_by Myriam Jaidi, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

From the Comedy Central Show “South Park”(Season 2, Episode 204). The scene: Chef, an adult, is speaking with 4th graders Stan, Kyle, Kenny, and Cartman:

Chef: I just want to tell you that drugs are bad.
Stan: We know, we know, that’s what everybody says.
Chef: Right, but do you know why they’re bad?
Kyle: Because they’re an addictive solution to a greater problem, causing disease of both body and mind with consequences far outweighing their supposed benefits.
Chef: And do you have any idea what that means?
Kyle: No.
Cartman: I know. Drugs are bad because if you do drugs you’re a hippy, and hippies suck.
Chef: Look children: this is all I’m gonna say about drugs. Stay away from them. There’s a time and a place for everything and it’s called college. Do you understand?
Children: Yes!

If Chef had been speaking to non-U.S.-citizens, he should have stopped at “Stay away from them,” given the draconian state of our immigration laws relating to any type of drugs, including marijuana, despite the fact that it has been decriminalized in many jurisdictions in the United States.

We learn in various contexts that drugs are bad, and we should just say no. The exchange above references some of the documented problems with drugs – their use or overuse can result in disease of both body and mind and other serious consequences. Nevertheless, many people identify with the statement Chef makes above. The assumption or joke being that many Americans will have or have had experiences with alcohol and/or drugs, such as marijuana, in college. This assumption may be good for a laugh, but for non-US citizens drugs (meaning controlled substances, for non-medical use) are not only bad, using drugs can lead to inadmissibility on various grounds including public health, criminal, and misrepresentation.

The ground of inadmissibility that comes to mind immediately is the criminal ground under INA INA 212(a)(2)(A)(II). If someone has a criminal conviction relating to a controlled substance, or even admitted to committing the crime, he or she is inadmissible and there is no waiver, although, in certain circumstances, enumerated in INA 212(h)(1), it may be possible to obtain a waiver where the crime “relates to a single offense of simple possession of 30 grams or less of marijuana.” Please note that convictions involving controlled substances (other than a single offense involving less than 30 grams of marijuana for personal use) and having been or being a drug addict or abuser are treated similarly harshly after admission into lawful permanent resident status has been granted. These are both grounds of deportability under INA 237 INA 237(a)(2)(B). This blog addresses issues prior to being admitted as a lawful permanent resident.

What if someone used drugs but was never arrested for it? For example, what if Stan, who is not a US citizen, now lives in New York and went to college in New York on an F-1 visa. In college, during his freshman year, Stan made friends with a group of people that smoked pot a couple of times a week. After freshman year, he stopped smoking pot. After he completes his studies, he is sponsored by a company for an H-1B visa and is working in New York. A few years later, he meets and falls in love with Wendy, a UScitizen. They get married and she wants to sponsor him for a green card. Stan goes to a Civil Surgeon to get the required medical exam done on Form I-693. In the course of providing his medical history, Stan tells the Civil Surgeon, without being asked, that he smoked pot twice a week during his freshman year in college. He doesn't think it is a big deal -- as Chef implied, a lot of people use marijuana in college.

The Civil Surgeon’s role is to perform a medical exam to determine whether a person who is applying for adjustment of status within the United Statesmay be inadmissible to the United States on public health grounds. (Outside the United States, a similar role is performed by a “panel physician”.) They request a medical history and conduct a physical exam to ensure that a person does not have tuberculosis, syphilis and other sexually transmitted diseases, leprosy and other communicable diseases noted in 42 CFR 34.2(b)(4) – (9). They also inquire about physical health and medications a person may be taking to ensure that any vaccines the individual might need are not contraindicated.

According to the Center for Disease Control Immigration Requirements: Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders (hereinafter“CDC TI”), drug screening is not a routine part of the medical exam. See CDC TI at p.11. However, there is a section on the Form I-693 addressing Drug Abuse/Drug Addiction (see Form I-693 at p.3). In order to complete this section, Civil Surgeons are instructed to “evaluate the applicant’s history, behavior and physical appearance when determining if drug screening should be performed.” CDC TI at p.11. If a Civil Surgeon reviews an applicant’s medical history with them and in the course of doing so sees no tell-tale signs of drug use or abuse, they may not ever inquire about recreational drug use. If they do inquire, however, and an individual lies and the truth is later discovered, the individual could potentially, based on the certification on the Form I-693, be subject to civil or criminal penalties, be found inadmissible for fraud under INA 212(a)(6)(C)(i), be at risk of having any immigration benefit derived from the medical exam revoked, and could be subject to removal from the United States.

Many Civil Surgeons do not inquire, but some do. The CDC TI for Civil Surgeons provides a table (at page 12) of indicators that drug screening might be necessary. Among the indicators provided is the following: “history of any substance abuse or dependence.” The terms “drug abuse” and “drug addiction”(aka dependence) are defined in the regulations of the Department of Health and Human Services (HHS) as follows:

Drug abuse. The non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has not necessarily resulted in physical or psychological dependence.

Drug addiction. The non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has resulted in physical or psychological dependence.

42 CFR 34.4(g) & (h). These terms are further elucidated in the CDC TI, which draws information from the DSM and states as follows:

the DSM criteria for substance dependence, either on alcohol or other psychoactive substances are characterized by compulsive long-term use of the substance despite significant substance-related physical, psychological, social, occupational, or behavioral problems. Tolerance and withdrawal are often associated with substance dependence.

Substance abuse is characterized by a pattern of recurrent substance use despite adverse consequences and impairment. To establish any substance-related diagnosis, the examining physician must document the pattern of use and behavioral, physical, and psychological effects associated with the use or cessation of use of that substance.

CDC TI at p.6. In our hypothetical, the Civil Surgeon conducting the medical exam for Stan might see Stan’s use of marijuana throughout his freshman year in college as drug abuse, drug addiction, or neither. If she determines that Stan’s behavior actually does not fall within either category, she will indicate “No Class A or B Substance (Drug) Abuse/Addiction” on the I-693.

If the Civil Surgeon determines that Stan’s circumstances do indicate he is either an abuser or addict, there are various options the Civil Surgeon might pursue. She might collect evidence from Stan to determine whether Stan is in“full remission.” “Full remission” is another term taken from the DSM and it is defined as a period of at least 12 months during which no substance use has occurred. CDC TI at p.14. If she determines that Stan was either a drug abuser or drug addict but has been through full remission, she could classify Stan as Class B and mark the appropriate box on the I-693. A Class B finding does not make a person inadmissible under the public health grounds but could trigger an inquiry as to whether Stan’s condition might make him inadmissible under INA 212(a)(4) as likely to become a public charge. Health is one of the factors that statute requires adjudicators to take into consideration in determining whether someone might be inadmissible as a public charge. Thus USCIS would look into whether Stan’s past problems make it likely that Stan might become a public charge. According to the Foreign Affairs Manual (the Adjudicator’s Field Manual does not currently contain guidance on the issue of public charge, as the section for that topic is “reserved”),someone is likely to become a “public charge” if they are likely to become primarily dependent on the U.S. Government for subsistence either through cash assistance for income maintenance or institutionalization for long-term care at U.S. Government expense. See 9 FAM 40.41 N.2.

What else might the Civil Surgeon do? If the Civil Surgeon determines that Stan has a Class A issue, Stan will be inadmissible on public health grounds unless and until a finding of remission is made that can move him to Class B. If the Civil Surgeon decides she wants more information before reaching a diagnosis, she could also defer her diagnosis to a later date. If the Civil Surgeon decides to defer diagnosis, she would provide Stan with instructions on what steps he would need to take, what information he would need to provide, and the time frame for providing the information to her. If the Civil Surgeon feels that she will not be able to reach a conclusion regarding Stan’s condition, she can also refer Stan to a specialist consultant for further analysis on the drug issue. The specialist consultant’s findings would then be reflected on the I-693.

Could the information Stan provided to the Civil Surgeon about his past drug use trigger any other issues for him with regard to inadmissibility? Depending on exactly what Stan said and what the Civil Surgeon explained in response about the illegality of Stan’s freshman year marijuana habit, Stan might be inadmissible under INA 212(a)(2)(A)(i)(II) if he is found to have admitted “committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).”

How could this happen? How could a visit to the doctor turn into a trigger of a criminal ground of inadmissibility? It could happen if certain criteria established by the Board of Immigration Appeals (BIA) are met (or even if they are not and the person lives in the Ninth Circuit, as noted below). The BIA set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). These requirements have been strictly followed in published BIA cases, and only in the Ninth Circuit have some of the Matter of K- factors been effectively ignored, arguably without a sufficient justification. See Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002).

In Stan’s case, whether or not his discussion with the Civil Surgeon would make him inadmissible under this section of the law would depend on exactly what he said he did, what the elements of the crime in that specific jurisdiction are, whether the Civil Surgeon provided him with the definition and essential elements of the crime in understandable terms, and whether his admission was voluntary.

Does the analysis change if the Civil Surgeon never asked about drug use? If the Civil Surgeon had not asked Stan and Stan had not offered the information there should be no issue. The Civil Surgeon made a determination based on her medical knowledge and observation of Stan that there was no reason to pursue any drug testing or line of questioning. Stan has not technically misrepresented anything because he was never asked about drug use and therefore did not misrepresent his past.

