Category: المحامي احمد يقظان

USCIS Issues New Memorandum On L1-B Adjudications

Yesterday, USCIS issued a Memorandum relating L1-B adjudications. This is an interim Memorandum, meaning that the government is asking for comments from the public. The comment period will end on May 8, 2015 and the Memorandum will be effective on August 31, 2015. As you may recall, President Obama made this one of his priorities in his November 20, 2014 announcement.

Perhaps the best thing in the Memorandum is the clarification of the applicable burden of proof. I have handled several of these cases where the AO asked for more information than necessary. These officer often forget that immigration is a civil matter and the applicable burden of proof is “preponderance of evidence” and is not “beyond a reasonable doubt” as it is in criminal cases. This is a very important distinction since a violation of this burden is arguably a violation of a Petitioner’s due process rights.

The Memorandum tries to clarify the meaning of the terms “advanced” and “specialized” knowledge. The Memorandum also lists things that the L1-B beneficiary does not have to possess. For example, the  memorandum mentions that an L1-B beneficiary does not have to be a manager or executive, and the Petition does not have to test the US Labor market. The Memorandum also mentions that the specialized knowledge does not have to be narrowly held in the petitioning organization. Lastly, the Memorandum also mentions that eligibility for another non-immigrant classification does not bar someone from holding the L1-B classification. The Memorandum also lists some needed documentation that would help a Petitioner show that the Beneficiary is eligible for L1-B classification.

The one great thing about the Memorandum is the fact that it adds much more details regarding the issue that its predecessors. For example,  the 12/02/2002 Memorandum regarding the same issue was less that one page long. However, there ares some issues relating to the present Memorandum that should be addressed. For example, I am afraid that the list of evidence would be used by adjudicators as the all inclusive list and would not allow other evidence to be admitted. Additionally, there is always the issue of misinterpretation. For example, I had an case where the adjudicator asked for patents held by the Petitioner, when the Memorandum clearly states that knowledge does not have to be exclusive to the Petitioner.

I welcome the Memorandum because it is desperately needed. I think the problem as I see it is not a problem of Memos, but a problem of adjudicators not following the law and applying their own interpretations. What do you think?

Three Immigration Events to Track in 2015

We are all excited about the new year and the great things it will bring when it comes to immigration. We are all excited about the roll out of President Obama’s plans under his executive orders. However, three things might happen to spoil his plans, and we will discuss them here.

1. Will the Republicans pass their own plan? There is talk about a new Republican plan on immigration that should be rolled out in the first quarter of 2015. The plan is purported to have a border security component that makes border security a priority. However, there is little the Republicans can do to differ from the Senate’s plan that was passed last year, since it had enough security measures to pass the Senate with Republican support. Unfortunately, we do not know how far the plan will go when it comes to changing existing law. The last time we had a Republican Congress, we got IIRIRA, which curbed many of the protections that existed before it.

2. Will the President’s Executive Orders Be Ruled Unconstitutional? There has been one round in the sure to be a long fight to determine whether the President’s plans are constitutional. The Federal Courts have already dismissed Sheriff Arpaio’s law suit. The Republicans and the states will surely make the same arguments in their lawsuit, which will be hard to defend. The states will be unable to curb the President’s plans, since he used his constitutional powers to do what the law allows him to do.

3. What will happen with Cuba? DHS Secretary said that normalization of relations with the island nation does not change the Cuban Adjustment Act. However, normalization will mean that an undetermined number of Cuban citizens with standing removal orders could be removed from the United States as soon as normalization occurs. It is uncertain whether the new reform plan will address this problem, which might be one way for Republicans to gain favor with the Cuban community after the President normalized relations with Cuba. However, most of these Cuban citizens may also qualify under the President’s executive actions.

Please keep these three things and track them in 2015 because they are so important to immigration reform. Thank you for following me this past year. I promise that more good things will be on this blog in 2015. Happy New Year.

Don’t Hire a Non-lawyer in 2015!

