Given its recently politicized, colloquial nickname of “the Einstein Visa,” attaining a green card through the EB-1 Extraordinary Ability classification might seem like an impossible dream for anybody working outside theoretical physics. Although the criteria for qualifying are tied to an uncommon level of ability, those abilities need not be in quantum relativity studies or particle physics. In fact, there’s a corner of the EB-1 program specifically aimed at providing a path for talented artists and performers. In this post we’ll dispel myths, reveal opportunities, and offer some strategies to set yourself up for success when applying for an EB-1 visa based on Extraordinary Ability in the arts. Because although it’s an honor to be nominated, the real goal is to take home the prize. Which brings us to one of the primary misconceptions about EB-1 immigration for artists and performers: that only winners of major industry awards stand a chance at securing this classification.

Though having an Oscar on the mantel certainly doesn’t hurt, receipt of a major international award is just one possible qualifying accomplishment. In fact, there are ten additional criteriaused to evaluate eligibility for EB-1 Extraordinary Ability classification in the arts. Of foremost consideration are the criteria related to the expression and presentation of your ability as an artist. Specifically, these criteria ask for evidence of:

• Original artistic contributions of major significance; and
• Performance of a leading or critical role for distinguished organizations.

Either (or both) of these criteria can form the foundation of a successful petition. In our experience, there are a variety of ways to demonstrate the major significance of an artist’s work that also serve to satisfy one or several of the more quantitative criteria associated with the classification. The EB-1 practice team at Klasko Immigration takes an approach that leverages both your original work itself and the impact of your accomplishments to craft a petition that not only addresses the letter of the law, but also paints a persuasive picture of your merit as an artist—a subjective value that is difficult but necessary to define.

Below, we’ve outlined the factors we look for when evaluating an artist’s viability for EB-1 classification and provided some tips for long-term planning and preparation if you’re an artist or performer aiming to pursue this route to permanent residency.

Display of the individual’s work in exhibitions.
Presenting your work to an audience is a straightforward way to show that it has been deemed significant by a venue or production organization in your field. Participation in curated or juried exhibitions may meet this criterion. Make sure to save any playbills, advertisements, and promotional materials related to your work.

Published material about the individual in the media.
Evidence of the discussion of your work is one of the most effective ways to both satisfy a quantitative criterion and support the qualitative assertion that you are acclaimed in your field. The more attention received, the more intuitive it is to label your work as significant. Any published critical review can satisfy this criterion, as can interviews, feature articles, and other media coverage. It’s important to note that the published material need not necessarily mention you by name. If the troupe, exhibition, or company of which you are a part is discussed, that can be applied to satisfying this criterion, doubling as confirmation that you performed as a critical member of a distinguished organization. Try setting up a Google Alert to ensure you don’t miss any coverage of your work published online. Maintaining an active ‘scrapbook’ of your clippings is an excellent way of positioning yourself for success when the time comes to prepare an EB-1 petition.

Receipt of lesser nationally- or internationally-recognized prizes in the field.
Grammys, Tonys, and Oscars aren’t the only valid markers of achievement in the arts. Any distinction given by a governing body in your field potentially makes for strong evidence that your abilities are recognized as extraordinary. High placement in a skills-based competition that draws a national pool of competitors can also satisfy this criterion, but it’s important in either case that you thoroughly document your receipt of such honors and any official criteria by which they are judged.

Prior experience judging the work of others.
It’s an easy line to draw that, if you’ve been asked to assess the abilities of others, you must be recognized as having a certain expertise of your own. Showing that you’ve served on a jury or judging panel, perhaps in the context of an audition, exhibition, or competition, is one way to meet this criterion. Opportunities to serve in such a capacity need not be invited—you can proactively seek them out on your own. Regional qualifying rounds of national arts competitions, for example, frequently require the services of professionals in the field. Similarly, trade publications in your field may allot space for commentary pieces from working artists. Having such work published conveniently fulfills another regulatory criterion…

Authorship of articles in mainstream or trade publications.
Musings on a personal blog don’t quite meet the standard, but if you’ve ever written professionally about subjects in your field for a peer-reviewed or edited publication, such evidence bolsters the assertion that you’re considered an authoritative voice your field.

Membership in associations requiring outstanding achievement.
This criterion can be met in a variety of ways. For example, many disciplines in the arts have honors guilds to which you can apply for membership based on accomplishment. If you’re a performer, employment by a nationally-recognized symphony, dance company, or playhouse could be considered inclusion in an organization that requires prior distinction or demonstration of ability. Ultimately, any organization to which you have been granted membership based on your experience, achievements, or skills can be presented as both satisfying this criterion and confirming recognition of extraordinary ability.

Evidence of commercial successes in the performing arts.
Ticket sales, royalty checks, chart standings—any documents showing that your work has been financially successful satisfy a valuable criterion while also supporting the significance of your work.

Getting an EB-1 in the arts is not an easy feat. But you don’t need a star on the Hollywood Walk of Fame to merit the classification. There’s no shortage of ways to show that you deserve a standing ovation.

Click here for a case study summary of a successful EB-1 arts petition prepared by our team.

By Cyrus D. Mehta, ABIL Lawyer and Eleyteria Diakopoulos
​The Insightful Immigration Blog

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As we have blogged about extensively in the past, President Trump’s “Buy American and Hire American” Executive Order No. 13788 has had the most negative impact on the H-1B visa program. Following this pattern, the recent trend by the U.S. Citizenship and Immigration Services (USCIS) heading into the Fiscal Year (FY) 2019 H-1B Cap filing season has been to rely on the Department of Labor’s (DOL) Occupational Outlook Handbook (OOH) to arbitrarily deny H-1B visa petitions for Information Technology (IT) positions, such as computer systems analysts. In RFEs and denial decisions, USCIS states that they recognize the OOH as an “authoritative source on the duties and educational requirements” of a variety of occupations, and has used the OOH’s general statements on such requirements to deny H-1B petitions for failing to establish that a bachelor’s degree in a specific specialty is the normal minimum requirement for entry into the position, despite statements in the OOH to the contrary. In addition, USCIS recently put out a statement entitled Combatting Fraud and Abuse in the H-1B Visa Programexpressing an intent to continue to target H-1B dependent employers in the IT industry who assign H-1B workers at client sites.

