Immigration Lawyers Toolbox® Magazine, Issue 01 (Winter 2021) by ImmigrationLawyersToolbox

immigrationlawyerstoolbox.com

Publisher’s MAGAZINE

President John Q. Khosravi

Contributing Writers Joseph Tsang, Esq. Jared Jaskot, Esq. Claribel Madueña, Esq. Sabrina Damast, Esq. Sonia Figueroa, Esq. Brian Manning, Esq. Mandy Feuerbacher, Esq. Stephen Green, Esq. Evelyn Hahn, Esq. Sarah Brunet, Esq. Ritu Goswamy, Esq. If you would like to be considered for submitting an article, please contact: Info@ImmigrationLawyersToolbox.com

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Disclaimer: None of the information

provided here is intended as individual legal guidance.The laws change frequently and some of the information may become outdated. Please consult with an attorney in private to discuss an individual case.

Note

It is with great delight that, along with the efforts of many

of our colleagues, I can present this magazine to you. Improving our field through education and promotion of top talent has always been the goal of the Immigration Lawyers Toolbox®.

Since I began practicing over a decade ago, I quickly realized the complexity of Immigration Law and how the most talented members of our profession don’t have the tools to share their accumulated knowledge. Moreover, they were not getting the recognition they deserved from colleagues (and clients). The desire to solve this issue initially led to the creation of the Immigration Lawyers Podcast and then the Immigration Lawyers Toolbox®. The Toolbox has many different ways to help you in your practice, with articles, interviews, continuing education recordings, marketing guidance and more. Much of these offerings will be shared in the upcoming pages.

The Trump Years were very hard on us and our clients. But the future looks bright with the new Administration. My hope is that the information here will help support your clients, practice and family. The Biden Years will hopefully heal the wounds suffered by US Immigration. Together, we can help fix these problems and take your practice to the next level.

John Q. Khosravi, Esq. President of the Immigration Lawyers Toolbox®

09 10 17 23 27 31 35 41 45 49 53 56 60 63 64 71 74 76

Cover Interview

Immigration Tech in 2020

Management by Joseph Tsang, Esq. Marketing by Jared Jaskot, Esq.

Immigration Court by Claribel P. Madueña, Esq. Crimmigration by Sabrina Damast. Esq. Humanitarian by Sonia Figueroa, Esq. Asylum by Brian Manning, Esq. Family-Based

Country-Focus

Consular Corner by Mandy Feuerbacher, Esq. Global Migration by Stephen W. Green, Esq. L-1A/EB-1C Corner

Top Immigration Lawyer Podcasts

Top Immigration Lawyers in Youtube EB-5 by Evelyn Hahn, Esq. E-2 by Sarah Brunet, Esq. Citizenship

Personal Practice by Ritu Goswamy, Esq.

TABLE OF CONTENTS

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One

The Interview

of the biggest trends in Immigration Law has been the increase in Federal Litigation. Travel Bans, Improper Denials, and Agency Rule-Making led to a flurry of lawsuits and almost daily Federal Court decisions in all areas of Immigration Law.

Three of our colleagues and their firms decided to pool their resources to pursue impactful litigation, including hundreds of plaintiffs. Greg Siskind (Siskind Susser, P.C., Memphis, Tennessee), Jeff Joseph (Joseph & Hall P.C., Aurora, Colorado), and Charles Kuck (Kuck Baxter Immigration Partners LLC, Atlanta, Georgia). Out of this came great results, such as the K-1 delay lawsuit (MILLIGAN et al v. POMPEO) and injunction [limited to plaintiffs], forcing the National Visa Center to forward the case to the Embassies to schedule K-1 interviews in countries subject to the various Covid-19 bans. The decision in Milligan was especially interesting because of the powerful argument made by this trio regarding INA 212(f), which is a major basis of a president’s power to issue a travel ban. They argued that the statute does not prevent an Embassy or Consulate from issuing a Visa to an applicant subject to a ban; rather, it prevents their physical entry into the United States. Other lawsuits topics included challenges to the Department

of Labor’s new Prevailing Wage rule and a challenge on behalf of Diversity Visa lottery winners.

This groundbreaking cooperation made it easy for them to be chosen for the inaugural cover of the Immigration Lawyers Toolbox Magazine. The Immigration Bar, unlike other fields, is unique in its ability to put aside competitive urges to support clients and the larger cause. The following are snippets of an interview about their current and future work in this space.

“

[Immigration Lawyers Toolbox] Do you think the need for litigation will end or stop with the new president? [Greg Siskind] While we expect the new administration to be a breath of fresh air compared to the Trump years, we’re realistic enough to know that there will be instances where the White House and the agencies will overreach or fail to adjudicate cases in a reasonable and timely manner. Litigation will still be needed to ensure good government. [Jeff Joseph] I do not think that litigation will go away with a change in administration. While it is clear that the Biden administration has very different priorities when it comes to immigration policy, it is also true that Democrats have been, historically, very protective of the U.S. workforce, and so a Biden administration is likely to

The reality is that — litigation as a tool for immigration clients has always been around as an option — Now it is a necessity.

”

Charles Kuck, Esq. Kuck Baxter Immigration Partners CKuck@immigration.net

continue to push for changes in how the Department of Labor calculates wages for foreign workers. I would also not be surprised to see the Biden administration push for H1B reform as well as H2B and H2A reform. Depending on what changes are made, we may need to litigate to protect the viability of the H programs for employers. Additionally, there is still so much to unravel from the Trump administration that we are going to see significant backlogs

[Immigration Lawyers Toolbox] What other issues do you think require litigation?

”

Greg Siskind, Esq. Siskind Susser P.C. GSiskind@visalaw.com

of mandamus delay litigation as backlogs at the Consulates and Service Centers continues to grow.

[Charles Kuck] The bans clearly still need to be extensively [Greg Siskind] We’re not done litigated. But there has not with the bans and we may need been enough litigation on the to keep litigating until they’re intentional stoppage by USCIS history. And unacceptably slow of the issuance of EADs (for a processing times will likely variety of non-immigrants), continue and require litigation. receipt notice delays, terrible We also will need to continue and illegal decisions pertaining litigating midnight Trump rules to nonimmigrant and immigrant to ensure that they are invalidated visa eligibility, asylum eligibility, in case the Administration isn’t and even removal relief. able (or willing) to stop them. Congress has created a system [Jeff Joseph] We will continue that those that run the system to see litigation surrounding the can manipulate it too easily. We DOL wage rules as well as any need to litigate and seek court changes that come about to the oversight in order to strengthen H-1B, H2B and H2A programs. the very fundamentals of the We will also see increased amount system.

[Immigration Lawyers Toolbox] How did you set up the litigation cooperation system? [Greg Siskind] To date, it’s been about who has available manpower for the different aspects of the litigation with a 5 to 10 person team on each case. We’ve set up an internal listserv to facilitate communications between the firms and have informally. We’re learning on each case how to improve things and we’re also fortunate to have multiyear close relationships that make it feel like one firm.

[Jeff Joseph] It is very hard for a small immigration firm to take on mass actions or class actions. To address the challenges, we established as a partnership between three different law firms: Joseph & Hall P.C., Kuck Baxter Immigration LLC, and Siskind Susser, P.C. By combining forces, our three firms are able to split up the tasks that go into large-scale litigation and leverage our joint resources to make the litigation viable, efficient and successful. After litigating a few cases together, we decided to make the relationship more formal and have launched IMMpactLitigation.com, an organization devoted to impact litigation in the immigration context. We hope to continue to partner in the future on impact level litigation.

[Charles Kuck] First, it was important to have a level of trust between the partners. Decades of friendship and

[Charles Kuck] The New President will be a source of new litigation, mostly because the problems put into place by Trump are not necessarily quick fixes. On top of that, President Biden has not shown the type of leadership, at least as of yet, that leads us to believe that he will end many of the discriminatory, nativities policies and proclamation put into place by Trump. The reality is that—litigation as a tool for immigration clients has always been around as an option—Now it is a necessity.

“

Unacceptably slow processing times will likely continue and require litigation.

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at the Consulates and Service Centers. The NIV bans and IV bans have created a log jam at the agencies and we could see significant delays in consular processing and adjudications at the Service Centers. This will demand increased mandamus delay litigation.

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mutual admiration, building upon shared meals, calls, and advice gave rise to a desire to work together more closely on a shared purpose—holding the government accountable. The systems to do this were created by modern technology — listservs, document sharing, website, and, yes, even Zoom! From there it is merely a question of improving each other’s works to create a product (and an outcome for our clients) that enables to think bigger and more profoundly of the work we can do to make all immigrants lives (and cases) better. [Immigration Lawyers Toolbox] How is it managing such a large clientele base (with these group lawsuits)? [Greg Siskind] It’s certainly a challenge, but we’re doing a lot of pioneering when it comes to using tech to help. We have automated most of the plaintiff on-boarding process including generating engagement letters and declarations. We have forms to streamline communication from the plaintiffs to the legal team. We’re using mass email software to keep clients updated as well as live streaming on Facebook and Zoom on a regular basis. [Jeff Joseph] It is very challenging. For example, in the Milligan case, we have nearly 500 couples from around the world at various stages of K-1 Consular Processing. The first challenge was identifying plaintiffs. For that, we relied largely on social

Jeff Joseph, Esq. Joseph and Hall P.C. Jeff@immigrationissues.com

“

It is very hard for a small immigration firm to take on mass actions or class actions.

”

for creating declarations for plaintiffs such that we insert the prompt and they are able to answer the prompt in prose that can be turned into the declaration we use to support the request for the TRO. By automating as much of the process as possible, we cut out the back and forth between plaintiffs. Work is divided between the firms in the following way: One firm takes on the drafting of the complaint, TRO, motion for class certification and other necessary pleadings. Another firm is in charge of gathering the money, issuing representation agreements and coordinating the on-boarding process. The third firm is in charge of gathering and finalizing the declarations. By dividing up the work in this way, no single firm is overwhelmed with the work of major litigation.

media. By tweeting out a call for [Charles Kuck] I would start plaintiffs, we were able to gather with a smiley face, but really it sufficient plaintiffs to spread is just a question of first setting out the costs and make it cost- expectations—what are we effective for plaintiffs while at the lawyers FOR, and will we the same time lucrative for the and won’t we do as part of the law firms. We have automated representation. Then, again the on-boarding process to using technology like Google the greatest extent possible. Docs, Facebook and Facebook Prospective clients are able to Live, Zoom, Twitter, emails, and complete a questionnaire that Excel to maintain consistent gathers the information we communications with our clients need for the lawsuit and then to make sure they know that exports the information to an individually, they are important excel spreadsheet which we to us, but that we are representing later use to track progress in the class aws a whole. We also each case. Plaintiffs can make urge them to work with their payments online through a regular immigration attorney payment portal and we accept to use the victories we obtain to all forms of payment. We also finish pursuing their case. have automated the process

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Technology and Immigration The technological changes and

business in the immigration space in 2020 were amazing. I can’t even imagine how 2021 is going to look like in this space. Here are some changes that happened in US Immigration tech in 2020 that have touched your practice:

• Mitratech acquires TrackerCorp and INSZoom

Mitratech, an Austin, Texasbased, private equity-backed legal and compliance software company, purchased Tracker on July 31, 2020. This allowed a technology company to enter the immigration space and led to their unexpected purchase of Immigration Case Management Platform INSZoom. We will need to wait and see how this will all be put together.

• C o r p o r a t e Immigration Partners and Envoy Global join forces TrackerCorp was founded by Julie Pearl, founder of the Pearl Law Group. In 2020, Julie retired from the law firm she created, and the firm’s brand was changed to Corporate Immigration Partners (CIP). Soon after CIP announced a strategic partnership with Envoy Global, a global immigration services provider offering an immigration management platform for companies to hire and manage their international workforce.

• B o u n d l e s s Immigration Acquires RapidVisa

In a move that caused some ruckus in the Immigration Lawyer community, two platforms that try to use tech to streamline the non-use of law firms in the We asked lawyers about the way they submit Form i m m i g ra t i o n N-400. Do they do it online, or do they like to do it space, the old school and mail the physical documents in? Seattle-based Boundless, Here is the result of the poll purchased long-standing RapidVisa, allowing it to massively increase the volume and types of visa categories it can service.

• S i m p l e C i t i z e n purchased by Fragomen In another unexpected turn of events, Boundless Immigration competitor SimpleCitizen was purchase by Fragomen, Del Rey, Bernsen & Loewy, LLP with the goal of using the software platform to update its existing systems to help support its growing international migration practice and to compete with the Big 4 accounting firms that’s slowly entering the immigration space.

There were several other large and small moves that happened. Our colleague Roman Zelichenko documented them in detail here:

https://www.linkedin.com/ pulse/immigration-tech-2020acquisitions-partnerships-vcroman/

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Opening a U.S. Immigration Law Office in Other Countries By Joseph Tsang, Esq.

Given the devastating impact of the

IN CONTRAST Most U.S. immigration law firms

VALUE: Overseas immigration law firms typically focus their operation on customer service in a way that is familiar and customary to the region’s culture, as opposed to focusing on case preparation. The 80/20 rule leans towards customer service. Note: This does not mean the overseas office is just sales!

SERVICES: Most overseas immigration law firms specialize in consulate processing for visa applications, e.g., E-2 treaty investor visa at American Institute in Taiwan, F-1 student visa at U.S. Embassy in Paris, SB-1 visa in U.S. Embassy Tokyo. This is especially true for E2, F1, and B2 cases where the embassy and consulates have a lot of cases, and therefore a lot of needs.

IN CONTRAST U.S. Immigration law firms typically focus the marketing on adjustment of status or change of status to clients who are already in the United States and want to stay.

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Operating an overseas office will not be like just opening another satellite office in the States, since you will be much closer in proximity to overseas clients and the consulate. These two factors drastically change the way overseas offices compare to the U.S. headquarter in almost every way, including but not limited to: the specialty of each office, the value proposition for clients, and marketing strategies.

MARKETING: Overseas immigration law firms generally spend their marketing efforts on the various ways and benefits of immigrating to the United States and contrast that with the pros and cons of immigrating to other countries like Canada or the U.K. Therefore, knowing the global migration trend is very important to operating overseas.

KEY DIFFERENCES

specialize in USCIS application filings (both family and business), court appearances, interview appearances, EOIR proceedings, CBP procedures, and deferred inspections.

