Miami Business Law Blog

One of the issues that we face the most in our immigration practice is the lack of clarity and/or transparency in the processing times that U.S. Citizenship and Immigration Services ("USCIS") has for adjudicating petitions. This makes clients frustrated on many levels, but it is something that has become the new normal in our immigration environment.

For example, we've had several EB-1 petitions pending for considerably longer than the USCIS published processing time, but despite multiple case status requests, nothing happens. In one case, we are going on more than 18 months and the published USCIS processing time is a maximum of 11 months. That case involves a multinational U.S. company that has worldwide revenues of over $60 million. At the same time, we have been receiving approvals on similar petitions within a period of less than 8 months. How can this be? There is simply no excuse.

In one of several EB-5 petitions that we've presented, we have been waiting more than 21 months and when we inquired regarding the status of that petition, the published USCIS processing times were suddenly changed to a maximum of 49.5 months. It seems as if someone is simply playing with the numbers.

Moreover, unless the client wants to litigate the case in federal court, which we have advised is an option, there is nothing that can be done. In fact, in an I-130 marriage petition (where a USC marries a foreign national), we've requested expediated processing because of a critical medical condition, but USCIS responded that expedited processing was not available because the condition was not an emergency. In that case, the U.S. citizen client needed to have emergency surgery and her physician provided a letter stating that because of the nature of the surgery, the foreign national husband should be present for the surgery. USCIS's response that the condition was not an emergency was disgusting and alarming.  As such, the foreign national husband cannot come to the U.S. and the surgery, despite considered an emergency by the client's physician, is being unreasonably delayed.

Yet, these are the times we are living with. Indeed, the average processing time is up 46 percent since 2016 despite the fact that the number of new applications being submitted is actually lower than previous years.

This week, a group of former associates of the Jones Day law firm filed a class-action complaint against the firm alleging that female associates are discriminated against based on gender, pregnancy, and maternity.  The Complaint (Complaint versus Jones Day.pdf) that was filed in the U.S. District Court for the District of Colombia, alleges that the law firm hires approximately the same number of male and female associates, but that women associates make less money and are outnumbered when it comes to making partner. According to the lawsuit, if a woman gets pregnant, the consequences are worse - she usually gets fired.

Unfortunately, this type of conduct is pervasive.  I myself have not only witnessed this type of conduct first hand but have also brought lawsuits against firms and companies for the very same allegations that are being raised by the former Jones Day associates.  For example, last year we finally won a lawsuit that I brought on behalf of a female manager at AutoNation who was passed up for a promotion because she was "not a man."  We brought that case in the year 2014, so it took us a good four years to obtain relief for our client.  In that Complaint (Complaint verses Autonation.pdf) we alleged that the plaintiff had worked at the auto dealership for over 20 years and had been assistant parts manager for the last 10 years. When the parts manager position opened up, the position was given to a younger, less experienced man, despite the fact that the plaintiff expressed her interest in the position. When she asked why she did not get the position, plaintiff says that she was told that the position "needed a man."  For details of this case, see the previous blog that I published back in September 2017.

Under Section 101((a)(15)(E)(ii) of the Immigration and Nationality Act (8 U.S.C. §1101 et seq.), certain foreign nationals that are citizens of a country that has entered into a treaty of commerce and navigation with the United States, may obtain a nonimmigrant visa and work and live in the U.S. if such foreign national has invested a "substantial amount of capital" in a U.S. enterprise. This is what is referred to as the "E-2 Treaty Investor Visa" category. There are numerous countries that qualify for this visa because they entered into a treaty of commerce and navigation with the U.S. The U.S. Department of State publishes this list of countries. However, there are many countries that do not have a treaty with the U.S., like Venezuela, Brazil, Uruguay, Portugal, India and other countries. Last year, the U.S. Department of State issued a notification that its treaty with Ecuador was terminated by Ecuador. Therefore, nationals of Ecuador no longer qualify for the E-2 Treaty Investor Visa and Ecuadorian nationals that have made qualifying investments in the U.S. prior to May 18, 2018 will continue to be entitled to E-2 status, but only until May 18, 2028.

It has been my practice when filing immigration petitions with the U.S. Citizenship and Immigration Services ("USCIS") to cite to specific caselaw and to develop the legal arguments in support of the client's position. However, many immigration practitioners simply file the forms and an index with a stack of documents. In my opinion, such a practice fails to prepare a case for litigation, which as processing delays and denials increase, may become necessary. Indeed, denials for some categories has gone up over 60% in the last few years and many of those denials are simply baseless. The answer is to appeal to the courts but in order to do so, the petition must contain the appropriate legal arguments and evidence. In almost all cases, judicial review will be based on the record that is before the agency. That means that the immigration lawyer should present the legal arguments that are necessary when filing a petition for a particular category. A discussion of the facts and the application of the law to the facts is becoming ever so important when filing an immigration petition.