Reforming the Immigration System’s Adjudication of Removal Cases

bigstock-Immigrant-Families-On-The-Marc-5038074The American Bar Association recently released an executive summary on the findings of a study conducted to understand the current U.S. system for removal. It described the current system as “crisis.” The study focused on the four governmental bodies that handle removal cases, namely the Department of Homeland Security (DHS), the Immigration Courts, the Board of Immigration Appeals (BIA) and the Federal Circuit Courts of Appeals.

Not surprisingly, the report found that the four governmental bodies have actually contributed to the problems associated with the overwhelming number of removal cases and “are not doing as good a job as they should” in providing fair decision making and due process. To rectify these problems, the executive summary suggests a complete overhaul of the current removal system, but also provides scaled-back reforms that would require less political impetus to be realized.

With the goals of ensuring political independence and adjudicatory fairness, as well promoting greater efficiency and professionalism, the executive summary proposes three alternatives for revamping the system. The first option would be to create an independent Article I Court to replace the Immigration Courts and BIA. The trial function of the Immigration Courts and the appellate function of the BIA would both be handled by the Article I Court. The second approach would, similarly, eliminate the Immigration Courts and BIA, but replace them with an executive adjudicatory agency.

The third, and final, proposal is considered the hybrid approach. The Immigration Courts and BIA would be replaced by an administrative agency that would handle trial-level cases and an Article I Court that would hear appeals. The executive summary ultimately concludes that the Article I Court is the best option, with the administrative agency being a close second. Despite the apparent advantages of the hybrid approach, the authors of executive summary do not endorse this method “since it is too complex and too costly relative to the other two options.”

Acknowledging that overarching changes would take significant time to implement, if ever fully realized, the executive summary makes recommendations for smaller scale initiatives that could be undertaken to foster more immediate change. The suggestions, which would require the enactment of legislation, include:

  • Requesting additional immigration judges;
  • Permitting all eligible non-citizens to adjust to lawful permanent residence or eliminate bars to entry;
  • Amending the definition of “aggravated felony” and eliminating retroactive application of such provisions;
  • Curtailing the use of the administrative removal process by DHS and the use of expedited removal for non-citizens at the border or within the U.S.;
  • Amending the definition of “crime involving moral turpitude”;
  • Eliminating or narrowing the mandatory detention provisions to persons who are clearly a risk;
  • Restoring judicial review of discretionary decisions under an abuse-of-discretion standard;
  • Permitting the Federal Circuit Courts of Appeals to remand cases to the BIA for further fact finding;
  • Extending the deadline for filing a petition for review of a BIA decision; and
  • Establishing a right to representation in adversarial removal proceedings and for individuals in groups with special needs.

Given the current contentious political climate, reforms that can only be accomplished through legislation seem highly unlikely to come to fruition anytime soon. Alternatively, the governmental bodies should concentrate on implementing the proposed reforms that do not require legislative action. These reforms include:

  • Increasing the use of prosecutorial discretion by DHS officers and attorneys and giving DHS attorneys greater control over removal proceedings;
  • Requiring asylum claims arising in expedited removal proceedings be adjudicated by asylum officers;
  • Reducing the use of detention and expanding alternatives to detention;
  • Requiring more written and reasoned decisions from immigration judges and more written decisions from the BIA;
  • Increasing training opportunities for immigration judges;
  • Limiting the conduct of hearings by videoconference to procedural matters in which the non-citizen has given their consent;
  • Increasing three-member panel review at the BIA;
  • Permitting de novo review by the BIA of immigration judge factual findings and credibility determinations;
  • Amending regulations to require BIA removal orders to contain notice of appeal rights; and
  • Modifying and expanding the Legal Orientation Program to reach additional non-citizens needing legal assistance.