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Joseph Tsang, Esq. Info@Tsangslaw.com

coronavirus pandemic in 2020, the idea of expanding law firm operations overseas has gained considerable interest. The purpose of this article is to explore some of the key differences along with the pros and cons of operating an immigration law firm in the U.S. and overseas. We will primarily draw from our own experience from opening and operating our Taipei and Shanghai affiliate offices and contrasting the operations there with our headquarter based in Artesia, California1.

ILT MAGAZINE IN CONTRAST U.S. Immigration law firms focus primarily on filing cases. The 80/20 rule is focused on the completion of the cases.

PROS of Having an Overseas Office

Foreign Country Regulations and Laws

"Meet people where they're at literally!"

"Diligence is the mother of good luck." 3

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Risks associated with noncompliance to foreign laws and regulations, e.g., U.K. employment is much more binding than it is in the U.S., where employment is "at will"; Different labor/employment laws which will make it difficult to have uniform codes, regulations, or rules; Necessary tax forms that international businesses must file, which may be an added burden and/or expense to your firm;

Double the Productivity

A Daunting Learning Curve

"Divide and Conquer!"

"If you want to accomplish twice as much, you have to work twice as hard." 5

Twice the brainpower to strategize, prepare, and submit cases - cooperation between the U.S. and international office like a reliable study buddy; Potentially lower operational costs, e.g., the minimum daily wage in Mexico is 141.70 Mexican Pesos (approximately $7.10) 4

CONS of Having an Overseas Office

Directly Connect with Targeted Clientele Abroad

Closest proximity to foreign nationals that want to immigrate to the United States; Real time client services without delay; Overseas consulate processing legal assistance; Most visa applications are submitted by applicants residing within the US, over 500,000 visas were issued at foreign service 2 posts in 2019.

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While it is important to understand the fundamental differences between the two offices, you should also take into consideration some of the challenges and benefits that each presents.

High startup costs: finding and financing an office space; hiring a completely new team, etc.; Advertising to a foreign client base may be very difficult - how will clients find you? Why will they choose you over a local firm?; There is no guarantee that opening a new firm will be profitable.

Diversify Your Services

Travel Exhaustion

"Broaden your horizons. They're the only ones you'll ever have, so make the suckers as wide as possible." 6

"Two locations mean double the distance." 7

Allows your firm to be an expert in both domestic and foreign immigration cases; More services mean more revenue potential; The global market will help cushion the company during slower economic times.

& Risks

Extensive and frequent travel to perform routine check-ups on each location and meet clients, e.g., flying between U.S. & China office; The countries with the highest demand for immigration services are also some of the most dangerous to travel to during this time due to factors such as COVID-19, crime, political instability, and more.

2 U.S. Department of State: Immigrant and Nonimmigrant Visas Issued at Foreign Service Posts Fiscal Years 2015 - 2019 3 The Oxford Dictionary of Phrase and Fable (2 ed.); 4 ABC News “Mexico’s minimum wage to rise 15% over business objections”; 5 Wayne Hyizenga; 6 Jennifer Cruise, Anyone but You; 7 According to the PEW Research Center, in 2018, the top country of origin for new immigrants coming into the U.S. were China, India and Mexico. Out of these three countries, India is on a “Level 4: Do not Travel” advisory, while Mexico and China are both on “Level 3: Reconsider Travel” advisories.

IMMIGRATION LAWYERS TOOLBOX Summary Immigration is a unique practice area that rewards its practitioners when they travel and interact with clients across the globe. Few legal practices can boast the same. With this article and some general tips, we wanted to highlight some of the main differences between operating a firm overseas compared to operating a traditional office in the States and provide the corresponding pros and cons to this endeavor.

We also want to provide some quick pro tips for those who are considering testing the waters before completely diving in. In

the following appendix, we will share some of the easier ways to expand your legal practice overseas without having to incorporate, and we will end with some of the key points to keep in mind if you decide to open shop overseas. Opening an office abroad is great if you are looking for direct connections with targeted clients abroad, increased productivity, and an expansion of services offered. Hopefully this article will provide a roadmap to help those who are curious. Cheers!

Top 10 Largest Practicing Immigration Law Firms

About the Author

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Click on the Image to Learn the Details of the R-1/EB-4 Religious Worker Visas with Joseph Tsang, Esq. $25.00 (Free for VerifiedImmigrationLawyers.com Members)

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Joseph received his J.D. from Pepperdine University in 2012 with a Certificate in Dispute Resolution, has practiced abroad in London, Taipei and Shanghai, and is now the managing partner of Tsang & Associates, an international immigration law firm with offices in Los Angeles, Taiwan, and Shanghai. Joseph currently serves as the Chair on AILA’s National Law Student Outreach Committee. He has authored multiple articles on immigration issues, as well as co-authored the book, “Confucius Meets Shakespeare,” and ever burns with the love for literature. He currently resides in sunny California with his wife and son.

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How to Set Up a Law Firm Abroad

Below

are a few steps that a lawyer should consider before starting to provide his or her services abroad. Step One. Personal Work Permits and Visas

Different countries have different laws that regulate the employment of foreigners. A work permit or visa is normally for one specific job for one employer only and, in this case, your own law office. This is the very first step to start the process of starting a law office abroad.

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Step Two. Attorney Licenses, Immigration Permit, and Bond Different countries have different qualification requirements for those practicing law. Therefore, to provide immigration service in a specific country, you must meet those specific requirements. The practice of immigration must often require special permits and bonds. For instance, in the U.S.,

an immigration consultant must renew its permit and bond yearly.

Step Three. Business Incorporation, and Business License The United States has one of the easiest procedures to incorporate a company. Unlike in other countries, there are many challenges to start a business. You will first most likely need a local representative or attorney for incorporation. After incorporation, you also need to establish the company’s structure, whether it’s a branch, a subsidiary, or an affiliate to the U.S. head office (i.e., a subsidiary is more flexible as well as costefficient compared to operating a branch office). Furthermore, you must also secure the required business license to operate in the city, state, or province where the office is located. Without the proper business license, the law firm cannot operate.

Step Four. International Funds Transfer

For each country in which the office is planning on operating, money must first be transferred to a foreign bank account for operation purposes, including payroll payments. Each country has different international fund transfer regulations, e.g., China has one of the strictest international fund transfer regulations that restrict money from leaving the country. Step Five. Labor, Management, and Marketing

Lastly, once you have successfully established your foreign company, then you can focus on hiring and training employees, office management, and creating a marketing campaign. Generally, we recommend a lawyer to stay and work abroad for at least three years to ensure that the overseas office can run smoothly with a trustworthy general manager before returning to the U.S.

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APPENDIX 2

Alternative Options and Quick Tips We understand that most attorneys cannot sacrifice years to go abroad and start a law firm. Below are some alternatives that we have found success in: 1. Partnering with a Local Law Firm Partnering with a local immigration law firm is highly effective with lower overall expenses8.

When looking for an overseas partner law firm, there are a few specific traits that need to be identified: (1) clean background check and criminal records; (2) strong interpersonal skills from the lead attorney and key staff; (3) the firm’s accessibility for communication skills; (4) the firm’s reputation, experience, and success rate; and (5) the firm’s capability and adaptability to work with foreign partners.

After listening to our podcasts and video presentations, foreign law firms have reached out to us to work together.

3. Speak in Seminars

Speaking at seminars is a traditional way to expand and build a sustainable network of clientele. You can do this both in the U.S. and abroad.

4. Online Marketing

With fairly low costs, online marketing can reach target clientele in different countries.

• Directly reach foreign clientele to engage with U.S. office; • Variety of platforms targeting different demographics; • Flexible budget based on results and goals.

Working from an overseas shared workspace such as Regus is flexible and cost-effective, especially during COVID-19, where everyone is virtually connected.

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Shared

• Meet and interact with other professionals, similar to attending AILA conferences; • Build a reputation by presenting in the seminars to attract partnerships and future clientele; • Minimal costs, usually only travel expenses;

2. International Workspace

• Skip out on buying or renting an office and instead use a shared workspace while you test the local market; • Use the shared workspace only when it’s necessary. Most of time, you may even stay in the U.S. and communicate and work with overseas clients through internet technology; • Easy transition to a fullscale office, or close down based on market demand and business progress.

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• Find a trusted ally9 and establish efficient communication channels; • Establish a mutually beneficial profit-sharing agreement; • Utilize each other’s expertise with double the brainpower and due diligence;

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Expert Education on the Business

$25 per

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VerifiedImmigrationLawyers.com directory

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& Marketing of Immigration Law

r Video

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y members have free access to this material.

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Facebook Marketing: How It Can Impact Your Immigration Law Firm By Jared Jaskot, Esq.

How

do you typically use social media? Do you rely on it to keep up with friends and family, or maybe use it to kill a little time while waiting in line? Well, if you run a law firm, specifically an immigration law firm, and you’re not using social media to promote your firm, you’re missing out on a massive opportunity to grow your firm’s brand and business.

Jared Jaskot, Esq. Jared@Jaskot.law

I mean, it’s no secret that if you want to grow your law firm, you need to be able to generate more leads, and in a way that doesn’t cost you more to get them than you get out of them. There are a number of ways to accomplish this goal: Google ads, influencer marketing, and content marketing, just to name a few. Paying for this kind of advertising as an attorney can give you instant results, but what are those results and how is it impacting your business? Understanding the impact of your social media marketing efforts is critical for understanding how you can grow and sustain your business. Today, let’s explore how I use Facebook ads to grow my immigration law firm, Jaskot. Abogado, and what I’ve learned from it. Before we dive in, a few Facebook facts.

Facebook is the world’s biggest social network with over 2.6 billion monthly active users as of the first quarter of 2020. The average American spends about 40 minutes just on Facebook — sharing and liking content. Every minute, Facebook users interact with more than 4.1 million posts. Facebook

is too huge for any business — even immigration law firms — to ignore. However, for years, Facebook has been reducing the visibility of businessrelated posts in people’s news feeds, which means getting organic traffic is almost impossible. So how do you create interest in your business? One way is to use Facebook Ads to attract consumers’ attention, and with attention, more leads. So let’s dive into my process and some of the learnings that have come out of it.

Understanding the Sales Funnel My favorite way to think about all of these marketing efforts is by visualizing a funnel. The sales funnel starts wide and narrows as customers move from stage to stage. At the top of the funnel, potential customers are added and they slowly filter down towards one destination. Unlike a real world funnel, not all who enter the sales funnel will exit as paying customers.

Typically, there are four stages in the sales funnel: Awareness, interest, decision, and action. Personally, I view these four stages of the sales funnel as “conversions”. I define a conversion as the moment when a prospective client

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The very first step is learning to use Facebook’s Ad Manager and creating effective ads to promote your business. I recommend checking out Hootsuite’s Facebook Advertising Academy or Buffer’s complete guide to Facebook Ads. Facebook itself has a pretty useful guide to advertising too.

Once I have my ads set up and running on Facebook, I can start tracking their progress and seeing how customers are moving through my sales funnel. Here are the four conversions I’m tracking:

Conversion 1: A prospect decides to click on the ad or video. Did the ad convince people to click on it? This first conversion tells me how good the ad is. This is the very first stage of the funnel. Once the prospect is in the funnel, you’ve peaked their awareness. I use a chatbot for all my marketing - specifically a chatbot that I built called YoTengo Bot that’s geared toward immigration lawyers - so when a prospect clicks my ads they are taken to a conversation with Oscar (that’s the bot’s name!). Oscar greets each prospect and talks to them about their case and my law firm. This sets the stage for the next conversion event. Conversion 2: Oscar gets the prospect’s phone number or email address

Once the prospect has given Oscar their contact information, an employee reaches out to further determine if they are a good fit for the firm. If they are a good fit, the next stage of the funnel is to schedule a paid consultation. Conversion 3: The prospect schedules a paid consultation

The third stage of the sales funnel is the decision. In my case, the

A consultation requires the prospect to come in and talk to one of our attorneys. Most consultations last 30-60 minutes and take place in person with an attorney. During this meeting, we explain our process and experience with their case type, how much we charge, the typical timeframe, and the steps we will take to make the case a success. Now during COVID I try to have as many virtual consultations as possible, but I still do in-person consults when necessary (while, of course, adhering to social distancing guidelines, wearing a mask and all that jazz). The fourth and final stage of the sales funnel is the most important: signing a retainer. Conversion 4: A prospect decides to retain the firm and becomes a customer

The final conversion event is when someone decides to sign a retainer after the consultation. This fourth and final stage of the sales funnel is the action that you’re hoping prospects end up taking, thereby becoming your client!

How I use Facebook Ads

decision is whether or not they pay for a consultation. This is a tough conversion to make.

By carefully tracking my Facebook Ads sales funnel, I’m able to understand my conversion rate for each stage: Facebook Ad to Facebook Chat

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completes a predefined action that we want them to take. The four conversions that I measure are: ● Prospect clicks on an immigration law firm ad or sends a message on Facebook ● Prospect gives the law firm their phone number ● Prospect comes into the office for a paid consultation ● Prospect signs a retainer, makes a down payment and becomes a customer! (the goal) The best way to understand the sales funnel is to see it in action. Here’s what my Facebook sales funnel looks like.

What we can learn from the data

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ILT MAGAZINE ● Analyze and improve your marketing efforts

with Oscar; Facebook Chat to lead; lead to paid consultation; and finally the paid consultation to retained client.

Having this data allows me to compare Facebook Ads and marketing channels, and work on our own internal processes to find greater efficiencies. Doing this with data, not intuition, allows us to try different ideas and actually see how they perform by comparing them to benchmarks. Because I carefully gather this data, I can also see exactly how much it will cost me to get more cases. Once you know the exact number of ads you need to get the exact number of cases you want, you have control over your inbound pipeline, and controlling and understanding your pipeline gives you the ability to:

● Consistently hit your desired revenue goals (immigration law firms are still businesses after all!) ● Focus on a specific case type ● Increase new case numbers when you decide to hire associates and paralegals

Are you wondering how to analyze your Facebook Ads data? I’ve got examples!

Analyzing my law firm’s Facebook Ads data Lucky for you, I’m able to share real data from my law firm’s paid advertising efforts on Facebook from January and February of 2019. (I am using 2019 data because 2020 has been a skewed year for our metrics. That said, I regularly publish metrics. All of the ads that we ran on Facebook in this time were directed to my law firm’s chatbot Oscar using the Facebook Ad objective of “send messages.”

One of my goals in 2019 was to use paid advertising to generate four new Special Immigrant Juvenile Status (SIJS) cases per month. Here’s what the data told us and how we backed into a campaign using that data.