However, there is a question on the adjustment of status application (Form I-485) that Stan may have trouble answering: “Have you knowingly committed any crime of moral turpitude or drug related offense for which you have not been arrested?” The question on the Form I-485 (and the question regarding inadmissibility on the DS-260, for consular processing of an immigration visa, which is presented differently but raises the same issues) contains many legal terms Stan may not understand. In addition, because the question is on a form with which there can be no discussion and no interaction, clearly the requirements for an admission under Matter of K have not been satisfied. Furthermore, it would be very difficult for applicants to know that they have committed a crime for which they have not been charged or arrested, because one would have to figure out the applicable law, the elements of the crime or crimes, and whether all the elements of any crime have been satisfied. We have a complex penal law system in the United States. It requires the charging authority to determine the applicable law in each particular case and then demonstrate beyond a reasonable doubt that all the elements of that law were satisfied in order for a person to be convicted. This cannot happen on a form.

If Stan had ever been arrested for possession, he could only be convicted if the prosecution established all of the elements of the crime beyond a reasonable doubt, including proving that the substance was in fact marijuana by doing a lab test. For all Stan knows, he may have been smoking oregano during his freshman year. Then there is the question of whether Stan’s use of marijuana is equivalent to“possession” of marijuana in a manner that, under New York law, is prohibited. All of these issues must be pondered before the question can be answered.

The outcome might be different depending on the circumstances – if Stan had mentioned it to the Civil Surgeon, if the Civil Surgeon had pursued the line of questioning, the answer might be different. If Stan had gone to rehab for an addiction issue and his drug use had been confirmed, the result of the analysis might be different, impacting the appropriate answer to the question on Form I-485. The question can only be answered after an in-depth analysis on a case-by-case basis.

Even in the scenarios discussed here– where Stan had revealed his drug use to the Civil Surgeon or to the rehab program – and a determination was made that he was not inadmissible under the public health ground, can it be argued that he should not then face a sort of“double jeopardy” by being implicated under the criminal ground of inadmissibility? Disclosure was made and Stan legitimately cleared the issue of inadmissibility on a public health ground. It seems reasonable that clearing the public health ground should not leave an individual subject to the criminal ground. If Congress wanted one potentially subject to the public health ground of inadmissibility to remain inadmissible under the criminal ground, then Congress would not have provided a way to overcome the public health ground of inadmissibility. Congress would have collapsed drug use or abuse under one ground of inadmissibility. How to answer the question on the forms and the issue of the interplay between the various grounds of inadmissibility are issues that could be the focus of another article, and we raise the issue here to provide a glimpse of its complexity.

The upshot here is that the humorous, somewhat cavalier attitude about drugs displayed in U.S. pop culture by no means reflects the reality faced by those present in the United States who are not citizens. For non-citizens the “Just Say No” slogan developed in the 1980s has greater meaning given the stunning consequences non-citizens face if they do engage in use of controlled substances.

_Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Ever since I first sat in a Los Angeles movie theatre watching Grand Canyon, Lawrence Kasdan's 1991 film, the only movie, to my knowledge, whose protagonist is an immigration lawyer, I knew I would mouth to myself, repeatedly over the ensuing years, one of its memorable lines.  The main character, Mac (played by Kevin Kline), practices a rather pathetic and half-hearted version of deportation defense in the City of Angels. Consumed by existential angst and a career going nowhere, Mac sits in his law office and screams to his secretary and to himself:  "I hate [bleep]ing immigration law!" Don't get me wrong, after 30+ years as an immigration lawyer, I remain passionate about immigration and fulfilled in my career, mostly far closer to Emma Lazarus than to Mac. When the day's mail arrives, my heart still goes aflutter as official government envelopes are opened to reveal approval notices  -- proxies for one client's or another's American Dream about to take wing. 

This enjoyable ritual, alas, is increasingly disrupted by jarring correspondence from U.S. Citizenship and Immigration Services (USCIS) -- the dreaded Request for Additional Evidence (RFE). To be sure, a righteous RFE -- and some assuredly are -- is a good thing, offering a second chance to clarify what may have been less than clear in the initial submission. 

A roguish, stupid or intellectually dishonest RFE, however, will cause me to erupt into silent, internal conniptions (I can't actually shout expletives in my law firm because that would likely create a hostile workplace and trigger multiple unpleasantries under state and federal law). Living in California, the land of holistic therapies, I know that anger swallowed often morphs into depression.  To avoid that dreadful fate, I pen this post as a way to release outrage, stay healthy, and light a candle on RFE avoidance and response.

1. Know the law and the non-law. While any immigration lawyer worth her salt understands the legal requirements to establish eligibility for the requested visa benefit, and knows how to muster supporting evidence, the RFE avoidant practitioner must also be familiar with the latest patterns among USCIS adjudicators in asking for legally irrelevant evidence. For example, no matter that the L-1 (intracompany transferee) visa is not one requiring a cash investment in a U.S. entity or a purchase of stock, expect that an adjudicator will request proof of funds transferred from abroad to buy a controlling interest in the petitioning business.  Similarly, although the working owner of a U.S. limited liability company seeking an H-1B (specialty occupation) visa to run the business would almost never appoint a board of directors (since the LLC envisions flexible and speedy management decisions), make sure that your client goes to the expense and burden of appointing a board so that an "employer-employee" relationship of owner to LLC can be proven.  Unfortunately, there is no treatise or hornbook that can help the hapless lawyer find out trends in RFE demands because these documents, though templated, change appearance as readily as chameleons. The only way to discern RFE trends (other than receiving them in bulk) is to network and share notes with other immigration lawyers.
2. Manage client expectations.  RFEs, if unanticipated, often can destroy relationships with existing and new clients.  Good immigration lawyers inform the client of the possibility at the start of each engagement and each matter that USCIS will issue an RFE .  The lawyer's scripted conversation with the client goes like this (with quote in italics): "There is a possibility -- no matter how well we prepare our filing -- that USCIS will ask for more evidence.  You, client, have a business decision to make, and within reason, I will abide by your instructions.  Either, we anticipate every imaginable item of evidence (based on evolving patterns of RFE requests) and adopt a kitchen-sink strategy in submitting our proof, which is the strategy I recommend, or, you can authorize me to request of you and submit to USCIS only the types of evidence reasonably necessary to establish legal eligibility for the immigration benefit you seek.  We may or may not receive an RFE under either strategy.  The government (acting godlike, but without the grace) behaves in mysterious ways.  Your best chance of avoiding an RFE is by presenting as much evidence as possible."  
3. Make it easy for the adjudicator to "Get to Yes." Having gathered all possible evidence, the attorney should provide proofs in a logical and organized way.  The attorney's covering letter (which the officer may or may not read) should be a roadmap to eligibility.  It should refer to an index of clearly-tabbed and logically-organized documents, refer to facts evidenced in the record or attested to by the client, describe in summary form what each item of evidence purports to establish and why each is relevant.  The attorney's letter should also cite the law, regulation, policy memorandum, guidance letter, legislative history, adjudicator's field manual, bar association liaison minutes or other source of legal authority that establishes eligibility under the proven facts.  Here is a simple rule for staying out of legal trouble and RFE hell:  Clients and third parties attest to the facts; lawyers refer to the facts elsewhere established in the submission, describe why each factoid of proof is relevant under law, and demonstrate why "yes" is the legally proper answer.
4. Use word-pictures, graphics, charts and hyperlinks. Boring, sloppy, careless or poorly proofed writing pains and perturbs the reader.  Vivid, logical, grammatically correct, stylish and persuasive writing pleases the reader.  Text alone, however eloquently presented, may fail to make the desired impact.  Eligibility under law is often more readily established if graphical images and links to web-based materials support the messaging of the text-based submission.  The most likely way to enliven interest and avoid an RFE is to awaken an otherwise indifferent adjudicator, and provide compelling overt and subliminal reasons to approve the case.
5. Humanize the case through honest storytelling. Contrary to some immigration lawyers' perceptions, adjudicators are human.  While examiners may be more focused on behaviors that reward them personally such as reporting suspected fraud, way down deep, they may just be moved to identify with the human condition.  If the adjudicator can be encouraged to see your client as a deserving human being, rather than just another file to be acted on before the end of the work day, maybe an RFE will not be sent, but an approval notice instead.  Talk in the submission about the consequences of a "yes" or "no" decision to your client and to the country --whether that client is a company, a person, a family, a university or a religious community.  Even adjudicators prefer to hold up their heads by doing the right and good thing rather than just adding another notch on their life-destroying revolver.
6. Garner a reputation for zealous representation under law.  Pushovers get pushed over. If an adjudicator knows you as a lawyer who will stand up for your client and wield the tools of the law skillfully to achieve a just outcome, there is less of a likelihood that a thoughtless or unjust RFE will come your way.  Don't just give up, if the RFE or a denial is issued.  Press on.

