Archive for the ‘Immigration, General’ Category.

It’s Our Security, Stupid

shutterstock_126785846I find myself in the unusual position today of agreeing with Rep. Peter King (R-NY) in his NY Daily News Op-Ed Wednesday (Guest column: Brooklyn terror suspects show it’s insane to not approve money for Homeland Security ) where he argues that security of the United States is too important and that funding the Department of Homeland Security (DHS) is essential to protect our country.  He is right.  As we sit back and watch the latest drama unfold on Capitol Hill, one cannot but wonder why funding our national security would ever become a political issue.  Clearly it is in our nation’s best interest to fund the agency which is responsible for protecting the homeland from terrorist attack.   Now more than ever Congress should recognize that terrorism can happen in the West and is being called upon by radical leaders abroad.  All they need to do is look at our friends in France, Holland and Canada to see recent examples of attacks on innocent civilians and local police.  Moreover, recently the terrorist group Al Shabaab called for an attack on American civilians in shopping malls such as the Mall of America.  Rep. King points out the need to fund DHS based on the three individuals who were arrested recently in New York City who planned to travel to Syria to fight with ISIL or attack American civilians in New York if they could not reach Syria.  Rep. King is properly putting the people of New York and America ahead of a political agenda.

Regardless of one’s position on the legality of President Obama’s Executive Action memos or immigration in general, we should all be able to agree as Americans that the safety and protection of the people of the United States is a priority regardless of political party.  As I write this, Congress is on a path to fund DHS for only three weeks.  It is unfortunate that members of Congress continue to gamble with national security and our lives to advance individual political gain.  We can only sit back and grit our teeth as the critical votes start to line up before a dysfunctional Congress that is putting party politics before American lives and wellbeing.

Rep. King correctly notes that “you don’t have to be a genius to carry out a terrorist attack.”  You also don’t have to be a genius to understand that national security and the safety of America is more important than petty partisan politics.  Rep. King gets it. Unfortunately, it seems there are not enough members of Congress who want to stand up and represent the American people rather than their individual parties and anti-immigration politics.  We can only hope their selfish gamble doesn’t cost American lives.

Written by Matthew Maiona, Member, AILA Media Advocacy Committee

The Unexpected Virtue of Ignorance

shutterstock_250501696Or (Thank You Sean Penn for Starting the Immigration Discussion at the Oscars)

I love film.  I love the Oscars.  To me, the Oscars, unlike the other award shows, represent the best of all aspects of the highly competitive, brilliant, and inspiring film industry.  As an immigration lawyer with an artistic client base, I am always interested to see nominees from around the world coming together in Los Angeles to celebrate the universal brilliance of film at the Academy Awards.  This year in the Dolby Theatre we again heard the talented winners accept their Oscar statues with many accents for their work on films written, produced, filmed, edited, and distributed in the U.S. and internationally.  We saw dual nationals, Julianne Moore (U.S./U.K.) win best actress for the New York based Still Alice, Mathilde Bonnefoy (France/U.S.), for best documentary, Citizenfour, Canadian Craig Mann and Brit Ben Wilkins accept the award for sound mixing for the New York based Whiplash and the international team of The Grand Budapest Hotel, with winners from Italy, France, and the U.K. garnering artistic awards in costume design, original score, and hair and makeup.

Unique this year, however, was the truly international compilation of the all American story of Birdman:  Or (The Unexpected Virtue of Ignorance) which was awarded best picture, cinematography, directing and original screenplay.  Birdman is all American in that its subject is the U.S. entertainment industry, recognized the world over as “Broadway” for the best of theatre and “Hollywood” for film, based on the short story by American treasure, Raymond Carver and shot entirely in New York City.  The Birdman team, including an Argentine writer, Mexican director, producer and cinematographer and British actors, along with their American colleagues, created the best film of the year as judged by their peers.  This achievement is in itself the American dream.  As Alejandro González Iñárritu, multiple Oscar winner for Birdman, so elegantly stated:

“I want to dedicate this award for my fellow Mexicans…the ones that live in this country who are part of the latest generation of immigrants in this country, I just pray that they can be treated with the same dignity and the respect of the ones who came before and (built) this incredible immigrant nation.” (Associated Press)

