CONSIDERATIONS Standards for En Banc Review and Panel Rehearing The courts will consider a case en banc only when: It is necessary to secure or maintain uniformity of the courts decisions. This means that the courts decision conflicts with a decision of the U.S. Supreme Court or there is an intra-circuit conflict; or The case involves a question of exceptional importance. As an example, a case may present a question of exceptional importance where there is an inter-circuit conflict. 3 The standard for when a panel may rehear a case is less stringent. The rules indicate that panel rehearing may be appropriate where the panel has overlooked or misapprehended points of law and/or fact. 4 Should My Client Seek Rehearing En Banc? When advising your client about whether to seek rehearing en banc, consider that the chances of success are very slim. The Courts of Appeals only grant rehearing en banc petitions in a very small number of cases. In FY 2010, several thousand petitions were filed, but the courts issued only 44 en banc decisions. Of these 44, most were not immigration-related cases. Despite the small number of cases, a review of the immigration cases that the courts have considered en banc offers insight into the types of cases the courts are more likely to hear en banc and provides guidance in drafting a petition. There is an intra-circuit conflict. Many of the cases heard en banc involve intra-circuit conflicts, i.e., where panels within the circuit have reached contrary results or adopted irreconcilable positions. 5 (Although unpublished decisions are not binding, they may demonstrate that en banc review is needed to ensure uniformity within the circuit. 6 ).
*
Beth Werlin is the deputy director of the American Immigration Councils (AIC) Legal Action Center. She has represented plaintiffs and amicus curiae in immigration litigation in the federal courts and before the Board of Immigration Appeals. She also has authored numerous practice advisories and managed the Legal Action Centers Litigation Clearinghouse. Ms. Werlin first joined the AIC (formerly AILF) as a NAPIL Fellow in 2001. Prior to that, she served as a judicial law clerk at the Boston immigration court. 1 See Fed. R. App. P. 35, 40. 2 Fed. R. App. P. 35(c). 3 Fed. R. App. P. 35(a). 4 Fed. R. App. P. 40(a)(2). 5 See, e.g., Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393 (5th Cir. 2010); Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009). 6 See Fed. R. App. P. 32.1 and local rules regarding citation of unpublished decisions.
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HOW TO FILE PETITIONS FOR REHEARING, REHEARING EN BANC, AND HEARING EN BANC
455
There was a dissent or a concurrence in the underlying opinion. In recent years, most of the immigrationrelated en banc decisions involve situations where there was a divided panel below. 7 Not only does a dissent or concurrence indicate that one or more of the judges may be predisposed to rehearing the case, but a strong, well-reasoned dissent or concurrence may help persuade other judges in the circuit that the panel reached the wrong result and that rehearing en banc is needed. There is an inter-circuit conflict. Some of the cases heard en banc involve inter-circuit conflicts, i.e., where another circuit has reached contrary results or adopted irreconcilable positions. 8 Just as a strong, well-reasoned dissent or concurrence may be persuasive, strong decisions from other circuits may influence the courts decision whether to hear a case en banc. The case involves a legal issue. The courts generally only hear cases en banc to resolve legal issues. 9 In addition, typically, the legal issue is one that is recurring and, thus, impacts a large number of people. To the extent you can show that the issue has a significant effect, this may support your petition. In addition to assessing the strength of the petition, there are practical considerations to take into account: What are the financial costs of litigating the petition? Can your client afford these costs? Do you have the time and resources necessary to litigate the petition for rehearing? Are there reasons why your client would not want to prolong litigation? Is your client detained? If so, will he or she likely remain detained while a petition is pending? Are there additional benefits to staying the mandate? (The filing of a petition for rehearing stays the mandate. 10 ). Should My Client Seek Initial Hearing En Banc? As with rehearing petitions, the courts rarely grant petitions for initial hearing en banc. In fact, none of the immigration cases the courts heard en banc over the last few years involved initial hearing en banc. Nonetheless, there are certain situations where it may be advisable to seek initial hearing en banc. In addition to the questions presented above, you may want to consider: Are you presenting an argument that arguably conflicts with a precedent decision in the circuit? The general rule is that panels are bound by prior precedent decisions directly on point and only an en banc decision can overrule a precedent (prior panel precedent rule). 11 Therefore, you may be in a situation where you will be able to obtain a favorable decision only by seeking en banc review. Importantly, there are exceptions to the prior panel precedent rule: A panel decision may be undermined by controlling authority, subsequently announced, such as the opinion of the U.S. Supreme Court, an en banc opinion of the circuit court, or a statutory overruling.
See, e.g., Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009); Aronov v. Napolitano, 562 F.3d 84 (1st Cir. 2009); Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009); Lin Zheng v. Atty. Gen. 557 F.3d 147 (3d Cir. 2009); Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008); Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008). 8 See, e.g., Lin Zheng v. Atty. Gen. 557 F.3d 147 (3d Cir. 2009); Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009). 9 See, e.g., Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (eligibility for 212(c) waiver); Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (courts jurisdiction). 10 Fed. R. App. P. 41(d)(1). 11 See, e.g., Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 160 (1st Cir. 2004); Zervos v. Verizon New York, Inc., 252 F.3d 163, 17172 (2d Cir. 2001); Reich v. D.M. Sabia Company, 90 F.3d 854, 855 n.2, 858 (3d Cir. 1996); Loudon Leasing Dev. Co. v. Ford Motor Credit Co., 128 F.3d 203, 206 n.1 (4th Cir. 1997); FDIC v. Abraham, 137 F.3d 264, 26869 (5th Cir. 1998); Sam & Ali, Inc. v. Ohio Dept of Liquor Control, 158 F.3d 397, 405 (6th Cir. 1998); United States v. Mosby, 101 F.3d 1278, 1279 n.3 (8th Cir. 1996); United States IRS v. Osborne, 76 F.3d 306, 309 (9th Cir. 1996); United States v. Meyers, 200 F.3d 715, 72021 (10th Cir. 2000); United States v. Steele, 147 F.3d 1316, 131718 (11th Cir. 1998).
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A panel decision may be undermined by an authority postdating the original decision that, although not directly controlling, nevertheless offers a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind. 12 In cases where there are arguments that either a prior precedent is not on point or an exception to the prior panel precedent rule applies, petitioners may prefer to have the case decided by a panel. If the panel reaches an adverse decision, and/or finds that prior precedent applies, the petitioner still has the option of seeking rehearing en banc. Have various panels in your circuit reached contradictory results in cases similar to your case? Although unpublished decisions are not binding, they may demonstrate that en banc review is needed to ensure uniformity within the circuit. Panel Rehearing vs. Rehearing En Banc In most cases, a party seeking rehearing will petition for both panel rehearing and rehearing en banc. Many of the circuits permit or require the petitioner to file the en banc petition in the same document entitled Petition for Rehearing or Rehearing En Banc. Some courts automatically treat a petition for rehearing en banc as a petition for panel rehearing, even if the petitioner does not expressly seek panel rehearing. However, there may be situations where a party would prefer to petition for panel rehearing only. In determining whether panel rehearing is the best option in your case, it is important to know the courts history and the judges on your panel. Consider whether your case would fare better before the panel than the other judges in the court. For example, in cases where the panel overlooked an important fact, it may be advisable to seek only panel rehearing if the panel is good and the case is in a circuit that rarely rules in favor of noncitizens. PETITION REQUIREMENTS The petition requirements described below are governed by the Federal Rules of Appellate Procedure (FRAP). The courts, however, have adopted local rules regarding petitions for rehearing, rehearing en banc, and hearing en banc, so be sure to consult with the local rules, as well as FRAP. The courts post their local rules on their web pages. Panel RehearingFRAP 40 and Local Rules Standards and Contents Petitions for panel rehearing must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. 13 Filing Deadline Although the general rule is that petitions for rehearing must be filed within 14 days after the entry of judgment, in cases where the United States or its officer or agency is a party, petitions may be filed within 45 days after entry of a judgment. 14 Thus, in immigration cases, where the government is always a party, petitions for rehearing must be filed within 45 days after entry of the judgment. A petition is deemed to be
Williams v. Ashland Engg Co., 45 F.3d 588, 592 (1st Cir. 1995). See also Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, panel is bound by the later and controlling authority); FDIC v. Abraham, 137 F.3d 264, 269 n.19 (5th Cir. 1998) (panel required to follow prior panels interpretation of state law unless a subsequent state court decision makes the prior panels decision clearly wrong); Reich v. D.M. Sabia Company, 90 F.3d 854, 858 (3d Cir. 1996) (panel can reevaluate prior panel precedent in light of intervening authority and amendments to statutes or regulations); Landreth v. Commr of Internal Revenue Serv., 859 F.2d 643, 648 (9th Cir. 1988) (same). But see Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (rejecting any exception to the prior panel precedent rule based upon a perceived defect in the prior panels reasoning or analysis as it relates to the law in existence at that time). 13 Fed. R. App. P. 40(a)(2). 14 Fed. R. App. P. 40(a)(1).
12
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filed on the date on which the circuit court receives the petition, not on the date which it is mailed. 15 Petitioners may move for extensions of time in which to file a petition. 16 The parties may file petitions for rehearing even if the person has been deported or departed voluntarily. Length A petition for rehearing must not exceed 15 pages unless the petitioner receives the courts permission or a local rule provides otherwise. 17 Many courts have adopted alternative length limitations based on the word count. If a party files a petition for panel rehearing and a petition for rehearing en banc, even if they are filed separately, the court considers them one document for the purpose of the petition length, unless the local rules require separate filing. 18 Number of Copies Copies of a petition for rehearing must be served and filed pursuant to FRAP 31. 19 Rule 31 prescribes that 25 copies of each petition must be filed with the clerk and two copies served on each unrepresented party and on counsel for each separately represented party. However, most courts have local rules that specify different numbers of copies. In addition, the courts generally require electronic filing under FRAP 25(a)(2)(D), so be sure to consult local rules regarding this requirement. Cover and Binding A petition for rehearing does not need a cover as long as the caption and signature page contains the information specified in FRAP 32(a)(2). 20 The petition may be bound using any method as long as the brief is secure, the binding does not obscure the text, and the brief lies reasonably flat when open. 21 Petitions for rehearing typically are not bound like briefs, but are stapled in the upper left-hand corner. Answer Under FRAP 40(a)(3), no party may respond to a petition for rehearing unless the court requests a response. But ordinarily rehearing will not be granted in the absence of such a request. 22 This means that the party who won the panel decision does not have an automatic opportunity to respond, but the court will ordinarily not grant the petition for rehearing without asking for a response. Action by the Court Under FRAP 40(a)(4), if the court grants a petition, it may: make a final determination on the case without re-argument; order that the case be re-argued or resubmitted; or issue any other appropriate order. Rehearing En BancFRAP 35 and Local Rules Standards and Contents Petitions for rehearing en banc will only be granted when it is necessary to secure or maintain uniformity of the courts decisions or when the case involves a question of exceptional importance. 23 The petition must begin with a statement that either:
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Fed. R. App. P. 25(a)(2)(A). Fed. R. App. P. 26(b); 40(a)(1). 17 Fed. R. App. P. 40(b). 18 Fed. R. App. P. 35(b)(3). 19 Fed. R. App. P. 40(b). 20 Fed. R. App. P. 32(c)(2); 40(b). 21 Fed. R. App. P. 32(a)(3). 22 Fed. R. App. P. 40(a)(3). 23 Fed. R. App. P. 35(a).
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the panel decision conflicts with a decision of the U.S. Supreme Court or of the court to which the petition is filed (with citation(s) to the conflicting case(s)) and consideration by the full court is necessary to ensure the uniformity of the courts decisions; or the proceeding involves at least one question of exceptional importance, which must be succinctly stated. (An example of a question of exceptional importance may be an issue on which the panel decision is inconsistent with the binding decisions of other circuit courts that have ruled on the issue.). 24 Some circuit courts will automatically treat a petition for rehearing en banc as a petition for panel rehearing as well, even if not specified. Many circuit courts permit or require the petitioner to file a petition for rehearing and rehearing en banc in one document. At least one court, the Fifth Circuit, requires separate petitions for rehearing and petitions for rehearing en banc. Be sure to consult local rules. Filing Deadline Although the general rule is that petitions for rehearing en banc must be filed within 14 days after the entry of judgment, in cases where the United States or its officer or agency is a party, petitions may be filed within 45 days after entry of a judgment. 25 Thus, in immigration cases, where the government is always a party, petitions for rehearing en banc must be filed within 45 days after entry of the judgment. A petition is deemed to be filed on the date on which the circuit court receives the petition, not on the date which it is mailed. 26 Petitioners may move for extensions of time in which to file a petition. 27 The parties may file petitions for rehearing en banc even if the person has been deported or departed voluntarily. Length of Petition A petition for rehearing en banc must not exceed 15 pages unless the petitioner receives the courts permission or a local rule provides otherwise. 28 Many courts have adopted alternative length limitations based on the word count. If a party files a petition for panel rehearing and a petition for rehearing en banc, even if they are filed separately, the court considers them one document for the purpose of the petition length, unless the local rules require separate filing. 29 Number of Copies Each Court of Appeals must prescribe the number of copies of a petition for rehearing en banc. 30 In addition, the courts generally require electronic filing under FRAP 25(a)(2)(D), so be sure to consult local rules regarding this requirement. Cover and Binding A petition for rehearing en banc does not need a cover as long as the caption and signature page contains the information specified in FRAP 32(a)(2). 31 The petition may be bound using any method as long as the brief is secure, the binding does not obscure the text, and the brief lies reasonably flat when open. 32 Petitions for rehearing en banc typically are not bound like briefs, but are stapled in the upper left-hand corner.
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Fed. R. App. P. 35(b). Fed. R. App. P. 35(c); 40(a)(1). 26 Fed. R. App. P. 25(a)(2)(A). 27 Fed. R. App. P. 26(b). 28 Fed. R. App. P. 35(b)(2). 29 Fed. R. App. P. 35(b)(3). 30 Fed. R. App. P. 35(d). 31 Fed. R. App. P. 32(c)(2). 32 Fed. R. App. P. 32(a)(3).
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Response No response may be filed unless the court requests a response. 33 This means that the party who won the panel decision does not have an automatic opportunity to respond, but the court often will ask for a response if it is seriously considering the petition for rehearing. Call for a Vote The court will hear a case en banc where the majority of the circuit judges who are in regular active service and who are not disqualified vote to hear the case. 34 However, [a] vote need not be taken to determine whether the case will be reheard en banc unless a judge calls for a vote. 35 Hearing En BancFRAP 35 and Local Rules Standards and Contents Petitions for hearing en banc will only be granted when it is necessary to secure or maintain uniformity of the courts decisions or when the case involves a question of exceptional importance. 36 The petition must begin with a statement that either: the panel decision conflicts with a decision of the U.S. Supreme Court or of the court to which the petition is filed (with citation(s) to the conflicting case(s)) and consideration by the full court is necessary to ensure the uniformity of the courts decisions; or the proceeding involves at least one question of exceptional importance, which must be succinctly stated. (An example of a question of exceptional importance may be an issue on which the panel decision is inconsistent with the binding decisions of other circuit courts that have ruled on the issue.). 37 Filing Deadline A petition for hearing en banc must be filed by the date when the appellees brief is due. 38 A petition is deemed to be filed on the date on which the circuit court receives the petition, not on the date which it is mailed. 39 Nothing in this rule affects the briefing schedule set by the court. Length of Petition A petition for hearing en banc must not exceed 15 pages unless the petitioner receives the courts permission or a local rule provides otherwise. 40 Many courts have adopted alternative length limitations based on the word count. Number of Copies Each Court of Appeals shall prescribe the number of copies of a petition for hearing en banc. 41 In addition, the courts generally require electronic filing under FRAP 25(a)(2)(D), so be sure to consult local rules regarding this requirement.
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Fed. R. App. P. 35(e). Fed. R. App. P. 35(a). 35 Fed. R. App. P. 35(f). 36 Fed. R. App. P. 35(a). 37 Fed. R. App. P. 35(b). 38 Fed. R. App. P. 35(c). 39 Fed. R. App. P. 25(a)(2)(A). 40 Fed. R. App. P. 35(b)(2). 41 Fed. R. App. P. 35(d).
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Cover and Binding A petition for hearing en banc does not need a cover as long as the caption and signature page contains the information specified in FRAP 32(a)(2). 42 The petition may be bound using any method as long as the brief is secure, the binding does not obscure the text, and the brief lies reasonably flat when open. 43 Response No response may be filed unless the court requests a response. 44 Call for a Vote The court will hear a case en banc where the majority of the circuit judges who are in regular active service and who are not disqualified vote to hear the case. 45 However, [a] vote need not be taken to determine whether the case will be reheard en banc unless a judge calls for a vote. 46 STAY OF THE MANDATE The timely filing of a petition for rehearing or rehearing en banc stays the mandate until the court decides the motion, unless the court orders otherwise. 47 Although the stay of the mandate does not automatically stay a persons removal from the United States, if the court already granted a stay of removal, the stay of removal remains intact until the court issues the mandate. 48
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Fed. R. App. P. 32(c)(2). Fed. R. App. P. 32(a)(3). 44 Fed. R. App. P. 35(e). 45 Fed. R. App. P. 35(a). 46 Fed. R. App. P. 35(f). 47 Fed. R. App. P. 41(d)(1). 48 See, e.g., Rife v. Ashcroft, 374 F.3d 606, 617 (8th Cir. 2004); Nwakanma v. Ashcroft, 352 F.3d 325, 328 (6th Cir. 2003).
CANCELLATION OF REMOVAL: HOT TOPICS AND COMING TRENDS

by R. Linus Chan, Melanie K. Corrin, and Ilana Etkin Greenstein *
Cancellation of removal is a vast topic, involving four different forms of relief from removal, each with its own elements, standards and bars. In this advisory, we touch on three specific issues that have been the source of recent litigation in the cancellation context: the stop-time rule, good moral character, and prosecutorial discretion. THE STOP-TIME RULE: HOW TO MEASURE TIME WHEN DECIDING ELIGIBILITY FOR CANCELLATION OF REMOVAL UNDER INA 240A As with nearly every topic in immigration law an examination of the statutory language is the starting point to understanding the stop-time rule. The Rule in Its Entirety: (1) Termination of Continuous PeriodFor purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in 1182(a)(2) of this title that renders the alien inadmissible to the United States under 1182(a)(2) or removable from the United States under 1227(a)(2) or 1227(a)(4), whichever is earliest. 1 Background The stop-time rule was part of the overhaul of immigration law during Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) 2 and was introduced at the same time that Congress overhauled previous immigration remedies such as suspension and INA 212(c) relief, and introduced Cancellation of Removal under INA 240A. While suspension of deportation had a similar seven-year physical presence requirement, 3 prior to IIRAIRA, a respondent could continue to accrue physical presence
R. Linus Chan a 2002 graduate of Northwestern Law School, has practiced immigration law exclusively since 2004. He was the senior staff attorney at the National Immigrant Justice Centers Detention (NIJC) project until 2007. At NIJC, he represented detained clients in removal hearings, habeas proceedings, and in federal court. In 2008, he joined the DePaul Asylum and Immigration Law Clinic as a staff attorney and clinical instructor. He works with a variety of community organizations, providing legal technical advice, community education, and training. He also continues to represent clients before U.S. Citizenship and Immigration Services (USCIS), and in removal proceedings. Melanie K. Corrin focuses on family-based immigration and representation of foreign nationals in detention and removal proceedings. She graduated from New England School of Law in 2002, where she was a senior editor of the New England Journal of International & Comparative Law, and completed her undergraduate work at the University of Central Florida. She is admitted to the Colorado State Bar and the U.S. Court of Appeals for the Tenth Circuit, and has served on the AILA Colorado Chapter Executive Committee for three years. Ilana Etkin Greenstein practices in Boston, focusing on removal defense and appellate litigation. She appears regularly before the nations federal courts, the Board of Immigration Appeals, and the immigration courts. Ms. Greenstein holds a J.D. from Northeastern University School of Law, and a B.A. in Spanish and International Studies from Macalester College. She served on the board of directors of the Massachusetts Chapter of the National Lawyers Guild (19962002 and 200910), is an adjunct faculty member at Northeastern University School of Law, and is frequently called upon to present at professional seminars and conferences. 1 INA 240A(d)(1). 2 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009. 3 INA 244(e).
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even after an order to show cause was issued. Congress decided to end that practice and introduced the stop time rule. 4 What Does the Stop-Time Rule Pertain to? By the plain language of the statute, the stop time rule is limited to the relief described in INA 240A, namely, cancellation of removal for lawful permanent residents 5 , cancellation of removal for certain nonpermanent residents 6 , and finally cancellation of removal for battered spouses or children of LPRs or U.S. citizens. However, because IIRAIRA sec. 309(c)(5) is retroactive, the rule also applies to the prior suspension of deportation form of relief. What Can Stop the Accrual of Physical Residence or Physical Presences? The stop-time rule describes two separate events that can terminate the accrual of physical residence/presence. The first is by serving a Notice to Appear (NTA), and the second is by committing a crime described in INA 212(a) that either renders someone inadmissible under 212(a) or deportable under 237(a)(2), or (a)(4). Service of the NTA Serving the NTA stops the accrual of physical presence/residence only for cancellation for LPRs and cancellation for nonpermanent residents under 240A(b)(1) (commonly referred to as LPR and non-LPR cancellation, respectively); a respondent who is eligible for cancellation under 240A(b)(2) for battered spouses or children (Violence Against Women Act (VAWA) cancellation) can continue to accrue the required three years of physical presence even after having been served with the NTA. 7 The three-years requirementas with the old suspension reliefonly stops with the filing of the application for relief. For lawful permanent resident (LPR) and non-LPR cancellation, however, it is service of the NTA, not the date of filing with the court, which stops the accrual of time. Thus, one who is served with an NTA three days before accruing the requisite continuous physical presence, but whose charging document was not filed with the court for another four weeks would still be precluded from establishing statutory eligibility. Actual Service Is Required, Filing the NTA or Merely Receiving the NTA that Does Not Fulfill the Service Requirements Under Regulations Is Not Sufficient to Terminate Physical Presence The service provisions are governed by INA 239(a), which allow for both personal service and service by mail to the address provided by the respondent. However, the regulations also make clear that service of the NTA to minors under the age of 14, requires that the NTA be given to the guardian, near relative or the person who the minor resides with. 8 In such cases where there has been improper service to minors under the age of 14, the NTA would not terminate physical presence. 9 And in the Ninth Circuit, service of an NTA for a juvenile that wasnt given to the adult who the juvenile was released to, may also not terminate physical presence. 10
4 5
INA 240A(d)(1), See IIRAIRA sec. 309(c)(5), 110 Stat. at 3009-627, and NACARA sec. 203(a), 111 Stat. at 2196. INA 240A(a). 6 INA 240A(b)(1). 7 INA 240A(b)(2)(A)(III)(ii). 8 8 CFR 103.5a(c)(2)(ii) (2002). Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002) (finding that termination of removal proceedings was proper when NTA was given to an uncle rather than to the minors parents). See also, Llapa-sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008) (discussing applicability of 8 CFR 103.5a(c)(2)(ii) on whether the stop-time rule applied to a suspension of deportation case). 10 Flores-Chavez v. Ashcroft 362 F.3d 1150 (C.A.9, 2004); but see, Llapa-sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008); Lopez-Dubon v. Holder, 609 F.3d 642 (5th Cir. 2010)
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Does This Mean That the BIAs Case on Rebutting the Receipt of NTA Despite Mailing, Could Apply to Prevent the Termination of Physical Presence? It is not clear whether Matter of CRC, 24 I&N Dec 677 (BIA 2008) and Matter of MRA, 24 I&N Dec 665 (BIA 2008) could apply to prevent the termination of physical presence. While the cases outline how to rebut the presumption, even after proper mailing of the NTA, of the receipt of the NTA required to prevent reopening an in absentia order, it is not clear whether rebutting the presumption of notice, also can serve to prevent the termination of physical presence. Reopening in absentia orders can be accomplished by showing nonreceipt and is not reliant on service, but rather receipt and notice. However, due process may require that a respondent be given notice before they can have their physical presence terminated. 11 What If the NTA Doesnt Include a Time or Place, Would It Still Terminate Physical Presence? At least one circuit court has ruled that such NTAs, even if the court only subsequently provides the date and place of the hearing, would still operate to terminate the accrual of continuous physical presence. 12 Could Physical Presence Restart After the Issuance of the NTA? The BIA ruled that once the NTA has been served, the respondent may not restart accruing physical presence. 13 While these cases were decided in reference to the stop time rules transition application to suspension, the language the BIA used does not differ from the current rule. Moreover, administrative closure does not terminate proceedings which would allow the clock to restart. 14 However, the NTA must be served for the current proceeding, time is not stopped for an NTA filed for a prior proceeding where the respondent was deported and then returned to the United States. 15 The NTA from the first proceeding does not prevent him from gaining additional physical presence after his deportation in order to gain enough physical presence for 240A(b)(a) cancellation. It is of note that the second entry was not lawful. Criminal Convictions The other event that stops time is the commission of a crime referenced in 212(a)(2) that render someone inadmissible/deportable. Does This Apply to Criminal Activity That Occurred Prior to the Passage of IIRAIRA? Unless you are in the Ninth Circuit, criminal activity that occurs prior to the passage of IIRAIRA, does in fact terminate physical presence. 16 It must be noted that even in the Ninth Circuit commission of a crime prior to IIRAIRA could still stop time if the person would not have been eligible relief prior to the passage of IIRAIRA itself. 17 What Crimes Terminate Physical Presence? Only crimes that are referenced under INA 212(a)(2) are able to stop time. Crimes that are only referenced under INA 237(a)(2) or 237(a)(4) do not affect the stop-time rule. 18 Only crimes referenced under INA 212(a)(2) are able to stop time and prevent accrual of physical presence. The best examples of crimes that are in 237(a)(2) but not in 212(a)(2) are crimes involving firearms, and the domestic violence
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INA 240A(a)(2). Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006). 13 Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000); Najjar v. Ashcroft 257 F.3d 1262 (C.A.11, 2001). 14 Arca-Pineda v. Attorney General of U.S., 527 F.3d 101 (3d Cir. 2008). 15 Matter of Cisneros-Gonzalez, 23 I&N Dec 668. 16 Matter of Robles, 24 I&N Dec. 22 (BIA 2006); Matter of Perez, 22 I&N Dec. 689 (BIA 1999). 17 Compare Sinotes-Cruz, 468 F.3d 1190 (9th Cir. 2006) to Valencia-Alvarez v. Gonzales 469 F.3d 1319 (9th Cir. 2006). 18 In Re Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (ruling that a firearms offense does not stop time).
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provisions. (Though, one must be careful that those crimes are not CIMTs and thus referenced in 212(a)(2) in that manner.) What About the Petty Offense Exception? Does That Apply or Do Petty Offenses Stop Time? Petty offenses do not stop time, even if the offense would make them removable under INA 237(a)(2). 19 The BIA ruled that the referred to aspect incorporates the petty offense exception such that even if the crime would make the person deportable under INA 237(a)(2), satisfying the second requirement of the stop-time rule, would not stop his physical presence. Wait, What About Matter of Cortez? I Thought Crimes Involving Moral Turpitude, Even Petty Offenses Could Make Someone Ineligible for Cancellation of Removal? In Cortez, the BIA ruled that a crime involving moral turpitude that is described in 237(a)(2) makes someone ineligible for cancellation, even if the crime is also a petty offense and the person is only being charged with being inadmissible and not being deportable. 20 But while those cases are instructive, they are not applications of the stop-time rule. Cortez dealt with general eligibility requirements of non-LPR cancellation, and not specifically the physical presences requirement and the stop-time rule. The stop-time rule is distinguished mainly because the second clause, renders the alien inadmissible to the United States under INA 212(a)(2) or removable from the United States under INA 237(a)(2) or 237(a)(4) not only requires a crime to be described by INA 212(a)(2), but to actually make the person inadmissible or removable. And because the description clause only refers to INA 212(a)(2), the petty offense can still insulate certain crimes from having their physical presence stopped. Are We Looking At the Conviction of the Crime, or the Commission? The language of the statute refers to commission and the BIA has affirmed this rule. No circuit court has apparently disagreed that it is the commission of the offense and not the conviction which stops time. 21 Could Physical Presence Restart After the Commission of a Crime? As with the NTA, without any other event, the commission of a qualifying stop-time crime prevents the accrual of physical presence. However, the Third Circuit has ruled that if there has been an intervening lawful entry by the person, then the continuous presence may be restarted. 22 In this case, a student had committed a drug crime that would have stopped the accrual of physical presence in 1983, but made several trips in an out of the United States using his student visa, with a final lawful entry in 1984. The Third Circuit ruled that his subsequent (lawful) entry back into the United States restarted his physical presence clock. This is significant, because the respondent was seeking cancellation under INA 240A(b)(1), which only requires physical presences without any sort of lawful entry that INA 240A(a) requires. The Third Circuit has not clarified whether an unlawful entry could restart physical presence after a crime has stopped the terminated a prior physical presence. What is also significant is whether the respondent could evade the requirements of 240A(b)(1)(C) as any crime that could stop time would conceivably make the person ineligible under 240A(b)(1)(C). However, because the cancellation requirement under 240A(b)(2)(A)(iv) are worded differently, the applicability for VAWA cancellation is much easier to contemplate. However, the BIA recently issued Matter of Nelson, 23 which expressly disagreed with the Third Circuits decision in Okeke, and despite the fact that the case arose in the Third Circuit, ruled that it was not bound by the decision of the circuit court. In Nelson, the BIA distinguished Okeke by noting that there were three opinions in that case, one holding, one concurrence, and one dissent. The BIA also noted that Okeke had involved a situation in which the person in proceedings was not charged as being inadmissible or removable
19 20
In Re Garcia, 25 I&N Dec. 332 (BIA 2010). Matter of Cortez, 25 I&N Dec 301 (BIA 2010), see also Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010). 21 Matter of Perez, 22 I&N Dec. 689 (BIA 1999). 22 Okeke v. Gonzales, 407 F.3d 585 (3d Cir. 2005). 23 25 I&N Dec. 410 (BIA 2011).
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based on the crime that allegedly stopped his physical presence. In Nelson, the BIA made special note that the 1999 convictions at issue were specifically alleged in the NTA. However, these distinctions do not seem to answer the question of why a second admission, one that complied with INA 101(a)(13) could not create a new physical presence time for purposes of cancellation, nor why these distinctions hold much weight in absolving the BIA from following the Third Circuit case law. In Nelson, the person originally committed a drug crime in 1999, after he had become an LPR in 1994. However, in 2000, the respondent had left the United States and was re-admitted as an LPR. The BIA found that his physical presence was permanently stopped by the 1999 drug conviction and could not be restarted when he re-entered, despite no charge of fraud or non-disclosure. So When Does the Clock Start? This depends on which form of removal the respondent seeks. For nonpermanent residents, it only requires physical presence. The same applies to battered women and children, with the added protection where a person may have left the United States in connection with the abuse, which will not prevent the accumulation of physical presence. For cancellation for LPRs, under INA 240A(a), it becomes slightly more complicated. The seven years of physical residence requires admission in any status. This admission requirement has started to coalescence recently and came to a head in the recent Matter of Reza. 24 This case had to decide whether a respondents prior grant of Family Unity Benefits (FUB) qualify as admission in any status. It was undisputed that a grant of FUB qualify as status, but the controversy centered on whether it qualified as admission, as FUB benefits, almost by definition does not have a lawful entry, a prerequisite for the definition of admission found under INA 101(a)(13)(A). Respondent argued that admission was already being described outside the INA 101(a)(13)(A) definition, as obtaining lawful permanent residency counted as admission, even when there was no lawful entry, under Matter of Rosas, 22 I&N Dec. 616 (BIA 1999). However, the BIA was unwilling to extend this definition to FUB, and ruled that for purposes of 240A(a)(2), admission in any status requires lawful entry. It is not clear whether Reza would apply if a FUB holder had left the United States and then made a lawful re-entry. What Exactly Does Physical Presence Mean? Does It Require any Lawful Status? In general, continuous physical presence means just what it says: physical presence in the United States, regardless of whether that presence is authorized or unauthorized, and regardless of whether it follows an inspection by a Department of Homeland Security (DHS) officer. There is no admission in any status requirement for physical presence. As such, non-LPR and VAWA cancellation applicants need only establish that they have been continuously physically within the borders of the United States for the requisite period1 (continuously, in this context, meaning that the respondent has not departed from the United States for any single period in excess of 90 days or for 180 days in the aggregate).1 PROVING GOOD MORAL CHARACTER FOR CANCELLATION OF REMOVAL Some of the biggest hurdles in any cancellation case are simple proof requirements. Good moral character is an excellent example of this. You know your client is a good person, but his history may be a little less than desirable. Delving deeper into a persons history may turn up something that you may question. The Immigration and Nationality Act provides a list of actions that bar good moral character; but do not forget that there is also a discretionary factor there, too. How Do I Prove Good Moral Character? A non permanent resident applicant for cancellation of removal must have been a person of good moral character for the ten years of presence. 25 Proving good moral character continues to be difficult in many contexts. Statutory bars to good moral character are found at INA 101(f) which lists the bars to finding of
24 25
Matter of Reza, 25 I&N Dec. 296 (BIA 2010). INA 240(b)(1)(B).

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good moral character; as well as a discretionary element. 26 Immigration judges are given the ability to make a finding that an applicant does not meet the good moral character standard when, while there is not a statutory ineligibility, the applicants conduct still does not meet the judges discretionary standard. 27 Even though an Immigration Judge has discretion in a particular case to hold that an applicant lacks good moral character even if their actions do not fall under one of the statutory bars, the Board of Immigration Appeals (BIA) has long held that good moral character does not mean moral excellence and that it is not destroyed by a single incident 28 Judges will look to criminal behavior not leading to an automatic bar in making a discretionary determination. 29 So What Evidence Can a Practitioner Present to Prove Good Moral Character? When a client has nothing nefarious in his past that causes concern, proving good moral character is pretty easy, however submission of the following can help in balancing out any adverse discretionary matters: 1. Evidence of Federal Income Tax Filings (also great for showing physical presence) 2. Affidavits from employers, spiritual leaders, family and friends discussing the applicants strength of characterits important to be careful here. Affidavits can obviously be self-serving and some courts tend to not lend letters from family too much weight. 3. Evidence of good credit history, employment history and residence history. This continues to be an interesting conundrum; if a foreign national is undocumented (hence the application for 10-year cancellation of removal), how can he be expected to present evidence that he has been working, paying taxes and bills? However, this evidence does tend to be readily available to many of our clients and remains the best evidence for proving good moral character to the immigration courts nationwide. Matter of Cortez and INA 240(b)(1)(C) If an applicant for cancellation of removal has been convicted of on offense under sections 212(a)(2), 237(a)(2) or 237(a)(3) they are ineligible for cancellation of removal. 30 Under Matter of Cortez 31 , this includes an applicant that has been convicted of a crime involving moral turpitude that falls under the petty offense exception. 32 Prior to the decision in Matter of Cortez, a conviction for a crime involving moral turpitude that fell within the petty offense exception did not make the applicant statutorily ineligible for cancellation of removal, but the conviction could be used as a discretionary factor. 33 However, in Matter of Cortez, the Immigration Judge
Statutory ineligibilities are when the applicant has been held to be an habitual drunkard; or have conviction for polygamy; prostitution, smuggling, or a person convicted for a crime involving moral turpitude or drug crime. Additionally, applicants with conviction for illegal gambling, false testimony for purposes of obtaining a benefit under that act, someone who has served a sentence for an aggregate period of 180 days or more, a person who has been convicted of an aggravated felony, and one who has ever assisted in Nazi persecution, genocide, or commission of acts involving torture or extrajudicial killings, a false claim to U.S. citizenship unless one of the applicants parents was a U.S. citizen and they resided in the United States prior to their 16th birthday, and finally, there is a catch all provision that states The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. See also See Matter of Turcotte, 12 I&N Dec. 206 (BIA 1967). 27 Id. 28 Matter of Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991). 29 Ikenokwalu-White v. INS, 316 F.3d 798, 8045 (8th Cir. 2003) 30 INA 240(b)(1)(C). 31 Matter of Cortez 25 I&N Dec. 301. 32 The so-called petty offense exception provides that: Clause (i)(I) shall not apply to an alien who committed only one crime if (II) the maximum penalty possible for the crime of which the alien was convicted did not exceed imprisonment for one year and the alien was not sentenced to a term of imprisonment of 6 months (regardless of the extent to which the sentence was ultimately executed).
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26
Matter of Garcia-Hernanadez, 23 I&N Dec. 590.

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found that the applicant was eligible for cancellation of removal and granted the application even thought the respondent had a conviction for welfare fraud in violation of California laws. DHS appealed the decision to the BIA, which sustained DHSs appeal and remanded under that issue. 34 The holding in Matter of Cortez indicated that the BIA was following the reasoning of the Ninth Circuit in that it was following the plain language of the statute. 35 The BIA determined that the INA states that a conviction for a crime involving moral turpitude is a bar to being eligible for cancellation of removal. This decision overrules the BIAs determination in Matter of Garcia Hernandez, and for the same reasoning. In that case the BIA determined that while INA 240A bars an individual convicted of a crime in INA 212(a)(2) from proving good moral character that the plain reading of the statute must require that the petty offense exception included within INA 212(a)(2)(ii)(II) is also included. 36 Since the Ninth Circuit in held that the plain language of INA 240A(b)(1)(C) actually should be read to cross reference a list of offenses in three statutes, rather then the statutes as a whole and therefore the court can read it to mean a portion of INA 212(a)(2) applies, rather than the whole. 37 Under this reasoning, the BIA has determined that the petty offense exception is no longer applicable to applicants convicted of crimes involving moral turpitude. So Where Does This Leave My Client? As this is a recent decision, there has not been much appeals court litigation surrounding this matter. The argument that the BIA should continue to read the plain meaning of the statue and allow for the petty offense exception is a sound one that, while most likely not to be sustained at the BIA level, may continue to be upheld in your circuit. BIA precedent decisions can still be appealed to your courts of appeal, and this issue remains one ripe for adjudication. WHEN ALL ELSE FAILS; THE USE OF PROSECUTORIAL DISCRETION TO ESTABLISH STATUTORY ELIGIBILITY There are, of course, some people who simply do not meet the basic statutory eligibility requirements to even apply for cancellation of removal. In some cases, however, it can be possible to appeal to the Department of Homeland Security to exercise its prosecutorial discretion in such a way as the render the respondent eligible. What Exactly Is Prosecutorial Discretion? In short, prosecutorial discretion in the immigration context is the decision of the DHS to enforce or forego enforcement of the immigration laws against a particular individual. There is a good deal of agency guidance on when and how to exercise prosecutorial discretion in various contexts; in the past decade, DHS and its predecessor INS have issued more than a dozen guidance memoranda on the issue to its employees. 38 Seminal among these is the 1999 INS General Counsel Bo Cooper memo, defining prosecutorial discretion as, [A] decision to enforce, or not to enforce, the law. An enforcement decision must be distinguished from an affirmative act of approval, or grant of a benefit, under a statute or other applicable law that sets guidelines for determining when the approval should be given.. 39 It is important to note that the agency has no discretion to violate the law.
Id. at 311. Id. at 306. 36 Matter of Garcia-Hernanadez, 23 I&N Dec. 590. 37 Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652. 38 See M. Kenney, American Immigration Council practice advisory: Prosecutorial discretion: how to get DHS to act in favor of your client, Nov. 30, 2010, pp. 1417 (summarizing memos). 39 HQCOU 90/16-P (1999) at 11.
35
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Prosecutorial discretion can extend only up to the substantive and jurisdictional limits of the law. It can never justify an action that is illegal under the substantive law pertaining to the conduct, or one that while legal in other contexts, is not within the authority of the agency or officer taking it. Prosecutorial discretion to take an enforcement action does not modify or waive any legal requirements that apply to the action itself. 40 DHS cannot, for example, admit a non-citizen who is inadmissible, or accede to the granting of a form of relief for which the respondent has not established statutory eligibility. How Does Prosecutorial Discretion Come to Play in the Cancellation Context? The two most common scenarios in which prosecutorial discretion arises in the context of establishing statutory eligibility for cancellation of removal are 1) requests to Immigration and Customs Enforcement [ICE] to initiate removal proceedings against a non-citizen who would be cancellation eligible but for the fact that he is not the subject of removal proceedings and, conversely, 2) requests to cancel a notice to appear or terminate removal proceedings for one who would be cancellation-eligible but for the stop-time rule. 41 I Have a Perfect Cancellation Case but My Client Is Not in Proceedings. How Can I Get the Case Before a Judge? Cancellation of removal, of course, is a form of relief from removal; it is only available in the context of removal proceedings. There are individuals who would be cancellation-eligible but who have not been put into proceedings. For many of these people, no other immigration options exist. The first question when presented with such a case is, simply, whether the client is truly likely to prevail on his application in the long run. Rumors run rampant in the immigrant communities, and there are many people who have heard about the ten-year law under which a judge will give them green cards because they have U.S. citizen children. But it is incumbent upon us as practitioners to only seek the initiation of proceedings against those clients with the most compelling of cases. Ok. I Can Document the Ten Years Continuous Physical Presence, There Are No Good Moral Character Issues, and My Clients Anchor Relatives Have Serious Medical Conditions Which I Think Will Satisfy the Hardship Standard. How Can I Surrender My Client to ICE and Request that the Agency Initiate Removal Proceedings? The logistics of how and where to seek initiation of proceedings is jurisdiction-dependent; there is no nation-wide ICE program by which one may surrender himself. Many jurisdictions, however, have procedures set up with local AILA chapters, each with their own requirements and practices. If you have a case which you think would be a good candidate for cancellation, the place to start is with your local AILAICE liaison. But I Have the Opposite Problem; My Client Was Served with an NTA Just Before He or She Accrued the Requisite Period of Continuous Physical Presence. More common, unfortunately, are those cases in which the noncitizen is served with the notice to appear before accruing the requisite period of continuous physical presence, thus triggering the stop-time rule at INA 240A(d)(1). The first inquiry, of course, must be into whether either the NTA itself or its service upon the respondent are subject to challenge; where they are not, a request for prosecutorial discretion may be the only option. These cases have come to be called in immigration lingo as repapering. In fact, however, repapering as originally conceived dealt with a very discrete group of cases which arose in the wake of IIRAIRA: deportation and exclusion cases involving respondents who would have been eligible for suspension of deportation or 212(c) relief but for the stop-time rule, and who would be eligible for cancellation of removal
INS Memorandum, D. Meissner, Commissioner, INS, HQOPP 50/4, Exercising Prosecutorial Discretion (Nov. 17, 2000) (Meissner Memo) at 34. 41 ICE can also exercise its prosecutorial discretion during the course of the litigation, for example to concede certain facts or elements, to oppose a grant on the merits, or to reserve or waive appeal.
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but for that rule. Section 309(c) of IIRAIRA granted the attorney general the authority to terminate [deportation] proceedings in which there has not been a final administrative decision and to initiate [removal] proceedings under [IIRAIRA]. 42 In the months and years after IIRAIRA, the legacy INS and the EOIR issued internal guidance on the issue, in anticipation of regulations to be promulgated by the agency. 43 On November 30, 2000, legacy INS finally promulgated a proposed regulation on repapering, and opened it up for public comments. 44 The regulation, however, was never made final. 45 If the Repapering Regulations Were Never Made Final, Why Do I Hear Practitioners and Immigration Judges Talking About It Now? Repapering as originally conceived has become irrelevant through the passage of time. At this point, fourteen years after IIRAIRA, there are relatively few individuals in deportation or exclusion proceedings, to whom the proposed rule could have been applied. In the post-IIRAIRA world, however, the term repapering has come to be used in immigration vernacular for something slightly different: Whereas repapering in its original form involved the administrative closure of deportation or exclusion proceedings and the recharging of the respondent in removal proceedings, practitioners, judges and trial attorneys commonly use the term to refer to a request to cancel a Notice to Appear, with the assumption that the agency will reissue it after the respondent has accrued the requisite period of continuous physical presence. 46 If the Regulations Were Never Made Final, What Is the Authority for a Request for Repapering? In essence, the source of the DHSs authority to repaper an individual stems simply from its inherent discretionary authority over whether and how it enforces federal immigration laws. 47 More specifically, the regulations also provide that DHS has the authority to choose to cancel a Notice to Appear under certain broad circumstances. 8 CFR 239.2(a) provides that any DHS officer who is authorized to issue a Notice to Appear also has the authority to cancel such Notice prior to jurisdiction vesting with the Immigration Court. And 8 CFR 1239.2(c) mirrors 239.2 to provide that after the commencement of removal proceedings, government counsel or an officer enumerated in 8 CFR 239.1(a) may withdraw a Notice to Appear and move for termination of the removal proceedings. And the circumstances under which the regulations authorize withdrawal or cancellation of an NTA are quite broad; both 239.2 and 1239.2 list a variety of specific circumstances which might warrant cancellation, as well a general, continuation is no longer in the best interest of the government. 48 Ok. Im Ready to File a Request. What Is ICE Looking to be Looking for in a Request for Prosecutorial Discretion? Any decision whether to exercise prosecutorial discretion in a manner which is beneficial to a particular individual involves a weighing and balancing of factors. The agency looks to: Immigration status;
IIRAIRA secs. 309(c)(2), (3). Virtue memo, Administrative Closure of EOIR Proceedings for Aliens Eligible for Repapering, HQCOU 90/16.1-P (Dec. 7, 1998); Cooper memo, Administrative Closure of EOIR Proceedings for Non-Lawful Permanent Resident Aliens Eligible for Repapering, HQCOU 90/16.1-P (Dec. 7, 1999); OCIJ memo, Administrative Closure of Cases in Which an Alien is Eligible for Cancellation of Removal for non-LPRs in Removal Proceedings (Dec. 7, 1999); Scialabba memo, Non Lawful Permanent Resident Repapering (BIA Mar. 14, 2000). 44 65 Fed. Reg. 71273, 71274 (Department of Justice, Immigration and Naturalization Service, proposed Nov. 30, 2000) (to be codified at 8 CFR pts 3, 240). 45 Hernandez v. Holder, 606 F.3d 900, 902 (8th Cir. 2010). 46 In the background information to the proposed regulation, INS interpreted 309( c )(5)(B) to mean that when proceedings are repapered, only the most recent Notice to Appear operates to stop time for the purposes of INA 240A(d)(1). Fed. Reg. 71273 at 3. 47 See B. Cooper, General Counsel, INS, INS Exercise of Prosecutorial Discretion (undated) (discussing the origins of prosecutorial discretion and its application in the immigration context). 48 8 CFR 239.2(a).
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Length of residence in the United States; Humanitarian concerns (for example, medical problems of the noncitizen or his family members, entry into the United States at a young age, lack of ties to the home country, and extreme youth or age); Eligibility for relief from removal; Criminal history and history of rehabilitation; Immigration history; Military service with honorable discharge; Effect of the exercise of prosecutorial discretion on the individuals future admissibility under 212; Community ties; Cooperation with law enforcement authorities (past or current); Likelihood of eventual removal; and Resources available to DHS. 49 The last factor, resources available to the agency, is not to be overlooked. While a request for prosecutorial discretion is on the one hand a request for humanitarian consideration, it can often also serve the interests of both parties. DHS recently estimated that ICE only has the resources to remove less than 4 percent of the noncitizens who are in the United States without authorization each year. 50 In a removal case where the respondent has a strong cancellation case but a complex, difficult claim to some other form of relief, it may well further ICEs interest in the preservation of its resources and administrative economy to facilitate his pursuance of the least complex, time-intensive application. In general, though, a request for prosecutorial discretion is like any other request for a favorable exercise of discretion: highlight the most compelling factors but dont sugar-coat or ignore the negative ones. Dont pretend your client is someone hes not. Any Parting Words of Advice? Read the statute. When youre done reading, read it again. Read the case law. Then read the statute, again. And then get creative. Work within the language of the text to the extent possible, and when all else fails, dont forget that a well-crafted request for prosecutorial discretion may well mean the difference between victory and loss.
49 50
Meissner memo at 78. J. Morton, Assistant Secretary, ICE, Civil Enforcement; Priorities for the Apprehension, Detention, and Removal of Aliens (June 2010).
ANALYZING AND DEMONSTRATING EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP FOR NONPERMANENT RESIDENT CANCELLATION OF REMOVAL
by Jeff Joseph and Maggie McDermott *
Three decisions from the Board of Immigration Appeals (BIA) serve as precedent for cancellation of removal cases pursuant to INA 240A(b)(1). Matter of Monreal, 1 Matter of Andazola, 2 and Matter of Recinas 3 examine in detail the factors for exceptional and extremely unusual hardship to the foreign nationals U.S. citizen or permanent resident spouse, parent, or child to meet the requirements of INA 240A(b)(1)(D). These three cases set the standard immigration judges use to determine hardship to qualifying relatives and eligibility for cancellation of removal. Indeed, [w]hile any hardship case ultimately succeeds or fails on its own merits and on the particular facts presented, Matter of Andazola and Matter of Monreal are the starting points for any analysis of exceptional and extremely unusual hardship. 4 The chart below lists the factors the BIA discussed in each of these cases, and the facts that contributed to hardship for the qualifying relatives of each individual. In Matter of Recinas, the BIA granted cancellation of removal based on the facts presented, while in the other two cases the BIA denied cancellation. The final column examines a sample cancellation of removal case and compares its facts to the precedent cases. This chart can be used to assist practitioners in determining where their individual case falls into the spectrum of cases dealing with hardship. In particularly compelling cases, it would be helpful to submit this chart as an exhibit in the actual cancellation of removal hearing.
Factors Age of Respondent Date of Arrival Health of Respondent Ages of Children Monreal, 23 I&N Dec. 56 (2001). 34 1980, at age of 14 Good health Andazola, 23 I&N Dec. 319 (2002). 30 1985, at age of 13 Problems with asthma, under control, but prevent her from working in fields in Mexico 11, 6 (relatively young, able to make adjustments) U.S. citizen (USC) 12, 11, 8, 5 Mexican citizens 15, 16 Health of Children In good health (Another strong applicant might have a qualifying child with very In good health - In good health - the hardship standard is not so restrictive that only Recinas, 23 I&N Dec. 467 (2002). 39 1988, at age 25. Entered on nonimmigrant visas. Insert the Facts of Your Client in This Column 32 1978, at birth. No memory of living anywhere else In good health
12, 8, infant
10, 6 (may be a problem because they are young and can make adjustments like Andazola) Oldest son Inguinal hernia (emphasize possibility of relapse health issue should make strong applicant
Jeff Joseph currently serves as a director on the AILA Board of Governors. He is also chair of the AILA 2011 Annual Conference. In 2004, he received the Joseph Minsky Young Lawyer Award from AILA. In 2009 and 2011, Mr. Joseph was selected for inclusion in the Best Lawyers in America in the field of immigration. From 2006 through 2011, Mr. Joseph was named a Colorado Superlawyer by Colorado Superlawyer Magazine. 5280 magazine also named Mr. Joseph a Top Lawyer in the area of immigration law for 2006 through 2010. He is an adjunct professor of immigration law at the University of Denver College of Law and is bilingual in Spanish. Maggie McDermott recently graduated magna cum laude from California Western School of Law, where she was the senior editor for the California Western Law Review/International Law Journal and a member of the Pro Bono Honor Society. For her last semester of law school, she completed an externship in immigration law with Joseph Law Firm, P.C. in Colorado. She received a B.A. in history and B.S. in journalism from the University of Colorado at Boulder. She is currently studying for the California and Colorado Bar Exams and plans to pursue a career in immigration law. 1 Matter of Monreal, 23 I&N Dec. 56 (BIA 2001). 2 Matter of Andazola, 23 I&N Dec. 319 (BIA 2002). 3 Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). 4 Id. at 469.
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472
Factors
Monreal, 23 I&N Dec. 56 (2001). serious health issue, or compelling special needs in school. at 63)
Andazola, 23 I&N Dec. 319 (2002).
Recinas, 23 I&N Dec. 467 (2002). a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief. at 470.
Insert the Facts of Your Client in This Column (Monreal))
Language Skills of Children
Oldest child has classes in English and Spanish can speak, read, and write in both languages
11 year old had little knowledge of academic Spanish
Two of her USC children experience difficult speaking Spanish and do not read or write in Spanish. (significant factor) - Parents are LPRs - Mother serves as caretaker for children while she is at work - assistance from her mother has enabled her to support her children within a stable environment. at 471. - Lives five minutes away from her mother - Five siblings are USCs (significant because they are unlikely to be subject immigration enforcement and will probably remain in the United States indefinitely. at 472) - family members are very close and have been instrumental in helping her raise her children and obtain the necessary funds to establish her business. at 472. - Divorced ex husband out of status and in immigration proceedings
Sons do not speak Spanish beyond simple conversations. Cannot read and write in Spanish (emphasize as significant factor) - Mother a naturalized USC - Sends financial assistance to his mother (argument that other siblings could not provide assistance) - Four USC siblings (important because immediate family will remain in United States indefinitely) - Grandfather, aunts, uncles who are LPRs - Wife in United States, has appeal pending before the BIA (not helpful because return to Mexico could mean reuniting family if wife loses)
Family Ties in U.S.
- LPR parents immigrated in 1995 - Seven siblings lawfully in United States.
- All siblings live here without status (In assessing hardship, we should not consider the fact that the respondents extended family is here illegally, rather than in Mexico, as a factor that weighs in her favor.) - Mother takes care of children - Lives with father of children, not married (father has been part of childrens lives, he could provide support in Mexico)
Family Ties in Mexico
- Wife voluntarily departed to US with infant child (family will be reunited upon his return to Mexico) - Brother who lives in Mexico
No relatives in Mexico make her adjustment to a new life there more difficult
- No family ties to Mexico - she does not have any family in Mexico who can help care for her six children. at 471 - No support structure exists in Mexico.
Family in Mexico but does not know them and they are not immediate family (emphasize lack of support structure)
Assets
- Health insurance - 401k retirement plan - Home valued at $69,000 - Two cars valued at $12,000 - $7,000 in savings - We also consider it significant that the respondent has accumulated some assets in this country respondent and her children would not be penniless upon her return to Mexico. at 324.
- Ex-husband paid $146.50/month in child support, but doesnt anymore - $4,600 in assets value of car - Proceeds from business were $10,000/month, but had to pay back money she had borrowed - Net profits $400 $500/month
- Monthly expenses of $4,369 and monthly income of $4,904 - (Argument that he has not accumulated enough assets to start a life in Mexico, especially since they have loans. Not like in Andazola, but also not exactly Recinas because his wife is contributing to their income)
Employment History
Worked for same business since 1991
Same employment for four years
Manages her own motor vehicle inspection business been operating for two years
- Working since 1999 - Worked at same construction company for past six years, - Delivered paper for two
EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP FOR NON-PERMANENT RESIDENT CANCELLATION
473
Factors
Monreal, 23 I&N Dec. 56 (2001). - Able to work in Mexico - Nothing to show he would be unable to work and support children
Andazola, 23 I&N Dec. 319 (2002). - Young and able to work - Developed some job skills
Recinas, 23 I&N Dec. 467 (2002).
Insert the Facts of Your Client in This Column years
Ability to Work
Health of parents
- No evidence to show particular health problems - Record does not reflect their ages - Siblings could help parents should that become necessary
- Stress on mother if he were to leave, may affect her health (difficult argument because she lives in California) - Argue that siblings are unable to help
Alternative means of immigrating
Prospect for immigration through her USC siblings or LPR parents are unrealistic due to backlog of visas in preference categories Extreme violence in Mexico. Different now than when the three cases were decided. Use travel advisories from Department of State and other evidence to show that the children are particularly at risk now. The respondent has not provided evidence to establish that his qualifying relatives would suffer hardship that is substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here. at 65 - We do no dispute the fact that economic conditions in Mexico are worse than those in this country. at 323 - there is nothing to prevent the respondents family members from sending financial support to her in Mexico. at 323 - May encounter discrimination as an unmarried mother - [W]e must conclude that she has not met her burden of establishing that her children will suffer exceptional and extremely unusual hardship if she is removed to Mexico. at 324. - We recognize that Mexico likely will not provide the respondents children with an education equal to that which they might obtain in the United States. However, the respondent has not shown that her children would be deprived of all schooling or of an opportunity to obtain any education. at 323 - Here, the heavy financial and familial burden on the adult respondent, the lack of support from the childrens father, the United States citizen childrens unfamiliarity with the Spanish language, the lawful residence in this country of all the respondents immediate family, and the concomitant lack of family in Mexico combine to render the hardship in this case well beyond that which is normally experience in most cases of removal. at 472. - Raised her family here since 1988, children know no other way of life - hardship of their parent inherently translates into hardship on the rest of the family, in this case to all six children. must also consider the totality of the burden on the entire family that would result when a single mother must support a family of this size. at 472.
Other Significant Factors Which Should be Considered
Boards Reasoning
CONCLUSION The exceptional and extremely unusual hardship standard imposes a high burden on 10-year cancellation of removal applicants. In its analysis of this burden, the BIA has issued the three listed precedent cases. Each
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applicant must therefore analogize their situation to the facts presented by Matters of Recinas, Andazola, and Monreal. Matter of Recinas is the outer limit of the narrow spectrum of cases in which the exceptional and extremely unusual hardship will be met. 5 A successful applicant for cancellation of removal, therefore, should have hardship to qualifying relatives that meets or exceeds the facts in Recinas. Moreover, if an applicant can convincingly distinguish his or her case from Matters of Andazola and Monreal, the greater the likelihood of success.
Recinas at 470.
IMPORTANT TIPS ON MOTIONS TO SUPPRESS

by Maria E. Andrade, Ahilan T. Arulanantham, Melissa Crow, Charles Roth, Patrick Taurel, and Ben Winograd *
If your client has a potential basis for filing a motion to suppress evidence establishing alienage, do not concede alienage at any point of the case. If you file a Freedom of Information Act (FOIA) 1 request or make your client available to the media, you should be particularly careful not to disclose any information bearing on alienage. Obtain as much free discovery as possible, including FOIA and Public Records Act requests. Requesting an investigation by U.S. Immigration and Customs Enforcements (ICE) Office of Professional Responsibility 2 could result in declarations by U.S. Department of Homeland Security officials about the events in question, which in turn may become available through FOIA requests. Remember that nearly all local police have audio and/or video recordings of police encounters and that such recordings usually are quickly destroyed unless a request is made. The Board of Immigration Appeals established the test for suppressing evidence obtained through regulatory violations in Matter of Garcia-Flores. 3 To successfully exclude evidence discovered in violation of a regulation, the movant must demonstrate that: (1) the regulation alleged to have been
*
Maria E. Andrade practices removal defense, federal court litigation, illegal re-entry defense and other complex immigration matters in Boise. She serves on the AILA Amicus Committee; the American Immigration Councils Legal Action Centers Advisory Committee, and is on the board of the National Immigration Project of the National Lawyers Guild. Ms. Andrade maintains a small caseload of civil cases in federal courts including wage and fair housing cases. Ahilan T. Arulanantham is the deputy legal director at the American Civil Liberties Union of Southern California. He has litigated successfully a number of cases to protect the rights of immigrants, including cases arising from the Van Nuys worksite raid. In 2007, he was named one of California Lawyer magazines Lawyers of the Year for his work in the area, and in 2007, 2008, and 2009 was named one of the Daily Journals Top 100 Lawyers in California. He has served as a lecturer in law at the University of Chicago Law School, and recently was awarded AILAs Arthur C. Helton Human Rights Award. Melissa Crow is director of American Immigration Councils Legal Action Center. She served as the acting deputy assistant secretary for policy, and as senior policy advisor, in the Office of Immigration and Border Security at Department of Homeland Security (DHS). Prior to joining DHS, she was a partner with Brown, Goldstein & Levy in Baltimore, where she developed a thriving immigration practice. Before entering private practice, she served as counsel to Senator Edward M. Kennedy during the 2007 debates on the U.S. Senate comprehensive immigration reform bill. She has taught in the Safe Harbor Clinic at Brooklyn Law School and the International Human Rights Clinic at Washington College of Law. Charles Roth is the director of litigation at the National Immigrant Justice Center (NIJC). He focuses on federal litigation in the courts of appeals and the U.S. Supreme Court. He also oversees NIJCs detention project, which works on issues relating to immigrant detainees in the Chicago area and elsewhere. He is an update editor for Daniel Levys U.S. Citizenship and Naturalization Handbook. Prior to working at NIJC, Mr. Roth worked along the U.S.-Mexico border, including as supervising attorney at Casa de Proyecto Libertad in Harlingen, TX, where he represented detainees at the Port Isabel Service Processing Center. Patrick Taurel is a post-JD associate with Andrade Legal in Boise. As a law student, Patrick worked with the Immigrant Defense Project and the ACLUs Immigrants Rights Project in New York. Ben Winograd is the Law Fellow at the American Immigration Councils Legal Action Center. He focuses on legal issues related to the enforcement of immigration law, including the rights of respondents in removal proceedings and federal collaboration with state and local governments. He received his J.D. cum laude from Georgetown Law in 2010. He worked as a reporter before and during law school, and has written for the Associated Press, SCOTUSblog, and The Wall Street Journal. He also worked as a freelance journalist in Arizona covering border and immigration issues. 1 Freedom of Information Act (FOIA), 5 USC 552, as amended by Pub. L. No. 104-231, 110 Stat. 3048. 2 The Immigration and Customs Enforcement (ICE) Office of Professional Responsibility investigates allegations of misconduct that, if true, would constitute violations of state or federal criminal law or jeopardize or undermine the agencys ability to perform its mission. See www.ice.gov/about/offices/leadership/opr/. 3 17 I&N Dec. 325 (BIA 1980).
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violated was promulgated to serve a purpose of benefit to the alien; and (2) that the violation prejudiced interests of the alien which were protected by the regulation. 4 Immigration judges (IJ) must presume prejudice where the U.S. Constitution itself mandates compliance with the regulation. 5 Where possible; however, IJs will take corrective action short of termination of proceedings. 6 To suppress evidence for a violation of the Fourth Amendment, you must show first, that the Fourth Amendment was violated and second, that this violation was egregious. 7 What constitutes an egregious violation varies greatly by circuit. For example, in the U.S. Court of Appeals for the Ninth Circuit, an egregious violation may arise from any conduct a reasonable officer should have known would violate the Constitution. 8 To show a violation of the Fourth Amendment you must show that the government engaged in an unreasonable search or seizure. Even warrantless searches and arrests are not necessarily unreasonable under the Fourth Amendment. Carefully interview your client and available witnesses to get all the relevant facts. In cases where immigration officers seek to justify warrantless home entries based on consent, attorneys should carefully analyze the circumstances under which consent was given. If your client was questioned, make sure to find out why he or she did not feel free to leave. Under the Fourth Amendment, an officer must have reasonable suspicion that the individual is in the country unlawfully in order to briefly detain the individual for questioning. 9 Under Terry v. Ohio, 10 reasonable suspicion must be based upon articulable facts, as opposed to a hunch, and the resulting detention must be brief. This same test has been applied to brief detentions under Immigration and Nationality Act 11 287(a)(1). 12 The U.S. Supreme Court has held that foreign appearance, standing alone, cannot provide reasonable suspicion of illegal alienage. 13 Moreover, many circuit courts agree that reliance on race or ethnicity alone is not only insufficient to establish reasonable suspicion, but itself constitutes an egregious violation of the Fourth Amendment. 14 Under the Fourth Amendment, immigration officers may conduct random searches only at the border or its functional equivalent, such as an airport. 15 A warrantless search in any other location generally must be supported by consent or probable cause. 16 Even where law enforcement agents violate the Fourth Amendment, evidence that ICE subsequently discovers is not necessarily inadmissible on that basis as fruit of the poisonous tree. You must allege that the government obtained the evidence by exploitation of the underlying violation. 17 Thus, if the government can establish your clients alienage from an independent source, such as because your client filed an adjustment application prior to his or her arrest, a motion to suppress may be denied. Support your claim with evidence. The motion must make allegations based on the Respondents personal knowledge. Respondents affidavit in support of the motion should identify, for every statement you wish to suppress, the circumstances under which statements were made, and address all legal elements
Id. at 328 (adopting framework set forth in United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979). Id. at 329. 6 Matter of Hernandez, 21 I&N Dec. 224, 228 (BIA 1996). 7 Lopez-Mendoza v. INS, 468 U.S. 1032, 105051 (1984) (Opinion of OConnor, J.). 8 Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1016 (9th Cir. 2008). 9 Au Yi Lau v. INS, 445 F.2d 217, 223 (D.C. Cir. 1971); Matter of Yau, 14 I&N Dec. 630, 63233 (BIA 1974). 10 Terry v. Ohio, 392 U.S. 1 (1968). 11 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, (codified as amended at 8 USC 1101 et seq.). 12 Au Yi Lau v. INS, 445 F.2d 217, 223 (D.C. Cir. 1971). 13 United States v. Brignoni-Ponce, 422 U.S. 873 (1975). 14 See, e.g., Almeida-Amaral v. Gonzales, 461 F.3d 231, 237 (2d Cir. 2006); Puc-Ruiz v. Holder, No. 09-1296, 2010 U.S. App. LEXIS 26109 (8th Cir. 2010); Orhorhaghe v. INS, 38 F.3d 488, 492 (9th Cir. 1994). 15 Almeida-Sanchez v. United States, 413 U.S. 266, 27273 (1973). 16 United States v. Ortiz, 422 U.S. 891, 89697 (1975). 17 Id.
5 4
IMPORTANT TIPS ON MOTIONS TO SUPPRESS
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necessary to substantiate the underlying suppression theory. 18 If the allegations, accepted as true, would establish a prima facie Fourth Amendment violation, the burden shifts to the government to show that it obtained the evidence in a lawful manner. 19 Respondents must testify personally in support of a motion to suppress. 20 On cross-examination, the government may seek to elicit admissions regarding alienage. If the government alleges that a respondent entered without inspection, an admission of alienage could render him or her subject to criminal liability under 8 USC 1325, which criminalizes entry without inspection. Attorneys should advise their clients to assert their Fifth Amendment privilege against self-incrimination in response to any question that could provide a link in the chain of evidence needed to establish alienage. It is important to advise the client to assert the privilege prior to the first master calendar hearing, as the client could be called to the stand and asked to testify at any time. Respondents are not entitled to a separate hearing on a motion to suppress. 21 If an IJ grants a suppression hearing, however, consider filing a motion in limine to ensure that ICE does not use information obtained during the suppression hearing during its case-in-chief. If the government offers a Form I-213 to establish the respondents alienage, ask the IJ to subpoena the agent who prepared the form so that he may be subjected to cross-examination. 22 While respondents in removal proceedings generally are not entitled to cross-examine the preparers of Form I-213, courts recognize an exception when the form contains information that is manifestly incorrect or was obtained by duress 23 or if the sources of information or other circumstances indicate lack of trustworthiness. 24 In many suppression cases, the very misconduct in question may provide a basis to question the reliability of the Form I-213e.g., whether or not immigration officers obtained consent before entering a home.
18 19
Matter of Wong, 13 I&N Dec. 820, 822 (BIA 1971). Matter of Tang, 13 I&N Dec. 691, 692 (BIA 1971); Matter of Barcenas, 19 I&N Dec. 609, 61011 (BIA 1988). 20 Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988). 21 Matter of Benitez, 19 I&N Dec. 173, 175 (BIA 1984). 22 8 CFR 1003.35(b) (An Immigration Judge may issue a subpoena upon his or her own volition or upon application of the Service or the alien.). 23 Barradas v. Holder, 582 F.3d 754, 763 (7th Cir. 2009). 24 Espinoza v. INS, 45 F.3d 308, 31011 (9th Cir. 1995) (quoting Federal Rules of Evidence sec. 803(8)(C)).
MOTIONS TO SUPPRESS: PRESERVING THE EGREGIOUS EXCEPTION UNDER LOPEZ-MENDOZA