One should expect the same sort of H-1B carnage like last year. No matter how well one responds to the request for evidence or argues the case before the Administrative Appeals Office (AAO), the outcome could still be a preordained denial – as if Trump’s wall is already up. The key issue is whether there may be a different and effective strategy for overcoming next year’s H-1B cap denials, such as suing the USCIS in federal court.

USCIS has typically based these types of denials on claims that the proffered positions fail to qualify under any of the specialty occupation criteria listed in 8 CFR § 214.2(h)(4)(iii)(A). The USCIS has also challenged H-1Bs based on allegedly inappropriate wage levels, but the main concern is the USCIS entirely reading out acknowledged specialty occupations from the law.

As background, in order for a petitioner to hire a foreign worker in a specialty occupation under the H-1B visa program, the proffered position must meet the regulatory definition as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.” 8 CFR § 214.2(h)(4)(ii). This definition is met by satisfying at least one of the following criteria:

1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR § 214.2(h)(4)(iii)(A) (emphasis added).

For a petition that has a proffered position of computer systems analyst, for example, USCIS has been selective in its reading of the OOH in order to justify a denial. A denial often focuses on the following language:

A bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming.

(…)

Although many computer systems analysts have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.

Petitioners and their attorneys should closely review the OOH themselves rather than rely on the few sections USCIS provides in its denial. If attorneys do this, they will realize that USCIS chooses to leave out an important section of the educational requirements that “[m]ost computer systems analysts have a bachelor’s degree in a computer-related field.” (emphasis added). USCIS ignores this language in order to support its faulty determination that a bachelor’s degree in a specific specialty, or its equivalent, is not normally the minimum requirement for the position and that the degree requirement is not common to the industry under the first and second criteria of 8 CFR §214.2(h)(4)(iii)(A). However, where the regulation uses the words “normally” and “common” it would be erroneous to determine that a proffered position is not a specialty occupation merely because not all employers require a bachelor’s degree. If most employers require a bachelor’s degree, this should be sufficient to meet the statutory definition of a specialty occupation. If a petitioner receives a denial of an H-1B petition based on this same reasoning, which is contrary to the law, mounting a challenge in federal court may be worth considering. Petitioners are gun shy about suing the government in federal court out of fear that the government may retaliate against them on other cases. That may not be necessarily so as one has anecdotally heard that the USCIS is terrified of litigation as it creates more work and could also result in a precedent that may be unfavorable for the government’s position in future cases. This is not surprising, however, given the repeated failure of USCIS to appropriately interpret the law in accordance with the INA. In reality, due to the quota system on which USCIS operates, the vast majority of USCIS officials do not care and do not have time to retaliate against litigious petitioners. Indeed, USCIS may pay more attention to cases that may potentially be litigated and give the benefit of doubt to the petitioner over a close call.

Recently, attorney Michael E. Piston, a fearless litigator, on the behalf of petitioner Delta Information Systems, bypassed the AAO and filed a complaint in the U.S. District Court for the Central District of California with this argument pursuant to §10b of the Administrative Procedure Act (APA), 5 U.S.C. § 702. In the complaint, plaintiffs Delta Information Systems, Inc. (Delta) and Srinivasa Narasimhalu allege that the Director of the California Service Center (CSC) of the USCIS erred in denying Delta’s Form I-129, Petition for Nonimmigrant Worker as a temporary worker in a specialty occupation (H-1B) on behalf of Mr. Narasimhalu and in denying Mr. Narasimhalu’s application to extend his H-1B nonimmigrant status in the United States. Plaintiffs ask the court to hold unlawful and set aside these decisions of the CSC Director that were arbitrary, capricious, and not in accordance with the law. Mr. Narasimhalu is a native of India who Delta lawfully employed as a computer professional from November 1, 2011 to February 27, 2018 with the authorization of USCIS. His education and experience has been evaluated as the equivalent of a Bachelor’s Degree in Computer Information Systems.

The plaintiffs first argue that USCIS erroneously determined that no employer-employee relationship existed between Delta and Mr. Narasimhalu. In fact, Mr. Narasimhalu has been an employee of Delta, with USCIS authorization, for over six years, and it is undisputed that the sole right to control Mr. Narasimhalu’s work activities belongs to Delta. This ground is frequently invoked by the USCIS when the H-1B worker is placed at a third party site.  In its decision, USCIS concedes that for purposes of H-1B visa classification, the terms “employer,” “employed,” “employment,” or “employer-employee relationship” are undefined. The complaint notes that because these terms are undefined by the agency, it is necessary to look to the common law definition. Citing to Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003) and Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992), the complaint explains that in determining whether one is an employee, the consideration is the hiring party’s right to control. Citing to Chin v. United States, 57 F.3d 722, 725 (9th Cir. 1995), the complaint argues that the decision was not in accordance with the law to the extent that it was premised upon the assertion that Delta had to actually direct or control the work of Mr. Narasimhalu rather than merely having the right to control his work. In fact, USCIS in its decision observes that a “United States employer” is defined as one who “has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee …” (emphasis added). Consistent with Clackamas, Darden, and Chin, the fact that an employer “may” control the work of an employee, instead of “must,” proves that it is only the right to control rather than the actual exercise of the right that is determinative of an employer-employee relationship. In Mr. Narasimhalu’s case, his contract with Delta expressly provides that Delta has the complete right to control his work. Additionally, the entity controlling the location where Mr. Narasimhalu will perform his work, Nabco Entrances, Inc., disaffirms having any right to control Mr. Narasimhalu’s work and fully corroborates that Delta has the complete right to control Mr. Narasimhalu’s work and will control his work. Thus, it was arbitrary and capricious to decide that Delta lacks an employer-employee relationship with Mr. Narasimhalu.