Yes, immigrants did build this country; they also built our entertainment industry, seen as the best, or at least the most influential, in the world.  Indeed, many of our most legendary directors including Frances Ford Coppola, Stanley Kubrick, Martin Scorsese, Mel Brooks, Robert Zemeckis, and John Houston are sons or grandsons of the immigrants of the early 20th century – those huddled masses who in their own time fought discrimination, marginalization and language barriers, but who, unlike today’s immigrants were welcomed by laws which enabled their integration into the U.S.   The current state of our immigration laws, with the unreasonable barriers and limitations on work visas and green cards, the limitations for those who enter without inspection and the crippling three and ten year bars is holding back those who come to this country in search of the American dream and depriving their children of the same opportunities afforded to the children of the immigrants of the early 20th century.  I don’t know how Alejandro González Iñárritu came to the U.S. or if he has a green card, as possibly inappropriately (or even ignorantly) stated by Best Picture presenter, Sean Penn, but he is clearly extraordinary, and accordingly would most likely be eligible for a work visa or green card under our current immigration laws.

While welcoming the best and brightest can be beneficial to the U.S., let’s not forget all those who came before us who were not extraordinary in their fields – those hard working young men and women seeking a better life; those whose children and grandchildren grew up to be legends of the film industry.  A brilliant director/screenwriter/ film producer/composer/immigrant has challenged us to look at the American dream in both his Academy award winning film and his acceptance speech; he has challenged lawmakers to enact laws that treat immigrants with dignity and respect worthy of this incredible nation.

I urge Congress to take up this challenge, to educate themselves about these important issues instead of repeating rhetoric aimed at creating more confusion and condemnation rather than educated debate and effective change. Our country has prospered in large part because of the contribution of immigrants and their children – those who had the next big great idea – whether it be in the arts, business, economics, finance, law or any other field. That is inspiring to me, just like the Oscars.

 Written by Anastasia Tonello, AILA National Treasurer

Traitor? Not So Much.

shutterstock_171828821I was called a traitor, twice, in less than an hour today.

It’s not the first time in my role as AILA’s Executive Director that I’ve been called that, but it still offends. The fallacies about immigrants, about the undocumented, about our borders and our government’s actions continue to linger.

This time it was on C-Span’s Washington Journal. The callers were cut off when they spit out the accusation, but I tried to honestly answer their questions while inside I was yelling “HOW DARE YOU?”

I’m not a traitor when I ask our Congress to pass good immigration reform, actual legislation that would fix the broken system and address the undocumented already here.

I’m not a traitor when I acknowledge that the millions of people already in the United States, already building lives here, paying taxes and working, need a way out of the shadows, away from fear, and into the light.

I’m not a traitor when I read studies modeling the economic impact of giving work authorization to those who apply for DACA and DAPA that show it will in fact help the economy.

I’m not a traitor when I think having people come forward for DACA and DAPA will actually help our country prioritize enforcement on those who actually pose a potential risk to public safety.

I’m not a traitor when I think that a U.S. citizen child is better off with a loving, caring mother and father than to have her family torn apart and her parents deported, like Diane Guererro described.

I’m not a traitor when I believe that our country at its best will welcome those striving for the American dream, no matter their race or color, instead of spitting on them.

I’m not a traitor when I explain that a federal judge’s decision was the wrong one, based on many of the same spurious anti-immigrant claims that those callers espoused.

I’m not a traitor when I still revere what the Statue of Liberty stands for, when I acknowledge that many of my own ancestors came to this country and benefitted from our Constitution’s rights for those who reside here.

I’m not a traitor when I can put myself into someone else’s shoes, a desperate mom or a terrorized child, who seeks asylum in this land of the free.

And I’m certainly not a traitor when I agree to answer questions, honestly and with as much legal expertise as possible, to anyone who calls in on a national news channel. I just get called one then.

Written by Crystal Williams, AILA Executive Director

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

Politicizing Established Principles of Prosecutorial Discretion Without Offering Real Solutions

shutterstock_220237405Judge Andrew Hanen’s ruling this week issuing a temporary injunction to the expanded DACA and new DAPA programs announced as part of the President’s concrete steps to alleviate our current dysfunctional immigration system is nothing more than a political kneejerk reaction to the Administration’s efforts.

Congress has been unable to pass any legislative reform of our immigration laws despite laudable efforts by the Senate in 2013 when they presented the House with a bipartisan comprehensive immigration bill to address the three major components of immigration reform:  (1) strengthening enforcement, (2) addressing undocumented immigrants already in the US, and (3) improvement of our legal immigration process.

