Immigration Lawyers Toolbox® Magazine Issue 6 (Fall 2022)

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TABLE OF CONTENTS Discussing PERM With Small Businesses 14 Featured Topics 10 Consular: Avoiding Findings of Fraud in Marriage & Fiancé(e) Immigration Cases Former Consular Officer Robert Melvin, Esq. 18 Crimmigration in the Courts –Where Do We Realistically And Probably Stand? Kevin A. Gregg, Esq. 24 Special Immigrant Juvenile Status Jared Jaskot, Esq. 30 Immigration Litigation 101 – TopDown Versus Bottom Bryan Scott Green, Esq. 38 42 48 52 Tess Douglas, Esq. How to Improve Your Systems –Document Collection Nadine Heitz, Esq. Understanding INTERPOL Red Notices – A Basic Guide for Immigration Lawyers Sandra Grossman, Esq. O-1B Agent Petitioners and Employers Ron Matten, Esq. Arthur Deucher Figueiredo Santos, Esq. Review of 2022 Year-to-Date O-1 Visa AAO Decisions John Q. Khosravi, Esq. Creative Solutions –Changing Status From L-1 to O-1 58 Joseph Tsang, Esq.

Dear Toolboxer,

The Immigration Lawyers Toolbox outreach has shown strong growth in all aspects of the immigration attorney space. There are hungry graduates coming to the field and others deciding to leave their existing practice to start with us. It is an exciting time to be practicing and educating in this area of law.

Due to the high demand, we decided to do our first workshop this winter in Los Angeles, hyper-focusing on the O-1 visa so practitioners can add this specialty to their toolbox. In addition to having the best O-1 practitioners teaching, the group is intentionally being kept small to promote one-on-one networking in the all-day event that goes from breakfast to dinner. I look forward to seeing fellow Toolboxers there and at workshops we will be launching across the country,


President & Chief Editor John Q. Khosravi


anna sErgEEva, E

Cover and Layout Zion DEla CruZ

Contributing Writers

robErt MElvin, EsQ tEss Douglas, EsQ. KEvin a. grEgg, EsQ. brian sCott grEEn, EsQ ron MattEn, EsQ. FiguEirEDo santos, EsQ. JarED JasKot, EsQ naDinE hEitZ, EsQ. sanDra grossMan, EsQ. JosEph tsang, EsQ

If you would like to be considered for submitting an article please contact:

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 The laws change frequently and some of the information may become outdated.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.

© Immigration Lawyers Toolbox® Incorporated All Rights Reserved

Publisher’s Note
President of the Immigration Lawyers Toolbox®

Consular: Avoiding Findings of Fraud in Marriage & Fiancé(e) Immigration Cases

RobeRt Melvin, esq.

A finding of fraud in your client’s marriage or fiancé(e) petition is usually the kiss of death for the beneficiary, permanently barring that person from obtaining any immigration benefit in the future. It can also cause any further petitions filed by the petitioner to come under much scrutiny. Therefore, it is essential to know some of the mechanics of fraud from an adjudicator’s perspective to avoid any erroneous finding of fraud in your client’s case. When deciding marriage and fiancé(e) cases, the officers look for fraud indicators. Taken alone, any single fraud indicator is not ultimately determinative of a fraud finding. However, when there are several such fraud indicators together in one case, the result can be a referral to the fraud unit for an in-depth investigation or a summary finding of fraud by the adjudicator with permanent ineligibility for misrepresentation of a material fact. Because of the detrimental nature of permanent ineligibility, it is extremely important to honestly assess your client’s case for the presence of any such fraud indicators so that you can prepare the client to address and explain them at their interview.

Surprisingly, the number one fraud indicator in a marriage or fiancé(e) visa is when a beneficiary has relatives

already residing in the U.S., whether as legal permanent residents, citizens, or even without permission or legal status. When a beneficiary has relatives living in the U.S., the implication is that the beneficiary might have arranged a false relationship with the petitioner in order to travel to the U.S., where they already have a network of support to start a new life. In other words, if the beneficiary can simply gain entry to the U.S. via an immigrant visa, it will not matter that the underlying relationship does not exist because the beneficiary will rely on their own family as a network of support instead of beginning a new life with the petitioner. If the beneficiary does have relatives in the U.S., it is also essential to understand how they obtained their status. It is not uncommon for a beneficiary to find relatives living in the U.S. who were petitioned by a U.S. citizen or lawful permanent resident that also has some ties to the petitioner in the current case. It is also common to see beneficiaries encountering the petitioner in the current case via the same or a similar manner as their relatives who now live in the U.S. (e.g., through the same matchmaking site, church, organization, friends or family in common, or other affiliation). While it cannot be said that the current relationship is per se fraud in

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Robert Melvin, Esq.

such instances, the adjudicator may become suspicious and do a much more thorough investigation where there are ties between the petitioner in the existing case and the way the beneficiary’s relatives obtained their status in the U.S.

Another strong indicator of fraud in marriage and fiancé(e) visa cases is when the petitioner had previously petitioned one or more beneficiary(ies) in the same category (especially when the prior beneficiaries were from the same country). This fact pattern indicates that the petitioner could be involved in a fiancé(e) or marriage fraud scheme with someone or a group of people or organization, whereby they are paid to file petitions and bring beneficiaries over on false pretenses. Thereafter, the petitioner divorces or abandons the current relationship once the beneficiary is in the U.S. and starts all over again in a new case. Relationships don’t always work out, and there are a multitude of legitimate reasons why petitioners and beneficiaries divorce or break up. Therefore, when you have a petitioner with previous or multiple past petitions in marriage or fiancé(e) cases, it is paramount to convincingly explain, in detail, why the previous relationships failed and provide very strong and persuasive evidence in the current case to show that it is authentic.

It may sound obvious, but the lack of knowledge regarding each other and

the absence of proof for a shared life are the third most telling indicator of fraud. While the petitioner does not technically need to come for the interview, it is often a red flag when absent. This can lead to administrative processing and a request by the officer that the petitioner appears on a rescheduled date. During an interview together, the petitioner and beneficiary will answer several questions regarding the details and history of each other’s lives. Unbelievably, many couples cannot give any (or very little) information about each other. This is often a warning sign to adjudicators and can trigger a dual interview by the officer. In a dual interview, the couple is separated and individually asked the same questions regarding details of their life in common, about their individual lives, and/or concerning the life of their spouse or fiancé(e). There is no predetermined list of these questions, and they can vary widely (e.g., favorite color, favorite food, names of relatives, birthdates of immediate family, recent activities together, details of the honeymoon, trips taken together, etc.). The officers often create their list of questions on the spot, according to issues that might have already arisen during the joint interview. When the answers to a dual interview conflict, fraud may be determined, or the case may be referred for a field investigation. An example of this lack of basic knowledge arises in countries where most women give birth

via C-section. When the beneficiary in such a country has children, she will almost always have a scar that either runs horizontally or vertically on her abdomen. In this type of case, the petitioner should know the beneficiary well enough to describe the scar and whether it is a horizontal or vertical line. The same line of inquiry can be applied to any scars, burns, tattoos, blemishes, or unique marks or physical characteristics.

It is perfectly normal not to know all the answers or to make errors on a few questions during a joint or separate/ dual interview, but the parties should demonstrate a reasonable amount of common knowledge about each other. The key to a successful interview is not to be overly nervous, to answer in a straightforward and calm manner, and to not guess (it is okay to say that you do not know the answer). When the parties provide many contradicting responses to these questions or begin acting extremely nervous or cannot provide basic information on several of the issues, the officer may enter a finding of fraud immediately or refer the case to the fraud department for a field investigation.

Every consular section has its own fraud unit or access to a regional fraud operation. The officers can already see almost every criminal database imaginable (often including local databases), so they will be able to

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detect any obvious criminal problems. What petitioners and beneficiaries fail to consider is that officers and the fraud units will also review credit reports, social media, and any other open-source records or information for evidence that either supports the relationship as valid or indicates that the relationship might be fraudulent. If the parties do not share any common telephone numbers, addresses, social media content, etc. or, if the information available in these resources shows aspects of the person’s life held in common with another person who could be the real partner, there will likely be either an immediate finding of fraud or a resulting field investigation. If the fraud unit conducts a field investigation, they will interview neighbors, associates, friends, family, employers, etc., to try and determine the legitimacy of the relationship. This process normally takes many weeks or months to complete, and the case will be held in administrative review until a final determination is made. If the fraud investigator finds that people in the beneficiary’s personal and professional lives know absolutely nothing about the petitioner or the fact that the beneficiary has an immigration case pending, it could easily lead to a determination that the relationship is fraudulent. Even worse, if the field investigation uncovers that the beneficiary has another life partner involved, the adjudicator can easily find that the petitioner/beneficiary relationship is not bona fide, resulting in a fraud finding. Referrals to the fraud unit will either come back as no-fraud, a determination of fraud, or inconclusive. Where the results are inconclusive, the case will likely be approved since there is nothing solid on which to decide fraud.

Sometimes, there are glaring discrepancies that are patently problematic. For example, when the petitioner and beneficiary claim to have children in common where they are both biological parents; however, their travel history shows that it was physically impossible for them to be in the same geographic area at or near the time of conception. In other cases, the petitioner and beneficiary claim to have multiple children in common, but one or more of the children have physical characteristics and appearances so different from the others that it causes doubt in the mind of the adjudicator whether the petitioner and beneficiary are truly both the genetic parents. Often, these cases are referred for a DNA test to determine biological parentage. It is fine if the beneficiary or petitioner had an indiscretion that led to a child outside the marriage, during the time of marriage, but that should be addressed upfront. If that child is only biologically from the beneficiary, the child could be included in the case as a stepchild of the petitioner, or the petitioner could legally adopt the child. However, where the child is presented in the case as the biological child of both the petitioner and beneficiary and a DNA test comes back to the contrary, it could be seen as a material misrepresentation on the part of the beneficiary or petitioner. When there is more than one child born outside the marriage, during the time of the marriage, it can be very difficult to overcome a presumption of fraud.