There’s an Arab proverb that roughly translates to “let your baker bake your dough even if he took half of it”. I often wonder why some people hire non-lawyers to apply for their immigration benefits. There are usually two reasons: money and the tricks these notaries pay on unsuspecting immigrants that believe that they could help them.
As to the first reason,  I believe that hiring these notaries could really end up hurting you financially in the long run.  I’ve met many victims ended up paying as much as ten folds what they paid the non-lawyer to deal with their mistakes.  I once represented a very sweet couple from a former Russian republic for whom the non-attorney applied even though they had a standing removal order.  The couple had to go through the agony of fear of deportation while I worked with the government to reopen the case.  Buttom line, if they had hired a licensed attorney,  that would not have happened. 
As to the latter reason,  impersonating an officer of the court is a third degree misdemeanor in most states.  So engaging a non-lawyer to help you with your documents would be akin to helping someone commit a crime.  I know that these notaries are masters at telling you that you do not need an attorney.  At the end of the day,  attorneys have gone through the rigors of dealing with clients and had attended law school to deal with your exact situation. So why not hire someone who has your interests in their mind and have spent the time and energy to train to deal with your needs?
The best advice that anyone would give you,  is to how the right person for the job.  After all,  proverbs come from real life situations. 

Board Rules that Conditional Permanent Resident Admitted at POE Ineligible for 212(h) Waiver

The Board of Immigration Appeals ruled today that a conditional permanent resident admitted as such at a port of entry is ineligible for cancellation of removal since he was an aggravated felon. The Respondent in the case was a citizen of North Korea who was convicted of two crimes involving moral turpitude and an aggravated felony. He was admitted as a conditional resident in 1991 and was placed in removal proceedings in 2013. He conceded removability at his hearing but applied for adjustment of status along with a 212(h) waiver. The immigration judge ruled that he was ineligible for adjustment and the waiver since he was admitted to the United States and convicted of an aggravated felony. In upholding the immigration judge’s decision the Board ruled that conditional residents admitted at a port of entry is an alien admitted for permanent residence. The Board ruled that since the conviction was within 7 years of his admission, he was ineligible for cancellation of removal. Click here to read the decision.

BIA Issues Three Decisions Dealing with the Adam Walsh Act

The Board of Immigration Appeals issued three decision dealing with issues related to the Adam Walsh Act. The Adam Walsh Act prevents USCIS from approving any visa petition filed by a United States citizen if the Petitioner was convicted of a charge relating to the abuse of a minor. The Service could approve the petition if the Petitioner proves that he poses no risk to the beneficiary. The standard used for this discretionary decision is very unclear and convoluted. The decisions clarified nothing.

Unlike other immigration laws, the Adam Walsh Act does not seek to prevent an immigrant from receiving an immigration benefit but prevents a United States citizen from ever moving past a mistake he has committed. Despite the numerous arguments made by advocates to limit the law’s interpretation, the Board decided that the law was retroactive, meaning it applies to cases with convictions before its enactment. The Board also refused to delineate the standard of proof the Petitioner must meet to show that he poses “no risk” to the beneficiary, and in the third case, the Board ruled the the Petitioner bore the burden of proof in showing that his conviction is not a “specified offense against a minor”. The latter allowed the Service to use a case-by-case analysis, and permitted the Service to abdicate the long-standing categorical approach in analyzing such offenses.

As I argued before, there are several constitutional problems with the law. The Board can not rule on constitutional challenges to the laws which it applies. The task of determining the constitutionality of these laws falls on circuit and district courts around the nation. I look forward to the constitutional challenges that advocates will bring forward against this injurious law.

To read the three decision visit here.

Report Shows that Majority of Deportations are Done Through Expedited Removal Proceedings

The American Immigration Council published a report today showing that the majority of removals are being conducted through expedited removal procedures like expedited removal, reinstatement of removal, and stipulated removal. These three mechanisms, in my opinion violate basic constitutional rights including Due Process.

The three mechanisms  allow immigration officials or an immigration judge to hasten an immigrant’s removal. The first two, expedited removal and reinstatement of removal, allow an immigration officer to remove an applicant for admission at a port of entry or if found within 100 miles from the border. The procedures does not take into account the person’s contacts in the United States. The only possible recourse for the immigrant is to exhibit fear of returning to his country, after which he will be subjected to a credible fear interview. Oftentimes, the immigrant is not informed of his right to counsel or know that he had been deported.

Lastly, an immigrant could also stipulate to be removed from the United States. The report speaks about the coercive nature of the interrogation process, which raises serious Due Process concerns. During these interviews, immigration officers usually use coercive tactics to “convince” the immigrant to stipulate to be removed. These individuals are usually in detention, which raises serious issues regarding the voluntary nature of these stipulations.

The removal system is plagued with injustice and the odds are usually stacked against individuals who do not know the system and usually do not speak English.  While some might believe that these expedited removal proceedings might be the right procedures to deport people who have no right to be in the United States in the first place, they are, in my view, illegal and a slap in the face of our judicial system. America could simply do better.

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