Obstructionists to real reform of our immigration laws have called Judge Hanen’s decision a “victory on the rule of law”; but nothing could be further from the truth.  The only ones victorious in this are restrictionists for whom sensible, reasonable measures are anathema.  The ruling sadly diverts attention from the true state of affairs – the inability of our Congress to provide real solutions for our broken immigration system.

In the past weeks, Congress appears to have set aside working on legislation that would tangibly address our immigration challenges in a balanced and commonsense manner.  We can’t take that inaction lying down. We must continue to pressure our lawmakers to take concrete steps to address the unworkable myriad of contradictory and outdated immigration laws on our books, laws that stifle entrepreneurship, hurt our economy, and separate families.  The DACA and DAPA programs did nothing more than properly direct the agency to maximize and intelligently implement prosecutorial actions to better align our nation’s security by prioritizing the removal of those who truly are a danger.

The lawsuit against DAPA and DACA is a waste of taxpayer funds, intended to obstruct programs that would provide real tangible benefits to individuals, communities and our economy at large. It is short-sighted and ineffective.  A plethora of economic studies have substantiated data that the DACA program initiated in June of 2012 has brought economic prosperity and security to both individuals and communities.  DACA and DAPA are supported by law enforcement officials around the country because they will help ensure enforcement is smarter, more efficient, and economical.

Politics must be left at the door, lawmakers must roll up their sleeves and work on providing real solutions to our immigration laws that will ensure our nation’s competitiveness, recognize the contribution of immigrants, and protect our borders. Sadly the ruling does none of those things. Congress must act.

Written by Annaluisa Padilla, AILA Second Vice President

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

The Weight of 216 days

shutterstock_68484649216 days. That is how long Sofía and her daughter Isabel* had to wait for a chance at release from family detention at the southern border. After over seven months of confinement at two different facilities, they will finally be reunited with their family lawfully residing in the United States.

The legal battle Sofía and her daughter have fought in Artesia and now Karnes has been almost incomprehensible. Fleeing years of domestic abuse, forced servitude, and death threats, Sofía chose to come to the United States to seek protection. She and Isabel, who recently turned five years old, were apprehended at the border in late June. After Sofía passed a credible fear interview (despite the fact that it was not in her native language), ICE refused to offer a bond. In late July, the Immigration Judge also denied Sofía a bond, despite her positive credible fear finding and documentation of a stable residence with her lawful permanent resident father, as well as proof of the other family members with legal status in the United States. In October the Pro Bono Project filed a motion for subsequent bond, which was summarily denied. The Immigration Judge did not provide an explanation for his decision and simply stated: “I am going to deny that now.”

There was enormous disappointment and outrage over the bond decisions, but Sofía continued to express the importance of pursuing her case. The Pro Bono Project saw the strength of her asylum claim and agreed to represent her at her individual hearing. The client had endured horrific persecution, being treated as an indentured servant and enduring physical and verbal abuse on a regular basis, all because of her indigenous background and her family membership. Despite attempts to escape this abuse within the country, she received death threats until the very days she left her home country.

We believed this was a strong asylum case. Sofía’s heartbreaking testimony, alongside the legal analysis that Sofía and her daughter had been persecuted on the basis of multiple protected grounds, wove a compelling narrative. However, the Immigration Judge denied her claim, finding that the years of physical abuse, servitude, and death threats did not meet the standard of persecution, and that she had an internal relocation option. The legal team was shocked. Upon receiving the translation that her case had been denied, Sofía collapsed, falling on the courtroom table for support and sobbing. Everyone left the courtroom trailer in devastation and disbelief.

In the days after the asylum decision, Sofía, with the support of the Pro Bono Project legal team, had to decide how to proceed and whether to pursue an appeal, knowing that it could mean months more of detention. It seemed that this decision weighed on her, especially witnessing the impact of the detention conditions on her daughter’s physical and mental wellbeing. But Sofía also expressed the continued danger she and her daughter faced in returning, and believed in the injustice of what the Immigration Judge had done in denying her case, so she decided to appeal the Immigration Judge’s decision, while also pursuing release for her and her daughter.

