By: Joseph Barnett, Amy Lynne Pucker, Josune Aguirre and Bernard P. Wolfsdorf, ABIL Lawyer

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U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) unit announced this week that it has served over 2,700 Notice of Inspection (NOI) to U.S. employers in a five day span from July 16 to July 20, 2018.  HSI has indicated its commitment to increase the number of I-9 inspections in the future “in an effort to create a culture of compliance among employers.”

A NOI informs business owners that HSI will be auditing their hiring records (I-9s) to determine whether they are complying with existing U.S. immigration laws.  After receiving a NOI, U.S. employers are required to produce their company’s I-9s within three business days, after which HSI will conduct an inspection for compliance.

Non-compliance will likely result in civil fines and could also lay the groundwork for criminal prosecution if companies (or human resources departments) are knowingly violating the law.  Additionally, all workers encountered during these investigations who are unauthorized to remain in the United States are subject to administrative arrest and removal.

There’s little doubt that the rise of I-9 inspections are part of the Trump Administration’s “comprehensive strategy to address and deter illegal employment” to “eliminate unfair competitive advantages for companies that hire an illegal workforce. . . .” Last fiscal year, U.S. businesses were ordered to pay $97.6 million in judicial forfeitures, fines, and restitution, and $7.8 million in civil fines for non-compliance.

We previously blogged about the importance for U.S. employers to have their I-9s in order and pro-active steps they can take to prepare for this increased scrutiny.  Further complications exist for California employers that are required to comply with the Immigrant Worker Protection Act or AB 450.  As many have noted, this places California employers in a particularly troublesome place, having to comply with two separate (and sometimes inconsistent) laws which could substantially affect their workforce availability.  For example, under California law, employers must notify their workforce of an I-9 inspection within 72 hours of receipt of an NOI.  The NOI posting may cause internal issues for the employer as many employees may not understand the inspection process and fear returning to work.  Specifically, we have seen instances where companies with high foreign born employees see a large percentage of employees not show up after the NOI posting.

Moreover, President Trump is looking for a fight with the left-leaning State of California, and he knows that his power is incredibly strong and discretionary when it comes to enforcing the U.S. immigration laws.  Now, it appears to be only a matter of time until ICE comes knocking on more California employers’ doors, ready to serve a NOI.  It is always better for an employment to have already done an internal audit then be caught having to scramble to get all in order, under very stressful conditions, when ICE comes knocking.

Employers are advised to speak with experienced immigration counsel to address these compliance and enforcement issues.  Wolfsdorf Rosenthal LLP has over 30 years of experience helping U.S. companies comply with U.S. immigration law.

Under the Trump administration, there have been an increasing number of denials of employment-based petitions, especially of H-1B visas. To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program, and indeed, all legal immigration. It does not matter that employment-based visas help facilitate American competitiveness globally by attracting worldwide talent, or that foreign workers complement the US workforce rather than replace them, resulting in greater overall efficiency, productivity and jobs. Rather, the administration continues to attack all pathways to legal immigration under its misguided America First philosophy.

The stakes for an approval have become even higher, as USCIS recently announced that it will “issue an NTA [Notice to Appear] where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” In yet another recent policy, USCIS instructs adjudicating officials to deny applications based on the lack of “sufficient initial evidence” without the issuance of an RFE or notice of intent to deny. This could be subjectively viewed as resulting in more denials followed by NTAs.

Upon the USCIS Service Center denying an employment-based petition, the petitioner may file Form I-290B, Notice of Appeal or Motion in order to appeal to the Administrative Appeals Office (AAO) within 30 days (plus 3 days if received in the mail) of the decision. Alternatively, the petitioner may request a motion to reopen or a motion to reconsider or both with 33 days of the decision. The petitioner may also opt to seek judicial review in federal court without going to the AAO. In addition, a petitioner may also wish to re-file the petition, which may at times be the best strategy. However, the re-filing option may not always be available, such as when the H-1B cap for the fiscal year has already been reached or the beneficiary’s nonimmigrant status has ended and consular processing would be problematic for whatever reason.

This blog will discuss the advantages and disadvantages of administrative review over judicial review.

Advantages of Seeking Administrative Review

Filing Form I-290B is more administratively convenient, efficient and less costly for the client. If the USCIS has made an obvious error, requesting that the USCIS either reopen or reconsider or do both may be an effective and simple strategy. For example, if an H-1B is erroneously denied without an RFE or NOID, and it was clearly an error, the filing a motion to reopen may make more sense over judicial review.

In the event that the petition has been denied on substantive grounds, filing an appeal to the AAO allows one to supplement the record by providing additional evidence such as a more detailed expert evaluation. The process is less formal than going to federal court. Writing the brief in support of the appeal or motion is an extension of what was already said in the response to the Request for Evidence prior to denial, although the new brief must make new and creative arguments to overcome the denial.