The plaintiffs also argue that USCIS erred in concluding that the job of computer systems analyst was not a specialty occupation where it is undisputed that most computer systems analysts have a bachelor’s degree in a computer related field. As a reminder, 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) provides that if a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position, then that position qualifies as a specialty occupation. Citing to Next Generation Tech., Inc. v. Johnson, No. 15 cv 5663 (DF), 2017 U.S. Dist. LEXIS 165531, at *30-31 (S.D.N.Y. Sep. 29, 2017), the complaint emphasizes that if “most” computer systems analysts have a bachelor’s degree in the appropriate field, as is provided in the OOH, then it follows that the degree is “normally” required for the position, and thus, the position qualifies as a specialty occupation. Furthermore, in its decision, USCIS pointed out, as a basis for its denial, that “computer system[s] analysts have degrees in a wide range of unrelated degrees including computer related degrees, business degrees and liberal arts degrees.” Citing to (Redacted Decision) 2012 WL 4713226 (AAO February 08, 2012), the complaint notes that consistent with the NextGeneration Tech reasoning, the AAO has explained in at least 2,415 unpublished decisions that “USCIS regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public accountants, college professors, and other such occupations.” For computer scientists, for example, the OOH provides that “[m]ost computer and information research scientists need a master’s degree in computer science or a related subject, such as computer engineering.” (emphasis added). This illustrates that, provided the specialties are closely related, a minimum of a bachelor’s degree or higher in more than one specialty satisfies the “degree in the specific specialty” requirement of INA § 214(i)(1)(8). In reversing the CSC’s denial of a petition, a U.S. District Court said that the “premise that the title of a field of study controls ignores the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors.” Residential Fin. Corp. v. United States Citizenship & Immigration Servs., 839 F. Supp. 2d 985, 996 (S.D. Ohio 2012). The complaint makes clear that both USCIS and the courts have repeatedly held that where most employers in an occupation require a bachelor’s degree in a narrow range of majors, or a related major, or its equivalent, it is a specialty occupation. Since it is undisputed that most computer systems analysts hold degrees in a computer related area, USCIS did not act in accordance with the law in deciding the position not to be a specialty occupation.

Attorneys who also face this obstacle should similarly challenge an H-1B denial directly in federal court in order to avoid wasting any time. Under Darby v. Cisneros, 509 U.S. 137 (1993) it is permissible to bypass the AAO and challenge the denial in federal court where exhaustion of administrative remedies is not required by law. Some examples of recent successful litigation include Next Generation Tech., Inc. v. Johnson, No. 15 cv 5663 (DF), 2017 U.S. Dist. LEXIS 165531 (S.D.N.Y. Sep. 29, 2017) and Raj & Co. v. U.S. Citizenship & Immigration Servs., 85 F. Supp. 3d 1241 (2015). In Next Generation Tech., the court failed to see a rational connection between the evidence in the OOH stating that “most computer programmers have a bachelor’s degree” and USCIS’s conclusion that “computer programmers are not normally required to have a bachelor’s degree.” 2017 U.S. Dist. LEXIS 165531 at *20-21.The Court found that USCIS did not present a fair reading of the OOH and failed to satisfactorily explain its determination that a computer programmer was not a specialty occupation. Id. at *21-22. In Raj & Co., the Court found that USCIS abused its discretion in determining that a position for a market research analyst did not come within the first criterion of the regulation of a specialty occupation. 85 F. Supp. 3d at 1246. The Court reasoned that USCIS impermissibly narrowed the plain language of the statute when it concluded that a bachelor’s degree being typical did not require the degree as a minimum for entry into the occupation. Id. at 1247. Even if the USCIS invokes the lack of an employer-employee relationship as a ground for denial when an H-1B worker is assigned to a client site, one should point out that the goal of USCIS’s latest policy memo concerning third party relationships is to exercise more scrutiny on contractual arrangements with third parties rather than deny the legitimacy of such an arrangement. The USCIS in its policy memo acknowledges that such arrangements may be a legitimate and frequently used business model under the H-1B visa program. These cases show that it is unjustified to deny highly qualified foreigners the opportunity to work in specialty occupations in the United States based on a narrowed reading of the OOH. Hopefully, with continued pushback, the federal courts will put an end to such arbitrary denials.

Another reason to sue is that advocacy is no longer effective with the Trump administration. Although there are good policy arguments to approve legitimate H-1B visa petitions in a full employment economy as it makes U.S. employers more competitive, resulting in further jobs, they make no difference if high level immigration officials are driven by another agenda based on white nationalism and xenophobia. The same officials who spend their time conjuring up restrictive policies for purposes of denying H-1B petitions will need to focus their efforts in defending litigation within an agency with a finite budget. Moreover, challenging a denial under the APA is not as time consuming as it seems as there is generally no discovery, depositions, or interrogatories, although there may be some exceptions. It requires drafting a complaint, researching and writing a motion for summary judgment, reviewing and opposing the government’s motion for summary judgment and drafting a reply brief. Business immigration lawyers and their clients have generally refrained from suing. This is understandable as litigation is time consuming and a federal court may still give deference to the government’s reasoning behind a denial. We can try to overcome denials by responding to RFEs and appealing to the AAO. But after that, if you still want to show that you are right and the government has gotten it completely wrong, then it may be time to sue the government. Federal judges may have a different reaction than the typical USCIS adjudicator. They may be shocked and viscerally angry at the way the USCIS is interpreting the law and may just about reverse the denial!

