Archive for the ‘Processing of Applications & Petitions’ Category.

Indian Independence Day

shutterstock_134525195“Progress is implied in independence. Without self-government neither industrial progress is possible, nor the educational scheme will be useful to the nation…” – Bal Gangadhar Tilak.

When you think of the phrase “Independence Day,” naturally you think of July 4th and wonderful images of BBQs, apple pie and fireworks come to mind. August 15th is Indian Independence Day, which is relatively recent, having begun in 1947. It certainly feels recent to me since my father was ten years old at the time. Of course he later moved to Britain, where I was born, making me a British Citizen, therefore setting me up for a lifetime of combined pride and self-loathing. In the U.S., Indian Independence Day on August 15th is celebrated in numerous cities, and with a number of parades and parties.

India has come a long way. Just shy of one quarter of the world’s population and the world’s largest democracy, it is amazing to see the progress over the last decade. Modern cities and developments have sprung up all over India. The economy is booming and India is creating many different items for export. Perhaps its largest and most valuable export though, is people, in particular, highly educated people.

Continue reading ‘Indian Independence Day’ »

From Systems to Substance, Digital Innovation is Welcome News for Immigration

shutterstock_276868460Last week, the Office of Management and Budget released a plan for modernizing and streamlining the legal immigration system.   Much of the focus was on the potential positive impact of digital innovation.  Recommendations included the creation of a cross-agency digital services team to support the implementation of the modernized immigrant visa project.  This team would be charged with improving the visa applicant experience and increasing efficiencies in the adjudication process through digitization.  The plan rightly points out that “currently, the immigration application and adjudication process is mostly paper-based, requiring documents to change hands and locations among various federal actors at least six times for some petitions.”  Or in many cases, the same information must be sent separately, and in different formats, to several agencies, several times.  Take for example the H-1B nonimmigrant visa category for specialty occupations.  This category alone requires coordination between the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), the Department of State (DOS) and Customs and Border Protection (CBP).

The DOL piece of the puzzle, the Labor Condition Application (LCA), has had an electronic option since 2002 and is today entirely online.  An employer may submit an LCA, post notice of filing and receive approval of certification from DOL without a single piece of paper.  However, the five-page LCA, once certified, must be printed out, signed and sent to one of USCIS’s Service Centers in Vermont or California as part of the H-1B petition.  Continue reading ‘From Systems to Substance, Digital Innovation is Welcome News for Immigration’ »

A Long Journey for Justice: the Continuing Fight for LGBT Immigrants

shutterstock_56068639As the nation rejoiced after the Supreme Court ruling on Obergefell v. Hodges, I recalled the celebrations at AILA’s 2013 annual conference in San Francisco on the day that the Supreme Court decided Windsor v. Connecticut.   Windsor and subsequent Department of Homeland Security (DHS) directives made it clear that U.S. Citizenship and Immigration Services (USCIS) would recognize marriages of couples of the same sex for immigration purposes.  However, while our clients no longer had to worry about physical separation and removal from their spouses or partners, they did have to suffer additional indignities  if they lived in a state that refused to recognize their marriage.  For that, we celebrate but also reflect on the bumpy path to equality.

As a measure of how far we have come, before 1990, being gay was a ground for inadmissibility.   Before Windsor, we had to either file for asylum for our gay clients or see them separated from their partners as we scrambled for other options in the non-immigrant realm.   While the US did not accord the right of marriage to same-sex couples, the absolute terror that many of our clients faced in their home countries due to their sexual orientation was real, and it was our job to help protect them.

I remember speaking at several forums about options for LGBT immigrants which seems so historical today.  I also recall that as AILA’s USCIS Liaison Committee Chair in 2010-2011, we pressed USCIS to hold marriage-based I-130 petitions for same-sex couples in abeyance as marriage was legal in certain states.  We argued that while it was inhumane to separate committed couples before they were allowed to marry in any US jurisdiction, it was draconian and bigoted to place someone married to a US citizen in removal proceedings after denying their I-130 petition.  It was essentially an immigration policy which was in the same league as the over-150-year U.S. ban on naturalization for “nonwhites.”

