Another change in policy and another reason to hire an immigration lawyer (or be glad you already did)!

For as long as I have been in Immigration law firms I’ve been asked the question, “But why should I hire an immigration lawyer?”  The answer is never simple but neither is the processing in U.S. immigration.  As with a lot of things, there are personal, factual, and other variations and reasons why it would be worthwhile to have an experienced attorney assisting you in the navigation of the U.S. immigration system.

Under the current administration, the changes in policy, processes, and procedure have been the only constant and USCIS has issued yet another change in U.S. immigration policy. Beginning on September 11, 2018, the USCIS put the new policy into action which had been previously announced on July 13, 2018.  See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf

This current policy change, however, is more disturbing than some of the prior. It will have ramifications on filings made by individuals and employers who make requests of USCIS.  Most importantly, it will leave some without recourse. The old policy outlined the steps an adjudicator should follow when presented with a petition or application that was potentially incomplete in form or evidence. Adjudicators were expected to issue a Request for Evidence (RFE) and ask the petitioner or applicant to supplement their petition or application. The prior policy “stated that an adjudicator should issue an RFE unless there was “no possibility” that the deficiency could be cured by submission of additional evidence. The effect of the “no possibility” policy was that only statutory denials (such as a denial where a nonexistent benefit is requested) would be issued without an RFE or a NOID.”

Under the new guidance, adjudicators have been directed to reject or outright deny petitions and applications which they deem are incomplete. The new policy finds that adjudicator’s discretion should not be “limited” as it was under the old policy.  In fact, the policy states “[i]f all required initial evidence is not submitted with the benefit request, USCIS in its discretion may deny the benefit request for failure to establish eligibility based on lack of required initial evidence.”  While the policy does acknowledge that adjudicators must review, follow policy and operating procedures and that there are instances where the discretion is restricted, it also states that “[c]ases where the regulations, the statute, or form instructions require the submission of an official document or other form or evidence establishing eligibility at the time of filing and there is no submission” the request may be outright denied.

Navigating what documents and forms must be included is not as simple as USCIS’s policy makes it appear.  There are no currently available checklists provided by the Service that indicates the information and minimum documentation that must be submitted.  Further, because it is the petitioner or applicant’s burden to establish eligibility and provide the required documents and information, it is of extreme importance that an individual or business know that it is in compliance upon the first submission.

A petition or application which is submitted, receipted, and then deemed insufficient to carry the burden of demonstrating eligibility, will be denied.  The Adjudicator’s Field Manual Chapter 10.5(a) has been updated to say that “adjudicators may, but are not required to, issue RFEs or NOIDs, and they retain the discretion to deny a request for ineligibility without issuing an RFE or NOID.”   It further states that “a filing that lacks initial evidence…may be denied without issuing an RFE or NOID.” Thus, the petitioner or applicant may lose not only the filing fees submitted with the original petition or application but also the priority date and/or the eligibility to change status (because the original filing was timely and now the individual is out of status).  In a footnote, USCIS further provides that NOIDs are not required and do “not apply to filing deficiencies such as signatures”, which are not governed by the same law or policy.

What does this all mean?  It means that an already complex, complicated, and difficult system has become even more so.  Today, if I am asked should I hire an immigration attorney? I can much more easily say “You already know the answer. It’s because this is extremely important, has life-altering consequences, and has to be done right the first time.”

Attorney General Jeff Sessions placed yet another restriction on immigration judges, limiting when they can terminate cases in removal proceedings.

Sessions held that immigration judges are only allowed to terminate or dismiss, immigration court cases under “specific and circumscribed” conditions. These “specific” conditions include, for instance, times when the Department of Homeland Security cannot prove its case, or when the case involved “exceptionally appealing or humanitarian factors.”

Typically, when an immigration judge terminates removal proceedings against an individual, the Department of Homeland Security has the ability to re-file charges to bring that person into removal proceedings again if that person becomes deportable. But the termination of cases is frequently used to allow individuals to pursue avenues to legalize his or her status through USCIS or another agency.