Notwithstanding your scrupulous adherence to the Boy Scout Code (Be Prepared), the postal worker may nonetheless deliver an RFE.  After the inevitable silent cursing is over, the immigration practitioner and clients will pursue a course of action that may exhibit one or more of the following stratagems:

1. Resist the temptation to respond sarcastically. Displays of temper or efforts at ridicule in response to RFEs meet with success as rarely as similar behaviors prevail with TSA officers. 
2. Distinguish boilerplate from customize text. Every RFE contains a mix of both.  Consider the template text carefully (perhaps there's a grain of significance there), but focus on the specially drafted text that will likely reveal how carefully the adjudicator considered the evidence presented in the case.  If the tailored portion of the RFE mischaracterized the factual record or failed to notice key evidence already presented, then plan on diplomatically noting these missteps in the response. 
3. Note whether the RFE contains assertions about legal requirements.  If such claims are unsupported by citation to legal authority and misstate the law, then quote Kazarian v. U.S. Citizenship and Immigration Services, a 9th Circuit case which in essence rebukes USCIS for making stuff up.  If the assertion differs from existing USCIS policy, point out the difference and cite Judulang v. Holder, a unanimous Supreme Court case declined to follow an immigration agency's position because the agency (in that case, the Board of Immigration Appeals) "has repeatedly vacillated in its method for applying" the law's requirements.
4. Respond fully with fresh evidence.  While re-arguing the significance of evidence originally submitted but treated as insufficient may occasionally succeed, the better approach is to rebut the interim conclusions suggested in the RFE with relevant and responsive evidence.  The evidence may involve proof of company or industry practices, scientific accomplishments or contributions to the economic or other national interests of the United States.  Whatever the issue of concern, take a fresh look at the best way to proffer the rebuttal evidence.  Perhaps it should come from one or more outside experts of unquestioned accomplishment and repute, a forgotten immigration policy memo or guidance letter, the dusty legislative history of a law long ago enacted, the supplemental information in a proposed or final regulation, or a government agency outside the immigration world.  Whatever the source, protect the administrative record with compelling evidence.
5. Enlist government support or generate media scrutiny where appropriate. Sometimes RFEs are so off base that -- in addition to responding fully -- the practitioner may wish to enlist others in government with relevant authority.  Perhaps the USCIS Ombudsman, a Headquarters official or a member of Congress may be interested in learning of and resolving anomalies in service delivery or clearly wayward RFEs. Alternatively, if the client is willing, resort to media focus (either traditional journalists or others proficient in social media) may be justified.  These unusual approaches may be premature (for an approval notice may yet be forthcoming) or better pursued if a denial is issued. 

Sometimes, the distance between an RFE and an approval notice are as wide as the Grand Canyon.  Thus, immigration stakeholders (in the words of a Washington Post review of the eponymously titled film) should "consider the ever-widening chasms that divide us, [and] the shifting demographic fault lines that have set society quaking like the needle on Richter's scale."  By employing the suggestions in this article, however, perhaps the distance will shrink and our clients' American Dreams will yet be fulfilled.
_

_by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

Many cases involving complex interpretations of the Child Status Protection Act (CSPA) occur while the applicant is applying for an immigrant visa at an overseas consular post. The CSPA protects a child who may turn 21 or more from “aging out,” and thus being eligible for permanent residence as a derivative, when his or her parent is issued permanent residence.  Often times, while there is room for interpretations under the CSPA, the consular officer may take a restrictive view of a CSPA provision and refuse the visa. There is no appeal process to review a consular officer’s decision at an overseas post, and the refusal may seem to be the end of the road and separation from the “aged out” child from the parent. Fortunately, despite the absence of an appeal process, one can seek an advisory opinion on a purely legal issue with the State Department’s Visa Office in Washington DC via legalnet@state.gov, and a denial under the CSPA mostly involves a legal issue rather than a factual issue. By contrast, the denial of a tourist visa application is almost always fact based, and under such circumstances, it may not be possible to seek an advisory opinion from the Visa Office.

This author has had success in overturning a consular official’s denial on at least two occasions in the past. On both these occasions, the State Department’s Visa Office agreed that the 45 days provided in section 421(2) of the USA Patriot Act can be subtracted from the age of a child if the age subtraction formula under the CSPA did not bring down the age of the child under 21 years. In other words, the child can use the benefit of both the Patriot Act and the CSPA to lower the age of a child below 21 years. Although this author had previously advocated that there was nothing in the CSPA preventing the use of the 45 days from the Patriot Act in addition to the age subtraction formula provided in  the CSPA, this is now no longer an issue as it has been clearly acknowledged in 9 FAM 42.42 N12.4(e.) and 9 FAM 42.42 N12.8(b.).

Our recent success, which we report here for the benefit of others, was regarding the interpretation of “sought to acquire the status of permanent residency” within one year of visa availability. At issue is whether the payment of the visa processing fees with the National Visa Center within the one year period constituted “sought to acquire” permanent residency within the one year period. The actual application for the immigrant visa, DS 230 Part I or II, had not been filed within one year. The applicant was unrepresented at that time and was not aware of the precise requirement to apply for permanent residence within one year of visa availability.

As a background,  INA §203(h), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21, the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability.

The CSPA thus artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. One of the requirements, however, is for the child to seek permanent residency within one year of visa availability. Often times, a CSPA protected child falls through the cracks by failing to meet the prevailing rigid filing requirements within the one-year deadline.

Both the Department of Home Security (DHS) and the Department of State (DOS) have interpreted the phrase “sought to acquire” narrowly, although unpublished decisions of the Board of Immigration Appeals have taken a broader view. DHS limits this phrase to filing an I-485 application for adjustment of status. See “Revised Guidance for CSPA” (April 30, 2008).  The DOS too has interpreted “sought to acquire” narrowly and indicated that in consular processing cases, the date that a child seeks to acquire LPR status is the date Form DS 230, Part I, is submitted by the child, or by the child’s parent on the child’s behalf to the National Visa Center (NVC). See “Child Status Protection Act: ALDAC 2” (January 17, 2003), See “Child Status Protection Act: ALDAC 2” (January 17, 2003). If the principal beneficiary parent adjusts status in the US, and the child will be applying for the visa overseas, the DOS requires the principal to file Form I-824 to initiate the child’s follow-to-join application. The DOS has also indicated that since Form I-824 is not the only way to initiate the process, posts may seek advisory opinions in cases in which some other “concrete” step has been taken.

The US consular post we were dealing with insisted that the applicant did not seek to acquire permanent residence within one year because the applicant only paid the visa processing fees with the National Visa Center, but did not file the DS 230, Part 1, within one year of visa availability. The payment of the visa processing fee was not sufficient to constitute “sought to acquire” permanent residence within the one year time frame.

Upon receiving official confirmation of the refusal at the US consular post, we sought an advisory opinion from the Visa Office through legalnet@state.gov. Although we acknowledge that they are not binding on the State Department, we pointed to recent unpublished decisions of the Board of Immigration Appeals (BIA), which have interpreted the “sought to acquire” term more broadly, that should still be persuasive. For example, In In re Murillo, 2010 WL 5888675 (BIA Oct. 6, 2010) the BIA reaffirmed its broadened “sought to acquire” to include substantial steps towards the filing of the relevant application, although these steps may fall short of an actual filing of an application. In this case, the applicant claiming protection under the CSPA hired an attorney to prepare an I-485 adjustment application within the one year time frame, but filed it within a reasonable time thereafter. This decision follows closely on the heels of other unpublished Board decisions that have applied the same “sought to acquire” standard. See In re Kim, 2004 WL 3187209 (BIA Dec. 20, 2004), (the child beneficiary “sought to acquire” LPR status within one year of visa approval because her parents hired an attorney to start preparing the adjustment application within the one-year period); In re Castillo-Bonilla, 2008 WL 4146759 (BIA Aug 20, 2008) (the respondent “sought to acquire” LPR within the one-year period when, during this time, he informed both the Immigration Judge and the Board that he wished to file an adjustment application, even though the application was not actually filed within one year).

It is in the same spirit as the unpublished BIA decisions, and consistent with INA §203(h)(1)(A),   we requested that the Visa Office advise the Consul to consider the fact that the filing fee paid within the one year time frame constituted a very concrete step towards seeking permanent residency. Indeed, payment of the fees constituted a much more credible step  towards seeking permanent residency than making an informal request to the NVC or contacting an attorney, which are the facts supporting the aforementioned BIA decisions.  We also pointed out to Visa Office, as we did with the consulate unsuccessfully, that the Foreign Affairs Manual (FAM) at 9 FAM 42.42 N12.9 recognizes the complexity of the CSPA, and advises that a Consul may seek an advisory opinion in the following instance:

If the officer encounters a case involving a derivative following to join a legally admitted immigrant, or adjusted principal, who has not filed Form I-824, Application for Action on an Approved Application of Petition, on the derivative’s behalf within the required time frame, but the consular officer determined that the derivative has taken some other concrete step to obtain LPR status within the required one year time frame.

We therefore asked that the Visa Office provide such an advisory opinion under the authority laid out in the FAM, and advise the consular officer that other concrete steps taken to obtain LPR status, such as the payment of immigrant visa fees that occurred here, may be considered.