At the Upper Midwest chapter conference in 2011, I brought that issue to my co-panelist, a USCIS adjudicator from Minneapolis, and he had that same look of empathy we got from USCIS headquarters, but the same line that they could not issue a blanket policy of holding these cases in abeyance.   I loved doing that work because as with many of our actions, it was a fight both to keep people together and for basic justice.  It was an unconscionable form of discrimination nationwide and USCIS was caught in that web of injustice.  I was thrilled that AILA did its part to raise consciousness and move the universal arc one step closer to justice.

This spring I spoke on a panel with Ali Bushara, a Ugandan gay man who fled his country last year.  We talked about his personal journey, but also the increasing persecution of gay people in many parts of the world such as Russia, which has codified laws to bar adoptions by LGBT members of society.

As my conversation with Ali and my unmarried LGBT clients continue to teach me, the role that AILA has played in seeking justice, equality and protection for LGBT immigrants cannot be set aside after this momentous decision.  We should continue to write, speak and advocate on behalf of basic human rights and make sure that State Department reports are consistent with what we hear from our clients and colleagues.

Written by Mark Shmueli, Member of the AILA EOIR Liaison Committee and the Distance Learning Committee

One Less Brick in the Wall, Mata v. Lynch

shutterstock_162933683We would like to thank AILA for approaching us to give our thoughts on our recent Supreme Court win in Reyes Mata v. Lynch, 576 U.S.___ (2015).

We met Mr. Mata in October of 2012.  Probably the most outstanding thing about his situation was how typical it was.  Like so many of our clients, he is a long-time non-LPR with an assault conviction.  Never mind that his wife later swore under oath that he never struck her or that he is a single parent to three U.S. citizen kids after the same woman was imprisoned for drug trafficking.  Such people often become fodder for negligent attorneys who take their money and then when a brief or a notice of appeal does not get filed, no big deal.  The client who trusted them won’t be around long enough to sue. We took his case pro bono when we discovered his ordeal.

In Mata’s case, his prior attorney had failed to file an appellate brief—typical negligence (Justice Posner recently called the immigration bar “weak,” and he was right.).  We intervened.  By our count, we had filed a motion to reopen with the Board 105 days from the Board’s denial of the appeal.  The Board denied our motion.

On judicial review, the Fifth Circuit cited Ramos-Bonilla v. Mukasey, 543 F. 3d 216 (5th Cir. 2008) for the proposition that it cannot review the BIA’s denial of a request for equitable tolling because it’s all just “sua sponte” (since it is an untimely motion), and the courts typically refuse jurisdiction to review the Board’s use of its sua sponte power.  (Side note: in preparing our petition for certiorari we counted 16 times in the past 7 years the Fifth Circuit has denied petitions for review with the same logic; in my imagination the court has rigged some sort of Ferris Bueller-type automaton to write these opinions while the court is out joyriding in a borrowed Ferrari.).

Our petition for cert. only asked one question: do the courts have jurisdiction over equitable tolling claims like ours?  On June 15, the Court, in an 8-1 decision voiced by Justice Kagen, said the courts do indeed have jurisdiction over such claims.  In vacating the Fifth Circuit’s decision, the Court reiterated its holding in Kucana that the courts have jurisdiction to review motions to reopen, and added “[n]othing changes when the Board denied a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling.”  Slip. op. at 4.  At first glance, these words appear to expand jurisdiction only where an equitable tolling claim is at issue.  But the Court held that the appeals courts have jurisdiction over all motions to reopen, regardless of whether they are seeking equitable tolling.  Slip op. at 5 (“Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.”).

What does this mean?  While the Court pussyfoots around the big question, i.e. whether the courts can review the BIA’s sua sponte decisions for abuse of discretion, the fact remains that every time the Board invokes its sua sponte authority, it necessarily does so in a decision where it has already found that a motion is either untimely or does not meet the criteria for a motion to reopen or reconsider.  See INA § 240(c)(6-7)).  And because the Court has definitively separated the Board’s rejection of the motion for not meeting statutory criteria from its rejection for not meeting the sua sponte standard, this must mean that every decision of the Board is subject to at least some degree of abuse of discretion review.  Rather than denying jurisdiction for untimeliness, the Fifth Circuit now has to examine whether the Board abused its discretion in rejecting the motion because of its untimeliness.  What goes into this consideration? Mere review of the timeliness of the motion (hopefully taking into account equitable tolling and not just based on ineffective assistance of counsel)?  Or might there also be room to argue that the Board abuses its discretion in denying a motion, regardless of timeliness, when the error or deprivation sought to be redressed is particularly compelling?  When, for example, a client was ordered removed based on incorrect law?  The court must now establish some rule for overturning or not overturning the BIA in such situations, and an absolute prohibition would have the same result as a jurisdictional bar, potentially conflicting with Reyes Mata.