Update: After the blog was posted, it was noticed that the complaint in Delta Information Systems, Inc. v. USCIS had been voluntarily dismissed. Michael Piston has informed the authors that a new complaint will be refiled with the beneficiary as the plaintiff.

Eleyteria Diakopoulos  is a student at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC. The authors also thank Sophia Genovese and David Isaacson for their assistance.

By: Feige M. Grundman, Senior Associate of H. Ronald Klasko, ABIL Lawyer
Klasko Immigration Law Partners Blog

The EB-1 immigrant visa has generally been a challenging category for physicians, as the regulatory criteria for those in the sciences prioritizes academic research over the practice of medicine. However, this should not deter qualified physicians from applying for an EB-1 visa. The EB-1 practice team here at Klasko has been quite successful in obtaining immigrant classification for physicians in the EB-1 program’s Extraordinary Ability and Outstanding Researcher categories, having honed an approach that uses the classification’s comparable evidence clause to define the parameters of “extraordinary” and “outstanding” in a way that is tailored to each applicant’s individual situation. 
The good news is that you do not need to have developed an artificial heart or otherwise be a household name to obtain an EB-1 visa as a physician. You do, however, need to prove that your accomplishments are rare or unique in some way, and that they have furthered the area of medicine in which you practice. Even meeting the regulatory criteria to the letter does not guarantee approval of your petition. A successful petition must withstand the subjective assessment of the adjudicator’s “Overall Merits” analysis. This leaves a lot of room for taking a more creative, individually-crafted approach.

In our experience, physicians whose employers are willing to sponsor an Outstanding Researcher petition have a slight edge over those who take the self-sponsored Extraordinary Ability path, if only because the Outstanding Researcher classification has the formal sponsorship of an employer. However, there is no need to be discouraged if you don’t have employer sponsorship. Your home institution can still be a valuable ally, and most are happy to provide letters of reference that address vital EB-1 criteria even if they are not sponsoring the petition.

If you’re a physician or clinical researcher planning to pursue permanent residency through the EB-1 program, it’s important to start thinking creatively about your accomplishments and strengths and to begin gathering evidence in support of your petition. Below are some steps that you can actively take to bolster your chances of getting an approved EB-1 petition:

1. Document your influence on clinical practice. Take note of the ways in which you have advanced practice in your field, such as pioneering a medical procedure, reducing adverse events, proving that a certain procedure is under-used or over-used in a given population, or improving access to care. Your documentary evidence may include published articles, case reports, and presentations at professional gatherings. Establish professional relationships with people who are using your work to inform their own practice or research, as these professionals may make for excellent petition referees, as they can speak to the impact of your work.
2. Document any evidence-based recommendations or guidelines you’ve contributed to the field. If your influence on clinical practice has been incorporated into a formal guideline or published practice recommendation, that is a compelling piece of evidence. You do not, however, need to have influenced national practice guidelines; proving that you contributed an evidence-based recommendation to your hospital or health system, and that the recommendation is in current use, is also compelling.
3. Document the number of procedures you have performed, especially those that are challenging or rare. In addition to providing these numbers on their own, illustrate the ways in which your skills are unique and in demand in the United States or the world, backing it up with published reports or other evidence.
4. Demonstrate the ways in which you specialize in complicated or rare cases. Many physicians do not perform certain procedures but specialize in diagnosing, assessing, and managing patients with complex or rare diseases. One effective way to create documentation of your accomplishments in this area is to publish case studies.
5. Give presentations at other institutions detailing any original approaches to diagnosis or treatment you may have developed and implemented. Perhaps you’ve developed a novel or uncommon diagnostic methodology that you plan to publish. In the interim, you may want to present your methodology to the field. Giving presentations on your work at outside institutions, with the aim of educating other physicians, is an excellent opportunity to both expand your influence on clinical practice and raise your profile in the field.
6. Seek out opportunities to judge the work of others. Researchers generally provide evidence of peer review of manuscripts for scholarly journals to meet the ‘judge of the work of others’ EB-1 criterion, but physicians have room to be a little more creative. In addition to reviewing manuscripts, physicians may judge the work of others through grand rounds, through the assessment involved in teaching continuing medical education (CME) courses to peers, by serving on hospital advisory and quality assurance boards, and by training other health care professionals in a skill and evaluating the results.
7. Document the ways in which a fellowship you received or the board certification you were granted is considered prestigious. The fellowship may be prestigious because it is highly competitive or because it is at a renowned institution. A given board certification may require more experience or skill than others.

EB-1 petitions require a true partnership between you and your legal team. At Klasko, we use an in-depth client input process to gain a thorough understanding of you and your field so that we can tell your story in plain and persuasive language. For practicing physicians, preparing a strong EB-1 petition requires much more than checking off boxes on a list. A petition that clearly demonstrates the ways in which your accomplishments have had a measurable impact on your field as a whole—and made a personal difference to the patients you serve—has the best chance of success.
Click here for a case study summary of a successful EB-1 physician petition prepared by our team.

By: Bernard P. Wolfsdorf, ABIL Lawyer and Partner Joseph Barnett
Wolfsdorf Immigration Blog

There’s little doubt that long visa backlogs affect the demand of potential EB-5 investors and the supply of EB-5 capital to U.S. businesses.  The defeated “EB-5 Reform Act” didn’t address this important issue, which should be central to any meaningful changes to the EB-5 program, though they don’t appear in proposed regulatory reforms either.  Failure to provide relief threatens the continued viability of the EB-5 program.  Here are five things to know about the EB-5 visa backlogs.

1. Visa Bulletin Updates Every Month. Every month, the U.S. Department of State (“DOS”) releases a Visa Bulletin that indicates when immigrant visa applicants, based on the priority date listed in a Form I-526 approval notice, should be notified to assemble and submit required documentation to the National Visa Center. The Visa Bulletin for each month is usually released during the second week of the preceding month.