by Ben Winograd, Melissa Crow, and Mary Kenney
The U.S. Supreme Courts decision in INS v. Lopez-Mendoza 1 is often cited for the proposition that evidence obtained in violation of the Fourth Amendment need not be suppressed in removal proceedings. Yet eight of nine Justices believed that the exclusionary rule should, at a minimum, apply in cases involving egregious violations. To date, every federal circuit court to consider the issue has incorporated this exception to Lopez-Mendoza, and immigration judges and the Board of Immigration Appeals (BIA) have suppressed such evidence in numerous cases. This practice pointer will seek to assist immigration lawyers in suppressing evidence under the exception for egregious Fourth Amendment violations. Q: What exactly did the Supreme Court say in establishing an exception for egregious Fourth Amendment violations? A: Although the Court held that the exclusionary rule generally does not apply in removal hearings, the final section of the Courts opinion listed a number of caveats to the majoritys holding. Writing for herself and three other Justices, Justice OConnor stated that they did not condone unconstitutional behavior by immigration officers, and that their conclusions about the value of the exclusionary rule might change if confronted with evidence that Fourth Amendment violations by immigration officers were widespread. 2 Finally, Justice OConnor wrote: [W]e do not deal here with egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained. 3 Meanwhile, four other Justices argued in dissent that the exclusionary rule should always remain available in removal proceedings for Fourth Amendment violations, 4 and therefore necessarily endorsed the view of Justice OConnor that the rule may apply in egregious cases. It is this final caveat, effectively endorsed by all
This practice pointer, prepared for AILAs 2011 Annual Conference, is excerpted from a more comprehensive Practice Advisory published by the American Immigration Councils Legal Action Center. See Filing Motions to Suppress in Removal Proceedings: A General Overview (Legal Action Center, March 2011), available at www.legalactioncenter.org/practiceadvisories. The authors wish to acknowledge the invaluable assistance of Maria E. Andrade, Patrick Taurel, and Professor Michael Wishnie. Ben Winograd is the law fellow at the American Immigration Councils Legal Action Center. He focuses on legal issues related to the enforcement of immigration law, including the rights of respondents in removal proceedings and federal collaboration with state and local governments. He received his J.D. cum laude from Georgetown Law in 2010. He worked as a reporter before and during law school, and has written for the Associated Press, SCOTUSblog, and the Wall Street Journal. He also worked as a freelance journalist in Arizona covering border and immigration issues. Melissa Crow is director of the American Immigration Councils Legal Action Center. She served as the acting deputy assistant secretary for policy, and as senior policy advisor, in the Office of Immigration and Border Security at the U.S. Department of Homeland Security (DHS). Prior to joining DHS, she was a partner with Brown, Goldstein & Levy in Baltimore, where she developed a thriving immigration practice. Before entering private practice, she served as counsel to Senator Edward M. Kennedy during the 2007 debates on the U.S. Senate comprehensive immigration reform bill. She has taught in the Safe Harbor Clinic at Brooklyn Law School and the International Human Rights Clinic at Washington College of Law. Mary Kenney is a senior attorney with the American Immigration Councils Legal Action Center. Ms. Kenney has litigated cases at the Board of Immigration Appeals and in federal courts around the country. Prior to joining the American Immigration Council, she served as executive director of the Texas Lawyers Committee, a statewide immigrant and refugee rights project. She also worked as a legal services attorney in West Virginia. 1 468 U.S. 1032 (1984). 2 Lopez-Mendoza, 468 U.S. at 1050 (opinion of OConnor, J.). 3 Id. at at 105051 (Opinion of OConnor, J.). 4 Id. at 105161 (Opinions of Brennan, J., White, J., Marshall, J., Stevens, J., dissenting).
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but one Justice, that lower courts and the BIA have applied to suppress evidence obtained in violation of the Fourth Amendment in removal proceedings. Q: Does the exception for egregious Fourth Amendment violations bind immigration judges? A: The government frequently notes that the final section of Lopez-Mendoza gained the support of only three other Justices and therefore does not constitute binding precedent in and of itself. As previously discussed, however, eight of nine Justices believed that the exclusionary rule should remain available for egregious constitutional violations at a minimum, which arguably makes the exception binding. 5 Even if Lopez-Mendoza merely left open the question, three circuits have officially adopted the exception, making it binding in all removal hearings arising within their jurisdiction, and five circuits have at least acknowledged the possibility that it may exist. By contrast, no circuit has explicitly rejected the egregious violation exception. Q: Which federal appellate courts have adopted the egregious exception? A: Since the Supreme Courts decision in Lopez-Mendoza, the Courts of Appeals for the Second, Eighth, and Ninth Circuits have adopted the exception for egregious Fourth Amendment violations as the law of the circuit. However, only the Ninth Circuit has mandated the exclusion of evidence under the exception. Second Circuit The Second Circuit officially adopted the exception for egregious Fourth Amendment violations in Almeida-Amaral v. Gonzales. 6 In so doing, the court suggested that a Fourth Amendment violation must generally be accompanied by additional aggravating factors to warrant suppression. 7 In Almeida-Amaral, which involved a brief street detention without reasonable suspicion of illegal alienage, the Second Circuit assumed that a Fourth Amendment violation had occurred but found the violation not sufficiently egregious in the absence of additional circumstances. For example, the panel found that the stop would have been egregious if it had been based on race or some other grossly improper consideration. 8 Likewise, where an unlawful stop was particularly lengthy or involved a show or use of force, the panel indicated that suppression might be warranted. 9 Applying this standard in a subsequent case, the Second Circuit found no egregious violation where the Border Patrol identified a nonimmigrant overstay at a checkpoint in Vermont and detained her in a trailer for three or four hours while they initiated removal proceedings. 10 Importantly, the BIA has recognized the exception for egregious violations under Almeida-Amaral in numerous cases. 11 Eighth Circuit In late 2010, the Eighth Circuit became the most recent federal appellate court to adopt an exception for egregious Fourth Amendment violations. Alhough the respondents suppression motion was denied, the court in Puc-Ruiz v. Holder 12 provided valuable guidance for future cases. The court stated that egregious violations were not limited to those of physical brutality, 13 and listed a number of factors that could cause a Fourth Amendment violation to qualify as egregious: (1) if law enforcement officers employ[] an unreasonable show or use of force in arresting and detaining an individual; (2) if the decision to detain or arrest was based on race or appearance; or (3) if government officers invade[] private property and
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See, e.g., Puc-Ruiz v. Holder, 629 F.3d 778, n.2 (8th Cir. 2010); Orhorhaghe v. INS, 38 F.3d 488, 493 n.2 (9th Cir. 1994). 461 F.3d 231, 234 (2d Cir. 2006). 7 Almeida-Amaral, 461 F.3d at 236. 8 Almeida-Amaral, 461 F.3d at 235. 9 Almeida-Amaral, 461 F.3d at 23637. 10 Melnitsenko v. Mukasey, 517 F.3d 42 (2d Cir. 2008). 11 See, e.g., In re: Anai Mellado-Qunitanilla, A 097 516 885, 2010 WL 2390825 (BIA May 28, 2010); In re: Carlos Alberto Gomez Velez, A 089 013 442, 2010 WL 2390743 (BIA Mar. 10, 2010); In Re: Israel Salazar-Menjivar, A 089 081 631, 2009 WL 4899080 (BIA Nov. 30, 2009). 12 629 F.3d 771 (8th Cir. 2010). 13 Puc-Ruiz, 629 F.3d at 778.
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detain[] individuals with no articulable suspicion whatsoever. 14 The panel emphasized that it was not providing an exhaustive list of conduct that could constitute an egregious Fourth Amendment violation, but nonetheless stressed that technical Fourth Amendment violations would not suffice to merit suppression. 15 Ninth Circuit The Ninth Circuit was the first federal appellate court to incorporate the egregious exception from LopezMendoza, 16 and to date is the only one to order the suppression of evidence under the exception for a Fourth Amendment violation. The Ninth Circuit holds that the exclusionary rule should remain available in removal proceeding forat a minimumall evidence obtained from bad faith constitutional violations. 17 The Circuit defines bad faith violations as those involving: (1) deliberate violations of the Fourth Amendment; or (2) conduct a reasonable officer should have known is in violation of the Constitution. 18 The first testfor deliberate violationsis a subjective one, dependent on the officers motivation. The second test is an objective one, dependent on the state of the law at the time the alleged violation took place. 19 Notably, numerous Ninth Circuit opinions have relied upon the extensive Fourth Amendment training that immigration officers ostensibly receive to conclude that the offending agent should have known the alleged conduct violated the Constitution. 20 To date, the Ninth Circuit has found Fourth Amendment violations sufficiently egregious to warrant suppression on at least three occasions. In Gonzalez-Rivera v. INS, 21 the court ordered evidence excluded where Border Patrol officers pulled over a vehicle with two Hispanic occupants based on their ethnic appearance. In Orhorhaghe v. INS, 22 the court ordered exclusion where immigration officers initiated an investigation based upon the petitioners last name and presumed national origin. And in Lopez-Rodriguez v. Mukasey, 23 the court found an egregious violation where immigration officers entered the petitioners home without a warrant or consent. In a published opinion, the BIA recognized the validity of the egregious violation exception in cases arising in the Ninth Circuit. 24 In some respects, the Ninth Circuits bad faith test is more favorable than the standard employed by the Second and Eighth Circuits, insofar as it does not require respondents to demonstrate aggravating factors beyond the constitutional violation itself. One drawback to this approach, however, is that it allows panels to avoid ruling on the underlying constitutionality of the challenged misconduct if the law at the time it transpired was not clearly established. In a recent case, for example, a panel declined to consider whether a state law enforcement officer violated the Fourth Amendment by detaining individuals solely on the basis of their admissions that they lacked lawful immigration status. 25 Noting the lack of clarity in the law over state officers authority to make arrests for civil violations of federal immigration law, the panel concluded that it
Puc-Ruiz, 629 F.3d at 779 (emphasis in original). Puc-Ruiz, 629 F.3d at 779. 16 Adamson v. Commissioner, 745 F.2d 541 (9th Cir. 1984). 17 Gonzalez-Rivera v. INS, 22 F.3d, 1441, 1449, n.5 (We emphasize that [we do not] hold that only bad faith violations are egregious, but rather that all bad faith constitutional violations are egregious.). 18 Gonzalez-Rivera, 22 F.3d at 1449. 19 See, e.g., Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 101819 (9th Cir. 2008); Gonzalez-Rivera v. INS, 22 F.3d 1441, 1450 (9th Cir. 1994). 20 Lopez-Rodriguez, 536 F.3d at 1018 (Our confidence in this result is further underscored by our cognizance of the extensive training INS agents receive in Fourth Amendment law.) (quoting Orhorhaghe, 38 F.3d at 503 n.23) (citing Lopez-Mendoza, 468 U.S. at 104445). 21 22 F.3d 1441 (9th Cir. 1994). 22 38 F.3d 488 (9th Cir. 1994). 23 536 F.3d 1012 (9th Cir. 2008). 24 Matter of Cervantes-Torres, 21 I&N Dec. 351, 353 (BIA 1996). 25 Martinez-Medina v. Holder, 616 F.3d 1011 (9th Cir. 2010).
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need not determine whether a Fourth Amendment violation occurred because, even if a violation took place, a reasonable officer could not have been expected to know that his conduct was unconstitutional. 26 Q: To be egregious, must a violation transgress notions of fundamental fairness and undermine the probative value of the evidenced obtained? A: Citing language in the final phrase of the exception, the government frequently argues that a Fourth Amendment violation cannot be considered egregious unless it both: (a) transgresses notions of fundamental fairness; and (b) undermines the probative value of the evidence obtained. However, every circuit that has recognized the exception has rejected this argument. In Gonzalez-Rivera, the Ninth Circuit explicitly held that a fundamentally unfair Fourth Amendment violation is considered egregious regardless of the probative value of the evidence obtained. 27 The Second Circuit engaged in a lengthy discussion of this question in Almeida-Amaral before concluding that movants need only establish one or the other. 28 The Eighth Circuit, without analyzing the question, likewise evaluated a suppression claim using an either/or standard. 29 Q: How have other federal appellate courts treated the exception for egregious violations? A: Although no other circuit court has rejected the egregious violation exception, few have provided meaningful guidance as to its scope. The First Circuit 30 and Third Circuit 31 have acknowledged the exception but have not otherwise expounded upon its meaning. The Sixth Circuit has acknowledged the exception 32 and stated in dicta that it might apply where a noncitizen is accosted by the police in a random attempt to determine whether he was an illegal alien. 33 The Seventh Circuit, while not officially incorporating the exception as the law of the circuit, has repeatedly noted that the U.S. Supreme Court left open the question. 34 The Tenth Circuit has not decided a case involving a respondent seeking to invoke the exception, but referred to it with approval in a criminal appeal involving a defendant prosecuted for illegal re-entry. 35 Meanwhile, the validity of the exception remains an open question in the Fourth, Fifth, and Eleventh Circuits. In the Fourth Circuit, two unpublished cases in the early 1990s appeared to adopt the exception, 36 but a subsequent published case left open its applicability. 37 By contrast, the Fifth Circuit once appeared to hold that the exclusionary rule never applies in deportation proceedings, 38 but a recent unpublished opinion stated that it need not reach the question of whether an egregious violation of the Fourth Amendment would
Martinez-Medina, 616 F.3d at 1017. Gonzalez-Rivera, 22 F.3d at 1451. 28 Almeida-Amaral, 461 F.3d at 234 29 Puc-Ruiz, 629 F.3d at 778 (The probative value of the evidence obtained as a result of Puc-Ruizs arrest is undisputed; we therefore examine whether the alleged Fourth Amendment violation was sufficiently egregious to transgress notions of fundamental fairness.). 30 Westover v. Reno, 202 F.3d 475 (1st Cir. 2000); Navarro-Chalan v. Ashcroft, 359 F.3d 19, 2223 (1st Cir. 2004); Kandamar v. Gonzales, 464 F.3d 65, 66 (1st Cir. 2006). 31 United States v. Bowley, 435 F.3d 426, 431 (3d Cir. 2006) ([A]bsent the kind of egregious circumstances referred to in Lopez-Mendoza, we hold that the Fourth Amendment does not provide a basis for an alien to suppress evidence.). 32 United States v. Navarro-Diaz, 420 F.3d 581, 587 (6th Cir. 2005). 33 Navarro-Diaz, 420 F.3d at 587. 34 Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010); Krasilych v. Holder, 583 F.3d 962, 967 (7th Cir. 2009); Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002); 35 United States v. Olivares-Rangel, 458 F.3d 1104, 1116 n.9 (stating that even if evidence of the defendants prior removal was excluded from a criminal trial, the social cost remained slight because the evidence could still be introduced in removal proceedings absent an egregious violation.). 36 Odukwe v. INS, No. 92-1037, 1992 U.S. App. LEXIS 27976 at *2 (4th Cir. Oct. 22, 1992); Mineo v. INS, No. 93-1631, 1994 U.S. App. LEXIS 3269 at *56 (4th Cir. Feb. 24, 1994). 37 United States v. Oscar-Torres, 507 F.3d 224, 227 n.1 (4th Cir. 2007) ([W]e need not consider whether egregious violations of the Fourth Amendment might warrant a suppression remedy where none otherwise exists.). 38 Mendoza-Solis v. INS, 36 F.3d 12 (5th Cir. 1994).
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warrant suppression. 39 Finally, the Eleventh Circuit has not decided a published case involving a respondent seeking to invoke the egregious violation exception to Lopez-Mendoza, though in an unpublished opinion the panel stated that assuming arguendo an egregious violation would warrant suppression in an immigration case, the evidence did not establish such a violation. 40 Q: Can respondents exclude evidence due to widespread Fourth Amendment violations? A: As previously indicated, the final section of Lopez-Mendoza stated that the Courts conclusions about the value of the exclusionary rule might change if Fourth Amendment violations by immigration officers became widespread. 41 Lamentably, but perhaps not surprisingly, much evidence exists that such violations have occurred with growing frequency, particularly within the past decade. 42 To date, however, we are aware of no cases resulting in the exclusion of evidence on this ground. In Melnitsenko v. Mukasey, 43 the Second Circuit declined to consider whether the nationwide prevalence of constitutional violations constituted a separate exception to Lopez-Mendoza because the petitioner had not raised the claim below. The panel stated that the argument concerns a factual determination that should have been made by the agency in the first instance. 44 While we encourage attorneys to alert immigration judges to the nationwide prevalence of Fourth Amendment violations, we caution against relying solely on this argument. Q: What is the relationship between egregious Fourth Amendment violations and the Due Process Clause of the Fifth Amendment? A: Much confusion exists over the relevance of the Due Process Clause in evaluating a motion to suppress based upon an egregious Fourth Amendment violation. Some immigration judges believe that evidence discovered through an egregious Fourth Amendment violation is suppressible because its introduction would undermine the fair hearing requirement of the Due Process Clause. 45 Although this approach may have been analytically correct at one time, a U.S. Supreme Court case issued after Lopez-Mendoza indicates that claims cognizable under the Fourth Amendment should not be analyzed under the Due Process Clause. 46 For this reason, the Court has indicated that Rochin v. California 47 the principal case cited in support of the egregious violation exceptionwould today be treated under the Fourth Amendment rather than the Due Process Clause. 48 Notably, no federal circuit court to consider the question has linked egregious Fourth Amendment violations to the Due Process Clause. To be sure, the Due Process Clause ensures that respondents receive an opportunity to challenge the introduction of evidence in the first place, and provides an independent basis for excluding evidence in some circumstances (see below). But where immigration officers obtain evidence as a result of a Fourth
Escobar v. Holder, No. 09-60275, 2010 U.S. App. LEXIS 21568 at *67 (5th Cir. Oct. 13, 2010). Rampasard v. Attorney General, 147 Fed. Appx. 90 at *4. (11th Cir. 2005). 41 Lopez-Mendoza, 468 U.S. at 1050 (opinion of OConnor, J.). 42 See, e.g., Stella Burch Elias, Good Reason to Believe: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wisc. L. J. 1109 (2009), available at http://hosted.law. wisc.edu/lawreview/issues/2008_6/2_-_elias.pdf. See also Brief of Amici Curiae Latino Justice PRLDEF, No. 10-1479, Argueta, et al. v. ICE, et al. (3d Cir. Dec. 10, 2010). 43 517 F.3d 42 (2d Cir. 2008). 44 Id. at 47, n.6. 45 See, e.g., Matter of [Redacted], Order of Williams, J., Aug. 5, 2010, at 15, 17 (Egregious Fourth Amendment violations are violations of the Due Process Clause of the Fifth Amendment and such evidence may therefore be suppressed if it affects the fundamental fairness of a proceeding.) (citing Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980)), available at www.law.umaryland.edu/programs/clinic/initiatives/immigration/documents/suppression-decision.pdf. 46 Graham v. Connor, 490 U.S. 386, 395 and n.10 (1989). While the Graham holding specifically concerned a claim of excessive force during a seizure covered by the Fourth Amendment, the Courts reasoning would apply equally to other types of Fourth Amendment claims. 47 342 U.S. 165 (1952). 48 County of Sacramento v. Lewis, 523 U.S. 833, 849 n.9 (1998).
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Amendment violation, its introduction in a removal proceeding should be barred under the Fourth Amendment itself, not the Due Process Clause of the Fifth Amendment. Q: On what other grounds may attorneys base a motion to suppress? A: Apart from the Fourth Amendment, the Due Process Clause of the Fifth Amendment provides an independent basis for a motion to suppress. Under the Due Process Clause, an administrative body may not rely upon evidence if its introduction would be fundamentally unfair. 49 Quintessential examples of such evidence are statements or admissions obtained involuntarily or under coercive circumstances. 50 Wherever possible, attorneys should also allege violations of Section 287 of the Immigration and Nationality Act and/or related regulations codified at 8 CFR Part 287. Violations of regulatory provisions may constitute independent (though often related) grounds for the suppression of evidence under Matter of Garcia-Flores. 51
Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980). See, e.g., Matter of Garcia, 17 I&N Dec. 319 (BIA 1980); Choy v. Barber, 279 F.2d 642 (9th Cir. 1960); Navia-Duran v. INS, 568 F.2d 803 (1st Cir. 1977); Singh v. Mukasey, 553 F.3d 207 (2d Cir. 2009). 51 17 I&N Dec. 325 (BIA 1980).
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CAN WE TRY THAT AGAIN? MOTIONS TO REOPEN

by Cynthia A. Aziz, Raul E. Godinez, Gerald Seipp *
Getting a second chance for someone with a final order of removal is limited by time, number, pivotal new evidence, and the respondents stamina. The following practice advisory outlines the legal landscape and offers practical tips when utilizing motions to reopen and, when appropriate, motions to rescind. BASIC RULES OF REOPENING Motions to reopen and/or reconsider removal orders, as well as decisions at the U.S. Citizenship and Immigration Services (USCIS) level, are an important tool with which every immigration practitioner needs to be acquainted. Historically, at least in the removal context, the U.S. Supreme Court 1 had expressed that such motions are disfavored, as they serve to frustrate the governments interest in finality. Prior to the passage of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), 2 motions to reopen were strictly a creature of regulation. Since IIRAIRA, there has been a statutory scheme, set forth at INA 240(c), 3 imposing strict limits on motions to reopen (MTR) removal orders. Now by statute and by 8 CFR 1003.2, motions to reopen are limited to one that must be filed with the last tribunal having jurisdiction no later than 90 days from the final decision either by the Board of Immigration Appeals (BIA or Board) or the immigration judge (IJ). This means that if a case has been appealed to the BIA and the appeal is still pending, the IJ does not have jurisdiction to hear a motion to reopen. 4 In such an instance, a motion to remand can be filed with the BIA based on the new evidence. Customarily, the BIA will not rule on the motion until it reaches the case in its processing of the appeal. In effect the motion to remand and the appeal will be consolidated. Statutory exceptions exist for motions filed jointly with the Department of Homeland Security (DHS), sua sponte reopenings by an immigration judge or the BIA, ineffective assistance of counsel claims, motions filed by victims of crimes or battered spouses, changed country conditions for asylum, withholding or Convention Against Torture (CAT) claims, and
Cynthia A. Aziz founded Aziz Law Firm, P.A. in 2000, specializing in U.S. immigration and nationality law. She is a boardcertified immigration law specialist in the North Carolina Bar Association, and is a past chair of the bars Immigration Specialization Committee. She has written for and spoken at CLE events across the country. Ms. Aziz is a former chair of AILAs Arizona Chapter, has served on the TSC Liaison Committee, and is a current member of the EOIR Liaison Committee. She is the recipient of the AILA Carolinas Chapters Elizabeth Gervais Gruen Mentor Award and has been named a Super Lawyer in North Carolina annually since 2008. She earned her B.A. from Mt. Holyoke College and her J.D. from the New England School of Law. Raul E. Godinez established and successfully manages the Law Office of Raul E. Godinez, a Los Angeles firm that specializes in removal defense. He practices before the immigration courts, the Board of Immigration Appeals, district courts, and the U.S. Court of Appeals for the Ninth Circuit. He was counsel in the published decisions Juarez v. Ashcroft and Mejia v. Gonzales, and was recognized by AILA with the Joseph Minsky Award. Mr. Godinez is a past chair of AILAs Southern California Chapter. He received his J.D. from the University of San Diego and his undergraduate degree from the University of California at Berkeley. Gerald Seipp is a graduate of the University of Michigan Law School and a member of the New York and Florida bars. He practices immigration law with the Dilip Patel Law Firm in Oldsmar, Florida. In addition to his 27 years of immigration practice, he taught the Immigration Law course for 15 years at the State University of New York at Buffalo Law School. Mr. Seipp is a frequent speaker and has written numerous articles on immigration law topics. He currently summarizes federal court decisions for West Groups weekly Interpreter Releases, and periodically contributes to its Immigration Briefings, including a recent Briefing on the topic of mandatory detention. He writes the Forewords for Wests Asylum Case Law Sourcebook (20082010), which contain his case summaries extracted from the Interpreter Releases. He is a member of the AILA and is listed in Best Lawyers in America. 1 INS v. Doherty, 502 U.S. 314 (1992); INS v. Abudu, 485 U.S. 94 (1988). 2 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), Pub. L. No. 104-208 (Sept. 30, 1996). 3 8 USC 1229(c) and 8 CFR 1003.2.
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Ilic-Lee v. Mukassey, 507 F.3d 1044, 1049 (6th Cir. 2007).

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motions to reopen or rescind in absentia orders of removal or deportation. The specific executing statutory exceptions provide their own criteria and time-lines. 5 The Executive Office for Immigration Review (EOIR) Immigration Court Practice Manual provides a useful Deadline chart which includes time limitations for motions to reopen falling under these exceptions. 6 Equitable tolling, a creature of case law, permits belated MTRs based on ineffective assistance of counsel claims and fraudulent or erroneous conduct. The moving party in a motion to reopen must demonstrate that the evidence to be offered is (1) material; (2) new, i.e., not previously available at the original hearing; (3) not discoverable or able to be presented at the original hearing. 7 For a case to be reopened the new evidence must be shown to likely change the outcome of the case. 8 The motion should be supported by affidavits or other documentary evidence 9 If an application is needed for the relief sought, the application should accompany the motion. However, the fee associated with the application for relief need not be paid until the case is successfully reopened. Only the fee for the motion to reopen must be paid when filing the motion. 10 SUPREME COURT AND CERTAIN CIRCUITS BREATHING NEW LIFE INTO UTILITY OF MOTIONS TO REOPEN The U.S. Supreme Court has recently done an about-face and now recognizes MTRs, as an important safeguard intended to ensure a proper and lawful disposition of immigration proceedings. 11 In what may go down in the annals as a blockbuster decision in this complex area of law, the Second Circuit recently pronounced that, in order to avoid serious issues touching on the Constitutions habeas corpus Suspension Clause,: (1) the statutory motion to reopen process cannot be unilaterally terminated by the government; and (2) agency denials [of MTRs] are subject to meaningful judicial review. 12 In Luna v. Holder, the court summarized its ruling as follows: [In] sum, the governments power to remove aliens subject to a final order of removal does not make the MTR process subject to manipulation by the government. The BIA retains jurisdiction over such motions [notwithstanding the aliens physical removal from the United States], and we [the court] retain jurisdiction over resulting appeals, if timely [filed within 30-days]. The court went on to comment that it could not contemplate every way in which the MTR process might operate in the future, but emphasized that, because the writ of habeas corpus is designed to restrain the governments power, it must ensure that the MTR process remains an adequate and effective substitute for habeas, citing to Boumediene v. Bush. 13 Circuit Split on Post-Departure Bar8 CFR 1003.2(b) Luna v. Holder, 2011 WL 722607 (2d Cir. 2011), involved two petitioners: Luna and Thompson. Both of their motions to the Board for reissuance of the Boards negative orders were denied because they had been deported from the United States. These motions were for the purpose of permitting the petitioners the opportunity to file a timely (within 30 days) petition for review with the circuit court. Lunas motion was based on alleged ineffective assistance of counsel, as he claimed that his attorney had failed to timely notify him of the BIAs decision. Thompsons motion indicated that his detention prevented him from garnering the necessary paperwork to file a judicial petition. The Board summarily rejected both motions pursuant to the
Nicaraguan and Central American Relief Act (NACARA), Pub. L. No. 105-100 (Dec. 2, 1997); Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), Pub. L. No. 105-277 (Oct. 21, 1998); 8 CFR 1003.44 Special Motion to seek 212(c) relief for aliens who pleaded guilty (or nolo contendere) to certain crimes before Apr. 1, 1997. 6 EOIR, Immigration Court Practice Manual, Appendix D. 7 8 CFR 1003.2. 8 Matter of Coehlo, 20 I&N Dec 464 (BIA 1992). 9 8 CFR 1003.2(c)(1), 103.5(a)(2). 10 8 CFR 103.7(b)(1), 1103.7(b)(1). 11 Kucana v. Holder, 130 S. Ct. 827, 834 (2010) (quoting Dada v. Mukasey, 554 U.S. 1, 18 (2008). 12 Luna v. Holder, 2011 WL 722607 (2d Cir. 2011). 13 553 U.S. 723 at 76566 (2008), holding, inter alia, that aliens detained as enemy combatants at the Guantanamo Bay Naval Station were entitled to privilege of habeas corpus to challenge the legality of their detention.
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so-called departure bar regulation. 14 The Second Circuit observed the circuit split on the issue of the validity of this regulation and sided with the Fourth 15 and Sixth 16 Circuits, which have found this regulation to be in contravention of the statute and thus invalid. It rejected apparently contrary decisions by the Fifth and Tenth Circuits. 17 It proclaimed that, since Congress enacted the IIRAIRA in 1996, nothing in the INA undergirds a conclusion that the BIA lacks jurisdiction to issue decisions that affect the legal rights of departed aliens. It declared that, because the BIAs departure regulation has no roots in any statutory source and misapprehends the authority delegated to the Board by Congress, the BIA must consider an aliens MTR even if the alien is no longer in the United States. At the same time, it explicitly declined to decide the validity of the departure bar regulation in every context. It cited its prior decision in Zhang v. Holder, 18 which held that the departure bar regulation serves to terminate a request for which there is no statutory basis, as when the BIA exercises its regulatory (i.e., sua sponte) authority to reopen a removal proceeding. It also stated that Seventh Circuit precedent, Marin-Rodriguez v. Holder 19 , which considered that the BIAs understanding of the departure bar as a limitation on its sua sponte jurisdiction, as opposed to its jurisdiction to consider timely MTRs under the INA, cannot be said to be untenable. The ultimate holding in Luna was that the 30-day timeline for filing a petition for review with the circuit court does not violate the suspension clause. Although it denied the petitions filed by Luna and Thompson, the court clarified that, notwithstanding their lack of presence in the United States, they can file motions to reopen with the Board to request equitable tolling, and, ultimately, reissuance of the Boards previous orders. EXCEPTIONS FOR BELATED AND/OR NUMBER-BARRED MOTIONS TO REOPEN Besides the special provisions contained in special legislation, generally country specific in nature, allowing belated MTRs, the statutes and regulations, as well as certain case law conventions, permit considerations of MTRs that normally would be time and/or number barred. Changed Circumstances in Aliens Country Permitting Belated MTR to File Asylum Application Pursuant to INA 240(c)(6)(C)(ii), there is no time limit on the filing of a MTR if the basis of the motion is to apply for relief under INA 208 (asylum) or 241(b)(3) (withholding of removal) and is predicated on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding. See also 8 CFR 1003.2(c)(3)(ii) (BIA) and 1003.23(b)(4)(i) (IJ). Significantly, this exception does not apply to changed personal circumstances pertaining to the aliens situation. Thus, if an alien decides to convert to a religion that is not favored in his or her home country, decides to engage in oppositional political activities that may place him or her at risk in the home country, or, in the case of a Peoples Republic of China (PRC) national, decides to have a large family in the United States, these circumstances would not justify a belated MTR. Courts are prone to pronounce that one is not allowed to, in essence, create an asylum claim based on voluntary conduct and be excused from the general strictures pertaining to MTRs. The circuit courts have not hesitated to review denials of MTRs in this arena based on an abuse of discretion standard. For example, in Smith v. Holder, 20 the First Circuit held that the BIA erred in several respects in denying a belated MTR filed by a citizen of Zimbabwe. It considered that the recent violence against his family members could constitute a material change in country conditions. It faulted the Board for
8 CFR 1003.2(b). William v. Gonzales, 499 F.3d 329 (4th Cir. 2007). 16 Pruidze v. Holder, 632 F.3d 234, (6th Cir. 2011); See also Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010), Reyes-Torres v. Holder, 2011 WL 1312570 (9th Cir. 2011), finding 8 CFR 1003.2(d) inapplicable to involuntary removals. 17 Ovalles v. Holder 577 F.3d 288 (5th Cir. 2009); Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009)upholding 1003.2 in context of a regulatory MTR. 18 617 F.3d 650 (2nd Cir. 2010). 19 612 F.3d 591 (7th Cir. 2010). 20 627 F.3d 427 (1st Cir. 2010).
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refusing to consider the evidence of past persecution as improperly conflating Smiths burden to make a prima facie showing of eligibility for relief with the requirement that he produce previously unavailable evidence in order to justify reopening. Accordingly, the court found that the BIA abused its discretion in denying the belated MTR. It is important to be aware that, even if a particular alien had not previously applied for asylum or even if the alien is subject to an in absentia removal order, this statute can be invoked to allow a belated MTR in a situation where there is a legitimate argument that changed dynamics in the aliens home country serve to place the alien at risk of persecution; e.g., Habchy v. Fili. 21 In that case, the petitioner, a Lebanese national, was ordered removed in absentia in 2000, and had failed in his prior attempts to reopen his case all the way through the Eight Circuit. Upon his second petition for review, the circuit court reversed an adverse decision by the BIA that had denied his belated MTR. The court was impressed by the reality that the new situation in his country rendered him vulnerable to persecution by the Hizballah faction following Lebanons 2006 conflict with Israel. Special Rules for Battered Spouses, Children, or Parents, and Victims of Crimes A VAWA self-petitioner is not subject to the numerical or time limitations set out 8 CFR 1003.2 nor by INA 240(c)(7)(A) and (C)(i). Battered spouses and abused children seeking relief based on a self petition, cancellation of removal, or temporary protected status, must file MTRs within one year of a final order or have the time limitation waived by the attorney general based on extraordinary circumstances or extreme hardship to the persons child. The respondent must be physically present in the United States at the time the motion is filed. Additionally, the motion must be accompanied by the Cancellation of Removal Application or by a copy of the I-360 self-petition. 22 Despite early misinterpretation of the special MTR rules by Immigration and Customs Enforcement (ICE), ICE headquarters has provided guidance to its field offices as to the different rules for Violence Against Women Act (VAWA) respondents. 23 The filing of a MTR for self-petitioner stays the removal of the qualified person pending the disposition of the motion. Any qualified family members are not protected by the automatic stay while the motion is pending. If appropriate, motions for stay would need to be filed by the qualified family members. The stay of removal includes exhaustion of all appeals if the motion establishes that the individual is a qualified petitioner. The definition of exceptional circumstances within the context of 240 removal proceedings and 240A Cancellation of Removal was expanded by VAWA and the Department of Justice Reauthorization Act of 2005 24 to include battery or extreme cruelty to the alien or any child or parent of the alien. So, where there has been an in absentia removal order against an individual who has suffered battery or extreme cruelty by a spouse or parent, exceptional circumstances can be established to form a basis on which to rescind the absentia removal order. For a victim of domestic violence, battery, and extreme cruelty who is not in proceedings but who sought adjustment of status before USCIS and was denied, USCIS guidance from 2008 allows the reopening of his or her applications. VAWA self-petitioners whose I-485s were filed on or after January 14, 1998, and were denied solely because of an illegal entry to the United States are eligible to file MTRs without fee with USCIS. 25
552 F.3d 911 (8th Cir. 2009). INA 240(c)(7)(C)(iv). 23 E-mail exchange between ICE Assistant Secretary J. Myers and J. Lin, Legal Momentums Immigrant Women Program, www.asistahelp.org/documents/resource. 24 Pub. L. No. 109-162, Jan. 5, 2006, 119 Stat. 2960. 25 USCIS Fact Sheet: USCIS Issues Guidance for Approved Violence Against Women Act Self-Petitioners.
22
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Joint Motions to Reopen An exception to the number and time restrictions exists if the motion to reopen is agreed upon by all parties and jointly filed. 26 However, the deadline for filing a motion to reopen is not tolled while a petitioner waits for a response from the district counsel regarding whether the government will join the motion. 27 Before filing any motion to reopen an individual should be familiar with local practices and policies of the Office of Chief Counsel. Further, if there has been a change in leadership, there may also be a change in practices. Some offices may not consider joint motions to reopen if you are still litigating another motion before the court. You may have to choose which motion to pursue first: either file a regular motion to reopen with the court or seek a joint motion to reopen with the Office of Chief Counsel. There are several considerations to be weighed before deciding to file a motion to reopen with the court or seek a joint motion with the Office of Chief Counsel. If you client is detained, the biggest factor you may need to consider is if you will obtain a stay of removal while the motion to reopen is pending. The timeliness and degree of cooperation you may get from the Office of Chief Counsel may vary from one location to another. One should at the very least seek to find out how frequently the Office of Chief Counsel agrees to joint motions to reopen and how likely they are to agree in your case. When presenting a request for a joint motion to reopen, different Offices of Chief Counsel may give more consideration to some factor overs others. Factors to be considered include eligibility for relief if the case is reopened; why the person did not leave; criminal record or other negative factors; and, ultimately, why the office should agree to reopen. A declaration written by the immigrant that addresses these issues may be necessary. Ineffective Assistance of Counsel Ineffective assistance of counsel claims are presented through a motion to reopen. Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. 28 An alien must also show prejudice by demonstrating the alleged violation affected the outcome of the proceedings. 29 To prevail on an ineffective assistance of counsel claim, the petitioner must make two showings. First, the petitioner must demonstrate that counsel failed to perform with sufficient competence. 30 Second, petitioner must generally show that she was prejudiced by her counsels performance. 31 An exception to the prejudice requirement exists for in absentia orders where a claim of ineffective assistance of counsel is the basis for moving to reopen and rescind an in absentia removal order. 32 To show prejudice, the immigrant only needs to show that he has plausible grounds for relief. 33 The court will consider the underlying merits of the case to come to a tentative conclusion as to whether [petitioners] claim, if properly presented, would be viable. 34 A motion to reopen based on ineffective assistance of counsel must comply with the Lozada requirements. The Board has found that a motion must: (1) include an affidavit explaining the immigrants agreement with former counsel regarding his legal representation; (2) present evidence that prior counsel has been informed
8 CFR 1003.2(c)(3)(iii); Bolshakov v. INS, 133 F.3d 1279, 128182 (9th Cir. 1998). Valeriano v. Gonzales, 474 F.3d 669, 67375 (9th Cir. 2007). See also Alzaarir v. Attorney General, 2011 WL 668119 (3d Cir. 2011) (affirming denial of motion to reopen by the BIA, which refused to equitably toll the time-bar despite the petitioners allegation that DHS counsel reneged on its conditional promise to join in a belated motion). 28 Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999). 29 Torres-Chavez, 567 F.3d at 1100. 30 Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). 31 Id. 32 Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003). 33 Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004). 34 Id.
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of the allegations against him or her and given an opportunity to respond; and (3) either show that a complaint against prior counsel was filed with the proper disciplinary authorities or explain why no such complaint was filed. 35 The Lozada requirements are not sacrosanct, and the court has not hesitated to address an ineffective assistance of counsel claim even when petitioner fails to comply strictly with Lozada. 36 Equitable Tolling The 90-day/one-motion limitations are not jurisdictional, and are amenable to equitable tolling. 37 Equitable tolling is available when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error. 38 Likewise, the 180-day limit on filing a motion to reopen and rescind an in absentia removal order may also be tolled. 39 In Socop-Gonzalez v. INS, 40 the court held that equitable tolling is available in situations where, despite all due diligence, [the party invoking equitable tolling] is unable to obtain vital information bearing on the existence of the claim. 41 The party invoking tolling need only show that his or her ignorance of the limitations period was caused by circumstances beyond the partys control. 42 Equitable tolling is recognized in cases involving ineffective assistance by an attorney or representative, coupled with fraudulent or erroneous conduct. 43 Also, ineffective assistance of counsel, where a nonattorney engaged in fraudulent activity causes an essential action in his or her clients case to be undertaken ineffectively, may equitably toll the statute of limitations. 44 The filing deadline may be tolled until the petitioner, exercising due diligence, discovers the fraud, deception, or error. In cases involving ineffective assistance, the Ninth Circuit has found that the limitation period may be tolled until the petitioner meets with new counsel to discuss his or her file, thereby becoming aware of the harm resulting from the misconduct of the prior representatives. 45 Sua sponte Motions to Reopen Pursuant to 8 CFR 1003.2(a) and 1003.23(b)(1), the BIA and IJs, respectively, are vested with the authority to grant MTRs despite the time and number bars, sua sponte, based on exceptional circumstances. Of course, these MTRs typically reach the BIA or the IJ based on a pitch by the alien or his or her attorney that the agency should exercise this special prerogative. An excellent example for this type of relief is the situation of an alien who is ordered deported, along with her family, as a young minor, but who is lucky enough to be among the hundreds of thousands of aliens against whom the removal order is not enforced for one reason or another. If that individual marries a U.S. citizen and obtains an approved I-130 immediate relative petition, and is eligible for adjustment of status but for the removal order, of which the alien may not even have been aware, an IJ or the BIA can often be persuaded to find the requisite exceptional circumstances to warrant sua sponte reopening even if DHS counsel declines to join in the motion.
Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). Ray v. Gonzales, 439 F.3d 582, 588 (9th Cir. 2006). 37 Socop-Gonzalez v. INS, 272 F.3d 1176, 1188 (9th Cir. 2001) (en banc). 38 Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). 39 Fajardo v. INS, 300 F.3d 1018, 1022 (9th Cir. 2002). 180-day limit for filing motion to reopen proceedings conducted in absentia based on exceptional circumstances tolled due to deceptive actions of notaries.
36 40 41
35
272 F.3d 1176 (9th Cir. 2001) (en banc). Id. at 1193. 42 Id. 43 Iturribarria v. INS, 321 F.3d 889, 89798 (9th Cir. 2003). 44 Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1099 (9th Cir. 2005). 45 Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir. 2003).
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In a recent disappointing and, it is to be hoped, aberrant decision by the Fifth Circuit, Gregoire v. Holder, 46 the court upheld a decision by the BIA that reversed an IJs sua sponte granting of a MTR and an adjustment of status notwithstanding that the alien was subject to an in absentia order that she had been unsuccessful in reopening. The court agreed with the Boards rationale that the specific statutory requirements for rescinding an in absentia order (filing motion within 180 days in exceptional circumstance cases where the alien had received notice) served to trump the general sua sponte authority granted to the IJ. This decision certainly exemplifies the minefield that pervades our motion to reopen practice, with its inherent unpredictability and potential exposure for the client. As reported in the American Immigration Councils March 2011 LAC Docket newsletter, Volume 1, Issue 2, the Ninth Circuit has recently intimated that the circuit courts perhaps should reconsider their nearly unanimous holdings that they are powerless to review denials of sua sponte MTRs. 47 Mejia-Hernandez v. Holder, 633 F.3d 818, 2011 WL 240357 (9th Cir. 2011), dealt with numerous issues concerning the MTR scheme. Mr. Mejia, a Guatemalan citizen, was ordered removed in absentia in 1997. In 1998, he retained the services of a non-attorney whose malfeasance resulted in missing the timeline to file a special motion for relief under the 1996 Nicaraguan Adjustment and Central American Relief Act (NACARA). 48 After his wife was granted NACARA adjustment in 2005, Mr. Mejia ascertained that his prior representative had defaulted on his case. Accordingly, he filed a MTR, which the IJ reopened sua sponte, despite ruling that the in absentia order itself was proper. Although agreeing that the petitioner satisfied the hardship considerations under NACARA, DHS counsel nonetheless appealed the IJs grant of relief, arguing to the Board that the IJ had abused discretion in exercising sua sponte authority to reopen the case. The BIA agreed with the governments position on this point, and, consequently, overturned the IJs decision and ordered Mejias removal. The Ninth Circuit adhered to its prior rulings that a decision not to reopen sua sponte is committed to agency discretion, as there is no meaningful standard against which to judge the BIAs decision in that regard. It cited a Tenth Circuit case, Tamenut v. Mukasey, 49 which summarized the other circuit precedents that are in accord10 circuits ruling, in effect, that the exceptional circumstances standard is too amorphous a standard to justify judicial review. Despite its refusal to come to Mejias aid with respect to two of his theories, the Ninth Circuit did agree with his argument that he was entitled to equitable tolling to excuse his belated MTR. The court found that Mejia had reasonably relied on the advice of his previous fraudulent attorney, and that this served to toll the deadline for filing the MTR under the NACARA provision. The court cited to its prior decision in Iturribarria v. INS, 50 which recognized the validity of equitable tolling to excuse belated MTRs. It held that Mejia exercised the required due diligence in filing his MTR upon discovery of the fraud that had been perpetrated against him, so he was entitled to nunc pro tunc consideration of his NACARA application. In Cruz v. Attorney General, 51 the Third Circuit undertook review of the Boards refusal to exercise sua sponte authority to relieve the petitioner of a removal order based on the post-order vacation of an underlying criminal conviction. It remanded the case back to the BIA to determine whether Cruz is no longer convicted under the INA, expressing that it expected the Board to reopen the proceedings despite the untimeliness of his motion, as it has routinely done in other cases where a conviction is properly vacated, or, at least to explain logically its unwillingness to do so. The Third Circuits refusal to dismiss this case on jurisdictional grounds
46 635 F.3d 159 (5th Cir. 2011)Postscript: On Apr. 8, 2011, the court withdrew its opinion and dismissed the petition for review based on a joint motion of the parties. Without the courts knowledge, the BIA had granted an unopposed motion to reopen in Nov. 2010, based on a totality of the circumstances, including the continuing devastation in Ms. Gregoires country, Haiti. 47 Mejia-Hernandez v. Holder, 633 F.3d 818, 2011 WL 240357 (9th Cir. 2011). 48 Ilic-Lee v. Mukassey, 507 F.3d 1044, 1049 (6th Cir. 2007). 49 521 F.3d 1000 (8th Cir. 2008) (en banc). 50 321 F.3d 889 (9th Cir. 2003). 51 452 F.3d 240 (3rd Cir. 2006). See also Pllumi v. Attorney General, 2011 WL 1278741 (3d Cir. 2011) (granting petition for review and remanding case back to the BIA to reconsider its declination of sua sponte reopening in light of its misperception of the petitioners potential eligibility for humanitarian asylum).
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arguably distinguishes it as a single court minority in this conflicted area. Fortunately for Mr. Cruz, following the court remand, a New Jersey IJ terminated proceedings in 2007 and the DHS did not appeal this result. Getting Relief From In Absentia Removal Orders Motions to rescind in absentia orders should be distinguished from generic motions to reopen. INA 240(c)(7)(C)(iii), Failure to Appear, specifically instructs that the filing of an MTR entered pursuant to INA 240(b)(5)an in absentia orderis subject to the deadline specified in subparagraph (C) of such subsection, which is further subdivided. Subsection (C)(i) allows up to 180 days for the filing of a motion to rescind an in absentia order based on exceptional circumstances, as defined in INA 240(e)(1). Subsection (C)(ii) permits a MTR to be filed at any time if the alien demonstrates that she did not receive the requisite notice of her hearing or if she was in federal or state custody and the failure to appear was through no fault of her own. For motions based on lack of notice, it is not always sufficient that the alien did not actually receive either the Notice to Appear (NTA) to commence proceedings or a subsequent Notice of Hearing (NOH) issued by the immigration court. The administrative tribunals and the courts recognize the concept of constructive notice. Once the alien receives the NTA, he or she must keep the court apprised of his or her address; 8 CFR 1003.15(d) elaborates on the address reporting requirements, including that the alien submit the EOIR-33 change of address to the immigration court within 5 days of any change of address. If the alien fails to receive a subsequent Notice of Hearing (NOH) from the court because she moved and did not provide her new address, it is generally not going to be possible to rescind the resulting in absentia order. Although INA 239(a)(1)(G)(i) directs that the NTA include the time and place at which the proceedings will be held, in reality the court date is sometimes not provided. Circuit courts have held that failure to indicate the court date does not render the NTA to be defective, based on deference to an implementing regulation, 8 CFR 1003.18(b), which states that the NTA shall specify the time, place, and date of the initial removal hearing where practicable (emphasis added). Consequently, it is incumbent upon the alien to assure that he or she receives any subsequent NOHs directly from the court. Practice Pointer: As immigration court practitioners are aware, cases can be tracked through an automated 800 number: (800) 898-7180. It is good practice to provide this number to ones clients so that they can periodically check if their case is in the systemwhether it has been filed with the immigration court, and, if so, whether a hearing date has been set or any decision issued. Concept of Constructive Notice It is well understood that an alien is not entitled to actual notice of his or her removal hearing, as long as the government has exercised due diligence in providing notice reasonably calculated to apprise the alien of his or her proceeding. 52 In addition, once proceedings are pending with the court, notice to the aliens attorney is deemed to be sufficient. 53 There are special rules for service upon minors, which is beyond the purview of this article. Likewise, the cases distinguish between certified mail service and service by regular mail in terms of presumption of receipt. Motions Based on Alleged Lack of Notice The lack of notice cases can be broken down into discrete scenarios, including failure to receive the initial NTA and failure to receive an NOH after receipt of the NTA. The cases may differ based on whether the nonreceipt is undisputed or inconclusive. In many cases, there is no dispute that the alien did not receive notice, inasmuch as the government concedes that the written notice was returned by the U.S. Postal Service to the sending government agency. In those cases, the ability of the alien to obtain relief from the order hinges on whether he or she was properly advised of the address reporting obligations and whether he or she sufficiently complied.
52 53
Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997). 8 CFR 1292.5(a).
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In the case of an undisputed nonreceipt of the initial NTA, the alien arguably should always be relieved of an in absentia order, because, by definition, the alien cannot be charged with having received the address reporting obligations, as required by INA 239(a)(1)(F), the language of which is explicitly required to appear in the NTA. The BIA, in its precedent decision, Matter of GYR, 54 has recognized this principle. Of course, in the situation where the NTA or the NOH is not returned as undeliverable to the agency, it is incumbent on the alien to rebut the normal presumption that a properly addressed notice was duly delivered by the Postal Service. This often comes down to the credibility of the applicant. The statutes and the case law clearly allow service to be accomplished by regular mail. Upon the governments presentation of evidence of mailing, this erects a presumption of receipt, which the alien must overcome in order to be relieved of an in absentia order. Under BIA and circuit court case law, it helps if the alien can demonstrate that she was motivated to deal with her immigration case. This is especially the case where relief is available, such as a prior asylum or adjustment of status filing. In the Matter of MRA 55 precedent decision, the Board took the opportunity to outline seven nonexclusive factors to guide immigration judges in determining whether a respondent has rebutted the weaker presumption of regular mail delivery: (1) the respondents affidavit; (2) affidavits from family members and other individuals who are knowledgeable about the facts relevant to whether notice was received; (3) the respondents actions upon learning of the in absentia order, and whether due diligence was exercised in seeking to redress the situation; (4) any prior affirmative applications for relief, indicating that the respondent had an incentive to appear; (5) any prior application for relief filed with the immigration court or any prima facie evidence in the record or the respondents motion of statutory eligibility for relief, indicating that the respondent had an incentive to appear; (6) the respondents previous attendance at immigration court hearings; and (7) any other circumstances or evidence indicating possible nonreceipt of the notice. In the Ninth Circuits 2007 decision, Sembiring v. Gonzales, 56 the court reversed decisions by the IJ and the BIA denying the petitioners motion to rescind after she failed to appear for her July 30, 2003, hearing. Her removal proceeding was precipitated by her filing of an asylum application, which the former INS referred to the immigration court. When she appeared in court on July 3, 2003, she was given written notice to appear for her next hearing on August 5, 2003. When she duly appeared on that date, she was informed that her case had been rescheduled for July 30, 2003, and that, because she had failed to appear on that date, she was ordered removed in her absence. In her motion to rescind, she submitted a one-page letter, pro se, explaining these circumstances and asserting that she never received notice of the advanced hearing date. After the BIA upheld the IJs decision to deny the motion, the Ninth Circuit Court considered the matter. It cited its prior decision in Salta v. INS, 57 which held that the strong presumption of effective service that applies when service is by certified mail does not apply to service by regular mail, and that the fairly strong evidence that had been necessary to rebut the strong presumption is not required. Among other circuit decisions applying a less stringent, rebuttable presumption of receipt in regard to service by regular mail are Kozak v. Gonzales (First); 58 Sanatana Gonzalez v. Atty Gen. of United States (Third); 59 Nibagwire v. Gonzales (Fourth); 60 Maknojiya v. Gonzales (Fifth); 61 Joshi v. Ashcroft (Seventh); 62 Ghounem v. Ashcroft (Eighth). 63
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Matter of GYR, 23 I&N Dec. 181 (BIA 2001). See also: Matter of Anyelo, 25 I&N Dec. 337 (BIA 2010). Matter of MRA, 24 I&N Dec. 665 (BIA 2008). 56 Sembiring v. Gonzales, 499 F.3d 981 (9th Cir. 2007). 57 Salta v. INS, 314 F.3d 1076 (9th Cir. 2002). 58 Kozak v. Gonzales, 502 F.3d 34 (1st Cir. 2007). 59 Sanatana Gonzalez v. Atty Gen. of U.S., 506 F.3d 274 (3d Cir. 2007). 60 Nibagwire v. Gonzales, 450 F.3d 153 (4th Cir. 2006). 61 Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005). 62 Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004). 63 Ghounem v. Ashcroft, 378 F.3d 740 (8th Cir. 2004).
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Notwithstanding the unanimity of the circuit court rulings, it is often a challenging mission to overcome the presumption, given the reality that proving a negative is always a daunting task, and not every alien can satisfy the criteria enumerated under Matter of MRA. 64 Exceptional Circumstances Pursuant to INA 240(b)(5)(C)(i), 65 an alien may obtain rescission of an in absentia order upon filing a motion within 180 days of the order if he or she can demonstrate that the failure to appear was because of exceptional circumstances as defined under INA 240(e). The definitional section is somewhat unique in that it defines this term by use of the same term exceptional circumstances, with reference to enumerated examples contained in parentheses (such as battery or extreme cruelty to the alien or any child or parent of the alien, or serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien. This is obviously an extremely rigorous test. Prior to June 13, 1992, the test was more lenientreasonable cause. In actual practice, the new test is not so rigidly applied. For example, if the alien must travel from a distant state and his or her flight, arranged sufficiently in advance of the court date, is cancelled, this would certainly constitute a circumstance beyond the control of the alien, even though it could be argued this type of scenario is not exceptional. Likewise, assuming the alien allowed plenty of time to travel by motor vehicle to the court, but finds the road closed with no means of egress to take an alternative route (e.g., the alien was stuck on a bridge with no means to get to the court by any other method), one would expect that the immigration court would readily relieve the alien of an in absentia order, especially if the alien immediately notifies the court of the problem and files the motion well before the expiration of the 180-day time limit. A 1997 Board decision, Matter of SA, 66 construing the former term, reasonable cause, provides the classical example of a claim that the alien was prevented from reaching his hearing on time due to heavy traffic. It must be noted that this was actually a reasonable cause case. The Board convened en banc, resulting in three divergent opinions. The majority of the Board did not discourse at length, as it deemed the aliens credibility to be in doubt. It observed that he had filed two motions with inconsistent reasons for his absence and did not provide any corroboration. In his first motion, which was denied by the IJ, the alien asserted that he was late to his hearing because of heavy traffic between his home in Fort Myers, Florida, and the immigration court in Miami. 67 In a second motion, he stated that he had never received notice of his hearing, and that motion was likewise denied by the IJ. Before the Board, the alien relied only on the traffic excuse, explaining that the second motion was prepared by a notary and did not contain accurate information. Among other concerns, the opinion noted that the alien did not claim to have attempted to alert anyone at the immigration court as to his predicament upon his alleged late arrival to the court. Reading between the lines, one can assume that the Board was skeptical as to whether the alien had even showed up to the court on the scheduled hearing date. The Board also took the alien to task for not providing sufficient detail on the traffic congestion issue, in terms of location or timing. Former Board Chairman Paul Schmidt authored a brief dissent, expressing that he was not convinced that every incidence of tardiness must be treated as an absence from the hearing. 68 He stated that, if, in fact, the alien was merely 2030 minutes late because of traffic congestion, the interests of justice and the statutory purpose of providing fair hearings to aliens before removing them from the United States would have been better served by the IJ exercising his available discretion to hear the case at another time during the day. Board Member Lory Rosenberg wrote an eight-page dissent and endeavored to provide guidance to aliens and their practitioners in filing a persuasive motion.
Matter of MRA, 24 I&N Dec. 665 (BIA 2008). 8 USC 1229a(b)(5)(C)(i). 66 Matter of SA, 21 I&N Dec. 1050 (BIA 1997). 67 The approximate distance between those cities is 150 miles, and involves the need to drive across the Florida peninsula, from the West coast to the East coast (Mapquest.com routing suggests a duration of 2 hours, 35 minutes). 68 See discussion below on Ramifications of arriving late to court.
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One can construe the holding of this case as either a failure of proof or just for the proposition that exposure to heavy traffic, in a city where this is the norm, does not constitute a good reason to be late for court. Indeed, during the 12 years since SA was decided, we now have formidable case law at the circuit court level that establishes the principle that a mere late arrival to the immigration court during business hours does not always constitute a failure to appear. 69 However, the SA case has continued viability, especially in those circuits that have not yet addressed the impact of late arrivals, given that the Board has apparently not issued a subsequent decision on the late arrival issue. The Board has published an array of decisions on the criteria to establish exceptional circumstances. For the most part, those cases hinged on the quantum of proof required to support the aliens assertions. 70 Practice Pointer: At the risk of stating the obvious, in no-show situations that arise because of unforeseen circumstances beyond the control of the alien, it would behoove the alien or her representative to contact the immigration court immediately, either on the day of the hearing or as soon thereafter as possible, to explain the failure to appear. 71 Although the in absentia order may have been issued in the meantime, one would expect that the IJ and opposing DHS counsel will be considerably more sympathetic to the alien who comes forward at the earliest opportunity with a legitimate excuse, and perhaps take a more expansive reading of the exceptional circumstances requirement. It is certainly inadvisable to delay the filing of a motion to rescind toward the end of the 180-day time limit, or to wait until the alien finds himself or herself in a detention facility with the threat of imminent deportation. Ineffective Assistance of Counsel Claims and Equitable Tolling of 180-Day Time Limit Not surprisingly, it is very common for aliens to cast the blame on his or her attorney or representative for missing a hearing. As noted above, once a case is under way, hearing notices are typically sent only to the attorney, and not all attorneys are assiduous in maintaining their calendars or communicating with clients. Consequently, there are many published cases involving claims of ineffective assistance of counsel that resulting in in absentia removal orders. This problem is often compounded by the reality that attorneys often do not even advise their clients when such an order is issued. Given that notice to the attorney constitutes notice to the alien, a motion to rescind would have to be filed within 180 days, based on exceptional circumstances. Fortunately for aliens who are truly victimized by their attorneys nonfeasance or misfeasance, many of the circuits, and the Board itself, have applied the equitable tolling doctrine to permit motions to be filed beyond the normal 180 days. In Matter of Grijalva-Barrera, 72 the Board recognized the principle that an in absentia order can be vacated where an alien properly establishes that the failure to appear was based on ineffective assistance of counsel, which amounts to exceptional circumstances within the meaning of the statute. In that case the alien was erroneously advised by the attorneys office that his hearing had been continued and he then hired another attorney and filed his motion within one month of the order. In Aris v. Mukasey, 73 the Second Circuit vacated an in absentia order that resulted from erroneous advice provided by the alien petitioners counsel. Citing Iavorski v. INS, 74 the Second Circuit pointed out that the
Herbert v. Ashcroft, 325 F.3d 68 (1st Cir. 2003); Alarcon-Chavez v. Ashcroft, 403 F.3d 343 (5th Cir. 2005); Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999); Abu-Hasirah v. DHS, 478 F.3d 474 (2d Cir. 2007); Cabrera-Perez v. Gonzales, 456 F.3d 109 (3d Cir. 2006); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1998). (The circuit courts addressing this issue have been quite generous in relieving aliens of in absentia orders for brief tardiness; e.g. Herbert v. Ashcroft, Alarcon-Chavez v. Ashcroft, Jerezano v. INS, Abu-Hasirah v. Department of Homeland Security, Cabrera-Perez v. Gonzales, Nazarova v. INS. These decisions essentially ruled that merely appearing late does not constitute a failure to appear. We are still awaiting a precedent decision by the Board to nail this concept down.) 70 E.g., Matter of JP, 22 I&N Dec. 33 (BIA 1998); Matter of BAS, 22 I&N Dec. 57 (BIA 1998), reversed by Ninth Circuit, Singh v. INS, 213 F.3d 1050 (9th Cir. 2000). 71 E.g., see discussions in Matter of JP, 22 I&N Dec. 33 (BIA 1998); and Lonyem v. U.S. Atty Gen., 352 F.3d 1338 (11th Cir. 2003). 72 Matter of Grijalva-Barrera, 21 I&N Dec. 472 (BIA 1996). 73 Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008). 74 Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000).
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deadline for moving to reopen may be equitably tolled until the ineffective assistance of counsel is or should have been discovered by a reasonable person in the situation, and noted that that the government did not raise a due-diligence challenge in the instant case. Among other cases that reversed BIA decisions denying rescission of in absentia orders based on ineffective assistance of counsel and applying equitable tolling are Borges v. Gonzales 75 (Third Circuit); Pervaiz v. Mukasey 76 (Seventh Circuit); and Fajardo v. INS 77 (Ninth Circuit). However, the Eleventh Circuit, in Anin v. Reno, 78 concluded that the 180-day time period is jurisdictional and refused to grant an exception to this timeline based on ineffective assistance of counsel To obtain the benefit of equitable tolling of the 180-day time line for filing of motions to rescind based on exceptional circumstances, the courts have pronounced that aliens must act with due diligence and promptness after ascertaining their default posture. 79 Incarcerated Aliens Relieving an incarcerated alien of an in absentia order issued in a proceeding that he or she could not possibly attend would seem to be a result that would be constitutionally required, and would therefore strike one as being a noncontroversial proposition. In its recent precedent decision, Matter of Evra, 80 the BIA corrected a rather strange decision by an immigration judge who had construed the no fault language in the in absentia relief provision applicable to incarcerated aliens 81 as requiring the alien to establish that his or her criminal charges were dismissed or that they were acquitted of the charge for which they were jailed. That respondent was in criminal custody as a result of operating a motor vehicle while on a suspended license, an offense that would presumably not be considered a crime involving moral turpitude or an inadmissible or deportable offense under any other category. The Board aptly observed that the clear purpose of the statute is to prevent individuals in custody from being ordered removed in absentia when they are unable to attend their hearing as a result of incarceration. It clarified that the conduct underlying the aliens arrest and incarceration does not constitute fault within the meaning of the statute. Challenges to Removability Findings Underlying In Absentia Removal Orders Although most of the case law in the area of rescission of in absentia orders revolves around claims of lack of notice and/or the presence of exceptional circumstances to justify a default in appearing, it is important not to overlook the additional basis for attacking an in absentia order, namely, failure of the requisite proof of removability. The Ninth Circuits decision in the case of Al Mutarreb v. Holder 82 provides a good example of this opportunity. In that case the court reversed a removal order without reaching the issue as to whether the petitioner had been properly notified, because a review of the proceeding revealed that the IJ had issued the order without obtaining either an admission of the factual allegations in the NTA or sufficient documentary evidence from the former INS to establish the validity of the allegations contained in the NTA.
Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005)remanded case back to Board to determine if the petitioner was defrauded by an immigration service and its attorneys. 76 Pervaiz v. Mukasey, 405 F.3d 488 (7th Cir. 2005). 77 Fajardo v. INS, 300 F.3d 1018 (9th Cir. 2002)remanded case back to Board to determine if the petitioner was defrauded by an immigration paralegal. 78 Anin v. Reno, 188 F.3d 1273 (11th Cir. 1999)petitioner claimed that his attorney received notice but did not inform him of hearing date or his subsequent unsuccessful efforts to rescind the order; the court also ruled that it did not have jurisdiction to consider the Boards refusal to exercise its sua sponte authority to consider the matter. 79 E.g. Jobe v. INS, 238 F.3d 96 (1st Cir. 2001) (court did not decide whether equitable tolling could apply to relief of in absentia orders, but found that the alien in that case had not exercise due diligence in any event); Wang v. Board of Immigration Appeals, 508 F.3d 710 (2nd Cir. 2007); Mahmood v. Gonzales, 427 F.3d 248 (3d Cir. 2005); Scorteanu v. INS, 339 F.3d 407 (6th Cir. 2003). 80 Matter of Evra, 25 I&N Dec. 79 (BIA 2009). 81 Valeriano v. Gonzales, 474 F.3d 669, 67375 (9th Cir. 2007). (However, the deadline for filing a motion to reopen is not tolled while a petitioner waits for a response from the district counsel regarding whether the government will join the motion.). 82 Al Mutarreb v. Holder, 561 F.3d 1023 (9th Cir. 2009).
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The Ramifications of Arriving LateMight Not be Considered a Failure to Appear The aforesaid statute mandating in absentia removal orders speaks in terms of aliens who do not attend their proceedings. However, if the alien arrives after the IJ completes the daily docket and is no longer in the courtroom, it is likely that the alien will be advised by the court clerk that an in absentia order has already been issued, and perhaps will be counseled as to the procedure to move to rescind the order. In the 1997 Board precedent, Matter of SA, 83 discussed earlier, a majority of the Board members imposed a heavy burden on the respondent and found that he had not shown reasonable cause for his allegedly late arrival to the court. The circuit courts addressing this issue have been quite generous in relieving aliens of in absentia orders for brief tardiness; e.g., Herbert v. Ashcroft; 84 Alarcon-Chavez v. Ashcroft, 85 Jerezano v. Immigration and Naturalization Service, 86 Abu-Hasirah v. Department of Homeland Security, 87 Cabrera-Perez v. Gonzales, 88 Nazarova v. Immigration and Naturalization Service. 89 These decisions essentially ruled that merely appearing late does not constitute a failure to appear. We are still awaiting a precedent decision by the Board to nail this concept down. ABILITY TO PURSUE MOTIONS TO RESCIND AFTER ALIEN DEPARTS THE UNITED STATES In the special area of motions to rescind in absentia removal orders, the regulation outlines discrete requirements, under 8 CFR 1003.23 and specifies that the filing of a motion to reopen under subsection (b)(4)(iii)(A) shall stay the deportation of the alien pending decision by the IJ on the motion. For the preApril 1, 1997, deportation proceedings, the automatic stay remained in effect until decision by the BIA. Anyone who habitually litigates motions to reopen at the BIA level would be aware that the Board has a special division dealing with stays of removal, which are essential to prevent the DHS from removing the alien from the United States, and, at the same time, divesting the BIA of continuing jurisdiction to decide a pending motion on the merits. In Matter of Bulnes-Nolasco, 90 the Board declared that an aliens departure from the United States while under an outstanding order of deportation or removal issued in absentia does not deprive the IJ of jurisdiction to entertain a motion to rescind the order if the motion is premised upon lack of notice. The Board reasoned that an in absentia order, later vacated based on lack of notice, essentially renders the removal order to be void, ab initio, so that the normal prohibition pertaining to pursuit of motions to reopen removal orders that have already been executed is not applicable. Before Bullnes, certain circuit courts had ruled accordingly, so now this is a rule of nationwide applicability. APPEALING DENIALS OF MOTIONS TO REOPEN TO BIA AND CIRCUIT COURTS The motion to reopen is filed with the tribunal that made the last decision. If there was no appeal of the immigration judges decision the motion to reopen is filed with the immigration court. However, if an appeal was taken to the Board, the motion to reopen must be filed with the Board. One should be aware, after the IJs decision, if within 30 days a party may either file an appeal with the Board or file a motion to reopen or reconsider with the IJ. This may create a dilemma; does an individual file a motion to reopen or an appeal? It is doubtful that the immigration judge will make a decision before the
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Matter of SA, 21 I&N Dec. 1050 (BIA 1997). Herbert v. Ashcroft, 325 F.3d 68 (1st Cir. 2003). 85 Alarcon-Chavez v. Ashcroft, 403 F.3d 343 (5th Cir. 2005). 86 Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999). 87 Abu-Hasirah v. DHS, 478 F.3d 474 (2d Cir. 2007). 88 Cabrera-Perez v. Gonzales, 456 F.3d 109 (3d Cir. 2006). 89 Nazarova v. INS, 171 F.3d 478 (7th Cir. 1998). 90 Matter of Bulnes-Nolasco, 25 I&N Dec. 57 (BIA 2009).
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period to appeal the original decision expires. The filing of a motion to reopen with the immigration judge does not toll the time period to file a direct appeal to the Board. If an appeal is not filed within 30 days, any issues that cannot be raised in the motion to reopen or reconsider will not heard by the Board. However, if an appeal is taken, jurisdiction is vested with the Board and the immigration judge is divested of jurisdiction over any motion to reopen that may be pending. Accordingly, as a practical matter an individual needs to choose between a direct appeal of an immigration judges decision to the Board or a motion to reopen with the immigration judge. The decision of the immigration judge with regards to the motion to reopen can be appealed to the Board. The appeal process is the same as any other appeal, with the exception that a transcript is usually not prepared. A decision by the Board can be appealed to the circuit courts. The petition for review must be filed not later than 30 days after the date of the final order of removal. 91 As with a motion to reopen with the immigration judge, the filing of a motion to reopen or reconsider does not toll the statutory time in which to appeal the underlying final order. 92 The petition for review should be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. 93 Jurisdiction over motions to reopen may be limited where the underlying request for relief is discretionary. Section 1252(a)(2)(B)(i) permits the exercise of jurisdiction in cases in which the BIA rules that a motion to reopen fails to satisfy procedural standards such as the evidentiary requirements specified in 8 CFR 1003.2(c)(1), but bars jurisdiction where the question presented is essentially the same discretionary issue originally decided. 94 Thus, [i]f ... the BIA determines that a motion to reopen proceedings in which there has already been an unreviewable discretionary determination concerning a statutory prerequisite to relief does not make out a prima facie case for that relief, 1252(a)(2)(B)(i) precludes our visiting the merits, just as it would if the BIA had affirmed the IJ on direct appeal. 95 However, the court would have jurisdiction to review the denial of a motion to reopen seeking consideration of noncumulative evidence, such as a newly discovered life threatening medical condition afflicting a qualifying relative. 96 The court also has jurisdiction to review motions to reopen seeking consideration of new requests for discretionary forms of relief. 97 Any petition for review from an in absentia order of removal shall . . . be confined to (i) the validity of the notice provided to the alien, (ii) the reasons for the aliens not attending the proceeding, and (iii) whether or not the alien is removable. 98 STAY ISSUES A stay is not a matter of right, but rather an exercise of judicial discretion. 99 Service of the petition [for review] does not stay the removal of an alien pending the courts decision on the petition, unless the court orders otherwise. 100 However, while the motion for a stay is pending, the Ninth Circuit does grant a temporary stay. 101
8 USC 1252(b)(1). Stone, 514 U.S. at 40506 http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=94+F.3d+1258. 93 8 USC 1252(b)(2); see also IIRAIRA 309(c)(4)(D). 94 Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir. 2006). 95 Id. at 601. 96 Id. 97 Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004). 98 8 USC 1229a(b)(5)(D). 99 See Nken v. Holder, 129 S. Ct. 1749, 1760 (2009). 100 8 USC 1252(b)(3)(B); see also IIRAIRA sec. 309(c)(4)(F). Contra 8 USC 1105a(a)(3) (repealed 1996) (providing for automatic stay of deportation in most cases upon service of the petition for review). 101 De Leon v. INS, 115 F.3d 643, 644 (9th Cir. 1997).
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MOTIONS TO REOPEN AND/OR TO RECONSIDER AT THE USCIS LEVEL There is no federal statute entitling petitioners or applicants to file these corrective motions at the USCIS level. However, the regulations authorize this relief and provide detailed parameters and guidance. 102 For most motions, the alien is required to file a Form I-290B, with applicable filing feecurrently $585. This is the same form that is utilized to file administrative appeals with USCISs Administrative Appeals Office (AAO). It is recommended that when appealing to the AAO, a specific request be directed to USCIS to reevaluate its negative decision, pursuant to 8 CFR 103.5(a)(8). USCIS may undertake this review on its own initiative, but it would behoove the petitioner or applicant to make a formalized request in this regard, particularly in light of the historical processing delays at the AAO level. Interestingly, even if the AAO denies an appeal, the regulations provide that a motion to reopen can be filed at that level. Particularly in a situation where the appeal had been pending for a lengthy period, the alien may be able to advance new case law and/or previously unavailable evidence that may influence the AAO to take another look at the situation. For example, in appeals regarding waivers of inadmissibility based on hardship considerations, there may be new medical and/or country condition information that would warrant reopening and/or reconsideration based on new facts. REQUESTING CERTIFICATION TO THE AAO If you have a USCIS denial, which does not provide for appellate jurisdiction by the AAO 103 or renewal of the matter before the immigration court in the context of removal proceedings, you should consider a request to the USCIS to certify the matter for AAO review pursuant to 8 CFR 103.4(a)(5). For example, in an adjustment of status denial involving an alien paroled into the United States, with limited exceptions, the denial cannot be reviewed before an IJ. Likewise, the AAO does not have jurisdiction over direct appeals of adjustment denials. Notably, the Adjudicators Field Manual (AFM) ch. 23.2(n)(2) indicates that an adjustment applicant is entitled to an opportunity for further review. This process has been successfully invoked in the adjustment context. Procedurally, the alien can request that the USCIS undertake this process sua sponte, or via a motion to reopen or reconsider the USCIS decision, with an alternate request to certify the matter to the AAO, with a citation to the applicable authority, as outlined above. Happy second chances!
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8 CFR 103.5. See Adjudicators Field Manual (AFM) 3.5(c), which outlines the jurisdiction of the AAO, by cross referencing to 8 CFR 103.1(f)(3)(iii), as in effect on February 28, 2003, with exceptions noted. That particular regulation no longer exists.
PADILLA AND POST-CONVICTION RELIEF