And what of Heckler v. Chaney, 470 US 821 (1985), the case so often relied upon as creating a blanket jurisdictional bar to review of the BIA’s sua sponte decisions?  Reyes Mata does not so much as cite it.  And the Court’s antipathy to judicial creation of artificial jurisdictional barriers to reviewing motions to reopen would seem to conflict with its application in immigration proceedings.

Mata v. Lynch contains at least one more gem.  Justice Kagen’s biggest beef at oral argument (one all the justices seemed to agree with) and the subject of her final thought, slip op. at 8, was that the Fifth Circuit was “wrap[ping]” its “merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other.”  Slip op. at 8.  In other words, the Court is hyper-aware of the appeals courts’ (and presumably of the agencies’) attempts to construe their jurisdiction in such a way that they can avoid rendering a merits decision which would otherwise appear extremely unjust to a reviewing court.  At Gonzalez Olivieri, we represent a small army of unjustly deported clients (removed pre-Lopez v. Gonzalez, pre-Carachuri, pre-Leocal v. Ashcroft, pre-St. Cyr, pre-Judulang, you name it) who would very much like to present their merits claims to the judicial courts and are ready to go all World War Z on the sua sponte jurisdictional wall.  For those of us who labor in the Fifth Circuit, getting equitable tolling (the next big question in Mata) will be a start.  But that wall, built by Heckler, is just another review-shielding jurisdictional barrier as it relates to immigration proceedings, and we, as well, I think, as some of the Supreme Court justices, would like to see it come down.  Mata v. Lynch may hopefully represent one less brick in that wall.

Written by Raed Gonzalez, AILA Member

Without Good Counsel

shutterstock_271782686On April 21, 2015 – a Harvard University graduate student, Rebekah Rodriguez-Lynn,  published a column in the Los Angeles Daily News titled: “How U.S. immigration laws helped tear my family apart.”

Ms. Rodriguez-Lynn is a U.S. citizen and a resident of Southern California; she shares her story, beginning with her marriage to the love of her life, an undocumented Mexican citizen who had crossed over to the U.S. without authorization at age 17.  They had a baby boy and they later moved to Cambridge, MA so she could attend a Harvard graduate program.  She was living the American dream – except that her husband did not have the proper documents.

Wanting to legalize her husband’s immigration status, she eventually filed an Immigrant Petition – Form I-130 – for him that USCIS promptly approved a few months later.  Following a routine process USCIS sent the case to the U.S. Consulate in Cuidad Juarez (CDJ), Mexico for final adjudication of the immigrant visa. After receiving a notice for a visa interview, the family travelled cross-country from MA to CA and down to CDJ.  Her dream of living happily ever after with her family was suddenly shattered though when the visa officer informed her husband that he was subject to a lifetime bar due to his previous unauthorized entries to the U.S., a decision which they could not appeal.  That bar has separated her family for over 10 years.

It is no secret that our immigration laws are broken beyond repair.  On Twitter #RepealIIRAIRA should be trending!  However, that is not the point of this blog.

For over 2 years, without any cause, the State Bar of California has been targeting immigration attorneys with allegations of fraud.  State Rep. Lorena Gonzalez (D-SD) has made it her mission to “protect” immigrants from attorneys who she claims, without a shred of evidence, are systematically defrauding immigrant communities.  She wants to regulate immigration attorneys more than any other lawyers in the State via AB 1159.  The goal of the law is “to prevent unscrupulous practitioners from taking advantage of immigrants’ hopes and taking money for services they could not perform.”