To avoid a long delay in your client’s case or (even worse) a finding of fraud, petitioners and beneficiaries need to be keenly aware of their unique situation and be able to explain in a calm, rational, and believable manner any

fraud indicators that might be involved. Clients have to be informed and realistic – the adjudicators will have access to a vast amount of information about the parties. It is simply not worth the risk to try and guess or fake their way through an interview in a marriage or fiancé(e) case. They will almost always be discovered. Clients have to be prepared for the interview— knowing the partner well and building a life together that is strongly supported by photos, documentary evidence (e.g., titled property held in common, leases in common, etc.), social media, and the testimony of others in their lives. It is perfectly understandable not to know everything about each other or to have issues that need explanation, but the key is to tell the truth about everything (even admitting not knowing something) and be ready to give an honest and credible explanation when something appears to not be in your client’s favor. The adjudicators are merely human, and most are sympathetic to intending immigrants. So, review everything in as much of an objective light as possible and place yourself in the officer’s shoes when analyzing your client’s case and preparing for the interview. The key is to help clients by flagging any potential issues, presenting strong evidence of the relationship, and preparing the parties via mock interviews.

About the Author

Rob Melvin is a 24-year lawyer, licensed by the State Bar of Texas and admitted to practice before the Board of Immigration Appeals. For the last 12 years, Rob has worked for the Department of State as a Foreign Service Officer and Vice Consul at U.S. Embassies in the Dominican Republic, Panama, Pakistan, and Lesotho. Rob held consular commissions underneath both President Barack Obama and President Donald Trump. Currently, Rob has an immigration law firm and also advises clients on international investments.

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Discussing PERM With Small Businesses

tess Douglas, esq.

If small businesses are the “backbone of America,” and immigrants are the “foundation of the United States,” what happens when the two come together? Or rather, what path do immigrants have to work at small businesses? You might think there are many. But the options are limited.

For example, one of the only options for people who do not need college degrees to work—think truck drivers, landscapers, construction workers, pet groomers, and hotel receptionists— is the H-2B visa. Yet, for many small businesses, this visa is not workable. Most small businesses want to fill a permanent position, but the H-2B is

only for temporary (usually seasonal) work. And most small businesses cannot afford to pay $2,500-$7,000 in fees for a 20% chance of success. But there is only about a 20% shot of getting an H-2B visa even after completing the application process because there are not enough visas to go around (it is a lottery system).

When I tell small businesses about these H-2B restrictions, they quickly ask about their other options, and I usually say there is really only one: PERM.

PERM can allow small businesses to sponsor an employee for a green

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card. This is the first step for most employment-based green cards.1 A business files a PERM Labor Certification with the U.S. Department of Labor (“DOL”) to show that no U.S. workers are able, willing, and minimally qualified for the position. As a result, the foreign national employee can obtain a green card to work in that position.

Unlike the H-2B, PERM is usually successful. Many large U.S. companies use PERM to attract and retain foreign talent. Some giant tech companies have whole teams of people dedicated to PERM processing. But PERM is not just for Fortune 500 companies. Small businesses can use PERM too. However, small businesses have unique challenges they need to be prepared for when they go through PERM.

If you are advising a small business on the PERM process, you want to make sure you cover these key issues.


The PERM process is not fast. I tell my clients that from the date they hire us to the moment the foreign national has a green card in hand is a minimum of 1.5 to 3 years. One reason for this long timeline is that the DOL is now taking over 6 months to find the average wage paid for similar workers, a process known as the prevailing wage request, which is just the first step in the PERM process. In the past, the DOL took about 3 months for this step.

Small businesses need to know that the overall timeline is much longer if the foreign national was born in India or China. Indian and Chinese nationals might have to wait 20+ years because

1 PERM is also referred to as a “Permanent Labor Certification” or a “Labor Certification.” Don’t be fooled, though, PERM does not stand for “Permanent.” PERM is actually an acronym for “Program Electronic Review Management,” which is the system that the Department of Labor uses for the Labor Certification process. The good news for you, though, is that you do not need to know this PERM lingo to help a small business go through this process.

of the high demand for employmentbased green cards. I do not know of any businesses willing to wait that long for an employee, so the business must determine if there are other options in the meantime (like an H-1B, L-1, or O-1).

Small businesses need to know that if the employee does not have any other U.S. work permit options, then the employee will likely be waiting abroad for at least 1.5-3 years until they have the green card to be able to work at the company.

Despite the timeline, some small businesses are still willing to go down the PERM path.

Ability to PAy

If the employer is onboard with the long timeframe, then the next item you want to discuss with them is whether they have the “ability to pay” the prevailing wage. You will want to look at the company’s federal tax returns and audited financial statements. Ideally, these records will show that the company has a net income that is more than the prevailing wage amount. But with small businesses, this is not always the case. Sometimes companies operate at a loss for a period to improve their business position in the long run; or startups cannot show profits yet but can show significant venture capital funding. If the net income does not look good for the company, then you want to look at the money in the bank

(is it significant enough to easily pay the wage even with other expenses?), or see if the net current assets are significantly greater than the current liabilities (you want the difference to be greater than the prevailing wage).

The easiest way to show the ability to pay is if the small business is already paying the foreign national employee the prevailing wage amount (if the employee already has work authorization in some other status). But a lot of small businesses are pursuing PERM because the foreign national does not have any other options, so then the company’s finances become important to show the ability to pay.

FAmily relAtionshiP

Many business owners want to help their family members come to the United States. They have an available position, and they think a foreign national family member would be the perfect fit for the role.

If this is the case, you want to warn the business that a family relationship between the business and the foreign national employee could cause problems with the PERM. On the PERM form (9089) you must disclose whether “there is a familial relationship between the owners, stockholders, partners, corporate officers, incorporators” and the employee being sponsored. The DOL defines “familial relationship” broadly. You must say yes to this question for any relationship created by

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blood, marriage, or adoption, “even if distant.” So, if you are a small business and you want to sponsor your distant second cousin, who you did not even know you were related to until you

business away, then the next issue you want to discuss with them is their role in the PERM process. A lot of clients (individuals or businesses) think, oh, I hired a lawyer, now I don’t have to do

there is no guarantee that the employee will stay working at the small business. The small business needs to be aware of this risk.

found out on, you still have to disclose it.

The DOL is worried that if a small business sponsors a family member, then the position is not a “bona fide job offer” to a U.S. worker. The DOL thinks that if the business is sponsoring a family member, then the company does not have any interest in actually offering the position to a U.S. worker first.

If you have a family relationship, be prepared for an audit. The DOL will ensure that you went through all the recruitment steps fairly. The DOL has ultimate discretion in determining whether the job offer was bona fide. It is hard to predict what the DOL will do, which sounds scary for a small business considering going down this path. But I have heard several reports from fellow AILA practitioners that— after an audit—familial relationship PERMs usually get approved.

role oF the emPloyer in the Perm Process

If you still have not scared your small

anything. But even if attorneys wanted to do everything, we cannot for PERM. The employer must play a critical role in the PERM process. The law restricts the employer from delegating certain tasks to the lawyer.

The small business needs to be prepared to: help identify the job duties and requirements; post a physical notice at their office; receive applications; contact applicants; review applications; determine if there any qualified applicants; demonstrate ability to pay the prevailing wage; and review PERM materials for accuracy along the way.

It is useful to walk through these responsibilities with the small business before diving into PERM, so they are not blindsided.

emPloyee cAn leAve

The final issue that you will want to cover with the small business is that even after they go through this whole time-intensive and expensive process, the employee could leave. The green card is not tied to the employer. So once the employee gets the green card,

In sum, PERM is not hands-off for the employer, nor for the faint of heart, but with the right guidance, a small business can successfully use PERM for foreign national employees.

About the Author

Tess Douglas is an immigration attorney on the DGO Legal team representing individuals through all stages of the immigration process, including nonimmigrant and immigrant visas, criminal immigration issues, appeals, and federal litigation. Tess enjoys using modern technology to simplify the client experience. Her passion for immigration law stems from her own family history. Her great-grandmother was in Mexico when it became Arizona; her great-grandfather immigrated to the United States and invented an efficient printing press; her adoptive grandmother came to America after surviving Auschwitz; and her father invented a novel denture material. As a result, Tess is personally invested in helping foreign nationals and their employers navigate the complex U.S. immigration system.

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Crimmigration in the Courts: Where Do We Realistically And Probably Stand?


Litigating immigration law sometimes feels a bit mischievous. “Immigration” is discussed nonstop in America, but few are familiar with the statutes, regulations, court decisions, and agency policies that govern the patchwork system. Many sympathetic to asylum seekers would be shocked to learn what applicants must do to meet their burden after reaching our shores. Those advocating “to build a wall” likely know little about visa overstays. And if you fall in love with a noncitizen, well, hopefully, you do not mind forms! But none of those complexities compare to the ubiquitous immigration boogeyman—three words that have terrorized attorneys, judges, and noncitizens alike since time immemorial: “the Categorical Approach.”

I happen to love it. With all its twists, turns, and counter-intuitiveness, the Categorical Approach is a fountain of creativity that, when the stars align, permits lawful permanent residents (“LPRs”) with criminal convictions to keep their Green Cards, and provides other worthy noncitizens a second chance. It is a Supreme Court-created analysis intended to protect the rights of both U.S. citizens and noncitizens alike, and over the last three decades, has proven exceptionally powerful.

Some judges want to get rid of the Categorical Approach. Congress probably can. The Supreme Court definitely can. And yet, it remains.

This article is not about all of that; the Immigration Lawyers Toolbox® Magazine only gave me so many words. No, my friends, this article is about the Categorical Approach’s 15-year-old stepchild: the Realistic Probability Test.

Entire chapters have been written about both, so permit me to summarize very briefly. Federal judges have the authority to increase prison sentences where defendants have prior convictions that match the “generic” definition of certain other federal offenses. Similarly, noncitizens in immigration court lose their LPR status and/or opportunity to apply for relief from removal if their state or federal conviction matches the generic definition of certain other federal offenses defined by the Immigration and Nationality Act (“INA”). To make up one example: an LPR convicted of “Battery with a Weapon” in California (and sentenced to one year in prison) might lose their LPR status because their conviction matches the definition of an aggravated felony at INA § 101(a) (43)(F)—a “crime of violence.”

