Misrepresentation 212a6ci: bars an alien from receiving a visa or admission into the U.S. if this alien has previously obtained or attempted to obtain a visa, other documentation, admission or other benefit under the Immigration and Nationality Act (INA), by means of fraud or by willfully misrepresenting a material fact. -[Waiver 212k]
- Any foreign national who was unlawfully present in the US for more than one year or who have been ordered removed and who enters or attempts to reenter without being admitted, is inadmissible for ten years.
- Nonimmigrant Waiver A nonimmigrant waiver can be issued for a one year term (five year term in limited circumstances) where the foreign national is eligible for a nonimmigrant visa and can establish his or her presence would not be harmful to US interests. When the application for the waiver is made, normally at the Consulate the will issue the nonimmigrant visa, the Consular officer will consider the following factors when deciding whether or not to issue the visa The recency and seriousness of the activity or condition causing the inadmissibility; The reasons for the proposed travel to the US; and The positive or negative effect, if any, of the planned travel on US public interests.
- Immigrant Waiver An immigrant waiver is available to a VAWA self-petitioner where the battering or extreme cruelty and removal or entry or reentry to the US is related.
Marriage fraud 204c:
barred from subsequent petitions. Unless: the BIA said 204c did not apply for a wife who was deriving LPR thru her husband's I140
- provides three avenues for a 212(a)(2)(A)(i)(II) waiver.
- Where the foreign national's drug crimes occurred 15+ years ago, can demonstrate rehabilitation and his or her admission to the US would not be contrary to the national welfare, safety and security of the US;
- Where the foreign national is the spouse, parent or child of a USC/LPR and can demonstrate that the US relative would suffer extreme hardship if the foreign national cannot enter the US;
- or The foreign national is a VAWA self-petitioner.
- This 212(h) immigrant waiver is only available if the violation relates to a single offense of simple possession of marijuana in the amount of 30 grams or less.
Voluntary Departure – Before the Conclusion of the Hearing
- If the application for voluntary departure is prior to, or at the Master Calendar hearing, the individual must show that he:
- Waives or withdraws all other requests for relief;
- Concedes removability;
- Waives appeal of all issues;
- Has not been convicted of an aggravated felony and is not a security risk;
- and Shows clear and convincing evidence that he intends and has the financial ability to depart.
- If the individual is able to meet these requirements, then the Immigration Judge may grant a voluntary departure period of up to 120 days at the time of the Master Calendar hearing
- Advisal: If you voluntarily fail to depart the United States within this time period, you will become ineligible for ten years from that date for certain forms of relief from removal, Your voluntary departure bond, if any, will also be breached.
- If you file a motion to reopen or reconsider during the voluntary departure period given by the Judge, the grant of voluntary departure is terminated automatically and an alternate order of removal will take effect immediately.
- Moreover, the civil penalty and 10 year bar shall not apply.
Voluntary Departure – After the Conclusion of the Hearing
- An individual may also apply for voluntary departure after the conclusion of proceedings, provided that the individual meets the following requirements, and these differ from Pre VD:
- Shows physical presence for one year prior to the date the Notice to Appear is issued;
- Shows clear and convincing evidence that she intends and has the financial ability to depart;
- Pays a bond (of at least $500) if the Judge so requires;
- Shows good moral character for five years prior to the application;
- and Presents to the DHS a valid passport or other travel document sufficient to show lawful entry into her country, unless such document is already in the possession of the DHS or is not needed in order to return to her country.
- If the applicant establishes these requirements, the Immigration Judge may grant voluntary departure for a period of up to 60 days.
Reinstatement of Removal
According to several circuit courts, INA § 241(a)(5) does not apply retroactively to individuals who reentered the United States and applied for immigration relief April 1, 1997. Can still file for CAT, Withholding, VAWA or T/U visa Reasonable Fear Interviews
Judicial Deference (Chevron, Mead and Brand X): Chevron.
- addresses when a federal court must defer to an agency‟s interpretation of the statute it administers. There are two steps in the Chevron analysis.
- At Step One the court asks whether, using the regular rules of statutory construction, the “plain language of the statute” will answer the question at issue. If so, the court will interpret the statute without deferring to the agency, and the inquiry ends. However, if the statutory language is ambiguous, or leaves a gap for the agency to fill in, the court will proceed to Step Two.
- In Step Two the court asks whether the agency‟s construction of the statute is reasonable enough to be permissible. If it is, the court will defer to the agency‟s interpretation, even if the court believes it is not the best possible one.
- “Permissible” is a low standard, and getting to Step Two of the Chevron analysis traditionally has meant that the party opposing the agency is about to lose.
- Prefer NO ambiguity to WIN
Judicial Deference Mead
- Mead can be referred to as “Chevron Step Zero,” a test that must be passed before even getting to the two-step Chevron analysis.
- Do they even have authority
- The Chevron test is applied in the first place only if Congress delegated interpretive authority to the agency with respect to the provision in question, and the agency has made an appropriate formal ruling with a “lawmaking pretense.”
Jud Def: Brand X.
- This is the reason why Chevron is SO important!!!
- SCOTUS held that where Chevron deference was owed to the agency on an issue, but a federal court published an opinion on the issue before the agency did, the court must defer to the agency's subsequent published interpretation and as needed must reverse its own prior precedent in order to conform to the agency's rule.
- This means that counsel cannot absolutely count on Ninth Circuit or other federal court immigration precedent, unless the court has stated, or will state, that it does not owe the agency Chevron deference on the question at issue.
- Otherwise, the court someday may have to reverse itself under Brand X in order to conform to a new agency precedent decision.
- Counsel who are trying to determine whether a federal court published decision may be subject to a future Brand X challenge by an agency, should check to see what standard the court identified as guiding its holding.
Federal Court Jurisdiction:
- courts of appeals only (from BIA str8 to Fd Cir Ct unless declaratory)
- abuse of discretion under substantial evidence test
- manifestly contrary to justice
- arbitrary & capricious
Federal District Court Actions:
- habeas (detention only, no review of underlying removal order via habeas)
- I130 denials
- Section 1983 and 1981 actions
- Mandamus: must show
- (1) clear/certain claim
- (2) free from doubt duty is owed ministerial [not discretionary]
- (3) no other remedy available injunctive
Most Able & Accomplished
Outstanding & Extraordinary
- is an immigration petition for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports.
- There are three (3) types of EB-1 petitions:
- 1. (EB-1A Visa) Alien of Extraordinary Ability
- 2. (EB-1B Visa) Outstanding Researcher/Outstanding Professor
- 3. (EB-1C Visa) Managers and Executive Transferees
- -no Labor Certification requirement for gc
- -visa numbers are almost always current
- -can file other immigration petitions under other appropriate categories (eg., National Interest Waiver) while a EB-1 petition is pending
- For aliens with extraordinary ability (EB-1A petition), a permanent job offer is not required
- applicants don't have to demonstrate that they have an employer in the US;
- they only have to demonstrate that they will keep working in the field in which they have the extraordinary abilities
- EB1A applicants may file for immigration petition on behalf of themselves.
- However, EB-1B and EB-1C petitions require permanent job offers.
- In other words, a U.S. employer must be the petitioner for EB1B or EB1C cases.
- If foreign entity stops operating prior to visa appointment the person is ineligible for status.
- Must demonstrate that company is not merely a shell corporation but is active, conducting substantial business, and truly needs an executive or manager
EB-1A: Alien of Extraordinary Ability
- Alien has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.
- The alien must also show that his/her admittance into the United States will substantially benefit the United States in the future. (as opposed to "O" Visas)
- In addition to the above criteria, the alien must prove that he/she will continue to pursue work in the area of extraordinary ability in the U.S. and prove that his/her work is of substantial and prospective benefit to U.S. national interest. Procedurally, the EB-1A is an I-140 Immigration Petition, Petition for Alien Worker application.
- The alien may petition for him/herself by filing Form I-140 with supporting documentation that demonstrate that the alien meets fundamental EB1A criteria. The petition is one of the fastest ways to obtain a Green Card.
- An EB-1A candidate may petition for his/her own permanent residency without the need for an employer sponsor, as is generally required in employment-based petitions.
Requirements for EB-1A
- USCIS Two-Tier Analysis
- First Tier – Preponderance of Evidence on an Individual BasisIn the first tier, the applicant can show to have extraordinary ability by satisfying either one of two types of evidence –
- (1) Major Award/Recognition.
- (2) 3 out of 10 secondary evidence
- Second Tier – Final Merits Determination If the applicant fulfills the First Tier, the evidence submitted will then be considered in its entirety by USCIS to make a final determination. The evidence is weighed against the high level of expertise necessary for the classification of “Alien with Extraordinary Ability.” In other words, the USCIS has a bit more discretionary power to deny or approve EB-1A cases even if the applicant demonstrates 3 types of evidence in the First Tier. The totality of evidence must establish that the alien has:
Q: What if I change jobs while my EB-1A petition is pending?
A: It will have no effect upon the status of your case. EB-1A petitions are self-petitions and do not require a job offer and an employer’s sponsorship. Therefore, you may change your employment and it will have no effect on your case as long as you stay within your field of expertise.
Q: If my EB-1 petition is approved, when may I file a petition for Adjustment of Status or an immigrant visa?
A: You may file for Adjustment of Status as soon as a visa number becomes available to you. The EB-1 category currently has immigrant visa numbers immediately available, so you may apply as soon as your petition is approved. You may apply for adjustment of status after your EB-1A approval, or apply for EB-1A and Adjustment of Status concurrently.
Q: What are the differences between EB-1A and EB-1B?
- The differences are:
- 1) EB-1A does not require an employer’s sponsorship and a permanent job offer while EB-1B does;
- 2) EB-1A requires a higher standard of achievement than EB-1B;
- 3) EB-1A does not require work experience, while EB-1B requires three years of work experience.
Q: After my EB-1A is approved, do I need to remain working in the same field as indicated in my petition?
A: Yes, you need to continue working in the field specified in the filed EB-1A. If you venture into another area, the USCIS may deny your Adjustment of Status (I-485) or even revoke permanent residency after an Adjustment of Status (I-485) is granted.
EB-1B: Outstanding Researcher or Professor An "Outstanding Researcher or Professor"
EB-1B immigrant visa is for aliens who are internationally recognized as outstanding in a particular scientific or scholarly field. Unlike self-petitioned EB-1A cases, EB-1B cases are employer sponsored. This means the petitioning employer must demonstrate that the alien has outstanding ability as a researcher or professor and has a permanent job offer from the employer.