The executive summary’s objectives are certainly honorable and commendable, but unfortunately not completely plausible given the current political climate in the U.S. The governmental bodies should, at the very least, work towards implementing the recommendations that do not require legislation. And, hopefully, they will continue to strive towards the larger reforms that are necessary to ensure independence, fairness, efficiency and professionalism in the adjudication of removal cases

Immigration Attorney on the Indictment of Opas Sinprasong, an E Visa Holder

Department of Homeland security is stepping up enforcement nationwide. We see stepped-up enforcement in Columbus, Ohio and throughout Michigan as in many parts of the US. By now, many have likely heard the news surrounding the February 10, 2010 federal grand jury indictment of Opas Sinprasong. The E visa holder and restaurant owner is charged with 10 counts of wire fraud, 40 counts of failure to pay employee federal payroll taxes, 5 counts of false swearing in an immigration matter and 4 counts of harboring illegal aliens. Last Wednesday, a $1 million bond was set for Opas Sinprasong.

The specific allegations against Mr. Sinprasong include keeping the passports of his foreign national employees to ensure they would not leave the U.S., requiring his employees to work up to 32 hours of overtime per week without proper compensation, and requiring his foreign national employees to pay him illegal and exorbitant visa preparation fees. The highly publicized story of Opas Sinprasong’s flagrant immigration and tax violations, unfortunately, draws attention to a small minority of individuals that abuse the system and overshadows the vast majority of law-abiding foreign nationals.

What many have likely not heard about is the behind-the-scenes story of how Mr. Sinprasong was brought to justice through the efforts of an anonymous employee, a Colorado University student and the Immigrant Legal Center. The anonymous employee worked at one of Mr. Sinprasong’s restaurants and was brave enough to notify El Centro Humanitario (The Humanitarian Center for Day Laborers) in Denver when he noticed Mr. Sinprasong’s foreign national employees were working around the clock. A Colorado University student, Diego Pena, who was volunteering at El Centro Humanitario encouraged the anonymous employee to share his concerns with the Immigrant Legal Center. The Immigrant Legal Center was then able to compile information and gather evidence for local law enforcement.

If not for the combined efforts of the individuals and organizations noted above, Mr. Sinprasong would still be mistreating his foreign national employees. Just as it is important to uncover and prosecute immigration violators, it is also vitally important to prevent vulnerable foreign nationals from being taken advantage of by foreign or U.S. employers. The anonymous employee who reported Mr. Sinprasong should be an inspiration to us all to be more cognizant of foreign nationals being exploited and to immediately report any such suspicions to the proper authorities.

H1-B Immigration Attorney Discusses Needed Changes in Employer Policy In Light Of The Neufeld H-1B Memorandum

bigstock-Immigrant-Families-On-The-Marc-5038074On January 8, 2010, the United States Citizenship and Immigration Services (USCIS) released a guidance memorandum written by Donald Neufeld on “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.” This Neufeld H-1B memorandum has left many employers, especially those whose employees work primarily outside of the main office, more confused than ever. They are rightfully asking if there is a sound legal ground that gives USCIS the basis to question whether its employees qualify for H-1B visas. Employer’s struggles to understand the need for policy changes if they are headquartered in Michigan, for example, and have employees working Columbus, Ohio. USCIS also appears to struggles defending its ill conceived and legally questionable policy memo it issued last month

Despite the USCIS’ February 18, 2010 collaborative session to hear feedback and gather input on the impact of this guidance, there is no guarantee the concerns expressed will be considered or that the guidance memorandum will be revised. Therefore, H-1B employers with “roving employees” should consider implementing, or confirm their business has the following policies in place to ensure their employer-employee relationship meets the “clarified” requirements.

One question, according to the memorandum, that the USCIS adjudicator must ask when assessing the existence of an employer-employee relationship is whether the petitioner evaluates the work-product of the beneficiary. For off-site employees, evaluations and progress reviews may be unconventional or infrequent, but employers should consider implementing a firm and consistent review policy. The H-1B employer should progressively review the foreign national employee’s work and conduct an annual evaluation of the employee to establish the requisite control or right to control, as is stressed in the recent guidance memorandum. These progress reviews and evaluations should be adequately documented and maintained in the employee’s personnel file.