by Norton Tooby *
On March 31, 2010, the U.S. Supreme Court held, 72, that because deportation is an integral part of the penalty that may be imposed on defendants who plead guilty to specified crimes, defense counsel must accurately inform a defendant of any risk of deportation created by the plea. Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473 (2010). Justice Stevens, writing for the five-member majority, held that defense counsels failure to do so constitutes constitutionally deficient performance in violation of the right to effective assistance of counsel protected by the Sixth Amendment to the U.S. Constitution. This important decision applied the Strickland standard of assessing the merits of ineffective assistance of counsel (IAC) claims to counsels duty to investigate, advise the client concerning, and protect the client against adverse immigration consequences of a criminal case. While it did not address the question of prejudice, it remains the case that prejudice must be established to obtain a reversal of a conviction on the basis of any claim of ineffective assistance of counsel. Finally, the decision did not directly address the question of the vehicles by which these claims may be raised, but has some implications there as well. THE MERITS OF IMMIGRATION-RELATED CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL: DEFICIENT PERFORMANCE In Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court created a two-prong test to determine whether a court could vacate a conviction for ineffective assistance of counsel. Under Strickland, the petitioner must establish two elements in order for the conviction to be vacated on this ground: (1) Deficient Performance: The quality of the attorneys representation fell below professional norms; and (2) Prejudice: The defendant suffered prejudice as a result of the deficient performance. Strickland, 466 U.S at 687. If both elements of the claim are proven, the conviction must be vacated on grounds of ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution. The courts can do no less, since this is the uniform national standard of competent representation required by the Constitution. Immigration-Related Claims of Ineffective Assistance Fall into Four Types: Failure to Advise. A defendant may raise a claim that defense counsel rendered ineffective assistance of counsel by failing to advise him or her concerning the actual (as opposed to potential) immigration consequences triggered by the disposition of the criminal case. Padilla unequivocally held that counsels silence on this important topic constitutes deficient performance. Very few decisions had previously reached this conclusion, for the most part rightly because of the badly flawed collateral consequences doctrine, which Padilla rejected in this context.
2011 Norton Tooby. All rights reserved. Norton Tooby of Oakland, CA, has a B.A. Harvard, 1967, J.D. Stanford Law School, 1970, and was president of the Stanford Law Review, 196970. He specializes in criminal defense of immigrants, immigration consequences of criminal convictions, and post-conviction relief for immigrants. He has written practice manuals such as Toobys Guide to Criminal Immigration Law (2008) (free download available online); Toobys Categorical Analysis Tool Kit (2009); Toobys Crimes of Moral Turpitude (2008); Aggravated Felonies (2006), and Criminal Defense of Immigrants (4th ed. 2007). He also organizes CLE seminars, including an annual criminal immigration seminar the day before the annual AILA conference. He maintains a criminal immigration legal research site, www.NortonTooby.com. 1 Thanks to Dan Kesselbrenner, Director, National Immigration Project of the National Lawyers Guild, and to the Defending Immigration Partnership for many of the ideas in this article, which first appeared in the DIP Padilla presentation of May 12, 2010. The materials for the DIP presentation are posted on www.defendingimmigrants.org. Also, many thanks to Sarah Shekhter for her research on judicial decisions citing Padilla and her revisions to this article.
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Affirmative Misadvice. Under Padilla, defense counsels mistaken advice concerning the immigration consequences of a disposition also constitutes ineffective assistance of counsel. This was the majority federal circuit rule even before Padilla, and is now the national standard. Failure to Defend. Giving correct immigration advice is not enough. Competent counsel must go further, and actually try to obtain an immigration-safe disposition if possible. Padilla provides considerable support for this claim, pointing out that even counsel relatively unskilled in immigration law is capable of trying to negotiate a non-deportable disposition, which may often be in the interests of the prosecution as well. Failure to Mitigate. A fourth type of immigration-related ineffective assistance of counsel is based not on the immigration disaster caused by the criminal case, but on the criminal disaster that can be caused by the clients immigration status combined with the criminal disposition. Padilla did not address this type of claim, other than to point out that the criminal and immigration penalties of a criminal case have become inextricably intertwined. This type of claim, however, is based on the traditional duty of criminal defenders to obtain dispositions that minimize the seriousness of the offense of conviction, and minimize the sentence. These are direct penal consequences of the case, which defense counsel have always had the responsibility to address. If a deportable plea is entered, it can trigger an immigration hold, which can prevent the defendants release from custody and disqualify the defendant from drug treatment, alcohol treatment, work or school furlough, anger management or other probation programs, and even from release on probation or parole itself. PREJUDICE Whether Padilla was entitled to reversal of the conviction also depended on whether he had been prejudiced, i.e., whether a decision to reject the plea bargain would have been rational under the circumstances, a matter the Supreme Court remanded for decision by the Kentucky courts in the first instance. Because the Kentucky Supreme Court had held that affirmative misadvice could never constitute IAC, the U.S. Supreme Court in Padilla did not address prejudice, other than to say: Whether Padilla is entitled to relief on his claim will depend on whether he can satisfy Stricklands second prong, prejudice, a matter we leave to the Kentucky courts to consider in the first instance. Padilla v. Kentucky, 559 U.S. __, 130 S.Ct. 1473, 148384 (2010). The Supreme Court stated the prejudice test as follows: to show prejudice, the petitioner must establish that if the defendant had received accurate advice concerning the adverse immigration consequences, the decision to reject the plea bargain would have been rational under the circumstances. (Id. at 1485.) 2 This Requirement Can be Met in Either of Two Ways. The defendant can show that it would have been rational to reject this plea bargain, and take the case to trial. This is the classic formulation of the Strickland prejudice standard, as applied to a guilty plea context in Hill v. Lockhart, 474 U.S. 52 (1985). See also Promo v. Moore, __ U.S. __, 131 S.Ct. 733 (Jan. 19, 2011). The defendant can try to show he or she would have litigated the case, or taken the case to trial, if he or she had known the true scope of the immigration disaster that would flow from the plea. 3 The defendant must show the plea was entered with actual reliance on the lack of accurate immigration advice in order to
Cf. Hutchings v. United States, 618 F.3d 693 (7th Cir. Aug. 24, 2010) (defendant not prejudiced in choosing to accept plea rather than go to trial, since he would face life in prison regardless). This decision is badly flawed, since Hill v. Lockhart held that prejudice is shown from ineffective assistance of counsel if there is a reasonable probability the defendant would not have entered the plea. Hill v. Lockhart, 474 U.S. 52 (1985). 3 But see id.
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prove prejudice. 4 It greatly strengthens a prejudice argument if a defendant had defense motions, or defenses on the merits, that were abandoned when the plea was entered. The defendant can show that it would have been rational for the defendant to reject this particular plea bargain, and to seek a different, immigration-harmless plea bargain instead. A second way to show prejudice is to show a reasonable likelihoodless than a preponderance, but great enough to undermine confidence in the outcome of the case, that the defendant would have been able to negotiate an immigration-safer alternative disposition if the true scope of the immigration disaster had been known at the time of plea. The Court in Premo noted that there are significant differences between an ineffective assistance claim in the guilty plea context and one made after a trial. 5 The guilty plea context places a most substantial burden on the defendant to show that but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial, and employed the standard enunciated in Hill v. Lockhart, in 1985. The distortion of a hindsight perspective can make accurate review very difficult, while upsetting pleas years later may bring instability to the process that would be damaging to defendants as well as the criminal justice system. The Court discounted the possibility that a defendant would be able to show prejudice by demonstrating a reasonable possibility that a different plea might have been entered absent counsels error, rather than a possibility the defendant would have chosen to go to trial. On the other hand, the Court in Padilla v. Kentucky explicitly referred to the possibility of an ineffective counsel claim for failure to attempt to negotiate an immigration-harmless plea. Counsel can argue that in the immigration context, the proper standard of prejudice is that suggested by Padilla. This is because certain pleas cause severe immigration damage, while others do not, a factor not present in the nonimmigration plea context presented in Premo. Both forms of prejudice should satisfy the prejudice test described by the Supreme Court, because in both cases, the defendant would not have entered the disposition that is being challenged. See Hill v. Lockhart, 474 U.S. 52 (1985). PROCEDURAL REQUIREMENTS Each state has different rules governing post-conviction relief. States post-conviction vehicles often require various prerequisites to relief: (1) Statutes of Limitations. There may be a statute of limitations requiring that the post-conviction challenge to the validity of the conviction must be filed within a certain deadline after the sentence has been imposed. For example, the federal habeas corpus statute of limitations for challenging the validity of a federal conviction pursuant to 28 USC 2255 requires that the motion must be filed within one year after the conviction becomes final by the ultimate denial of appellate relief or by the expiration of the time (10 days) within which a Notice of Appeal must be filed. There are narrow exceptions to this deadline. One of them provides that the one year begins to run from the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review .... 28 USC 2255(f)(3). On March 31, 2010, the Supreme Court newly applied the Strickland standard to recognize a claim of ineffective assistance of counsel in investigating, advising the defendant of, and defending the client against adverse immigration consequences of a conviction. This decision arguably triggers a new one-year statute of limitations for filing a motion attacking a federal conviction and sentence on this newly recognized claim of ineffective assistance applied to this new context which would expire on
See Miles v. Martel, 2010 WL 1507099 at *1 (E.D. Cal. Apr. 13, 2010) (no prejudice when petitioner did not initially plead guilty based on counsels incorrect advice, but later did plead guilty based on counsels corrected advice regarding potential immigration consequences). 5 Premo v. Moore (Jan. 19, 2011) __ U.S. __, 131 S.Ct. __, reversing (9th Cir. 2009) 534 F.3d 1138 (under limited role of federal court in reviewing state court denial of effective assistance claims, court reversed Ninth Circuit finding the state courts determination was not an unreasonable application of the Strickland standards, in the guilty plea context).
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March 20, 2011. The statute of limitations may bar relief under Padilla. 6 One court has held that the new Padilla decision did not restart the applicable federal statute of limitations. 7 (2) Custody Requirements. Another federal requirement, which some states also share, is a requirement that the defendant must be in some form of custody before habeas corpus can be employed. Some states have a narrower interpretation of custody, and others a broader definition. In some states, a petitioner has a post-conviction remedy even though the sentence already may have been served, and probation or parole already completed. For example, defendants in Georgia may have a remedy even if a defendants state criminal custody has ended, but he is in immigration detention as a result of the conviction; however, this is not the case in California. Compare Thorpe v. Head, 272 Ga 596, 597 (2002) (defining restraint very broadly for purposes of Georgia post-conviction relief) with People v. Villa, 45 Cal.4th 1063, 106970 (2009) (denying remedy in immigration case for detainee who finished serving California sentence). Under federal law, a petitioner attacking a conviction under 28 USC 2255 must be in actual or constructive custody (i.e., on supervised release or parole) at the time the motion is filed. 8 After custody has expired, however, the defendant can employ federal coram nobis, which has no custody requirement, nor any formal statute of limitations, but does require that the defendant use due diligence to investigate and pursue the claim. United States v. Denedo, 129 S. Ct. 2213 (2009) (permitting noncitizen who claimed ineffective assistance from counsels failure to warn him about the immigration consequences to challenge the legal validity of a court martial conviction under 28 USC 1651, the All-Writs Act, even after the sentence had been served); United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) (AEDPA one-year statute of limitations does not bar a petition for a writ of coram nobis attacking a federal conviction). (3) Procedural Default Rules. Various states and the federal courts also have procedural default rules that can bar post-conviction relief. Whether the petitioner can meet these requirements depends on the vagaries of state law. For a useful survey of post-conviction procedures available in the various states to attack the validity of criminal convictions, see generally D. Wilkes, State Postconviction Remedies and Relief Handbook (200910 Ed.). One common rule is that a claim must be exhausted in the lower court before it may be raised in a higher court, and must be exhausted in state court before it may be raised in federal court. 9 (4) RetroactivityThe Date the Claim Arose. Another issue defendants may face in raising Padilla claims is the question of retroactivity. Padilla was decided on March 31, 2010, and so has full application to IAC claims based on dispositions reached after that date. The plea in Padilla was entered in 1997, so Padilla held that the standard of competence of criminal defense counsel in 1997 required investigation of the immigration consequences of a plea, affirmative advice to the defendant concerning those consequences, and an attempt to avert them if possible by negotiating an immigration-harmless plea. Because Padillas plea was entered in 1997, and the Supreme Court in 2010 held it unconstitutional, Padilla itself held invalid a plea that was entered some 13 years earlier. The Supreme Courts holding was that at least by that date, the evolving standards of conduct of defense counsel had progressed to the point of requiring counsel to investigate the facts, and research the law, concerning the immigration consequences of a disposition and advise the client accurately concerning them prior to entry of a plea. This decision holds that a plea in 1997 was subject to the standard of competence it discussed; it does
6
E.g., United States v. Hernandez-Monreal, 2010 WL 2400006 at *2 (E.D.Va. June 14, 2010) (dismissed defendants motion to vacate because statute of limitations had run).
United States v. Guzman-Garcia, 2010 WL 1791247 at *2 (E.D.Cal. May 3, 2010) (motion to reconsider denied, because Padilla did not newly recognize a right upon which defendant may rely to reset the running of the limitations period given that Padilla was decided after defendants section 2255 motion.). 8 Mendoza v. Wynn, 2010 U.S. Dist. LEXIS 60450 (N.D. Cal. June 3, 2010) (court dismissed habeas petition because petitioner was no longer in custody with regard to the conviction he contested)(alternative holding). Mendoza v. Wynn, 2010 U.S. Dist. LEXIS 60450 (N.D. Cal. June 3, 2010) (court dismissed habeas petition because, unlike Padilla, petitioner failed to exhaust state court remedies by bringing habeas remedy in the state supreme court of the conviction) (alternative holding).
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not hold that that was the earliest date that standard existed. The Supreme Courts decision in Padilla established that the norm for criminal defense counsel to advise generally went back at least the past 15 years. Padilla, 130 S. Ct. at 1485. Before that, the retroactivity argument becomes more difficult. Even though the deportation laws after 1996 became harsher and more automatic for many, they were harsh and automatic for some defendants even before 1996, so defense counsel should have checked them out. Many of the standards of competence of counsel in this regard pre-existed 1996, going all the way back to the American Bar Association (ABA) Standards of 1980, which directed defense counsel to advise concerning collateral consequences (including immigration consequences) of conviction. It is arguable that the standard of competence of counsel required accurate advice at least whenever a plea triggered mandatory deportation. Later versions of this and other professional standards on which the Supreme Court based relief in Padilla became more specific. 10 Various bibliographies of secondary publications assisting defense counsel concerning the immigration consequences of criminal cases also provide support for arguments that the standards of competence of counsel required accurate immigration advice before plea at various earlier dates. 11 In Padilla, the Court discussed the historical development of the law concerning the increasingly harsh deportation consequences flowing from broader and broader lists of criminal convictions, and the narrowing and complete elimination of discretionary relief from deportation in many of these cases over time. It emphasized the watershed 1996 legislation that narrowed and then eliminated discretionary relief from removal for many noncitizen defendants, making their deportation consequences mandatory or virtually inevitable. At least by the time of the initial 1996 immigration legislation, The Anti-terrorism and Effective Death Penalty Act (AEDPA) (effective April 30, 1996), the immigration consequences were as described in Padilla, and required defense counsel to investigate, advise and protect the client against these consequences. Many of the adverse immigration consequences, however, pre-dated AEDPA, and counsel can argue that the standard of competence of counsel required this by 1980, when the ABA Standards for the Defense Function first required defense counsel to investigate and advise the client concerning the collateral consequences, including the immigration consequences, of a plea. The court in Padilla also quoted with approval a 1986 Second Circuit case that held defense counsel ineffective for failing to request a Judicial Recommendation Against Deportation during the criminal sentencing proceeding. Janvier v. United States, 793 F.2d 449 (2d Cir. 1986). This gives rise to an argument that IAC at sentence under the law in effect at the time violated counsels duties as to pleas entered at least by the date of that decision in 1986. For example, at that time a crime of moral turpitude (CMT) conviction with a sentence imposed of 365 days or more triggered deportation. Defendants who were at the time ineligible for discretionary relief from deportation, and for whom such a sentence triggered mandatory deportation, could argue by analogy to Janvier that defense counsel rendered IAC by failing to request a non-deportable sentence of 364 days or less. Counsel should examine each type of IAC claim to see what the law was in the state jurisdiction as of the date of the plea. A failure to mitigate claim (i.e., an argument that failure to use the immigration disaster that would flow from a particular plea or sentence as an equity to persuade prosecutor or court to allow a plea to a less serious offense or to impose a shorter sentence), does not depend on rejection of the collateral circumstances doctrine, since defense counsel have always been required to use any available fact at all as
E.g., National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation 6.2 (1995); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8-H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4-5.1(a), p.197 (3rd ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2(f), p. 116 (3rd ed.1999). See, e.g., Bibliography, www.NortonTooby.com; Padilla v. Kentucky, Brief for Legal Ethics, Criminal Procedure, and Criminal Law Professors as Amici Curiae 12-14 ([A]uthorities of every stripe-including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications-universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients ... .) (footnotes omitted).
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ammunition to obtain a shorter sentence or lesser plea, so this argument is retroactive all the way back to Strickland in 1984, and perhaps even earlier if Strickland itself is retroactive. (5) RetroactivityPadilla Was an Application of An Established Rule, Rather than A Nonretroactive New Rule. In Williams v. Taylor, 529 U.S. 362, 39091 (2000), the Supreme Court held that applying Strickland to particular scenarios does not establish a new rule of constitutional law. A factfinder can apply Padilla to a case involving a plea entered prior to Padilla because in reality the factfinder is applying Strickland, which is settled law. Under Supreme Court cases and the language of Padilla, Padilla applies to challenges to convictions brought before or after court decided Padilla. Williams v. Taylor, 529 U.S. 362, 39091 (2000) (applying Strickland test does not create a new rule of constitutional law and can be applied retroactively). In Padilla, the court acknowledged that this case was merely an interpretation of Strickland. Padilla, 130 S. Ct. at 1485 n.12. 12 The court also dismissed potential floodgate concerns, an implicit acknowledgment that Padilla applies retroactively. Padilla, 130 S. Ct. at 1485.
12
See also United States v. Chaidez, 730F. Supp.2d 896 (N.D. Ill., Eastern Division Aug. 11, 2010); United States v. Hubenig, 2010 WL 2650625 at *4 (E.D. Cal. July 1, 2010).
SELECTED SEX CRIMES: IMMIGRATION CONSEQUENCES AND STRATEGIES FOR REPRESENTING YOUR CLIENT
by Maria T. Baldini-Potermin and Thomas K. Ragland *
A noncitizen will face an array of potential immigration consequences if he or she is found to have been convicted of an aggravated felony under Immigration and Nationality Act (INA) 101(a)(43)(A) [8 USC 1101(a)(43)(A)]sexual abuse of a minor. The aggravated felony term sexual abuse of a minor has been held to cover a very wide range of offenses, from heinous sexual abuse of a young child to consensual sex with a person one day shy of his or her 18th birthday. It includes misdemeanors, offenses with no physical contact, and, in some cases, offenses with no showing of any likelihood of physical or psychological harm to the victim. A single conviction can fall within multiple sections of the INA and have disparate consequences. Depending on the elements of the statute of conviction, a crime against a minor might have all, none, or some of the following immigration consequences: Deportability for a crime involving moral turpitude Deportability for a crime of domestic violence Deportability for a crime of child abuse, child neglect, or child abandonment Aggravated felony for sexual abuse of a minor Aggravated felony for a crime of violence (where a term of imprisonment of at least one year is imposed) Aggravated felony for child pornography Aggravated felony for rape Inadmissibility for a crime involving moral turpitude Adam Walsh Act conviction barring a U.S. citizen or lawful permanent resident from obtaining a visa petition for a family member to become a lawful permanent resident A bar to relief from removal, such as a finding that the offense constitutes a particularly serious crime, thus barring asylum and withholding of removal A bar to relief from removal, such as a finding that the offense constitutes a violent or dangerous crime, requiring a higher standard to obtain a 212(h) or 209(c) waiver in conjunction with an application for adjustment of status
Maria T. Baldini-Potermin is the founder of Maria Baldini-Potermin & Associates, PC, in Chicago. She focuses on deportation defense, federal litigation, waivers, family-based immigration, naturalization, and immigration consequences of convictions. In July 2010, AILA awarded Ms. Baldini-Potermin the Edith Lowenstein Award for Excellence in Advancing the Practice of Immigration Law. She regularly speaks at immigration law conferences, has served on several local and national committees, and received the AILA Chicago Chapters 2004 Joseph Minsky Mentor Award. Ms. Baldini-Potermin is the author of Immigration Trial Handbook, serves as the update editor for Immigration Law and Crimes, and is an expert author and consultant for Interpreter Releases and Immigration Briefings, all published by Thomson West. She serves on the board of directors of the National Immigration Project of the National Lawyers Guild. Ms. Baldini-Potermin earned her J.D. cum laude from the University of Minnesota Law School and served as an adjunct professor in the immigration law clinic from 1997 to 1999. She was an accredited representative at ProBAR and worked on the TexasMexico border from 1990 to 1994. Thomas K. Ragland is a partner in the Immigration Practice Group at Duane Morris LLP in Washington, D.C. His practice focuses on federal court litigation, defense against removal, the immigration consequences of criminal activity, asylum, waivers of inadmissibility, citizenship, worksite enforcement issues, and defense against terrorism and security-related bars to admission. He has been recognized by the Washington Post as one of Washington, D.C.s Best Lawyers and was named by Washingtonian Magazine as one of Washingtons Top Lawyers. Mr. Ragland is chair of the Litigation Committee, D.C. Chapter, AILA; co-chair of the D.C. Bar International Law Section, Immigration and Human Rights Committee; and a member of the Advisory Board of the American Immigration Councils Legal Action Center. He is a frequent writer and speaker on immigration issues.
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CATEGORICAL APPROACH What Is the Categorical Approach? The categorical approach has been the subject of extensive litigation over the past 10 years regarding whether an offense constitutes an aggravated felony or a crime involving moral turpitude. The U.S. Supreme Court has laid out the steps of the categorical approach to determine whether a crime is an aggravated felony, including the strict categorical approach, the modified categorical approach, and the documents in the criminal record that may be reviewed. 1 The categorical approach is a comprehensive approach to analyzing the immigration consequences of a criminal conviction. The essence of the categorical approach is to identify the crime of which a noncitizen has been convicted. Under the categorical approach, a noncitizens actual conduct will not determine whether her or his conviction satisfies a criminal ground of deportability. This is determined by the elements of the offense of conviction. Question 1: What is the generic definition of the offense? The generic definition may be given in the immigration statute. See, e.g., INA 101(a)(43)(F) [8 USC 1101(a)(43)(F) (defining crime of violence in terms of 18 USC 16). Or, it may be defined by looking at how the majority of jurisdictions, the Model Penal Code, or the majority of statutes define the offense. In Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), for example, the Board of Immigration Appeals (BIA or Board) published a precedent decision on sexual abuse of a minor and adopted 18 USC 3509 as a guide for what constitutes sexual abuse of a minor. In Estrada-Espinoza v. Mukasey, 525 F.3d 821, 822 (9th Cir. 2008) (en banc), the Ninth Circuit rejected the BIAs definition, which adopted 18 USC 2243 as the generic definition for sexual abuse of a minor. Until the U.S. Supreme Court rules to the contrary, it is possible to argue that the BIA incorrectly applies its approach to determining sexual abuse of a minor even in circuits that have upheld the Boards test. Question 2: Compare the elements of the generic definition and the crime as defined by statute. Is there a categorical match? Does every violation of the criminal statute necessarily come within the generic definition? If yes, the statute is a categorical match and the noncitizen loses. If there is no categorical match, go to Question 3. Question 3: If there is not, is the statute actually divisible, or is there categorically not a match? Examine the statute and controlling case law, not the individuals criminal court record. Do thorough research, including consultation with a criminal attorney, a review of jury instructions, and a review of criminal law resources. A statute is divisible only if it defines distinct crimes with distinct elements. The mere fact that a person can violate a statute through a variety of different conduct does not make it divisible if the statute does not list distinct crimes. Under Nijhawan v. Holder, 2 the U.S. Supreme Court held that: A statute is divisible, and the immigration judge (IJ) can consult the record of conviction, only if all of the elements of the generic definition are elements of the statutory offense, required for guilt under the statute, and are set out in the statute as a different crime, described separately. Without the above, the factfinder may not consult the record of conviction.
Materials regarding the categorical approach, sexual abuse of a minor, Adam Walsh Act, and crimes of child abuse, child neglect, and child abandonment, in part, were adapted with permission from the Defending Immigrants Partnership Jan. 2011 Conference training materials. The Defending Immigrants Partnership is a collaboration of the Immigrant Legal Resource Center, Immigrant Defense Project, and National Immigration Project of the National Lawyers Guild. 1 See Nijhawan v. Holder, 129 S. Ct. 2294 (2009). For an excellent discussion of the Nijhawan decision and detailed practice advisory about the categorical approach, see The Impact of Nijhawan v. Holder on Application of the Categorical Approach to Aggravated Felony Determinations, published by the Immigrant Defense Project and the National Immigration Project of the National Lawyers Guild, June 24, 2009, available at http://nationalimmigrationproject.org/publications.htm. 2 See Nijhawan v. Holder, 129 S. Ct. 2294 (2009).
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Question 4: If the statute is divisible, does the reviewable record of conviction establish that the offense of conviction matches the generic definition? Under the categorical approach, a reviewing court may only go beyond the mere fact of conviction and consult the individuals conviction record in a narrow range of cases where a jury was actually required to find all the elements of the generic crime. 3 The U.S. Supreme Court has identified sexual abuse of a minor defined under INA 101(a)(43)(A) [8 USC 1101(a)(43)(A)] as a generic offense, which requires a conviction to contain the elements of the ground of deportability. 4 This can be used, for example, to argue against government introduction of evidence to establish the alleged age of a victim when this fact was not required to be established to meet the elements of the statute of conviction. 5 How Does the Categorical Approach Apply to Crimes That May be Charged as an Aggravated Felony, Being Sexual Abuse of a Minor? A Conviction Under an Age-Neutral Statute Should Not be Held Sexual Abuse of a Minor. The Supreme Court held that the aggravated felony sexual abuse of a minor is subject to the full categorical approach. 6 This should mean that conviction under an age-neutral statute cannot be held to be sexual abuse of a minor. Under the Supreme Courts approach in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), older opinions holding to the contrary arguably have been overturned. For example, prior to Nijhawan, the Seventh Circuit held that the age of the victim need not be an element of the offense for the conviction to constitute a sexual abuse of a minor aggravated felony. 7 Practitioners representing noncitizens in removal proceedings within the jurisdiction of the Seventh Circuit should argue that Lara-Ruiz and Gattem are no longer good law in light of Nijhawan. BIA and Court Definitions of Sexual Abuse of a Minor The definition of sexual abuse of a minor has been a highly litigated issue. The BIA has provided vague standards, and circuit courts are split regarding how the Boards standards apply to individual cases and whether the Board is owed deference on the issue. 8 Some circuit courts of appeals employ a mechanical definition that finds that any sexual conduct or intent with a person under the age of 18 is sexual abuse of a minor. Other circuits require a showing of actual harm. The following is a brief discussion of the guidance issued to date by the Board. In Matter of RodriguezRodriguez, the Board held that the offense of indecency to a child by exposure pursuant to a Texas statute is an aggravated felony as sexual abuse of a minor. 9 The Texas statute prohibits exposing genitals to a person under age 17 with the intent to sexually gratify or arouse any person, and it can be violated without physical contact with the minor. 10
3 4
See Taylor v. United States, 495 U.S. 575, 602 (1990) (emphasis added). See Nijhawan v. Holder, 129 S. Ct. at 2300. 5 See, e.g., Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). Note: The Ninth Circuit decision, EstradaEspinoza v. Mukasey, supra, was cited by the U.S. Supreme Court in Nijhawan. See Nijhawan v. Holder, 129 S. Ct. at 2300. 6 See Nijhawan v. Holder, 129 S. Ct. 2294, 2300 (2009). 7 See Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001); Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005). Compare Oouch v. U.S. Dept of Homeland Security, __ F.3d __, 2011 WL 257336 (2d Cir. Jan. 28, 2011) (deferring to Boards analysis); Gaiskov v. Holder, 567 F.3d 832, 838 (7th Cir. 2009) (same); Bahar v. Ashcroft, 264 F.3d 1309, 1312 (11th Cir. 2001) (same) with Estrada-Espinoza v. Mukasey, 525 F.3d 821, 822 (9th Cir. 2008) (en banc) (refusing to defer to Boards analysis). 9 See Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999). 10 See Matter of Rodriguez-Rodriguez, 22 I&N Dec. at 996. Texas Penal Code Ann. 21.11(a) defines the offense as follows: A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual contact with the child; or (2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.
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Rather than concretely define sexual abuse of a minor, the Board adopted as a guide a broad definition found in a section of federal law dealing with rights of child victims and child witnesses. Citing 18 USC 3509(a), the Board described sexual abuse of a minor as the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children. 11 In Matter of Rodriguez-Rodriguez, supra, the BIA considered various factors that demonstrated that the Texas indecent exposure offense was sufficiently serious to be sexual abuse of a minor. 12 The Texas statute required intent to arouse and had an affirmative defense for perpetrators who were within three years of age of the victim and did not use force or duress. The noncitizen was given a 10-year sentence. 13 The Board held that, In consideration of these factors, we find that indecent exposure in the presence of a child by one intent on sexual arousal is clearly sexual abuse of a minor within the meaning of section 101(a)(43)(A) of the Act. 14 In Matter of Small, the Board held that a misdemeanor conviction for sexual touching of a child under the age of 14 is sexual abuse of a minor. 15 The only issue in that case was the noncitizens contention that a misdemeanor conviction cannot be an aggravated felony. Statutory Rape Offenses The Department of Homeland Security may charge a conviction for statutory rape as an aggravated felony for sexual abuse of a minor under INA 101(a)(43)(A) [8 USC 1101(a)(43)(A)], as an aggravated felony for a crime of violence under INA 101(a)(43)(F) [8 USC 1101(a)(43)(F)] where a term of imprisonment of at least one year is imposed, 16 a crime involving moral turpitude under INA 237(a)(2)(A) [8 USC 1227(a)(2)(A)] or INA 212(a)(2)(A)(i) [8 USC 1182(a)(2)(A)(i)], and/or a crime of domestic violence or child abuse under INA 237(a)(2)(E)(i) [8 USC 1227(a)(2)(E)(i)]. The Board and the circuit courts of appeals have split in their opinions regarding whether statutory rape is an aggravated felony under INA 101(a)(43)(A) [8 USC 1101(a)(43)(A)] for sexual abuse of a minor. 17 In Matter of VFD 18 , the Board held that a Florida statutory rape statute that prohibits a person who is 24 years old or older from having consensual sex with a 16- or 17-year-old is categorically sexual abuse of a minor. The Board held that the offense was sexual abuse of a minor, based on the minimum seven-year age difference: This is a significant age discrepancy that reflects the seriousness and exploitative nature of the crime. There is little doubt that the offense in this case constitutes sexual abuse and thus falls within the purview of section 101(a)(43)(A). 19 Thus, the Board has not held that every offense involving consensual sex with an older teenager is sexual abuse of a minor.
11 12 13
See id. at 995 (quoting 18 USC 3509(a)(8)).
See Matter of Rodriguez-Rodriguez, 22 I&N Dec. at 996. See id. 14 See id. 15 See Matter of Small, 23 I&N Dec. 448 (BIA 2002).
16 17
See e.g., Matter of B, 21 I&N Dec. 287 (BIA 1996).
See Gaiskov v. Holder, 567 F.3d 832 (7th Cir. 2009); Silva v. Gonzales, 455 F.3d 26 (1st Cir. 2006); Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001); cf. Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (holding that the four California statutory provisions involving statutory rape did not constitute sexual abuse of a minor under the categorical approach, because each defined an offense broader than the generic definition of sexual abuse of a minor); Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (Delaware criminal offense of unlawful sexual conduct in the third degree does not constitute sexual abuse of a minor and, therefore, is not an aggravated felony where statute does not establish age of victim). 18 See Matter of VFD, 23 I&N Dec. 859 (BIA 2006) (holding that Fla. Stat. Ann. 794.05 is categorically sexual abuse of a minor). Although the Board evaluated the statute categorically, it made note of the fact that in that case the defendant was 37 years old.
19
See Matter of VFD, 23 I&N Dec. at 863.

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The circuit courts of appeals have split in their decisions regarding whether statutory rape is a crime involving moral turpitude. The Ninth Circuit has held that statutory rape is not a crime involving moral turpitude. 20 The Fourth, Fifth, and Eighth Circuits have taken a contrary view for alleged consensual sexual relations between a minor and a person age 18 or older. 21 As indicated by the above circuit splits, the issues involving statutory rape convictions will continue to be litigated and ultimately may be resolved by the U.S. Supreme Court. Practice Pointer: Practitioners should carefully review the elements required for conviction under the particular statute in each noncitizens case, raise all available arguments, and brief them before the IJ and the Board in order to preserve them for judicial review. Additionally, practitioners should also consider post-conviction relief and other provisions to withdraw a plea, 22 as well as a full and unconditional pardon to eliminate the grounds of deportability for aggravated felony and crime involving moral turpitude charges of deportability. 23 Practice Pointer: Practitioners should object to the introduction of police reports, testimony of the noncitizen in removal proceedings before the immigration court, notes from a prosecutors file, and any other evidence that is not contained in the record of conviction and is not related to the crime of which the noncitizen was actually convicted. Counsel should object to any questioning of the noncitizen respondent, as fishing expeditions are often attempted by Department of Homeland Security (DHS) attorneys and immigration judges to obtain an admission of the age of the victim and an admission of conduct beyond the elements of the crime for which the noncitizen was convicted. CHALLENGES AT THE BOND HEARING A noncitizen convicted of a sex offense often will end up in Immigration and Customs Enforcement (ICE) custody. There are various ways this can happen. ICE may place a detainer on the individual while he or she is still in criminal custody, ensuring that he or she will be transferred directly to immigration custody upon release or completion of any criminal sentence. The individual may be stopped at a port of entry (airport or land border crossing) and a past conviction discovered when he attempts to reenter the United States following travel abroad, sometimes years after the criminal offense occurred. ICE may learn about a prior conviction if the individual is arrested again, even if the current offense is minor and not sex-related. A past conviction may be discovered if the noncitizen applies affirmatively for an immigration benefit, such as adjustment of status or naturalization, and fails to realize that the past offense renders him removable. If the noncitizen is not already in either criminal or DHS custody, ICE may locate him at his home or workplace and arrest him based on a sex-related conviction. In any of these scenarios, the practitioner has a noncitizen client in ICE custody and the first priority is to obtain his or her release, if at all possible. At the outset, the practitioner must determine whether the client is eligible for bond, including whether he or she is subject to mandatory detention under INA 236(c) [8 USC 1226(c)]. The following classes of noncitizens are not eligible for bond: 24
See Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007) (reviewing Cal. Penal Code 261.5(d), which criminalizes sexual intercourse between a person under age 16 and a person at least age 21). 21 See United States v. Ramos-Sanchez, 483 F.3d 400 (5th Cir. 2007) (refusing to consider the possibility that a conviction for statutory rape involved consensual relations without evidence that such a situation had ever been prosecuted); Castle v. Immigration and Naturalization Service, 541 F.2d 1064 (4th Cir. 1976); Marciano v. Immigration and Naturalization Service, 450 F.2d 1022 (8th Cir. 1971); Matter of Dingena, 11 I&N Dec. 723 (BIA 1966). 22 See Padilla v. Kentucky, 130 S. Ct. 1473; D. Kesselbrenner, Retroactive Applicability of Padilla v. Kentucky, Defending Immigrants Partnership, Jun. 24, 2010, available at http://nationalimmigrationproject.org/legalresources.htm; Duty of Criminal Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky, Immigrant Defense Project, Apr. 6, 2010 (revised Apr. 9, 2010), available at www.ImmigrantDefenseProject.org; Steps to Advising a Noncitizen Defendant under Padilla v. Kentucky, Defending Immigrants Partnership, Apr. 15, 2010, available at http://defendingimmigrants.org/.
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20
See INA 237(a)(2)(A)(v) [8 US.C 1227(a)(2)(A)(v)].

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Noncitizens in exclusion proceedings under INA 212 Certain arriving aliens Noncitizens described in INA 237(a)(4) (inadmissible under security and related grounds) Noncitizens subject to mandatory detention under INA 236(c) Noncitizens in deportation proceedings subject to INA 242(a)(2) as amendedcharged with deportability on security, terrorism, and related grounds Mandatory detention Mandatory detention under INA 236(c) applies in the following circumstances where the noncitizen has been convicted of: A crime involving moral turpitude (CIMT) for which a noncitizen has been sentenced to a term of imprisonment of one year or more; Two or more CIMTs not arising from a single scheme of criminal misconduct, regardless of length of sentence; An aggravated felony; A firearms offense; A controlled substance offense (other than a single offense involving possession of 30 grams or less of marijuana); Possession of drug paraphernalia; or Sale of a controlled substance; and The noncitizen was physically released from local, state, or federal custody after October 9, 1998. 25 The BIA recently clarified that INA 236(c) requires mandatory detention of a criminal alien only if he or she is released from non-DHS custody on or after October 9, 1998 (the date of the expiration of the Transition Period Custody Rules), and only where there has been a postOctober 9, 1998, release that is directly tied to the basis for detention under INA 236(c)(1)(A)(D) [8 USC 1226(c)(1)(A)(D). 26 A noncitizen can be subject to mandatory detention even if the allegedly criminal act is not charged in the Notice to Appear. 27 Practice Pointer: The mere fact that the Notice to Appear charges a noncitizen with removability under grounds that would subject him to mandatory detentionsuch as INA 237(a)(2)(A)(iii), for having been convicted of an aggravated felony sexual abuse of a minor offense as defined at INA 101(a)(43)(A)does not mean he necessarily is subject to mandatory detention. If you intend to challenge the charges of removability, you should likewise challenge ICEs 236(c) custody determination by filing a motion for bond redetermination and requesting a Joseph hearing before the immigration judge. Although an IJ does not have authority to release a noncitizen subject to mandatory detention, the IJ retains jurisdiction to determine whether the person is properly included within the mandatory detention provision. 28 Notably, mandatory detention does not apply to a noncitizen who is deportable under INA 237(a)(2)(E) [8 USC 1227(a)(2)(E)] for crimes of domestic violence, child abuse, and violations of protective orders.
See INA 236(c), 236A [8 USC 1226(c), 1226A]; 8 CFR 1003.19(h). See Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999); Matter of West, 22 I&N Dec. 1405 (BIA 2000). 26 See Matter of Garcia Arreola, 25 I&N Dec. 267 (BIA 2010), overruling Matter of Saysana, 24 I&N Dec. 602 (BIA 2008) and modifying Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999). 27 See Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007). 28 See 8 CFR 1003.19(h)(2)(ii); Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).
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Initial custody determination Once ICE authorities detain a noncitizen, they must make an initial custody determination. 29 Except in emergent or extraordinary circumstances, ICE has 48 hours to make this initial determination and to decide whether to issue a Notice to Appear. 30 ICE may: Release the noncitizen on his own recognizance Release the noncitizen with follow-up notice, pursuant to an order of supervision Release the noncitizen on an electronic monitoring braceletthis determination must be challenged within 10 days Set bond in a specific amount Refuse to set bond ICE may also transfer the individual to a different location, which could be remote and even in a different state. Bond Redetermination by Immigration Judge If ICE either refuses to set a bond or sets an unreasonably high bond, and a practitioner has concluded that his or her client is not necessarily subject to mandatory detention, the practitioner should promptly file a motion for bond redetermination with the immigration court. A Notice to Appear is not required to commence bond proceedingsonly that the individual be in ICE custody. 31 Which immigration court has jurisdiction over the bond proceedings is determined as follows: If the respondent is detained, the immigration court having jurisdiction over the place of detention; The immigration court having administrative control over the case; or The Office of the Chief Immigration Judge (OCIJ) for designation of an appropriate immigration court. 32 In bond proceedings, the IJ has authority to order the noncitizen detained in custody or to order his or her release and determine the amount of bond, if any, under which the noncitizen may be released. 33 The IJ also has jurisdiction to reconsider ICEs imposition of electronic monitoring, house arrest, and other conditions of bond. 34 Bond proceedings are more informal than removal proceedings. In addition, the bond hearing is separate and apart from the removal proceedings, bond proceedings are not transcribed, and evidence taken during the bond hearing is not part of the administrative record. 35 Standards for Release on Bond If a noncitizen is not subject to mandatory detention, then he is eligible for release from custody in the exercise of the IJs discretion. 36 To decide whether to order a noncitizen released on bond, the IJ must consider whether the noncitizen is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk. 37 Ordinarily, release should be favored unless the evidence
See INA 236; 8 CFR 1236.1(c). See 8 CFR 1287.3(d). 31 See 8 CFR 1003.14. 32 See 8 CFR 1003.19(c). 33 See 8 CFR 1003.19, 1236.1(d). 34 See Matter of Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009) (where noncitizen filed application with IJ to ameliorate the terms of release within seven days of his release from DHS custody, IJ had jurisdiction to review and modify the condition that he participate in ISAP). 35 See 8 CFR 1003.19(d); Matter of Chirinos, 16 I&N Dec. 276 (BIA 1977). 36 See INA 236(a) [8 USC 1226(a)]. 37 See Matter of Patel, 15 I&N Dec. 666 (BIA 1976).
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demonstrates that the noncitizen is a danger to the community or a flight risk. 38 The IJ may weigh a number of factors in deciding whether a noncitizen merits release on bond, including the following: 39 Whether the noncitizen has a fixed address in the United States The noncitizens length of residence in the United States The noncitizens family ties in the United States The noncitizens employment history The noncitizens record of appearance in court The noncitizens criminal record, including the extensiveness, recency, and seriousness of any criminal offenses The noncitizens history of immigration violations Any attempts by the noncitizen to flee prosecution or otherwise escape from authorities and The noncitizens manner of entry to the United States. In the course of a bond hearing, the IJ can: Increase the bond amountif DHS has set an initial bond Decrease the bond amount to as low as $1,500 or Release the noncitizen on his or her own recognizance. 40 Seeking Bond in Cases Involving Sex-Related Offenses In cases involving removability for a sex-related offense, the DHS routinely will argue that the noncitizen is a per se danger to the communitybecause of the nature of his or her crimeand thus ineligible for release on bond. 41 In Matter of Urena, the Board held that dangerous aliens are properly detained without bond pending the completion of removal proceedings. 42 According to the Board, only where a noncitizen establishes that he would not pose a danger to property or persons should the IJ set a bond, and then only in an amount of bond necessary to ensure the noncitizens presence at future hearings. 43 Practice Pointer: The DHS may argue that anyone convicted of a sex-related offense, and particularly a noncitizen who was convicted of an offense against a minor and may therefore be subject to a sex offender registry, is a dangerous alien who should not be released on any amount of bond. A practitioner may counter by noting (if the facts support it) that his client was released by the criminal court on a bond, and that the same factorsdangerousness and flight riskthat the criminal judge weighed are the factors relevant to the IJs determination. If the criminal judge was persuaded that the noncitizen was not such a danger to the community that he or she should be detained without bond, the practitioner should urge the IJ to reach the same conclusion. Other evidence that may influence the dangerousness determination includes a psychological evaluation finding that the noncitizen is not a sexual predator and is unlikely to reoffend (recidivist analysis); absence of prior sex-related offenses; statements from family, friends, community members, and so on attesting to the noncitizens nonthreatening nature; and evidence of the noncitizens enrollment in treatment programs (drug, alcohol, and/or sex-related). With respect to flight risk, its important to argue that the noncitizen has a strong incentive to appear for future hearingsusually this is because he or she is (at least arguably) eligible for relief from removal, which
38 39
See id.; 8 CFR 1236.1(c)(8). See Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006). 40 See INA 236(a)(2) [8 USC 1226(a)(2)]. 41 See Matter of Urena, 25 I&N Dec. 140 (BIA 2009). 42 See id. 43 See id.
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can include termination of proceedings. Absent at least a colorable argument for relief eligibility, the IJ will be loathe to release the noncitizen on bond or will at a minimum set a very high bond. Other factors that diminish a flight risk are family, community, and employment ties, adverse conditions in the country of origin, a strong record of appearances at past hearings in criminal and/or immigration court, etc. If the IJ decides to set a bond, the amount will be determined according what the IJ deems necessary to ensure appearance at future hearingsi.e., the bond is intended to guard against flight risk. It is critical, therefore, to present all available arguments and evidence why the noncitizen will dutifully appear at future hearings. In particular, family ties, ties to the community, investments and employment in the United States, and eligibility to apply for relief from removal all support release on bond. The lower the flight risk, the lower the bond amount should be. Appealing the IJs Bond Decision An IJs decision to either grant or deny bond can be appealed to the Board within 30 days. 44 By contrast, an appeal of ICEs decision to set a bond must be made within 10 days. 45 If the IJ issues an order releasing the noncitizen on bond, the DHS can seek an emergency stay of release from the Board. 46 The DHS can also seek an automatic stay of an IJs bond order simply by filing Form EOIR-43 with the immigration court, where ICE either denied bond initially, or set bond at $10,000 or more, and the IJ then ordered release on bond. Form EOIR-43 must be filed within one business day of the IJs order. 47 The DHS must then file Form EOIR-26, Notice of Appeal, with the Board within 10 days of the IJs decision, or the automatic stay will lapse. The Notice of Appeal must include a certification from a senior DHS official that he or she has approved of the appeal. 48 Once the Notice of Appeal has been filed, the IJ has five days within which to issue a written bond decision; in exigent circumstances, the IJ may obtain an additional five days. 49 If, after 90 days, the Board has not acted on the appeal, the automatic stay will lapse. If the Board rules against DHS on the bond appeal, release is automatically stayed for five days to afford DHS five days to seek review by the attorney general. 50 There are numerous advantages to obtaining release of the noncitizen on bond. First and foremost, he or she is free from detention and able to rejoin his or her family and community. Second, the case can be moved from an expedited detained docket to the IJs nondetained docketwhich, in many courts, can mean a difference of many months between hearings. While the noncitizen is out on bond, he or she can demonstrate diligence in complying with all conditions of release and also pursue treatment programs or other rehabilitative efforts. In appropriate circumstances, he or she can also pursue post-conviction relief modifying the conviction or even just reducing the sentence can have a dramatic impact on whether he is even removable, what charges of removability apply, and what relief from removal may be available. USING HABEAS TO GET INTO DISTRICT COURT The writ of habeas corpus is available to challenge the lawfulness of agency action. 51 Judicial review under habeas corpus traditionally has been available to test whether an administrative officials actions are consistent with the Constitution and in accordance with enabling legislation. 52 A court is asked in habeas
8 CFR 1003.38, 1236.1(d)(3)(i). 8 CFR 1236.1(d)(3)(ii). 46 8 CFR 1003.19(i)(1). 47 8 CFR 1003.19(i)(2). 48 8 CFR 1003.6(c). 49 8 CFR 1003.6(c)(2). 50 8 CFR 1003.6(d). 51 See, e.g., Ekiu v. United States, 142 U.S. 651, 660 (1892) (a noncitizen refused entry to the United States is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful). 52 See, e.g., U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265, 268 (1954) (habeas corpus used to ensure due process required by the regulations because the crucial question is whether the alleged conduct deprived petitioner of any of the rights guaranteed him by the statute or by the regulation issued pursuant thereto); Yamataya v. Fisher, 189 U.S. 60 (1903).
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proceedings to ascertain whether the restraint [on an individuals liberty] is lawful. 53 The U.S. Supreme Court has recognized that deportation orders can be invalidated where there has been a manifest abuse of discretion by a governmental authority. 54 Habeas corpus is available to review whether an individuals detention is lawful under the following circumstances: Constitutional claims; 55 Statutory and regulatory claims; 56 Application of law to facts; 57 Findings of fact; 58 and Abuse of discretion. 59 Considerations for Filing a Habeas Petition Jurisdictional Considerations In Custody In the immigration context, a petition for writ of habeas corpus can be brought in U.S. district court under the federal habeas statute, 28 USC 2241, where a noncitizen is in custody. Custody means not only physical custody, but also other restraints on the individuals liberty. 60 For example, a noncitizen seeking to challenge the conditions of release under an order of supervision may satisfy the in custody requirement. The in custody determination is made at the time the habeas petition is filed. 61 If the noncitizen is in custody at that point, the district court may consider the merits of the petition even though the noncitizen may be freed from custody before the petition is acted uponas long as the noncitizen may still suffer collateral consequences. 62 Several courts have held, however, that once an noncitizen departs the United States, he or she is no longer in custody and a habeas petition will not lie. 63
Ekiu v. U.S., 142 U.S. at 660. Low Wah Suey v. Backus, 225 U.S. 460, 468 (1912). 55 See, e.g., Yamataya, 189 U.S. at 10001 (reviewing administrative action to ensure compliance with due process requirements); Kwok Jan Fat v. White, 253 U.S. 454 (1920) (order of exclusion reversed on due process grounds). 56 See, e.g., Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 30607 (2001); Gegiow v. Uhl, 239 U.S. 3, 9 (1915). 57 See, e.g., St. Cyr, 533 U.S. at 30102 (habeas review includes the erroneous application or interpretation of statutes); Ogbudimpka v. Ashcroft, 342 F.3d 207, 222 (3d Cir. 2003) (where alien sought habeas review of denial of Convention Against Torture claim, court held that habeas relief traditionally is available to correct the erroneous application of a statute to undisputed facts). 58 See, e.g., Vajtauer v. Commr, 273 U.S. 103 (1927) (holding that deportation on charges unsupported by any evidence amounts to a denial of due process that can be challenged in habeas proceedings). 59 See, e.g., St. Cyr, 533 U.S. at 308 n.30 (observing that federal courts in habeas proceedings have routinely reviewed agency decisions to ensure the lawful exercise of discretion); Bertrand v. Sava, 684 F.2d 204, 21011 (2d Cir. 1982) (The discretionary power to parole unadmitted aliens is broad, but it is not without limits). 60 See Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004) (our understanding of custody has broadened to include restraints short of physical confinement). 61 See, e.g., Zalawadia v. Ashcroft, 371 F.3d 292, 297 (5th Cir. 2004) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998); Carafas v. LaVallee, 391 U.S. 234, 23738 (1968) (The Supreme Court has made it clear that the in custody determination is made at the time the habeas petition is filed.). 62 Spencer v. Kemna, 523 U.S. 1, 7 (1998) (petitioner who was incarcerated at time of filing habeas petition satisfied the in custody requirement; even though he departs the United States, the court continues to have jurisdiction because he is affected by the legal implications of the decision); Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002) (The Supreme Court has held that a habeas petition challenging a criminal conviction is not necessarily mooted when the petitioner is released from prison, as collateral consequences of that conviction may still impinge on the petitioner post-release, and therefore a case or controversy may continue to exist.); Handa v. Clark, 401 F.3d 1129, 1132 (9th Cir. 2005) (same). 63 See, e.g., Samirah v. OConnell, 335 F.3d 545 (7th Cir. 2003); Miranda v. Reno, 238 F.3d 1156 (9th Cir. 2001).
54
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Effect of REAL ID Prior to enactment of the REAL ID Act of 2005, 64 habeas suits in immigration cases generally challenged either the legality of a removal order or the legality of a noncitizens detention. The REAL ID Act purported to eliminate habeas review of final orders of removal and to channel all such actions into the circuit courts of appeal. 65 However, jurisdiction arguably remains to bring a habeas challenge in district court under circumstances where a noncitizen may not be able to adequately and effectively challenge a removal order through a petition for review in circuit court. Examples include: Where, through no fault of the noncitizen, it is not possible to file a petition for review within 30 days of the IJs or Boards issuance of a final order of removal. For example, a noncitizen may not learn of the final order until after 30 days have passed because of ineffective assistance of counsel, the IJ or Board may not timely inform the noncitizen of the decision, or the order may be the result of an in absentia hearing. Where the administrative record has not been adequately developed for review by a circuit court, and a district court must engage in fact-finding. 66 Where a removal order issued is ultra vires, and consequently there is no final order of removal for a circuit court to review. 67 Where and When to File Habeas corpus petitions are most often filed in U.S. district court. The statute, 28 USC 2241(a), provides that [w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The Supreme Court has interpreted this statute to require only that the court issuing the writ have jurisdiction over the prisoners custodian. 68 Jurisdiction exists where the petitioners custodian can be reached by service of process from the court in which the petition has been filed. 69 The filing fee for a writ of habeas corpus is $5, unless a petitioner first obtains permission from the court to file in forma pauperis. Habeas proceedings are governed by the Federal Rules of Civil Procedure as well as the courts local rules and any special local procedures for habeas corpus. Appeal of a district court habeas decision is filed in the appropriate federal circuit court of appeals and is governed by the Federal Rules of Appellate Procedure. As noted, a federal district court only has jurisdiction in habeas proceedings if an individual is in custody. In the immigration context, once a final order of removal has been issued, a person is deemed to be in custody for habeas purposes. 70 Naming and Serving the Proper Respondents The federal habeas statute requires a petitioner to state the name of the person who has actual custody over the petitioner. 71 The Supreme Court has held that in a habeas petition challenging a petitioners confinement, the proper respondent is the immediate custodian, defined as the person who exercises dayPub. L. No. 109-13, div. B, 119 Stat. 231, 302-23 (effective May 11, 2005). See INA 242(a)(5). 66 See, e.g., McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991) (in case challenging Immigration and Naturalization Service policies and procedures for adjudicating legalization applications, the Supreme Court noted that the court of appeals lacked the factfinding and record-developing capabilities of a federal district court). 67 See, e.g., Noriega-Lopez v. Ashcroft, 335 F.3d 874 (9th Cir. 2003) (holding that an order of removal issued by the Board in the first instance is ultra vires and a legal nullity). 68 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). 69 Rasul v. Bush, 542 U.S. 466 (2004). 70 See Simmonds v. Immigration and Naturalization Service, 326 F.3d 351, 354 (2d Cir. 2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001); Mustata v. Dept of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir. 1999); Nakaranurack v. Immigration and Naturalization Service, 68 F.3d 290 (9th Cir. 1995). 71 28 USC 2242 (2008).
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to-day control over [the petitioners] physical custody. 72 However, to the extent a habeas petition challenges a final order of removal, the U.S. attorney general and the secretary of Homeland Security are also proper respondents. 73 In an immigration case, the practitioner may wish to name the following as respondents: the field office director of ICE who has authority over the noncitizens detention; the warden or superintendent of the facility where the noncitizen is detained; the assistant secretary of ICE; the secretary of Homeland Security; and the attorney general. All of these parties must be served, along with the U.S. attorney for the district in which the petition is brought. Habeas corpus in immigration cases involving sex offenses A noncitizen convicted of a sex offense often will be arrested and detained by ICE. The following are but two examples of circumstances under which a practitioner may decide to file a habeas corpus petition on behalf of such a client. ICE takes the noncitizen into custody and either refuses to set a bond or sets a bond in the amount of $10,000 or higher. A practitioner files a motion for bond redetermination with the immigration court. In bond proceedings, the attorney persuades the IJ that his client is not subject to mandatory detention under INA 236(c) and the IJ agrees to release his client on bond. The ICE Office of Chief Counsel then seeks an automatic stay, pursuant to 8 CFR 1003.19(i)(2), by filing Form EOIR-43 within 24 hours of the IJs bond order. A practitioner may challenge his clients continued detention by filing a habeas petition and arguing that the automatic stay provision at 8 CFR 1003.19(i)(2) is unconstitutionalbecause it violates his clients due process rightsand is ultra vires to the statuteparticularly INA 236(c), which defines the classes of aliens subject to mandatory detention. 74 In bond proceedings, the IJ agrees with ICE that the noncitizen is subject to mandatory detention under INA 236(c), as a noncitizen convicted of an aggravated felony, or as a noncitizen convicted of two or more crimes involving moral turpitude. The IJ thus deems the noncitizen ineligible for release on bond, and the practitioner files an appeal of this decision with the Board. However, the noncitizen will remain in custody for the duration of the bond appeal before the Board. Thus, the practitioner may also elect to file a habeas petition to challenge the IJs legal determination that his client falls within the mandatory custody provisions at INA 236(c). Because the challenge is to the noncitizens continued detention without bond as unlawfulrather than challenging the IJs order of removala district court has habeas jurisdiction over the claim. If the district court judge agrees that mandatory detention does not apply to the noncitizens circumstances, the court will order the IJ to conduct a bond hearing and determine whether the noncitizen merits release on bond in the exercise of discretion. Certainly, many other situations may call for a habeas petition. The central question is whether the noncitizens detention is unlawful as a violation of due process; a violation of the INA or the regulations; an improper application of the law to the noncitizens facts; the result of improper fact-finding; or an abuse of agency discretion. The writ of habeas corpus is a powerful tool. A well-pleaded habeas petition will sometimes persuade ICE to release a noncitizen from custodysuch as on an order of supervision or electronic monitoringin order to avoid litigating the habeas action in federal court. In the automatic stay scenario, ICE may likewise decide that defending 8 CFR 1003.19(i)(2) before a federal district court judge is not worth the effort, particularly where an independent arbiter (the IJ) already has determined that release on bond is appropriate. If so, ICE may withdraw Form EOIR-43 and drop the automatic stay. Moreover, even in cases where ICE
Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004). See, e.g., Armentero v. Immigration and Naturalization Service, 340 F.3d 1058 (9th Cir. 2003), withdrawn 382 F.3d 1153 (9th Cir. 2003), appeal dismissed, 412 F.3d 1088 (9th Cir. 1995). 74 See, e.g., Zavala v. Ridge, 310 F. Supp. 2d 1071, 107679 (N.D. Cal. 2004); Ashley v. Ridge, 288 F. Supp. 2d 662, 675 (D.N.J. 2003); Uritsky v. Ridge, 286 F. Supp. 2d 842, 84647 (E.D. Mich. 2003); Bezmen v. Ashcroft, 245 F. Supp. 2d 446, 450 (D. Conn. 2003). But see, e.g., Hussain v. Gonzales, 492 F. Supp. 2d 1024 (D. Wis. 2007); Pisciotta v. Ashcroft, 311 F. Supp. 2d 445 (D. N.J. 2004).
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does not relent, and a practitioner is obliged to fully litigate the habeas petition in court, a federal district judge may be persuaded that the noncitizens continued detention is unlawful, for the reasons claimed, and order him or her released from custody. DEPORTABLE CONVICTION OF A CRIME OF CHILD ABUSE, NEGLECT OR ABANDONMENT A noncitizen is deportable if, after admission and on or after September 30, 1996, he or she is convicted of a crime of child abuse, child neglect, or child abandonment. 75 The September 30, 1996, effective date applies in all contexts. A conviction for a crime of child abuse entered on or after September 30, 1996, will bar a noncitizen from applying for relief called cancellation of removal for nonpermanent residents. 76 This bar applies even if the noncitizen never was admitted to the United States A limited exception may apply to noncitizens eligible for Violence Against Women Act (VAWA) cancellation of removal. 77 Conviction Under an Age-Neutral Statute The Board held that a plea to an age-neutral offense can be a crime of child abuse, neglect, or abandonment, but only if the fact that the victim was under the age of 18 is proven in the reviewable record of conviction under the rules of the categorical approach. 78 The Board held that the following evidence was not sufficient proof that the victim of an age-neutral assault was a minor: a Washington state no-contact order involving a child (the birth certificate was provided), which does not necessarily define the victim of the offense of conviction; and a restitution order to the child victim, since restitution in Washington is established by a preponderance of the evidence and so was not part of the conviction. 79 Practice Pointer: Practitioners should argue that an age-neutral offense never can qualify as a crime of child abuse. The Boards Definition of a Crime of Child Abuse, Neglect, or Abandonment The following is a brief discussion of unresolved issues in two Board decisions defining a deportable crime of child abuse. In Matter of Velazquez-Herrera, 24 I&N Dec. 503, 513 (BIA 2008), the Board defined a crime of child abuse as follows: We] interpret the term crime of child abuse broadly to mean any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a childs physical or mental well-being, including sexual abuse or exploitation. At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in prostitution, pornography, or other sexually explicit conduct; as well as any act that involves the use or exploitation of a child as an object of sexual gratification or as a tool in the commission of serious crimes, such as drug trafficking. Moreover, as in the sexual abuse of a minor context, we deem the term crime of child abuse to refer to an offense committed against an individual who had not yet reached the age of 18 years. Cf. Matter of VFD, 23 I&N Dec. 859 (BIA 2006) [W]e do not limit the term to those offenses that were necessarily committed by the childs parent or by someone acting in loco parentis.
75 76
See INA 237(a)(2)(E)(i) [8 USC 1227(a)(2)(E)(i)]. See INA 240A(b)(1) [8 USC 1229b(b)(1)]. 77 See INA 240A(b)(2) [8 USC 1229b(b)(2)]. 78 See Matter of Velazquez-Herrera, 24 I&N Dec. 503, 516 (BIA 2008). 79 See Id. at 51617.
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The Board has held that the above definition is also the definition of a deportable crime of child neglect or abandonment, meaning that the offenses of child neglect and child abandonment do not have a separate definition. 80 Child endangerment: actual harm is not required for an offense to be a crime of child abuse. In Fregozo v. Holder, 576 F.3d 1030, 1035 (9th Cir. 2009), the Ninth Circuit interpreted Matter of VelazquezHerrera, 24 I&N Dec. 503, 513 (BIA 2008), to require that a child must actually suffer harm for a crime to constitute child abuse. Therefore, it held that misdemeanor child endangerment under Calif. P.C. 273a(b) is divisible as a crime of child abuse, because it covers both causing actual harm as well as willfully causing or permitting a child to be placed in a situation where his or her person or health may be endangered. 81 In apparent response, the Board clarified that Matter of Velazquez-Herrera does not require actual harm to the child. 82 The Board held that knowingly or recklessly putting a child in a situation that poses a threat of injury to life or health, under Colo. Rev. Stat. 18-6-401(7)(b)(I), is categorically a crime of child abuse. 83 Child endangerment: how much risk of how much harm? While in Matter of Soram, 25 I&N Dec. 378, 381 (BIA 2010), the BIA held that putting a child at risk can constitute a crime of child abuse, it did not quantify how much and what kind of risk is required. 84 Noting the variety in state laws, the Board found that it would have to make the determination on a state by state basis. Unfortunately, Matter of Soram does not create a clear rule regarding which offenses will and will not be considered to be crimes of child abuse. In Matter of Soram, 25 I&N Dec. 378, 381 (BIA 2010), the Board found that Colorado Rev. Stat. 18-6401(1)(a) is categorically a crime of child abuse. Two offenses listed in the statute involve direct harm to the child and are crimes of child abuse. 85 The discussion in Matter of Soram focused on a third offense, permit[ting] a child to be unreasonably placed in a situation that poses a threat of injury to the childs life or health. This offense is a class 2 misdemeanor except in certain situations. The Board noted that the Colorado statute requires knowing or reckless intent. 86 It found that Colorados purpose in including the endangerment clause in its child abuse statute is similar to that of Congress in enacting section 237(a)(2)(E)(i) of the Act. 87 Regarding the likelihood of harm occurring, the Board found that the Colorado legislature intended that there must have been at least a reasonable probability that the childs life or health will be endangered based on the noncitizen knowingly or recklessly permitting a child to be unreasonably placed in a situation that posed a threat of injury to the life or health of the child. 88 The Board did not discuss the degree of harm or injury threatened, e.g., what a threat of injury to health constitutes, and how it would compare to a lesser threatened harm. It is not clear that Matter of Soram, 25 I&N Dec. 378 (BIA 2010), is in disagreement with the Ninth Circuits holding in Fregozo v, Holder, 576 F.3d 1030
80 81 82 83
See Matter of Soram, 25 I&N Dec. 378, 381 (BIA 2010). See Fregozo v. Holder, 576 F.3d 1030, 103738 (9th Cir. 2009) (emphasis added).
See Matter of Soram, 25 I&N Dec. 378 (BIA 2010). See Matter of Soram, 25 I&N Dec. 378 (BIA 2010). 84 See Matter of Soram, 25 I&N Dec. 378 (BIA 2010). 85 Colorado Rev. Stat. 18-6-401(1)(a) provides in full: A person commits child abuse if such person causes an injury to a childs life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the childs life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.
86 Colorado courts have held that the term knowingly in the statute refers to the actors general awareness of the abusive nature of his conduct in relation to the child or his awareness of the circumstances in which he commits an act against the wellbeing of the child. People v. Noble, 635 P.2d 203, 210 (Colo. 1981). Furthermore, a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that, in light of the childs circumstances, a particular act or omission will place the child in a situation which poses a threat of injury to the childs life or health. Matter of Soram, 25 I&N Dec. at 383. 87 88
See Id. at 38384. See Id. at 384 (emphasis in opinion).

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(9th Cir. 2009), that Calif. P.C. 273a(b) is not categorically a crime of child abuse. In Matter of Soram, the Board stated only that it disapproved of the Ninth Circuits statement in Fregozo that actual harm must occur. Practice Pointer: Where noncitizens have been convicted of state statutes similar to Calif. P.C. 273a(b), practitioners should argue that the risk of harm in the statute at issue in Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009), Calif. P.C. 273a(b), is less than in the Colorado statute and should be found not to be a crime of child abuse. 89 FAILURE TO REGISTER AS A SEX OFFENDER A federal conviction under 18 USC 2250 for failure to register as a sex offender with the National Sex Offender Registry or for failure to report any change of address to the National Sex Offender Registry renders a noncitizen deportable under INA 237(a)(2)(A)(v) [8 USC 1227(a)(2)(A)(v)]. As the criminal statutory provisions of 18 USC 2250 were enacted on July 27, 2006, this ground of deportability applies to convictions entered on or after July 27, 2006. 90 Although such a conviction may be properly classified as a regulatory offense, a conviction for failure to register as a sex offender may be found to be a crime involving moral turpitude. The Board has held that where a noncitizen was informed that he has an obligation to register as a sex offender, his subsequent failure to comply with the obligation is a crime involving moral turpitude. 91 In its decision, the Board found that the failure to register as a sex offender is an inherently base or vile crime with an implicitly evil intent based on current societal mores and the serious risk involved in a violation of the duty owed by sex offenders to society, even where a conviction for a willful failure to register arises as a result of forgetfulness. 92 The Ninth Circuit has agreed with the Boards conclusion. 93 The Seventh Circuit recently remanded a case for the Board to apply the categorical approach under Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2007), to a Wisconsin statute for which no mens rea is required. 94 Thus, a conviction for failure to register as a sex offender can constitute a ground of deportability under INA 237(a)(2)(A)(i) [8 USC 1227(a)(2)(A)(i)] as well as a ground of inadmissibility under INA 212(a)(2)(A)(i)(I) [8 USC 1182(a)(2)(A)(i)(I)] as a crime involving moral turpitude. A noncitizen who has been convicted of a crime involving moral turpitude committed within five years after the date of admission and for which a sentence of one year or longer may be imposed is deportable. 95 In a recent decision, the Board clarified the term date of admission and held that a conviction for a crime involving moral turpitude triggers removability under INA 237(a)(2)(A)(i) [8 USC 1227(a)(2)(A)(i)] only if the crime was committed within five years of the date of the admission by virtue of which the noncitizen
89 The Ninth Circuit will likely defer to the Boards statement that child abuse does not require actual harm. Even so, Calif. P.C. 273a(b) (as opposed to 273a(a)) might be found to fall outside the child abuse definition. The Ninth Circuit stated: In short, California Penal Code section 273a(b) makes criminal conduct that creates only the bare potential for non-serious harm to a child, and so lies outside the reach of the crime of child abuse category in the INA. Because it includes such conduct, the statute goes beyond singl[ing] out those who have been convicted of maltreating or preying upon children, and lies outside the statutory goal of facilitating the removal of child abusers in particular. Matter of Velazquez-Herrera, 24 I&N Dec. at 509 (citing Fregozo v. Holder, 576 F.3d at 1038). 90 This provision was enacted by the Adam Walsh Child Protection and Safety Act of 2006 on July 27, 2006. See Adam Walsh Child Protection and Safety Act of 2006, sec. 401(2), Pub. L. No. 109-248, 120 Stat. 587 (July 27, 2006). 91 See In re Tobar-Lobo, 24 I&N Dec. 143, 14547 (BIA 2007). 92 See In re Tobar-Lobo, 24 I&N Dec. at 147. 93 See Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (overruling Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008), and holding that a conviction for failure to register as a sex offender is a crime involving moral turpitude). 94 See Mata-Guerrero v. Holder, 627 F.3d 256 (7th Cir. 2010) (remanding for the Board to apply the three-step categorical approach as outlined in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2007)). For an excellent practice advisory, see Kesselbrenner and Tooby, Living Under Silva-Trevino, National Immigration Project of the National Lawyers Guild, Feb. 26, 2009, available at http://nationalimmigrationproject.org/publications.htm. 95 See INA 237(a)(2)(A)(i) [8 USC 1227(a)(2)(A)(i)].
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was then present in the United States. 96 Two convictions for failure to register can also render a noncitizen deportable for having been convicted of two crimes involving moral turpitude at any time after admission. 97 Where a noncitizen has been convicted of failure to register as a sex offender and the maximum term of imprisonment that can be imposed is one year or less, the offense may qualify for the petty offense exception and therefore the noncitizen may still be admissible to the United States. 98 If the noncitizen was convicted prior to age 18, the offense may qualify for the juvenile offense exception. 99 A conviction for failure to register as a sex offender may also disqualify a noncitizen from demonstrating good moral character. 100 Good moral character is required for certain immigration benefits, such as naturalization, 101 cancellation of removal, 102 and voluntary departure at the conclusion of removal proceedings. 103 ADAM WALSH ACT: CONVICTION OF CERTAIN OFFENSES AGAINST A MINOR WILL PREVENT A U.S. CITIZEN OR PERMANENT RESIDENT FROM BEING ABLE TO FILE A FAMILY VISA PETITION FOR AN IMMIGRANT FAMILY MEMBER Until 2006, there were no laws that restricted family immigration based on the petitioners criminal conviction. In immigration terms, the petitioner is a U.S. citizen or lawful permanent resident who files a family visa petition so that a noncitizen parent, spouse, child, or sibling can apply for lawful permanent resident status within the United States or an immigrant visa abroad, based on the family relationship. 104 Effective July 27, 2006, section 402 of the Adam Walsh Act 105 amends the immigration provisions governing family visa petitions to prohibit both U.S. citizens and lawful permanent residents convicted of a specified offense against a minor 106 from filing a family-based immigrant petition on behalf of any relative. The specified offenses include relatively minor crimes, such as false imprisonment or solicitation of any sexual conduct. The law provides an exception only if the secretary of Homeland Security decides in his or her sole and unreviewable discretion that the citizen or permanent resident petitioner does not pose a risk to the petitioned relative. Specified Offenses Against a Minor. The definition of specified offense against a minor is set forth in the Adam Walsh Act, and includes any of the following: (A) an offense involving kidnapping, unless committed by a parent or guardian; (B) an offense involving false imprisonment, unless committed by a parent or guardian;
96 97
See In re Alyazji, 25 I&N Dec. 397 (BIA 2011) (overruling in part Matter of Shanu, 23 I&N Dec. 754 (BIA 2005)). See INA 237(a)(2)(A)(ii) [8 USC 1227(a)(2)(A)(ii)]. 98 See INA 212(a)(2)(A)(ii)(II) [8 USC 1182(a)(2)(A)(ii)(II)]. 99 See INA 212(a)(2)(A)(ii)(I) [8 USC 1182(a)(2)(A)(ii)(I)]. 100 See INA 101(f) [8 USC 1101(f)]. 101 See INA 316(e) [8 USC 1427(e)]. 102 See INA 240A(b)(1) [10-year cancellation of removal], (2) [VAWA cancellation] [8 USC 1229b(b)(1), (2)] 103 See INA 240B(b) [8 USC 1229c(b)]. 104 Once the family visa petition is approved, depending on various factors the noncitizen family member (beneficiary) must wait anywhere from a few months to 15 years to apply for permanent residency. The length of the wait depends upon the family relationship, whether the petitioner is a lawful permanent resident or U.S. citizen, and the number of visas available in each category from the country of origin of the beneficiary. Siblings of a U.S. citizen always will wait more than a decade. A spouse or unmarried child who is under 21 of a U.S. citizen, or a parent of a U.S. citizen child who is at least 21 years old, is an immediate relative who must wait only the time it takes to process the application paperworkwhich itself can range from a few months to more than a year. When the time comes to apply for permanent residency, the beneficiary must be admissible, or obtain a waiver of any ground of inadmissibility.
105
See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, title IV, 120 Stat. 587, 62223 (July 27, 2006). 106 See amended INA 204(a)(1) and (b)(1) [8 USC 1154(a)(1) and (b)(i)(I)]. A minor is someone who is under the age of 18. See Adam Walsh Act, Title A, sec. 111(14).
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(C) solicitation to engage in sexual conduct; (D) use in sexual performance; (E) solicitation to practice prostitution; (F) video voyeurism as described in 18 USC 1801; (G) possession, production, or distribution of child pornography; (H) criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt this conduct; (I) any conduct that by its nature is a sex offense against a minor. 107 The last section, (I) sex offense against a minor, is further defined at section 111(5)(A). 108 A U.S. Citizenship and Immigration Services (USCIS) memo provides that a state offense must be substantially similar to one of the offenses defined above in the Adam Walsh Act. 109 To date, DHS has issued guidance on the implementation of the Adam Walsh Act in two memos. 110 Certain Juvenile Delinquency Dispositions Trigger the Bar. The definition of conviction for purposes of the Adam Walsh Act differs slightly from the immigration definition of conviction, 111 in that it includes a limited set of juvenile delinquency dispositions. Section 111(a) of Adam Walsh includes juvenile delinquency adjudications as convictions if two criteria are met: (1) the offender is 14 years or older at the time of the offense; and (2) the offense was the same as or more severe than aggravated sexual abuse described in 18 USC 2241 or was an attempt or conspiracy to commit such an offense. Under 18 USC 2241, a person who crosses a state border to engage in a sexual act with someone under the age of 12 or someone who knowingly engages in sexual conduct with someone who is between the ages of 12 and 15 by using force or threatening the person with serious bodily harm may be prosecuted. SEX OFFENSES AS A PARTICULARLY SERIOUS CRIME AND A BAR TO ASYLUM AND WITHHOLDING OF REMOVAL A conviction for a sex offense can affect a noncitizen who fears persecution and torture in his or her country of origin or last habitual residence. Where the conviction is found by the DHS or an IJ to be a conviction of a particularly serious crime, it will render a noncitizen ineligible for asylum, for withholding of removal under INA 241(b)(3) [8 USC 1251(b)(3)], and for withholding of removal under the Convention against Torture. 112 Under Matter of Frentescu, to determine whether a crime is particularly serious, the IJ must review: the nature of the conviction; the circumstances and underlying facts of the conviction; the type of sentence imposed; and
See Adam Walsh Act, Title I, Subtitle A, 111(7). This includes a criminal offense that has an element involving a sexual act or sexual contact with another; a criminal offense that is a specified offense against a minor (therefore, any act described in AH above is covered also by (I)); certain federal offenses: 18 USC 1152, 1153, 1591; chapters 109A, 110, or 117 of title 18 (but excluding sections 2257, 2257A, and 2258); a military offense specified by the Secretary of Defense in section 115(a)(8)(C)(i) of Pub. L. No. 105-119 (10 USC 951 note); or attempt or conspiracy to commit an offense in the above four subsections.
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See M. Aytes, Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiance(e) under the Adam Walsh Child Protection and Safety Act of 2006, (Feb. 8, 2007), available at www.uscis.gov/; M. Aytes, Adam Walsh Child Protection and Safety Act of 2006, (July 28, 2006), available at www.uscis.gov/. See id. INA 101(a)(48)(A) [8 USC 1101(a)(48)(A)]. 112 See INA 208(b)(2)(A)(ii) and (B) (asylum), 241(b)(3) (withholding of removal) [8 USC 1158(b)(2)(A)(ii) and (B), 1251(b)(3)]; 8 CFR 208.16, 1208.16 (withholding under the Convention against Torture).
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whether the type and circumstances of the crime indicate that the noncitizen is a danger to the community. 113 The Board modified the Frentescu test with its decision, Matter of NAM. 114 In Matter of NAM, the Board held that the sentence imposed was no longer a focus because it is not the most accurate or salient factor to consider in determining the seriousness of an offense. 115 The Board also held that once an IJ finds that the crime is, by its nature, within the range of a particularly serious crime, then the noncitizen or the DHS may introduce any otherwise reliable evidence to determine whether it should be found to be a particularly serious crime. 116 Practice Pointer: Practitioners should argue that the sentence still needs to be a focus of the inquiry to determine whether an offense is a particularly serious crime. In Matter of NAM, 24 I&N Dec. 336 (BIA 2007), affd, 587 F.3d 1052 (10th Cir. 2009), petition for cert. filed (U.S. July 29, 2010), the noncitizen received a reduced sentence in return for his cooperation with an investigation. This factor is irrelevant in many cases involving sex offenses. Thus, where a state court ordered probation or a minor jail term, practitioners should argue that this sentence must be considered under the Frentescu test. Practitioners need to be extremely cautious about the types of evidence that the DHS attempts to introduce into the record to prove that an offense is a particularly serious crime. Police reports are often filled with hearsay and statements that may not be reliable, for the benefit of the prosecutor. In some areas, prosecutors will overcharge an offense with the intent to obtain a plea bargain to a serious offense although the offense committed was relatively minor. On the other hand, practitioners can introduce evidence to impeach the proffered evidence of the DHS regarding whether a crime is particularly serious. In certain instances, counsel may wish to introduce an affidavit, deposition, or sworn testimony of the victim to demonstrate that the offense is not particularly serious, such as in the case of statutory rape where the victim was age 17 and the noncitizen was age 18 and the couple had been dating for an extended period of time. The Board has held that a conviction does not have to be an aggravated felony in order to be found to constitute a particularly serious crime. The Third Circuit has disagreed with the Board. 117 This issue of whether a conviction must be an aggravated felony in order to be considered a particularly serious crime is currently pending before the U.S. Supreme Court. 118 Practice Pointer: Where the offense is a misdemeanor, practitioners should argue that a misdemeanor offense cannot be a particularly serious crime under the reasoning of the Third Circuit in Alaka, and any other applicable arguments. Until the issue is decided, practitioners should continue to challenge allegations that convictions for sex offenses, particularly statutory rape, are especially serious crimes that mandate the denial of persecutionbased claims for relief from removal. Although deferral of removal is available to noncitizens convicted of sex offenses, it is a more limited form of relief than asylum or withholding of removal, and it requires that a noncitizen prove probable torture by government officials or other individuals with the acquiescence of government officials. 119
See Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982). See Matter of NAM, 24 I&N Dec. 336 (BIA 2007), affd, 587 F.3d 1052 (10th Cir. 2009), petition for cert. filed (U.S. July 29, 2010). 115 See id. at 343. 116 See id. at 34345. 117 See Alaka v. Attorney Genl of U.S., 456 F.3d 88, 10405 (3d Cir. 2006), as amended (Aug. 23, 2006) (only aggravated felony offenses may be found to constitute a particularly serious crime). 118 See Matter of NAM, 24 I&N Dec. 336 (BIA 2007) (holding that a non-aggravated felony offense may constitute a particularly serious crime), affd, 587 F.3d 1052 (10th Cir. 2009), petition for cert. filed (U.S. July 29, 2010), and Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982) (outlining the factors to be considered in the particularly serious crime determination). 119 See 8 CFR 208.18, 1208.18.
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CONCLUSION As demonstrated above, convictions for sex offenses can be some of the most challenging cases that practitioners may handle. Each case merits a full investigation of the underlying facts and context of the offense, as well as representations made by defense attorneys prior to the entry of a guilty plea or trial.
ASYLUM FUNDAMENTALS: HOW TO MAKE ASYLUM CASES MANAGEABLE *

by Hiroko Kusuda, Sioban Albiol, and Ginger E. Jacobs
Have you ever received a call from a person who said that she was afraid to go back to her home country? Many social-justiceoriented immigration practitioners have expressed disappointment in their inability to assist such a person, even when they knew that the person was in a dire situation, partly because of the complexities of asylum work and partly because of the potentially serious ramifications of the case denial. True, asylum work is complicated, but it is not impossibly complicated. It does, however, require more of a holistic approach to case preparation than lawyers in other areas of law are used to, because it involves, among others, extensive country condition research. And it requires attorneys to expand their network of professional contacts to college professors, religion and medical experts, forensic psychologists, and clinical social workers, among others. It is also true that an asylum application takes a lot of time to prepare and complete. But if your client reaches a successful result, the work is immensely rewardingyou may have saved someones life. Regardless of the end result, your client should feel that she received excellent representation if you submitted a detailed, accurate and complete application supported by thorough legal research and the best available evidence. To make asylum work more manageable, this article addresses several considerations, including important changes made by the REAL ID Act. LEGAL REQUIREMENTSSTATUTORY ELEMENTS OF ASYLUM, WITHHOLDING OF REMOVAL, AND CONVENTION AGAINST TORTURE RELIEF Asylum, withholding of removal, and Convention Against Torture (CAT) relief are protections extended pursuant to U.S. international treaty obligations and implementing legislation to certain individuals who fear persecution in their countries of origin. Asylum and withholding of removal protections in U.S. law correspond to the U.N. Convention relating to the Status of Refugees (Refugee Convention). 1 There are three forms of humanitarian relief based on a persons fear of persecution, harm, or torture in his or her native countryasylum, withholding of removal, and relief under the CAT. 2 To win asylum, a person must meet the definition of a refugee under INA 101(a)(42): that he or she has a well-founded or reasonable fear of persecution if returned to his or her native country. 3 The person is required to show
The information contained in this article is current as of Feb. 24, 2011.
Hiroko Kusuda directs the Immigration Law Section of Loyola New Orleans College of Law, Stuart H. Smith Law Clinic and Center for Social Justice. In addition to clinical teaching, she directs a monthly Know Your Rights program for indigent immigrant detainees at Tensas Parish Detention Center in Louisiana. She was detention attorney for Catholic Legal Immigration Network, Inc. (CLINIC) between 200209. She is past treasurer and INS liaison and current ICE liaison for AILAs Midsouth Chapter. She is a graduate of Tulane Law School, New Orleans, and Tsuda College, Tokyo. Sioban Albiol is clinical instructor and coordinator of the Asylum and Immigration Law Clinic at DePaul College of Law. She is a member of AILA Chicago Chapter Executive Board and has served as committee chair of the Chicago Bar Association Immigration and Nationality Law Committee. Ginger E. Jacobs is the co-founder and partner of Jacobs Schlesinger & Sheppard LLP, a full-service immigration and appellate litigation firm in San Diego. Ms. Jacobs is a 1998 graduate of Harvard Law School. Ms. Jacobs specializes in asylum, family, employment-based immigration, and nonimmigrant visas, and removal defense in immigration court. She would like to thank Ashley Arcidiacono for her assistance with this article. 1 July 28, 1951, 189 UNTS 150 (entered into force Apr. 22, 1954), 606 UNTS 267 (entered into force Oct. 4, 1967). 2 Definition of a refugee: INA 208; INA 241(b)(3); 8 CFR 1208.16.18. 3 INA 101(a)(42); see also United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status (1992): available at www.unhcr.org/publ/PUB/3d58e13b4.pdf.
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either past persecution or fear of future persecution as well as some evidence as to the motivation of the persecutor. In addition, the person has to show that there is a relationship (nexus) between the persecution and the basis for itrace, religion, nationality, political opinion, or membership in a particular social group. The well-founded standard means that a reasonable person in a similar situation would have the fear that an applicant for asylum has. 4 Not all people are eligible for asylum, however. There are both statutory and discretionary bars to asylum, as explained below. Withholding of removal is similar to asylum in that a person has to show that he or she has suffered, or will likely suffer, harm in his or her native country based on one of the five enumerated grounds. However, the burden of proof is higher for withholding of removal than for asylum; it is a more likely than not standard. 5 A person thus must show at least 50 percent possibility that the persons life or freedom will be threatened if he or she is returned. 6 The benefit of withholding is that it is a mandatory form of relief while asylum is discretionary. 7 Another humanitarian relief that is available for people who fear detention, torture, or death is deferral under the CAT. Unlike asylum and withholding, there is no statutory bar to deferral. Even people with serious criminal convictions are eligible for this protection. The important thing to remember is that the applicant must prove with clear probabilitythat it is more likely than notthat he or she will face an intentional act of severe suffering or physical or mental torture by government, or with governments acquiescence or willful blindness. The applicant also does not have to show a nexus to particular protected grounds for his or her suffering. Only the immigration judge (IJ) has jurisdiction to adjudicate a CAT claim. If any asylum bars apply to an applicant for withholding under CAT, the IJ must consider deferral under CAT. Asylum Is the Best of the Three Asylum is a discretionary form of relief. 8 If granted, asylum is better than the other two forms of relief in several important ways. An asylee derives the most benefits; he or she can apply for lawful permanent resident status one year after asylee status is granted, and five years later, he or she will be eligible to become a U.S. citizen. In comparison, those granted the relief of withholding of removal or other relief under the CAT will never be eligible for lawful permanent resident status or U.S. citizenship, although they will be allowed to remain in the United States and will be eligible to work. There is some risk that the U.S. government will reopen the case and send a withholding grantee back to his or her native country if the countrys condition changes in the future. 9 An asylee can also travel outside the United States using a refugee travel document and can petition for her immediate relatives to come to the United States based on her status, but withholding and CAT grantees cannot. More important, asylum provides worldwide protection; withholding of removal and protection under the CAT offer only country-specific protection to the applicant. This means that the government may send the withholding or CAT deferral grantee to a country other than the country where he or she fears persecution or torture. U.S. Asylum Process If an applicant is not in removal proceedings, he or she can file an asylum application affirmatively with the U.S. Citizenship and Immigration Services (USCIS) Asylum Office. If USCIS cannot grant asylum, her
INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987) (this standard may be as little as one in 10 cases). INS v. Stevic, 467 U.S. 407 (1984) (standard for withholding of removal). 6 Id. 7 INA 241(b)(3). 8 See INA 208(b)(1); 8 CFR 208.14(a)(b), 1208.14(a)(b). 9 It is important to note that a relief granted under INA 241(b)(3) is a removal order; therefore, winning this relief does not lead to any lawful status.
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case may be referred to the Immigration Court for a de novo review. 10 If the person is referred to, or is already in, removal proceedings, the respondent can file a defensive application in the immigration court. 11 Persecution An asylum applicant is required to show either past persecution or fear of future persecution, as well as some evidence as to the motivation of the persecutor. In addition, the person has to show that there is a relationship (nexus) between the persecution and the basis claimedrace, religion, nationality, political opinion, or membership in a particular social group. The well-founded standard means that a reasonable person in a similar situation would have a fear that the applicant for asylum has. The persecution is not defined by statute but is a creation of Board of Immigration Appeals (BIA) case law. 12 For example, persecution can be behavior that threatens death, imprisonment, or substantial harm, detention, arrest, interrogation, prosecution, imprisonment, illegal search, surveillance, beatings, torture, confiscation, severe economic disadvantage, rape, and sexual assault. It does require substantial harm but does not necessarily require permanent or serious injuries. 13 Nexus An asylum applicant has to show that the persecution she or he suffered or fears is on account of her or his race, religion, nationality, membership in a particular social group, or political opinion. 14 After the passage of the REAL ID Act, when the motives of persecutors are mixed, an applicant has to prove that race, religion, nationality, membership in a particular social group, or political opinion, was or will be at least one central reason for the persecution. 15 The BIA clarified that what Congress meant by one central reason was that applicants who were persecuted by someone motivated by more than one reason may be protected if they can show a nexus to a protected ground. 16 USCIS takes the position that any of the five protected grounds may be imputed to an asylum applicant, not only political opinion. 17 The term race in the refugee definition, according to United Nations High Commissioner for Refugees (UNHCR), should include all kinds of ethnic groups that are referred to as races in common usage. 18 Examples of persecution based on religion included the prohibition of certain religious practices in a certain area of the community and serious discrimination imposed on persons of a certain religious faith. 19 The term nationality includes citizenship, as well as membership in an ethnic or linguistic group, and may overlap with the term race. 20 Common examples of persecution based on the
See 8 CFR 208.4(b)(1), 1208(b)(1). Also see I-589 instructions, available at www.uscis.gov. See Matter of PLP, 21 I&N Dec. 887 (BIA 1997). 12 For comprehensive discussion of persecution, see R. Germain, Asylum Primer 3340 (AILA 2010). 13 For discussion of persecution in the absence of physical harm, see D. Cleveland, H. Sklar, and M. Sternberg, How to Win Asylum In the Absence of Physical Harm, Immigration Practice Pointers, 56164 (AILA 201011 Ed). 14 INS v. Elias-Zacarias, 502 U.S. 478 (1992); Matter of Fuentes, 19 I&N Dec. 658, 662 (BIA 1988). 15 INA 208(b)(1)(B)(i); 8 USC 1158(b)(1)(B)(i) (emphasis added). 16 Matter of JBN and SM, 24 I&N Dec. 208, 2123 (BIA 2007), modified by Ndayshimiye v. Atty Gen. of the United States, 557 F.3d 124 (3d Cir. 2009). 17 Asylum Officer Basic Training Court (AOBTC), Lesson: Asylum Eligibility Part III: Nexus and the Five Protected Characteristics, at 14 (Jan. 23, 2007), available at www.rmscdenver.org/aobtc. 18 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1992), at 68, available at www.unhcr.org/publ/PUB/3d58e13b4.pdf; cited with approval in AOBTC, Lesson: Asylum Eligibility Part III: Nexus and the Five Protected Characteristics, at 15 (Jan. 23, 2007), available at www.rmscdenver.org/aobtc. 19 UNHCR, at 72; see, e.g., Matter of GA, 23 I&N Dec. 366 (BIA 2002) (Armenian Christian); Bucur v. INS, 109 F.3d 399, 405 (7th Cir. 1997) (prohibition of religious practice); Mousa v. Mukasey, 530 F.3d 1025 (9th Cir. 2008) (Chaldean Christian from Iraq); Lhanzom v. Gonzales, 430 F.3d 84748 (7th Cir. 2005) (Tibetan Buddhists in China). 20 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1992), at 74.
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applicants nationality are persecution of groups such as ethnic Albanians in former Yugoslavia, Kurds in Iraq, indigenous populations in Central America, and Palestinians in the West Bank. 21 Membership in Particular Social Group According to UNHCRs Handbook, a particular social group consists of persons of similar background, habits or social status. 22 More recently, the complementing guidelines emphasized that the size of the group is not relevant, and further defined the group as follows: A group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of human rights. 23 For years, the BIA adhered to this definition, following Matter of Acosta, which held that the common characteristic should be one that the members of the group cannot change, or should not be required to change because it is fundamental to identity or conscience. 24 A number of federal circuit courts have endorsed the Acosta approach in reviewing and determining social-group-based asylum cases. 25 However, the BIA has recently imposed additional requirements on applicants for asylum based on a social group membership. In Matter of CA, it found that an important consideration is the social visibility of the members of the particular group. 26 In addition, in Matter of SEG, the Board required that the group must be particular that is, distinct and recognizable in the society.27 The family has also been recognized as a social group. 28 Most recently, in February 2011, the U.S. Court of Appeals for the Fourth Circuit reviewed the BIA decision denying asylum to an El Salvadoran who was threatened by Mara Salvatrucha (MS-13) because his uncle had witnessed his cousins murder by MS-13
See, e.g., Matter of OZ and IZ, 22 I&N Dec. 23 (BIA 1998) (anti-Semitic threats against Jewish population); Al Yatim v. Mukasey, 531 F.3d 584, 588 (8th Cir. 2008) (Palestinian); Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004) (Serbian); Ndayshimiye v. Atty Gen. of the United States, supra, 557 F.3d 124 (3rd Cir. 2009) (imputed nationality). 22 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1992), at 77. 23 UNHCR, Guidelines on International Protection: Membership of a Particular Social Group Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (2002) at 11 (emphasis added), available at www.unhcr.org/publ/PUBL/3d58de2da.pdf. 24 Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). 25 See, e.g., Elien v. Ashcroft, 364 F.3d 392 (1st Cir. 2004); Koudriachova v. Gonzales, 490 F.3d 255 (2d Cir. 2007); Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993); Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003), superseded by statute or other grounds as stated in Chen v. United States, 434 F.3d 144, 151 (2nd Cir. 2006); Lwin v. INS, 144 F.3d 505 (7th Cir. 1998); Safaie v. INS, 25 F.3d 636 (8th Cir. 1994); Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc), vacated on other grounds, 547 U.S. 183 (2006); Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005); Castillo-Arias v. U.S. Atty Gen., 446 F.3d 1190 (11th Cir. 2006). The Fourth and Fifth Circuits have also favorably cited the language without giving an explicit endorsement. See Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 352 53 (5th Cir. 2002). 26 Matter of CA, 23 I&N Dec. 951, 95961 (BIA 2006) (citing to UNHCR guideline as affirming its position that social visibility is important); Matter of AME, 24 I&N Dec. 69 (BIA 2007) (affluent Guatemalans who were victimized by gangs do not constitute particular social group as they lack social visibility.). 27 Matter of SEG, 24 I&N Dec. 579, 58486 (BIA 2007); see also Matter of EAG, 24 I&N Dec. 591 (BIA 2007). For an advanced discussion on the social visibility requirements, please see B. Casper, with R. Germain and I. Greenstein, Living With Matter of SG, AILAs Immigration Practice Pointers, 57073 (AILA 201011 Ed.). 28 See, e.g., Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986) (Perhaps a prototypical example of a particular social group would consist of the immediate members of a certain family, the family being a focus of fundamental affiliational concerns and common interests for most people.); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993) (There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.); Bernal-Rendon v. Gonzales, 419 F.3d 877, 881 (4th Cir. 2005) ([P]etitioners correctly contend that a nuclear family can constitute a social group.); Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997) (Our case law has suggested, with some certainty, that a family constitutes a cognizable, particular social group within the meaning of the law.); Adebisi v. INS, 952 F.2d 910, 912913 n.4 (5th Cir. 1992) (viewing favorably the immigration judges finding that family constitutes a particular social group).
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gang members and he himself had seen the men leaving the scene of the murder. The court held that the relatives of the witnesses who testified against MS-13 could suffer persecution on account of their family ties, and that such a group clearly constitutes a protected social group. 29 It found that the group satisfies this test because Matter of Acosta identifies "kinship ties" as paradigmatically immutable. The BIA has since affirmed that family bonds are innate and unchangeable. 30 The social-groupbased asylum case law has been evolving in recent years; it is considered to be the catch-all protected ground for an asylum seeker when the applicants persecution does not have a nexus to any other enumerated ground. Therefore this is where you can find the most challenging and inspiring asylum cases, where legal practitioners push the envelope to protect people who are deserving of asylum but are otherwise not covered under the traditional protected grounds. 31 REAL ID Act The REAL ID Act, which was enacted on May 1, 2005, applies to asylum, withholding of removal, and CAT applications filed with an immigration judge or USCIS, on or after that date. 32 The positive change made by the Act was the elimination of the 10,000 per year quota on asylee adjustments and the 1,000 per year quota on coercive population control asylum claims. The Act also made other, not so positive, changes. First, an applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was, or will be, at least one central reason for persecution. 33 Second, the Act requires that corroborating evidence must be presented if the immigration judge or USCIS so requests; if such evidence is not presented, the applicant must show that he or she cannot reasonably obtain such evidence. 34 Third, an applicants testimony alone will suffice only if the immigration judge or USCIS believes it is credible, persuasive, and refers to specific facts sufficient to demonstrate the applicants refugee status. Fourth, the credibility standardtotality of circumstancesincludes the applicants demeanor, candor, responsiveness, plausibility, consistency, or any other relevant factor. Inconsistency, inaccuracy, or falsehood can be incidental or minor; it does not have to go to the heart of the applicants claim. 35 Strategies to deal with these changes to the act are discussed in Section III. Importance of Past Persecution Past persecution establishes a legal presumption of future persecution. 36 The presumption can be rebutted with proof by a preponderance of evidence that: (1) there has been a fundamental change in circumstances such that the applicant no longer has a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or nationality; or (2) the applicant could avoid future persecution by relocating to another part of the applicants country and under all circumstances it would be reasonable to expect him to do so. 37 For the purposes of withholding of removal, if the applicant has suffered
Crespin-Valladares v. Holder, No. 09-1423 (4th Cir. Feb. 16, 2011). See In re CA, 23 I&N Dec. 951, 959 (BIA 2006); In re H, 21 I&N Dec. 337, 342 (BIA 1996) (accepting clan membership as a particular social group because it was inextricably linked to family ties); Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986) (family provides "a prototypical example of a particular social group."); see also Jie Lin v. Ashcroft, 377 F.3d 1014, 1028 (9th Cir. 2004); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Ayele v. Holder, 564 F.3d 862, 869 (7th Cir. 2009); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). 31 For comprehensive list of particular social groups and relevant discussion, please see R. Germain, AILAs Asylum Primer, 5057 (AILA 2010 Ed.).
30
29
In re SB, 24 I&N Dec. 42 (BIA 2006) (not to an asylum application filed with an asylum officer prior to this date but subsequently renewed). 33 INA 208(b)(1)(B)(i); Matter of JBN and SM, 24 I&N Dec. 208 (BIA 2007) (preREAL ID Actthe persecution needed to be at least in part on account of a protected ground). 34 INA 208(b)(1)(B)(ii). 35 INA 208(b)(1)(B)(iii); In re JYC, 24 I&N 260 (BIA 2007).
36
37
32
8 CFR 208.13(b)(1), 1208.13(b)(1). 8 CFR 208.13(b)(1)(i), 1208.13(b)(1).

