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Immigration Archives

Immigration Approvals Coming with Much More Regularity

I am happy to report that we are experiencing a significant increase in the speed and fequency of immigration approvals.  Recently, we've had several approvals in one of the most difficult of immigration categories, the multinational executive category (EB-1) and such petitions have  been approved with lightning speed.  Click here to see the most recent Approval Notice.pdf that we received.  As it can be seen, the approval was granted in approximately 6 to 7 months.  In this case, NO request for evidence was sent to us!

Si un Inmigrante no Actualiza su Dirección podría ser Deportado

Un aspecto de la ley de inmigración que pocos conocen es el hecho de que existen sanciones penales para ciertos ciudadanos extranjeros si no cambien su dirección cuando se mudan. Específicamente, la Sección 266 (a) de la Ley de Inmigración y Nacionalidad establece que:

Unreasonable Delays in Visa Processing Times Could Result in an Award of Attorney's Fees in Favor of the Applicant

As I have advocated in previous blogs, one solution to resolve the unreasonable and inordinate delays in visa petition processing times is to take the government to court, either under the Mandamus Act, 28 U.S.C. §1361, or under the Administrative Procedures Act, 5 U.S.C. §555(b), or both. What is particularly compelling is that under the Equal Access to Justice Act, 28 U.S.C. §2412, a prevailing party shall be awarded attorney's fees where the government cannot show that its position "was substantially justified." The government has the burden of proving that its position was substantially justified.  I would argue that the visa processing delays that we are experiencing now cannot be justified.  In fact, there are fewer immigration petitions being filed, but the processing delays have increased disproportionatly.  Therefore, it is most likely that the applicant and/or beneficiary would be awarded attorney's fees if the applicant prevails in Federal Court.

USCIS Processing Times are Unpredictable and Ever Changing

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.

The Administrative Record is Extremely Important in Filing an Immigration-Related Lawsuit

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.

Filing a Lawsuit to Require USCIS to Adjudicate a Petition that has been Pending for an Unreasonably Long Time

Nowadays, unreasonable or inordinate delays in immigration petition processing times are causing clients significant stress, particularly because travel may be restricted while the immigration petition or application is pending. However, there is a solution which may have been viewed as extreme in previous years, but which now is getting renewed attention. That solution is filing a lawsuit against the United States Immigration and Citizenship Services ("USCIS") in federal court under the Mandamus and Venue Act of 1962. Under this Act, the party bringing the lawsuit is demanding that the court order USCIS to act and adjudicate the petition or application. In such a case, the party bringing suit must show that he or she has a clear right to the relief requested, that the government has a clear duty to perform the act in question, and that there is no other adequate remedy available.

Filing a Lawsuit to Challenge an Immigration Denial

Visa denials have reached over 60% in certain categories, with the L-1 visa suffering the most repercussions. However, the answer may be filing a lawsuit in federal court. Many clients resist this option, but it is becoming more of a necessity. I have traditionally filed petitions and applications that have detailed legal arguments and are chocked full of relevant evidence so that if the client is willing and able, there is the availability of an appeal to the courts.

New USCIS Policy Memorandum Changes the Environment Drastically and Could Result in Springing Immigration Violations

On August 9, 2018, the United States Department of Homeland Security issued a Policy Memorandum to provide guidance to United States Citizenship and Immigration (USCIS) adjudicating officers in the calculation of what constitutes "unlawful presence" for persons with student visas. This is significant because if an alien has more than six months of "unlawful presence," that alien is subject to a bar on entry to the U.S. for a period of three (3) years and if the alien has more than one year of "unlawful presence," then the alien is subject to a bar on entry for ten (10) years. That means that an alien will not be permitted to enter the U.S. if he or she has such unlawful presence. However, the most curious thing about this Policy Memorandum is that the alien may not know of the bar to entry until he or she actually seeks to reenter the U.S.

Immigration Visa Denials are on the Rise

Unfortunately, despite no change in the immigration laws, visa denials are on the rise. Even the relatively straight-forward E-2 Treaty Investor Visa is being routinely denied by U.S. Consulates. Thank goodness that I have absolutely no denials that I have not been able to reverse through motions for reconsideration or appeals when the clients have been willing to fight the denial. Sometimes, however, clients themselves lose faith and don't want to appeal, which is a mistake. Increasingly, an appeal or motion for reconsideration may be the only route.