First, the firm’s data showed that in SIJS cases over the last year, 16% of consults ultimately became clients. These numbers tell us that we need 25 SIJS consultations per month to sign up four new SIJS cases. So how do we get 25 SIJS consultations?

The data showed us that 3% of people talk to our chatbot, Oscar, ultimately pay us $100 for a consultation. In January and February of 2019, our average click price for our Facebook ad was $2.19 per message, That means that we are averaging around $72 per paid consultation, so we budgeted $1,775 in Facebook ads per month.

Ok, so how would these paid consultations translate into business for the firm? First, consultation revenue from this Facebook Ads campaign was $2500. (This comes from 37 paid consults.) Next, we charge $6,000 per SIJS case, and our revenue from the four cases would be $24,000. So we were able to make $26,500 in revenue from a Facebook Ad budget of $1,800. The net profit is $24,700. Which means that in total, our advertising spend is being returned 15.6 times in revenue. Not bad, huh? Is paid advertising worth it?

The world’s smartest marketers scale their businesses by understanding the conversion value and perfecting their sales funnels. If you know that by investing $1 you’re going to get $3 back, you’ll keep investing, right? Through careful analysis, we’ve figured out that a solid

IMMIGRATION LAWYERS TOOLBOX Facebook Ads budget gets us a huge return.

From a cash flow standpoint (which is very important for my small business), I get back every dollar spent on ads in two weeks due to the consultation revenue. That means that I can spend the same $1,775 dollars in ads every two weeks. And by rapidly redeploying the same money every two weeks allows us to have a $46,150 annual advertising budget using the same $1,775 over and over again. Spending this much on ads would add $719,940 in revenue to my law firm. These numbers can definitely be improved. The conversion rate from bot message to consultation is quite low due to two factors: charging for consultations and the fact that my average client’s annual income is $25,000. Low

income is also a major factor in my low consultation-to-signed retainer conversion rate. The number that I am most interested in improving is consultation-to-signed retainer conversion rate. Increasing this conversion rate to, say, 24% would yield six SIJS cases per month, which would make the law firm’s net profit increase from $25,725 to $37,725. Even more importantly, this would require no extra work from a marketing standpoint. There is a huge benefit to focusing on improving your funnel where it yields the biggest gains.

My chatbot is my secret sauce

At the end of the day, the truth is simply that Facebook ads work. With a little research and creativity, you can increase your business’s visibility, grab your audience’s attention, and give clients a good reason to go to your firm’s Facebook page or right to talking to your firm’s chatbot.

Taking the time to understand what you’re spending on ads and the results it yields does require some work on your law firm’s data, but it’s absolutely worth it.

My secret sauce is YoTengo Bot, an AI-powered immigration law chatbot startup that I founded first to build the perfect bot for my firm and now that other immigration law firms are using for their own practices.

If you’re curious, YoTengo Bot can build and deploy a chatbot for your law firm in under a month. And during that month, you can create a few ads and begin testing them on Facebook. Then, once your chatbot is deployed, you can begin to test your own Facebook Ads sales funnel. This is the fastest way to increase the number of cases for your law firm and, by extension, your law firm’s business.

Editor’s Note: this is not a sponsored advertisement

Click on the Image to Catch the Interview with Jared Jaskot, Esq.

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Jared Jaskot is an immigration lawyer and a partner at Jaskot Law, a firm dedicated to serving Central American immigrants. He is dedicated to helping law firms grow their practices using the power of conversational AI and machine learning. Connect with Jared on LinkedIn to read his content and discuss the future of law and how it is being changed by technology.

About the Author

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to use? Simple… get them on the phone!

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CANCELLATION OF REMOVAL: PROVING CONTINUOUS PHYSICAL PRESENCE AND AVOIDING COMMON PITFALLS By Claribel Madueña, Esq.

Cancellation of Removal (COR) is

Cancellation of removal cases are among my favorite types of cases to litigate. At first glance, they appear legally straightforward and even simple. However, once you dive in, you realize the intricate layers that fuse together law and fact, making or breaking a case. This article is the first of four in a series that will guide on presenting the best possible cancellation of removal case and avoiding unnecessary mistakes

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cases, so believe me when I say that lessons have been seared into my memory. I hope that these practical tips will not only give you confidence and clarity but save you the from the embarrassment I experienced during what I like to call my cancellation of removal hazing.

Learn the Law, Obsess Over the Facts To qualify for cancellation of removal as a legal permanent resident, applicants must establish: 1) Lawful permanent residency for at least 5 years, 2) Continuous physical presence in the United States for at least 7 years after having been lawfully admitted, and 3) No aggravated felony convictions.

The elements for a non-permanent resident applicant are more stringent and require:

1) Continuous physical presence in the U.S. for at least 10 years,

2) Good moral character for 10 years preceding the application, and

Claribel Madueña, Esq. claribel@claribelaw.com

a form of immigration relief available to certain foreign nationals that the Department of Homeland Security is seeking to remove from the United States through the Immigration & Nationality Act (INA) §240A. In other words, it is an application used in defense against deportation. Lawful Permanent Residents (Green Card Holders) and Non-Residents may apply for COR.

along the way. Over my 10+ year career, I have butchered my way through many COR

3) Showing that a removal from the U.S. would cause exceptional and extremely unusual hardship to their U.S. citizen or legal permanent resident spouse, parent, and/ or child under 21 years old.

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to end […] when the alien is served a notice to appear under section 239(a) [of the Act].[6] (Emphasis added.)

If an NTA is riddled with factual errors and/or is legally deficient, you may be able to terminate removal proceedings against your client. For example, your client may be named incorrectly, or DHS alleges that your client has a certain criminal conviction, but they do not. However, for the sake of this exercise, assume that the NTA is accurate. Date of Notice to Appear: Located on the bottom left-hand corner of page one. This date “stops-time” for your client and

Enter the glorious confusion of Pereira v. Sessions which has dramatically shifted the conversation surrounding the “stop-time rule.” There continues to be litigation surrounding the stop-time rule and it may change in the future, but this article’s focus is on the current state of the law. The Pereira case hinges on the language of the stoptime rule under section 240A and requirements for a notice to appear under section 239. Section 240A states: For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed

This topic alone can form its own article, but I will keep it brief. In Pereira, the time and date were not included on the NTA. The government served a notice to appear on respondent, Wescley Fonseca Pereira, after he overstayed his visa. The notice stated that Pereira was “ordered to appear” in the Boston immigration court “on a date to be set at a time to be set.” Pereira argued that the NTA did not stop him from accruing continuous physical presence because the notice did not state the date and time of hearing as required by the federal regulations. The Supreme Court agreed with Pereira and ruled that service of a notice to appear that does not contain the time and place of an individual’s immigration court hearing does not stop the 10-year clock for non-U.S. permanent resident cancellation of removal.

First things first, establish your timeline. This is key because it will either eliminate COR right away or define the parameters of your case. The Department of Homeland Security initiates removal proceedings by issuing and filing a Notice to Appear (NTA) Form I-862 with the Immigration Court under Immigration and Nationality Act section 240. It is critical that you review this document thoroughly with your client and examine for potential errors.

(A) The nature of the proceedings against the alien. [ … ] (D) The charges against the alien, and the statutory provisions alleged to have been violated. [ … ] (G) The time and place at which the proceedings will be held.[7]

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This first article in this series will focus on the continuous physical presence requirement.

is the end point for continuous physical presence. See INA §§ 240A; 239(a). For example, if the date is 01/01/2021, then you must work back in time and your starting point is 01/01/2011. In other words, your client must prove continuous physical presence from, 01/01/2011 to 01/01/2021. If an applicant has been in the U.S. for well over 10 years, then this requirement will be easily met, but sometimes it is not so cut and dry.

INA §239 governs the notice to appear requirements. Specifically, the law states that the notice to appear “shall be given in person to the alien […] specifying:

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So, when does the clock stop if the NTA does not contain the time and place of hearing? Enter Board of Immigration Appeals decision Matter of MendozaHernandez which states that the deficient NTA can be “perfected” and stop the 10-year clock if a court hearing notice containing the time and date of hearing is subsequently sent to the respondent. In practical terms, you will have to look at the notice date of the court hearing notice to determine when the clock stops. As you will note, the legal issues mired within the everchanging landscape of the stoptime rule require meticulous research, but it may prove critical in establishing your client’s eligibility.

Potential events that will interrupt continuous physical presence. Once you have determined that your client can establish the requisite timeframe for physical presence, you must confirm that it has been “continuous.” Certain factor will stop the clock and may disqualify your client from COR. 1) Absences longer than 90 days. INA § 240A(b)(1)(C). You must always ask your client about all entries and exits from the U.S. This usually comes up when your client has returned to their country of birth to visit family. Sometimes, your client only departs for two weeks, which is not problematic, but watch out for many absences spanning for several weeks at a time.

2) Absences that total more than 180 days in the aggregate. INA § 240A(b)(1)(C)

a) There are exceptions to this rule if the respondent is a U.S. military service member and was required to go abroad. See INA §240A(d)(2).

3) Absences or departures under the threat of removal. The length of departure is irrelevant. For example, if a person has been ordered removed and leaves the U.S., their departure interrupts the requisite continuous physical presence. This rule will apply even if the person does not know of the removal order, i.e., in absentia removal orders.

a) If a person leaves the U.S. under voluntary departure in lieu of being ordered removed by an immigration judge will also break their continuous physical presence. See Matter of Romalez-Alcaide, 23 I&N Dec. 423 (BIA 2002); Gutierrez v. Mukasey, 521 F.3d 1114 (9th Cir. 2008).

However, if a person’s voluntary departure was not “knowing and voluntary,” it may not interrupt continuous physical presence. The BIA states that a voluntary departure order does not break continuous physical presence if the person was informed of their right to see an immigration judge. Matter of CastrejonColino, 26 I&N Dec. 667 (BIA 2015); Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015).

4) Certain criminal activity. Know your client’s arrest and conviction record - I cannot stress this point enough. Nonpermanent residents convicted of offenses listed in INA sections 212(a)(2), 237(a)(2), or 237(a)(3) will be automatically barred from cancellation of removal. However, more analysis is required for legal permanent residents. For example, if a lawful permanent resident commits a crime involving moral turpitude within seven years of their admission, they will not have the requisite continuous

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Claribel P. Madueña is a BoardCertified Legal Specialist in Immigration & Nationality Law. She is a solo practitioner in the Bay Area with more than 10 years of experience representing immigrants and their families. Her practice primarily focuses on family-based immigration and

Common challenges. As many of you are likely aware, preparing a strong case requires a Herculean effort by you and your client. While it may be stressful and even tedious for advocates at times, keep in mind that for your client, their family’s future hangs in the balance. No amount of stress that you feel compares to the uncertainty and anxiety your client experiences as their case runs the removal machine.

1. Client memory and potential inconsistencies. I see this most when a client has multiple departures from the U.S. Sometimes, it will not matter because of the documentation you can provide and/or your client’s length of time living and working in the U.S. At other times, you will face close calls where your client does not remember whether they were in their birth country for 80 or 100 days. Some clients are simply bad

with dates and/or have faulty memories. Ground your client by referencing holidays, birthdays, and/ or world events. Also, loop in their spouse to these conversations. Sometimes, the spouse has a better memory of dates and time duration than the respondent.

2. Lack of documentation. As I mentioned previously, get creative! Use the list to guide you, but do not be afraid to think outside the box. Never submit documents that could prejudice your client, but do not limit yourself to the list. Also, understand that some cases will be better documented than others and that is ok too. Your client’s credibility, and witnesses will be extremely important in these cases.

My final piece of advice would be to embrace the challenge. Even if you lose, your client will always remember how you made them feel throughout the process and

how hard your fought for them. About the Author

them as irrefutable evidence of continuous physical presence.

Click on the Image to Catch the Interview with Claribel Madueña, Esq.

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physical presence for COR. Evidence. Evidence. Evidence. Documenting your client’s continuous physical presence can be tricky, but it is an opportunity to get creative and guide your client. I usually provide clients with the following list and explain how important it is for them to collect all available documents. 1. Income tax returns, 2. School records, 3. Medical records, 4. DMV records, 5. Memberships (gym, team sports), 6. Lease, 7. Bills, 8. Money wire transfers back home, 9. Receipts, 10. Family photos, 11. Letters from family and friends, 12. Legal documents such as marriage certificates, licenses, birth certificates, criminal records if applicable and more. Many times, practitioners limit these documents to a specific purpose, but you may also use

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The 212(h) Criminal Waiver: When Your Past Comes Back to Haunt You By Sabrina Damast, Esq.

Criminal convictions can pose serious

Sabrina Damast, Esq. Sabrina@SabrinaDamast.com

threats to an individual’s current immigration status or their ability to obtain immigration status in the future. In certain cases, a waiver of criminal history under section 212(h) of the INA may be a solution. This waiver can waive inadmissibility related to Crimes Involving Moral Turpitude (CIMT), prostitution offenses, and a single conviction for possession of 30 grams or less of marijuana. See INA § 212(h) (citing INA § 212(a)(2)(A)(i)(I), (II), (B), (D), and (E)). This article covers statutory eligibility for the waiver for both lawful permanent residents and those who are seeking residency for the first time, as well as practical tips for documenting a waiver related to criminal history. All applications for a waiver under 212(h) are submitted on a Form I-601.

The Hardship Waiver

Under Section 212(h)(1)(A) of the INA, a rehabilitation waiver may be submitted if the applicant is only inadmissible on prostitution-related grounds, or if more than 15 years has passed since the commission of the inadmissible offense(s). The applicant will need to demonstrate that they have been rehabilitated and that their admission to the United States would not be contrary to national welfare, or security. There is no requirement that the applicant have a qualifying relative or otherwise demonstrate hardship to anyone.

The VAWA Self-Petitioner Waiver

The Rehabilitation Waiver

Section 212(h)(1)(B) of the INA is premised on hardship to an applicant’s family members, rather than the passage of time since the commission of the crime. The subsection requires a showing of extreme hardship to the applicant’s U.S.-citizen or lawful permanent resident spouse, parent, son, or daughter. Unlike other provisions of the INA, this waiver takes into account hardship to adult and married children, as well as children under age 21. Section 212(h)(1)(C) of the INA is an expansive waiver available to VAWA self-petitioners. There is no temporal requirement, nor any specific hardship requirement.

