Immigration Lawyers Toolbox® Magazine Issue 7 | Winter/Spring 2023

IMMIGRATION ® LAWYERS TOOLBOX ISSUE 7 | WINTER/SPRING 2022

MAGAZINE

ImmigrationLawyersToolbox.com

PRIMER ON H-2B TEMPORARY NONAGRICULTURAL WORKERS MEAGAN KIRCHNER page 56

THE ROCKET SCIENCE OF I-824 ANNA SERGEEVA page 52 UNLAWFUL PRESENCE WHEN DOES IT ACCUMULATE? JOHN Q. KHOSRAVI page 36

INTERVIEW WITH

FLAVIA SANTOS LLOYD FROM PARALEGAL TO A MANAGING ATTORNEY

page 16

Flavia Santos Lloyd

TABLE OF CONTENTS

From Paralegal To A Managing Attorney:

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An Interview with Flavia Santos Lloyd

HOW DO YOU GO FROM BEING A PARALEGAL TO A DOZEN ASSOCIATES IN LESS THAN A DECADE?

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Primer on H-2B Temporary Non-Agricultural Workers Meagan Kirchner, Esq.

Flavia Santos Lloyd knows and is telling her story. I was lucky to be able to interview her during the Toolbox’s Winter Workshop in Santa Monica, CA, on February 26, 2023.

The following are key excerpts from the interview.

Featured Topics

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Law Firm Organizing Part 1: Calendar Freedom!

42

Nadine Heitz, Esq.

22

Immediate Relative Petitions by U.S. Citizens Living Abroad

Brian S. Green, Esq.

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Rebecca Rangel, Esq.

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Lawful Permanent Residency Through the Diversity Visa Lottery Program Unlawful Presence: When Does It Accumulate?

John Khosravi, Esq.

Consular Processing Updates and Trends Jessie Marie Schreier, Esq.

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Amanda M. Bradley, Esq.

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Immigration Litigation 101 – Effective Communications & Negotiations

The Rocket Science of the I-824 Anna Sergeeva, Esq.

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L-1 Visa Processing for Canadians Michael Wilk, Esq.

Publisher’s Note

Dear Toolboxer, As you know, the practice of immigration law can be a challenging endeavor. The complex rules and regulations can often be unclear, and small errors or missed deadlines can have severe consequences for a case and reflect poorly on the practitioner.

This pressure can be overwhelming, and managing the business side of things can add additional stress.

At the Toolbox, we understand these challenges and are committed to providing support to our colleagues in the field. That’s why we offer different peer group meetings for legal practitioners of family-based cases and for small/solo firm management. These intimate settings provide a safe and non-judgmental space to discuss our thoughts and issues, where colleagues can offer valuable insights and promote professional growth.

If you’re feeling overwhelmed, remember that getting help is a good thing. Joining a peer group can help alleviate the stress of navigating the complex world of immigration law. If you’re interested in learning more, please don’t hesitate to message me.

In this issue, we’re focusing on helping with the legal side of things. We understand that confusion around the 3/10 year bar and what constitutes unlawful presence can be common among practitioners. To help alleviate this confusion, we’ve included an informative article on the topic.

We hope that this issue and our peer groups can provide you with the support and resources you need to succeed in your practice.

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

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

President & Chief Editor

Contributing Writers

JOHN Q. KHOSRAVI, ESQ.

NADINE HEITZ, ESQ. REBECCA RANGEL, ESQ. AMANDA M. BRADLEY, ESQ. BRIAN SCOTT GREEN, ESQ. JESSIE MARIE SCHREIER, ESQ. MEAGAN KIRCHNER, ESQ. MICHAEL WILK, ESQ.

Editor ANNA SERGEEVA, ESQ.

Cover CAELA DELA CRUZ

Layout

Info@ImmigrationLawyersToolbox.com

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

ZION DELA CRUZ

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Immigration Lawyers Toolbox® Magazine

Law Firm Organizing Part 1: Calendar Freedom!

NADINE HEITZ, ESQ.

30-minute potential client phone Releasing your calendar to the world c.consultation

Nadine Heitz, Esq. nadine@heitzimmigrationlaw.com heitzimmigrationlaw.com

for others to book appointments with you can be a significant step towards achieving calendar freedom. Many people, including attorneys, may feel hesitant to do so, fearing that their time will become overloaded, and they will lose control. However, once you overcome this fear and release your calendar, you can experience a sense of relief as a significant weight is lifted off your shoulders. I use Calendly.com for this, but there are other apps that work equally as well.

Here are some of the key benefits of calendar freedom: 1. Achieve greater control over your time. By allowing others to book appointments with you directly, you can avoid the back-and-forth emails or phone calls that can take up a significant amount of your time. This can be especially helpful if you get several requests for appointments whether they are from existing clients, new potential clients, or colleagues.

The key is to have separate calendar events for each type of appointment.

Here are my Calendly appointment events I use the most often: a. 15-minute existing client phone call appointment b. 15-minute non-client phone call appointment. (I send this one out to anyone who wants to speak with me that is not a client or a potential client)

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d. 30-minute potential client zoom consultation e. 30-minute potential client inperson consultation f. 15-minute potential client free phone consultation 2. Include payment integrations for consultation bookings. I integrate Calendly with Stripe so that anyone booking a consultation with me must pay prior to the appointment getting on my calendar. You can easily set this up yourself in Calendly for any appointments that require payment. I even have different payment amounts for different types of consultations.

For example, my potential client phone consultation is cheaper than my potential client in-person consultation. I freely let clients choose the consultation type they want to book because I have it right on my website page. It’s easy just to direct anyone to that page and they can go ahead and book.

3. Better manage your workload and prioritize your time. When you have a clear and organized view of your schedule, it is easier to identify the best times for appointments and meetings, as well as the times when you need to focus on other tasks

Issue No. 7 | Winter/Spring Edition | 2023

or take a break. This can help you avoid overloading your schedule or becoming overwhelmed with work.

In my office, nobody gets a call back unless it’s on the calendar! This is not only for me as the attorney, but also for my paralegals. Both of them have their own Calendly appointment events so that when existing clients call, the reception service will schedule the client for a phone call back appointment with the legal assistant. This means – no messages to return! That’s right, we do not return messages to clients. We insist that if they want to speak with us, the receptionist will book them a

reserve all the suggested times on your own calendar so that when you decide on the time after the poll is in, you won’t have to worry that one of those suggested times already got booked by someone else! I use this extensively for booking zoom meetings with my AILA colleagues or my local Business Chamber of Commerce meetings.

like I do. When I am composing an email, I can just open the Calendly Chrome extension with one click and all my appointment events appear on a sidebar so that I can just copy the link for the appointment that I want to use. You can even give the person only a few options of times rather than let them book whenever they can find a time slot.

5. Block off time in advance for any work you need to do. I have several time blocks during the day for things like checking emails and reviewing client files. If I didn’t do that, my

call back appointment, and they are told that if they do not wish to book the call, then we cannot guarantee they will get a response from us!

entire calendar might get filled up with appointments! That’s really the key to having the freedom to share your calendar in the first place. It’s good practice to review your calendar for the entire month ahead and block off times you know you may need to reserve for yourself. Setting them up as recurring times can work really well, for example, I have blocked off every weekday for 45-minutes in the morning and afternoon to review emails. I even block off every Friday so that I have a full day to catch up on things, or maybe even take the day off.

7. Use the customized features to set buffer times. This is very useful so that your appointments have a cushion of time in between. For most of my appointment types, I set a 15-minute before and after buffer which means that I will never have back-to-back appointments without a bit of time in between, which is very helpful in case you go over time or just need a breather! There is even a feature to prevent overloading of one appointment type. For example, maybe you want to limit new client consultations to only 2 per day or so many per week.

The decision to release your calendar can be a challenging one, but it can ultimately lead to greater freedom and control over your time, improved productivity, and new business opportunities. The calendar freedom you will experience can be truly exhilarating. The next time someone asks you to call them or meet with them, just send a quick email, text or direct message with your appointment link.

4. Create more opportunities for new business or networking. By making it easier for others to book appointments with you, you can increase your visibility and accessibility to potential clients, collaborators, or partners.

Don’t think that Calendly or any appointment software is only for clients and consultations. I send out Calendly links for any type of appointment that anyone wants to book with me. You can also use it for meeting polls by selecting several times you are available and sending them out to several people that you want to book a meeting with you.

The best thing is that Calendly will

6. Use the Chrome extension for Calendly. It makes it so easy to find the appropriate link quickly. This is especially convenient when you have several Calendly appointment events

Enjoy your calendar freedom today!

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://tiplawyers. com/ for more information and join the Technology for Immigration Practitioners (TIP) Facebook Group at https://www.facebook.com/ groups/191457918187525

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Interview with Flavia Santos Lloyd

HOW DO YOU GO FROM BEING A PARALEGAL TO A DOZEN ASSOCIATES IN LESS THAN A DECADE? Flavia Santos Lloyd knows and is telling her story. I was lucky to be able to interview her during the Toolbox’s Winter Workshop in Santa Monica, CA, on February 26, 2023.

The following are key excerpts from the interview.

Issue No. 7 | Winter/Spring Edition | 2023

John Q. Khosravi (John): It’s great to have Flavia Santos Lloyd, Esq., with us today to talk about her experience in business development. Flavia is the Managing Attorney at Santos Lloyd Law Firm, P.C. She has a lot of valuable insights to share. Flavia, could you tell us a bit about yourself and your background, including where you are from and what brought you to the United States?

Flavia Santos Lloyd (Flavia): I am from Santos, in the state of Sao Paulo, Brazil. After completing my college education in Portuguese and Russian, I received a scholarship to study in the U.S. for a year. This experience helped me empathize with my clients and led me to my first job at an immigration law firm, where I worked for 12 years.

I started as a receptionist and worked my way up to paralegal supervisor, leveraging my language skills along the way.

who happened to be a well-known TV director. He expressed interest in working with me, but I was intimidated by the idea as it seemed quite daunting. He insisted on working with me, despite the challenges. I took my time to learn and grow, and the rest is history.

John: One of the most intriguing experiences I have had is when clients approach me with cases that I have little knowledge of. I would tell them that I am not familiar with the case and that they should consider hiring someone else. However, they would insist on having me handle their case, saying, “I want you. I know you may not want to do it, but I trust you.”

Flavia: I believe that honesty is important. It’s important to be upfront with someone and say, “Hey, I don’t do this. Do you want to work with me? Or should I recommend someone

else?”

John: Exactly. What was the next development after that? Also, how many lawyers do you currently have working for you?

Flavia: We have 12 lawyers and 26 other employees.

John: When did you experience the fastest growth over a five to sevenyear period? Also, when did you decide to hire your first attorney?

Flavia: That was in 2017. I saw the volume increasing, and decided that I’m not going to lose my license by delegating to non-attorneys.

John: Your firm is quite large now.

Was that your plan, or did it just happen that way?

Flavia: I quit my job as a bar

John: What happened in these 12 years? Did you go to law school?