Noble goal, but unfortunately, immigration attorneys are lumped together with notarios.  Since notarios essentially practice law without a license, the State Bar does not have any sway over them.  Perhaps realizing this fact, the State Bar of California released a goal-oriented outreach campaign which warned the public that per AB 1159 it is illegal for immigration lawyers and consultants to take money for services related to federal immigration reform until Congress acts.

When information like this is disseminated, through the State Bar or the offices of our legislators, it confuses people. If a Harvard graduate student made the mistake of not consulting with an immigration lawyer regarding her husband’s case, perhaps because she did not trust an attorney, then anyone could make the same mistake.

It is unconscionable for our public officials – including some members of Congress – not to acknowledge that immigration laws are some of the most unforgiving in our legal system. They should actively encourage their constituents to consult with qualified immigration attorneys if they have any immigration issues. Perhaps if they admit to the reality that our immigration laws are so complicated that only an immigration lawyer may make sense of them they will find the courage to finally fix the problem so families like Rebekah Rodriguez-Lynn’s aren’t separated for life.  #RepealIIRAIRA.

Written by Ally Bolour, Member, AILA Media Advocacy Committee

148,000 Missed Opportunities

shutterstock_148806083I’m just now fully coming out of the chaotic, hectic darkness that has clouded every H-1B season for the past many years.  Once again, I find myself struggling with “Immigration PTSD”  – Post Traumatic Submission Disorder.  The cause of this syndrome is two-fold.  First, I live with the dreaded anticipation that the number of submissions will be such that not even a fair percentage of my submitted applications have a realistic hope of selection.  To make matters worse, I live in fear that, heaven forbid, I have made a minute non-material error, which will cause even a selected application to fail. Sadly, my fears are once again well founded.

This year the USCIS received 233,000 applications for 85,000 available slots.  Thus, 148,000, almost two thirds, of the petitions received in the first five days of April will be rejected out of hand without any review. A lottery has been held and the unpicked petitions so painstakingly pulled together by immigration lawyers, with help from innumerable paralegals and legal assistants, and dutifully delivered on time by FedEx, UPS, or the U.S. Postal Service, will be returned.

The data shows that the number of submissions is a direct reflection of the fact that American employers desperately need the workers for whom they petitioned. Simply, they need these foreign workers to help create products, technology, ideas, and innovations.  No employer in its right mind would go through this process or angst if they did not.  Further, as American Immigration Council Executive Director Ben Johnson recently testified in a  Senate Judiciary Committee hearing, those high-skilled immigrant workers have been shown to go on to create even more jobs, thus building our economy and contributing to the success of us all, not just the company for which they work.  Hopes will be dashed, business plans will crumble, and instead of surging forward with the right personnel, companies will be stalled again for another year while they try to make do.

Finally, and perhaps one of the greatest sources of stress for those trying to assist employers and better the economy, is that hopes will be dashed not just because the numbers alone do not and cannot possibly account for the number of workers needed, but because the process is one that does not allow for one, literally not one, error.

Our immigration system is broken, not just by its antiquated numerical limitations but also by its process.  A missed checkbox is grounds for denial, and although denial is not mandated for such errors, it is permitted.  Unfortunately, permission has become a license to kill an otherwise clearly approvable petition.

Transpose a number in a check so that it is off even by only one dollar and USCIS will reject the application. Tax filings, patent applications, and almost any other type of application can be amended.  While the law does not bar corrections to immigration applications, that opportunity is simply not afforded to filers. To err is human, except in the context of immigration, at least for applicants.

It doesn’t have to be like this. Congress could tie the H-1B visa cap to actual market demand. It’s not a crazy concept. When we had an economic downturn, demand fell, so the H-1B visa cap was reached in months instead of days. Why can’t we have the same sort of rising cap when our economy is doing well?  Similarly, our system does not mandate strict liability or compliance.  We do not need Congressional action to dictate that leniency, where permitted, be provided. The laws, common and good economic sense, do that already.  The H-1B visa system is long overdue for an overhaul – Congress should get started today.

Written by Leslie A. Holman, AILA President

From Leave It to Beaver to Modern Family

shutterstock_152193854The days when one spouse remained at home and the other went to work aren’t the norm any longer in our society.  Although there may still be some households where only one spouse works outside the home, in many cases having two working spouses is one of the requirements of the economic and societal reality within which we now live.