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Always A Matter of Discretion

The discretionary standard is considerably higher if the applicant has been convicted of a violent or dangerous crime. See 8 C.F.R. § 1212.7(d). As a matter of discretion, such an applicant is required to demonstrate “extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship.” Id. “Moreover, depending on the gravity of the alien’s underlying offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion.” A Stand-Alone Waiver

Generally, a 212(h) waiver is submitted concurrently with an application for adjustment of status or subsequent to a denial of an immigrant visa. However, current lawful permanent residents may qualify for a standalone waiver if they are charged as “arriving aliens” based on their criminal history and placed into removal proceedings. Matter of Abosi, 24 I&N Dec. 204 (BIA 2007).

“Among the factors deemed adverse to a respondent’s application have been the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record and, if so, its nature, recency, and seriousness, and the presence of other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this country.” Matter of Marin, 16 I&N Dec. 581, 584 (BIA 1978).

“Favorable considerations have been found to include such factors as family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred while the respondent was of young age), evidence of hardship to the respondent and family if deportation occurs, service in this country’s Armed Forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of a genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent’s good character (e.g., affidavits from family, friends, and responsible community representatives).” Id. at 584-85.

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As with almost any form of immigration relief, 212(h) waivers are discretionary. Section 212(h)(2) notes that “the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulation prescribe” must consent to the applicant’s admission to the United States:

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This is a useful tool, as it saves the need to refile an expensive application for adjustment of status, and presents an option for preserving permanent resident status for an individual who might not have a relative or employer who can file an immigrant petition on her behalf.

Limitations The Murder and Torture Bar Although the 212(h) waiver is available for many crimes, it does have limitations. Specifically, it is not available to an applicant “who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.” INA § 212(h) (2).

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Aggravated Felony Bar and Seven Year Residency Requirement Section 212(h)(2) of the INA also prohibits granting a waiver to an applicant: “who has previously been admitted to the United States as an alien

lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of the initiation of proceedings to remove the alien from the United States.”

The Board of Immigration Appeals (Board) has limited the application of the aggravated felony bar to lawful permanent residents who received their residency through consular processing, rather than adjustment of status. Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015).

To date, the Board has not issued a precedent decision on whether the seven-year residency requirement applies to lawful permanent residents who received their residency through adjustment of status, though the rationale of J-H-J- would seem to suggest it should not. Documenting a 212(h) Waiver

Regardless of which subsection of the waiver is being utilized, a good 212(h) waiver is going to focus on hardship (to the applicant and her relatives) and rehabilitation. Practically, this means documenting any medical or educational needs that the applicant and her relatives

have, as well as the financial and psychological hardship that the applicant’s deportation would cause to her family. Particularly in cases in which the family members do not suffer from any “obvious” medical conditions, it can be useful to have them enroll in counseling, and have a psychological evaluation performed. A psychological evaluation of the applicant may also be useful insomuch as it evaluates the applicant’s recidivism risk. A professional explanation of why the applicant is unlikely to reoffend will go a long way toward demonstrating rehabilitation. Other evidence of rehabilitation will include gainful employment, community involvement, completion of appropriate substance abuse or mental illness treatment, and volunteerism. Most importantly, an applicant

IMMIGRATION LAWYERS TOOLBOX for a 212(h) waiver must be prepared to testify candidly about her criminal history, to take responsibility for her actions, to express remorse, and to describe changes she has made to her life since the time of the offense.

About the Author

Sabrina Damast practices in the areas of immigration and nationality law and post-conviction relief. Before opening her own law practice, Sabrina served as a judicial law clerk in the Los Angeles Immigration Court and worked as an immigration attorney in private practice. As a law clerk, she conducted research and wrote more than two hundred decisions for dozens of Immigration Judges. She developed an expertise in all forms of deportation defense, including applications for asylum, permanent residence, NACARA, fraud waivers, and criminal waivers. As an attorney in private practice, she solidified these skills by representing clients threatened with deportation.

Sabrina is an active member of the American Immigration Lawyers Association and the Los Angeles County Bar Association. In her spare time, she enjoys singing, swing dancing, and musical theater, and she is the leader of a local Girl Scout troop. Sabrina is a member of the New York and California Bars and is admitted to the Central District of California, the Southern District of California, the Northern District of California, the Eastern District of California, the Ninth Circuit Court of Appeals, and the United States Supreme Court. She frequently publishes articles, teaches CLEs, and gives presentations on immigration law. She can be reached at sabrina@sabrinadamast.com.

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Click on the Image to Catch the Interview with Sabrina Damast, Esq.

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Military Parole in Place (PIP) [Beginner Level] By Sonia S. Figueroa, Esq.

Sonia S. Figueroa, Esq. Sonia@Figueroa-Lee.com

ou get a call from an undocumented immigrant, who entered the US without inspection, planning to marry a US military service member. They’ve heard the horror stories of applicants being denied or delayed at the consular processing stage, even with a provisional waiver. The prospect of leaving for the interview makes them want to abandon the process. But they are in luck. This immigrant might qualify for the program commonly referred to as “Military Parole In Place” or “PIP” for short.

PIP is a discretionary program that USCIS instituted on August 30, 2010, and further clarified in a policy memorandum issued on November 15, 2013. PIP allows the Immediate Relatives of active duty, reserve or veterans of the US military to overcome the entry without inspection inadmissibility found in INA §212(a) (6)(A)(i). PIP would resolve their entry without inspection, opening up the potential of an immigrant’s path to legal permanent residency based on an INA §245(a) Adjustment of Status. Immediate relatives are the parents, spouses or children, as defined in the INA.

PIP does not absolve other inadmissibilities such as unlawful presence, the permanent bar, aggravated felonies, etc. Therefore, if the service member is a permanent resident, although their immigrant spouse’s entry would be resolved, their period of unlawful presence would not. Fortunately, if the service member is a US citizen and the immigrant only entered the one time, the INA §245(c) requirement for maintaining lawful status or not working without authorization is not required. If the spouse does not have a criminal history or other issues, then the opportunity to adjust status without Consular Processing is possible. PIP status is granted for one year. Although it can be used as proof of

“inspection and admission or parole,” it can also serve as the basis for applying for a work permit, but the work permit would only be valid for one year. PIP will have to be renewed if another year of work authorization is desired. The basic elements of a complete PIP packet are the following:

1. Form G-28.

2. Form I-131, clearly marked as a military PIP case.

3. Form G-325A for both the service member/veteran and their family member.

4. Letter or Declaration from the service member/veteran describing why PIP should be granted.

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5. Declaration of the family member describing entry, life in the US and why PIP should be granted. 6. Proof of service member/ veteran’s US citizenship status. 7. Proof of service member/ veteran’s military or veteran status (copy of their common access card, orders, DD-214, veteran benefits award letter, etc.)

The immigrant is now eligible to apply for adjustment of status.

11. Any evidence that would warrant a positive exercise of discretion by USCIS.

1. What if the immigrant was in immigration court proceedings and has a removal order?

10. Two passport-style photos.

A completed packet is mailed to the immigrant’s local USCIS Field Office. The mailing label should be made out to that office’s military PIP Officer. No filing fees are required. In about 3-4 weeks you should receive a receipt for the Form I-131 and a biometrics appointment notice later on.

Then you wait, and wait, and wait some more. You check the online system, and with the field office, but hear nothing. Hopefully in about 4-12 months, you receive a call or letter requesting the immigrant appear for an “interview.” During this interview, the immigrant’s identity is confirmed, some questions might be asked about details submitted on the form, and then an I-94 card is issued, granting parole for one year.

Some common wrinkles in these cases are as follows:

I have never seen PIP granted by ICE or EOIR. The procedure is to have a complete PIP packet and an approved I-130 and adjustment packet ready. Present the documents to the Office of the Principal Advisor requesting a Joint Motion to Reopen and Terminate the case. Since neither ICE nor EOIR can adjudicate the PIP (it is a USCIS benefit), typically, they are amenable to granting the Motion to Terminate so that jurisdiction can be vested with USCIS, who can then grant the PIP and then the adjustment of status. If the immigrant is currently in proceedings, then you would do the same but request termination to pursue the case before USCIS.

2. What if the service member is 17 years old? Military service members often get married young. More typically, when a service member is applying for their parents, they might be under 21 years old. The point is, the I-130 is not ready to be filed. In this case, assuming there are no other bars, USCIS has historically been amenable to granting the PIP, which can also be used to apply for a work permit, until the service member is of age. 3. What if the immigrant has a permanent bar?

This is trickier. Under the Obama Administration, PIP would be renewed, and work permits granted. Under the Trump Administration, a clear path to adjustment seems to be required before USCIS will grant PIP. It would be valuable to check with local practitioners to check local Field Office’s practices. I am hopeful that the Biden Administration will revisit this practice and go back to granting PIP liberally.

9. Fingerprint records, police clearance records, and criminal court dispositions, if relevant.

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8. Form I-130 approval notice and/or proof of legitimacy of the relationship.

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4. What if the immigrant has criminal issues? That depends on the crime. It is possible to overcome criminal issues in the granting of the PIP, but there is no guarantee that it won’t come up at the adjustment stage. It is helpful to include evidence of all positive factors, as you would for any discretionary benefit, to counterbalance the negative factors.

As of the writing of this article, PIP is still available. I am hopeful that the Biden Administration will bring about more permanent solutions for the military service members’ families. Even the Senate has been attempting more permanent solutions. Senator Tammy Duckworth, a veteran herself, introduced the Military Family Parole in Place Act (S. 2797), which was referred to the Committee of the Judiciary on November 06, 2019. To date, nothing further has been done but I am hopeful that this will change in the near future.

References/Further Reading AFM Chapters 21.1 and 40.6 (AFM Update AD 12-30) Although the Adjudicator’s Field Manual has been superseded by the Policy Manual, as of the writing of this article, the policy manual references the AFM for this section.

PM-602-0091, “Parole of Spouses, Children and Parents of ActiveDuty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A) (i),” USCIS Policy Memorandum dated November 15, 2013. Stock, Margaret D., “Parole in Place for Military Families” Immigration Practice Pointers (2011- 12 Edition), American Immigration Lawyers Association Publications, pages 603-611.

About the Author

Stock, Margaret D., Immigration Law & the Military, 2nd Ed., American Immigration Lawyers Association Publications, May 2015.

Sonia S. Figueroa is the principal at SSFL Law, APC, in Los Angeles, CA and a former USCIS Field Office Adjudicator and a Veteran of the U.S. Army. Her practice focuses on humanitarian visas, VAWA petitions, asylum, family adjustment, U.S. citizenship, and removal defense. Sonia has incorporated pro bono work into her practice by taking cases from organizations such as the AILA Military Assistance Program and the Coalition Against Slavery and Trafficking. She has also spoken on various panels and conferences in the community. Sonia is a recipient of the Public Service Award from the Korean American Bar Association and named a Pro Bono Guardian by AILA.

Click on the Image to Catch the Interview with Sonia Figueroa, Esq.

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Expert Education on Asylum and Removal Defense

$25 per Video VerifiedImmigrationLawyers.com directory members have free access to this material.

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Click on the images to go to the videos

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How to Make the Asylum Officer Love Your Client (and You) Before Setting Foot In their Office By Brian Manning, Esq.

There’s

nothing an Asylum Officer loves more than a well-prepared asylum application packet. A filing that shows the officer how to get to “yes” in the easiest, most direct way possible can do wonders for your client’s affirmative asylum case.

“

Brian Manning, Esq.

brian@manningasylumlaw.com

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Being an Asylum Officer is difficult. They’re overworked – expectations for case completion can border on the ridiculous – and distressing stories of suffering are heard all day, everyday. This can take a toll on them whether they believe an applicant or think they’re being lied to. It’s no wonder that morale has been low in the asylum corps for years. Officers rarely last more than two years before moving along professionally.

You can make their pain your client’s advantage.

”

But you can make their pain your client’s advantage. It’s precisely because the job can be such a grind that a wellconstructed asylum case, that makes the officer’s life easy, has the power to move the needle in a meaningful way. It predisposes the officer to like your client’s case. In my experience as a former Asylum Officer, that makes a grant of asylum more likely.

A properly prepared case that essentially does the officer’s job for them makes a difference. You really can set the stage for your client so that they walk into the interview with the officer that is all but ready to grant

There is perhaps no more frustrating part of an Asylum Officer’s job than updating and correcting the Form I-589 at the time of the interview.

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asylum, notwithstanding a deluge of inconsistent statements by the applicant during the interview. Here’s how to manage the five main components of an asylum application to give your client an edge:

(1) Application Form

The Form I-589 is actually the least important aspect of your client’s case, but you still have to do it right. Ensure that every box/space contains an answer (if only “N/A”), and answer the substantive questions and subquestions with full sentences that are actually responsive; don’t just say “see personal statement” or the like. Give the officer enough information in the application itself to at least understand the thrust of the claim.

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The personal statement – sometimes called a “declaration” or “narrative” – is your client’s chance to tell their story uninterrupted, and on their own terms. It ensures that everything the officer needs to know to make a decision is actually considered. It’s a crucial part of an asylum application packet, and it’s usually done poorly. Do it well, and your client’s case will stand out. Here are a few tips for the perfect personal statement: • Tell the truth. It seems obvious, but you do need to stress this to your client. Impress upon them the importance of not including anything that’s not 100% true and correct, or which could potentially be misleading. Honesty is the best policy both because it’s simply the right thing to do, and it’s strategically smart, as even clever, sophisticated people get caught lying all the time at the asylum office.

• Keep the overall objective in mind. That objective is to (a) demonstrate

• The structure should be: o A few sentences of introduction/ background/context o Discussion of incidents and circumstances that show why it’s reasonable for your client to fear returning to their country (this should be about 80% of the personal statement)

o A few sentences on why they finally decided to leave their country, how they did so, and why they can’t avoid future harm by internally relocating in their country o A few sentences on how they’ve been affected by what they endured in their country • Keep it short. Three pages single-spaced, maximum. I can’t tell you how annoying it is to get a 20-page personal statement. When

(2) Personal statement

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makes the officer’s job easier, which helps your client.

that your client is at risk of being seriously harmed, and (b) show what it is about them (i.e., their possession of a protected characteristic) that’s motivating the persecutors to target them.

There is perhaps no more frustrating part of an Asylum Officer’s job than updating and correcting the Form I-589 at the time of the interview. Having to struggle with the applicant to sort out dates, street names and other basic information that must be updated is time-consuming and frustrating. It gets your client off on a bad foot with the officer. Avoid this by going over the entire application with your client before the interview, and take notes as to required edits. State these on a single sheet of paper – referencing the Part and Question where the update is required, and then stating the correct/updated information that goes there - which you’ll hand to the officer when they begin reviewing the I-589. Just say, “I listed for you the required updates and corrections, in case it’s helpful – here you go.” This

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It’s a crucial part of an asylum application packet, and it’s usually done poorly.