Flavia: Yes, I did. While in law school, I realized I was doing all the work but not getting credit. As a paralegal, I was often overlooked.

Eventually, I began practicing law while also teaching full-time.

John: To clarify, when did you start practicing? Did you start your own firm?

Flavia: In 2014, I was teaching for bar review and practicing law at the same time. It was too much work because I had to prepare for my classes and do interviews while being a single parent.

The situation was not manageable.

So, I left the bar review company and started my own firm in 2016.

John: Did you start your firm by yourself, or did you have staff with you in the beginning? How long did it take for you to move towards the O-1 category and other employmentbased cases?

Flavia: That was just me. At the end of 2016, I had my first client,

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you only consider English majors or do you have other criteria?

Flavia: I was fortunate enough to come across one of my case writers through a resume posted by another attorney. He happens to be a Hollywood writer who works parttime for us to supplement his income.

It’s important to note that case writers are typically not interested in full-time positions, as they prioritize creative freedom and a steady paycheck.

John: How has the transition to remote work affected your business operations since the pandemic, and how did you adapt to it?

reviewer to spend more time with my child. I started a business and did some teaching on the side, but unexpected growth happened. I had to rely on management, support, and consultants because I wasn’t prepared to be a business person. Now, as a lawyer and business owner, I have to make decisions, oversee employees, ensure compliance with trust accounts and policies, and offer incentives to retain employees. This can be a steep learning curve, but it is necessary for success.

John: Do you ever wish you could go back to the days when you were a solo lawyer, like many big law firm owners?

Flavia: I think I’m in the right spot and happy with the size of my team. I am currently working with a business coach and creating partnership tracks for my associates. Hopefully, someone will take the wheel so I can step back a little bit.

John: How can you balance your love for doing the work and getting involved with the business operation?

Flavia: I maintain a strict schedule that allows me to balance consultations,

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administrative tasks, and hands-on work. Wednesdays are dedicated to staff meetings and one-on-one meetings with every staff member. I selectively choose cases to work on.

John: Do the clients ever request to work with you directly, or are they okay with working with anyone on your team?

Flavia: Typically, clients express a preference for working with me.

However, I explain that our team is fully capable of handling their needs and provide them with a welcome email and retainer to secure their spot. During the intake process, I also inform them which team member will be assigned to their project.

John: Do you handle all of the consultations personally?

Flavia: No, I have an intake team who screens potential clients and determines if they require a paid consultation. Additionally, I have other attorneys who handle consultations and sales.

John: You mentioned having writers on your team. How do you find qualified individuals for this role? Do

Flavia: Back in 2017, when I was working with a business coach, she suggested that I provide computers to my team and allow them to work from home once a week, as I couldn’t afford to pay them well. When the pandemic hit, I simply converted that once-a-week setup to a five-day workfrom-home setup. Having already set up my team members with laptops and dual monitors, the transition was relatively smooth. I now have team members in Montana, New York, Florida, Minnesota, and Arizona, which comes with the challenge of complying with employment laws in each state. However, the ability to find quality talent from all over the country has been a game-changer for me. It’s a logistical challenge, but the benefits of having the right team members outweigh the difficulties.

John: What about logistics?

For instance, I use Gusto for my payroll and they have international capabilities. Is there more to it than that when it comes to compliance with different states?

Flavia: Yes, there is a service on Gusto called Minerva that provides updates for each state. Also, my office manager keeps up with compliance for all the states, as we have an intranet with all the employment posters required by each state. Gusto helps us by registering us as an employer in each state and taking care

Issue No. 7 | Winter/Spring Edition | 2023

of compliance. It’s really helpful.

John: Is it ultimately worth all the additional effort in the end?

Flavia: I enjoy closing deals, improving weak cases, and finding strategic solutions. When faced with weak cases, I strive to make them better, or provide honest feedback if it’s not possible. The work is challenging but rewarding, and I appreciate the marketing and Internet aspects of the job. Social media, such as Instagram, has been crucial in expanding my business, currently representing 20% of my clientele.

John: Can you do yours in Portuguese?

Flavia: Currently, I am collaborating with a company leveraging my proficiency in multiple languages. I am working on targeted campaigns that cater to individuals speaking specific languages. For instance, Portuguese speakers will not be exposed to my material in French or Spanish. This approach is fascinating and has its perks. Consequently, my content won’t appear on irrelevant feeds.

our firm operates as a production line, which is essential for our success.

By utilizing software and other tools, we can efficiently handle cases and deliver the best possible results for our clients. It’s all about clear communication and ensuring that our clients understand the process from start to finish.

John: It’s common for firms to not show the faces of their team members to clients before the transition.

However, I prioritize bringing in my associates on video for marketing purposes. This way, clients can familiarize themselves with the team handling their cases before the transition even occurs. It’s essential to emphasize the value of everyone on our team. Do you have concerns about your employees leaving and taking clients with them, or do you

would be where you are now five years ago?

Flavia: No, I thought I would be teaching and grading papers for bar review companies at a rate of $10 per paper. I had a plan mapped out based on how many papers I would grade per month. However, I have learned not to plan too much as life can take unexpected turns.

John: What are your goals for the next five years?

Flavia: My main goal is to have longterm employees who will grow with me. I call my original employees the OGs because they trusted me when I had nothing – no payroll system or benefits. I want to take care of them for the rest of their lives. I recently bought a building, and one of my OGs

John: You also speak French, and you used to speak Russian as well, right?

How about Spanish?

Flavia: I can read and translate birth certificates in Russian, but I cannot speak it. Spanish is my third language after Portuguese and French. That said, my current target audience comprises primarily Brazilians, followed by French and Spanish speakers. The strategy of creating content specifically for these groups has proven highly effective. It helps distinguish me as the attorney who speaks their language.

John: And if they want to hire you, they may have concerns about whether you will handle their case personally.

Flavia: Absolutely, while it can be a concern, I see it as an opportunity to help our clients. During the intake process, I take the time to explain how

still prioritize this approach?

Flavia: I value honesty in hiring, especially if someone plans to work here for a while before starting their own business. To help them and ensure there’s enough business, I’ve created a pitch deck with pictures of trusted key members. I also work with consultants, like LTC Performance Strategies, to meet the needs of different generations and reduce employee turnover rates.

moved with me and cried tears of joy.

It was amazing to see that it’s not just me, it’s us. In five years, I may have a bigger or smaller company, but I want to maintain the feeling of “us” among my employees.

John: Thank you for joining us today, Flavia. It was a pleasure talking to you and learning about your journey

***

John: Did you ever think that you

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Immediate Relative Petitions by U.S. Citizens Living Abroad REBECCA RANGEL, ESQ.

When

U.S. citizen (“USC”) petitioners living abroad seek lawful permanent resident (“LPR”) status for an immediate relative, look out for some unique issues and exciting options!

Rebecca Rangel, Esq. rebecca@rangellegal.com RangelLegal.com

GET TO KNOW THE PETITIONER AND FAMILY • USC who previously resided primarily in the United States but at some point, moved abroad; this “expat” might hold local or remote employment • USC who never lived in the United States or spent most of their life abroad • USC on assignment with a “qualifying U.S. employer” • USC military service member Discuss plans, goals, expectations, timelines, personal and employment situations. Some families prefer the status quo, remaining outside of the United States during the process.

Others have an urgency to arrive to the United States. Ask about safety concerns, medical issues, and professional opportunities.

“LOCAL FILING” AT THE CONSULATE OR EMBASSY Requesting “local filing” can shave off months to years of processing time! Obtaining a visa within 1 to

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4 months from the date of filing the I-130 is a real possibility.

USCIS authorizes the Department of State (“DOS”) to accept and adjudicate I-130 petitions for immediate relatives, under limited circumstances.

Assess possible “exceptional circumstances” or qualification under a blanket authorization. DOS can also adjudicate I-360s for widowers of USCs and certain I-600s and I-800s.1 The consular post may “opt” to accept a “local filing,” but is not required to accept the petition. If declined, there is no appeal or request for reconsideration so continue by filing with USCIS. If the petition accepted, but not clearly approvable, DOS cannot adjudicate and will forward to USCIS.2 Under most circumstances, the petitioner must reside abroad. A post will not accept a local filing when the petitioner has already filed an I-130 domestically, seeks to travel and file abroad to expedite processing, or is trying to “circumvent” processing times associated with the domestic filing.3 The FAM and USCIS Policy Manual list examples of “exceptional circumstances”: short notice 1 9 FAM 504.2-4; USCIS Policy Alert, PA-2020-03, Accepting Petition for Alien Relative (Form I-130) Abroad (Jan. 31, 2020), AILA Doc. No. 20013134; 6 USCIS-PM, Pt. B, Ch. 3 2 Id. 3 9 FAM 504.2-4 (B)(1)(a) and (f); 6 USCIS-PM, Pt. B, Ch. 3

Issue No. 7 | Winter/Spring Edition | 2023

of position relocation or a job offer or reassignment for a USC petitioner who lives abroad; medical emergencies; a beneficiary close to aging-out; naturalization that resulted in a change from preference category to immediate relative; adoption of a child; U.S. military emergencies that do not fall under a blanket authorization; and other emergency or exceptional circumstances of a nonroutine nature.4 Blank authorizations include civil strife, natural disaster and certain U.S. citizen military service members stationed abroad. 5 Interpretation of “exceptional” varies by post but consider several rather common situations related to employment. You might present a USC residing abroad who lands any kind of job offer in the United States: it does not need to be a great job, although an opportunity that provides increased income and benefits or

professional growth will strengthen the argument. Or, a USC that was allowed to work remotely but must now meet with colleagues or clients at the office. Even a self-employed individual who works abroad who can argue the need to be physically present in the United States might achieve a local filing.

Create a short legal argument considering the examples, totality of the circumstances and humanitarian reasons. Relevant factors not listed 4 5

.

9 FAM 504.2-4(B)(1)(b)(4); 6 USCIS-PM, Pt. B, Ch.3 9 FAM 504.2-4(B)(1)(c-d); 6 USCIS-PM, Pt. B, Ch. 3.

in the FAM include general hardship, loss of employment or income and need for children to attend school.6 For post-specific instructions, reach out to colleagues, check the website, or email the immigrant visa section.

Many times, an email with a succinct legal argument, a statement from the petitioner, evidence of residence abroad and exceptional circumstances will suffice. Some posts may request the I-130 package concurrently.

AFFIDAVIT OF SUPPORT INCOME AND DOMICILE REQUIREMENTS To obtain an immigrant visa, immediate relatives of U.S. citizens must generally present Form I-864, in compliance with INA 213A. For USC petitioners living abroad, meeting the affidavit of support requirements can be tricky.

TAX RETURNS In most cases, the petitioner must submit a copy of the most recent federal income tax with W2s/1099s or an official tax return transcript from the Internal Revenue Service (IRS).

Foreign entities do not issue W2s or 1099s, so in lieu of such, provide a statement from the petitioner and/ or proof of income earned abroad.

If tax filing was not required, attach a written explanation and the related 6 Shipley, Amanda; Slocombe, Charlotte; and Lee, Lynn M.; Utilizing USCIS International Offices Abroad available in Immigration Practice Pointers, 2016-2017 Edition, American Immigration Lawyers Association.