While the Cleavers exemplified the idealized middle-class suburban family of the mid-20th century, times have changed, and now Modern Family brings us the experiences of diverse family units.

Decades of changes within our own culture and values have led to the recognition of both spouses’ talents outside the home.  The traditional roles of domestic spouses and working spouses are no longer rigid models in a family and with two incomes the overall financial stability and security of many family units has improved.

Our country’s H-1B visa program however, lagged behind these realities until last week when the United States Citizenship and Immigration Service (USCIS) finally announced a visa rule revision that will allow spouses of some highly skilled immigrants to apply to work in the United States.  This rule recognizes the contributions spouses of foreign workers can also bring to our society and economy.

USCIS director Leon Rodriguez noted that “[spouses] are, in many cases, in their own right highly skilled workers,” and that “many families struggled financially when a spouse couldn’t work, and in some cases returned to their country.”

More importantly this rule revision will have a tremendous effect on immigrant women because a large number of the H-1B spouses are, in fact, women.  Women who may have completed advanced degrees in their home country and are well qualified to hold jobs in their own professions, but who until now have been barred from doing so. They have had to make a choice, either to pursue their own career or focus entirely on their spouse’s while he was employed on an H-1B visa.  The Administration’s willingness to recognize these inequities for immigrant women living in our society and the agency’s action in revising this arcane rule is another step forward in remedying the complex and outdated rules in our current immigration system.

The announcement and the impact the revision of the rule will have on many foreign workers and their families are welcomed, but this is only a limited remedy.  It is important to note that the new authorization doesn’t apply to the spouses of all H-1B visa holders. The regulations only cover those whose H-1B partners are seeking permanent legal residency and for whom the agency has already approved an employer petition to start the process.

Our immigration system remains a product of the past century and hinders our country’s ability to remain competitive in this global economy.  The efforts by this Administration to bring relief to companies seeking to keep or hire talent should be a catalyst for Congress to get to work on further reform of our immigration laws.

Competitiveness increases profits and strengthens our economy.  Research shows that immigrants complement American workers.   It is time to leave the Cleavers to our history and modernize our immigration laws to chart the economic future of our nation and the financial stability of our families.

Written by Annaluisa Padilla, AILA Second Vice President

In Defense of Consular Officers

shutterstock_123147769For over 25 years, I have been living and working abroad helping noncitizens secure family, work and other types of visas to the United States.  As a specialist in consular law and procedure, I’ve had the honor and the privilege to deal with American consular officers at posts around the world, and have spent countless hours studying and writing about Volume 9 of the Foreign Affairs Manual (FAM), the authoritative guidance governing every consular officer’s process for issuance of a U.S. visa.  Like other immigration lawyers, I am closely following the case of Kerry v. Din pending before the Supreme Court (argument scheduled for Monday February 23).  At stake in that case: whether the courtroom door is open to an American citizen asking for a minimal explanation about the denial of her spouse’s visa on what the government asserts are terrorism grounds.

The premise of the Solicitor General’s (SG) argument is that the issuance or denial of visas is a discretionary function carried out by consular officers. The fallacy of that description, however, is that it’s outdated.  It ignores the reality of the Homeland Security Act of 2002 – Congress’ response to the 9/11 tragedies – which gives the then-newly-created Department of Homeland Security (DHS) an overarching role in the visa process, especially when it comes to denials based on security grounds.  (For more information on DHS’s predominant role in the visa process, see here, here, and here).

It is DHS’ role in database-driven national-security determinations, like the one at issue in Din, that’s explained in an amici brief by a group of former consular officers supporting Ms. Din.  For the government to claim that courts shouldn’t review “discretionary” visa decisions by consular officers begs the case’s key question, because those decisions are often made based not on the consular officer’s discretion but rather on DHS inadmissibility findings entered into national-security/terrorism databases and watchlists.

A strange thing happened shortly after the compelling amici brief by the former consular officers was filed. In the brief period between filing of the amici brief and the date for filing of the SG’s reply brief, the section of the FAM relating to the duty of consular officers in cases involving DHS findings of inadmissibility on a national-security/terrorism database or watchlist was suddenly changed.