Q: What if I lose my job while my Outstanding Professor/Researcher petition is pending?
A: Your petition may be approved, but your Adjustment of Status may not be approved. As long as you maintain your job for 180 days after filing, your status should be safe.
EB-1C: Managers and Executive Transferees (For L Visa to GC)
- A specific employment-based immigrant preference category (EB-1C) was created for managers and executives who meet the L-1A non-immigrant standards and are interested in becoming lawful permanent residents.
- L1-A status is offered to those intercompany executive or managerial transferees that will be coming to the United States only temporarily. Therefore, the major difference between L-1A and EB-1C is the permanent nature of the EB-1C visa.
- Although L-1A status is not a prerequisite for immigrant benefits in this category, an immigrant petitioner will have a stronger case for the EB-1C immigrant category if they were in L-1A status prior.
- The EB-1C visa is a good way for small or start-up overseas companies to expand their business and services to the United States.
- This is advantageous to smaller companies because its allows for the transfer of a highly proficient manager or executive employee who has direct knowledge of the company’s operations, allowing the setup of a new branch in compliance with the goals and objectives of the company’s main office.
Q: What does “executive capacity” mean?
- A: Executive capacity means an assignment within an organization in which the employee primarily: Directs (vs manages) the management of the organization or a major component or function of the organization;
- Establishes the goals and policies of the organization, component, or function;
- Exercises wide latitude in discretionary decision-making;
- and Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
Q: What does “managerial capacity” mean?
- A: Managerial capacity means an assignment within an organization in which the employee primarily: Manages (underdirector's supervision) the organization, or a department, subdivision, function, or component of the organization;
- Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
- If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions;
- and Exercises direction over the day-to-day operations of the activity or function for which the employee has authority.
PERM (Labor Cert) Program Electronic Review Management
- is the system used for obtaining labor certification.
- Employment-based preference categories that require PERM labor certification are:
- -EB-2 professionals with Advanced Degrees or Exceptional Abilities (EB-2, excluding NIWs)
- -EB-3 professionals with a bachelor's degree, skilled workers, and unskilled workers
- -An application for labor certification is submitted to the DOL by using ETA Form 9089.
- -The DOL must certify to the USCIS both that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job offered the alien at the prevailing wage for that occupation in the area of intended employment, AND that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
- -After the labor certification is approved by the DOL, an Immigrant Petition related to the labor certification should be filed with the USCIS before the expiration of the labor certification. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.
PERM Prevailing Wage Determination
- Hiring a foreign national employee must not adversely affect the working conditions and wages of U.S. workers.
- In order to achieve this, the employer is required to pay the employee at minimum what is called the “prevailing wage” for the job.
- The prevailing wage is determined through the National Prevailing Wage Center (NPWC).
- The NPWC determines the prevailing wage by collecting data for all jobs in all areas of the U.S. and keeping the data in the publically accessible OES database. (OES = Occupational Electronic Statistics)
- The NPWC will match the job offered with a geographic region and a “skill level” related to the education, experience and level of supervision of the job being offered.
- There are 5 skill levels (known as JobZones) for the purposes of determining the prevailing wage.
- A prevailing wage determination is valid for anywhere from 90 days to 1 year (validity periods of 90 days are the most common).
- For a prevailing wage determination to be used for a PERM petition the PERM advertisement must either START during the PWD validity period or the PERM application must be filed during the validity period.
EB-2 vs. EB-3
- An EB-2 petition is an employment-based 2nd preference petition for a foreign professional with an advanced degree or its equivalent (master degree or higher), or a foreign national who has exceptional ability in the sciences, arts, or business. In some instances, a professional with a Bachelor’s degree and five years of progressively responsible experience in the job being offered may be considered to possess the equivalent of a Master’s degree in the field.
- An EB-3 petition is an employment-based 3rd preference petition for a foreign national employee who has a Bachelor’s degree, or, if not possessing a degree, is a skilled worker, meaning the foreign national has at least two years of work experience for the job being offered. Additionally, there is a sub-category for unskilled workers that requires less than two years experience.
Q: I have a part-time job and my employer agrees to file a PERM labor certification application on my behalf. Does a part-time position qualify for PERM labor certification?
A: No. The job offer must be for a permanent and full-time position. Part-time positions do not qualify. Please note, however, that the permanent and full-time requirements are for the future position when permanent residency is granted. You are not required to work full-time for an employer at the time the labor certification petition is filed. In fact, you do not have to be working for the petitioning employer at all. An alien is only required to work for an employer full-time once a green card is issued, not before.
Q: My employer is a start-up company that currently is operating without a profit. Is my employer eligible to file a labor certification application on my behalf?
A: Yes, it is possible. A profitable company is not a requirement for filing a labor certification application. However, the petitioning company is required to show its ability to pay the proffered wage from the date of filing until the alien receives his or her green card.
Q: The company currently hiring me has not made any profit for the past two years. Can the company still apply for a PERM application for me?
A: It depends. One way to prove ability to pay the Prevailing Wage is by demonstrating that the petitioner’s current net assets are equal to or greater than the offered salary from the date of submission of the PERM labor certification application. Or, if you are currently being paid a salary equal to or higher than the prevailing wage, starting with the date of submission of the PERM application, USCIS will most likely find that the employer has met the ability to pay requirement.
Q: My employer is a sole proprietor and I am in H-1B status working for him. Currently, he is paying me less than the Prevailing Wage set for the labor certification application, but it meets the Prevailing Wage set for the H-1B. Is he required to prove that he has the ability to pay for the Prevailing Wage Determination for the PERM labor certification?
A: Yes. Although an employer is not required to pay the proffered wage until the permanent residency is granted, the employer must have the ability to pay the proffered wage, starting with the date the labor certification application is filed. If he has not paid the Prevailing Wage set for the labor certification, he must produce evidence at time the application is filed to demonstrate his ability to pay the Prevailing Wage.
Q: When does the employer have to pay the offered salary to the alien employee?
A: Because the PERM LC and immigration visa petition is filed for a prospective job, employer has to pay the alien the offered salary (equal or higher than the Prevailing Wage) starting at the time that the alien receives permanent residency (the Green Card). However, the employer has to demonstrate the ability to pay the offered salary throughout the whole PERM LC process as well as throughout the I-140/485 process until the alien receives his/her Green Card.
Q: How does the employer demonstrate the ability to pay the proffered salary?
A: The employer can demonstrate its ability to pay by using either of the following: If the alien employee was already employed by the employer, the alien’s actual paid salary is equal to or greater than the proffered salary in the labor certification during the entire process; or, If the alien is not employed with the employer throughout the entire process; OR the alien’s salary is lower than the proffered wage in the labor certification application, then the employer must demonstrate: The employer’s net assets are in excess of the proffered salary in the labor certification petition; or, The employer’s net profit is in excess of the proffered salary in the labor certification petition.
Q: What if the company fails to prove its ability to pay the prevailing wage?
- A: Failure to produce evidence of ability to pay the Prevailing Wage from the time the labor certification application is filed may result in a denial of the later filed immigration petition. In the labor certification process the Department of Labor does not usually check the ability to pay issue. However, during I-140 processing, the USCIS confirms ability to pay carefully, back tracking to the date the labor certification application was filed. Also, the burden of proof rests solely on the petitioner, so the employer must be prepared with evidence.
- DOL checks the labor market. USCIS checks the employer's ability to pay
Q: What is the Prevailing Wage in a PERM labor certification?
- A: The Prevailing Wage rate is defined as
- the average wage paid
- to similarly employed workers
- in a specific occupation
- in the geographic area of intended employment
Q: What is business necessity?
- A: Basically, business necessity means that
- a job requirement
- must bear a reasonable relationship
- to the occupation
- in the context of the employer’s business, and
- is essential to fulfilling the reasonable job duties as described by the employer.
- The DOL has a JobZone code to determine the general required qualifications for the job that is the subject of the application.
- If the required qualifications in the application exceed the JobZone code, it may trigger the DOL to audit the application and the employer may then be required to demonstrate the business necessity of job requirements and qualifications.
Q: What is a Job Order?
- A: A Job Order is an advertisement for a job placed with the State Workforce Agency (SWA).
- For purposes of PERM, the Job Order must run for a minimum of 30 days and the 30-day job order timeframe must end at least 30 days prior to filing the PERM petition.
- However, the employer is not limited to the 30-day timeframe, and may choose to post the job order for a longer period.
Q: What is a Notice of Filing?
- A: A Notice of Filing (also known as an Internal Job Posting) is a job advertisement that is posted internally and conspicuously at the employer’s premises for at least ten (10) business days during the job recruitment campaign to provide notice of the current opening to the company’s employees.
- It also indicates that a foreign labor certification application may be filed by the employer, and includes information for reporting violations to the DOL.
- The internal job posting must follow a special format and include specific wording, as indicated by law.
Q: What will happen if another company merges with the employer-company after my PERM labor certification is approved?
A: If the new company accepts all benefits and liabilities of the employer-company (a successor in interests), the new company may continue your green card process.
Q: What will happen if I change jobs while my PERM labor certification application is in process or after it has been approved, and while my I-140 immigrant visa petition is pending?
- A: Changing jobs will not affect your labor certification process if your sponsoring employer agrees to continue the PERM labor certification petition and immigrant visa petition on your behalf, so long as you are going to return to the sponsoring employer once you obtain your green card or an immigrant visa.
- However, in the real world, most employers will withdraw or discontinue the immigration process if you leave the company.
Q: Can one company file two PERM labor certification applications for the same employee for two different positions?
A: No. Under the current DOL practice, one employer cannot file two PERM applications for the same alien. Even though it is legally possible that an employer files two labor certification applications for two different positions for the same alien, the current PERM filing system does not allow such a filing. Vice versa allowable
Q: Can I withdraw an application if it is selected to be audited?
A: No. If the application is selected for an audit, the employer cannot withdraw the application and must face any consequences of the audit.
National Interest Waiver (NIW)
- A National Interest Waiver (NIW) petition falls into the employment-based immigration, second preference (EB2) category (As known as EB2 NIW).
- Normally, a permanent job offer and an approved labor certification are pre-requisites to file an employment-based, second preference immigration petition.
- However, a National Interest Waiver (NIW) petition requests that the labor certification requirement be waived for the sake of the “national interest of the United States;” thus, allowing an applicant to apply for an NIW immigration petition without a labor certification or a job offer from a U.S. employer.