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past persecution in his designated country of removal, the same presumption applies. 38 Similarly, such presumption can be rebutted by a preponderance of evidence that there is a fundamental change in the circumstances or the applicant can avoid future persecution by relocating, if it would be reasonable under all circumstances. 39 Bars to Asylum and Withholding of Removal As stated, asylum is a discretionary form of humanitarian relief. Even if the applicant meets all the statutory requirements, USCIS or the immigration judge can deny asylum as a matter of discretion. 40 To determine whether the favorable exercise of discretion is warranted, USCIS or the immigration judge applies a totality of circumstances test and examines both adverse and positive factors. Negative factors include criminal convictions and convictions for dangerous crimes. Positive factors include general humanitarian considerations and severity of past persecution. 41 If applicant is denied asylum solely on discretion and is subsequently granted withholding of removal, thereby precluding the applicants spouse or minor children from following to join him or her, the denial of asylum must be reconsidered. 42 Asylum is mandatorily barred under the following circumstances: prior asylum denial, 43 one-year deadline or exception, 44 firm resettlement, 45 or safe third country. 46 Withholding of removal is barred if the applicant was involved in Nazi persecution or participated in genocide. 47 The statutory bars apply to both asylum and withholding or removal if: (1) the applicant has a conviction for a particularly serious crime, 48 (2) the applicant has a conviction for an aggravated felony, 49 (3) the applicant committed serious nonpolitical crimes outside the United States prior to coming to the United States, 50 or (4) the applicant is a persecutor of others, 51 a danger to the security of the United States, 52 or a terrorist. 53 U.N. Convention Against Torture (CAT) This relief corresponds to U.S. treaty obligations under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Convention Against Torture). Article 3 of the Convention Against Torture provides: No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture.
8 CFR 208.16(b)(1)(i), 1208.16(b)(1)(i). 8 CFR 208.16(b)(1)(i)(ii), 1208.16(b)(1)(i)(ii). 40 See INA 208(b)(1); 8 CFR 208.14(a)(b), 1208.14(a)(b). See also Matter of Pula, 19 I&N Dec. 467 (BIA 1987) (used totality of circumstances and the action of the applicant to determine whether favorable exercise of discretion is warranted). 41 See Matter of H, 21 I&N Dec. 337 (BIA 1996) (humanitarian asylum based on solely on the basis of past persecution). 42 8 CFR208.13(b)(1)(ii), 1208(b)(1)(iii). Matter of TZ, 24 I&N Dec. 163 (BIA 2007). 43 INA 208(a)(2)(C);
39
38
44
45 46
INA 208(a)(2)(D);
INA 208(a)(2)(A)(vi). INA 208(a)(2)(A). 47 INA 241(b)(3)(B). 48 INA 208(b)(2)(A)(ii); 241(b)(3)(B)(ii). Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982) [(1) the nature of conviction; (2) the circumstances and underlying facts of conviction; (3) the type of sentence imposed; and (4) danger to community]; Matter of YL, 23 I&N Dec. 270 (A.G. 2002) (cocaine trafficking case); In re NAM, 24 I&N Dec. 336 (BIA 2007) (need not be an aggravated felony to be a particularly serious crime). 49 INA 101(a)(43). 50 INA 208(b)(2)(A)(iii); 241(b)(3)(B)(iii). 51 INA 208(b)(2)(A)(i); 241(b)(3)(B)(i). 52 INA 208(b)(2)(A)(iv); 241(b)(3)(B)(iv). 53 INA 208(b)(2)(A)(v); 241(b)(3)(B).
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There are two types of relief under CAT: withholding of removal 54 and CAT deferral. 55 The bars that apply to statutory withholding apply to CAT withholding. In deferral of removal, there is no bar for criminal grounds. 56 The applicant must show an intentional act of severe suffering or physical or mental torture by a government actor or with the governments acquiescence; the infliction should not have arisen out of lawful sanctions. Unlike asylum and withholding of removal, there is no nexus requirement under CAT. Also unlike asylum, which provides protection for individuals who have suffered past persecution, the CAT offers future protection only. 57 However, the burden on the applicant is the same as in withholding, that is, it must be more likely than not (a greater than 50 percent chance) that the applicant would be tortured upon return. Also, as with withholding, the immigration judge, not USCIS, has exclusive jurisdiction to adjudicate the CAT claim. If the immigration judge determines that any bar applies to an applicant for asylum or withholding, the judge must consider deferral under CAT. Although there is no bar to deferral under CAT, it can be more easily terminated than withholding, as Immigration and Customs Enforcement (ICE) can simply file a motion to the immigration court. 58 Moreover, the person who was granted deferral may be held in detention. 59 Matter of JE involves a long-term lawful permanent resident Haitian with a state conviction for sale of cocaine who requested asylum, withholding, and CAT relief, claiming torture by Haitian authorities while indefinitely detained in inhuman conditions in police holding cells as a criminal deportee. The BIA held that such action constitutes lawful sanctions by a foreign government and that substandard prison conditions do not constitute torture. 60 In contrast, in Matter of GA, 61 which involved a long-term lawful permanent resident who was a Christian Iranian of Armenian heritage with a drug trafficking conviction who claimed torture by Iranian authorities, the BIA granted CAT relief, finding that the Iranian government tortures Armenian Christians, that people with narcotics violations face particularly severe treatment, and that the applicant would be perceived as an American spy because of his long-term lawful permanent resident status. Asylum for Children Unaccompanied children are entitled to file for asylum on their own. 62 According to the Trafficking Victims Protection Reauthorization Act of 2008, USCIS has the initial jurisdiction over such asylum applications regardless of whether they are in removal proceedings. 63 In addition, the Office of the Chief Immigration Judge issued a memorandum on policies and procedures for handling child asylum cases in immigration court. 64
8 CFR 208.16, 1208.16. 8 CFR 208.17, 1208.17. 56 See, e.g., Matter of GA, 23 I&N Dec. 366, 368 (BIA 2002) (holding that the applicants criminal convictions in the United States, however serious, are not bar to deferral of removal under CAT). 57 See., e.g., Niang v. Gonzales, 422 F.3d 1187. 1202 (10th Cir. 2005) (past torture is only one factor in the assessment); El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir. 2004) (no CAT relief because most violence against Palestine ended when the constitutional government returned to Kuwaiti). 58 See 8 CFR 208.17(d), 1208.17(d). 59 See 8 CFR 208.17(c), 1208.17(c) and 241.3241.5. 60 Matter of JE , 23 I&N Dec. 291(BIA 2002). 61 Matter of GA, 23 I&N Dec. 366 (BIA 2002). 62 Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044. For more information see USCIS Questions and Answers: USCIS Initiates Procedures for Unaccompanied Children Seeking Asylum (Mar. 25, 2009), available at www.uscis.gov/files/article/tvpra_qa_25mar2009,pdf. See also USCIS Memorandum, J. Langlois, Implementation of Statutory Change Providing USCIS with Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Children (Mar. 25, 2009). 63 Id. 64 EOIR Memorandum, D. Neal, Operating Policies and Procedures Memorandum No. 07-01, Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children (May 22, 2007).
55
54
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PRACTICE POINTERS: ONE-YEAR DEADLINE Two recent studies highlight the severe consequences presented by the one-year deadline for otherwise bona fide refugees seeking protection in the United States. 65 Significant numbers of asylum seekers who would otherwise have a claim of persecution because of a protected characteristic have been denied asylum solely for failing to meet the one-year deadline. Given the significant number of denials resulting from untimely filing, notwithstanding the merits of the individual asylum claim, and the limited judicial review of a determination that an asylum application is time-barred, inquiry into and a strategy for meeting the filing deadline is a critical part of the preparation of any asylum application. The asylum applicant has the burden of establishing that the asylum application was filed within one year after the date of arrival in the United States. An individual must establish that his or her application was filed within one year of the date of arrival in the United States in order to be eligible for asylum. Asylum applications that are not timely filed are barred. 66 The asylum applicant has the burden of proof to establish by clear and convincing evidence that the application was timely filed. 67 There are limited exceptions to the one-year deadline, which are discussed in more detail below. However, the initial inquiry should begin with an examination of how the date of arrival is determined, establishing the date of filing, and the applicants burden of proof. Establishing the Date of Entry Given the bar to asylum for untimely filing, inquiring into the potential asylum clients date of entry, as well as into any proof that the client has of the date of entry, is a critical first step in analyzing any asylum claim. In calculating the one-year deadline for clients who have had multiple entries into the United States, the Asylum Office or immigration court will look at the last arrival into the United States. 68 For example, if the applicant enters the United States on February 2, 2000, leaves the United States on February 25, 2000, and reenters the United States on March 1, 2000, the one-year period begins on March 1, 2000. 69 Although some clients may have clear proof of the date of arrival in the United States S, e.g., a datestamped I-94 card that indicates the date of entry or parole, clients who have entered the United States without inspection and who are not immediately apprehended after entry may have greater difficulty establishing their date of entry. In such cases, it is important to have corroborative evidence regarding the date of entry, such as passports, bus passes, or plane tickets, although testimony alone may be sufficient to meet the standard of proof. 70 Where an applicant does not have direct proof of the date of entry into the United States, or where the applicant is unsure of his exact date of entry, the standard of proof can be met by showing the applicant was outside the United States within one year of filing. To ensure against a referral by the Asylum Office to immigration court, where the proof of date of entry is ambiguous, the safest strategy may be to file the asylum
The Asylum Filing Deadline: Denying Protection to the Persecuted and Undermining Governmental Efficiency, Human Rights First (Sept. 2010), available at www.humanrightsfirst.org/wp-content/uploads/pdf/afd.pdf and Rejecting Refugees: Homeland Securitys Administration of the One-Year Bar to Asylum, P. G. Schrag, A. Schoenholtz, J. Ramji-Nogales and J. P. Dombach, William & Mary Law Review, Vol. 52, 2010. 66 INA 208(a)(B)(1). 67 INA 208(a)(B)(1). 68 8 CFR 208.4(a)(2)(B)(ii), 1208.4(a)(2)(B)(ii).
65
Asylum Officer Basic Training Lesson Plan: One Year Deadline (Lesson Plan) at 4 (Mar. 2001), available at www.asylumlaw.org/docs/united_states/one_year_lesson_March2001.pdf; but see Joaquin-Porras v. Gonzales, 435 F.3d 172,178 (2d Cir. 2006) (concluding that last arrival should not be read to include an asylum applicants return to the United States pursuant to parole after a brief trip abroad).
70
69
Id. at 67.
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application within one year of the date that it can be established that the applicant was last outside the United States. 71 Tekle, from Eritrea, entered the United States without inspection near Brownsville, Texas, on or about May 1, 2010. From Brownsville, he traveled to Chicago to join family members. Tekle has no proof of his entry into the United States on May 1, 2010. Because his travel was arranged by smugglers who held onto his identity and travel documents, he has no documents corroborating his journey from Eritrea through Africa to South America and through Mexico into the United States. He does have a school record showing his enrollment in school in Asmara through December 31, 2009. In order to establish by clear and convincing evidence that his asylum application was filed within one year of last arrival, he may wish to file for asylum before December 31, 2010, within one year from the last date he can show he was outside the country. Alternatively, he will need to try to obtain corroboration regarding his journey to the United States (e.g., through contacting airlines he may have traveled on or hotels where he may have stayed), which may prove difficult, especially if the travel was under a pseudonym, or by obtaining affidavits from family members or others he joined in the United States, confirming his date of arrival. Alternatively, Tekle may wish to present testimony or evidence explaining why documentation regarding his journey to the United States or entry is unavailable, such as expert testimony on smuggling or clandestine crossings into the United States. For asylum applicants in removal proceedings, the date of entry can be established through admission to the allegations on the Notice to Appear. For example, in Zheng v. Mukasey, 552 F.3d. 277 (2d Cir. 2009), the Second Circuit Court of Appeals found that the Notice to Appear signed by a U.S. Border Patrol agent alleging Zheng had arrived in the United States at or near Hidalgo, Texas, on or about December 15, 2004, and to which Zheng had admitted in the allegations, was sufficient to establish that Zheng had met the oneyear deadline, notwithstanding the lack of other documentation regarding his entry. Similarly, the Ninth Circuit, in Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir. 2008) found that the allegation of date of entry in the Notice to Appear to which Hakopian admitted rendered his date of entry an undisputed fact. Finally, applicants should be aware that as a part of the biometrics, background, or name checks, USCIS or ICE will likely conduct a search using the applicants name and stated date of entry to verify or question the veracity of the applicants stated date of entry. The Clear and Convincing Standard The standard of clear and convincing evidence is not conclusive or unequivocal; rather, the proof of filing within the one-year deadline needs to be persuasive enough to create a firm belief in the trier of fact that the applicant filed within one year of arrival. 72 The standard lies somewhere between the preponderance of evidence and beyond a reasonable doubt. In Khunaverdiants v. Mukasey, 548 F.3d 760 (9th Cir. 2008), the Ninth Circuit Court of Appeals found that to meet the standard of proof for the asylum filing deadline, the asylum applicant need not have established the exact departure date from his home country. Even though there were discrepancies in the applicants testimony on cross examination with regard to his departure from the home country, he nevertheless provided credible, unrefuted testimony, in part corroborated by documentary evidence regarding his time in the home country. Under either stated date of departure from the home country, the asylum application would have been considered timely filed. Similarly, in Lin v. Holder, 610 F.3d 1093 (9th Cir. 2010), even though the asylum applicant testified to different arrival dates and locations and produced no supporting documents regarding date of entry, his testimony regarding the length of time he hid in the home country before applying for asylum was credible and did not require him to prove the exact departure date where, under any view of the facts, all of the dates fell within one year of the filing of his asylum application.
71
Id. at 6 (the burden may be met either by clear and convincing evidence of the date of entry into the United States or through establishing by clear and convincing evidence that the applicant was outside the United States during the previous year immediately prior to the date of filing). 72 Id. at 5 (the standard lies somewhere between the preponderance of evidence and beyond a reasonable doubt; it is that degree of proof that will create a firm belief or conviction and where the truth of the facts asserted are highly probable).
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Establishing the Date of Filing In addition to establishing the date of entry, the asylum applicant must also meet the burden with regard to date of filing. The one-year period is calculated from the date of last arrival. 73 The filing date is considered to be the date the application is filed with the immigration court for defensive filings or the date that the application is received by USCIS if the application is affirmative. 74 If the application is not received by USCIS within one year of the date of entry, an applicant can still establish that the asylum application was timely filed if he or she can show that the application was mailed within one year, making it critical to maintain proof of the date of mailing. 75 If the one-year deadline falls on a Saturday, Sunday, or legal holiday, then the period shall run to the next business day. 76 In order to meet the deadline, the Form I-589 application must be properly filed. If the one-year deadline is approaching, it is important to note that the Form I-589 need not be submitted with all of the supporting documents and evidence. To protect the asylum applicant from being pretermitted from applying for asylum, only those documents required for filing need be submitted (e.g., the completed Form I-589, the requisite number of copies, required photos, and identity document). The asylum application may be supplemented with supporting documents prior to the Asylum Office interview or prior to the merits hearing. If it cannot be shown by clear and convincing evidence that the asylum application was filed within one year of the date of entry, then the applicant can still establish eligibility for asylum where he or she can show to the satisfaction of the trier of fact that he or she meets the exception based on extraordinary circumstances related to the failure to file or the exception based on changed circumstances affecting eligibility for asylum. Meeting the extraordinary circumstances exception to the one-year deadline The regulations provide an exception to the one-year deadline requirement for extraordinary circumstances related to the delay in filing. Extraordinary circumstances refer to events or factors directly related to the failure to meet the one-year deadline. 77 To qualify for the extraordinary circumstances exception, the asylum applicant must show that the application was filed within a reasonable period, given the circumstance that the delay in filing was not through the applicants intentional action or inaction. To date, there has only been one precedent BIA decision decided on the issue of what circumstances are considered extraordinary such that they meet the exception, involving an unaccompanied minor who was being held in detention. In Matter of YC, 23 I&N Dec. 286 (BIA 2002), the BIA held that an unaccompanied minor in detention meets the extraordinary circumstances exception for untimely filing where the asylum applicant was a minor throughout the one-year period after arrival in the United States and had been detained after entry for approximately one year. The Board found that filing his asylum application five months after his release from detention was within a reasonable period of time for qualifying for the exception for failure to timely file. The regulations set forth a non-exhaustive list of circumstances that may be considered extraordinary. These circumstances include: serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the one-year period after arrival
8 CFR 208.4(a)(2)(ii), 1208.4(a)(2)(ii); see Minasyan v. Mukasey, 553 F.3d 1224 (9th Cir. 2009) (the plain meaning of the statute provides that an alien seeking asylum must demonstrate by clear and convincing evidence that the application has been filed within one year after the date of the aliens arrival in the United States [Minyasan arrived in the United States] on Apr. 9, 2001. He was therefore required to file an application for asylum within one year after that datethat is, not counting that date. The first day of the one-year filing period was thus Apr. 10, 2001, meaning that the application filed by Minasyan on Apr. 9, 2002the 365th day after Apr. 9, 2001was timely). 74 8 CFR 208.4(a)(2)(ii), 1208.4(a)(2)(ii). 75 8 CFR208.4(a)(2)(ii), 1208.4(a)(2)(ii); but see Nakimbugwe v. Gonzales, 475 F.3d 281 (5th Cir. 2006) (the rule regarding proof of mailing to establish timely filing only applies where the application was never received by the agency). 76 8 CFR 208.4(a)(2)(ii), 1208.4(a)(2)(ii); Jorgji v. Gonzales, 514 F.3d 53 (1st Cir. 2008). 77 8 CFR 208.4(a)(5), 1208.4(a)(5).
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legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the one-year period after arrival ineffective assistance of counsel the applicant maintained temporary protected status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application the application was filed prior to the one-year deadline, but the application was rejected as not properly filed and was refiled within a reasonable period of time the death or serious illness or incapacity of the applicants legal representative or a member of the applicants immediate family. 78 It is important to note that lack of awareness of the one-year deadline is not listed, nor is the hope that the situation in the home country will improve. 79 A number of asylum-seekers may suffer from post-traumatic stress disorder (PTSD) or related symptoms. To demonstrate that medical or mental health issues were related to the delay in filing, it is important to obtain documentary evidence of the medical or mental health issue from a medical professional. An affidavit from the therapist treating the client for PTSD or related symptoms is essential in these cases. However, in order to meet the requirements for the exception, a therapists statement should do more than identify the diagnosis; it should explain how the diagnosis has affected the asylum applicants ability to function and ability to engage in the preparation and submission of the asylum application. For example, if avoidance, a common symptom of PTSD, affects the asylum-seekers ability to recall and share facts and details related to the case or engage in a productive attorney-client relationship, this should be explained by the medical professional. 80 The standard of proof for establishing compliance with the one-year deadline is clear and convincing: thus the applicant need show only to the satisfaction of the trier of fact that he has met the standard of proof for the extraordinary circumstances exception. 81 Meeting the Changed Circumstances Exception to the One-Year Deadline The regulations provide that changed circumstances refer to circumstances materially affecting the applicants eligibility for asylum and set forth a non-exhaustive list of circumstances that may qualify for the exception: changes in the conditions in the applicants country of nationality or last habitual residence changes in the applicants circumstances that materially affect the applicants eligibility for asylum, including changes in U.S. law, and activities the applicant becomes involved in, outside the country of feared persecution, that place the applicant at risk 82 in the case of an alien who had previously been included as a dependent in another aliens pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.
78 79
8 CFR 208.4(a)(5); 1208.4(a)(5). See, e.g., Mutuku v. Holder, (9th Cir. 2010) and Restrepo v. Holder, 610 F.3d 962 (7th Cir. 2010). 80 Submission of affidavits from medical professionals has not always been found sufficient to establish extraordinary circumstances. See, e.g., Toby v. Holder, 618 F.3d 963 (8th Cir. 2010) (IJ found no extraordinary circumstances where asylum applicant presented testimony of counselors that she suffered from post-traumatic stress disorder, which, she argued, interfered with her ability to timely seek asylum based on the traumatic rape she had suffered; asylum applicant found not credible) and Ghouri v. Holder, 618 F.3d 68, 69 (1st Cir. 2010) (The IJ rejected Ghouris claim that depression prevented him from timely filing for asylum, finding the psychiatrists retrospective depression diagnosis speculative). 81 8 CFR 208.4(a)(2)(i)(B), 1208.4(a)(2)(i)(B). 82 See, e.g., Taslimi v. Holder, 590 F.3d 981 (9th Cir. 2010) (religious conversion after entry into the United States as a changed circumstance); Kone v. Holder , 620 F.3d 760 (7th Cir. 2010) (petitioners asserted, four years after entry into the United States, birth of U.S. citizen daughter who might be subject to female genital mutilation if returned to the home country as changed circumstance).
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As with the extraordinary circumstances exception, the applicant who seeks to qualify under the changed circumstances exception must also show that the application was filed within a reasonable period of time given the circumstances. 83 Delayed awareness of the change can be taken into account where determining reasonableness. 84 Within a Reasonable Time For both the extraordinary circumstances exception and the changed conditions exception, the asylum applicant must show that the application was filed within a reasonable period of time, given the circumstances. The BIA has issued one precedent decision with regard to what constitutes a reasonable time. In Matter of TMH and SWC, 25 I&N Dec. 193 (BIA 2010), a husband and wife from China filed for asylum one year after the birth of their second child in the United States, arguing that changed circumstances related to their eligibility for asylum. The BIA rejected the applicants argument that reasonable time means one year from the date of the changed circumstances, citing the supplementary information published in the Federal Register with the publication of the one-year deadline rules. What constitutes a reasonable period of time may depend on the facts of the case, including when the applicant became aware of the changed circumstances and the applicants level of education and sophistication as well as any effects of the persecution suffered. 85 For asylum applications filed after the one-year deadline, where the applicant was previously in some other lawful status, the Asylum Office guidance indicates that more than a six-month delay in filing after expiration of status would generally be considered unreasonable. 86 Jurisdictional Bar to Review the One-Year Deadline Determination As mentioned above, the INA bars review of the one-year deadline determination, including any qualifying exceptions. 87 Circuit courts have uniformly found they lack jurisdiction to review such a determination. However, if the question can be framed as a question of law or as a constitutional issue, the reviewing court may find jurisdiction. 88 PRACTICE POINTERS: HOW TO PREPARE AN ASYLUM APPLICATION IN LIGHT OF THE REAL ID ACT OF 2005 On Account of GroundHeightened Standard INA 208(b)(1)(B)(i)Definition of Refugee To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant. (emphasis added). The definition of refugee set forth in the INA allows for the possibility that several reasons (some related to the protected grounds of the refugee definition, some not) could give rise to persecution that could make a person eligible for asylum or for withholding of removal. In other words, an applicant may show that his or her persecutor had a mixed motive for persecuting him or her. Even though the mixed motive analysis has been preserved from earlier Court of Appeals case law, the original draft of REAL ID required a showing that the applicants protected characteristic is central to the
83 84
8 CFR 208.4(a)(4)(ii). Id. 85 Lesson Plan at 18. Lesson Plan at 19; see also Husyev v. Mukasey, 528 F.3d at 1179 (9th Cir. 2008) (a 364-day period following expiration of nonimmigrant status is not considered a reasonable period). INA 208(a)(3). See, e.g., Ramadan v. Gonzales, 479 F.3d 646, 650 (pursuant to INA 242(a)(2)(D), courts have jurisdiction to review constitutional claims or questions of law that extends to mixed questions of fact and law).
88 87
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persecutors motivation to act against the applicant. The Acts drafters were presumably trying to combat liberal Ninth Circuit cases such as Shoafera v. INS, 228 F.3d 1070, as amended, 2000 U.S. App. LEXIS 31361 (9th Cir. 2000), which held that an applicant for asylum need not show conclusively why persecution occurred in the past, but the applicant simply must produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground. The REAL ID Act toughens up the Shoafera standard by requiring a showing that at least one of the protected grounds was a central reason, not just a reason for the harm. See Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009) (discussing the phrase one central reason, in this section of the REAL ID Act, and stating that its plain meaning indicates that the REAL ID Act places a more onerous burden on the asylum applicant than the at least in part standard the [9th Circuit] previously applied. What Must I Do to Meet the Heightened Standard Imposed by the REAL ID Act? In order to meet this tougher standard, attorneys should make the nexus between the persecutors motive on account of a protected ground and the harm committed or feared extremely clear in the applicants affidavit and oral testimony. If the applicants persecutors made any reference to a protected characteristic before, during, or after an attack or threat, be sure to highlight that fact. Sample Language: I know that the soldiers were beating me because I was a member of X political party, because while they were hitting me, the captain screamed, You followers of Mr. Y [the head of my party], youre all traitors to the state. You will pay for what you have done. OR Right before the group of young people attacked me, I heard them talking quietly among themselves. I heard one young fellow say to the others, See that Yezidi pig? Lets get him. Immediately afterwards, they began hitting and kicking me. Even if the language used by a persecutor is subtle or vague, have your client explain in his affidavit the cultural context in which it was clear to your client that the language was intended to refer to a protected ground. Sample Language: As he was hitting me, the soldier called me a dog. In my country, dog is a term almost exclusively used to refer to religious minorities in a derogatory manner. As soon as I heard the soldier say that, I knew that he was attacking me because I am a religious minority. What if the Connection Between an Attack and the Persecutors Motive Can Only be Shown Through Circumstantial Evidence? In this case, be sure to explain the circumstantial evidence very clearly in the clients affidavit and in your pre-hearing statement. Explain the circumstantial evidence and your theory of the persecutors motives very plainly in your brief. Sample Language in Pre-Hearing Statement: Although Ms. Ds attackers did not make any verbal statements that revealed their motives in abusing her, they gave her several nonverbal cues that made it clear that they were attacking her because she is Jewish. First, as Ms. D describes in her affidavit, her attackers had the appearance of nationalist skinheads; they all wore leather jackets with Nazi swastikas on the arm, leather boots, and had shaved heads or closely cropped hair. Expert witness Dr. S explains in his affidavit that skinheads are very common in Southern Russia, and that young people with the appearance described by Ms. D almost always subscribe to an ultra-nationalist, anti-Semitic ideology. Second, while they were shoving and punching Ms. D, one of the skinheads grabbed Ms. Ds Star of David necklace, ripped it off her neck, and threw it in the gutter. That the skinhead threw the necklace in the gutter is evidence that he did not intend to rob Ms. D of her jewelry; rather, he was displaying hostility toward the Jewish symbol that she wore.
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How Do I Bolster My Clients Case with Only Circumstantial Evidence? Ask your client. The persecutor may have dropped verbal or nonverbal clues about his or her motives that are understandable to your client, given the cultural context, but not to you. Question your client carefully about every single factor that leads him or her to believe that his or her persecution was on account of an enumerated ground. Consult an expert witness on the country conditions of your clients homeland to help you understand the cultural and political context of the attack. Have the expert witness write about such context in his or her expert affidavit. Sample language from an expert witness affidavit includes: Mrs. A describes an incident in which an Uzbek nationalist pushed her off of a bus onto the sidewalk, and no passersby helped her. I find this account to be, sadly, very plausible. As I have mentioned previously, many people would see Mrs. A as a person who had no right to be in Uzbekistan. They would not have cared what happened to her. Moreover, an Uzbek walking by who felt sympathy for her might well be reluctant to help, because he or she would not want to be spotted publicly helping an Armenian. Although the nationalist in the example may not have said anything as he pushed Mrs. A off the bus, the expert provides a context for understanding that the incident is related to her Armenian ethnicity. Documenting Your CaseHeightened Burden of Proof INA 208(b)(1)(B)(ii)Applicants Burden of Proof The testimony of the applicant may be sufficient to sustain the applicants burden [of proof] without corroboration, but only if the applicant satisfies the trier of fact that the applicants testimony is credible, is persuasive, and refers to the specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicants burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence. This provision of the REAL ID Act presents a very different and more difficult burden of proof standard for asylum applicants. See, e.g., Sidhu v INS, 220 F.3d 1085, 1090 (discussing Ladha v. INS, 215 F.3d 889, 900 (9th Cir. 2000), which held that corroboration of credible testimony is unnecessary). See also Aden v. Holder, 589 F.3d 1040, 104344, 2009 WL 4877951, at 23, (9th Cir. 2009) (concluding that Congress abrogated prior precedent that corroboration cannot be required from an applicant who testified credibly when enacting the REAL ID Act 2005). Even where an applicants testimony is deemed credible, he or she may be required to provide additional, corroboratory evidence. Shrestha v. Holder, 590 F.3d 1034, 104748 (9th Cir. 2010). For example, the REAL ID Act changed the standard of when a trier of fact may require corroborating evidence. Rather than requiring corroborative evidence when it is easily available, under the REAL ID Act, it may be required when it is reasonably obtainable. The determination concerning the availability of corroborating evidence may only be reversed if a reasonable trier of fact would be compelled to conclude that such corroborating evidence is unavailable. Id. How Does My Client Meet the Credible, Persuasive, and Specific Standard? An advocate cannot assume that the IJ will find the applicants testimony to be sufficiently credible, persuasive, and specific to stand alone without the need for corroboratory evidence. Nevertheless, attorneys should ensure that their clients testimony does meet the credible, persuasive, and specific standard. This can be accomplished in the following ways: Oral and written testimony. When an IJ sees an extremely detailed and specific written declaration in support of an asylum claim, he may only require a short oral presentation at trial, which can make the hearing much easier for your client. If you think your client is capable of remembering the details from a long, specific affidavit, draft an extremely detailed declaration in support of the asylum claim. A very detailed affidavit bolsters the record and makes the asylum claim more believable. If, however, you sense that your client has a bad memory or will not be a consistent witness at trial, submit a less detailed
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affidavit. Be as specific as your clients capacity will allow. In the clients declaration, where appropriate, refer to peoples names, place names, street names, company names, specific numbers, etc. For example, dont write: The police beat me and threw me in a cell. Instead, write: After I was taken to Central Police Station, located near Revolutionary Square, in the police SUV, three uniformed police officers took me out of the vehicle, into the building, and led me to a small cell. There were no other detainees in the cell. The cell was in a basement, and there was one small window near the ceiling that barely let in any light. When we reached the cell, one officer left, and the other two shoved me into the cell by pushing me in the back and followed me into the cell. They began hitting me with their fists on my head, arms, chest, and stomach. I would approximate that they hit me between 1015 times before I fell to the ground in pain. Once I hit the ground, the officers kicked me in the stomach and back approximately five times. Finally, after about threefive minutes, the officers stopped hitting and kicking me. The taller officer, who had driven the SUV to the police station, spit in my face, called me a kike, and the two officers left the cell. Not only does this latter statement more sufficiently meet the specificity requirement, but it also presents a more believable account of the persecution. Corroborative evidence. In addition to preparing very specific, detailed written and oral testimony, gather and present as much corroborative evidence as possible. Even if you have the worlds greatest witness as a client and you are convinced that the IJ will find your clients testimony to be credible, under REAL ID, you cannot take any chances and must make every effort possible to gather corroboratory evidence, including from the persons country of origin. How Do I Obtain Corroboratory Evidence? As an attorney, you should be very involved in the process of collecting evidence. Do not just give your client a list of documents and expect him or her to come back to you with a full packet of supporting evidence. Interview your client thoroughly to find out which relatives, friends, neighbors, and acquaintances might be available to write affidavits. Have your client bring in any and all papers that he or she has pertaining to the issues that you identify as being relevant to the case, even if your client does not think that the papers are relevant. For example, you may want to use a document that seems only slightly relevant to the case to corroborate a clients prior employment, address, family relationship or other matter relating to the claim. Have a brainstorming session with your client in which you bounce ideas back and forth about types of evidence to be gathered. The following are ideas for corroboratory evidence. (Please note that this list is by no means exhaustive. Be creative!) Letters from family members, friends, former neighbors, religious leaders, teachers, political party members, clan leaders, etc. People are often surprisingly willing to help. Do not be afraid to ask your clients contacts for a letter in support of the asylum claim. When you obtain a letter from a person who is abroad, ask that person to send a copy of his or her photo id to submit with the letter so that the IJ knows that the author of the letter is a real person. Corroborate, to the extent possible, important biographical information with birth certificates, political party membership cards, and documents proving religion, such as baptismal records, etc. Also corroborate, to the extent possible, important aspects of your clients account of persecution with mundane documents such as deeds, leases, pictures of a former home, corporate documents, photos from a funeral or other family event, etc. All of these documents add up to present an overall picture of someone who is telling the truth about his or her background. Medical examination. Many metropolitan areas have nonprofit organizations that provide free or lowcost medical examinations to asylum-seekers. A detailed, comprehensive write-up by a medical professional can be an invaluable piece of corroboration in an asylum case. Psychological examination from a nonprofit organization that provides support in immigration cases or a private psychologist. Like the medical examinations, there are many nonprofit organizations
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that provide free or low-cost psychological examinations to asylum-seekers. A detailed, comprehensive write-up from a psychologist, psychiatrist, or social worker can help document that your client is suffering psychologically from what he or she experienced in the country of origin. You can also use a psychological evaluation to explain to the IJ in advance of the hearing any issues the client may have with testifying, e.g., low IQ, severe trauma, memory loss, etc. Affidavit from expert witness on country conditions. You can find referrals to expert witnesses on www.asylumlaw.org. First speak with other practitioners to get recommendations as to which expert witnesses are reliable. Find information that corroborates actual events and details in your clients account. In addition to extensive country conditions information that you can (and should) obtain on the Internet, such as reports from the Department of State, Amnesty International, and Human Rights Watch, you can frequently find information that corroborates actual events and details from your clients account. For example, if your client describes a specific mass demonstration in which he participated, or a church bombing in which he was a victim, the event may have been covered by the BBC or another news agency. Newspaper articles from the applicants country of origin. Your client will frequently be able to help you obtain newspaper and magazine articles from his or her country of origin that relate to his or her case. Ask your client specifically to help you gather them, particularly when they are in a language that you do not speak. Ask your client for his or her ideas. For case law guidance, see Matter of SMJ, 21 I&N Dec. 722 (BIA 1997) (applicant required to provide easily obtainable documentary evidence, such as evidence of his or her place of birth, media accounts of large demonstrations, evidence of publicly held office, and documentation of medical treatment.) What if I am Unable to Obtain a Key Piece of Evidence? If you are unable to obtain a key piece of evidence (e.g., important medical records or an affidavit from the clients spouse), mention why the applicant is unable to obtain the document in his or her affidavit. For example, in a section at the end of the declaration where the applicant addresses what he or she has discovered about current country conditions in his or her homeland since reaching the United States, he or she can mention his or her attempts to obtain the evidence. Sample Language: I tried to obtain a letter from my mother to submit with my asylum application. She is currently living in Mogadishu. On July 18, 2010, I spoke with my mother on the phone and asked her for a letter. She told me that she would like to help me, but she is too afraid to leave her apartment to mail a letter, and there is no one who can help her. Your client could attach a phone record to his or her affidavit as evidence of the phone call. What if the IJ Requests a Specific Piece of Evidence? If the IJ wants a specific piece of evidence, even if you think that it is unreasonable, do not argue. Try to obtain the evidence and document your attempts to do so carefully. Keep copies of e-mails that you send and send any letters via certified mail with return receipt so that you can later submit an attorney declaration with exhibits documenting your extensive efforts to obtain the documents that the judge requested. Also, look up the country from which the IJ would like the information in the Foreign Affairs Manual (FAM) Documents section. The FAM will tell you when documents are unavailable from a particular country. If the IJ is asking for a document that is simply not available, submit a copy of the FAM with your attorney declaration as well. Your Clients CredibilityHeightened Standard INA 208(b)(1)(B)(iii)Credibility Determination Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicants or witnesss account, the consistency between the applicants or witnesss
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written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicants claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal. (emphasis added) This language represents a reversal of many cases upon which we had come to rely before the REAL ID Act was enacted. See Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (discussing how credibility findings no longer need to go to the heart of the applicants claim, and that although an IJ may consider trivial inconsistencies, he or she must ultimately make a credibility determination in light of the totality of the circumstances.). See also Scott Rempell, Credibility Assessments and the REAL ID Acts Amendments to Immigration Law, 44 Tex. Intl L.J. 185, 206 (2008). This provision strengthens the IJs power to make a negative credibility finding based on seemingly minor inconsistencies in the record and allows him to speculate on the inherent plausibility of an applicants account. However, all is not lost. In making a credibility determination, the IJ must consider the totality of the circumstances and all relevant factors. In evaluating inconsistencies between an applicants statements, the IJ must consider the circumstances under which the statements were made. See Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010) (pointing out that while the REAL ID Acts totality of the circumstances standard is permissive as to the breadth of factors that may form the basis of an adverse credibility determination, the totality of the circumstances approach also imposes the requirement that an IJ not cherry pick solely facts favoring an adverse credibility determination while ignoring facts that undermine that result.) How Do I Help Ensure that the IJ Will Make a Positive Credibility Finding? Review all of the record evidence very carefully before making your submission. If your clients story differs from a State Department report or other country conditions report in the record, find out why and provide an explanation. There could be a valid explanation. Sample Language: Although the X prison doesnt usually house women, the day I was arrested, Y Prison for Women was overcrowded and I was taken to X prison. I know this, because I overheard the police in the front of the police van discussing it while I was in the back. Clarify any misunderstanding between you and your client. Alternatively, if you see an inconsistency between what your client has told you and his or her prior statement or a country conditions report, there may be misunderstanding between you and your client. Make sure to clarify any such misunderstandings and go over the clients declaration with him or her extremely carefully before submitting it to the court. Use your country conditions expert. Ask your country conditions expert to help you understand any perceived discrepancies between your clients account and country reports. Ensure that any documents your client provides to you are authentic. Often, otherwise trustworthy clients with legitimate asylum claims feel pressure to bolster their claims or receive bad advice from other immigrants and present you with falsified or altered documents. Always tell every asylum applicant that their original documents will be taken by the government and sent to the FBI document lab for testing. Tell the applicant that this is routine and to expect that it will happen. Then tell the person to think about the original documents he or she is offering carefully and that there will be no shame, and that you as the attorney will not judge him or her, if he or she tells you not to submit a particular document. When one of the authors gave this speech to a client and asked who would be reached if someone dialed the phone number at the top of a medical report, the client said, probably a train station. Needless to say, the attorney did not submit the medical report. Practice your clients testimony with him or her extensively before the individual calendar hearing. Have your client read over his or her declaration multiple times before the hearing (practice, practice,
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practice). Have multiple practice sessions. Have a colleague, support staff, or friend come in to play the trial attorneys role when practicing cross-examination. Your client may be so comfortable with you that he or she does not take practice cross-examination seriously if you do it. Try to repair any unexpected inconsistencies on re-direct. If, after your clients testimony, you realize that there were inconsistencies with his or her application or declaration, try to repair the damage on redirect. If there are still inconsistencies in the record, especially if they are minor, argue in your closing that the clients testimony was credible when the totality of the circumstances is considered.
THE FIVE HARSHEST ASYLUM POLICIES

by Regina Germain *
This Legal Brief addresses the five harshest policies impacting asylum seekers today, and offers proposals for changing the law to protect this most vulnerable population and to restore dignity to the process and the individuals who navigate it. REPEAL THE ONE-YEAR FILING DEADLINE In 1996, Congress passed a law requiring that all asylum seekers apply for asylum within one year of their entry into the United States. Congress provided exceptions for extraordinary or exceptional circumstances. The rationale behind adding this provisiona provision that INS itself did not wantwas that individuals apprehended within the United States five or ten years after their last entry would seek to delay their deportation by requesting asylum. In other words, Congress intended this deadline to be a mechanism for weeding out fraudulent claims. Instead, as recent studies have shown, 1 this deadline is preventing bona fide refugees, those who can meet the higher burden of proof for withholding of removal, from reuniting with their children and spouses (often still in their home country and at risk) and from becoming full members of our society because, without asylum, they are ineligible to become lawful permanent residents and ultimately citizens of this great land that has offered them protection. The asylum filing deadline also has a more subtle, insidious impact. It often results in affirmative asylum claimants (those who present themselves to authorities) enduring prolonged delays when their cases are rejected based on the one-year deadline and then referred to the overburdened immigration court system, where their cases languish for one or more years until immigration judges can hear them. 2 This limbo that separates spouses and parents from children has a profound psychological effect on applicants and their families. Asylum officers and immigration judges already have made tools at their disposal to weed out fraudulent asylum claims. An asylum applicant who is found not credible or fails to reasonably corroborate his or her claim can be denied asylum, even without the one-year deadline. In fact, the failure to file within a timely manner can be a ground, in and of itself, for finding an individual not credible. Asylum officers and immigration judges are burdened with overloaded dockets and a complex law to apply in asylum cases. Adding the one-year deadline to the task of adjudicating a case, particularly when the officer or judge must not only look at whether an extraordinary exception is met, but also whether the time it took the applicant to file is reasonable, adds several steps to an already lengthy adjudication process.
Legal Brief republished with permission from Legal Briefs on Immigration Reform from 25 of the Top Legal Minds in the Country, page 21423 (Robinson Omnimedia Publishing & Studios 2011). This Legal Brief is dedicated to the unsung heroes who fight tirelessly everyday for the protection of asylum-seekers and refugees. It is your work that calls attention to the need for reform. Regina Germain teaches asylum law and an asylum law practicum at the University of Denver Sturm College of Law. She is author of AILAs Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure, now in its sixth edition. She served as the senior legal counselor in the Washington office of the U.N. High Commission for Refugees office, and also worked for the Florence Immigrant and Refugee Rights Project in Florence, AZ and the Central American Refugee Center in Houston. She became interested in asylum law after handling her first case when she was an associate at the Law Firm of Reed Smith in Pittsburgh, PA. 1 See, e.g., Human Rights First, The Asylum Filing Deadline: Denying Protection to the Persecuted and Undermining Governmental Efficiency (Sept. 30, 2010), available at http://www.humanrightsfirst.org/pdf/afd.pdf. 2 See Shrag, et al., Rejecting Refugees: Homeland Securitys Administration of the One-Year Bar to Asylum, 52 William and Mary Law Review (2010) (noting that one-third of the affirmative asylum applications for the period studied were rejected based on the one-year deadline).
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The Unintended Consequence Bona fide refugees, those who meet a higher burden of proof for withholding of removal, are relegated to a second-class status in the U.S., denied the ability to reunite with their spouse and minor children, and prevented from becoming legal permanent residents or citizens. Scholars who have conducted an extensive study of the application of this bar have also concluded that the cost of applying the one-year deadline far outweighs its benefit and have called for its repeal. 3 PROVIDE ASYLUM SEEKERS WITH WORK AUTHORIZATION In 1995, as part of an asylum reform initiative by INS, asylum seekers were no longer eligible for employment authorization upon filing a non-frivolous asylum application. 4 Beginning in 1995 and continuing up to today, all asylum seekers are required to wait 150 days from the date they filed for asylum, until they can apply for work authorization. The Department of Homeland Security has 30 days to issue the document, but often is unable to issue it in the regulatory time frame. If applicants are denied asylum by an immigration judge prior to 180 days from the date of filing the asylum application, the applicants are ineligible for work authorization throughout the entire appeals process, which could last several years. They are also deemed ineligible even when a federal court reverses a ruling by the Board of Immigration Appeals as erroneous. Asylum applicants, who are of limited financial means, have no right to an appointed counsel, no right to welfare or medical benefits, and no right to work, not surprisingly fall prey to unscrupulous employers or, in worst case scenarios, are exploited by human traffickers as sex workers or indentured servants. Many, who cannot afford to pay a lawyer, are also victimized by notarios and interpreters who engage in the unauthorized practice of law. These much-touted U.S. asylum reform provisions were adopted by South Africa in 1998. The South African law similarly prohibited asylum seekers from engaging in employment for 180 days. The law was challenged on immigration reform in South Africa by a Zimbabwean asylum seeker and her disabled son. In 2003, the South African Supreme Court struck down the provision that prohibited asylum seekers from working and held that it violated the asylum seekers dignity. The South African Supreme Court reasoned: But where employment is the only reasonable means for the persons support other considerations arise Thus a person who exercises his or her right to apply for asylum, but who is destitute, will have no alternative but to turn to crime, or to begging, or to foraging. I do not suggest that in such circumstances the State has an obligation to provide employmentfor that is not what is in issue in this appealbut only that the deprivation of the freedom to work assumes a different dimension when it threatens positively to degrade rather than merely to inhibit the realisation of the potential for self-fulfilment [sic]. Minister of Home Affairs v. Watchenuka, South African Supreme Court, Case No. 10/2003 (2003) (emphasis added). The United States is perhaps the only Western industrialized country that prohibits employment and provides no social safety net for asylum seekers to provide for their basic necessities. Repeal the asylum reform of 1995 that requires asylum seekers to wait 180 days or more to receive work authorization and that sometimes results in asylum seekers being ineligible for work authorization throughout the asylum process. The Unintended Consequence Not surprisingly, most asylum seekers work despite the lack of employment authorization. They work for employers who pay them in cash, who pay them less than minimum wage, and who sometimes dont pay them at all. They are often exploitedpaid little or paid solely in room and board. They perform strenuous and sometimes dangerous work that they do for many hours each day. The United States loses more than just the tax dollars and contributions to the Social Security system.
Id. See, e.g., INS News Release, Asylum Reform Five Years Later (Feb. 1, 2000), available at http://www.uscis.gov/files/ pressrelease/Asylum.pdf.
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The U.S. loses its place among the countries of the world that respect the rights of asylum seekers and refugees and that treat each individual as a person deserving dignity. Lastly, this system of determining who is and who is not eligible for employment authorization in the asylum process is often fraught with error. A recent study has found that many individuals who apply after waiting the appropriate time are erroneously denied. 5 ENSURE ACCESS TO LEGAL ASSISTANCE The U.S. asylum process is notorious for its complexity. As a lawyer who began practicing in this field in the late1980s, this author has experienced first-hand the many changes to asylum law that have made the process much more complex, including changes under the REAL ID Act addressed below. Not surprisingly, a recent study of the U.S. asylum system which tracked a decline in asylum denials attributed the decline to the fact that more asylum seekers were represented by lawyers than they had been in the past. 6 The report also noted that an individual was much more likely to have a positive result if the individual was represented by counsel. 7 While this trend is a positive one, it is one in danger of reversing as the U.S. expands its detention capacity and detains more and more asylum seekers. Detained asylum seekers are much more likely to be unrepresented, as will be addressed below. Additionally, the complexity of the system that requires greater and greater amounts of evidence and costs is on a trajectory to make asylum out of reach for all but the lucky few who can afford the costs or are lucky enough to find a pro bono law firm able to absorb them. One case in particular exemplifies the direction asylum law is heading. That is the case of a detained, mentally disabled boy from Guinea who was successful in his asylum case only after pursuing his case for six yearsthree of those years in detentionand after three separate asylum hearings with mounds of evidence and expert testimony. 8 This case, by far, is not the lengthiest. In the case of Rodi Alvarado, a woman who fled domestic abuse in her home country and received no protection from authorities there, litigation occurred over a period of 14 years before she gained asylum. 9 As part of immigration reform, Congress should take down the barriers to asylum which make the process more complex. Congress should: eliminate the one-year deadline; remove the REAL-ID Acts unnecessary hurdles; and limit detention of asylum seekers, who have much more limited access to counsel. In addition, Congress should allow asylum seekers to work legally, which will increase the number of individuals who are able to pay for an attorney. For those in detention or unable to work, Congress should expand access to the Legal Orientation Program (LOP), a highly successful Justice Department initiative, 10 and where applicable and in the interests of justice, permit appointed counsel.
See Penn States Center for Immigrants Rights and the American Immigration Law Foundation, Up Against the Asylum Clock: Fixing the Broken Employment Authorization Asylum Clock (Feb. 2010), available at http://law.psu.edu/_file/ Immigrants/Asylum_Clock_Paper.pdf. 6 TRAC Immigration, Asylum Denial Rate Reaches All Time Low: FY2010 Results, a Twenty-Five Year Perspective (2010), available at http://trac.syr.edu/immigration/reports/240/. 7 Id. (noting that having legal representation appears to have a major impact on outcome. In FY 2010, for example, only 11 percent of those without legal representation were granted asylum; with legal representation the odds rose to 54 percent). See also Schoenholtz and Jacobs, The State of Asylum Representation: Ideas for Change, 16 Geo. Immigr. L. J. 739 (2002). 8 A. Merjian, A Guinean Refugees Odyssey: In Re Jarno, the Biggest Asylum Case in U.S. History and What it Tells Us about Our Broken System, 23 Geo. Immigr. L. J. 649 (Summer 2009). 9 See Center for Gender and Refugee Studies, Documents and Information on Rodi Alvarados Claim for Asylum in the U.S., available at http://cgrs.uchastings.edu/campaigns/alvarado.php. 10 See, e.g., Speech of Attorney General Eric Holder (Mar. 19, 2010) touting the success of the LOP program, available at http://www.justice.gov/ag/speeches/2010/agspeech-100319.html.
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The Unintended Consequence A Kafkaesque asylum process burdens not only the bona fide refugees who attempt to navigate it at their peril, but it also burdens American taxpayers who must pay for the added adjudication time for numerous barriers to asylum added over time, such as the one-year deadline and READ ID Act procedures. UN-DO THE REAL ID ACTS DAMAGE The REALID Act changed many asylum provisions. Only two will be addressed here. First, the REAL ID Act required asylum seekers to demonstrate that one of the protected grounds (race, religion, nationality, membership in a particular social group or political opinion) was at least one central reason for the persecution they suffered or for fear in the future. Asylum attorneys, since the Refugee Act of 1980 was enacted, struggled with this so-called nexus requirement that requires applicants to show that the harm they suffered or feared is on account of one of five grounds. It is always a difficult task because it requires proving the motivation of the persecutor or, more simply, what is in the mind of the persecutor at the time of the act of persecution. Even one of the most conservative justices on the U.S. Supreme Court, Antonin Scalia, noted in the EliasZacarias case that the Supreme Court would not impose the unreasonable burden on an asylum seeker to prove the exact motivation of his or her persecutors, but would only require the applicant to produce some evidence, direct or circumstantial. 11 This standard changed with the enactment of the REAL ID Act of 2005. The REAL ID Act changed the law, as follows: To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant. INA 208(b)(1)(B)(i); 8 USC 1158(b)(1)(B)(i) (emphasis added). If asylum denials are down, this may not seem like an undue burden. The toll it takes on asylum attorneys and federal agencies, in resources and court time, is as yet untallied. Anecdotally, the result of this provision has been to require more documentary evidence and expert testimony to not only show that the persecutor was motivated by a protected ground, but to meet the much higher burden of showing that a protected ground was at least one central reason for the harm. A second provision of the REAL ID Act of concern is the provision requiring corroboration or an explanation even when the applicant has provided credible testimony in support of a claim. 12 It states: Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence. INA 208(b)(1)(B)(ii); 8 USC 1158(b)(1)(B)(ii). Veteran asylum attorneys and even pro bono attorneys handling their first case will agree that such cases are complicated, with events occurring over years, if not decades, that are relevant to the applicants claims. There is no end to corroborating evidence that could be produced. One fact in a case could have numerous pieces of evidence that corroborate it in one or more ways. To avoid a finding that the applicant has not met the burden of proof in a case, attorneys provide an overwhelming amount of evidence that the fact at issue has occurred through various pieces of documentary evidence and expert reports. If a fact is not reasonable to corroborate, because it is unavailable or out of fear for the safety of the applicants remaining family members, a number of documents are submitted to corroborate that it is not available. Congress should repeal these provisions of the REAL ID Act which make the asylum process more difficult, costly and time-consuming for asylum applicants, adjudicators and the pro bono or non-profit attorneys handling these cases.
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INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (May 11, 2005).
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The Unintended Consequence The asylum process is on a trajectory to soon be out of reach to most asylum applicants. It is a procedure that now requires evidence that is practically out of reach, but for the efforts of pro bono attorneys and firms willing to absorb the cost of proving the central reason for the harm and corroborating otherwise credible testimony. The burden is also born by the adjudicators of these cases that must review the mounds of evidence submitted in support of the claim. DETENTION OF ASYLUM SEEKERS The issue of detention of asylum seekers is decades old. Detention of this vulnerable population increases as the number of detention beds has increased over the decades, and so has the cost. One recent report estimates that over the past six years, the U.S. has spent $300 million on the detention of asylum seekers. 13 That report also contains a grim, but predictable, statistic that the number of asylum seekers released on parole dropped from 41.3 percent in 2004 to 4.2 percent in 2007. The drop in the number of asylum seekers released from detention coincided with the opening of a number of mega-detention facilities highlighted in the report. The increase in detention ignores the success of less-costly alternatives to detention, which cost the U.S. $10 to $14 per person per day, versus $95 per day to detain an asylum seeker. 14 Participants in the ISAP program, for example, have a 91 percent compliance rate. 15 The psychological and emotional toll on asylum seekers of being detained in prison-like conditions, wearing prison garb and having limited access to attorneys, friends and family members is profound. 16 Congress should mandate that asylum seekers who establish a credible fear of persecution be released from detention so long as they are not a risk to national security or a danger to the community. The Unintended Consequence Detaining asylum seekers is costing the American public millions of dollars in economic hardship and a rising national debt. It is a luxury we can no longer afford, especially when the costs of alternatives are so much less expensive and their success rates so high. Factoring in the emotional and psychological harm that detention inflicts on this vulnerable population, it is time, now more than ever, to release asylum seekers.
Human Rights First, U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison (June 2009), available at http://www.humanrightsfirst.org/pdf/090429-RP-hrf-asylum-detention-report.pdf. 14 Response of Julie Myers to Senator Edward Kennedys Questions on the Nomination to be Assistant Secretary of ICE (Oct. 3, 2007), as reported in the Human Rights First report. 15 Supra n.13. 16 D. Kerwin, Looking for Asylum, Suffering in Detention, 28 Hum. Rts. 3, 4 (2001).
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SUMMARIES OF KEY RELEVANT CASES ON SOCIAL GROUP, GENDER, AND RELATED ISSUES
by Karen Musalo and Shuting Chen *
PARTICULAR SOCIAL GROUP Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) In this seminal case, the Board of Immigration Appeals (BIA) set forth the key criteria for social group definition. It ruled that persecution on account of membership in a particular social group entails persecution on the basis of a fundamental or immutable characteristic shared by all members of the social group. Such a characteristic should be one that the group either cannot change or should not be required to change because it is so fundamental to the identities of the group members. In this case, the BIA found that membership in a cooperative of taxi drivers who refused to participate in work stoppages does not entail an immutable characteristic because members can either quit their jobs as taxi drivers or join in work stoppages. Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986) The applicants argued that they belonged to a particular social group of young, urban, working class males of military age who had never served in the military or otherwise expressed support for the government of El Salvador. The court declined to follow Acostas immutable or fundamental criteria. It ruled that particular social group implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. The court focused on the voluntary associational relationship among the groups members and the characteristics common and fundamental to all members of the group. Here, the court rejected the articulated class as being overbroad and varied. Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) The applicant sought asylum based on his membership in the particular social group of gay Mexican men with female sexual identities. The court granted asylum, and adopted Acostas immutable or fundamental test as an alternative test to its voluntary association approach. The court reasoned in part that members of some social groups, such as family units, do not associate by choice. Thus, the court held that a particular social group is one united by a voluntary association or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it. Matter of CA, 23 I&N Dec. 951 (BIA 2006) The BIA held that asylum seekers do not have to show (1) a voluntary associational relationship or (2) cohesiveness or homogeneity among group members to establish persecution based on a particular social group. Most important, the BIA effectively ruled that the fundamental and immutable criteria of Acosta are not all that is required, adding that visibility and recognizability of the group are important factors to determine the existence of a particular social group. Here, the BIA found that noncriminal informants did not constitute a sufficiently visible social group.
Karen Musalo directs the Center for Gender & Refugee Studies and the Refugee and Human Rights Clinic at U.C. Hastings. She has been at the forefront in the development of gender asylum, as lead attorney in Matter of Kasinga, Matter of RA, and Matter of LR, and as co-counsel in the Ninth Circuit en banc decision, Abebe v. Gonzales. She was the first attorney to partner with psychologists in her representation of traumatized asylum seekers, and she edited the first handbook on cross-cultural issues and the impact of culture on credibility. She has received numerous advocacy awards for her pioneering work, including AILAs Human Rights Award. Shuting (Ting) Chen is an immigration attorney at the Law Office of Robert B. Jobe. She graduated from the University of Oklahoma and Harvard Law School. After graduation, she clerked with the Center for Gender and Refugee Studies and worked for Fulbright & Jaworski, LLP, as a litigation attorney before joining Jobe Law. Currently, her work involves primarily asylum, adjustment of status, and deportation issues brought before federal courts.
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Matter of SEG, 24 I&N Dec. 579 (BIA 2008) To show persecution based on a particular social group, asylum seekers must articulate a social group that has particular and well-defined boundaries and a recognized level of social visibility. To meet the standard for particularity, the social group should be sufficiently distinct that it could be recognized by the society in question as a discrete class of persons. To meet the standard for social visibility, the social group should be recognizable and discrete and perceived by society as a group. The BIA ruled that the proposed group in this caseyoung Salvadorans who refuse to join criminal gangs for personal, religious, or moral reasons did not meet the particularity or visibility requirements. Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009) In this case, the court refused to adopt the visibility requirement when determining whether a proposed group fits the particular social group requirement in asylum law. In particular, the court held that defectors of the Mungiki Tribe of Kenya satisfied the particular social group requirement. In so holding, the court noted that the BIA had been inconsistent on the issue of whether a particular social group must be socially visible. EARLY ATTEMPTS TO ARTICULATE GENDER-DEFINED SOCIAL GROUPS Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) The petitioner filed for asylum arguing that she was a member of the social group comprising Iranian women who refuse to conform to the governments gender-specific laws and social norms. The Third Circuit accepted that this articulation may satisfy the BIAs definition of particular social group, noting that a womans willingness to suffer the consequences of noncompliance with laws shows that her beliefs are so fundamental that they should not be changed. Ultimately, however, the court denied her asylum on the basis that the record did not show an opposition to the laws that rose to the level requirednamely, willingness to suffer the consequences for noncompliance. Safaie v. INS, 25 F.3d 636 (8th Cir. 1994) The Eighth Circuit held that general assertions that a governments policies are repressive or that an applicant disagrees with the governments policies are insufficient to demonstrate that the applicant belonged to a particular social group. Here, the court found that although some women who disagree so profoundly with government policies may qualify for asylum as part of a particular social group, the applicant in this case did not show that her beliefs were so fundamental that she belonged to such a social group. Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) The BIA held that young women of the Tchamba-Kunsuntu Tribe who have not undergone female genital cutting as practiced by that tribe, and who oppose the practice, constituted a valid social group. In so holding, the BIA found that the characteristics of being a young woman and a member of the Tchamba-Kunsuntu Tribe are immutable, while the characteristic of having intact genitalia should not be changed because it is fundamental to an individuals identity. Yadegar Sargis v. INS, 297 F.3d 596 (7th Cir. 2002) The applicant in this case applied for asylum on the basis that she was part of a particular social group of Christian women who opposed wearing the Islamic garb and that, as a result, she would suffer persecution if returned to Iran. The Seventh Circuit held that the applicant adequately articulated a particular social group. Further, the court found that the applicant fell within this particular social group. PERDOMO AND GENDER VIOLENCE/DOMESTIC VIOLENCE Matter of RA, 22 I&N Dec. 906 (BIA 1999) (vacated A.G. 2001) The BIA found that the social group of Guatemalan women intimately involved with male companions who practice domination through violence was not a cognizable social group. Determination of particular social group involves the consideration of a number of factors, including how members of the group are perceived by the potential persecutor, by the asylum applicant, and by other members of the society. It is not sufficient to merely show that a social group has a shared characteristic that is immutable and fundamental. In
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2004, the U.S. Department of Homeland Security (DHS) filed a brief stating that the applicant qualified for asylum on the basis of being a member of the group of married Guatemalan women who cannot leave the relationship. The applicant was granted asylum by an immigration judge on this basis in December 2010. Matter of L.R. (unreported, copy of decision on file with authors) Ms. L.R., a woman who suffered years of battering at the hands of her common-law spouse, was initially denied asylum by an immigration judge. While her case was on appeal to the BIA, the DHS filed a brief stating that victims of domestic violence could qualify for asylum as members of a particular social group. Specifically, two alternate social groups were articulated: (1) Mexican women in domestic relationships who are unable to leave; and (2) Mexican women who are viewed as property by virtue of their positions within a domestic relationship. The brief also outlined three elements that must be shown to succeed on an asylum claim based on domestic violence: (1) the society and legal norms tolerate and accept violence against women; (2) the government is unable or unwilling to protect; and (3) there is no place within the home country to which the woman could move in order to escape her persecutor. Counsel for LR filed a legal memorandum based on the DHS brief, and asylum was granted. Although the DHS brief is nonbinding, it is significant because it articulates a new agency position and provides a legal framework for asylum officers and DHS attorneys. Perdomo v Holder, 611 F.3d 662 (9th Cir. 2010) In this case, the court held that a group that represents a large portion of a population may still qualify as a particular social group if members of the group share a voluntary relationship or an innate characteristic. It rejected the BIA holding that the social group all women in Guatemala is necessarily too broad and sweeping to constitute a particular social group and noted that particular social group is an amorphous term. FORCED ABORTION Matter of Chang, 20 I&N Dec. 38 (BIA 1989) The BIA held that Chinas one-child policy was not facially persecutive because it was not motivated by one of the five grounds, but was intended to effectuate population control goals. Subsequently, Congress enacted Section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), legislating a political opinion nexus in cases involving forcible abortion or sterilization or other harm as a result of resistance to these policies. In re XPT, 21 I&N Dec. 634 (BIA 1996) The BIA overturned Matter of Chang and held that, pursuant to Section 601 of IIRAIRA, forcible sterilization is a valid basis for the grant of asylum and withholding of removal to China. The applicant in this case was granted asylum. Matter of CYZ, 21 I&N Dec. 915 (BIA 1997) The BIA found that an act of persecution against one spouse based on a protected ground is also an act of persecution against the other spouse. Thus, it held that an applicant has established past persecution and may qualify for asylum where his wife was forced to undergo sterilization. In re YTL, 23 I&N Dec. 601 (BIA 2003) The BIA held that, although the applicant had been forcibly sterilized and experienced no persecution since the sterilization, he still qualified for asylum. It found that the forced sterilization does not constitute a change in circumstances but represents continuing persecution. Matter of JS, 24 I&N Dec. 529 (A.G. 2008) The attorney general expressly overruled CYZ and found that the spouse of an individual who has undergone forced sterilization is not per se entitled to asylum pursuant to Section 601 of IIRAIRA. Spouses of sterilized individuals, however, may still qualify for asylum if they demonstrate well-founded fear of persecution based on a protected ground.
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FORCED MARRIAGE Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006), vacated, Keisler v. Hong Yin Gao, 557 U.S. 801 (2007) The court found that an articulated group can constitute a particular social group even if the shared trait among group members is a common one (e.g., gender) as long as the members also share another characteristic that is both identifiable and immutable. In this case, the court held that there is a valid social group for women who have been sold into marriage (whether or not that marriage has yet taken place) and who live in a part of China where forced marriages are considered valid and enforceable. This decision was subsequently vacated on a petition for certiorari to the U.S. Supreme Court. Ngengwe v. Mukasey, 543 F.3d 1029 (8th Cir. 2008) In this case, the applicant argued the existence of two valid social groups: (1) widowed Cameroonian female member of the Bemileke tribe, in the Southern region that belongs to a family or has in-laws from a different tribe and region, the Bikom tribe in the Northwest province, who have falsely accused her of causing her husbands death; and (2) female Cameroonian widows. The Eighth Circuit agreed with the BIA that the first of these groups is too narrow, and that it is not viewed by society as a particular social group. However, Cameroonian widows is an appropriate social group because, under Acosta, both gender and shared past experiences (e.g., losing ones husband to death) are examples of immutable characteristics. Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009) The court found that the applicants family branch was an appropriate social group. In addition, the court found valid a social group of Yemeni who oppose the discriminatory Yemeni custom that prohibits mixed class marriages. In doing so, the court stated that the active opposition of the members of this social group distinguishes them from an impermissibly broad category of young or westernized persons in Yemen. The court also found that this social group is readily identifiable by society. Qu v Holder, 618 F.3d 602 (6th Cir. 2010) The court held valid a particular social group composed of women in China who have been subjected to forced marriage and involuntary servitude. The court read Acosta to mean that a social group, no matter how populous, may be valid as long as its members share an immutable or fundamental characteristic. In this case, the common, immutable characteristic of the group is being a woman who has been abducted by a man trying to force her into marriage in an area where forced marriages are recognized. FEMICIDE Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010) In this case, the applicant feared persecution as a member of the social group of Guatemalan women between the ages of fourteen and forty, arguing that there is a high incidence of murder among members of this group. Although the applicant did not claim past persecution, she expressed fear of future persecution and feared that she would be further targeted as a returnee from the United States and a member of the Pentecostal Church. Although the BIA rejected Guatemalan women between the ages of fourteen and forty as overbroad and internally diverse, the Ninth Circuit remanded the case for further proceedings, stating that the BIA failed to determine whether members of this social group shared a voluntary relationship or an innate characteristic. FEMALE GENITAL CUTTING Fear of Future Female Genital Cutting Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) The BIA held that female genital cutting (FGC) can be the basis of a claim for persecution. It found that the applicant, as a member of the social group consisting of young women of the Tchamba-Kunsuntu Tribe who have not undergone FGC, has a well-founded fear of persecution if returned to Togo.
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Cases Involving Past FGC Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) The court held that FGC can form the basis of the claim of persecution. The court also recognized that girls or women of a particular clan or nationality can make up a valid social group because gender is an innate characteristic fundamental to a persons identity. Finally, the court found that FGC occurs on account of gender, rather than opposition to the practice, and that there may be forms of persecutionother than FGC associated with being a member of the articulated social group. Matter of AT (three reported decisions) 24 I&N Dec. 296 (BIA 2007) The BIA held that, because the applicant had previously undergone FGC, the procedure constituted a fundamental change in circumstances, and she could not be persecuted again through FGC. Further, the BIA found that FGC does not qualify as continuing persecution, although there may be a discretionary grant of asylum based on the severity of the procedure. 24 I&N Dec. 617 (A.G. 2008) The Attorney General vacated the BIAs 2007 decision in Matter of AT and remanded the case for reconsideration on the basis that FGC is not necessarily a one-time harm. Rather, it can be repeatedly performed on the same woman. Thus, the fact that the applicant had been subjected to FGC once was insufficient to rebut the presumption of future persecution formed by a showing of past persecution. 25 I&N Dec. 4 (BIA 2009) The BIA remanded the case to immigration court for further factfinding. Although DHS requested that the applicant show on remand why her past female genital mutilation (FGM) rises to the level of persecution, the BIA found that the applicants previously presented evidence that she was subjected to a severe form of FGMalbeit at a young agewas sufficient to show persecution. The BIA did, however, ask that the applicant meet her burden of showing that her past persecution occurred on account of membership in a particular social group. Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008) The court found that the BIA erred in failing to shift the burden of proof to the government after the applicants demonstrated past persecution. The court held that the BIA may not assume that, because the applicants had already undergone FGC, they would not be subjected to future persecution. In so holding, the court noted that a victim of FGC may experience the reopening and shutting of her vaginal opening through intercourse, child birth, etc. It also reasoned that there may be other harms associated with being a member of the proposed social group; even if FGC can never again be performed on the applicants, they may be subjected to other forms of persecution. Matter of SAK and HAH, 24 I&N Dec. 464 (BIA 2008) The BIA granted the applicantsboth victims of FGChumanitarian asylum, declining to address the issue of whether any well-founded fear of persecution had been rebutted. In doing so, the BIA recognized that FGC is an atrocious form of persecution that results in continuing physical pain and discomfort. CLAIMS INVOLVING PARENTS AND CHILDREN WHO FEAR FGC Abay v. Gonzales, 368 F.3d 634 (6th Cir. 2004) The applicants in this case were a mother and daughter who sought asylum on the basis that: (1) the daughter had an objectively reasonable fear of being subjected to FGC; and (2) the mother is eligible for asylum based upon the physical harm inflicted on her daughter. The court remanded the case to the BIA for reconsideration, holding that a parent faced with the clear risk of physical torture to her child may be eligible for asylum. It reasoned that the daughter will likely be subjected to FGC because, inter alia, FGC is prevalent in Ethiopia, the applicants home country; the mother had herself been subjected to FGC; and the government of Ethiopia is unable or unwilling to prevent FGC.
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Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007) In this case, the applicant sought withholding of removal based on the following theories: (1) she would suffer psychological harm if she and her daughter were returned to her home country of Senegal, where her daughter would undergo FGC; and (2) she could assert a valid derivative claim based on the persecution that her daughter would face if they are returned to Senegal. The court rejected both arguments, reasoning that: (1) persecution must be based on injury or threat of injury to ones person or freedom, not to the person or freedom of others; and (2) the INA does not provide for a derivative withholding of removal claim. The court in its opinion distinguished and rejected Abay, noting that Niangs daughterunlike her counterpart in Abayis a U.S. citizen, and thus would not in any case be returned to Senegal and suffer FGC. The court also called the holding in Abay an unwarranted expansion of the statutory definition of persecution. Matter of AK, 24 I&N Dec. 275 (BIA 2007) The BIA rejected the applicants argument that he is entitled to asylum and withholding of removal based on the fact that his U.S. citizen children would likely be subjected to FGC if he is returned to Senegal. The Board distinguished Abay, stating that FGC is nearly universal in Ethiopia, the home country of the applicants in Abay, while it is common in only certain areas of Senegal. Furthermore, the daughters of the applicant in AK are U.S. citizens and thus would not be forcibly removed to Senegal. Finally, the BIA found that the applicant must establish risk of persecution to himself, rather than to third persons.
GENDER-BASED PARTICULAR SOCIAL GROUP CLAIMS