In less than two weeks from seeking the advisory opinion just prior to the New Year (2012), we received the following communication from the Visa Office:

Thank you for your inquiry to LegalNet.  Since the derivative applicants submitted their IV fee within one year of visa availability, the Consular office will consider CSPA's sought to acquire requirement satisfied.  The visa unit in [redacted] will contact the applicants to resume processing.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Many thoughts rushed through my mind as I read the heartening headline to a press release issued January 19 by the American Immigration Council ("U.S. Citizenship and Immigration Services Takes Steps to Improve Noncitizens’ Access to Legal Counsel"). 

What did USCIS do to improve access to lawyers?  Did it instruct the agency's Fraud Detection and National Security Directorate that no site visits could be conducted without prior notice to the parties' attorneys of record?  Did it decide that FDNS could not interrogate employers and foreign workers unless their counsel were present?  Did the agency instruct USCIS personnel stationed abroad at American embassies and consulates that lawyers must be allowed to accompany clients into the interrogation rooms?

Swept up by curiosity, I skipped the press release and clicked on the hyperlink to the USCIS interim policy guidance pronouncing in red ink: "This memo is in effect until further notice." As I read through the guidance, disappointment set in and two thoughts entered my mind: 

1. The American Immigration Council (AIC) must have come down with a mild case of Stockholm Syndrome.  Apparently the Council had become so captivated by USCIS that this highly regarded nonprofit seems to have mistaken "a lack of abuse . . .  for an act of kindness."
2. USCIS has assumed the role of Senator Daniel Inouye during the Iran-Contra hearings when attorney Brendan Sullivan famously replied to the senator's complaints about the lawyer's interjections,  "Well, sir, I'm not a potted plant. I'm here as the lawyer. That's my job."

The AIC's misleading headline notwithstanding, the "new" USCIS policy guidance does not really break new ground in its dealings with lawyers.  While the policy -- to be sure -- quite laudably clarifies and limits the roles of non-lawyer representatives and attorneys admitted in foreign countries, and makes sure that notices are sent to both the attorney and the client, the interim guidance fails to "improve" clients' access to members of the bar licensed in any of the 50 states. Indeed, in some respects, it makes matters worse.

The prior policy, reflected in the Adjudicators Field Manual (AFM), provided: 

Chapter 12 Attorneys and Other Representatives.

12.1     [Reserved]
12.2     [Reserved]
12.3     [Reserved]
12.4     [Reserved]
12.5     [Reserved] . . .

15.8 Role of Attorney or Representative in the Interview Process. Frequently an attorney will be present to represent a subject. The following rules should be followed when the person being interviewed is accompanied by legal counsel: 

• Interviewing officers should verify that a properly executed Notice of Entry of Appearance as Attorney or Representative (Form G-28) is part of the record.
• The attorney’s role at an interview is to ensure that the subject's legal rights are protected. An attorney may advise his client(s) on points of law but he/she cannot respond to questions the interviewing officer has directed to the subject. . . .
• Officers should not engage in personal conversations with attorneys during the course of an interview. (Bolding added.)

The interim policy guidance substituted the foregoing with this new instruction:

The role of the representative at an interview is to ensure that the rights of the individuals he or she represents are protected. . .

Any individual appearing in a representative capacity may not respond to questions the interviewing officer has directed to the applicant, petitioner, or witness, except to ask clarifying questions.

Officers should not engage in personal conversations or arguments with attorneys or other representatives during the course of an interview.

An applicant or the applicant’s attorney or representative should be permitted to present documents or other evidence that may help to clarify an issue of concern to the interviewer. When possible, such evidence should be submitted and reviewed before the interview, and when relevant, should be added to the applicant’s file. . . .

The attorney or representative may raise an objection on an inappropriate line of questioning and, as a last resort, may request supervisory review without terminating the interview. . . .(Bolding added.)

Note that under the former AFM provision a lawyer "may advise his client(s) on points of law".  This express statement of the lawyer's role is inexplicably omitted from the new guidance.  Now a lawyer may merely present written evidence,"ask clarifying questions," and "raise an objection on an inappropriate line of questioning."  

The new guidance, in my view, offers a powdered-wig view of law and improperly circumscribes the conduct of lawyers.  Fortunately, however, the real-world interactions between USCIS examiners and immigration attorneys have not been quite so constrained.  Experienced examiners know that a lawyer can help lead to a just outcome in many an immigration case, for example:

• when helping to explain why a complex corporate structure involving multiple tiers of entities overseas and in the U.S. qualifies for EB1-3 Multinational Executive or Manager immigrant visa classification;
• when showing in a family-based immigration case that a divorce would be recognized under foreign law such as (heaven-forbid) Sharia law;
• when demonstrating that an EB-5 immigrant investor satisfies the requirement that he or she be engaged in the direct management of the enterprise merely by serving in the role of limited partner under 8 CFR § 204.6(j)(5)(iii).

The new USCIS guidance urges examiners to "remember that an adjudicator is duty-bound to develop the facts, favorable as well as unfavorable."  I maintain that an adjudicator is equally duty-bound to apply the law to the facts, and that a lawyer should be expressly allowed under revised policy guidance to play a role in helping the examiner fulfill this duty.

The USCIS should also expand its guidance by taking into account the suggestion of the Alliance of Business Immigration Lawyers in a white paper presented to the agency:

All Interested Parties Must be Allowed a Right of Meaningful Participation in Requests for Immigration Benefits and in Administrative Appeals.

Under current law and regulations, many parties with a tangible legal interest in the outcome of an immigration-benefits request have no right to make an appearance in person or through legal counsel before USCIS.

As immigration law has evolved, legislation and regulations have increased the actual and potential conflicts of interests. As a result, situations increasingly arise where a variety of individuals and entities have distinct legal interests to protect in an immigration matter. These parties in interest can include, among others:

• beneficiaries of an I-129 or an I-140 petition (who currently cannot get a copy of the petition to show that they were in compliance of the law, to qualify under the 245(i) grandfathering provisions, or to port to an approved Employment based petition);
• Regional Centers in EB-5 immigrant investor petitions, which cannot enter appearances to demonstrate that their investments qualify under the initial EB-5 determination or the removal of conditions phase, even though an RFE might challenge the Regional Center’s investment or its job-creation calculation;
• the corporate employer in the success of its foreign workers’ I-485 adjustment of status cases or the workers’ family members’ applications for extension or change of status, as the employer may be injured by loss of the employee’s services; and
• the guardian of a child’s interest or an estranged spouse in a derivate employment-based immigration matter involving the principal applicant.

The G-28 — indeed, the USCIS’s regulations and the [Immigration and Nationality Act] — should be modified to recognize and allow separate legal representation of each of the parties with legitimate legal interests to protect. Failure to do so prevents USCIS from getting all the facts and considering all the legal issues raised in immigration matters. That USCIS’s current technology infrastructure lacks the capacity to provide notices, decisions and correspondence to multiple parties in interest and their respective attorneys is no reason to deny procedural and substantive due process.

As a starting point toward ensuring "meaningful participation in requests for immigration benefits," the USCIS should proclaim that lawyers are not potted plants to be carried into interview rooms by their clients.

Rather, the agency in revised guidance should affirm that immigration lawyers, as officers of the court, with a duty of integrity and honesty in USCIS proceedings, are essential participants in assuring that the rule of law is observed and justice done whenever petitioners and applicants request immigration benefits.
_

_Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The historian said to the venture capitalist, "Let's drop the pious baloney," as each sought the highest office in the land. No, this post is not the set-up to a joke, except perhaps a nod to the risible circular firing squad that the GOP presidential candidates have formed.  And it's not about a sliced and packaged meat sausage, more accurately termed "bologna," a carnal creation of indeterminate provenance defined by federal law.  Nor is it about "holy baloney," a line from Haunted Honeymoon, a long-forgotten 1986 film.

Rather, the reverential  "baloney" of which I blog is that unhealthful mixture concocted behind closed doors in legislative and administrative abatoirs, the one that comes to mind with the unverified quote attributed to Bismarck ("If you like laws and sausages, you should never watch either one being made").

In particular, this post is about the multiple pages of sanctimonious hogwash (summarized here), served up last week by the Homeland Security Department's Office of Inspector General ("The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers"). This is apparently the same report as the draft version selectively excerpted for sensational effect by The Daily, critiqued last week on this blog ("Power-Mad Career Immigration Bureaucrats Cry Wolf, Spook DHS Leaders"). 