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Also, you don’t want to risk having the Service Center to which the form is submitted reject the application for lack of adequate answers. Two or three sentences for each of the substantive questions (i.e., all those in Part B, save for number one) is normally appropriate.

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that happens, only maybe 10% of it is actually relevant to the claim. Long personal statements either don’t get read at all or at least don’t get read carefully.

• Don’t talk about every bad thing that’s happened. If your client has endured many instances of physical harm or threats, give a timeframe for those things, give a best guess as to how many times each occurred (e.g., “at least 20 times…”), and then use the first/last/worst framework – discuss in detail the first such incident, the last one, and the worst (i.e., most severe) occurrence. (It’s of course OK to deviate from that approach if other instances better illustrate things that you need to show in your client’s case. Just don’t feel like your client should be addressing in detail all instances of harm or threats.)

• In recounting an incident of harm, state: o When it happened o Where the client was when it happened o What the persecutors said immediately before, during and after it o What they did, exactly (be specific: “they beat me” is useless) o Describe the client’s injuries and how they treated them • Style and tone matter. Use short paragraphs. It shouldn’t ooze emotion. Leave the lawyering to the lawyer. The personal statement should focus on the client and what it is about them in particular and that puts them at risk. It’s the lawyer’s job to connect the dots – to apply the facts to the law.

(3) Supporting Evidence

Evidence is, generally speaking, overrated. Asylum Officers don’t tend to give it all that much weight. Yes, do try to provide documents that speak to any key issue or support a proposition that may be in question, but don’t spend too much time focusing on proof. Usually, a letter or two from a key witness is sufficient. Remember that asylum can be granted without a shred of evidence as long as the testimony during

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Remember that asylum can be granted without a shred of evidence.

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the interview is (i) detailed, (ii) consistent, and (iii) plausible. (4) Legal Brief

I was surprised to see as an Asylum Officer that lawyers don’t normally submit a brief or anything in writing explaining why their client should get asylum. That’s a huge missed opportunity. On the rare occasions when a well-written brief did land on my desk, it made a huge impact. Your brief is your chance to give the officer a roadmap that will take them to a grant of asylum – it’s your way to have them fully understand the key elements of the claim and to see how all the

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That’s a huge missed opportunity.

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For cases with a confusing timeline or where lots of things have happened over an extended

Origin

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Rights Report behind an asylum application does virtually nothing for your client. An Asylum Officer almost certainly will not consider COI that’s stuffed in the application packet without any context. They’re just too busy to wade through hundreds of pages of government and NGO reports.

“Country of origin information” (COI) or “country conditions information” refers to reports or news articles that speak to the conditions in a country. It may be relevant to establishing an element in an asylum claim. For example, where the persecutor is a private actor rather than a government agent, you’ve got to show that the authorities are “unable or unwilling” to control the persecutor. COI, as it’s referred to in the asylum office, helps you do that. It’s also key to demonstrating that there exists in your client’s country a pattern or practice of persecution of similarly situated persons on account of a protected ground, which is necessary if your client hasn’t been threatened and there’s no reason to believe they’re already on the persecutors’ radar. But to be clear, just Affirmative Asylum Cases Filed by slapping the State Country of Nationality: Fiscal Year 2019 Department’s Human

Note that, after every interview, the Asylum Officer has to write an “assessment,” in which they set forth the facts of the case, state their decision, and explain how they got there. I want the officer to be able to literally copy from my brief and paste into their assessment. Do it right, and you may be able to write the officer’s decision for them.

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You should write a concise, short brief – not more than about six pages, single-spaced – that goes through the asylum elements. Don’t waste space reciting the “refugee definition” and other such legal formalities that you might be expected to include in an immigration court brief. Rather, cite to legal authorities sparingly. Use them only to argue a point that may actually be in question. Try not to use legal jargon. I prefer to use footnotes rather than inline citations, because I want to maximize the chances that the officer will actually read the document carefully, and readability goes a long way to that end.

(5) Country Information

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An Asylum Officer almost certainly will not consider COI that’s stuffed in the application packet without any context.

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requirement asylum elements are satisfied before your client’s big day at the asylum office.

timeframe, consider submitting a timeline. The first thing that many officers do upon reviewing an application and accompanying personal statement is to pull out all the dates and create a timeline. Do this for them. You can use a tool like lucidchart.com to make it aesthetically pleasing.

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I want the officer to be able to literally copy from my brief and paste into their assessment.

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If you want to influence them with COI, you have to show them exactly where to look. Do that by citing to it in your brief, and by providing in the citation the exact page number of the operative language. Bates number the COI, and have a table of contents for it. Then, in the COI, literally highlight the relevant portions. For long reports, I don’t include the whole thing, but rather just relevant portions. I think having a huge casefile

Try to use authoritative resources for your COI. A couple good aggregators for human rights reports are ecoi. net and refworld.org. Asylum Officers are taught to use those sites. Other governments put together reports that can be helpful, including UK, Canadian, Australian and Norwegian immigration services. About the Author

Brian Manning is a political asylum lawyer. He launched his law firm, Manning Asylum Law, in January 2020, after working for 11 years at the government’s two main agencies for asylum and refugee affairs.

Brian served for over two years at the Houston Asylum Office, including as an Asylum Officer and a Congressional Liaison. Prior to his work at the Asylum Office, Brian spent over eight years as a diplomat with the U.S. Department of State. During postings in Europe and South America, he adjudicated thousands of visa applications, spanning the range of immigrant and nonimmigrant classifications. Brian’s work with the State Department focused on immigration, rule of law, and international security. Brian speaks Spanish fluently, and speaks Russian, Croatian and Bulgarian to varying degrees of fluency. He lives in the Houston, Texas area with his wife and two children. https://www.manningasylumlaw.com

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Click on the Image to Catch the interview with Brian Manning, Esq.

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Family-Based: Child Status Protection Act (CSPA) The

Child Status Protection Act (CSPA) is one of the most misunderstood areas of FamilyBased Immigration (although it applies to the other Immigrant Visa categories). Not only do practitioners give bad advice to Applicant’s and their families, government agents at USCIS, NVC, and Embassies do so as well. The following is a brief explanation of CSPA and tips to guide you on this topic in the Family-Based context.

For a Child Beneficiary or Child/ Derivative remain on their parents existing I-130 Petition without aging out (being considered over 21 and losing the ability to obtain permanent residency with their parent), they need to do the following:

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1) Calculate the CSPA Age a. For Immediate Relative cases: the CSPA qualifying age is at the time of the I-130 filing

b. For Preference Category cases: use this formula to see

what the age is: Subtract the time spent adjudicating the Form I-130, from the age of the Child/ Derivative at the time their category Priority Date Current (Based on the Final Action Date Chart) on the Visa Bulletin.

For example, if an F-2A Preference Category submitted for a Spouse of a Green Card holder that included a Child/ Derivative under 21: if the case was filed on January 1, 2015 and was approved on June 1, 2015, the 5 months it took to adjudicate the I-130 Petition could be subtracted from the Child/Derivative’s age. Thus, if the Child/Derivative had become 21 years and 4 months of age, the 5-month subtraction would have made their CSPA age 20 years and 11 months. If the case’s priority date is current before their CSPA adjusted age is 21, they can potentially obtain residency through their parent’s case. 2) Sought To Acquire

If the Child/Derivative’s new CSPA age is still under 21 on the first day of the Visa Bulletin Final Action Date Month that the case is Current, they can potentially take advantage of CSPA. To take advantage of this, the Child/Derivative has a one-year

“Sought to Acquire” period. This is what locks the age in and keeps them as part of that initial Petition. Under Extraordinary Circumstances, it may be possible to fulfill the sought to acquire requirement if the applicant fails to act within 1 year. How does a Child/Derivative seek to acquire and lock in the CSPA age? There are a few ways:

a) With USCIS: The Child/ Derivative properly filing for Adjustment of Status (Form I-485)

b) With DOS: The methodology in the FAM and the USCIS Policy Manual does not all completely match the current version of Consular Processing. It gives several options that are really no longer possible through the new CEAC online portal: a. Submitting “the completed Form DS-260, Part 1.” However, in reality, there is no “Part 1” and the NVC fee must be paid before being able to access Form DS260 b. Paying the Affidavit of Support (Form I-864) review fee to DOS (provided

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d. S u b m i s s i o n s according to the Date of Filing does not lock in their age.

Retrogression happens when the Visa Bulletin date goes back in time, meaning that although the case was current for a Priority Date at one time, it no longer is current. This can seriously affect the case. For example, if a visa initially becomes available (based on the Final Action Dates chart) and then retrogresses before the Child/Derivative completes one of the Sought to Acquire activities, the child’s age will not be locked in. When the visa becomes available again (based on the Final Action Dates chart), the applicant’s age is calculated based on the new visa availability date (if they are still considered under 21 with the CSPA calculation at that later time).

If the Child/Derivative CSPA age is over 21 at the time of subsequent visa availability, they are no longer eligible for CSPA. Therefore, it is always in the Child/Derivative’s best interest to apply as soon as possible when a visa first becomes available according to the Final Action Dates chart, so as to lock in their CSPA age.

But if still considered under 21, they will have a full year to complete the Sought to Acquire requirement. However, if during the entire one-year filing period opens and closes, and no necessary actions are

c. The filing of a Form I-485, Application to Adjust Status, by the principal alien in the United States does not satisfy the “sought to acquire” provision on behalf of a following to join Child/Derivative.

Beware of Retrogression

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c) Hybrid: if the Principal Alien is Adjusting Status and the Child/Derivative is abroad, the filing of Form I-824 concurrently or after the I-485 will suffice (if the Visa Bulletin dates are appropriate). Note that:

b. The Form I-824 does not have a field specifically to list derivative beneficiaries and there is no requirement that the principal applicant attempt to amend the form to reflect the names of derivative a p p l i c a n t s . Therefore, the timely filing of the Form I-824 by the principal applicant in the United States will meet the CSPA requirement to seek to acquire LPR status within one year of visa availability.

The date that is considered is the Final Action Date.

c. Or more practically: paying the Immigrant Visa Fee to DOS. The last option seems to be the simplest and least expensive route to take. But to be safe, paying the DOS Fee, the Affidavit of Support Fee AND submitting a completed Form DS-260 in a timely manner for the Child/Derivative is recommended.

a. Even if the I-824 is later denied because the Principal Alien’s adjustment of status application had not yet been approved, it can serve the “sought to acquire” requirement!

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the Applicant is listed on the Affidavit of Support), which may require additional work/ delays to add.

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taken and after that the Visa Bulletin retrogresses, the Child/Derivative will lose the opportunity to file again if the case becomes current and the age is still CSPA qualifying. MORE TIPS:

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1) Be careful: DOS makes mistakes (in both directions) a. The NVC may prevent the case from moving forward (you have to push them) due to miscalculations of CSPA. b. The Embassy Officer may not understand the CSPA calculation (draw them a chart, literally!) c. The Embassy has mistakenly approved an aged out child! This can be a problem that is caught later during Naturalization, potentially leading to Removal. 2) The I-130 Petitioner Parent Naturalizing: a. If the Petitioning Parent in an F-2A case Naturalizes after filing the I-130 Petition for their stillminor aged child, the Child/Derivative automatically becomes an Immediate Relative and their age is locked on the date of Naturalization.

b. In an F-2B (adult unmarried Child of an LPR) case where the Petitioning Parent Naturalizes, the case is automatically converted into an F-1 (adult unmarried Child of a US Citizen) case. However, CSPA Section 6 has an Opting-Out provision to allow them to remain in F-2B (by mailing an Opt-Out request to the USCIS District Office having jurisdiction over the Beneficiary’s residence). The choice to do so is up to the Beneficiary and can be done at any time. The F-2B category has been moving faster than the F-1 category in recent years, so Beneficiary’s will normally prefer remaining in the

initial F-2B preference category. 3) F-3/F-4 CSPA still there! But if the Child/Derivative age out, they need to restart the whole I-130 process through their parents. The case does not automatically convert to F-2B. Whereas an F-2A can be automatically converted to an F-2B. Helpful References:

1) The USCIS 2020 Memo, Revised Guidance for the Child Status Protection Act (CSPA)) https://www. uscis.gov/sites/default/ files/document/memos/ cspa_30apr08.pdf 2) The USCIS Policy Manual https://www.uscis.gov/ policy-manual/volume-7part-a-chapter-7 3) The Foreign Affairs Manual (FAM: 9 FAM 502.1-1(D) Child Status Protection Act)

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Country Focus: Iran, Islamic Republic of Every country and Nationality

has its own special immigration processing quirks that we get accustomed to (or catch) through experience. One of the most distinctive countries immigration lawyers have to deal with is Iran.

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Since the Iranian Revolution of 1979, diplomatic relations between the U.S. and Iran have been cut off. This creates a significant headache for Consular Processing. The lack of a US Embassy in Iran means that Immigrant Visa applicants from that country have to travel to Yerevan, Armenia, Ankara, Turkey, or Abu Dhabi, U.A.E. for processing. These neighboring countries: (1) have limited Farsi speaking Consular Officers, causing increased delays for Iranian IV Applicant Appointments and (2) have their own security and political issues that can stop Iranians from coming or lead to Embassy shutdowns. Add to this the myriad of Travel Bans imposed on Iranians. The removal of the “Muslim Ban” does not relieve those who have visited Iran in the last 2 weeks from the Covid-19 Ban. Moreover, even before former President Trump, Iranian applicants would frequently have to undergo Administrative Processing, which could take years to complete in many cases. Filing a Federal lawsuit for the

delays is not uncommon.

I say all this to save you a lot of headaches: in an initial consultation with an Iranian Applicant, set clear expectations about the timelines (meaning there are no timelines). They should also expect random new laws and political machinations causing delays and denials.

In January 2020, the previous administration suddenly denied Immigrant Visa Applicants who were conscripted to serve in the Islamic Revolutionary Guard Corps (IRGC or Sepah). These cases were approved without issue up to that point. Soon after this began, Embassies started to shut down due to the pandemic, so we don’t have updates on whether this situation continues. Delays are not just at the Embassy. From my own anecdotal experience, I frequently see a few additional months of Naturalization processing time for Iranian N-400 applications.