This change by Sessions is the latest move in his attempt to take away the power of immigration judges to independently monitor their own dockets and cases. Before this decision Sessions also issued decisions regarding what types of cases qualify for asylum and when immigration judges can temporarily close cases, and he has attempted to dictate how many cases judges hear each year.

Because immigration judges are part of the Department of Justice, they are under the authority of the Attorney General. But following the many restrictions Sessions has put on the courts, some are calling for the immigration courts to be independent federal courts under Article III of the Constitution. This would allow much more independence of immigration judges to manage their own dockets as they see fit instead of following quotas and guidelines set by the Attorney General.

With government crackdowns on immigrants, both undocumented and legal, dominating headlines, the fact that many immigrants are still successfully navigating the labyrinth can get lost in the shuffle. The USCIS announcement that over 45,000 people were sworn in as newly naturalized U.S. citizens as part of Constitution and Citizenship Day celebrations serves as a reminder that many noncitizens continue to win their cases.

The celebrations included over 260 naturalization ceremonies across the country, including special ceremonies at the U.S. Air Force Academy in Colorado Springs, the Highlands Ranch Library, the Colorado National Monument, and Fort Carson.

Congratulations and welcome to all the new U.S. citizens.

For those who have not yet become U.S. citizens but are considering filing an application to immigration, be sure to consult with a qualified immigration attorney.

Thousands of people across the country have been given charging documents (“NTA”) to appear in Immigration Court by Immigration and Customs Enforcement (“ICE”). But their official notices to appear were greeted by court staffers who called them “fake dates.” The immigration removal process in Immigration Court does not begin until the government (ICE) files the charging document (NTA) with the Court. Employees at Immigration Courts across the country are reporting that people are showing up on the date and time listed on the NTA. However, their names weren’t on judges’ dockets. That is because the government had yet to file the NTA with the Court.

The NTAs are real, but ICE apparently never coordinated or cleared the dates with the immigration courts. Some of the dates were clearly fake, such as September 31. Others listed the time of the hearing as 12:00 am, a time when the court is closed. This has created chaos, confusion, and long lines at immigration courts. Immigrants are left in limbo, not knowing when and if they will have Court. The law requires the government to provide or mail a copy of any NTA or hearing notice to the address that they have on file. That is why it is so important to keep your address updated with ICE and with the immigration court.

If you have recently received an NTA, it is best to call the EOIR hotline at 1-800-898-7180, before you go to Court. 

The EB-1C Multinational Manager category is the permanent residence process for intracompany transferees, meaning the person must have spent at least one of the last three years in an executive or managerial capacity for an overseas employer and is being transferred to the U.S. to work as an executive or manager for a parent, affiliate, subsidiary, or branch office of the employer.

While this may seem fairly straightforward, these cases can be difficult. The beneficiary must be employed as a manager or executive for the entity abroad and for the U.S. company, as opposed to an owner or investor. S/he must take an active role within the company and must be able to demonstrate the oversight of personnel or a key function within the company or be an executive and be able to demonstrate this for the employment abroad and the employment in the United States. This requires detailed information about the job duties performed by the foreign national overseas and the proposed role in the United States, including how s/he functions at a senior level within the company.

If a manager of people, this would require the supervision of professional-level employees; or, ideally, management of other managers or supervisors with their own subordinate, professional-level staff. The best route is to demonstrate that there are tiers of managers: the foreign national who is overseeing managers and those managers, in turn, oversee professional level employees. By having these layers of management, it bolsters the foreign national’s credentials as manager. If a manager of a function, it is essential to demonstrate the importance of the function within the company, discretionary power to make decisions, and a substantial budget under the purview of this manager. Functional manager cases tend to be some of the most heavily scrutinized.