In essence, the IG reports that:

• "Immigration law is complex, and USCIS administers benefits of great value."
• "Benefit fraud detection is challenging and has always created difficulties for federal agencies. . . . Threats to the immigration benefit system have not abated. In the 2012 DHS Appropriations Bill, the House of Representatives described recent attempted terrorist attacks on the United States as 'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes.'"
• Immigration adjudicators, now dubbed "immigration service officers" (ISOs), and immigration fraud detection officers (IOs) don't have sufficient opportunity to exchange views and work together.  They should rub elbows more often, and ISOs need more fraud-detection training.
• Half of the annual performance evaluation of ISOs is based on the adjudicator's demonstrated ability to detect and report suspected immigration fraud and national-security threats (the other half is based on the quality of adjudications).  Still, pressure (whether self-imposed or from USCIS) to produce decisions in volume persists and adversely affects fraud detection and adjudication quality.
• USCIS guidance on when to request additional evidence is confusing.
• Some ISOs perceive that USCIS supervisors and managers interfere with or overrule their decisions or reassign cases to more approving adjudicators.
• There must be validity to these ISO concerns because the USCIS Administrative Appeals Office (AAO) "frequently supports the ISO's decision on appeal," as the AAO did in a case involving a former USCIS Chief Counsel who intervened on an O-1 extraordinary-ability-alien petition submitted by the University of Arizona. 
• The IG is concerned "with those cases where [Office of USCIS Chief Counsel (OCC)] leaders may create pressure on the adjudications process so that improper approvals are or could be made." Thus, the IG believes that "[s]ome limitation on OCC’s ability to affect the adjudications process is necessary."
• The IG also worries that outside immigration lawyers may improperly influence USCIS management to pressure ISOs into approving undeserving cases or those where fraud is suspected. "ISOs and managers in some USCIS offices said that efforts to undercut some denial decisions waste USCIS resources and send an implicit message to approve petitions and eliminate outside complaints. We were informed that special treatment remains prevalent. . . . An ISO said that the American Immigration Lawyers Association 'owns' USCIS. USCIS is aware of this perception . . ." 
• "USCIS has yet to find an effective balance between its interaction with the public, especially immigration attorneys, and the need to protect the integrity of the adjudications process. This is a dilemma, because many people have an interest in USCIS decisions, and public comment is vital to the regulatory process. USCIS should strive to recognize the differences between legitimate public opinions about its processes and requests to change individual case decisions. Those who gain a special review of their case essentially receive a second adjudication without having to file an appeal."
• The current standard of proof to establish immigration-benefits eligibility -- a preponderance of the evidence -- does not sufficiently achieve the DHS mission of preventing fraud. "To further protect the immigration system, Congress may wish to raise the standard of proof for some or all USCIS benefit issuance decisions. . . . A relatively low standard of proof does not account for all societal interests involved in the issuance of immigration benefits. "  

Just like most baloney, the IG's report is encased in a superficial shell, a shiny plastic wrap that presents its contents in the most favorable light. To understand the redolent bolognese features of the IG's report, however, readers should first recall key components from the tool kit for spotting falsehood offered by the late Carl Sagan in "The Fine Art of Baloney Detection":

• Wherever possible there must be independent confirmation of the facts
• Encourage substantive debate on the evidence by knowledgeable proponents of all points of view.
• Arguments from authority carry little weight.
• Spin more than one hypothesis - don't simply run with the first idea that caught your fancy.
• Try not to get overly attached to a hypothesis just because it's yours.
• Quantify, wherever possible.

The IG report fails on all of Sagan's points. It begins with a flawed premise, namely, that Congress (other than merely the instigator of the report, Sen. Charles Grassley) is very worried about lapses at USCIS in detecting fraud.  Rather the IG falsely premises the supposed Congressional concern about anti-fraud failings within USCIS by citing to a House report that referred solely to failures at U.S. consular posts and embassies abroad.  Here is the full quote from House Report 112-091 pp. 50-51 cited by the IG in referring to "'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes'":

The Committee provides $32,489,000 for the ICE Visa Security Program, an increase of $3,000,000 above the amount requested. This program places ICE investigators overseas to review visa applications from high-risk countries and populations and to uncover ties to extremist or criminal groups. Recent attempted terrorist attacks on the United States have highlighted the ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes. The Committee believes that expanding the program to additional countries will reduce fraud and security risks in the issuance of visas and thereby reduce terrorist travel to the United States and international criminal activity. The Committee directs ICE to provide a classified briefing no later than November 1, 2011, on how it will utilize these additional funds to expand the program. (Bolding added.)

Clearly, the House was worried about the Underwear Bomber and other applicants abroad seeking U.S. visas, and the IG has been caught with its pants down.

The IG also erred when it extrapolated from a very small sample of USCIS employees 147 managers and staff, and received 256 responses to an online survey.  As AILA President Eleanor Pelta has noted:

[This is a] total of 403 employees out of an 18,000 person workforce, or about 2 percent. Of that two percent, 63 individuals expressed a concern about pressure to approve cases. That is fewer than 25% of the individuals who responded to the online survey, and .03% of the total population of individuals who process applications for benefits for USCIS. I’m not a statistics expert, of course, but to my untrained eye this just doesn’t seem to be a valid sample size from which one could draw any useful conclusions whatsoever. To paraphrase something my mother might say, “From this you can make a report?”

Aside from problems with the small sample size, the survey questionnaire was drafted in a manner that made it impossible to draw meaningful conclusions.  It poses compound questions that conflate legal ineligibility for an immigration benefit with concerns over suspected fraud:

Have you personally ever been asked by management or a supervisor to ignore established policy or pressured to approve applications for benefits that should have been denied based on the Adjudicator Field Manual, other USCIS policy documents, or fraud/ineligibility concerns? (Bolding added.)

The IG readily acknowledged that inferences drawn from its findings may be unjustified:

[The] testimonial evidence that our interviewees provided may not be views shared by other employees. Quotations from our interviews and survey responses reflect the views and personal experiences of individuals, not necessarily the experience of most ISOs across the United States. . . . General employee concerns about the impact of production pressure on the quality of an ISO’s decisions do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats. No ISOs presented us with cases where benefits were granted to those who pose terrorist or national security threats to the United States.

Although the IG report was limited to internal sources, investigators apparently did not interview anyone at the USCIS Office of the Ombudsman, the DHS unit "created by Congress in the Homeland Security Act of 2002 to help individuals and employers who need to resolve a problem with [USCIS] and to make recommendations to fix systemic problems and improve the quality of services provided by USCIS (although the IG snagged data from various Ombudsman's reports).

Also absent from the IG report is any recognition that the benefits made available by Congress  to eligible petitioners and applicants under the legal immigration system provide innumerable opportunities of tremendous value to America. The IG also seems oblivious to the harm that an adjudication system rewarded by a 50% focus on fraud will cause, having forgotten the wisdom of Abraham Maslow ("If the only tool you have is a hammer, you tend to see every problem as a nail.")

In addition, the IG assumes without investigation or evidence that ISOs know the immigration law (even though few are lawyers), that the AAO knows the immigration law (even though not all are lawyers), that the training provided to ISOs on substantive immigration law is adequate, or that outside lawyers and other stakeholders who bring problems to the attention of USCIS management are improperly pressuring ISOs to reverse their decisions.  It may be that these efforts are nothing more than quality assurance opportunities, or teachable moments. 

To its credit, the leadership at USCIS challenged the IG report on several grounds.  The most significant challenge goes to the heart of the IG's ill-conceived concern about perceived pressure on ISOs:

The manner in which USCIS handles or addresses a stakeholder inquiry or complaint depends on the nature and complexity of the incoming information. Some inquiries are very straightforward and can be addressed quickly with readily available information. However, other inquiries or complaints are more complex and may involve allegations of case mishandling, inconsistency in USCIS decisions, or violations of privacy and civil rights or civil liberties. In such instances, USCIS’s review of the incoming information could lead to a substantive review of any decision associated with the allegation. While the adjudicator involved may subjectively perceive a request to review a decision as putting undue pressure to ensure a certain outcome, such is not the intention of the request. Rather, USCIS’s responsibility is to ensure that the decision was correct and that the allegations are addressed. . . . USCIS does not perceive any pervasive or systemic problem along the lines implied . . . (Bolding added.)

Surprisingly, however, the IG does not address the very specific areas of Sen. Grassley's concern when commissioning the report:

Please specifically review whether the leadership changes and internal managerial rotations made at the California Service Center in July/August 2010 led to pressure to approve more cases. Please review communication between Service Center Operations leadership and California Service Center leadership to determine if there was support, or lack of support, for addressing fraud and what, if anything, changed in July/August 2010.

While the IG report does review the action of the former USCIS Chief Counsel, without naming Roxana Bacon, it merely presumes, as noted, that she must have been wrong because the AAO affirmed the adjudicator in the University of Arizona O-1 case.  Roxie Bacon, however, offered me a very different and revealing analysis of that matter:

The CSC [California Service Center] which had run autonomously for so long was especially alarmed with efforts to formulate and adopt centralized standards and true accountability/transparency for the adjudications. Nowhere are guidelines and adjudicatory tools more needed than in the complex, difficult and subjective review of "O" petitions. The leadership at CSC threw up every type of defense to do things as they chose. . . . The U of A case, the inquiry of which came from DHS' central office staff, was a great example of the perils of having non-experts try to assess a case that had so many elements needing a good tool kit. And of course as we know a spirited disagreement about what the tools could and should be is healthy . . . 