Finally, Iran is under one of the strictest embargoes in history. As part of that, no direct banking relationship exists between the two countries, and some transactions coming from Iran can be sanctions violations, policed under the Office of Foreign Asset Control (OFAC). Practitioners should consult with OFAC Counsel, or recommend clients do that before obtaining U.S. Status. Some transactions to the U. S. are permitted for Non-U.S. Persons. So financial transfers before getting status may be appropriate. Civil Documents

• Birth Certificates: The Iranian Birth Certificate is called a “Shenasnameh” and is a booklet that can include the names of Children and Spouses. If lost, a replacement version called “Al Mosanna” can be obtained. • Marriage Certificates: Called an “Aghd Nameh,” it is a dozen page agreement between a couple. Uploading this document with translation to the National Visa Center’s CEAC portal can be difficult to their file size limitation. • Police Certificates: not required from Iran.

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Asylum status in the U.S. due to the discrimination against converts, LGBTQ+ groups, political pressures and more. So, these types of cases are frequent.

Click on the Image to Checkout the Breakdown of UK Visa Processing ($25, Free for VerifiedImmigrationLawyers.com Members)

Total Immigran Visas Issued to Iranians

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signed in 1955 and • Military Records: The first used frequently by thing you should bring up Iranian Nationals with clients is their military until the Trump service. Administration ended o Was it with the IRGC the Agreement. (Sepah)? o Due to the illegality o Did they have a of many types of Waiver of Service? commercial trade If so, get the relationship between documentation of it. the U.S. and Iran, Most will have records of L-Visas for qualifying military service, normally entities in Iran is very a plastic card with a chip in difficult too. it that specifies the military service or that it was • Investor cases: For EB-5 cases (now that E-2s have ended), a waived, though it doesn’t never-ending headache is the always list the military Source of Funds. (1) being branch they served in. able to document where Some people who left Iran, the money was earned is such as students before the very difficult and frequently conscription age, should impossible, and (2) tracing have some paperwork the funds from Iran to the U.S. stating that they could account is very difficult to delay conscription until document, as direct banking their education is over. relationships don’t exist and • Visa Reciprocity: middlemen frequently do o B-1/B-2 visas are not provide documentation, valid for 3 months or provide incomplete and only single documents. entry! o The E-Visa Treaty • Finally, Iranians have been frequently requestors of with Iran was

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Expert Education on Adjustmen

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nt of Status & Federal Litigation

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s to Go to the videos

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Questions an Ex-Consular Officer Wished You Would Ask By Mandy Feuerbacher, Esq.

1. How would you describe the environment inside a Consular Section at a U.S. Embassy or Consulate overseas?

Mandy Feuerbacher, Esq.

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mfeuerbacher@argovisa.com

Consular Sections, or the offices that process nonimmigrant and immigrant visas and handle issues involving U.S. citizens, are generally very hectic. When I worked at the U.S. Embassy in Beijing, China, we regularly had more than 4,400+ visa applicants walk through our waiting room every day, who had to be interviewed by a Consular Officer. I would regularly interview between 100 to 150 visa applicants each day, which is a lot of people to talk to!

If there is one thing I would say to immigration professionals and lawyers, it would be to make sure that you send your clients into their visa interviews prepared— the average applicant will have just a few minutes with the Consular Officer, and it is important to take advantage of that time and to be clear and concise. Any confusion or miscommunication can lead to a delay in the case (the dreaded “221G administrative processing”), or worse, a visa denial. It is always best to minimize the number of consular employees who touch a visa applicant’s case (which happens if information is missing, the case needs more review, or for any number of reasons). You want there to be absolutely no roadblocks to that visa being approved, because the stakes are so high!

2. What is something you would like immigration professionals to understand about Consular Officers? Most Consular Officers are not attorneys. Often, I would see immigration attorneys work hard to passionately advocate for their clients via letters to Consular Officers, with long citations to the Foreign Affairs Manual, or case law, and it is usually not the most effective approach. Consular Officers have their own culture—from how they came to be in that position, to the sheer number of decisions they must make on visas on a daily basis (which causes decision-making fatigue), to the weekly consular staff meetings they have to discuss visa issues, to their relationship with their consular supervisors. It is difficult to understand unless you have worked in that environment, day in and day out, but that knowledge is incredibly important in understanding how a Consular Officer makes his or her decisions on visa applications.

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are visa

Honestly, besides the necessary documentation for your particular visa category (e.g., passports, DS-160 confirmation page, school documents if you’re applying for a student visa or as a visiting scholar, employment

Even for employmentbased visa interviews, it is important for visa applicants to know what is in their legal paperwork and whether their answers make sense

Generally, Consular Officers can tell visa applicants why their visas have been refused, but we have realized that it doesn’t serve us well. When visa applicants are told why their visas have been denied, they will generally get argumentative, try to persuade you otherwise, or tell the Consular Officer why they are wrong in their assessment. All of this means that it takes more time to get that applicant out of your window and on to the next

4. How important documents in the application process?

5. Why don’t Consular Officers tell visa applicants why their visas have been refused?

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Consular Officers who work “on the line” (i.e. interviewing at the visa window) often talk about how wonderful it would be if there was a company out there that would provide true and accurate information to visa applicants about the visa interview—and that’s actually how my company Argo came about.

There are two important reasons for this: first, all Consular Officers know how easily documents can be forged, from conference invitation letters, to bank statements, to real estate deeds. Outside of many U.S. embassies and consulates overseas, there is a bustling industry of vendors eager to sell whatever documents a visa applicant may need for their visa interview. For that reason, Consular managers constantly remind Consular Officers “no documents”—meaning, “do not review a visa applicant’s documents.” Secondly, Consular Officers simply do not have time to go through documents during each visa interview to understand the applicant’s situation. What is most important is the visa interview itself—how the visa applicant presents him or herself, how they answer questions, how they explain their work or personal situation, etc. The State Department calls Consular Officers “human lie detectors” so we really base our decisions off of the actual interview.

in light of the documents submitted to USCIS on their behalf. After all, the consular interview is the first time a U.S. Government official has physically interviewed a beneficiary, and Consular Officers take this responsibility seriously. They know that USCIS officials don’t get to meet with beneficiaries of employmentbased visa petitions, so Consular Officers know that they are the eyes and ears of the U.S. Government when interviewing such visa applicants.

Consular Officers are generally disappointed with how ill-prepared visa applicants are for their visa interviews. We are also appalled by the amount of false information provided to visa applicants by people who don’t truly understand the process. (An example of bad advice: “I was told that if I were refused at one consulate, I should just apply somewhere else.”)

documents for H-1B, L-1, or E visas), documentation is really not that important.

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3. What are some things that would frustrate Consular Officers about visa applicants?

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applicant. We have realized through time and experience that the quickest way to get someone out of your window is to provide them a standard statement and to give them a 214B letter (a letter of visa denial).

6. What is something most people don’t realize about visa adjudications?

Most people don’t realize that the Consular Officer at the window has absolute discretion over the case of the applicant they are interviewing. This means that if a Consular Officer decides on a case, not even their Consular Managers or Consul General can change that decision, even if they disagree with the end result. This is why it is so crucial to get that interview right.

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7. If a visa applicant gets denied a visa, can’t they just apply again and get a different result?

Technically speaking, this is true. When a visa applicant has been denied a visa, they can always re-apply. However, each time a visa applicant has a visa interview, there are notes left by the interviewing officer in the case. The case notes in a visa applicant’s record is for life, from the first time they apply for a tourist visa to go on vacation to the United States, to the student visa they apply for to study in California, to the

Total Nonimmigrant Visas Issued (Including BCCs, FY16-FY20)

H-1B visa to for their first job, and then the immigrant visa that will allow them to live permanently in the United States. All of those notes are accessible to the Consular Officer when making their current decision.

For that reason, it is difficult to truly get a “fresh look” by a Consular Officer on your visa application if you have been denied before. A Consular Officer will always review the case notes of the previous interviewing officer. And who do you think the officer is more likely to believe, the colleague that they eat lunch with each day and work next to, or the visa applicant at the window? If an applicant has been refused a visa before, it is even more crucial that they work with experts (i.e. a former Consular Officer) to be prepared for their next interview.

Being a Consular Officer was one of the most difficult jobs I have ever done. Consular Officers understand the gravity of every single decision they make on a case, yet they do not have the time to truly understand every applicant’s situation. We are there to uphold the law, but of course, we bring our own culture and biases into the decision. When you have been a Consular Officer for a long time, as I have, it is natural to be skeptical and want to poke holes in every applicant’s story. It is difficult to talk to over 100 people a day and give each person the benefit of the doubt.

9. What makes Argo different than all of the other agents or consultants out there who work with foreign visa applicants?

Every Argo Officer is a former Consular Officer who has worked for the U.S. Department of State who has interviewed tens of thousands of visa applicants. We have former Consular Officers who has worked in China, India, Brazil, Russia, and many other countries. We understand the visa interview process better than anyone, and we have seen the pain and confusion caused to visa applicants when they are denied visas. Many applicants

IMMIGRATION LAWYERS TOOLBOX probably didn’t need to be denied if they were actually prepared for their interview. This is what Argo wishes to do—to prepare people for those few precious moments in front of a Consular Officer, make sure they don’t ramble (or say too little), and to help people understand the culture of the American Consular Officer. We help clients minimize cultural and language miscommunication, and most important of all, we help them gain confidence, which is so crucial for the interview.

10. Most immigration professionals, like lawyers, have been working with clients for many years, preparing them for their consular visa interviews. Why should they use Argo?

In my opinion, there is simply no substitution for working

with a former Consular Officer who have interviewed tens of thousands of visa applicants and who understands how officers make these decisions. We can help clients issue spot what questions could arise and make sure they are prepared. This is the first time we are making this knowledge and expertise available to the rest of the world. Also, many individuals reach out to U.S. immigration attorneys with visa interview questions or problems that the attorney simply cannot help with. Now attorneys can simply send those people to argovisa.com so they can receive the assistance they need. Ultimately, Argo wishes to help visa applicants get accurate information and advice about the U.S. visa interview process.

About the Author Mandy Feuerbacher is a former Consular Officer with the U.S. Department of State, and has worked at the U.S. Embassy Beijing, China, the U.S. Consulate General Matamoros, Mexico, and the U.S. Consulate General Hong Kong and Macau. In her 7+ years working as a Consular Officer, she has interviewed over 100,000 visa applicants. She is also a U.S. immigration attorney and the Executive Vice President of Argo, the world’s first company made up of former U.S. Consular Officers who help clients prepare for their visa interviews online. For more information on Argo, visit www.argovisa.com. Editor’s Note: this is not a sponsored advertisement.

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How Your Client’s New Business Idea Can Help Them Immigrate To Canada: The Federal Start-Up Visa Program By Stephen W. Green

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Stephen W. Green, Esq. stepheng@gands.com

2013, the Canadian federal government launched a pilot program known as the “Start-Up Visa Program” to attract innovative and skilled entrepreneurs seeking new opportunities to Canada. The program became permanent in April of 2018 and offers permanent residence to foreign entrepreneurs whose new business project is endorsed by a designated Canadian business incubator, angel investor group or venture capital fund, and who are sufficiently competent in English and/or French and have enough funds to settle in Canada. An entrepreneurial team of up to five people can apply together for the Start-Up Visa. The program does not apply to those who intend to live in Quebec, which has a separate business immigration program. To qualify for the federal Start-up Visa, applicants must:

1. Have the support of a designated organization, that is, a business group approved by the government to invest in or support startups: these groups can be angel investors, venture capital funds, or business incubators. There are currently more than 60 approved organizations. Angel investors and venture capital funds are required to invest at least $75,000 and $200,000, respectively, into the business, and business incubators must accept the applicant into its business incubator program.

Each designated organization follows its own process in deciding whether to invest in or support the start-up business. In this way, the government has left it to the private sector to assess the viability of foreign entrepreneurs’ start-ups. 2. Have a qualifying business: the start-up business should be incorporated and carrying on business in Canada. At the time the start-up obtains the commitment of a designated organization, each applicant must hold at least 10% of its voting shares and the applicants and the designated organization must together hold more than 50% of the total voting shares. By the time the applicants obtain permanent residence, each applicant must be “essential” to the business and providing active and ongoing management from within Canada. The designated organization decides who is essential to the business and who is not.

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3. Meet official language requirements: applicants must show their proficiency in one or both of Canada’s official languages by taking an approved language test and obtaining a Canadian Language Benchmark (CLB) level 5 in the areas of speaking, reading, listening, and writing.

Immigration, Refugees and Citizenship Canada (IRCC) reports that during its pilot phase,

About the Author Stephen Green is one of the two Senior Partners at Green and Spiegel and is Certified as a Specialist in Immigration Law by The Law Society of Ontario. Stephen has been practicing immigration law for 30 years and has extensive experience in all areas of Canadian immigration. Stephen has been identified for many years as a leading practitioner in immigration law. Stephen is considered a subject matter expert in the field, frequently asked to speak as a panelist, moderator, and lecturer.

Current processing times for applications under this program is 12-16 months. Applicants who have received their commitment certificates and letters of support from their designated organizations, and have sufficient funds to support their family, may apply for a one-year work permit while they wait for the permanent residence application to be processed. These work permits may be extended on a case-by-case basis.

170 entrepreneurs obtained permanent residence through the program, launching over 100 companies in Canada. There is no minimum personal net worth or job creation requirement for the program. In addition, a person who obtains permanent residence through the Start-Up Visa program would not lose their status if the business later fails. As such, the program offers a viable pathway to Canadian immigration for foreign entrepreneurs willing to take risks and innovate and thereby contributing to the Canadian economy.

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4. Have enough money to settle and live in Canada: applicants must demonstrate that they can financially support themselves and their family in Canada without relying on borrowed money, future employment in Canada, or the investment money received from designated organizations. The government sets minimum amounts, which are updated every year, based on family size.

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ATTORNEYS REJOICE AT THE END OF DIY E2, L1, EB2 (AND OTHER) BUSINESS PLANS Business visa applicants are often known for their fearless and adventurous spirit. These traits help make them successful in business and give them the courage to set up shop in the United States. It’s also what leads many of them to choose to tackle the business plan portion of their visa application on their own. While in general these qualities serve them well, they can backfire when they lead to this decision. It can also make your job significantly harder. Below are the main pain points – as identified by our network of 900+ immigration lawyers and partners – of clients choosing to DIY their own business plans. The plan is not written with immigration officers in mind – Clients often feel up to the task because they’ve written a business plan before, such as for a bank loan application or to raise money from investors. Immigration officers, however, are a unique audience. The primary considerations when writing any business plan should be the objective and the audience. When it comes to immigration, clients frequently miss the mark. Improperly completing critical sections – One of the prominent deficiencies is not using proper resources to populate and support key sections like industry, market overview, or competition analysis. Due to the difficulty of gathering this information, clients often forgo these sections altogether or use untrusted sources that weaken the plan. Delaying the process and not meeting deadlines – Your clients are juggling many things. Writing a 30-40 page business plan in a timely manner is often a struggle. This can delay the process – leaving cases sitting on your desk longer – and even cause deadlines to be missed entirely. Increasing your workload – The process doesn’t just become delayed because you have to wait on your client; time is also added because more work is created for you or your firm. In order to ensure the plan aligns with immigration strategy and is free of distracting errors, you must now also act as a project manager, editor/proofreader, and even translator.