The company also matters. The company will need to show ongoing operations, the strength of the business, and prove that the business warrants a permanent position for this manager or executive in the United States. This cannot be a shell company that is solely created to employ the foreign national for immigration benefits; rather, there must be a legitimate business with operations in the U.S. that substantiate the need for a manager or executive. Without the staffing levels to warrant this, U.S. Citizenship and Immigration Services may find that the U.S. operations are too small to require a full-time manager or executive in the U.S.

There is a temporary visa, L-1, which tracks along the EB-1 category. The standards for the L-1 tend to be interpreted less stringently by U.S. Citizenship and Immigration Services. The L-1 can be a great option to test the waters for an EB-1C and get the person to the U.S. temporarily to start working in this managerial or executive capacity.

If a person already is employed as a manager or executive for a company overseas, but that company does not have a U.S. presence, there are two different routes to establish a U.S. business. It is possible to acquire an already existing company in the United States and take on a managerial or executive role in the United States. This is a better option than the new office L-1 option that is discussed below. This is because there are already existing U.S. operations and staff that the foreign national can take over and actively manage.

There is also an option for L-1 beneficiaries to come to the U.S. to open a new office for a company that they were employed with abroad. These can also be difficult cases and are only approved for one year initially. At the end of the one year, the company needs to prove continuing operations and the continuing need for the manager/executive. While we advise on a case by case basis, we would generally recommend waiting 2-3 years after the initial L-1 new office to start the EB-1C process, as we can use the strength of the business over the last few years (as opposed to one year) to establish the need for this manager/executive in the U.S.

There are various items to consider when weighing if EB-1C is the route to permanent residence for you. The size of the company and your role within the company have been discussed above. Another factor is your ability to speak English. We have seen Consulates question how someone can manage a team or a business if they are not fluent in English; this can be difficult to overcome. This category also allows for derivative permanent residence for spouses, as well as children under 21. If you decide to start with an L-1, your spouse and children under 21 can come to the U.S. as derivatives under L-2 status. On an L-2, your spouse is eligible to work for any employer, once employment authorization is secured; your children can go to school in the U.S. without requiring separate status in the U.S.

This blog is part of series evaluating three visa options. You can read the announcement and other blogs in the series here:

• Announcement
• EB-1C (current)
• EB-1A – coming September 20
• E-2 – coming September 27

US asylum law is nuanced, at times contradictory, and ever-changing. As brief background, in order to be granted asylum, applicants must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that they are unable or unwilling to return to, or avail themselves of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). Attorneys constantly grapple with the ins and outs of asylum law, especially in light of recent, dramatic changes to asylum adjudication.

Even with legal representation, the chances of being granted asylum are slim. In FY 2017, only 45% asylum-seekers who had an attorney were ultimately granted asylum. Imagine, then, an asylum-seeker fleeing persecution, suffering from severe trauma, and arriving in a foreign land where he or she suddenly has to become a legal expert in order to avoid being sent back to certain death. For most, this is nearly impossible, where in FY 2017, only 10% of those unrepresented successfully obtained asylum.

It is important to remember that while asylum-seekers have a right to obtain counsel at their own expense, they are not entitled to government-appointed counsel. INA § 240(b)(4)(A). Access to legal representation is critical for asylum-seekers. However, most asylum-seekers, especially those in detention, go largely unrepresented in their asylum proceedings, where only 15% of all detained immigrants have access to an attorney. For those detained in remote areas, that percentage is even lower.

Given this inequity, I felt compelled to travel to a remote detention facility in Folkston, GA and provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. I travelled along with former supervisors turned mentors, Jessica Greenberg and Deirdre Stradone, Staff Attorneys at African Services Committee (ASC)/Immigrant Community Law Center (ICLC), along with Lucia della Paolera, a volunteer interpreter. Our program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings in order to assist as many folks as possible in obtaining release. Their rationale is that since bond and parole representation take up substantially less time than asylum representation, that they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.
Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, FL, and nearly 300 miles from Atlanta, GA, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack any semblance to due process. Rather, through assembly-line adjudication, IJs hear several dozens of cases within the span of a few hours. On court days, I witnessed about twenty men get shuffled into a small conference room to speak with the IJ in front of a small camera. The IJ only spends a few minutes on each case, and then the next twenty men get shuffled into the same room. While IJs may spend a bit more time with detainees during their bond or merits hearings, the time spent is often inadequate, frequently leading to unjust results.