Immigration Lawyers Toolbox® Magazine 18 Kevin

Sounds easy enough, right? Not really. Because the Categorical Approach doesn’t care what the convicted individual actually did. Under the Supreme Court’s Categorical Approach, noncitizens are only removable for their criminal conviction if the least culpable conduct criminalized by the statute matches the INA’s definition of the removable offense.

Let’s return to Battery with a Weapon.

sometimes proves quite beneficial to noncitizens in removal proceedings, especially LPRs. LPRs only lose their Green Cards if the Department of Homeland Security (“DHS”) proves their case, and that is not always easy when the Categorical Approach comes to town. States tend to criminalize lots of conduct with their statutes, but the INA’s definitions of removable conduct are often narrow. And it is in this gap that immigration attorneys perform their magic.

And let’s assume for the moment that California convicts people for committing a wide range of activities— from intentional shooting with a gun to accidental stabbing with a pencil. That crime will not likely match the definition of an INA § 101(a)(43)(F) crime of violence because the definition of that term generally requires intentional violent force.1 It wouldn’t matter what the convicted noncitizen actually did. All that would matter is that he could have accidentally stabbed someone with a pencil, and that’s not a crime of violence.

Again, it gets complicated, as many readers know. But as the above example shows, the Categorical Approach

1 Want the actual, citable definition? Check out Borden v. U.S., 141 S. Ct. 1817 (2021).

But again, and perhaps expectedly, judges don’t always love the Categorical Approach. Returning to our unfortunate noncitizen batterer, an Immigration Judge might chafe at the thought of permitting an LPR to remain in the U.S. where the LPR actually and intentionally shot someone with a gun, simply because he could have possibly been convicted of accidental pencil puncture.2

Enter the Realistic Probability Test. In Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), the Supreme Court held that even where a state criminal statute matches the definition of a removable

2 We simply do not have time to get into the [gasp] Modified Categorical Approach, but suffice it to say, we have not yet scratched the surface on our gun vs. pencil dispute!

offense, an LPR can still avoid removal if there exists a “realistic probability” that the statute of conviction covers non-generic conduct. Back to California’s made-up “Battery with a Weapon.” Let’s assume the definition of the crime reads: “harming another person through violence.” That text very well might match the INA § 101(a) (43)(F) definition. But Duenas-Alvarez permits a noncitizen to prove otherwise by pointing to her case or another California case where a conviction occurred without use of intentional force. And so, if our hypothetical noncitizen found (for example) a California Supreme Court decision affirming a conviction for someone else where the jury concluded that the defendant acted negligently (not intentionally), that noncitizen might get to keep her Green Card no matter what she actually did. The noncitizen “found a case.”

In Duenas-Alvarez, “there was no doubt that the relevant state offense overlapped significantly with the federal definition of [the] generic” offense; the only question was whether the noncitizen could avoid removal by finding a nongenetic case. United States v. Taylor, 142 S. Ct. 2015, 2024 (2022).

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Because Mr. Duenas-Alvarez could not “find a case,” he lost his Green Card. Fairly straightforward. But in the 15 years since Duenas-Alvarez, the debate has raged.

I am running out of words! So here is the debate as it stands today. The vast majority of circuits have recognized that the Duenas-Alvarez Court implemented a rule that helps noncitizens (or federal criminal defendants) avoid the otherwise harsh consequences of a criminal statute’s text. According to those courts, the

text clearly makes them removable (Mr. Duenas-Alvarez’s conundrum), but they don’t have to if the text clearly makes them not-removable. Switching gears to a new example, if the text of a Minnesota drug possession statute criminalizes possession of the newly discovered drug “ImmigrationReviewIsTheBest PodcastDoxycicline” but the federal government has not yet got around to criminalizing that new (and informative) drug, a Minnesota conviction for possessing it will not make the noncitizen removal under

Test. Behold, your unexhausted list of relevant cases: Swaby v. Yates, 847 F.3d 62 (1st Cir. 2017); Williams v. Barr, 960 F.3d 68 (2d Cir. 2020); Cabeda v. Att’y Gen. U.S., 971 F.3d 165 (3d Cir. 2020); U.S. v. Aparicio-Soria, 740 F.3d 152 (4th Cir. 2014) (en banc); Gordon v. Barr, 965 F.3d 252 (4th Cir. 2020); United States v. McGrattan, 504 F.3d 608 (6th Cir. 2007)4 ; Mendieta-Robles v. Gonzales, 226 F. App’x 564 (6th Cir. 2007); Aguirre-Zuniga v. Garland, 37 F.4th 446 (7th Cir. 2022); Gonzalez v. Wilkinson, 990 F.3d 654 (8th Cir. 2021); United States v. Grisel, 488 F.3d

Realistic Probability Test has no role to play where the state or federal criminal text is clearly overbroad vis-à-vis the removable INA offense. Say whattttttt?

Restated, if a criminal statute’s text clearly covers conduct that the INA’s removable offense does not, the inquiry ends in the noncitizen’s favor. The noncitizen need not “find a case” to win. Sure, they can try if the statutory

INA § 237(a)(2)(B) for a conviction that violates “a law relating to a controlled substance.” The noncitizen need not “find a case” criminalizing possession of the new Minnesota drug; the crime’s statutory text alone resolves the dispute, and the LPR gets to keep their Green Card.3 This is how the vast majority of circuits apply the Realistic Probability

3 Again, avoiding the Modified Categorical Approach like the plague in this article.

844 (9th Cir. 2007) (en banc); CorderoGarcia v. Garland, 44 F.4th 1181 (9th Cir. 2022); U.S. v. Titties, 852 F.3d 1257 (10th Cir. 2017); Ramos v. U.S. Att’y Gen., 709 F.3d 1066 (11th Cir. 2013); Said v. U.S. Att’y Gen., 28 F.4th 1328 (11th Cir. 2022).5

4 Admittedly, things seem a bit unclear in the Sixth Circuit.

5 Some of these circuits actually hold that the Realistic Probability Test always applies but is automatically satisfied by a criminal statute’s overbroad text. Same result, slightly different logic.

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Staring down this overwhelming authority sits the Fifth Circuit and the Board of Immigration Appeals (“BIA”)—sometimes.6 The BIA, however, must apply the Categorical Approach and Realistic Probability Test in the manner applied by the circuit court in whose jurisdiction a case arises, meaning that in actuality, the Fifth Circuit stands alone. See Matter of Chairez-Castrejon, 26 I&N Dec. 819 (BIA 2016). And stand the Fifth Circuit does. See Alexis v. Barr, 960 F.3d 722, 729 (5th Cir. 2020), cert. denied, 141 S. Ct. 845 (2020).

The LPR in Alexis was convicted of possessing cocaine. The Fifth Circuit conceded that Texas’s definition of “cocaine” covers more types of chemicals than does the federal definition of cocaine. That concession would likely result in the LPR succeeding in the circuits listed above—and almost certainly in the Seventh, Eighth, and Eleventh based on recent precedent. The Fifth Circuit also recognized that under Texas’s practice of charging criminal defendants, Mr. Alexis had little chance of ever finding a case where Texas charged possession of the overbroad form of cocaine.7 Nevertheless, and even though DHS had the burden to establish removability, Mr. Alexis lost:

without an actual case establishing that Texas applies its cocaine possession statute in the special (nongeneric) manner for which he argues, Alexis has not shown a realistic probability that the statute criminalizes a broader range of conduct than the federal generic definition for cocaine.

Alexis, 960 F.3d at 729 (internal quotations omitted).

6 Respectfully, it would appear that the BIA’s decision in Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019) relies on a misunderstanding of Eleventh Circuit precedent, and should not be considered good law. See, e.g., Said, 28 F.4th at 1332–33.

7 After discussing Alexis on the Immigration Review Podcast®, a Texas public defender informed me that indeed, she had proof that Texas does convict those who possess non-generic versions of cocaine.

Case closed. Although, in fairness to the Alexis Court, no one seemed particularly happy about it. Judge Graves wrote the majority decision and then concurred with himself to explain that he disagreed with his decision but felt bound by prior precedent, while Judge Dennis dissented entirely. But for now, in the Fifth Circuit, if a noncitizen does not “find a case” and prove that there is a realistic probability that a state criminalizes conduct broader the federal definition of the removable offense, the noncitizen is almost sure to lose. Statutory text, be damned.

The Supreme Court will probably step in soon enough. The Court seems to take at least one Categorical Approachtype case each term, and the circuits are split. Where the Court eventually lands is anyone’s guess, but as this is my article, I will take a stab at reading the tea leaves based on the Court’s decision last term in United States v. Taylor. For, while the decision is a sentenceenhancement (non-immigration) case that applies a fairly direct Categorical Approach analysis to the crime of attempted Hobbs Act robbery, Justice Gorsuch and the seven-Justice majority conclude as follows:

we do not reach that question [from Duenas-Alvarez] because there is no overlap to begin with. Attempted Hobbs Act robbery does not require proof of any of the elements [the generic enhancement offense] demands. That ends the inquiry, and nothing in Duenas-Alvarez suggests otherwise.

Taylor, 142 S. Ct. at 2025.

Put another way, the Supreme Court seems to believe the Realistic Probability Test has no role to play where the statutory text is itself overbroad—a holding that aligns with the majority of circuit courts of appeals. Time will tell soon enough. Of course, if I am wrong, please blame John Khosravi, and the wonderful Immigration Lawyers Toolbox® Magazine.

About the Author

Kevin A. Gregg is the San Diego partner of the law firm Kurzban Kurzban Tetzeli and Pratt P.A. (KKTP). He is also the host of the weekly immigration case law podcast Immigration Review, available on the KKTP website and all podcast platforms.

Issue No. 6 | Fall Edition | 2022 21

Immigration Litigation 101 – Top-Down Versus Bottom-Up

bRian scott gReen, esq.