Alleviate Your Struggles by Partnering with an Immigration Business Plan Writing Firm Encouraging your clients to use a professional business plan writing firm is one way to avoid all of these issues. Not only will you get a plan that is done promptly, with little need for direction or oversight (and definitely no need for proofreading), you will free up time to focus on landing more clients. Best of all, the plan is written by business immigration experts who ensure it meets the expectations of immigration officers and is in full alignment with your immigration strategy. This creates a more polished, cohesive application leading to higher success rates. It is a win-win for both you and your clients.

Immigration Business Plan Writing Company in the US & Canada

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Visit Our Website For More Information www.joorney.com

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L-1A/EB-1C Corner By John Khosravi, Esq.

My primary mentor in learning and

Practitioners are turning to federal lawsuits denied cases rather than filing AAO appeals due to AAO delays and inconsistent adjudications. Two December 2020 support this change in preference.

The Petitioner in an EB-1C I-140 AAO Appeal (In Re: 13718186) appealed a denial and submitted additional evidence in the appeal to support a denial based on the qualifying relationship between the US and Foreign employer. The AAO, despite a long history of accepting new evidence on appeal, asserted:

“As our review is limited to the evidence on the record at the time of the Director’s adjudication, the Director is the more appropriate party to consider this new evidence and its impact on the Beneficiary’s eligibility.”

The case was remanded to the USCIS

Director to do another analysis. Although the case was likely to be approved, getting an AAO decision will take over half a year to come. Add to that, the subsequent USCIS delay issuing an approval/RFE/NOID in response, and a case can take over a year to reach final adjudication. Federal Litigation may allow faster completion of an appeal.

Source: EB-1C, I-140, Dec. 17, 2020 Link: https://www.uscis.gov/sites/ default/files/err/B4%20-%20 Multinational%20Managers%20 and%20Executives/Decisions_Issued_ in_2020/DEC172020_01B4203.pdf The AAO decision to withdraw and remand cases sent to it also happened in the recent L-1A decision In Re: 12916002 whereupon De Novo review, the AAO concluded that the USCIS Director incorrectly assigned elements of the definition of managerial capacity to the Beneficiary’s subordinates, both abroad and in the proposed position. But the AAO, instead of doing its own analysis and sustaining the appeal, remanded the case back to the Director, causing more delays and uncertainty.

Is the AAO the way to go?

L-1 I-129 Petitions Approved between FY2015 through Q3 of FY2020

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John Khosravi, Esq. info@jqklaw.com

understanding the L-1A Intracompany Transfer Visa and the EB-1C Multinational Manager Immigrant Visa has been the Administrative Appeals Office (AAO) and their decisions, which indicate current adjudicating trends. The following are some tips and observations to help you and your practice from recent non-precedent decisions. These decisions cannot be used in legal arguments, but their content is an invaluable teaching opportunity.

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The AAO does not consistently act this way, and many times it does make a final decision and sustain cases. But with the potential of extended delays and the costs associated with it, an I-290B may not be the most prudent course of action.

Source L-1A, I-129L, Dec. 1, 2020 Link: https://www.uscis. gov/sites/default/files/err/ D7%20-%20Intracompany%20 Transferees%20%28L1A%20and%20L-1B%29/ Decisions_Issued_in_2020/ DEC012020_01D7101.pdf Sufficient Physical Premises

When a petition indicates that a beneficiary is coming to the United States to open a “New Office,” the Petitioner must show that it is ready to commence doing business immediately upon approval. Moreover, a petitioner must demonstrate that it has acquired sufficient physical premises to commence business. See 8 C.F.R. § 214.2(1)(3)(v). A petitioner bears the burden of establishing that its physical premises should be considered “sufficient” as required by the regulations. See 8 C.F.R. § 214.2(1)(3)(v)(A). To do so, it must clearly identify the nature of its business, the specific amount

and type of space required to operate the business, and its proposed staffing levels, and document that the space can accommodate a Petitioner’s growth during the first year of operations.

It is incumbent on the attorney to review and inspect the documents related to the office premises and judge whether the location matches the business operations intended for that business.

In the case of In Re: 9070067, the Petitioner, an importer and exporter of “computer and communication accessories, etc.,” submitted a business plan stating that it will “mainly engage in import, export and re-export trade of computer and communication accessories, daily necessities, office supplies and etc., especially new energy products and energy saving products.” Furthermore, it said it would create 11 job positions in the first year of approval. They included a Commercial Lease Agreement dated November 15, 2018, and an Assignment of Lease dated March 4, 2019, indicating that

the Petitioner subleased a 1,300 square foot office and warehouse space in California. In a request for evidence (RFE), the Director stated the lease does not provide sufficient detail of the Petitioner’s premises and requested the Petitioner to provide additional evidence relating to its premises.

Tip: If submitting a sublease, you must also include the Master Lease.

Petitioner responded, saying that the space in California would be used as an office and a showroom area, and that in the beginning, all products sold will be shipped directly from the supplier and the affiliate company overseas to its customers, without storage in its California office space.

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On appeal, the Petitioner said that product samples cover “a small part of [its] products and only will be used when there are clients actually visiting [its]

Tip: Sometimes being conservative with the number of employees to be hired by the end of the 1st year of a New Office L-1 is better.

Additionally, the Petitioner had indicated that it plans to employ 11 employees within the first year, but it was not clear how 1,300 square feet of office and warehouse space would be able to support that many employees,

The USCIS’ denial (and AAO‘s concurrence) focusing on the Petitioner’s showroom and marketing seems excessive. But based on my reading these types of decisions over the last decadeplus, I have seen that once they feel a Petition does not match their expectation, they will bring out the smallest details. In my opinion, the Petitioner’s promise of a large staff by the end of the year in that limited office space was what they disliked the most. That mistake led to them to further analyze the case and find fault with the “showroom.” When stating an expected employee count by the end of the 1st year of a New Officer, you have to have the physical office space to house that number at the time of the initial I-129 filing (even if that much space is not needed when starting).

Source: L-1A, I-129, Dec. 2, 2020 https://www.uscis.gov/sites/ default/files/err/D7%20 -%20Intracompany%20 Transferees%20%28L1A%20and%20L-1B%29/ Decisions_Issued_in_2020/ DEC022020_01D7101.pdf

The USCIS Director, in its initial decision, had said that it did not appear that the office space was sufficient for all the uses the Petitioner had listed. Moreover, they said that the record did not contain evidence indicating that the Petitioner promotes its products through videos, a website, or social media and that it was not clear how the Petitioner planned to distribute and market paper copies of its product list and company profile to prospective customers. Leading to the dreaded Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) reminder that a petitioner’s unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof.

office.” However, the Petitioner indicated that it plans to hire a full-time customer service agent who will be responsible for organizing the showroom and presenting the company’s samples to customers when needed. The AAO said the Petitioner had not reconciled its assertion that will show a small portion of its samples in its showroom with the fact that it will staff a full-time customer service agent to organize and show the samples.

while also using part of the space as a showroom. The AAO noted the photos and floor plan did not indicate that this was possible, nor was there sufficient parking for that many employees. Thus, the USCIS’ denial stood. A practitioner could have worked with a client to better formulate the business plan, staff size, and use of the premises so that the evidence was not so inconsistent.

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It stated that the office would be used for marketing and research analysis; meeting with potential customers, clients, or partners; and general administration including accounting, filing, meetings, contract negotiations, internal logistics coordination, and customer services. The showroom area would be a small exhibition space to display and store the company’s product samples, which will be required when clients visit the office. The Petitioner further asserted that according to its business needs, it will consider renting a warehouse to store products.

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Ownership and Control Through Proxy Voting & Using Case Precedent One of the leftovers from the Trump Administration is their crackdown on the evidence used to support the transfer of shareholder voting power by Proxy. The case of In Re: 10133839, makes interesting notes on this issue. The Petitioner here makes wild arguments in favor of the ownership of control for establishing the Qualifying Relationship requirement. The USCIS Director initially approved the Petition, but subsequently revoked the approval.

The AAO noted that stock certificates alone are not sufficient to demonstrate whether a stockholder maintains ownership and control of a corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must also be examined to determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control. In addition, a petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, the management and direction of the subsidiary, and any other factor affecting control of the entity. See Matter of Siemens Med. Sys., Inc., 19 I&N Dec. at 365 What is worthy of attention

of practitioners is the AAO response to the Petitioner’s citation to USCIS Memorandum “L-1 Qualifying Relationships and Proxy Votes, PM-602-0155”, issued on December 29, 2017. They say: “First, as a preliminary matter, the policy memorandum cited by the Petitioner is clearly titled “L-1 Qualifying Relationships and Proxy Votes” and cites law related to this nonimmigrant visa category. It is not apparent that this memorandum is applicable in the context of the immigrant classification for multinational executives or managers at issue in this matter.”

Although it would be preferred that this more onerous Proxy evidentiary requirement for L-1s not apply in the EB-1C context, it is troubling to see this statement because the overlap between the L-1 and EB-1C visas are significant. The two visa categories do have statutory and regulatory differences for sure. But the issue and USCIS precedent of ownership &

control through Proxy Voting would seem like a legal decision that encompasses more than the specific category.

This more stringent interpretation could also then apply to case precedent that benefits Petitioners too. For example, a pivotal L-1 decision about qualifying relationships like Matter of Siemen (Id) cited by the AAO here, potentially should not be used in the EB-1C context since it expressly references an L-1 case. Thus, this AAOs inconsistent statement should cause all Practitioners to pay additional evidence to how they use L-1 verse EB-1C precedents. On the other end, USCIS has been increasingly using the dreaded Matter of Kazarian EB-1A decision in the O-1 context. Separating the effects of these decisions for similar but different visa categories could be beneficial

Source: EB-1C, I-140, Dec 18, 2020 https://www.uscis.gov/sites/ default/files/err/B4%20-%20 Multinational%20Managers%20 and%20Executives/ Decisions_Issued_in_2020/ DEC182020_02B4203.pdf

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Timing for the Return of EB-5 Investment –

Contractual Obligation (vs) Changed Immigration Policy By Evelyn Hahn, Esq.

While the updated Policy Manual tremendously helped the entire EB-5 industry move forward with the EB-5 program with much greater clarity, it still raises a question as to whether the investors who signed their offering documents prior to June 2017 before USCIS updated its Policy Manual, can also request for a return of EB-5 capital after they meet the “Sustainment Period” requirement. These investors

2) In case the EB-5 investors made an investment prior to June 2017 and have now met the sustainment period requirement by maintaining their conditional resident status by filing their Form I-829, it is important to carefully review the terms of the offering documents and other related documents signed at the time of the investments were made, especially the provision pertaining to the exit strategy, dealing with the return of investments. Such documents include, but not limited to: the Private

1) The EB-5 investors are still contractually obligated to abide by the terms of the EB-5 offering documents they signed initially, regardless of the updated changes in the Immigration Policy;

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However, in June 2017, USCIS finally updated its Policy Manual to clarify that an EB-5 investor must sustain his/ her investment “at risk” throughout the 2-year period of conditional permanent residence (the “Sustainment Period”) to be eligible for removal of conditions on his/her permanent resident status. This means that the EB-5 projects can now safely return the EB-5 capital to the investors upon “filing” of the Form I-829, instead of waiting until the Form I-829 is finally adjudicated.

evelynh@hirson.com

must still consider the following additional factors before they make a final decision on this issue:

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Evelyn Hahn, Esq.

ne of the requirements of the EB-5 Investment Program is that the EB-5 investment be sustained at-risk in the new commercial enterprise (“NCE”). Prior to June 2017, it was not clear as to what this sustainment requirement exactly means as there was no mention in the statute or the regulations that the investment must be maintained for certain period of time. As the most conservative approach, EB-5 projects used to indicate in the offering documents that the NCE would issue capital repayments to investors only upon final adjudication of I-829 Petition to Remove Conditions on Permanent Resident status (the “Form I-829”).

ILT MAGAZINE Placement Memorandum, Subscription Agreement, NCE’s limited partnership agreement or an operating agreement, and other related project documents containing the exit strategy; and

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3) If the original terms of the offering documents clearly state that the investor’s capital can be returned only upon final adjudication of the Form I-829, without any flexibility to cater to changing circumstances, the EB-5 investors will likely be bound by the original contractual agreements and therefore wait until the Form I-829 is finally adjudicated before they can receive their capital back.

In case an EB-5 investor wishes to explore whether it is still possible to request for an early return of the capital, contrary to the originally signed offering documents, it is important that the EB-5 investor directly communicate with the project representative to see if the project is willing and able to issue repayments to investors earlier than the originally agreed date in the offering documents. Here, depending on the circumstances, the project might not yet be financially ready to issue the full return of investor’s capital at the time, and as result of earlier return, the investor might not be able to receive back 100% of their original investment. For the

EB-5 Green Cards by Country, Comparison of FY 2009 and FY 2019, South Korea 21%

FY 2009

China 47%

Others 11.3%

India 8%

China 46%

Great Britain & N. Ireland 8% Taiwan 4% Canada 2% Japan 2% India 2% Russia 1% Netherlands 0.9% Mexico 0.8%

FY 2019 Vietnam 8% South Korea 7% Brazil 5% Taiwan 5% Venezuela 2% Hong Kong 2% Mexico 1% South Africa 1%

Others 15%

investors who have already met the sustainment requirement and yet still are bound by the original term of the offering documents, requiring them to wait until final adjudication of the Form I-829 before repayment of capital can be issued, it is important to carefully consider all the relevant factors and carefully weigh the risks and benefits of early return of the EB-5 capital before making a final decision.

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About the Author Evelyn Hahn is a compassionate immigration attorney and a Managing Partner at David Hirson & Partners, LLP.