Even with the tireless efforts of the Staff Attorneys and volunteers at SIFI, there are simply too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds stranded to navigate the confusing waters of immigration court alone.

During initial screenings, I encountered numerous individuals who filled out their asylum applications on their own. These folks try their best using the internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. But as any practitioner will tell you, so much more goes into an asylum application than the Form I-589. While these asylum seekers are smart and resourceful, it is nearly impossible for one to successfully pursue one’s own asylum claim. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearing where an IJ will adjudicate their asylum claim, they will be left to argue their claims in the Atlanta Immigration Court, where 95%-98% of all asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.

Despite the Attorney General’s most recent comments that lawyers are not following the letter of the law when advocating on behalf of asylum-seekers, it is clear that it is the IJs, whom are tasked with fairly applying the law, and DHS officials, tasked with enforcing the law, are the ones seeking to circumvent the Immigration and Nationality Act (INA). Throughout the Trump era, immigration attorneys have faithfully upheld asylum law and have had to hold the government accountable in its failure to apply the law fairly. Good lawyers, using all of their talents and skill, work every day to vindicate the rights of their clients pursuant to the INA, contrary to Sessions’ assertions.

But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.

We’ve previously blogged about the due process concerns in immigration courts under Sessions’ tenure. Instead, I want to highlight the stories of some of the asylum-seekers I met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. It is important that we understand who it is that we’re actually deporting. Through sharing their stories, I want to demonstrate to others just how unfair our asylum system is. Asylum was meant to protect these people. Instead, we treat them as criminals by detaining them, do not provide them with adequate access to legal representation, and summarily remove them from the United States. Below are their stories:

Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation

At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.

Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.

Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a US citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.

Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman

During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a Master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.

He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.

Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.

Mr. S-’s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. See, e.g., Lopez v. Sessions, 859 F.3d 464 (7th Cir. 2017); Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (“wealth, standing alone, is not an immutable characteristic of a cognizable social group”); but see, Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) (confirming that although wealth standing alone is not an immutable characteristic, the Respondent’s combined attributes of wealth, education status, and cattle rancher, satisfied the particular social group requirements). However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief. See, e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014) (Respondent demonstrated that his “Mayan Quiché identity was ‘at least one central reason’ why he” was persecuted).

As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the US to sponsor him, he may be eligible for employment-based relief based on his Master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.

Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group

My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the US to escape this persecution.

Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-’s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.

August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter that spoke his language. Mr. G- was so out of the loop with what was going on, that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague, Jessica, and I, spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.

Mr. G- firmly stated that he will be killed if he was forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.

Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.

Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his Evangelical Christianity, given that Mr. G-’s persecution was compounded by his visible Mam ethnicity and vocal Evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. See, e.g., Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011) (finding insufficient evidence that MS-13 targeted Petitioner on account of his Christian beliefs, finding instead that the evidence supported the conclusion that the threats were based on his refusal to join the gang, which is not a protected ground). Mr. G-’s low prospects of success are particularly heart-wrenching. When we as a country fail to protect those seeking refuge from persecution, especially those fleeing religious persecution, we destroy the very ideals upon which this country was founded.

[Update: 9/10/2018 at 3:00PM: Shortly after posting this blog, the author received word that Mr. G- had been ordered removed. Despite the fact that his hearing was conducted entirely in Spanish and he has arguable claims to relief, Mr. G- has decided not to appeal his removal order and instead return to Guatemala. Prolonged detention has taken a serious toll on Mr. G-‘s physical and mental health.]

Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion

I also assisted in the drafting of a bond motion for a 20 year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.

Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-’s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.