In January, I filed a second motion for subsequent bond. By this time, the venue for the case had been changed three times and Sofía and her child had been detained for over six months. The Immigration Judge identified that there had been a change in circumstances based on the new expert evidence detailing how Sofía, her daughter, and the women and kids who have been detained are not in fact national security concerns, and set a bond of $7500. After years of living in terror in her home country, followed by seven months of detention in the country that was meant to protect her, Sofía and Isabel can leave a world of constant surveillance, confinement, and fear.

The injustices Sofía and her daughter have had to endure illustrate what can go wrong at pretty much every stage of the family detention process. Had it not been for Sofia’s resilience, as well as her and the legal team’s belief in her right to stay in the United States, this valid asylum claim could have been abandoned at many points in the process. While I am relieved that she and her daughter have a chance at release, I also know that there is a long appeal road ahead, as well as their personal path to recovery from the physical and mental stress caused by prolonged detention. And I am angry knowing that the wrongs that have been committed against them cannot be corrected, that she and her daughter will not receive compensation or atonement for the inhumane treatment they underwent.

I talked with Sofía on the phone two days ago and asked her if I could include information about her case in this blog post and whether there was anything she would like the American public to know. Her words struck me as powerful and true: “What happened to me is unfair. To not even give me the chance to live with my family here in the United States, to keep me and my daughter in a jail. I want people to know that those who suffer the most in detention are the kids, that this is no place for children. Kids in jail, it is so terrible, so unfair.” Sofía is right.

* Names have been changed

Written by Julie Braker, AILA Member and Artesia Volunteer

‘Tis the Season – H-1B SEASON!

shutterstock_147492446I’m surrounded by dry Christmas trees lying on the sidewalk, nobody is eating and drinking ridiculous amounts any more, and people are pretending to exercise as part of their New Year’s resolutions  – it must be H-1B season!

For 2015, here we are again, with no increase in numbers to the H-1B cap (at least not as of yet). We face harsher adjudicators, with more clients who want to apply, and those clients want a guarantee that they will definitely obtain an H-1B. Such a guarantee can’t be given – not just because of the cap and resulting lottery, but because any denial is almost always upheld. According to the 2013 Ombudsman’s report which was brought to our attention by Diane Butler of Seattle, WA, “The vast majority of appeals to the AAO are dismissed, that is, denials are upheld.  For H-1Bs in 2013, 858 appeals were dismissed and only 12 appeals were sustained (overturning denials), approximately 1%!

Wait, why are we excited to start H-1B season again?

The H-1B is one of the few visas available for US employers who want to remain competitive in the global economy, that do not require a particular nationality (Es), extraordinary ability (Os), or having worked for that company previously (Ls). Seems like these are people our country would want to encourage. Instead we attorneys are constantly battling the service centers for a visa that not only helps to retain talented young students who have newly graduated, but also gives US employers a choice in worker.

There is nothing more frustrating than an employer telling you how much they desperately need this person, how much value this person either already brings to the table or how much they believe the person will add value to the company and help that company to grow, and yet USCIS has taken very strict, almost draconian views of a small company’s ability to support a new position, and in particular a business development position.

I don’t mind sharing with you (although it pains me) that I had a particularly tough denial for a small but growing company.  It was immensely frustrating because the company, though small, had a detailed business plan which included growth, they had funding of well over a million dollars, and were registered on the SEC showing their plans to go public, and we submitted letters of support from other companies, similar jobs from the industry.  Crickets.  USCIS rejected our evidence and even stated that “companies such as yours would normally outsource such a position.”  Really?  Not only do you want to deny this position, but now you want a company from the U.S. to outsource this job???   Years ago the same position, for the same type of company would have been approved in the blink of an eye.  Times have changed.

We are not completely powerless.  First and foremost, as attorneys we need to make sure that our work is exemplary.  If we are armed with an airtight case, it will make the next stages much easier to embark upon.  Next, you need to know your options after an egregious denial: do you appeal?  Do you litigate?  Litigation?  I am a business immigration attorney.  I do transactional work, not the courtroom.  Can you do it?