Evelyn represents small, midsize and large companies, both domestic and multinational companies, hospitals and other healthcare related facilities, entertainment companies, as well as non-profit and religious organizations and successfully filed hundreds of employmentbased non-immigrant visas, including E-2, H-1B, J-1, K-1, L-1, O-1, R-1, and TN visas as well as immigrant visas, including PERM labor certifications, and EB-1 (EB-1-1, EB-1-2, and EB-1-3), EB-2 including the National Interest Waivers, EB-3, and EB-4 immigrant petitions. She also advises her corporate clients about the immigration consequences of

mergers, acquisitions, corporate restructuring, employer sanctions, and immigration law audits including labor condition applications and I-9 verification.

She also focuses her practice on EB-5 investment immigration, representing both individual investors on I-526s and I-829s and regional centers and project developers on all aspects of the EB-5 program, including regional center creation, establishment of new EB-5 projects by filing the Form I-924s, and the EB-5 program compliance in general. Evelyn has spoken at several conferences, seminars, and other speaking engagements, covering various immigration topics. She is licensed to practice law in California and District of Columbia. She is fluent in English and Korean.

Click on the Image to Catch this Premium EB-5 Training ($25) Free for VerifiedImmigrationLawyers.com Directory Members

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Her passion in immigration law deeply ingrained in her because she was one of them and personally underwent the same immigration process herself. Having a full understanding of how difficult, challenging and complex the entire immigration process can be based on her personal experience, her goal is to help each of her clients, both corporate and individual clients, to expand into new opportunities, overcome obstacles, and ultimately achieve their immigration goals in the U.S. She truly believes in helping her corporate clients move around/hire talented foreign national employees to work on their critical projects in the U.S. as well as individual clients achieve their American Dream just like she did.

She represents both corporate/ business clients and individual clients on all aspects of immigration law, including business, investment, and family immigration as well as immigration litigation.

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E-2 Investor Visas in 2021 By Sarah Brunet

Sarah Brunet, Esq.

sarah@brunet-immigration.com

practice business immigration with an emphasis on E-2 investor visas. As an immigrant from France, I have found that many of my fellow French compatriots love the prospect of applying for an E-2. In fact, an E-2 investor visa is often the go-to visa for many business immigration practitioners as it only requires a small amount of investment, no education requirements, and allows for spousal work permits. These are just a few of the benefits of an E-2. In 2021, the E-2 will continue to be my go-to visa. While no one can predict the future, E-2s have been surprisingly favored by consulates in terms of issuance priority. Indeed, when applying for an E-2 appointment in Paris, France, clients were consistently scheduled in a matter of weeks during the Fall of 2020 while the Covid-19 Consular slowdown was happening. However, O-1 appointments were almost impossible to secure. The data doesn’t lie, and it’s easy to see that E’s were likely prioritized over most other NIVs. In addition, it appears that most top E-Visa issuing posts have, for the

E-2 Investor Visas Issued Fiscal Year 2016-2020

most part, resumed their pace of case processing. The exceptions lie with Ciudad Juarez, Mexico and London, England that have yet to catch up on their backlog of cases.

It is also important to note that consular posts seem to approve National Interest Exceptions (NIE) much more generously for the E-2 investor visa than they would have others. Indeed, most clients applying for an E-2 investor visa have not reported any specific question pertaining to NIE during their visa interview, while being granted NIE with no additional evidence other than the promise of hiring U.S. workers. Although these reports and data are encouraging, it would be foolish to not take into consideration the current political climate. I advise practitioners to:

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1. Evaluate the Option of Filing For A Change of Status (COS or C/S)

Paris, France Consular Post Visa Issuance Comparison October 2019 v. October 2020

If my client has already secured a B-1 or B-1/B-2 and is in the United States, it may be better to file for a Change Of Status to E-2 if their intent to remain changed after admission. While I have heard of USCIS finding major issues with E-2 C/S

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Top 5 E-2 Investor Visas Issued by Country Fiscal Year 2020

2. Protect the Investment

Given the current situation, I suggest that, whenever possible, counsel should advise clients to protect their investment in case of an E-2 denial. While it is not always possible to condition an investment according to a Visa or Change Of Status approval, I believe, more than ever, we should push clients to be creative and advocate for conditional investments. For instance, the sale of a business can be conditioned to visa issuance,

However, it is essential to recognize that although current

Also, if possible, try to have the client enter on the B-1, as opposed to the B-2.

It is important to have a pandemicproof business plan, and for this, your client may have to adapt their way of doing business and include an expansive view of their business operations for additional flexibility. For instance, restaurants should offer take out/delivery, tutoring businesses offering online classes, brick and mortar stores creating an additional online storefront… Those are just a few ideas, and there is no right or wrong.

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That said, I have a word of warning. I do not recommend applying for a B-1 or B-1/B-2 in order to later apply for a

C/S. In my practice, I have found that securing a B visa is often unreliable, and B visa appointments are much harder to secure than E visa appointments, not to mention the potential risk of misrepresenting a client’s case if one were to apply for a B instead of an E.

3. Adapt the business plan to pandemic

filing, my experience has thus far been very positive. I find that, while USCIS requires advanced documentation regarding the source of funds, it is, overall, fair in its adjudication, and certainly trusts young entrepreneurs more than the consulate.

the purchase of inventory or furniture, a lease, … While your client may not always be able to negotiate a suspensive condition in a contract, it is definitely recommended.

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E-Visa Issuance per Consular Post October 2019 - October 2020

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conditions may currently be far from ideal for starting certain businesses (restaurants, schools, gyms…), businesses may thrive by being flexible and offering much-in-demand services. The business sense and vision of the client should govern the business direction, but the practitioner should keep an eye out for Covidfriendly business ideas. Guiding a client through the E-2 process always requires

an understanding of the general economic climate as well as some business sense. For entrepreneurial and creative practitioners, this is a particularly interesting time, where your expertise and talent will make a difference in your client’s immigration process. It’s your time to shine before the storm subsides and we all go back to our regular cases, with reliable timelines and a sound administration.

About Sarah Originally from France, she relocated to Los Angeles, California, in 2010. Since 2016, Sarah has been practicing business immigration with a concentration on E-2, O-1, and EB-1A. Sarah is currently the Chair of the Immigration Committee of the American Bar Association, young lawyer division.

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Click on the Image to Catch the Interview with Sarah Brunet, Esq.

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Naturalization Policy Update: Must Read

Now Green Card holders can carry this risk on them for the

…If the evidence suggests that an applicant abandoned his or her LPR status and was subsequently erroneously permitted to enter as a returning LPR, the applicant is ineligible for

If the officer determines that the Naturalization applicant has failed to meet the burden of establishing that he or she maintained LPR status, DHS places the applicant in removal proceedings by issuing a Notice to Appear (NTA) (Form I-862), where issuance would be in accordance with established guidance.”

Source: https://www.uscis.gov/ policy-manual/volume-12-partd-chapter-2

Policy Memo: https://www. uscis.gov/sites/default/ files/document/policymanual-updates/20201118LPRAdmissionForNaturalization. pdf

An applicant who has abandoned his or her LPR status is not eligible for Naturalization. To naturalize under most provisions of the immigration laws, an alien must be lawfully admitted for permanent residence and have maintained LPR status through the naturalization process. USCIS may consider any relevant evidence of abandonment to assess whether the applicant is eligible for Naturalization.

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Practically speaking it was never NOT the rule. But practice as that if CBP made a determination of non-abandonment and permitted a Green Card to reenter, and the Naturalization look-back period is passed, it would not be an issue.

“USCIS Policy Manual, Part D, Chapter 2, Section B. Abandonment of Lawful Permanent Residence

Naturalization. This is because the applicant failed to establish that he or she was a lawfully admitted for permanent residence at the time of the subsequent reenter and failed to meet the continuous residence requirement for Naturalization.

The troubling news came from the restatement of existing rules that were practically not followed: when applying for Naturalization, the entire period of a person’s Lawful Permanent Resident Status can be analyzed (not just the last 3 or 5 years depending on the case type). In particular, reviewing a case for abandonment. Thus if a client obtained their Green Card, and was outside of the US for a year and was permitted to reenter by CBP, then waiting 25 years to apply for Naturalization, the 1 year absence could lead to an abandonment of their residency, denial of the Naturalization application and an NTA!

rest of their lives and would face serious consequences by filing for Citizenship. Many Applicants without attorneys (and probably many with attorneys) are not aware of this update and can be subject to this issue. We have not yet seen how USCIS will be dealing with this. Hopefully the new administration will fix this:

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ne of the parting bombshells the Trump administration left us before leaving office, was an update to the USCIS Policy Manual for Naturalization. The Nov. 18, 2020, Memo primarily touched upon the idea that if a Green Card was improperly issued, it could lead to a Notice To Appear (NTA) after processing a failed Naturalization case. Nothing surprising or new there.

ILT MAGAZINE Top 10 Field Offices Receiving N-400 Applications for Naturalization (Q3, FY 2020)

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On a side note, although in the past CBP permitted reentry after long absences did not always lead to an NTA, USCIS had the authority to disallow the benefits of permanent residency such as submitted family preference petitions. In Matter of Abdoulin 17 I. & N. Dec. 458 (BIA) (1980) a visa petitioner left the United States for 11 years following his admission as a lawful permanent resident and then reentered thrice as a nonimmigrant visitor.

He failed to prove his burden of establishing lawful permanent residence so as to confer preference status to his spouse and his petition was denied by the service even though no adjudication against him in deportation proceedings had been made. In removal proceedings, the burden is on the Government to show by clear, convincing, and unequivocal evidence that

the alien has lost status and is deportable. However, in visa petition proceedings, the burden is always on the alien to show that he is entitled to confer benefits. Matter of Brantigan, 11 I & N. Dec. 493 (BIA 1966). Thus, the USCIS Officer could not take away residency status in that case, but could prevent the Petitioner from trying to confer benefits to others based on that status.

IMMIGRATION LAWYERS TOOLBOX

How to Gain Respect from Your Clients By Ritu Goswamy, Esq.

Many of us who have chosen immigration law have a deep soul connection with the work. We may be immigrants ourselves or have family members who are. We may have

Boundaries are often thought of harsh constructs that lawyers create to keep distance from clients. It is common for professionals to avoid getting close to their clients. It causes them to lack a supportive “bed-side

It feels like there is no way out. Withdrawing from a case is often not an option and may require more work than just finishing the case. Truth is, you actually want to finish the case. The client, no matter how he treats you, deserves this legal benefit. Well, it is possible to turn this around and be respected by all your clients, especially the challenging ones. And it is easier than you think.

When we care so much about our work, clients, and cases, we tend to lose ourselves in our work. We forget who we are and end up immersing ourselves in something outside of us. This can be thrilling for a while, but leads to stress, burnout, illness, and feelings of lack of respect from others. When we lose ourselves, we are actually losing respect for ourselves. We forget to respect our time and energy. We become too flexible and let others manage us instead of managing ourselves. We go out of our way and give more in relationships than we are receiving. This can feel good temporarily, but is not sustainable in the long term.

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Ritu Goswamy, Esq.

ritu@newbillablehour.com

”

most of your immigration clients are a pleasure to work with – they are responsive, available, prioritize their case, and pay your bills promptly – there are those clients on your caseload that may be challenging to work with. Even if it is just a few clients, they somehow take more time and energy. Over time, it can feel like these clients do not respect you and the extra care and effort you are putting into their case. You actually may care more about their case than they do. After a while, you may be investing more time, money, and resources than the client is! When it gets to this point, we feel stuck. We vent to our colleagues, and maybe even take it out on other people, including our own family, staff and clients.

While

been exposed to different cultures and countries and understand the inequities in systems. We may just see that immigration is the civil rights issue of our time and we want to be part of the movement. This connection to our work is admirable, and can also leave some blind spots.

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“

When we lose ourselves, we are actually losing respect for ourselves.

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manner” and to maintain a transactional relationship. But as an immigration professional, you want to be present with your clients. You want to be the one they can finally trust. You know that the attorney-client relationship is key both to your success and to your job satisfaction. So how can you continue to be present with your clients, while respecting yourself? Creating and maintaining boundaries is not what you think it is. Boundaries are meant to create connection, not separation. You know those people in your life that respect you? They likely have decent boundaries and know where they are responsible for themselves and what to expect and not expect from you. In turn, they respect themselves and those around them. Don’t change who you are. Stay passionate, lively and generous. However, it is time

“

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About the Author

Boundaries are meant to create connection, not separation.

”

to do some introspection about your part in creating imbalance in your life.

Through self-awareness skills and tools, you can hone your ability to notice yourself. Notice when you give away your power. Notice when you give away your time by scheduling clients on their schedule instead of yours. Notice when you over-deliver, when the client under-delivers. By observing your part of the equation, you can make small shifts in your investment so that you truly respect yourself. When you respect yourself, you will command the respect from others you deserve. The clients

Ritu Goswamy, Esq., is an immigration lawyer and productivity strategist for lawyers. She is the bestselling author of The New Billable Hour: Bill More Hours, Be More Productive, and Still Have Work Life Balance and The Holistic Lawyer: Use Your Whole Brain to Work Smarter Not Harder. Ritu is the creator of the New Billable Hour ® system, which helps lawyers increase their productivity by billing themselves first. She teaches this system directly to lawyers in a way that is engaging, fun, and practical. Ritu hosts “The New Billable Hour Podcast” available where you like to listen and on YouTube. She consults with lawyers individually and in groups and is an active speaker and trainer in the areas of lawyer productivity, competence, and mindfulness. For a free copy of her first book and other resources, visit: www.ritugoswamy.com.

will be supported in stepping into their own power. Those clients who don’t want to rise, will fall away. And we must ethically manage that result as well.

In the end, you can have a thriving immigration law practice with clients who respect you. The shift that needs to be made is that you learn how to respect yourself and set healthy boundaries. When you genuinely respect yourself, you won’t feel disrespected and will have the energy to make the decisions necessary for your clients and their cases.

Click on the Image to Catch Catch the Free CLE with Ritu Goswamy, Esq.

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Managing Partner, Ian Hawes

Immigration Lawyers Toolbox® Magazine, Issue 01 (Winter 2021)

Articles inside

Military Parole in Place (PIP)

Timing for the Return of an EB-5 Investment

E-2 Investor Visas in 2021

Country Focus: Iran, Islamic Republic of

How to Make the Asylum Officer Love Your Client (and You) Before Setting Foot In their Office

CANCELLATION OF REMOVAL: PROVING CONTINUOUS PHYSICAL PRESENCE AND AVOIDING COMMON PITFALLS

Dec. 2020 L-1A/EB1-C Corner (Analysis of AAO Decisions)

How to Gain Respect from Your Clients

Naturalization Policy Update: Must Read

Top 10 Largest Immigration Law Firms

The Interview