by Deborah E. Anker
Over the past 15 years, the United States has joined (and even led) other states that are parties to the 1 2 Refugee Convention in the incorporation of gender into the interpretation of the refugee definition. Genderbased asylum law recognizes forms of harm unique to or disproportionately affecting women (e.g., rape) as embraced within the term persecution, and reasons for persecution that are gender-specific as embraced within protected grounds (e.g., opposition to gender discriminatory laws as expressions of cognizable feminist 3 political opinions). Gender-specific claims may fall analytically within different grounds, including membership in a particular social group (PSG). PSG claims encompass those in which the applicants gender is the defining, or one of the defining, fundamental characteristics giving rise to her past or future fear 4 of persecution. In the landmark decision, Matter of Acosta, the Board of Immigration Appeals (BIA or Board) provided an immutability framework for analyzing the PSG ground, and specifically listed sex as an innate, defining characteristic for PSG purposes: We interpret the phrase persecution on account of membership in a particular social group to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. . . . Whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is 5 fundamental to their individual identities or consciences. Legacy INS affirmed this inclusion of gender as a defining characteristic for PSG claims in the historic 6 7 8 U.S. Gender Asylum Guidelines, which (along with its decision in Matter of DV and Matter of Kasinga ) set the stage for the development of gender asylum law in the United States. Following the Canadian example, the United States played a leadership role internationally, with other states parties subsequently developing similar guidelines to those of Canada and the United States, and in several instances, adopting and 9 advancing key principles into their jurisprudence.
This article is adapted from D. E. Anker, Law of Asylum in the United States 2011 Edition, Ch. 5 (Thomson Reuters). Chapter 5 of this book contains a more detailed treatment regarding gender-based particular social group claims and the grounds generally. Deborah E. Anker is clinical professor of law and director, Harvard Law School, Immigration and Refugee Clinical Program. She gives special thanks to Susham Modi for his help with editing and organizing this article. 1 Convention relating to the Status of Refugees, opened for signature July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137, and the Protocol relating to the Status of Refugees, opened for signature Jan. 31, 1976, 19 U.N.T.S. 6223, 606 U.N.T.S. 267 [together hereinafter Convention or Refugee Convention]. 2 D. Anker, Refugee Law, Gender, and the Human Rights Paradigm, 15 Harv. Hum. Rts. J. 133 (2002). 3 D. Anker, Law of Asylum in the United States, Chs. 4 & 5 (Thomson Reuters); 4 19 I&N Dec. 211 (BIA 1985), overruled in part on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). 5 Id. at 233 (emphasis added). 6 P. Coven, INS Office of International Affairs, Considerations for Asylum Officers Adjudicating Asylum Claims from Women (Asylum Gender Guidelines), Memorandum to INS Asylum Officers, Coordinators (Washington, D.C., May 26, 1995), available at http://cgrs.uchastings.edu/documents/legal/guidelines_us.pdf [hereinafter U.S. Gender Asylum Guidelines]. 7 Matter of DV, 21 I&N Dec. 77 (BIA 1993). 8 21 I&N Dec. 357 (BIA 1996). 9 Id. at 141. Canada was the first country to issue guidelines addressing gender-based persecution in 1993. Immigration & Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution (Mar. 9, 1993); see also Immigration & Refugee Board of Canada,
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The Ninth Circuit in Mohammed v. Gonzales called gender a prototypical immutable characteristic. The House of Lords, in a decision following Acosta, noted that the principle that women can constitute a PSG is neither novel nor heterodox, but rather is simply a logical application of the seminal reasoning in 11 12 Acosta. The gender-immutable characteristic formulation is well established under U.S. law. This formulation was endorsed by the Third Circuit in Fatin as far back as 1993. The Third Circuits analysis was 13 reinforced in the 1995 U.S. Gender Asylum Guidelines, and several federal courts of appeal continue to 14 endorse the BIAs immutability analysis in gender cases. Many other states parties to the Refugee 15 Convention recognize that women can constitute a PSG. Gender serves as a ground for differential treatment in societies around the world. As the U.N. High Commissioner for Refugees (UNHCR) Gender Guidelines state, sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable 16 characteristics, and who are frequently treated differently than men. USCIS similarly comments that, [w]omen hold a significantly different position in many societies than men ... Women may suffer harm 17 solely because of their gender. In some cases, because of underlying fears that such a gender-defined group would be too large or too 19 administrative authorities and courts have defined gender-specific PSGs in internally diverse, inappropriately complex ways, in terms of the persecution suffered or feared, conflating the definition of PSG 20 with other requirements of the refugee definition. Some adjudicators and courts have been reluctant to define PSGs in terms of gender per se because of fear that too many persons may access protection, commonly known as the fear of floodgates. Such concern is not realistic, nor is fear of floodgates a principled
Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update (Feb. 2003). 10 Mohammed v. Gonzales, 400 F.3d 785, 797 (9th Cir. 2005). 11 Islam v. Secretary of State for the Home Department and Regina v. Immigration Appeal Tribunal, Ex Parte Shah, 2 All E.R. 545 (1999). 12 See Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993). The Ninth Circuit in Perdomo emphasized that both the U.S. Gender Asylum Guidelines and the United Nations High Commissioner for Refugees (UNHCR) have recognized gender itself as defining a particular social group. 2010 WL 2721524, at *3 & n.5 (noting that the Third Circuit, Australia, Canada and the United Kingdom have all recognized gender as the basis for a particular social group). See P. Coven, INS Office of International Affairs, Considerations for Asylum Officers Adjudicating Asylum Claims from Women (Asylum Gender Guidelines), Memorandum to INS Asylum Officers, Coordinators (Washington, DC, May 26, 1995), available at http://cgrs.uchastings.edu/documents/legal/guidelines_us.pdf. 14 See, e.g., Hassan v. Gonzales, 484 F.3d 513, 518 (8th Cir. 2007); Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005); Mohammed v. Gonzales, 400 F.3d 785, 797 (9th Cir. 2005). 15 See, e.g., Ex Parte Shah, 2 All E.R. 546; Min. for Immigration and Multicultural Affairs v. Khawar, (2002) 76 A.L.R.J. 667, 35 (Austl.) (Women in any society are a distinct and recognizable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments). 16 U.N. High Commissioner for Refugees, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees 30 (HCR/GIP/02/01) (May 7, 2002) [Hereinafter 2002 Gender-Related Persecution Guidelines]. 17 Asylum Officer Basic Training Course, Female Asylum Applications and Gender-Related Claims at 67 (Mar. 12, 2009), [hereinafter AOBTC, Gender], available at www.uscis.gov/USCIS/Humanitarian/Refugees%20&%20Asylum/Asylum/AO BTC%20Lesson%20Plans/Female-Asylum-Applicants-Gender-Related-Claims-31aug10.pdf. 18 See, e.g., Wejetunga v. Gonzales, 175 Fed. Appx. 829, 830 (9th Cir. 2006). See also Safaie v. INS, 25 F.3d 636, 639 (8th Cir. 1994). 19 See, e.g., Sharif v. INS, 87 F.3d 932, 936 (7th Cir. 1996). See also Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991), overruled in relevant part by Gao v. Gonzales, 440 F.3d 62, 69 (2d Cir. 2006), cert. granted, judgment vacated on other grounds, 128 S. Ct. 345 (2007). 20 See, e.g., Rreshpja v. Gonzales, 420 F.3d 551, 555 (6th Cir. 2005); Gomez v. INS, 947 F.2d at 66364, overruled in relevant part by Gao v. Gonzales, 440 F.3d 62, 70 (2d Cir. 2006) (finding a particular social group of women who have been sold into marriage, vacated on other grounds, Keisler v. Gao, 552 U.S. 801 (2007).
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or legal argument. Moreover, neither PSG nor any ground performs the function of the entire refugee definition. PSG is only one elementit is not the vehicle for expressing an entire theory of eligibilityand legitimate concerns about particularizing or individualizing a claim appropriately should be addressed through other definitional criteria. As the Tenth Circuit emphasized in Niang, There may be understandable concern in using gender as a group-defining characteristic. One may be reluctant to permit, for example, half a nations residents to obtain asylum on the ground that women are persecuted there. But the focus with respect to such claims should be not on whether either gender constitutes a social group (which both certainly do) but on whether the members of that group are sufficiently likely to be persecuted that one could say that they are persecuted on account of their 22 membership. Recent developmentsthe rise of the social visibility and particularity criteria (problematic though they are)underscore the importance of using gender per se as the defining characteristic of a PSG. In some cases, gender may be combined with another basic Acosta immutable characteristic, such as race, nationality, 24 or tribal membership, to formulate the relevant PSG. Some types of gendered PSG claims are discussed below, including those based on female genital mutilation (FGM), spousal and intimate partner violence, forced marriage and widowhood, trafficking, and discriminatory laws and practices. FEMALE GENITAL MUTILATION (FGM) CLAIMS FGM is a traditional practice that involves removing parts of the female genital organs and, in some cases, 25 stitching the two sides of the vulva together, usually without anesthesia or sterilized instruments. FGM is generally understood as form of harm which is imposed, at least in significant part, on a woman because of her gender. In its 1996 Kasinga decision, the Board granted asylum to a woman from Togo based on her membership in a particular social group of young women of the Tchamba-Kunsuntu Tribe who have not had 26 FGM, as practiced by that tribe, and who oppose the practice. Since this decision, several courts have 27 criticized the Boards inclusion of opposition to FGM in the Kasinga PSG construction. While the PSG formulation in Kasinga included other elements in addition to gender, the Boards explanation of the cultural purpose of FGMto overcome sexual characteristics of young women of the tribe who have not been, and 28 do not wish to be, subjected to FGMrecognizes gender as an essential element. Applying Acostas framework, the Board found that the claimants qualities were not subject to change since the characteristic of having intact genitalia is one that is so fundamental to the individual identity of a young woman that she 29 should not be required to change it.
See generally Michelle Foster, International Refugee Law And Socio-Economic Rights: Refuge From Deprivation 33233 (2007). See also D. Anker, 15 Harv. Hum. Rts. J. at 152. (citing AOBTC, Gender at 23). 22 Niang v. Gonzales, 422 F.3d 1187, 1200 (10th Cir. 2005); see also Ex Parte Shah, 2 All E.R. 545 (1999). 23 For a more detailed discussion of the social visibility and particularity requirements, see Chapter 5 of D.E. Anker, Law of Asylum in the United States, 2011 Edition (Thomson Reuter); see also R. Germain, AILAs Asylum Primer: A Practical Guide to U.S. Law and Procedure 2.4.10 (AILA 6th Ed. 2010). 24 See Asylum Officer Basic Training Course, Asylum Eligibility Part III: Nexus and the Five Protected Characteristics 25 (2009) at 41 [hereinafter AOBTC, Nexus], available at www.uscis.gov/USCIS/Humanitarian/Refugees%20&%20Asylum/ Asylum/AOBTC%20Lesson%20Plans/Nexus-the-Five-Protected-Characteristics-31aug10.pdf. See AOBTC, Gender at 14 (describing three types of FGM.) Matter of Kasinga, 21 I&N Dec. 357, 358 (BIA 1996). 27 See, e.g., Mohammed v. Gonzales, 400 F.3d 785, 797 n.16 (9th Cir. 2005); Niang v. Gonzales, 422 F.3d 1187, 1200 (10th Cir. 2005). USCIS maintains, however, that opposition is highly relevant to the analysis of whether FGM would be persecution to the applicant. AOBTC, Nexus at 23. In FGM cases, USCIS generally supports the formulation of females [of the applicants tribe or nationality] who have not yet undergone FGM as practiced in their culture. Id. at 25. 28 21 I&N Dec. at 367. 29 Kasinga, 21 I&N Dec. at 366.
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Since Kasinga, several federal court decisions involving FGM-based PSGs have recognized gender or gender combined with another classic Acosta immutable characteristic (such as race, nationality, or tribal 30 affiliation) as defining a PSG. For example, in Mohammed v. Gonzales, the Ninth Circuit defined the group 31 as young girls in the Benadiri clan or Somalian females. The court concluded, [t]he recognition that girls or women of a particular clan or nationality (or even in some circumstances females in general) may 32 constitute a social group is simply a logical application of our law. Past FGM Claims As noted, claims based on fear of future FGM generally may be formulated under the PSG ground. Complexities in U.S. jurisprudence have arisen in cases where an applicant bases her claim on past experience of FGM. The Board in 2007 suggested that past FGM is non-repeatable harm and therefore an applicant who has experienced FGM generally cannot establish eligibility based on a presumption of a well33 founded fear of future harmthe same harm of FGM, although in some cases, applicants reasonably fear 34 re-mutilation. However, where gender itselfrather than the experience of FGMforms the basis of the PSG, the presumption of future persecution may apply, since the applicant may face other harms related to her status as a woman in her society. As the Second Circuit in Bah suggestedand as the Attorney General 35 and the Board in its 2009 decision hinted in AT defining the PSG in terms of gender (or gender combined with nationality or tribal membership) is acceptable, and indeed may provide a more coherent approach in cases in which the applicant has experienced FGM in the past, including as a child. Notably, PSG claims have also been raised by parents (especially women who have been subjected to the 36 practice in the past) who fear that their daughters will be subjected to FGM; the Board has held that an applicant cannot maintain a claim based exclusively on a fear that his or her daughter would be subject to 37 FGM.
See, e.g., Bah v. Mukasey, 529 F.3d 99, 112 (2d Cir. 2008). Hassan v. Gonzales, 484 F.3d 513, 581 (8th Cir. 2007); Agbor v. Gonzales, 487 F.3d 499, 502 (7th Cir. 2007); Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005); Mohammed v. Gonzales, 400 F.3d 785, 797 (9th Cir. 2005); Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir. 2004); Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir. 2004); and Abankwah v. INS, 185 F.3d 18, 21, 2326 (2d Cir. 1999). 31 Mohammed v. Gonzales, 400 F.3d at 797. While FGM has been widely recognized as persecution, Mohammed found that FGM was continuing persecution with the result that an applicant who had been subjected to FGM could be able to show a well-founded fear of persecution. See id. at 799. 32 Mohammed, 400 F.3d at 797; see also Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005) where the Tenth Circuit overturned a BIA denial of an FGM claim, noting that, [a]pplying the Acosta definition of social group, the female members of a tribe would be a social group. Both gender and tribal membership are immutable characteristics. Indeed, Acosta itself identified sex and kinship ties as characteristics that can define a social group.; Bah v. Mukasey, 529 F.3d 99, 112 (2d Cir. 2008); and Hassan v. Gonzales, 484 F.3d 513, 581 (8th Cir. 2007). 33 See Matter of AT, 24 I&N Dec. 296 (BIA 2007). 34 See Matter of AT, 24 I&N Dec. 617, 621 (A.G. 2008) ([F]emale genital mutilation is indeed capable of repetition) (citing Bah v. Mukasey, 529 F.3d 99, 103 (2d Cir. 2008); Bah v. Gonzales, 462 F.3d 637, 644 n.3 (6th Cir. 2006) (Gibbons, C.J., concurring); and Tunis v. Gonzales, 447 F.3d 547, 550 (7th Cir. 2006). Mohammed v. Gonzales, 400 F.3d 785, 80001 (9th Cir. 2005). 35 See Matter of AT, 24 I&N Dec. 617, 622 (A.G. 2008); See also Matter of AT 25 I&N Dec. 4, 810) (BIA 2009). 36 See Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir. 2004). See also M. A. Conroy, Refugees Themselves: The Asylum Case for Parents of Children at Risk of Female Genital Mutilation, 22 Harv. Hum. Rts. J. 109 (2009). 37 Matter of AK, 24 I&N Dec. 275 (BIA 2007); See also AOBTC, Gender at 24.
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SPOUSAL OR INTIMATE PARTNER VIOLENCE AND FORCED MARRIAGE CLAIMS Spousal or Intimate Partner Violence Claims Violence against women in the home is the most common, and in past U.S. jurisprudence was the most 39 challenging, context for articulation of a gender-defined particular social group. On December 15, 2009, after almost a decade of litigation and advocacy, the asylum claim of Rodi Alvarado, a Guatemalan woman 40 fleeing severe violence by her husband, was finally granted. The Boards original 1999 precedent decision 41 in Rodi Alvarados asylum case (Matter of RA ) had been a lightning rod, complicating the development of gender particular social group jurisprudence, and claims based on domestic violence, especially. In the original 1999 decision, the Board had opined that the applicants husbands abuse and violence against her was not motivated by gender; the decision, however, never directly addressed the question of 42 whether gender itself could define a PSG, but focused principally on the question of nexus. In 2001, the 43 attorney general vacated the Boards decision without issuing a clarifying decision or regulations. While the case remained pending with the Board for the next 8 years, Board and immigration judge jurisprudence was confused and results were mixed, with some immigration judges granting asylum in domestic violence cases. Indeed, the Board itself, in SA (published within a year of the original RA decision), granted the claim of 44 a young Moroccan woman severely abused by her father. The Board decided SA on the basis of religion, 45 but also reasoned (citing the U.S. Gender Asylum Guidelines) that the fathers strict and fundamentalist religious beliefs were informed by discriminatory notions regarding the freedom, autonomy, and human 46 dignity of women. As noted, a great deal of the confusion in this area ended (or should have ended) with the 2009 grant of asylum to Rodi Alvarado, which marks a significant step in the development of U.S. law in this area. There is solid U.S. authority that gender is a central reason for spousal violence, and that gender, certainly at least in part, can define a PSG. In fact, during the protracted RA litigation, in a 2004 briefing to the
The INA describes crimes of domestic violence to include offenses against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs. INA 237(a)(2)(E)(I). 39 See Audrey Macklin, A Comparative Analysis of the Canadian, U.S. and Australian Directives on Gender Persecution and Refugee Status, in Doreen Marie Indra, Engendering Forced Migration: Theory and Practice 299 (1999). 40 Matter of RA, 22 I&N Dec. 906 (BIA 1999). Attorney General Janet Reno vacated the decision in 2001 and instructed the BIA to await the publication of regulations that were proposed in 2000 in response to the 1999 RA decision. RA, 22 I&N 906 (A.G. 2001). In 2005, Attorney General Ashcroft certified the case to himself, but remanded it to the Board to await the publication of the final rule. 23 I&N Dec. 694 (A.G. 2005). These regulations reinforced that gender could form the basis for a particular social group, and provided principles for the analysis of domestic violence claims. Fed. Reg. 76588 (proposed Dec. 7, 2000)) In Sept. 2008, Attorney General Mukasey remanded Matter of RA to the Board, noting that a final rule had not been published and that the Board is free to exercise its own discretion and issue a precedent decision establishing a uniform standard nationwide. Matter of RA, 24 I&N Dec. 629, 631 (A.G. 2008). In May 2009, on joint motion from DHS and RA s counsel, the Board remanded the case for a new immigration judge hearing and in Dec. 2009, the immigration judge granted asylum.
41 22 I&N Dec. 906 (BIA 1999), vacated and remanded, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008). 42 Matter of RA, 22 I&N Dec. 906, 919 (BIA 1999). 43 See K. Musalo, Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action?, 14 Va. J. Soc. Poly & L. 119, 126 n.27 (2007) (describing problematic and often erroneous reliance on the vacated Matter of RA decision by immigration judges). 44 Matter of SA, 22 I&N Dec. 1328, 1336 (BIA 2000). 45 P. Coven, INS Office of International Affairs, Considerations for Asylum Officers Adjudicating Asylum Claims From Women (Asylum Gender Guidelines), Memorandum to INS Asylum Officers, Coordinators (Washington, D.C., May 26, 1995), available at http://cgrs.uchastings.edu/documents/legal/guidelines_us.pdf. 46 Id. 38
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attorney general, DHS criticized the Boards original 1999 decision in RA and recognized the centrality of gender in defining the PSG and the spousal reasons for inflicting harm: The social group in this case is best defined in light of the evidence that Alvarados husband believes that a woman should occupy a subordinate position within the marital or intimate relationship, that Alvarado must remain in this subordinate position in the relationship, that abuse of women within such a 47 relationship can therefore be tolerated, and that social expectations in Guatemala reinforce this view. USCIS now trains its asylum officers that, [v]iolence against mothers, sisters and daughters, like other forms of violence against women, is often related to the historically more powerful position of men in the family and in society, the perceived inferiority of women and unequal status granted by laws and societal 48 norms. As noted, decision-makers seem to understand that domestic violence is inextricably linked to gender and many domestic violence claims can and should be analyzed under the PSG ground, with gender per se as the 49 defining characteristic. Courts on occasion also have framed domestic violence claims in terms of political 50 opinion, which can provide an alternative or additional ground. Decisions in domestic violence cases also have implicated other grounds, such as religion. Forced Marriage Claims Forced marriage of women occurs in places throughout the world; USCIS recognizes that the practice 51 stems from a variety of factors, including and predominantly, gender discrimination. USCIS also notes that forced marriage (in addition to being a recognized human rights violation in and of itself) provides a context in which other forms of harm may be inflicted with impunity on women because of their gendered 52 vulnerability, i.e., their status as women. [Forced marriage] provides an arena ... in which sexual abuse, 53 sexual exploitation, domestic violence [among other harms] may occur unnoticed. U.S. courts have recognized forced marriage PSG claims. In Gao v. Gonzales, the court found the applicant eligible for asylum where she had been sold into marriage by her family to a man who was bad54 tempered, sometimes violent, and who threatened her when she tried to break the engagement. In Ngengwe v. Mukasey, the applicant fled a proposed forced marriage to her deceased husbands brother, a demand that she pay back an unaffordable bride price, threats to her life, threats to take her children away, and physical
47 DHS Brief in RA at 2627 (Feb. 19, 2004), available at http://cgrs.uchastings.edu/documents/legal/dhs_brief_ra.pdf. See also DHSs Supplemental Brief, at 14 (Apr. 13, 2009), submitted in Matter of LR, available at http://cgrs.uchastings.edu/pdfs/Redacted%20DHS%20brief%20on%20PSG.pdf. 48 AOBTC, Gender at 16. 49 See Audrey Macklin, A Comparative Analysis of the Canadian, US and Australian Directives on Gender Persecution and Refugee Status, in Doreen Marie Indra, Engendering Forced Migration: Theory and Practice 299 (1999); Audrey Macklin, Cross-Border Shopping for Ideas: A Critical Review of United States, Canadian, and Australian Approaches to GenderRelated Asylum Claims, 13 Geo. Immigr. L.J. 25 (1998); Anita Singh, Note: Domestic Violence and U.S. Asylum Law: Eliminating the Cultural Hook for Claims Involving Gender-Related Persecution, 76 N.Y.U. L. Rev. 1562, 156566 (2001; Deborah E. Anker, Refugee Status and Violence Against Women in the Domestic Sphere: The Non-State Actor Question, 15 Geo. Immigr. L.J. 391 (Spring 2001); Deborah Anker, Membership in a Particular Social Group: Developments in U.S. Law, 1566 PLI/Corp 195, 203 (2006); see also Allison W. Reimann, Comment: Hope for the Future? The Asylum Claims of Women Fleeing Sexual Violence in Guatemala, 157 U. PA. L. REV. 1199 (2009).
See, e.g, Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987), overruled in part on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1998 (en banc)). 51 AOBTC, Gender at 15. 52 Id. at 15. 53 Id.; cf. Ngengwe v. Mukasey, 543 F.3d 1029 (8th Cir. 2008) (where the applicant alleged a series of abusesbeatings, confiscation of property, threatened taking of her childrenthat resulted from her refusal to marry or pay back a bride price). 54 Gao had been sold into marriage by her family to a man who was bad-tempered and sometimes violent, and who threatened her when she tried to break the engagement and said that he would have her arrested if she refused to marry him. Gao v. Gonzales, 440 F.3d 62, 64 (2d Cir. 2006), vacated on other grounds, 552 U.S. 801 (2007).
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abuse. The Ngengwe court defined the particular social group in terms of the two Acosta characteristics of 56 past experience, i.e., widowhood and gender. USCIS describes how in some cultures, women and girls may be subjected to female genital mutilation prior to the forced marriage. 57 In Matter of Kasinga, forced marriage was a key contextual element; the applicant fled FGM, which was to be imposed on her after a proposed forced marriage to an older man. As noted, in Kasinga, gender defined the particular social group, unfortunately in combination with other (nonAcosta) factors, which has led to some confusion. 58 A womans attempt to refuse forced marriage may result in abusive and/or harmful treatment since the 59 forced marriage itself is a serious harm (lifelong, involuntary marriage); subjection to forced marriage 60 can be defined in terms of a gender-defined PSG. Although, as noted, some courts have recognized genderPSGs in forced marriage cases, decision-makers have engaged in confused analyses, defining PSGs circularly and inclusive of non-Acosta factors. For example, in Gao v. Gonzales, the Second Circuit recognized a particular social group based on women who have been sold into marriage (whether or not that marriage has yet taken place) and who live in a part of China where forced marriages are considered valid and enforceable, and found that the applicant had demonstrated a nexus between her particular social group and 61 the persecution feared, lifelong, involuntary marriage. Although presenting a convoluted PSG 62 formulation, Gao is noteworthy as the first major decision recognizing forced marriage as the basis for a 63 gender-defined PSG, and for its rethinking of the Second Circuits apparent anomalous rejection of genderdefined PSGs and the Acosta test. In (the now vacated) decision of Matter of AT, the Board questioned whether young female members of the Bambara tribe who oppose arranged marriage were a particular social group, arguing that it could not see how reluctant acceptance of family tradition over personal preference could be the basis of a claim for 64 withholding of removal. The Boards comments are dicta and difficult to reconcile with the facts of the case. As USCIS notes, forced marriages differ fundamentally from arranged marriages. Arranged marriages are an important tradition in many cultures and are often entered into willingly, even in situations where the girl might not have reached 18 years of age. The key question in determining whether a forced marriage might constitute persecution is whether the victim experienced or would 65 experience the marriage, or events surrounding the marriage, as serious harm.
Ngengwe v. Mukasey, 543 F.3d 1029, 103132 (8th Cir. 2008). The court remanded the question of whether these harms were sufficiently serious to be embraced within persecution. 56 Id. at 1034. 57 AOBTC, Gender, at 15. 58 21 I&N Dec. 357 (1996). 59 Gao, 440 F.3d at 70. 60 Ngengwe defined the group as female Cameroonian widows. Ngengwe v. Mukasey, 543 F.3d 1029, 1031 (8th Cir. 2008). 61 Gao v. Gonzales, 440 F.3d 62, 7071 (2d Cir. 2006). 62 Gao was remanded by the Supreme Court so that the Board could consider the proposed PSG in the first instance. Keisler v. Gao, 552 U.S. 801 (2007) (citing Gonzales v. Thomas, 547 U.S. 183 (2006) (clarifying the court of appeals obligation to remand issues that had not been considered by the Board)). 63 See, e.g. Gomez v. INS, 947 F.2d 660 (2d Cir. 1991) (implying that women raped during a Salvadoran civil war were victims of generalized violence rather than gender-specific harm), overruled in relevant part by Gao v. Gonzales, 440 F.3d 62, 69 (2d Cir. 2006), cert. granted, judgment vacated on other grounds, 128 S. Ct. 345 (2007). The court in Gao seems to reconsider this holding. Gao, 440 F.3d at 6971. 64 24 I&N Dec. 296, 30223 (BIA 2007), vacated, 24 I&N Dec. 617 (A.G. 2008); Matter of AT, 25 I&N Dec. 4 (BIA 2009) (decision on remand) for discussion of the Boards decision in Matter of AT, and vacatur by Attorney General Mukasey. 65 AOBTC, Gender at 16.
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TRAFFICKING CLAIMS Like forced marriage, human trafficking of women and children is a well-documented, widespread practice around the world. Women and children are often forced into the sex trade and subjected to prostitution and other forms of sexual exploitation. 66 Women and children are also trafficked for purposes of forced labor, slavery, and servitude. 67 UNHCR explains that women and children are particularly vulnerable to trafficking because of their gender and status. 68 As the UNHCR Trafficking Guidelines recognize, trafficking can constitute past persecution and give rise to a well-founded fear of future persecution based on a PSG, including notably gender. 69 Trafficking victims are often subjected to serious harm and human rights violations, such as abduction, incarceration, rape, sexual enslavement, enforced prostitution, forced [labor], removal of organs, physical beatings, starvation, the deprivation of medical treatment, all of which constitute past persecution. 70 The fear of re-trafficking upon return or severe discrimination as a result of having been subjected to trafficking may give rise to a wellfounded fear of persecution. 71 Several tribunals of other states parties to the Convention have recognized that women are frequently trafficked because of their gender, finding a nexus to particular social groups of women in Azerbaijan, young, female, rural Fujanese, women of a Minority clan, single women without male protection, 72 young women in Albania, and others put forth by trafficked women and women fearing trafficking. As in forced marriage cases, however, decision-makers and practitioners in the United States have frequently defined the PSG in narrow, circular terms, resulting in the rejection of asylum claims by trafficking victims 73 on grounds that the characteristics identified are not immutable, particular or socially visible. GENDER-BASED DISCRIMINATION CLAIMS The UNHCR has recognized gender as a particular social group in cases where women have been 74 subjected to discriminatory practices and laws. U.S. and international courts have similarly recognized that
U.N. High Commissioner for Refugees [UNHCR], Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked, HCR/GIP/06/07, at 2, (Apr. 7, 2006), available at www.unhcr.org/cgi-bin/texis/vtx/search?page=search &docid=443b626b2&query=trafficking%20and%20guidelines%20and%20persecution [hereinafter UNHCR Trafficking Guidelines]. 67 Id. at 2. 68 Id. at 2, 14. 69 Id. at 67, 14. 70 Id. at 6. 71 Id. at 67. 72 See Fatma E. Marouf, The Emerging Importance of Social Visibility in Defining a Particular Social Group and its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender, 27 Yale L. & Poly Rev. 47, 102 n.252 (Fall 2008) (citing SXPB v. Minister for Immigration & Multicultural & Indigenous Affairs, (2005) FCA 1110 paras. 3036 (Fed. Ct.) (Austl.) (young women in Albania); SZBFQ v. Minister for Immigration & Anor [2005] F.C.M.A. 197 (Fed. Magis. Ct. June 10, 2005) (Austl.) (women in Azerbaijan); No. V01/13062 (2004) R.R.T.A. 221 (Refugee Rev. Trib. Mar. 16, 2004) (Austl.) (single women without male protection in Albania); No. N03/45573 (2003) R.R.T.A. 160 paras. 7074 (Refugee Rev. Trib. Feb. 24, 2003) (Austl.) (Shan women, trafficked Shan women, women who have been working in prostitution in countries neighbouring Burma, and women who have left or been forced to leave Burma illegally); Zheng v. Minister of Citizenship & Immigration, [2002] F.C.J. No. 580; 2002 F.C.T. 448 (Fed. Ct. Trial Div.) (Can.) (young, female, rural Fujanese); X, TA4-16915, [2006] CanLII 52155, at 3 (Immigration & Refugee Bd., Refugee Protection Div. Mar. 16) (single women who were trafficked in Ethiopia); No. 75233, slip op. paras. 2627 (Refugee Status App. Auth. Feb. 1, 2005) (N.Z.) (women of a minority clan in Somalia); JO [2004] UKAIT 00251 (women in Nigeria)). 73 Burbiene v. Holder, 568 F.3d 251 (1st Cir. 2009); Rreshpja v. Gonzales, 420 F.3d 551, 55556 (6th Cir. 2005); Sarkisian v. Attorney General of U.S., 322 Fed. Appx. 136 (3d Cir. 2009); Kuci v. Atty Gen. of U.S., 299 Fed. Appx. 168, 16970 (3d Cir. 2008); Lleshanaku v. Ashcroft, 100 Fed. Appx. 546, 550 (7th Cir. 2004); Hongyok v. Gonzales, 492 F.3d 547 (5th Cir. 2007). 74 See UNHCR Executive Committee Conclusion No. 39 (XXXVI), Refugee Women and International Protection (1985), UN GAOR, 40th Sess., Supp. No. 12A, A/40/12/Add.12 (1986); see also UNHCR, Guidelines on the Protection of Refugee Women, Legal procedures and criteria for the determination of refugee status, 5376 (July 1991).
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women who refuse to conform to the governments gender-specific laws and social norms can be a 75 cognizable particular social group. As USCIS has made clear, gender-based claims that involve opposition to discrimination may also be articulated as political opinion claims, as well as particular social group 76 claims.
See, e.g., Fatin v. INS, 12 F.3d 1233, 124042 (3d Cir. 1993); see also Safaie v. INS, 25 F.3d 636, 639 (8th Cir. 1994); Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc); In Re MN, Refugee Status Appeals Authority, New Zealand, Refugee Appeal No. 2039/93, 108, 119 (Feb. 12, 1996). See also D. Anker, Membership in a Particular Social Group: Developments in U.S. Law, 1566 PLI/Corp 195 (2006) (arguing that the recognition of gender itself as defining a particular social group removes the special burden placed on womens claims by adjudicators who require women to show particularly strong opposition to gender discriminatory practices). 76 Asylum Officer Basic Training Course, Female Asylum Applications and Gender-Related Claims at 67 (Mar. 12, 2009), at 29. USCIS has also observed that [w]omen may suffer harm solely because of their gender. A woman may be prevented from traveling, from obtaining an education or from pursuing a profession, or suffer other forms of institutionalized discrimination, because of her gender. . . . Id. at 7. This discussion applies in other gender-based claims as well. Many other groups have been recognized within PSG claims such as groups on sexual identity, LGBT and sexual orientation. For an overview of this discussion, see Chapter 5 of D. E. Anker, Law of Asylum in the United States 2011 Edition (Thomson Reuter).
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WOMEN AS A SOCIAL GROUP

by Nancy Kelly *
PRACTICE POINTERS Define the particular social group by an immutable characteristicone that members of the group cannot change, or that is so fundamental to their identities or consciences that they should not be required to change it (e.g., Mexican women in domestic relationships who are unable to leave, Mexican women who are viewed as property by virtue of their positions within a domestic relationship, Iranian women who refuse to conform to the governments gender-specific laws and social norms, Somali women). Gender alone can define a particular social group, as can gender in combination with other factors (e.g., tribe, religion, ethnicity). Do not define the particular social group by the harm experienced or feared (e.g., Guatemalan women raped and beaten by the guerrillas, Mexican women in abusive relationships). The particular social group is defined by the characteristic that makes the individual susceptible to the harm, not the harm itself. Because membership in a particular social group is only one element of the refugee definition, the particular social group is also distinguishable from the group of women who will ultimately be eligible for asylum. Address decisions that require social visibility and particularity: Social Visibility: Present evidence of country conditions that show a recognition of the group and particular treatment of the group (e.g., laws, customs, rituals, societal treatment). Particularity: Demonstrate that the group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons. Present evidence of membership in the group. For example, if the case involves domestic violence, present a marriage certificate or other proof of the relationship. If the case involves female genital mutilation, present a medical evaluation. If the case involves women who will not conform to gender-specific laws or norms or societal norms, present evidence that the applicant has not complied in the past or will not comply in the future and clarify what the laws or societal norms mean to her. Raise more than one particular social group if supported by the facts, or raise a particular social group in combination with other grounds: Race and nationality: Show any ways in which your clients mistreatment is tied to her race, nationality, or ethnicity by examining her individual treatment based on those factors; particular harmful traditional or cultural practices tied to her race, nationality ,or ethnicity; or how women of her race, nationality, or ethnicity are viewed and treated within her country (e.g., Maya Quiche women in Guatemala). Political opinion: Show any ways in which your clients mistreatment is tied to her expression of her political opinion, actual or imputed. Demonstrate how your clients opinions developed and were expressed over time. A woman may express a political opinion through activities traditionally associated with politics, or she may express her opinion on a political issue through activities normally performed by women (e.g., cooking for members of a guerrilla group).
Nancy Kelly is managing attorney of the Immigration Unit at Greater Boston Legal Services (GBLS) and co-managing attorney and clinical instructor at the Harvard Immigration and Refugee Clinic at GBLS. She is also adjunct faculty at Northeastern University School of Law. She is a co-founder of the Women Refugees Project, which received the AILA Founders Award in 1994. She is a recipient of the Leila Robinson Award from the Massachusetts Womens Bar Association and the Daniel Levy Award from the National Lawyers Guild, and was named a Lawyer of the Year by Massachusetts Lawyers Weekly 2007. She has long been active in asylum, immigration, and human rights issues.
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A woman may express a political opinion concerning the treatment of women in her country or culture by refusing to accept traditional gender-defined roles or norms through her actions or by speaking out against them. In a theocracy, a woman may express an opinion by refusing to comply with the requirements imposed on women by the interpretation of the religion of the theocracy (e.g., refusal to obey a dress code imposed by law in a country purporting to apply a religious code through law). A political opinion may be imputed to a woman based on her refusal to comply with particular laws or expectations regarding the role of women. A political opinion may be imputed to a woman based on the political activities of her family members. Religion: A woman may be persecuted through the imposition of religious norms, punishment for failure to follow particular religious norms, or punishment for holding or not holding particular religious beliefs. Clearly articulate the theory of your clients claim and make sure you address every element: Present evidence that the harm your client suffered or fears is persecution: Document the harm, if possible. Present evidence of the severity of the harm, including the long term effects. Cite to relevant human rights instruments and show how your clients harm violates those instruments. Present evidence of any gender-specific types of persecution (i.e., rape and other sexual abuse, female genital mutilation, forced marriage, forced abortion or sterilization, infanticide and gender selection, severe discrimination). If the government is not the persecutor, present evidence to demonstrate a failure of state protection: Include any laws that foreclose protection to your client. If the laws appear to provide protection, include any evidence that the laws are not effectively applied at a national or local level. Provide any evidence that the persecutor can act with impunity because of his professional or personal position or connections. Provide any evidence that your client unsuccessfully sought state protection. If your client did not seek protection, provide any evidence that your client felt that it would be futile to seek protection, including past experience or other reasons for her belief. Present evidence, either direct or circumstantial, of the nexus between the harm and the particular social group or other ground: The protected ground must be at least one central reason for the harm. The persecutor may be motivated by more than one reason. The persecutor need not be motivated by a bad intent. For example, the persecutory action may be intended to cure the woman or make her marriageable. Present any evidence of statements by the persecutor indicating that he was motivated to harm your client based on a protected ground (e.g., You are my wife, Your place is in the house, You must do as I say, You are a bad Christian). Present any evidence of the persecutors actions that demonstrate that he was motivated to harm your client based on a protected ground (e.g., showing a marriage license, beating his spouse with a schoolbook to punish her for attending school to assert her independence). Present evidence of the laws, application of the laws, historical treatment or social circumstances or perception of women as circumstantial evidence that persecutor was motivated to harm your client based on her membership in a gender-based particular social group. (Note: United Nations High
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Commissioner for Refugees and other countries take the position that nexus can be established either to the infliction of the harm by the persecutor or the failure of state protection.) Demonstrate that your client cannot relocate to another part of her country: If the persecutor is the government, country-wide persecution is presumed. If the persecutor is not the government, present evidence of why it is not reasonable for your client to relocate to another part of her country, including: Other serious harm she would face in the place of relocation Ongoing civil strife within her country How her ability to relocate would be affected by the administrative, judicial, or economic infrastructure within her country Geographical limitations Social and cultural constraints that would make it impossible for her to relocate, including age, gender, health, and social and family ties The ability of the persecutor to locate your client in other parts of the country, including personal and professional ties.
VIOLENCE AGAINST WOMEN ACT PETITIONS AND RELATED SUBMISSIONS: WHERE, WHAT, AND WHEN TO FILE
by Julie E. Dinnerstein *
It can sometimes be confusing, and a little hard to keep track of, the where, what and when of filings relating to VAWA relief, so we provide a short guide. VAWA SELF-PETITIONS What VAWA self-petitions are filed on Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Where The VAWA self-petition is always filed with the Vermont Service Center (VSC), regardless of where the VAWA self-petitioner lives or whether he or she is in removal proceedings. At the time of this writing, the relevant VSC address is: VAWA Unit Vermont Service Center U.S. Citizenship and Immigration Services 75 Lower Welden Street St. Albans, VT 05479 When A VAWA self-petition may be filed for any qualifying noncitizen, whether the noncitizen is or is not in removal proceedings and whether the noncitizen is inside or outside the United States. There are some important time limitations to keep in mind: A VAWA self-petitioner seeking relief based on an intimate partner relationship with a U.S. citizen must file within two years of the death, divorce, or loss of immigration status of the abuser. 1 With respect to a divorce or loss of immigration status, there must be a connection to the domestic violence. 2
Julie E. Dinnerstein serves as the co-director of the Immigration Intervention Project. Ms. Dinnerstein has worked at the NYC Family Justice CenterBrooklyn, the NYC Family Justice CenterQueens and the New York City Family Justice Center Bronx. She also teaches immigration law at the School of Professional Studies at the City University of New York (CUNY) and serves as a part-time career counselor at the Center for Public Interest Law at Columbia Law School. Ms. Dinnersteins previous experience includes serving as the deputy director for Immigration Advocacy and Training at the New York Immigration Coalition, the director of the Immigration Intervention Project at Sanctuary for Families, an associate at the law firm of Cleary, Gottlieb, Steen & Hamilton and a law clerk to the Honorable Jack B. Weinstein in the Eastern District of New York. She frequently trains and writes on domestic violence and immigration legal issues. She is a graduate of Columbia College and Columbia Law School and the recipient of Columbia Law Schools Public Interest Law Foundations 2005 Public Interest Achievement Award and an honoree at the 8th Annual AILA NY Chapter Immigration Law Symposium, December 8, 2005. 1 See INA 204(a)(1)(A)(iii)(II)(aa)(CC); For noncitizen family members of deceased U.S. citizens and lawful permanent residents, it is worth reviewing INA 204(l), added by 568(d) of the DHS Appropriations Act, 2010, Public Law 111-83, 123 Stat. 2142, to determine whether the noncitizen family members may be eligible for status as surviving relatives. More information about this relatively new statutory provision is available at U.S. Citizenship and Immigration Services Policy Memorandum re Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204 (l) of the Immigration and Nationality Act (Dec. 16, 2010). Some victims of domestic violence at the hands of deceased U.S. citizen and lawful permanent resident family members may find alternative, and in certain cases, more expansive options for obtaining immigration status after the death of an abusive family member who was providing immigration sponsorship. 2 See id.
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INA 204(l) may provide (likely non-VAWA based) relief for those abused by a lawful permanent resident abuser who died, who otherwise must file while the abuser is still alive and within two years of divorce or loss of immigration status of the abuser. 3 With respect to a divorce or loss of immigration status, there must be a connection to the domestic violence. 4 A VAWA self-petitioner seeking relief as a child of an abusive U.S. citizen or lawful permanent resident parent must file by his or her 21st birthday (or by his or her 25th birthday, if the abuse was one central reason for the late filing 5 ), while the parent remains alive and parent-child relationship exists. 6 A child may also file within two years of the loss of immigration status of the abuser, where there is a connection to the abuse. 7 A VAWA self-petitioner, who is the parent of an abusive U.S. citizen 21 or older, may file at any time 8 A VAWA self-petitioner who is the parent of an abusive adult (21 or over) who lost his or her U.S. citizenship due to domestic violence must file within in two years of the abusers loss of immigration status. 9 BATTERED SPOUSE AND CHILD WAIVERS What Battered spouse and child waivers are filed using Form I-751, Petition to Remove the Conditions of Residence. Where? Battered spouse and child waivers, whether or not the petitioners are in proceedings, are filed initially with the Service Center having jurisdiction over the petitioners place of residence. Should the waiver be denied and the petitioner be placed in removal proceedings (or, where the petitioner is already in removal proceedings), the petitioner may seek review of such decision in removal proceedings 10 No new petition needs to be filed before the Immigration Court. When Where petitions filed jointly by husband and wife or parent and child must be filed during the 90-day period before the second anniversary of the [noncitizen]s obtaining the status of lawful admission for permanent residence, 11 no such time limitation exists with respect to battered spouse and child waivers, which can be filed at any time during or after the two year period of conditional residence. 12 VAWA CANCELLATION What VAWA cancellation applications are filed using Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.
INA 204(a)(1)(B)(ii)((II)(aa)(CC). See id. 5 INA 204(a)(1)(D)(v). 6 See INA 204(a)(1)(A)(iv), INA204(a)(1)(A)(v)(I), INA 204(a)(1)(B)(iii), and INA 204(a)(1)(B)(iv)(I). 7 See id. 8 INA 204(a)(1)(A)(vii). 9 See id. 10 8 CFR 216.5(f). 11 INA 216(d)(2)(A). 12 Compare INA 216(d)(2)(A), which describes a time limitation for the petition under subsection (c)(1)(A) (the subsection of INA 216 in which joint petitions are described), and the lack of any language relating to timeframes for filing for the hardship waivers, including battered spouse and child waivers, described in INA 216(c)(4)(C).
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Where The original VAWA cancellation application is filed with the Immigration Court. One copy of the VAWA cancellation application is filed with the Office of Chief Counsel. A second copy (along with an original Form G-325A, Biographic Information) is filed, accompanied by a fee or fee waiver order, with U.S. Citizenship and Immigration Services (USCIS) at the following address: Texas Service Center P.O. Box 852463 Mesquite, TX 75185-2463 When A VAWA cancellation application can only be filed for a noncitizen in removal proceedings. Once in proceedings, however, many restrictions that are relevant for VAWA self-petitioners no longer matter: Applications can be based on current or past abuse, no matter how long ago the abuse occurred. 13 As long as the abuser was a U.S. citizen or lawful permanent resident at the time of the abuse, the abusers current immigration status, or lack thereof, is irrelevant. 14 The qualifying spousal or parent-child relationship may continue to exist, or it may have ceased to exist at any time in the past due to death, divorce, or practically any other circumstance. 15 An adult survivor of parent abuse, regardless of age or marital status of the victim, may benefit. 16 ANCILLARY APPLICATIONS THE ADJUSTMENT OF STATUS (GREEN CARD) APPLICATION What Adjustment of status applications are filed on Form I-485, Application to Register Permanent Residence or Adjust Status. Where Adjustment of status applications for VAWA self-petitioners in the United States who are not in removal proceedings are filed with VSC, regardless of place of residence. Note, however, that VSC lacks jurisdiction to adjudicate adjustment, but may grant fee waiver requests. At the time of this writing, the relevant VSC address is: VAWA Unit Vermont Service Center U.S. Citizenship and Immigration Services 75 Lower Welden Street St. Albans, VT 05479 For adjustment of status applications for VAWA self-petitioners in removal proceedings, the original application is filed with the Immigration Court. One copy of the application is filed with the Office of Chief Counsel. A second copy (along with an original Form G-325A, Biographic Information) is filed, accompanied by a fee or fee waiver order, with U.S. Citizenship and Immigration Services at the following address:
13 14
See generally INA 240A(b)(2)(A)(i)(I)(II). See generally id. 15 See generally id. 16 See generally id.
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Texas Service Center P.O. Box 852463 Mesquite, TX 75185-2463 When Where the VAWA self-petitioner is not in removal proceedings and the VAWA self-petition is based on a qualifying relationship with a U.S. citizen, or a qualifying relationship with a lawful permanent resident whose previously filed a Form I-130, Petition for Alien Relative (Relative petition), has a current priority date, then the adjustment of status application can be filed concurrently with the VAWA self-petition or at any time while the VAWA self-petition is pending or after it is approved. Where the VAWA self-petitioner is not in removal proceedings and the VAWA self-petition is based on a qualifying relationship with a lawful permanent resident whose previously filed a Form I-130, Petition for Alien Relative, does not have a current priority date or where the lawful permanent resident never filed a Relative petition, then the VAWA self-petitioner must wait until the priority date (either from the previously filed Relative petition, or, where no Relative petition was filed, the current VAWA self-petition on Form I360) becomes current. Where the VAWA self-petitioner is in removal proceedings, he or she must wait for VSC to issue a receipt for the filing of the self-petition. Once the VAWA self-petitioner in proceedings has received the receipt for the VAWA filing, he or she can file an adjustment of status application in Immigration Court right away, while the VAWA self-petition remains pending, if the qualifying relationship is with a U.S. citizen or he or she has a current priority date. If the VAWA self-petitioner in proceedings has a qualifying relationship with a lawful permanent resident, but has no current priority date, then he or she cannot file an adjustment of status application with the Immigration Court. Who does not file an adjustment of status application? Approved VAWA self-petitioners outside the United States do not file adjustment of status applications. Instead, VAWA self-petitioners must undergo consular processing through the Department of State. (Consular processing procedures are not reviewed in this practice advisory.) Battered spouse and child waiver petitioners do not file adjustment of status applications because they are already conditional permanent residents who are simply seeking to remove the conditions on their residence. VAWA cancellation applicants do not file adjustment of status applications because the VAWA cancellation application itself is an application for lawful permanent resident status. An adjustment of status application would be redundant. THE EMPLOYMENT AUTHORIZATION DOCUMENT APPLICATION What Employment Authorization Document (EAD) applications are filed on Form I-765, Application for Employment Authorization. Where EAD applications based on 8 CFR 274a.12(c)(9) (relating to pending adjustment of status application, where the adjustment of status application is being or has been filed with VSC), 8 CFR 274a.12(c)(14) (deferred action) and (C)(31) 17 (approved VAWA self-petitioner) are filed with VSC. EAD applications based on 8 CFR 274a.12(c)(9) (relating to pending adjustment of status application, where the adjustment of status application was filed with the Immigration Court and a copy is filed with
Pursuant to the Instructions for I-765, Application for Employment Authorization, at 5, available at www.uscis.gov/files/form/i-765instr.pdf, VAWA self-petitioners, and their qualified children may file Form I-765 concurrently with the VAWA self-petition or after approval by answering (C)(31) to Question 16. Unlike other responses described in the instructions for answering Question 16, this response, (C)(31), does not correspond to a published provision of 8 CFR 274a.12.
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the Texas Service Center), are filed with either the Phoenix or Dallas Lockboxes, depending on state of residence of the applicant. EAD applications based on 8 CFR 274a.12(c)(10) (pending cancellation, including VAWA cancellation, applicant) are filed with the Chicago Lockbox. When? EAD applications based on 8 CFR 274a.12(c)(9) (where the adjustment of status application is being or has been filed with VSC) may be filed concurrently with the adjustment of status application or any time thereafter. EAD applications based on 8 CFR 274a.12(c)(9) (where the adjustment of status application was filed with the Immigration Court and a copy is filed with the Texas Service Center) may be filed as soon as the EAD applicant receives the receipt for the adjustment application. EAD applications based on 8 CFR 274a.12(c)(10) may be filed as soon as the EAD applicant receives the receipt for the cancellation application. EAD applications where the answer to Question 16 on Form I-765 is (C)(31) may be filed concurrently with the VAWA self-petition at the Vermont Service Center. 18 EAD applications based on 8 CFR 274a.12(c)(14) may be filed only after the VAWA self-petition has been approved. Who does not file an EAD application? A battered spouse or child waiver petitioner does not file an EAD application because he or she is already authorized to work pursuant to his or her conditional resident status. This status is extended by operation of law during the pendency of the battered spouse or child waiver petition, including during any time period when the battered spouse or child waiver petitioner may be in removal proceedings. A battered spouse or child waiver petitioner should be able to get an I-551 stamp in his or her passport through an InfoPass appointment during the pendency of the battered spouse or child waiver. THE APPLICATION FOR WAIVER OF GROUNDS OF INADMISSIBILITY What The application for waiver of grounds of inadmissibility (the Inadmissibility Waiver application) is filed on Form I-601, Application for Grounds of Waiver of Inadmissibility. Where and When The Inadmissibility Waiver application is filed in one of three places: At VSC at the time of filing the adjustment of status application; At the local District Office at the time of adjudication of the adjustment of status application; or With the Immigration Court (and with a copy and a fee or fee waiver order to the Texas Service Center) where the adjustment of status or VAWA cancellation application is before the Immigration Court. Those who are certain an Inadmissibility Waiver application will be required may wish to file at VSC. Benefits of filing with Vermont include a reasonable fee waiver adjudication policy and an easy-to-track receipt number issued on a Form I-797C, Notice of Action. VSC cannot, however, adjudicate the Form I-601. Where there is doubt as to the need for an Inadmissibility Waiver, some may wish to wait until a USCIS officer adjudicating an adjustment of status application requests such a waiver as a precondition for granting adjustment of status. In such a situation, the Inadmissibility Waiver may be filed at the District Office.
18
See id.
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Who does not file an Inadmissibility Waiver? Those who are filing standalone VAWA self-petitions without adjustment of status applications do not file Inadmissibility Waivers. Those filing battered spouse or child waivers (as battered spouse or child waiver petitioners are not seeking admission) do not file Inadmissibility Waivers. Those filing adjustment or status or VAWA cancellation applications who are not inadmissible also do not file Inadmissibility Waivers.
VAWA SELF-PETITIONING: SOME PRACTICE POINTERS

by Gail Pendleton *
This advisory provides practice pointers on properly preparing self-petitions under the Violence Against Women Act (VAWA) to avoid common problems, describes special confidentiality protections, and suggests that there is light at the end of the tunnel for VAWA self-petitioners facing reinstatement of removal. At the end, it provides a list of the Code of Federal Regulations (CFR) Title 8 provisions that have been superseded by later statutes, but not yet changed in the regulations. SOME OF THE VAWA REGULATIONS ARE OBSOLETE Most of the statutory changes to VAWA have been implemented through guidance, not regulations, so it is extremely important that you look for interpretation and support in the following order: (1) statute; (2) guidance memoranda from U.S. Citizenship and Immigration Services (USCIS); and (3) regulations, with the caveat that some of the regulations are now wrong (see below for details). For regular updates and practice pointers, readers should join the VAWA Updates listserv, run by ASISTA and the National Immigration Project of the National Lawyers Guild, and regularly check the ASISTA website. 1 WHAT CAUSES THE BIGGEST PROBLEMS WITH SELF-PETITIONS? As primary liaison to USCIS for VAWA and U visas, I work with practitioners and USCIS to resolve both individual case and systemic policy problems. With regard to self-petitions, the most difficult problem I encounter is adverse credibility determinations. Once in doubt, it is extremely difficult to rehabilitate your clients credibility, so here are some practice pointers on how to avoid adverse findings. Review prior filings anywhere in the system and acknowledge upfront discrepancies between those filings and your clients current statements. Is the abuser causing the discrepancies? Were the inconsistencies otherwise the result of being a victim of domestic violence (DV)? Explain why what you are telling them now is different than what they will find in existing files. Work with a DV advocate to elicit your clients full story. Immigration lawyers are not necessarily trained in working with victims of DV and often miss crucial information, such as marital rape, because they do not know how to ask questions in a way that yields full information. DV advocates are trained to do this. Moreover, they can help your clients organize their thoughts in the way most useful to an application for immigration relief. They can also provide corroborating declarations, especially regarding extreme cruelty. Explore non-physical forms of domestic violence, i.e., extreme cruelty. The non-physical forms of abuse may be harder for victims to recognize, describe, and overcome because it alters their psyche. Extreme cruelty is any form of power and control, not just a bad marriage. DV advocates and social science literature can corroborate your clients story. Ensure that your clients story is in her own voice. If you include legal jargon or your own phrases, then USCIS will discount the story. The declaration should provide detail and chronology, as well as explain why certain documents are not available if they typically should exist. For example, the client sought medical treatment, but hospital personnel took no pictures. Why not? Again, DV advocates can corroborate how victims reluctance to trust or use systems stem from the abusers power and control.
Gail Pendleton is co-founder of the National Network to End Violence Against Immigrant Women and co-director of ASISTA, a national immigration law technical assistance project funded by the federal Office on Violence Against Women. Formerly associate director of the National Immigration Project of the National Lawyers Guild, where she worked for 20 years, she received AILAs Human Rights Award in 2001.
1
ASISTA website: www.Asistahelp.org. Contact the author at gailpendleton@comcast.net to join the listserve.
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Explore any possible marriage fraud issues. Abusers seem to routinely allege marriage fraud by spouses who attempt to escape their power and control. Fortunately, Congress recognized that abusers often lie to undermine their victims credibility and created special protections (see next section). Nevertheless, local Immigration and Customs Enforcement (ICE) and USCIS officers, often uneducated or antagonistic to VAWA or DV, generally may attempt to insert the abusers voice into the process or allege marriage fraud on their own. If you know that this has been raised, address it head-on in the application. Prepare a road map cover letter that delineates how your client meets each eligibility requirement (not just a mere assertion that she does) and refer documents in your index supporting criterion. Compile an index for your documentation and highlight the sections in your documents that you want the adjudicators to read. Put yourself in the place of an adjudicator with a pile of documents to review and a checklist. The applications that allow an adjudicator to navigate the checklist quickly will get approved faster. Cite the any credible evidence standard 2 and explain how your clients documentation meets it. Explain why you could not get system documents where that might seem relevant. In general, USCIS looks favorably on good faith efforts to get the best documentation. Realize, however, that the preponderance of the evidence is still the burden; any credible evidence is what you may supply to meet that burden. If you still get a Request for Evidence, contact me for help. For more than a decade, I have worked with USCIS on resolving cases. This experience enables me to identify problems immediately and provide insight. If we think USCIS is applying the law inappropriately, we can use your case to raise the systemic problem with USCIS decision-makers, thereby addressing your issue and helping others. SPECIAL PROTECTIONS AGAINST EVIDENCE FROM ABUSERS Congress created and has repeatedly expanded 8 USC 1367 to ensure that abusers and other perpetrators do not influence the immigration systems deliberative processes. The most important safeguard related to proving your clients claim is the protection against using information from the abuser or his family against your client. 3 However, there is a loophole. The statute says that USCIS may not rely solely on information provided by abusers in making admissibility and deportability determinations. 4 While the Vermont Service Centers (VSC) VAWA unit interprets this provision to mean that derogatory information derived from abusers is inherently unreliable and will not be entertained at all unless it was provided by another source, other officers in the agency seem to find abusers credible, undermining Congresss goal and triggering the marriage fraud issues noted above. It is, therefore, vital that you challenge any attempt by abusers, as well as USCIS or ICE officers, to use information from these unreliable sources. For immediate attention to an apparent violation, contact me so that we can work with USCIS and ICE officers to curtail and sanction violations of 8 USC 1364. You may also file formal complaints with the Department of Homeland Securitys Office of Civil Rights (OCR). At this writing, however, the description of the special VAWA protections was not readily available on OCRs website. The general complaint form mentions VAWA protections in one sentence without explanation. The statistics do not list VAWA protection violations separately. 5 OVERCOMING REINSTATEMENT OF REMOVAL As noted in a 2009 memorandum, VAWA self-petitioners may be able to overcome reinstatement of removal under Immigration and Nationality Act (INA) 241(a)(5). 6 Section G acknowledges that VAWA
2 3
INA 204(a)(1)(J). 8 USC 1367(a)(1). 4 Id. 5 See Department of Homeland Security, www.dhs.gov (search for complaints). USCIS Memorandum, M. Aytes, Adjudicating Forms I-212 for Aliens Inadmissible Under Section 2l2(a)(9)(C) or Subject to Reinstatement Under Section 241(a)(5) of the Immigration and Nationality Act in light of Gonzalez v. DHS, 508 F.3d. 1227 (9th Cir. 2007) (May 19, 2009), published on AILA InfoNet at Doc. No. 10012674 (posted Jan. 26, 2010).
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self-petitioners may be able to overcome unlawful presence INA 212(a)(9)(C) through a waiver application. 7 That, along with a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, should cure reinstatement for VAWA self-petitioners. The memorandum is a little muddled, however, and many practitioners are wary of using their clients as guinea pigs to test whether local offices understand that their clients may overcome reinstatement. To avoid confusion, USCIS General Counsels Office VAWA officers have offered to help educate local offices about the memorandums implications for VAWA self-petitioners. I am also available to provide clarification. INCOMPLETE OR INACCURATE 8 CFR PROVISIONS ON VAWA SELF-PETITIONS No longer current relationship 8 CFR 204.2(c)(1)(i)(A) and (c)(2)(ii)(spouses); 8 CFR 204.2(e)(1)(i)(A) (child)incomplete; 8 CFR 204.2(c)(1)(ii) (legal status of the marriage)No need to have to be married at time of filing and termination of marriage does not vitiate self-petition. INA 204(a)(1)(A)(iii)(II)(aa) and 204(a)(1)(B)(ii)(II)(aa)current spouse, bigamous spouse, died within two years or lost status within two years. None of these changes are reflected in 8 CFR. INA 204(a)(1)(A)(iv) and 204(a)(1)(B)(iii)child is or was the child of a lawful permanent resident but abuser died or lost status within two years. No U.S. Residence Required 8 CFR 204.2(c)(1)(i)(C) and 204.2(e)(1)(i)(C)wrong, requiring residence in United States. INA 204(a)(1)(A)(v) and 204(a)(1)(B)(iv)residing in the United States or residing abroad if: (1) some abuse took place in the United States; or (2) abuser is member of the U.S. uniformed services; or (3) employed by the U.S. government. No Residence in the United States with Abuser Required 8 CFR 204.2(c)(1)(i)(D), (c)(1)(v) and (c)(2)(iii) (spouses); 8 CFR 204.2(c)(1)(i)(D) and 204.1(e)(1)(i)(D) (child)completely wrong (though evidence list presumably still helpful, just apply abroad as well as in the United States). INA 204(a)(1)(A)(iii)(II)(dd) and 204(a)(1)(B)(ii)(II)(dd)has resided anywhere with spouse; INA 204(a)(1)(A)(iv) and 204(a)(1)(B)(iii)is or has resided and includes visitation. No Extreme Hardship Required 8 CFR 204.2(c)(1)(i)(G), (c)(1)(viii) and (c)(2)(vi) (spouses); 8 CFR 204.2(e)(1)(i)(G), (e)(1)(viii) and (e)(2)(vi) (child) eliminated by Congress in 2000. Abuser Need Not Be in Status and Upgrades Automatically Apply 8 CFR 204.2(c)(1)(iii)completely wrong, except that negative changes in abusers status do not affect the self-petitioner. INA 204(a)(1)(A)(iii)(II)(aa)(CC) and (vi); INA 204(a)(1)(B)(ii)(II)(aa)(CC) and (v)(II)(automatic upgrade to immediate relative if LPR becomes USC). Good Moral Character Exception 8 CFR 204.2(c)(1)(vii) and 204.2(e)(1)(vii)lacks good moral character exception in statute.
Id. at 6.
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INA 204(a)(1)(C)Finding GMC is not barred if act is waivable or connected to the abuse or extreme cruelty. Revocation Not Automatic 8 CFR 205.1(a)(3)(i)(E)remarriage = auto revocation (no longer true). INA 204(h)remarriage is not basis for revocation. Derivative Transformation 8 CFR 204.2(c)(4)Last sentence incorrect (derivatives cant age out). INA 204(a)(1)(D)as long as filed before age out, transformed into self-petitioner under relevant category. Derivatives of Child Self-Petitioners 8 CFR 204.2(e)(4)completely wrong. INA 204(a)(1)(A)(iv) and 204(a)(1)(B)(iii)child applicants may include their children. Children Between 2125 8 CFR 204.2(e)(1)(ii)completely wrong (no age-out allowed before approval) 8 CFR 204(a)(1)(D)(v)individuals between 2125 can file as if children, measured on day before 21, if DV = one central reason for failure to timely file. Elder Abuse Not Included INA 204(a)(1)(A)(vii) Instead: See draft USCIS memorandum on elder abuse provision (reading in any credible evidence standard and other provisions parallel to spouse and child self-petitions. 8
USCIS Draft Memorandum, Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen; Revisions to Adjudicators Field Manual (AFM) ch. 21.15 (AFM Update AD 06-32), published on AILA InfoNet at Doc. No. 11010731 (posted Jan.7, 2011).
LONG-TERM STRATEGIC PLANNING FOR THE APPROVED VAWA SELF-PETITIONER WITH INADMISSIBILITY ISSUES
by John Richard Smith *
Getting your clients Violence Against Womens Act (VAWA) 1 self-petition approved may sometimes seem like a daunting task but, on occasion, petition approval is the least of an advocates concerns. As the immigration law has gotten tougher on prior immigration and criminal violations, many approved selfpetitioners face multiple issues concerning eligibility for adjustment of status and admissibility. This is especially true in cases along the U.S.-Mexican border, where international border is a more fluid concept than many would like to believe, and U.S. citizen (USC) and lawful permanent resident (LPR) spouses are able to use the border for their own purposes and benefit in perpetuating their position of power within an abusive domestic relationship. Refusal of the abuser to file an immigrant visa petition, coupled with cross-border criminal activity where the immigrant spouse might be implicated as an unwitting accomplice or conspirator, and flight to Mexico (forced by the abuser) in order to escape prosecution for criminal activity in the United States or to prevent the immigrant from obtaining the superior protections against domestic violence that are available in U.S. jurisdictions, are among the most common scenarios leading to multiple grounds of inadmissibility for a VAWA self-petitioner. It is not uncommon to find an approved self-petitioner with seemingly unconquerable obstacles to adjustment of status, foremost among them: disqualifying crimes, visa fraud, false claims to U.S. citizenship, alien smuggling, prior removals, and unlawful presence. As a result, an advocate for the VAWA self-petitioner must often make complex strategic decisions in determining whether and how to proceed with an application for adjustment of status. It is often crucial that long-term strategy include multiple defensive maneuvers and back-up plans. Is your client admissible? Can any applicable grounds of inadmissibility be waived? If VAWA adjustment fails, will your client be eligible to apply for VAWA cancellation before an immigration judge? Could a prior removal be reinstated against your client? If so, what can you do to prevent it? ADJUSTMENT ELIGIBILITY AND INADMISSIBILITY Under section 245(a) of the Immigration and Nationality Act (INA), 2 all approved self-petitioning spouses under VAWA are eligible for adjustment of status. INA 245(a) permits adjustment of status for anyone who either was inspected and admitted into the United States or has an approved VAWA petition; and an approved VAWA self-petitioner is adjustment-eligible despite unlawful entry and regardless of inadmissibility under INA 212(a)(6)(A)(i), as a foreign national present without inspection and admission. 3
John Richard Smith is a sole practitioner in San Diego. He graduated from the George Washington University Law School in 1997. He has limited his practice exclusively to immigration for the last 12 years. Johns introduction to immigration law came through an internship at Ayuda ClinicaLegal, in Washington, D.C., during the summer after his first year of law school, in which he worked with Leslye E. Orloff, Esq., on projects intended to educate practitioners concerning the then-newly enacted, immigration-related provisions of the Violence Against Women Act of 1994, and to advocate for promulgation of reasonable implementing regulations for the new law. He continued to work on behalf of immigrant victims of domestic violence as a staff attorney for three-and-a-half years at Legal Aid Society of San Diego, Inc. Since opening his own office in 2003, John has focused primarily on assisting intending immigrants with cases involving highly complex issues of inadmissibility, waivers of inadmissibility, and relief from removal. 1 Violence Against Women Reauthorization Act of 2005 (VAWA), Pub. L. No. 109-162, secs. 3(a), 80134, 119 Stat. 2960, 296471, 305377 (2006), as amended by Pub. L. No. 109-271, 120 Stat. 750 (2006). 2 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). 3 See USCIS Memorandum, W. Aytes, Adjustment of status for VAWA self-petitioner who is present without inspection, (Apr. 11, 2008), published on AILA InfoNet at Doc. No. 08042161 (posted Apr. 21, 2008), available at www.aila.org/content/default.aspx?docid=25246.
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Further, the ordinary disqualifying factors detailed in INA 245(c) do not apply to approved VAWA selfpetitioners. 4 With regard to inadmissibility, there are no automatic exemptions for VAWA self-petitioners, except with regard to the affidavit of support requirement for family-sponsored immigrants. 5 There are, however, certain limited exceptions to inadmissibility and various waivers of inadmissibility available only to VAWA selfpetitioners or available to VAWA self-petitioners on more favorable terms than to others. The practitioner must develop a thorough understanding of these special provisions in order to properly represent his client: If a VAWA self-petitioner has been convicted of no more than one crime involving moral turpitude or one controlled substance violation involving only simple possession of no more than 30 grams of marijuana, or makes a qualifying admission that she has committed such a crime under INA 212(a)(2)(A)(i), and the crime or admission is not subject to an exception to inadmissibility under the juvenile offense and/or petty offense provisions of INA 212(a)(2)(A)(ii)(I) and (II), then she qualifies for the necessary discretionary waiver without regard to whether she meets any of the standard eligibility criteria for one of the several waivers available under INA 212(h). Thus, a VAWA self-petitioner does not need to establish that she has successfully rehabilitated after a crime involving prostitution (at any time) or from any other crime that occurred more than 15 years prior, nor does she need to establish that a qualifying relative would suffer extreme hardship, as others would need to do to obtain the waiver. This extremely generous provision does not, however, exempt a VAWA self-petitioner from the standard disqualifying factors for relief under INA 212(h)including the bars for those previously admitted as LPRs who have been convicted of an aggravated felony or who have not resided continuously in the United States for a period of seven years immediately preceding initiation of removal proceedings against them. A provision written into the INA at 212(a)(6)(A)(ii) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 6 carved out an exception to inadmissibility stemming from being present in the United States without having been admitted or paroled. That exception required that a VAWA self-petitioner show a substantial connection between the qualifying battery or extreme cruelty and her unlawful entry into the United States, in order to avoid a finding of inadmissibility. However, based upon administrative interpretation of the later-enacted provision providing automatic adjustment eligibility to approved VAWA self-petitioners, a VAWA self-petitioner no longer needs to make such a showing in order to adjust status. 7 When in need of a waiver of inadmissibility because of a misrepresentation made in order to receive a benefit under the INA, an approved VAWA self-petitioner may rely upon hardship that a USC or LPR child and/or she, herself, would suffer if denied adjustment (in addition to the hardship that her LPR husband would suffer) in order to qualify for the necessary waiver. 8 In practice, the loss of protection of the U.S. courts and police agencies, which the self-petitioner may face if forced to leave the country, and/or the loss of social services crucial to the recovery of a victim of domestic violence, will frequently be sufficient to meet the extreme hardship standard for this waiver. For cases where children of the VAWA self-petitioner and her abusive spouse wish to maintain close contact with both parents, family separation could also constitute an important factor in the hardship determination. INA 212(a)(9)(B)(i) (regarding inadmissibility because of prior periods of unlawful presence) is not applicable to a VAWA self-petitioner if there was a substantial connection between the battery and
INA 245(c). INA 212(a)(4)(C)(i). 6 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009-546 to 3009-724. 7 USCIS Memorandum, W. Aytes, Adjustment of status for VAWA self-petitioner who is present without inspection, (Apr. 11, 2008), published on AILA InfoNet at Doc. No. 08042161 (posted Apr. 21, 2008), available at www.aila.org/content/ default.aspx?docid=25246. See also Adjudicators Field Manual (AFM) ch. 23.5(k). 8 INA 212(i)(1).
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STRATEGIC PLANNING FOR THE APPROVED VAWA SELF-PETITIONER WITH INADMISSIBILITY ISSUES
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cruelty she suffered and her violation of the terms of [her] nonimmigrant visa. 9 The law does not define substantial connection and, arguably, the standard should not require a direct causal link as mandated by the on account of standard used to assess the relation between persecution and a protected personal trait in order to establish refugee status under INA 101(a)(42)(A). In practice, however, the practitioner should be prepared for an adjudicator who will demand a causal connection between battery and unlawful presence and should understand his or her clients options if the client is found not to qualify for the VAWA exception to inadmissibility because of unlawful presence under the three or ten-year bar. If U.S. Citizenship and Immigration Services (USCIS) determines that the self-petitioner is inadmissible under INA 212(a)(9)(B)(i), she may only apply for a waiver of that ground of inadmissibility based upon a showing of potential extreme hardship to her USC or LPR spouse. 10 Obviously, applying for a waiver based upon the potential hardship to the abusive spouse could be highly problematic, especially in cases in which the VAWA self-petitioner has successfully made a complete break from her abusive partner. Even attempting to make such a showing might raise concerns about the good faith of the underlying VAWA self-petition. Nonetheless, there will be cases in which the VAWA self-petitioner remains with her abusive spouse (for a variety of personal reasons) and he could suffer hardship in the absence of the selfpetitionerif, for example, the self-petitioner provides some form of in-home care to an abusive spouse who is elderly, sick or in some other way reliant to some extent upon support provided by the selfpetitioner. More commonly, the abusive spouse might suffer hardship in the form of separation from children born of the marriage if the self-petitioner were to leave the United States and take the children with her. So, while being mindful of the potential pitfalls, the practitioner should not automatically consider the extreme hardship waiver under INA 212(a)(9)(B)(v) to be off the table. A VAWA self-petitioner is also eligible for a waiver of the so-called permanent bar under INA 212(a)(9)(C)(i)(I) and (II) (stemming from illegal re-entry into the United States following accrual of more than one year of unlawful presence or a prior removal) under special provisions applicable only to approved VAWA self-petitioners. 11 Availability of a waiver of this ground of inadmissibility is conditioned upon a showing that the self-petitioners removal or departure and subsequent reentry were related in some way to the abuse she suffered from her USC or LPR spouse. However, this waiver is subject to a lower standard of connectedness than is the exception to inadmissibility under the three and ten-year bars of INA 212(a)(9)(B). To obtain the VAWA waiver of the permanent bar, an applicant need only show a connection between the illegal re-entry offense and the abuse suffered. Practitioners should emphasize this relatively low standard of required connection by comparing it to the standard required for establishing refugee status (where persecution must be shown to be on account of one of the protected bases) and to the substantial connection standard that a VAWA self-petitioner must satisfy in order to qualify for the VAWA exception to the three and ten-year, unlawful presence bars under INA 212(a)(9)(B). Despite the relatively generous terms of some of these waivers for VAWA self-petitioners, the practitioner should never concede inadmissibility where the point is arguable. So, for example, when assessing whether a client is subject to the permanent bar under INA 212(a)(9)(C), the practitioner should inquire very specifically about the manner in which his client reentered the United States. Because INA 212(a)(9)(C) applies only to those who reentered or attempted to reenter without being admitted, it is not applicable to those who returned or tried to return to the United States through the routine inspections process at a designated port of entry, even if they committed fraud (other than a false claim to U.S. citizenship) during the entry inspection or were waved through without any actual legal right to enter the United States. 12 For purposes of other grounds of inadmissibility, a VAWA self-petitioner must qualify for an exception or waiver on the same terms as anyone else. So, for example, a VAWA self-petitioner who has made a false
9
INA 212(a)(9)(B)(iii)(IV). INA 212(a)(9)(B)(v). 11 INA 212(a)(9)(C)(iii). 12 See Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010); Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980).
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claim to U.S. citizenship for any purpose or benefit under the INA on or after September 30, 1996, cannot overcome inadmissibility unless she meets the extremely limited exception applicable to those who had a reasonable belief that they actually were a USC. 13 Likewise, a VAWA self-petitioner who knowingly assisted someone to enter the United States illegally cannot overcome inadmissibility unless she assisted only her parent, spouse, son or daughter. 14 In these situations or others in which the VAWA self-petitioner cannot take advantage of the special provisions enumerated above, the practitioner must be familiar with other options and carefully strategize how his client might avail herself of them. For example, alien smuggling is not a bar to receiving VAWA cancellation of removal under INA 240A(b)(2) if it occurred outside of the relevant three-year period of required good moral character and did not result in a conviction under INA 274(a)(1)(A) or (2) 15 ; so, under circumstances likely to support a grant of VAWA cancellation and where the client has been fully informed of all potential consequences and has consented to the strategy, a practitioner might consider filing an adjustment of status application knowing that his client will ultimately need to rely upon VAWA cancellation in removal proceedings to obtain lawful permanent resident status. In that situation and, similarly, if there is a doubt as to whether a required waiver will be granted, the practitioner may want to delay filing for adjustment of status until the VAWA self-petitioner has accrued the necessary three-year period of continuous U.S. residence and good moral character required for VAWA cancellation of removal, so that option will be immediately available if the case is sent to an immigration judge. The VAWA self-petitioner might also avail herself of the benefits of a T or U nonimmigrant visa, in scenarios in which those visas might provide more favorable terms of eligibility than would adjustment or even VAWA cancellation of removal. 16 Among the potential benefits of the T or U visa options is the availability of a nonimmigrant waiver of inadmissibility pursuant to INA 212(d)(3), which is available to cure any ground of inadmissibility other than specified national security grounds. 17 Where circumstances would allow for an affirmative, gender-based asylum application stemming from the underlying domestic violence, that option should be exploredespecially as a means of avoiding inadmissibility because of a false claim to U.S. citizenship. 18 Moreover, the practitioner must always remember the possibility of gender-based withholding of removal or Convention Against Torture (CAT) 19 relief, which is available in all but the most exceptional circumstances. 20 In short, the practitioner must be aware of the full range of potential benefits that may be available to a victim of domestic violence to properly serve his clienteven if he needs to refer the client to a colleague with greater experience handling cases involving one of the available alternative remedies for a consultation on additional options. SPECIAL CONSIDERATIONS FOR CASES INVOLVING PRIOR REMOVAL Though not favored in any way by more generous terms of waiver availability, a VAWA self-petitioner is eligible, of course, for the standard waiver of inadmissibility stemming from prior removal under INA 212(a)(9)(A)(i) and/or (ii). 21 That waiver is purely discretionary and requires neither a familial relationship
INA 212(a)(6)(C)(ii)(II). INA 212(a)(6)(E)(ii), 212(d)(11). 15 INA 101(a)(43)(N), 101(f)(3), 240A(b)(2)(iii)(iv). 16 INA 101(a)(15)(T)(U), 214(o)(p); 8 CFR 214.2(t). See also C. Ward-Seitz and S. Kinoshita, Introductory Practice Guide to U Nonimmigrant Status (I-918) Processing, 23rd Annual AILA California Chapters Conference Handbook at 3 (AILA 2010 Ed.). 17 INA 212(d)(3). 18 INA 208; Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010). 19 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987); Pub. L. No. 105-277, Division G, Subdivision B, Title XXI, Sec. 2242, 112 Stat. 2681822. 20 INA 241(b)(3). 21 INA 212(a)(9)(A)(iii).
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to a USC or LPR nor any showing of hardship. 22 In arguing for the favorable exercise of discretion to grant this waiver, the practitioner should start by examining the discretionary factors set forth in Matter of Tin, 23 and should also consider the standard discretionary factors set forth in Matter of Marin and its progeny. 24 The abuse suffered by the self-petitioner and the potential impact of a negative discretionary ruling (especially upon the self-petitioners children) should, however, always be argued as factors mitigating toward a favorable exercise of discretion for a VAWA self-petitioner. It should be remembered that, like inadmissibility because of prior unlawful presence under INA 212(a)(9)(B), inadmissibility stemming from prior removal is of limited temporal reach. For example, an alien who was only once removed from the United States pursuant to the expedited removal procedure authorized by INA 235(b)(1) (and who has not been convicted of an aggravated felony), is not subject to inadmissibility under INA 212(a)(9)(A) at all if applying for adjustment of status after having spent more than five consecutive years outside of the United States after the date on which the removal order was executed, regardless of where she may have spent her time prior to or following completion of those five years. 25 For this reason, the practitioner should carefully review his clients residential history following execution of the prior removal order to understand exactly which, if any, waivers may be required. Of course, the gravest concern in the case of a client who was previously removed and who returned to the United States without proper legal authorization is the possibility that the prior removal will be reinstated pursuant to INA 241(a)(5). The practitioner must remember that the reinstatement procedure can be used against someone no matter how long ago she may have been ordered excluded, deported, or removed from the United States, 26 so the practitioner should make it clear to his client prior to accepting an adjustment case for representation that she must disclose to him any prior immigration enforcement actions that may have been taken against her, in order to ensure that accurate legal advice is given. How the practitioner handles a VAWA adjustment case in which the self-petitioner has previously been removed will depend heavily upon the precedent opinions of the judicial circuit in which the case arises. In the U.S. Court of Appeals for the Ninth Circuit, for example, an approved VAWA self-petitioner is arguably not subject to reinstatement of removal under INA 241(a)(5) if she is eligible for permission to reapply for admission following removal and waivers of any other applicable grounds of inadmissibility in conjunction with her application to adjust status that would cure her present unlawful status. 27 In PerezGonzalez, the immigrant brought a petition for review to challenge a reinstatement order issued following the denial of his adjustment of status application and simultaneously filed an application for permission to reapply for admission despite inadmissibility because of the illegal reentry permanent bar. In disposing of the case, the Ninth Circuit determined that the regulations governing application for permission to re-apply unequivocally allowed for nunc pro tunc applications to be filed and adjudicated within the United States and that, as a result, a successful waiver under 8 CFR 212.2(e) would offer a means of avoiding the reinstatement provisions bar [to adjustment of status]. 28 In light of that conclusion, the court ruled that an alien who applied for adjustment of status with a request for permission to re-apply pursuant to 8 CFR
Id.; Matter of Lee, 17 I&N Dec. 275 (Comm. 1978). Matter of Tin, 14 I&N Dec. 371, 373 (BIA 1973) (including, but not limited to, the basis for deportation, recency of deportation, length of residence in the United States, the moral character of the applicant, her respect for law and order, evidence of reformation and rehabilitation, her family responsibilities, any inadmissibility to the United States under other sections of law, hardship involved to herself and others, and the need for her services in the United States), as modified by Matter of Lee, 17 I&N Dec. 275 (Comm. 1978) (which primarily focuses on the applicants moral character and disregards past immigration violations and recency of deportation, except to the extent that they may reflect morally turpitudinous conduct requiring a showing of reform or rehabilitation) 24 Matter of Marin, 16 I&N Dec. 581 (BIA 1978); Matter of Wadud, 19 I&N Dec. 182 (BIA 1984). 25 8 CFR 212.2(a). 26 Fernandez-Vargas v. Gonzales, 548 U.S. 30; 126 S. Ct. 2422; 165 L. Ed. 2d 323 (2006). 27 See Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004) (overruled on alternate grounds, Duran-Gonzales v. Dept. of Homeland Sec., 508 F.3d 1227 (9th Cir. 2007)). 28 Perez-Gonzalez, 379 F.3d at 788.)
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212.2(e) before a removal order was reinstated was not yet subject to the terms of the reinstatement provision. 29 Although the legal decision in Perez-Gonzalez was later overruled by the court in Duran-Gonzales, the basis of that subsequent reversal centered on a contrary interpretation of the eligibility criteria for permission to re-apply under INA 212(a)(9)(C)(ii) made by the Board of Immigration Appeals (BIA). Namely, in Matter of Torres-Garcia, 30 the BIA held that a foreign national may only apply for permission to re-apply under INA 212(a)(9)(C)(ii) from outside the United States, and no less than 10 years after his or her last departure from the country. The later reversal of Perez-Gonzalez by the Ninth Circuit did not rest upon a redetermination of the effect that a successful application for permission to re-apply would have upon reinstatement via adjustment eligibility. Rather, it rested only upon the aliens ineligibility for permission to re-apply under the new criteria set forth by the BIA in Torres-Garcia. In other words, the holding in PerezGonzalez has been altered only inasmuch as Perez-Gonzalez would not even have been eligible for the permission to re-apply that the Ninth Circuit found would protect him from reinstatement, so he could not rely upon that potential cure to unlawful status in order to avoid reinstatement. Unlike the foreign nationals in any of the above-cited cases, a VAWA self-petitioner does not request permission to re-apply in order to cure inadmissibility under INA 212(a)(9)(C)(ii), but rather, seeks a waiver under INA 212(a)(9)(C)(iii) (VAWA waiver), which has very different eligibility criteria. There is no requirement that a foreign national apply for the VAWA waiver more than 10 years after her last departure from the United States and while remaining outside of the country, as there is with a request for permission to re-apply. 31 Thus, pursuant to the rationale expressed in Perez-Gonzalez, a VAWA self-petitioner residing within the territorial jurisdiction of the Ninth Circuit should be protected from reinstatement of removal because, unlike the foreign nationals in the above-cited cases, she is eligible for a waiver of the permanent bar that would cure inadmissibility on that ground. 32 There is, however, one very important caveat regarding a VAWA self-petitioners eligibility to adjust status despite prior removal. The potential problem arises from the parallel wording of the permission to reapply provisions relating to inadmissibility because of both prior removal and illegal re-entry. Both require that permission to re-apply be sought prior to the aliens re-embarkation at a place outside the United States[.] 33 This is the language that the Board determined requires an applicant for permission to re-apply despite inadmissibility under the permanent bar of INA 212(a)(9)(C)(i) to apply from outside of the United States. At this point, there appears to be no judicial precedent in any circuit concerning whether the BIAs decision in Torres-Garcia may affect the availability of permission to re-apply for admission despite a prior removal under only INA 212(a)(9)(A)(i) or (ii). Arguably, however, it should not. In Torres-Garcia, the BIA reasoned that the regulation at 8 CFR 212.2(e) was inapplicable to permission to re-apply under INA 212(a)(9)(C)(i), because the regulation, itself, predated the ground of inadmissibility and, therefore, could not rightly be thought to have been drafted with the context of the new INA 212(a)(9)(C) in mind. 34 Absent any governing regulation, the BIA was free to interpret the provision for permission to re-apply under INA 212(a)(9)(C)(ii) as it liked and to restrict eligibility for relief as it thought most appropriate. That reasoning, however, should not alter the applicability of 8 CFR 212.2(e) in the context of INA 212(a)(9)(A), because INA 212(a)(9)(A) addresses only inadmissibility because of a prior removal itself, just like the law that 8 CFR 212.2(e) was promulgated to implementINA 212(a)(6)(B)
29 30
Id. Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006). 31 INA 212(a)(9)(C)(iii); cf., INA 212(a)(9)(C)(ii). 32 USCIS Memorandum, M. Aytes, Adjudicating Forms I-212 for Aliens Inadmissible Under Section 212(a)(9)(C) or Subject to Reinstatement Under Section 241(a)(5) of the Immigration and Nationality Act in light of Gonzalez v. DHS, 508 F.3d. 1227 (9th Cir. 2007), (May 19, 2009), published on AILA InfoNet at Doc. No. 10012674 (posted Jan. 26, 2010), available at www.aila.org/content/fileviewer.aspx?docid=31105&linkid=214060. 33 INA 212(a)(9)(A)(iii), (C)(ii). 34 Id.
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(1996), which also used substantially identical limiting language. The unanswered question is whether the BIA or federal courts might somehow apply the reasoning of Torres-Garcia to waivers of prior removal on a theory that the passage of IIRAIRA 35 ushered in a new scheme of inadmissibility that tacitly superseded the old regulation regarding retroactive permission to re-apply despite prior removal. Because of uncertainties in outcome, like the one just discussed, the practitioner should be extremely thorough in disclosing to the VAWA self-petitioner to whom reinstatement might apply the risks of proceeding with an adjustment of status application. The practitioner should also have one or more contingency plans to pursue in the event that the government does attempt to reinstate a prior removal. Under such circumstances and where a colorable claim will lie based upon conditions in the VAWA self-petitioners home country, the practitioner should always insert a prominent notice with the adjustment of status application that his client wishes to have a reasonable fear interview regarding potential withholding of removal or CAT 36 relief (to which she is entitled by law) if the government chooses to pursue reinstatement of removal. 37 Foremost, the practitioner should have an emergency petition for review (and, perhaps, also a petition for writ of habeas corpus) 38 ready to file from the moment the adjustment application is received by USCIS. The petition should be accompanied by a motion for an immediate stay of the reinstatement order and review of the legal issues governing the VAWA self-petitioners eligibility for relief from removal. Again, availability of this type of review may depend upon the judicial circuit in which the case arises, and practitioners are advised to familiarize themselves thoroughly with the case law of their circuit regarding petition for review and habeas jurisdiction over both reinstatement orders and the underlying legal questions regarding adjustment and waiver eligibility, before filing an adjustment of status application for anyone who may be subject to reinstatement of removal.
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009546 to 3009-724. 36 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987); Pub. L. No. 105-277, Division G, Subdivision B, Title XXI, Sec. 2242, 112 Stat. 2681822. 37 8 CFR 208.31, 241.8(d), 1208.31, 1241.8(d) (2011). 38 The Ninth Circuit appears to have concluded that, for all purposes in which an adjustment denial is accompanied by a reinstatement order, a petition for review of the reinstatement order is the proper procedural tool to challenge both the reinstatement order and the legal issues involved in the adjustment of status denial. Morales-Izquierdo v. DHS, 600 F.3d 1076, 108186 (9th Cir. 2010); accord., Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 (10th Cir. 2003). Nonetheless, in jurisdictions in which a habeas corpus action might arguably lie at the district court (including within the Ninth Circuit), the filing of such a petition with the district court may be the most effective means of obtaining immediate issuance of an emergency stay of a reinstatement order, even if jurisdiction over the claims is ultimately determined to properly lie at the circuit court. Filing of the petition for review should not, however, be delayed to await the jurisdictional decision in the habeas action, as doing so could result in extreme prejudice to your client if the deadline for filing a petition for review is missed in the interim. It is incumbent upon the practitioner to determine whether a proper cause of action would lie through petition for review or habeas corpus (if either), when first devising a strategy for a VAWA self-petitioner adjustment involving a prior removal.
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OPTIONS FOR CHILDREN UNDER THE VIOLENCE AGAINST WOMEN ACT