A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, that he would be killed. Fearing for his life, Mr. O- fled to the US in April 2018 and has been in detention ever since.
SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-’s asylum claim is particularly strong, and because he has family in the US, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ that appropriately follows the law and will grant him asylum.

(The author thanks Jessica Greenberg and Deirdre Stradone for their constant mentorship as well as providing the author the opportunity to go to Folkston. The author also thanks Lucia della Paolera for her advocacy, passion, and critical interpretation assistance. Finally, the author expresses the utmost gratitude to the team at SIFI, who work day in and day out to provide excellent representation to the detained migrants and asylum-seekers detained at Folkston ICE Processing Center.)

In April 2017, USCIS approved a request for expedited processing of the I-924 Exemplar Application and related I-526 petitions for the Appalachian EB-5 Regional Center’s Tryon International Equestrian Center Project. In the time since I filed the expedite request on behalf of this client, the I-924 Exemplar application for the project was approved, and a number of I-526 petitions for investors in the project – some of whom we represent, and others who we do not represent – have been approved, on average, within 45 to 60 days of filing.

Although USCIS has long allowed any petitioner or applicant to request expedited processing in any immigration matter, including EB-5 applications and petitions, and we have previously obtained expedites for one other EB-5 project (in 2012), and several individual investors, the fact that the Tryon exemplar and I-526 petitions have been granted expedited processing has created some controversy in the industry and prompted a lot of misinformation and disparagement of the project and those who speak of the expedite. Some people have contended that there is no such thing as expedited processing, or USCIS can expedite a single petition or application, but cannot expedite all I-526 petitions affiliated with a specific project. As the attorney who prepared and filed the expedite request, and who has been involved in other cases with approved expedite requests, I would like to set the record straight. I would also like to talk a little bit about what makes a successful expedite request.

First, USCIS can, and does in appropriate cases, expedite the processing of any petition or application for immigration benefits. While the decision to grant or deny an expedite request generally lies within the discretion of USCIS, USCIS has published criteria for when it will exercise its discretion. According to USCIS:

USCIS review​s​ all​ expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership. ​The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met.​​

​USCIS may expedite a​ petition or application if it meets one or more of the following criteria: ​

• Severe financial loss to company or ​person​;​
• Emergency situation;​
• Humanitarian reasons;​
• Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
• Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);​
• USCIS error; or​
• Compelling interest of USCIS.​

See https://www.uscis.gov/forms/expedite-criteria (last visited August 16, 2018).

Second, although USCIS will decide an expedite request on a case by case basis, that does not mean a petition by petition basis. Since the decision to expedite is within the discretion of USCIS, there is nothing that says it can only exercise it one I-526 at a time. We have personally been involved in obtaining expedites for two EB-5 projects. The first EB-5 project we worked on that obtained an expedite was in 2012. The second EB-5 project I worked on that obtained an expedite was the Tryon International Equestrian Center. In both cases, the request was to expedite the I-526 petitions associated with a particular EB-5 project. The Tryon request also included a request to expedite the I-924 exemplar allocation, which was granted. To the best of our knowledge, all I-526s associated with both of those projects were in fact expedited. In the case of Tryon, USCIS has consistently been processing these petitions in 45 to 60 days.[i]

Although we were not the attorneys, we believe that in the last five years, there have been two or three other projects that have been granted expedited processing of their I-526 petitions by USCIS. Certainly, expedites are rare in EB-5, but they exist. We believe that these are not the only two cases in which USCIS has granted expedited processing to all I-526 petitions affiliated with a particular EB-5 project, however there may only be two or three other examples since 2012.

So what does it mean to have an expedite approved? USCIS has indicated that an approved expedite request will result in the petition or application being moved ahead in line of other petitions or applications. Generally, USCIS will ensure that an expedited petition gets on the desk of an adjudicator within 45 days. However, this does NOT mean that USCIS will speed up the actual review of the case or any associated background checks. USCIS has made it very clear that the integrity of the immigration system is not diminished in any way by expedited processing. Security checks are not rushed, but are completed as thoroughly as normal. The same is true about the consideration of the merits of the petition.