Every immigration attorney faces a denial by a federal agency at some point in their practice. For highvolume practitioners, this can be a too-common scenario. You and your legal team marshalled the evidence, prepared the forms, and checked all of the signatures. USCIS issued a Request for Evidence (“RFE”), or worse yet, a Notice of Intent to Deny (“NOID”) with a much shorter deadline. In its RFE or NOID, USCIS seems to ignore or misquote your evidence, in sparse comments interspersed into boilerplate language from the adjudicator’s template. There may even be references to people or details left over from a

different adjudication. Frustrated, you ponder how to tell your client the bad news and, more importantly, a plan of action to address the incorrect agency decision.

not All oPtions Are the sAme

When faced with a denial of a nondiscretionary benefit, we may have some or most of the following options:

• File a Form I-290B Notice of Appeal or Motion as a motion to reopen, motion to reconsider, or an appeal to the USCIS Administrative Appeals Office (“AAO”), or in the case of the

Immigration Lawyers Toolbox® Magazine 24
Brian Scott Green, Esq.

denial of an I-130 petition, the Board of Immigration Appeals (“BIA”);

• File a new petition or application with USCIS addressing the (perceived or real) deficiencies identified in the USCIS denial;

example, the Form I-290B process is typically the least expensive ($675 filing fee) but also the slowest (with many appeals and motions taking 6-12 months or longer). See www. USCIS recently

you created during the adjudication process. A disadvantage of the I-290B is that it generally must be filed within 30 calendar days (or 33 calendar days if the decision was mailed by USCIS) of the date of denial. This is an extraordinarily short amount of time to

• File a lawsuit challenging the denial under the Administrative Procedure Act (“APA”) based on incorrect review or weighing of the evidence, ignoring evidence, misunderstanding the evidence in the record, mistakes of law, etc.; or

• Do nothing—but make sure this is the client’s decision.

i-290b motions And APPeAls

Each of these options has unique advantages and disadvantages. For

processed appeals of denials of EB-1 I-140 petitions in 180 days or less in 35.29% of cases (for EB-1As), to 66.67% of cases (EB-1Bs), to 68.75% of cases (EB-1Cs). Reports of I-290B adjudications taking more than 12 months are common.

An advantage to a motion to reopen is the chance to supplement the record with new facts or evidence that the petition or application was approvable at the time it was filed. Other than this limited method to add to the evidence in the agency record, you (counsel and client) are bound by the record

review and prepare a legal challenge, compared to the next two options.

Filing A new Petition or APPlicAtion

Depending on the type of petition or application that was incorrectly denied, the cost of refiling may be minimal ($370 and an online filing for Form I-539) or extreme ($3,675 for Form I-526). Another consideration is whether the filing of a new application is possible considering the client’s nonimmigrant status in the U.S. (for I-539 extensions or changes of status,

Issue No. 6 | Fall Edition | 2022 25

some I-129 petitions seeking extensions of stay, and I-485 applications to adjust status). If maintaining nonimmigrant status is required for a new filing, the options may be limited to seeking approval from USCIS nunc pro tunc, or filing a lawsuit challenging the decision and asking the U.S. district court to enjoin USCIS from acting against the client while the status issue is litigated. An additional risk to the client is the chance of accumulating serial denials. If an employer quickly refiles another I-129 or I-140 petition with the same cover letter and same evidence in the same order, USCIS may quickly issue a NOID or denial and not give the new petition much thought. When filing a new petition with USCIS, counsel and clients are often hoping that the petition will be assigned to a different USCIS adjudicator than the one who issued the initial denial. While this may occur, the USCIS adjudicator will clearly have access to the case materials and denial from the initial petition.

A clear advantage for clients, and especially clients who can utilize

USCIS premium processing, is controlling when a subsequent petition is filed. Time may allow the collection of more and stronger evidence, such as pay records, updated articles of incorporation, federal and state tax filings, or proof of a bona fide marriage.

APA chAllenges in FederAl court

Federal court challenges enjoy a long shelf life (with a 5 or 6-year statute of limitations under the APA, which is an eternity in immigration practice and can span multiple presidential administrations) and review by an independent federal judiciary. While federal court lawsuits are usually not less expensive than the previous options, they do provide the outcome most preferred by clients: turning a denial into an approval in the agency records.

When faced with an APA challenge to a USCIS denial, attorneys at the U.S. Department of Justice (“DOJ”) may litigate the case by producing a certified administrative record (which takes

USCIS time and effort in redacting information) and engaging in motions practice (motions to dismiss and crossmotions for summary judgment). Motions to dismiss are quick and relatively easy for Assistant U.S. Attorneys or DOJ Office of Immigration Litigation (“OIL”) Trial Attorneys to prepare and file, but motions for summary judgment in the context of APA challenges to denials are often fact-specific and very time-consuming. It would not be an overestimate to tell a client that cross-motions for summary judgment could take between 30 and 40 hours of attorney time (at quite a cost in legal fees). Time is a limited commodity for both the private bar and DOJ attorneys, so settlements in the form of service motions to reopen with the issuance of RFEs, NOIDs, improved or even redundant denials, or approvals, do occur.

Attorneys who quote flat fees need to take note of the realistic time required to properly brief and argue these cases before U.S. district court and U.S. magistrate judges. Offering

Issue No. 6 | Fall Edition | 2022 27

flat fees with hourly limits, resulting hourly rates, and related benchmarks, can give clients more insight into how much litigation may cost, while offering attorneys protection against overcommitting and undercharging for their legal services.

toP-down versus bottom-uP

The literal pathway that these challenges take can help us decide how we want to approach an agency denial. I-290B motions may be first considered at the USCIS Service Center where a petition or application was denied. It is presumed that this first review would be done by a USCIS adjudicator or USCIS supervisor, who has the power to forward the motion on to the AAO. This would be considered a “bottom-up” approach where the first person to consider the motion may be the same adjudicator who issued the denial. When an APA lawsuit is filed with a U.S. district court, USCIS will be represented by an attorney from the DOJ, specifically from a local U.S. Attorney’s Office or from DOJ OIL in Washington, DC. This attorney will contact an in-house employee at USCIS, likely at the USCIS Service Center or Field Office that issued the denial. That USCIS employee will contact a USCIS manager or supervisor, who will likely consult with the USCIS adjudicator, in this example of “top-down” review. Which approach is best may depend on the facts of your denied case, the nature of the immigration benefit sought, and possibly the sensitivities of sponsors or employers.

PrActice Pointer

It is a best practice to present all of these options to your client, whether they are an employer-petitioner, employee-beneficiary, family-sponsor, or relative-beneficiary. Sending your client(s) an email or letter detailing each option with costs and deadlines is an important protection for both their rights and your legal

practice. Memorializing telephone conversations in a follow-up email also may help document your case file and any decision to challenge or move on from a denied case. With permission, recording online meetings may also be an option for memorialization.

About the Author

Brian S. Green is a solo practitioner in Denver, who focuses on bringing federal court challenges to immigration and visa denials and delays, nationwide. Brian has practiced complex litigation and trial work since 2001, and U.S. immigration law full-time since 2007.

Brian is admitted to practice before thirty (30) U.S. district courts. He “cut

his teeth” as a judicial law clerk, public defender, and then as outside trial counsel for GE and General Motors (with now Senior U.S. District Judge Nora Barry Fischer). Brian has been active with AILA at the national and chapter levels, frequently writing and speaking on federal litigation topics. He is also active with the Minoru Yasui American Inn of Court and the Faculty of Federal Advocates, both in Denver. Brian is a graduate of Washington & Jefferson College and Case Western Reserve University School of Law, where he studied trial tactics under the late Professor Emeritus Jim McElhaney.

Immigration Lawyers Toolbox® Magazine 28

Special Immigrant Juvenile Status

Special Immigrant Juvenile Status (SIJS) is a great option for many young immigrants. It has a broad waiver of common inadmissibility grounds, a high probability of success in favorable jurisdictions, and is more rapid than many other immigration paths in most cases. Jurisdictional considerations make it unique in immigration law, and it presents several novel issues to practitioners who spend the majority of their time in federal practice.

cAse study

K is a college student who was referred to my office by her former high school teacher one month before her 21st birthday. K has an expired B-1/B-2 visa and has been in the U.S. since her 4th birthday. She and her mother had spoken with multiple immigration attorneys about their options but had never heard of SIJS. As she approaches graduation and begins to think about her future employment, her lack of status has grown untenable for her. She voiced her frustration to her teacher, who knew of our law firm.

After a consultation, she and her mother both had misgivings due to the fact that no other immigration attorney had told them about SIJS. Our firm

assured them that the county where K lives offers speedy hearings for SIJS petitions. We filed the state court petition, rapidly obtained service on K’s father, and were granted a hearing in 7 days. We then filed the state court order and Form I-360 10 days before the client turned 21. We were able to file the I-485 concurrently, and K will be a legal permanent resident before

Immigration Lawyers Toolbox® Magazine 30

she graduates college!

whAt is siJs?

According to the INA, an SIJS candidate is

“an immigrant who is present in the United States who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.”

INA 101(a)(27)(J)

Accordingly, SIJS candidates are people who are under the age of 21, do not live with both parents, live with one parent or an appropriate guardian, and are victims of abuse, abandonment, or neglect. The definitions of abuse, abandonment, or neglect for the purposes of SIJS are determined by the

state where the juvenile is located.

SIJS provides applicants with a route to legal permanent residence. SIJS applicants from Mexico, El Salvador, Guatemala, and Honduras must wait for a priority date to become current to adjust status.

the siJs APPlicAtion Process

The basic steps in the SIJS process are as follows:

1. State court guardianship or custody petition;

2. State court service on parent(s);

3. State court hearing;

4. Concurrent I-360, I-485 and associated petitions (Rest of World); 4a. I-360 (northern triangle countries and Mexico);

5. Deferred action receipt from USCIS;

6. I-765;

7. Priority date becomes current;

8. I-485 and associated petitions.

A stAte-FederAl hybrid

SIJS is unique in the immigration world in that a large bulk of the work

is performed in state court. SIJS cases begin with a petition to the state court where the juvenile is located. This requires a practitioner to be admitted to the bar in the state where the petition is filed.