IRS publication. 7 USCs residing abroad are often unaware of the obligation to file tax returns. They should work with an experienced tax attorney or tax professional. Many will be eligible for IRS Streamlined Filing Compliance Procedures and will only need to file three years of returns and six years of Foreign Bank Account Reports (FABR applies with $10,000 in aggregate non-U.S. accounts.)8 Self-employed individuals will likely pay Social Security tax. Electing the Foreign Earned Income Exclusion (FEIE) will reduce income tax liability but can complicate reaching the I-864 income threshold.

Copies of tax returns usually suffice at the NVC stage, but posts sometimes insist on the official IRS transcript.

USCs abroad often need extra time to resolve difficulties in obtaining the

transcript. If unavailable, point out that the FAM indicates the transcript is not required9 and provide a statement of attempts from the petitioner. If a paper filing is not reflected online, present IRS announcements regarding agency delays.

Petitioners who understand tax return requirements early on will have time to sort out issues before running into problems.

7 9 FAM 601.14-4; FAM 601.14-6 8 https://www.irs.gov/individuals/international-taxpayers/us-taxpayers-residing-outside-the-united-states 9 9 FAM 601.14-6

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MEETING THE THRESHOLD

U.S. DOMICILE

Common issues that arise when the USC lives abroad include low income in general, income from abroad that will not continue after arrival to the United States, no U.S. employment, and the foreign earned income

To qualify as a sponsor under 213A, the petitioner must have “domicile” in the United States. Obtaining a joint sponsor does not cure the issue of domicile for the petitioner.12 Domicile issues can cause delays

exclusion lowering “total unadjusted income” on the tax return.

at NVC and delays/refusals at the consular interview.

Officers generally look to the “total unadjusted income,” as shown on the most recent tax return, to determine if income meets the poverty guideline threshold for the Affidavit of Support.10 However, in situations where that income amount does not reach the threshold, or where the sponsor was not legally required to file a tax return, the FAM indicates an officer can and should consider other evidence of income, such as pay stubs and/or letters from an employer.11 Craft explanations and provide evidence to show how the sponsor meets the requirements under this section. Provide evidence of continued reliance on income from abroad or income from a new job in the United States. A job offer might not suffice if employment has not already begun.

The petitioner can remain outside of the United States with their spouse during the entire immigrant visa process. Traveling to the United States and taking up physical residence in the United States prior to the applicant’s arrival is not required.

Using assets abroad can help meet the requirements, but it may be harder to demonstrate value and availability to convert to cash within one year. When necessary, consider the applicant’s income or assets, household members and/or joint sponsors.

10 11

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ID. 9 FAM 601.14-13; 9 FAM 601.14-6(B)(3)(C)

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However, a petitioner who resides outside of the United States must show 1) maintenance of domicile through a principal residence and abode in the United States; or 2) a “reestablished” domicile in the United States. 13 • Maintenance of domicile: a) departed the United States for a limited time; b) intended to maintain domicile at time of departure; and c) has evidence of continued ties. 14 • “Reestablished” domicile: a) took steps to establish a domicile in the United States b) established an address in the United States; and c) already took up physical residence in the United States; or intends to do so concurrently with the applicant. 15

12 13 14 15

9 FAM 601.14-5 FAM 601.14 FAM 601.14-7(A)(2) FAM 601.14-7(A)(3

In securing a U.S. address, the petitioner may not want to purchase or rent housing in advance. They may plan to stay at the home of a family member or friend upon arrival to the United States. This type of arrangement is fine.16 An expensive

rental contract is not necessary, but a formal agreement for shared space in a family member’s home at a nominal fee is persuasive. A letter from a family member or friend, describing the arrangements, should also suffice.

Present a statement from the petitioner that sums up history, intentions, and steps to establish an address and residency. The FAM lists the following steps: opening bank accounts; transferring money, investing; seeking employment, registering children in school, applying for a social security number; and voting in local, state, or federal elections.17 Additional evidence might include proof of property and/or vehicle ownership; utility statements; shipping household items; driver’s license; professional licenses; other personal and professional circumstances.

Finally, prepare the applicant to respond to domicile questions at the visa interview.

U.S. CITIZENSHIP UPON ADMISSION AS AN LPR Minor children and some other visa applicants will qualify for U.S. citizenship upon admission to the 16 17

FAM 601.14-7(A)(3)(A) FAM 601.14-7(A)(3)(B)

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United States as an LPR; they are exempt from the Affidavit of Support income requirements and use Form I-864W. A child can “automatically” acquire citizenship by holding lawful permanent resident status when “residing in the United States in the legal and physical custody of the [U.S.] citizen parent.”18 Families

who stay in the United States for a relatively short time, quickly obtain a U.S. passport and depart can run into problems. U.S. consulates and embassies scrutinize the term “residing” and have denied passport renewals for non-compliance. Discuss these possibilities with the family and analyze citizenship through CRBA19 or N-600K based on a grandparent’s physical presence.20

United States.

Review INA 319(b)(1) qualifying employers: 1) U.S. government or research institution 2) U.S. corporation or subsidiary in foreign trade or commerce; 3) public international organizations; 4) organizations engaged in ministerial or missionary work. 22

Spouses of U.S. citizens who are regularly stationed abroad under qualifying employment for at least one year, may be exempt from the continuous residence and physical presence requirements for naturalization as well as exempt from living in marital union. The applicant must show intent to reside with USC spouse and to return to the United States within 6 months of termination of employment abroad. 23

QUALIFYING EMPLOYERS Identifying a USC’s qualifying employer is extremely important for couples living abroad. They might easily meet the domicile requirements for the Affidavit of Support21 and apply for LPR status and expeditious naturalization without living in the 18 19 20 21

INA 320; 8 FAM 301.10; 12 USCIS-PM, Pt. H, Ch. 4 7 FAM 1440 INA 322; 12 USCIS-PM, Pt. H, Ch. 5 9 FAM 601.14-7

Further, spouses of military members may not be required to attend an adjustment of status interview and spouses who are living abroad pursuant to official orders may be eligible for naturalization oversees.24

employees of nonprofits engaged in communications that promote U.S. interests. 25 AFTER VISA ISSUANCE USCs living abroad for significant periods appreciate additional support upon moving to the United States as they may be unfamiliar with applying for a driver’s license, social security,

and medical insurance. Discussing maintenance and abandonment of residency issues is especially important they may have more inclination to depart the United States with their LPR spouse.

ABOUT THE AUTHOR Rebecca Rangel resides in Quito, Ecuador, since 2012. She founded Rangel Legal, a boutique firm with offices in Chicago and Ecuador. Her practice in Ecuador focuses on family based consular processing, securing immigrant and nonimmigrant waivers of inadmissibility, and obtaining U.S. citizenship for persons living abroad.

She is licensed to practice in Illinois.

Similar provisions provide expeditious naturalization for 22 23 24

INA 319(b); 12 USCIS-PM, Pt. G, Ch.4(C) INA319(B); 12 USCIS-PM G.4; 8 CFR 319 12 USCIS-PM I.9 ; INA 316(a), INA 319(a)

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12 USCIS-PM D.5

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Lawful Permanent Residency Through the Diversity Visa Lottery Program AMANDA M. BRADLEY, ESQ.

territories, Venezuela, and When I was contacted by my first dependent Vietnam.

Amanda M. Bradley, Esq. amanda@usavisaspain.com USAVisaSpain.com

Diversity Lottery client in 2017, I didn’t know anything about the program or how it worked. The premise was interesting to me- a system where names are drawn from a figurative digital hat and those selected are granted the chance to apply for an immigrant visa to the U.S.

The Diversity Visa Program established a green card lottery system to attract new immigrants from the countries with the lowest current rates of immigration to the United States. Currently, 55,000 entries are selected each year and invited to go through the process of applying for the immigrant visa/green card.

Each year’s eligible countries are chosen based on immigrant admission rates over the previous five years. Nationals of countries with historically large numbers of immigrants, such as Mexico, India, Philippines, and China, are generally not eligible to participate. For the upcoming DV-2024, for which the selected entries will be chosen in May 2023, the additional countries that are not eligible are Bangladesh, Brazil, Canada, Colombia, Dominican Republic, El Salvador, Haiti, Honduras, Hong Kong, Jamaica, Nigeria, Pakistan, Republic of Korea (South Korea), United Kingdom (except Northern Ireland) and its

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The remaining eligible countries are then grouped into 6 regionsAfrica, Asia, Europe, North America (Bahamas), Oceania, and South America and the Caribbean.

REQUIREMENTS In order to be considered for an immigrant visa/green card through the Diversity Lottery, applicants must meet the following requirements: 1. Applicants must either be natives of one of the eligible countries, or qualify for one of two available exceptions: a. Using the country of eligibility of a spouse, provided that both spouses are named on the selected entry, both are found eligible for and issued diversity visas, and both enter the U.S. at the same time; and b. Natives of countries with historically high rates of immigration.

However, there is an exception if neither of the applicants’ parents was born or legally resided at the time of birth of the applicant. In this case, it may be possible for an applicant to claim the country of birth of one of their parents if it is one of the eligible countries.

2. Applicants must meet the education/ work experience requirements of the program by having either at

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least a high school education or its equivalent, or by having two years of work experience within the past five years in an occupation that requires at least two years training or experience to perform. (In order to determine qualifying work experience, the Department of State will use the Department of Labor’s O Net Online database.) Practice tip- have originals of the educational diplomas at the time of interview.

3. Finally, Applicants must be admissible to the United States as immigrants. This includes passing the

Applicants must list eligible spouses in their entries. Failure to list an eligible spouse, unless in the case of legal separation, will make the applicant ineligible for a Diversity Visa. Spouses who are legally separated from the applicant are not eligible for a visa as a derivative.

There is no penalty for failure to list a spouse in the case of legal separation.

However, all other spouses must be listed, even if the applicant plans to be divorced before applying for the visa, or even if the spouse does not intend to immigrate.

children, or listing someone who is not a child of the applicant, makes the applicant ineligible for a visa.

This would also make the spouse and children ineligible as derivatives.

APPLICATION PROCESS The only authorized way to apply for the lottery is through the Department of State’s official Diversity Visa Program and Entrant Status Check website available at www.dvprogram. state.gov. The entry period runs generally for about a month, usually from early October to early November, of the previous fiscal year.

It is extremely important when filling out an entry that the person fills out their information accurately, exactly as it appears on their passport.

Entries with typos, omitting a last name, etc., may result in a denial at the interview. This is due to the high level of fraud with DV lottery entries. There are many “agents” that charge for submitting entries and sometimes make mistakes or even fill out multiple entries for the same person, with variations in the name, in a misguided effort to gain more chances at winning. This is why it is fundamental to not make any errors on the application.

medical exam.

DEPENDENTS Spouses and children under 21 at the submission of the entry are considered to be derivatives on the Principal Selectee’s case and can be eligible for an immigrant visa if they are otherwise admissible. Only the Principal Selectee must meet the nationality and educational/work requirements.