Even when the intention is to file an appeal on Form I-1290B, the official who made the initial decision, according to agency regulation, will first review the appeal and determine whether to take favorable action and grant the benefit request. This process is called “initial field review.” Thus, every appeal is first treated as a motion to reopen or reconsider. There are many occasions where a case based on an egregious denial can be reopened and reversed without going through the AAO.

There is nothing to lose and a chance of a favorable result – the AAO could either outright reverse a denial or remand back to the USCIS Service Center, which in turn, could issue another RFE. If the AAO dismisses the appeal, one can still seek review in federal court.

Disadvantages of Seeking Administrative Review

The success rate at the AAO is very low. In FY2017, with respect to H-1B petitions, the AAO dismissed 598 appeals, sustained only 22 and remanded 44. With respect to L-1 petitions, the AAO dismissed 181 appeals, sustained only 15 and remanded 6.

The process is also not expeditious. If the beneficiary is already in the US and does not have another underlying nonimmigrant status, he/she will start accruing unlawful presence for purposes of triggering the 3/10 year bar upon the denial of the request for change or extension of status. If the individual’s appeal is not successful after 180 days of unlawful presence have accrued, the beneficiary will be subject to the bars upon departing the US.  (If the individual’s appeal is successful, any related application for change of status or extension of stay is likely to be reopened on Service motion following the granting of the petition, but one cannot know for sure in advance whether this will happen.)

The AAO may not just affirm the USCIS denial, but may also improve upon it by providing better reasoning or even affirming for different or additional reasons. This would render it more difficult to seek judicial review.

Advantages of Seeking Judicial Review

The case is reviewed by a judge who is not part of the USCIS and is not influenced by its prevailing policy as an adjudicator within the AAO is.

There may also be an opportunity to have the case resolved with an Assistant US Attorney who may advise his/her client, the USCIS, to reverse the decision rather than fight it out in court.

If the plaintiff prevails, the attorney may seek fees under the Equal Access to Justice Act.

One can ask for extraordinary remedies through a preliminary injunction (or temporary restraining order followed by a preliminary injunction) to maintain the nonimmigrant status of the beneficiary during the pendency of the matter, or at least prevent the beneficiary from accruing unlawful presence during the pendency of the matter.

Moreover, if an NTA is issued upon the denial of petition, then one potential advantage in federal court litigation is to ask the court in the preliminary injunction to restore the status of the beneficiary, which could then be grounds for termination of the removal proceedings. It should be noted that business immigration attorneys will also need to either hone in or develop their litigation skills for beneficiaries who are placed in removal proceedings, which was discussed in our previous blog, “Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy.” Attorneys will need to simultaneously navigate the removal process while challenging the denial of the underlying petition.

In a few cases, the beneficiary has been able to establish standing as a plaintiff in litigation involving nonimmigrant visas. See e.g., Tenrec, Inc. v. USCIS, No. 3:16‐cv‐995‐SI, 2016 U.S. Dist. LEXIS 129638 **21‐22 (D. Or. Sept. 22, 2016). In the administrative review context, the USICS has recognized that the beneficiary of an I-140 may administratively challenge the revocation of an I-140 petition who has exercised job portability pursuant to INA 204(j). See Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).

Disadvantages of Seeking Judicial Review

Seeking judicial review can be far more expensive and time consuming. In addition, a federal court may exercise a more deferential standard, where under the Administrative Appeal Act (APA) a denial may be set aside only if  it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); United States v. Bean, 537 U.S. 71, 77 (2002). Factual findings may be set aside by a federal court only if “unsupported by substantial evidence”—which is not quite the same thing as review for “clear error” as in appellate review of a lower court’s fact-finding, but is still far from de novo review. See 5 U.S.C. § 706(2)(E); Dickinson v. Zurko, 527 U.S. 150 (1999).  The AAO, on the other hand, can undertake a de novo review of all issues of fact, law, policy, and discretion, and can also address new issues that were not addressed in the prior decision. See AAO Practice Manual, Chapter 3 Appeals.

New evidence cannot be introduced into the record.

Some employers also fear government retaliation, although this may be anecdotal and not necessarily official policy. Employers also are shy about unwanted publicity when they become plaintiffs.

The stakes have never been higher for employment-based immigration. With the very real threat of deportation looming, practitioners and employers alike must weigh the benefits and risks with any of these options when seeking review of a denial. For some, a motion to reopen and reconsider may be sufficient for a more obvious error. Others may wish to resolve a recurring, systemic issue by seeking judicial review in a district court. Regardless, it is clear that the role of the immigration practitioner, especially those practicing business immigration, must be prepared to increasingly litigate these petitions in order to prevent further carnage of the existing immigration system.