Practitioners who practice only federally should familiarize themselves with the significant legal and procedural differences found at the state and county level. Many of these differences come into play in SIJS cases. Practitioners will need to become acquainted with state-specific case law related to SIJS. A firm understanding of state law and procedure in family law is required. Individual judge’s familiarity with SIJS cases varies greatly, and practitioners have reported difficulties in obtaining the order with judges who struggle with understanding their role in the immigration process. Additionally, judges often have different interpretations of service requirements that may vary from county to county.

The variability of case law between the states impacts the viability of cases in a number of ways. The clearest

Issue No. 6 | Fall Edition | 2022 31

example of this involves the age of the applicant. Some states allow SIJS applicants up to their 21st birthday, while others will not consider a petition after the applicant turns 18 or 19. State law defining abuse, abandonment, or neglect varies tremendously, as well. Under Maryland law, child labor as a form of abuse or neglect is defined broadly. Abandonment is also broadly construed. Other states limit the number of situations that can be used to justify this prong of the petition.

Notably, most SIJS cases are never opposed. This means that practitioners have no opposing party in court. This makes for a much easier experience than the typical family law case in which counsel is either litigating against another attorney or an antagonistic prose party. Interactions with the court are often made simpler due to this dynamic.

Obtaining a properly worded state court petition is critical to obtaining approval from USCIS. The best practice is to give the court an order containing

language that USCIS favors. Some judges prefer to use their own orders, and practitioners may need to ask the court to amend their order if the court uses language that may result in a denial.

the broAd wAiver

SIJS applicants are not subject to many of the inadmissibility grounds that are prominent in other forms of immigration relief. Unlawful presence and misrepresentation, for example, do not apply to SIJS adjustment applicants. The exceptionally broad waivers make adjustment through SIJS an option for many applicants who would otherwise be unable to obtain status.

timing And deFerred Action

SIJS offers speedy adjustment for applicants that are not from the northern triangle of Central America or Mexico. For applicants from any other country, applicants can file for adjustment concurrently with the

filing of their I-360. The I-360 is the petition for Special Immigrant Status. Applicants from the northern triangle and Mexico must file the I-360 and then wait for their priority date to become current in the Visa Bulletin. For northern triangle applicants this wait can stretch up to five years and is one of the few downsides to SIJS. In March 2022, USCIS issued a policy change granting deferred action to all current SIJS applicants from Mexico, El Salvador, Guatemala, and Honduras. After receiving deferred action, these applicants may apply for a work permit. And, on an even more surprising and positive note, since implementing this policy change, USCIS has been approving these I-765’s in a speedy fashion.

siJs And immigrAtion court

Many SIJS applicants have pending immigration proceedings. Representing applicants in state court and immigration court concurrently is the preferred method. Some immigration attorneys

Immigration Lawyers Toolbox® Magazine 32

work with a family law attorney to represent the applicant in state court. Most immigration judges are familiar with SIJS cases and will grant multiple continuances to afford the applicant a chance to obtain a state court order and file their I-360. Practitioners should move quickly on the state court petition side of the case. Immigration judges prefer to hear that state court petitions have already been filed promptly after the attorney is retained and the best case scenario involves appearing with an approved I-360 at the first master calendar hearing. Admin closure and dismissal are possible outcomes after the applicant receives an approved I-360.

siJs For APPlicAnts who Are not in immigrAtion court

SIJS cases that are not in immigration court proceed solely through USCIS. Sadly, many young immigrants who are not in immigration court never hear about the SIJS process before their 18th or 21st birthday. Without the pressure of an impending court date, many would-be applicants are not pushed into an exploration of their legal rights. Some DACA applicants are also eligible for SIJS. SIJS has stronger benefits than DACA for most applicants but some practitioners do not screen for it. Adding SIJS screening to the practice of attorneys who deal with clients that may qualify can help young immigrants obtain a green

card that would otherwise never avail themselves of the benefit.

siJs vs. Asylum

Often clients present to my office seeking asylum who ultimately choose to pursue SIJS. It is common to see applicants who have strong asylum and SIJS cases. In jurisdictions where state court petitions can be obtained with confidence, SIJS offers a higher probability of success than an individual hearing on asylum in front of an immigration judge. SIJS is often more affordable for clients than an asylum petition. Finally, SIJS recipients can return to their country of origin after they have obtained their green card, which is unavailable to those who receive asylum.

other considerAtions

SIJS cases present a few additional challenges and drawbacks that merit discussion. One drawback of SIJS that practitioners should always advise applicants about is that they can never apply for any immigration benefits for their parents, as it is specifically barred in the INA.

State law service requirements often present the greatest challenge in SIJS cases. Obtaining service on an uncooperative parent who lives abroad (or whose location is unknown) can significantly complicate

a case. Evaluating and proving the appropriateness of guardians can also present difficulties. The guardian/ applicant relationship is often fragile, and practitioners may find themselves playing the role of a family mediator. Identifying these issues in the initial consultation will help practitioners understand the complexity of the case and plan accordingly so as to give the case the highest chance of success.

resources volume-7-part-f-chapter-7#footnote-28

In re: Dany G., 117 A.3d 650 (2015), 223 Md. App. 707

About the Author

Jared Jaskot is a Baltimore-based immigration attorney. His firm, Jaskot Law has completed over 300 SIJS cases and thanks in large part to the amazing work of his partner, Eva Cockerham, has never lost an SIJS case. You can see Jared’s work on SIJS education on Tiktok where his SIJS videos garner millions of views. Jared is trying to bring machine learning into immigration law through his legal technology project, YoTengoBot.

Issue No. 6 | Fall Edition | 2022 33

How to Improve Your Systems: Document Collection

What is the biggest pain point in your practice? Mine was collecting client documents in an organized manner. The government agencies that we work with require a lot of documents, and collecting everything is one of the hardest things for us and our clients to deal with!

Here was my old system—many lawyers still do it this way, so don’t feel bad if this is you! I had paper checklists that I gave to my clients.

When they came to my office to bring me documents, I would check them off the list. If they emailed me documents randomly, keeping track would often get confusing.

1. These were the problems I would encounter with this paper checklist process. The client would not keep track of their checklist, or they would misplace it. This meant I had to issue them another updated checklist with what they had already brought me.

2. My office might forget to use the checklist when clients had dropped off documents or emailed them.

3. There was not a proper date tracking system on the checklist, so it was hard to backtrack when the client insisted

they gave us something months later, but we didn’t have it!

4. When the client called us to ask, “Why is my case not filed yet?” we would have to check various references to give them an answer, and it always felt like it was our fault for not having a document they claimed to have given us.

When clients sent documents via email, it was not the safest method of transmitting sensitive information like tax returns and documents with their social security numbers. I once had a client who worked in IT get upset that I was asking him to email me his taxes!

It was so stressful to keep on top of document collection with this paper method. And emailing documents was no better because this often got confusing, and I would search my Gmail for any emails sent to me by a client to find a document they insisted on sending me, which I did not have!

This drove me crazy for years—I needed a method to track and prove exactly when and what a client sent me. A method that everyone on my team could check at any given time. A method that was accurate in real time!

Immigration Lawyers Toolbox® Magazine 38

I tried several different client portal systems, but it wasn’t until I discovered that I finally realized I found my dream app. Not to say there aren’t other systems that can do this for you, as long as you are happy with how your system works, keep using it. But for me, Pipefile was, and still is, an

I am rejecting it by writing a note for that document which gets automatically sent to the client, so they understand what they need to provide.

folders using my Pipefile template headers that get added to whatever document storage system I use (I use

excellent document collection tool, and here are 10 reasons why:

1. I can send a case-specific checklist to my client’s email and/or mobile phone in seconds. I created templates for every case type I use, in English and in Spanish, click here to purchase my Pipefile Templates: https://tiplawyers. com/shop/ols/categories/templates

2. I can click on the “reject” button for a document uploaded by a client. E.g. if the document is not what I asked for or if the document is not in the correct format. (You can even set a rule in Pipefile to only accept certain types of documents, such as PDFs if you do not want jpegs or png files.)

3. I can explain to the client why

4. I can click the “accept” button after I preview the document on Pipefile, so the client knows what they sent me is acceptable.

5. My entire team knows what is received (and what is outstanding) at any given time. No more panicking and searching for emails or paper files to figure out what the client gave us!

6. Pipefile reminds my client every 3 days that they still have documents to provide (you can change the day interval to whatever you want).

7. The client’s Pipefile request expires whenever you want—I set my default to 30 days, then if we go beyond that, I can extend the time if needed.

8. I can download all the documents at once as a zip file after everything is in. The files are nicely organized into

9. Even if clients cannot use it, (or maybe it’s a repeat client and we already have some of their documents), we still use it for each case! It helps us to stay organized—if a client brings documents to the office, we scan them and then upload to Pipefile ourselves. Then if the client or we add more documents later, it’s easy to know what is still needed. If we have a client’s documents from a prior case, we will upload them to their Pipefile case request, so all they have to do is supplement with the rest of what may be needed.

10. Best of all—when the client calls you and asks, “Why is my case not filed yet?” we can click on their Pipefile request and remind them they are getting repeated emails or texts because they have not completed uploading their documents! No more excuses— we all know what was provided and when.

If you are interested in Pipefile, be sure to use my affiliate link to sign up and use the code TIPLAW to get 30% off your first year of Pipefile! Click here: w37E9Z7n

About the Author

After spending years perfecting the systems within her own U.S. immigration law practice, Nadine built a network of like-minded immigration practitioners who share tips and tricks to make things in the office run smoother, faster, and easier. Check out https:// for more information and join the Technology for Immigration Practitioners (TIP) Facebook Group at groups/191457918187525

Issue No. 6 | Fall Edition | 2022 39

Understanding INTERPOL Red Notices: A Basic Guide for Immigration Lawyers

sanDRa gRossMan, esq.

Have you ever appeared before an immigration judge, been at a USCIS naturalization or adjustment interview, or at an asylum office only be hit by the unpleasant “surprise” that your client is the target of an INTERPOL Red Notice or diffusion?

For many U.S. immigration attorneys, confronting this unknown fact at the spur of the moment, and often in already stressful circumstances, is an extremely difficult proposition. Despite the best intentions, many immigration attorneys, are unaware of how-to best advocate for clients who say they are the illegitimate targets of spurious Red Notices. Gaining a basic knowledge of how INTERPOL works, the resources available for advocates, and familiarizing yourself with the evolving body of INTERPOL related case law, is a worthwhile endeavor for ensuring that you can protect your client’s rights.