by Julie E. Dinnerstein *
Victims of abuse at the hands of parents 1 may seek relief under the Violence Against Women Act (VAWA) in the following three forms: (1) VAWA self-petitions under INA 204(a)(1)(A)(iii), (iv), (v) and (vi) (spouses and children of U.S. citizens) and INA 204(a)(1)(B)(ii), (iii), (iv) and (v) (spouses of lawful permanent residents (LPRs)), (2) battered spouse and child waivers under INA 216(c)(4)(C), and (3) VAWA cancellation under INA 240A(b)(2). They may apply either as self-petitioners or as derivatives. We consider some of the distinct options and pitfalls for victims of abuse at the hands of their parents with respect to each form of VAWA relief, and then turn to children as derivatives. VAWA SELF-PETITIONS Children of abusive U.S. citizen and LPR parents and step-parents (where the child-step-parent relationship was created before the childs 18th birthday) 2 may file VAWA self-petitions on terms relatively similar to those for victims of intimate partner violence. VAWA self-petitioning children, however, do face some distinct limitations: Children do not benefit from the VAWA bigamy exception, which allows victims of intimate partner violence who would have been lawfully married to their U.S. citizen or LPR abusers but for those U.S. citizens or LPRs bigamy to file VAWA self-petitions. Practically speaking, that puts children in the sometimes impossible position of having to establish the legal termination by death or divorce of their step-parents (and sometimes their own parents) prior marriages if either their step-parents or parents were previously married. 3 Children do not benefit from the VAWA divorce exception, which allows victims of intimate partner violence to file VAWA self-petitions within two years of divorce where the divorces are connected to the abuse. 4
Julie E. Dinnerstein serves as the co-director of the Immigration Intervention Project. Ms. Dinnerstein has worked at the NYC Family Justice CenterBrooklyn, the NYC Family Justice CenterQueens and the New York City Family Justice Center Bronx. She also teaches immigration law at the School of Professional Studies at the City University of New York (CUNY) and serves as a part-time career counselor at the Center for Public Interest Law at Columbia Law School. Ms. Dinnersteins previous experience includes serving as the deputy director for Immigration Advocacy and Training at the New York Immigration Coalition, the director of the Immigration Intervention Project at Sanctuary for Families, an associate at the law firm of Cleary, Gottlieb, Steen & Hamilton and a law clerk to the Honorable Jack B. Weinstein in the Eastern District of New York. She frequently trains and writes on domestic violence and immigration legal issues. She is a graduate of Columbia College and Columbia Law School and the recipient of Columbia Law Schools Public Interest Law Foundations 2005 Public Interest Achievement Award and an honoree at the 8th Annual AILA NY Chapter Immigration Law Symposium, December 8, 2005. 1 The term parent may refer to a biological parent, a step-parent, or an adoptive parent, assuming that the relevant conditions of INA 101(b) are met. 2 INA 101(b)(1)(B). 3 Compare INA 204(a)(1)(A)(iii)(II)(aa)(BB), -(cc), INA204(a)(1)(A)(v)(I), INA 204(a)(1)(B)(ii)((II)(aa)(BB), -(cc), and INA 204(a)(1)(B)(iv)(I) (allowing for victims of bigamous marriage to self-petition) with INA 204(a)(1)(A)(iv), INA204(a)(1)(A)(v)(I), INA 204(a)(1)(B)(iii), and INA 204(a)(1)(B)(iv)(I) (providing no such exceptions for children of abusive bigamous step-parents). 4 Compare INA 204(a)(1)(A)(iii)(II)(aa)(CC)(ccc) and INA 204(a)(1)(B)(ii)((II)(aa)(CC)(bbb) (allowing for victims of intimate partner violence to self-petition within two years of divorce) with INA 204(a)(1)(A)(iv), INA204(a)(1)(A)(v)(I), INA 204(a)(1)(B)(iii), and INA 204(a)(1)(B)(iv)(I) (providing no such exceptions for children whose parents have divorced their abusive step-parents).
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Children of abusive deceased U.S. citizens cannot, like widows of abusive U.S. citizens who have died within the prior two years, file VAWA self-petitions. 5 VAWA self-petitioning children also have some distinct advantages in applying for VAWA self-petitions: Adopted children may be considered children for VAWA self-petitioning purposes without needing to meet the two year residency and custody requirements, which otherwise apply to adopted children seeking recognition of their parent-child relationships for immigration purposes. 6 Children of abusive U.S. citizens (but not children of abusive LPRs) may satisfy the joint residence requirement of VAWA self-petitions through any period of visitation. 7 Children between ages 21 and 25 may file VAWA self-petitions on the same terms as if they were under 21, if the abuse was at least one central reason for the filing delay. 8 VAWA self-petitioners 21 and older who do not otherwise benefit from the Child Status Protection Act (CSPA) retain their priority dates, and petitions automatically convert to Preference Categories 1 (unmarried adult sons and daughters of U.S. citizens), 2B (unmarried adult sons and daughters of lawful permanent residents, and 3 (married adult sons and daughters of U.S. citizens). 9 These VAWA selfpetitioners are eligible for deferred action and work authorization. 10 BATTERED CHILD WAIVERS Conditional permanent residents who obtained their status as children may file battered child waivers based on abuse either to themselves or to their immigrant parents. 11 Based on the plain language of the statute, neither the age nor the marital status of the conditional resident at the time of filing the waiver petition is relevant. 12 VAWA CANCELLATION A noncitizen victim of domestic violence at the hands of an abusive U.S. citizen or LPR parent may file for VAWA cancellation in removal proceedings. 13 The broad language of the relevant statutory provisions allows for a range of noncitizen victims of parental violence to apply for VAWA cancellation. The noncitizen victim may be a child or an adult, unmarried or married. 14 The domestic violence may be ongoing, recent, or in the distant past. 15 The parent-child relationship may be ongoing, or may have ended through divorce,
Compare INA 204(a)(1)(A)(iii)(II)(aa)(CC)(aaa) (allowing widows of deceased U.S. citizen spouses to self-petition within two years of death) with INA 204(a)(1)(A)(iv) (providing no such exceptions for children whose abusive U.S. citizen parents have died). For children of deceased U.S. citizens and LPRs, it is worth reviewing INA 204(l), added by 568(d) of the Department of Homeland Security (DHS) Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 2142, to determine whether the children may be eligible for status as surviving relatives. More information about this relatively new statutory provision is available at U.S. Citizenship and Immigration Services Policy Memorandum re Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204 (l) of the Immigration and Nationality Act (Dec. 16, 2010). 6 See INA 101(b)(1)(E). 7 Compare INA 204(a)(1)(A)(iv) (allowing periods of visitation to satisfy the joint residence requirement) with INA 204(a)(1)(B)(iii) (providing no such exception for children of abusive LPR parents). 8 INA 204(a)(1)(D)(v). 9 See INA 204(a)(1)(D)(i)(I). 10 INA 204(a)(1)(D)(i) (II). 11 See INA 216(c)(4)(C). 12 See generally id. 13 See INA 240A(b)(2)(A)(i)(I) and (II). 14 See generally id. 15 See generally id.
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death, or termination of parental rights. 16 As long as the abuse occurred when the parent was a U.S. citizen or an LPR, the current status (or lack thereof) of the abusive parent is irrelevant. 17 Children granted VAWA cancellation, in contrast to children whose VAWA self-petitions or battered child waivers have been approved, may seek parole for their (presumably non-abusive) parents. 18 DERIVATIVE BENEFICIARIES When assessing options for a victim of intimate partner violence seeking immigration status, one should consider whether he or she has noncitizen children who may also seek immigration status and, if yes, whether the form of immigrant relief sought will include his or her children. Each of the three forms of VAWA reliefVAWA self-petitions under INA 204(a)(1)(A)(iii) (spouses of U.S. citizens) and INA 204(a)(1)(B)(ii) (spouses of LPRs), battered spouse waivers under INA 216(c)(4)(C), and VAWA cancellation under INA 240A(b)(2)treat derivatives differently. VAWA SELF-PETITIONS Children, as defined at INA 101(b), are automatically included in the VAWA self-petitions of their parents seeking VAWA self-petitions of their abusive spouses 19 and may apply for immigration status on the same basis and at the same time as their VAWA self-petitioning parents. See INA 204(a)(1)(A)(iii)(I) (spouses of U.S. citizens) and INA 204(a)(1)(B)(ii) (spouses of LPRs). Derivative children of VAWA self-petitioners are generally granted deferred action automatically on the approval of their parents VAWA self-petitions and may apply for employment authorization as deferred action grantees. 20 Derivative children of VAWA self-petitioners are protected by the CSPA 21 , on the same terms as other beneficiaries of family-based immigrant petitions. 22 In addition, derivative children of VAWA self-petitioners who are unable to benefit from the CSPA have additional age-out protections. From his or her 21st birthday, the derivative is eligible for deferred action and work authorization. 23 Furthermore, the derivative beneficiary, if not already an LPR, shall be considereda VAWA self-petitioner with the same priority date as that assigned to the petitioner. 24
See generally id. See generally id. 18 See INA 240A(b)(4)(A)(ii). 19 There is an exception for children of self-petitioning spouses of LPRs who have been classified under clause (iii) of section 203(a)(2)(A). INA 204(a)(1)(B)(ii). It is worth noting, however, that the current INA 203(a)(2)(A) does not have a clause (iii), so it is unclear what this exception could mean. 20 Oddly enough, the statutory language stating that a derivative beneficiary is eligible for deferred action and work authorization only relates to derivative beneficiaries who turn 21 before they are granted lawful permanent resident status. In practice, however, derivative beneficiaries are granted deferred action on the approval of their parents VAWA self-petitions and, pursuant to 8 CFR 274a.12(c)(14) become eligible to apply for employment authorization. This lack of statutory basis for employment authorization for derivative beneficiaries under 21 stands in contrast to the employment authorization granted by law to principal VAWA self-petitioners. INA 204(a)(1)(K). 21 Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002). 22 See 805(b) of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L 109-162, 119 Stat. 2960 (Jan. 5, 2006) codified at INA 201(f)(4), INA 203(h)(4), and INA 204(a)(1)(D)(iii). 23 INA 204(a)(1)(D)(i)(IV). As noted in a prior footnote, a grant of deferred action, which grant forms the basis of eligibility for employment authorization is, in practice, also granted to derivative beneficiaries under 21. 24 INA 204(a)(1)(D)(i)(III).
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BATTERED SPOUSE WAIVERS The statute relating to conditional resident status for those who become LPRs based on a marriage that is less than two years old is silent with respect to derivatives. 25 Similarly, the regulation relating to the adjudication of battered spouse (and child) waivers is also silent. 26 That said, there is a regulation relating to derivative children when it comes to jointly filed petitions. The provision in relevant part reads: Dependent children of a conditional permanent resident who acquired conditional permanent resident status concurrently with the parent may be included in the joint petition filed by the parent and the parents petitioning spouse. A child shall be deemed to have acquired conditional residence status concurrently with the parent if the childs residence was acquired on the same date or within 90 days thereafter. 27 While 8 CFR 216.4(a)(2) explicitly references the joint petition filed by the parent and the parents petitioning spouse, in practice, those filing battered spouse waivers where their children received conditional residence concurrently will have their derivative children automatically included in their petitions. VAWA CANCELLATION Derivative children are not included in VAWA cancellation applications. However, successful VAWA cancellation applicants may apply for parole for their children. Under INA240A(b)(4)(A), the Attorney General shall grant parole under section 212(d)(5) (emphasis added) to the children of a successful VAWA cancellation applicant. The word shall suggests that the parole benefit is a mandatory benefit. Unfortunately, the words shall grant parole are followed by the words under 212(d)(5). INA 212(d)(5), in turn, contains a high standard for parole. Specifically, with respect to non-refugee applicants, the standard is as follows: The Attorney General mayin his discretion parole [a noncitizen] into the United States temporarily under conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit. 28 In the experience of the author of this practice advisory, some U.S. Citizenship and Immigration Services (USCIS) adjudicators focus on the shall grant parole language of INA 240A(b)(4)(A), while others focus on the under section 212(d)(5) language and require an urgent humanitarian reason for the granting the parole application. In contrast to children who are petitioners for VAWA self-petitions, and battered spouse and child waivers, children granted relief pursuant to VAWA cancellation may seek parole for their parents on the same terms (described in the preceding paragraph) under which parents granted relief pursuant to VAWA cancellation may seek parole for their children. Where a parent or child is granted parole, the VAWA cancellation beneficiary must exercise due diligence in filing a visa petition 29 on behalf of the paroled family member. Assuming such due diligence is exercised, the paroled family members parole should be extended through that family members adjustment of status. 30
25 26
See generally INA 216. See 8 CFR 216.5. 27 8 CFR 216.4(a)(2). 28 INA 212(d)(5)(A). 29 INA 240A(b)(4)(B). 30 See id.
THE ABCS OF REPRESENTING UNACCOMPANIED CHILDREN

by A. Michelle Abarca, Deborah Lee, Kathleen Moccio, and Kristin Petri *
This article provides an overview for immigration attorneys representing unaccompanied children 1 as principal clients. Screening tools, legal relief options, and recent updates in immigration law will be addressed. You may come across unaccompanied childrens cases through a variety of ways. Maybe you are asked by your local AILA chapters pro bono committee chair to assist with a childs case. Or an immigration judge asks you to consider handling the case of a child in removal proceedings. Perhaps, a former client asks if you would assist his niece, who was recently released from immigration custody and is now living with him. The problem is that you have never represented a child as a principal client, other than in a family petition matter. While not completely exhaustive of all immigration relief options for unaccompanied children, 2 this article provides a basic road map for immigration attorneys 3 and encourages them to assist this extremely vulnerable population.
A. Michelle Abarca is a supervising attorney with Florida Immigrant Advocacy Centers (FIAC) Childrens Legal Project in Miami. Ms. Abarca represents immigrant children in immigration court, before the Department of Homeland Security, as well as those in the public child welfare system. She also engages in local, state, and national advocacy on behalf of immigrant children and youth and is a graduate of Northwestern University School of Law. Deborah Lee is a supervising attorney with FIACs Childrens Legal Project. Ms. Lee represents unaccompanied immigrant children and engages in local, state, and national advocacy on behalf of her clients. She is a graduate of Georgetown University Law Center and is co-chair of AILA South Florida Chapters Juvenile Pro Bono Committee. Kathleen Moccio is an attorney with the Office of Public Defense for Minnesotas Fourth Judicial District in Minneapolis and an adjunct professor in the law school at the University of St. Thomas. Ms. Moccio has been an active member of AILA for more than 20 years; having served in a variety of capacities at both local and national levels. She also served as chair, board of trustees of the American Immigration Council (formerly the American Immigration Law Foundation). Kristin Petri is the managing attorney of the Rocky Mountain Immigrant Advocacy Networks (RMIAN) Childrens Program in Westminster, CO. She became RMIANs Childrens Project Staff Attorney in 2005 under an Equal Justice Works fellowship. Ms. Petri received her J.D. from the University of Colorado in 2004 and has dual bachelor degrees in Political Science and International Studies from Kenyon College. Before studying law, Ms. Petri lived in Guadalajara, Mexico where she worked with abandoned street children seeking adoption or reunification with parents in the United States. 1 Throughout this article, the authors focus on those who arguably qualify under the definition for unaccompanied alien child (UAC), i.e., one who: (a) has no lawful immigration status in the United States; (b) has not attained 18 years of age; and (c) with respect to whom (i) there is no legal parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody. Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) sec. 235(g), citing Homeland Security Act of 2002 sec. 462. To avoid any reference to an individual as an alien, as well as current confusion regarding who qualifies as a UAC, the authors use the broader terms unaccompanied child(ren) and unaccompanied immigrant child(ren). 2 For example, this article will not discuss adoption and family petitions that may be filed on behalf of adopted unaccompanied children. 3 Fortunately, there are a growing number of resources throughout the country that provide technical assistance to those representing unaccompanied children in immigration cases. In addition to a local non-profit immigration legal service organization that may have a dedicated project assisting unaccompanied children, there are several nationally focused programs, such as Catholic Legal Immigration Network (CLINIC) (http://cliniclegal.org/pro-kids), Kids In Need of Defense (KIND) (www.supportkind.org), and U.S. Committee for Refugee and Immigrants (USCRI) (www.refugees.org/ourwork/child-migrants/about-ncric.html), who specialize in referrals, training, and mentorship of pro bono attorneys assisting these children.
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BACKGROUND: WHO ARE THESE UNACCOMPANIED CHILDREN? Every year, thousands of undocumented immigrant children enter the United States without a parent or legal guardian. 4 The majority cross the U.S.-Mexico border by foot, which is often a long traumatic journey. Many are smuggled into the country by adults, brought here to be reunited with parents or relatives, or serve illicit purposes. Many children are apprehended by Department of Homeland Security (DHS) officials soon after entering the United States, 5 but others arrive undetected and remain living with family, friends, or relatives for many years. DHS is required to transfer custody of unaccompanied children it apprehends to the Department of Health and Human Services Office of Refugee Resettlement (ORR) within 72 hours of apprehension. 6 As with adult immigrants it detains, DHS will generally initiate removal proceedings before the Executive Office for Immigration Review (EOIR) against the child. ORRs Division of Unaccompanied Childrens Services (DUCS) maintains the care and custody of these children. 7 DUCS subcontracts with childrens shelters throughout the country to house these children. One of the primary goals of the shelter staff is to reunify children with family or other responsible caregivers in the United States. 8 Most children are released from ORR custody to adult relatives or sponsors with whom they can reside while their immigration proceedings are pending. 9 It is important to note that ORR/DUCS is not a judicial entity capable of establishing or transferring legal custody to these sponsors. 10 In many jurisdictions, EOIR has developed special juvenile dockets with designated Immigration Judges who hear these childrens cases and know the many nuances of ORR/DUCS custody, 11 as well as the childrens vulnerabilities. Because court practices vary around the country, the practitioner may want to contact a local non-governmental organization (NGO) or experienced practitioner who may be able to provide some guidance with regard to these special juvenile dockets. UNACCOMPANIED CHILDREN AND RECENT CHANGES IN IMMIGRATION LAW Whether or not a child client is legally considered an unaccompanied alien child (UAC) may determine different immigration legal relief options available. Section 235 of the William Wilberforce Trafficking
See generally C. Haddal, Unaccompanied Alien Children: Policies and Issues. Congressional Research Service (CRS) Report for Congress, Jan. 15, 2009; see also Womens Refugee Commission. Halfway Home: Unaccompanied Children in Immigration Custody. Feb. 2009; see also O. Byrne. Unaccompanied Children in the United States: A Literature Review. Vera Institute for Justice, Apr. 2008 (from 2005 to 2008, the number of unaccompanied minors in U.S. immigration detention annually has ranged from approximately 7,000 to 9,000). 5 See Office of Refugee Resettlement, Division of Unaccompanied Childrens Services, DHS, UAC Apprehensions placed in ORR/DUCS care, FY2009 by State, available at www.acf.hhs.gov/programs/orr/programs/FY2009UAC_Apprehen sionsMap.pdf. 6 TVPRA sec. 235(b) 7 See TVPRA sec. 235(b)(1); see generally Homeland Security Act of 2002 sec. 462. 8 See Homeland Security Act of 2002 sec. 462 (b); see also U.S. Department of Health and Human Services, Administration for Children and Families, www.acf.hhs.gov/programs/orr/programs/unaccompanied_alien_children.htm. 9 While interviewing the client and investigating the facts of the case, it is important for the immigration attorney to determine if the child has ever been apprehended and placed in Office of Refugee Resettlement (ORR) custody. If the child has been in ORR custody, it is good practice to obtain a copy of the childs file with the ORR, which can provide valuable information regarding the childs background, immigration history, as well as medical and other useful information. In order to obtain a copy of a childs ORR records, the attorney must submit a written request accompanied by a signed release of information and a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, to: requests.ducs@ACF.hhs.gov. Unfortunately, in some cases, the child may already have been ordered removed in absentia by the time an attorney is consulted. In these situations, it is critical to review the Executive Office for Immigration Review (EOIR) record of proceedings and submit a Freedom of Information Act (FOIA) request to DHS. 10 See e.g., Fl. Stat. 39.091(34); Cal. Prob. Code 2102, 2200 (discussing judicial authority to establish a legal guardianship). 11 In 2010, the EOIR began a new initiative to assist those sponsors who are providing care to unaccompanied children postORR custody. See generally Department of Justice (DOJ), www.justice.gov/eoir/press/2010/RecentInitiativesforLOP1 0042010.htm.
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Victims Protection Reauthorization Act of 2008 (TVPRA) 12 re-established the federal definition of a UAC, but also created several significant procedural and substantive protections for this recognized vulnerable population, 13 including, but not limited to: eligibility for Voluntary Departure pursuant to INA 240B, at no cost to the child; 14 eligibility for initial consideration of asylum claims before a U.S. Citizenship and Immigration Services (USCIS) Asylum Office, including for those filed in defense to removal proceedings; 15 exemption from one-year filing deadline for asylum claims; 16 broadening and clarification of the definition of Special Immigrant Juvenile Status (SIJS), a humanitarianbased visa protection and pathway to legal permanent residency for certain vulnerable immigrant children; 17 expeditious adjudication of SIJS petitions; 18 expansion of specifically waived grounds of inadmissibility for Special Immigrant Juveniles seeking adjustment of status; 19 and eligibility for Unaccompanied Refugee Minor Program long-term placement and social services for those granted Special Immigrant Juvenile Status while in ORR custody. 20 Considering the significant options available to UACs, an attorney representing a child client should always determine whether the client may be considered a UAC. A childs living circumstances or relationship with his or her family may be dynamic, so the child may fall both within and outside the UAC definition while present in the United States. 21 Given this fluidity, as well as inconsistencies in practice by DHS and EOIR, legal advocates believe that the UAC definition itself is too vague and impractical, 22 and that the status, once attached, should remain with a child during the pendency of his or her immigration case.
See TVPRA sec. 235. For an overview of TVPRA changes, please see D. Lee, M. Govindaiah, A. Morrison, and D. Thronson, Legal Relief Options for Unaccompanied Alien Children: Update Since the Enactment of the 2008 Trafficking Victims Protection Reauthorization Act, published on AILA InfoNet at Doc. No. 090221830 (posted Feb. 21 2009). 13 Please note that the TVPRA designated special rules for treatment of children from contiguous countries, including Mexico. These children have much more limited rights. See TVPRA 235(a)(2). 14 TVPRA sec. 235(a)(5)(D). 15 INA 208(b)(3)(C). 16 INA 208(a)(2)(E). 17 INA 101(a)(27)(J). 18 TVPRA sec. 235(d)(2). 19 INA 245(h)(2). 20 TVPRA sec. 235(d)(4)(A). 21 For example, a child may be apprehended by DHS and, because she is alone or with an unrelated adult, may be considered a UAC and transferred to ORR custody. While in ORR custody, the child may be placed in removal proceedings before EOIR and file an asylum application before USCIS. ORR may then locate family members, including a parent within the United States and ultimately release the child to the parent. If that same child waited to submit a Form I-589, Application for Asylum and Withholding of Removal, until after he or she had been reunited with family, then she would need to file a Form I-589 with EOIR. In another example of confusion regarding UAC designation, a child may have been living with a parent in the United States but, due to abuse by this parents paramour, the child lives with an adult friend nearby. This friend may have no legal obligation or relationship to the child. It is unclear if DHS (or EOIR) would consistently determine that the child is a UAC. 22 Questions frequently arise about whether a parent or legal guardian is available simply because he or she is residing in the United States. An undocumented parent who comes forward to assume custody of his child from ORR will likely be placed in removal proceedings himself, which unfortunately can be a perverse disincentive for doing so. Furthermore, a parent may be in the United States, but the child may be cared for by another adult and have a tenuous relationship with his or her own parent. In the absence of regulations, practice in this area is inconsistent and has caused confusion. Clarification is needed regarding when the UAC status, along with its benefits, attaches and for how long.
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SCREENING FOR IMMIGRATION RELIEF: A MORE CHALLENGING TASK WITH CHILD CLIENTS Screening an unaccompanied child for immigration relief can be a challenging task. The process of applying for relief in an adversarial court proceeding can be overwhelming for an adult, let alone an unaccompanied child. A child may lack the intellectual maturity to understand legal proceedings or communicate his or her desires in a definitive, adult-like manner. Furthermore, a child may be easily discouraged by the legal proceedings and prolonged uncertainty regarding his or her immigration case. Creating a safe and private environment in which the child or adolescent may speak freely is crucial to ensure effective screening and representation. Your young client may not understand what an attorney does, what attorney-client privilege is, what your motivations are, or how you may be able to assist him or her. Be patient in eliciting the narrative and allow the child to tell his or her own story. To avoid re-traumatizing the child, seek the assistance of an appropriate therapist or mental health professional. It is important to elicit as much information as possible about the childs family life because the childs relationship with his or her family may be critical to eligibility for immigration relief. Be aware that the child may minimize 23 or be reluctant to report critical information regarding his or her family or the trauma he or she has experienced. 24 Moreover, a child may not realize the legal significance of facts. 25 Below are some key considerations that may help an immigration attorney in the effective representation of a minor child: 26 Avoid legal terms and abstract concepts. Speak clearly and concisely. Questions and sentences should be tailored to the childs age, stage of language, development, background, and level of sophistication. Avoid long or compound questions. Explain to the child your role and purpose. 27 Tell the child about the attorney-client privilege and what protections it provides to him or her. 28 Ensure that the child understands his or her rights and the nature of the proceeding. Encourage the childs participation in the process. 29
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For example, a child may simply explain that he or she came to the United States to work and conceal information about his or her role as the familys primary breadwinner. Also, the childs parents might have forced him or her to work at a very young age. 24 A child may be reluctant to disclose critical information for several reasons, including shame, legal misinformation from others, including family members and friends, or fear of retaliation against family members by immigration or other law enforcement authorities. 25 For example, a child may not understand legal definitions of abuse, abandonment, or neglect and, thus, may not readily answer yes or no when simply asked, Have you ever been abused, abandoned or neglected? 26 See generally American Bar Association, Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States 1114 (2004), available at www.americanbar.org/ content/dam/aba/migrated/publicserv/immigration/Immigrant_Childrens_Standards.authcheckdam.pdf. 27 Beware of potential for conflicts of interest, especially when an adult has retained legal services on a childs behalf. An adult relative or caregiver may have similar expectations and goals to the child client, but that is not always the case. Also, the adult may feel entitled to speak on the childs behalf. Understand who your client is and appropriately manage expectations, as well as confidentiality obligations. 28 Often times, an immigration attorney for a child may interact with various individuals regarding the child client, including a case worker, guardian ad litem, defense attorney, therapist, family, or other adults. Be clear with your client and the other adults working with your client about the special nature of the attorney-client relationship. Obtain informed consent from your client for every service provider and be specific about limits to releases. Revisit the concept of confidentiality with your client as needed. Also, be sure you understand and respect the special relationships other service providers have with the client. Be aware that while it may be easier to simply work around the child by gathering what you need from members of a service team, this could undermine your attorney-client relationship and otherwise result in a sense of disempowerment and loss of agency on the part of the child. 29 Try to explain immigration law to the child client in terms he or she will understand, without minimizing difficult risks and realities of the case. Explain options for relief available to a child multiple times and ways. Instead of asking a child client
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Explain why the child may be questioned repeatedly about the same matter by different individuals. Do not expect children to be immediately forthcoming about painful events. Children cannot be expected to present testimony with the same degree of precision as adults. U.S. CITIZENSHIP AS IMMIGRATION RELIEF? Brief mention here is worthwhile regarding screening a child client for United States citizenship, the best, 30 31 32 albeit rare, form of immigration relief. Children may acquire, derive, or be found to possess U.S. citizenship automatically by operation of law, often times without knowing it. While obtaining documentation may prove difficult, particularly for a child who has voluntarily or been forcibly separated from his or her family, establishing a U.S. citizenship claim will provide life-long protection for the child against removal from the United States. SPECIAL IMMIGRANT JUVENILE STATUS FOR UACS The most common form of immigration relief for unaccompanied children is SIJS, which may be pursued affirmatively or defensively, i.e., after removal proceedings have been commenced against the child. Generally, a Special Immigrant Juvenile (SIJ) is an immigrant present within the United States: (1) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrants parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; (2) for whom it has been determined in administrative or judicial proceedings that it would not be in the aliens best interest to be returned to the aliens or parents previous country of nationality or country of last habitual residence; and (3) in whose case the Secretary of Homeland Security consents to the grant of the 33 34 Special Immigrant Juvenile status. Once granted SIJS, one is deemed paroled into the United States. Somewhat similar to protections for domestic violence victims under the Violence Against Women Act (VAWA), SIJS is a humanitarian-based visa status for certain vulnerable youth. It provides immediate eligibility for lawful permanent residency. It is important to note that SIJS is not a generalized protection for any child who is at risk of removal from the United States. Instead, it is a specialized protection for certain children for whom a State or juvenile court has intervened and made specific findings regarding the childs welfare. The process for a SIJS case is generally: 35
whether he or she has any questions or understands what you have said, ask him or her specific questions designed to elicit his or her level of understanding of the case and ask him or her to reiterate what he or she understands to be the next steps and possible outcomes of the case. This will alert you to possible misunderstandings and areas that are in need of further clarification. 30 Whether a foreign-born child acquires citizenship at birth will turn on his or her date of birth, whether the persons parents were married when he or she was born, whether one or both was a U.S. citizen already at the time of the childs birth, and how long and at what age(s) the citizen parent(s) resided in the United States prior to the childs birth. See INA 301(g). 31 Citizenship derivation generally occurs when a child is already a lawful permanent resident, under the age of 18, unmarried, and living in the physical and legal custody of his or her U.S. citizen parent(s). See INA 320(a). An LPR child adopted before she turns 16 by a U.S. citizen who completes two years in the legal and physical custody of the adoptive citizen parent before she turns 18 also will derive U.S. citizenship. See INA 320(b). 32 Citizenship may be established for a child of unknown parentage, found in the United States. before he or she turns 5 years of age, for whom a foreign birth is not established prior to the child attaining 21 years of age. See INA 301(f). Cases satisfying this so-called founding statute are rare, but should be considered by attorneys. 33 INA 101(a)(27)(J). Additional subsections of this SIJ definition discuss the rare situations in which a juvenile court may request to transfer the custody status or placement of a child from ORR custody, as well as a parents preclusion from obtaining immigration benefits through the SIJS. 34 See INA 245(h)(1). 35 For a good, detailed description of the SIJS application process, please see J. Flanagans Special Immigrant Juvenile Status: One Year After TVPRA, AILAs Immigration Practice Pointers, (AILA 2010-2011 Ed.) (published in conjunction with
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Pursuant to state law and procedures, a state or local juvenile court assumes jurisdiction over the youth. This may occur through a petition for the childs protection made by a proposed legal guardian, next best friend, or a state agency dedicated to ensuring a childs welfare. Generally upon request by a party on the childs behalf, the state or juvenile court issues a consolidated order that summarizes the childs lack of reunification options, 36 as well as the determination that it is not in the childs best interest to be returned to her or her parents home country. This is often called a Best Interest Order or a Special Interest Order. 37 Along with a copy of this Best Interest Order and the childs birth certificate, 38 the immigration attorney applies for SIJS using a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and mails the application to the USCIS Chicago lockbox. SIJs are immediately eligible to apply for lawful permanent residency in the United States. However, because EOIR has exclusive jurisdiction over generally all applications for adjustment of status for respondents in removal proceedings, 39 SIJ petitioners in removal proceedings (or with prior removal orders) may not pursue adjustment of status concurrently with their SIJS petition. Local USCIS offices adjudicate the Form I-360 usually after an interview. 40 USCIS has the authority to waive the interview for children under the age of 14, or when it is deemed unnecessary. 41 USCIS offices around the country have different practices regarding interviews and, in many jurisdictions, interviews are routinely scheduled for children of all ages, except in exceptional circumstances. If the SIJ applicant is not in removal proceedings, or has no prior removal order, then the immigration attorney may concurrently submit to USCIS a Form I-485, the application for adjustment of status, as well as a Form I-765, the application for employment authorization. As a general matter, if the SIJ applicant is also in removal proceedings or has a prior removal order, the immigration attorney must terminate proceedings with EOIR before submitting the Forms I-485 and I765 with USCIS. Alternatively, the SIJS applicant may proceed with the Form I-485 before the immigration court after USCIS has approved the Form I-360. 42 TVPRA CHANGES TO SIJ DEFINITION AND ELIGIBILITY The TVPRA expanded certain benefits for children seeking SIJS. 43 It eliminated pre-existing language regarding being eligible for long-term foster care. It is now clear that a child does not need to be in a foster home to qualify for SIJS. 44 Also, the TVPRA expanded the SIJ definition to allow for a juvenile court to
AILAs 2010 Annual Conference). 36 The non-viability of reunification with one or both parents must be due to abuse, abandonment, neglect, or some other similar basis under state law. See INA 101(a)(27)(J). 37 Samples of such orders are on file with the authors. 38 Or other evidence of age, such as a passport. See USCIS, Instructions for Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, available at www.uscis.gov/files/form/i-360instr.pdf. 39 See 8 CFR 1245.2(a)(1)(i). 40 As a general matter, USCIS does not have the authority to re-adjudicate the state courts findings regarding the childs eligibility for state court protection and dependency. See USCIS Interoffice Memorandum from D. Neufeld, Mar. 24, 2009, available at www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf. USCISs interview of a child regarding his or her filed I-360 should not be adversarial in nature and any inappropriate questioning of a child should be followed-up with a formal complaint to the USCIS field office director. 41 See id. 42 Given different practices throughout the country, the authors encourage immigration attorneys for unaccompanied children to consult a nonprofit immigration legal service organization in their region that may have a dedicated project assisting unaccompanied children and may be able to advise on the most efficient handling of a childs case in removal proceedings. 43 See generally INA 101(a)(27)(J), 245(h), and TVPRA sec. 235. 44 See INA 101(a)(27)(J)(i).
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consider whether family reunification with one or both of the childs parents is viable. 45 Further, the state or juvenile court now must find family reunification is not an option due to abuse, abandonment, neglect, or a similar basis under state law. 46 The TVPRA also established age-out protections for SIJ applicants, so long as they were eligible when they applied. 47 Importantly, while the SIJS statute has been amended by the TVPRA, corresponding regulations have yet to be issued since the passage of the TVPRA, and thus, to some extent, the statute and regulations are at odds. 48 CAUTIONARY NOTE FOR SIJ CASES: CRIMINAL INADMISSIBILITY CONCERNS In order for a SIJ to adjust his or her status to that of a lawful permanent resident, he or she must be admissible under INA 245(h). While certain grounds of inadmissibility are automatically waived and do not require submission of a separate waiver application, 49 a SIJs criminal history may render him or her ineligible for adjustment of status and negate the wisdom of pursuing SIJS altogether. 50 While juvenile delinquency adjudications are not convictions for immigration purposes, 51 increasingly many states are prosecuting juveniles in adult criminal court, resulting in juveniles with adult criminal convictions. 52 And even if there is no adult criminal conviction, certain other conduct-based grounds of inadmissibility should be examined before proceeding with a SIJS case. Information that provides DHS with a reason to believe the child has been involved in drug trafficking is extremely problematic and will likely preclude the child from relief. Since waivable grounds of inadmissibility must depend on a favorable exercise of discretion, the childs record also needs to be carefully reviewed for information that may trigger a negative exercise of discretion. For example, information about the childs involvement in gang activity may be very problematic. 53 Caution should be exercised in deciding whether to pursue such SIJS cases. The childs attorney may need to provide context, 54 demonstrate rehabilitation, and otherwise bolster the equities of the SIJS case. 55 ASYLUM FOR UACS A growing number of children are seeking asylum and related protections in the United States, not merely 56 as dependents or derivatives, but in their own right, based on having suffered past persecution or fearing
45 46 47
See id. See id.
See TVPRA sec. 235(d)(6); see also Signed Settlement Agreement, Perez-Olano, et al. v. Holder, et al., 248 F.R.D. 248 (C.D.Cal. Jan. 8, 2008) (on file with authors). 48 See e.g., 8 CFR 204.11(a) and (c)(4)(5). 49 See INA 245(h)(2) (exempting Special Immigrant Juveniles from certain grounds of inadmissibility and provides a waiver for other grounds of inadmissibility, except those related to crimes and security found in INA 212(a)(2)(A)(C) and INA 212(a)(3)(A)(C) and (E)). 50 This is especially the case for those who are affirmatively applying for SIJS and not otherwise detected by immigration authorities. 51 See Matter of Devison, 22 I&N Dec. 1362 (BIA 2000); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981). 52 Some jurisdictions have a hybrid adjudication in which the child receives a juvenile sentence and an adult sentence that is held in abeyance unless the juvenile sentence is not completed. See e.g., Minn. St. 260B.25; In Re: Juan Miguel ParedesSoto, File: A26517521-Bloomington, MN, 2007 WL 2825104 (BIA) (in an unpublished decision reviewing Minnesotas extended juvenile jurisdiction statute, the BIA held that a child was convicted for immigration purposes). 53 Other examples of potentially problematic cases for discretion include those involving a history of aggressive behavior or sexually-based offenses. 54 As some communities use extremely broad measures to identify potential gang members, it may be helpful for the childs attorney to provide additional context to DHS. Also, it may be persuasive to describe the circumstances in which the child was living at the time, e.g., the child was homeless, living with anyone who would provide shelter and protection, or was coerced into remaining in a questionable situation. 55 Letters from social workers, teachers, probation officers, juvenile court judges, and mentors may be especially persuasive. 56 USCIS Memorandum, Guidelines for Childrens Asylum Claims, Office of International Affairs (120/11.26), reprinted in
continued
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future persecution on account of their race, nationality, religious beliefs, political opinions, and perhaps primarily, their membership in a particular social group. While an exhaustive exploration of the state of 57 substantive asylum law is beyond the scope of this article, certain trends are worth noting when handling potential asylum claims for unaccompanied children: Recent domestic violence-related asylum cases 58 may be helpful in considering claims for certain child clients. Particular social groups defined by the childs nuclear family, lack of parental protection, orphan status, or some related combination of these may be persuasive for child abuse victim clients. Although the Board of Immigration Appeals (BIA) has found that past gang membership and forced gang recruitment cannot constitute a basis for establishing a particular social group on narrow social visibility and particularity analyses, 59 so-called gang-based asylum cases do occasionally succeed when persecution is also suffered on account of membership in a different particular social group, such as family, or a different protected ground entirely, such as political opinion or religious belief. Given the complex nature of these cases, the authors strongly encourage attorneys for children with these claims to consult with experts in the field. 60 TVPRA CHANGES TO ASYLUM PROCEDURES FOR UACS The TVPRA created significant procedural protections and accommodations that now apply to UACs seeking asylum, 61 including exempting UACs from both the one-year filing deadline and the standard safe third-country limitation on asylum. 62 The USCIS Asylum Office now has initial jurisdiction over any asylum application submitted by a UAC, including those already in removal proceedings, affording all UACs the opportunity to first have their claim reviewed in a non-adversarial, less formal setting. 63 Finally, the TVPRA also instructs that UACs seeking asylum or any other form of relief should be treated with special consideration of the childs developmental status and needs and that regulations shall be promulgated to govern both the procedural and substantive aspects of adjudicating UAC asylum claims. 64 T AND U VISA RELIEF FOR UACS Children may also be eligible for other humanitarian-based protections based on their status as victims of trafficking or certain serious crimes. This article will not provide in-depth descriptions of the application
76 No. 1 Interpreter Releases 1, 534 (January 1999); see also EOIR Memorandum, Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, (May 2007), published on AILA InfoNet at Doc. No. 07052360 (posted May 23, 2007); United Nations High Commissioner for Refugees, Guidelines on Policies and Procedures in dealing with Unaccompanied Minors Seeking Asylum (Feb. 1997). 57 A wonderful substantive overview of childrens asylum claims may be found in the Immigrant Legal Resource Centers (ILRC) manual titled Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth, 3rd Edition, by A. Junck, S. Kinoshita and with K. Jackson and H. Lawrence. This resource is available online at www.ilrc.org. Another great resource is University of California-Hastings Center for Gender and Refugee Studies (http://cgrs.uchastings.edu/). 58 See UC-Hastings Center for Gender and Refugee Studiess website for in-depth information, including DHS-filed briefs with helpful language in Matter of R.A. (2004) and Matter of L.R. (2009), recent domestic violence-related asylum grants. 59 See e.g., Matter of EAG, 24 I&N Dec. 591 (BIA 2008), Matter of SEG, 24 I&N Dec. 579 (BIA 2008). 60 AILA, Gang-Based Asylum Applications, published on AILA InfoNet at Doc. No. 10051381 (posted Sept. 17, 2010). 61 If a child pursues asylum as well as SIJS, it is generally a good idea to inform the USCIS Asylum Office about a pending I360, and to tell local USCIS adjudicating an I-360 that there is a pending asylum application. USCIS has generally indicated a willingness to work with attorneys representing a child applying for both SIJS and asylum, sometimes continuing an interview to allow time for an SIJS I-360 to be adjudicated. This should not be presumed, though. Attorneys should also take timing into account when considering the nature of relief to pursue. 62 See INA 208(a)(2)(E). See generally USCIS Asylum Division, Guidelines for Childrens Asylum Claims, AOBTC Lesson Plan (Mar. 21, 2009), available at www.uscis.gov/files/article/AOBTC_Lesson_29_Guidelines_for_Childrens_Asylum_ Claims.pdf. 63 See INA 208(b)(3)(C). 64 See TVPRA sec. 235(d)(8). As of this writing, USCIS has not indicated when draft regulations might become available for public review and comment.
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process of T and U visas, but attorneys should be mindful of screening for these more rare forms of immigration relief. T visas are humanitarian protections made available to children, as well as adults, who are victims of trafficking. 65 For children, trafficking includes not only sex trafficking in which a child engages in commercial sex acts, but also labor trafficking where a child may be forced, defrauded, or coerced into involuntary servitude, peonage, debt bondage, or slavery. 66 While a child under 18 years of age is not required to cooperate with law enforcement, legal advocates often find that such cooperation may practically be necessary to obtain temporary legal status known as continued presence, certification for access to certain public benefits and, ultimately, the T visa itself. An attorney for a child who may be a victim of human trafficking should be aware that screening for trafficking is quite difficult. A child victim may not readily identify that he or she was victimized, particularly when the child may have been desperate to earn money to survive or help family members. Initial voluntary participation or receipt of income may lead the child to believe that the work situation was not fundamentally illegal or in violation of his or her rights. Once granted a T visa, the child may legally work, 67 receive public benefits to the same extent as refugees, 68 apply for certain family members as T visa derivatives, 69 and will be eligible for adjustment of status after three years. 70 U visas are humanitarian-based visas for children and adults who are victims of certain serious crimes. 71 A child may be the principal victim when applying for the U visa, but may also be eligible for a U visa as a derivative of a parent or a sibling. In addition, for children under the age of 16 years old, a parent, guardian, or next friend may provide assistance and possess information, instead of the child. 72 Similar to T visas, once granted U visa status, the child may legally work, 73 apply for certain family members as derivatives, 74 and seek adjustment of status after three years. 75 As children may not recognize that a crime has been committed against them or know how to report such a crime, many childrens legal advocates believe that U visa relief is infrequently pursued. This may especially be the case for UACs whowithout the protection of a parent, legal guardian, or stable family supportmay be victimized more disproportionately than other children. CONCLUDING THOUGHTS Given the complexity in screening for immigration relief, as well as preparing and presenting a substantive case on behalf of a child client, representing a UAC can be a daunting task. However, the benefit of helping a vulnerable childwithout traditional parental supportobtain safety and lawful status in the United States can provide tremendous personal gratification. The authors commend attorneys who represent UACs and encourage them to continue assisting these very vulnerable children.
See INA 101(a)(15)(T); see also 22 USC 7102. See INA 101(a)(15)(T); see also 22 USC 7102. 67 See INA 101(i)(2); see also 8 CFR 214.11(l)(4). 68 See New Classification for Victims of Severe Forms of Trafficking in Persons, 67 Fed. Reg. 4784, 4785 (Jan. 31, 2002). 69 See INA 101(a)(15)(T)(ii). 70 See INA 245(l). 71 To be eligible for a U-visa, one must: (a) have suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity; (b) possess credible and reliable information establishing that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based; (c) have been helpful, is being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity; and (d) the qualifying criminal activity occurred in the United States, its territories or possessions, or violated a U.S. federal law that provides for extraterritorial jurisdiction. INA 101(a)(15)(U). 72 See INA 101(a)(15)(U)(i)(II) and (III). 73 See INA 214(p)(6). 74 See INA 101(a)(15)(U)(ii). 75 See INA 245(m); see also 8 CFR 245.24.
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PRACTICE POINTERS FOR U AND T VISAS

by Karl Krooth, Sheila Neville, and Sheila Stuhlman *
Even though U and T visas have been in existence for a few years, they are still a developing area of immigration law and they have become some of the best options immigration attorneys have to assist their clients. Because of the underlying basis for these visas, they often present very sensitive issues that practitioners must handle with caution and care. This article assumes a working knowledge of these visas; each section below will address a particular issue without necessarily referring to the general requirements of the visas. Where possible, the topic is explained in each section through a case study to illustrate how the practices described can be applied practically. PROTECTING U VISA CLIENT FILES As immigration practitioners, we are used to keeping client information confidential, but we are rarely tested on the bounds of attorneyclient privileged communications and work-product doctrine. Our U visa cases require us to be more on top of these issues because, unlike most of our other immigration cases, U visa clients are almost always involved in some kind of litigation. Usually the litigation is the criminal case in which they are the victim but it could also be an employment law case, contested protective order, or contested custody hearing involving an abuser. Taking a few extra steps at the beginning of representation can help prepare our clients and ease our pain in responding to a subpoena. A couple of years ago a potential client contacted our office for immigration advice after being referred to us by her employment law attorney. At the time she was pursuing a civil action in federal court for wrongful termination and sexual assault and battery against her employer and supervisor. Her husband brought her to the consultation appointment at our office but we asked him to wait in the waiting room. During the interview we advised her that she might be eligible for a U visa based on the rapes at work or on a number of domestic assaults involving her husband. With our help, she was granted U nonimmigrant status based on her helpfulness to law enforcement in the investigation of the workplace rapes. Because the certification was based on the rapes at work and not on the domestic violence where the husband was the perpetrator, he could have been a derivative on the U visa application. We decided early on, however, that potential conflicts would prevent us from representing her husband as a derivative, so he was never our client. After approval, we happily closed her case with a positive outcome. Much to our horror, several months later we received a subpoena from the defendant in the employment law case for all our records and communications relating to our representation of the client in her U visa case. Our initial reaction was shock; we had not heard of this happening and we thought everything was protected by attorneyclient privilege. Of course, most of the documents were not protected by the work-product doctrine as we assumed. An extra issue turned out to be
Karl Krooth represents crime victims with criminal records, complementing his post-conviction practice. Prior to embracing this work for Immigrant Crime and Justice APLC, Mr. Krooth gained practical experience first prosecuting, and then conducting criminal defense. He has served on the AILA Northern California Advisory Council for several years, and also served on the local board of the National Lawyers Guild (NLG) subsequent to two years as local chair of NLGs Immigration Committee. SuperLawyers has recognized Mr. Krooth as a Rising Star. He has a B.A. from University of California, Berkeley, and a J.D. from the Northwestern School of Law of Lewis and Clark College. Sheila Neville is a senior attorney at the Legal Aid Foundation of Los Angeles (LAFLA). She represents survivors of trafficking, domestic violence, and other crimes in their immigration and public benefits cases. Ms. Neville also provides training and technical assistance to pro bono attorneys representing immigrant survivors. Before returning to LAFLA in 2002, she worked for the National Immigration Law Center, LAFLAs Immigrants Rights Office, and the Haitian Refugee Center in Miami. Sheila Stuhlman is a senior staff attorney at the Immigrant Law Center of Minnesota. Her primary duties are to provide training and technical assistance to Minnesotas public defenders but she also represents clients in front of U.S. Citizenship and Immigration Services and the Executive Office for Immigration Review. She is a member of AILA and the National Immigration Project of the National Lawyers Guild. Sheila is a 2000 graduate of the University of Minnesota Law School and admitted to practice in the Minnesota State Bar, Minnesota Federal District Court, and the Eighth Circuit Court of Appeals.
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that the confidentiality of the communications and advice were in question because an accredited representative, not an attorney, had helped her. Since this experience, we have institutionalized a few practices to help our clients and ourselves. Meet Only with Those Necessary to the Representation of the Client; Note with Whom You Met and Why; Use Confidentiality Agreements Generally speaking, the attorneyclient privilege applies to confidential communications between individuals and attorneys for the purposes of obtaining or rendering legal advice. 1 Luckily for us, the case notes indicated that the clients husband had accompanied her to the interview but that we had asked him to wait for her in the waiting room. Because the party asserting the privilege has the burden to show that it applies, 2 our legal counsel had to produce a privilege log in accordance with Federal Rule of Civil Procedure 45(d)(2)(A) to describe the nature of withheld documents and communications so that the court could assess whether the privilege applied. Our case notes helped us defend withholding certain documents and to show that the communications were indeed confidential because we had taken steps to preserve the privilege. As lawyers at a nonprofit, we seem especially susceptible to helpful third parties who may in fact break attorneyclient privilege. Many of our U visa referrals come from domestic abuse shelters and crime victim advocates who will accompany the client to meetings at our office. It is our practice to meet alone with the client, to explain confidentiality and attorneyclient privilege, and then ask if they still want someone else to join us as we discuss the case. Of course, not all third-party participation will break the privilege. The attorneyclient privilege is not waived when people with a common interest in the subject matter of the communication, such as joint defendants in a lawsuit, consult the attorney together. 3 Also, the presence of a third party necessary to the rendering of legal advice with not break the privilege. Whether a third party is truly necessary is decided on a case-by-case basis. For example, an interpreter will not usually destroy the privilege 4 and in fact a translator analogy is sometimes used by courts to decide whether the third party in question is necessary to the understanding and rendering of legal advice. 5 In contrast, someone present only for moral support will break the privilege. 6 We need to be prepared to defend why the presence of the third party did not break the privilege; thus, case notes about why a counselor or translator was necessary to the representation are crucial. Furthermore, it is our duty to make sure third parties, such as interpreters, understand the duty of confidentiality. That is why we have both professional and volunteer interpreters sign a confidentiality agreement. Fear of inadvertently breaking the attorneyclient privilege should not keep us from consulting with third parties or using their letters of support. To the contrary, national experts argue that the Model Rule of Professional Conduct 1.1 (competence) requires us to involve a domestic violence advocate or sexual assault advocate when a client needs help preparing a substantial harm declaration. Few of us are trained in working with victims and poorly prepared declarations can constitute ineffective assistance of counsel. Associating ourselves with professionals trained in working with victims will ensure the best possible representation. These professionals can also assist with safety planning, a skill most of us do not possess but that is of paramount importance to the client. Some states have domestic violence or sexual assault advocatevictim privilege statutes, but some do not. If you are not sure of the advocatevictim privilege in your state, an overview can be found at www.rainn.org/print/439. Nevertheless, to safeguard the attorneyclient privilege and confidential communications, it would be a good idea to explain what is needed to the client and then have the client work directly with the advocate instead of communicating directly with the advocate (even though it may be easier and may be what the client prefers) so we do not inadvertently waive the privilege.
1 2
Upjohn v. United States, 449 U.S. 383, 39495 (1981). See Triple Five of Minnesota, Inc. v. Simon, 212 F.R.D. 523, 528 (D. Minn. 2002) 3 See Sandoval v. American Bldg. Maintenance Industries, Inc., 267 F.R.D. 257, 273 (D. Minn. 2002). 4 See, e.g., People v. Osorio, 549 N.E.2d 1183 (N.Y. 1989) 5 See e.g., United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961). 6 See, e.g., D. v. Doss, 514 N.E. 2d 502 (Ill. 1987).
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Have Principals and Derivatives Sign a Disclosure Agreement; Include Derivatives in the Representation Agreement It is not a question of whether conflicts will arise but when. We need to be prepared and have clients understand at the outset that information will be shared and what will happen if a conflict arises. Having our clients husband stay in the waiting room helped us to avoid a conflict of interest. Because he was a perpetrator of domestic violence and also a potential derivative for the workplace rape case, we were able to offer referrals immediately and not jeopardize our ability to represent the U visa principal applicant. Conflicts have arisen in our U visa cases where the child principal changes her mind about having a parent as a derivative on a case, or where the parent principal does not want the derivative child to have access to sensitive information about a sexual assault, and we have all had the family-based one-step blow up into a Violence Against Women Act (VAWA) case where we were unable to continue with the representation of either party. We or the parent principal may not think that the child needs to see all the documentation in the file, but remember that some consulates require the visa-processing derivative to present the application in its entirety, along with the approval notices, in order to approve the visa. In most U visa cases there are derivatives that you want to include in the case who do not have an obvious conflict. For these cases (and other family-based cases), we have all the parties sign a disclosure and mutual consent to dual representation agreement. We also include the derivatives in the representation agreement and open separate case files for them. Like the confidentiality agreements and representation agreements that we have, the disclosure and mutual consent to dual representation agreement is translated into Spanish and other necessary languages for clients to read after we have explained it to them. These steps help us to be able to proceed with dual or multiple representations under the Model Rules of Professional Conduct 1.7 and improve our capacity to comply with the duty to communicate under Model Rule 1.4. Organize Your File to Separate and Identify Privileged Material What is probably obvious to many but was news to us was that most of the documents in our clients file were not protected and had to be turned over. The work-product doctrine protects the work of the attorney done in preparation for litigation.7 Work product that reflects the attorneys subjective beliefs and strategies about a case receives the most protection, while factual work product is discoverable upon a showing of substantial need. Likewise, the attorneyclient privilege protects only disclosure of communications and not disclosure of the underlying facts by those who communicated with the attorney. 8 When appropriate, counsel can argue that some information is protected by physicianpatient privilege or seek a protective order to redact sensitive client information, such as the victims home address. In our case, the U visa application and attachments were almost completely discoverable in the employment litigation. This is because the application and its contents were more factual in nature and did not contain subjective beliefs and strategies. Therefore, you should organize the file to separate and identify privileged material such as strategies and client communications. Materials such as notes and communications with third parties would not likely be protected unless your mental impressions or legal conclusions are incorporated into the case note or document. Even then, a court could decide that the work product could be adequately protected by redacting the mental impressions and legal conclusions. This fact could be extremely important to your U visa client and might lead him or her to wait on a U visa application until other collateral litigation ends. Unlike VAWA applications, U visa applications are not considered confidential by the Vermont Service Center (VSC) so we warn our clients that the process is not confidential and that the information may be shared with Immigration and Customs Enforcement (ICE). But many survivors of domestic violence are not as worried about sharing the information with immigration as they are afraid of the abuser seeing their declarations or knowing about the fact of the application. Before subpoenas appeared in our office, I assured many clients that, although the process is not confidential, in practice it has been kept confidential by Vermont, and that there was almost no likelihood of the abuser ever seeing any part of the application. Unfortunately, the client declaration is one of
7 8
In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994). Upjohn Co. v. U.S., 449 U.S. 383, 396 (1981).
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the most discoverable pieces of the case, and it is our responsibility to warn the client that collateral litigation could lead to the perpetrator seeing that declaration. Conclusion About Measures to Protect the AttorneyClient Privilege Fortunately, most of us will never have to deal with a subpoena. Because of that, you may decide that some of the tips presented would not be cost effective. However, keeping the above tips in mind will help ease the pain of a subpoena and will help you and your client to strategize about whether and when to proceed with a U visa application. Whatever strategies you decide to use should be implemented in your office as a standard practice for all cases so that you can demonstrate steps you have taken to preserve the attorney client privilege. ISSUES REGARDING CRIMINAL INADMISSIBILITY FOR U VISAS An Aggravated Felony Will Not Necessarily Bar a Lawful Permanent Resident from Eligibility for a U Visa, Despite Unavailability of Cancellation Under INA 240A(a), at Least as Long as a Notice to Appear Alleges Inadmissibility Under INA 212(a)(2)(A)(i)(II). A divorced woman in her mid-thirties has had lawful permanent residency since childhood. She has recently given birth to her second child, another U.S. citizen daughter. This momentous occasion has transformed her emotionally, spiritually, and personally. She had not borne a child for a decade and a half, and this pregnancy occurred out of wedlock. The father has a history of domestic violence both within and without his relationship with the mother. The mother has not left the childs father because of an abuse cycle in which she has similarly played the submissive in every relationship since her own childhood. She secures a Supplement B by helping to investigate and prosecute the father. Her Form I-192 emphasizes how she broke the cycle of violence and rid herself of passivity by standing up for herself in filing this application to waive an aggravated felony, which is a ground of inadmissibility under INA 212(a)(2)(A)(i)(II). At the time that the prosecutor executes Supplement B, the mother is on petition for review at the Federal Circuit Court of Appeals. She had previously applied for admission to the United States after traveling abroad. Customs and Border Protection (CBP) paroled her. CBPs Deferred Inspections served her with a notice to appear (NTA) before the immigration judge (IJ), who pretermitted her application for cancellation of removal under INA 240A(a). She appealed to the Board of Immigration Appeals (BIA), which affirmed the order of removal. This final removal order is the equivalent of renunciation of lawful permanent residency. During the pendency of the petition for review, the cycle of violence reached a climax. The mother ended her relationship with the father, but he gained some rights to visitation with the child. He battered the mother at the conclusion of a visit with the child. The mother called the police, who arrested the father. She received domestic violence therapy, to which she initially proved unreceptive because of its one-size-fits-all approach. Counsel encouraged her to reach out to a forensic psychiatrist, who adopted an approach better suited to her personality. This psychiatrist connected the Supplement B offense of domestic violence with the aggravated felony of transporting narcotics for the purpose of sale. He diagnosed a long history of abusive intimate relationships in which the mother submitted to the demands of aggressor males on account of fear and selfloathing. The diagnosis described impaired judgment on the date of committing the aggravated felony, and the good that criminal custody did the mother by making her feel a profound sense of shame and a desire to change. The diagnosis provided the law enforcement agency (LEA) and U.S. Citizenship and Immigration Services (USCIS) with a chronology of her life experience from being an extremely submissive person to a steadily more proactive individual. Medical reports of a vehicular accident that undermined her physical and mental health, a prescription for antidepressant pharmaceuticals, her decision to attend therapy, and this diagnosis overcame the perception of her as a deviant and culpable offender; instead, both the LEA and the adjudications officer imputedly accepted her as a vulnerable person coaxed to commit crime unwillingly. Her vulnerability made the connection between the Supplement B offense and the aggravated felony. Counsel took a proactive approach with the prosecutor to explain that the mother had already taken part in the investigation and prosecution before learning of the U visa. As the father resisted a plea bargain, the mothers cooperation in preparation for trial earned the prosecutors respect. Persistence of counsel in
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supporting the mothers cooperation and soliciting the Supplement B certification eventually led the prosecutor to secure a conviction and execute Supplement B. The decision to file Form I-918 and await a request for evidence (RFE) as to Form I-192 turned on the preference for a psychiatric diagnosis based on a therapy term longer than the six-month validity of a certification, as well as U visa unavailability until October 1 and consequent postponement of adjudications. The favorable adjudication of the waiver on Form I-192 gathered support from the pivotal position that the mother played in the lives of her many family members and friends in the United States. These relatives and friends described the birth of her second child as the moment of truth when she changed from an unreliable person to the communitys rock, the individual on whom they all relied for assistance in time of need. The mother in the case example was fortunate because her travel abroad led to a notice to appear (NTA) that alleged inadmissibility under INA 212(a)(2)(A)(i)(II) for her aggravated felony. Had the mother instead committed an offense that could have led to a separate Supplement B certification for the victim thereof, the waiver might not have been approved because VSC has a general policy to deny waivers in such cases. Given VSCs policy in this regard, filing Form I-192 in this context is suspect. The immigration judge entered a removal order under INA 212(a)(2)(A)(i)(II), so VSC had obvious jurisdiction to grant the waiver. The odds of VSCs recognition of jurisdiction and exercise of discretion decrease when a NTA charges an aggravated felony under a ground in INA 237, and a removal order issues under INA 237. Both LEA and VSC Adjudications Officers Exercise Discretion to Serve Justice, So Advocacy for an Aggravated Felon Requires Emphasis on Vulnerability as Support for a Connection Between the Supplement B Crime and the Potential Petitioners Aggravated Felony. Although traditional notions of vulnerability are not expressly encompassed by the certification process or adjudication of a waiver on Form I-192, the perception of an aggravated felon as vulnerable is often the linchpin that turns the tables in favor of a Supplement B certification and a waiver on Form I-192. Expression of emotions and a history of loss may improve the odds for a potential petitioner to establish vulnerability. A cycle of violence that ended when the potential petitioner assisted law enforcement with an investigation or prosecution can also be a powerful incentive for certification if the helpfulness demonstrates that the potential petitioners offenses are unlikely to recur. The low likelihood of recurrence is supported by a record that a potential petitioner committed the aggravated felony or other offense under inducement of the Supplement B perpetrator before the potential petitioner broke the cycle of violence. A cycle of abuse may be relied upon to establish that the perpetrator of the LEA-certified offense manipulated or otherwise drove the victim to commit crime(s) on which the petitioners inadmissibility turns in whole or in part. For instance, LEA-certified offenses of domestic violence and child abuse often occur in a context of intimidating circumstances that must be documented to establish a series of incidents that resulted in collective harm. The LEA-certified offense need only be one of these incidents. A LEA May Claim Discretion to Decline a Supplement B Certification to an Aggravated Felon Despite Helpfulness in a Criminal Investigation or Prosecution Unless the Perpetrator of the Supplement B Offense Manipulated the Potential Petitioner to Commit the Aggravated Felony and the Vulnerability of the Potential Petitioner Is Manifest. In the case of a potential petitioner who seeks certification but has an aggravated felony or a series of lesser offenses, vulnerability may be a powerful inducement for the LEA to certify. The practitioner has great potential to extract significant details in the interview process with the client, whose family and friends may also provide declarations that emphasize redeeming qualities and thereby improve the likelihood of the clients characterization as vulnerable. Perception of a potential petitioners vulnerability may lead to certification notwithstanding traditional notions of what defines a victim.
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Despite Certification of an Aggravated Felon on Supplement B, an Inadmissibility Waiver on Form I192 May Well Be Necessary and May Turn on a Connection Between the Petitioners Role as a Victim of the Supplement B Crime and the Aggravated Felony. Although not all aggravated felonies render a foreign national inadmissible, the strongest U visa applications will submit alternative arguments against inadmissibility and in favor of waiver in the event that the adjudications officer finds the petitioner inadmissible. In support of a connection between the petitioners conviction of an aggravated felony and the petitioners role as a victim of the Supplement B crime, a petitioner should advance a theory of vulnerability to manipulation and the Supplement B perpetrators actual manipulation of the petitioner to commit the aggravated felony. The practitioners success often depends on submission of strong evidence about the clients departure from the relationship, social group, and/or context in which the crime or crimes occurred. The diagnosis of a mental health professional may be pivotal both to connect a cycle of violence to any crime that renders the petitioner inadmissible, as well as to explain the petitioners rehabilitation and departure from the relationship or social group and other factors that led the petitioner to commit the crime. One important caveat: When the LEA-certified offense was domestic violence, and the petitioner has not left an abusive relationship that a mental health professional finds is a source of committing the crime(s) that render the petitioner inadmissible, diagnosis may do more harm than good. Whether to Submit a Waiver Application on Form I-192 with Form I-918 Requires Emphasis on Preferences for Expediency or Delay in Adjudication of a Petition in Light of the Criminal History and Immigration Proceedings. A petitioner without residency would achieve her or his anticipated goal of improving the efficiency of adjudication by filing Forms I-918 and I-192 concurrently. In contrast, residency forecloses a U visa unless either the BIA has affirmed a removal/deportation order or the petitioner has renounced residency. The latter is impossible while proceedings are pending before the IJ or BIA, so a lawful permanent resident who files Forms I-918 and I-192 before issuance of a final order should include a request to hold adjudication in abeyance. A potential petitioner with lawful permanent residency may thus prefer neither to present a waiver application on Form I-192 nor file Form I-918 until a week or two before Supplement B is bound to expire (just shy of six months after Supplement B is executed). This strategy improves the possibility of an RFE with a longer potential statutory deadline (up to 84 days) rather than a notice of intent to deny (NOID) with a statutory standard deadline of 30 days. Conclusion: A Heavy Burden Awaits U Visa Petitioners with Criminal History A potential petitioners documentation of vulnerability may not always support the connection between the Supplement B crime and the petitioners conviction of an aggravated felony. An aggravated felony from which the potential petitioner has been fully rehabilitated improves his or her chances. Complete rehabilitation alone is insufficient without proof that the potential petitioner has broken the cycle in which she or he was the victim of violence or sex offenses. The best evidence of breaking the cycle is a Supplement B certification in which a prosecutor or judge indicates that the petitioner was helpful in both investigation and prosecution. A great case would also introduce the diagnosis of a psychiatrist that attests to the history of abuse in a chronological format, explains how the petitioner took baby steps that concluded with the Supplement B-certified offense, and opines that the petitioner is unlikely to find herself or himself in another abuse cycle based on statistical data of victims who break the cycle. IMMIGRATION LAW PRACTITIONERS SHOULD SCREEN FOR HUMAN TRAFFICKING You are providing a consultation to a potential new client. He entered the United States a year ago on an H-2B visa that will soon expire. He no longer has his original passport with the visa in it, but he has brought a copy of it. He recently left the hotel food service job on which the H visa is based because he was not being paid what he was originally promised. He wants to know if there is any way he can get a work permit to stay in the United States so that he can earn enough money to pay off the money he spent to come here. This client may be a victim of human trafficking who can qualify for T nonimmigrant status. Do you see the red flags?
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Noncitizen victims of human trafficking almost never identify themselves as such. In most instances they are not aware that their victimization is a violation of U.S. law or can form the basis for a T nonimmigrant status. Although T cases can be challenging to identify, your awareness of the basic definition of human trafficking could be invaluable to a client who has no other form of relief available. The Trafficking Victims Protection Act (TVPA) defines a severe form of trafficking in persons: (A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 9 Significantly, coercion is defined to encompass more than physical force or the threat of such force. Under the TVPA, coercion now includes the more subtle means of psychological coercion that lead victims to believe that serious harm will result to them or to others if they leave their jobs. 10 Many approved T visa cases involve solely psychological coercion. A Few Red Flags Although the circumstances of individual cases can differ widely, it is helpful to be aware of a few red flags that can alert you to a client who has been trafficked: Has the client lived at his or her place of employment, or lived in housing closely monitored by the employer? USCIS has granted T visas to applicants whose employers have locked them in at night at factories and restaurants or whose houses or apartments were closely watched by the employers associates to prevent escapes. If your client has worked as a live-in nanny or housekeeper, ask her if she was allowed to leave the employers home unaccompanied. Did the employer take the clients passport? Some traffickers hold their victims passports as a way of preventing them from leaving a job. Did the client pay a large recruitment fee in the home country for a job in the United States that does not provide the promised pay or work conditions? Sometimes clients go into deep debt and mortgage family property to pay a recruiter for a job that pays far less than what was promised. The traffickers then warn their victims that if they leave their jobs they will be financially and socially ruined without the means to pay off the debt in their home country. Did the clients employer tell him that if he left the employers job or housing, he would probably be arrested, jailed, and deported? Did the employer make large deductions from the clients paycheck for items such as housing, meals, and smuggling fees? Did the client come to the United States as a child to live with relatives or family friends, but never enrolled in school? It is possible that the client was forced to work as a babysitter or housekeeper in spite of promises to her parents that she would go to school in the United States. A child in such circumstances is also vulnerable to physical or sexual abuse. Past Victimization If you see a red flag that points to possible trafficking, you should explore the details with the client even if the victimization occurred years ago. You can report a trafficking case to law enforcement even if the statute of limitations has expired on possible criminal offenses. For unreported trafficking cases that occurred before the passage of the TVPA in 2000, the victim must show that exceptional circumstancesincluding severe traumaprevented her from filing for T status earlier. 11
Trafficking Victims Protection Act 103(8), 22 USC 7102(8). See Trafficking Victims Protection Act 102(b)(13), 22 USC 7101(b)(13). 11 8 CFR 214.11(d)(4).
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Law Enforcement Certification Although there is a law enforcement endorsement form available for T visa cases, the Form I-914 Application for T Nonimmigrant Status can be filed and approved without it. While you must prove to USCIS that your client is a trafficking victim who has reported his victimization to law enforcementusually to the Federal Bureau of Investigation, ICE, or the U.S. Department of Justiceyou can proceed with the T visa application even if law enforcement declines to investigate or prosecute the case. Conclusion: After You Identify a Human Trafficking Case If you believe you have identified a victim of human trafficking, it is critical to look for guidance from a practitioner or agency with experience in reporting trafficking cases to law enforcement and representing trafficking survivors. For a guide to advocates in different regions of the United States, go to the members section of the Freedom Network website: www.freedomnetworkusa.org. The facts above raise a few red flags that the client may have been trafficked. Here are some follow-up questions: Did his employer keep his passport? Did he ever ask the employer for its return? Was the large debt incurred to pay a recruitment fee? What pay was he promised? Did he have a written contract? What was he actually paid? Did the employer make deductions from his paycheck? Did the employer provide housing? Was he free to come and go from his housing? Did he quit his job, or did he escape from it? For a complete human trafficking screening questionnaire, contact Sheila Neville at sneville@lafla.org.
PAROLE IN PLACE FOR MILITARY FAMILIES