Absolutely!  Tammy Fox-Isicoff of Miami, FL has tried and tested this method with success: “I haven’t abandoned all hope- but after 30 yrs. of doing this… and holding out “hope,” the hope is fading. Much of the time, I go to Federal Court. pro bono, even for clients who can pay, to right a wrong. Federal Court is all on motion, on these cases. The Court looks at the administrative records and decides if the immigration decision is arbitrary, capricious or an abuse of discretion. I paper my files, put in affidavits from experts, and academia. The government provides no experts. It is often not difficult to litigate and win a well prepared NIV filing. In fact, usually the appeal becomes the Motion for Summary Judgment-thus the time commitment is often only several hours more than it was for the appeal. ”

But we should not stop at litigation.  Not everyone has the time or resources for that.  We need to collectively strategize and bring to the attention of the Administration what a waste of resources these denials are.  Additionally, think about the loss in tax revenue, resources and filing fees for employers.  Employers/businesses are constituents too.   Congressmen should be bending over backwards to help businesses with this issue.  The enormous misconception is that H-1Bs are cheap labor.  Whoever made that statement clearly did not look up the Department of Labor’s wage survey.  Collectively, we can change this.

And until we do, we all still have the cap season ahead of us.

On Monday night, AILA’s New York City Chapter had our 2015 kick-off meeting.  The topic was H-1Bs Strategies and Preparing For April 1st. We were joined by Rachel Baskin, Bill Stock, Allen Orr and Alexis Axelimage1 (2)rad, who all gave us helpful hints and strategies of how to deal with upcoming H-1B season. Here are a few highlights:

  • File the LCA Early: It is never too early to file an LCA. Sure, the employee will lose 4-6 months on the back end, but that is not completely lost by any means. It is better to start filing them now and avoid iCert issues, business existence issues and general glitches or errors.
  • History: Find out the US immigration history of the Beneficiary: surprisingly some people are not aware that they have even had an H-1B before. You may be able to file now to see if their H-1B can be ported, and at least you will find out now instead of in the lottery on April 1st.
  • Errors: Unfortunately, errors are fatal during a lottery. Any mistake can cost you the petition – checks, signatures, lack of checking the correct box.
  • Quality control: For solos or small practices, everyone really: get it done early. Don’t put a package together same day as you are sending it out. If you scan items in, review the pdf.  Review the shipping label. Do not send to the wrong address. Did the employer move since you last filed a petition for them? Review, review, review.
  • Filing Fees: If your client does not want to write the filing fee checks directly, or you wish to monitor the checks, put the money in the trust account and write checks from the trust account.
  • Don’t hold back: given the shift toward negative adjudications, don’t hold back any information/evidence that could bolster the case.

Whether you have one H-1B to file, or ten, or one thousand, we are all in this together. The only way to show that USCIS is issuing unreasonable RFEs is to send them to reports@aila.org or use liaison.

See you at season’s end!

Written by Neena Dutta, Chair, AILA NYC Chapter

Starting Off the New Year

shutterstock_238081117I promised myself that this year I would sleep in and not rush to my email and/or open my computer before I had my first cup of coffee. Sigh. At 6:45 a.m. on the first day of 2015 I had already broken my first resolution.

Resolutions are the bane of many an existence right about now. They are at the same time harbingers of hope and change and also the unwelcome reminders of good intentions forgotten or ignored.

Although our President did not call his recent statements and plans for changes to our immigration system “resolutions,” I am considering them such and I am resolved (Holman Resolution #2) to see that he keeps them.

Heck, I’m aiming big. Why not?  Surely it is an easier resolution to keep than following some new-fangled diet or juice cleanse.

The President told us that business development in the U.S. and keeping families together are of paramount importance to him and necessary for the wellbeing of our country. I agree. We all agree. Lets make it so, now, in early 2015.

The President doesn’t need to wait for regulations to be written. If he and his administration take the following four easy steps we can and will start to immediately see some of the reform we desperately need.