By: Aaron C. Hall, Partner of Kirby Gamblin Joseph, ABIL Lawyer
Joseph Law Firm Immigration Blog

New restrictive interpretations of immigration laws and enforcement without discretion continue to rock immigrants, families, and businesses around the country. With the nonstop deluge of bad immigration news, it can be easy to forget that cases continue to get approved.  As a bit of a respite, here are some of the good things we’ve seen in July:

• A Joseph Law Firm client who hired the firm at the “request for evidence” stage after a very rough marriage-based adjustment of status interview was approved following our response to the request for evidence. The client already has her green card in hand!
• Multiple Joseph Law Firm clients successfully became U.S. citizens through naturalization. They can now apply for U.S. passports, vote, and petition for relatives.  We’re thrilled to call them fellow Americans!
• A Joseph Law Firm client was approved for lawful permanent resident status after attorney Alex McShiras was able to overcome requests for evidence from USCIS casting doubt on her lawful entry to the United States.
• DHS prosecuting attorneys, responding to Joseph Law Firm briefing, conceded that an old possession with intent to distribute drug conviction was not enough to stop our client from applying to keep his green card through 7 year cancellation of removal.​
• DHS Secretary Nielsen extended Temporary Protected Status for Somalia through March 17, 2020.
• Last month’s Supreme Court decision in Pereira v. Sessions has opened up new arguments to many in removal proceedings, including expanding the pool of people who qualify to apply for their green cards through cancellation of removal and allowing some to make motions to terminate removal proceedings.

By: Erin Williams, Associate Attorney of Kirby Gamblin Joseph, ABIL Lawyer
​Joseph Law Firm Immigration Blog

In a prior post, Employment-based Permanent Residency, Can You Sponsor Your ‘Skilled” or “Other Worker”?, we reviewed the basic process for Labor Certification/PERM as required for the “Skilled” or “Other Worker” categories.  The requirements that an employer must meet and document in order to sponsor a foreign worker for the EB-2 “Advanced degree” and the EB-3 “Professional” category are different from the “Skilled” and “Other Worker” categories.  Here, we will discuss the EB-2 “Advanced degree” and the EB-3 “Professional” categories.

First, we must determine if the employee is a “Professional” or if they fall into the “Advanced degree” category.  “Professional” positions are those requiring a bachelor’s degree for entry into the occupation. Think of accountants, engineers, or financial managers. These positions will still generally be considered Employment-Based Third Preference (EB-3).  The Employment-based Second Preference (EB-2) requires an Advanced Degree such as a master’s degree or higher.  Think of physical therapists, librarians, and economists.

In order to be eligible to file a PERM application for a the EB-2 “Advanced degree” or the EB-3  “Professional” category, a U.S. employer must demonstrate that it has a full time, permanent, bona fide position available.   This test of the U.S. labor market and the process of PERM can be broken into three (3) main steps, with three (3) mandatory and three (3) additional alternative sources of advertising and recruitment to be completed.

Steps 1 and 2 are the same for the EB-2 “Advanced degree” or the EB-3 “Professional” categories as they are for “Skilled” or “Other Workers.”  Please see the prior post, Employment-based Permanent Residency, Can You Sponsor Your ‘Skilled” or “Other Worker”?, for details on these critical, initial steps.  It is at Step 3 that the requirements become more substantial, the timing more complex, and the record keeping extremely important for sponsoring a foreign national employee.

Step 3: The employer must test the U.S. labor market using the specified means of the regulations for the EB-2 “Advanced degree” and the EB-3 “Professional” workers.  To complete this test, the three mandatory advertising and recruitment sources are required.

Mandatory Recruitment

1. Internal Posting Notice. The internal posting notice is posted at the employment site for 10 consecutive business days. It is then removed and this recruitment period remains “open and quiet” for 30 days to follow. Upon completion of the posting, the employer signs a certification. The posting and certification are retained for and included in the audit file.
2. State Workforce Agency (SWA) Online Posting. The position must be posted with the SWA in the state where the position is located for 30 days. At the end of the 30 days, this recruitment period remains “open and quiet” for 30 days to follow. Documentation of compliance with this step is printed from the SWA website and retained for the audit file.
3. Two (2) Sunday Print Advertisements.  The position must be published in the newspaper of general circulation for the work location. After the second publication of the advertisement, this recruitment remains “open and quiet” for 30 days to follow. Documentation of the advertising is obtained from the publisher and retained for the audit file.