Getting an Expedite Request Approved

While the expedite criteria provide some guidelines, good facts and a compelling presentation are necessary. When it comes to EB-5 projects, there are a few of the grounds that are more readily applicable than the others. It would be, for instance, very hard to describe an emergency situation that requires the expediting of the I-526 petitions associated with a given EB-5 project. Similarly, outside of disaster relief efforts, it is hard to imagine an urgent humanitarian need. National interest is usually the most compelling reason.

In the case of the Tryon Equestrian Project, the project is expected to bring more than 6,000 jobs to a region of Appalachia suffering from chronic poverty. The Appalachian region is consistently one of the poorest, hardest hit economic regions in the country, with persistent unemployment and poverty. This Project represents a long-term, sustainable, economic cluster that includes a demand generator (the Equestrian Center) and the corresponding support and supply industries that will create permanent economic improvement and opportunity in this region. Unlike, say, a hotel or office building in a major city, which generally serve existing demand, this project creates its own, sustainable, demand, which in turn leads to permanent job creation. The expedite request was supported by a non-profit organization, and by the U.S. Department of Agriculture. Although the main thrust of the expedite request was based on national interest, we also included an argument that the interests of USCIS, which include serving the original goals of the EB-5 program by facilitating the construction of an economic engine in a rural and high unemployment area, would be served by approving the expedite. The project also had broad political support from both major parties, and our client was able to do a uniquely impressive job gathering support and documentation and helping to develop a multi-tiered approach. Ultimately, we believe that this project squarely met the expedite criteria and deserved to be expedited.

In the case of individual applicants and petitioners, we have had success obtaining expedited processing for people with urgent medical needs, ailing or aging family members, loss of lawful resident status in the current country of residence, and for other reasons.

In seeking an expedite, we always try to address as many of the expedite criteria as possible. Even if the basis for the expedite is not national interest, we will try to do what we can to show that expediting the petition has a positive effect. Similarly, we will emphasize any potential financial loss, any humanitarian factors, and we will always try to get support from a government agency, non-profit, or quasi government entity.

Obtaining expedites is part science, part art, and a healthy dose of good story telling (non-fiction, of course). If you are interested in discussing the possibility of an expedite for your EB-5 project or individual application or petition, please feel free to contact me to set up a consultation.



[i] In the first, the request was made to expedite all the I-526 petitions associated with the project.  In the case of the Tryon Equestrian Project, we had filed an I-924 Exemplar application, so we made the request for both the I-924 and the related I-526 petitions.  It just so happens that at the time the request was granted, no I-526 petitions had yet been filed, so no I-526 receipt numbers appear in the USCIS letter approving the expedite request.  Regardless of this, USCIS has consistently been processing these petitions in 45 to 60 days (sometimes longer if USCIS issues an RFE on the investor source of funds).

The Trump administration has restricted the H-1B program by making it harder for employers to obtain an approval. It has done this without changing the law through Congress or amending any rule.  Routine H-1B visa petitions that were previously approvable are now subject to difficult to overcome Requests for Evidence. Even after valiantly submitting evidence to overcome an RFE, the H-B petition is more susceptible to being denied.  The USCIS has also announced that it will initiate removal proceedings in case an extension request is denied and the underlying H-1B status previously expired, further harassing H-1B workers who have remained lawfully in the United States until the point their H-1B request is denied under needless heightened scrutiny.  It is thus no surprise that businesses are loudly complaining on Labor Day that they are hurting because they are struggling to fill the jobs they need with foreign workers.