  1. Direct the agencies responsible for immigration (USCIS, CBP, ICE, DOS) to follow the laws as written and with an eye towards inclusion rather than exclusion! We have lived with the preference for denial for too long. A bit of direction to the agencies in this area (i.e. returning to the long-followed definition of affiliation that permitted hospitals and medical facilities to employ the doctors they so desperately need, actually approving statutorily qualified L-1 petitions, recognizing that employees genuinely telecommute, recognizing the importance of foreign artists and athletes) would in just a few months make huge inroads in accomplishing what we need and what the President said he desires.
  2. Ensure that the agencies speak to and hear each other by hosting regular Interagency Stakeholder meetings. Since the dissolution of the INS and creation of separate agencies to accomplish what was once accomplished by one agency, adjudications have become wildly inconsistent. Needless to say the lack of consistency in adjudications has created havoc for businesses and is causing them to give up on the U.S. and take their money and innovations elsewhere. We tell our businesses that even if their petition has been approved another agency may decide not to honor the approval and may subsequently deny it. And to make matters worse, they won’t be told why.
  3. Remind the agencies that attorneys are an integral part of the process and encourage and require them to work meaningfully with counsel, both in liaision and as counsel to clients. I can’t count the amount of times I, my clients, and other AILA members related encounters with the government where attorney intervention, assistance or even input was not only denied, but worse disparaged.  My favorite quote and the most often repeated in the past 8 years is this: “when we see an attorney’s letter or encounter their presence we assume that something is wrong.”  Really?  I hire an accountant not because I cheat at my taxes but because she ensures that what I file is done correctly.  Our President is himself an attorney, he must get this.
  4. Stop the immoral and inhumane incarceration of kids and their moms fleeing danger and ensure that the laws we enacted to protect them are followed.   Our President knows that denying bond and/or moving families without notice to their attorneys or relatives and without due process is wrong and harmful. He can stop it.  He must stop it.

The President is lucky. He has two years to accomplish his resolutions and to fight tooth and nail for additional action on immigration through Congress and the executive branch. I thank him for his promises and resolve that we, AILA, will do what we can to guarantee his success.  Here’s to, and cheers to, 2015.

Written by Leslie A. Holman, AILA President

The Happiest Day Still Shadowed by Injustice

shutterstock_190048664Yesterday was one of the happiest days in my life as an immigration lawyer.

I’m helping out pro bono with clients at the Karnes Family Detention Center in Texas and yesterday Immigration Judge Glenn McPhaul granted a $1500 bond to my client from El Salvador and her 19 month old toddler. They’ve both been incarcerated by our government for over two months.

My client is one of the bravest people I have ever met.  She has suffered through unspeakable domestic violence and gang abuse and is still just a teenager. We’re working now to post this bond and to get Mama and baby on their way to their sponsor in New York.

At the end of our hearing, Judge McPhaul turned to me and asked if I wanted to speak with my client.

I certainly wanted to explain to her in my best Spanish that we’d won the lowest bond amount possible from this court and that soon she and her toddler will be freed and traveling to New York. But I got so choked up I first had to compose myself.  With tears in my eyes,  I  explained the good news.  She also cried with joy and relief.  Everyone in the courtroom, including the judge, seemed to be very happy at that point.

Please understand that I’ve concentrated my immigration career on employment and family based

immigration cases. I was worried that my training and experience hadn’t prepared me for this kind of case, and that I hadn’t been around immigration court enough to be a competent advocate for my valiant client. Fortunately I wasn’t in this alone.

I had my long-time mentor, Barbara Hines, telling me why I needed to volunteer for a Karnes bond case, about the difference I could make, and her promise to help me.

I had another mentor, Kate Lincoln-Goldfinch. Kate was with me as I traveled to Karnes when we first met my client (and her own pro bono client). She accompanied me to two immigration court appearances in San Antonio including yesterday’s bond hearing.  Kate fielded my texts, emails, and calls, and gave me wonderful advice and encouragement.

There are a number of other wonderful lawyers who encouraged and helped me.  I now have a much greater admiration and respect for all pro bono immigration defense lawyers, and all the lawyers and support staff at the nonprofit agencies who fight these righteous battles each and every day.

Although I’m elated that my client and her baby will be free to await the remainder of their court proceedings while being kept safe and secure by relatives who wait with open arms, I’m absolutely appalled and disappointed that our country is detaining children and families.  It is unconscionable for our country to detain children and families.

The happiest day for me as an immigration lawyer will really be when family detention stops and when our government acts in a way that reflects our values and our history. That day is not today. I hope it’s coming  soon. I urge you to step forward to oppose family detention and help these clients who so desperately need our advocacy and protection.

Written by Paul Parsons, AILA Member and Karnes Volunteer

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If you are an AILA member who wants to volunteer at a family detention center, please go to http://www.aila.org/beavolunteer or feel free to contact Maheen Taqui at mtaqui@aila.org–we are looking for more as the work continues and we could really use your help.

If you aren’t able to come help in person, consider donating at http://www.aila.org/helpthevolunteers. And thank you!

To watch videos of the volunteers at Artesia and elsewhere sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.