by Margaret D. Stock *
In the summer of 2010, The New York Times reported that the U.S. Department of Homeland Security (DHS) had quietly put into place some new immigration administrative remedies for the immediate family members of U.S. military personnel. 1 As most practitioners know, family members of U.S. military personnel often run afoul of our nations complex and dysfunctional immigration laws, and the particular burdens imposed on military personnel by their service makes resolving those problems even more difficult than solving similar problems for civilian clients. This practice advisory will assist attorneys who advise military family members considering an application for one of the more common discretionary remedies, a form of immigration parole that is commonly called parole in place (PIP). Parole in place is really not a new remedy; the first publicly reported example of it being used for a military family member involved the case of Yaderlin Hiraldo and Alex Jimenez. Yaderlins situation came to national media attention in mid-2007, when her husband, Specialist Alex Jimenez of the United States Army, was reported Missing In Action (MIA) after his squad was ambushed in Iraq. 2 Prior to his disappearance, Alex had filed papers seeking to obtain lawful permanent residence status for his wife. 3 Unfortunately for Alex, DHS officials decided that Yaderlin was not eligible for lawful permanent resident (LPR) status because she had entered the United States in an irregular manner. 4 She was placed into removal proceedings, and for several years the government tried to deport her. She was in removal proceedings when her husband was reported missing, and had been told to leave the United States and seek a visa overseas; and yet without his presence and support, she could not hope to obtain permission to return to the United States, and would be barred for ten years from applying. 5 When Senator John Kerry wrote a letter to Secretary of Homeland Security Michael Chertoff, and major news media began highlighting Yaderlins predicament, 6 Secretary Chertoff exercised his authority to grant discretionary parole to Yaderlin. 7 Once she had been granted parole, Yaderlin was immediately eligible to adjust her status, despite her unlawful entry. Within a matter of days, U.S. Citizenship and Immigration Services (USCIS) granted her application to adjust status, and she was given a green card. 8 The story would have had a happy ending except that Alex Jimenez was later determined to have been killed in action.
Margaret D. Stock is an attorney admitted in Alaska and a retired lieutenant colonel, Military Police Corps, U.S. Army Reserve. Ms. Stock earned her undergraduate degree in government in 1985 at Harvard-Radcliffe, her law degree at Harvard Law School in 1992, and an M.P.A. in 2001 at the John F. Kennedy School of Government at Harvard. The opinions expressed in this article are her own, and not necessarily the opinions of any government agency. This practice advisory is substantially based on a guide for Judge Advocate General Legal Assistance Attorneys that was developed (with the assistance of the author) by attorney Rebecca Lawless of the U.S. Army. Ms. Lawless handled one of the first successful parole in place (PIP) cases in the Seattle area. Other materials reproduced in this article were provided by the USCIS Denver and Los Angeles offices. 1 See J. Preston, Immigration Policy Aims to Help Military Families, N.Y. Times, Aug. 1, 2010, at A15. 2 M. Baram and D. Schoetz, A Military Wifes Rock and Hard Place: Husband Missing in Iraq; Wife Facing Potential Deportation at Home, ABC News (June 20, 2007), available at http://abcnews.go.com/TheLaw/story?id=3297537. 3 Id. 4 Id. 5 Associated Press, Wife of Mass. Soldier Missing in Iraq Faces Deportation, Attorney Says, (June 21, 2007). 6 See G. Simmons, Feds Say Missing Soldiers Illegal Immigrant Wife Not Likely to Be Deported, Fox News (June 20, 2007), available at www.foxnews.com/story/0,2933,284832,00.html. 7 Chertoff Agrees to Kerrys Request to Protect Wife of Missing Soldier (June 21, 2007), available at http://kerry.senate. gov/cfm/record.cfm?id=277541 (containing text of letter from Department of Homeland Security (DHS) Secretary Chertoff to Senator John Kerry of Massachusetts, describing how Secretary Chertoff had directed that ICE will grant Ms. Hiraldo discretionary parole into the United States). 8 Associated Press, Illegal Immigrant Wife of Missing Soldier Awarded Green Card to Stay in U.S., (July 2, 2007).
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What Is Parole in Place? Parole in place (PIP) is a process by which USCIS assists family members of U.S. military personnel to become eligible to adjust status in the United States and thus become permanent residents of the United States. Under Immigration and Nationality Act (INA) 9 245(a), a person cannot adjust status unless he or she has been admitted or paroled into the United States. 10 Usually, a person who has not been admitted or paroled into the United States cannot obtain lawful permanent residence unless he or she leave the United States and travels abroad to a U.S. consulate. If a person who has not been admitted or paroled into the United States leaves the United States and attempts to undergo consular processing, however, the person nearly always faces an inadmissibility bar that is triggered by departing the United States. Thus, the person cannot obtain his or her lawful permanent residence status easily through consular processing. PIP attempts to avoid the separation of military families by allowing some family membersin meritorious cases onlyto adjust their status inside the United States and thereby avoid a lengthy separation that might harm the military members morale, readiness, or ability to complete his or her service. PIP is granted in order to preserve family unity and address U.S. Department of Defense concerns regarding soldier safety and readiness for duty. 11 PIP is also a remedy that appeals to the views of Americans that in wartime, the government should provide special support to military families; when the availability of PIP was made public, 18 members of the House of Representatives, including nine Republicans, wrote to DHS to indicate their support for the program. PIP is only available to persons who are present in the United States; it should not be confused with the humanitarian parole that is available to persons who are outside the United States. Who Should Request PIP? Under current immigration law, no one who entered the United States without inspection can adjust status unless he or she falls into a category in which special rules apply (such special rules apply to asylees, Cubans, special immigrant juveniles, Violence Against Women Act 12 petitioners, grandfathered aliens, and some others). A PIP request is often proper for immediate military family members who entered the United States without inspection, do not have an eligible visa petition or labor certification filed on or before April 30, 2001, and do not otherwise fall into a special adjustment category. 13 Before you can determine whether a PIP request is proper for your client, the client must be very candid with you about how he or she entered the United States. 14 If you are unsure whether your client should apply to adjust using a different process, you should consult an immigration attorney who has handled similar cases. (See Whom can I contact for further information? below).
Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC 1101 et seq.). INA 245(a) status as person admitted for permanent residence on application and eligibility for immigrant visa. The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the attorney general, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if: 245(a)(1), the alien makes an application for such adjustment; 245(a)(2), the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and 245(a)(3), an immigrant visa is immediately available to him at the time his application is filed. 11 J. Preston, Immigration Policy Aims to Help Military Families, N.Y. Times (Aug. 1, 2010) at A15. 12 Violence Against Women Reauthorization Act of 2005 (VAWA 2005), Pub. L. No. 109-162, secs. 3(a), 80134, 119 Stat. 2960, 296471, 305377 (2006), as amended by Pub. L. No. 109-271, 120 Stat. 750 (2006). 13 A person who is present in the United States after having entered unlawfully but who is unlikely to face deportation proceedings may inadvertently alert DHS to his or her unauthorized status by making a PIP request. Because PIP requests are not automatically granted, the benefits and risks of making a request must be discussed with the client. If the PIP request is denied, the client will likely face removal proceedings. 14 The term client is used loosely herein to refer to the service member and his or her immediate family member seeking PIP. In many cases, it will be appropriate (and necessary) to represent both the service member and the family member, and thus to get informed consent for dual representation before you begin work. A determination must be made on a case-by-case basis as to whether dual representation is appropriate or feasible.
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Can PIP be Requested if a Person Is in Proceedings? As the opening example to this practice advisory demonstrates, PIP is possible when a person is in removal proceedings. If a military family member is in removal proceedings and is granted PIP, an immigration judge (IJ) would be prevented from adjudicating a follow-on adjustment application by 8 CFR 1245.2. USCIS, however, does have jurisdiction to adjudicate an adjustment application in this situation. 15 Family members in this situation may file a new adjustment application with USCISafter the PIP is grantedand then request termination of proceedings without prejudice to allow them to pursue administrative remedies. Counsel may explain that whether or not the IJ terminates, the respondent will still be eligible to adjust status, 16 and if the case is not terminated and the IJ proceeds, the IJ may be facing a future Motion to Reopen. Who Should NOT Request PIP? A grant of PIP will not resolve immigration problems that involve issues other than ineligibility under INA 245(a). A grant of PIP will not, for example, lift a permanent bar for false claim to United States citizenship; 17 work to waive a criminal ground of inadmissibility; 18 relieve an immigrant of the consequences of a prior deportation or removal order; 19 or allow an immigrant to adjust status when the immigrant needs a waiver of some other ground of inadmissibility. PIP only cures the problem that an immigrant cannot adjust status without showing that he or she has been admitted or paroled. PIP is not a magic solution to every immigration problem. It has very limited application to a specific set of circumstances when the military family member has not been admitted or paroled in a manner that allows adjustment under INA 245(a). Requesting PIP may also not be advisable when there is no military-related reason to grant the PIP. For example, USCIS may determine not to grant PIP when the military member is about to be discharged from the military; when the military member is serving as an inactive Reserve member; or when a military member is stationed abroad (there, the family members presence in the United States is not necessary for a militaryrelated reason). Practitioners should be cautious about requesting PIP under those circumstances. It is not absolutely necessary, however, for the military member to be deploying or to be on active duty; in a case in Los Angeles where family members presence in the United States was essential so that an Army Reserve soldier could obtain military-related treatment at the Veterans Affairs agency, parole was granted so that the soldiers wife could adjust status. 20 A military family member also does not need PIP if the military family member was admitted lawfully but has no documentation of the entry. Those cases are governed by Matter of Areguillin 21 and Matter of Quilantan 22 and practitioners do not need PIP to file for adjustment in these circumstances.
See 8 CFR 245.2(a)(1) (Jurisdiction. USCIS has jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 CFR 1245.2(a)(1)); see also Matter of Castro-Padron, 21 I&N Dec. 379, 380 (BIA 1996) (describing exception to general jurisdictional bar to adjustment by immigration judge in exclusion proceedings). 16 See Matter of CH, 9 I&N Dec. 265 (BIA 1961). 17 See INA 212(a)(6)(C)(ii)(I) (In general.Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act (including 274A) or any other federal or state law is inadmissible.). 18 See INA 212(a)(2). 19 See INA 212(a)(9). 20 T. Watanabe, Iraq War Veterans Wife Spared Deportation, L.A. Times, (Nov. 6, 2009) (Jack Barrios said his wife was the familys anchor, caring for his 1-year-old daughter and 3-year-old son while he worked 15-hour days at two jobs, and helping him battle his post-traumatic stress.).
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Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980); see also Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010). Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010).
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How Do I Request PIP? The PIP program is new, and as of this writing, no formal regulatory guidance has been issued by DHS or USCIS. Practitioners report a variety of different approaches at different USCIS offices. In most USCIS field offices, a PIP request consists of a hardship letter signed by the service member and supporting documentation, which should be submitted to the local USCIS office having jurisdiction over the service members residence or place of duty. An example of the list of requirements from the Los Angeles USCIS Office is reproduced in the Appendix. Some practitioners report that their particular USCIS field office also requires that a biometrics fee be paid with the initial request for PIP; others report that a Form I-131 is required; and yet others report that a Form I131 and a fee are required. As of this writing, there is no standardized practice, so practitioners should check with the local AILA chapter, the AILA Military Assistance Program (MAP) listserve, or the local USCIS for specifics on how military PIP cases are handled at their location. This practice advisory will also be updated online whenever USCIS issues relevant guidance. DO NOT submit a PIP request to the USCIS Humanitarian Parole office in Washington, D.C.; that office only handles requests for parole for persons who are outside the United States, and PIP is a program for military family members who are inside the United States. A sample PIP request letter for a noncitizen spouse is attached as a general guide. The enclosures referenced should be attached with numbered dividers for the readers convenience. The letter is typically addressed to the director of the local USCIS field office or, if the client has an ongoing case with USCIS, the office that has issued the most recent decision regarding the case. The opening paragraph of the hardship letter should state that this is a request for a parole in place so that the particular military family member can file an Application to Register Permanent Residence or Adjust Status (I-485) while in the United States. The body of the letter should describe the circumstances that led the service member to join the armed forces. The letter should then describe the history of the military members relationship with the family member seeking PIP; establishing the bona fide nature of the relationship is extremely important, as USCIS is unlikely to grant PIP in any case in which there are indicators of marriage fraud. The family members immigration status should be discussed, including the status of any petitions filed for the family member, such as an I-130. The conditions of the family members home country at the time he or she came to the United States should be discussed. The current conditions may be mentioned if they are such that a return to the country would pose a danger to the family members health or safety. If applicable, the family members loss of Commissary and Post Exchange privileges, military housing, access to military family member health care, and assistance from the Family Readiness Group may be mentioned. Finally, the hardship the service member would experience if the family member were deported should be described in detail. If the service member or the service members children have special needs that make them especially dependent on the family member for support, these needs should be explained and supporting documentation provided where appropriate. At a minimum, the body of the letter must contain the service members name, date of birth, place of birth, rank in military, branch of service, and unit of assignment, as well as the dates and places of birth of the family member and any children. Any upcoming deployments for which the service member is preparing should be mentioned. While you, the attorney, can provide a great service by drafting the hardship letter, your client can assist by gathering certified copies of the many documents that will be referenced therein and attached as enclosures. These should include at least the following: The service members birth certificate and proof of U.S. citizenship (if applicable); The family members birth certificate; The birth certificates of any children; If the family member is the spouse, the couples marriage certificate and evidence of the bona fide nature of the marriage; The family members military family member identification card;
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A copy of Defense Eligibility Enrollment Reporting System enrollment documentation for the family member; Two original passport photos of the family member; A copy of any deployment orders for the service member; and Additional documents that substantiate the case of hardship can be enclosed as well. Will the PIP Request be Granted? Parole in place determinations are made on a case-by-case basis and are purely discretionary. Your client should not assume his or her request is approved until USCIS officially notifies him or her of the approval. Typically, clients are notified to come for an interview with a USCIS officer who is specially trained to handle PIP applications, and that officer will make an initial determination whether to grant the PIP, but the officers decision will be reviewed at a higher level before the PIP request is approved. If the PIP Request Is Granted, What Else Do I Need to Do for My Client? When the request for PIP is granted, your client will receive a parole document in the form of an I-94 card (see example at the end of this practice advisory). The next step depends on the stage of proceedings your client was at when the PIP request was initiated. If your client had received a denial of his or her Application to Register for Permanent Residence or Adjust Status (I-485), but already had a Relative Petition (I-130) approved, you will want to draft a letter addressed to the USCIS field office that issued the denial, requesting that the case be re-opened. You should enclose a certified copy of the parole document with the request. If your client has never filed anything with USCIS, he or she may need to file a Relative Petition (I-130) and an Application to Adjust Status (I-485) with a certified copy of the parole document; typically, this will be a standard one step application filed at a USCIS lockbox. Because the filing fees are quite high, if you are unsure of which forms the client needs to file, you may want to consult with an attorney who has handled a PIP case before proceeding. If your client is in proceedings, you will also file a one-step application with USCIS, because an IJ does not have jurisdiction to adjudicate an adjustment application by someone who has been granted PIP. For more information, see the discussion above under Who Should File for PIP? Whom Can I Contact for Further Information? The AILA MAP is a collaborative effort between the AILA and the Legal Assistance Offices of each services Judge Advocate Generals Corps. AILA MAP maintains a listserve devoted to discussions of military-related issues such as Parole in Place. Attorneys with questions regarding PIP can seek the guidance on PIP issues by joining the AILA MAP listserve, or by contacting Susan Timmons of AILA MAP at stimmons@aila.org.
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SAMPLE PIP REQUEST LETTER

Carl Adams, Field Office Director U.S. Department of Homeland Security 12500 Tukwila International Boulevard Seattle, Washington 98168 Dear Mr. Adams: My name is John Doe. I am making a humanitarian parole request on behalf of my wife, Jane Doe. I am asking that she be paroled in place based on her unique status as a military spouse and because of the genuine hardship that I and my children would face if she were removed from the country. My wife Jane came to the United States in 2004. She entered without inspection. It was out of desperation that she fled her home country of [name of country] and left her family. This is one of the poorest countries in the world. Natural disasters have compounded the poverty and crime levels. Her only hope for any life at all was to come to the United States. I have attached as Enclosure 1 a report for Congress describing the conditions of her home country near the time she came to the United States for your reference. The conditions there today remain much the same. I met my wife in 2004, shortly after she arrived in the United States. We have had two children together, now ages 5 and 3 (See Enclosure 2, Birth Certificates of Child #1 and Child #2). On October 10, 2008 we married. (See Enclosure 4, Marriage Certificate). I joined the military on November 1, 2008. (See Enclosure 3, Military Documentation). I became a U.S. citizen on April 5, 2009. After I became a U.S. citizen, my wife and I met with a USCIS agent at Joint Base Lewis-McChord to inquire about how Jane could go about applying for permanent residence. It was our understanding that she would be able to adjust status by filing an I-485. In July 2009, she filed this application, and I also filed an I130, a Petition for Alien Relative, on her behalf. The I-130 was approved on November 25, 2009. By Notice of Decision dated March 1, 2010, we found out that her unlawful entry prevents her from adjusting under INA 245(a) and that she does not otherwise qualify under 245(i). (See Enclosure 5, Notice of Decision dated March 1, 2010). It is now our understanding that Jane is not able to adjust status because she entered the United States without inspection. I have further been told that she can process for a visa in her home country, but if she does that, she must leave me and the children and travel to [name of country]; her departure from the United States will trigger a 10 year bar from the United States; I will have to request a waiver of that bar while she waits in [name of country]; the granting of the waiver is not guaranteed and processing will take many months, during which time I will have to find someone to take care of my children so that I can meet my military obligations. I have been told that USCIS sometimes allows spouses of service members to be paroled in place if their removal from the country would work a hardship on the service member. I can attest that I would face severe hardship if my wife were removed from the country. In 2009, our youngest child was identified as being developmentally delayed. He needs extra assistance in the areas of language development and motor skills. (See Enclosure 6, Statement from Pediatrician). As a stay-at-home mother, Jane is this childs main caregiver. She coordinates all of his therapies and does special exercises with him so that he can overcome these challenges. I made the decision to join the military because of the opportunity it presented but also because of my love for this country. If my wife leaves me and the children, it will be extremely difficult for me to take care of our children on my own. While we do have some family members in the United States, none of them would be able to meet the childrens daily needs. If my wife is not present in the United States, the military will require me to create a family care plan and to identify other individuals who can take care of the children if military duties were to prevent me from doing so. I would not be able to identify anyone as a long-term care provider for the children and, thus, I would likely face a discharge from the military for lack of a family care plan. (See Enclosure 7, Army Regulation 600-20(b)(2) and Army Regulation 635-200, para 58).
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Ive attached my Sworn Statement as Enclosure 8 in support of this humanitarian parole request. In addition, I have attached my passport as Enclosure 9, my wifes birth certificate as Enclosure 10, and my proof of citizenship as Enclosure 11. Ive attached a copy of my wifes dependent military identification card as Enclosure 12. A copy of my wifes Defense Enrollment Eligibility Reporting System (DEERS) documentation is attached as Enclosure 13, and two passport photos of my wife are attached as Enclosure 14. I will be happy to provide anything else you need in order to act on this request. My wifes deadline for filing a Motion to Reopen30 days from the date of the Notice of Decisionis approaching next week. If it is not possible for you to issue a decision on this request by that date, I would respectfully request that the deadline for filing a Motion to Reopen be extended. In closing, I thank you for considering the hardship to me, a U.S. service member, and to the extent the law allows you to do so, the hardship to my wife and children, when issuing a decision on this request. If you would like to contact me, I may be reached at (555) 555-5555 or 1234 ABC Street, Tacoma, Washington 12345. Sincerely, John Doe Sergeant, U.S. Army Enclosures
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EUROPE, MIDDLE EAST, AND AFRICA (EMEA) BOUND: PRACTICE CONSIDERATIONS FOR U.S. IMMIGRATION ATTORNEYS REPRESENTING CLIENTS IN GLOBAL CASES
by David P. Berry and Roland C. Lechner *
The expansion of the global marketplace has resulted in an increase in employment-based immigration outside the United States. As a result, attorneys in the United States now more frequently find themselves involved in the management of immigration matters abroad. This note will provide a high-level overview of the key procedural and substantive issues that U.S. immigration attorneys encounter when representing clients in immigration matters in countries in the Europe, Middle East and Africa (EMEA) region. These issues include defining the scope of the global representation, sourcing of and collaborating with local counsel, client communication, and ethical compliance. DECIDING TO GET INVOLVED AND THE LEVEL OF INVOLVEMENT When a client approaches a U.S. attorney with a request for assistance in a global immigration matter, the inquiry starts a detailed analysis that the attorney should complete before deciding to proceed with representation. Even before proceeding with the preliminary analysis, U.S. attorneys should be aware that the management of global cases requires a significant amount of time and resources. Attorneys are strongly advised to conduct an honest self-assessment of whether they currently have the bandwidth to properly serve their clients in jurisdictions other than the United States. For most EMEA inbound cases, clients will seek the assistance of U.S. attorneys for the following purposes: to manage the clients existing local counsel; to assist only with consular processing at a foreign diplomatic mission in the United States; or to manage the entire immigration process in the destination country through local counsel that the U.S. attorney sources. Of course, if a domestic client turns to U.S. counsel for any of these purposes, it is with the expectation that the U.S. attorney is in a position to effectively conduct the desired activity. Most clients will expect the U.S. attorney to conduct sufficient visa assessment or oversight to ensure pursuit of the proper visa strategy (i.e., tourist visa, business visa, work permit, etc.). To properly assume responsibility for an EMEA inbound case, U.S. attorneys will either have experience with the immigration regulations of the destination country, or, at minimum, will have access to competent local counsel in the destination country to verify the necessary information and relay it to the client. Managing Clients Existing Counsel Managing local counsel is fraught with significant challenges, especially if the U.S. attorney has not previously interacted with the clients local counsel or if the local provider is not a law firm. Apart from ethical concerns, U.S. attorneys need to delineate local counsels responsibilities clearly with the client. If the clients local counsel has a questionable track record or the collaboration with the clients local counsel is otherwise problematic, U.S. attorneys should offer their own counsel to the client. If the client insists on its
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David P. Berry (dberry@balglobal.com) is a founding partner in the San Francisco office of Berry Appleman & Leiden LLP. Over the years, Davids practice has encompassed every aspect of U.S. and global corporate immigration. David currently focuses on working with human resources professionals to optimize their companies immigration programs. He serves as the managing partner of the firms Global Migration Practice, addressing the worldwide challenges of corporate migration and global compliance. Roland C. Lechner (rlechner@balglobal.com) is an associate in the San Francisco office of Berry Appleman & Leiden LLP. He has extensive experience in all aspects of U.S. and global corporate immigration matters. Mr. Lechner is frequently invited by regional and national professional organizations to serve as speaker on current issues in corporate immigration. He also presently serves as vice chair of the AILAs Global Migration Interest Group.
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local counsel and serious quality, ethical, or other concerns arise, U.S. counsel may be wise to withdraw from representation. Consular Processing at a Foreign Diplomatic Mission In some cases, consular processing at a foreign diplomatic mission in the United States will be straightforward for U.S. counsel. In the case of tourist or business visas, the entire process is often accomplished at the foreign diplomatic mission. Exceptions arise for cases forwarded to government agencies in the destination country for further review, usually on security-related grounds, or when the diplomatic mission must secure host country authorization for issuance of business or tourist visas. U.S. attorneys will be cautioned to confirm that a tourist or business visa is appropriate given the facts of the case. Consultation with local counsel regarding visa regulations is certainly recommended. Local documentary requirements will vary, and counsel will need to verify current document requirements and processing times with consular staff. U.S. attorneys will find consular processing ancillary to a work permit application process to be more complex. 1 Depending on the destination country, the consular processing stage may initiate the work permit process, or it may follow issuance of an approved work permit. It will be imperative that U.S. counsel fully understand the states of the relevant work permit application process to effectively contribute to the matters success. Managing the Entire EMEA Immigration Process The assumption of responsibility for sourcing local counsel and for subsequently managing all phases of the EMEA immigration process present the greatest challenges. In this scenario, the U.S. attorney will not only be expected to serve as trusted counsel to his or her client, but also to serve as an effective manager of local counsel to ensure quality control and compliance. We will discuss recommendations for sourcing and collaborating with local counsel in more detail in the next section. SOURCING LOCAL COUNSEL IN EMEA The sourcing of competent local counsel is the cornerstone of a successful global immigration practice. U.S. attorneys must be able to rely on local professionals regarding all aspects of host country immigration regulations, procedures, and practice. Further, local counsel will be perceived as an extension of the clients U.S. counsel, making it critical that local counsel represents the client in an ethical and professional manner. Unlike the United States, many EMEA jurisdictions do not limit representation to licensed legal professionals. Therefore, when engaging in the sourcing process, U.S. attorneys need to be aware of the local requirements regarding the delivery of immigration services and carefully examine the credentials of any firm that they consider for the role of local counsel. There are a few jurisdictions, especially in the Middle East and Africa, where it is common practice for immigration services (including the preparation and filing of applications) to be handled by visa agencies. In those locales, if local law firms get involved at all, they tend to see their role as limited to advising clients on applicable regulations and general visa or work permit requirements. As the management of the visa process remains critical, U.S. attorneys will need either to assume personal responsibility for managing the visa agencies and review their work for compliance and quality issues, or to find local counsel to assume this role. Whether retaining a law firm or other immigration professionals, the U.S. attorney must be certain that local counsel is committed to the best and most ethical practices. There are several valuable resources that U.S. attorneys can use to start the sourcing process. One of the few professional organizations dedicated to the practice of immigration law, AILA maintains a membership directory that includes the names of immigration practitioners in numerous EMEA countries. If the AILA
For example, in Spain, the work visa application must be filed within 30 days of the approval of the underlying work permit application. In Turkey, a work visa application must be filed within three days of the filing of the underlying work permit application. In Denmark and Norway, a work permit application can be initiated by filing the application with the corresponding diplomatic mission and the application will then be forwarded to the local immigration service to be adjudicated.
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directory does not specify a practitioner for certain jurisdictions, the members and international associates on the listservs maintained by the AILAs Rome District Chapter or Global Immigration Action Group may be able to make helpful recommendations regarding local counsel. The International Bar Association (IBA) also provides its members with an exhaustive list of legal professionals practicing in the area of immigration law. The websites of regional or national bar associations are generally very helpful as well. And of course, web searches will often uncover a list of available host country practitioners. Additionally, the New York State Bar Association International Section maintains chapters throughout the world composed of members who are both admitted in New York State and also practice in a foreign jurisdiction. After consulting with the above-mentioned resources, U.S. attorneys will have a list of candidate firms for the role of local counsel. In jurisdictions where many law firms engage in the practice of immigration law (e.g., the United Kingdom, France, Germany, Netherlands), U.S. attorneys should set certain criteria from the start to narrow the list to a manageable size. In jurisdictions where immigration law has not been widely practiced by legal professionals, U.S. attorneys should consider including law firms that practice employment or labor law (as firms often provide immigration services but do not list them as a separate area of practice). Given time zone challenges, the selection of an EMEA immigration representative will often begin by email. The U.S. attorney may be wise to ask a short question of the immigration professional related to the intended immigration need. A well-prepared answer in English will serve as a quick test to determine who might potentially qualify. Usually, the U.S. attorney will want to prepare a list of questions to ask local counsel in order to learn more about the capabilities of the party or firm. U.S. attorneys will do themselves a great disservice to select local counsel based only on the size or the name of an international law firm or on information provided on the law firms website. The questions should be aimed at the factors that will allow U.S. attorneys to make an informed decision about each counsels service capabilities. These factors may include all of the following: Number of attorneys and staff dedicated to the firms immigration practice. Years of immigration experience. Types of immigration cases handled. Firms published Service Level Agreements. Number of immigration cases handled on an average basis. Locations served by counsel. Use of contract firms during the immigration process. Systems for quality control. Proficiency in the English language and host country language. Working relationship with government agencies. Fees for services. Clearly, it will be imperative to establish counsels knowledge of local immigration laws. U.S. counsel may wish to solicit copies of legal opinions or other immigration-related writing samples, including recently published newsletters. It is often appropriate to ask for a list of present clients, as well as client references. Of course, the extent of the questioning must be proportional to the task at hand. Before retaining local counsel, the U.S. attorney should call the potentially acceptable host country counsel to ascertain the counsels oral communication skills and commitment to common ethical and service standards. This interview process is the time to discuss and agree upon all expectations. Often it is wise to send a test case, when possible, to newly selected local counsel to verify the counsels ability and address any potential service issues early in the professional relationship. It is best practice for U.S. attorneys to have a detailed agreement with local counsel. Agreements with local counsel generally will take the form of a Memorandum of Understanding (MOU), Service Level Agreement (SLA), or Statement of Work (SOW), or more than one of these. Regardless of format, a written
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agreement should clarify the responsibilities of all parties and identify all expectations. Usually, a wellconceived agreement will address at least all of the following: service standards, fees, billing protocol, Foreign Corrupt Practices Act (FCPA) compliance, confidentiality/privacy/nondisclosure requirements, and conflict resolution. Some counsel will desire payment in the host country currency, and the U.S. attorney must determine if that is acceptable, and determine how currency fluctuations might affect payment. Documentation of the agreement can represent a substantial amount of effort for a single case. However, clear and concise agreements will help outline the responsibilities and expectations of all stakeholders, promote smoother processing of the case, and avoid misunderstandings. Additionally, such agreements tend to protect against liability and demonstrate the U.S. attorneys diligence expended on the clients behalf. Although written agreements do not guarantee a seamless process, such agreements reduce the risks of duplicative work, ineffective communication, and other negative consequences that can occur if an immigration process in EMEA is not managed effectively. MANAGING LOCAL COUNSEL IN EMEA The management of local counsel is a critical and ongoing component of every U.S. attorneys global practice. Even with excellent local counsel, it is important to clarify and calibrate all expectations regarding the lifecycle of a case. U.S. attorneys may have different approaches to the logistics of a global case and local counsel must be apprised of the division of roles and responsibilities. If all stakeholders understand their roles and the case protocol, this will lead to a more efficient process, better client service, and ultimately a better partnership between the U.S. attorney and local counsel. Usually, U.S. attorneys will be wise to develop (or have host country counsel develop) a workflow matrix for the global matter, often to share between all counsel, the company, and the assignee. That matrix will identify all stages of the immigration process, roles and responsibilities, and timeframes. The matrix will serve as a tool to set expectations of all parties. SOME ETHICAL ISSUES WHEN WORKING WITH LOCAL EMEA COUNSEL U.S. attorneys who assist clients with immigration matters in EMEA remain subject to all rules of professional conduct in the jurisdictions in which they are authorized to practice. Therefore, U.S. attorneys are advised to consult their local state bars regarding all relevant ethical rules or advisory opinions that could be implicated during the representation of a client in a global matter. For the purpose of representing clients in EMEA immigration matters, U.S. attorneys should be especially aware of the obligation to provide competent representation, not to engage in the unauthorized practice of law, and to charge clients reasonable legal fees. The ABA Model Rules for Professional Conduct (MRPC)which have been adopted by most U.S. state barsmandate that U.S. attorneys must provide competent representation to a client and define competent representation as requiring the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 2 Therefore, U.S. attorneys must be careful to avoid providing advice to a client regarding an EMEA immigration matter unless they have exercised due diligence in verifying the legal requirements in the destination country that applies to the clients situation. In most cases, this will require consultation with competent local immigration professionals. U.S. attorneys should be aware that a mistake or misstep by local counsel will likely be looked upon by the client as a mistake by the U.S. attorney who has been charged with the selection and oversight of the EMEA process. Thereby, it is both good business and ethical practice for U.S. attorneys engaged in global work to exercise due diligence to discover and prevent mistakes of EMEA counsel. The responsibility of becoming global counsel is an exciting opportunity, but also a weighty obligation.
ABA Model Rules of Professional Conduct (hereafter ABA Model Rules), Rule 1.1.
GOING GLOBAL: DELVING INTO OUTBOUND IMMIGRATION MATTERS

by Shawn A. Orme, Scott M. Borene, Jane Skelley Carroll, Roland Lechner, and Lois Gimpel Shaukat *
INTRODUCTION The globalization of the world economy and labor markets is an undeniable fact. This is particularly true for employers and workers in the globally competitive, high skill industries. Immigration lawyers today play a vital role in globalization by facilitating the legal and efficient movement of key talent across international borders. With the advent of globalization, it is important to remember that the United States is not only a destination country, but also a source country for temporary and permanent workers. Considering the complexity and fluidity of the U.S. immigration system, it is not surprising that most of the worlds developed countries have themselves established complex systems to monitor and control access to local labor markets. It is also true that many jurisdictions, including surprisingly, somewhere law and commerce are otherwise fairly well developed, as well as those where other areas of law and commerce are
Shawn A. Orme (sorme@balglobal.com) is the managing partner of the Houston office of Berry Appleman & Leiden LLP. In addition, Mr. Orme is one of the co-managers of the firms global migration practice. Mr. Orme is recently the past chairperson of the Texas Chapter of the AILA. Mr. Orme is the former chair of AILAs U.S. Citizenship and Immigration Services (USCIS) Committee and AILAs Service Center Operations Committee. Mr. Orme is past chairperson of AILAs USCIS and Texas Service Center Liaison Committee. Mr. Orme speaks regularly and has chaired numerous panels at local and national AILA conferences. Mr. Orme was recently listed in Best Lawyers in America and also has been named a Super Lawyer in Texas since 2006. He is a graduate of Princeton University and the University of Michigan Law School.
Scott M. Borene (sborene@borene.com) leads Borene Law Firm, P.A., a Minneapolis-based global immigration law firm. Mr. Borene has been repeatedly recognized as one of the Top 20 Lawyers in the World in corporate immigration law most highly regarded by other lawyers and general counselWhos Who Legal. He is listed in The Best Lawyers in America 2011. Mr. Borene served as editor-in-chief of the inaugural Global Immigration Guide: Crossing Borders for Business, published by the AILA in 2002. In 2002, Mr. Borene was selected as conference chair of the first Global Immigration Summit in New York City. In 2004, he served as chair of the second Global Immigration Summit and editor-in-chief of Thinking Beyond Borders: The 2004 Global Immigration Summit Handbook. He is editor-in-chief of AILAs Global Immigration Guide: A Country-byCountry Survey (2005) (Note: This article is an updated version of Mr. Borenes Going Global from this 2005 publication). He is also editor of Going Global: Trends in Outbound Immigration (AILA 2009). He is a past director of AILA. In 2005, he was selected as co-chair of the Immigration Committee of the International Bar Association (IBA). He is a graduate of Harvard University and Minnesotas William Mitchell Law School. Jane Skelley Carroll is associate general counsel of ThoughtWorks, Inc., a global IT consultancy firm headquartered in Chicago with offices in Canada, the United Kingdom, Australia, China, India, and Brazil. Her practice focuses on businessrelated immigration law, including nonimmigrant business visas and permanent residence. She is responsible for inbound as well as outbound immigration for the company. She is a current member of the AILA Nebraska Service Center Liaison Committee and a core committee member of AILAs Global Migration Action Group and the Rome District Chapter Global Migration Committee. She has spoken on business immigration topics at various AILA conferences and seminars. Roland Lechner is a managing attorney with the Phoenix firm of Hernandez Lechner PLLC. As in-house counsel and as an attorney in private practice, he has focused exclusively on representing both individual and corporate clients in all types of U.S. and Global immigration matters. Mr. Lechner is a member of the State Bar of Arizona and the State Bar of California. Lois Gimpel Shaukat is immigration counsel (in-house) with McKinsey & Company, Inc., a global management consulting firm. She focuses her practice on U.S. and global business immigration law matters. She earned a bachelors degree in Spanish Literature from Barnard College and a J.D. degree from Temple University. Ms. Gimpel Shaukat began her work in immigration law with Florida Rural Legal Services, representing migrant farm workers. She then moved to the law firm of Mailman & Schultz, where she began her career in business immigration law. Thereafter, she worked for several years with the New York office of Fragomen, Del Rey, Bernsen & Loewy. She has previously published and presented at various other forums on global immigration topics. All statements and opinions expressed by Ms. Gimpel Shaukat are solely her own and do not represent the views of McKinsey & Company, Inc.
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newly developing, have immigration regimes that are ill-defined under written law and difficult to follow in practice. The purpose of this article is to provide an overview of the global immigration landscape, with particular focus on issues practitioners are likely to encounter throughout the world. It elaborates on issues to consider when sourcing local experts; activities lawyers typically can and cannot handle in the global arena; and ethical concerns that arise in the global context. It also recommends research and compliance resources. MAIN ISSUES TO CONSIDER WHEN GOING GLOBAL When clients expand operations or secure new work abroad, it is increasingly common for them to hire U.S. immigration counsel for advice regarding compliance with immigration laws in other countries and to assist in obtaining visas and work permits to such countries. There are many issues and potential pitfalls to consider when securing or facilitating such visas and work permits. At the outset, U.S. immigration counsel must have a clear understanding of a clients plans in the foreign jurisdictions and must scrutinize each contemplated destination and activity in every locale where the employee will visit and/or work. Common questions are as follows: Do certain projected activities require a work permit? Will a business or tourist visa suffice? Are tax issues involved? And What if an employee is seconded? Even with minimal global dealings, these and other issues are virtually inescapable. Work Permits If a work permit is required in a particular jurisdiction, counsel must be clear as to its requirements. Are there specific educational requirements? Is work experience required? If so, how much experience and in what field? Is the foreign national able to meet those requirements? Is the employing entity able to meet the requirements for sponsoring a work permit? Whatever the requirements, it is most often prudent and recommended to retain a local expert to ensure adequate information, advice and/or support is obtained. Significant documentation regarding the foreign employer is frequently required before any sort of work permit may be issued, including articles of incorporation, stock certificates, tax returns, financial statements, etc. Civil law countries will often require an apostillean authentication of a signature on a document that is recognized by an international body. Other documents might require legalization by the local consulate of that country before the document may be submitted with the visa application. Both requirements can take significant time and can greatly delay and compound the visa issuance process. Additionally, when contemplating getting work permits in foreign jurisdictions, it is often critical that U.S. immigration counsel know whether a legal presence is required and whether it is legally permissible and/or pragmatically possible for a foreign entity to establish a legal presence in that country. The inquiry does not end there. For example, if a foreign entity is required, must that entity be wholly or partially owned by legal permanent residents or citizens of that country? If a legal entity is required, is it acceptable for the foreign incorporators to undertake the formation of the new operations under a business visa? Is another kind of visa required? What are the foreign exchange restrictions and corporate tax ramifications of establishing that entity? Ascertaining this information at the outset is critical, as the answer to each can greatly affect the likelihood of success down the road. Tourist/Business Visas The subtleties of permitted and forbidden activities under a tourist or business visa are often either unspoken or unclear from a countrys website or even its codified law. The law in this area within virtually every jurisdiction changes very rapidly and, much like U.S. immigration law, is very nuanced. Therefore, a thorough review of the facts is paramount and consultation with a local expert is almost always advised. Furthermore, in those countries that allow foreign nationals to remain for an extended time on a tourist or business visa, there could be resulting tax consequences to the employee and/or the employer. The bottom line is that local immigration counsel in the jurisdiction where the employee is traveling should be consulted regarding the permissible uses for tourist and business visas. Just as the U.S. Citizenship and Immigration Services (USCIS) website cannot provide a clear map to navigate U.S. immigration laws, websites of other countries are often an inadequate resource in understanding the roles that discretion and enforcement play in this arena.
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Secondment What if it is not feasible, practical, or otherwise desirable to set up a legal entity or operation in a new jurisdiction? U.S. immigration counsel is then faced with a dilemma: Can employees legally provide productive work for a certain period with a business visa? One potential solution is a secondment, which allows foreign employees to perform specific services for the client company. Secondment arrangements, however, carry risks and inconveniences. For example, the ability to perform work without a work permit under a secondment agreement often turns on subtle facts and are often very limited in scope. Therefore, much caution is advised if one chooses to pursue this option. Frequently, the client company will agree to secure work permits for the foreign workers once the permitted period of business visa activities expires, but this creates the uncertainty of relying on the client company to follow through and secure them. Both the employees and the contracted work could be jeopardized if, for whatever reason, the client company fails to obtain the necessary work authorizations. Additionally, the U.S. company and its employees might be required to submit confidential information to the foreign client, such as salaries and tax identification numbers. Is this acceptable to the U.S. client and its employees? Are privacy laws violated if this information is disclosed without consent? Are there obligations/liabilities or some form of employer/employee relationship established between the foreign client and the employees of the U.S. company by virtue of the client sponsoring the work visa? Notwithstanding these concerns, secondment arrangements do not always require work permits, but caution is strongly advised when contemplating this option. Foreign Corrupt Practices Act (FCPA) 1 One of the biggest areas of potential liability for companies is the Foreign Corrupt Practices Act (FCPA), which establishes severe penalties for violations of accounting transparency requirements under the Securities Exchange Act of 1934 and for bribery of foreign officials. Most jurisdictions do not have similar laws, and foreign counsel may not be aware of the implications of their actions under the FCPA. Outside counsel who are most likely to be aware of these requirements are those associated with established law firms abroad or U.S. firms with offices in other countries. Other steps to verify a firms proper understanding of and rigorous compliance with the FCPA include the following: Check registration with the United States Commercial Service; 2 Participate in the Networking with the USA (NUSA) program; 3 and Regularly monitor corruption indexes in appropriate countries. 4 Tax Issues As previously mentioned, immigration counsel must also be cognizant of tax concerns. Often times, a major issue is whether an employee assigned abroad must be paid on a local payroll and in the local currency. For example, does a company run the risk of creating a permanent establishment in a country by virtue of sponsoring workers in that country for a certain time? Additionally, employees might have a very different tolerance for tax risk than employers. Employees might become greatly disgruntled if they later discover that tax compliance was not properly disclosed or that the U.S. employer or foreign employer did not comply. It is, therefore, often advisable for U.S. immigration counsel to apprise both the employer and employees of potential tax requirements and liabilities. ARE CERTAIN JURISDICTIONS MORE FRIENDLY THAN OTHERS? Work permit requirements vary significantly throughout the world and counsel must be aware of these requirements and the potential pitfalls. Additionally, the law in virtually every jurisdiction (including the United States) is almost always in a state of flux. Therefore, any new project should start with fresh research
1 2
15 USC 78dd-1, et seq. See generally www.trade.gov/cs/services.asp. 3 Available for certain countries/regions at www.buyusa.gov. 4 See www.globalintegrity.org and www.transparency.org.
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and likely will require consultation with a local authority. Some potential documentary requirements (although by no means exhaustive) are worth mentioning. For example, some countries require the foreign worker to obtain a medical exam prior to the issuance of the work permit. Many countries require that the foreign workers obtain police or other security clearances, which can greatly delay the issuance of the work permit. Also, and as previously mentioned, certain countries require documents to be apostilled or legalized. As a very general rule, Africa, the Middle East, and Southeast Asia tend to be on the more difficult range of areas to navigate. This is attributable to various factors, including the high amount of fraud, the extremely fluid nature of each of these regions immigration laws, and the fact that laws relating to foreign investment in generalbe they financial or human in naturehave yet to be well-developed in post-colonial or post-war jurisdictions. Practicing in each of these regions is also challenging because securing competent local expertise has historically proven more challenging than other jurisdictions. Currently, North America and Europe, also as a very general rule, tend to be more straightforward and predictable, as each of these regions has a solid source of local experts and a more efficient means of disseminating changes in the law and handling immigration filings. SOURCING AND FINDING IMMIGRATION LAW EXPERTS IN OTHER COUNTRIES Some countries do not require that licensed lawyers provide immigration counsel and services. Even if there is no such requirement, there is often a requirement for the licensure of immigration consultants or immigration advisors. It is imperative that immigration counsel determines whether such advisors have the appropriate license or approval and avoid those who do not. As a general rule, immigration counsel should be wary of immigration consultants and, therefore, local immigration counsel is almost always preferable, if available. Obtaining competent local immigration counsel requires a certain amount of due diligence, but adequate resources are often available to find qualified representation. An obvious location is through AILA and AILA colleagues. Notably, AILA lists members in foreign countries in its Directory, and practitioners are encouraged to call AILA colleagues and inquire about their experiences with potential local counsel. The AILA Rome District Chapter and the Global Migration Action Group both have large memberships and listserves. AILA members who have joined these groups commonly send requests for referrals on these listserves. Often times, immigration counsel is required in a country in which there are either few immigration lawyers or immigration law is undeveloped and unclear. This frequently arises with certain African, Latin American, Middle Eastern, and Asian countries. Large, multinational law firms sometimes have a presence in those countries and may employ counsel within their employment law or tax departments who know the immigration laws. Those firms may also have relationships with specialist external counsel who have an expertise in immigration law. The same is often true of large, multinational accounting and tax firms. But, bewarejust because the firm is large and multinational or provides referrals to immigration counsel does not mean that it offers competent service. Due diligence is still required. Once U.S. immigration counsel obtains referrals to counsel in the jurisdiction, it is a best practice to send the immigration inquiry to at least two of the referred sources. Check if both sources provide similar answers. Also, assess how thorough the responses are. It is not uncommon to quiz potential immigration counsel, to take note of the answers, and to determine how timely such responses are provided. Be mindful of essentials, such as English language competence. The ability to communicate, both orally and in writing, is crucial. Communication problems ensue if local counsel lacks competency in written and spoken English. Immigration counsel must also be cognizant of the challenges of operating in a global, 24/7 environment. Is e-mail or telephone the preferred mode of communication? Are certain days of the week excluded from business communication because of religion? Does local counsel respond in a timely fashion, or is timeliness not valued in that culture? How will billing be arranged? Who issues the bills? How often? What is the mode of payment and in what currency? These can be awkward questions and issues, but it is better to address them initially than to confront them later.
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Managing Relationships with Counsel Outside the United States The terms of engagement for outside legal counsel should be clearly delineated, just as they are for any outside service provider. To ensure accountability and confidentiality, it is highly recommended that an engagement be established in writing. Obviously, the terms of engagement will vary based on factors, such as the scope and duration of the engagement, as well as the country involved. Scope of Representation It is helpful to clarify whether a relationship being established will be a long-term ongoing relationship or whether the relationship only involves assistance with a one-time emergency or isolated filing. Immigration counsel should also always ensure that the scope of work for each request is sufficiently agreed upon. Failure to do so can result in severe delays and may compromise the ultimate success of a project. Confidentiality, Privacy, and Nondisclosure All confidentiality and information-sharing obligations should be clearly explained and disclosed to all parties. This is especially important in cases of dual representation, either explicit or constructive. Counsel should also strive to be aware of, and incorporate in the terms of engagement, the varying legal standards for privacy as they relate to disclosure, transmission, and retention of personal data. These standards vary significantly from jurisdiction to jurisdiction, and frequently standards from more than one jurisdiction may apply. These standards may include the European Community (EC) Directive on Privacy; 5 the safe-harbor provisions of this directive negotiated between the EC and the United States; U.S. federal, state, and local regulations concerning mandatory notifications and opt-out provisions; and laws protecting the transmission, retention, and dissemination of personal information in other jurisdictions. Service-Level Standards When dealing with local immigration experts, U.S. counsel should delineate the minimum acceptable standards and expectations with regard to response time for telephone calls and e-mails, time-lines for the preparation of documents, availability of legal versus paralegal assistance, and similar matters. Because cultural differences often influence what is considered appropriate, it is imperative to address service-level expectations clearly and early in the relationship. Conflicts U.S. counsel will generally want to discuss local counsels procedures for conducting conflicts checks and for handling any conflicts which may arise. This is particularly true when the local counsel/advisor is part of a firm that does not exclusively practice immigration law. Billing Procedures Billing issues include hourly and flat rates, cost reimbursement, events which trigger billing, and situations when brief information may be provided as a courtesy. Engagement agreements should also address whether fees will be set in U.S. or local currency. KEEPING ABREAST OF CHANGES AND UPDATESA SAMPLING OF GLOBAL IMMIGRATION RESOURCES 6 Although by no means exhaustive, the following is a survey of resources that are available when handling, researching, or sourcing global issues. Published Resources for Global Immigration Going Global: Trends in Outbound Immigration. Scott M. Borene, Editor, AILA, 2009. Global Immigration Guide: A Country-by-Country Survey. Scott M. Borene, Editor-in-Chief, AILA, 2005.
5
Directive 95/46/EC on the Protection of Individuals with Regards to the Processing of Personal Data and on the Free Movement of Such Data.
Appendix to Going Global: Immigration Options Around the World S. M. Borene, 2011.
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Global Immigration Guide: Crossing Borders for Business. Scott M. Borene, Editor-in-Chief, AILA, 2002. AILA Rome Chapter Newsletter, Liam Schwartz, Editor, liam@lsa-law.com. International Bar Association Immigration and Nationality Committee Newsletter, www.ibanet.org. Contacts Global Immigration Organizations AILA Rome Chapter Anastasia Tonello, 2011 Chair, anastasia.tonello@lauradevine.com AILA Global Interest Group Global Migration Action Group (GMAG) Contact: Linda Lau, Chair 2011, Linda@globallawgroup.net. IBA Immigration and Nationality Law Committee Enrique Arellano, 2011 Chair, www.ibanet.org; earellano@arellanoabogados.com.mx. American Bar Association International Law Section, www.abanet.org. IBA Global Employment Institute www.ibanet.org. Global Immigration Conferences (20112013) AILA Rome District Chapter Spring Conference, Frankfurt, Germany, May 1213, 2011, www.aila.org. IBA Annual Conference, Dubai, October 30November 4, 2011, www.ibanet.org. IBA Annual Conference, Dublin, September 2012, www.ibanet.org IBA Global Immigration Conference, London, September 2223, 2011, www.ibanet.org. Finding Global Immigration Counsel Build you own network of global immigration legal contacts AILA Rome Chapter, www.aila.org. IBA, www.ibanet.org. ABA International Law Section, www.abanet.org. International Whos Who of Corporate Immigration Lawyers, published by Law Business Research, London, UK, www.whoswholegal.com. ETHICAL CONSIDERATIONS FOR GLOBAL IMMIGRATION COUNSEL Before starting the representation of clients in global immigration matters, U.S. practitioners are strongly advised to identify all applicable ethical guidelines for cross-border legal services. These guidelines will shape not only the scope and structure of the service agreement with the client, but also the way the legal services are delivered. Ethical considerations may vary depending on several factors, including the location of the legal practitioner rendering the global immigration services, the location of the client andif different the jurisdiction in which the immigration services are delivered, i.e., through local counsel. Legal practitioners can locate ethical rules by consulting with local bar associations in their jurisdictions or professional rules issued by local courts and professional organizations at the regional, national, or international level. For the purpose of this practice advisory, we will focus on the ethical guidelines provided by the International Bar Association (IBA) and the American Bar Association (ABA). Furthermore, this section of the practice advisory will primarily focus on the ethical concerns related to the area of unauthorized practice of law, full disclosure/transparency, and fee sharing. UNAUTHORIZED PRACTICE OF LAW/DISCLOSURE Legal practitioners who counsel clients on global immigration matters must ensure that they do not engage in the unauthorized practice of law in jurisdictions impacted by their services. The International Code of Ethics published by the IBA provides a valuable general overview of the level of competency by which legal practitioners should demonstrate when representing clients in cross-border matters. According to the IBA, a legal practitioner who undertakes professional work in a jurisdiction where he is not a full member of the local profession shall adhere to the standards of professional ethics in the
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jurisdiction in which he has been admitted and must observe all ethical standards which apply to lawyers of the country where he is working (emphasis added). 7 The ABA Model Rules for Professional Conduct are similarly instructive and state that a legal practitioner shall not practice in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so and that a legal practitioner who is not admitted to practice in this jurisdiction shall nothold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. 8 To illustrate the impact of the above-mentioned ethical rules, we will use the following fact pattern: An attorney in the United States is retained by a corporate client located in the United Kingdom (U.K.) to manage the immigration process for the clients employees in the U.K., Germany, China, India, Brazil, Bahrain, and Australia. In this example, the first task of the legal practitioner is to inform the client in which jurisdiction(s) he or she is and is not authorized to practice law (focusing on the jurisdictions that important to the client). Second, the U.S. attorney must disclose to the client that he or she will manage the immigration process in cooperation with local counsel who is authorized to practice law in the relevant jurisdiction. In this regard, it is imperative that the U.S. attorney verifies that the local counsel is indeed authorized to practice law 9 and otherwise qualified to perform immigration services in the corresponding jurisdiction. Confirming the credentials of local counsel is particularly important as the U.S. attorney owes the U.K.-based client a duty of due diligence and competence with respect to his or her services. 10 Conversely, local counsel must be aware that he or she has an even greater ethical responsibility because a foreign colleague (in this case, the U.S. attorney) will depend on his or her legal advice. 11 Lastly, it is also good practice for the U.S. attorney to consult local counsel to ensure that the U.S. attorneys involvement in the process does not run afoul of any local ethical regulations. Provided that the U.S. attorney consults with local counsel throughout the process and provided that any advice given to the client by the U.S. attorney is based on advice of local counsel, the U.S. attorney should be in compliance with applicable ethical regulations and has reason to be confident that he or she will not be deemed to be engaged in the unauthorized practice of law. Fee Sharing The delivery of global immigration services will, in most cases, require the retention of local counsel, except for those employed by a law firm with its own legal professionals in the foreign jurisdiction. Therefore, legal practitioners must be careful when drafting fee agreements with clients to ensure that they comply with ethical regulations regarding fee sharing. For example, the ABA Model Rules of Professional Conduct mandate that the total legal fees charged by attorneys be reasonable, be effectively communicated and approved by the client, and that all attorneys receiving part of the fees assume joint responsibility in the clients representation (emphasis added). 12 Whether a fee is reasonable depends on the totality of the circumstances of the representation, including, but not limited to, the time and labor required, the novelty or difficulty of the case, the skills required to perform the work, time restrictions, fees customary to the type of
International Bar Association, International Code of Ethics, Rule 1 (first adopted 1956; last revised 1988 [hereinafter referred to as Code of Ethics]. 8 ABA Model Rules of Professional Conduct, Rule 5.5(a), (b) [hereinafter ABA Model Rules]. 9 See Code of Ethics, Rule 20 (Lawyers shall not delegate to a legally unqualified person not in their employ and control any functions which are by law or custom of the country in which they are to be performed by a qualified lawyer.). 10 See Code of Ethics, Rule 4 ([I]t is improper for lawyers to accept a case unless they can handle it promptly and with due competence; see also ABA Model Rules, Rules 1.1, 1.3 (A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.). 11 See Code of Ethics, Rule 4 (Lawyers who undertake to render assistance to a foreign colleague shall always keep in mind that the foreign colleague has to depend on them to a much larger extent than in the case of another lawyer of the same country. Therefore, their responsibility is much greater, both when giving advice and when handling a case.). 12 ABA Model Rules, Rule 1.5(e) [As of Mar. 9, 2010, the ABA Model Rules have been adopted by all U.S. states, except California].
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case handled, the experience of the attorney handling the case, etc. 13 Given the differing cultural norms around the world as to what constitutes reasonable legal fees, it is important to give extra carebeyond what would be appropriate when negotiating fees splits in your home jurisdiction aloneto ensure that all parties agree on the reasonableness of the terms and conditions upon which the fees are set. The IBA Code of Ethics requires that fees be fixed in consideration of the time and labor involved, as well as all other personal and factual circumstances of the case. 14 The Code of Ethics addresses the issue of feesharing only to the extent that fee sharing is prohibited where a legal practitioner refers a case to foreign counsel and has no involvement in the management of the case. 15 To ensure ethical fee sharing in a global immigration matter, legal practitioners must do more than simply refer a case to local counsel before they will be deemed to have joint responsibility over a clients representation. In case of an outright referral to local counsel, it would be more appropriate for local counsel to handle the matter and to bill the client directly. On the other hand, if legal practitioners manage local counsel during one or more stages of the immigration matter, then this must be clearly outlined in the agreement with the client. The agreement must describe the responsibilities of all parties to the agreement so that all stakeholders are clear about their respective role(s). These roles also have to be explained to the client orally or in writing to allow full transparency (and informed consent), to avoid confusion, and to prevent potential processing delays. Furthermore, legal practitioners must be completely transparent to clients about the billing procedure and the total fee amount. For example, they should disclose whether the client will receive a single invoice for all services rendered (including those provided by local counsel) or a separate invoice. The billing protocol and the total fee must be submitted to the client in writing before or within a reasonable time after beginning the work on the global immigration matter. Clients must approve the fee arrangement and the total fees in writing before the representation can commence. Changes to the initial fee arrangement must be communicated to and approved by the client in writing, as well. CONCLUSION The global legal environment continues to change rapidly and become more complex in response to the political and economic uncertainties of todays world. As a result, immigration policies and practices are highly fluid and sometimes politically volatile. Given these changes, U.S. immigration counsel are becoming increasingly involved in mobility matters outside the United States. As described herein, managing such matters involves a high degree of focus, diligence, and research.
13 14
ABA Model Rules, Rule 1.5(a). Code of Ethics, Rule 17. 15 See Code of Ethics, Rule 19.
OUTBOUND IMMIGRATION ISSUES FOR THE U.S. PRACTITIONER