Further, a USCIS adjudicator will also be looking for evidence of supervisory control over the employee. The USCIS will first look to see if the employee is supervised by the H-1B employer on-site. Supervision on-site by H-1B employers is atypical for roving employees. Accordingly, in the absence of on-site supervision, the USCIS will look for evidence of off-site supervision by the H-1B employer. To adequately establish supervision for off-site employees, employers should schedule and document regular meetings with such employees. These meetings can be accomplished through a combination of weekly calls, reporting back to the main office and site visits by the H-1B employer. Regardless of the method, the meetings should be regularly held and sufficiently recorded. Consult with an experienced immigration attorney to assure that any policy changes are well designed and implemented to help success in future H-1B petitions.

Next, H-1B employers with roving employees should examine whether they claim their H-1B employees for tax purposes and whether they provide H-1B employees with benefits. The USCIS finds these factors useful in determining whether an employer-employee relationship exists. If an H-1B employer does not currently claim their H-1B employees for tax purposes or provide their employees with benefits, they should consider changing their policies. These elements help establish the existence of control or the right to control the employee. By allowing a third-party to claim the H-1B employee for tax purposes or provide the H-1B employee with benefits, the H-1B employer risks being categorized as a “job shop” employment arrangement which is explicitly prohibited in the Neufeld Memorandum.

The creation of an employee handbook or manual is an effective means of establishing the rights and obligations of the H-1B employer, as well as those of their off-site employees. It can also be a credible technique for demonstrating the aforementioned policies are a part of the employer’s regular business model. It is not only important to incorporate such policies into one’s day-to-day business, but it is also essential that they be codified. In the event of a Request For Evidence (RFE) on an H-1B petition, the H-1B employer will have documentary evidence showing they maintain control or the right to control their employees and, thus, qualify as a legitimate H-1B employer.

The USCIS memorandum recognized that some third-party placement arrangements meet the employer-employee relationship criteria and, for that reason, employers should take all the necessary precautions to ensure their employer-employee relationship conforms to the requirements set forth in the guidance memorandum. This should include not only implementing the foregoing policies, but also sufficiently documenting that such policies are in place and regularly followed.

Columbus Immigration Attorney discusses Investor Visas & Immigration: The E Visa

bigstock-Immigrant-Families-On-The-Marc-5037855The purpose of this blog is to give you a simplified overview of the E visa program. The E visa route is often overlooked when evaluating options of bringing adult family members with an ability to invest funds in the US. Since the E visa normally is not approved for those with pending family immigrant petitions, it may be advisable in some situations to consult with an attorney before rushing and filing certain family petitions with substantial backlog.

E visa comes in two varieties: the E-1 Treaty Trader and the E-2 Treaty Investor. To qualify for any type of E visa, the investor or trader must be a national of a country that maintains a treaty of Friendship, Commerce and Navigation or a Bilateral Investment Treaty with the United States. The U.S. Department of State keeps a list of the qualifying countries and two of the most notoriously backlogged countries, Mexico and the Philippines, are currently on the list. Though the E visa is not typically considered a path to permanent residence, E visa holders can apply for an indefinite number of visa renewals. Notably, despite the significant amounts of trade and investment between the United States and China, Chinese nationals are not eligible for an E visa. This is due to the fact that there is no formal treaty between the United States and China recognizing the trading and investment relationship.

The E-1 visa is available for foreign nationals of treaty countries whose intent in the United States is to carry on substantial trade between the United States and the treaty country. Moreover, the E-2 visa is available for foreign nationals of treaty countries whose intent in the United States is to develop and direct the operations of an enterprise, in which they have invested, or are in the process of investing, a substantial amount of capital. Both the amount of trade and investment must be “substantial,” however; the definition of substantial does not provide clear guidance for E applicants. Specifically, the definition of substantial trade is “a sizable and continuing volume,” whereas a substantial investment is one that is sufficient to ensure the successful operation of the enterprise.

As there is no statutory threshold for the amount of trade or investment that qualifies as substantial, it may be difficult to ascertain whether an applicant clearly qualifies without the help of an experienced immigration attorney. It is highly recommended that E applicants consult with an experienced immigration attorney regarding their application prior to submission. An experienced attorney should be able to advise on the likelihood of success and help develop the business concept in a fashion that meets E visa regulations and policies Regardless of the vague qualification standards, one advantage of the E visa is the fact that the U.S. Consulate or Embassy can usually process applications quickly and the applicant can receive a decision within weeks or months.