NOTE:    Unless the EB-5 Regional Center program continues to be authorized by Congress – it is currently authorized through September 30, 2018 – DOS is unable to issue immigrant visas to EB-5 investors who invested through regional centers, which is why the April 2018 Visa Bulletin indicates “unavailable” for the I5 and R5 categories.  However, this visa bulletin also states: “If there is legislative action extending them for FY-2018, the final action dates would immediately become “Current” for April for all countries except China-mainland born, which would be subject to a July 22, 2014 date.”

2. EB-5 Visa Backlog for Chinese Investors. We’ve written extensively on this, including the causes and some solutions.  The April 2018 Visa Bulletin indicates that only China-mainland born nationals who filed a Form I-526 before July 22, 2014 (the current “Final Action Date”) may move forward with the immigrant visa process.  This date – July 22, 2014 – has been the Final Action Date since October 2017.  For the thousands of China-mainland born nationals who filed after this date, keeping up with the monthly Visa Bulletin is critical.

Perhaps most troubling – and least understood – is that the Chinese Student Protection Act of 1992 reduces the number of EB-5 visas allocated to China-mainland born nationals by 700.  In effect, because a “per-country” limitation has been imposed for Chinese EB-5, this reduces the number of visas allocated to China-mainland born nationals at the beginning of each fiscal year to -4.  Only additional EB-5 visas unused by other countries in each fiscal year allow DOS to issue immigrant visas to EB-5 investors and their derivative beneficiaries.  As EB-5 from the rest of the world (“ROW”) grows, the number of immigrant visas issued to Chinese EB-5 families will decrease.

3. EB-5 Visa Backlog for Vietnamese Investors. Earlier this month, the U.S. Consulate in Ho Chi Minh City, Vietnam caused a small scare when it reported it would stop issuing immigrant visas to EB-5 investors until the Regional Center program was extended; for the reason stated in #1 above, this was expected.  The bigger issue is that demand for EB-5 in Vietnam has become so large that a Final Action Date will soon be imposed.  In January 2018, we blogged about this possibility, and the April 2018 Visa Bulletin confirms: “The oversubscription of this category will definitely occur for May.”  We anticipate this Final Action Date in May 2018 to be the same as it is for China – July 22, 2014.   In October 2018, when a new allotment of EB-5 visas are available, a new Final Action Date will be imposed, which we anticipate being at the end of 2015.  We should be hearing more from DOS on this in August 2018.

4.Backlogs Between Countries and Priority Dates. When Final Action Dates have been imposed on multiple countries (e.g., China and Vietnam), INA § 202 requires any unused visa numbers to be allocated in order of priority date, regardless of country of origin.  This means that DOS must first “clear out” the Chinese EB-5 backlog and issue thousands of immigrant visas to China-mainland EB-5 investors who filed Form I-526 petitions in the second half of 2014 and prior to September 30, 2015 prior to issuing immigrant visas to Vietnamese investors who filed Form I-526 petitions more recently.  The same would be true for nationals of any other country where a Final Action Date for the EB-5 category is imposed.

5. EB-5 Reforms. With the EB-5 Regional Center program now authorized to September 30, 2018, it is an appropriate time for stakeholders to educate Congress about this serious problem and to push for solutions to clear the EB-5 visa backlog and maintain demand for a viable and vibrant EB-5 Program.   It is time to bring the EB-5 Program into the 21st century and create reasonable immigration levels for EB-5 investors in a consistent, predictable manner that match our country’s immigration and economic priorities.

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

Attorney General Jeff Sessions has yet again referred an immigration case to himself for review in Matter of L-A-B-R-et al, 27 I&N Dec. 245 (AG 2018). This time, AG Sessions asks:

An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing an Immigration Judge to “grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application”). In these cases, Immigration Judges granted continuances to provide time for respondents to seek adjudications of collateral matters from other authorities. Under what circumstances does “good cause” exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?

As noted, 8 C.F.R. § 1003.29 empowers Immigration Judges (IJs) to grant motions for continuance “for good caution shown.” 8 C.F.R. § 1240.6, by contrast, allows IJs to grant reasonable adjournments either at their discretion, or “for good cause” upon request by one of the parties. Typically, these motions are filed by either the Respondent or the Department of Homeland Security (DHS) for a number of reasons. For example, the Respondent may motion for a continuance when they are awaiting adjudication of a case outside of Immigration Court, such as a pending I-130 or I-140 petition with USCIS or even an outside criminal or family law case that has bearing on the removal proceedings. Similarly, the government attorney for DHS may motion for a continuance when the attorney has an unexpected emergency, time conflict with the hearing date, or simply needs more time to prepare.

The BIA has sensibly addressed motions for continuance in several cases authorizing IJs to grant them when there is when there was a pending immigrant petition with the USCIS. In Matter of Hashimi, 24 I&N Dec. 785 (BIA 2009), for example, the IJ granted the respondent four continuances on his removal proceedings to allow for USCIS to adjudicate his family-based immigrant visa petition. The IJ denied the respondent’s fifth motion to continue because he was expected to meet the Department of Justice’s “case completion goals,” which required completing cases within a reasonable period of time. The Third Circuit determined that the IJ’s denial based on case-completion goals was arbitrary and an abuse of discretion. On remand, the BIA discussed relevant factors when “determining whether respondent should be allowed to continue ongoing removal proceedings pending the final adjudication of an I-130” filed concurrently with an adjustment of status application, given the conflicting needs of finality of removal proceedings and allowing the opportunity for respondent to apply for relief. Citing to Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), the BIA stated that although the IJ should exercise favorable discretion when there is prima facie eligibility for a visa petition, this does not require that a continuance be granted in every case. The BIA held that in determining whether to continue proceedings where there is a pending visa petition, the IJ should consider a variety of factors, including, but not limited to: (1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors. The focus is the apparent ultimate likelihood of success on the adjustment application. The IJ needs some basis to examine the viability of the underlying visa petition, the respondent’s statutory eligibility for adjustment, and the merits of the adjustment application. This may require the respondent to submit evidence, such as the visa petition, the adjustment application, any prior visa petitions denials, and any other supporting documentation. The BIA sustained the respondent’s appeal and remanded the record to the Immigration Judge to consider the factors and determine whether a continuance was warranted.