To rub further salt in the wound, USICS announced on August 28, 2018, that it was  extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. These suspensions are expected to last until Feb. 19, 2019. Premium processing service provides expedited processing for a specific list of employment-based immigrant and nonimmigrant petitions upon paying an additional fee. This list has always included the H-1B petition.
The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (except for filings by certain cap exempt employers).
​
The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.
The USCIS has specifically indicated that the suspension does not apply to:

1. Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
2. Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:​

The reasoning behind the extension and expansion of the suspension of premium processing, according to the USCIS, is to help it to reduce overall H-1B processing times by allowing it to:

• Process long-pending petitions, which we have been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
• Be responsive to petitions with time-sensitive start dates; and
• Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.

This may be the official position of USCIS, but it is no coincidence that  continuing the suspension as well as expanding it nicely fits into the administration’s objective to further restrict the H-1B visa program pursuant to “Buy American and Hire American” Executive Order No. 13788. BAHA has been deployed as a justification to restrict legal immigration for the purpose of protecting American workers. However, this rationale makes no sense in a full employment economy when businesses are hurting because they cannot hire foreign workers. Therefore, the only other possible rationale to restrict legal immigration is to advance white nationalism, which is what Trump promised and continues to promise to his base of supporters.

The extension of the previously suspended premium processing for H-1B cap cases means that employers who were expecting foreign nationals to start their jobs on October 1, 2018 may no longer be able to do so if the H-1B petition is not approved. This renders the H-1B visa program virtually useless. Employers had to offer the jobs prior to April 1, and then file H-1B petitions on behalf of the foreign national within the first five days of April 2018 to be considered in the H-1B visa lottery. Since USCIS received 190,098 H-1B cases earlier this year, which exceeded the maximum 85,000 H-1B visas that can be issued, more applications got rejected rather than accepted under the H-1B lottery this year. Those H-1B petitions that got selected are susceptible to receiving an RFE and a possible denial under the new heightened scrutiny policy.  Moreover,  there are many cases that have not been adjudicated since they were filed in early April 2018, and without premium processing, employers will likely not be able to hire the H-1B worker on October 1, 2018 even though the job offer was made more than six months ago and the petition is potentially approvable. Students who are working for the employer under F-1 Cap Gap Optional Practical Training will have to stop on October 1, 2018 unless the change of status request from F-1 to H-1B is approved on or before that date.

The expansion of the suspension of premium processing means that those H-1B visa holders who are changing employers will not be able to get the assurance of an approval when they make the switch. Although an H-1B worker can port to a new job without waiting for the approval, so long as the employment starts after the new employer has filed the H-1B petition and request for extension of status, both employers and H-1B workers would like the security of an approval before they start their new jobs. The expansion of the suspension of premium processing will hinder mobility of H-1B workers. This in turn will hinder competitiveness and will also inhibit skilled H-1B workers from improving career prospects and getting better compensation, resulting in an adverse impact on US competitiveness in the long run. The suspension of premium processing further feeds into the USCIS’s new removal policy. If an H-1B worker takes a chance to port to a new employer, and if that petition, along with the extension of status request, is subsequently denied after several months of delay due to lack of premium processing, this person could be at risk of receiving a Notice to Appear and will be placed in removal proceedings.

Furthermore, an employer is required to request an amendment of the H-1B petition if the worker is being sent to a new worksite that was not contemplated in the original H-1B petition. The suspension of premium processing for amending an H-1B petition also creates further uncertainty as to the fate of the amendment request that may be challenged and denied under the heightened scrutiny being given to such petitions under the Trump administration.

The only saving grace is that premium processing has not been suspended for extension requests with the same employer. Still, caution is advised since premium processing is only allowed if  box 2.b in Part 2 relating to “Continuation of previously approved employment without change with the same employer ” is checked. If box 2.c is checked – “Change in previously approved employment” – then premium processing will not be allowed. The instructions to Form I-129 state that box 2.c should be checked when there is a non-material change in the employment such as a change in job title but without a material change in duties. There are bound to be non-material changes to the job duties, including salary increases, at the time of filing any H-1B extension request.  Till now, USCIS has not paid close attention to whether box 2.b or 2.c is checked, since a non-material change in the job could still be considered  a “[c]ontinuation of previously approved employment.” Otherwise, if the change was material, then an amendment must have been filed prior to the expiration of the H-1B validity period.  However, as a commentator to this blog has astutely suggested,  one can now expect the Nebraska Service Center to pay closer attention to these meaningless distinctions in order to play “gotcha” and deny premium processing if 2.b rather than 2.c was checked. It is hoped that the NSC will consider non-material changes as a continuation of previously approved employment, but one should not bank on reason these days when the mindset of the Trump administration is to restrict immigration!    Cap exempt employers can also avail of premium processing, but they are few in comparison to the overall population of employers who file H-1B petitions. Premium processing for other visa categories has not been suspended. While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. However, USCIS very grudgingly accepts expedited requests.