Furthermore, the employer must complete three alternative, additional advertising and recruitment steps for all EB2 positions and EB3 positions that are “Professional”. These positions require the employer to advertise in three (3) additional sources from the following ten (10) options:

“Professional” and “Advanced Degree” Additional Recruitment Steps

1. Job Fair
2. Employer Website
3. Job Search Website
4. On-campus recruiting
5. Trade or professional organization
6. Private employment firm
7. Employee referral program with incentives
8. Campus placement offices
9. Local and Ethnic newspaper
10. Radio or television advertisement

After the completion of the publication of the advertisement source, each must remain “open and quiet” for 30 days to follow. Documentation of compliance with each step is obtained and retained for the audit file.

Consideration of Applicants and Filing Eligibility

Just as with the “Skilled and “Other Worker” categories, at the end of the open and quiet period, all interested candidates who have applied must be considered.  Applicants can only be disqualified for the position based on bona fide, job related, articulable reasons.  Some candidates may be disqualified based upon the application/resume they submit. Some candidates may need to be interviewed. In order to be deemed qualified, the candidate must meet each and every objective, minimum requirement and element of the offered position. All applicants and the outcome of their application and subsequent consideration must be recorded and retained in the audit file.

If a qualified, available applicant applies for the position, the employer cannot and does not file the online application.  The employer cannot demonstrate that there are no qualified, available U.S. workers and the process stops.  In this process, the employer is not required to hire the candidate who has applied.  The employer just cannot proceed with filing the PERM Application.

However, if there were no qualified, available applicants for the position, the employer will document the outcome, certify that it was unable to find a qualified, available U.S. work for the position and file the online application.

The employer is required to maintain an audit file for U.S. Dept. of Labor review for five (5) years from the date of filing the PERM application.  The audit file contains all of the documentation of the advertising and recruitment efforts, as well as records of the applications received, and a complete review of all the of applicants qualifications to demonstrate why the candidates were not qualified for the position as filed.

By DOL regulations the employer must pay all associated fees and costs, including but not limited to legal fees, advertising costs, etc.  The employer may not recoup or be reimbursed for these fees in any way.  The foreign national is not to be involved in the advertising, recruitment, or review of candidates during the recruitment phase.

Once the maze of the Labor Certification PERM process has been navigated, and the PERM Application is approved, the employer is eligible to file the next step: the Immigrant Visa Petition (Form I-140).  Visit again soon for details on the Immigrant Visa Petition and the issuance of Lawful Permanent Residence through Consular processing (for employees abroad) or Adjustment of Status (for employees present in a valid nonimmigrant status).

By: Alexander D. McShiras, Senior Attorney of Kirby Gamblin Joseph, ABIL Lawyer
Joseph Law Firm Immigration Blog

The Consular Electronic Application Center (CEAC) is an essential tool for completing any consular processing case that involves an immigrant visa. Applicants (or their attorneys) must login to this online system to pay the government filing fees (fee bills), choose an agent, and to submit their immigrant visa application. There is no other option to do all three of these required steps. The only way to do so is through CEAC. The CEAC web portal has been down since approximately July 20, 2018 and it displays the following error message:

“The Consular Electronic Application Center (CEAC) Immigrant Visa web portal is currently unavailable due to maintenance. During this time, IV applicants will be unable to access/login to the CEAC Immigrant Visa Agent (DS-261), Online Immigrant Visa Application (DS-260), or the Immigrant Visa Fee Payment portal. We are working to restore access as soon as possible.”

Source:  https://ceac.state.gov/IV

The government does not give any direction to applicants who need to access the portal immediately. This is especially important for people whose interviews have been scheduled and are preparing to attend the interview in the coming weeks. If this is your situation and you are a current client, we will contact you (if we have not already). We are contacting the consulate or embassy where your case is processing to ask them for specific guidance. The government does not give any timeline regarding when they expect to restore this essential web portal. Please be patient with us while the government is restoring CEAC.

By: Sophia Genovese, Associate of  Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

The Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) dramatically held that one aspect of the crime of violence definition contained within the aggravated felony provision of the Immigration and Nationality Act (INA) was unconstitutionally vague. An aggravated felony conviction can result in a non-citizen’s swift removal from the United States, and thus the Supreme Court’s decision in Dimaya provided much needed respite to non-citizens who have been charged with removability under the vague clause of the residual clause in the crime of violence provision. This led one to question whether a crime involving moral turpitude (CIMT) could similarly be challenged for being impermissibly vague under the Supreme Court’s reasoning in Dimaya.