Columbus Ohio Immigration Attorney Explains The EB-5 Preference Category

bigstock-Passport-Gavel-5802855The EB-5 preference category was created to encourage foreign nationals to invest in either a new commercial enterprise in the U.S. or an already existing U.S. business that is struggling. Now, more than ever, the EB-5 preference category is especially beneficial to both the United States and foreign national investors alike. With the ever present and continually growing immigrant visa backlogs, the EB-5 preference category is one way to circumvent the uncertainty and delays associated with traditional employment-based immigration. Moreover, the U.S. economy, and particularly small business, desperately needs outside investment to help maintain and create jobs for U.S. workers.

The threshold investment to qualify for the EB-5 preference category is quite steep: at least $1,000,000 or, if investing in a “targeted employment area,” at least $500,000. Although the $1,000,000 investment is likely out of reach for most foreign nationals, the $500,000 investment in a targeted employment area is more attainable. If a foreign national has the ability to make such an investment, they should not discount the EB-5 preference category as a viable option. A targeted employment area is defined by the United States Citizenship and Immigration Services (USCIS) as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.” Considering the national unemployment rate is currently averaging 10%, a targeted area of employment would be a rural area or an area with at least 15% unemployment.

Depending on whether the foreign national invests in a new enterprise or a troubled business will dictate whether they need to remain involved with the business. If the foreign investor does not want any commitment beyond making their investment, they should consider investing in an existing U.S. business that is struggling. A troubled U.S. business for EB-5 investment purposes is one which has been in existence for at least 2 years and has incurred a net loss of approximately 20% of the business’ net worth in the preceding 1 to 2 years. If the foreign national investor would like to invest in a new business venture, they must remain involved with the enterprise and manage the day-to-day operations to help ensure its continued success. While an investment in a troubled business need only preserve a certain number of jobs, an investment in a new enterprise must create at least 10 additional full-time jobs for U.S. workers.

If a foreign national has the means to make the size of investment required by the EB-5 preference category, they should seriously consider it. Not only would it help them and their family members obtain green cards much faster, but it would also help to bolster the U.S. economy and create or preserve many vital jobs for U.S. workers.

Immigration Attorney Discusses Investor Visas and Immigration

bigstock-Passports-31148States and cities with higher unemployment rate such as Columbus, Ohio and Michigan can certainly benefit from foreign investment. The purpose of investor visas and immigration is to encourage foreign nationals to invest substantial amounts of capital and resources into the U.S. economy. In light of the current economic climate and staggeringly highly unemployment rate, outside investment could be particularly beneficial to U.S. businesses and U.S. workers. The United States Citizenship and Immigration Services (USCIS) should be encouraged to give priority processing to foreign nationals who apply for investment visas, as they guarantee capital contributions to U.S. businesses and create jobs for U.S. workers. There are three different types of investment classifications: the E visa, the L visa (when opening a new office) and the EB-5 preference category.

The E visa is reserved for Treaty Traders and Treaty Investors. Citizens of countries with which the U.S. maintains a Treaty of Friendship, Commerce and Navigation or a Bilateral Investment Treaty are eligible for an E visa if they meet certain requirements. Treaty Traders are coming to the United States with the intent to conduct substantial trade between the U.S. and the treaty country, whereas Treaty Investors intend to develop or direct the operations of an entity in which they have invested. For both Treaty Traders and Treaty Investors, the amount of trade or investment required is not quantified by statute, but must be “substantial.”

The L visa is considered an investment visa when the intracompany transferee is coming to the U.S. to open a new branch office. The intracompany transferee must have executive or managerial experience and continue to work in an executive or managerial position. As is required for any L classification, the employee must have worked abroad for a branch, parent, affiliate, or subsidiary of the U.S. company for at least one out of the past three years. The employer is obligated to ensure the new office investment is sufficient to not only compensate the L manager/executive, but also immediately begin conducting business in the United States.