- First, in order to be eligible to file an NIW petition, a beneficiary or applicant must have an “advanced degree” or “exceptional ability” in the sciences, arts or business.
- The beneficiary must also persuasively demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from the candidate’s proposed activity will be national in scope, and that the requirement of a Labor Certification for the candidate will adversely affect the national interest.
- Each NIW case is adjudicated on its individual merits, but the burden of proof is always on the applicant or beneficiary to establish that exemption from the labor certification will be in the national interest of the U.S.
- For an NIW, even if the beneficiary has no employer, he/she may file an NIW petition on behalf of himself/herself.
- A U.S. employer may also file an NIW petition on behalf of the beneficiary.
- Furthermore, the beneficiary can file other immigration petitions under other appropriate categories (such as an EB-1(a) Extraordinary Ability petition) while a National Interest Waiver petition is pending.
- To encourage immigration through investment and to concentrate investment in specific regions, Congress directed USCIS to set aside 3,000 visas for people who invest in a designated “Regional Center Program.”
- A “Regional Center” is a designation granted by USCIS on the basis of a proposal for economic growth in the particular geographic area.
- Approximately 90-95% of EB-5 applications submitted to USCIS fall into this category. Originally, Congress set a date for the Regional Center Pilot Program to sunset in March 2009.
- However, that date has been extended several times, most recently until September 30, 2015.
- The following are some typical Regional Center Programs: a real estate limited partnership program that offers investment in industrial properties in a specified major city, a limited partnership program that makes low interest loans to businesses in a specified major city, ownership of an 80-acre almond farm in a specified location in California.
- General Requirements Invest at least $1,000,000 in a regional center or $500,000 if the Regional Center is located in a Targeted Employment Area.
- The area of the regional centered must be clearly defined. Create 10 new full-time jobs directly or indirectly.
Death of the Petitioner
204L-for? Beneficairies and derivative beneficiaries in employment-based and family-based immigrants, as well as asylee/refugee, and U and T nonimmigrants to be approved despite the death of the petitioner or the principal beneficiary. AILA--beyond widows and widowers of U.S. citizens, and goes beyond humanitarian reinstatement. At least one benef must have resided (not phys pres) in the U.S. when the qualifying relative died, and must continue to reside in the U.S. on the date of the decision on the petition or application. USCIS will apply §204(l) to cases adjudicated on or after October 28, 2009, but will also allow untimely motions to reopen cases denied before the new law came into effect—death to qualifying relative is extreme hardship for waivers.
Automatic Conversion upon aging out 204(h): Matter of Wang: CSPA—Calculate age on visa availability date, deduct time pending. Applies only to F2 beneficiaries or their derivatives when a petition is filed from the same beneficiary. Basically, protects only children of LPR’s or 9th & 5th? Over 21, based on CSPA age, will allow automatic conversion into new petition, without requiring a filing by thenew LPR parent, and retention of priority. Applies to F2A, and all family, employment and diversity derivatives. VAWA Child-can file until age 25 if abuse was reason for delay. CSPA derivative benef of asylees/refugee, USC children, LPR children, derivs on FB & EB petition, --asylee’ age freezes like USC’s. Possible wide I-730 coverage if AOS field on this date, even if aged out. I-130, I-140, I-360, I-526 (Petition by Alien Entrepreneur) or diversity visa
An H, L, O, or P visa remains valid regardless of a change of employer, as long as the new employer files a new petition that is approved and beneficiary remains in the same NIV classification
221(g)(2) [1201(g)(2)] the application fails to comply with the provisions of this Act, 221(g)(3) [1201(g)(3)] knows or reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law
- 222(g) If an NIV overstays the period authorized by the AG, or if USCIS or an IJ formally finds that a lost status violation has occurred (e.g., work without authorization), the visa is void under INA §222(g) and must apply anew in “nationality consul”.
- Exceptions: Extraordinary circumstances, can apply for new visa anywhere he is. persons granted TPS before their NIV status expires are not subject to §222(g).
- does not apply to A-1, A-2, G-1, G-2, G-3 and G-4 visa holders C-2, C-3 and NATO-1 through NATO-6 are also exempt VWP, EWI, and Parole—Visa waiver entrants who overstay, EWIs, and persons granted parole are not subject to §222(g).
- F, I, J, and Others with D/S—Persons with D/S will not be subject to §222(g) unless USCIS finds a status violation while adjudicating a request for an immigration benefit or an IJ finds a status violation in proceedings against the person.
- Canadians/Mexicans—admitted with an I-68 (for Canadian boaters) or DSP-150 border crossing card or issued visa but not issued an I-94 unless they are formally found to be out of status. Impossibility—A person will not be deemed an overstay, if circumstances make it impossible to depart.
- Matter of C-C C/S & E/S timely filed non frivolous C/S E/S even if the application is denied unless he worked without authorization or it was for a status violation that would have terminated the period of authorized stay or
Student and Exchange (F, J, M and Q)
- Optional Practical Training: OPT, ONLY IN ANY OF: Pre-Completion: During student’s annual vacation and when school is not in session OR While school is in session; b/c not require internship (CPT), cannot exceed 20 hrs during school yr.
- Post-completion: After completion of all course requirements (excluding thesis or equivalent); and After completion of the course of study. Cannot file for a combination of pre- and post-completion but precompletion OPT will count against the 12-month maximum of OPT.
- Cannot use employment authorization for precompletion OPT to continue employment post-completion. After full academic year may apply for precompletion OPT 90 days in advance of start date of employment Post Completion OPT: Limited to 12 months and must complete training within 14 months of graduation.
- The 12- and 14-month limitations do not apply to STEM (science, technology, engineering or mathematics) students who can obtain an additional 17 months (29 months total) of OPT if the employer is enrolled in E-Verify and agrees to report the student’s departure within 48 hours.. Must request no later than 90 days before end of academic yr.
- May file STEM extension up to 120 days prior to the end of their post-completion OPT and EAD extended automatically for 180 days. Students may obtain a new 12-month OPT period based on a higher degree program but may not obtain a new 12-month OPT if they begin a new same-level degree program
- No job offer is required to apply for OPT. Cannot accrue more than 90 days of unemployment during OPT. STEM students cannot accrue more than 120 days unemployment for the 29 months.
- Maintaining status and making normal progress toward completing the educational objective. A student who is out of the country for 5 months or less may be readmitted upon presentation of a valid I-20. out of the country for more than 5 months should be terminated from SEVIS not subject to INA §222(g) unless a USCIS officer or IJ has made a determination that a status violation has occurred
- I-539, SEVIS I-20 indicating the DSO’s recommendation, &
- (2) no more than 5 months out of status or exceptional circumstances
- (3) not a repeat or willful immigration violator
- (4) pursuing or intends to pursue a full course of study
- (5) not engaged in unauthorized employment,
- (6) not deportable on any ground other than being out of status
- (7) circumstances beyond her control such as serious injury or illness, closure of the institution, a natural disaster or inadvertence, oversight or neglect by the DSO or the violation relates to reduction in the student’s course level that the DSO could have authorized and failure to reinstate will result in extreme hardship to the student.
- must get ESTA clearance. ESTA validity is generally 2 years but is dependent upon the passport expiration agreement with the foreign country Visa Waiver Program:
- applying as B-1/B-2 for a period not to exceed 90 days with a nonrefundable return ticket, MRP &
- ESTA required, Not eligible for Change or Extension of Status
- —DD is authorized to grant up to 30 days for departure in emergencies not eligible for AOS unless it is based on an immediate relative petition filed within the 90-day authorized period
- —May be barred if after 90 days, but gov’t has Policy Exception to Bar.
- No Removal Hearing/Waiver of Rights, except for asylum
- A person from a non-VWP country who fraudulently enters U.S. on VWP may not use fraudulent entry to argue she is not subject to the VWP restrictions.
- Can have H-3 training (i.e., B-1 in lieu of H-3),
- not entitled to a bond hearing if the proceeding is initiated by an I-863 for asylum only The IJ’s decision in an asylum only hearing may be appealed to the BIA.
- The circuit courts have jurisdiction under INA §242(a)(1) to review the IJ/BIA decision on asylum. The circuit court may also review the administrative deportation
Extension of Stay
- A person who timely files a nonfrivolous C/S or E/S and who has not worked without authorization, will be considered to be in lawful status during the pendency of the application.
- No appeal of any denial.
- Possible Jud Review
- - Out-of-Time Requests
- —USCIS may grant an extension nunc pro tunc where failure to timely file was due to “extraordinary circumstances” beyond the applicant’s control, the delay was “commensurate with the circumstances,” the applicant is a bona fide NIV not in removal proceedings, and has not otherwise violated NIV status.
- Travel While Extension Is Pending—A person in H, L, O, or P status who travels during the pendency of the extension may ask USCIS to send a cable to the consulate
Change of Status
- Must be in lawful status-may be not just until time of filing but also up till time of new operative status. Arguable, person must maintain status until new status becomes effective.
- H and L visas—If the maximum period has been reached for an H or L (6 years for H, 5/7 years for L), a person cannot C/S to the other category. The 6-year limit also applies to H-4 dependents. 8 C.F.R. §214.2(h)(9)(iv). Time spent in L-1 status counts toward the 6 years for H.
- Exceptions— Restrictions on C/S do not apply to those seeking U or T status. INA §248(b).
Violations of NIV / Maintaining Status
- 222g Conv. for crime of violence for which a sentence of more than one year imprisonment may be imposed is status violation.
- Timely filing of extensions, absent extraordinary circumstances.
- Failure may cause visa to be void.
- No unauthorized employment.
- No Fraud or misrep to Immigration 214.1.(f)
EB5 EFFECTIVE DATE
Nov. 29, 1990—NEW COMMERCIAL ENTERPRISE FOR EB5
- B-1 Temporary visitor for business, domestic employees, academics, researchers and students
- B-2 Temporary visitor for holiday, tourism, medical treatment B1/B2Temporary visitor for business &
- pleasure B-1, Temp vis for biz.— an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign media to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for criteria Legitimate commercial or professional activity;
- or Not local employment or labor for hire principal place of business and actual accrual of profits predominantly in foreign country.
- Further international commerce or business Services performed are not ones which a U.S. worker would have to be hired for, are not inherently part of the U.S. labor market, and are not primarily benefiting the U.S. entity as local work USCIS prohibits anyone in B-1 or B-2 status from attending school unless he or she c/s to F or M.