Despite assertions to the contrary, the infamous “Red Notice,” is not an international arrest warrant, does not prove guilt, and often is not based on evidence. Red Notices are the result of an administrative procedure, not a judicial process. Despite this reality, stated explicitly on INTERPOL’s own website, DHS

officials utilize Red Notices and other INTERPOL publications to arrest and detain foreign nationals in the United States, often denying them the right to seek protection from pretextual criminal allegations. Understanding the background of INTERPOL and its notices, as well as the potential U.S. immigration consequences, will provide attorneys key tools to advocate successfully for their clients before the various U.S. immigration agencies.

whAt is interPol?

Contrary to Hollywood portrayals, INTERPOL is not an international law enforcement agency. INTERPOL is an international organization aimed at advancing international police cooperation. It is based on the sovereignty of its 195-member nations and thus respects their independent and separate judicial and law enforcement systems. Its primary purpose is to maintain a database of nation-provided information by facilitating a messaging system between the law enforcement agencies of different member countries and by publishing notices – including the Red Notice.

All INTERPOL activity and notices must respect INTERPOL’s Constitution and Rules on the Processing of Data

Immigration Lawyers Toolbox® Magazine 42 Sandra Grossman, Esq.

(RPD). The purpose of these rules is to ensure INTERPOL, and any global police cooperation, is only used against “ordinary-law crime.” The most cited articles of INTERPOL’s Constitution are its Article 2 –requiring that international police cooperation be conducted in the “spirit of the Declaration of Human Rights” – and its Article 3, also known as the “neutrality clause” – strictly forbidding INTERPOL from undertaking “any intervention or activities of a political, military, religious, or racial character.” While INTERPOL cannot stop its member nations from creating such notices, it is responsible for filtering out those notices as prescribed by its own Constitution. Nevertheless, due to a general presumption within INTERPOL’s own Rules, that requests submitted by Member States are accurate, due to lack of resources, and what some would argue lack of political will and the undue influence by autocratic nations, INTERPOL falls short of properly vetting requests for police cooperation.

whAt is A red notice?

INTERPOL’s primary value is in its

structured communication system. The system transmits three kinds of messages:

1. Simple messages between member nations, analogous to everyday email. INTERPOL headquarters are not necessarily copied to them.

2. Diffusions – more structured emails between members nations, which can include information identifying an individual as a suspect and requesting their arrest. INTERPOL headquarters is automatically copied.

3. Colored notices, including the Red Notice, are all subject to INTERPOL review.

a. Yellow notice – Regarding a missing person.

b. Blue notice – Seeking additional information about a person concerning a crime.

c. Green notice – Provides warnings about persons who have committed criminal offenses likely to be repeated in other countries.

d. Red Notice – By far the most used. Seeks “the location and arrest of wanted persons with a view to extradition or similar lawful action.” These are visible to law enforcement agencies, such as DHS.

Individuals who are the subject of Red Notices are often unaware of the notice until they are confronted by U.S. law enforcement, for example, when crossing the border or appearing before USCIS. While Red Notices are often described as “international arrest warrants,” this is not true. Instead, a Red Notice is “simply to inform all member countries that the person is wanted based on an arrest warrant or equivalent judicial decision issued by a country or an international tribunal.” Member nations requesting the publication of a Red Notice must identify the individual sought, provide judicial data on the case facts, the charge, the laws covering the offense, and the maximum penalty possible, and refer to a valid arrest warrant or comparable judicial decision. While the requesting member nation is asked to provide a copy of the arrest warrant or judicial decision, it is not a requirement.

As noted, INTERPOL reviews Red Notice requests with the belief that all its member nations’ demands have equal validity. INTERPOL’s review of Red Notices before publication involves ensuring the request meets

Issue No. 6 | Fall Edition | 2022 43

the administrative conditions outlined above, but many requests receive only limited scrutiny. Furthermore, INTERPOL does not conduct onthe-ground investigations, which significantly limits its capacity for analysis. It is here that an immigration attorney well-versed in INTERPOL defense strategies comes into play.

chAllenging A red notice beFore dhs/eoir And directly beFore interPol

An attorney handling a case with

a subject because it does not meet the requirements for arrest under the 4th Amendment to the Constitution…” An INTERPOL Red Notice alone does not satisfy the probable cause requirement and, without additional context or weighty evidence, should not act to deny an immigration benefit to a foreign national. Further, an evolving body of U.S. case law recognizes that a Red Notice alone does not satisfy the Government’s burden in applying the serious nonpolitical crime bar in asylum cases.

Many U.S. state and local law enforcement agencies have “read access” to databases maintained by INTERPOL. Unfortunately, experience shows that DHS itself does not fully comprehend the meaning and limits of a Red Notice. Immigration and Customs Enforcement (ICE) has been known to use Red Notices to immediately categorize an individual as a danger to the community and a flight risk. The fact that ICE has stated that it uses Red Notices to guide its targeting implies that individuals who are seeking asylum are particularly likely to be selected for arrest should they be named in a Red Notice.

When the subject of a Red Notice is located in the U.S., the only legal way to arrest the individual is by obtaining an arrest warrant issued by a U.S. Attorney’s Office. To appropriately act, the criminal division of the U.S. Attorney’s office must determine whether a valid extradition treaty exists between the U.S. and the country issuing the notice for the specified crime. If the subject may be extradited and the U.S. receives a diplomatic request for provisional arrest, then the U.S. Attorney’s office reviews the facts and decides whether to file a complaint and issue a warrant for extradition.

INTERPOL elements should be aware of the issues surrounding INTERPOL abuse and the nation’s reputation that requested the Red Notice’s publication, as well as relevant case law. Each member nation must establish a National Central Bureau (NCB) to liaise with INTERPOL. In the United States, the NCB is co-managed by DHS and the Department of Justice (DOJ). Attorneys should be prepared to explain to an immigration judge or an adjudicator that Red Notices are not reliable or conclusive evidence of criminal activity. In fact, the legal position of the National Central Bureau (NCB), states, “The United States does not consider a Red Notice alone to be a sufficient basis for the arrest of

A Red Notice is also not necessarily a final adjudication and can also be challenged directly through the Commission for the Control of INTEPROL’s Files (CCF). The process is similar to presenting an asylum case, but it is rooted in international human rights law and INTERPOL’s foundational documents. While recent reforms have improved the CCF’s speed of operation, it will typically take between nine months and one year for the CCF to decide to delete a Red Notice. In some cases, Immigration Judges can be convinced to hold decisions in abeyance or continue hearings for “good cause” until the CCF has reached a decision.

whAt is interPol Abuse?

Authoritarian regimes are encouraged to use Red Notices to harass dissidents, exiles, or other politically or financially inconvenient opponents abroad. Obtaining a Red Notice is straightforward and often has substantial direct and indirect effects on the individual named in it.

“INTERPOL abuse” occurs when INTERPOL’s channels or publications are used by an INTERPOL member nation for predominantly political, military, racial, or religious reasons. Governments, international organizations, nongovernmental organizations, and experts have

Immigration Lawyers Toolbox® Magazine 44

attested to the reality of INTERPOL abuse. Immigration attorneys also witness firsthand the damage that a Red Notice can do to an innocent client who is processing a visa, a green card, a naturalization case, or an asylum case, among other applications for immigration benefits.

Turkey is believed to be the country to have most abused the Red Notice system. Russia is second, followed by China, Kazakhstan, Tajikistan, and Uzbekistan. Fair Trials International has also investigated Belarus, Venezuela, Sri Lanka, and Indonesia for misuse of INTERPOL.

cAse studies

1. A U.S. government-credentialed Turkish journalist who held lawful permanent residence in the United States sought our services to obtain his U.S. citizenship. He then learned of a Red Notice issued against him by the Turkish government related to his criticisms of the government while working for an independent newspaper. As acknowledged by multiple international human rights organizations, the Red Notices against him and others similarly situated were part of a large-scale, politicallymotivated crackdown on dissent by the Turkish regime. Despite more than a year of communications with the CCF, and even though the prosecutor’s office of the Turkish appeals court itself declared that most of the trial’s defendants should be acquitted, INTERPOL did not immediately remove the Red Notice lodged against this individual. In the meantime, he could not travel internationally and could not pursue U.S. citizenship. Notably, the Red Notice also acted as a virtual gag order, as the journalist decided to limit his criticisms of the Turkish regime.

2. In another case involving an individual accused of tax fraud by the Russian Federation, the client

filed for asylum in the United States shortly after discovering that he was the subject of a Red Notice. DHS detained the individual at his asylum interview, and he spent four months in jail before being released on bond. The results of a request under the Freedom of Information Act (FOIA) filed with ICE later revealed that ICE had immediately categorized the individual as a danger to the community and a flight risk based on nothing more than the Red Notice. An immigration judge eventually released him on a very high $100,000 bond. Due to our efforts before CCF, the Red Notice was deleted, but only after the client and his family had suffered most of the Red Notice’s worse effects. Years after his initial ICE arrest, he still fought deportation in immigration court.

3. In another case, a U.S. citizen filed an immigrant visa petition for her father, a citizen of Armenia. Unbeknownst to him, he was the subject of a Red Notice that arose from a private business dispute with corrupt Armenian officials. ICE detained the client due to the Red Notice. The immigration judge denied a request to lower the extremely high bond amount, despite the fact that the respondent appeared eligible for permanent residency and asylum and had extensive family ties in the U.S. The sole stated reason for refusing to lower the bond amount was the existence of an INTERPOL Red Notice. In fact, a Red Notice actually decreases flight risk and makes travel

more difficult. Nevertheless, DHS officials and immigration judges alike consistently miss this point.

Despite explicit regulations in INTERPOL’s own Constitution and the legal position of the USNCB, DHS and many U.S. immigration judges lack a fundamental understanding of what a Red Notice actually means. They are often accepted as conclusive proof of criminality, leading to egregious violations of due process rights and countless arbitrary detentions. Even when a Red Notice is successfully challenged and deleted, the impacts on a person’s life are already tremendous. Immigration attorneys do well with their clients when they learn the basics about INTERPOL’s functioning and help to educate DHS and immigration judges about the realities of INTERPOL abuse through their advocacy.