Previously, the guidance to consular officers had stated:

Except in cases involving non-permanent inadmissibility, you should not look behind a definitive DHS finding or re-adjudicate the alien’s eligibility with respect to the provision of inadmissibility described in the DHS lookout entry.

But suddenly, as of January 29, 2015 this guidance now states:

Except in cases involving non-permanent inadmissibility or in cases of 212(a)(3) grounds, you should not look behind a definitive DHS finding or re-adjudicate the alien’s eligibility with respect to the provision of inadmissibility described in the DHS lookout entry.

The 212(a)(3) grounds are the security and terrorist-based grounds of ineligibility which served as the basis for the denial of the visa to Ms. Din’s husband.

By virtue of this sudden FAM change, the SG shamelessly claimed in its reply brief that “consular officers do not automatically deny a visa application pursuant…when there is a ‘hit’ in the terrorist screening database (or another database)” and that these terrorist database determinations are even “subject to reexamination” thorough the Security Advisory Opinion (SAO) process.

The curious speed and unusual declassification of that change, and its prospective application, which served to further the SG’s litigation position, is the subject of another blog.

The SG’s claim is entirely misleading. The plain language of the FAM change requires consular officers adjudicating cases potentially raising national-security concerns to seek an SAO. But consular officers are not even part of the SAO “loop” – the SAO is managed through an inter-agency process in DC.  As such, the FAM guidance, even as changed a few weeks ago, provides no opportunity for the consular officer him or herself to exercise any modicum of discretion to “reexamine” or otherwise look behind the DHS determination. Moreover, the revised FAM provision does nothing to alter the division of responsibilities in the Memorandum of Understanding between the Secretaries of States and Homeland Security Concerning the Implementation of Section 428 of the Homeland Security Act (MOU).  Paragraph 4.b. of that MOU provides that when the State Department disagrees with the SAO of a third agency, it is DHS—not the State Department—that resolves the conflict.  Whatever change the SG has tried to conjure in the FAM, it leaves undisturbed the fact that consular officers do not deny visas as an exercise of discretion in database-driven national-security cases.

The SG’s rhetorical and sub-regulatory maneuvers have failed to conceal that the government’s argument boils down to an assertion: “Trust Us.” It is an assertion belied by the facts in the Ibrahim case, where a person the government admits poses no terrorism threat was wrongly included in government watchlists because an FBI agent checked the wrong box on a nomination form.  The fundamental principle of judicial review, particularly apposite when an American citizen’s family life is at stake, rejects leaving to government fiat the maintenance of gigantic databases disqualifying spouses from living together, without any independent oversight.  In Kerry v. Din, the Court should uphold the court of appeals’ decision that some visa decisions, including those having nothing to do with a consular officer’s discretion, are not completely shielded from judicial review.

Written by Liam Schwartz, Member, AILA State Department Liaison Committee

Big Data, Bad Data: Resolving the Tyranny of the Database

shutterstock_239579581This term, the Supreme Court is considering a case that implicates the doctrine of “consular non-reviewability”–the legal principle that generally, courts in the United States will not review the discretionary decisions of American consular officers if they deny visa applications overseas. The doctrine has a long history in Supreme Court jurisprudence, and is based on both constitutional and practical concerns. As a matter of constitutional law, consular decisions may be tied up with foreign policy concerns that the Courts generally leave to the Executive Branch; as a matter of practical concern, both the volume of visa applications and the difficulties of getting records of decisions from far-flung consular posts make meaningful judicial review impracticable.

One of the briefs by amici in the case comes from a group of former consular officers, and attacks both the legal and practical justifications for the doctrine in a new way. They highlight a reality facing any American company or citizen seeking to sponsor a foreign national from abroad. The former consular officers detail the “veto power” that the Department of Homeland Security (DHS) has over any consular decision to grant a visa, and how that power is exercised not through individual discretionary decisions, but through entry of information into a complex of databases overseen by DHS.

The consular officers describe, in chilling detail, how one physician from Malaysia was denied renewal of her temporary work visa because an FBI officer checked the wrong box on a form used to enter data into one of the databases that feeds into the DHS system. The error was only discovered after extensive litigation, in which the government fought any attempt to disclose the basis for its decision.