- B-1 in Lieu of H-1—Traditionally, an alien who would otherwise qualify for H-1 status (other than entertainers) but receive no salary or remuneration other than an expense allowance or other reimbursement incidental to a temporary stay could enter as B-1
- C1 Person in transit
- C-2Person in transit to United Nations Headquarters district
- No EAD
- 222g Exemption
- No E/S or C/S
- D Crewmember (sea or air)
- No EAD
- No E/S or C/S
- E-1* Treaty trader, spouse and children
- E-2*Treaty investor, spouse and children
- E-3*/E-3D*Australian Free Trade Agreement Spouse or child of E3
- Can request an EAD
E1: Person is entering (E-1) Solely to carry on substantial trade which is international in scope principally between U.S. and the foreign state of which he or she is a national (E-1 treaty trader);
- E-2 Solely to develop and direct the operations of an enterprise in which the alien has invested, or is actively in the process of investing, a substantial amount of capital in a bona fide enterprise (E-2 treaty investor);
- As a key employee from treaty country of either E-1 or E-2, including executives and supervisors or persons whose services are “essential to the efficient operation of the enterprise.”
- As a principal employer who is:
- (a) a person with nationality of treaty country whether in or outside U.S.; or
- (b) an enterprise or organization that is 50% or more owned by treaty nationals;
Although the E-3 has characteristics similar to H-1Bs and H-1B1s, it is a separate visa with separate benefits and requirements.
- E-3 spouses may work and E-3 applicants are not required to pay the special fees required of H-1Bs.
- Does not include fashion models of distinguished merit and ability. EAD Authorized.
- H-1B*Alien in a specialty occupation (profession)
- H1B1Chilean or Singaporean national to work in a specialty occupation
- H-2ATemporary worker performing agricultural services unavailable in the United States
- H-2BTemporary worker performing other services unavailable in the United States
- H-3Temporary workers and trainees: industrial trainees
- H-4*Temporary workers and trainees: spouses and children of H-1, H-2, and H-3 workers
- Admitted for validity of the underlying I129
- Work incident to status
- No EAD
- 10 day grace period b/4, must be on I94
- 7 yr max, No C/S beyond
- Can have dual intent LCA: Required for H1b, H-1B1s and E-3s.
- issued in 7 days.
- LCA is valid for the period of employment noted on the ETA 9035, up to a maximum of 3 years.
- Cannote be file early than 6 months from start date. part-time or full-time: Must receive the “required wage rate” which is defined as the greater of (1) the “actual wage rate” (i.e., the rate paid by the employer to all others with similar experience and qualifications for that employment);
- or (2) the “prevailing wage” Extensions Beyond 6 Years Extension—H-1B status may be extended in one-year increments beyond the 6-year limitation if a labor certification, I-140 or employment-based AOS was filed at least 365 days prior to the expiration of
- May not “bench” a full-time or part-time H-1B due to lack of work
- Cap Exempt—Categories that cannot be counted against the 65,000 cap include: J-1 physicians who have obtained a waiver pursuant to the State 30 program or federal program Beneficiaries of employment offers at institutions of higher education New Employment Only—USCIS cannot count against the cap, a person who has already been counted within the past 6 years, unless the H-1B would be eligible for a new 6 years of H-1B status at the time the petition is filed.
- Lawful Status and Termination—An H-1B who is terminated from his position or is unemployed is not considered to be maintaining lawful status.
- Differences in LCAs for H-1, H-1B and E-3—Certain regulatory provisions do not apply to H-1B1 or E-3 such as changes in corporate structure and short-term employment outside of area of intended employment.
- If in U.S. for 18 months under H/L status may not seek C/S, E/S or readmission under H/L categories unless the person has resided and been physically present outside U.S. for immediate prior 6 months
- J-1Exchange visitor
- J-2Spouse or child of exchange visitor
- 222g exemption
- J2 can request EAD so long as not to support J130 grace period
- No C/S
- is subject to 2yr req
- No E/S or C/S
- K-1-Fiance: A fiancé(e) of a U.S. citizen, Seeks to enter U.S. solely to conclude a valid marriage with petitioner.,
- Marry within 90 days after entry., me within 2 yrs, but waiver for extreme hardship or customsor religion.
- Petition valid for 4 months, may be revalidated in 4-month periods.
- If petition is revoked by consular officer and returned to USCIS, USCIS will take no action if the 4-month validity period has passed.
- Memo Death of Petitioner—Petition automatically terminated where petitioner dies or withdraws petition.
- Once K-1 marries petitioner within 90 days of admission, however, she (and any K‑2 children) may AOS, notwithstanding the death of the petitioner, and without filing an I‑ INA §204(l)
- Disclosure of Petitioner’s Criminal History to Beneficiary—USCIS may disclose to the beneficiary or legal guardian, the petitioner’s criminal history involving violence or sex offenses. Disclosure must be “pursuant to a showing of compelling circumstances affecting the health and safety of an individual.”
- In addition, once a petitioner has had 2 fiancée or spousal petitions approved, if a subsequent petition is filed less than 10 years after the date the first petition was filed, DHS shall notify the petitioner and beneficiary of any subsequent petition about the number of previously approved petitions.
- L-1*Intracompany transferee (executive, managerial, and specialized personnel continuing employment with international firm or corporation)
- L-2*Spouse or child of intracompany transferee
- L2 can request EAD
- Admitted for validity of I129
- 7yr max, cannot E/S beyond that
- Can have dual intent
- Work incident to status
- L Petitions—Canadians, not Mexicans, can present the petition at a Class A port of entry or preflight station. Non-Canadian spouse and children must apply for an L-2 visa at the U.S. consulate.
- L-1/ Intra company transferee: L-1 status may be accorded to an alien manager or executive or specialized knowledge who, within 3 years preceding his application for admission, was employed abroad continuously for one year by a parent, branch, affiliate, or subsidiary of the U.S. petitioning company.
- In the case of a person being transferred where the importing employer has filed a blanket L, the transferee must also have worked for the company abroad for at least 12 months.
- If a new office, USCIS will approve for one year, and thereafter for 2-year increments.
- There is a 7-year maximum for L-1As and a 5-year maximum for L-1Bs May only get admitted, however, up to the validity date of their passport and the maximum 5/7 years permitted on the L.
- M-1Vocational student or other nonacademic student
- M-2Spouse or child of M-1
- M-3Border commuter student (vocational or nonacademic) Only for MX/Canadians.
- NO DEPENDENTS not D/S unless so stated on I94
- 30 day grace period
- No C/S unless to F or H Similar to F-1 except at a vocational/nonacademic institution.
- No Online Courses— Reduced Course Load—only for a maximum aggregate of 5 months and only for medical reasons.
- Differences from F? Can only be authorized to reduce course load for medical reasons and only for a maximum aggregate period of 5 months.
- No online or distance courses unless person is required to be physically present for class.
- Can only attend school with extensions for a maximum of 3 years. transfer schools only in first 6 months unless cannot remain at present school “due to circumstances beyond the student’s control.”
- Must get DHS permission prior to transfer on I-539. 8 C.F.R. §214.2(m)(11). Cannot change educational objectives. 8 C.F.R. §214.2(m)(12). Only Post Completion practical training, Must have job in field of study; can only be given one period of practical training “equal to 1 month of each 4 months” student pursued full course of study, not exceeding 6 months.
- Must apply for EAD on Form I-765 before expiration of authorized stay and not more than 60 days before or 30 days after completion of course of study.
- Cannot change to H status if basis of H was training or education received as M-1.
- Nor can C/S be granted to M if student is doing it to ultimately qualify for H.
O Visas (Extraordinary)
- O-1*Person with extraordinary ability in the sciences, arts, education, business, or athletics
- O-2*Person accompanying and assisting in the artistic or athletic performance by O-1
- O-3*Spouse or child of O-1 or O-2
- Work incident to status
- O-1A Visas—Person who “has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.”
- O-1B Visas—If in motion picture or TV production, the person must have “a demonstrated record of extraordinary achievemen” Must demonstrate that achievements have been recognized in the field “through extensive documentation.”
- Must seek to enter to work but no requirement of O1 caliber for position.
- Dual intent recognized, as there is no foreign-residence requirement, but must have temporary intent to remain.
P Visas (recognized)
- P-1*Internationally recognized athlete or member of an internationally recognized entertainment group
- P-2*Artist or entertainer in a reciprocal exchange program
- P-3*Artist or entertainer in a culturally unique program
- P-4*Spouse or child of P-1, P-2, or P-3
- Work incident to status
- The P category covers those entertainers and athletes who cannot qualify under the extraordinary ability standard for the O category. Person who performs as an athlete, individually or as part of a group or team that is “internationally recognized”
- (P-1A), or a person who performs with or is an integral or essential part of an entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time
- (P-1B), and in the case of the performer, has had a sustained and substantial relationship with the group over a period of at least one year.
Q-1 Participant in an international cultural exchange program
- No dependents unless also qualify for Q
- No E/S/ .
- Q Visas (Cultural Exchange Programs)
- Q-1 Visas, Generally—For participants in an international cultural exchange program designated by the AG for the purpose of providing practical training, employment and the sharing of the history, culture and traditions of the country of the person’s nationality. The program applies to an employer who has employees, not simply an agent or office, and who provides on a regular, continuous, systematic basis, goods and/or services (including lectures, seminars and other types of cultural programs). Cannot exceed 15 months. Beneficiary must have foreign residence.
- Work Component—The work must serve as the vehicle to achieve the cultural objective and cannot be separate from it.
- Q-2 Nonimmigrants from Northern Ireland: had a sunset provision of Oct. 1, 2008. It is now no longer in effect., Q-2-capped
- R-1Person in a religious occupation
- R-2Spouse or child of R-1 Work incident to status
- No EAD
- A minister Fully authorized and trained in religious denomination to conduct religious worship and perform other duties usually performed by clergy of denomination; Is not a lay preacher or a person not authorized to perform clergy’s duties; Performs activities rationally related to being a minister; and Works solely as a minister in the U.S. which may include incidental administrative duties. May be part-time (20 hours per week),
- Member of a religious denomination for at least 2 years immediately preceding the time of application for admission that has a bona fide nonprofit religious organization in the U.S.;
- Must be coming to work at least in a part-time position (20 hours);
- Limitations on Status Five-year maximum unless residing abroad and physically present outside U.S. for one year.