In Matter of Rajah, 25 I&N Dec. 127 (BIA 2009), the respondent was placed in removal proceedings after his employer filed for labor certification on his behalf. Over the period of 18 months, the respondent was granted 10 continuances for a variety of reasons, including to obtain counsel and prepare the case and to determine the status of the labor certification. The IJ denied the final motion to continue based on the pending labor certification because he “concluded that the respondent had had ‘sufficient time’ to obtain an approved labor certification.” While the matter was pending before the Second Circuit, the labor certification was approved but then later expired due to the respondent’s employer not filing a visa petition. On remand, the issue before the BIA was to provide a “reasoned set of standards explicating when continuances for labor certification are within the ‘range of permissible decisions’ available to an [IJ], and when they are not.” Id. at 129. The BIA held that as a general rule in the employment context, discretion in granting a motion to continue ongoing removal proceedings should be favorably exercised where there is a prima facie approvable visa petition and adjustment application. Furthermore, in determining whether good cause exists for a continuance in removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an “Immigration Judge should first determine the alien’s place in the adjustment of status process and then consider and balance” the factors identified in Matter of Hashmi and any other relevant considerations. For example, a labor certification no longer being valid, and other similar types of evidence, might affect the case on remand or in the context of a motion to reopen. Furthermore, the BIA held that the pendency of a labor certification generally is not sufficient to grant a continuance in the absence of additional persuasive factors. Here, the BIA determined that remand was not warranted based on the new evidence that the labor certification, which was approved, had expired and there was no pending visa petition. While the respondent was a grandfathered alien who could have potentially been eligible for INA § 245(i) treatment, because there was no pending labor certification, the respondent could not establish prima facie eligibility for adjustment of status under INA § 245(i)(2)(A)-(B). The appeal was dismissed.

In Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), an IJ repeatedly continued a removal hearing pending the filing and adjudication of a family-based immigrant visa petition. During the final hearing, despite DHS’s opposition, the IJ granted the respondent’s motion to administrative closure, and the DHS filed an interlocutory appeal. The issue here was whether an IJ or the BIA has the authority to administratively close a case when one of the parties to the proceeding opposes. The BIA determined that there was fault in the general rule stated in Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) that “a case may not be administratively closed if opposed by either party.” The BIA, in overruling Matter of Gutierrez, held that affording absolute deference to a party’s objection is improper and that the IJ or the BIA, in the exercise of independent judgement and discretion, has the authority to administratively close a case, regardless of party opposition, if it is otherwise appropriate under the circumstances. The BIA further held that when evaluating a request for administrative closure, the IJ should weigh all relevant factors presented in the case, including, but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the IJ or the appeal is reinstated before the Board. In Avetisyan’s case, the visa petition had been pending for a long time through no apparent fault of the respondent or her husband, and there was no obvious impediment to the approval of the visa petition or ability of the respondent to successfully apply for adjustment of status. The BIA determined that the circumstances supported the exercise of the IJ’s authority to administratively close the case.

In Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018), AG Sessions referred Avetisyan to himself questioning whether there was any authority for IJs or the BIA to administratively close cases. Even if AG Sessions was able to overrule Ayetisyan and deny IJs the ability to administratively close cases, it was hoped that their ability to grant continuances would not be undermined. After all, there is explicit authority pursuant to 8 C.F.R. § 1003.29 for an IJ to grant a continuance for good cause. Depriving an IJ that ability, especially when there is an application pending that would allow the respondent to obtain permanent residency and moot the removal proceeding, would lead to a complete and total evisceration of Ayetisyan. Sessions can only achieve this if the basis to continue proceedings under Hashmi and Rajah are also overturned.

It is clear AG Session seeks to discourage motions for continuance as a way to maximize the deportations of noncitizens even if they have a meritorious pending applications for permanent residency that would otherwise thwart their deportations. In the Department of Justice’s Backgrounder on EOIR Strategic Caseload Reduction Plan, for example, Sessions blames IJs’ low productivity levels and rising backlogs on “representatives of illegal aliens have purposely used tactics designed to delay the adjudication of their clients’ cases” such as motions for continuance. Moreover, in the July 2017 EOIR Operating Policies and Procedures Memorandum 17-01: Continuances, IJs were urged to limit the grant of continuances, stating that “the delays caused by granting multiple and lengthy continuances, when multiplied across the entire immigration court system, exacerbate already crowded immigration dockets.”

But limiting continuances in the name of efficiency is a smokescreen. Discouraging motions for continuances will not make delays go away in the immigration court system. Respondents will appeal the denial of continuances into the courts of appeal of each circuit, which will result in remands back to the immigration courts in addition to clogging the circuits. This used to be the case prior to Hashmi and Rajah, where remands from the circuit court resulted in the further clogging up of immigration dockets. Moreover, if the USCIS processes cases in a tardy manner, and respondents in removal are unable to legitimately seek a continuance, there will be an increasing number of mandamus lawsuits against the agency to compel USCIS to process the case more expeditiously. The BIA’s reasoning in Hashmi, Rajah and Avetisyan was based on common sense and fairness. If there was a reasonable basis for a respondents in removal proceeding to demonstrate that they would ultimately get permanent residency but for a delay in processing of the visa petition or the priority date not being current, why deprive respondents of permanent residency by deporting them?  The federal courts understood this too, and will continue to do so if we do so if respondents cannot get continuances for good cause in removal proceedings.