In the case of two spouses each from an eligible country, both may enter the lottery, effectively giving each person two chances for a visa. Children are protected by the CSPA from aging out during the process.

If someone was not yet married when Selected, they may marry their partner in order for that person to be eligible for a derivative visa. The best practice is to marry before submitting the DS-260. However, if a Selectee gets married after submitting the DS-260, they can also still request that NVC unlock the DS-260 in order to add the spouse.

All living, unmarried children under the age of 21, even if they do not live with the principal applicant, must be listed on the entry. This includes adopted and stepchildren, but not children that are already U.S. citizens or LPRs. Failure to list all eligible

The winning entries are randomly chosen the following May after the Oct./Nov. entry period. Applicants must visit the official website again to check on their entry; DOS does not send out any letters or emails to winners. Those selected, (“Selectees,”) are invited to apply for visas during the upcoming fiscal year. For example, entry for the upcoming lottery cycle, DV-2024, was held from October 5, 2022 to November 8, 2022. Results will be released on May 6, 2023. Beginning at the start of fiscal year 2024, which begins October 1, 2023, Selectees, according to their case type (Consular Processing or Adjustment of Status) and in some cases, their case number, may begin the process of applying for the immigrant visa/green card.

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One of the tricky parts of DV lottery cases is that selected entries are only valid for the fiscal year program for which they were drawn and all processing must be completed before the end of that fiscal year. The deadline for the current lottery cycle, DV2023, is the end of this current fiscal year, which is September 30, 2023. The deadline for upcoming DV2024, for which the entries will be drawn in May 2023, will be September 30, 2024.

Any pending cases not processed by that date are canceled. No cases can be approved past the deadline.

Sometimes the government commits errors in its adjudication and/or administration of the visas, and it is sometimes possible and necessary to sue in order to force it to comply with its program rules. One such case stemmed from the Trump Administration’s Presidential Proclamations 10014 and 10052, which suspended most immigration during the Covid-19 pandemic.

Among the visas suspended under the

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Proclamations were those of the visa lottery program. Because of the fiscal year visa deadline, Selectees were in danger of missing out on their chance at visas due to the bans.

Plaintiffs were eventually consolidated into the Gomez v Biden class action suit filed by attorneys Curtis Morrison and Rafael Urena. In August 2021, the U.S. District Court for the District of Columbia issued an order instructing the Biden Administration to issue 9,095 diversity visas from Fiscal Year 2020. The Court later directed the Administration to commence processing the visas and to conclude the processing by September 30, 2022 at the latest. In October 2021, the Administration filed a notice of appeal. The Court heard oral arguments in September 2022. The decision is currently pending.)

Each Selectee is assigned a Case Number that contains the program year, the geographic region and the specific case number. For example, a

current Selectee from DV-2023 from Europe might have a number such as 2023EU00012500. This number indicates, aside from the identifying information regarding lottery year and region, their number for processing, which in this case, would be 12,500.

Before we discuss when someone can apply for the visa, I’ll first explain the two different ways someone can apply.

THE MAJORITY OF CASES GO THROUGH CONSULAR PROCESSING Consular Processing for these cases is handled through the Consular Electronic Application Center (CEAC) and the Kentucky Consular Center (KCC.) To begin the process, the Selectee must submit a completed DS-260. The DV immigrant fee is currently $330. The DS-260 may be submitted at any moment after notification of being selected, including before the fiscal year in question begins. There is no need to wait for the Case number to be

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reached in the Visa Bulletin.

In order to access the DS-260 in the CEAC, the system will first ask for Case Number, as with all Immigrant Visa cases. The difference in the access system for DV lottery cases is that, instead of an Invoice ID number, the system will next ask for the Principal Applicant’s surname and date of birth, and the Electronic Diversity Visa Confirmation number. This is the number assigned to the Applicant at the moment they submitted their entry.

The DS-260 application now asks the applicant to indicate either Adjustment of Status or Consular Processing for their case. However, the DS-260 is only mandatory for Consular Processing cases, including for derivatives. It is not necessary for Adjustment of Status cases, however, and are not actually processed for those cases. However, according to recent data collected, Brit Simon of Britsimonsays (an informative blog managed by the former DV lottery winner) believes that submitting a DS-260 early on in an Adjustment of Status case may help put KCC on notice that USCIS will be requesting the file later on and may make that

process faster. Practice tip- in the final step to review the DS-260 and submit it, the Case Number has to be entered without the zeros to the left of the number. It will give an error message if the zeros are included. For example, using our hypothetical case from above, the case number would be written on the final confirmation step as 2023EU12500.

A Confirmation Notice is created when the DS-260 is submitted, just like in other immigrant cases through Consular Processing. Currently, at that point, the Selectee then waits for an email from the Department of State with the information regarding their interview at the Consulate. (In past years, once the DS-260 was submitted, KCC would then send an email requesting that the supporting documentation be attached and sent back to them. This process was discontinued starting with DV-2022, however, the instructions still remain in the official communications for DV-2023.)

A helpful website takes the current CEAC raw data and provides up-todate information on which numbers have already been processed and

allows filtered results based on the Embassy is https://dvcharts.xarthisius. xyz/ceacFY23.html# For Adjustment of Status applications, the Selectee must pay the Department of State Diversity Visa Lottery Fee. This is done by sending a check for $330 for each person as soon as being selected, along with the identifying DV case number and names to the DOS at a specified address. Since it may take a couple of months for the Department of State to return the fee receipt, it’s a good idea to pay it as soon as possible when starting a case.

There’s no need to wait for the visa number to be current to pay the fee.

As mentioned above, AOS applicants can fill out and submit the DS-260 but it is not mandatory. Issues such as immigrant intent should be evaluated before deciding whether or not to file the DS-260 in an AOS case. Note that the case must be current according to the USCIS interpretation of the Visa Bulletin before filing.

To attempt to get expedited processing with USCIS, a practitioner can add in large, highlighted font, “Request to Expedite- Diversity Visa Lottery.”

However, USCIS is aware of the time sensitivity of these cases and usually completes the case in a timely manner.

Diversity visa lottery cases can be a good addition to any practice. With a little understanding of the procedure involved, cases can be completed successfully.

ABOUT THE AUTHOR Amanda M Bradley is a Californialicensed solo practitioner based in Madrid, Spain, focusing on familybased and Diversity Visa lottery immigration. She graduated cum laude from California Western School of Law in 2002. Her passion for immigration law stems from growing up along the border in Southern California as a descendant of Mexican/Spanish immigrants who originally settled in North America in the 1550s.

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Unlawful Presence: When Does It Accumulate?

JOHN Q. KHOSRAVI, ESQ.

John Q. Khosravi, Esq. Info@JQKLaw.com JQKLaw.com

One of the most confusing aspects of

THE 3-YEAR BAR

immigration law is the calculation of “Unlawful Presence Days” (“UPD”).

The consequence of a foreign national accumulating UPD and exiting the U.S. can potentially lead to a ban on reentry. The calculation is complex, and you must be aware of various regulations and memos.

Under INA section 212(a)(9)(B)(i)(I) makes inadmissible those aliens who were unlawfully present for more than 180 days but less than one (1) year and who voluntarily departed the United States before the initiation of removal proceedings for three years.

The best place to study this in one place is the USCIS consolidated guidance memo on the topic.1 Reading, reading, and reading again (and more) is recommended.

There are subsequent updates and re-interpretations for parts of it as well. In this article, I will go over the significant points. Toolbox community members can see the 1-hour CLE on the Circle.so page on this topic. For access, please contact info@immigrationLawyersToolbox. com.

WHAT IS UNLAWFUL PRESENCE FOR INA 212(A)(9), 8 USC 1182 (A)(9) INADMISSIBILITY? Unlawful Presence should not be confused with a status violation or even being out of status. Unlawful Presence begins to accrue at certain times, the accumulation of these days, and exit from the U.S., leading to a ban on reentry (if up to a certain amount of days and subject to waivers).

1 USCIS Interoffice Memorandum Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9) (B)(i) and 212(a)(9)(C)(i)(I) of the Act (2009) from Donald Neufeld.

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Note that the language in this section does not apply the ban to those who voluntarily depart before the 1-year mark after receiving a Notice to Appear (NTA).

THE 10-YEAR BAR Section 212(a)(9)(B)(i)(II) of the Act renders inadmissible those aliens unlawfully present for one (1) year or more and who seek admission within ten (10) years of the date of the foreign national’s departure or removal from the United States.

THE PERMANENT BAR Section 212(a)(9)(C)(i)(I) renders inadmissible any alien who has been unlawfully present in the United States for an aggregate period of more than one (1) year and who enters or attempts to reenter the United States without being admitted.

The 3- and 10-year bars section 212(a) (9)(B)(i) of the Act only applies to an alien who has accrued the required amount of unlawful presence during

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any single stay in the United States; the length of the alien’s accrued unlawful presence is not calculated by combining periods of unlawful presence accrued during multiple unlawful stays in the United States.

Under section 212(a)(9)(C)(i)(I) of the Act, the alien’s unlawful presence is counted in the aggregate, i.e. the total amount of unlawful presence time is determined by adding together all periods of time during which an alien was unlawfully present in the United States on or after April 1, 1997.

Therefore, if an alien accrues a total of more than one (1) year of unlawful presence time, whether accrued

during a single stay or during multiple stays, departs the United States, and subsequently reenters or attempts to reenter without admission, he or she is subject to the permanent bar of section 212(a)(9)(C)(i)(I) of the Act. CALCULATING UPD What seems like a straightforward calculation is not. Exceptions exist that the toll the accumulation of UPD: • Applicants with a pending nonfrivolous case filings: a timely filed (when I-94 is filed) and pending application for Extension of Status,

Change of Status, Asylum, and Adjustment of Status will hold off the counting of UPD. Although the foreign national’s I-94 may become expired after filing and they no longer hold any valid immigration status, they are considered to be in a “Period of Stay Authorized by the Attorney General” (POSABAG). Remember: this is not “status.”

During the pendency of such an application, no UPD is accrued.

However, upon denial of the decision, UPD begins to accrue from the time of denial. The UPD does not go back to the expiration date.

Moreover, filing a motion to reopen, reconsider, or Nunc Pro Tunc (NPT) request does not stop the accumulation of UPD. However, upon approval, it does clear the history.

Note that the original regulations tolled the accumulation of UPD for Extension and Change of Status cases for up to 120 days. However, the March 3, 2000, Pearson Memo on Section 222(g) of the Immigration and Nationality Act (Act) extended the tolling for the total time until final adjudication.

• Those admitted for Duration of Status (D/S): typically, F-1 Student Visa holders, but also J-1 Visa holders and “non-controlled” non-immigrants (such as Canadians B-1/B-2 visitors not issued I-94s). In these cases, a violation (such as dropping out from school) will lead to being “out of status”, but UPD accumulation does not begin unless there is a formal finding of status violation by USCIS (normally while adjudicating a request for immigration benefits) or an Immigration Judge determination of violation. UPD accrues the day after such a decision.