Unfortunately, on July 17, 2018, the Ninth Circuit in Martinez-de Ryan v. Sessions denied a petition for review of a foreign national’s denied application for cancellation of removal based on a finding that she had committed a CIMT. No. 15-70759 (9th Cir. 2018). The Ninth Circuit rejected the Petitioner’s arguments that the phrase ‘crime involving moral turpitude’ is unconstitutionally vague, and distinguished the Supreme Court’s decisions in Dimaya and its predecessor, Johnson v. United States, 135 S. Ct. 2551 (2015). The relevant aggravated felony provision in Dimaya was the residual clause of the crime of violence definition at 18 U.S.C. § 16(b), which provides that “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”. The relevant provision in Johnson was the residual clause of “violent felony,” as defined by 18 U.S.C. § 924(e)(2)(B), in the Armed Career Criminal Act, which similarly provides that a violent felony is one that “involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court found in each respective case that the residual clauses created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. Dimaya at 1213; Johnson at 2557. The residual clauses had resulted in reliance upon judge’s “guesswork and intuition,” and “fail[ed] to give ordinary people fair notice of the conduct it punishes,” which invited “arbitrary enforcement” by judges. Johnson at 2557. Such arbitrary enforcement, the Court held, was determinative of impermissible vagueness.

Instead of following Dimaya and Johnson, the Ninth Circuit in Martinez-de Ryan found that it should follow precedent in Jordan v. DeGeorge, 71 S. Ct. 703 (1951) (finding that “whatever else the phrase … may mean,” crimes involving fraud “have always been regarded as involving moral turpitude”) and its Ninth Circuit corollary decision, Tseung Chu v. Cornell, 247 F.2d 929 (1957), which came after the enactment of the 1952 Act (which slightly changed the wording of the CIMT provision from the 1917 Act which controlled in DeGeorge). Though acknowledging that Johnson and Dimaya “cast some doubt on [DeGeorge’s] general reasoning,” the Ninth Circuit nevertheless reasoned that Johnson and Dimaya dealt with residual clauses, whereas the definition of CIMTs are “tethered to common law principles.” Martinez-de Ryan, at *2.

It is unclear what the Ninth Circuit means when it states that CIMTs are tethered to common law principles. The impermissible vagueness of CIMTs are evident in courts’ ongoing failure to establish a consistent framework to evaluate whether a crime involves ‘moral turpitude,’ and inconsistent outcomes when dealing with the same crimes. In Johnson, the court acknowledged that the failure of persistent efforts to establish a legal standard can provide evidence of vagueness. 135 S. Ct. at 2558 (citing United States v. L. Cohen Grocery Co., 255 U.S. 81, 91 (1921)). As applied to CIMTs, the persistent failure to delineate a clear analytical framework that apprises people of common intelligence, and indeed learned judges, of its meaning is a clear indication of unconstitutional vagueness.

Courts have attempted to define moral turpitude in varying degrees, typically with reliance on Black’s Law Dictionary, which currently defines the phrase as:

…shameful wickedness — so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people.

MORAL TURPITUDE, Black’s Law Dictionary (10th ed. 2014); see also, e.g., United States v. Smith, 420 F.2d 428, 431 (5th Cir. 1970). The Board of Immigration Appeals (BIA) has added that a CIMT is “per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994). The varying definitions of moral turpitude in case law are as vague as the phrase itself.

These open-ended definitions have led to inconsistent application by judges, where they must rely upon their own biases, or on precedent decisions where other judges have relied upon their own biases, to determine what is morally reprehensible. In his powerful dissent in DeGeorge, Justice Jackson declared that “uniformity and equal protection of the law can come only from a statutory definition of fairly stable and confined bounds,” not on the whims of judges. DeGeorge, at 242.  He similarly rejected the malum in se versus malum prohibitum distinction, stating that “this classification comes to us from common law, which in its early history freely blended religious conceptions of sin with legal conceptions of crimes.” Id. at 237. Even accepting the government’s contention in DeGeorge that these crimes ought to be “measured against the moral standards in contemporary society,” we would see uneven application throughout the country and overtime. Id. Justice Jackson concluded that “irrationality is inherent” when creating case law based on fluid morality, as opposed to finite statutory meaning. Id. at 239.