Roxie's assessment, notwithstanding the AAO's apparent affirmance of the O-1 denial, is supported by a federal appellate court ruling, not cited by the IG, which rebuked both the AAO and the California Service Center in determining the proper standards of determining eligibility in EB1-1 extraordinary-ability immigrant-visa analogue to the O-1 category. The Ninth Circuit Court of Appeals in Kazarian v. U.S. Citizenship and Immigration Services, Case No. 07-56774, filed September 4, 2009, amended March 4, 2010, recently determined that the CSC and the AAO “may not unilaterally impose a novel evidentiary requirement” without support in the Immigraation and Nationality Act or agency regulations, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). Love Korean Church (at footnote 7) extended this principle to requests for evidence:

It is of course true that "[i]n appropriate cases, [USCIS] may request appropriate additional evidence relating to [the statutory] eligibility . . . of the [petitioning] organization, the alien, or the affiliated organization." 8 C.F.R. § 204.5(m)(3)(iv). This provision, however, does not authorize [USCIS] to impose, as it did here, additional threshold requirements that are "plainly erroneous or inconsistent with the regulation[s]." Bassiri [v. Xerox Corp.], 463 F.3d [927, 930] (9th Cir. 2006) (internal quotation marks and citation omitted).”

If the IG really wants to be fully responsive to Sen. Grassley and can the baloney, it should reopen its investigation, conduct a statistically valid review, and solicit the observations of external stakeholders, for as Carl Sagan observed:

Finding the occasional straw of truth awash in a great ocean of confusion and bamboozle requires intelligence, vigilance, dedication and courage. But if we don't practice these tough habits of thought, we cannot hope to solve the truly serious problems that face us -- and we risk becoming a nation of suckers, up for grabs by the next charlatan who comes along.

We are a Nation of Immigrators, not a nation of suckers.
_

_by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

Determining whether a foreign degree is equivalent to a US degree is crucial for an employment-based immigrant visa petition. Within the US employment-based preference system, being classified under the Employment-based Second Preference (EB-2) puts one at a significant advantage over one who is classified under the Employment-based Third Preference (EB-3). There is no backlog in the EB-2 for most countries while the EB-3 is hopelessly backlogged, Even if the EB-2 for countries like India and China is backlogged, it is less so than the EB-3. Indeed, the EB-3 backlog for India is unimaginable and totally untenable. It is estimated that it will take 70 years for the green card for a person from India who establishes his or her priority date in 2012!

To be classified under the EB-2  pursuant to section 203(b)(2) of the Immigration and Nationality Act, the position must require an advanced degree or its equivalent, which the USCIS in 8 CFR section 204.5(k)(2) defines as a foreign equivalent 4-year bachelor’s degree plus five years of post baccalaureate experience.

In the United States, one normally obtains a master's degree after completing a 2-year program following a 4-year bachelor's degree. Thus a student has to undertake 6 years of study in order to be awarded a master's degree from an accredited US college or university.

It has generally been assumed that a foreign master's degree, obtained after 6 years of education, would generally be equivalent to a US master's degree.  EDGE (Electronic Database For Global Education), administered by the American Association of Collegiate Registrars and Admissions Officers provides information on foreign degree equivalence from educational institutions from around the world. It is treated as gospel truth by the USCIS in determining whether a foreign degree is equivalent for immigration purpose. Till recently, EDGE has correctly said that an  Indian 4-year degree, such as a Bachelor of Technology degree, followed by a 2-year master's degree, is equivalent to a US master's degree.On the other hand, a master's degree following a 2- or 3-year Indian bachelor's degree only equated to a US bachelor's degree and not a master's degree.

It has recently come to our attention, thanks to Natalie Muehlberger of Trustforte Corporation, that EDGE has recently downgraded many Indian master's degree. This is how EDGE, a paid  service, describes it now:

Credential Description
Awarded upon completion of 1.5-2 years of study beyond the three-year bachelor's degree or four year BTech or BEngr degree.

Credential Advice
The Master of Science represents attainment of a level of education comparable to a bachelor's degree in the United States.

Thus, regardless of whether the master's degree is obtained after a 3- year or a 4- year bachelor's degree program in India, EDGE is now equating both to a US bachelor's degree. This downgrade would impact those who would otherwise qualify under the EB-2 as the USCIS closely relies on EDGE. We do hope that EDGE realizes that it is wrong and reverts to its earlier assessment that a master's degree, following 6 years of education, is equivalent to a US master's degree and not a bachelor's degree. Fortunately, EDGE is still maintaining, according to Ms. Muehlberger, that  2 years of coursework in business management from the prestigious Indian Institute of Management, India, is  comparable to a master's degree in the United States. The same logic should hold true for other Indian master's degrees, especially in science, following a 4 year bachelor of technology or engineering degree. It is therefore important to constantly check the foreign national's educational credentials with EDGE before embarking on an employment-based green card sponsorship.

Since USCIS follows EDGE, the beneficiary of an I-140 petition with an Indian master's may be only able to qualify under the EB-2 if he or she can demonstrate a bachelor's degree (since this master's degree will still equate to a single source bachelor's degree) plus 5 years of progressive experience following this degree. If the beneficiary does not have the 5 years of post-baccalaureate experience, he or she will have no choice but to be classified under the EB-3, and if born in India, the green card will materialize after decades.

If EDGE does not revert to its original position, petitioners and their attorneys should still endeavor to convince the USCIS, or then litigate before the AAO and in federal court, that a 2-year Indian master's degree following a 4- year bachelor's degree ought to be comparable to a US master's degree.   In a 2009 USCIS liaison meeting, the agency indicated that it would still be receptive to arguments notwithstanding a contrary EDGE finding:

USCIS considers all sources, including EDGE and AACRAO databases, and has received many evaluations where the evaluators list membership in AACRAO in their credentials and list AACRAO publications as their reference materials. USCIS adjudicators review all evidence in the record and make determinations based on the individual facts of each case. The AAO's decisions are available to the public and provide an extensive compilation of the results of its findings as to the equivalency of particular foreign degrees.

The USCIS pursuant to its 2009 guidance ought to be receptive to arguments that an Indian master's degree following 5 years of post-secondary education is functionally equivalent to a US master's degree. Otherwise, the EDGE downgrade will strike another blow to Indians, who will then be endlessly mired in the EB-3 even though they qualify for a position that requires an advanced degree. It will also be another example of how the USCIS constantly shifts the goal posts concerning foreign equivalent degrees, adversely and unfairly impacting mostly skilled foreign nationals with Indian degrees.

_by Nataliya Rymer, Associate with ABIL member, H. Ronald Klasko
Klasko Immigration Blog

Foreign nationals who are immediate relatives of U.S. citizens currently in the U.S. seeking to become lawful permanent residents, but who originally entered without inspection, could soon benefit from a change in the waiver application process being proposed by U.S. Citizenship and Immigration Services. On Friday, January 6, 2012, USCIS announced that it intends to develop a framework allowing certain foreign nationals who have accrued unlawful presence in the U.S., and are thus inadmissible without a waiver, to file their waiver applications (Forms I-601) stateside.

This change would significantly reduce the time that U.S. citizens are separated from their immediate relatives, as foreign nationals are currently required to remain outside the U.S. while their immigrant visa application and their waiver application are adjudicated. This USCIS proposal clarified that only foreign nationals who are immediate relatives of U.S. citizen spouses or parents would be able to take advantage of this change. This proposal is not expected to be implemented until the end of this year. We will continue to monitor and report on the progress of this important development.

Background

Immigration law bars certain foreign nationals from being admitted into the U.S. (receiving permanent residence or any other visa)  if they have previously accrued unlawful presence in the U.S. – whether by entering the U.S. without being inspected by an immigration officer or by overstaying the time allotted to them by a nonimmigrant visa obtained in the past. Those who have accrued between 181 days and 1 year of unlawful presence are subject to a 3-year bar before becoming admissible into the U.S. Those who have accrued more than 1 year of unlawful presence are subject to a 10-year bar before becoming admissible into the U.S. Immediate relatives of U.S. citizens who entered the U.S. on a nonimmigrant visa and later overstayed their time, or were admitted and inspected by an immigration officer on some other basis, are able to adjust their status without leaving the U.S. and without needing to obtain a waiver for the unlawful presence they accrued in the U.S. – immigration law forgives them for the unlawful presence. However, those immediate relatives of U.S. citizens who have accrued unlawful presence and who cannot demonstrate having been admitted and inspected by an immigration officer upon entry are unable to apply for adjustment of status from within the U.S. Immigration law requires that they depart the U.S. and apply for an immigrant visa at a consulate post abroad.

Unfortunately, this departure is what triggers the 3- and 10- year bars and subjects them to the requirement of the filing of the application for waiver of this ground of inadmissibility.  To obtain a waiver of unlawful presence, foreign nationals in this predicament are required to demonstrate that, if this application for a waiver is not granted, their U.S. citizen or lawful permanent resident spouse or parent will suffer extreme hardship. Because this waiver is discretionary, the individuals must also warrant a favorable exercise of discretion.  While the term “extreme hardship” has not been exactly defined, this term has been interpreted very narrowly and involves the balancing of various factors.

Current Practice

The current practice of the filing and adjudication of these waivers has required that the foreign national depart the U.S. and file the waiver with the consular post processing his or her immigrant visa. This has caused significant delays during which the foreign nationals remain separated from their immediate U.S. citizen- or lawful permanent resident-relatives while the waiver is adjudicated. Moreover, the foreign national has no guarantee when he or she leaves the U.S. that the waiver will be granted, and thus, he or she faces the prospect of leaving the U.S. without the ability to return for either three or ten years.