Note that the Trump Administration attempted to end this regulatory understanding but gave up after repeated challenges in federal court.

• Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) holders: during the period of obtaining these protections, the recipient will not accrue UPD. However, it does not erase previous accumulation.

• Minors: minors do accrue UPD for the 3- or 10-year bar. However, minors due accumulate UPD for the Permanent Bar calculations.

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the meaning of the statute and hence did not trigger the ground of inadmissibility that bars admission after the accrual of unlawful presence.

Final note: if your client does need to leave the U.S. and trigger a bar, make sure to track the exit, such as the flight and passport stamp. Sometimes they can visit the U.S. Embassy to get evidence of presence outside of the U.S. ABOUT THE AUTHOR

WAIVING THE BAR Basically, the foreign national once leaving the U.S. must stay out for the 3- or 10-year period. However, before leaving a request for a Form I-601A waiver is available to some (and Form I-601 for those already out).

Recently, USCIS2 and the BIA3 determined that a foreign national can run the 3- and 10-year bar while in the U.S. For example, if subject to the 3-year bar and the foreign national is able to reenter the U.S. with their existing B-2 visa. This exception does not apply to the Permanent Bar. A waiver is also available for certain Violence Against Women Act (VAWA) self-petitioners under section 212(a)(9)(C)(iii) of the Act. The 10year absence requirement does not apply to a VAWA self-petitioner who is seeking a waiver under section 212(a)(9)(C)(iii) of the Act, rather than seeking consent to reapply under section 212(a)(9)(C)(ii) of the Act. Generally, there is no “waiver” of the Permanent Bar. However, if they can request a waiver consent to reapply 2 USCIS Policy Alert PA-2022-15, June 24, 2022. Subject: INA 212(a)(9)(B) Policy Manual Guidance https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220624-INA212a9B.pdf 3 Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023) https://www.justice.gov/eoir/page/file/1568471/download

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for admission with Form I-212 after being outside for 10 years.4 Also note that applicants applying for Adjustment of Status in the EB1, EB-2, EB-3 and EB-55 preference categories can still apply even if the I-94 has expired and accumulating UPD for up to 180 days under INA Section 245(k), 8 USC 1255(k). Note that this applies to applicants that were admitted, not paroled, into the U.S. AVOIDING BAR TRIGGERS The key to triggering a bar is exiting the U.S. If the foreign national remains in the U.S, the bars do not come into place. However, an exception was developed under Matter of Arrabally and Yerrabelly (25 I&N Dec. 771, BIA 2012) precedent that permits Advance Parole travel to not trigger the 3- and 10- year bars but not the Permanent Bar. The Board of Immigration Appeals held that travel on advance parole was not a “departure” within 4 As stated by the Board of Immigration Appeals (BIA) in Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), the consent to reapply regulation at 8 CFR 212.2 predates the enactment of section 212(a)(9) (C) of the Act and the related consent to reapply provision in section 212(a)(9)(A)(iii) of the Act. #us, although the filing procedures in 8 CFR 212.2 are still in effect, the substantive requirements of the provisions in section 212(a)(9) of the Act govern during the adjudication of Form 1-212, Application for Permission to Reapply for Admission into the United States After Deportation and Removal; a USCIS adjudicator must consider the specific requirements of section 212(a) (9)(C)(ii) of the Act when adjudicating Form 1-212.

5 Note that the EB-5 category was not included in the original INA 245k statute but was added in the EB-5 Reform and Integrity Act of 2022. https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20221006-EB5ReformAndIntegrityAct.pdf

John Khosravi is the Managing Attorney at JQK Immigration Law Firm. An experienced lawyer and professor, John specializes in cases for international couples, top talent, and corporations. As President of Immigration Lawyers Toolbox®, he’s dedicated to advancing the field through education and training. John has been featured in publications like the New York Times and received numerous “Top Attorney” awards from U.S. News and SuperLawyers.

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Immigration Lawyers Toolbox® Magazine

Immigration Litigation 101 – Effective Communications and Negotiations BRIAN SCOTT GREEN, ESQ.

take a proactive approach to Immigration practitioners often face AUSAs immigration litigation cases.

Brian Scott Green, Esq. briangreen@greenusimmigration.com GreenUSImmigration.com

obstacles in communicating with their “adversaries” in the practice of immigration litigation. After filing a lawsuit and properly serving it, we may not know who to communicate with to potentially resolve the litigation. This article will offer suggestions not just about how to determine who is assigned to defend a federal court matter, but best practices for effective communications and negotiations with everyone involved in the process.

HOW TO FIND YOUR AUSA OR OIL TRIAL ATTORNEY Once you have properly served each defendant in your lawsuit, the Attorney General of the U.S., and the local U.S. Attorney’s Office (“USAO”) (under Federal Rule of Civil Procedure Rule 4), you may be surprised when an Assistant U.S. Attorney (“AUSA”) promptly enters their appearance with the court. This is great because the Notice of Appearance will include their signature block and their email address. Their email address will also be reflected on the federal court’s docket (available through the Electronic Case Filing or “ECF” system), and on the electronic Notice of Electronic Filing (“NEF”) email that you receive from the court. This is most common with less busy U.S. Attorney’s Offices or offices where

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In very busy U.S. Attorney’s Offices, such as those in the U.S. Districts for Washington, D.C. (“DDC”) and the Central District of California (“CDCA”), an AUSA may not enter an appearance and only communicate on the lawsuit close to the defendants’ 60-day deadline. In these situations, the private bar litigator needs to determine which AUSA or U.S. Department of Justice Office of Immigration Litigation (“OIL”) Trial Attorney. My suggested best practice is email the Chief AUSA (or the Deputy Chiefs in larger USAO offices), attaching a courtesy copy of the summons and lawsuit (after service has been completed) and ask to be notified when an AUSA has been assigned to the matter. Some USAO web pages list the name of the Chief of the Civil Division, and some do not.

If the Chief’s name is not available through the USAO website, LinkedIn, or online searches, you can simply call the USAO’s public telephone number and ask for their name. Once you have the Chief’s name, you can search for the Chief through the court’s PACER system. You will likely find hundreds of lawsuits listed under the Chief’s name, each with their telephone number and email address. I recommend against “coldcalling” a busy Chief or any AUSA on a recently filed and served lawsuit.

Issue No. 7 | Winter/Spring Edition | 2023

The best approach is a succinct email with a clear request for action (“Please have the AUSA that is assigned to this matter contact me at their earliest convenience.”) Calling a Chief or AUSA at 4pm on a Friday should result in a less than thrilled response.

DOJ Email Addresses AUSAs and OIL attorneys are all employed by the U.S. Department of Justice (“DOJ”) and their email address following the same format: firstname.lastname@usdoj.gov.

If there are multiple people employed

by DOJ with the same first and last name, the resulting emails may have a middle initial or a number included in it. A check of the PACER system will show the street address and email address for any AUSA and OIL attorney, eliminating the risk of emailing the wrong attorney.

KNOW YOUR AUDIENCE The first step to effective communications and negotiations is to think critically before hitting the “send” button on your email. All communications should be polite,

professional, and goal-oriented toward resolving your client’s immigration issue (whether resolving an agency delay or reversing an incorrect USCIS denial). It may be easier (and satisfying in the short-term) to send a caustic email criticizing an AUSA for “your failure” to do something. Keep in mind that AUSAs and OIL trial attorneys are just that – attorneys.

Just like you and I are. They are not the defendant in a federal lawsuit.

They represent clients, just like we do. So by confusing defendants and their attorneys (who work for different federal agencies that those that employ the USCIS adjudicators or U.S. Department of State embassy, consulate, and National Visa Center staff), we show our lack of experience, knowledge, and care.

employment discrimination, prisoner civil rights cases, the list goes on and on. They handle motions, depositions, and court appearances on a daily basis, and have far more court exposure than basically any immigration litigator in the U.S. They know the Federal Rules of Civil Procedure and the local rules for their dedicated U.S. District Court better than you and I. But they may have limited understanding of the various practice areas in U.S. immigration. You may have much deeper knowledge of humanitarian, business, family, or other subareas of U.S. immigration. For this reason, you need to dispense with the “immigration lawyer short-hand” and instead of just mentioning that a client is “aging-out” or has a “CSPA issue,” write your email in language that can be understood by a nonimmigration

It is important to understand how immigration litigation fits into the portfolio of cases that AUSAs handle.

AUSAs are the “general practitioners” of the federal court system. They handle every type of civil litigation faced by the U.S. government – medical malpractice, slip and fall,

lawyer.

Keeping in mind that the AUSA is not an expert on immigration law, and that the actual client is the USCIS or U.S. Department of State (“DOS”) attorneyadvisor assigned internally to handle the lawsuit, the ideal email is one that

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the AUSA can both understand and directly and quickly forward to the USCIS attorney-advisor. A full and candid explanation, with attachments included, makes it easier and quicker to reach a resolution.

from home in Virginia, Maryland, Pennsylvania, or even more distant locations, and 2) that the plaintiff and his family were suffering from delays in not just their I-526 petition, but from three I-131 applications and one I-765 application.

KNOW YOUR CLIENT Effective communication with your client also increases the chances and opportunities for resolution of both your client’s problems and the federal lawsuit brought on their behalf.

During the course of litigation, our clients’ priorities and interests can and do change. In a lawsuit that I am handling, a Zoom meeting led me to the conclusion that shortterm problems were causing more immediate harm than the client’s longterm delay concern. The client sued over a delayed I-526 EB-5 petition and the AUSA assigned to defend the lawsuit communicated USCIS’s current intent to transfer all such lawsuits to the U.S. District Court in Washington, D.C. (where judges are granting motions to dismiss such matters). When updated, the client was upset that his lawsuit was not yet resolved and that a transfer might be a longer delay or even a dismissal of his claims. During our Zoom meeting, the client shared that “the delay” was preventing him from handling work projects in his home country. I did not expect that this was the cause of his strong emotions. When we filed his Writ of Mandamus/Administrative Procedure Act (“WOM” and “APA”) lawsuit, he and his family had I-485, I-131, and one I-765 applications pending with USCIS. At the time of filing, these applications had only been pending for a couple of months and were not ripe for litigation. By the time of our Zoom meeting, the I-131 Advance Parole applications had been pending for 7 months and the client was suffering professional and economic harm from those delays. With this revelation in hand, I emailed the AUSA and explained that, 1) we opposed transfer to the DDC because the USCIS officers at the Immigrant Investor Program Officer (“IIPO”) were likely working

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EVERY COMMUNICATION IS AN OPPORTUNITY The local rules required the AUSA to “meet-and-confer” with us to discuss her proposed motion to change venue, and this provided another opportunity for constructive and goal-oriented communication and negotiation. The result here has been that the client feels heard by his attorneys, the AUSA is consulting with USCIS about a transfer of the lawsuit to the Central District of California (because we may very well overcome the motion, thanks to the legal strategy shared by attorney Tammy Fox-Isicoff and my pending Freedom of Information Act (“FOIA”) request seeking data from the USCIS IIPO on where its EB-5 adjudicators are currently working from by county and state), and the AUSA is contacting USCIS to request that the client and his family’s I-131 applications and I-765 application be adjudicated. Thanks also to attorney Adam Rosen for his input on the drafting of an effective FOIA request.