- An E/S may be filed for an additional 30 months up to 5-years, but must be accompanied by a supplemental petition, supporting documents, and information in the form of financial or other records to establish that the person worked as R-1 for first 30-month period.
- No E/S beyond the 3yrs
- S Visa:
- S-1 Visas (Witnesses): Person in possession of critical reliable information concerning a criminal organization or enterprise who is willing to supply or has supplied such information to federal or state law enforcement authorities or court and whose presence in the U.S. the AG determines is essential to the success of an authorized criminal investigation or prosecution
- S-2 Visa—Person who both the Secy. of State and AG jointly determine: Is in possession of critical reliable information concerning a terrorist organization, enterprise or operation; is willing or has supplied such information to federal law enforcement authorities or federal court; Will be or has been placed in danger as a result of providing such information; and Is eligible to receive an award under
- Maximum admission is 3 years. AG not permitted to grant extension
- No C/S from S visa.
- Must waive right to contest removal, except for withholding.
- Adjustment of Status—S-1 or S-2 and family (spouse, children, son or daughter, parents) if admitted as S may adjust if they are not inadmissible as a Nazi and the provision of information has substantially contributed to the success of the investigation, and in the case of S-2s, has also resulted in receiving a DOS reward. Must submit approved I-854 with I-485.
- NAFTA professionalTDSpouse or child of TN
- TN status is for Canadian and Mexican citizens engaged in professional activities.
- Similar to H, but no time limitation on stay and it generally covers a broader range of jobs.
- TNs, unlike H-1Bs, are subject to INA §214(b) and must prove nonimmigrant intent.
- TNs are admitted for up to 3 years.
- Canadians may apply at a Class A POE
Employment Based ( EB-2, EB-3) & Labor Certification
- Several points must be kept in mind when considering immigration under one of the first three preference categories:
- (1) the U.S.-based employer offering the immigrant employment must provide full-time, permanent employment;
- (2) the Department of Labor (DOL) must certify that U.S. workers qualified for the job being offered are unavailable to fill the position: Does not apply to immigrants in the first employment-based preference category. It is also not applicable to EB second-preference immigrants who have received a national interest waiver of the labor certification requirement, or pre certified Sched A Occupations.
- (3) the immigrant must meet the minimum requirements for the job;
- (4) the employer must be able to pay the immigrant's salary; Tax Next Income, past payment of income, Assets.
- (5) the immigrant and employer must both intend for the worker to undertake the position; and
- (6) an immigrant visa number must be available to finalize process for permanent residence.
EB2/Special Problems: Precluded from entering U.S. as an immigrant principally to perform services as a member of the medical profession.
- Labor Certifications for Physicians—When an NIW is not possible, a physician may seek residency through the regular LC process. To obtain an LC as a treating physician, the medical doctor must establish that she:
- (1) meets the advanced degree requirement for EB-2 and thus has the equivalent to a U.S. advanced degree and that the position requires an advanced degree
- (2) has the minimum requirements of the permanent physician position on the date of filing the LC which includes licensure; and
- (3) has overcome the “unqualified physician” provision which includes proof of passing the USML
- Nurses: Problems; , only managerial jobs (director of nursing or assistant director of nursing) or advanced level jobs (clinical nurse specialist, nurse practitioner, etc) generally require advanced degree
Employment-Based Immigrants: Third Preference
and Other Workers
- THIRD PREFERENCE: Professionals, Skilled and Other Workers (EB-3) Professionals—Baccalaureate degree (or foreign university equivalent) and persons who are members of the professions. The degree equivalency may be met through evaluation of education but cannot be based upon years of experience or a combination of education and experience. Must be actualy degree or equivalent foreign degree.
- (1) he or she has a U.S. bachelor's degree or foreign equivalent degree;
- (2) that the occupation requires the minimum of a bachelor's degree for entry into the occupation; and
- (3) that the worker is a member of the profession.
- Wording of the accompanying labor certification may bar consideration of the beneficiary as a skilled worker Foreign nationals seeking admission to perform labor as health care workers are inadmissible unless they present certification from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or an equivalent independent credentialing organization approved by the DHS verifying that:
- Skilled Workers—Full-time permanent job requiring at least 2 years training or work experience. Relevant post-secondary education may be considered as training.
- Although degree equivalency for an EB-3 professional can only be based on an evaluation of education and cannot include experience, the EB-3 skilled worker category does permit equivalency based on education and experience mind that it is the position that requires two years of training or experience—not just employee credentials as determinative of position.
- Diff b/w skilled and unskilled workers is extremely important, because of the annual limitation on visas of 10,000 imposed on unskilled workers—extended delays.
- Other Workers—Includes foreign nationals with less than 2 years of training and work experience.
- An LC is needed for all third preference categories.
- An NIW is not available for EB-3.
Employment-Based Immigrants: Religious
- Fourth Preference Religious Workers:
- Requirements: For at least 2 years immediately preceding the filing of the petition, the person “has been a member of a religious denomination having a bona fide, nonprofit, religious organization in the United States,” and. - to work full time (35 hours) in a compensated position, solely to carry on his or her vocation as a minister, seeks to work in a professional or nonprofessional capacity in a religious vocation or occupation), or to work for a bona fide, nonprofit religious organization in the U.S. or its affiliate in the U.S.; and The person has been working as a minister or in a religious vocation or occupation, either abroad or in lawful status in the U.S. for at least the 2–year period, after 14yrs old, immediately preceding the filing of the petition.
Employment-Based Immigrants: Fifth Preference (Employment Creation - Investors) (Conditional Status)
- FIFTH PREFERENCE: EMPLOYMENT CREATING VISAS Allows for conditional residency for persons who, after Nov. 29, 1990, “invest” $1,000,000 (or under certain circumstances $500,000) in a new commercial enterprise that employs 10 USCs or authorized immigrant workers full-time and engage in the business through day-to-day management or policy formation.
- Pre 11/29/1990 is “new” if restructured thoroughly or 40% increase in net worth CR “created or can be expected to create within a reasonable period of time 10 full-time jobs for qualifying employees 10 permanent jobs must be created within 2 Yr. CPR or within a reasonable time.
- Where investment only sustains current employees but does not create new full time jobs, it does not meet the jobs requirement unless investment is in a “troubled business” (net loss for 1 or 2 years exceeding 20% of net worth)
- Conditional resident status: can be terminated for fraud, not maintaining investment or conforming to investor status. Or if I-829 not filed within 90 days of 2 yr anniversary. Removal Proceedings: Burden on gov’t if status terminated, although if Investor fails to file I-829, burden on investor.
Common issues for employment based immigrants:
- Portability/Effect of Changed Employment on Priority Date— For I-140 the priority date of the approved petition is preserved for any subsequently filed petition under these sections. If unskilled worker subsequently gets new approval under skilled worker category, s/he would get the benefit of the earlier priority date.
- Moreover, an adjustment of status application pending more than 180 days that is based upon a first preference (outstanding researcher/professor or multinational transferee) or second or third preference employment-based petition can be used for a new job offer without filing any further petitions as long as the job is in the same or similar occupational classification.
- This portability provision allows an employee to change jobs if the adjustment application is pending more than 180 days because the adjustment “shall remain valid with respect to a new job if the individual changes jobs or employ I-140/must befiled within 180days of LC approval
- Successor in Interest—Employer must file new I-140 petition, but the LC remains valid (if filed originally with an I-140 within 180 days of its approval), when it:
- (a) is a successor in interest because it has been bought out, merged or had a significant change in ownership;
- (b) has changed its name; or
- (c) has moved
A successor must submit documentation that:
- (1) the job opportunity is the same;
- (2) it is eligible for the visa classification in all respects including providing the predecessor’s financial information regarding the predecessor’s ability to pay the proffered wage at the time of filing the LC; and
- (3) it has transferred and assumed the ownership of the predecessor entity, thogh not neccc all assets and liabilities.
- New Petition Not Necessary—A new petition is not necessary where:
- (1) the case involves portability;
- (2) the company has merely changed its legal name; or
- (3) the company has changed its location but remains within the same area of intended employment (same metropolitan statistical area)
Portability/Subsequent Employer—An AOS application based upon an EB-1, EB-2 or EB-3 petition that is pending more than 180 days “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.”
Question as to USCIS Authority to Reconsider DOL Decision—DOL decides the test of the labor market. USCIS decides if the alien has the credentials for the job and if the employer has the ability to provide the job. DOL, not USCIS, determines the job requirements; where USCIS denied application because job requirements were inappropriate, the court reversed Labor Certification -- must establish that the alien will not displace U.S. workers or adversely affect the wages or working conditions of U.S. workers.
Mandatory Detention and bond
- IJ has no jurisdiction
- Post Order-->Zadvydas: no reasonable belief that removal will occur in the forseeable future
Judicial Review of Removal Orders
- Stays Standard, Nken: “traditional” standard for a stay. Under this standard, the court considers the following four factors:
- (1) whether the stay applicant has made a strong showing that he/she is likely to succeed on the merits;
- (2) whether the applicant will be irreparably injured absent a stay;
- (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
- (4) where the public interest lies.
Immigration Judge Proceedings, Rules Governing, generally
- NTA commences proceedings
- Gov't has burden to prove removability
- Attacks on proper service of NTA
- Admitting and conceding vs. Contesting the NTA
- MTC must be rec'd by ct 10 days before master hearing. 30 for Indiv or will be denied
- Notice for Failure to Report
- Notice of Rights Advisals
- In Absentia Orders
- Abandonment of Application for Relief
- UN Convention Against Torture, sets forth the specific contents that must he included in a deferral order. Specifically, when an Immigration Judge grants deferral of removal under the Convention Against Torture, he or she must inform the alien that:
- 1) Deferral of removal does not confer any lawful or permanent immigration status on the alien;
- 2) If the alien is detained, he or she may not necessarily be released by the DHS;
- 3) Deferral of removal is effective only until terminated;
- 4) Deferral of removal may be terminated based upon the alien’s request or a motion from the DHS; and
- 5) Deferral of removal only precludes the DHS from removing the alien to a particular country or countries in which it has been determined that the alien is likely to be tortured; the alien may be removed at any time to another country.
- a motion for termination shall be granted if it is accompanied by evidence that is relevant to the possibility that the alien would be tortured in the country to which removal has been deferred that was not presented at the previous hearing.