The waivers are adjudicated by USCIS offices having jurisdiction over the particular consular post where the foreign nationals applied for their immigrant visas, by a newly-created International Operations Support Branch of USCIS located in Anaheim, California, or –at times – the USCIS Nebraska Service Center. If USCIS denies the application for waiver, their decision may be appealed to the Administrative Appeals Office (“AAO”). Because the processing times for these waiver applications at the USCIS level are currently several months, and at the AAO level are over 2 years, this delay causes significant additional hardship to the families of the foreign nationals, from whom they are currently required to be separated for the duration of the adjudication of the application, without the grant of which their immigrant visa cannot be processed.

USCIS Proposal

The contemplated change in processing is intended to reduce this burden of separation. It is, however, limited only to foreign nationals whose spouses and/or parents are U.S. citizens, and not lawful permanent residents. This change would allow the qualifying foreign nationals to file their applications for waiver of grounds of inadmissibility prior to departing the U.S. and remaining in the U.S. while the USCIS adjudicates their application. If successful, USCIS would grant a provisional waiver prior to, and dependent upon, their departure to attend their immigrant visa interview at a consular post. While the procedural details were left out of the USCIS announcement, it is anticipated in the immigration legal community that the unlawful presence waiver applications would be adjudicated by the International Operations Support Branch of USCIS in Anaheim, CA, as well as the USCIS Nebraska Service Center.

In addition to significantly reducing the time foreign nationals who have accrued unlawful presence would be forced to spend separated from their U.S. citizen immediate relatives, USCIS expects that this change would streamline the process of waiver adjudication and visa processing for the foreign nationals in question, reducing the processing time even further due to the lessened amount of time the case would have to be moved back and forth between the U.S. Department of State, the various consular posts and USCIS. USCIS also expects this to produce a welcome cost reduction associated with the processing of such cases, as the adjudicators would be located in the United States, rather in international USCIS offices.

This change is not expected to be implemented until the end of this year, and its details are still largely unclear. USCIS is expected to issue a proposed rulemaking that will address this change, along with all of its fine points and new processes. Of course, as always, with such proposals, questions linger as to whether this change will cause a further backlog in the adjudication, as well as an overall reduction in approval rates, for unlawful presence waivers. All of this remains to be seen once- and if- the rulemaking for this change is implemented and it takes place. However, one thing is clear – it seems to be the current administration’s step toward alleviating some of the painful delays caused by the backlogged and often inefficient processes within immigration law.__

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Immigration stakeholders howled with joy this week over an announcement by Janet Napolitano, the Secretary of Homeland Security (DHS), and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), about the forthcoming publication of a new immigration regulation. Usually, the intention to publish a rule is no cause for huzzahs.  But this Notice of Intent is different.  It presages a rule that would prevent the separation of families for up to ten years by allowing unlawfully-present immediate relatives of U.S. citizens to file "provisional waiver" applications in the U.S. rather than abroad.

Under the rule as proposed, waiver applicants would be required to show that extreme hardship would befall their citizen family members if the three- and ten-year unlawful-presence bars were to apply as written in the Immigration and Nationality Act.  Individuals granted a waiver would be assured that they could appear for an immigrant visa interview at a U.S. consulate or embassy outside the country and be able to turn right around and be allowed back in as permanent residents (assuming that unlawful presence is the only inadmissibility ground the consular officer uncovers at the interview).

The announcement generated praise from editorialists (a "Common-Sense Immigration Move") and the immigration bar ("the move is . . . smart enforcement because it will reduce the illegal immigrant population and allow [DHS] to better focus its resources on keeping America secure and safe"). However laudable the effort to establish a "provisional waiver" rule that avoids family separation, its scope, regrettably, is limited. It ignores the pain of family separation where the qualifying relative is a permanent resident who suffers hardship no less extreme than a citizen's, and only covers unlawful-presence waivers, even though the immigration laws provide several other inadmissibility grounds that permit an extreme-hardship waiver.

The overly narrow scope of the proposed in-country waiver rules is understandable, however, in light of other reports this week which received far less notice but still caused immigration insiders to howl, this time in fear, along with alternating yelps of outrage. 

Three articles from The Daily, "a national multimedia iPad publication" subsidized by the Rupert Murdoch empire, reported the leaked contents of a draft DHS Inspector General report commissioned at the behest of Republican Senator Charles Grassley. The Daily articles carry breathless headlines conveying the sense that dastardly deeds are about to be uncovered ("RUBBER STAMP[:] Probe reveals feds pressuring agents to rush immigrant visas – even if fraud is feared," "PUSHING THE ENVELOPE[:]Immigration counsel in conflict-of-interest probe over visa approval," and "IMMIGRATION SCANDAL PROBE[:] Congressional panel to investigate claims officers were pushed to OK visa requests"). 

The first article is based on a "40-page report, drafted by the Office of Inspector General in September but not publicly released, [which] details the immense pressure immigration service officers are under to approve visa applications quickly, sometimes while overlooking concerns about fraud, eligibility or security." The article, citing the IG's draft report, notes that out of 254 immigration adjudicators interviewed 25% reported that "they have been pressured to approve questionable cases, sometimes 'against their will.'”  The IG does not identify any wrong-doers by name.  Yet The Daily article, illustrated by a mocked-up photo of immigration applications bearing multiple red "APPROVED" rubber stamps, proceeds to pin the wrap on USCIS Director, Alejandro Mayorkas, as the alleged perpetrator-in-chief who, it would seem, countenances fraud as a volitional byproduct of his supposed "get to yes" campaign. 

The Daily's initial article quotes unidentified adjudicators who claim they were demoted for declining to approve legally undeserving cases or replaced by officers willing to "get to yes". None of the 75% of adjudicators who disputed the claims of pressure to say "yes" is quoted in the article, only private lawyers who nonetheless believed that "officers are just looking for reasons to deny a case".  The accompanying photo and the "RUBBER STAMP" headline suggest the accuracy and thoroughness of the reporting. The immigration forms depicted are immigrant visa applications which applicants submit to the State Department, not to USCIS.  The reporter, moreover, presumes that the griping adjudicators actually know the immigration law  -- even though precious few adjudicators are lawyers. 

I wrote this email to the reporter with a caption, "Much more to the story than you've published," offering reasons why the initial article was incomplete, and asked for a copy of the unpublished IG's draft report.  Her answer: "We are not distributing the draft report as of yet, but I’ll reach out to you when I do a followup."  Despite two later, equally sensational articles, the reporter has not reached out, suggesting that getting to the facts about the USCIS California Service Center (CSC) -- the source of the original complaint to Senator Grassley -- is not a high priority. 

The Daily's second article is essentially a vindictive hit job on Roxana Bacon. A former USCIS Chief Counsel (who after her departure rebuked the USCIS for a host of failings), ex-Prez of the Arizona State Bar and past General Counsel of the American Immigration Lawyers Association, she apparently jousted internally over the question whether the University of Arizona knew better than a CSC adjudicator if "a visiting scholar of geography from Mongolia," petitioned as an O-1 (Extraordinary Ability Alien), should be allowed to fill an assistant-professor post. 

Although the second article notes the IG's reported belief that her "efforts were not based on reasonable interpretations of the law,” I have my sincere doubts, especially without seeing the underlying case file.  Roxie Bacon and I were partners for eight years at a prominent international law firm (Bryan Cave LLP) where we co-managed a group of ten immigration lawyers and 20 paralegals. She practiced immigration law for over 30 years and is razor-sharp in intelligence and first-rate in her understanding of the legal requirements for extraordinary ability.  On the other hand, I, like the immigration lawyers quoted in the article who criticized USCIS adjudicators' decisions, have often seen CSC opinions laden with failures of logic, misreadings of the facts, and plainly erroneous legal analyses, slathered over with large dollops of syllogistic and disingenuous pseudo-reasoning.  In other words, until all the facts are revealed, my experience with Roxie and with the CSC, cause me to give her the benefit of the doubt.

The final article in this trilogy, "IMMIGRATION SCANDAL PROBE[:] Congressional panel to investigate claims officers were pushed to OK visa requests," shows how politics is played in an election year.  Rather than waiting till the Inspector General completes his report, House Judiciary Committee Chairman, Republican Lamar Smith, is eager to investigate alleged abuses that "threaten 'the integrity of our immigration system.'”

Indignant at the charges, Rep. Smith told The Daily:

“It’s outrageous that administration officials would compromise national security for their own political agenda and gain,” Smith said, pointing out that visa applications often lead to U.S. citizenship. “The president’s most important job is to protect the American people, but it seems this administration is more interested in ignoring immigration regulations than making sure those who come here will not cause us harm.”

(This is the same Rep. Smith who -- in most un-Republican fashion -- has cozied up to the ICE officer's labor union, which "so far [has] not allowed its members to participate in the training" required to exercise prosecutorial discretion properly when enforcing the immigration laws.)