by Eugene Chow
Many U.S.-based immigration lawyers representing multinational corporations are increasingly called upon by their corporate clients to advise them about the deployment of their international employees to other parts of the world in compliance with the immigration laws of the destination countries. WORKING COOPERATIVELY WITH OVERSEAS COUNSEL The provision of global outbound immigration services was once the exclusive domain of a few large international law firms, as well as the Big Four accounting firms, 1 which offer advice and services as part of an integrated solution to client needs in international assignment services. Accordingly, domestic U.S. boutique immigration law firms simply referred this business to foreign counsel. The new trend, however, is to expand into this practice area, if only as a defensive measure to protect their client base. Thus, many U.S.immigration firms are developing their own in-house expertise in obtaining visas for outbound international transfers. Some firms handle the visa applications themselves entirely from the United States. Most, however, have also established relationships with foreign counsel working in the destination countries. Most overseas-based counsel are happy to inform AILA members or other lawyers about the employment visa process of their respective home jurisdictions and collaborate with U.S.-based counsel. Many U.S. practitioners, however, jump the gun and waste much of overseas counsels time, only to find at a later stage that the employers overseas office already has arrangements in place to process an employment visa for the prospective transferee. Other times, U.S.-based counsel may not always remember that foreign lawyers have other priorities, such as their own clientele, giving them little time to give advice as a professional courtesy. Thus, before involving overseas counsel, U.S.-immigration counsel should: Ascertain whether their U.S. corporate client has the ultimate authority to determine the service provider for the foreign visa needs of its employees, whether the overseas office already has its own service provider locally to handle these matters, or whether that office relies instead on its own Human Resources department if they regard the matter as routine and outsource only troublesome cases. Understand that they should expect to compensate foreign lawyers for advice regarding esoteric visa issues, especially since U.S. lawyers are billing corporate clients for the advisory work themselves. Each country, of course, has its own immigration rules and bureaucracy. Furthermore, the rules may differ depending on the prospective employees nationality, qualifications, as well as his or her purpose and intended duration of stay. Very often, Human Resources (HR) departments in Hong Kong and China, for example, are expected to handle employment visa processing, even though they sometimes lack the expertise to do so efficiently. If there is an inordinate delay and the senior executive awaiting the local post becomes anxious or angry, they simply blame the unpredictability of the government authorities. Although this is often true in certain parts of China, where two to three government ministries or agencies can be involved in the temporary work permit, visa, and residence permit process, the real reason for the delay, especially in a transparent and efficient jurisdiction, such as Hong Kong, could well be because the HR department did not make a complete
Eugene Chow is the principal of Chow King & Associates, a Hong Kong firm specializing in U.S. and Hong Kong immigration matters. Mr Chow has been a board certified Immigration Law Specialist in California since 1989, and has been listed annually in An International Whos Who of Corporate Immigration Lawyers since 2001. A contributor to AILAs The Visa Processing Guide: Process and Procedures at U.S. Consulates and Embassies for the past 17 years, Mr. Chow was also an associate editor for AILAs 2004 Global Immigration Summit Handbook and Immigration Options for Investors and Entrepreneurs (AILA 2006 Ed.). 1 Deloitte, Ernst & Young, KPMG, and PricewaterhouseCoopers.
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submission initially and ended up having to send documents back and forth in a ping pong match with the local authority. In a recent case, this writer was asked to assist the reluctant HR department of a major international investment bank when its preferred assembly-line visa service provider could not obtain Hong Kong visas for a Chinese Ivy league-educated MBA employee and his spouse for two to three months, when the normal processing time is approximately just four weeks. The delay arose because the service provider was only accustomed to processing plain vanilla cases involving citizens or permanent residents of Western countries, such as the United States, Canada, and the United Kingdom, and not well-versed on certain esoteric issues involving Chinese nationals who had been employed overseas temporarily, but had returned to China, even for a relatively short period. BUSINESS VISITOR STATUS AND UNAUTHORIZED EMPLOYMENT U.S.-based counsel should be very careful about the scope of activities permitted while a person is on business visitor status in a particular country. Most, if not all countries in the world, prohibit foreign business visitors to work without securing a work permit or an employment visa, even though many countries grant visa free entry privileges to U.S. citizens and nationals of many countries. Hong Kong, in particular, has an extremely liberal visa-free entry policy that allows nationals of about 170 countries and territories to visit Hong Kong visa-free for a period ranging from seven to 180 days. 2 For example, the nationals of the United States, Canada, Japan, and Singapore can enter Hong Kong for 90 days without a visa. On the contrary, citizens of India or the Philippines can only enter visa-free for 14 days. Considering these differences, some companies that send executives and international personnel for a brief stint may be tempted to bypass the employment visa application process altogether because their employees can complete a short-term project assignment within 90 days. As exigent business needs may require the rapid deployment of employees overseas within stringent deadlines, some business executives and consultants accepting a short work assignment do not apply for employment visas. Instead, they simply stay on their companys respective home country payrolls and utilize the time period of the visa-free privileges granted to many nationalities to work abroad. Such individuals are in violation of their visitors visa status and subject to sanctions. Hong Kong immigration law, for example, forbids visitors to take paid or unpaid employment. If they go to Hong Kong for productive work instead of a business visit, then they must legally obtain employment visas. A person working without an employment visa is in breach of his or her conditions of stay and can be charged with an offense in Hong Kong under Section 41 of the Immigration Ordinance, Cap.115. If convicted, then the person can be fined up to HK$50,000 (about USD$6,400), sentenced to two years of imprisonment, and subjected to removal. In addition, an employer who employs someone illegally could face a maximum fine of HK$350,000 (about USD$44,871) and possible imprisonment for three years under Cap. 115, 17I of the Immigration Ordinance. PRACTICE POINTERS Hong Kong The line between productive work or otherwise permissible activities within the ambit of a legitimate business visit, such as business meetings and negotiations, is sometimes blurred. Furthermore, the Hong Kong Immigration Department generally does not rigorously enforce technical violations of conditions of stay as visitors, especially when employees of multinational companies do not displace locally available workers. Nevertheless, U.S. immigration counsel should advise clients of the potential legal consequences and embarrassing publicity. Instead of advising an antsy client to wait in the United States, counsel may consider having him or her enter Hong Kong on a visa-free basis as a business visitor while local attorneys prepare the employment visa application. A well-documented employment visa application for a recognized entity in Hong Kong takes only about four weeks to process. In the meantime, the prospective employee may settle in, i.e., search for
2
www.gov.hk/en/nonresidents/visarequire/general/.
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housing and an appropriate school for children (if any), become familiar with the company and attend business meetings and the like without actually engaging in what might be considered to be productive employment. Once the application is approved, the visitor can simply take a short trip out of Hong Kong to a neighboring country and return with the computerized employment visa sticker and be admitted in employment visa status. Another important compliance issue that U.S. counsel should notify their clients about is that income for services rendered in Hong Kong is subject to Hong Kong Salaries Tax, even if the employees are paid by a company abroad. Nevertheless, foreign temporary workers who perform services in Hong Kong for fewer than 60 days in a financial year (April 1 to March 31) are exempted from taxes. U.S. counsel should further advise their clients that both the employer and employee have duties under the Salaries Tax provisions of the Inland Revenue Ordinance and that the Mandatory Provident Fund may apply unless the employee is covered by an overseas retirement scheme. As noted earlier, employers must be warned that there are criminal penalties for employing a person without work authorization. Applicants should also understand that working under a visitors visa before receiving an employment visa is a breach of the conditions of stay. Peoples Republic of China Under Chinas Law on Control of Entry/Exit of Foreign Nationals promulgated on November 22, 1985 and the Rules Governing the Implementation of the Law of the Peoples Republic of China on the Entry and Exit of Aliens, 3 all foreign nationals who wish to enter or reside in the Peoples Republic of China (the PRC) must apply for visas from a Chinese consulate (or its functional equivalent) overseas. Under Chapter 1, Article 4 (4) of the implementing rules, F-visas can be issued to aliens who are invited to China on a visit or on a study, lecture or business tour, for scientific-technological or cultural exchanges, for short-term refresher course or for job-training, for a period not more than six months. Thus, an F-visa would be appropriate for individuals conducting business in China, including attending business meetings or discussions, making sales and marketing calls to potential China clients on behalf of an overseas commercial entity, as well as factfinding meetings and negotiations with suppliers, manufacturers, distributors or the development of joint venture or other partnership relations in China. An F-visa can be issued on a single or multiple entry basis, the holder of which is permitted to stay in China for up to six months upon entry. However, an F-visa holder pursuing employment in China must apply for a work permit and a Z-visa. Under Chapter 11, Article 8 of the Rules for the Administration of Employment of Foreigners in China, 4 foreigners may work within China only after they obtained an employment visa, the Employment Permit for Foreigner, and the foreigner residence certificate. Foreigners without residence certificates, i.e., F or L-visa holders, must not work in China. In special cases, however, employment may be allowed when the foreigner changes his or her status at the public security organs with the employment license secured by his or her employer and receives the Employment Permit and residence certificate. Under Chapter V, Article 28 of the employment rules, foreigners who work without the Employment Permit or employers who hire foreigners without the Employment License, must be handled by the public security organs in accordance with Article 44 of the Rules Governing the Implementation of the Law of the Peoples Republic of China on the Entry and Exit of Aliens. Chapter VII, Article 44 provides that aliens employed without permission from the Ministry of Labor of the Peoples Republic of China or its authorized departments shall have their posts or employment terminated and may at the same time be fined up to 1,000 [yuan], and those whose offences are serious may at the same time be ordered to leave the country within a
Approved by the State Council on Dec. 3, 1986, and promulgated by the Ministry of Public Security and the Ministry of Foreign Affairs on Dec. 27, 1986. Revised and approved by the State Council on July 13, 1994 and promulgated by the Ministry of Public Security and Ministry of Foreign Affairs on July 15, 1994 [hereinafter the implementing rules]. 4 Promulgated jointly by the Ministry of Labor, Ministry of Public Security, Ministry of Foreign Affairs, and the Ministry of Foreign Trade and Economic Cooperation of the Peoples Republic of China on Jan. 22, 1996 [hereinafter the employment rules].
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specified time. Also,[u]nits and individuals who employ aliens without permission shall terminate employment of the said aliens and may at the same time be fined from 5,000 to 50,000 yuan, and be ordered to cover all the expenses of repatriating aliens whom they had employed. There is no separate governmental immigration department in the PRC to vigorously enforce Chinas immigration rules. Instead, the enforcement of immigration rules rests on the Public Security Bureau. In particular, the employment permit process is handled by the local labor department. As a result, many companies violate Chinese immigration law by sending employees with either L-visas or T-visas to work. This is often occurs when companies have not yet established an office in China that can sponsor its employees, who are being remunerated from overseas. In advising clients, U.S. counsel should emphasize observance of immigration regulations over an expedient and cost-efficient process to send employees abroad. Such compliance can stave off potential complications. The writer became involved in a case where the in-house counsel of a large, publicly-listed corporation expressed concern about legal compliance after it acquired a privately-held manufacturing and trading business that had illegally employed virtually all of the expatriate workers, who had traveled in and out using L-visas or F-visas, in China for many years. The case became very complicated because these employees had to regularize their employment status after years of non-compliance. While the Chinese government does not generally challenge the activities of business visitors when they work in China, it can be very embarrassing to be discovered working illegally. It is true that although U.S. law, in some instances, permits persons on B-1 visas to do H-1B caliber work in the United States, there is no comparable category for persons to work in Hong Kong or China while on business visitor status. The risk may appear small, but the law requires otherwise and the potential legal consequences can be devastating in a particular situation. Therefore, it behooves U.S. counsel to warn their corporate clients about conforming to the laws of the destination countries.
KEY INBOUND BUSINESS IMMIGRATION AND EMPLOYMENT ISSUES: RELOCATION OF FOREIGN BUSINESS PERSONNEL TO INDIA
by Ranjit Malhotra and Anil Malhotra *
This article addresses several new issues of practical concern in view of the increase in immigration of multinational business executives into India. The focus of this paper is to highlight key business immigration issues regarding foreign personnel sought to be relocated in India, conditions to be complied with for short term engagement of foreign nationals by Indian firms/companies, taxation of foreign nationals in India, legal provisions prohibiting dual nationality, provisions relating to newly introduced overseas citizenship, and the penal consequences arising from violations by business personnel in the context of immigration law requirements. Also, there is reference to the newly carved out Persons of Indian Origin (PIO) and the Overseas Citizens of India schemes. PIOs who live overseas and qualify in these two categories can derive immense benefits if they are looking to work in India. Toward the conclusion of the paper, a case is made for India to have a new set of consolidated rules focusing exclusively on business immigration into India, as well as the introduction of a work permit scheme in consideration of the changing market conditions. India clearly remains an attractive destination for foreign investors all over the world. The United Kingdom and the United States are among the top 10 foreign investors in India and increasing numbers of their citizens are going to India for business reasons. The massive recent liberalization of the Indian economy has promoted innumerable joint venture investments, which involve the movement of manpower, machinery, and technology. This article seeks to update immigration practitioners advising business personnel on relocation to India. In addition, brief reference is made to extension and variation of business visas foreign exchange regulations, citizenship in India, and questions of dual nationality, which is relevant in the context of the theme of the paper. FOREIGNERS LEGISLATION The principal Indian legislation regarding foreigners is contained in the Foreigners Act of 1946, which also provides for framing of relevant rules regulating the registration of foreigners. The 1946 Act also stipulates strict formalities with regard to the presence and movement of foreigners in India and their
Ranjit Malhotra was the first Indian lawyer to be awarded the prestigious Felix Scholarship to read for the LL.M degree at the School of Oriental and African Studies, University of London. He obtained his degree with merit in 1993, specializing in immigration laws and South Asian family laws. He is an India-based lawyer handling substantial international work. He is a member of the International Bar Association and co-chair of the family law and family law rights section of Lawasia. He is also a member of the Indian Society of International Law, Immigration Law Practitioners Association, London, AILA, Washington, D.C., Reunite Child Abduction Agency in London, Indian Council of Arbitration at New Delhi, the Inter Pacific Bar Association at Tokyo, Lawasia at Australia, Fellow of the International Academy of Matrimonial Lawyers, Commonwealth Lawyers Association at London, and International Law Association at London. He is also enrolled with The International Association of Youth and Family Judges and Magistrates. Anil Malhotra is a practicing advocate in India since Sept. 1983 at the Punjab and Haryana High Court at Chandigarh. He appears as counsel in the Supreme Court of India at New Delhi and before other courts, commissions, boards, and tribunals. He holds B.S. and Bachelor of Laws (Professional) degrees from the Punjab University, Chandigarh, India. He attained an LL.M degree from the School of Oriental and African Studies, University of London, in November 1985. He studied comparative family law at the London School of Economics. He has taught civil procedural laws and matrimonial remedies for six years as a part-time lecturer at the Faculty of Laws, Punjab University, Chandigarh, India. For more than 25 years, he has had extensive exposure in handling civil, matrimonial, criminal, and overseas litigation on behalf of nonresident Indians residing abroad. He represents a large number of overseas clients in Indian courts and regularly opines on matters of Indian law in cases arising in related matters in foreign jurisdictions. He has conducted a vast variety of matters in Indian courts pertaining to interpretation and application of foreign court orders regarding divorce decrees, child abduction, custody, maintenance, adoption, and property related issues of nonresident Indians. He interacts extensively with a worldwide Indian population settled overseas in advising them regularly on all issues of civil, immigration, matrimonial, and criminal law.
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RELOCATION OF FOREIGN BUSINESS PERSONNEL TO INDIA
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subsequent departure. Section 3 of the 1946 Act details the objectives of this enactment and provides as follows: The provisions contained in the above-mentioned legislation, make it quite clear that unfettered powers have been conferred on the Indian government for regulating and restricting the movement and presence of foreigners in India. It appears that, historically, the prime concern has been to safeguard the interests of national security. Furthermore, section 6 of the earlier Registration of Foreigners Rules 1939 details relevant procedures for the registration of foreigners visiting India. Under Rule 6(1)(b), a foreigner entering India on a valid visa for a period of more than 90 days should present the registration report, as specified by the registration officer at the port or other place of arrival. Rule 6(2)(b) of the 1939 Rules provides that this registration report shall be presented within seven days of the foreigners arrival in India. Under Rule 6(3), every foreigner, besides presenting a registration report to the registration officer, is duty-bound to furnish any relevant information in his or her possession to satisfy the registration officer of the authenticity of the particulars provided. The foreigner is also required to sign the registration report and is then entitled to receive a certificate of registration from the relevant officer. Under Rule 9 of the 1939 Rules, every registered foreigner is legally obliged to produce his or her certificate of registration within 24 hours of a demand being made by any registration officer, magistrate, or police officer for the purpose of inspection, although the concerned officer has discretion to extend the time. It is also incumbent on returning foreign visitors, under Rule 15 of the 1939 Rules, to surrender their certificate of registration prior to departure. Visiting foreigners who contravene any of the directions incorporated in the certificate of registration render themselves liable to penalties prescribed under section 14 of the 1946 Act. The rigor of the penal consequences under the 1946 Act was highlighted by the Supreme Court of India already in 1955. The Supreme Court determined that the Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains. 1 The relevant law was subsequently discussed in an important case which reflects the particular security concerns of Indian officials when dealing with Pakistani citizens. It was held in Khalil Ahmad v State of UP, 2 that there is no specific rule for obtaining a permit by a foreigner from the Registration Officer, but it may be implied from the fact that every foreigner entering India is required to present in person to the registration officer a registration report of his arrival in India, on the basis of which he is granted a certificate of registration duly endorsed by the registration officer. This certificate of registration is nothing else than a permit issued to the foreigner indicating the date of his arrival and the period during which he is permitted to stay in the country. The Supreme Courts position in Hans Muller v. Superintendent Presidency Jail, Calcutta was followed by the Calcutta High Court in A.H. Magermans v. S.K. Ghose. 3 In this case, the petitioner had failed to get himself registered anywhere in India in accordance with the 1939 Rules. He had also not filed any application for extension of his visa. Accordingly, it was held that the order of deportation did not suffer from any infirmity. The High Court of Himachal Pradesh, in Fred Howard Haering v State of Himachal Pradesh, 4 reiterated the above-mentioned three rulings. RESTRICTIONS ON THE EMPLOYMENT OF FOREIGNERS The power to grant or refuse permission to foreigners to enter India and subsequent restrictions on employment has been provided in the Foreigners Order of 1948.
1 2
Hans Muller v. Superintendent Presidency Jail, Calcutta (AIR 1955 SC 367) at 374. Khalil Ahmad v. State of UP (AIR 1962 Allahabad 383) at 390. 3 A.H. Magermans v. S.K. Ghose (AIR 1966 Calcutta 552). 4 Fred Howard Haering v. State of Himachal Pradesh (AIR 1996 HP 27).
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Further, section 10 of the 1948 Order places restrictions on the employment of foreigners in public sector undertakings. This section states that no foreigner shall, without the written permission of the civil authority, engage in employment in any public sector undertaking supplying electricity, power, water, and petroleum products. Here, again, it is apparent that protection of matters of national importance and security appear to be of paramount concern. Unlike in Dubai, expatriates cannot possibly occupy key positions in public sector undertakings. Section 10 of the 1948 Order has to be read in conjunction with the provisions of the newly introduced Foreign Exchange Management Act, 1999 (FEMA, 1999), which came into force on June 1, 1999. The FEMA, 1999, consolidates and amends the law relating to: (i) foreign exchange with the objective of facilitating external trade and payments; and (ii) for promoting the orderly development and maintenance of foreign exchange market in India. The Act also applies to: all branches, offices, and agencies outside India when owned or controlled by a person resident in India; and also to any contravention thereunder committed outside India by any person to whom the Act applies. The requirements regarding business and employment visas as stipulated by the government of India are discussed here: WORK RELATED VISAS: BUSINESS VISAS AND EMPLOYMENT VISAS Business visas are designated as B visas, whereas employment visas designated are as E visas. The key issues regarding both these sets of visas are tabulated here: Business Visas The Key Features of a Business Visa Are As Follows: B visas are normally granted to foreign nationals who want to visit India to establish or explore possibilities to set up business ventures in India, to purchase or sell commercial and/or consumer durables; for in-house training in the regional hubs of the concerned company located in India, and other related matters; B visas are not granted for the business of money lending, petty trading, or full time employment in India; B visas are granted with multiple entry facilities for a period up to five years, although a stay stipulation may be prescribed for each visit by the concerned Indian Mission; B visas are normally granted to persons of assured financial standing and expertise in the field of the intended business; B visas are issued from the country of origin, or from the country of domicile where the foreign national has been a permanent resident for more than two years; and The foreign national must comply with all other statutory requirements, such as payment of tax liabilities, etc. Supporting Documentation: The foreign national must have a valid travel document and a re-entry permit, if required under the law of the country concerned and proof of financial standing and expertise in the field of intended business. Needless to add, all business-related correspondence should be appended in support of the application. Employment Visas The Key Features of an Employment Visa Are as Follows: Employment visas are granted to foreigners who intend to work in India; Applicant should be skilled and qualified professionals, or persons who are being engaged or appointed by a company, organization, industry, or undertaking, etc. in India on a contract or employment basis at a senior level, or, alternatively, in skilled positions, such as technical experts, senior executives, or either in a managerial position, etc.;
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E visas are not granted for jobs for which large numbers of qualified Indians are available; E visas are not granted for routine, ordinary, or secretarial/clerical jobs; E visas are issued from the country of origin, or from the country of domicile of the foreigner, provided the period of permanent residence of that applicant in that particular country is for more than two years; The Indian company or organization engaging foreign nationals for executing projects or contracts is responsible for the conduct of the foreign national during their stay in India and also for the departure of such foreign national upon expiry of the visa; It is mandatory for the concerned foreign national to comply with all other statutory requirements like payment of tax liabilities, etc.; E visas are initially granted for a period up to one year, but extensions are permitted up to a maximum period of five years from the date of issuance of the E Visa; and It is mandatory for E visas holders to register with concerned foreigners registration officer/foreigners regional registration officer within two weeks from the date of arrival. This is a very important requirement. Failure to register in this regard entails very serious consequences. Supporting Documentation: The foreign national must have a valid travel document, a re-entry permit, employment/engagement contract, and documentary proof of his or her educational qualifications and professional expertise. Practical experience suggests that for both the categories of above-mentioned visas, the documentation should be as comprehensive as much as possible. RECENT DEVELOPMENTS REGARDING POSITION OF CONVERSION OF BUSINESS VISAS INTO EMPLOYMENT VISAS: GOVERNMENT NOW GETS TOUGH ON BUSINESS VISAS FOR FOREIGN EMPLOYEES In the last decade, it became very common for senior and middle level executives and managers of foreign companies to send their employees for exploring the market conditions in India, with a view to potentially starting business operations in India. But, what actually was happening in practice was that these so-called business persons would go to India and, after looking at the favorable economic climate, would actually commence full-fledged business operations on the strength of their business visas. Clearly, this was an outright breach of the immigration laws, as elaborated in this paper. This devise was to obviate the necessity for the foreign employee to go back to his or her country of habitual residence, and to apply afresh for the employment visa. As this practice developed and thrived, such foreign personnel on Indian soil would subsequently have their business visas converted into employment visas. Of course, this shortcut did entail its share of bureaucratic hurdles in so far relating to the variation of leave. But, sadly enough, this practice on behalf of the government of India was extended to the level of workers of foreign origin. This practice assumed significant proportions. Fortunately, the government has realized its fault, and there is now an aggressive damage control exercise. TAXATION OF FOREIGN NATIONALS IN INDIA The liability of income tax of all persons staying in India depends primarily upon their residential status as stipulated in the Indian Income Tax Act, 1961. If a foreign citizen is resident in India, all incomes received, accrued, or arisen to him or her in India and abroadi.e., his or her total world incomeare subject to tax in India. In case a foreign national is not a resident in India, then only incomes that are received, accrued, or arisen to him or her in India are taxable. Tax violations by foreign personnel in India create serious problems when extensions of visas are sought either within India or at the Indian mission overseas. Certain tax exemptions are available to foreign diplomats or consuls, and in certain limited specific situations only.
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LEGAL PROVISIONS IN THE CONSTITUTION OF INDIA PROHIBITING DUAL NATIONALITY Article 9 of the Constitution of India lays the foundations for almost total refusal on the part of Indian law to accept dual nationality and provides that No person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State. This would appear to make exceptions only for such individuals who became a citizen of another state by operation of law rather than their own free will. The Indian judiciary has supported this position and the rather slender Indian immigration caseload reveals a firm reluctance on the part of Indian judges to accept, let alone approve, the concept of dual nationality. 5 OVERSEAS CITIZENSHIP The government of India has recently introduced overseas citizenship by making additions to the existing sec. 7 of The Citizenship Act, 1955. The Citizenship (Amendment) Act, 2003 came into force on January 7, 2004. According to the legislation, dual/overseas citizenship will confer the following benefits to PIOs: The Indian diaspora practically enjoy every other benefit of being an Indian. They will have visa-free entry, which will be a boon since non-resident Indians (NRI) and PIOs spend a lot of time travelling. Their stay will not be limited to the short periods permitted under the visa regime. Also, they will have 10-year passports, renewable for a fee. They can buy and sell property, movable or immovable. Transfer of money will be governed only by the Reserve Bank of India (RBI) restrictions. The RBI is the principal regulating authority of the Indian banking system. They will be taxed only in the host country. It will not be offered automatically, but on a voluntary basis to people who want to be reassured that India has not disowned them. These are excerpts from the report of late Dr. L.M. Singhvi, Chairman, Report of Indian Diaspora. The new above-mentioned dual citizenship scheme denies almost all political rights in India. But, as per recent announcements made by the government of India in the latter part of 2010, voting rights have been granted to NRIs. It can be argued that the new scheme is a modification of dual nationality. Or is it a glorified version of the PIO card scheme? At first blush, for the time being, the Indian diaspora is satisfied on this issue. The main attraction of this scheme is that it will ensure the unrestricted entry of the PIOs and exercise of their economic rights while they are on home soil. NEW ISSUESPIOS CARD SCHEME AND OVERSEAS CITIZENS OF INDIA (OCI) The Persons of Indian Origin Card Scheme was launched on March 31, 1999, and has been taken advantage by an estimated 15 million PIOs. PIOs settled in countries other than Pakistan and Bangladesh will be issued PIO cards that exempt them from the requirements of a visa to visit India. The scheme will bring them on par with NRIs in relation to economic, cultural and financial and educational fields. The PIO card will be valid for 15 years, subject to the validity of passport of the applicant. The PIO card fee for an adult is USD$365, while it is USD$185 for a minor, or its equivalent in local foreign currency of the country concerned, payable along with the application. Gratis PIO Cards may be issued to exceptionally eminent PIOs who demonstrate an important role in building bridges between India and the country of his or her adoption, if he or she expresses a desire to obtain the PIO card. Persons Eligible for Issuance of PIO Cards Include: Those who, at any time, held an Indian passport; Those who, or either of their parents, grandparents, or great-grandparents, were born in and permanently resident in India, as defined in the Government of India Act, 1935; and
See R. Malhotra, Dual nationality for Indians: The need for a fresh debate in 10 I&NL&P, 5759.
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Those who are married to a citizen of India or a PIO as mentioned above. Pakistan and Bangladesh have been specifically excluded under the scheme. Previously, the PIO card scheme had failed to evoke the expected response, mainly due to its initial exorbitant enrollment fee. Seeing the anguish of the NRI community, the Government has now scaled down the fees for obtaining the PIO card. OVERSEAS CITIZENS OF INDIA The children and grandchildren of a foreign national who was eligible to become a citizen of India on January 26, 1950, or was a citizen of India on or at any time after this date, or belonged to a territory that became part of India after August 15, 1947, are eligible for registration as OCIs. They enjoy a lifelong, multientry, multipurpose visa for visiting India. They are also exempted from registration with FRO/police authorities for any length of stay in India, and are entitled to benefits notified under section 7 of the Citizenship Act. An OCI registered for five years and residing in India for one year can be granted Indian citizenship, but have no political rights. Quite often in our daily practice, we are contacted by software companies, banks, and multinationals in the United Kingdom and the United States, as well as other parts of the world, wanting to relocate urgently senior personnel to India on key assignments. If the person involved is of Indian origin, we often advise that obtaining OCI status will result in the fastest possible relocation with the least amount of red tape visa controls. VISASFOREIGN NATIONALS OF INDIAN ORIGIN Foreign nationals of Indian origin can visit India on a multi-entry visa when they hold a letter of Intent/Acknowledgement of Industrial Entrepreneurs Memorandum/License or Provisional Registration with the Director of Industries, etc. Such persons can get an endorsement on their passport for a single/multi-entry visa from the Consulate General/High Commissioner/Embassy of India. Their spouses can also be granted a multi-entry visa for up to five years. Business visas can also be converted into employment visas. Practically, however, it is not that easy because prior permission has to be obtained from the Home Ministry in New Delhi. This is a mandatory requirement of obtaining permission from the central government, which cannot be waived off under any circumstances. CITIZENSHIP IN INDIA Foreign Nationals of Indian Origin, after their settling in India, may intend to acquire citizenship of India, for which provisions are contained in the Citizenship Act, 1955. Citizenship of India can be acquired by (a) birth, (b) descent, (c) registration, and (d) naturalization. Foreigners of Indian origin, can apply for citizenship by registration after their residence for five years in India. Prior to July 1, 1987, this period was six months. Foreigners of Indian origin who are ordinarily resident in Commonwealth countries may also apply for registration. Persons who are married to citizens of India, and are resident in India for five years, can also apply for registration. Minor children can be registered as citizens, when their parents apply for registration. Applications should be made in the prescribed form, in triplicate, to the collector within whose jurisdiction the applicant is ordinarily resident. The oath of allegiance shall be affirmed before the registration. Foreign citizens of non-commonwealth countries may be granted a certificate of naturalization by the central government, where the person has rendered distinguished service in the field of science, philosophy, art, literature, world peace, and human progress. The person to whom this certificate is granted, on taking the oath of allegiance, becomes a citizen of India by naturalization.
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RIGHTS OF FOREIGNERS IN INDIA Faced with pressure to recognize the presence of foreign business interests and personnel, recent Indian courts decisions have given a resoundingly negative message. The Supreme Court of India, in the matter of Louis De Raedt v Union of India 6 held that [t]he fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 9(1)(e), which is applicable only to the citizens of this country. This Supreme Court ruling was also reiterated in the case of Fred Howard Haering. 7 The High Court of Madras held that the government of India has unrestricted powers to refuse citizenship to foreign nationals without giving any reason whatsoever, and foreign nationals cannot claim equality before the law under Article 14 of the Constitution of India, while this fundamental right is guaranteed to Indian nationals. 8 The High Court, while affirming the earlier line of judicial thought in Louis De Raedt and Hans Muller, sternly decided that foreign nationals do not have any fundamental right guaranteed for the granting of Indian citizenship. OTHER SIGNIFICANT ISSUES Foreign lawyers handling infrastructure and transactional work are making vigorous efforts to break into the Indian legal market. This arena also needs deliberation, as well, in so far as it relates to immigration requirements. The contours of our immigration policy need to adapt fast to the present day situation. It is no longer the case that inbound immigration to India is not a major issue. Biometrics and electronic border controls are the need of the hour. It is indeed a major exercise, both in terms of time and expense. However, it is not even on our road map for the future. In this way, anybody with a multiple identity or a dubious identity cannot be granted a visa. IMMIGRATION LAW IN INDIA: NEGLECTED AREA OF LAW We now want to focus on the backdrop of the existing position of business immigration law in India, which has also remained completely neglected. The point to demonstrate here is that the government of India cannot ignore updating and modifying the existing business immigration law in India, which can be a huge potential source of revenue. We now briefly advert to the existing scenario relating to entry, movement, and presence of foreign personnel in India. TREND OF REVERSE MIGRATION A fast moving economic hub, high profile software opportunities, IT Parks, private equity, and initial public offerings, a property boom, Foreign Direct Investment, a global center for medicare, developing trade and opportunity, avenues for professionals created by globalization, the return of the NRI to his or her roots and homeland with funds for investment in Indiathis seems to be the predicted forecast for India in the forthcoming era. Opportunities are booming with reverse migration on the way. A large number of software professionals of high caliber and standing have returned to India from the United States, and continue to do so. BIOMETRICS: NEED OF THE DAY As of now, we do not have the concept of electronic visas or fast track processing of visas. We also have nothing similar to the points-based system which has been introduced in the United Kingdom on a rolling basis in a phased manner. If we had something analogous to the points-based system, a certain amount of discretion would be required to run it, given the geographical size of India and as also to suit the local conditions.
6 7
Louis De Raedt v Union of India (AIR 1991 SC 1886) at 1890. Fred Howard Haering v State of Himachal Pradesh (AIR 1996 HP 27). 8 David John Hopkins v Union of India (AIR 1997 Madras 367).
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CONSOLIDATED WORK PERMIT REGIME REQUIRED The government of India has taken great care in suitably updating or modifying and introducing rules and regulations with regard to Foreign Equity Investment into India. However, the provisions for business immigration into India have been completely ignored in as much as outdated, impractical, obsolete, and rigid provisions of law, which have outlived their utility now, need to be suitably amended and revised in the scenario of the changing world today. A centralized work permit regime in India in the present economic scenario is necessary. Also, provisions need to be made immediately for medical tourism, electronic visas, fast track processing of visas for blue chip workers and corporate personnel, besides taking measures to cope with the trends of reverse migration .The realization has dawned, but the implementation is lacking. It can be asserted that the prime concern of the stringent legislation and judicial decisions pertaining to the entry, presence, and movement of foreigners in India, including business visitors, remains to safeguard the interests of national security. At the same time, the Reserve Bank of India acts like a watchdog, keeping a serious check on the flow of funds to and from India routed through business channels and foreigners. There is now definitely a clear case for framing a new set of consolidated rules focusing exclusively especially on corporate business immigration into India. The present immigration requirements are certainly not conducive to the substantial foreign direct investment that is presently taking place in India. The 1948 Orders are obsolete and have outlived their utility and must be replaced by a work permit regime. The government of India could also explore the possibility of having a limit on the number of work permit visas, like the H-1B cap imposed by the U.S. government. The boom in the Indian technology industry has precipitated the return of the non-resident Indians to their motherland, as they are finding the same opportunities and working conditions. For such a class of blue chip workers, more than the money, the attraction of coming back to their roots is a bigger motivating factor. A new trend is also now emanating, whereby highly skilled foreign manpower is employed on the Indian soil by the foreign parent companies, for running their businesses in India controlled abroad. This issue has been discussed in detail in the main body of this paper. Likewise, foreign personnel of blue chip companies are coming in large numbers to India to set up and manage offices on behalf of their parent foreign companies. Hence, this scenario, all the more warrants the introduction of a work permit scheme. Bangalore alone has reportedly 300,000 software professionals. Additionally, on account of changing economic conditions and a world without borders, we need to keep pace with the times in the arena of immigration law. It is also necessary to consider fast track processing of visas; the premium processing charges associated with these electronic visas would be very beneficial for the software industry. Consolidated licensing or compliance system for employers of foreign workers should be in place, as well. We also need a better website with public information about immigration and visa matters. As of now, there is no website established either by the government of India or a private agency to offer comprehensive consolidated information on immigration rules. Moreover, guidelines followed by the Ministry of Home Affairs are not adequately publicized or made available to the public readily. A great deal of running around is required, at times, to get hold of the relevant information, even relating to penal consequences relating to immigration law, both as applicable to employees and employers. CONCLUSION The prime concern of the stringent legislation and judicial decisions pertaining to the entry, presence, and movement of foreigners in India, including business visitors, remains to safeguard the interests of national security. At the same time, the Reserve Bank of India closely monitors all inward and outward financial remittances undertaken by expatriate foreign personnel and cross border business transactions of foreign establishments operating from India. There is a clear case now for framing a new set of consolidated rules focusing exclusively on business immigration into India, which should replace the existing outdated and rigid provisions. The present immigration requirements do not foster the substantial foreign direct investment that is taking place in India. The government of India has taken great care in suitably updating, modifying, and introducing rules and
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regulations with regard to foreign equity investment into India, while the business immigration provisions have been completely ignored. As in the European Union, safeguarding freedom of movement for goods and capital is one thing, facilitating the free movement of business personnel is another. Lastly, it is about time that the government of India introduced a work permit regime for foreign nationals wanting to set up businesses in India and run offices on behalf of multinationals. All global giants now have a presence in India. They are tapping into the cheap labor market. Sadly enough, their entry is unrestricted and without a price tag. More importantly, the fees for processing work permit applications could be a source of revenue to the exchequer.
ALL ABOARD FOR THE FERTILITY EXPRESS

by Ranjit Malhotra and Anil Malhotra *
Mythological surrogate mothers are well known in India. Yashoda played mother to Krishna though Devki and Vasudeva were biological parents. Likewise, in Indian mythology Gandhari made Dhritarashtra the proud father of 100 children though he had no biological relation with them. The primordial urge to have a biological child of ones own flesh, blood, and DNA aided with technology and the purchasing power of money coupled with the Indian entrepreneurial spirit has generated the reproductive tourism industry estimated at Indian Rupees 25,000 crores (USD$5,000 million) today. This comes as a boon to childless couples all round the world. At the same time it raises serious ethical and legal concerns and mirrors the plight of the poor of an underdeveloped country who are willing to sell something as sacrosanct as their womens motherhood. In a developed country like the United Kingdom, no contract or surrogacy agreement is legally binding. In most states in the United States, compensated surrogacy arrangements are either illegal or unenforceable. In some states in Australia, arranging commercial surrogacy is a criminal offence and any surrogacy agreement giving custody to others is void. In Canada and New Zealand, commercial surrogacy has been illegal since 2004, although altruistic surrogacy is allowed. In France, Germany, and Italy, surrogacy, commercial or not, is unlawful. In Israel, the law only accepts the surrogate mother as the real mother and commercial surrogacy is illegal. What then prompts India to enact a proposed law to make surrogacy agreements legally enforceable is to protect the genetic parents, the surrogate mother, and the child. Indias surrogacy boom began in January 2004, with a grandmother delivering her daughters twins. The success flashed over the world literally spawned a virtual industry in the state of Gujarat in India. Today, while Iceland has the first openly gay lady politician as its prime minister, India boasts of being the first country intending to legalize commercial surrogacy to legitimize both the intra and inter-country surrogacy that abounds. Would-be parents from the Indian Diaspora in the United States, United Kingdom, Canada, and foreigners from Malaysia, UAE, Afghanistan, Indonesia, Uzbekistan, Pakistan besides Nepal are descending on sperm banks and in-vitro fertilization (IVF) centers in India looking for South Asian genetic traits of perfect sperm
*
Ranjit Malhotra was the first Indian lawyer to be awarded the prestigious Felix Scholarship to read for the LLM degree at the SOAS, University of London. He obtained his degree with merit in 1993, specializing in South Asian family law. He is a member of the IBA, IAYFJM, ILPA at London, AILA in Washington, Reunite Child Abduction Agency in London, Indian Council of Arbitration, the IPBA at Tokyo, CLA, ILA in London, and Lawasia at Australia. He is also the deputy chair of the Family Law Committee of Lawasia. He regularly presents papers at conferences in India, America, England, Canada, and Australia. On January 29, 2007, he was elected to the International Academy of Matrimonial Lawyers. He specializes in private international law, appears as an expert witness on Indian family law issues in courts in England, renders expert analysis and testimony for family law and immigration cases, advises foreign lawyers, and conducts trust and probate litigation and international family law work. He is a principal author of Acting for Non-resident Indian Clients, published in 2005. This book was launched at the House of Lords, London, in April 2005 and serves as a commentary on Indian family law and a guide to English family law in an immigration context. Anil Malhotra has been a practicing advocate in India since September 1983. He earned a Bachelor of Science and Bachelor of Laws (Professional) degrees from the Panjab University, Chandigarh, India and an LLM degree from the University of London, where he studied comparative family law at LSE and law and society at SOAS. He taught civil procedural laws and matrimonial remedies for six years as a part-time lecturer at the Faculty of Laws of Panjab University. For over 25 years, he has conducted matters in Indian courts pertaining to interpretation and application of foreign court orders regarding divorce decrees, child abduction, custody, maintenance, adoption, and family-related issues of nonresident Indians. He has co-authored a book titled Acting for Non-resident Indian Clients, published in 2005, and has significant paper and conference participations to his credit. On January 29, 2007, he was elected to the International Academy of Matrimonial Lawyers. His latest publication India, NRIs and the Law was released on September 5, 2009, by the Union Law Minister of India at New Delhi. In May 2010, the Executive Council of the International Law Association, London nominated him as a Member of the International Family Law Committee of the International Law Association.
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donors. Equally, renting wombs is another easy and cheap option in India. Relatively low cost of medical services, easy availability of surrogate wombs, abundant choices of donors with similar racial attributes, and lack of any law to regulate these practices is attracting both foreigners and nonresident Indians (NRIs) to sperm banks and surrogate mothers in India. India, surreptitiously, has become a booming centre of a fertility market with its reproductive tourism industry reportedly estimated at Indian Rupees 25,000 crores (USD$5,000 million) today. Clinically called Assisted Reproductive Technology (ART), it has been in vogue in India since 1978, and today an estimated 200,000 clinics across the country offer artificial insemination, IVF, and surrogacy. So much so, in the recent decision of the Supreme Court regarding Baby Manji Yamada on September 29, 2008, it was observed that commercial surrogacy reaching industry proportions is sometimes referred to by the emotionally charged and potentially offensive terms: wombs for rent, outsourced pregnancies or baby farms. It is presumably considered legitimate because no Indian law prohibits surrogacy. But then, as a retort, no law permits surrogacy either. However, the changing face of law is now going to usher in a new rent-a-womb law as India is set to be the only country in the world to legalize commercial surrogacy. SOME RECENT HAPPENINGS The complicated case of Japanese baby Manji Yamada, born on July 25, 2008, to an Indian surrogate mother with IVF technology upon fertilization of her Japanese parents eggs and sperms in Tokyo and the embryo being implanted in Ahmedabad, triggered complex, knotty issues. The Japanese biological parents divorced and the mother disowned the infant upon its birth in India. The grandmother of the infant petitioned the Supreme Court challenging the directions given by the Rajasthan High Court relating to production and custody of baby Manji Yamada. Her request to the Apex Court for permission for the infant to travel with her and for issuance of a passport under consideration with the Central Government was directed to be disposed of expeditiously. Following the directions of the Supreme Court dated September 29, 2008, the Regional Passport Office in Jaipur issued an Identity Certificate to the baby on November 1, 2008. Thereupon, the grandmother, Emiko Yamada, flew out to Japan with the baby. A Pandoras box has opened with a floodgate of questions and issues related to ethics and legality surrounding surrogacy with Japanese baby Manjis case and even her citizenship status remained unclear. In another separate case, Israeli gay couple Yonatan and Omer Gher became parents in India on October 12, 2008, when their child was conceived with the help of a Mumbai-based surrogate mother in a fertility clinic in Bandra. It is reported that a 3.8 kilo baby boy was born to them at Hiranandani Hospital in Powai (Mumbai) on October 12, 2008. Reportedly, Yonatan and Omer had been together for the past seven years and had decided to start a family. But since Israel reportedly does not allow same sex couples to adopt or have a surrogate child, India became their choice to find a surrogate mother. Yonatan and Omer reportedly first came to Mumbai in January 2008, for an IVF cycle when Yonatan is stated to have donated his sperm. Thereafter, they selected an anonymous mother. Accordingly, the child was conceived with the help of a Mumbai-based surrogate mother in a fertility clinic in Bandra. After the child was born, the gay couple left for Israel with the child on November 17, 2008. Subsequently, in the year 2010, another gay couple, Dan Goldberg and Arnon Angel from Israel, to whom twin baby boys were born in Mumbai from an Indian surrogate mother, were stranded in India after the refusal of the Jerusalem Family Court to allow a paternity test to initiate the process for Israeli citizenship for the twins. The issue was debated in The Knesset (Israeli Parliament), where Prime Minister Benjamin Netanyahu had to intervene so that the infants could be brought to Israel following legal procedures. Ultimately, on appeal, the Jerusalem District Court, accepted the claim that it was in the best interest to hold a DNA paternity test to establish that Dan Goldberg was the father of the twin baby boys, Itai and Liron. The DNA samples of Goldberg and the twins were brought to the Sheeba Medical Centre in Israel, which establish Goldberg as the father of the infants. After being stranded in Mumbai for over three months, Goldberg and his twin boys returned to Israel in May 2010, after being granted Israeli passports. After a frustrating two-year legal battle in India on behalf of their surrogate sonsNikolas and Leonard German couple Jan Balaz and Susan Anna Lohald traveled to Germany after the Supreme Court of India
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intervened; and in a Court hearing on May 26, 2010, the Indian government agreed to provide them exit permits. The twin babies were born in the state of Gujarat in January 2008, and registered as children born of a foreign couple through an Indian surrogate mother. Upon being declined birth certificates, Jan Balaz moved the Gujarat High Court, which ruled that since the surrogate mother is an Indian national, therefore, the children will be treated as Indian nationals and will be entitled to Indian passports. However, the government of India challenged this decision stating that the toddlers being surrogate children, they could not be granted Indian citizenship, which rendered the twins stateless as they received neither German nor Indian citizenship. The German authorities also had refused visas to the twins on the ground that German law did not recognize surrogacy as a means to parenthood. Ultimately, Jan Balaz and Susan Lohald went through an inter-country adoption process in India, upon which the Indian Government granted exit permits to the German surrogate twins to enable their journey back home to Germany. As of now, homosexuality is no longer an Unnatural Offence in India. Previously, under 377 of the Indian Penal Code, which criminalizes homosexuality, was struck down as unconstitutional by the High Court of Delhi on July 2, 2009. However, there is no bar to gay couples hiring a surrogate mother to deliver children for gay couples in India. Thus, there are reports in the media that there are numerous gay couples coming to India to look for surrogate mothers, as India does not disallow such surrogacy arrangements. THE POSITION OF INDIAN LAW ON THE SUBJECT OF SURROGACY In the absence of any law to govern surrogacy, the Indian Council of Medical Research (ICMR) issued guidelines in 2005 to check the malpractices of Assisted Reproductive Technology (ART). These national Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005, are non statutory, have no legal sanctity and are not binding. Silent on major issues, they lack teeth and are often violated. Exploitation, extortion, and ethical abuses in surrogacy trafficking are rampant, go undeterred and surrogate mothers are misused with impunity. Surrogacy in United Kingdom, United States, and Australia costs more than USD$50,000 whereas advertisements on websites in India give varying costs of about USD$10,000 besides offering the services of egg donors and surrogate mothers. It is a free trading market, flourishing and thriving in the business of babies. At a time when the worlds first test-tube baby, Louise Brown, born in 1978 in the United Kingdom has now herself become a mother, and high-profile international adoptions by celebrities like Madonna and Angelina Jolie are glorifying international adoption, India does not lag behind. Noted Indian film actress Sushmita Sen inspires single women both in India and abroad to adopt children, thereby breaking conventional taboos and age-old practices. As a result, orphan girls are finding mothers in India and abroad. Genuine adoptive foreign Indians and NRI would-be parents, too, are pitted against an insurmountable wall. Child adoption in India is a complicated issue. It is over-burdened with knotty legal processes and complicated lengthy procedures for those who want to give a new home and a new life to reported 12 million Indian orphans. Even though the Indian Constitution ordains it to be a sovereign, socialist, secular, democratic republic, 60 years of Independence have not given a comprehensive adoption law applicable to all its citizens, irrespective of the religion they profess or the country they live in as NRIs, Persons of Indian Origin (PIOs), or Overseas Citizens of India (OCIs). Resultantly, those who cannot by law adopt and can be appointed only as guardians under personal Indian laws, turn to options of IVF clinics or rent surrogate wombs. It is in this perspective that India now needs to adopt another law to turn to actual reality dreams of those who live abroad rather than turning to unhappy and some times unethical practices. A silent revolutionary change is fast heralding a new dawn in matter of inter-country adoptions. However, the plethora of Indian laws, does not improve the plight of 12 million orphaned children in India who need adoptive parents. The Guardian and Wards Act (GWA), 1890 permits guardianship and not adoption. The Hindu Adoption and Maintenance Act (HAMA), 1956 does not permit non-Hindus to adopt a Hindu child. Requirements of immigration have further hurdles after adoption. Should the law not change because these children need adoptive parents? Maybe the urge to be a parent has now taken over in the form of embryo adoption, wherein fertilized eggs developed into an embryo are successfully implanted and nurtured by foreign mothers in their homeland ensuring hassle-free adoption of Indian embryos without complicated procedures. Technology has overtaken law. Time is now ripe for Indian laws to legitimize adoptions. It must
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be pointed out here that the laws would only be successful in achieving their ends if and only if an international viewpoint is visibly reflected. Society has engineered changes. Indians, whether NRIs, OCIs, or PIOs, are all Indians and must get the first benefit of adopting Indian children. THE NEW LAW IN THE MAKING In a phenomenal exercise to legalize commercial surrogacy, The Assisted Reproductive Technology (Regulation) Bill and Rules for 2010, a draft bill prepared by a 12-member committee including experts from ICMR, medical specialists and other experts from the Ministry of Health and Family Welfare, Government of India, has been posted online recently for feedback. This bill, also floated in 2008, for comment, is stated to be an act to provide for a national framework or the regulation and supervision of assisted reproductive technology and matter connected therewith, or incidental thereto, as a unique proposed law to be put before the Indian Parliament. Abetting surrogacy, it legalizes commercial surrogacy stating that the surrogate mother may receive monetary compensation and will relinquish all parental rights. Single parents can also have children using a surrogate mother. Foreigners, upon registration with their Embassy can seek surrogate arrangements. It also legalizes commercial surrogacy for single persons, married or unmarried couples stating that the surrogate mother shall enter into a legally enforceable surrogacy agreement. The 2010 draft bill states that foreigners or NRIs coming to India to rent a womb shall have to submit documentation confirming that their country of residence recognizes surrogacy as legal and that it will give citizenship to the child born through the surrogacy agreement from an Indian mother. Before the law is put on the anvil, it needs a serious debate. Ethically, should women be paid for being surrogates? Can the rights of women and children be bartered? If the arrangements fall foul, will it amount to adultery? Is the new law a compromise in surpassing complicated Indian adoption procedures? Is the new law compromising with reality in legitimizing existing surrogacy rackets? Is India promoting reproductive tourism? Does the law protect the surrogate mother? Should India take the lead in adapting a new law not fostered in most countries? These are only some questions which need to be answered before we drape the new law. Let us delve into our hearts and with introspection decide carefully. Are we looking at a bane or a boon? We should not wait for time to test it. We should decide now. The surrogacy bill needs to be discussed threadbare. Despite the legal, moral and social complexities that shroud surrogacy, there is no stopping people from exploring the possibility of becoming a parent. Women who rent their womb for surrogate pregnancy are slowly shaking off their inhibition and fear of social ostracism to bring joy to childless couples. The proposed Bill which is called an Act to provide for a national framework for the regulation and supervision of assisted reproductive technology and matters connected therewith or incidental thereto provides the constitution of a National Advisory Board for Assisted Reproductive Technology, comprising members not exceeding 21, whose functions are confined to promoting the cause of reproductive technology. The salient details are: The new Assisted Reproductive Technology (Regulation) Bill and Rules, 2010, legalizes commercial surrogacy, stating that the surrogate mother may receive monetary compensation for carrying the child in addition to health care and treatment expenses during pregnancy. Both the couple or individual seeking surrogacy through the use of Assisted Reproductive Technology (ART), and the surrogate mother shall enter into a surrogacy agreement which shall be legally enforceable. The surrogate mother will relinquish all parental rights over the child once the amount is transferred and birth certificates will be in the name of commissioning parent(s). The prescribed age-limit for a surrogate mother is between 21 and 35 years. The proposed bill also states that no women shall act as a surrogate mother for more than five children including her own. Single persons, men or women or single parents, unmarried couples can also have children using a surrogate mother. In case of a single man or a woman, the baby will be his or her legitimate child. A child born to an unmarried couple using a surrogate mother and with the consent of both the parties shall be their legitimate child.
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All foreigners seeking infertility treatment in India will first have to register with their embassy. Their notarized statement will then have to be handed over to the treating doctor. The foreign couple will also state whom the child should be entrusted to in case of an eventuality such as a genetic parents death. A foreigner or foreign couple not resident in India or an NRI individual or couple seeking surrogacy in India shall appoint the local guardian legally responsible for taking care of the surrogate child during and after pregnancy. The party seeking surrogacy must ensure and establish to the ART clinic that the party would be able to take the child born through surrogacy outside India to the country of the partys origin or residence as the case may be. A child born out of surrogacy shall be the legitimate child of both the parties or of the single man or woman as the case may be. The birth certificate will contain the name or names of the genetic parent or parents (as the case may be) who sought such use. If parties get divorced or separated, the child shall be the legitimate child of the couple. The birth certificate of a child born through the use of Assisted Reproductive Technology shall contain the name or names of the parent or parents, as the case may be, who sought such use. If a foreigner or a foreign couple seeks sperm or egg donation, or surrogacy, in India, and a child is born as a consequence, the child, even though born in India, shall not be an Indian citizen. Foreigners or NRIs coming to India seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after pregnancy till the child is delivered to the foreigner or foreign couple or the local guardian. Further, the party seeking surrogacy must ensure and establish through proper documentation that the country of their origin permits surrogacy and that the child born through surrogacy in India will be permitted entry in the country of their origin as a biological child of the commissioning couple /individual. If the foreign party seeking surrogacy fails to take delivery of the child born to the surrogate mother, the local guardian will be legally obliged to take the child and be free to hand over the child to an adoption agency. In case of adoption or the legal guardian having to bring up the child in India, the child will be given Indian citizenship. Surrogacy is recommended for patients for whom it is medically impossible/undesirable to carry a baby to term. ART clinics must not advertise surrogacy arrangements. The responsibility should rest with the couple or a semen bank. ART clinics must ensure that the surrogate woman satisfies all the testable criteria (sexually transmitted or communicable disease that may endanger the pregnancy). A prospective surrogate mother must be tested for HIV and shown to be a seronegative for this virus just before embryo transfer. LEGAL ISSUES PLAGUING THE FIELD AND THEIR SOLUTIONS Position of Indian law today vis--vis surrogacy arrangements: The questions now often posed professionally are: (i) what would be the remedy available to biological parent/s to obtain exclusive legal custody of surrogate children; (ii) how can the rights of the surrogate mother be waived off completely; (iii) how can the rights of the ovum or sperm donor be restricted; and (iv) how can the genetic constitution of the surrogate baby be established and recorded with authenticity. As of now, in the case of foreigners or non-Hindu couples, single parents or gay parents, they can only claim guardianship of a child under the GWA in respect of children born out of surrogacy arrangements. The adoption process can take place only in the foreign parents country of nationality or permanent residence as the case may be. This is because the HMGA and HAMA do not allow any adoption proceedings to non-Hindus and thus any foreign non-Hindu parent cannot invoke HAMA/HMGA for adoption proceedings in India. Unless, these Indian enactments are amended or a new provision is enacted, adoption may be difficult for non-Hindu couples or foreigners.
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Surrogacy in India is legitimate because no Indian law prohibits surrogacy. To determine the legality of surrogacy agreements, the Indian Contract Act would apply and thereafter the enforceability of any such agreement would be within the domain of Section 9 of The Indian Code of Civil Procedure (CPC). Alternatively, the biological parent(s) can also move an application under the Guardian and Wards Act for seeking an order of appointment for a declaration to be declared as the Guardian of the surrogate children. In the absence of any law to govern surrogacy, the 2005 ICMR Guidelines apply. But, being non-statutory, they are not enforceable or justifiable in a Court of Law. Under para 3.10.1 a child born through surrogacy must be adopted by the genetic (biological parents). However, this may not be possible in case of nonHindu foreign parents who cannot adopt in India. Under sec. 10 of the Indian Contract Act, 1872 all agreements are contracts, if they are made by free consent of parties competent to contract, are for a lawful consideration, are with a lawful object, and are not expressly declared to be void. Therefore, if any surrogacy agreement satisfies these conditions, it is an enforceable contract. Thereafter, under Section 9 CPC, it can be the subject of a civil suit before a Civil Court to establish all/any issues relating to the surrogacy agreement and for a declaration/injunction for the reliefs prayed for. Other issues, which have now cropped up for opinion are (v) as to whether a single or a gay parent can be considered to be the custodial parent of a surrogate child. As of today, it may be stated that a single or a gay parent can be considered to be the custodial parent by virtue of being the genetic or biological father of the surrogate child born out of a surrogacy arrangement. Japanese baby Manji Yamadas case (JT 2008 (11) SC 150) and the Israel gay couples case who fathered the child in India are clear examples to establish that this is possible. Under paragraph 3.16.1 of the 2005 ICMR Guidelines dealing with legitimacy of children born through ART (which were the basis of the claim in the Japanese babys case in the Supreme Court), this claim can be made. However, only in a petition for guardianship under GWA and/or in a suit for declaration in a Civil Court, the exclusive custodial rights can be adjudicated by a court of competent jurisdiction upon appreciation of evidence and considering all claims made in this regard. What would be the status of divorced biological parents in respect of the custody of a surrogate child. Essentially, this is a question which will require determination in accordance with the surrogacy agreement between the parties. There would be apparently no bar to either of the divorced parents claiming custody of a surrogate child if the other parent does not claim the same. However, if the custody is contested, it may require adjudication by a court of competent jurisdiction. Would biological parent(s) be considered the legal parent of the children. In answer to this question it can be stated that the biological parents would be considered to be the legal parents of the children by virtue of the surrogacy agreement executed between the parties and the surrogate mother. Under para 3.16.1 of the 2005 ICMR Guidelines dealing with legitimacy of the child born through ART, it is stated that a child born through ART shall be presumed to be the legitimate child of the couple, born within wedlock, with consent of both the spouses, and with all the attendant rights of parentage, support and inheritance. Even in the 2010 Draft Bill and Rules, a child born to a married couple, an unmarried couple, a single parent or a single man or woman shall be the legitimate child of the couple man or woman as the case may be. How the domain of international law can provide an amiable solution to the rising complexities arising out of inter-country surrogacy settlements. However, the moot question which may arise for determination whether a judicial verdict for determination of rights of parties in a surrogacy arrangement is essential in respect of a foreign biological parent who wishes to take the surrogate child to his or her country of origin or permanent residence, it can be said that either a declaration from a civil court and/or a guardianship order ought to be a must to conclusively establish the rights of all parties and to prevent any future discrepancies arising in respect of any claims thereto. POSITION OF LAW UNDER THE 2010 BILL Under the ART Regulation Bill 2010, ART, surrogacy, gamete, and surrogacy agreement have been defined as follows:
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Assisted Reproductive Technology with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling or manipulating the sperm or the oocyte outside the human body, and transferring the gamete or the embryo into the reproductive tract; Surrogacy means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate; Gamete means sperm and oocyte (that is egg); and Surrogacy Agreement means a contract between the person(s) availing of assisted reproductive technology and the surrogate mother. Chapter 2 of the bill describes the constitution of authorities to regulate Assisted Reproductive Technology. A 21-member National Advisory Board comprising various experts is sought to be created with functions to promote ART-related issues. State boards are recommended in states and state registration authorities are sought to be created for procedural purposes. Proceedings before the national and state boards are deemed to be civil court proceedings for limited purposes and are sought to be treated as judicial proceedings even though the constitution of the national or state advisory board have no judicial officers, judges or designated courts as constituents. Chapter 3 of the bill talks for procedures for registration and complaints in respect of ART clinics. Chapter 4 talks of the duties of such clinics. Chapter 5 talks of sourcing, storage, handling and record keeping for gametes, embryos and surrogates. Chapter 6 relates to regulation on research on embryos. Chapter 7 discusses rights and duties of patients, donors, surrogates and children in extensor. The rights and duties are well defined and determination of the status of the child is laid out in detail irrespective of the status of parties as a couple, as an unmarried couple, as single parents, gay parents or otherwise. The duty to take children born through surrogacy from India to the country of origin or residence of the biological parents or residence is spelt out. Chapter 8 talks of offences and penalties for contravening the provisions of the act and Chapter 9 talks of maintenance of records, power to search and seize, power to make regulation and rules. The Act is stated to be in addition to, and not in derogation with, any other law for the time being in force. ANOMALIES IN THE ART REGULATION BILL 2010 The bill has neither designated, nor authorized nor created any court or judicial forum to resolve issues which will require adjudication in problems arising out of surrogacy, ART and surrogacy agreements. This is a very big lacunae in the bill. There has to be a designated or a defined dourt as in the Hindu Marriage Act or the Guardian and Wards Act, which has to be vested with the authority in law to decide disputes arising under the proposed law. The National and State Advisory Boards are only authorities who will promote ART Technology, Surrogacy Arrangements and related procedures. The proceedings of these Boards have been deemed to be Judicial Proceedings before civil courts for limited purposes. There is no designated court, judicial officer or judge appointed, created, or nominated for this purpose. Therefore, how far these advisory boards will be able to perform the Judicial Proceedings deemed to be a Civil Court remains to be seen. Chapter 3 talks of complaints, Chapter 4 talks of duties, Chapters 5 and 6 talks of more ART-related issues. Chapter 7 talks of duties. Chapter 8 talks of offences and penalties which carry serious consequences. But the question is who will adjudicate these and decide them to impose penalties. Who will determine these offences? Unless and until a court is designated, created or nominated, all this will remain inconclusive, indecisive and incomplete. There are already serious issues of determining parentage, nationality, issuance of passport, grant of visas and problems of disputed parentage. There is no forum defined, designated or created which will look into these problems or determine how they have to decided or dealt with. Baby Manji Yamadas case is an eye opener. Thereafter, the Israeli gay couples case and the German couples case, are a follower in the sequel of problem areas. Embassies, foreign missions and high
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commissions of different countries in India are looking at a resolution on these issues by means of a law in the making. But, parentage, nationality, passport, visa and related issues remained undetermined in the law in making. There is already a conflict on adoption and guardianship as non-Hindus cannot adopt in India. Therefore, would it not be better to make it mandatory to create a court for adoption/guardianship purposes by proper statutory enactments before a child is removed from India to a foreign country. This will not only provide a system for uniform application to check malpractices but will also conclusively ascertain rights of parties in case of a dispute. Moreover, all embassies, foreign missions and high commissions will be guided by a proper procedure. Thus, the Indian law cannot afford to remain a kupa-manduka or the frog in a well approach and must embrace the concept of vasudevayakatumbakam, i.e., the whole world is my family. In the light of the above thoughts, it may be necessary to create a procedure for adoption, guardianship, determination of rights, etc. to be mandatory through a nominated court, designated court or specified authority to be compulsorily followed in case of any inter-country surrogacy arrangement. Likewise, this forum, court, authority can also be the adjudicating authority to determine disputes decide offences and determine penalties under the bill. Without this, the proposed act is not meaningful, is inconclusive and will only create more uncertainty leading to more disputes and inconsistent views.
CORPORATE MIGRATION TO ISRAEL FOR BUSINESS AND WORK PURPOSES

by Tsvi Kan-Tor *
ISRAEL: MIGRATION CHALLENGES ALONGSIDE GREAT OPPORTUNITIES FOR EXPERTS Corporate immigration has become a public policy issue in Israel only since the 1990s. It arose from the need for foreign experts as the entry of international businesses greatly increased due to stable economic growth and purchasing power (current GDP per capita is USD$28,400). Israeli Migration Law Israeli migration laws are based on a combination of legislation, regulations, court decisions, and practices. The Law of Return 1 is the most significant piece of legislation. It establishes the birthright of Jewish ancestry and allows beneficiaries, as well as their immediate family members, to settle in Israel and gain citizenship. This is called Eligible By the Law of Return. Other major laws are: Entry into Israel Law, 2 Citizenship Law, 3 and the Foreign Employees Law, 4 which governs and regulates all aspects of employment of foreign nationals in Israel, both manual workers, Blue Collars and foreign experts, White Collars. The abovementioned laws and regulations determine all issues, such as the permissible periods of work in Israel (no more than 63 months), the permitted industries, as well as the terms of employment, enforcement measures, and penalties for illegal employment. It is the employers responsibility to abide by these statutory provisions. Employment of any foreign nationals without a valid B-1 working visa is a criminal offense, subjecting the corporate employer to heavy fines and the manager to several criminal sanctions, including imprisonment. A foreign individual working without a valid work visa is subject to deportation from Israel at the employers expense. ISRAELI MIGRATION CHALLENGES The main challenge is letting the necessary workers and experts into Israel, while insulating the local workforce from unfair and undesirable competition. First ChallengeThe Experts Experts can obtain a one-year, renewable work visa in Israel on a quota-free case-by-case basis. Experts may prove their expertise in any reasonable way (this is specified in the Boochris committee), 5 not necessarily through academic education. The experts work permit usually must be sponsored by an Israeli entity. In certain cases, sponsorship by a global company is possible. A work permit is required as of day one. 6 There is no grace period in Israel to that regard. The fact that one does not get his or her salary in Israel, or does not receive a salary at all, is a non-factor. Extensions for
Tsvi Kan-Tor, born in Israel in 1953, is a graduate of Tel Aviv University Law School. Mr. Kan-Tor has practiced U.S. corporate relocation law since 1993, specializing in nonimmigrant visas and consular processing. He is the managing partner of Kan-Tor & Acco, an Israeli law firm dedicated to global corporate migration. Mr. Kan-Tor is coauthor of four books on U.S. immigration law and one on Israeli immigration law. He is a member of AILA, the ERC, and the Israeli bar. He has served as a commentator, frequent speaker, and lecturer in several media platforms about global mobility and global corporate migration. 1 Law of Return, 57101950 (Isr.). 2 Entry into Israel Law, 57121952 (Isr.). 3 Nationality, 57121952 (Isr.). 4 Foreign Workers Law, 57511991 (Isr.).
5 6 *
Boochris Committee Foreign Workers Report, July 2001. Entry into Israel Law, 57121952 (Isr.).
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up to 63 months are possible, but it gets harder every year. The 63 months are on a calendar basis and NOT on actual presence basis, so there is no recapturing. Israeli law generally provides for only one type of work status relating to the employment of foreign professionals and non-professionals. There is a single and strict minimum wage for foreign experts, which is double the average salary in Israel 7 at the time of filing the application or the extension. Today, this monthly salary is about $4,500 gross or $54,000 annually. The Israeli government always strives to protect the local labor market. According The Closed Skies Policy, companies can recruit Blue Collar foreign employees from workers who are already in Israel, either legally or illegally. As a signatory member of the World Trade Organization (WTO), and a partner in the General Agreement on Trade in Services (GATS), 8 Israel is committed to allow managers and executives of foreign multinational corporations to enter to take part in foreign-investment projects in Israel. In addition, Israel is a partner to several bilateral agreements with numerous countries mutually committed to facilitating employee relocation from one country to another. Security is of vital importance in Israel. Nevertheless, the authorities manage to issue work permits to many nationals, including citizens of countries with poor relations. NEW ISRAELI IMMIGRATION AGENCY AND POLICY AND ENFORCEMENT Quite recently, the Israeli government established The National Population, Migration, and Border Control Authority (the Population Authority) to centralize the enforcement of immigration policy and border control. The Population Authority consolidated approval of different types of visa requests to deportation, and identification of unauthorized foreign nationals and asylum seekers through a national computer grid. B-1 Visa Category The process for obtaining a B-1 visa includes several separate bureaucratic steps: Submission of a work permit application with the Semech Unit operated by the Ministry of Interior (Semech unit); Filing of a subsequent visa application with the Ministry of Interior (MOI); Issuance of a short term B-1 visa at the relevant Israeli consular post abroad prior to entry into Israel; and Extension of the B-1 visa at the MOI after arrival in Israel, and obtaining a multiple entry visa for the entire B-1 approval period. In particular cases, the assignee also may be regarded as an Approved Specialist, enjoying tax benefits. The Process of Issuing a Work Permit The process of issuing a work visa starts with preparing a very detailed and comprehensive application, according to frequently updated regulations and requirements. Such an application must contain a detailed description of the job position and provide complete details about the prospective employee, including educational background, professional experience, proposed salary in Israel, etc. Processing times for work permit applications range from four to eight weeks. If the application is approved, then the Population Authority will advise the applicant or the lawyer and issue a B-1 recommendation letter to the MOI.
7 8
Israeli government decision no. 2445, Aug. 15, 2004. General Agreement on Trade in Services 19.
CORPORATE MIGRATION TO ISRAEL FOR BUSINESS AND WORK PURPOSES
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Visa Application and Consular Processing Upon issuance of the Population Authoritys approval, it will be transferred to the MOI, asking that it instruct the relevant Israeli consular post abroad to issue a B-1 work visa to the foreign national. Processing times for this notice currently range between two and four weeks. Please note that work permits and valid B-1 visas must be arranged before entering Israel. It is very difficult to do change of status. Visa Extension in Israel Following entry into Israel, an application for a new B-1 visa stamp for an extended validity period (up to one year) and for multiple entries, must be processed at the local MOI. This latter step should be completed as soon as the individual arrives in Israel, and prior to any departure. Any departure from Israel before such visa is provided, will cancel the applicants B-1 visa obtained at the consulate and require re-processing of the visa at the consulate. Therefore, it is important that the applicant advise his or her lawyer as soon as possible prior to the date of expected arrival to Israel, to receive instructions regarding sending the passport to him or her. TRENDS The official declared policy of Israel regarding foreign employees aims to prevent undocumented and illegal employees from working in Israel while keeping foreign workers under tight control, and issues work permits for experts and skilled employees according to demand. Enforcement and punishment is expected to become stringent during 2011 and more so in the future. Spouses According to the Israeli Foreign Employee legislation, a spouse of a foreign employee with a valid work permit will receive a resident visa that bars employment. In most cases, it is a multi-entry visa. Same Sex Partner/Common Law Partner There is no direct or clear legislation in Israel on these unique cases that are also referred to as Significant Other, Common Law Marriage, and Same Sex Partner. While the legislation remains the same, policy and regulations do change according to different factors ranging from personal circumstances to political coalition in the Israeli government at the time of filing a specific application. It is advisable to seek legal advice on these issues on a case-by-case basis and allow more time than average. ENFORCEMENT The newly established Population Authority enhances efficiency of the enforcement of migration laws. Part of this change is attributable to the establishment of a dedicated enforcement unit called the Oz Unit, which is similar to U.S. Immigration and Customs Enforcement. Enforcement is stronger than ever, and is expected to get even stronger in the near future. Courts are starting to acknowledge these offenses and average punishment is increasing. DEPORTATION Deportation is part of the enforcement policy of Israel. During the last year, the Oz Unit increasingly started deportations. Illegal employees are being deported on scheduled flights; there are deportation flights to special destinations. Recently, the Oz Unit started to use charter flights to Sudan and deport families with young children (after due process).
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CRIMINAL LIABILITY Criminal liability is imposed on all parties, but mainly on the Israeli managers. 9 A company found criminally liable will usually be subject to a major fine and placement on a black list. A foreign employee will face a short imprisonment, deportation, a bar from entering Israel. Moreover, additional countries will learn of the migration violation. The criminal liability of a manager, with or without Israeli citizenship, can vary from a fine to all ranges of criminal punishments and sanctions. SARBANES-OXLEY REGULATONS (SOX) The main goals of the SOX regulations and legislation are compliance and transparency. Those goals can be kept while obtaining work permits for any foreign employees in Israel. Work permits can be obtained in a reasonable time while acting only in a legal manner.
Foreign Workers Law, 57511991.

GENERAL INFORMATION ON IMMIGRATION IN ITALY FOR BUSINESS AND WORKING PURPOSES

by Marco Mazzeschi *
With immigration levels already high and still growing, Italy finds itself to be one of the first countries of the European Union (EU) in the number of immigrants arriving and the leading destination country in the Mediterranean region. Italy still lacks a global social policy to deal with immigration, notwithstanding the approval of the immigration laws (Decree 286/98 and Decree 394/99). Immigration in Italy has therefore depended (and still depends) much more on push factors in the countries of origin of the emigrants than on pull factors in the host nations. Italy has a specific regulation relative to skilled workers and for intracompany assignments. Such applications (based on the assumption that workers will remain on the sending companys payroll and cannot be directly hired in Italy) are exempted from the quotas system, under which the direct hiring of a nonEuropean Union (EU) worker by an Italian company is allowed only within the quotas approved yearly by the government. Since 1999, in fact, the legislation allows for immigration flows. Annual quotas are determined by the government according to the needs of the labor market. These quotas are established for: Some categories of workers, such as nurses and information technology (IT) or communication specialists, while no more specific reference is made, for example, to engineers or computer/software programmers; and Citizens of some specific countries (many quotas are generally allocated to Mediterranean countries such as Morocco, Tunisia, Albania, and Egypt). ITALIAN IMMIGRATION PROCEDURE FOR WORK OR BUSINESS PURPOSES Italian immigration procedure for work or business purposes varies depending on the length of the foreign citizens intended stay in Italy. Short-Term Stay If the foreign worker needs to enter the country and carry out business activities for a short period (less than 90 days), the following procedure is to be followed: Business Visa Requestif the worker is a visa national, he will need to obtain a business visa, which must be applied for at the diplomatic Italian authority (Italian consulate) in the citizens country of residence. It cannot be issued directly in Italy or by a consulate of a country where the applicant is not formally resident. Usually the visa is released after three to 15 days from the application date. This timing may vary depending on the competent diplomatic authority with which the request has been filed. Non-Visa NationalsNon-visa nationals can enter on tourism or business for up to 90 days without need of a visa. Italian law does not provide clear definition of the activities that can be carried out while on business. Business visitors are allowed to travel in Italy (and visit the other Schengen countries) to carry out commercial activities, to conduct negotiations and stipulate agreements, to attend seminars, and to install, check and repair products and equipment sold or purchased on the basis of commercial and industrial cooperation.
Marco Mazzeschi is a graduate of the University of Siena (1985) and admitted to the Milan Bar Association. He is considered one of the leading business immigration lawyers in Italy. He is a member of AILA and International Bar Association. He speaks regularly at international seminars and conferences and has written several articles and contributions relating to immigration issues. He is the founder of Mazzeschi Srl (www.mazzeschi.it), the leading immigration firm in Italy.
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Long-Term Stay If the foreign worker needs to work and stay in Italy for more than 90 days, Italian law mainly distinguishes between three kinds of foreign workers: subordinate workers, autonomous workers, and assigned workers. Subordinate Workers (lavoratori dipendenti) 1 Subordinate workers (i.e., employees) are those whose services are hired by a company or an employer operating in Italy. The issuance of a visa for a lavoro subordinato is subject to the specific quotas released annually by the government for the intake of foreign workers. The Italian company will need to obtain a work permit (issued by the immigration office, after the company has obtained clearance from the labor authority and from the police) in order to be authorized to hire the applicant. Autonomous Workers (lavoratori autonomi) 2 Autonomous workers are those who set up in Italy to work independently as a consultant, to practice a licensed profession (e.g., doctors, architects, or attorneys), to set up a company or to be appointed as legal representative of an Italian company. The procedure for consultants and those who intend to carry out a licensed activity is more lengthy and the work permit is issued subject to the availability of quotas. The issuance of a visa for those appointed as officers of Italian companies is faster but the Italian company must be in good standing and provide sufficient guarantees for the applicant. Assigned Workers (lavoratori distaccati) The assignment procedure can be followed when a worker is assigned to work at an Italian company for a fixed period of time (for intracompany assignments, initially no more than two years; this can be extended up to five years), while remaining on the payroll of the foreign company. The Italian immigration law provides for different kinds of assignment procedures, depending on the relationship between the foreign and Italian company and the job to be carried out. 3(i) Intracompany Transfer 3 Under this procedure, the foreign worker can be transferred from a foreign parent company to an Italian affiliate. This kind of assignment procedure is applicable to highly specialized personnel or managers who have been on the foreign companys payroll or working in the same field (or in the payroll of a company of the same group) for at least six months. 3(ii) Service Agreement Assignment 4 This procedure requires collaboration between the workers foreign company and the Italian company. A service agreement must be prepared between the two companies outlining the specific services that the foreign worker will carry out during the assignment in Italy. The Italian company will also need to send a notice to the local unions informing them of the reasons for the assignment, although the unions do not have the right to object. 3(iii) Highly Qualified Workers 5 This procedure allows companies or entities operating in Italy to transfer highly qualified workers to Italy for a determined period in order to carry out a specific task or activity. Special Categories of Workers In addition to the categories listed above, there are a number of special categories of workers who can work in Italy on assignment for temporary periods, e.g., journalists, athletes, artists, and nurses.
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Art. 22 Decree 286/98. Art. 26 Decree 286/98. Art. 27(a) Decree 286/98. Art. 27(i) Decree 286/98. Art. 27(g) Decree 286/98.
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GENERAL INFORMATION ON IMMIGRATION IN ITALY FOR BUSINESS AND WORKING PURPOSES
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Individuals who have a work permit issued by another EU country (and who are hired locally) can be transferred to Italy based on a service agreement between their employer and an Italian company. In such a case a work permit is not needed; it is sufficient that the Italian company send a notice to the local immigration office. 6 Workers who meet the conditions for an intracompany assignment (i.e., six-month seniority in the same field and the host and sending company are part of the same group) and who carry out some freelance activities that are also for the benefit of the Italian host company can obtain a self employee work permit, which is issued by the police rather than by the immigration office. 7 TRENDS Even if immigration decreases as a result of the economic crisis, Italy will still need to develop a more efficient system for the recruitment of foreign workers. How the government deals with immigration issues is a very sensitive political topic and highly controversial. It will be interesting to see the development of the socalled EU Blue Card, which, once fully enforced, will enable skilled workers from non-EU countries to move freely around the continent to fill gaps in labor markets. As a general remark, Italy has always been late in implementing EU legislation and it can be expected to take some time before the full implementation of this rule takes place. Notwithstanding the economic crisis, it is likely that in certain sectors, such as IT, or for certain workers, such as highly skilled workers and domestic care workers for the elderly, the need for foreign workers will remain unchanged.
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Art. 27/1 bis Decree 286/98. Art. 40/22 Decree 394/99.

IMMIGRATION CONSIDERATIONS FOR BUSINESS TRAVEL IN THE AMERICAS

by Enrique Arellano, Daniela Lima, Deborah A. Marlowe, and Heather N. Segal *
As companies continue to expand business operations beyond the borders of their home countries, the number of business trips around the world has increased exponentially. The variations among countries over fundamental matters, such as the parameters for appropriate business activities and the possible requirement of a visa for entry, illustrate the importance of increasing awareness of the basic, but often overlooked, reality that different countries have different rules. Ensuring both ease of travel and compliance with immigration laws globally demands extensive familiarity with the immigration laws governing business travel. By way of illustration, this article provides a general overview of considerations for business travel to four countries in the Americas: Brazil, Canada, Mexico, and the United States. The key questions for each country are the following: What types of activities are permissible for a business visitor? Will a visa stamp be required, or are there any circumstances in which a visa is not required? What is the general process for obtaining a visa stamp? How long may a business visitor remain in the country, and are any extensions available? What options are available to accompanying family members? BRAZIL The visa category of Temporary visa, item II: business is available to foreign professionals who will travel to Brazil for specific short-term business missions and do not intend to reside in the country. The
Enrique Arellano is the founder and senior partner of Enrique Arellano Rincon Abogados, S.C., specializing in Mexican corporate immigration law since 1976. The firm is committed to delivering high-quality, professional immigration services to a wide variety of multinational companies. The main offices are located in Mexico City, with regional offices in Monterrey, Guadalajara, and Saltillo. Mr. Arellano is a native of Mexico City and is a graduate of the Universidad Nacional Autonoma de Mexico Law School, where he presently serves as the immigration specialist on the Universitys Board of Regents Legal Committee. He speaks Spanish and English. Daniela Lima is an attorney-at-law and partner of Emdoc, a firm that has provided immigration consulting services for more than 25 years. Having worked for nine years in the immigration field, she has helped expatriates to obtain their visas and Brazilian documents and transfer their families to Brazil. She is a Global Mobility Specialist GMS for Employee Relocation Council (ERC-Chicago 2005). She has been a participant in several seminars in the immigration field and global relocation, including the Employee Relocation Council, AILA, and International Bar Association conventions that take place yearly in the United States and Europe. She has also served as a panelist in seminars in Brazil and out of the country about immigration and international relocation. Deborah A. Marlowe is a partner with Berry Appleman & Leiden LLP and serves as co-chair of the Atlanta and New York offices. Ms. Marlowe is also a managing partner of the Firms global practice group. She practices in all areas of businessrelated immigration law globally, with a particular focus on the United States and Europe, the Middle East and Africa. She has developed immigration training programs for corporate human resources and legal professionals, and has also addressed a variety of business and professional groups regarding immigration concerns. She is a founding member of the Global Personnel Alliance, a loose consortium of internationally active companies interested in global personnel mobility. Ms. Marlowe is a graduate of University of Michigan Law School. Heather N. Segal is a partner at Guberman, Garson in Toronto, Canada, and is considered one of the Best Lawyers, according to The Best Lawyers in Canada. Ms. Segal exclusively practices Canadian immigration law and U.S. consular and cross-border immigration law. She is a member of the State Bar of California and the American Bar Association, and licensed by the Law Society of Upper Canada. She is also a member of the immigration section of the Ontario Bar Association and Canadian Bar Association. A director on the AILA Board of Governors, Ms. Segal has spoken at numerous AILA conferences and served as a member of the AILA Customs and Border Protection (CBP) liaison Committee.
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authorization of business visas is administered by the Ministry of Labor as required by the Brazilian consular authorities. This visa allows the visitor to participate in meetings, conferences, trade fairs, and seminars; visit potential clients; conduct market research; or perform similar activities. The business visitor must not work in Brazil for the benefit of a Brazilian company. Any such work may result in a fine for the company, as well as the compulsory departure of the visitor from the Brazilian territory, even if there is no payment of remuneration in Brazil and even if the work occurs for a very short period of time. An individual may apply for a business visa at the Brazilian consulate with jurisdiction over the applicants residence of at least one year. The rationale is to ensure that Brazilian authorities are able to evaluate any factors that may hinder the granting of a visa, such as a prior conviction or lawsuit. An individual may be excepted from the one-year jurisdictional residence requirement only in the event of a force majeure or other special circumstances. A business visa may be waived by the Brazilian authorities based on international agreements or treatment reciprocity agreements. The complete list and daily updates of these countries can be found on the website of the Ministry of Foreign Affairs, Consular Portal, at www.abe.MRE.gov.br/antes/quadro-geral-de-regime-devistos-1. Business visas are usually issued for a term of 90 days, except that citizens of Australia, Canada, India, New Zealand, and the United States may be granted visas for up to five years pursuant to governmental agreements. The application for a business visa should include a statement from the domestic and foreign entities, which requests permission for the visitors travel and provides the following information: The purpose of the trip and the activities to be undertaken by the visitor; Names, addresses, and telephone numbers of business contacts in Brazil; Date of arrival and expected date of departure; and Guarantee of financial and moral responsibility by the applicant during his or her stay in Brazil. Regardless of the validity of the visa, the Immigration Police at the port of entry will determine the permitted length of the stay, with a maximum initial stay of 90 days. It is possible to extend the stay for an equal period, as long as the request is made to the Immigration Police before the expiration. A visitor is prohibited, however, from exceeding a stay of 180 days. Dependents of a business visitor are not permitted to apply for business visas, but should have tourist visas, which allow multiple entries to Brazil. The length of the dependents stay is also established by the Immigration Police and may also be reduced with no justified reason. Finally, it is forbidden for these dependents to perform remunerated activities in Brazil. Dependents who wish to work in Brazil must obtain an adequate authorization and a new corresponding visa, complying with all the regular requirements. CANADA Individuals who will pursue business activity are eligible to enter as business visitors. They may not be directly entering the Canadian labor market. The objective must be to stay for a temporary period of time and then return to the home country. There may be no intention to remain permanently in Canada. A business visitor must prove that the main source of income and main place of business are outside of Canada. The visitor must not receive any remuneration from a Canadian source. Further, the actual place of accrual of profits must remain predominantly outside of Canada. The underlying presumption is that the business activity is international in scope. Generally, a business visitor may explore business opportunities, invest, develop or enhance existing business relationships, and attend business meetings and conferences. The regulations outline an extensive list of applicants for admission who will qualify as business visitors. The most commonly-used category is the After Sales Service section, which allows individuals who are repairing, servicing, or supervising installers for commercial or industrial equipment, including computer software, to enter Canada, provided that the service is being performed as part of an original or extended sales agreement, lease agreement, warranty, or service contract.
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Canada has a number of specific parameters for business visitors. In some ways, this makes it easy to determine if a work permit is required. If the applicants proposed activities in Canada falls outside the parameters of acceptable business activity, then a work permit may be necessary. Citizens and permanent residents of certain countries may be exempted from the visa requirement, as indicated at www.cic.gc.ca/english/visit/visas.asp. All other individuals will require visas in their passports to enter Canada. If a visa is required, then an application for a visitors visa should be submitted to a Canadian consulate or embassy. The visa is generally issued on the same day if submitted in person and may take three to six weeks if submitted by mail. Applicants must bring evidence reflecting their business activities in Canada. A business visitors visa may permit a single entry or multiple entries. The duration of the visa may vary depending on the reasons behind the application and the immigration history of the applicant. Stays in Canada are only granted initially for up to six months. Applications for extensions may be submitted if the applicant is in the country. The stamp or visitors record issued by the Canadian Services Border Agency will determine the business visitors valid length of stay in Canada. Family members may accompany business visitors to Canada, although they may, in turn, require visas depending on their nationalities. However, if a family member is accompanying the applicant for a long time, it may appear that the applicant does not intend to remain in Canada temporarily. MEXICO Mexicos immigration law establishes a very broad non-immigrant category for visiting business persons and investors (visitantes de negocios e inversionistas). This category allows a foreign national to enter Mexico for an initial period of 180 days to attend meetings, participate in contract negotiations, explore investment, make or supervise direct investments, represent a foreign corporation, or conduct commercial transactions on behalf of a foreign entity. The category is also appropriate for most Canadian and U.S. business persons entering Mexico pursuant to the North American Free Trade Agreement (NAFTA). This visa is applicable to business visitors who are nonimmigrants engaging in non-lucrative or lucrative activities. The visitor must have a residence and an employer outside of Mexico. He or she must also travel to Mexico for a limited, predetermined time period. The foreign national may not receive compensation from a source in Mexico, although incidental expenses, such as accommodations, travel, and meals may be paid by a Mexican host company. The visitors activities must be directed and overseen by his or her overseas employer. Also, the visitor must not be in a subordinate relationship with the entity with which he or she is doing business in Mexico. The new Forma Migratoria Mltiple (FMM) simplifies entry into Mexico for certain visitors who intend to stay in the country for a maximum of 180 days. If the foreign national does not intend to live in Mexico, but only stay for up to 180 days, then he or she need not request previous authorization from the Mexican immigration authorities. Instead, the filing of the FMM upon entry into Mexico is sufficient. Citizens and permanent residents of Canada and the United States are eligible for the FMM, as are citizens of certain other countries, as indicated at http://embamex.sre.gob.mx/usa/index.php/consular-services. The following documents are required at the port of entry for the FMM: Completed immigration form, which is available at the port of entry; Valid passport; and Evidence of status as a lawful permanent resident of the United States or Canada, if applicable. A visitor may apply for the FMM at the Mexican consulate closest to his or her place of residence. The process normally takes from one to three days for approval. These visas are valid for 180 days upon entry into the country. Upon departure from Mexico, the permit holder must surrender the FMM to Mexican immigration authorities at the port of exit. Failure to surrender the permit may jeopardize the foreign nationals future entries to Mexico and may subject the permit holder to fines.
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If the visitor will remain in Mexico for longer than 180 days, then an application for an FM3 or FM2 permit should be filed. The FM3 or FM2 permits will allow for initial stays up to 365 days with the option to renew on a yearly basis. Family members may enter Mexico with the principal under a tourist visa. If the stay in the country exceeds 180 days, and the principal visitor decides to change immigration status to an FM3 or FM2 permit, then the family members may file applications for an FM3 or FM2 dependent visa along with the principals application. UNITED STATES A foreign national may be eligible for a B-1 business visitor visa to engage in business activities in the United States, which include legitimate activities of a commercial or professional nature, but exclude handson work, labor for hire, and local employment. U.S. immigration laws do not focus only the source of a business visitors remuneration, but also the activities to be undertaken in the United States. Employment is understood to involve service or labor performed in the United States for wages or other remuneration. Business visitors may meet and consult with business associates, engage in commercial transactions, negotiate contracts, litigate, attend scientific, educational, professional or business conferences, and undertake independent research. Other specific activities may also be permissible, as indicated at www.state.gov/documents/organization/87206.pdf. In addition, Canadian and Mexican citizens may be admitted to the United States pursuant to the NAFTA to conduct additional types of business activities on behalf of a Canadian or Mexican entity. Under certain circumstances, an individual may enter the United States on a B-1 visa to undertake activities that would normally require an H-1B visa for engaging in professional work or require an H-3 visa for engaging in a training program. In those situations, the business visitor may obtain a B-1 visa designated as B-1 in lieu of H-1B or B-1 in lieu of H-3. Individuals admitted to the United States in either of these categories must remain regularly employed outside the United States, must not receive any remuneration from a U.S. source, and must engage in activities consistent with the H-1B or H-3 visa, as applicable. A U.S. company may, however, cover the cost of travel, accommodations, and other incidental expenses incurred in the United States. Citizens of certain countries may be exempted from the visa requirement and qualify for the Visa Waiver Program (VWP), as indicated at http://travel.state.gov/visa/temp/without/without_1990.html. The following requirements typically apply: The visitor must have received travel authorization from an electronic system; The visitor must possess a passport valid for six months beyond his or her anticipated stay in the United States; The visitor must travel to the United States on an approved carrier and have a return trip ticket to a destination outside the United States; and The visitor must establish his or her intent to remain in the United States for 90 days or less and his or her possession of sufficient funds for the trip. If a B-1 visa is required, an application should be made to the U.S. consulate with jurisdiction over the visitors residence. The visitor must establish the following: Maintenance of a residence outside the United States that the visitor has no intent of abandoning; Anticipated travel duration that is consistent with the planned activities; Intent to depart the United States at the end of his or her temporary stay; Adequate financial arrangements enabling the visitor to carry out the purpose of the visit and depart from the United States; and Permission to enter a foreign country at the end of the temporary stay.
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Procedures vary across the many U.S. consulates; but typically, the visitor must schedule and attend a visa interview. The passport with the issued B-1 visa will usually be available for delivery several days after the appointment. A visitor admitted under the VWP may remain in the United States for up to 90 days; extensions are not permitted. Admission based on a B-1 visa is generally for an initial period of up to six months or for a period of time sufficient to cover the planned business activities, whichever is less. Extensions of B-1 status are available, but prolonged business visits may raise a presumption that the visitor is engaging in prohibited productive employment. Accompanying dependents of a business visitor may be eligible for VWP status or may apply for B-2 tourist for pleasure visas. CONCLUSION The purpose of this article is not to provide a comprehensive review of all types of permissible business activities in the foregoing countries, but rather to illustrate the types of variations among the immigration laws of countries in the Americas. Before advising an individual on business travel abroad, explore further the types of issues discussed in this article.

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Copyright 2011 American Immigration Lawyers Association

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UPGRADING SYSTEMSIMPROVING TECHNOLOGY TO MAXIMIZE PROFITABILITY

UPGRADING SYSTEMSIMPROVING TECHNOLOGY TO MAXIMIZE PROFITABILITY

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15 USC 6801 (2010).

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SMART GROWTH: HOW AND WHEN TO GROW

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SMART GROWTH: HOW AND WHEN TO GROW

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AILA's Immigration Practice Pointers 2011-12 Ed.

AILA's Immigration Practice Pointers 2011-12 Ed.