- Counsel of Choice
- b. Free Legal Services
- c. Evidentiary Rights
- d. Appeal Rights
- e. Reading and Explanation of NTA in Non-Technical Language
- f. Right to Designate Country of Removal
- Failure to Appear
- Change of Adress
- Call ups
- Frivolous Asylum
- CAT Deferral
- Appeal Rights
Mental Health Issues
- (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
- (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
- (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
Removability Due to Crimes
- (A) Murder, Rape, or Sexual Abuse of a Minor
- (B) Illicit Trafficking in Controlled Substance Including a Drug Trafficking Crime
- (C) Illicit Trafficking in Firearms/Destructive Devices or Explosive
- (D) Laundering Monetary Instruments or Monetary Transactions over
- $10,000 in Property Derived from Unlawful Activities
- (E) Explosive Materials Offenses
- (F) Crimes of Violence (Not including purely political offenses)–Term
- of imprisonment at least 1 year
- Basic Credibility Standards.
- Asylum Application.
- Asylum Officer Interview
- Conjecture and Speculation
- Credibility vs. Plausibility
- Demeanor .
- Inconsistent Statements
- Substantial Inconsistencies.
- Minor Inconsistencies
- Lack of Specific and Detailed Testimony
- Opportunity to Explain
- Explanation Required
- Explanation not Required
- REAL ID Act.
- Responsiveness to Questions
CORROBORATING EVIDENCE (REAL ID Act)
- Basic Corroborating Evidence Standards
- If Testimony is Credible
- If Testimony is not Credible
- Airport Statements
- Authentication of Documents
- Department of State Country Reports
- False Documents, including False Statements
- New Evidence on Appeal.
Asylum (discretionary = may be granted)
In an asylum adjudication, the applicant bears the burden of establishing statutory eligibility, which requires a showing of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A). If eligibility is established, asylum may be granted in the exercise of discretion. INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987).
Regular Witholding of Removal
(future, more likely than not = MUST be granted)
- Flip burden: gov't must show R can go somewhere else in-country or changed circumstances onces past persecution is established)
- As with asylum, a threshold determination must be made as to the credibility of the applicant for withholding of removal.
- A claim for withholding of removal is factually related to an asylum claim, but the applicant bears a heavier burden of proof to merit relief.
- For withholding, the applicant must demonstrate that, if returned to his country, his life or freedom would be threatened on account of one of the protected grounds.
- to make this showing, the applicant must establish a “clear probability” of persecution, meaning that it is “more likely than not” that he will be subject to persecution on account of a protected ground if returned to the country from which he seeks withholding of removal.
- The applicant’s credible testimony alone may be sufficient to sustain this burden of proof.
- If an alien demonstrates that s/he suffered past persecution in the proposed country of removal, the burden shifts to the Department to demonstrate that a fundamental change in circumstances has occurred in that country or that the applicant could safely relocate to another area in the proposed country of removal.
- There is no discretionary element.
- Therefore, if the applicant establishes eligibility, withholding of removal must be granted.
- Additionally, there is no statutory time limit for bringing a withholding of removal claim.
- Because asylum and withholding claims rely on the same factual basis, but there is a heavier burden for withholding, an applicant who fails to establish his eligibility for asylum necessarily fails to establish eligibility for withholding.
- An applicant is precluded from applying for relief if
- 1. he participated in the persecution of others,
- 2.if he was convicted of a particularly serious crime,
- 3.if there are serious reasons to believe he committed a serious nonpolitical crime outside of the United States, or
- 4.if there are reasonable grounds to believe he is a danger to the security of the United States. A particularly serious crime need not be an aggravated felony.
- Once the elements of the offense are examined and found to potentially bring the offense within the ambit of a particularly serious crime, all reliable information may be considered in making a particularly serious crime determination, including but not limited to the record of conviction and sentencing information.
- When an Immigration Judge issues a decision granting an alien’s application for withholding of removal, without a grant of asylum, the decision must include an explicit order of removal.
- A grant of withholding does not prevent DHS from removing the alien to a country other than the one to which removal has been withheld.
Withholding of Removal under the Convention Against Torture Defined
(Govt willing or unable to conrol)
- The Convention Against Torture and its implementing regulations provide that no person may be removed to a country where it is “more likely than not” that such person will be subject to torture.
- “Torture” is defined, in part, as the intentional infliction of severe pain or suffering by, or at the instigation of, or with the consent or acquiescence of a public official.
Legal standard for any bars to asylum
- Filing Within One Year of Admission
- Particularly Serious Crime
- Serious Nonpolitical Crime
- Terrorist/Danger to Security of U.S.
- Firm Resettlement
Congress recently passed legislation that changes who is eligible to enter the United States through the Visa Waiver Program (VWP).
- These changes are in reaction to the fears that terrorists and terrorist sympathizers will enter the United States exploiting the ease by which people can enter through the VWP.
- The Visa Waiver Program was designed to allow citizens of certain countries to avoid the lengthy process by which most foreign nationals must apply for a visa at a U.S. consulate abroad.
- The normal process involves an application, a background check, an interview and sometimes more. Applications for short-term visitor or business visas are routinely denied.
- The Visa Waiver Program allows qualified citizens from 38 countries to avoid this process and with a quick online registration, obtain an electronic visa and admission into the United States for 90 days at a time.
- This list of 38 countries changes often and usually only contains first-world countries that have low rates of people overstaying their visas, claiming asylum or otherwise abusing the visa process. Citizens from all over Europe, Australia, New Zealand and parts of East Asia enjoy the use of Visa Waiver admissions.
- Recently, a fear has developed that people holding passports from one of these 38 countries may be terrorists, sympathizers or have traveled to the Middle East for military training or Jihadist radicalization.
- The fear is that those individuals would then use their special admission rights under the VWP to enter the U.S. with much less scrutiny then through the normal visa process and then engage in acts of terrorism. In an attempt to avoid this, Congress passed new restrictions on who can use the VWP to obtain entry into the U.S.
- Effective December 18, 2015: Individuals who have been present in Iraq, Syria, Iran, or Sudan (or other countries designated by DHS as supporting terrorism or "of concern") at any time on or after March 1, 2011, are not eligible to participate in the VWP. The new law exempts those performing military service in the armed forces of a VWP country or those carrying out official duties in a full-time capacity in the employment of a VWP country government.
- In addition, DHS may waive exclusion from the VWP program if it would be in the law enforcement or national security interests of the United States. The new law also excludes from the VWP individuals who are nationals of Iraq, Syria, Iran, or Sudan. Nationality typically depends on the laws of the designated country, so it is important to note that an individual may be a national of a particular country, even if he or she has never resided in that country and/or does not have a passport issued by that country.
- This change can greatly effect anyone who may have traveled to one of these countries of concern, even if that person is not from that country, never lived there, has no ties to that country and was only going there for official commercial business. In addition, the travel restriction date is retroaction, so if you traveled to one of those countries, even four years ago, but have not been back since, you could be barred from using the VWP.
Richard, et al. v. U.S. Attorney General, 15-10097 (11th Cir. Nov. 12, 2015) (unpublished)
- The 11th Circuit Court of Appeals vacated the BIA’s decision upholding the IJ’s denial of asylum, withholding and relief under CAT on the basis of finding Petitioner was not credible.
- The Court reviewed the adverse credibility finding under the “highly deferential substantial evidence test.”
- The Court discussed the test and the circumstances which may support an adverse credibility finding under the REAL ID Act.
- The Court stated that “minor perceived inconsistencies and omissions may be insufficient to support an adverse-credibility finding.”
- The Court then analyzed the testimony cited as the basis for the adverse-credibility finding below and determined that the record compelled reversal. The Court granted the appeal, vacated the BIA’s decision and remanded the case to the BIA for consideration of Petitioner’s alternative arguments concerning his eligibility for asylum, withholding and CAT relief.
Ramphal v. U.S. Attorney General, 15-10869 (11th Cir. Nov. 17, 2015) (unpublished)
- The BIA did not err in denying Petitioner’s motion to reopen in order to present further evidence of a bona fide marriage.
- Petitioner had married his spouse during proceedings, so he faced a presumption that the marriage was not bona fide unless the marriage exception applied
- Under the exception, the burden is on Petitioner to establish a bona fide marriage by clear and convincing evidence.
- The 11th Circuit found that the Petitioner did not support his motion to reopen with “clear and convincing evidence indicating a strong likelihood that the [Petitioner’s] marriage [was] bona fide,” Matter of Velarde-Pacheco, 23 I&N Dec. 253, 256 (BIA 2002), as is required.
- He did not submit any documentation in support of a bona fide marriage and did not contend that he presented any such evidence on appeal.
- The 11th Circuit also found that the BIA did not violate Petitioner’s due process rights in denying his motion to reopen.
- The 11th Circuit pointed out that both adjustment of status and reopening of removal proceedings are forms of discretionary relief, not constitutionally protected liberty interests.
- The Court also stated that he was not denied an opportunity to present evidence of a bona fide marriage and the BIA did not refuse to accept or review any documentation provided.
- Lastly, the Petitioner’s assertion of prejudice stemming from not having enough time to establish a bona fide marriage due to his marriage being five months old, was not acceptable.
Chen v. U.S. Attorney General, 14-15449 (11th Cir. Nov. 19, 2015) (unpublished)
- The 11th Circuit upheld the BIA’s and IJ’s denial of Petitioner’s asylum claim based on his fear of persecution for his Falun Gong practices.
- While Petitioner demonstrated a subjective fear of future persecution, he did not show an objectively reasonable, well-founded fear of persecution.
- “‘Persecution’ is an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation, and … mere harassment does not amount of persecution.”
Kazemzadeh v. U.S. Atty Gen., 577 F.3d 1341, 1353.
- In this case, the Petitioner’s evidence that government officials in China interrogated his mother as to his Falun Gong activities and told her to urge him to return to China to accept punishment, did not constitute persecution.
- The Court pointed out that the threats were not specific as to the type and length of punishment.
- Moreover, the country reports submitted recognizing that Falun Gong practitioners have been targeted for arbitrary punishment, were insufficient because Petitioner was not a core leader, who may be subject to such treatment.
Cervantes Castro v. U.S. Attorney General, 14-13302 (11th Cir. Nov. 30, 2015) (unpublished)
- The Court affirmed the IJ and BIA’s denial of withholding of removal.
- The Court upheld the BIA’s determination that the two incidents cited by Petitioner did not rise to the level of persecution either individually or in the aggregate.
- The IJ and BIA found Petitioner’s testimony unreliable and implausible that attackers assaulted him in a highly-travelled area but then let him go because they happened to be in a busy, highly-populated area.