What The Daily's reporting fails to recognize, however, is that the conjured controversy within USCIS is merely an internal employment dispute magnified by a small group of power-mad, disgruntled and insubordinate adjudicators masquerading as whistleblowers who -- like Peter and the Wolf, imagine or fabricate broad-based threats to the immigration system and the nation's security.  In reality, these adjudicators are "mutineers" who use Washingtonian gamesmanship to fight Director Mayorkas "tooth and nail over every innovation and improvement he [has] proposed."  Imagine what DHS might have done and yet do to improve the workings of the legal immigration system were it not for the spine-chilling howls of riled adjudicators who trump up controversies merely to play out the clock (they hope) till a different administration comes to power -- one that might be pleased to return to the "culture of no." Consider also another type of "Howling" -- one from the 1981 film of the same name, in which a reporter "is sent to a . . . center whose inhabitants may not be what they seem."

_by Cyrus D. Mehta, ABIL Lawyer and David A. Isaacson, Associate of Cyrus D. Mehta
The Insightful Immigration Blog

In the raging immigration debate concerning the millions of undocumented immigrants in the US, one important issue has received scant attention. We have yet to meet a person who has roots in the US who desires to choose to remain undocumented. Most are forced to remain undocumented even though they have a pathway to a green card due to a perverse Catch 22 effect in our immigration law as a result of the 3 and 10 year bars imposed under INA § 212(a)(9)(B).

Those who have remained unlawfully present in the US for 1 year or more face a 10 year bar to reentry if they depart the US. Similarly, those who have remained unlawfully present for more than 180 days face a 3 year bar to reentry if they depart the US. It should be noted that the term “unlawfully present” is a complex legal term and a discussion of this term is beyond the scope of this blog. These individuals, if they are the beneficiaries of an approved immigrant visa petition filed by a US citizen spouse or parent or a US citizen child (who is over 21), may often be unable to adjust their status in the US. Under INA § 245(a) one has to be inspected or paroled in order to qualify to adjust status to permanent residence in the US. Thus, a non-citizen spouse of a US citizen who previously surreptitiously crossed the border from Mexico into the US would be ineligible to adjust status because she was not inspected under § 245(a). Of course, there are exceptions to this rule too, which is beyond the scope of this blog and an article discussing these exceptions can be found here. This spouse would need to leave the US and apply for an immigrant visa at the US consulate in her home country. However, if she was unlawfully present in the US for 1 year or more, it would result in her triggering the 10 year bar to reentry. Although, under the current regime, she can apply for a waiver under INA § 212(a)(9)(B)(v), she can only do so after she has departed the US.

Obtaining the waiver is no small matter because she has to demonstrate extreme hardship to the US citizen spouse if the waiver is denied. The emotional angst resulting from the separation of two spouses is not enough. She will need to demonstrate, in addition to the emotional issue, financial, cultural, political and health conditions, among many others, as well as the balancing of ties within and outside the US. See Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). Thus, this spouse will be rolling the dice if she departs the US to chance winning the waiver while outside the US. If the waiver is denied, she will be stuck outside the US and will be separated from her loved ones. Moreover, she can only demonstrate extreme hardship to a limited universe of qualifying relatives, which include a spouse or a parent. If she has US citizen children, under INA § 212(a)(9)(B)(v), she cannot demonstrate extreme hardship to them if she is separated.

It is not hard to see why there has been such a huge build up of the undocumented population in the US. Even while people may be eligible for permanent residence, they are unwilling to leave and chance a waiver from outside the US. While Congress enacted INA § 212(a)(9)(B) to deter overstays, it has had the exact opposite effect. People overstay, despite being approved for a green card, because of fear of facing the 3 or 10 year bars.

It is thus heartening that the Obama administration has proposed a rule that will be published in the Federal Register on January 9, 2012 in the form of a Notice of Intent to publish such a rule, which will permit intending immigrants to apply for a provisional waiver in the US prior to their departure from the US. This rule, if published, will remove the uncertainty in leaving the US and being barred for 3 or 10 years if the waiver application is denied. Under the proposed rule, the waiver can be applied for while in the US. With the waiver in hand, the individual departing the US can more readily hope to reenter the US without facing the 10 year bar. This move has received thunderous applause from the immigration advocacy community and rightly so. In a time when Congress is virtually paralyzed and cannot even make small tweaks to improve the immigration system, the proposing of a smart administrative rule such as this one is consistent with the intent of the law. People subject to the 3 or 10 year bars still need to apply for the waiver and meet the rigorous “extreme hardship” standard, except that they can apply for it in the US prior to their departure. If they obtain the waiver, they can at least be assured of not triggering the 3 or 10 year bars upon their departure.

Apparently, if and when the rule takes effect, which under the formal rule making process may take some time, it will be limited to immediate relatives of US citizens who are seeking a § 212(a)(9)(B)(v) waiver of unlawful presence based on hardship to a US citizen, although the petitioning US citizen and the one to whom extreme hardship exists need not be the same (so that, for example, it appears that the parent of a 21-year-old US citizen petitioned for by that son or daughter would qualify if seeking a waiver based on extreme hardship to a US citizen parent, the grandparent of the petitioning relative). It appears that the rule will not cover people who are not immediate relatives of a US citizen (such as the over-21-year-old son or daughter of a US citizen who is petitioned for by their parent and not protected by the Child Status Protection Act), or whose qualifying relative for the waiver is a lawful permanent resident. It also will not cover people who need some other sort of waiver in addition, such as a waiver under INA § 212(i) for fraud. It is not entirely clear whether the proposed rule would cover people who in addition to a waiver under § 212(a)(9)(B)(v) need to obtain permission to reapply for admission because their departure will execute an order of removal and create inadmissibility under INA § 212(a)(9)(A), but it would seem that it should, since such applications for permission to reapply can already be filed in advance under existing regulations-- the actual proposed rule may clarify this when it comes out. We do urge the USCIS to at least include sons and daughters of US citizens who do not qualify as immediate relatives. A child who has turned 21, and who may not be protected under the Child Status Protection Act, still remains very much part of the nuclear family especially in hard economic times when their parents are still the lifeline. These adult children, technically referred to as sons and daughters, would otherwise qualify under DREAM Act legislation, and may at least be able to take advantage of this provisional waiver if the proposed rule is adjusted to allow them to do so.

Although this new proposed rule may be portrayed as some sort of radical innovation by immigration restrictionists, it is actually nothing of the sort. The governing regulations, specifically 8 C.F.R. § 212.2(j), have long provided that one who is consular processing an immigrant visa, and will need permission to reapply for admission because his or her departure will execute an order of deportation or removal and create inadmissibility under INA § 212(a)(9)(A), can file the Form I-212 application for permission to reapply in advance of departing from the United States, and “shall receive a conditional approval depending on his or her satisfactory departure.” That is, people who will be subject to the 5- and 10-year bars based on executed removal and deportation orders (the length of the bar can vary depending on the circumstances of a removal order) have long been able to apply for advance waivers of those bars before they leave the US to consular-process an immigrant visa. This new proposed rule would simply update the regulations to create a similar procedure for the parallel 3- and 10-year bars created by IIRIRA (the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996”), for people who remove themselves from the United States after being unlawfully present even though there may have been no removal proceedings against them. It can therefore be seen as a long overdue technical fix. However, it remains to be seen how long the rule making process will take, which includes notice and comment. There is also bound to be opposition to the rule. The USCIS still has to publish rules from the enactment of IIRIRA provisions in 1996! Hopefully, the Obama administration will give this high priority as the promulgation of such a rule may even reduce the undocumented population in the US.

This technical fix could also reduce inefficiency in the era of Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), especially if accompanied by an additional change in the proposal relating to potential issues of fraud. Under Quilantan, entering the United States at a port of entry with the permission of an immigration officer is sufficient to create eligibility for adjustment of status as an immediate relative of a U.S. citizen, regardless of whether one’s entry was procedurally proper, as long as the entry did not involve a knowing false claim to U.S. citizenship. Many people who were waved through the border as passengers in a car or the like have little corroborating evidence of their manner of entry. Absent this regulation, if such a Quilantan entrant is married to a U.S. citizen and is denied adjustment because USCIS rejects their testimony regarding manner of entry, they will effectively be forced to request that removal proceedings be commenced against them so that they may testify before an Immigration Judge and seek to establish their manner of entry by credible testimony as Ms. Quilantan did in her case. Under the new procedure, some such Quilantan entrants may decide that it is simpler to seek an advance waiver of inadmissibility, as long as their qualifying relative’s particular form of extreme hardship is such that a brief trip abroad to pick up an immigrant visa will not be intolerable. If the advance waiver is approved, the already overcrowded immigration court system would then be spared the necessity of hearing testimony regarding the applicant’s manner of entry. One caveat, however, is that the current version of the proposal, which excludes waivers of fraud-related inadmissibility under INA § 212(i), could lead potential applicants and their attorneys to fear a potential finding of fraud inadmissibility by a consulate where the circumstances of the applicant’s prior entry into the United States are murky and difficult to prove (making it hard to refute an inaccurate consular suspicion that some fraud may have been committed). The potential efficiency would be much greater if the USCIS proposal were modified to allow either advance waivers under INA § 212(i), or at least an advance finding that no fraud was committed by an applicant. Otherwise, Quilantan­ entrants within the U.S. may be reluctant to give up their right to have an Immigration Judge (and if necessary the BIA) adjudicate their contention that they did not commit fraud in their entry, and to instead be at the mercy of an effectively unreviewable determination by a consular officer.