The USCIS has been suspending premium processing with greater frequency in recent times. It did so last on April 3, 2017 and resumed it again on September 18, 2017. USCIS again suspended premium processing for H-1B cap cases on April 2, 2018, and has now extended the suspension to February 11,  2019, in addition to expanding the suspension to other types of H-1B filings. Premium processing generates fees, which can result in more transformation through efficiency, and so by suspending premium processing USCIS is killing the goose that lays the golden egg. The USCIS wants to process other cases more quickly, but it would make more sense to accept premium processing so that it can add more staff to process all cases as efficiently as possible. Ironically, USICS has also announced an increase in the premium processing fee from $1225 to $1410. The justification for this increase is that it “represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers.” Thus, this increase is to keep up with inflation rather than generate revenues, and USCIS will still lose revenues as a result of the suspension of premium processing for many types of H-1B filings.

​If the USCIS excessively delays the adjudication of H-1B visa petitions due to lack of premium processing, one possible solution is to file mandamus actions to compel the USCIS to make a decision. If the administration is faced with thousands of such actions, it will realize that it is less costly to process cases quickly, and even restore premium processing completely, rather than get bogged down in a deluge of mandamus actions against it.

The Trump administration’s efforts to remove certain immigrants from the U.S. are being fought in two separate federal lawsuits: one challenging the termination of Temporary Protected Status for certain countries and one challenging the arrest of immigrants at their green card interviews. The Trump administration has attempted to end both lawsuits by asking the respective judges to dismiss them, and both judges have refused to do so, allowing the lawsuits to move forward.

TPS

The Trump administration has gradually ended Temporary Protected Status—or, TPS—for nearly all of the countries who once were designated for protection. The government stated that the initial country conditions that created the need for protection of natives from those countries has improved enough that it would be safe for those protected natives to return.

The lawsuit is challenging the termination of protection for El Salvador, Haiti, and Honduras. The plaintiffs in the case argue that the Trump administration was motivated by racial bias when it ended TPS based on statements he made against immigrants. As part of the lawsuit, documents have been released that show members of the Department of State and other knowledgeable officials argued that these countries were still in poor condition and that there weren’t enough positive factors to warrant a return of the immigrants to those countries. The documents show that the Trump administration ignored this information and terminated protection anyway.

The Trump administration asked the judge in that case to dismiss the lawsuit, but the judge stated that it is plausible that “a discriminatory purpose was a motivating factor” in the decision. The final decision in the case could affect more than 400,000 TPS holders from those countries.

Green Card Arrests

The second lawsuit facing the Trump administration comes from arrests taking place at USCIS offices when immigrants appear for their marriage interviews which could lead to green cards. The Trump administration asked the judge to dismiss this case as well, arguing that the federal courts do not have jurisdiction over immigration, but the judge denied the request, allowing the lawsuit to move forward.

The plaintiffs in the case—five immigrants and their U.S. citizen spouses—argue that they cannot be targeted for arrest and removal simply because they have a prior order of removal, especially when those individuals are arrested at USCIS when they appear for an interview in process to obtain lawful permanent resident status. Documents released as part of the lawsuit show that USCIS and ICE had been collaborating to target individuals at their interviews. The lawsuit is being allowed to continue despite the Trump administration’s attempts to stop it from doing so.