Thus, in Subhan v. Ashcroft, 383 F.3d 591 (2004), the Seventh Circuit found that an IJ had abused his discretion when the ground for the continuance was a pending labor certification.  The Court noted that the IJ’s denial was based simply on the fact that the labor authorities had not yet acted rather than issues particularized to the petitioner’s circumstances such as the lack of bona fides of the labor certification or other grounds pertaining to national security or criminal issues. In another Seventh Circuit decision, Ahmed v. Gonzales, 467 F.3d 669 (2006), the court went even further than Subhan in holding that the IJ’s denial of a continuance ignored the fact that the petitioner was the “grandfathered” beneficiary under INA 245(i) of an I-130 petition even though the petitioner had yet to have a labor certification filed on his behalf. Of course, some courts upheld an IJ’s decision to deny continuance if the respondent’s underlying applications were not meritorious, see e.g. Morgan v. Gonzales, 445 F.3d 549 (2006), but the frameworks established in Hashmi and Rajah for providing for a continuance based on the merits of the underlying applications for permanent residence are sound and should not be upset. They provide IJs with discretion to grant continuances, and at the same time, authorize IJs to deny continuances when the pending request for permanent residency lacks merit.

There is no need for Sessions to undermine a framework that is working, and also less need to further erode the independence of IJs to judiciously exercise discretion based on their own sense of fairness and efficiency. Decisions to not grant continuances of IJs have been upheld by federal courts post-Hashmi and Rajah when the priority date was a long way away or when an I-601 waiver supporting an adjustment was denied and its appeal was pending. See e.g. Luevano v. Holder, 660 F.3d 1207 (2011); Kwak v. Holder, 607 F.3d 1140 (2010). On the other hand, IJs’ decisions that did not follow the Hashmi and Rajah factors have been overturned. See e.g., Ferrera v. AG, No. 11-14074 (11th Cir. 2013); Simon v. Holder, 654 F.3d 440 (2011). This is clear evidence that the system is working and does not need Sessions’ interference.  Avetisyan along with Hashmi and Rajah also view the immigration system as a whole with all its warts and imperfections. These decisions take into account the inefficiencies resulting in delays of approving I-130s and I-140s, along with retrogression in priority dates. If the immigration system worked more efficiently, there would be less need to place people in removal proceedings. But if people are placed in removal proceedings as a result of these inefficiencies, why not continue their proceedings, or even temporarily close their proceedings, until such time that they can obtain the benefit and terminate proceedings – which should not have been started in the first place? If Sessions is unable to see it this way when he reconsiders BIA decisions to undermine Avetisyan, Hashmi and Rajah, he is not doing so to create efficiency but to further his animus and hostility against immigrants.

(The authors thank Eleyteria Diakopoulous for her assistance in providing research for this article. Ms. Diakopoulous is a student at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)

By: Bernard P. Wolfsdorf, ABIL Lawyer and Associates Eva Yang and Robert Blanco
Wolfsdorf Immigration Blog

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EB-5 attorneys mainly deal with issues such as job creation, source of funds, financing, franchising, etc.  Once in a while, we get phone calls from clients of a more personal nature — “Hey, I’m getting married very soon.” (Congratulations.) “Hello, I’m considering divorcing.” (Ah, sorry to hear that.)

These events such as marriage or divorce can significantly impact your case. Since the EB-5 process is often a long journey, these questions seem to be coming up more often.

1. Three Stages of EB-5

The EB-5 process can be divided into three stages: 1) The I-526 has an estimated adjudication time of 25 to 32.5 months; Consular Processing/Adjustment of Status is 7 to 12 months; and the I-829 removal of conditions is 23 to 30 months.  Even without per country backlogs, the time spent on the adjudication and the two years of conditional permanent residency can easily go beyond 7 years (and a lot longer if the investor was born in Mainland China because of the waiting line).

Sadly some marriages do not survive the seven-year itch. Instead of asking “what if” questions in various hypothetical stages, it’s best to understand the important dates that matter.

2. Milestone dates that truly matter

The most critical day is when the principal EB-5 investor actually gets his/her green card.  If the investor goes through consular processing to acquire a green card, it is the date he/she is admitted to the U.S. as an immigrant. If the investor files a Form I-485 application to adjust his/her non-immigrant status to permanent resident status in the U.S., it is the date that the I-485 is approved. This date is printed on the green card and states, “resident since.”

If the marriage existed prior to this important date, the spouse automatically qualifies as a derivative dependent. The same applies to a child born of a marriage that existed before this date. No separate family-based petition is needed for such a spouse and children.

3. Accompanying or Following to Join

The qualified derivative dependents may accompany the investor to enter the U.S. at the same time, or within the validity of the immigrant visa. Afterwards, the qualified derivative dependents may “follow to join” the investor.

There is no time limitation for “follow to join” derivatives unless the child is born abroad. In that case, the child must return with the permanent parents within two years of the investor’s first entry as immigrant. If the investor has an approved I-829 by then, the derivatives can acquire full lawful permanent resident status without going through the conditional residence period.

4. Caution with Marriage Fraud Issue

Although the issue of marriage fraud comes up more in marriage-based petitions, EB-5 applicants also must prove the marriage is in good faith. This is especially true when the marriage is close to the date that the investor becomes a permanent resident. For example, the marriage occurs after the investor has already acquired an immigrant visa but before the investor has entered the U.S. or “landed” or if the marriage occurs when the investor‘s I-485 petition is still pending. In these cases, it is important to demonstrate the bona fide nature of the relationship.

The other side of this issue is divorce after the spouse has already acquired an immigrant visa stamp, but before the spouse has entered the U.S. as an immigrant; or the divorce occurs when the I-485 applications are pending. Note, the derivative spouse can only acquire immigrant status based on the existence of marital relationship to the principal investor. Here, divorce will disqualify the spouse from becoming a permanent resident.