The problems caused by unknown (and, as a practical matter, undiscoverable) databases used by the immigration authorities are not just limited to foreign nationals when they apply for visas, however. Business immigration practitioners will all be able to tell stories of having petitions filed by established companies and other institutions questioned because of bad information in the commercial database used by USCIS to verify information in business-related petitions. My own favorite experience was a Request for Evidence seeking proof that an internationally-renowned research institution continued to exist, because the database did not have any recent information of their commercial activities in it – when a quick search of the Internet would have turned up news stories about one of the institution’s faculty having won the Nobel Prize the month before.

The tyranny of “what’s in the computer” extends through most immigration-related processes, and can be difficult to remedy. Recently in our office, we encountered a situation in which the Department of State rejected an immigrant visa applicant, telling him that he had committed fraud in a prior visa application. We were able to determine that a former employer of the visa applicant had filed a petition for our client, and the consulate had returned it to the Department of Homeland Security to determine whether the employer had committed fraud. DHS, in turn, had entered in the computer that the consulate had found fraud, without doing any determination about the petition. We now have a situation where the State Department says it can’t do anything to change the decision, because DHS made it; DHS, in turn, says it cannot do anything to change the decision because the State Department made the determination.

For individuals caught in such dilemmas, litigation against the government is often the only hope, and offers no guarantee of success. The government normally fights such suits by arguing the court has no jurisdiction, rather than trying to argue that the decision was supported by sufficient evidence. Even for U.S. citizens caught in the web of databases, litigation to remove one’s name from watch lists can be an expensive and risky proposition.

If the U.S. Government is going to rely on these databases to make decisions affecting US businesses and family members, they need to create a more robust process through which errors in these databases can be brought to light and corrected. As the consular officers note in their brief, too often bureaucratic inertia and workload constraints prevent consular officers or others in the immigration system from being able to get to the bottom of a “flag” on an applicant’s record. A more robust Privacy Officer position within DHS, with sufficient staff and resources to be able to respond to public inquiries and help resolve database errors, would go a long way to ensure that visa decisions are made on the basis of high quality information, and that American families and businesses have a mechanism to redress database problems that affect their lives and livelihoods.

By William Stock, AILA First Vice President

Mexican Consulates Will Issue Birth Certificates…Starting Today!

shutterstock_160340369A longtime struggle for many Mexican citizens living in the United States is the inability to access their birth records.  Some may have been born in a state where they no longer have contacts and they struggle to acquire their birth certificate.  In practice, this can definitely be a significant hurdle that our clientele faces.  As of today, the Mexican government plans to make the process of acquiring a birth certificate much easier.  All 50 consulates of Mexico in the United States will begin issuing certified copies of those essential documents.

This announcement and change in policy comes at a critical juncture for millions of Mexican citizens living in the United States that may be eligible for Deferred Action for Parents or Childhood Arrivals (DAPA/DACA).  As part of the process in applying for the DAPA/DACA benefit, applicants will need to provide evidence of who they are.  Having a birth certificate, passport or some form of government issued identification will be essential in getting an approval from the U.S. Department of Homeland Security.

By providing birth certificates at the consulate, the Mexican government will hopefully make the process less of a struggle.  We at AILA applaud the Mexican government for making this important change to their policy on birth certificate issuance!

Don’t forget that the roll-out of DACA and DAPA is planned sometime in the coming months.  If you intend to file for either DACA or DAPA, you can take the following steps to prepare:

  1. Have proof of who you are (see above).
  2. Collect documentation proving that you have been in the United States and continuously resided since before January 1, 2010.
  3. For DAPA applicants proof that you are a parent of a permanent resident or U.S. citizen born on or before November 20, 2014.
  4. Proof that the applicant was physically present in the United States on November 20, 2014.
  5. Save your money. The filing fee is expected to be $465 or possibly more for DAPA.  We are still awaiting more guidance regarding the fees.
  6. Collect any criminal records that you may have including arrest records or court dispositions. If you are uncertain about whether a record exists you should get an FBI background check.
  7. If you have any derogatory immigration history or criminal record it is highly recommended that you meet with a qualified attorney to analyze your situation.
  8. Do not fall victim to fraud! Make sure you get information or legal advice from someone you know and trust.

Written by Mo Goldman, Chair, AILA Media Advocacy Committee