Calm, Calculated, and Courteous In my EB-5 litigation, this specific AUSA requested a 60-day extension to accommodate her pre-approved leave, and to give USCIS time to consider the proposed transfer to CDCA by joint stipulation and to adjudicate the delayed applications. This extension also gives USCIS the opportunity to adjudicate the I-526 petition and resolve the lawsuit with one decision.

While the client was stunned that we would consider agreeing to any extension in his delay case, I explained that the judge in charge of the case would 100% grant an opposed motion for continuance under these circumstances and that such a legal position would reflect poorly on us.

In fact, opposing a reasonable request for a continuance may lead the court to more favorably consider a motion

to transfer the lawsuit to another jurisdiction. When faced with this reality and the palliative request for adjudication of his and his family’s I-131 and I-765 applications, the client accepted the situation and agreed with our suggestions. Aggressive and insensitive accusations and recriminations will not produce the results this client is seeking to his immigration delays. But focused, polite, and thoughtful negotiations may yet resolve some, or maybe all, of his problems.

CONCLUSION Back in the dark days of my 1L year in Cleveland, my Civil Procedure professor concluded his last lecture with the caution that, “You can practice law like hockey players or figure skaters. I hope that you choose to be figure skaters.” His insight makes more sense to me each day that I practice in the field of immigration litigation.

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.

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Immigration Lawyers Toolbox® Magazine

Consular Processing Updates and Trends JESSIE MARIE SCHREIER, ESQ.

Ever since March of 2020, the Department of State’s consular operations have been in a constant state of flux.

Jessie Marie Schreier, Esq. jschreier@kktplaw.com kktplaw.com

Just a few months another Consulate shutdown was announced; all U.S. Consular operations in China severely limited, ceased, or restricted their services to emergent offerings only. U.S. Consulates General Wuhan, Shenyang, and Guangzhou announced that they would only be providing emergency consular services until further notice. To date, further notice has not been published.

U.S. Consular posts in Colombia, India, and Mexico continue to see extreme consular delays.

The Consular post in Havana has resumed processing immigrant visa cases; however, all cases previously assigned to the U.S. Consulate in Georgetown must continue to process there.

Backlogs are at unprecedented levels, however; several key positive developments have been announced.

Announcements in 2023 have sparked new discussions of stateside processing, resumption of services at the U.S. Consulate in Bogota, and the continued use of the interview waiver program.

This update seeks to review some promising developments for

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improved consular services, offer a lookback at where consular services were a year ago, and provide some ideas about where to start a search for an alternative consulate should your client not be able to return to their home country.

COMPARING FEBRUARY 2023 TO FEBRUARY 2022 February 2023 saw an almost 100% increase in the number of nonimmigrant visas issued worldwide as compared to February 2022.

The State Department reports that 853,572 nonimmigrant visas were issued in February 2023 compared to just 484,571 in February 2022.

Consular posts in Mexico collectively issued the highest number of visas in February, with Border Crossing Cards from Mexican posts comprising almost 125,000 of the total nonimmigrant visas issued worldwide for the month. Second to Mexico in number of nonimmigrant visas issued for the month of February 2023 was, (shockingly), Bogota, with 33,212 B1/B2 visas issued in February.

Immigrant visas, on the other hand, remained a bit stagnant from a yearto-year comparison. February 2022 saw 35,942 immigrant visas issued worldwide, and February 2023 saw only a slight increase with 46,951

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visas issued for the month.

Likely an illustration of the nonimmigrant interview waiver program’s success, the incredible increase in nonimmigrant visa issuances is impressive.

The Department of State has announced that initial nonimmigrant visa interview waivers will continue to be offered to qualified applicants through December 31, 2023, along with the indefinite interview waiver for qualified nonimmigrant visa renewal applications.

The NVC’s monthly immigrant visa backlog report shows a slight improvement between February 2022 and 2023. The backlog of eligible immigrant visa applicants pending interview has decreased by 19,292 applicants in a year’s time. However, the number of documentarily qualified, or complete, applicants scheduled for interview in the month of February was higher in 2023, with 8,918 interviews scheduled in February 2023. This is a positive development; 8.17% of the total immigrant visa cases in line for interview were scheduled for interviews in February 2023 as compared to just 5.91% of backlogged cases scheduled for interviews in February 2022.

Unfortunately, the bulk of programs announced to improve consular processing delays are targeted towards nonimmigrant visa applications.

Additionally, increasingly long delays in adjudication of I-601A provisional stateside waivers have likely aggravated the already slow immigrant visa adjudication process.

UPDATES AND ANALYSIS Bogota is back!

The U.S. Consulate in Bogota has continued to be one of the most backlogged consulates following its complete shutdown of operations in September 2020. Last month, the Post stated that E-2 visa processing would resume through a last-in first-out basis. However, the wait for an initial

B1/B2 interview shows to be over two-years per the State Department’s report issued on April 3, 2023.

B1/B2s continue to be the most backlogged of all nonimmigrant visa categories worldwide. After Bogota, Mexico leads the line with 4 posts reporting interview wait times for B1/ B2 initial interviews of over 600 days.

Stateside H-1B and L visa renewal programs, which were part of the stateside waiver programs discontinued in 2004, will return this year per the Department of State.

While the details have yet to be publicized, this will be a huge benefit to the H-1B program particularly for applicants that are only eligible to apply for a visa stamping in India.

CREATIVE OPTIONS FOR THIRD COUNTRY PROCESSING If your client cannot return to their home country and is required to attend an interview, third country processing may be an option. At the time of this article, Cuban and Venezuelan nationals who reside in Cuba or Venezuela are eligible to apply in Mexico for a nonimmigrant visa appointment. Typically, and foreign national residing in a third country with a lawful student, employment, or humanitarian immigration status may apply in that country for an immigrant or nonimmigrant visa category.

Practitioners may also consider investigating any options for derivative citizenship in third countries to ease an applicant’s wait

time, although any investment-based nationality programs should be thoroughly evaluated in conjunction with the new requirements for E visa treaty-based applications.

Due to changing consular procedures, it is recommended that any applicant seeking to apply for a U.S. visa in a third country either call or email the Consulate to confirm eligibility.

Reports of nonimmigrant visa applicants who have successfully scheduled visa interviews in third countries have been turned away at their visa interviews with a statement from the consular officer that their post is not in fact adjudicating the particular visa category.

Another word of caution: be sure to refer any client seeking to enter a third country for a visa appointment to an immigration attorney specializing in that country’s visa requirements for a careful analysis of the entry requirements, and of course double and triple check that their passport validity covers at least the next 180-day period. Finally, be sure to carefully and consistently review the information on the Department of State’s web page for each consular location that you are practicing before, along with the corresponding information for the visa application service that the particular consulate uses.

Source: https://travel.state.gov/ content/travel/en/legal/visa-law0/ v is a- s t ati s ti cs /imm ig r a n t - v i s a statistics/monthly-immigrant-visaissuances.html ABOUT THE AUTHOR Jessie Marie Schreier is an associate attorney at Kurzban Kurzban Tetzeli & Pratt, P.A. Her practice focuses on a variety of immigration areas including family-based immigration, removal and deportation defense, consular processing, U.S. citizenship issues, federal court litigation, investor visas, intracompany transferees, and humanitarian relief.

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Immigration Lawyers Toolbox® Magazine

The Rocket Science of the I-824

ANNA SERGEEVA, ESQ.

Anna Sergeeva, Esq. Anna@JQKLaw.com JQKLaw.com

After doing several videos addressing

when dealing with I-824 cases.

the challenges surrounding Form I-824, our firm found itself inundated with self-filers affected by incorrectly filed Form I-130s. We sadly receive daily emails from families that are trapped in this scenario. Along with that, we have seen many colleagues struggle with handling I-824 cases.

I hope that this article proves to be a helpful resource.

1. Know that you can file the I-824 concurrently with the I-485 application1. This can speed up the process and, importantly, serve the “sought to acquire” requirement for the Child Status Protection Act (CSPA), protecting potential age-out children.

The I-824 is an Application for Action on an Approved Application or Petition. In a nutshell, if any extra work is needed on an already approved USCIS case, then the I-824 is what you need.

2. I-824 timelines are all over the place. We have had approvals in 4 weeks and others pending over 20 months. Even after approval, USCIS sometimes does not follow through and transfer the file to the National Visa Center, causing months and months of more delay and additional legal hours.

Typically, you will be hired to handle Form I-824 in one of these two contexts:

3. Make sure that you use the correct underlying application basis for the I-824.

1. I-130 family petitioners that mistakenly requested adjustment of status at a local USCIS Field Office, instead of immigrant visa processing abroad through the embassy; 2. Clients that adjusted status, usually in one of the employmentbased categories, where the primary applicant’s derivatives are abroad and need to do “follow-to-join.”

a. If requesting an approved I-140 be sent to the NVC, the petitioning employer must sign/submit the I-824;

WHAT IS FORM I-824?

AND HOW TO DEAL WITH IT? A few crucial points to keep in mind

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b. However, if filing the I-824 with an I-485 (for follow-to-join), the applicant would sign/submit the I-824.

ARE THERE ANY ALTERNATIVES? There are a few options you may 1 USCIS Policy Manual, Volume 7 , Part A , Chapter 7 , FN4 5 : https://www.uscis.gov/policy - manual/volume - 7 - part - a - chapter - 7#footnote-45

Issue No. 7 | Winter/Spring Edition | 2023

try before filing an I-824. If we are talking about the “follow-to-join” scenario, we always offer to file an I-130 petition in addition to the I-824 because we don’t know whether the I-824 follow-to-join or the I-130 will get adjudicated faster. Note that your clients will be going under the F2A category in the Visa Bulletin, which recently retrogressed. If your lawful permanent resident client’s I-130 gets approved before the I-824, and if the F2A category is still not current, there will be more delays.

On the other hand, the I-824 followto-join case retains the priority date of the principal applicant. At the same time, because of the backlogs we are currently seeing, marriage-based immigrant visa cases have priority over employment-based cases. Thus, the I-824 processing, post-processing,

I-130,2 leaving both options blank, or requesting adjustment of status only), you can try to correct the error. The client (or you if you are the attorney of record) can send a letter listing the correction to the USCIS Service Center where the petition is pending.

USCIS oftentimes transfers filings without notifying the parties, so it may be good to call USCIS’ 1-800 number to confirm the current location of the petition. In the correction letter, please make sure to clearly indicate that the petitioner is requesting processing through the embassy in a foreign country.

2. If the case made its way to you shortly after the I-130 was approved, and the client received an approval notice saying that USCIS is retaining the petition and asking the client to file Form I-824, do not yet file the

write a message through the myUSCIS online account; d. Write NVC through the Ask NVC feature on their website so that they request the case from USCIS; e. Email NVC at NVCResearch@ state.gov with the same inquiry; f. Seek help from a congressperson.