The EB-5 preference category is the last investor classification. Foreign nationals can qualify for the EB-5 preference category by investing in a new U.S. commercial enterprise that will create 10 additional full-time jobs for U.S. workers. Unlike the E visa, there is a defined minimum investment required: at least $1,000,000 or, if investing in a “targeted employment area,” at least $500,000. The EB-5 investor must also continue to be involved in the day-to-day operations of the new commercial entity. The U.S. economy greatly benefits from the investments required to obtain an E visa, certain L visas or the EB-5 preference category and the USCIS, especially during these tough economic times, should be giving expedited processing to investment visa applicants.

Columbus Immigration Attorney Discusses The Child Status Protection Act: The Class Action

bigstock-Citizenship-documents-43205116Not all issues related to the Child Status Protection Act are settled law. There remain several unanswered questions. An example is the Matter of Xiuyi WANG. Many families in Michigan and throughout the US await some positive news on a class action law suite related to CSPA. In the Matter of Xiuyi WANG, the Board of Immigration Appeals found that certain automatic conversion/retention of priority date provisions of the Child Status Protection Act (CSPA) do not apply under certain circumstances. In that case the court ruled that foreign national children who age out of eligibility for an immigrant visa as a derivative beneficiary in the fourth preference category will not retain their priority date under the CSPA when they are the beneficiary of a second preference petition later filed later by a different petitioner. Astonishingly, this decision — which punishes children for aging and only serves to divide families — has been upheld by the U.S. District Court.

Specifically, in the Matter of Wang, the foreign national’s child was only 10 years old when the original petition was filed naming her as a derivative beneficiary. However, an immigrant visa number did not become available until she was 22 years old and no longer eligible for derivative status. The father, upon receiving his green card, filed a second preference category petition on behalf of the daughter, who is now above 21 and is no longer a child, and requested the earlier priority date of the previous petition be assigned to her. The United States Citizenship and Immigration Services (USCIS) refused to apply the earlier priority date.

The decision in the Matter of Wang was appealed to the United States District Court in the Central District of California, Southern Division, but the Court granted the government’s motion for summary judgment. Encouragingly, the Court had certified a class on July 16, 2009 comprised of “[a]liens who became lawful permanent residents as primary beneficiaries of third- and fourth-preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom Defendants have not granted automatic conversion or the retention of priority dates pursuant to § 203(h)(3).” Nonetheless, on November 10, 2009, the Court held the decision in Matter of Wang was entitled to deference and, therefore, no issues of material fact existed for trial. The case has been appealed to the Ninth Circuit Court of Appeals.

Allowing decisions such as this to remain “good law” is only to enforce the separation of families and frustrate the entire purpose of the CSPA. Notably, the BIA’s decision in Matter of Wang discussed the legislative history of the CSPA and recognized that “[t]here was repeated discussion in the House, both before and after the Senate amendment, of the intention to allow for retention of child status ‘without displacing others who have been waiting patiently in other visa categories.'” The child beneficiary in Matter of Wang had done nothing but wait patiently for 12 years for an immigrant visa to become available, only to be sent to the “back of the line” due to no fault of her own. We can only hope that the Ninth Circuit Court of Appeals will uphold the underlying purpose of the CSPA, find in favor of keeping families together, and not punish innocent children for the USCIS’ processing delays and the unavoidable passage of time. Stay tuned.

H-1B Attorney update on H-1B petition approvals

bigstock-Citizenship-documents-43205116We have not noticed a change in H-1B review and approval process since the publishing of the Neufeld H1B Memo regarding H-1B visa and employer-employee relationship. We continue to submit our applications in the same fashion. We have always allocated a portion of our petitions addressing the employer employee relation form a traditional common law approach. In a case from Columbus, Ohio we have received a premium processing approval from the Vermont Processing Center in a record 24 hours. While the memo clearly shows certain flaws in USCIS legal analysis, USCIS continues to approve cases provided end client letters evidencing specialty occupation and petitioner right to control are well documented.