In future challenges to the CIMT provision, practitioners can point to various inconsistencies as evidence of arbitrary enforcement, and hence, vagueness. For example, some courts have treated 18 U.S.C. § 1001 (false statements) as a CIMT (see, e.g., Ghani v. Holder, 557 F.3d 836 (7th Cir. 2009)), and others have not (see, e.g., Hirsch v. Immigration & Naturalization Serv., 308 F.2d 562 (9th Cir. 1962)). Similarly, some courts have treated certain money laundering crimes as a CIMT (Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007), holding that the intentional use of monetary instruments to conceal or disguise proceeds of any crime was a CIMT), and others have not (Goldeshtein v. I.N.S., 8 F.3d 645 (9th Cir. 1993), holding that structuring financial transactions to avoid currency reporting was not a CIMT). Admittedly, the arbitrary and inconsistent enforcement argument is difficult to make when it comes to crimes involving fraud (see, e.g., Matter of Kochlani, 24 I&N Dec. 128 (BIA 2007), holding that trafficking of counterfeit good, even absence of an intent to defraud, is a CIMT; see also, Planes v. Holder, 652 F.3d 991, 997-98 (9th Cir. 2011), stating “the longstanding rule that crimes that have fraud as an element” are CIMTs), and in the case of Ms. Martinez-de Ryan, bribery of an official under 18 U.S.C. § 666(a)(2)(see also, Matter of V-, 4 I&N Dec. 100 (BIA 1950), holding that attempted bribery was a CIMT).

Practitioners can also point out that the INA includes specific criminal grounds for deportability and inadmissibility, including the failure to register as a sex offender, domestic violence, stalking, and child abuse, and defines what each of those crimes mean. Congress has failed to similarly define what is meant by moral turpitude, allowing courts to unevenly apply CIMT analyses, rendering some folks removable/inadmissible and others not, despite being found guilty of committing the same crimes. In Dimaya, Justice Gorsuch in his concurring opinion wrote that “[v]ague laws invite arbitrary power.… Today’s vague laws… can invite the exercise of arbitrary power… by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” 138 S. Ct. at 1223 (2018) (concurring in judgment). Without a precise definition of a CIMT, one can argue that such vagueness invites judges to make the law up according to their own biases, resulting in the erroneous removal of non-citizens.

The Ninth Circuit’s decision in Martinez-de Ryan v. Sessions is not the end of the road for finding a CIMT unconstitutionally vague. Although the Ninth Circuit followed a Supreme Court precedent in DeGeorge, Dimayaand Johnson have cast some doubt on its general reasoning. Specifically, in light of Dimaya and Johnson, one can argue that the vagueness of the CIMT definition has resulted in reliance upon judge’s “guesswork and intuition,” and has failed “to give ordinary people fair notice of the conduct it punishes,” resulting in arbitrary enforcement by judges. Dimaya at 1223 (citing to Johnson at 2557). Those who are unable to apply for relief because they have been found to have either been convicted of or have admitted to a CIMT must continue to litigate in other circuits until a CIMT is also rightfully found to be unconstitutionally vague.

 
(The author thanks Cyrus Mehta for his considerable assistance in writing this blog)

By: Bernard P. Wolfsdorf, ABIL Lawyer
Wolfsdorf Immigration Blog

​Mr. Charles Oppenheim, Chief of the Visa Control and Reporting Division within DOS, has indicated:

​By: Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, PM-602-0050.1,  that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS notes  that its officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Although it has always been possible for the USCIS to issue an NTA when an applicant is denied a benefit, it has generally not done so in the past for a number of sensible and practical reasons. Many applicants choose to leave the United States on their own upon the denial of the benefit, or delay their departure, if they legitimately seek to appeal the denial or seek reconsideration. It therefore makes no sense to further burden the already overburdened immigration courts with new cases, especially involving people who may already be departing on their own volition.

While David Isaacson’s  excellent blog “Another Brick in the (Virtual) Wall: Implications of USCIS’s Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present” gets into the implications behind the new policy, including its malicious intent, as “the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision,”  I highlight some of the ethical considerations for attorneys arising under the new NTA policy.

As denials of H-1B extension requests have been happening more frequently under the Trump administration, I will use the H-1B to illustrate some of the ethical conundrums that may arise. Routine requests that were previously approved for H-1B occupations such as systems analyst or financial analyst are now frequently being denied. The new policy exacerbates this problem by now requiring that an NTA be issued upon the denial of such a request and the prior H-1B status has expired.  Sure enough, the USCIS policy does not change any law. Prior to the issuance of the policy, attorneys representing an employer and an employee in a request for an extension of H-1B status were mindful of the consequences when an H-1B extension request was denied. The issuance of an NTA has always been factored in as a worst case scenario in the event of a denial.  But now this will become a new reality and no longer a theoretical possibility. Petitioners should consider filing extension requests on behalf of the beneficiary well in advance of the expiration date of the underlying status – the law allows one to so up to six months prior- and should also consider doing so via premium processing.  In the event that the extension request is denied, it will happen while the beneficiary is still in status thus obviating the NTA.