All the above may work even without filing the I-824. Sometimes, it is still a good practice to file the I-824 asap so as to lock the child’s age for the CSPA purposes.

As a practical consideration, in one of our cases, USCIS even issued a second approval notice with the new date and the language saying that USCIS sent the petition to the National Visa Center. We tried several different approaches in that case, and we really don’t know which one of them actually did the job.

The I-824 is not as easy as it may seem.

In reality, it is a crucial application that can potentially take years to complete, causing families to remain separated throughout the process.

ABOUT THE AUTHOR

and interview appointment delays (including Visa Bulletin retrogression) can lead to more than a year or two of delays.

Therefore, in most cases, it is prudent to offer both options in hopes that one of them will make it faster.

The mistake on the I-130 scenario brings in more alternatives.

1. If the client reached out to you while the I-130 petition is still pending, and you spotted an error in the processing location (requesting both adjustment of status and consular processing options on page 8 of Form

I-824. We tried all of the following strategies, and they worked in some cases, but not all: a. Call USCIS at 1-800 and tell them that the petitioner made a mistake on the I-130 and ask them to move the case to the National Visa Center for further processing. Surprisingly, it may work; b. You can make the same request through “Ask Emma” on the USCIS’ website; c. If Form I-130 was filed online,

Anna is a senior associate immigration attorney at JQK Law Firm, headquartered in Los Angeles, CA. As a first-generation immigrant from Belarus, Anna is passionate about immigration law. She primarily practices in the fields of family and employment-based immigration.

Before receiving a Master of Laws (LL.M.) degree from William & Mary Law School, Anna obtained her first law degree from Belarusian State University in Minsk, Belarus.

Anna is a member of the American Immigration Lawyers Association (AILA) and admitted to the District of Columbia Bar. Anna loves playing tennis, dancing, gardening, and going on hikes with her husband and two sons.

2 Form I-130, Petition for Alien Relative, Edition 07/20/21: https://www.uscis.gov/sites/default/files/document/forms/i-130.pd

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Immigration Lawyers Toolbox® Magazine

Primer on H-2B Temporary Non-Agricultural Workers MEAGAN KIRCHNER, ESQ.

A BRIEF HISTORY

Meagan Kirchner, Esq. Meagan@wyngaardlaw.com www.wyngaardlaw.com

U.S. businesses are struggling across skilled and unskilled industries to fill crucial labor gaps. As many small businesses and immigration practitioners know, visa options for what USCIS deems “unskilled” positions are severely limited. We frequently field calls from businesses trying to fill critical positions.

However, prospective clients quickly find that if the position doesn’t require a degree, the only year-round option is to pursue a green card via the PERM process. With current processing times for unskilled workers pushing 3-5 years, the delay and costliness of that process is not a viable option for many employers.

The only option for unskilled labor is one of the H-2 visas, if your client can meet the seasonality requirement.

Many of us are familiar with the H-2A visa for agricultural jobs, which is uncapped. However, clients in most industries do not meet the requirements to be considered agricultural, leaving many employers to struggle with severe labor shortages during their busiest seasons. Some common H-2B industries are hospitality, landscaping, construction, forestry, seafood and meat processing, traveling carnivals, and restaurants. H-2B visas have been capped at just 66,000 per year since 1990. The numbers are divided

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into two periods: 33,000 are reserved for the employment period from October 1 through March 31 (1st half of fiscal year or FY), and 33,000 for April 1 through September 30 (2nd half of FY). Theoretically, this ensures employers, regardless of when their temporary need begins, have an opportunity for H-2B visa numbers. In practice, availability for the second half of the fiscal year is limited to those with April 1st start dates, absent qualifying for capexempt workers, and the window for “beating the cap” for the first half of the fiscal year shrinks every season as more employers seek October 1st start dates.

The labor market has changed dramatically since the H-2B cap was implemented. Demand far outpaces supply for the annual H-2B visa limit. Given that no other visas are available for lesser-skilled workers in year-round occupations, this supply is further strained as more and more businesses try to squeeze workers into this category. In an attempt to remedy this issue, the Departments of Homeland Security (DHS) and Labor (DOL) in recent years have announced a joint temporary final rule releasing additional or “supplemental” visas for the 2nd half of the fiscal year. FY2022 was the first time supplemental visas were announced for the 1st half of the fiscal year. The timing, amount, and eligibility requirements for

Issue No. 7 | Winter/Spring Edition | 2023

supplemental visas have varied from year to year. The filing process is essentially the same as the primary cap, with additional hoops for employers to jump through to meet compliance requirements. Employers using supplemental visas are also more likely to receive an audit from DOL. WHO QUALIFIES FOR AN H-2B? An H-2B visa covers temporary employment for periods up to 10 months. The definition of temporary in the immigration regulations is up to one year or less, but DOL has an established practice that any request for employment exceeding ten months is not temporary unless it is a case of a one-time occurrence. With that being said, an employer can establish a temporary need under any one of the following scenarios: 1.

2.

3.

4.

one-time occurrence; seasonal need; peak load need; intermittent need.

only operate from April to December and shutter the business for the winter months. A landscaper could be peak load as well. In that case, the client would employ workers in the designated occupation all year but would see an objective peak during a portion of the year.

It’s important to remember that H-2Bs can also address a one-time need/ occurrence. Nannies and caretakers are good examples. These require a demonstrable one-time event. For example, end-of-life services for a terminal illness or surgery could qualify. The birth of a new baby is another possible one-time need.

While certainly not the most common use of an H-2B visa, it can be a viable option for some clients needing shortterm help.

TIMELINES AND FILING PROCEDURES Bringing workers into the United States under the H-2B program is a multiagency process involving DOL, USCIS, and the Department of State (DOS). The H-2B visa cap is exceeded

Step 1: The first step is obtaining a Prevailing Wage Determination (PWD) with DOL for each position and location. Like the PERM process, you can only file the next step in the H-2B process if you obtain a PWD. Historically, PWD only took about 30 days to process for H-2Bs. However, case processing times have been listed as about 45 days in the past year. In reality, many PWDs have taken closer to 60 days to process. The best practice is to file your PWDs on July 1, when DOL releases its prevailing wages for the upcoming fiscal year.

A PWD issued after July 1 is valid through June 30 of the following year unless the PWD is issued after March 30 of the fiscal year, which are only valid for 90 days. *Practice Pointer: Use O*NET to your advantage. Where possible, it is tremendously helpful to adhere to O*NET’s job duties for your designated occupation. Any deviation leaves room for either a Request for Information on your ETA 9141 or, worse, a Notice of Deficiency on your ETA 9142B.

Step 2: The next step is to file the 9142B temporary labor certification application with DOL and prepare the State Workforce Agency (SWA) Job Order. The 9142B application process can be filed 90-75 days before the date of need, but due to the insufficient number of visas, most applications are filed immediately after the 90-day filing window opens. This places the earliest filing date as July 3rd for the first half of the FY and January 1st for the 2nd half of the FY visa allotment.

The most common types of H-2B applications are for either seasonal or peak load need. For a seasonal need, the labor would be limited to a certain period of the year and not year-round. An example would be paving contractors or landscapers that

year after year. Accordingly, timing is everything. The process for an H-2B visa takes at least seven months but is often substantially longer, depending upon the employer’s group placement and the filing timeline for any potential supplemental visas.

The 9142B application is the most important and time-sensitive step in the process. Due to the extremely high volume of filings on January 1st, DOL has tried several different mechanisms for case processing. The most recent iteration is a randomization procedure or lottery. DOL takes filings for April 1st start dates from January 1-3.

Then on January 4th, they conduct a computerized randomization procedure, which assigns all petitions filed between 1/1-1/3 with a start date of April 1 into Group A, B, C, D, etc.

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approval of a challenging filing. The SoN is also important to explain any substantive change from prior filings, such as dates of need or the number of workers.

Step 3: DOL will process the cases in order by group assignment. The first action will either be a Notice of Acceptance (NOA), which triggers recruitment, or a Notice of Deficiency (NOD) requesting additional information. In 2023, the first action for the last group did not happen until early April. Upon receipt of the NOA, DOL will instruct the employer to conduct recruitment. Employers must post the Notice of Filing for 15 business days, which equates to just over two weeks for an employer operating seven days a week and over three weeks operating five days per week.

While USCIS is the agency that administers the cap/visa numbers, in the H-2B world, the randomization procedures dictate a client’s likelihood of success. Think of it as akin to the H-1B lottery, only in the H-2B context, you have already prepared essentially an entire application before knowing if your client will be successful in the lottery. Since 2019, DOL has assigned enough applications in Group A to meet the 33,000-visa cap, in theory, at least if all applications were successful and without error. In reality, the primary cap will last through Group A and a portion of lucky Group B employers.

The randomization procedure at DOL puts a lot of pressure on attorneys to get the applications right the first time. Group A applications could fall behind those in later groups if the employer is dinged with a notice of deficiency, thereby delaying the submission of its petition to USCIS. Remember, a labor shortage alone is not enough. Every employer thinking about the H-2B program has a worker shortage. You must establish that the need is temporary and then show that

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it falls into a specific classification. If you only note that the client cannot find enough staff to do the job without providing the evidence mentioned below, you will almost certainly receive a Notice of Deficiency. The key supporting documents needed for the 9142B are the Statement of Need (SoN), G-28, a copy of the SWA job order, signed 9142B Appendix B, Recruiter Agreement, if applicable, as well as documents to establish the temporary need such as contracts, payroll charts/reports, client lists, corporate documents (registration, brochure, etc.), IRS 941s, tax filings, revenue charts, invoices, Purchase orders, etc. *Practice Pointer: Be sure to pay attention to the version of the documents being submitted. The Appendix B must be the current version.

Additionally, an Appendix B must be signed and dated recently; a prior signed version will be rejected.

The SoN is central to laying the roadmap for DOL to understand the client’s type of filing (peak load, seasonal, etc.), dates of need, business and industry, and workforce needs. A well-written SoN can set the stage for

Once you have submitted your recruitment report to the DOL, the DOL will take the final step to certify or not certify the application.

Usually, the certification is issued the same day, but some outliers take upwards of a week to certify.

Step 4: The H-2B process is a race to the finish in the hope of beating the cap or locking in supplemental visas.

You must be prepared to send the petition once you receive the certified 9142B. Given the short seasons, nearly all I-129 applications are filed with premium processing.

Step 5: If USCIS approves a petition, employers can schedule consulate appointments. Backlogs in consular appointments often further delay the arrival of workers. *Practice Pointer: It is best to have the DS-160 nonimmigrant visa applications prepared and ready for submission before receiving the approval notice from USCIS. This will expedite the consular appointment process. At a minimum, the client should have the workers’ names and contact information ready by the time USCIS receipts the case.

Issue No. 7 | Winter/Spring Edition | 2023

COMMON PROGRAM CHALLENGES While not officially targeted, certain job categories do, in practice, have a more difficult time passing muster with DOL. These often include regional trucking clients and the construction industry, particularly in warmer climates. These applications can be successful but require careful drafting and supporting documentation. Despite best efforts and a well-tailored petition, DOL still may issue a NOD for cases that are not overtly seasonal.