About the Author

Sandra Grossman is one of the founders of Grossman Young & Hammond, LLC, a full-service immigration law firm in Maryland. She is a skilled immigration litigator with over a decade of experience in all matters related to the practice of immigration law. Sandra has developed a unique practice that addresses complex inadmissibility issues, often involving matters before INTERPOL, politically sensitive matters, and diplomatic issues with foreign policy implications.

Issue No. 6 | Fall Edition | 2022 45

Ron Matten, Esq.

Figueiredo Santos, Esq.

O-1B Agent Petitioners and Employers

One of the advantages of the O-1B visa classification is that it permits a wide range of employment arrangements. This flexibility is helpful for musicians, actors, as well as other performers and creatives who do not typically enter into a “9 to 5” arrangement with a single employer.

Unlike the conventional agent you hear about in entertainment news, in the immigration context, “agent” is a term of art which is very different from the “agents” who are frequently thanked by celebrities at the Oscars and Grammy Awards shows.

In the immigration context, there are three different types of “agents” per 8 CFR 214.2(o)(2)(iv)(E):

1. The actual employer of the beneficiary;

2. The representative of both the employer and the beneficiary in a situation where there are multiple employers;

3. A person or entity authorized by foreign employer(s) to act in place of the employer(s) as its agent.

A U.S. agent may serve in these various scenarios. It is important to include specific evidence depending on the scenario, as follows:

1. The actual employer of the beneficiary. In the case where an agent is the actual employer, USCIS will expect:

• Written contracts (or if a written contract does not exist, a summary of the terms of the oral agreement) between the agent-employer and the beneficiary. The contract must:

o Specify the wage offered and other terms of employment; and,

o Details any additional services provided; and,

• An itinerary of definite employment and information on any other services planned for the intended employment dates.

2. The representative of both the employer and the beneficiary where there are multiple employers. In this scenario, USCIS will expect:

• Contracts between the beneficiary and the employers explaining the terms and conditions of employment;

• Evidence that the agent is authorized to act as an agent on behalf of the beneficiary and all of the employers. That can be addressed by simply including a clause in the contract between the employer and the beneficiary stating that both of them

Immigration Lawyers Toolbox® Magazine 48 Ron Matten, esq. aRtHuR DeucHeR FigueiReDo santos, esq. Arthur Deucher

agree that the agent is authorized to act as an agent for the limited purpose of filing the petition with USCIS; and,

• A complete itinerary of services or engagements that:

o Specifies the dates of each service or engagement;

o Provides the names and addresses of the entities with whom the beneficiary will be employed; and,

o Provides the names and addresses of the establishments, venues, or locations where the services will be performed.

3. A person or entity authorized by foreign employer(s) to act in place of

of the oral agreement under which the beneficiary will be employed if a written contract does not exist; and • An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itineraries for the events or activities.

These arrangements are also accommodating of the unpredictability of the entertainment business. As per 8 CFR 214.2(o)(2)(iv)(D), the regulations allow the beneficiary to add “additional performances or engagements,” during the validity period of the petition without filing an amended petition,

the O and P Visa Classifications,” USCIS acknowledged that the regulations do not specify the evidence for establishing that a petitioner is “in business as an agent.”

In fact, the petitioner does not have to demonstrate that it normally serves as an agent outside the context of this petition. An individual person or company can serve as an agent so long as they provide the relevant evidence mentioned above.

the employer(s) as its agent. In this scenario, USCIS will expect:

• Evidence that the agent is authorized by the foreign employer to file the petition;

• Evidence that the agent is authorized to accept service of process in the United States on behalf of the foreign employer;

• Copies of any written contracts between the foreign employer and the beneficiary, or a summary of the terms

provided the additional performances or engagements require an alien of O-1 caliber.

who cAn be An Agent? whAt AdditionAl evidence is required?

There is no requirement that a petitioner agent be in the business of representing talent in the conventional sense. In the November 20, 2009, memo on “Requirements for Agents and Sponsors Filing as Petitioner for

USCIS has begun to scrutinize issues that are outside the immigration regulations, especially focusing on whether the agent is properly authorized to transact business. Therefore, you should be prepared to provide:

• SS-4 EIN Letter from IRS. All employers should have a proper Federal Employer ID Number (“EIN”). In one of the scenarios where the agent is acting as an employer, then the agent must have an EIN, even if the agent is a sole proprietor;

• A valid business license. The agent and/or employers should ensure that

Issue No. 6 | Fall Edition | 2022 49

they are complying with local rules regarding business licensure;

• Registration with the Secretary of State:

o Note that not all entity forms are required to register with the Secretary of State. For example, in California sole proprietors and general partnerships are not required to register. You may want to mention this in the initial submission to prevent an RFE;

o Even if the entity is registered, you should ensure that a public search shows that the entity is “active” and/or in “good standing.”

If the entity shows as “dissolved” or some other status such as “terminated” or “canceled,” USCIS will assume that the agent or employer is no longer a valid business entity for purposes of the O-1B petition.

So long as the petition is properly organized and documented, you should be able to successfully obtain an O-1B for your client in any of the above scenarios. The flexibility of the agentpetitioner is a tremendous benefit to your creative clients.

In 2018, Ron founded Matten Law with the aim of leveraging technology to provide the best client experience for both the corporate client and the individual beneficiary. Since then, he has expanded his practice to also serve startup companies and entertainers.

Ron Matten is the Managing Partner at Matten Law and has over 25 years of total experience as both an engineer and a lawyer. Ron gained several years of experience with a large engineering company before shifting to law in 2004, when he began leading teams at large law firms serving high-volume immigration programs for corporations.

Arthur Deucher Figueiredo is the Partner & Practice Leader – Media, Entertainment & Technology at Matten Law. He is licensed to practice law in California and in Brazil and represents artists, musicians, creatives, startups, and production companies. Arthur received his LL.B. and a Master’s degree in Constitutional Law from PUC-SP (Brazil) and has an LL.M. in Media, Entertainment, and Technology Law and Policy from UCLA School of Law.

Immigration Lawyers Toolbox® Magazine 50 Author the Authors

Review of 2022 Year-To-Date O-1 Visa AAO Decisions

JoHn q. KHosRavi, esq.

There are several things you can do to be on top of the latest trends in immigration law. You should always be talking with colleagues and be involved in various listservs, conferences, and online groups. But there is no substitute for reading and reviewing the Administrative Appeals Office decisions.

o-1 Petitions

Primer on O-1 Specific Requirements: In Re: 21180145 (VSC, Aug 15, 2022)

The Petitioner sought to classify the Beneficiary as a writer, academic, curator, and poet, but was denied on the following four grounds:

(1) the Petitioner did not provide a sufficient contract;

(2) the Petitioner did not demonstrate the Beneficiary’s events or activities;

(3) the Petitioner did not satisfy the advisory opinion requirement; and (4) the Petitioner did not show that the Beneficiary received a major, internationally recognized award, or at least three of eight possible forms of documentation.

The regulation at 8 C.F.R. § 214.2(o) (2)(ii)(B) requires any written contracts between the petitioner and the beneficiary or, if there are not any,

a summary of the terms of the oral agreement.

In addition, the regulation at 8 C.F.R. § 214.2(o)(2)(ii)(C) requires an explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities.

Furthermore, section 214(c)(6)(A) (i) of the Act requires the petitioner to submit an advisory opinion from a peer group or a labor organization. See also 8 C.F.R. § 214.2(o)(2)(ii)(D) and 214.2(o)(5). If the petitioner establishes that an appropriate peer group or labor organization does not exist, then a petition may be adjudicated without the advisory opinion. See Section 214(c)(6)(C) of the Act and 8 C.F.R. § 214.2(o)(5)(i)(G).

PlAying v. coAching – in re: 21841549 (csc, Aug. 30, 2022)

Petition for a 16 & under 18 assistant coach. The Petitioner claimed that the Beneficiary’s receipt of a silver medal at the World Junior Challenge qualified as a major, internationally recognized award. However, the record indicated that the Beneficiary participated as a player rather than as a coach. While a

Immigration Lawyers Toolbox® Magazine 52

player and a coach share knowledge of the sport, the two rely on very different sets of basic skills. Thus, a coach and a player are not the same area of expertise. This interpretation has been upheld in federal court. In Cf, Lee v. Ziglar, 237 F. Supp. 2d 914 (N.D. Ill. 2002), the court stated:

It is reasonable to interpret continuing to work in one’s “area of extraordinary ability” as working in the same profession in which one has extraordinary ability, not necessarily in any profession in that field. For example, Lee’s extraordinary ability as a baseball player does not imply that he also has extraordinary ability in all positions or professions in the baseball industry such as a manager, umpire or coach. Id. at 918. The court noted a consistent history in this area; see also Cf, Mussarova v. Garland, 562 F. Supp. 3d 837 (C.D. Ca. 2022) (determining that the plaintiff’s awards as a water polo player were not awarded as a water polo coach); Cf, Integrity Gymnastics

& Pure Power Cheerleading, LLC v. USCIS, 131 F. Supp 3d 721 (S.D. Oh. 2015) (concluding that the AAO’s reasoning, relevant statutory and regulatory language, and case law was not arbitrary, capricious, or otherwise not in accordance with the law in finding that an Olympic gold medal gymnast must meet the extraordinary ability classification through her achievements as a coach, her intended area of expertise).

ProPerly Arguing evidence – in re: 20970187 (csc, June 22, 2022)

The Petitioner, a boutique pastry shop, seeks to classify the Beneficiary as an executive head pastry chef. The Petitioner also submitted an unsigned job offer letter to the Beneficiary reflecting that “[w]e will be offering you an annual gross salary of $45,000.00.”

In response to the Director’s RFE, the Petitioner presented an updated and unsigned job offer letter claiming that the Beneficiary’s “[a]nnual base salary

of $45,000 per year” “will increase up to $57,000.00 per year according to performance.” In addition, the job offer letter asserts that the Beneficiary will receive other compensation for expenses, such as relocation, housing, and meals, which “equals to a minimum annual income of $64,580.”