The H-1B worker is considered unlawfully present when the request for an H-1B extension is denied, and the prior H-1B status has already expired. The issuance of an NTA does not stop the accrual of unlawful presence, and it is now important to deal with unlawful presence in the context of a removal proceeding.  Any accrual of unlawful presence that exceeds 180 days will trigger a 3 year inadmissibility bar under INA 212(a)(9)(B)(i)(I) once the individual departs the United States prior to the commencement of removal proceedings. If this individual accrues one or more than one year of unlawful presence and then departs the United States, she or she will be inadmissible for 10 years. Attorneys have been mindful of this eventuality especially when the employer chooses to appeal the decision or file a motion to reopen or reconsider. In the event that the decision is not rendered prior to the accrual of 180 days of unlawful presence, and the foreign national still remains in the United States beyond 180 days and then departs, in the event of an unfavorable decision, he or she will be precluded from reentering the United States for a 3 year period.

A business immigration attorney who may understandably not be knowledgeable about the ins and outs of a removal proceeding will need to come up to speed. After all, one of the cardinal ethical obligations of an attorney is to competently represent the client. Under ABA Model Rule 1.1 “a lawyer shall provide competent representation to a client.” The model rule goes on to state, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [While this blog will refer to ABA Model Rules,  attorneys must refer to their own state bar rules of ethical conduct that are analogous to the ABA Model Rules].  One way for an attorney to become competent is to associate with a lawyer who is competent in the removal matters. Alternatively, the lawyer who chooses to restrict her expertise to business immigration, thus limiting the scope of representation under ABA Model Rule 1.2(c), may refer the matter out to another competent lawyer who knows removal proceedings when the NTA is issued.

Once removal proceedings have been instituted, the foreign national may no longer leave even if he wants to. Moreover, the first master calendar hearing is scheduled after several weeks or months.  Indeed, it is becoming more obvious that the goal of this Trump Administration is to harass non-citizens in light of yet another more recent policy that gives authority to USCIS officials to deny applications based on lack of “sufficient initial evidence” without a request for evidence or notice of intent to deny. This could be viewed subjectively resulting in more denials followed by NTAs. If the foreign national leaves in the middle of the proceeding, it would trigger a new ground of inadmissibility under INA 212(a)(6)(B), which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”

If the foreign national remains in the US and receives a removal order, it would trigger a ten year bar to inadmissibility under INA 212(a)(9)(A) after the individual leaves pursuant to this order. It may be worthwhile for the attorney to stave off a removal order, and instead try to get the Immigration Judge (IJ) to issue a voluntary departure order. If voluntary departure is issued prior to the accrual of unlawful presence of one year or more, then under INA 212(a)(9)(B)(i)(I), the 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence. If the voluntary departure order is not issued prior to the 1 year period then the ten-year bar for one year of unlawful presence under INA 212(a)(9)(B)(i)(II) would apply. Due to immense backlogs in the immigration courts, there is a good likelihood that an IJ may not be able to get to the matter timely and could end up issuing a voluntary departure order after the accrual of one year of unlawful presence. Thus, an attorney representing such an individual in removal must creatively strategize to ensure that a voluntary departure order is rendered before the 1 year mark.

While the lawyer has been used to contesting the denial of an H-1B, it now has to also be done in the context of a removal proceeding. An IJ has no jurisdiction to hear an H-1B petition denial in a removal proceeding, and the denial must still be appealed to the AAO or through a motion to reopen or reconsider or potentially even challenged in federal court. While the denial is being appealed, it is important to try to seek a continuances in the event of another meritorious pending benefits application under Matter of Hashmi and Matter of Rajah.  In the event that the denial is overturned, and the foreign national is still in removal proceedings, one can seek to terminate removal proceedings. Under Matter of Castro-Tum recently decided by AG Sessions, an IJ can no longer administratively close a case thus overruling Matter of Avetisyan. However, it may still be possible to terminate based on a joint motion with the government’s attorney, but the ability to for the government attorney to exercise such discretion has also been limited.  Note that Attorney General Sessions is also seeking to overturn Hashmi and Rajah, but until that happens one can seek a continuance for good cause based on a pending meritorious application at the USCIS.    If the foreign national has already left, presumably under a voluntary departure order and has not triggered any ground of inadmissibility, he or she may be able to return if the denial is overturned, or if the appeal is not pursued or is unsuccessful, it may be prudent to re-file the H-1B petition, and have the individual return on a visa pursuant to the approval of the new petition.