Compliance is essential in the H2B program and must not be overlooked.

Compliance requirements are the most complex and expensive of H-2B’s rules. It is a challenging topic as many employers only want to focus on when they can get H-2B workers.

However, fully informing them of their responsibilities to the program will save them if faced with an OFLC or Wage and Hour audit. Many employers are small businesses that have limited administrative procedures in place. It can be a huge task to get them set up to meet the requisite H2B compliance requirements, such as detailed payroll records, the ¾ guarantee, and corresponding employment.

The three-quarters guarantee imposes a significant risk for employers if a job completes early or cannot start on time, which is difficult to predict months in advance. The corresponding employment rule is a very costly H-2B requirement because it imposes the H-2B program’s major costs on the entire workforce in the area, mandating the inflated PWD and benefits to nearly all similar U.S. employees. These are, of course, not all of the H-2B compliance requirements, but they illustrate some challenges clients face when maintaining strict H-2B compliance.

PRACTICAL TIPS I want to leave you with a few practical tips when preparing H-2B applications:

• Be sure to avoid possible duplicate filings. Some employers may have multiple locations requiring filing more than one application if the locations are not within normal commuting distance of each other.

This has been a common issue for many employers in recent years. At the 9142B stage, DOL will withdraw the 9142B filed later if it finds that you have filed a duplicate application.

If your two applications land in Group F and A, you will lose the Group A application by failing to show that the two filings are separate and distinct.

• Triple-check your 9142B filings and uploads. Do your job order and 9142B match? Did your attachments save to FLAG? Do your attachments appear complete if you download them?

Given the time-sensitive nature of the process, any error can effectively be a death knell to your client. Delays from a NOD can mean the difference between making the cap or missing it.

• Review all details ad nauseam with the client, focusing on special requirements and deductions. Despite numerous phone calls and emails, it’s so common that clients will suddenly have a drug test or benefit they want to use or offer. Unfortunately, once filed, they will be limited to the terms and conditions outlined in the job order and 9142B. • Beware of common violations: improper deductions; performance of duties outside the scope of ETA 9142B; wage-related violations; improper rejection of U.S. workers during recruitment; and preferential treatment of H-2B workers over U.S. workers are common issues in the H-2B program.

• Research reputable agents/recruiters for sourcing and processing workers. El Salvador and Guatemala’s governments have official offices for this purpose, and the service is free to employers. One of the biggest mental hurdles for clients is how they will find workers. Once you alleviate that aspect of the process, you may retain more clients.

• Prepare your client for contingency plans. Workers may arrive late, if at all. Based on recent filing trends, there is a high probability of missing the primary and supplemental cap. No one likes to have an unhappy client.

Your client needs to be mentally prepared for either outcome with the knowledge that we have no control over the randomization procedures for group assignments, which largely dictate whether or not you get workers ahead of the visas being exhausted.

With only about 25% of applicants beating the cap, it can be tough to retain clients using the H-2B visa.

Many employers cannot use the program given that the cap is too low, the costs are too high, and the process is too long and cumbersome to navigate. When faced with a multiyear wait for a possible green card, it’s the only option left for many employers. Don’t sugarcoat the process. Clients must understand that it’s a long process, and we have little control over the outcome. We can only prepare the best application and legal argument and hope for a lucky draw in the lottery. For most employers, the possible benefits and productivity outweigh the costs and delays.

ABOUT THE AUTHOR Meagan Kirchner is an immigration attorney based in Charlottesville, VA. Meagan has practiced immigration law for over eight years. Her current practice focuses primarily on H-2B visas. She has also practiced in other areas of business immigration, mainly representing corporate clients pursuing H, TN, O, and L nonimmigrant classification. During her early practice years, she largely practiced EB-1A and EB-5 petitions.

She has represented clients in various industries, such as agriculture, trucking, landscaping, hospitality, healthcare, IT, engineering, and finance.

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L-1 Visa Processing for Canadians MICHAEL WILK, ESQ.

principal applicant travels with Are you tired of the delays, the dependents, they should bring valid

Michael Wilk, Esq. Michael@wilklegal.com wilklegal.com

frustrations, and “kitchen sink” RFEs when applying for L-1 visas? There is a better way! All you need is a Canadian passport and the means to travel to a Canadian airport or Port of Entry to the U.S. Before booking your client’s travel, there are a number of key factors to consider. To cover all the major points, let’s take the approach of asking who, what, where, and so on.

LET’S START WITH THE “WHO” QUESTION

This is for Canadians only. Dual citizens with valid Canadian passports also qualify. However, the non-Canadian spouses/dependents of Canadian L-1 visa holders cannot process their applications for entry at the border/airport. This is for firsttime L-1 applications or “intermittent” L-1 renewal applications – folks who spend less than half the year (every year) in the U.S. in L-1 status. Other renewals/extensions must go through USCIS first.

An important thing to remember for intermittent L-1 renewals is to keep detailed travel records. For Canadians especially, it is difficult to rely on the CBP-generated travel history for an accurate picture of entries and departures; it should always be paired with the applicant’s own records. If

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passports and original marriage/birth certificates (with certified English translations, if applicable) to prove the relationship. CBP requires no USCIS forms to issue dependent L-2 status to spouses and/or children.

NEXT QUESTION: “WHAT?” As in, what do I give to the CBP officers? The basic elements of the L-1 case (i.e., USCIS forms, support letters, corporate documents, and personal documents) are all present, but a modified approach is key.

Specifically, you need to know your audience. A CBP officer is tasked with deciding on the spot: approve or deny.

They don’t have the same luxury as USCIS to issue RFEs. The attorney’s job is to make these documents simple and direct, leading the CBP officer to an easy approval. In USCIS cases, developing a robust record with many exhibits is preferable, making it difficult for an officer to find a reason to issue an RFE (or to have a solid case on appeal, if needed). Whereas, with CBP cases, adding simplified diagrams or excerpts into clearly labeled and organized letters has been more successful. Different attorneys will have different approaches, but it’s also wise to submit everything in duplicate, even with the new USCIS

Issue No. 7 | Winter/Spring Edition | 2023

policy doing away with the duplicate filing requirement. And how about scanned signatures? This is a bit more of a gray area. For the most urgent cases, I still send everything with wet-ink-on-paper signatures just to be safe.

ports of entry and preclearance locations designated for “optimized processing” of L-1 (and TN) applications; that list can be found here: https://www.cbp.gov/travel/ canadian-and-mexican-citizens/ traveling-tn-or-l1-visa-canada

LET’S NOW ASK: “WHERE?”

NEXT QUESTION: “WHEN?”

This one’s easy: any Canadian port of entry (POE) or pre-flight inspection (PFI). (One caveat: not all ports/posts are created equal! Please speak with local practitioners for information on which case types are problematic in which locations. There’s always a

The worst border application experiences have happened during late nights, weekends, and holidays.

Perhaps unsurprisingly, these “bad” times also align with the officers’ schedules with the least experience/ seniority. For this reason, you should

trend popping up in one location or another.) Please also note that some land border locations require an appointment while others do not. For a listing of the ports/locations requiring an advance appointment, please visit https://www.cbp.gov/contact/ports to find the contact information for the specific port where your client will present their application.

advise clients to book their travel for a time when they can apply in the morning or afternoon on a weekday and at least 3-4 hours before their flight departure time if traveling by air.

Yes, you can make the appointment for your client. CBP also has specific

Regarding scheduling, a common question from clients is, “can I just go to the airport/border to apply for the visa at a time convenient for me and then go back home?” Most CBP officers take the position that the

applicant must travel to the United States to work to have the application approved. In the odd circumstance of a canceled flight or other emergency making travel impossible, the L-1 stamp in the passport is not revoked or canceled if the applicant fails to enter the U.S. in L-1 status immediately after approval (though `I’ve only had this happen once in 12 years).

“WHY” DO ALL THIS? This might be your best bet for clients who like saving time (and for attorneys who like avoiding RFEs).

In the same breath, we can ask, why

not? In other words, when would you avoid sending a Canadian citizen to the border? If your client’s case is particularly complex or if you are making legal arguments, it would be best to go to USCIS first. Sometimes, your clients should still go the USCIS route if the applicant has a lower level of English skill or gets very nervous under pressure, indicating that they would have a more difficult time making an application to CBP than carrying the L-1 approval notice with

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Please also be sure to take care of several post-travel items. First, check to see if the I-94 is correct. Also, make sure to advise your client that their NEXUS membership will need to be updated with their L-1 approval notice (if applicable). In the unlikely event that your client has an issue or is refused, advise them to take note of the officer’s name and try to learn as much as possible regarding the reasons for approval.

While this is only a summary of the process, you should be well on your way to helping your Canadian clients with this option. Good luck and bon voyage!

ABOUT THE AUTHOR

them. Processing L-1 cases at the POE/PFI does require the applicant to answer questions and advocate for themself. Remember: Canadian citizens are visa exempt for the L-1 category.

FINALLY, “HOW?” At land borders, the client drives to an eligible port of entry and informs the officer at the window: “I am here to apply for L-1 status.” After that, they are directed to a parking area, and they go into the CBP office to hand over their application for review and answer questions. By air, the client makes the same statement in the CBP line. They are then escorted to the CBP office to hand over their application for review and answer questions.

As often as possible, you should do a one-on-one prep session with your client before they travel, where you cover the major points of the application process, tell them what to watch out for, discuss any questions or issues that might arise based on the

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particulars of their case, and remind them of their limited right to privacy concerning electronic devices.

Once the interview portion of the application is over, a few things happen. First, your client pays the USCIS fees. This is the fastest and easiest when done by credit card.

Next, the CBP officer will enter an electronic record of approval that appears when the client’s passport is scanned. Most of the time, they also receive an ink stamp in their passport with the entry date, expiration date, L-1 classification, and any notes the officer deems necessary. The CBP officer should keep both the original application and the duplicate, though sometimes they give the supporting documentation back to the applicant and keep only the USCIS forms and attorney letters (to the chagrin of attorneys everywhere). After several weeks/months, you and/or your client receive the USCIS receipt and approval notices.

Michael Wilk is the Owner of Wilk Legal PLLC. Since 2010, Michael has specialized in business immigration law and compliance matters, especially in complex and writing-intensive cases. His experience in immigration involves nonimmigrant and immigrant solutions for the business, research, technology, education, and entertainment communities, among others. He communicates directly with clients, including HR managers, high-level executives, and employees, to ensure comprehension of each step of the immigration process and to collaboratively produce the best immigration strategy for each individual matter.

Since 2018, Michael has served as the Law Student liaison for the Upstate NY Chapter of the American Immigration Lawyers Association (AILA). Since 2017, Michael has served on the board of directors of RISSE, a local nonprofit for refugee and immigrant support services.

Michael also provides pro bono legal representation to low-income clients.

In 2020, Michael was the recipient of the Peter J. Murrett III Pro Bono Award, the highest award of the Upstate NY Chapter of AILA.

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