The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the time of filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). Thus, we will only consider the Petitioner’s salary claims at initial filing. The Petitioner did not show that its unsigned job offer letter to the Beneficiary constitutes “other reliable evidence.”

Notwithstanding the above, in response to the Director’s RFE, the Petitioner submitted annual mean wage data for “Chefs and Head Cooks” from bis. gov and salary data for pastry chefs in Wyoming from

Issue No. 6 | Fall Edition | 2022 53

However, the Petitioner does not seek to employ the Beneficiary as a chef, head cook, or pastry chef. Instead, the record reflects that the Petitioner intends to employ the Beneficiary as an “Executive Head Pastry Chef.” Thus, consistent with this regulatory criterion, the Petitioner must demonstrate that the Beneficiary will command a high salary in relation to other executive head pastry chefs. The record does contain screenshots from showing that executive pastry chefs in Similar workers earn a median wage of $44,000 per year, with the 90th percentile earning $59,000. Furthermore, a screenshot from indicates that head pastry chefs in Wyoming receive annual average salaries of $45,430 with the top earners receiving $96,705. Based on the evidence provided by the Petitioner, the Beneficiary will earn the average salary compared to other executive head pastry chefs in Wyoming, with the high earners receiving substantially higher salaries than the Beneficiary.

FAke Petitioners won’t work - in re: 20499000 (csc, June 23, 2022)

The Petitioner, a fitness management company, sought to classify the Beneficiary, a bodybuilder, as an individual of extraordinary ability. The petition was initially approved the

petition but the Director revoked the approval concluding that the statement of facts was not true and correct, and the record reflected gross error in classifying the Beneficiary as an individual of extraordinary ability.

The regulation at 8 C.F.R. § 214.2(o) (8)(i)(B) provides that the Director may revoke a petition approval at any time, even after the validity of the petition has expired. The regulation at 8 § 214.2(o)(8)(iii) sets forth the grounds for revocation on notice:

(A) Grounds for revocation. The Director shall send to the petitioner a notice of intent to revoke the petition in relevant part if it is determined that: (1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;

(2) The statement of facts contained in the petition was not true and correct; (3) The petitioner violated the terms or conditions of the approved petition; (4) The petitioner violated the requirements of section 101(a)(15) (0) of the Act or paragraph (o) of this section; or

(5) The approval of the petition violated paragraph (o) of this section or involved gross error.

(B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of the grounds for revocation

and the time period allowed for the petitioner’s rebuttal. The petitioner may submit evidence in rebuttal within 30 days of the date of the notice. The Director shall consider all relevant evidence presented in deciding whether to revoke the petition.

First, the Director concluded that the Employment Agreement was fraudulent. Investigations revealed the Petitioner to be a shell company that was formed by the Beneficiary and the Petitioner’s attorney solely for the purpose of filing the Form I-129 O-lA petition on the Beneficiary’s behalf. Since the Petitioner is not an operational and viable entity, the Petitioner does not have the ability to employ the Beneficiary under the terms and conditions provided in the Employment Agreement.

The Beneficiary was found to not been employed in accordance with the terms and conditions in the Employment Agreement and was engaging in selfemployment. Wage documents in support of a Form I-140 and Form I-485 indicated self-employed as a personal trainer, nutritional coach, poser and choreographer, earning wages far less than the $200,000 provided on the Employment Agreement.

In addition, public records indicated

Immigration Lawyers Toolbox® Magazine 54

a GoFundMe account to raise funds to pay for the Beneficiary’s surgery, demonstrating that she was not provided health insurance in accordance with the Employment Agreement. Service records also showed services provided to a company that was not included in the Form I-129 petition. Finally, investigations also revealed selfemployment as a web cam model and actor, performing services outside the scope of the employment provided on the Employment Agreement.

Secondly, investigators found that the Employment Agreement the Petitioner issued was fraudulent, and the record lacks any other evidence to show that the Petitioner had a valid contract to employ the Beneficiary as a Bodybuilder. Without a valid contract, it was concluded that the Beneficiary did not have definite U.S. employment when the Petitioner filed this petition. Thus, the contract requirement has not been satisfied.

Third, the Director decided that the itinerary states the Beneficiary would compete in events in 2017 to 2019, but the Petitioner did not provide any

evidence to show that the Beneficiary was registered to participate in the listed competitions; in fact, documents in the Beneficiary’s I-140 petition indicate that she only competed in two competitions in 2017 and competed in zero competitions in 2018 and 2019.

The itinerary submitted was vague and did not provide specific competition locations nor specific event dates and locations for the photo shoots, open houses, product demonstrations, guest posing and other publicity and media events the Petitioner claimed she would attend. The itinerary also lacks specific dates and locations for events during which the Beneficiary would assist in the training and preparation of the Petitioner’s clients.

APPeAl ProcedurAl errors

New Arguments – In Re: 21169180 (VSC Sept. 8, 2022)

A skydiving center petitioned for a skydiving instructor, coach, and videographer as an O-1 nonimmigrant of extraordinary ability in athletics. On appeal, Petitioner made claims to new O-1 criteria which the AAO

said it would not consider on appeal citing Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (providing that If “the petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the denial, we will not consider evidence submitted on appeal for any purpose” and that “we will adjudicate the appeal based on the record of proceedings” before the Chief); see also Matter of Obaigbena, 19 I&N Dec 533 (BIA 1988).

Author’s note: Although I have seen the AAO take new facts and criteria into account in the past, you cannot rely on that.

signAture requirement – in re: 21841549 (csc, Aug. 30, 2022)

On appeal, the Petitioner did not provide a valid signature on the Form I-290B. Instead, the signature appears to have been created by auto pen. USCIS requires a valid signature on certain documents filed with the agency. See 8 C.F.R. § 103.2(a)(2); see also USCIS Policy ManualB.2(A), manual (incorporating former USCIS Policy Memorandum PM-602-0134.1, Signatures on Paper Applications, Petitions, Requests, and Other Documents Filed with U.S. Citizenship and Immigration Services (Feb. 15, 2018)).

About the Author

John Khosravi is the Managing Attorney of the JQK Law Firm, a boutique-style Immigration Law firm. He is also the President of the Immigration Lawyers Toolbox®, an education and media company focused on immigration law, including the only Immigration Lawyers Toolbox® Magazine, Podcast and Post-Graduate Workshops. He is also a former Professor of Immigration Law at Pepperdine and Loyola Law Schools.

Issue No. 6 | Fall Edition | 2022 55

Creative Solutions: Changing Status From L-1 to O-1

JosepH tsang, esq.

There are many reasons why an applicant will want to change their status from L-1 to O-1 visa. This article applies to L-1A specifically, but it can also apply to L-1B applicants. Here’s a short list of the many reasons why applicants may want to change their status:

1. L-1A can only be allowed in the U.S. for 7 years. Some clients can’t recapture time, and others can’t change to L-1B.

2. Some companies may have terminated employment with the L-1A applicant. Now the applicant needs to change to a different visa category.

3. Some L-1 companies prove to be too small and cannot support the extension request justifying the need for an executive or manager. Perhaps the L-1 extension has already been denied, and now the executive or manager needs to find another more fitting status.

If the client is still in status in the United States, it is possible to directly file a change of status without leaving the country. Suppose the client has already left the United States or the underlying Form I-94 expires. In that case, it

is possible to file for a new petition with USCIS first and request visa processing at a consulate or embassy abroad. The rest of the article will focus on the essential considerations applicants and immigration lawyers should consider when changing status from L-1 executive manager category to O-1 extraordinary category.

FActors to consider

The following are a few of the key considerations immigration lawyers should keep in mind to help clients decide if this change of status is appropriate.

1. Self-Petition: If a parent company or another individual owns the U.S. L-1 company, it would be easy to keep the same petitioner petitioning the O-1 applicant. If the applicant owns or partly owns it, then there will be selfpetitioner issues. We have prepared a separate article about this in a previous issue . Please see immigrationlawyerstoolbox/docs/ilt_ issue_03_draft_03

2. Extraordinary Ability in Business: O-1 is highly flexible with provisions of the FAM specifically discussing applicants who are extraordinary in the

Immigration Lawyers Toolbox® Magazine 58 Joseph

fields of business. If applicants were able to rise to the position of being sent abroad by a foreign company, they may also be extraordinary in their field. Find why they were chosen to be an L-1 candidate in the first place and help document the decision-making process in support of the O-1 transition.

3. Written Advisory Opinion: There are many business associations in every field. Often, these executive clients are part of multiple associations that can help write letters that meet USCIS guidelines for O-1 applications. If applicants cannot provide an association who can provide one, then this is an opportunity to serve as their corporate counsel and help them find a business group to write them the advisory opinion proving that they are extraordinary.

4. Calendar and Itinerary: This is a crucial difference between the L-1 and O-1 applications. It can almost be said

it is totally opposites. L-1 cases want to see executive or high-level duties, not day-to-day first-line supervisor duties. O-1 application requires USCIS to examine in detail the month-to-month actions of the applicant to see what they are doing and if that is related to their extraordinary ability.

5. End Game: Many clients want green cards and have previously chosen L-1 for its simple path to EB1C. However, that is not always the case. Some clients might also have EB-5 pending or a family petition pending and need to stay in the U.S. to maintain status. Others do not want green cards and need simple visas to come to the U.S. to work. Find out their fundamental motivation because preparing an O-1 change of status can take many forms depending on the end game.

Ultimately, both the L-1 application and O-1 application share a lot in common,

and immigration lawyers should not be afraid to help their clients explore the option of changing status. It is understandably uncommon to change status between these two categories and USCIS officers will likely review the prior L-1 application to see if there’s any discrepancy, but this can be done and might be the perfect solution to serve client’s ultimate goals.

About the Author

Joseph Tsang is an immigration and naturalization law specialist and founding partner of the international law firm Tsang & Associates. He serves on the national liaison committees for American Immigration Lawyer Association and is a regular speaker and author at conferences. He has a YouTube channel that focuses on creative solutions for legal problems.

Issue No. 6 | Fall Edition | 2022 59

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