All this raises another important ethical consideration – conflicts of interest. Most immigration attorneys represent both the employer and the employee as there is always a common goal, which is to obtain the visa benefit.  Still, there is always potential for a conflict of interest in the event that the employer wishes to terminate the employment or the employee wishes to quit and seek greener pastures elsewhere.  Under ABA Model Rule 1.7(b), notwithstanding the possibility of a conflict of interest, a lawyer may represent both clients if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the clients have provided informed consent, confirmed in writing. The possibility of the foreign national being placed in removal proceedings heightens the potential for a conflict of interest. Will the employer client still be willing to hold out the job offer for the employee during a long drawn out removal hearing? In the event that the employer pulls out, then will the attorney be able to continue to represent the employee who is in removal proceedings or would this matter need to be referred out to another attorney and thus limit the scope of the representation under ABA Model Rule 1.2(c)? All these considerations need to be discussed preferably in advance between the employer and the employee. It may be possible to craft conflict waivers and get informed consent that would allow the attorney to deal with all these contingencies, including representation in removal proceedings.

The very issuance of the NTA will cause other problems. At the denial of the H-1B request, the USCIS could potentially serve the NTA on the attorney who is the attorney of record on the notice of entry of appearance that was submitted with the H-1B request. If the attorney represents both the employer and the foreign national employee in the H-1B matter, the attorney must at least notify the employee, although the attorney has no obligation to appear at the master calendar hearing. The attorney may need to explain what the master calendar hearing is, though.  This is akin to being counsel in a lower court and receiving an appealable unfavorable decision: the existing counsel may not have to do the appeal, but would have to advise the client of the possibility so they can retain someone else to do the appeal if they want. In a case where the attorney only represents the employer, but receives the NTA on behalf of the foreign national employee, it would still be prudent to inform the employee.  Of course, if the NTA is served on an attorney who has not yet made an appearance on behalf of the respondent in immigration court and not the respondent, that would be a basis to terminate a removal proceeding or to vacate an in absentia order. However, the attorney handling the H-1B matter must still advise the beneficiary upon receipt of an NTA and forward the NTA to the beneficiary and advise her to seek independent counsel if the H-1B attorney will not represent the beneficiary in the removal proceeding or may be conflicted from doing so.

In the event that the H-1B worker has already departed the United States prior to the issuance of the NTA, it can be clearly argued that jurisdiction does not vest when an NTA is issued when the foreign national is not present in the United States. INA 240(c)(3)(a) provides that “the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” INA  237(a) refers to “[a]ny alien (including an alien crewman) in and admitted to the United States may be removed.” Since the former H-1B worker is not in, and admitted to, the United States, she cannot fall under the literal text of the‎ statute and, thus, is not deportable.

It remains to be seen whether the USCIS will be able to fully implement the NTA policy or whether this is just a wish list of the Trump administration. If the new policy is implemented as intended, an already overburdened immigration court system will face even further backlogs. Attorneys must be aware of the various heightened ethical and strategic considerations in representing a client who has received an NTA after a denial and this blog is an attempt to provide a preliminary overview.

By: Angelo A. Paparelli, Past ABIL President
Nation of Immigrators

IWPA also requires employers served with an I-9 NOI to give notice in writing within 72 hours to each current employee at the worksite and any authorized labor union that an I-9 inspection has begun, and notify any affected employee or authorized union rep – again within 72 hours of receiving any subsequent I-9 related federal notices –  “of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 . . . forms or other employment records” (the AB 450 Notice requirements).

Senate Bill (SB) 54 – enacted October 05, 2017, and popularly titled the “California Sanctuary State Law”  – is a comprehensive statute which, among other things, prohibits California law enforcement authorities from sharing a wide variety of information on persons in state custody, including the release date of a detained noncitizen, and from transferring the individual to federal authorities unless he or she has been convicted of certain crimes or unless authorized by a judicial warrant or a judicial probable-cause determination.

Predictably, U.S. Attorney General Jefferson Beauregard Sessions III threw down the gauntlet.  The U.S. Justice Department filed a federal complaint in the Eastern District of California, requested a preliminary injunction, offered supporting declarations of senior officials in the State Department (Carl S. Risch) and DHS (Thomas D. Homan, Todd Hoffman and Rodney S. Scott).  DOJ attorneys argued to Federal Judge John A. Mendez that these new California laws unconstitutionally usurp federal supremacy and sovereignty over control of the nation’s borders. Not shrinking from the fight, California AG Becerra filed a formal opposition to the request for preliminary injunction, a motion to dismiss the suit, and a legal brief.

Ironically, on Independence Day, Judge Mendez issued his momentous, carefully considered decision (a 60-page whopper), ruling that:

​Sounding a note of somber exasperation, Judge Mendez implored the two political branches to act:

​U.S. v. California, Judge Mendez’s case, will continue to final judgment and injunctive orders.  Meantime, however, the federal/California square-off over immigration enforcement is only in the early rounds.  California has just shot additional volleys.

​Although Congress apparently has no stomach for comprehensive immigration reform, despite the overwhelming popular view that reform is necessary, the judicial battle between the world’s first and fifth largest economies continues unabated.