5. Divorce After the Derivative Spouse has become Lawful Permanent Resident

Lastly, if the spouse has become a conditional permanent resident, but the marriage ended before the I-829 removal of condition, there is much less concern. The spouse may still be included in the investor’s I-829 petition or may file a separate petition. The same applies to the children who have reached the age of twenty-one or who have married during the period of conditional permanent residence.

The unhappy spouse might still want to dissolve the marriage in an amicable way so he/she will not have too much trouble in obtaining the necessary documentation for the I-829. Moreover, even though the spouse can file a separate petition, such petitions are not adjudicated independently from the principal investor’s I-829 petition. The investor does need to file an approvable I-829 so the dependents can remove their conditions successfully.  Should the principal investor not have his/her conditions removed, the derivative spouse and children would be unable to do so either.

By: Courtney E. Butler, Senior Attorney with Kirby Gamblin Joseph, ABIL Lawyer
Joseph Law Firm Immigration Issues Blog

Over the course of the past few months, at least five lawsuits have been filed against Contract Detention Facilities (“CDF”s) alleging that the CDFs’ payments to immigrant detainees of $1 per day through Voluntary Work Programs violate state minimum wage laws, the Trafficking Victims Protection Act, unjust enrichment, and other labor laws.  One of these lawsuits has been filed right here in Colorado.  Judge Kane of the District Court of Colorado certified a class of up to 60,000 current and former GEO detention center immigrant detainees who allege that they were forced to clean the detention center without pay and were threatened with solitary confinement if they refused to do so.  Riding on the back of immigrant labor, GEO was able to reduce costs at its Aurora facility, where it employs just one custodian in a building that can house up to 1,500 detainees.

Now, on March 7, 2018, 18 House Republicans signed a letter to the Department of Justice, the Department of Labor, and ICE asking them to participate in the pending litigation or to issue guidance to oppose the claims set forth in the various lawsuits.  They claim that the detainees are using immigration detention to obtain stable employment “that will encourage them to pursue frivolous claims to remain in the country and in detention for as long as possible.”  They also claim that the advocates filing the lawsuits intend to “raise the overall costs of immigration detention, in order to discourage its use and diminish the overall level of immigration enforcement in the United States.”  They tie the lawsuits to sanctuary cities and claim that the rate of “no-shows” in immigration court will increase if the lawsuits succeed.

We will continue to monitor the status of these lawsuits as they proceed.

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

USCIS has updated its official Case Processing Time webpage, in an attempt to provide more accurate information and better customer service through its “case management tools”.

The site now provides a time range which indicates how long it takes USCIS to process a case from the date it was received.  USCIS indicates it will update dates around the 15th day of each month but that times may change without prior notice.

USCIS has also created a new “Case inquiry date” to indicate when a petitioner or applicant can inquire about the pending case to USCIS.  If your receipt date is before the “Case inquiry date,” an “outside normal processing time” service request can be submitted online.

Below is a sampling of processing times currently listed.  Note, times may vary based on which USCIS service center is processing an individual case.

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

In response to a report written by the Office of the Inspector General, USCIS changed its posted processing times overnight between March 21 and March 22. On March 21, according to the official USCIS website (USCIS.GOV) USCIS Denver was processing I-485 applications (Application to Adjust Status) filed on or before December 31, 2016 and estimated that it would take up to 14 months to process this type of application. On March 22, the processing time read June 12, 2016, and the estimated processing time was 14-30 months for this type of application, meaning 14 months was now at the lowest end of the range! Overnight, the processing time had somehow retrogressed more than six months and USCIS stated that it could take up to 2.5 years to process an adjustment of status application.

To put this change in context, it used to take approximately 6-9 months for the same application to be scheduled for an interview in Denver. This has changed drastically since Donald Trump was elected and then became President. USCIS Denver has one of the longest processing times in the United States compared to other offices. For example, the same type of case (I-485) is taking only 5-15 months to process in Louisville, KY.

The same thing happened to the processing times of many common applications including the I-765 (work permit), I-131 (travel permit), and I-130 (Petition for Alien Relative).  Work permits are very important for our clients and the processing times of those applications have gone from a regulation limit of 90 days (as recently as January 2017) to seven to nine months in many cases.  The regulation was changed to allow USCIS more time to process these applications. This problem is compounded by the fact that USCIS is issuing more and more requests for evidence (“RFEs”), often regarding issues that have no relevance to whether the case should be granted. For example, attorneys have received RFEs for work permits that ask for the applicant’s criminal history. That fact is irrelevant to the determination of a work permit. Errors abound in these RFE’s and it is often clear that USCIS has not read or reviewed the evidence that you have submitted, because they ask for items that were provided in the original evidence packet. Once an RFE is submitted, USCIS takes the position that the clock re-starts and they have an additional 90 days (or more ) to decide the case, from the date that they receive the RFE response.

Why does all of this matter? It matters because people need a work permit to work legally in the United States and then to get a social security card and a driver’s license in most states. It matters because, if the case is not processing outside of posted processing times, USCIS does not allow you to inquire about a case online or over the phone (efforts are futile). Therefore, you cannot follow up to pressure USCIS to make a decision on a case until that case has been pending longer than the average processing time. And once you do inquire, it often takes USCIS months to respond to the same.  Attorneys in Colorado report having I-765 applications, based on adjustment of status, pending since February 2017.

By: Wolfsdorf Rosenthal LLP, Law Firm of Bernard P. Wolfsdorf, ABIL Lawyer
​Wolfsdorf Rosenthal Immigration Blog

​Wolfsdorf Rosenthal LLP is pleased to report that an extension of the EB-5 Regional Center Program to September 30, 2018 has been included in in the omnibus appropriations legislation which is expected to be signed into law by President Trump this week.