- Petitioner’s “tenable” explanation for this did not compel reversal, particularly in the absence of corroborative evidence.
- Second, despite the detailed and consistent nature of the testimony of Petitioner and his wife regarding a second assault, the testimony was otherwise uncorroborated, and the IJ found the event unlikely.
- Further, Petitioner’s argument that the country report corroborated his claims was misplaced because the report did not corroborate any of the incidents Petitioner claimed to have personally experienced.
- In light of Court precedent, Petitioner’s brief kidnapping and beatings that did not result in serious physical injury, done in conjunction with verbal threats, did not individually or cumulatively rise to the level of past persecution.
Department of Homeland Security, Immigration and Customs Enforcement v. Ayvazian et al., 1:15-CV-23213-CIV-Scola (S.D. Fla. Sept. 2015)
- Immigration and Customs Enforcement (ICE) brought this action to secure an order allowing ICE to administer involuntary medical testing and force feeding to three non-citizens detained by ICE.
- Three ICE detainees engaged in a hunger strike to protest their treatment in Removal Proceedings.
- A medical officer employed by DHS testified that due to the hunger strike, the detainees’ health had deteriorated to the point where ICE had three options:
- 1) let them die;
- 2) administer involuntary nutrition; or
- 3) release the hunger strikers.
- The Court determined that options one and three were unreasonable and that option two was both a reasonable and permissible solution to the hunger strike while balancing the hunger strikers’ constitutional rights against ICE’s legitimate security interests.
Thomas v. Immigration and Customs Enforcement, et al., CV-5:13-cv-126 (S.D. Ga. Aug. 2015)
- Petitioner filed an action for a writ of habeas corpus while detained.
- The Magistrate Judge recommended dismissal and the case be closed.
- The petition sought to terminate an ICE detainer.
- Petitioner claimed it affected his public safety factor by preventing his release to a halfway house and entry into an early release program, resulting in more time served and a harsher sentence.
- This claim was dismissed.
- the U.S. Supreme Court held that it is mandatory for a claimant to exhaust available administrative remedies.
- Petitioner had never put forth this claim through the proper prison procedures before filing suit.
- Furthermore, the Court agreed with the Respondents that, because the detainer did not constitute custody for purposes of §2241, it lacked subject matter jurisdiction to hear the claim.
- Petitioner had not been served with an order to show cause or a final deportation order, and was not, in fact, in removal proceedings.
- The Court noted that, the 11th Circuit held that a stand-alone detainer does not put an individual in custody of ICE.
- Rather, a detainer is a form of notice by ICE to prison officials that a person has other pending charges and that ICE will need to determine whether removal proceedings should be imposed in the future.
- Petitioner also claimed that he was a U.S. citizen through his status as a stepchild of a U.S. citizen prior to turning 18, which claim was also dismissed for lack of jurisdiction. Again, he had not exhausted the proper administrative remedies prior to filing his petition.
- all available administrative remedies must be exhausted prior to a federal court having subject matter jurisdiction over a claim. Petitioner had filed a Form N-600 with USCIS.
- At the time of the hearing, the application had not yet been adjudicated. The Court noted that inmates can bring derivative citizenship claims under certain conditions, which he did not meet.
- The first is after USCIS denies the N-600 and the Administrative Appeals Unit denies the appeal.
- The second is where a claim of derivative citizenship has been denied as part of an individual’s removal proceedings.
Walters v. U.S. Attorney General, 15-10154 (11th Cir. Sept. 2015) (unpublished):
- The Court upheld the BIA’s affirmance of the IJ’s ruling that Petitioner’s Florida conviction for operating a chop shop was categorically a Crime Involving Moral Turpitude (CIMT).
- The BIA reasoned that operating a chop shop was “morally reprehensible conduct” and involved theft and deception.
- The Court, in applying the categorical approach, determined that “the least culpable conduct necessary to sustain a conviction under the statute meets the standard of a crime involving moral turpitude.”
- Using the categorical approach, the Court found the Florida statute to be a CIMT because the statute’s plain language required, at the very least, knowingly aiding and abetting the operation of a shop designed to conceal or house stolen car parts.
- Such concealment necessarily involves dishonesty which has been recognized by binding precedent as involving moral turpitude.
- Thus the least culpable conduct necessary to sustain a conviction under this particular statute met the standard of a CIMT.
Qiu v. Attorney General, 14-13838 (11th Cir. June 2015) (non-precedential)
- This case involved the review of the Board of Immigration Appeals’ (BIA) denial of a Chinese national for withholding of removal and Convention Against Torture (CAT).
- Respondent claimed she will be forcibly sterilized if removed to China because she violated China’s family planning policy by having two children in the United States.
- The Court granted the Petition for withholding of removal, vacated the order and remanded to the BIA to determine whether the Immigration Judge’s (IJ) factual findings were clearly erroneous.
- Furthermore, the Court found the BIA erred when it made a factual finding that Respondent had not established the second prong of the asylum test, being persecuted on account of race, sex, religion, nationality or particular social group, because the IJ did not make any finding of fact as to the second prong.
- Instead, the IJ assumed Respondent had satisfied the first two prongs and evaluated only what sanctions she was likely to face and whether they rose to the level of persecution.
- The Court found that the IJ and BIA cannot substitute reliance on State Department reports for analysis of the unique facts of an applicant’s case, specifically that Respondent’s local family planning office had already determined that she must undergo sterilization.
Gutierrez Castillo v. U.S. Attorney General, 14-14342 (11th Cir. July 2015) (non- precedential)
- The Court denied Respondent’s Petition seeking review of a BIA’s affirmation of IJ’s removal order because of an aggravated felony.
- Respondent, a military veteran, had a pending naturalization application, and he argued his case should have been continued or terminated (relating naturalization for certain veterans).
- IJ denied the continuance and found him removable, saying that all three of his convictions, manufacture of cannabis, burglary, and attempted second degree murder, were aggravated felonies.
- The BIA said that attempted second-degree murder was definitely an aggravated felony and so declined to decide whether the other charges were aggravated felonies.
- The BIA also decided that the IJ properly denied Respondent’s request for a continuance because USCIS had not provided an affirmative communication regarding his prima facie eligibility to naturalize and had indicated that Respondent was ineligible for naturalization.
- The Court stated the BIA found that attempted murder was an aggravated felony and Respondent did not contend that the BIA committed any error in reaching this conclusion; thus, Respondent abandoned any challenge to the substantive basis for his removal.
- Furthermore, the Court found the BIA’s interpretation of a regulation in Matter of Acosta Hidalgo, was reasonable and entitled to deference from the 11th Circuit.
- In Acosta Hidalgo, the BIA determined that an IJ may terminate proceedings based on an alien’s pending naturalization application only if the DHS has issued an affirmative communication indication that the alien is prima facie eligible for naturalization.
- The interpretation is reasonable because DHS has sole authority over naturalization decisions, not plainly erroneous or inconsistent with the regulation.
- The regulation was ambiguous because it left out who was to make the prima facie eligibility determination, and BIA was entitled to clarify.
Marcelu v. U.S. Attorney General, 14-15229 (11th Cir. Aug. 2015) (unpublished)
- The Court upheld the BIA affirming the IJ’s denial of Petitioner’s application for asylum based on an adverse credibility finding.
- The basis for that finding was found to be supported by substantial evidence.
- Discrepancies between statements made in his asylum application and his testimony before the IJ included:
- Petitioner testified to living at a different address as the one stated in his asylum application;
- Petitioner testified that he was in hiding from 2005 to 2011 but stated in his asylum application that he worked as a bus driver during that time;
- a corroborating account failed to mention his sister’s murder, a key part of his claim;
- and Petitioner stated in his asylum application that he was a member of an anti-government group but did not testify to that fact at his hearing.
- Petitioner did not contend that the other evidence in the record, absent his discredited testimony, compelled a conclusion that he was or would likely be persecuted upon his return.
Reyes Mata v. Lynch, 576 U.S. _____ (2015);
- The U.S. Supreme Court held that a U.S. court of appeals has jurisdiction to review the Board of Immigration Appeal’s denial of a motion to reopen.
- The Court rejected a holding of the Fifth Circuit Court of Appeals where the court claimed that is lacked jurisdiction to review the Board’s denial of a motion to reopen.
- The Supreme Court stated that the appeals court has jurisdiction to review the merits of the Board’s decision to deny a statutory motion to reopen and should not dismiss the Petition for Review purely on jurisdictional grounds.
Kerry v. Din, 576 U.S. _____ (2015);
- The U.S. Supreme Court confirmed that an applicant for admission, who is not in the United States and has no lawful immigration status, also has no right to pursue a cause of action on his/her own when denied admission (the consular non-reviewability doctrine).
- In this case, the U.S. Supreme Court went further and refused to extend due process protections to a U.S. citizen who petitioned for her spouse to seek admission to the United States through consular processing.
- The Court held that there was no fundamental right to live in the United States with your foreign-born spouse.
- Therefore, due process protections did not extend to the consular processing procedures that allow U.S. consular posts to summarily deny applications for immigrant visas without a detailed or even specific listing of their reasons.
Johnson v. United States, 576 U.S. _____ (2015);
- In a federal criminal sentencing case that is sure to have far-reaching immigration implications, the U.S. Supreme Court found that the residual clause of the Armed Career Criminal Act (ACCA) violates due process because it is unconstitutionally vague in its use and application of the “ordinary case” standard.
- This is important in the immigration context because immigration and federal courts rely on decisional case law applying the ACCA’s residual clause when analyzing crimes of violence in the immigration context . In fact, the language is very similar to the language in the ACCA’s residual clause that the Supreme Court found unconstitutional. Ironically, the Board’s published decision noted above in Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015) which mandates the use of the “ordinary case” analysis for crimes of violence, has likely already been overruled by this decision.
Matter of Agour, 26 I&N Dec. 566 (BIA 2015);
- In a potentially huge decision, the Board held that an immigrant who adjusted their status while in the United States can qualify for an INA § 237(a)(1)(H) fraud waiver.
- The Board had previously held that only those immigrants who were admitted from abroad (consular processed) and met the other statutory requirements were eligible for this rare and oft-overlooked waiver.
- This decision appears to pave the way for otherwise-admissible immigrants who committed fraud or a material misrepresentation during adjustment (i.e. marriage fraud) to obtain this waiver to maintain status and avoid removal.
Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015)
Future events = clearly erroneous
reasonable fear = de novo
- The Board held that an Immigration Judge’s determination of future events in the context of an asylum case, is a finding of fact and subject to a clearly erroneous standard of review.
- The Board also held that whether an applicant has a objectively reasonable fear of future persecution is a legal determination and subject to a de novo standard of review.
Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015);
- The Board held that Fla. Stat. § 784.041(1) (felony battery) is an indivisible statute that is categorically a crime of violence.
- The Board confirmed that when analyzing a criminal statute to determine if it is a crime of violence, the Board uses an “ordinary case” not “minimum conduct” analysis.
- The Board distinguished cases (element-based) which uses a minimum conduct approach.
- The proper inquiry is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the "ordinary case.”
Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015);
- The Board held that in the context of an asylum application, if there are sufficient concerns regarding an applicant’s mental competency, the Immigration Judge should first follow the requirements for assessing mental competency.
- Second, the Judge should generally accept that the applicant has a subjective fear of harm necessary to support the asylum claim and then focus on whether the applicant has provided sufficient objective evidence to meet the burden of proof.
Matter of Pena, 26 I&N Dec. 613 (BIA 2015);
- The Board held that a returning lawful permanent resident could not be considered an arriving alien seeking admission unless they fell under the specific exceptions.
- In what seemed to be an obvious decision, the Board overturned an Immigration Judge’s ruling that a lawful permanent resident, who allegedly obtained their residency by fraud, could be considered an arriving alien without falling into any of the specific exceptions found in INA § 101(a)(13)(c).
Matter of Huang, 26 I&N Dec. 627 (BIA 2015);
- In another potentially very limited decision, the Board retracted from its holdings in Matter of Cariaga and Drigo that nunc pro tunc adoptions are not valid for immigration purposes.
- The Board held that when a non-citizen child is adopted, and the adoption proceedings began before the child turned 16, but the final order of adoption was not entered until after the child turned 16, but pursuant to state law the order was retroactive to the time the proceedings began (while the child was under 16), the adoption may still be valid for immigration purposes.
Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015)STOP TIME IS WHEN NTA FILED WITH COURT!!!!
- The Board held that a Notice to Appear, which was served upon a respondent, but never filed with an Immigration Court, cannot be used to stop the accrual of continuous residence or continuous physical presence under INA § 240A(d)(1).
- Normally, the service and filing with an Immigration Court of the Notice to Appear would invoke the stop-time rule for applicants for cancellation of removal pursuant to INA § 240A(a) and (b).
- However, a served, but never filed NTA would not invoke the rule.
Requesting a Stay of Removal (I-246) from ICE under the Secretary Johnson’s November, 2014 Policy Memo.
- The Johnson Memo states that in making judgments in the exercise of prosecutorial discretion, ICE personnel should consider the following factors:
- 1.extenuating circumstances involving the offense of conviction;
- 2.extended length of time since the offense of conviction;
- 3.length of time in the United States; 4.military service;
- 5.family or community ties in the United States;
- 6.status as a victim, witness or plaintiff in civil or criminal proceedings;
- 7.or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.
- These factors are not intended to be dispositive nor is this list intended to be exhaustive.
- Decisions should be based on the totality of the circumstances.
Matter of Silva-Trevino, 26 I&N Dec. 550 (AG 2015);
- completely vacated former AG Mukasey’s decision in 2008’s landmark decision, Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008)—please hold your applause to the end.
- AG Holder recognized that five of the seven Federal Circuits that have ruled on the issue have overturned at least the third prong of the Silva-Trevino analysis which allowed Immigration Judges to go beyond the categorical and modified categorical analyses and use evidence outside t he record of conviction.
- This is one of two recent decisions that spend quite a bit of time focusing on the needed for a unitary Federal policy on Immigration.
- This may be an indication that the Board may be looking for additional areas of immigration jurisprudence where there is a conflict in the Circuits and attempt to rectify the conflicts through BIA or AG decisions.
Motion to Reopen
Factual Issues Not Available Before
- A motion to reopen must state the new facts that will be proven at a reopened hearing if the motion is granted, and the motion must be supported by affidavits or other evidentiary material.
- A motion to reopen is not granted unless it appears to the Immigration Judge that the evidence offered is material and was not available and could not have been discovered or presented at an earlier stage in the proceedings.
- As a general rule, a motion to reopen must be filed within 90days of an Immigration Judge’s final order.
- Only 1 mtn allowed unless
- (1) changed circumstances
- (2)in absentia (only one no fee needed)
- (3) joint motion
- (4) DHS mtns
- (5) VAWA
- (6) new case law or sua sponte
- No auto stay
Motions to Reconsider
Legal Issues or Errors
- Has a fee
- 30 day deadline
- A motion to reconsider either identifies an error in law or fact in the Immigration Judge’s prior decision or identifies a change in law that affects an Immigration Judge’s prior decision and asks the Immigration Judge to reexamine his or her ruling.
- A motion to reconsider is based on the existing record and does not seek to introduce new facts or evidence.
- No auto stay
In Absentia Motions
- If for no notice, no fee (no filing deadline)
- If for extraordinary circumstances, fee, must be filed within 180
- A motion to reopen to rescind an in absentia order must demonstrate that:
- the failure to appear was because of exceptional circumstances (Matter of Lozada--> Ineffective Assistance of Counsel);
- the failure to appear was because the alien did not receive proper notice; or
- the failure to appear was because the alien was in federal or
- state custody and
- the failure to appear was through no fault of the alien.
- The term “exceptional circumstances” refers to exceptional circumstances beyond the control of the alien (such as battery or extreme cruelty to the alien or any child or parent of the alien, 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).
- No auto stay
Motion to Withdraw (Matter of Rosales)
- o whether the motion to withdraw is for all proceedings, custody and bond proceedings only, or all proceedings other than custody and bond proceedings
- o the reason(s) for the withdrawal of counsel, in conformance with applicable state bar or other ethical rules
- o the last known address of the alien
- o a statement that the attorney has notified the alien of the request to withdraw as counsel or, if the alien could not be notified, an explanation of the efforts made to notify the alien of the request
- o evidence of the alien’s consent to withdraw or a statement of why evidence of such consent is unobtainable
- o evidence that the attorney notified or attempted to notify the alien, with a recitation of specific efforts made, of
- (a) pending deadlines;
- (b) the date, time, and place of the next scheduled hearing;
- (c) the necessity of meeting deadlines and appearing at scheduled hearings; and
- (d) the consequences of failing to meet deadlines or appear at scheduled hearings
Motion to Supress
- Statements in a motion to suppress must be specific and detailed and based on personal knowledge.
- An alien who questions the legality of evidence presented against him or her must come forward with proof establishing a prima facie case before the DHS will be called upon to assume the burden of justifying the manner in which it obtained the evidence
- Even if an arrest or interrogation is unlawful, it may have no bearing on resulting immigration proceedings because the Fourth Amendment exclusionary rule is not applicable to the civil proceeding
- However, where there are egregious violations of the Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the value of the evidence obtained, DHS will be precluded from using such evidence.
- An alien who questions the legality of evidence presented against him or her must come forward with proof establishing a prima facie case before the DHS will be called upon to assume the burden of justifying the manner in which it obtained the evidence. Even if an arrest or interrogation is unlawful, it may have no bearing on resulting immigration proceedings because the Fourth Amendment exclusionary rule is not applicable to the civil proceeding. However, where there are egregious violations of the Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the value of the evidence obtained, DHS will be precluded from using such evidence In order to exclude evidence based upon the noncompliance with DHS regulations, the alien must meet a heavy burden of proving:
- (1) that the regulation was not adhered to;
- (2) that the regulation was intended to serve a purpose of benefit to the alien; and
- (3) that the violation prejudiced the alien's interest in that it affected the outcome of the proceedingsThe exclusionary rule is not applicable, but evidence is nevertheless inadmissible, if it was obtained in violation of the alien's privilege against self-incrimination, or if the statement was involuntary or coerced. The alien bears the burden of proving that DHS's evidence was unlawfully obtained.
Motion to Recuse
- The test is an objective one, such that an Immigration Judge should recuse him or herself “when it would appear to a reasonable person, knowing all the relevant facts, that a judge’s impartiality might reasonably be questioned.”
- The BIA has noted three instances that warrant recusal:
- (1) when the alien demonstrates that he was denied a constitutionally fair proceeding;
- (2) when the Immigration Judge has a personal bias stemming from an “extrajudicial” source; and
- (3) when the Immigration Judge’s judicial conduct demonstrates “such pervasive bias and prejudice.”
V VISA EFFECTIVE DATE
V-LPr Petition on or before 12/21/2000.
WIDOWS EFFECTIVE DATE
204-L Surviving Spouse & Widows, 10/28/2009—no longer 2 yr marrig req.
CSPA EFFECTIVE DATE
CSPA 8/6/2002—no retro application unless pending on this date. Or IV not denied before this 06/15/2012 False Claim to USC 4/3/1996
245(i), applies to 130/140/360/526 --no phys pre if petition filed bf.. 1/14/1998. 14, 1998 but on or before Apr. 30, 2001—must show pres on 12/21/2000
PERM START DATE
PERM refiling—pending on 3/28/2005 (before that, had to refile)
Non Ministers Category Died
Non ministers expiration—10/1/2012
VD Terminated Rule
New VD terminated if MTR on or after 1/20/2009
I601A Start Date
UP Waiver, Provisional, 1/3/2013-not scheduled before
Unlawful Presence Bar Start Date
Unlawful Presence, 4/1/1997>, anything before that date will not count towards bar
Mandatory Detention Start Date
October 9, 1998—mandatory detention—released from custody after this date.
Child Citizenship Act
CCA 2/27/01-/Expedited Natz
212 c Still Lives
212(c) 4/24/1996 plead not jury trial
AEDPA Start Date
- AEDPA 4/1/1997
- Antiterrorism and Effective Death Penalty Act of 1996
DACA effective date
False Claim to USC, point of no return date
- Bond Requested
- First Entry Date
- Last Entry Date
- Bonded Address/Owner
- Marital Status
- Spouse’s Visa Status
- Family In The U.S./Status
- Level Of Education
- Last U.S. Employment & Dates
- Prior U.S. Employment & Dates
- Does Respondent Have Authorization To Work In The U.S. (Yes/No)
- Property Owned
- Arrests/Convictions & Dates
- Date Released From Most Recent Criminal Custody
- Date And Manner Came Into Ins Custody
- Prior Ins History
- Prior Appearance/Bond History
- Possible Waivers