Columbus Ohio Immigration Attorney on the Child Status Protection Act: Children of Asylees and Refugees

bigstock-Passports-31148In many parts of the US including Columbus, Ohio and Michigan, Refugees and Asylees struggle to find a new life and to forget their troubled past. The Child Status Protection Act (CSPA) offers much needed assistance to them. As we discussed in prior blogs, the Child Status Protection Act (CSPA) prevents certain foreign national children from losing their preferential immigration benefits due to “aging out” at 21 years old. The asylum and refugee provisions of the CSPA are especially vital in helping to keep families together. Sections 3 and 4 of the CSPA provide special assistance to the unmarried children of asylees and refugees whether accompanying or following-to-join their parent. The CSPA allows the children of asylees and refugees to maintain their child status and, thus, their eligibility for derivative status even after reaching the age of 21 years old.

For the most part, so long as the child of the asylee or refugee was under the age of 21 when their parent applied for asylum or refugee status, they will be eligible for derivative benefits even after attaining the age of 21 years old. To qualify as a child included on an asylum or refugee application, the aging out child must be listed on Form I-589 or Form I-590, respectively, prior to a final determination on the application. Indeed, a parent can add a child of any age to their asylum application before it is adjudicated, and the child will be entitled to derivative benefits so long as the application was originally filed while the child was under 21 years of age.

The asylum and refugee provisions of the Child Status Protection ACT (CSPA), also apply to children whose parents did not include them on their asylum or refugee application. If the asylee or refugee did not include their child on their application, the aging out child may obtain derivative status if their parent filed Form I-730 within two years of being granted asylum or refugee status. If Form I-730 was pending at the time the CSPA was enacted, a child who aged out would still be eligible for derivative status if the I-730 petition was originally filed before the child turned 21 years old. The USCIS even considers an approved I-730 application to be pending if the U.S. Embassy or Consulate has not issued travel documents. Asylees and refugees, by definition, have experienced extremely difficult circumstances in their lifetime, but they can be encouraged by the fact that laws exist to help keep their family together.

Columbus Immigration Attorney on the Retroactive Application of the Child Status Protection Act

bigstock-Immigration-Rally-In-Washingto-7293583Many of our Family Immigration clients in Columbus, Ohio and in Michigan and elsewhere share their frustration that notwithstanding near a decade passage of the Child Status Protection ACT (CSPA), USCIS continues to struggle with its interpretation. I explained in my prior blog, The Child Status Protection Act (CSPA), enacted on August 6, 2002, contains remedies for foreign nationals claiming a “child” status who are in jeopardy of losing their immigration benefits due to aging out. Though the Child Status Protection Act (CSPA), was enacted in 2002, the United States Citizenship and Immigration Services (USCIS) were still changing its interpretation of the CSPA’s provisions until 2008. In particular, foreign nationals who had an approved immigrant visa petition prior to the CSPA’s inception, but had not filed a green card application before August 6, 2002 were initially not eligible for the CSPA’s benefits.

In guidance issued in February 2003 and August 2004, the USCIS reiterated their initial position: that the provisions of the CSPA took effect on August 6, 2002 and were not retroactive. Thus, benefits would only be available to foreign nationals who aged out on or after August 6, 2002. The only exceptions for foreign nationals who aged out prior to August 6, 2002 were for those who had a visa petition either pending on August 6, 2002 or had an approved petition with a green card application pending on August 6, 2002. Interestingly, pending for the purposes of visa petitions includes appeals or motions to reopen filed with the Board of Immigration Appeals (BIA) or the Administrative Appeals Office (AAO) on or before August 6, 2002.

The USCIS’ policy shift was not voluntary, rather mandatory in light of the BIA’s decision in In Re Rodolfo Avila-Perez in February 2007, holding that it is not mandatory for a foreign national to have an application for adjustment of status or immigrant visa pending on August 6, 2002 to be eligible for CSPA benefits. Accordingly, the USCIS revised its previous position regarding the retroactivity of the CSPA provisions. Currently, qualifying foreign nationals who aged out prior to the CSPA’s implementation can file a new green card application to take advantage of the CSPA. Additionally, foreign nationals whose green card applications were denied due to age can file motions to reopen or reconsider. It took the USCIS a long time to settle on the appropriate interpretation of the CSPA, but fortunately the correct conclusion was reached: that the benefits of the CSPA should have retroactive application to certain foreign nationals.